CITIGROUP INC.
178,076,770 Shares of Common Stock
(par value $0.01 per share)
UNDERWRITING AGREEMENT
New
York, New York
April 30, 2008
Citigroup Global Markets Inc.
as Representative of the several Underwriters
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies
and Gentlemen:
Citigroup
Inc., a corporation organized under the laws of Delaware (the
“Company”), proposes, upon the terms and conditions set
forth herein, to issue and sell 178,076,770 shares of the common
stock of the Company (the “Common Stock”), par value
$0.01 per share (the “Underwritten Securities”), to the
several Underwriters named in Schedule I hereto (the
“Underwriters”), for whom you (the
“Representative”) are acting as representative. The
Company also proposes to grant the Underwriters an option to
purchase 17,807,677 additional shares of Common Stock to cover
over-allotments (the “Option Securities” and, together
with the Underwritten Securities, the
“Securities”).
The
Company wishes to confirm as follows its agreement with you and the
other several Underwriters listed on Schedule I on whose
behalf you are acting, in connection with the several purchases of
the Securities by the Underwriters. To the extent there are no
additional Underwriters listed on Schedule I other than you,
the term Representatives as used herein shall mean you, as
Underwriter, and the terms Representatives and Underwriters shall
mean either the singular or plural as the context requires. Any
reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus
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 on or before the Effective Date
of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, 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 Preliminary Prospectus or the
Final Prospectus 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 Preliminary Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 21
hereof.
1.
Registration Statement and Prospectus . The Company meets
the requirements for use of Form S-3 under the Act and has prepared
and filed with the Commission
an
automatic shelf registration statement, as defined in Rule 405
(File No. 333-132177), including a related Base Prospectus,
for registration under the Act of the offering and sale of the
Securities. Such Registration Statement, including any amendments
thereto filed prior to the date hereof, became effective upon
filing. The Company may have filed with the Commission, as part of
an amendment to the Registration Statement or pursuant to
Rule 424(b), one or more Preliminary Prospectuses relating to
the Securities, each of which has previously been furnished to you.
The Company will file with the Commission a Final Prospectus
relating to the Securities in accordance with Rule 424(b). As
filed, such Final Prospectus shall contain all information required
by the Act and the rules thereunder, and, except to the extent the
Representative shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to you prior to
the date hereof or, to the extent not completed by the date hereof,
shall contain only such specific additional information and other
changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus) as the Company has advised you, prior to
the date hereof, will be included or made therein. The Registration
Statement, as of the date hereof, 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 hereof.
2.
Agreements to Sell and Purchase . (a) The Company
hereby agrees, subject to all the terms and conditions set forth
herein, to issue and sell to each Underwriter and, upon the basis
of the representations, warranties and agreements of the Company
herein contained and subject to all the terms and conditions set
forth herein each Underwriter agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $24.575 per
Security, the number of Underwritten Securities set forth opposite
the name of such Underwriter in Schedule I hereto (or such
number of Securities increased as set forth in Section 11
hereof).
Subject
to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby
grants an option to the several Underwriters to purchase, severally
and not jointly, up to 17,807,677 Option Securities at the same
purchase price per share as the Underwriters shall pay for the
Underwritten Securities. Said option may be exercised in whole or
in part at any time or from time to time on or before the 30
th day
after the date of the Final Prospectus, upon written or facsimile
notice by the Representative to the Company setting forth the
number of Option Securities as to which the several Underwriters
are exercising the option and the date on which delivery and
payment shall occur, which shall not be less than three Business
Days after the date of the notice of exercise. The number of Option
Securities to be purchased by each Underwriter shall be the same
percentage of the total number of Option Securities to be purchased
by the several Underwriters as such Underwriter is purchasing of
the Underwritten Securities, subject to such adjustments as the
Representative, in its absolute discretion, shall make to eliminate
any fractional shares.
3.
Offering by Underwriters . It is understood that the several
Underwriters propose to offer the Securities for sale to the public
as set forth in the Disclosure Package and the Final
Prospectus.
4.
Delivery of the Securities and Payment Therefor . Delivery
to the Underwriters of, and payment for, the Underwritten
Securities shall be made at the office of Cleary Gottlieb Steen
& Hamilton LLP, One Liberty Plaza, New York, New York 10006, at
9:00 A.M., New York City time, on May 5, 2008 (the “Closing
Date”). Delivery to the Underwriters
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of, and
payment for, the Option Securities (if the option provided for in
Section 2(b) hereof is exercised) shall be made on the date and at
the time specified in the notice of exercise of the option, which
shall not be less than three Business Days after the date of the
notice. The place of closing for the Underwritten Securities and
the Closing Date may be varied by agreement between you and the
Company.
Delivery
of the Securities shall be made to the Representative for the
respective accounts of the several Underwriters against payment by
the several Underwriters directly or through the Representative of
the purchase price thereof to or upon the order of the Company by
wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the
facilities of The Depository Trust Company unless the
Representative shall otherwise instruct.
It is
understood that the Representative, acting individually and not in
a representative capacity, may (but shall not be obligated to) make
payment to the Company on behalf of any other Underwriter for
Securities to be purchased by such Underwriter. Any such payment by
the Representative shall not relieve any such Underwriter of any of
its obligations hereunder.
5.
Agreements of the Company . The Company agrees with the
several Underwriters that:
(a) Prior to the termination of the
offering of the Securities, the Company will not file any amendment
of the Registration Statement or supplement to any Preliminary
Prospectus or the Final Prospectus unless the Company has furnished
the Representative a copy for their review prior to filing and will
not file any such proposed amendment or supplement to which they
reasonably object. The Company will cause the Final Prospectus,
properly completed, and any supplement thereto, to be filed in a
form acceptable to the Representative with the Commission pursuant
to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the
Representative of such timely filing. The Company will promptly
advise the Representative (1) when the Final Prospectus, and
any supplement thereto, shall have been filed with the Commission
pursuant to Rule 424(b), (2) when, prior to termination of the
offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective, (3) of
any request by the Commission or its staff for any amendment of the
Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (4) of 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 (5) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The
Company will use its 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
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statement and
using its 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 Final Prospectus 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 will (i) notify promptly the
Representative so that any use of the Disclosure Package may cease
until it is amended or supplemented; (ii) amend or supplement
the Disclosure Package to correct such statement or omission; and
(iii) supply any amendment or supplement to you in such
quantities as you may reasonably request.
(c) If, at any time when a prospectus
relating to the Securities is required to be delivered under the
Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172), any event occurs as a result
of which the Final Prospectus as then supplemented 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 not misleading, or
if it shall be necessary to amend the Registration Statement, file
a new registration statement or supplement the Final Prospectus to
comply with the Act or the Exchange Act or the respective rules
thereunder, including in connection with use or delivery of the
Final Prospectus, the Company promptly will (i) notify the
Representative of such event, (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of
this Section 5, an amendment or supplement or new registration
statement which will correct such statement or omission or effect
such compliance, (iii) use its best efforts to have any
amendment to the Registration Statement or new registration
statement declared effective as soon as practicable in order to
avoid any disruption in use of the Final Prospectus and
(iv) supply any supplemented Final Prospectus to the
Representative in such quantities as the Representative may
reasonably request.
(d) As soon as practicable, the
Company will make generally available to its security holders and
to the Representative a consolidated earnings statement or
statements of the Company and its subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and Rule 158.
(e) Upon request, the Company will
furnish to the Representative and counsel for the Underwriters,
without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy
of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), as many
copies of any Preliminary Prospectus, the Final Prospectus and any
Issuer Free Writing Prospectus and any supplement thereto as the
Representative may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating
to the offering that are required to be prepared, furnished or
delivered by the Company.
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(f) The Company will arrange, if
necessary, for the qualification of the Securities for sale under
the laws of such jurisdictions within the United States as the
Representative reasonably may designate, will maintain such
qualifications in effect so long as required for the distribution
of the Securities and will pay any fee of the Financial Industry
Regulatory Authority (as successor to the National Association of
Securities Dealers, Inc.), in connection with its review of the
offering; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is
not now so subject.
(g) (i) The Company agrees that,
unless it has obtained or will obtain, as the case may be, the
prior written consent of the Representative, and (ii) each
Underwriter, severally and not jointly, agrees with the Company
that, unless it has obtained or will obtain, as the case may be,
the prior written consent of the Company, it has not made and will
not make any offer relating to the Securities 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 with the
Commission or retained by the Company under Rule 433, other
than the press release issued April 29, 2008 announcing the
offering of the Securities (the “April 29 Press
Release”) and the press release issued April 30, 2008
announcing the final terms of the Securities (the
“April 30 Press Release” and, together with the
April 29 Press Release, the “Press Releases”). The
Press Releases and any such free writing prospectus consented to by
the Representative or the Company are each hereinafter referred to
as a “Permitted Free Writing Prospectus.” The Company
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.
(h) For a period of 60 days from
the date of the Final Prospectus, the Company will not, without the
prior written consent of Citigroup Global Markets Inc., offer,
sell, contract to sell, pledge, or otherwise dispose of (or enter
into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate
of the Company), directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Exchange Act, any other
shares of Common Stock or any securities convertible into,
exercisable for, or exchangeable for shares of Common Stock, except
for (i) the offering of the Securities, (ii) issuances
and sales of Common Stock pursuant to any employee stock option
plan, stock ownership plan, dividend reinvestment plan or similar
plan of the Company and (iii) the issuance of Common Stock
issuable upon the conversion of securities or the exercise of
warrants outstanding on the date hereof.
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(i) The Company will comply with all
applicable securities and other laws, rules and regulations,
including, without limitation, the Sarbanes Oxley Act of 2002, and
use its best efforts to cause the Company’s directors and
officers, in their capacities as such, to comply with such laws,
rules and regulations, including, without limitation, the
provisions of the Sarbanes Oxley Act of 2002.
(j) The Company will not take,
directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities, except that the
Company makes no agreement as to the activities of any
Underwriter.
(k) The Company shall use its
reasonable efforts to furnish to the Representative a letter
addressed to the Representative substantially in the form of
Exhibit A hereto from each of the persons listed in
Exhibit B hereto.
6.
Representations and Warranties of the Company . The Company
represents and warrants to, and agrees with, each Underwriter
that:
(a) On each Effective Date, the
Registration Statement did, and when the Final Prospectus is first
filed in accordance with Rule 424(b) and on the Closing Date and on
any date on which Option Securities are purchased, if such date is
not the Closing Date (a “settlement date”), the Final
Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the Act and
the Exchange Act and the respective rules thereunder; on each
Effective Date and on the date hereof, 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; on the date of any filing pursuant to Rule 424(b) and
on the Closing Date and any settlement date, the Final Prospectus
(together with 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 makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of
any Underwriter through the Representative specifically for
inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto), it being understood and agreed that the
only such information furnished by or on behalf of any Underwriters
consists of the information described as such in Section 7
hereof.
(b) The execution and delivery of,
and the performance by the Company and its obligations under, this
Agreement have been duly and validly authorized by the Company, and
this Agreement has been duly executed and delivered by the
Company.
(c) This issuance of Common Stock has
been duly authorized by the Company and, when the Common Stock is
issued and delivered to and paid for by the
6
Underwriter
pursuant to this Agreement, will be validly issued, fully paid and
nonassessable; the holders of outstanding shares of the common
stock of the Company are not entitled to preemptive or other rights
to subscribe for the Securities; and, except as set forth in the
Disclosure Package and the Final Prospectus, no options, warrants
or other rights to purchase, agreements or other obligations to
issue, or rights to convert any obligations into or exchange any
securities for, shares of common stock or ownership interest in the
Company are outstanding.
(d) As of the date hereof, the
Disclosure Package and the price to the public, the number of
Underwritten Securities and the number of Option Securities to be
included on the cover of the Final Prospectus, when taken together
as a whole, 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 any Underwriter through the Representative
specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in
Section 7 hereof.
(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 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 their behalf (within the meaning, for this clause only,
of Rule 163(c)) made any
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