Index Warrants,
Series W-A
November 22, 2006
New York, New York
Citigroup
Global Markets Inc.
388 Greenwich Street
New York, New York 10013
(the “ Agent ”)
Citigroup
Funding Inc., a Delaware corporation (the “ Company
”) and Citigroup Inc., a Delaware corporation (the “
Guarantor ”), confirm their agreement with each of you
with respect to the issue and sale by the Company of its Index
Warrants, Series W-A, in registered form (the “
Warrants ”), which Warrants are fully and
unconditionally guaranteed (the “ Guarantee ”)
by the Guarantor. The Warrants may be denominated in U.S. dollars,
foreign currencies or composite currencies (the “
Specified Currency ”) as may be specified in the
applicable Pricing Supplement (as defined herein) relating to any
particular issue of Warrants.
The
Warrants will be issued under a warrant agreement (the “
Warrant Agreement ”), dated as of November 22,
2006, among the Company, the Guarantor and U.S. Bank National
Association, as warrant agent (the “ Warrant Agent
”). Unless otherwise specifically provided for and set forth
in a supplement to the Prospectus referred to below, the Warrants
will be issued only in fully registered form, and the Warrants will
have the exercise date(s) or exercise period(s), exchange date(s),
expiration date(s) and other terms set forth in the applicable
Pricing Supplement (as defined herein). The Warrants will be
issued, and the terms thereof established, in accordance with the
Warrant Agreement and the Warrant Administrative Procedures
attached hereto as Exhibit A (as they may be amended
from time to time, the “ Warrant Procedures ”)
(unless a Terms Agreement (as defined in Section 2(b))
modifies or otherwise supersedes such Warrant Procedures with
respect to the Warrants issued pursuant to such Terms Agreement).
The Warrant Procedures may only be amended by written agreement of
the Company, the Guarantor and the Agent after notice to, and with
the approval of, the Warrant Agent.
For
purposes of this Agreement, the term “ Agent ”
shall refer to you and to any additional agents appointed as a
party to this Agreement pursuant to Section 2(c) hereof, acting
solely in your capacity as agent for the Company pursuant to
Section 2(a) and not as principal; the term “
Purchaser ” shall refer to you acting solely as
principal pursuant to Section 2(b) and not as agent; and the term
“ you ” shall refer to you and any other Agent
collectively, whether at any time you are acting in both such
capacities or in either such capacity.
Any
reference herein to the Registration Statement, the Base
Prospectus, any Prospectus Supplement or any Pricing Supplement
(each, as defined below) shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act of
1934 (the “ Exchange Act ”) on or before the
most recent date and time that the Registration Statement, any
post-effective amendment or amendments thereto became or become
effective (the “ Effective Date ”) or the issue
date of the Base Prospectus, any Prospectus Supplement or any
Pricing Supplement, as the case may be; and any reference herein to
the terms “ amend ,” “ amendment
” or “ supplement ” with respect to the
Registration Statement, the Base Prospectus, any Prospectus
Supplement or any Pricing Supplement shall be deemed to refer to
and include the filing of any document under the Exchange Act after
the Effective Date of the Registration Statement or the issue date
of the Base Prospectus, any Prospectus Supplement or any Pricing
Supplement, as the case may be, deemed to be incorporated therein
by reference.
1.
Representations and Warranties . The Company and the
Guarantor jointly and severally represent and warrant to, and agree
with, each of you as set forth below in this Section 1.
(a) The
Company and the Guarantor meet the requirements for use of Form S-3
under the Securities Act of 1933 (the “ Securities Act
”) and have prepared and filed with the Securities and
Exchange Commission (the “ Commission ”) an
automatic shelf registration statement, as defined in
Rule 405, (File No. 333-132370), including a related base
prospectus dated March 10, 2006 (the “ Base
Prospectus ”), for registration under the Securities Act
of the offering and sale of the Warrants. Such automatic shelf
registration statement, including exhibits and financial statements
but excluding all Forms T-1 and any prospectus supplement or
pricing supplement relating to the Warrants that is filed with the
Commission pursuant to Rule 424(b) and deemed part of such
automatic shelf registration statement pursuant to Rule 430B,
as amended on each Effective Date, is referred to herein as the
“ Registration Statement .” Such Registration
Statement, including any amendments thereto filed prior to the date
of this Agreement, became effective upon filing. The Company and
the Guarantor have filed with the Commission a final prospectus
supplement relating to the Warrants and the plan of distribution
thereof (the “ Prospectus Supplement ” and,
together with the Base Prospectus, the “ Prospectus
”). As filed, the Prospectus Supplement contained all
information required by the Securities Act and the rules
thereunder, and was in all substantive respects in the form
furnished to you prior to the date of filing; provided that
the terms of a particular offering of the Warrants will be set
forth in a supplement to the Prospectus Supplement (a “
Pricing Supplement ”) which the Company and the
Guarantor will file with the Commission in accordance with
Rule 424(b). The Registration Statement, as of the date of
this Agreement, meets the requirements set forth in
Rule 415(a)(1)(x). The initial Effective Date of the
Registration Statement was not earlier than the date three years
before the date of this Agreement;
(b) The
documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission promulgated thereunder, and any
further
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documents so
filed and incorporated by reference in the Prospectus, or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder;
(c) On
each Effective Date, the Registration Statement did, and when the
Prospectus Supplement was first filed in accordance with Rule
424(b) and on the Commencement Date (as defined in Section 2(a)
below) and on the date of delivery of and payment for a particular
issue of Warrants (the “ Settlement Date ”), the
Prospectus Supplement did and any supplements thereto will comply
in all material respects with the applicable requirements of the
Securities Act and the Exchange Act and the respective rules
thereunder; on each Effective Date, the Registration Statement did
not and will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading;
and on the date of any filing pursuant to Rule 424(b), on the
Commencement Date and on the Settlement Date, the Prospectus did
not and any supplement thereto will not include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided , however , that the Company and the
Guarantor make no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the trustee under each of (x) the
indenture dated as of June 1, 2005 among the Company, the
Guarantor and The Bank of New York (as successor-in-interest to
JPMorgan Chase Bank, N.A.), (y) the indenture dated as of
June 1, 2005 among the Company, the Guarantor and The Bank of
New York and (z) the indenture dated as of June 1, 2005
among the Company, the Guarantor and Deutsche Bank Trust Company
Americas or (ii) the information contained in or omitted from
the Registration Statement or the Prospectus Supplement or
applicable Pricing Supplement in reliance upon and in conformity
with information furnished in writing to the Company by or on
behalf of either Agent specifically for inclusion in the
Registration Statement or Prospectus (and any supplement
thereto);
(d) As
of the time sales of a particular offering of the Warrants are
confirmed (the “ Time of Sale ”), the Disclosure
Package (as defined below), when taken together with the terms of
the Warrants set forth in the Pricing Supplement, does not contain
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in
or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Company by the
Agent specifically for use therein. The “ Disclosure
Package ” means (i) the Base Prospectus, as amended
and supplemented most recently prior to the Time of Sale,
(ii) any relevant prospectus supplement, (iii) the
related preliminary Pricing Supplement, if any, used most recently
prior to the Time of Sale and (iv) any applicable issuer free
writing prospectus, as defined in Rule 433 under the
Securities Act (each an “ Issuer Free Writing
Prospectus ”), filed with the Commission under
Rule 433 prior to the Time of Sale;
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(e) (i) At
the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Securities Act (whether
such amendment was by post-effective amendment, incorporated report
filed pursuant to Sections 13 or 15(d) of the Exchange Act or
form of prospectus), (iii) at the time the Company or any
person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c)) made any offer relating to the Warrants
in reliance on the exemption in Rule 163 and (iv) at the
Time of Sale (with such time being used as the determination date
for purposes of this clause (iv)), each of the Company and the
Guarantor was or is (as the case may be) a “well-known
seasoned issuer” as defined in Rule 405. The Company
agrees to pay the fees required by the Commission relating to the
Warrants within the time required by Rule 456(b)(1) without
regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r);
(f) (i) At
the earliest time after the filing of the Registration Statement
that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2)) of the
Warrants and (ii) as of the Time of Sale (with such time being
used as the determination date for purposes of this clause (ii)),
neither the Company nor the Guarantor was and is an Ineligible
Issuer (as defined in Rule 405), without taking account of any
determination by the Commission pursuant to Rule 405 that it
is not necessary that the Company or the Guarantor be considered an
Ineligible Issuer;
(g) Each
Issuer Free Writing Prospectus and Final Term Sheet (as defined in
Section 4(g) below) does not include any information that conflicts
with the information contained in the Registration Statement,
including any document incorporated therein and any prospectus
supplement or pricing supplement deemed to be a part thereof that
has not been superseded or modified. The foregoing two sentences do
not apply to statements in or omissions from the Issuer Free
Writing Prospectus or Final Term Sheet based upon and in conformity
with written information furnished to the Company by the Agent
specifically for use therein;
(h) The
Warrants have been duly authorized and, when executed and
authenticated in accordance with the Warrant Agreement and
delivered to and duly paid for by the purchasers thereof, will
constitute valid and binding obligations of the Company,
enforceable in accordance with their respective terms and entitled
to the benefits of the Warrant Agreement (subject, as to
enforcement, to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors’ rights
generally and to general principles of equity regardless of whether
such enforceability is considered in a proceeding in equity or at
law); the Warrant Agreement has been duly authorized by the
Company; and the Warrant Agreement conforms to the description
thereof in the Prospectus as amended or supplemented to relate to
such issuance of Warrants;
(i) The
Guarantees have been duly authorized and, when the Warrants have
been executed, authenticated and delivered by the Guarantor in
accordance with the Warrant Agreement, will constitute valid and
binding obligations of the Guarantor, enforceable in accordance
with their terms and entitled to the benefits of the Warrant
Agreement; and
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(j) Since
the date of the most recent financial statements included in the
Prospectus or the Disclosure Package, each as amended or
supplemented, there has not been any material adverse change in the
consolidated financial condition or results of operations of the
Guarantor and its subsidiaries, taken as a whole, which is not
disclosed in the Prospectus or the Disclosure Package, each as
amended or supplemented.
2.
Appointment of Agent . Subject to the terms and conditions
stated herein and subject to the reservation by the Company of the
right to sell Warrants to you acting as principal at a discount for
your own account or for resale to one or more investors or other
dealers and the Company’s right to sell Warrants directly to
investors on its own behalf or through other agents, the Company
hereby appoints and authorizes the Agent to act as its agent to
solicit offers for the purchase of all or part of the Warrants from
the Company.
(a)
Solicitations of Offers to Purchase Warrants . Following the
Commencement Date (defined below), the Company shall notify the
Agent from time to time as to the commencement of a period during
which the Warrants may be offered and sold by the Agent (each
period, commencing with such a notification and ending at such time
as the authorization for offers and sales through the Agent shall
have been suspended by the Company or the Agent as provided
hereunder, being herein referred to as an “ Offering
Period ”). The initial Offering Period shall begin on
November 22, 2006 (the “ Commencement Date
”). On the basis of the representations and warranties, and
subject to the terms and conditions set forth herein, the Agent
agrees, as agent of the Company, to use its reasonable best efforts
to solicit offers to purchase the Warrants from the Company upon
the terms and conditions set forth in the Prospectus (and any
supplement thereto) and in the Warrant Procedures. The Agent shall
communicate to the Company, orally or in writing, each reasonable
offer or indication of interest to purchase the Warrants received
by the Agent as agent. The Company shall have the sole right to
accept offers to purchase the Warrants and may reject any such
offer in whole or in part. The Agent shall have the right to
reject, in its discretion reasonably exercised, any offer received
by it to purchase the Warrants, in whole or in part, and any such
rejection shall not be deemed a breach of its agreements contained
herein. In soliciting offers to purchase the Warrants in its
capacity as agent of the Company, the Agent is acting solely as
agent for the Company, and not as principal, and does not assume
any obligation toward or relationship of agency or trust with any
purchaser of the Warrants (other than any such obligation or
relationship which the Agent assumes independently of this
Agreement). The Agent shall make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose offer to
purchase Warrants has been solicited by the Agent and accepted by
the Company, but the Agent shall not, except as otherwise provided
in this Agreement, be obligated to disclose the identity of any
purchaser or have any liability to the Company in the event any
such purchase is not consummated for any reason. Except as provided
in Section 2(b), under no circumstances will the Agent be
obligated to purchase any Warrants for its own account. It is
understood and agreed, however, that you may purchase the Warrants
as principal pursuant to Section 2(b).
The
Company reserves the right, in its sole discretion, to instruct the
Agent to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Warrants.
Upon receipt of instructions from the Company, the Agent will
forthwith suspend
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solicitation of
offers to purchase Warrants from the Company until such time as the
Company has advised them that such solicitation may be
resumed.
The
Company agrees to pay the Agent a commission, on the Settlement
Date with respect to each sale of Warrants by the Company as a
result of a solicitation made by the Agent, in an amount agreed
upon by the Agent and the Company. Such commission shall be payable
as specified in the Warrant Procedures. Without the prior approval
of the Company, the Agent (acting on an agency basis) may not
reallow any portion of the commission payable pursuant hereto to
dealers or purchasers in connection with the offer and sale of any
Warrants.
Subject
to the provisions of this Section 2 and to the Warrant
Procedures, offers for the purchase of Warrants may be solicited by
the Agent as agent for the Company at such time and in such amounts
as the Agent shall deem advisable. The Company may from time to
time offer Warrants for sale otherwise than through the Agent;
provided , however , that so long as this Agreement
is in effect the Company shall not solicit or accept offers to
purchase Warrants through any agent other than the
Agent.
If
the Company defaults in its obligations to deliver Warrants to a
purchaser whose offer it has accepted, the Company and the
Guarantor shall indemnify and hold you harmless against any loss,
claim or damage arising from or as a result of such default by the
Company.
(b)
Purchases of Warrants . Subject to the terms and conditions
stated herein, whenever the Company and you determine that the
Company shall sell Warrants directly to you as principal (in such
capacity, the “ Purchaser ”), each such sale of
Warrants shall be made in accordance with the terms of this
Agreement and a supplemental agreement relating to such sale. Each
such supplemental agreement (which may be either an oral or written
agreement) is herein referred to as a “ Terms
Agreement .” Each Terms Agreement shall describe the
Warrants to be purchased by the Purchaser pursuant thereto and
shall specify the terms of the offered Warrants. A Terms Agreement
may also specify certain provisions relating to the reoffering of
such Warrants by the Purchaser. Any written Terms Agreement may be
in the form attached hereto as Exhibit B . The
Purchaser’s commitment to purchase Warrants shall be deemed
to have been made on the basis of the representations and
warranties of the Company and the Guarantor herein contained and
shall be subject to the terms and conditions herein set
forth.
Delivery
of the Warrants sold to the Purchaser pursuant to a Terms Agreement
shall be made not later than the Settlement Date specified in the
Terms Agreement against payment of funds to the Company in the net
amount due to the Company for such Warrants by the method and in
the form set forth in the Warrant Procedures, unless otherwise
agreed to between the Company and the Purchaser.
Any
Warrant sold to a Purchaser (i) shall be purchased by such
Purchaser at a price agreed to between the Company and the
Purchaser in a Terms Agreement, and (ii) unless otherwise
specified in such Terms Agreement, may be resold by such Purchaser
at varying prices from time to time or, if set forth in the
applicable Terms Agreement and Pricing Supplement, at a
6
fixed public
offering price. In connection with any resale of Warrants
purchased, a Purchaser may use a selling or dealer group and may
reallow to any broker or dealer any portion of the discount or
commission payable pursuant hereto.
(c)
Additional Agents . Notwithstanding paragraph 2(a) or 2(b)
above, the Company may from time to time appoint one or more
additional financial institutions experienced in the distribution
of securities as an Agent under this Agreement, for the duration of
this Agreement (subject to Section 7 hereof) or on an issue by
issue basis, pursuant to a letter (an “ Agent Accession
Confirmation ”) substantially in the form of
Exhibit C or Exhibit E to this Agreement,
as appropriate, provided that any such additional party shall have
first requested appointment as such upon the terms and conditions
of this Agreement in writing to the Company pursuant to a letter
(an “ Agent Accession Letter ”) substantially in
the form of Exhibit D or Exhibit F to this
Agreement, as appropriate, whereupon it shall, subject to the terms
and conditions of this Agreement, the relevant Agent Accession
Letter and the relevant Agent Accession Confirmation, become a
party to this Agreement as an Agent, as specified in the relevant
Agent Accession Letter, vested with all the authority, rights and
powers and subject to all the duties and obligations of an Agent as
if originally named as an Agent hereunder. The Company shall
promptly notify the Guarantor, the Warrant Agent and the other
Agents of any such appointment, but only in the event that any such
additional Agent is appointed for the duration of this
Agreement.
3.
Offering and Sale of Warrants . The Agent and the Company
agree to perform the respective duties and obligations specifically
provided to be performed by them in the Warrant
Procedures.
4.
Agreements . (A) The Company and the Guarantor agree
with you that:
(a) At
any time during an Offering Period or during the time a prospectus
relating to the Warrants is required to be delivered under the
Securities Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172), prior to amending or
supplementing the Registration Statement or the Prospectus, the
Company and the Guarantor will furnish the Agent and Cleary
Gottlieb Steen & Hamilton LLP, counsel to the Agent, with a
copy of each proposed amendment or supplement (other than an
amendment or supplement to be made pursuant to incorporation by
reference of a document filed under the Exchange Act, or a Pricing
Supplement or an amendment or supplement relating solely to an
offering of securities other than the Warrants) and will not file
any such proposed amendment or supplement to which they reasonably
object. The Company and the Guarantor will cause each amendment of
or supplement to the Prospectus to be filed promptly with the
Commission pursuant to Rule 424(b). If the Prospectus is
amended or supplemented (other than by a Pricing Supplement or an
amendment or supplement relating solely to an offering of
securities other than the Warrants), the Agent shall be furnished
with such information relating to such filing as it may reasonably
request, and the Agent shall not be obligated to solicit offers to
purchase Warrants so long as it is not reasonably satisfied that
such amendment or supplement complies in all material respects with
the provisions of the Securities Act and the Exchange Act. At any
time during an Offering Period or during the time a prospectus
relating to the Warrants is required to be delivered under the
Securities Act, the Company and the Guarantor will promptly advise
the Agent of (i) the
7
filing of any
amendment or supplement to the Prospectus (other than a Pricing
Supplement or an amendment or supplement relating solely to an
offering of securities other than the Warrants), (ii) the
filing of any amendment to the Registration Statement,
(iii) the receipt by the Company or the Guarantor of comments
from the Commission relating to or requests by the Commission for
any amendment of the Registration Statement or any amendment of or
supplement to the Prospectus or for any additional information,
(iv) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of
any notice objecting to its use or the institution or threatening
of any proceeding for that purpose and (v) the receipt by the
Company or the Guarantor of any notification with respect to the
suspension of the qualification of the Warrants for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company and the Guarantor will use their
reasonable best efforts to prevent the issuance of any such stop
order or the occurrence of any such suspension or objection to the
use of the Registration Statement and, upon such issuance,
occurrence or notice of objection, to obtain as soon as possible
the withdrawal of such stop order or relief from such occurrence or
objection, including, if necessary, by filing an amendment to the
Registration Statement or a new registration statement and using
their best efforts to have such amendment or new registration
statement declared effective as soon as practicable.
(b) If,
at any time prior to the filing of the related Pricing Supplement
pursuant to Rule 424(b), any event occurs as a result of which the
Disclosure Package would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which
they were made at such time not misleading, the Company and the
Guarantor will (1) notify promptly the Agent so that any use
of the Disclosure Package may cease until it is amended or
supplemented; (2) amend or supplement the Disclosure Package
to correct such statement or omission; and (3) supply any
amendment or supplement to the Agent in such quantities as the
Agent may reasonably request.
(c) At
any time during an Offering Period, the Company and the Guarantor
will comply with all requirements imposed upon them by the
Securities Act, as now and hereafter amended, and by the rules and
regulations of the Commission thereunder, as from time to time in
force, so far as necessary to permit the continuance of sales of or
dealings in the Warrants as contemplated by the provisions hereof
and the Prospectus. If during such period any event occurs as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances then existing, not misleading, or
if, in the opinion of the Company and the Guarantor, during such
period it is necessary to amend or supplement the Registration
Statement or the Prospectus or file a new registration statement to
comply with the Securities Act or the Exchange Act or the
respective rules thereunder, the Company and the Guarantor promptly
will notify the Agent to suspend the solicitation of offers to
purchase the Warrants and to cease sales of any Warrants. To the
extent required under the provision in the last sentence of this
subsection (c), the Company and the Guarantor promptly will amend
or supplement the Registration Statement or the Prospectus or file
a new registration statement (at the expense of the Company and the
Guarantor) so as to correct such statement or omission or effect
such compliance and will use their best efforts to have any
amendment to the Registration Statement or new registration
statement declared effective as soon as practicable in
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order to avoid
any disruption in use of the Prospectus (and any supplements
thereto). If such amendment or supplement, and any documents,
certificates, opinions and letters furnished to the Agent pursuant
to subsections (m), (n) and (o) of this Section 4(A)
in connection with the preparation and filing of such amendment or
supplement, are reasonably satisfactory in all respects to the
Agent, in its sole discretion, upon the filing of such amendment or
supplement with the Commission or effectiveness of an amendment to
the Registration Statement, the Agent will resume solicitation of
offers to purchase Warrants hereunder. Notwithstanding the
foregoing, neither the Company nor the Guarantor shall be required
to comply with the provisions of subsection (c) of this
Section 4(A) during any period from the time the Agent shall
have been notified to suspend the solicitation of offers to
purchase the Warrants in its capacity as Agent (whether under this
subparagraph (c) or otherwise under this Agreement) to the
time the Company shall determine that solicitation of offers to
purchase the Warrants should be resumed; provided that if the Agent
holds any Warrants purchased as principal pursuant to a Terms
Agreement, the Company and the Guarantor shall comply with the
provisions of subsection (c) of this Section 4(A) during
the period when a prospectus relating to the Warrants is required
to be delivered pursuant to the Securities Act (including in
circumstances where such requirement may be satisfied pursuant to
Rule 172).
(d) The
Guarantor will comply, in a timely manner, with all applicable
requirements under the Exchange Act relating to the filing with the
Commission of the Guarantor’s reports pursuant to
Section 13(a), 13(c) or 15(d) of the Exchange Act and, if then
applicable, of the Guarantor’s proxy statements pursuant to
Section 14 of the Exchange Act.
(e) The
Company and the Guarantor will use their best efforts to qualify
the Warrants for sale under the securities laws of such
jurisdictions as the Agent reasonably designates, to maintain such
qualifications in effect so long as required for the distribution
of the Warrants and, if requested by the Agent, to arrange for the
determination of the legality of the Warrants for purchase by
institutional investors, except that neither the Company nor the
Guarantor shall be required in connection therewith to qualify to
do business in any jurisdiction where it is not now so qualified or
to take any action which would subject it to general or unlimited
service of process in any jurisdiction where it is not now so
subject.
(f) Upon
request, the Company and the Guarantor will furnish to the Agent
and counsel for the Agent, without charge, signed copies of the
Registration Statement (including exhibits thereto) and the
Prospectus and, so long as delivery of a prospectus relating to the
Warrants by the Agent may be required by the Securities Act
(including in circumstances where such requirement may be satisfied
pursuant to Rule 172), as many copies of each additional
prospectus supplement, Pricing Supplement and Issuer Free Writing
Prospectus and any supplements thereto as the Agent may reasonably
request. The Company will pay the expenses of printing or other
production of all documents relating to each offering that are
required to be prepared, furnished or delivered by it.
(g) Upon
request, the Company will prepare a final term sheet, containing
solely a description of final terms of the Warrants and the
offering thereof (a “ Final Term Sheet ”), in a
form approved by the Agent and will file such term sheet pursuant
to Rule 433(d) within the time required by such Rule.
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(h) (i) Each
of the Company and the Guarantor agrees that, unless it has
obtained or will obtain, as the case may be, the prior written
consent of the Agent, and (ii) the Agent agrees with the
Company and the Guarantor that, unless it has obtained or will
obtain, as the case may be, the prior written consent of the
Company and the Guarantor, it has not made and will not make any
offer relating to the Warrants that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a “free
writing prospectus” (as defined in Rule 405) required to
be filed by the Company or the Guarantor with the Commission or
retained by the Company or the Guarantor under Rule 433;
provided that the prior written consent of the parties
hereto shall be deemed to have been given in respect of any Final
Term Sheet and any free writing prospectus prepared by the Agent in
connection with a specific offering of the Warrants and approved
for use by the Company and the Guarantor. Any such free writing
prospectus consented to by the Agent or the Company and the
Guarantor is hereinafter referred to as a “ Permitted Free
Writing Prospectus .” Each of the Company and the
Guarantor agrees that (x) it has treated and will treat, as
the case may be, each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus and (y) it has complied and
will comply, as the case may be, with the requirements of
Rules 164 and 433 applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the
Commission, legending and record keeping.
(i) So
long as any of the Warrants are outstanding, the Guarantor agrees
to furnish to the Agent, upon its reasonable request, as soon as
available, all reports and financial statements filed by or on
behalf of the Guarantor with the Commission or any national
securities exchange. The Guarantor shall be deemed to have
furnished such information to the Agent if (i) such reports
and financial statements are generally available on, and can be
printed and/or downloaded from, the Securities and Exchange
Commission’s internet website, www.sec.gov (or any
other website of which the Guarantor notifies the Agent), and
(ii) the Agent has been notified by the Guarantor that such
reports and financial statements have been filed with the
Securities and Exchange Commission.
(j) The
Company and the Guarantor shall, whether or not any sale of
Warrants is consummated or this Agreement is terminated, pay all
expenses incident to the performance of their obligations under
this Agreement and under any Terms Agreement, including, without
limitation, the fees and disbursements of its accountants and
counsel; the cost of printing (or other production) and delivery of
the Registration Statement, the Prospectus, any Pricing
Supplements, Final Term Sheets or Issuer Free Writing Prospectuses,
all amendments thereof and supplements thereto, the Warrant
Agreement, and all other documents relating to the offering, the
cost of preparing, printing, packaging and delivering the Warrants;
the fees and disbursements (including reasonable fees of counsel)
incurred in connection with the qualification of the Warrants for
sale and determination of eligibility for investment of the
Warrants under the securities or blue sky laws of such
jurisdictions as the Agent may reasonably designate; the fees and
disbursements of the Warrant Agent; the fees of any agency that
rates the Warrants, if applicable; the fees and expenses in
connection with any listing of the Warrants on the Chicago Board
Options Exchange, The NASDAQ Stock Market, the American Stock
Exchange or such other securities exchange agreed to by the
Company; the fees and expenses incurred with respect to any filing
with the NASD; the reasonable fees and disbursements of Cleary
Gottlieb Steen & Hamilton LLP, as counsel for the Agent, or
other counsel reasonably
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satisfactory to
the Agent, the Company and the Guarantor; and such other expenses,
including, without limitation, advertising expenses as may be
agreed upon by the Agent, the Company and the Guarantor;
provided , however , that with respect to any
purchase of Warrants by you as principal pursuant to a Terms
Agreement, the fees and disbursements of Cleary Gottlieb Steen
& Hamilton LLP or other counsel to you shall not be paid by
either the Company or the Guarantor.
(k) During
the term of this Agreement, the Company and the Guarantor shall
furnish to the Agent such relevant documents and certificates of
officers of the Company and the Guarantor relating to the business,
operations and affairs of the Company and the Guarantor, the
Registration Statement, the Prospectus, any Pricing Supplement,
Final Term Sheet and Issuer Free Writing Prospectus, any amendments
thereof or supplements thereto, the Warrant Agreement, the
Warrants, this Agreement, the Warrant Procedures, any Terms
Agreement and the performance by the Company and the Guarantor of
their obligations hereunder or thereunder as the Agent may from
time to time reasonably request. The Company and the Guarantor
shall promptly notify the Agent orally, followed by written notice,
of any downgrading or of the receipt by either of them of any
notice of any intended downgrading in the rating accorded any
securities of either the Company or the Guarantor by Moody’s
Investors Service, Inc. or Standard & Poor’s Ratings
Services or, if one of them no longer rates the securities of
either the Company or the Guarantor, another “nationally
recognized statistical rating organization,” as such term is
defined for purposes of Rule 436(g)(2).
(l) If
any issue of Warrants is to be listed on the Chicago Board Options
Exchange, The NASDAQ Stock Market, the American Stock Exchange or
such other securities exchange agreed to by the Company, as
specified in the applicable Pricing Supplement, the Company and the
Guarantor will use their best efforts to obtain the listing of such
issue of Warrants on such securities exchange, to furnish to such
securities exchange all documents, information and undertakings
that may be reasonably necessary in order to effect such listing,
and to cause such listing to be continued so long as any of the
Warrants of such issue remain outstanding.
(m) Each
time the Registration Statement or the Prospectus is amended or
supplemented (other than by filing with the Commission: (i) a
Pricing Supplement, (ii) an amendment or supplement relating
solely to an offering of securities other than the Warrants,
(iii) a Current Report on Form 8-K (or any successor item
thereto), or (iv) any other amendment or supplement that the
Agent reasonably deem immaterial), the Company and the Guarantor
will deliver or cause to be delivered forthwith to the Agent a
certificate of the Company and the Guarantor, signed by (A) on
behalf of the Company, the Chairman, the President or any Vice
President and by the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Assistant Secretary and,
(B) on behalf of the Guarantor, the Chairman, any Vice
Chairman, any Vice President, the principal financial officer, the
General Counsel, the Controller, any Deputy Controller or the
principal accounting officer and by the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary (or another
officer or officers acceptable to the Agent), dated the date of the
effectiveness of such amendment or the date of filing with the
Commission of such supplement or document, as the case may be, in
form reasonably satisfactory to the Agent, to the effect that the
statements contained in the certificate referred to in Section 5(b)
(iii) that was last furnished to the Agent (either pursuant to
Section 5(b) (iii) or pursuant to this
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Section 4(A)(m)) are true and correct at
the time of the effectiveness of such amendment or the time of
filing of such supplement or document, as the case may be, as
though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement, as amended
at the time of effectiveness of such amendment, and to the
Prospectus, as amended and supplemented at the date of such
certificate) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in Section 5(b)
(iii) but modified, if necessary, to relate to the
Registration Statement, as amended at the time of the effectiveness
of such amendment, and to the Prospectus, as amended and
supplemented at the date of such certificate.
(n) Each
time the Registration Statement or the Prospectus is amended or
supplemented (other than by filing with the Commission: (i) a
Pricing Supplement, (ii) an amendment or supplement relating
solely to an offering of securities other than the Warrants,
(iii) a Current Report on Form 8-K (or any successor item
thereto), or (iv) any other amendment or supplement that the
Agent reasonably deems immaterial), the Company and the Guarantor
shall furnish to or cause to be furnished forthwith to the Agent
the written opinion of the General Counsel, Finance and Capital
Markets of the Guarantor, or other counsel for the Company and/or
the Guarantor reasonably satisfactory to the Agent, dated the date
of the effectiveness of such amendment or the date of filing with
the Commission of such supplement or document, as the case may be,
in form reasonably satisfactory to the Agent, to the effect set
forth in Exhibit G hereto. In lieu of such opinion,
counsel last furnishing such an opinion to the Agent may furnish to
the Agent a letter to the effect that the Agent may rely on such
last opinion to the same extent as though it were dated the date of
such letter and authorizing reliance on such last opinion (except
that statements in such last opinion will be deemed to relate to
the Registration Statement, as amended at the time of the
effectiveness of such amendment, and to the Prospectus, as amended
and supplemented at the date of such letter).
(o) Each
time that the Registration Statement or the Prospectus is amended
or supplemented to set forth amended or supplemental financial
information supplemented (other than by filing with the Commission:
(i) a Pricing Supplement, (ii) an amendment or supplement
relating solely to an offering of securities other than the
Warrants, (iii) a Current Report on Form 8-K (or any successor
item thereto), or (iv) any other amendment or supplement that
the Agent reasonably deems immaterial), the Guarantor shall cause
KPMG LLP, Independent Registered Public Accounting Firm, forthwith
to furnish the Agent a letter, dated the date of the effectiveness
of such amendment or the date of filing of such supplement or
document, as the case may be, in form satisfactory to the Agent, of
the same tenor as th
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