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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 15, 2001
REGISTRATION STATEMENT NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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COMERICA INCORPORATED DELAWARE 38-1998421
COMERICA CAPITAL TRUST I DELAWARE APPLIED FOR
COMERICA CAPITAL TRUST II DELAWARE APPLIED FOR
(EXACT NAME OF EACH REGISTRANT AS (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
SPECIFIED IN ITS CHARTER) INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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COMERICA TOWER AT DETROIT CENTER
DETROIT, MICHIGAN 48226
(800) 521-1190
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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GEORGE W. MADISON
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
COMERICA INCORPORATED
COMERICA TOWER AT DETROIT CENTER
DETROIT, MICHIGAN 48226
(800) 521-1190
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
EDWARD S. BEST
MAYER, BROWN & PLATT
190 SOUTH LASALLE STREET
CHICAGO, ILLINOIS 60603
(312) 782-0600
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this registration statement becomes effective as determined by
market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED PRICE(2) REGISTRATION FEE(3)
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Preferred Securities of the trusts(1).......................
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Guarantees of Comerica Incorporated of Preferred Securities
issued by the trusts and certain back-up obligations(4)...
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Junior Subordinated Debentures of Comerica
Incorporated(5)...........................................
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TOTAL................................................... $350,000,000 $87,500
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(1) The "trusts" refers to Comerica Capital Trust I and Comerica Capital Trust
II.
(2) Pursuant to General Instruction II. D to Form S-3, the Proposed Maximum
Aggregate Offering Price has been omitted for each class of securities but
has been listed for the aggregate amount of all securities registered
hereby.
(3) The registration fee has been calculated in accordance with Rule 457(o)
under the Securities Act of 1933, as amended (the "Securities Act").
(4) Includes the rights of holders of the preferred securities under any
guarantees and certain back-up undertakings, comprised of the obligations of
Comerica Incorporated to provide certain indemnities in respect of, and pay
and be responsible for, certain costs, expenses, debts and liabilities of
each of the trusts, other than with respect to the preferred securities and
common securities of such trust, and such obligations of Comerica
Incorporated as set forth in the amended and restated declaration of trust
of each trust and the indenture, in each case as further described in the
registration statement. The guarantees, when taken together with Comerica
Incorporated's obligations under the related junior subordinated debentures,
the indenture and the related amended and restated declaration of trust,
will provide a full and unconditional guarantee on a subordinated basis by
Comerica Incorporated of payments due on the preferred securities. No
separate consideration will be received for any guarantees or any such
back-up obligations.
(5) The junior subordinated debentures to be issued by Comerica Incorporated and
which are covered by this registration statement will be exchanged by
Comerica Incorporated for the corresponding series of preferred securities.
The junior subordinated debentures may be distributed later, without
additional consideration, to the holders of each applicable series of
preferred securities of each of the trusts if the respective trusts are
dissolved and their assets are distributed to the respective holders of such
preferred securities.
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES, AND WE ARE NOT SOLICITING OFFERS TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JUNE 15, 2001
PROSPECTUS
[COMERICA LOGO]
$350,000,000
COMERICA CAPITAL TRUST I
COMERICA CAPITAL TRUST II
Preferred Securities
Fully and Unconditionally Guaranteed to the Extent
Described Herein By
COMERICA INCORPORATED
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These securities may be offered from time to time, in amounts, on terms and
at prices that will be determined at the time they are offered for sale. These
terms and prices will be described in more detail in one or more supplements to
this prospectus, which will be distributed at the time the securities are
offered.
YOU SHOULD READ THIS PROSPECTUS AND ANY SUPPLEMENT CAREFULLY BEFORE YOU
INVEST.
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THIS PROSPECTUS MAY NOT BE USED TO SELL ANY OF THE SECURITIES UNLESS IT IS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
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The securities may be sold to or through underwriters, through dealers or
agents, directly to purchasers or through a combination of these methods. If an
offering of securities involves any underwriters, dealers or agents, then the
applicable prospectus supplement will name the underwriters, dealers or agents
and will provide information regarding any fee, commission or discount
arrangements made with those underwriters, dealers or agents.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED THAT
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This prospectus is dated , 2001
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TABLE OF CONTENTS
ABOUT THIS PROSPECTUS............ 1
WHERE YOU CAN FIND MORE
INFORMATION ABOUT COMERICA
INCORPORATED................... 2
SUMMARY.......................... 3
COMERICA INCORPORATED............ 4
THE TRUSTS....................... 4
USE OF PROCEEDS.................. 6
CONSOLIDATED RATIOS OF EARNINGS
TO FIXED CHARGES............... 6
ACCOUNTING TREATMENT............. 6
DESCRIPTION OF THE PREFERRED
SECURITIES..................... 6
DESCRIPTION OF THE GUARANTEES.... 14
DESCRIPTION OF THE JUNIOR
SUBORDINATED DEBENTURES........ 19
BOOK-ENTRY ISSUANCE.............. 31
ERISA MATTERS.................... 34
PLAN OF DISTRIBUTION............. 34
LEGAL OPINIONS................... 36
EXPERTS.......................... 36
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that Comerica
Incorporated, Comerica Capital Trust I and Comerica Capital Trust II have filed
with the SEC using a "shelf" registration process. References to we, us,
Comerica and the Company are to Comerica Incorporated. Under this shelf process,
we may issue our junior subordinated debentures to one of the trusts in exchange
for preferred securities of the trust. We may then sell those preferred
securities, guaranteed by the related guarantees of Comerica Incorporated, as
described in this prospectus, in one or more offerings up to a total dollar
amount of $350,000,000. This prospectus provides you with a general description
of the preferred securities of Comerica Capital Trust I and Comerica Capital
Trust II, which we refer to as the trusts, and the related guarantees and junior
subordinated debentures. Each time preferred securities of a trust are being
sold, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. References to
this prospectus or the prospectus supplement also mean the information contained
in other documents we have filed with the SEC and have referred you to in this
prospectus. If this prospectus is inconsistent with the prospectus supplement,
you should rely on the prospectus supplement. You should read both this
prospectus and any prospectus supplement together with any additional
information that we refer you to as discussed under "Where You Can Find More
Information About Comerica Incorporated."
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WHERE YOU CAN FIND MORE INFORMATION ABOUT
COMERICA INCORPORATED
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document which we file at
the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference room. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" in this prospectus the
information that we file with it, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be a part of this prospectus, and
information that we file later with the SEC will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made by us with the SEC under Sections 13(a),
13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended, until we
sell all of the preferred securities:
- Annual Report on Form 10-K for the year ended December 31, 2000;
- Quarterly Report on Form 10-Q for the quarter ended March 31, 2001; and
- Current Reports on Form 8-K dated April 17, 2001 and April 27, 2001 and
on Form 8-K/A dated June 8, 2001.
You may request a copy of these filings at no cost, by writing or
telephoning Comerica Incorporated, George W. Madison, Executive Vice President,
General Counsel and Secretary, Comerica Tower at Detroit Center, Detroit,
Michigan 48226, telephone (800) 521-1190.
This prospectus does not contain or incorporate by reference any separate
financial statements of the trusts. We do not believe that these financial
statements are required because:
- all of the voting securities of the trusts will be owned, directly or
indirectly, by us, a reporting company under the Securities Exchange Act;
- the trusts have no independent operations but exist for the sole purpose
of issuing securities representing undivided beneficial ownership
interests in their respective assets in exchange for junior subordinated
debentures issued by us; and
- the obligations of the trusts under the preferred securities are
guaranteed by us to the extent described in this prospectus.
Accordingly, the trusts will be exempt from the informational reporting
requirements of the Securities Exchange Act.
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
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SUMMARY
Each of the trusts is a business trust recently organized under Delaware
law by us. They may each issue to us one series of their preferred securities
which we may offer, at prices and on terms to be determined at the time of sale.
Each trust will issue only one series of preferred securities. The preferred
securities will represent undivided beneficial ownership interests in the assets
of the applicable trust. Unless the applicable prospectus supplement states
otherwise, holders of preferred securities will receive cash distributions on a
periodic basis and payments on liquidation, redemption or otherwise of the
preferred securities as described in the applicable prospectus supplement.
The preferred securities will be guaranteed on a subordinated basis by us
to the extent described in this prospectus and the applicable prospectus
supplement. Our obligations under the guarantees will be subordinated to the
same extent as our obligations under the junior subordinated debentures.
When a trust issues a series of its preferred securities to us, it will
also issue to us a series of common securities. The trust will issue the
preferred securities and common securities to us in exchange for a corresponding
series of our junior subordinated debentures. The junior subordinated debentures
held by the applicable trust may be distributed subsequently on a proportionate
basis to holders of preferred securities and common securities if that trust
were to be dissolved. The trust may be dissolved subject to certain conditions
that will be described in an accompanying prospectus supplement.
Each guarantee, when taken together with our obligations under the
corresponding series of junior subordinated debentures, the indenture under
which the junior subordinated debentures will be issued and the relevant
declaration of trust, including our obligations to pay the costs, expenses,
debts and liabilities of each trust (other than regarding the preferred
securities and the common securities of the trust), will constitute a full and
unconditional guarantee on a subordinated basis by us of all payments due on the
preferred securities and common securities.
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COMERICA INCORPORATED
We are a multi-state financial services provider, incorporated under the
laws of the State of Delaware, headquartered in Detroit, Michigan. Based on
assets as of December 31, 2000, we were the 22nd largest bank holding company in
the United States and the largest bank holding company headquartered in Michigan
in terms of both total assets and total deposits. We were formed in 1973 to
acquire the outstanding common stock of Comerica Bank (formerly Comerica
Bank-Detroit), one of Michigan's oldest banks. Since that time, we have acquired
financial institutions in California, Texas and Florida, and formed Comerica
Bank-Canada in 1998 and Comerica Bank-Mexico, S.A. in 1997. As of December 31,
2000, we owned directly or indirectly all the outstanding common stock of seven
banking and thirty-five non-banking subsidiaries. In addition, on January 29,
2001, we completed our acquisition of Imperial Bancorp through the merger of
Imperial with and into Comerica Holdings Incorporated, a wholly-owned subsidiary
of Comerica. We accounted for this acquisition as a pooling of interest and have
restated our financial statements to reflect this acquisition.
At December 31, 2000, after giving effect to the Imperial Bancorp
acquisition, we had total assets of approximately $50 billion, total deposits of
approximately $33.9 billion, total loans (net of unearned income) of
approximately $40.2 billion and common shareholders' equity of approximately
$4.5 billion.
CONTACT INFORMATION
Our executive offices are located at Comerica Tower at Detroit Center,
Detroit, Michigan 48226 and our telephone number is (800) 521-1190.
THE TRUSTS
PURPOSE AND OWNERSHIP OF THE TRUSTS
Each of the trusts is a business trust recently organized under Delaware
law by us and the trustees of the trusts. The trusts are being established
solely for the following purposes:
- to issue to us, in exchange for our junior subordinated debentures, the
preferred securities which represent undivided beneficial ownership
interests in the assets of each trust;
- to issue the common securities to us in exchange for our junior
subordinated debentures in a total liquidation amount equal to at least
3% of the total capital of each trust; and
- to engage in other activities that are directly related to the activities
described above, such as registering the transfer of the preferred
securities.
Because each trust is being established only for the purposes listed above,
the applicable series of junior subordinated debentures will be the sole assets
of the applicable trust, and payments under the junior subordinated debentures
will be the sole source of income to that trust.
As issuer of the junior subordinated debentures, we will pay:
- all fees, expenses and taxes related to each trust and the offering of
each trust's preferred securities and common securities; and
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- all ongoing costs, expenses and liabilities of the trusts, except
obligations to make distributions and other payments on the common
securities and the preferred securities.
For so long as the preferred securities remain outstanding, we will
promise to:
- cause each trust to remain a business trust and not to voluntarily
dissolve, wind-up, liquidate or be terminated, except as permitted by the
relevant declaration of trust;
- own directly or indirectly all of the common securities;
- use our commercially reasonable efforts to ensure that each trust will
not be an "investment company" for purposes of the Investment Company
Act; and
- take no action that would be reasonably likely to cause either trust to
be classified as an association or a publicly traded partnership taxable
as a corporation for United States federal income tax purposes.
THE TRUSTEES
Each of the trust's business and affairs will be conducted by its five
trustees. In each case, the three administrative trustees of each trust will be
individuals who are our employees. The property trustee of each trust will hold
title to the junior subordinated debentures for the benefit of the holders of
the preferred securities of each trust and will have the power to execute all
rights and powers of a registered holder of junior subordinated debentures under
the indenture for the junior subordinated debentures. The Delaware trustee will
maintain its principal place of business in Delaware and meet the requirements
of Delaware law for Delaware business trusts.
We have the sole right to appoint, remove and replace any of the trustees
of each trust unless an event of default occurs under the indenture. In that
event, the holders of a majority in liquidation amount of the applicable
preferred securities will have the sole right to remove and appoint the property
trustee and the Delaware trustee.
ADDITIONAL INFORMATION
For additional information concerning the particular trust issuing a series
of preferred securities, see "The Trust" in the applicable prospectus
supplement. We anticipate that the trusts will not be required to file any
reports with the SEC after the issuance of the preferred securities. As
discussed below under the caption "Accounting Treatment", we will provide
certain information concerning each of the trusts and the preferred securities
in the footnotes to our financial statements included in our own periodic
reports to the SEC.
OFFICES OF THE TRUSTS
The executive office of each trust is c/o Comerica Incorporated, Comerica
Tower at Detroit Center, Detroit, Michigan 48226, and its telephone number is
(800) 521-1190.
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USE OF PROCEEDS
Except as otherwise may be described in a prospectus supplement
accompanying this prospectus, we expect to use the proceeds from the sale of the
preferred securities for general corporate purposes, which may include the
repayment of debt, investments in or extensions of credit to our subsidiaries
and the financing of possible acquisitions.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
THREE
MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
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2001 2000 2000 1999 1998 1997 1996
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Consolidated ratio of earnings
to fixed charges:
Excluding interest on
deposits.................. 2.00x 2.61x 2.47x 3.08x 2.88x 2.64x 2.55x
Including interest on
deposits.................. 1.37x 1.78x 1.68x 1.94x 1.79x 1.70x 1.61x
Consolidated ratio of earnings
to combined fixed charges and
preferred share dividends:
Excluding interest on
deposits.................. 1.91x 2.52x 2.40x 2.94x 2.74x 2.52x 2.48x
Including interest on
deposits.................. 1.35x 1.75x 1.66x 1.90x 1.75x 1.66x 1.59x
For purposes of computing these ratios, earnings represent income before
income taxes and fixed charges. Fixed charges, excluding interest on deposits,
include interest (other than on deposits), whether expensed or capitalized, and
that portion of rental expense (generally one third) deemed representative of
the interest factor. Fixed charges, including interest on deposits, consist of
the foregoing items plus interest on deposits.
ACCOUNTING TREATMENT
For financial reporting purposes, each trust will be treated as a
subsidiary of ours, and, accordingly, the accounts of each trust will be
included in our consolidated financial statements. The preferred securities will
be presented as part of debt in the consolidated statement of financial
condition. Appropriate disclosure about the junior subordinated debentures and
the guarantee will be included in the notes to our consolidated financial
statements. For financial reporting purposes, we will record distributions
payable on the preferred securities as interest expense in our consolidated
statement of income.
DESCRIPTION OF THE PREFERRED SECURITIES
The following description of the terms and provisions of preferred
securities summarizes certain general terms that will apply to each series of
preferred securities. This description is not complete, and we refer you to the
certificate of trust and the declaration of trust for each trust and the form of
the amended and restated declaration of trust, copies of which we filed as
exhibits to the registration statement of which this prospectus is a part.
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DECLARATION OF TRUSTS
When a trust issues a series of preferred securities, the declaration of
trust relating to that trust will contain, and the prospectus supplement
relating to that series will summarize, the terms and other provisions relating
to that series of preferred securities. Each trust will issue only one series of
preferred securities.
The declaration of trust of each trust will be qualified as an indenture
under the Trust Indenture Act of 1939. Unless the applicable prospectus
supplement states otherwise, Chase Manhattan Trust Company, N.A. will act as
indenture trustee under each relevant declaration of trust.
Each series of preferred securities will represent undivided beneficial
ownership interests in the assets of the applicable trust. The holders of the
preferred securities will be entitled to a preference in certain circumstances
regarding distributions from the applicable trust and amounts payable on
redemption or liquidation over the corresponding series of common securities, as
well as other benefits as described in the relevant declaration of trust.
SPECIFIC TERMS OF EACH SERIES
Each time that a trust issues a series of preferred securities, the
prospectus supplement relating to that new series will summarize the particular
amount, price and other terms and provisions of these preferred securities.
These terms may include the following:
- the distinctive designation of the preferred securities;
- the number of preferred securities issued by the applicable trust and the
liquidation value of each such preferred security;
- the annual distribution rate (or method of determining such rate) for
preferred securities issued by the applicable trust and the date or dates
upon which such distributions will be payable;
- whether distributions on preferred securities issued by the applicable
trust may be deferred and, if so, what the maximum number of
distributions that may be deferred and the terms and conditions of such
deferrals will be;
- whether distributions on preferred securities issued by the applicable
trust will be cumulative and, in the case of preferred securities having
such cumulative distribution rights, the date or dates or method of
determining the date or dates from which distributions on preferred
securities issued by each trust will be cumulative;
- the amount or amounts which will be paid out of the assets of the
applicable trust to the holders of preferred securities of the trust upon
voluntary or involuntary dissolution, winding up or termination of the
applicable trust;
- the obligation, if any, of the applicable trust to purchase or redeem
preferred securities issued by the applicable trust and the price or
prices at which, the period or periods within which and the terms and
conditions upon which preferred securities issued by the applicable trust
will be purchased or redeemed, in whole or in part, pursuant to such
obligation;
- the voting rights, if any, of preferred securities issued by the
applicable trust in addition to those required by law, including the
number of votes per preferred security and any
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requirement for the approval by the holders of preferred securities as a
condition to specified action or amendments to the relevant declaration
of trust; and
- any other relevant rights, preferences, privileges, limitations or
restrictions of preferred securities issued by the applicable trust,
consistent with the declaration of the trust and with applicable law.
All preferred securities that a trust offers will be guaranteed by us to
the extent set forth below under the caption "Description of the Guarantees" in
this prospectus. The applicable prospectus supplement will also describe the
United States federal income tax considerations applicable to each offering of
preferred securities.
ISSUANCE OF COMMON SECURITIES
In connection with the issuance of preferred securities, each trust will
also issue a new series of common securities to us. Except as described below
under the caption "-- Subordination" in this prospectus, the terms of the common
securities issued by the applicable trust will be substantially identical to the
terms of the preferred securities. These terms will be defined in the relevant
declaration of trust and will be summarized in the applicable prospectus
supplement. These terms will include the following:
- the annual distribution rate (or method of determining that rate) and the
date or dates upon which the distributions will be payable;
- the rights of the applicable trust to redeem the common securities and
related provisions;
- the voting rights of holders of the common securities;
- any liquidation rights or similar restrictions; and
- other specific terms of the common securities (not inconsistent with the
relevant declaration of trust).
SUBORDINATION
The common securities will rank on par with, and payments will be made on
them on a proportionate basis with, the preferred securities issued by the
applicable trust, except that upon a trust enforcement event, as described
below, the rights of the holders of the common securities to payments of
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the preferred securities.
HOLDER OF COMMON SECURITIES
Except in certain limited circumstances, the holder of the common
securities of the applicable trust will have sole power to appoint, remove or
replace any of the trustees of the applicable trust. All of the common
securities of the applicable trust will be directly or indirectly owned by us.
TRUST ENFORCEMENT EVENTS
An event of default under the indenture that has occurred and is continuing
constitutes a trust enforcement event under the relevant declaration of trust.
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REMEDIES OF HOLDERS OF PREFERRED SECURITIES AND THE PROPERTY TRUSTEE
If a trust enforcement event occurs and is continuing, then the holders of
preferred securities of the applicable trust would rely on the enforcement by
the property trustee of its rights as a holder of the junior subordinated
debentures against us. In addition, the holders of a majority in liquidation
amount of the preferred securities of the applicable trust will have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the property trustee or to direct the exercise of any trust or
power conferred upon the property trustee under the relevant declaration of
trust, including the right to direct the property trustee to exercise the
remedies available to it as a holder of the junior subordinated debentures.
Upon the occurrence of a trust enforcement event, the property trustee, as
the holder of the junior subordinated debentures, will have the right under the
indenture to declare the principal of and premium, if any, and interest on the
junior subordinated debentures held by the applicable trust to be immediately
due and payable.
If the property trustee fails to enforce its rights regarding the junior
subordinated debentures held by the applicable trust, any holder of preferred
securities may, to the extent permitted by applicable law, institute a legal
proceeding directly against us to enforce the property trustee's rights under
these junior subordinated debentures without first instituting any legal
proceeding against the property trustee or any other person or entity. In
addition, if a trust enforcement event has occurred and is continuing and such
event is attributable to our failure to make any required payments on the junior
subordinated debentures when due, then a holder of preferred securities may, on
or after the date that such payment was due, institute a proceeding directly
against us for enforcement of payment on the junior subordinated debentures
having a principal amount equal to the total liquidation amount of the preferred
securities held by that holder (we refer to such proceeding as a "Direct
Action"). In connection with a Direct Action, we will have the right under the
indenture to set off any payment made to that holder by us. The holders of
preferred securities will not be able to exercise directly any other remedy
available to the holders of junior subordinated debentures.
REMEDIES OF HOLDERS OF COMMON SECURITIES
The holder of the common securities will be deemed to have waived any trust
enforcement event regarding the common securities until all trust enforcement
events regarding the preferred securities have been cured, waived or otherwise
eliminated. Until such a trust enforcement event has been cured, waived or
otherwise eliminated, the property trustee will be deemed to be acting solely on
behalf of the holders of the preferred securities and only the holders of the
preferred securities will have the right to direct the property trustee
regarding remedies under the relevant declaration of trust, and, therefore, the
indenture.
LIMITATION ON CONSOLIDATIONS, MERGERS AND SALE OF ASSETS
Each of the trusts may not consolidate, merge with or into, or sell or
lease substantially all of its properties and assets to any corporation or other
entity, unless:
- a majority of the administrative trustees consent to such a transaction;
- the successor assumes all of the obligations of the trust regarding the
preferred securities, or substitutes other securities for the preferred
securities with the same
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terms and other provisions as the preferred securities (which we refer to
as "Successor Securities"), and regarding the trustees;
- if Successor Securities are issued, these securities are listed on the
same national securities exchange on which the preferred securities were
listed;
- the transaction does not cause the preferred securities or the Successor
Securities to be downgraded by a national ratings organization;
- such transaction does not adversely affect the rights of the holders of
the preferred securities in any material respect;
- following the transaction, the trust would not have to register as an
"investment company" under the Investment Company Act;
- we, or a successor which will own all of the common securities of the
trust or its successor, will guarantee the preferred securities, or the
Successor Securities, to the same extent as the preferred securities are
guaranteed by the guarantee;
- the trust would not be classified as an association or publicly traded
partnership taxable as a corporation for United States federal income tax
purposes, unless each holder of preferred securities consents to such a
change; and
- the holders of the preferred securities would continue to be treated as
owning an undivided beneficial interest in the assets of the trust,
unless each holder of the preferred securities consents to such a change.
PAYING AGENT
Unless the applicable prospectus supplement states otherwise, in the event
that any preferred securities are not in the form of global securities, as
described under "Book-Entry Issuance", each trust will maintain in the Borough
of Manhattan, The City of New York, an office or agency where the preferred
securities may be presented for payment by a paying agent.
Each trust may appoint a paying agent and may appoint one or more
additional paying agents in such other locations as it may determine and change
any paying agent without prior notice to the holders of preferred securities.
Each trust, or any of its affiliates, may act as paying agent regarding any
series of preferred securities. Unless the applicable prospectus supplement
states otherwise, the property trustee will act as paying agent for each series
of preferred securities. In the event that the property trustee will no longer
act as the paying agent, the administrative trustees may appoint a successor,
which will be a bank or trust company acceptable to us, to act as paying agent.
TRANSFER OF PREFERRED SECURITIES
For each issue of preferred securities, the property trustee will keep a
security register to provide for the transfer and registration of transfer of
preferred securities. The following provisions apply to the transfer of
preferred securities which are not issued in book-entry form:
- Holders of any issue of preferred securities may exchange their
securities for an equal principal amount of other preferred securities of
different authorized denominations of the same issue and with the same
terms.
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- No service charge will be made for any registration of transfer or
exchange of securities, but the trust may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
securities.
- If the preferred securities are to be redeemed in part, the trust will
not be required:
- to issue, register the transfer of or exchange any securities during a
period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of any such securities selected
for redemption and ending at the close of business on the day of such
mailing; or
- to register the transfer or exchange of any preferred security so
selected for redemption in whole or in part, except the unredeemed
portion of any security being redeemed in part.
GLOBAL SECURITIES
The preferred securities of any issue may be issued in the form of one or
more global securities. Preferred securities of any issue will no longer be
eligible to be represented in the form of a global security and will be
registered in definitive form if one of the following events occurs:
- if at any time the depositary notifies the applicable trust that it is
unwilling or unable under the Securities Exchange Act and other
applicable law to continue as depositary or if at any time it will no
longer be eligible, in each case if a successor depositary is not
appointed within 90 days after the applicable trust receives notice or
becomes aware of this ineligibility; or
- the applicable trust, in its sole discretion, may determine that the
preferred securities issued in the form of one or more global securities
will no longer be represented by a global security.
For more information regarding the issuance of global securities and the
depositary arrangements for them, see below under the caption "Book-Entry
Issuance" in this prospectus.
REGISTRATION OF GLOBAL SECURITIES
If the preferred securities are to be issued in the form of one or more
global securities, then an administrative trustee on behalf of the applicable
trust will execute and the property trustee will cause the global securities to
be registered in the name of the depositary for these global securities or its
nominee.
REGISTRATION OF PREFERRED SECURITIES IN DEFINITIVE FORM
Preferred securities not represented by a global security which are issued
in exchange for all or a part of a global security will be registered in such
names and in such authorized denominations as the depositary, pursuant to
instructions from its direct or indirect participants or otherwise, will
instruct the property trustee. Upon execution and authentication, the property
trustee will deliver the preferred securities not represented by a global
security to the persons in whose names such definitive preferred securities are
so registered. The preferred securities that are not initially represented by a
global security may be exchanged or
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transferred for part of a global security pursuant to the instructions and
procedures of the depositary.
RELIANCE ON THE DEPOSITARY BY THE TRUSTS AND PROPERTY TRUSTEE
In connection with each issue of preferred securities, the applicable trust
and property trustee may for all purposes, including the making of payments due
on these preferred securities, deal with the depositary as the authorized
representative of the holders of these preferred securities for the purpose of
exercising the rights of these holders. The rights of the owner of any
beneficial interest in a global security will be limited to those established by
law and agreements between such owners and depository participants or Euroclear
Bank S.A./N.V. and Clearstream Banking, societe anonyme; provided that no such
agreement will give any rights to any person against the applicable trust or
property trustee without the written consent of these parties.
TRANSFER OF BENEFICIAL INTERESTS IN GLOBAL SECURITIES
Global securities may not be transferred as a whole except under the
following circumstances:
- by the depositary to a nominee of the depositary;
- by a nominee of the depositary to the depositary or another nominee of
the depositary; or
- by the depositary or any such nominee to a successor depositary or a
nominee of such successor depositary.
Interests of beneficial owners in a global security may be transferred or
exchanged for preferred securities not represented by a global security and
preferred securities not represented by a global security may be transferred or
exchanged for global securities in accordance with rules of the depositary.
AMENDMENTS
AMENDMENTS WITHOUT CONSENT OF HOLDERS OF PREFERRED SECURITIES
Each declaration of trust may be amended without the consent of the holders
of the preferred securities:
- to cure any ambiguity or to correct or supplement any provisions in the
declaration of trust that may be defective or inconsistent with any other
provision in the relevant declaration of trust; provided that any such
action may be taken only if it does not adversely affect in any material
respect the rights of the holders of preferred securities or common
securities;
- to add to our covenants, restrictions or obligations, as sponsor of the
trusts;
- to conform to any change in Rule 3a-5 under the Investment Company Act or
written change in interpretation or application of Rule 3a-5 under the
Investment Company Act by any legislative body, court, government agency
or regulatory authority;
- to modify, eliminate or add to any provisions as necessary to the
relevant declaration of trust to ensure that the trust will not be
classified for United States federal income tax
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purposes as an association or a publicly traded partnership taxable as a
corporation at all times that any preferred securities or common
securities are outstanding or to ensure that the trust will not be
required to register as an "investment company" under the Investment
Company Act; or
- to comply with the requirements of the SEC in order to effect or maintain
the qualification of the declaration of trust under the Trust Indenture
Act.
AMENDMENT WITH CONSENT OF HOLDERS OF PREFERRED SECURITIES AND COMMON
SECURITIES
Without the consent of each holder of the preferred securities and the
common securities, the relevant declaration of trust may not be amended to:
- change the amount or timing of any distribution of the preferred
securities and the common securities or otherwise adversely affect the
amount of any distribution required to be made on the preferred
securities and the common securities;
- restrict the right of a holder of preferred securities to institute suit
for the enforcement of any payment owed on these securities; or
- change the voting requirements and other provisions relating to
amendments.
Except as otherwise provided in the applicable declaration of trust,
without the consent of a majority of the holders of outstanding preferred
securities and common securities voting as a single class, the relevant
declaration of trust may not be amended in any manner; provided that, if any
amendment or proposal would adversely affect only the preferred securities or
the common securities, then only the affected class will be entitled to vote on
such amendment or proposal.
AMENDMENTS WITH CONSENT OF HOLDERS OF COMMON SECURITIES
Without the consent of the holders of a majority in liquidation amount of
the common securities, the relevant declaration of trust may not be amended to
change the rights of the holders of the common securities to increase or
decrease the number of, and appoint and remove trustees.
PROVISIONS THAT MAY NOT BE AMENDED
Under no circumstances may the following provisions of the relevant
declaration of trust be amended:
- to cause the applicable trust to be classified as an association or
publicly traded partnership taxable as a corporation for United States
federal income tax purposes;
- to reduce or otherwise adversely affect the powers of the property
trustee in contravention of the Trust Indenture Act; and
- to cause the applicable trust to be deemed to be an "investment company"
required to be registered under the Investment Company Act.
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MEETINGS OF THE HOLDERS OF SECURITIES
MEETINGS
The administrative trustees of any issue of preferred securities may call a
meeting of the holders of the securities on any matter on which these securities
are entitled to act under the relevant declaration of trust. In addition, the
holders of at least 10% in liquidation amount of any issue of preferred
securities may direct the administrative trustees to call such a meeting. The
administrative trustees are required to give notice of any such meeting at least
7 days but not more than 60 days before the date of that meeting. The
administrative trustees, in their sole discretion, will establish all other
provisions relating to meetings of holders of preferred securities not stated
below.
ACTION BY WRITTEN CONSENT
Whenever a vote, consent or approval of the holders of preferred securities
is permitted or required, that vote, consent or approval may be given at the
meeting. Any action that may be taken at a meeting of these holders may be taken
without a meeting and without prior notice if a consent in writing setting forth
the action so taken is signed by the holders owning not less than the minimum
amount of preferred securities in liquidation amount that would be necessary to
authorize or take such action at the meeting itself.
PROXIES
Each holder of a preferred security may authorize any person to act for it
by proxy on all matters but proxies will not be valid after the expiration of 11
months from the date thereof unless otherwise provided in the proxy. Every proxy
will be revocable at the pleasure of the holder of preferred securities
executing the proxy. Except as otherwise provided herein, all matters relating
to the giving, voting or validity of proxies will be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the applicable trust were a Delaware
corporation and the holders of the preferred securities were stockholders of a
Delaware corporation.
GOVERNING LAW
Each declaration of trust and the related preferred securities will be
governed by and construed in accordance with the laws of the State of Delaware.
DESCRIPTION OF THE GUARANTEES
The following description of the terms and provisions of the guarantees
summarizes certain general terms that will apply to each guarantee that we
deliver in connection with a series of preferred securities. This description is
not complete, and we refer you to the form of the guarantee agreement, a copy of
which we filed as an exhibit to the registration statement of which this
prospectus is a part.
When a trust sells a series of its preferred securities, we will execute
and deliver a guarantee of that series of preferred securities under a guarantee
agreement for the benefit of the holders of these preferred securities. Only one
guarantee will be issued by us in connection with the issuance of preferred
securities by the applicable trust. Each guarantee agreement will be qualified
as an indenture under the Trust Indenture Act. Unless the applicable prospectus
supplement states otherwise, Chase Manhattan Trust Company, N.A. will act as
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guarantee trustee under each guarantee agreement. The guarantee trustee will
hold each guarantee for the benefit of the holders of the preferred securities
of the applicable trust.
SPECIFIC TERMS OF THE GUARANTEES
Except as stated in the applicable prospectus supplement, we will
irrevocably and unconditionally agree to pay in full the following payments or
distributions on each corresponding series of preferred securities, to the
extent that they are not paid by, or on behalf of, the applicable trust:
- any accumulated and unpaid distributions required to be paid on the
preferred securities, to the extent that the applicable trust has
sufficient funds available for those payments at the time;
- the redemption price regarding any preferred securities called for
redemption, to the extent that the applicable trust has sufficient funds
available for those redemption payments at such time; and
- upon a voluntary or involuntary dissolution, winding up or liquidation of
the applicable trust, unless the corresponding series of junior
subordinated debentures are distributed to holders of the preferred
securities, the lesser of:
- the total liquidation amount of the preferred securities and all
accumulated and unpaid distributions on them to the date of payment; and
- the amount of assets of the applicable trust remaining available for
distribution to holders of the preferred securities.
Our obligation to make the payments described above under the guarantee may
be satisfied by direct payment of the required amounts by us to the holders of
the applicable preferred securities or by causing the applicable trust to pay
such amounts to these holders. In addition, our obligation to make the payments
described above will exist regardless of any defense, right of setoff or
counterclaim that the applicable trust may have or assert.
Each guarantee will apply only to the extent that the applicable trust has
sufficient funds available to make the required payments. If we do not make
interest payments on the junior subordinated debentures held by the applicable
trust, then the trust will not be able to pay distributions on the preferred
securities issued by the trust and will not have funds legally available for
these payments.
NATURE OF THE GUARANTEE
We will, through the relevant declaration of trust, the guarantee, the
junior subordinated debentures and the indenture, taken together, fully and
unconditionally guarantee the applicable trust's obligations under the preferred
securities. No single document standing alone or operating in conjunction with
fewer than all of the other documents constitutes this guarantee. It is only the
combined operation of these documents that has the effect of providing a full
and unconditional guarantee of the applicable trust's obligations under the
preferred securities.
Each guarantee will constitute a guarantee of payment and not of
collection. This means that the guaranteed party may institute a legal
proceeding directly against us to enforce its rights under a guarantee without
first instituting a legal proceeding against any other person or entity. In
addition, each guarantee will not be discharged except by payment of the amounts
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due under it in full to the extent they have not been paid by the applicable
trust or upon distribution of junior subordinated debentures to the holders of
the preferred securities in exchange for all of these preferred securities.
GUARANTEE OF COMMON SECURITIES
We also will irrevocably and unconditionally guarantee the obligations of
the applicable trust regarding that trust's common securities to the same extent
as its guarantee of the applicable preferred securities, except that upon the
occurrence and the continuation of a trust enforcement event regarding the
applicable trust, holders of these preferred securities will have priority over
holders of the common securities regarding distributions and payments on
liquidation, redemption or otherwise.
RANKING
Each guarantee will constitute our unsecured obligation and will rank
subordinate and junior in right of payment to all of our other liabilities to
the same extent as the junior subordinated debentures.
The guarantees will not place a limitation on the amount of additional
senior debt that may be incurred by us.
CERTAIN COVENANTS OF COMERICA INCORPORATED
In general, we will covenant in each guarantee that, so long as any
preferred securities issued by a trust remain outstanding, if
- there shall have occurred any event of default under the indenture
regarding the applicable series of junior subordinated debentures;
- we shall be in default regarding our payment of any obligations under the
related guarantee; or
- we shall have given notice of our election to defer interest payments on
the junior subordinated debentures, as described below under the caption
"Description of the Junior Subordinated Debentures -- Option to Defer
Interest Payments" and we shall not have rescinded that notice or begun
making such payments or such deferral period or any extension of it will
be continuing;
then we will not, and will not permit any of our subsidiaries to:
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment regarding, any of our capital
stock; or
- make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any of our debt securities that rank on a par with
or junior in interest to such junior subordinated debentures; or
- make any guarantee payments regarding any guarantee by us of the debt
securities of any of our subsidiaries if such guarantee ranks on par with
or junior in interest to such junior subordinated debentures.
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However, at any time, including during a deferral period, we may do the
following:
- make payments under the guarantee of the series of the preferred
securities and common securities;
- repurchase, redeem or otherwise acquire our capital stock in connection
with any of the following:
- any employment contract, benefit plan or other similar arrangement with
or for the benefit of any one or more employees, officers, directors or
consultants;
- any dividend reinvestment or stockholder stock purchase plan; or
- the issuance of our capital stock (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition
transaction entered into before the default or deferral period, as the
case may be;
- exchange or convert:
- any class or series of our capital stock (or any capital stock of any
subsidiary of ours) for any class or series of our capital stock; or
- any class or series of our indebtedness for any class or series of our
capital stock;
- purchase fractional interests in shares of our capital stock pursuant to
the conversion or exchange provisions of such capital stock or the
security being converted or exchanged;
- declare a dividend in connection with any shareholders' rights plan, or
the issuance of rights, stock or other property under any such plan, or
the redemption or repurchase of any such rights pursuant thereto; and
- declare a dividend in the form of stock, warrants, options or other
rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which
the dividend is being paid or ranks pari passu with or junior to such
stock.
We are not limited in our ability to make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any of our debt
securities that rank senior in interest to such junior subordinated debentures
or to make any guarantee payments regarding any guarantee by us of the debt
securities of any of our subsidiaries if such guarantee ranks senior in interest
to such junior subordinated debentures.
AMENDMENTS
Unless otherwise specified in the applicable prospectus supplement, each
guarantee may be amended under the following two circumstances:
- regarding changes to the guarantee that do not materially adversely
affect the rights of holders of the applicable preferred securities, no
consent of such holders will be required; and
- all other amendments to the guarantee may not be made without the prior
approval of the holders of not less than a majority of the total
liquidation amount of the outstanding preferred securities to which the
guarantee relates.
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The manner of obtaining the necessary approvals to amend a guarantee are
the same as for holders of the preferred securities, which are described above
under "Description of the Preferred Securities -- Meetings of the Holders of
Securities".
ASSIGNMENT
All guarantees and agreements contained in a guarantee will bind our
successors, assigns, receivers, trustees and representatives and will inure to
the benefit of the holders of the related preferred securities then outstanding.
EVENTS OF DEFAULT AND REMEDIES
An event of default under a guarantee will occur upon our failure to make
any of our payments or perform any of our other obligations under it.
The holders of not less than a majority in total liquidation amount of the
preferred securities to which a guarantee relates have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the guarantee trustee regarding the guarantee or to direct the exercise of any
trust or power conferred upon the guarantee trustee under such guarantee.
Any holder of the corresponding series of preferred securities may
institute a legal proceeding directly against us to enforce the guarantee
trustee's rights under that guarantee, without first instituting a legal
proceeding against the applicable trust that issued the preferred securities,
the guarantee trustee or any other person or entity.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The guarantee trustee, other than during the occurrence and continuance of
a default by us in performance of a guarantee, undertakes to perform only such
duties as are specifically set forth in the guarantee. After a default under the
guarantee, which has not been cured or waived, that is actually known to a
responsible officer of the guarantee trustee, the guarantee trustee must
exercise the same degree of care and skill as a prudent person would exercise or
use under the circumstances in the conduct of his own affairs. Subject to this
provision, the guarantee trustee is under no obligation to exercise any of the
powers vested in it by a guarantee at the request of any holder of preferred
securities to which the guarantee relates unless it is offered reasonable
indemnity against the costs, expenses and liabilities that might be incurred by
such action.
TERMINATION OF THE GUARANTEES
Each guarantee will terminate upon any of the following events:
- the full payment of the redemption price of all preferred securities of
the applicable trust;
- the full payment of the amounts payable upon liquidation of the
applicable trust; or
- the distribution of the junior subordinated debentures held by the
applicable trust to the holders of the preferred securities of the trust
in exchange for all of the preferred securities of the trust.
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Each guarantee will continue to be effective or will be reinstated, if at
any time any holder of related preferred securities issued by the applicable
trust is required to restore payment of any sums paid under the applicable
preferred securities or the guarantee.
GOVERNING LAW
The guarantees will be governed by, and construed in accordance with, the
laws of the State of New York.
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
The following summary of the terms and provisions of our junior
subordinated debentures that will be issued and sold by us and purchased by the
applicable trust that issues a series of preferred securities. It is not
complete, and we refer you to the indenture and the form of the junior
subordinated debentures, which we filed as exhibits to the registration
statement of which this prospectus is a part.
Unless otherwise specified in the applicable prospectus supplement, each
time that we issue a new series of junior subordinated debentures that series
will be issued under an indenture between us and Chase Manhattan Trust Company,
N.A., as indenture trustee. The indenture provides for the issuance from time to
time of junior subordinated debentures in an unlimited dollar amount and an
unlimited number of series. Only one series of the junior subordinated
debentures will be issued to each trust in connection with the issuance of
preferred securities by that trust.
Unless the applicable prospectus supplement states otherwise, we will issue
each new series of junior subordinated debentures in a total principal amount
equal to the total liquidation amount of the preferred securities and common
securities that the applicable trust issues to us in exchange for the junior
subordinated debentures. Concurrently with the issuance of the junior
subordinated debentures in exchange for the preferred securities and common
securities, we will sell the preferred securities to the public. Unless the
applicable prospectus supplement states otherwise, the interest payment
provisions for the junior subordinated debentures will correspond to the
distribution provisions of the corresponding series of preferred securities.
SPECIFIC TERMS OF EACH SERIES
Each time that we issue a new series of junior subordinated debentures to
the applicable trust, the prospectus supplement relating to that new series will
specify the particular amount, price and other terms of these securities. These
terms will include:
- the title of the junior subordinated debentures of the series, which will
distinguish the junior subordinated debentures of the series from all
other junior subordinated debentures;
- the limit, if any, upon the total principal amount of the junior
subordinated debentures of the series which may be issued;
- the maturity or the method of determining the maturity;
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- the rate or rates, if any, at which the junior subordinated debentures of
the series will bear interest, if any, the rate or rates and extent to
which interest on overdue amounts, if any, will be payable in respect of
any junior subordinated debentures of the series;
- the interest payment dates and the record dates for the interest payable
on any interest payment date or the method by which any of the foregoing
will be determined;
- the place or places where the principal of and premium, if any, and
interest on the junior subordinated debentures of the series will be
payable, the place or places where the junior subordinated debentures of
the series may be presented for registration of transfer or exchange and
the place or places where notices and demands to or upon us regarding the
junior subordinated debentures of the series may be made;
- the period or periods within which, or the date or dates on which, if
any, the price or prices at which and the terms and conditions upon which
the junior subordinated debentures of the series may be redeemed, in
whole or in part, at our option;
- our obligation or our right, if any, to redeem, repay or purchase the
junior subordinated debentures of the series pursuant to any sinking
fund, amortization or analogous provisions or upon the happening of a
specified event, or at the option of a holder of that security, and the
period or periods within which, the price or prices at which, the
currency or currencies (including currency unit or units) in which and
the other terms and conditions upon which junior subordinated debentures
of the series will be redeemed, repaid or purchased, in whole or in part,
pursuant to that obligation;
- the denominations in which any junior subordinated debentures of the
series will be issuable, if other than denominations of $25 and any
integral multiple thereof;
- if other than U.S. dollars, the currency or currencies (including
currency unit or units) in which the principal of (and premium, if any)
and interest, if any, on the junior subordinated debentures of the series
will be payable, or in which the junior subordinated debentures of the
series will be denominated;
- the additions, modifications or deletions, if any, in the events of
default described under the caption "Events of Default" below or our
covenants described in this prospectus or the applicable prospectus
supplement regarding the junior subordinated debentures of the series;
- if other than the principal amount thereof, the portion of the principal
amount of junior subordinated debentures of the series that will be
payable upon declaration of acceleration of the maturity of the junior
subordinated debentures;
- the additions or changes, if any, to the indenture regarding the junior
subordinated debentures of the series as will be necessary to permit or
facilitate the issuance of the junior subordinated debentures of the
series in bearer form, registrable or not registrable as to principal,
and with or without interest coupons;
- any index or indices used to determine the amount of payments of
principal of and premium, if any, on the junior subordinated debentures
of the series or the manner in which the amounts will be determined;
- whether the junior subordinated debentures of the series, or any portion
thereof, will initially be issuable in the form of a temporary global
security representing all or the portion of the junior subordinated
debentures of the series and provisions for the
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exchange of the temporary global security for definitive junior
subordinated debentures of the series;
- whether any junior subordinated debentures of the series will be issuable
in whole or in part in the form of one or more global securities and, in
any such case, the respective depositaries for the global securities, the
form of any legend or legends which will be borne by any global security,
if applicable;
- the appointment of any paying agent or agents for the junior subordinated
debentures of the series;
- the terms of any right to convert or exchange junior subordinated
debentures of the series into any other junior subordinated debentures or
other securities or property of ours, and the additions or changes, if
any, to the indenture regarding the junior subordinated debentures of the
series to permit or facilitate the conversion or exchange;
- the relative degree, if any, to which the junior subordinated debentures
of the series will be senior to or be subordinated to other series of
junior subordinated debentures in right of payment, whether the other
series of junior subordinated debentures are outstanding or not; and
- any other terms of the junior subordinated debentures of the series
(which terms will not be inconsistent with the provisions of the
indenture).
RANKING
Unless otherwise stated in the applicable prospectus supplement, each
series of junior subordinated debentures will be unsecured and will rank junior
and be subordinate in right of payment to all our senior debt. Senior debt
includes our debt other than our obligations which are expressly made on par or
not superior in right of payment to the junior subordinated debentures,
obligations without recourse to us, our obligations to our subsidiaries or
employees and trade accounts payable or liabilities arising in the ordinary
course of business.
SUBORDINATION
Our obligations under the junior subordinated debentures will be
subordinate to all our existing and future senior debt. In addition, the junior
subordinated debentures will be effectively subordinated to all existing and
future obligations of our subsidiaries. Our obligations under the guarantees are
subordinated to the same extent as the junior subordinated securities. This
means that we cannot make any payments on the junior subordinated debentures or
the guarantees if we are in default on any of our senior debt.
In addition, in the event of our bankruptcy, liquidation or dissolution,
our assets must be used to pay off our senior obligations in full before any
payments may be made on the junior subordinated debentures or the guarantees.
The indenture, the guarantees and the declaration of trusts do not limit our
ability to incur additional senior debt. For more information, see above under
the caption "-- Ranking" in this section and under the caption "Description of
the Guarantees -- Ranking" in this prospectus.
As a holding company, our assets primarily consist of the equity securities
of our subsidiaries. As a result, our cash flow and consequent ability to
service our debt, including the junior subordinated debentures, are dependent
upon the earnings of our subsidiaries and
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the distribution of those earnings to us, or upon loans or other payments of
funds by those subsidiaries to us. Our subsidiaries are separate and distinct
legal entities and will have no obligation, contingent or otherwise, to pay any
interest or principal on the junior subordinated debentures or to make any funds
available therefor, whether by dividends, loans or other payments. The payment
of dividends by our subsidiaries is contingent upon the earnings of those
subsidiaries and is subject to various business considerations in addition to
the requirements of federal banking and other regulators and contractual
restrictions.
In addition, since the junior subordinated debentures will be obligations
of a holding company, the ability of holders of the junior subordinated
debentures to benefit from any distribution of assets of any subsidiary upon the
liquidation or reorganization of such subsidiary is subordinate to the prior
claims of present and future creditors of that subsidiary.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES
Unless stated otherwise in the applicable prospectus supplement, we may
dissolve and liquidate a trust and, thereafter, the property trustee would
distribute to holders of the corresponding preferred securities and common
securities the junior subordinated debentures of the series that such trust had
held as its sole asset. If the property trustee distributes the junior
subordinated debentures to the holders of the preferred securities and the
common securities upon the dissolution and liquidation of such trust, then the
junior subordinated debentures will be issued in denominations of $25 principal
amount and integral multiples thereof unless otherwise specified in the
applicable prospectus supplement. We anticipate that the junior subordinated
debentures would be distributed in the form of one or more global securities and
that DTC, or any successor depositary for the preferred securities, would act as
depositary for the junior subordinated debentures. The depositary arrangement
for the junior subordinated debentures would be substantially the same as those
in effect for the preferred securities. For a description of DTC and the terms
of the depositary arrangements relating to payments, transfers, voting rights,
redemption and other notices and other matters for the preferred securities, see
the caption below under "Book-Entry Issuance" in this prospectus.
OPTION TO DEFER INTEREST PAYMENTS
OPTION TO DEFER INTEREST PAYMENTS
Unless otherwise stated in the applicable prospectus supplement, we will
have the right to defer interest payments on the junior subordinated debentures
for up to five years of consecutive interest payment periods if the junior
subordinated debentures are not in default, but the deferral of interest
payments cannot extend beyond the maturity date of the series of junior
subordinated debentures. During the deferral period, interest will continue to
accrue on the junior subordinated debentures, compounded on the same periodic
basis upon which interest otherwise accrues and deferred interest payments will
accrue additional interest. No interest will be due and payable on the junior
subordinated debentures until the end of the deferral period except upon a
redemption of the junior subordinated debentures during a deferral period.
We may pay at any time all or any portion of the interest accrued to that
point during a deferral period. At the end of the deferral period, or on any
redemption date, we will be obligated to pay all accrued and unpaid interest.
Once we pay accrued and unpaid interest on the junior subordinated debentures,
we will again be able to defer interest payments on the junior subordinated
debentures as described above.
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CERTAIN LIMITATIONS DURING A DEFERRAL PERIOD
During any deferral period, we will not and our subsidiaries will not be
permitted to:
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment regarding, any of our capital
stock; or
- make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any of our debt securities that rank on a par with
or junior in interest to such junior subordinated debentures; or
- make any guarantee payments regarding any guarantee by us of the debt
securities of any of our subsidiaries if such guarantee ranks on a par
with or junior in interest to such junior subordinated debentures.
However, at any time, including during a deferral period, we may do the
following:
- make payments under the guarantee of the series of the preferred
securities and common securities;
- repurchase, redeem or otherwise acquire our capital stock in connection
with any of the following:
- any employment contract, benefit plan or other similar arrangement with
or for the benefit of any one or more employees, officers, directors or
consultants;
- any dividend reinvestment or stockholder stock purchase plan; or
- the issuance of our capital stock (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition
transaction entered into before the deferral period;
- exchange or convert:
- any class or series of our capital stock (or any capital stock of any
subsidiary of ours) for any class or series of our capital stock; or
- any class or series of our indebtedness for any class or series of our
capital stock;
- purchase fractional interests in shares of our capital stock pursuant to
the conversion or exchange provisions of such capital stock or the
security being converted or exchanged;
- declare a dividend in connection with any shareholders' rights plan, or
the issuance of rights, stock or other property under any such plan, or
the redemption or repurchase of any such rights pursuant thereto; and
- declare a dividend in the form of stock, warrants, options or other
rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which
the dividend is being paid or ranks pari passu with or junior to such
stock.
We are not limited in our ability to make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any of our debt
securities that rank senior in interest to such junior subordinated debentures
or to make any guarantee payments regarding any guarantee by us of the debt
securities of any of our subsidiaries if such guarantee ranks senior in interest
to such junior subordinated debentures.
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NOTICE PROVISIONS
If the property trustee is the sole holder of the junior subordinated
debentures, we will give the applicable trust, the applicable administrative
trustees and property trustee notice if we decide to defer interest payments on
the junior subordinated debentures. We will give that notice one business day
before the earlier of:
- the next date distributions on the preferred securities are payable; or
- the date the applicable trust is required to give notice to the New York
Stock Exchange (or any other applicable self-regulatory organization) or
to holders of the corresponding series of preferred securities of the
record date or the date any distribution is payable, but in any event at
least one business day before the record date.
The administrative trustees will give notice to the holders of preferred
securities if we decide to defer interest payments on the junior subordinated
debentures.
If the property trustee is not the sole holder of the junior subordinated
debentures, we will give the holders notice of any deferral period ten business
days prior to the earlier of:
- the next interest payment date; or
- the date we are required to give notice to the New York Stock Exchange
(or any other applicable self-regulatory organization) or to holders of
the junior subordinated debentures of the record date or payment date of
any related interest payment, but in any event at least two business days
prior to the record date.
COVENANTS
LIMITATION ON CERTAIN PAYMENTS
We will covenant that, so long as any preferred securities issued by a
trust remain outstanding, if
- there shall have occurred any event of default under the indenture;
- we shall be in default regarding our payment of any obligations under our
guarantee regarding the trust; or
- we shall have given notice of our election to defer interest payments, as
described above under "-- Option to Defer Interest Payments" and we shall
not have rescinded that notice or begun making such payments or such
deferral period or any extension of it will be continuing;
then we will not, and will not permit any of our subsidiaries to:
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment regarding, any of our capital
stock; or
- make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any of our debt securities that rank on par with or
junior in interest to the junior subordinated debentures; or
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- make any guarantee payments regarding any guarantee by us of the debt
securities of any of our subsidiaries if such guarantee ranks on par with
or junior in interest to the junior subordinated debentures.
However, at any time, including during a deferral period, we may do the
following:
- make payments under the guarantee of the series of the preferred
securities and common securities;
- repurchase, redeem or otherwise acquire our capital stock in connection
with any of the following:
- any employment contract, benefit plan or other similar arrangement with
or for the benefit of any one or more employees, officers, directors or
consultants;
- any dividend reinvestment or stockholder stock purchase plan; or
- the issuance of our capital stock (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition
transaction entered into before the default or deferral period, as the
case may be;
- exchange or convert:
- any class or series of our capital stock (or any capital stock of any
subsidiary of ours) for any class or series of our capital stock; or
- any class or series of our indebtedness for any class or series of our
capital stock;
- purchase fractional interests in shares of our capital stock pursuant to
the conversion or exchange provisions of such capital stock or the
security being converted or exchanged;
- declare a dividend in connection with any shareholders' rights plan, or
the issuance of rights, stock or other property under any such plan, or
the redemption or repurchase of any such rights pursuant thereto; and
- declare a dividend in the form of stock, warrants, options or other
rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which
the dividend is being paid or ranks pari passu with or junior to such
stock.
We are not limited in our ability to make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any of our debt
securities that rank senior in interest to such junior subordinated debentures
or to make any guarantee payments regarding any guarantee by us of the debt
securities of any of our subsidiaries if such guarantee ranks senior in interest
to such junior subordinated debentures.
CERTAIN AFFIRMATIVE COVENANTS
We will covenant to:
- subject to our ability to consolidate, merge or sell or lease our
properties and assets substantially as an entirety, as described below,
maintain directly or indirectly 100% ownership of the common securities
of the applicable trust;
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- cause the applicable trust to remain a Delaware business trust and not to
voluntarily dissolve, wind up, liquidate or be terminated, except as
permitted by the relevant declaration of trust; and
- take no action that would be reasonably likely to cause the trust to be
classified as an association or a publicly traded partnership taxable as
a corporation for United States federal income tax purposes.
LIMITATION ON CONSOLIDATION, MERGER AND CERTAIN SALES
We may not consolidate with or merge into any other entity or sell or lease
our properties and assets substantially as an entirety to any entity, unless:
- the resulting entity shall be a corporation, partnership or trust
organized under U.S. law;
- the resulting entity assumes our obligations under the junior
subordinated debentures and the indenture;
- there would be no event of default under the indenture immediately after
giving effect to the transaction; and
- in the case of the junior subordinated debentures of a series held by a
trust, the consolidation, merger, conveyance, transfer or lease is
permitted under the relevant declaration of trust and the guarantee and
does not give rise to any breach or violation of these documents.
NO EVENT RISK COVENANT
The indenture does not contain any covenants that provide holders of junior
subordinated debentures protection in the event of a highly leveraged
transaction, reorganization, restructuring, merger or other similar transaction
involving us, which may adversely affect holders of junior subordinated
debentures.
DENOMINATIONS
The junior subordinated debentures will be issuable only in registered
form, without coupons, and only in denominations of $25 and any integral
multiples thereof, unless the applicable prospectus supplement states otherwise.
EVENTS OF DEFAULT, ACCELERATION, RESCISSION OF ACCELERATION AND WAIVERS
EVENTS OF DEFAULT
An event of default regarding any series of junior subordinated debentures
under the indenture is any one of the following events:
- default in the payment of interest, including interest on overdue
amounts, for a period of 30 days, subject to our right to defer interest
payments as described above under the caption "-- Option to Defer
Interest Payments" in this section;
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- default in the payment of the principal of or premium, if any;
- default in the performance, or breach, in any material respect, of any of
our covenants or warranties for a period of 90 days after notice to us by
the indenture trustee or to us and the indenture trustee by holders of at
least 25% in principal amount of the outstanding junior subordinated
debentures of that series;
- certain events of bankruptcy, insolvency and reorganization involving us;
or
- any other event of default pertaining to the particular series of junior
subordinated debentures.
ACCELERATION
If an event of default of the junior subordinated debentures occurs and is
continuing, then the indenture trustee or the holders of at least 25% in total
principal amount of the outstanding junior subordinated debentures will have the
right to declare the principal and the interest due on these securities to be
due and payable immediately. If, upon such an event of default, the indenture
trustee or holders of at least 25% of the total principal amount of the
outstanding junior subordinated debentures fail to declare the payment of all
amounts on these securities to be due and payable immediately, then the holders
of at least 25% in total liquidation amount of the preferred securities then
outstanding will have the right to declare these amounts due and payable
immediately.
RESCISSION OF ACCELERATION
At any time after a declaration of acceleration, as described in the
preceding paragraph, has been made and before a judgment or decree for payment
of the money due has been obtained by the indenture trustee, then the holders of
a majority in total principal amount of the outstanding junior subordinated
debentures may rescind the declaration of acceleration if both of the following
events have occurred:
- we have paid or deposited with the indenture trustee amounts sufficient
to pay the sum of:
1. all overdue interest;
2. the principal that has become due, other than by acceleration, and
interest on it at the rate borne by the junior subordinated debentures;
3. interest on overdue interest at the rate borne by the junior
subordinated debentures, to the extent that that rate of interest is
lawful; and
4. all amounts paid or advanced by the indenture trustee and its and its
counsel's reasonable fees and expenses; and
- all events of default regarding that series of junior subordinated
debentures have been cured or waived as described below under the caption
"--Waivers".
If the holders of the junior subordinated debentures fail to rescind the
declaration of acceleration, then the holders of a majority in total liquidation
amount of the preferred securities will have that right.
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WAIVERS
In certain cases, the holders of a majority in principal amount of the
outstanding series of junior subordinated debentures may, on behalf of the
holders of all junior subordinated debentures of that series, waive any past
default or event of default regarding that series or compliance with certain
provisions of the indenture. The following defaults may not, however, be waived:
- default in the payment of the principal of and premium or interest on any
of that series which has not been cured until that time; or
- a default regarding a covenant or provision of the indenture which cannot
be modified or amended,
without the consent of the holder of each outstanding junior subordinated
debenture of the series affected.
Notwithstanding the rights of the holders of the junior subordinated
debentures to waive certain events of default, covenants and other provisions,
as described above, the holders of at least a majority of the total liquidation
amount of the outstanding preferred securities will be required to waive any
event of default or compliance with any covenant under the indenture.
AGREEMENT BY PURCHASERS OF CERTAIN TAX TREATMENT
Each junior subordinated debenture will provide that, by acceptance of the
junior subordinated debentures, or a beneficial interest therein, the holders of
the junior subordinated debentures intend that such junior subordinate
debentures constitute debt and agree to treat it as debt for United States
federal, state and local tax purposes.
SATISFACTION AND DISCHARGE
At our request, the indenture will terminate as to the junior subordinated
debentures of any series (except as to any surviving rights of registration of
transfer or exchange of junior subordinated debentures) when either:
- all the junior subordinated debentures of that series have been delivered
to the indenture trustee for cancellation; or
- all the junior subordinated debentures of that series have become due and
payable, will become due and payable at their maturity within one year or
are to be called for redemption within one year and we have deposited
with the indenture trustee funds sufficient to make all remaining
interest and principal payments on the junior subordinated debentures of
that series.
AMENDMENTS
AMENDMENTS WITHOUT CONSENT OF HOLDERS
Without the consent of each holder of the junior subordinated debentures,
we may enter, together with the indenture trustee, into one or more supplemental
indentures to do the following:
- to evidence the succession of another party to us and the assumption by
that party of our covenants under the indenture;
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- to add to our covenants for the benefit of the holders of the junior
subordinated debentures;
- to cure any ambiguity, to correct or supplement any provision of the
indenture which may be inconsistent with any other or to make any other
provision regarding matters or questions under the indenture; provided
that any such supplemental indenture may not materially adversely affect
the interests of the holders of the junior subordinated debentures or the
related preferred securities; or
- to comply with the requirements of the SEC to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
AMENDMENTS WITH CONSENT OF HOLDERS
Without the consent of each holder of an outstanding junior subordinated
debenture, we may not and the indenture trustee may not amend the indenture to
effect the following changes to the terms and provisions of the junior
subordinated debentures:
- to change their maturity;
- to change or reduce the principal amount due;
- to change the interest rate on or any installment of interest due;
- to change the place of payment or the currency in which payment is due;
- to impair the right to sue for enforcement of any such payment on or
after the maturity or redemption date of the junior subordinated
debentures;
- to modify the subordination provisions in a manner adverse to the holders
of the junior subordinated debentures;
- to reduce the outstanding principal amount of junior subordinated
debentures that is required for any supplemental indenture or the waiver
of defaults or Events of Default as defined in the indenture; or
- to modify this section regarding amendments or the provisions regarding
the waiver of past defaults;
provided that no such modification may be made that adversely affects the
holders of the preferred securities.
AMENDMENTS WITH CONSENT OF HOLDERS OF PREFERRED SECURITIES
Without the consent of each of the holders of preferred securities, no
amendment may be made to the indenture that adversely affects the rights of
these holders to directly institute a proceeding against us for the enforcement
of the payment of interest of or principal on the junior subordinated debentures
in the amount of such holders' total liquidation amount of preferred securities.
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PAYMENTS AND PAYING AGENTS
At our option, interest on any series of junior subordinated debentures may
be paid:
- by check mailed to the address of the person entitled thereto as it will
appear on the junior subordinated debentures register of the series; or
- by wire transfer in immediately available funds at the place and to the
account as designated by the person entitled to such payment.
Initially, the paying agent will be Chase Manhattan Trust Company, N.A. We
may change the paying agent and may perform that role or have one of our
subsidiaries act as paying agent.
REGISTRATION, TRANSFER AND EXCHANGE
The indenture trustee will keep a security register to register the junior
subordinated debentures and to register the transfer and exchanges of junior
subordinated debentures for each trust. Holders of junior subordinated
debentures may register the transfer of a security upon surrender of the
security thus exchanged or transferred. Holders of junior subordinated
debentures of any series may exchange their securities for an equal principal
amount of other junior subordinated debentures of different authorized
denominations of the same series and with the same terms. We will not charge a
fee to holders of junior subordinated debentures for any transfer or exchange of
these securities, but we may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of securities.
MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES
We will replace any mutilated, destroyed, lost or stolen junior
subordinated debenture in exchange for a new junior subordinated debenture of
the same series of like tenor and principal amount and other terms. Upon the
issuance of any new security, we may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses, including the fees and expenses of the trustee,
connected with it.
INFORMATION REGARDING THE INDENTURE TRUSTEE
The indenture trustee, other than during the occurrence and continuance of
a default by us under the indenture, undertakes to perform only such duties as
are specifically set forth in the indenture. After a default under the
indenture, which has not been cured or waived, that is actually known to a
responsible officer of the indenture trustee, the indenture trustee must
exercise the same degree of care and skill as a prudent person would exercise or
use under the circumstances in the conduct of his own affairs. Subject to this
provision, the indenture trustee is under no obligation to exercise any of the
powers vested in it by an indenture at the request of any holder of junior
subordinated debentures unless it is offered reasonable indemnity against the
costs, expenses and liabilities that might be incurred by such action.
GOVERNING LAW
The indenture will be governed by, and construed in accordance with, the
laws of the State of New York.
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BOOK-ENTRY ISSUANCE
We have summarized below certain terms relating to the book-entry
facilities of the depositary for the preferred securities. To the extent that
this summary is inconsistent with the book-entry provisions and description of
the preferred securities in the accompanying prospectus supplement, you should
rely on the description in the accompanying prospectus supplement.
The preferred securities of each series will be represented by one or more
global securities that will be deposited with and registered in the name of DTC
or its nominee. This means that each time a trust issues a new series of
preferred securities, it will not issue physical certificates that represent
ownership of the preferred securities to the purchasers of these securities.
Rather, the preferred securities will be represented by one or more global
securities. Each global security will be issued to DTC, or its nominee, and held
by or on behalf of DTC, or its nominee. DTC will keep a computerized record of
its participants (for example, a broker) whose clients have purchased the
preferred securities. Each participant will then keep a record of its clients.
Unless it is exchanged in whole or in part for a certificated security, a global
security may not be transferred. However, DTC, its nominees and their successors
may transfer a global security as a whole to one another.
In the event that junior subordinated debentures are distributed to holders
of the corresponding series of preferred securities and common securities, as
described under "Description of the Junior Subordinated
Debentures -- Distribution of Junior Subordinated Debentures" in this
prospectus, those junior subordinated debentures would be represented by one or
more global securities. The book-entry and depositary arrangements for these
securities would be substantially similar to those described below for the
preferred securities.
RECORDS OF BENEFICIAL INTERESTS
Beneficial interests in a global security will be shown on, and transfers
of the global security will be made only through, records maintained by DTC and
its participants. DTC has provided the trusts and us with the information that
follows. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the United States Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code and a
"clearing agency" registered under the provisions of Section 17A of the
Securities Exchange Act. DTC holds securities that its participants (which it
terms its "direct participants") deposit with DTC. DTC also records the
settlements among direct participants of securities transactions, such as
transfers and pledges, in deposited securities through computerized records for
direct participants' accounts. This eliminates the need to exchange certificates
in definitive form. Direct participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other organizations.
DTC's book-entry system is also used by other organizations such as
securities brokers and dealers, banks and trust companies that work through a
direct participant. The rules that apply to DTC and its participants are on file
with the SEC.
DTC is owned by a number of its direct participants and by the New York
Stock Exchange, Inc., the American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc.
When you purchase preferred securities through the DTC system, the
purchases must be made by or through a direct participant, who will receive
credit for the preferred securities on
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DTC's records. When you purchase the preferred securities, you will be the
beneficial owner. Your ownership interest will only be recorded on the direct
(or indirect) participants' records. DTC will have no knowledge of your
individual ownership of the preferred securities. DTC's records only show the
identity of the direct participants and the amount of the preferred securities
held by or through them. You will not receive a written confirmation of your
purchase or sale or any periodic account statement directly from DTC. Instead
you will receive these from your direct (or indirect) participant. As a result,
the direct (or indirect) participants are responsible for keeping accurate
account of the securities holdings of their customers like you.
WIRING OF PAYMENTS
After a trust issues a new series of preferred securities, the property
trustee will wire payments on the preferred securities to DTC's nominee. We, the
trust and the property trustee will treat DTC's nominee as the owner of each
global security for all purposes. As a result, we, the trust, the property
trustee and any paying agent will have no direct responsibility or liability to
pay amounts due on the global security to you or any other beneficial owners in
the global security.
REDEMPTION
Any redemption notices will be sent by us and the trust directly to DTC,
who will, in turn, inform the direct participants (or the indirect
participants), who will then contact you as a beneficial holder. If less than
all of the preferred securities are being redeemed, DTC will proportionally
allot the amount of the interest of each direct participant to be redeemed.
It is DTC's current practice, upon receipt of any payment of distributions
or liquidation amount, to credit direct participant's accounts on the payment
date based on their holding of beneficial interests in the global securities as
shown on DTC's records. In addition, it is DTC's current practice to assign any
consenting or voting rights to direct participants whose accounts are credited
with preferred securities on a record date, by using an omnibus proxy. Payments
by participants to owners of beneficial interests in the global securities, and
voting by participants, will be based on the customary practices between the
participants and owners of beneficial interests. However, payments will be the
responsibility of the participants and not of DTC, the property trustee, us or
the trust.
EXCHANGES
Preferred securities represented by a global security will be exchangeable
for certificated securities with the same terms in authorized denominations only
if:
- DTC is unwilling or unable to continue as depositary or if DTC ceases to
be a clearing agency registered under applicable law and a successor
depositary is not appointed by the trust within 90 days; or
- the trust decides to discontinue use of the system of book-entry transfer
through DTC (or any successor depositary).
If the book-entry only system is discontinued, the property trustee will keep
the registration books for the preferred securities of each trust at its
corporate office.
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EUROCLEAR AND CLEARSTREAM
Links have been established among DTC, Clearstream and Euroclear, to
facilitate the initial issuance of the preferred securities and cross-market
transfers of the preferred securities associated with secondary market trading.
Although DTC, Clearstream and Euroclear have agreed to the procedures
provided below in order to facilitate transfers of the preferred securities
among their participants, they are under no obligation to perform or continue to
perform such procedures and such procedures may be modified or discontinued at
any time. Clearstream and Euroclear will hold interests on behalf of their
participants through customers' securities accounts in Clearstream's and
Euroclear's names on the books of their respective depositaries (which we refer
to as the "U.S. depositaries"), which in turn will hold such interests in
customers' securities accounts in the depositaries' names on the books of DTC.
When preferred securities are to be transferred from the account of a DTC
participant to the account of a Clearstream participant or a Euroclear
participant, the purchaser must send instructions to Clearstream or Euroclear
through a participant at least one business day prior to settlement. Clearstream
or Euroclear, as the case may be, will instruct the relevant U.S. depositary to
receive the preferred securities against payment. Payment will then be made by
such U.S. depositary to the DTC participant's account against delivery of the
preferred securities. After settlement has been completed, the preferred
securities will be credited to the respective clearing system and by the
clearing system, in accordance with its usual procedures, to the Clearstream
participant's or Euroclear participant's account. Credit for the preferred
securities will appear on the next day (in European time).
Because the settlement is taking place during New York business hours, DTC
participants can employ their usual procedures for sending preferred securities
to the relevant U.S. depositary for the benefit of Clearstream participants or
Euroclear participants. The sale proceeds will be available to the DTC seller on
the settlement date. Thus, to the DTC participant, a cross-market transaction
will settle no differently than a trade between two DTC participants.
Due to the time zone differences in their favor, Clearstream participants
or Euroclear participants may employ their customary procedures for transactions
in which preferred securities are to be transferred by the respective clearing
system through the relevant U.S. depositary to another DTC participant. The
seller must send instructions to Clearstream or Euroclear through a participant
at least one business day prior to settlement. In these cases, Clearstream or
Euroclear will instruct its U.S. depositary to credit the preferred securities
to the DTC participant's account against payment. The payment will then be
reflected in the account of the Clearstream participant or Euroclear participant
the following day, and receipt of the cash proceeds in the Clearstream
participant's or Euroclear participant's account will be back-valued to the
value date (which would be the preceding day, when settlement occurs in New
York). If the Clearstream participant or Euroclear participant has a line of
credit with its respective clearing system and elects to draw on such line of
credit in anticipation of receipt of the sale proceeds in its account, the
back-valuation may substantially reduce or offset any overdraft charged incurred
over the one-day period. If settlement is not completed on the intended value
date (i.e., the trade fails), receipt of the cash proceeds in the Clearstream
participant's or Euroclear participant's account would instead be valued as of
the actual settlement date.
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ERISA MATTERS
We may be considered a "party in interest" within the meaning of the
Employee Retirement Income Security Act of 1974, as amended (which we refer to
as "ERISA"), and a "disqualified person" under corresponding provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), regarding certain
employee benefit plans. Certain transactions between an employee benefit plan
and a party in interest or disqualified person may result in "prohibited
transactions" within the meaning of ERISA and the Code. Any purchaser or
transferee using "plan assets" of an employee benefit plan subject to ERISA, a
plan subject to section 4975 of the Code, a plan subject to provisions under
applicable federal, state, local, non-U.S. or other laws or regulations that are
similar to the provisions of Title I of ERISA or section 4975 of the Code
("Similar Laws") or any entity whose underlying assets include "plan assets" by
reason of any such employee benefit plan's or plan's investment in such entity
(each of which, a "Plan") will be deemed to represent that its purchase and
holding will not result in a non-exempt prohibited transaction under ERISA or
section 4975 of the Code or its equivalent under applicable Similar Laws. Any
employee benefit plan proposing to invest in the preferred securities should
consult with its legal counsel regarding possible prohibited transactions and
the availability of an exemption. Each prospective purchaser and transferee
should consider the issues discussed in the applicable prospectus supplement
regarding prohibited transactions and plan asset treatment (which may include
additional required representations).
PLAN OF DISTRIBUTION
We may sell preferred securities of a trust in any of three ways:
- through underwriters;
- through agents; or
- directly to a limited number of institutional purchasers or to a single
purchaser.
The prospectus supplement for each series of preferred securities will
describe that offering, including:
- the name or names of any underwriters;
- the purchase price and the proceeds to us from that sale;
- any underwriting discounts and other items constituting underwriters'
compensation;
- any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers; and
- any securities exchanges on which the securities of that series may be
listed.
UNDERWRITERS
If underwriters are used in the sale, we will execute an underwriting
agreement with those underwriters. Unless otherwise set forth in the prospectus
supplement, the obligations of the underwriters to purchase preferred securities
will be subject to certain conditions. The underwriters will be obligated to
purchase all of the preferred securities of a series if any are purchased.
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37
The preferred securities will be acquired by the underwriters for their own
account and may be resold by them from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. Underwriters may be deemed to
have received compensation from us in the form of underwriting discounts or
commissions and may also receive commissions from the purchasers of preferred
securities for whom they may act as agent. Underwriters may sell preferred
securities to or through dealers. These dealers may receive compensation in the
form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agent. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
We may authorize underwriters to solicit offers by certain types of
institutions to purchase preferred securities from us at the public offering
price stated in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. If we sell
preferred securities pursuant to these delayed delivery contracts, the
prospectus supplement will state that as well as the conditions to which these
delayed delivery contracts will be subject and the commissions payable for that
solicitation.
AGENTS
We may also sell preferred securities through agents designated by us from
time to time. We will name any agent involved in the offer or sale of the
preferred securities and will list commissions payable by us to these agents in
the applicable prospectus supplement. These agents will be acting on a best
efforts basis to solicit purchases for the period of its appointment, unless we
state otherwise in the prospectus supplement.
DIRECT SALES
We may sell preferred securities directly to purchasers. In this case, we
will not engage underwriters or agents in the offer and sale of preferred
securities.
INDEMNIFICATION
We may indemnify underwriters, dealers or agents who participate in the
distribution of preferred securities against certain liabilities, including
liabilities under the Securities Act, and agree to contribute to payments which
these underwriters, dealers or agents may be required to make.
NO ASSURANCE OF LIQUIDITY
Each series of preferred securities will be a new issue of securities with
no established trading market. Any underwriters that purchase preferred
securities from us may make a market in these preferred securities. The
underwriters will not be obligated, however, to make such a market and may
discontinue market-making at any time without notice to holders of the preferred
securities. As a result, we cannot assure you that there will be liquidity in
the trading market for any preferred securities of any series.
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38
NASD REQUIREMENTS
The underwriting and agency arrangements for any offering of the preferred
securities will comply with the requirements of Rule 2720 of the National
Association of Securities Dealers, Inc. (which we refer to as the "NASD")
regarding an NASD member firm's participation in distributing its affiliate's
securities.
LEGAL OPINIONS
The validity of the junior subordinated debentures and the guarantees will
be passed upon for Comerica Incorporated and the trusts by Mayer, Brown & Platt,
Chicago, Illinois. Certain United States federal income taxation matters also
will be passed upon for Comerica Incorporated and the trusts by Mayer, Brown &
Platt. Certain matters of Delaware law relating to each trust will be passed
upon for the trusts and Comerica Incorporated by Richards, Layton & Finger,
P.A., Wilmington, Delaware.
EXPERTS
The consolidated financial statements of Comerica Incorporated at December
31, 2000 and 1999 and for each of the three years in the period ended December
31, 2000, incorporated by reference in this prospectus and registration
statement from the Form 8-K/A dated June 8, 2001 have been audited by Ernst &
Young LLP, independent auditors, as set forth in their report thereon included
therein, and are incorporated by reference in reliance on such report given on
the authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Imperial Bancorp and subsidiaries
as of December 31, 2000 and 1999 and for each of the years in the three-year
period ended December 31, 2000, incorporated by reference in this prospectus and
registration statement from the Form 8-K/A dated June 8, 2001 have been audited
by KPMG LLP, independent auditors, as set forth in their report thereon included
therein, and upon the authority of such firm as experts in accounting and
auditing.
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39
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an itemization of all fees and expenses incurred or
expected to be incurred by the registrants in connection with the issuance and
distribution of the securities being registered hereby, other than underwriting
discounts and commissions. All but the Securities and Exchange Commission
registration fee are estimates and remain subject to future contingencies.
Securities and Exchange Commission registration fee......... $ 87,500
Legal fees and expenses..................................... 110,000
Accounting fees and expenses................................ 30,000
Trustees' fees and expenses................................. 16,000
Rating Agency fees.......................................... 200,000
Printing and engraving fees and expenses.................... 90,000
Miscellaneous fees and expenses............................. 6,500
--------
Total.................................................. $540,000
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Delaware General Corporation Law authorizes a corporation's Board of
Directors to grant indemnity to officers and directors for certain liabilities,
including reimbursement of expenses incurred, arising under the Securities Act
of 1933, as amended. Article 12 of Comerica Incorporated's Bylaws provides for
indemnification of its officers, directors, employees and other agents to the
maximum extent permitted by Delaware law.
Comerica Incorporated has purchased directors' and officers' liability
insurance covering certain liabilities incurred by its directors in connection
with the performance of their duties.
The declaration of trust of each trust also provides that Comerica
Incorporated shall indemnify the property trustee or any of its affiliates, the
Delaware trustee or any of its affiliates, or any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the property trustee and the Delaware trustee for, and
hold each such person harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and expenses)
of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties under
such declaration of trust.
The declaration of trust of each trust also provides that Comerica
Incorporated will indemnify, to the full extent permitted by law, any
administrative trustee, affiliate of any administrative trustee or any officers,
directors, shareholders, members, partners, employees, representatives or agents
of any administrative trustee or any affiliate thereof; or any officer, employee
or agent of such trust or its affiliates, each such person referred to herein as
a debenture issuer indemnified person, who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such trust) by reason of the fact that he is or
was a debenture issuer indemnified person against expenses (including attorney
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith
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and in a manner he reasonably believed to be in or not opposed to the best
interests of such trust, and, regarding any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the debenture issuer indemnified person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of such trust, and, regarding any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful. The
declaration of trust for each trust also provides that Comerica Incorporated
shall indemnify, to the full extent permitted by law, any debenture issuer
indemnified person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the
trust to procure a judgment in its favor by reason of the fact that he is or was
a debenture issuer indemnified person against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the trust
and except that no such indemnification shall be made in respect of any claim,
issue or matter as to which such debenture issuer indemnified person shall have
been adjudged to be liable to the trust unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such Court
of Chancery or such other court shall deem proper. The declaration of trust of
each trust further provides that expenses (including attorneys' fees) incurred
by a debenture issuer indemnified person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to in the
immediately preceding two sentences shall be paid by Comerica Incorporated in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such debenture issuer indemnified person to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by Comerica Incorporated as authorized in the declaration of
trust.
Any underwriting agreement or agency agreement with respect to an offering
of securities registered hereunder will provide for indemnification of Comerica
Incorporated and its officers and directors who signed this registration
statement by the underwriters or agents, as the case may be, against certain
liabilities including liabilities under the Securities Act of 1933, as amended.
ITEM 16. EXHIBITS
See Exhibit Index.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment
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thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by Comerica Incorporated pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act, as amended (the "Exchange
Act"), that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for purposes of determining any liability under the Securities
Act, each filing of Comerica Incorporated's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of Comerica
Incorporated pursuant to the foregoing provisions, or otherwise, Comerica
Incorporated has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act, and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by a registrant of expenses
incurred or paid by a director, officer or controlling person of such registrant
in the successful defense of any action suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, Comerica Incorporated will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Comerica
Incorporated certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing of Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Detroit, the State of Michigan, on June 15, 2001.
COMERICA INCORPORATED
By: /s/ MARK W. YONKMAN
-----------------------------------
Name: Mark W. Yonkman
--------------------------------
Title: First Vice President,
Assistant
----------------------------------
Secretary and General Counsel-
----------------------------------
Investment Bank & Corporate
Finance
----------------------------------
Each person whose signature appears below hereby constitutes and appoints
the Chairman, President and Chief Executive Officer, any Vice Chairman, the
Chief Financial Officer, the Chief Accounting Officer, the Executive Vice
President, General Counsel and Corporate Secretary or the First Vice President
and Assistant Secretary, or any of them, acting alone, as his or her true and
lawful attorney-in-fact, with full power and authority to execute in the name,
place and stead of each such person in any and all capacities and to file, an
amendment or amendments (including post-effective amendments and filings
pursuant to Rule 462(b) under the Securities Act of 1933, as amended) to this
Registration Statement (and all exhibits thereto) and any documents relating
thereto, which amendments may make such changes in this Registration Statement
as said officer or officers so acting deem(s) advisable.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated and on June 15, 2001.
/s/ EUGENE A. MILLER Chairman, President and Chief Executive
- ------------------------------------------ Officer
Eugene A. Miller (Principal Executive Officer)
/s/ RALPH W. BABB, JR. Vice Chairman and Chief Financial Officer
- ------------------------------------------ (Principal Financial Officer)
Ralph W. Babb, Jr.
/s/ MARVIN J. ELENBAAS Senior Vice President and Controller
- ------------------------------------------ (Chief Accounting Officer)
Marvin J. Elenbaas
/s/ LILLIAN BAUDER Director
- ------------------------------------------
Lillian Bauder
/s/ JAMES F. CORDES Director
- ------------------------------------------
James F. Cordes
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/s/ PETER D. CUMMINGS Director
- ------------------------------------------
Peter D. Cummings
/s/ J. PHILIP DINAPOLI Director
- ------------------------------------------
J. Philip DiNapoli
/s/ ANTHONY EARLEY, JR. Director
- ------------------------------------------
Anthony Earley, Jr.
/s/ MAX M. FISHER Director
- ------------------------------------------
Max M. Fisher
/s/ ROGER FRIDHOLM Director
- ------------------------------------------
Roger Fridholm
/s/ TODD W. HERRICK Director
- ------------------------------------------
Todd W. Herrick
/s/ DAVID BAKER LEWIS Director
- ------------------------------------------
David Baker Lewis
/s/ JOHN D. LEWIS Director
- ------------------------------------------
John D. Lewis
/s/ WAYNE B. LYON Director
- ------------------------------------------
Wayne B. Lyon
/s/ EUGENE A. MILLER Director
- ------------------------------------------
Eugene A. Miller
/s/ ALFRED A. PIERGALLINI Director
- ------------------------------------------
Alfred A. Piergallini
/s/ JOHN W. PORTER Director
- ------------------------------------------
John W. Porter
/s/ HEINZ C. PRECHTER Director
- ------------------------------------------
Heinz C. Prechter
/s/ HOWARD F. SIMS Director
- ------------------------------------------
Howard F. Sims
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/s/ ROBERT S. TAUBMAN Director
- ------------------------------------------
Robert S. Taubman
/s/ WILLIAM P. VITITOE Director
- ------------------------------------------
William P. Vititoe
/s/ MARTIN D. WALKER Director
- ------------------------------------------
Martin D. Walker
/s/ PATRICIA M. WALLINGTON Director
- ------------------------------------------
Patricia M. Wallington
/s/ GAIL L. WARDEN Director
- ------------------------------------------
Gail L. Warden
/s/ KENNETH L. WAY Director
- ------------------------------------------
Kenneth L. Way
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Pursuant to the requirements of the Securities Act of 1933, Comerica
Capital Trust I and Comerica Capital Trust II each certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Detroit, the State of
Michigan, on June 15, 2001.
COMERICA CAPITAL TRUST I
By: Comerica Incorporated, as Sponsor
By: /s/ MARK W. YONKMAN
----------------------------------------
Name: Mark W. Yonkman
-------------------------------------
Title: First Vice President, Assistant
--------------------------------------
Secretary and General Counsel --
--------------------------------------
Investment Bank & Corporate Finance
--------------------------------------
COMERICA CAPITAL TRUST II
By: Comerica Incorporated, as Sponsor
By: /s/ MARK W. YONKMAN
----------------------------------------
Name: Mark W. Yonkman
-------------------------------------
Title: First Vice President, Assistant
--------------------------------------
Secretary and General Counsel --
--------------------------------------
Investment Bank & Corporate Finance
--------------------------------------
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
Exhibit 1* Form of Underwriting Agreement.
Exhibit 4(a) Form of Indenture relating to the Junior Subordinated
Debentures to be entered by and between Comerica
Incorporated and Chase Manhattan Trust Company, N.A., as
Indenture Trustee.
Exhibit 4(b) Form of Guarantee Agreement to be entered by and between
Comerica Incorporated, as Guarantor, and Chase Manhattan
Trust Company, N.A., as Guarantor Trustee, for the benefit
of the holders of Preferred Securities (included as Annex B
to Exhibit 4(a) hereto).
Exhibit 4(c) Form of Junior Subordinated Debenture (included in Article 2
of Exhibit 4(a) hereto).
Exhibit 4(d) Certificate of Trust of Comerica Capital Trust I.
Exhibit 4(e) Certificate of Trust of Comerica Capital Trust II.
Exhibit 4(f) Declaration of Trust of Comerica Capital Trust I.
Exhibit 4(g) Declaration of Trust of Comerica Capital Trust II.
Exhibit 4(h) Form of Amended and Restated Declaration of Trust (included
as Annex A to Exhibit 4(a) hereto).
Exhibit 4(i) Form of Preferred Security Certificate (included as Exhibit
A to Exhibit 4(h) hereto).
Exhibit 4(j) Form of Common Security Certificate (included as Exhibit B
to Exhibit 4(h) hereto).
Exhibit 5(a) Opinion of Richards, Layton & Finger, P.A. as to the
validity of the Preferred Securities of Comerica Capital
Trust I.
Exhibit 5(b) Opinion of Richards, Layton & Finger, P.A. as to the
validity of the Preferred Securities of Comerica Capital
Trust II.
Exhibit 5(c) Opinion of Mayer, Brown & Platt regarding the validity of
the Guarantee and the Junior Subordinated Debentures of each
of Comerica Capital Trust I and Comerica Capital Trust II.
Exhibit 8* Opinion of Mayer, Brown & Platt regarding certain tax
matters.
Exhibit 12(a) Statement of Computation of Consolidated Ratio of Earnings
to Fixed Charges.
Exhibit 12(b) Statement of Computation of Consolidated Ratio of Earnings
to Fixed Charges and Dividends on Preferred Securities.
Exhibit 23(a) Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5(a) hereto).
Exhibit 23(b) Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5(b) hereto).
Exhibit 23(c) Consent of Mayer, Brown & Platt (included in Exhibit 5(c)
hereto).
Exhibit 23(d) Consent of Mayer, Brown & Platt (to be included in Exhibit 8
hereto).
Exhibit 23(e) Consent of Ernst & Young LLP.
Exhibit 23(f) Consent of KPMG LLP.
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EXHIBIT NO. DESCRIPTION
----------- -----------
Exhibit 24 Powers of Attorney (included on the registration statement
signature page).
Exhibit 25(a) Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended ("Form T-1"), of Chase
Manhattan Trust Company, N.A. to act as trustee with respect
to the Junior Subordinated Debentures of Comerica
Incorporated, the Guarantees of Comerica Incorporated with
respect to Comerica Capital Trust I, and the Guarantees of
Comerica Incorporated with respect to Comerica Capital Trust
II.
Exhibit 25(b) Form T-1 of Chase Manhattan Trust Company, N.A., as trustee,
with respect to the Preferred Securities of Comerica Capital
Trust I.
Exhibit 25(c) Form T-1 of Chase Manhattan Trust Company, N.A., as trustee,
with respect to the Preferred Securities of Comerica Capital
Trust II.
- -------------------------
* To be filed by an amendment to the registration statement or incorporated by
reference pursuant to a Current Report on Form 8-K in connection with the
offering of securities.
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