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C » Topics » This Agreement will be governed by and construed in accordance with the federal law of the United States if and to the extent such law is applicable, and otherwise in accordance with the laws of the State of New York applicable to contracts made and to beThis excerpt taken from the C 8-K filed Dec 31, 2008. This Agreement will be governed by
and construed in accordance with the federal law of the United States if and to
the extent such law is applicable, and otherwise in accordance with the laws of
the State of New York applicable to contracts made and to be performed entirely
within such State. Each of the parties hereto agrees (a) to submit to the
exclusive jurisdiction and venue of the United States District Court for the
District of Columbia and the United States Court of Federal Claims for any and
all civil actions, suits or proceedings arising out of or relating to this
Agreement or the Warrant or the transactions contemplated hereby or thereby, and
(b) that notice may be served upon (i) the Company at the address and in the
manner set forth for notices to the Company in Section 5.6 and (ii) the Investor
in accordance with federal law. To the extent permitted by applicable law, each
of the parties hereto hereby unconditionally waives trial by jury in any civil
legal action or proceeding relating to this Agreement or the Warrant or the
transactions contemplated hereby or thereby.
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5.6 Notices. Any notice,
request, instruction or other document to be given hereunder by any party to the
other will be in writing and will be deemed to have been duly given (a) on the
date of delivery if delivered personally, or by facsimile, upon confirmation of
receipt, or (b) on the second business day following the date of dispatch if
delivered by a recognized next day courier service. All notices hereunder shall
be delivered as set forth below or pursuant to such other instructions as may be
designated in writing by the party to receive such notice.
(a) If to the
Investor:
United
States Department of the Treasury
1500
Pennsylvania Avenue, NW, Room 2312
Washington,
D.C. 20220
Attention: Assistant General Counsel
(Banking and Finance)
Facsimile: (202)
622-1974
(b) If to the
Company:
Citigroup
Inc.
399 Park
Avenue
New York,
New York 10022
Attention:
Michael S. Helfer, Esq. General
Counsel
Telephone:
(212) 559-5152
Facsimile:
(212) 793-5300
Citigroup
Inc.
399 Park
Avenue
New York,
New York 10022
Attention:
Andrew Felner, Esq. Deputy
General Counsel
Telephone:
(212)
559-7050
Facsimile:
(212)
559-7057
5.7 Definitions
(a) When a
reference is made in this Agreement to a subsidiary of a person, the term “subsidiary” means any
corporation, partnership, joint venture, limited liability company or other
entity (x) of which such person or a subsidiary of such person is a general
partner or (y) of which a majority of the voting securities or other voting
interests, or a majority of the securities or other interests of which having by
their terms ordinary voting power to elect a majority of the board of directors
or persons performing similar functions with respect to such entity, is directly
or indirectly owned by such person and/or one or more subsidiaries
thereof.
(b) The term
“Affiliate” means, with
respect to any person, any person directly or indirectly controlling, controlled
by or under common control with, such other person. For purposes of this
definition, “control”
(including, with correlative meanings, the terms “controlled by” and “under common control with”)
when used with respect to any person, means the
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possession,
directly or indirectly, of the power to cause the direction of management and/or
policies of such person, whether through the ownership of voting securities by
contract or otherwise.
(c) The terms
“knowledge of the
Company” or “Company’s
knowledge” mean the actual knowledge after reasonable and due inquiry of
the “officers” (as such
term is defined in Rule 3b-2 under the Exchange Act, but excluding any Vice
President or Secretary) of the Company.
5.8 Assignment. Neither
this Agreement nor any right, remedy, obligation nor liability arising hereunder
or by reason hereof shall be assignable by any party hereto without the prior
written consent of the other party, and any attempt to assign any right, remedy,
obligation or liability hereunder without such consent shall be void, except (a)
an assignment, in the case of a Business Combination where such party is not the
surviving entity, or a sale of substantially all of its assets, to the entity
which is the survivor of such Business Combination or the purchaser in such sale
and (b) as provided in Section 4.5. “Business Combination” means a
merger, consolidation, statutory share exchange or similar transaction that
requires the approval of the Company’s
stockholders.
5.9 Entire Agreement,
Etc. This Agreement (including the Annexes and Schedules hereto) and the
Warrant constitute the entire agreement, and supersede all other prior
agreements, understandings, representations and warranties, both written and
oral, between the parties, with respect to the subject matter
hereof.
5.10
Counterparts and
Facsimile. For the convenience of the parties hereto, this Agreement may
be executed in any number of separate counterparts, each such counterpart being
deemed to be an original instrument, and all such counterparts will together
constitute the same agreement. Executed signature pages to this Agreement may be
delivered by facsimile and such facsimiles will be deemed as sufficient as if
actual signature pages had been delivered.
5.11
Severability. If any
provision of this Agreement or the Warrant, or the application thereof to any
person or circumstance, is determined by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions hereof, or the
application of such provision to persons or circumstances other than those as to
which it has been held invalid or unenforceable, will remain in full force and
effect and shall in no way be affected, impaired or invalidated thereby, so long
as the economic or legal substance of the transactions contemplated hereby is
not affected in any manner materially adverse to any party. Upon such
determination, the parties shall negotiate in good faith in an effort to agree
upon a suitable and equitable substitute provision to effect the original intent
of the parties.
5.12 No Third Party
Beneficiaries. Nothing contained in this Agreement, expressed or implied,
is intended to confer upon any person or entity other than the Company and the
Investor any benefit, right or remedies, except that the provisions of Section
4.5 shall inure to the benefit of the persons referred to in that
Section.
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