EXHIBIT 5.02
[Letterhead of Skadden, Arps, Slate, Meagher & Flom LLP]
August 31, 2004
Citigroup Inc.
399 Park Avenue
New York, NY 10043
Citigroup Capital XI
Citigroup Capital XII
Citigroup Capital XIII
c/o Citigroup Inc.
399 Park Avenue
New York, NY 10043
Re: Citigroup Inc.
Citigroup Capital XI
Citigroup Capital XII
Citigroup Capital XIII
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to (1) Citigroup Capital XI, Citigroup
Capital XII and Citigroup Capital XIII (each, a "Citigroup Trust" and, together,
the "Citigroup Trusts"), each a statutory business trust created under the laws
of the State of Delaware, and (2) Citigroup Inc. (the "Company"), a corporation
organized under the laws of the State of Delaware, in connection with the
preparation of a Registration Statement on Form S-3, filed by the Company and
the Citigroup Trusts with the Securities and Exchange Commission (the
"Commission") on July 23, 2004 under the Securities Act of 1933, as amended (the
"Act"), and Amendment No. 1 to the Registration Statement, filed on the date
hereof (such Registration Statement, as so amended, being hereinafter referred
to as the "Registration Statement"). The Registration Statement relates to,
among other things, the issuance and sale from time to time pursuant to Rule 415
of the General Rules and Regulations promulgated under the Act, of the following
securities with an aggregate public offering price of up to $30,000,000,000: (i)
capital securities (the "Capital Securities") of each of the
Citigroup Inc.
Citigroup Capital XI
Citigroup Capital XII
Citigroup Capital XIII
August 31, 2004
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Citigroup Trusts, (ii) unsecured junior subordinated debt securities (the
"Junior Subordinated Debt Securities") of the Company, which are to be issued
pursuant to an Indenture, dated as of July 23, 2004 (the "Indenture"), between
the Company and JPMorgan Chase Bank, as debt trustee (the "Debt Trustee"), (iii)
shares of preferred stock, par value $1.00 per share (the "Preferred Stock"), of
the Company to be issued in one or more series, which may also be issued in the
form of depositary shares (the "Depositary Shares") evidenced by depositary
receipts (the "Receipts") pursuant to one or more deposit agreements (each, a
"Deposit Agreement") to be entered into between the Company and a depositary to
be named (the "Depositary"), (iv) stock purchase contracts (the "Stock Purchase
Contracts") to purchase Common Stock (as defined below), Preferred Stock or
Depositary Shares, (v) stock purchase units (the "Stock Purchase Units"), each
representing ownership of a Stock Purchase Contract and debt securities of the
Company, including Junior Subordinated Debt Securities, debt obligations of
third parties, including U.S. Treasury securities, or Capital Securities,
securing a holder's obligation to purchase Common Stock (as defined below),
Preferred Stock or Depositary Shares under the Stock Purchase Contract and (vi)
shares of common stock, par value $.01 per share (the "Common Stock"), of the
Company as may be issuable upon conversion of some or all of the Preferred Stock
(the "Offered Common Stock"). The Capital Securities of each Citigroup Trust are
to be issued pursuant to the Amended and Restated Declaration of Trust of such
Citigroup Trust (each, a "Declaration" and, collectively, the "Declarations"),
each such Declaration being among the Company, as sponsor and as the issuer of
the Junior Subordinated Debt Securities to be held by the Property Trustee (as
defined below) of such Citigroup Trust, Chase Manhattan Bank USA, National
Association (formerly Chase Manhattan Bank Delaware), as Delaware trustee (the
"Delaware Trustee"), JPMorgan Chase Bank, as property trustee (the "Property
Trustee"), and William P. Hannon, Todd S. Thomson and Guy Whittaker, as regular
trustees (together, the "Regular Trustees").
This opinion is being delivered in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Act. Capitalized terms used but not
otherwise defined herein have the meanings ascribed to them in the Registration
Statement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement, (ii) the certificates of trust of each of (A) Citigroup Capital XI,
as filed with the Secretary of State of the State of Delaware on December 7,
1998, (B) Citigroup Capital XII, as filed with the Secretary of State of the
State of Delaware on December 7, 1998 and (D) Citigroup Capital XIII, as filed
with the Secretary of State of the State of Delaware on December 7, 1998
(collectively, the "Certificates of
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Citigroup Capital XI
Citigroup Capital XII
Citigroup Capital XIII
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Trust"); (iii) the form of the Declaration of each of the Citigroup Trusts
(including the form of the designations of the terms of the Capital Securities
of such Citigroup Trust annexed thereto); (iv) the form of the Capital
Securities of each of the Citigroup Trusts; (v) the form of the capital
securities guarantee agreement (the "Capital Securities Guarantee"), to be
entered into by the Company and JPMorgan Chase Bank, as guarantee trustee (the
"Capital Securities Guarantee Trustee"); (vi) the form of the Junior
Subordinated Debt Securities; (vii) the form of the Deposit Agreement; (viii) an
executed copy of the Indenture; (ix) the Restated Certificate of Incorporation
of the Company, as certified by the Secretary of State of the State of Delaware
(the "Certificate of Incorporation"); (x) the By-Laws of the Company, as
certified by an Assistant Secretary of the Company (the "By-Laws"); (xi) drafts
of certain resolutions of the Board of Directors of the Company (the "Draft
Resolutions") relating to the issuance and sale of the Offered Debt Securities
(as defined below), the Capital Securities Guarantee, the Preferred Stock, the
Depositary Shares, the Stock Purchase Contracts, the Stock Purchase Units and
the Offered Common Stock and related matters and (xii) a specimen certificate
evidencing the Common Stock. We have also examined originals or copies,
certified or otherwise identified to our satisfaction, of such other documents,
certificates and records as we have deemed necessary or appropriate as a basis
for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. In making our examination of
executed documents or documents to be executed, we have assumed that the parties
thereto, other than the Company and the Citigroup Trusts, had or will have the
power, corporate, trust or other, to enter into and perform all obligations
thereunder and have also assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such parties of such documents
and that such documents constitute valid and binding obligations of such
parties. In addition, we have assumed that the Declaration of each Citigroup
Trust, the Capital Securities of each Citigroup Trust, the Capital Securities
Guarantee and the Junior Subordinated Debt Securities will be executed in
substantially the form reviewed by us and that the terms of the Offered Capital
Securities (as defined below), the Offered Debt Securities (as defined below),
the Offered Preferred Stock (as defined below), the Depositary Shares, the
Offered Stock Purchase Contracts (as defined below) and the Offered Stock
Purchase Units (as defined below) will have been established so as not to
violate, conflict with or constitute a default under (i) any agreement or
instrument to which the Company or any of the Citigroup Trusts or their
respective property is subject, (ii) any law, rule, or regulation to which the
Citigroup Inc.
Citigroup Capital XI
Citigroup Capital XII
Citigroup Capital XIII
August 31, 2004
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Company or any of the Citigroup Trusts is subject, (iii) any judicial or
administrative order or decree of any governmental authority or (iv) any
consent, approval, license, authorization or validation of, or filing, recording
or registration with any governmental authority. We have also assumed that (i)
the stock certificates evidencing the Preferred Stock to be issued will be in a
form that complies with, and the terms of such Preferred Stock will be duly
established in accordance with, the Delaware General Corporation Law (the
"DGCL"), and (ii) the stock certificate evidencing any Offered Common Stock
issued will conform to the specimen certificate examined by us and will be duly
executed and delivered. As to any facts material to the opinions expressed
herein that were not independently established or verified, we have relied upon
oral or written statements and representations of officers, trustees and other
representatives of the Company, the Citigroup Trusts and others.
We do not express any opinion as to any laws other than Delaware corporate
law and the laws of the State of New York. Insofar as the opinions expressed
herein relate to matters governed by laws other than those set forth in the
preceding sentence, we have assumed, without having made any independent
investigation, that such laws do not affect any of the opinions set forth
herein. The opinions expressed herein are based on laws in effect on the date
hereof, which laws are subject to change with possible retroactive effect.
Based on and subject to the foregoing and to the other qualifications and
limitations set forth herein, we are of the opinion that:
1. With respect to the Capital Securities of each Citigroup Trust to be
offered pursuant to the Registration Statement (the "Offered Capital
Securities"), when (i) the Declaration of such Citigroup Trust has been
duly executed and delivered by the parties thereto; (ii) the terms of the
Offered Capital Securities have been established in accordance with the
Declaration; (iii) the Offered Capital Securities have been issued,
executed and authenticated in accordance with the Declaration and
delivered and paid for in the manner contemplated in the Registration
Statement or any prospectus relating thereto; and (iv) if the Offered
Capital Securities are to be sold pursuant to a firm commitment
underwritten offering, the underwriting agreement with respect to the
Offered Capital Securities has been duly authorized, executed and
delivered by the applicable Citigroup Trust and the other parties thereto,
(1) the Offered Capital Securities will be duly authorized for issuance
and will be validly issued, fully paid and nonassessable, representing
undivided beneficial interests in the assets of
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Citigroup Capital XI
Citigroup Capital XII
Citigroup Capital XIII
August 31, 2004
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such Citigroup Trust (including any Offered Capital Securities duly issued
as part of any Stock Purchase Units) and (2) the holders of the Offered
Capital Securities will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the DGCL. We bring to your attention, however, that the
holders of the Offered Capital Securities may be obligated, pursuant to
the Declaration of such Citigroup Trust, to (i) provide indemnity and/or
security in connection with, and pay taxes or governmental charges arising
from, transfers of Offered Capital Securities and (ii) provide security
and indemnity in connection with the requests of, or directions to, the
Property Trustee of such Citigroup Trust to exercise its rights and powers
under the Declaration of such Citigroup Trust.
2. With respect to the Capital Securities Guarantee, when (i) the Draft
Resolutions have been adopted by the Board of Directors of the Company;
(ii) the Declaration of such Citigroup Trust is duly executed and
delivered by the parties thereto; (iii) the terms of the Offered Capital
Securities have been established in accordance with the Declaration; (iv)
the Offered Capital Securities have been issued and executed in accordance
with the Declaration and paid for in the manner contemplated in the
Registration Statement or any prospectus relating thereto; and (v) if the
Offered Capital Securities are to be sold pursuant to a firm commitment
underwritten offering, the underwriting agreement with respect to the
Offered Capital Securities has been duly authorized, executed and
delivered by the applicable Citigroup Trust and the other parties thereto,
the Capital Securities Guarantee, when duly executed and delivered by the
parties thereto, will be a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except to
the extent that (a) enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and (b) rights to
indemnity and contribution thereunder may be limited by applicable law or
the public policy underlying such law.
3. With respect to any series of Junior Subordinated Debt Securities
(the "Offered Debt Securities"), when (i) the Draft Resolutions have been
adopted by the Board of Directors of the Company; (ii) the Board of
Directors, including any appropriate committee appointed thereby, and
appropriate officers of the Company have taken all necessary corporate
action to approve the issuance and terms of the Offered Debt Securities
and related matters; (iii)
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Citigroup Capital XI
Citigroup Capital XII
Citigroup Capital XIII
August 31, 2004
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the terms of the Offered Debt Securities have been established in
conformity with the Indenture; (iv) the Offered Debt Securities are duly
executed, delivered, authenticated and issued in accordance with the
Indenture and delivered and paid for in the manner contemplated in the
Registration Statement or any prospectus relating thereto; and (v) if the
Offered Debt Securities are to be sold pursuant to a firm commitment
underwritten offering, the underwriting agreement with respect to the
Offered Debt Securities has been duly authorized, executed and delivered
by the parties thereto, the Offered Debt Securities (including any Offered
Debt Securities duly issued as part of any Stock Purchase Units) will be
valid and binding obligations of the Company, entitled to the benefits of
the Indenture and enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium,
or other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity).
4. With respect to the shares of any series of Preferred Stock (the
"Offered Preferred Stock"), when (i) the Draft Resolutions have been
adopted by the Board of Directors of the Company; (ii) the terms of the
Offered Preferred Stock and of their issuance and sale have been duly
established by all necessary corporate action in conformity with the
Company's Certificate of Incorporation, including the certificate of
designation relating to the Offered Preferred Stock, and the By-Laws of
the Company; (iii) the filing of such certificate of designation with the
Secretary of State of the State of Delaware has duly occurred; (iv) if the
Offered Preferred Stock is to be sold pursuant to a firm commitment
underwritten offering, the underwriting agreement with respect to the
shares of the Offered Preferred Stock has been duly authorized, executed
and delivered by the Company and the other parties thereto; (v) if the
Offered Preferred Stock is to be sold pursuant to a Stock Purchase
Contract or a Stock Purchase Unit, the Stock Purchase Contract or the
Stock Purchase Unit has been duly authorized, executed and delivered by
the Company and the other parties thereto; and (vi) certificates
representing the shares of the Offered Preferred Stock have been duly
executed and delivered by the proper officers of the Company to the
purchasers thereof against payment of the agreed-upon consideration
therefor in the manner contemplated in the Registration Statement or any
prospectus supplement or term sheet relating thereto, (1) the shares of
the Offered Preferred Stock, when issued and sold in accordance with the
applicable
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Citigroup Capital XI
Citigroup Capital XII
Citigroup Capital XIII
August 31, 2004
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underwriting agreement or any other duly authorized, executed and
delivered applicable purchase agreement, will be duly authorized, validly
issued, fully paid and nonassessable (including any shares of the Offered
Preferred Stock duly issued upon settlement of any Stock Purchase
Contracts or any Stock Purchase Units), provided that the consideration
therefor is not less than the par value thereof; and (2) if the Offered
Preferred Stock is convertible into Offered Common Stock, the Offered
Common Stock issuable upon conversion of the Offered Preferred Stock will
be duly authorized, validly issued, fully paid and nonassessable, assuming
the issuance of the Offered Common Stock upon conversion of the Offered
Preferred Stock has been authorized by all necessary corporate action,
that the Offered Preferred Stock has been converted in accordance with the
terms of the certificate of designation relating to the Offered Preferred
Stock. In rendering the opinion set forth in clause (2) of this paragraph
4, we have assumed that, at the time of issuance of any Offered Common
Stock upon conversion of the Offered Preferred Stock, the Certificate of
Incorporation, the By-Laws and the DGCL shall not have been amended so as
to affect the validity of such issuance.
5. With respect to any Depositary Shares representing fractional
interests in any Offered Preferred Stock, when (i) the Draft Resolutions
have been adopted by the Board of Directors of the Company; (ii) the Board
of Directors, including any appropriate committee appointed thereby, and
appropriate officers of the Company have taken all necessary corporate
action to approve the issuance and terms of the Depositary Shares and
related matters, including the adoption of the certificate of designation
for the related Offered Preferred Stock; (iii) the filing of such
certificate of designation with the Secretary of State of the State of
Delaware has duly occurred; (iv) the Deposit Agreement has been duly
executed and delivered; (v) the terms of the Depositary Shares and of
their issuance and sale have been duly established by all necessary
corporate action in conformity with the Deposit Agreement; (vi) the
related Offered Preferred Stock that is represented by Depositary Shares
has been duly authorized, validly issued and delivered to the Depositary
for deposit in accordance with the laws of the States of Delaware and New
York; (vii) if the Depositary Shares are to be sold pursuant to a firm
commitment underwritten offering, the underwriting agreement with respect
to the Depositary Shares has been duly authorized, executed and delivered
by the Company and the other parties thereto; (viii) if the Depositary
Shares are to be sold pursuant to a Stock Purchase Contract or a Stock
Purchase Unit, the Stock Purchase Contract or the Stock Purchase Unit has
been duly authorized, executed and delivered by the Company and
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Citigroup Capital XI
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Citigroup Capital XIII
August 31, 2004
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the other parties thereto; and (ix) the Receipts evidencing the Depositary
Shares are duly issued against the deposit of the Offered Preferred Stock
in accordance with the Deposit Agreement, such Receipts will be validly
issued and will entitle the holders thereof to the rights specified
therein and in the Deposit Agreement (including any Receipts evidencing
Depositary Shares duly issued upon settlement of any Stock Purchase
Contracts or any Stock Purchase Units), subject to (i) the effects of
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereinafter in effect relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity).
6. With respect to the Stock Purchase Contracts (the "Offered Stock
Purchase Contracts"), when (i) the Draft Resolutions have been adopted by
the Board of Directors of the Company; (ii) the Board of Directors,
including any appropriate committee appointed thereby, and appropriate
officers of the Company have taken all necessary corporate action to
approve the issuance and terms of the Offered Stock Purchase Contracts and
related matters, including the adoption of a certificate of designation
for any related Offered Preferred Stock; (iii) the filing of such
certificate of designation with the Secretary of State of the State of
Delaware has duly occurred; (iv) if the Offered Stock Purchase Contracts
are to be sold pursuant to a firm commitment underwritten offering, the
underwriting agreement with respect to the Offered Stock Purchase
Contracts has been duly authorized, executed and delivered by the Company
and the other parties thereto; and (v) the Offered Stock Purchase
Contracts have been duly executed and delivered by the proper officers of
the Company to the purchasers thereof against payment of the agreed-upon
consideration therefor in the manner contemplated in the Registration
Statement or any prospectus supplement or term sheet relating thereto, the
Offered Stock Purchase Contracts, when issued and sold in accordance with
the applicable underwriting agreement or any other duly authorized,
executed and delivered valid and binding purchase or agency agreement,
will be valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms, except to the
extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium, or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
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Citigroup Capital XI
Citigroup Capital XII
Citigroup Capital XIII
August 31, 2004
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7. With respect to the Stock Purchase Units (the "Offered Stock
Purchase Units"), when (i) the Draft Resolutions have been adopted by the
Board of Directors of the Company; (ii) the Board of Directors, including
any appropriate committee appointed thereby, and appropriate officers of
the Company have taken all necessary corporate action to approve the
issuance and terms of the Offered Stock Purchase Units and related
matters, including the adoption of a certificate of designation for any
related Offered Preferred Stock; (iii) if the Offered Stock Purchase Units
are to be sold pursuant to a firm commitment underwritten offering, the
underwriting agreement with respect to the Offered Stock Purchase Units
has been duly authorized, executed and delivered by the Company and the
other parties thereto; and (iv) the Offered Stock Purchase Units and
related Stock Purchase Contracts have been duly executed and delivered by
the proper officers of the Company to the purchasers thereof against
payment of the agreed-upon consideration therefor in the manner
contemplated in the Registration Statement or any prospectus supplement or
term sheet relating thereto, the Offered Stock Purchase Units, when issued
and sold in accordance with the applicable underwriting agreement or any
other duly authorized, executed and delivered valid and binding purchase
or agency agreement, will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium,
or other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity).
There is no provision in the Certificate of Incorporation that purports to
restrict the surplus of the Company by reason of the excess, if any, of the
liquidation preference of the shares of Preferred Stock over their par value.
The applicable provisions of the DGCL, 8 Del. C. Sections 154 and 170(a), which
define capital and surplus of a Delaware corporation available for the payment
of dividends, do not purport to restrict such surplus by reason of any such
excess. Moreover, we are not aware of any applicable provisions of the
Constitution of the State of Delaware nor any controlling Delaware case law that
would suggest that surplus would be restricted by the excess of the liquidation
preference over the par value of the shares of Preferred Stock. Accordingly,
while there are no authorities specifically addressing this issue, it is our
opinion that (i) there should be no restriction upon the surplus of the Company
available for the payment of dividends on any outstanding capital stock of the
Company solely by reason of the fact that the liquidation
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Citigroup Capital XIII
August 31, 2004
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preference of any shares of any series of Preferred Stock exceeds the par value
of such shares and (ii) no remedy should be available to the holders of any
shares of any series of Preferred Stock before or after payment of any dividend
solely because such dividend would reduce the surplus of the Company to an
amount less than the amount of such excess, assuming that the payment of such
dividend is in accordance with the provisions of the DGCL, and of the
Certificate of Incorporation including the applicable certificate of
designation.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement. We also hereby consent to the use of our
name under the heading "Legal Matters" in each of the two prospectuses which
forms a part of the Registration Statement. In giving this consent, we do not
thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission promulgated thereunder. This opinion is expressed as of the date
hereof unless otherwise expressly stated, and we disclaim any undertaking to
advise you of any subsequent changes in the facts stated or assumed herein or of
any subsequent changes in applicable law.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP