EXHIBIT 1.01
80,000,000 Depositary Shares
Each Representing a 1/1,000th Interest in a Share of
8.50% Non-Cumulative Preferred Stock, Series F
($1.00 par value)
CITIGROUP INC.
UNDERWRITING AGREEMENT
New
York, New York
May 6, 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 80,000,000 depositary shares (the
“Depositary Shares”), each representing a 1/1,000th
interest in a share of perpetual 8.50% Non-Cumulative Preferred
Stock, Series F (the “Preferred Stock”), of the
Company (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 purposes to grant the Underwriters an option to
purchase 12,000,000 additional Depositary Shares to cover
over-allotments (the “Option Securities” and, together
with the Underwritten Securities, the “Securities”).
The Preferred Stock shall have the rights, powers and preferences
set forth in the certificate of designation to be dated
May 12, 2008 relating thereto (the “Certificate of
Designation”). The shares of Preferred Stock represented by
the Securities are to be deposited by the Company against delivery
of depositary receipts evidencing the Securities (the
“Depositary Receipts”) that are to be issued by The
Bank of New York, as Depositary (the “Depositary”),
under a Deposit Agreement, to be dated as of May 13, 2008 (the
“Deposit Agreement”), among the Company, the Depositary
and the holders from time to time of the Depositary Receipts issued
thereunder.
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
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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 . 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 $24.2125 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); provided, however, that with respect to sales made by the
Underwriters to certain institutional purchasers, the purchase
price instead shall be $24.5000 per Security. The Representative
confirms to the Company that for this purpose the number of
Underwritten Securities sold to such institutional purchasers is
8,200,000.
Subject
to the terms and conditions and in reliance upon the
representations and warranties set forth herein, the Company hereby
grants an option to the several Underwriters to purchase, severally
and not jointly, up to 12,000,000 Option Securities at the same
purchase price per Security 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
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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 13, 2008 (the “Closing
Date”). Delivery to the Underwriters of, and payment for, the
Option Securities (if the option provided for in Section 2
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,
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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 statement and using its best efforts to have such
amendment or new registration statement declared effective as soon
as practicable.
(b) The Company will prepare a final
term sheet, containing solely a description of final terms of the
Securities and the offering thereof, in a form acceptable to you
(the “Final Term Sheet”) and to file such term sheet
pursuant to Rule 433(d) within the time required by such
Rule.
(c) 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.
(d) 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
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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.
(e) 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.
(f) 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.
(g) 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.
(h) (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 Final Term Sheet described above or other free writing
prospectuses containing solely a description of the final terms of
the Securities and the offering thereof. Any such free writing
prospectus consented to by the Representative or the Company is
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.
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(i) During the period beginning on
the date hereof and continuing to and including the Closing Date,
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 shares of preferred stock
or any other securities of the Company, including any back-up
undertaking of such preferred stock or other securities, in each
case that are substantially similar to the preferred stock, or any
securities convertible into or exchangeable for such preferred
stock or such substantially similar securities of the Company,
except for (i) the offering of the Securities and
(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.
(j) 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.
(k) 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.
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
6
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) The Certificate of Designation
has been duly and validly authorized by the Company.
(d) The execution and delivery of,
and the performance by the Company and its obligations under, the
Deposit Agreement have been duly and validly authorized by the
Company, and, at the Closing Date, the Deposit Agreement will have
been duly executed and delivered by the Company.
(e) The deposit of the Preferred
Stock by the Company in accordance with the Deposit Agreement has
been duly authorized by the Company; the Preferred Stock has been
duly and validly authorized by the Company, and, when the
Securities are issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, the Preferred Stock will
be fully paid and nonassessable; assuming due execution and
delivery of the Depositary Receipts and the Deposit Agreement by
the Depositary, each Depositary Receipt will be duly and validly
issued and will entitle the holder thereof to the benefits provided
therein and in the Deposit Agreement.
(f) The holders of outstanding shares
of capital stock of the Company are not entitled to preemptive or
other rights to subscribe for the Securities or the underlying
shares of Preferred Stock; 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 capital stock of or ownership interests
in the Company are outstanding.
(g) As of the date hereof, the
Disclosure Package 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.
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(h) (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 offer relating to the Securities in
reliance on the exemption in Rule 163 and (iv) on the date
hereof (with such date being used as the determination date for
purposes of this clause (iv)), the Company 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 Securities 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).
(i) (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 Securities and (ii) as
of the date hereof (with such date being used as the determination
date for purposes of this clause (ii)), the Company was not and is
not 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 be
considered an Ineligible Issuer.
(j) Neither any Issuer Free Writing
Prospectus nor the Final Term Sheet includes any information that
conflicts with the information contained in the Registration
Statement, including any document incorporated therein and any
prospectus supplement deemed to be a part thereof that has not been
superseded or modified. The foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus
nor the Final Term Sheet 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.
Any
certificate signed by any officer of the Company and delivered to
the Representative or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
7. Indemnification and
Contribution .
(a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who
controls any Underwriter within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained
in the
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registration
statement for the registration of the Securities as originally
filed or in any amendment thereof, or in the Base Prospectus, any
Preliminary Prospectus, the Final Prospectus, the Disclosure
Package, any Issuer Free Writing Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however , that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omis
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