EXHIBIT 1.1
COMERICA INCORPORATED
UNDERWRITING AGREEMENT
Dated the date set forth
in Schedule I hereto
Citigroup Global Markets Inc.
As representative of the several Underwriters
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Comerica Incorporated, a Delaware corporation (the "Company"), proposes
to issue and sell to you and the other underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representative, the principal
amount of its debt securities identified in Schedule I hereto (the "Securities")
to be issued under the indenture (the "Indenture") identified in such Schedule
I, between the Company and the trustee (the "Trustee") identified therein and
having the terms set forth therein. If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I hereto, then the
terms "Underwriters" and "Citigroup" shall each be deemed to refer to such firm
or firms.
1. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to each Underwriter that:
(a) A registration statement in respect of the Securities (the file
number of which is set forth on Schedule I hereto) has been prepared by the
Company in conformity with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder and has been filed with the Commission under the Securities Act in
the form heretofore delivered or to be delivered to Citigroup, and such
registration statement in such form has been declared effective by the
Commission and no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus included in such
registration statement being hereinafter called a "Preliminary Prospectus"); if
any post-effective amendment to such registration statement has been filed with
the Commission prior to the date of this Agreement, the most recent such
amendment has been declared effective by the Commission. As used in this
Agreement, "Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission; "Effective Date" means the date
of the Effective Time; "Registration Statement" means such registration
statement, as amended at the Effective Time, including all material incorporated
by reference therein; "Prospectus" means the form of prospectus relating to the
Securities, as first filed pursuant to Rule 424 ("Rule 424") under the
Securities Act, as such form of prospectus may be supplemented to reflect the
terms of the Securities and the terms of offering thereof; any reference herein
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Securities Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated therein by reference;
and any reference to any amendment to the Registration Statement shall be deemed
to include any annual report of the Company filed with the Commission pursuant
to the Exchange Act after the Effective Date that is incorporated by reference
in the Registration Statement.
(b) The Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects to the
requirements of the Securities Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder, and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any supplement thereto, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall apply only to
amendments or supplements filed or made during the prospectus delivery period;
and provided further, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter through
Citigroup expressly for use in the Prospectus.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act and
the Rules and Regulations or the Exchange Act and the rules and regulations of
the Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; any
further documents so filed and incorporated by reference in the Prospectus or in
any amendments or supplements thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act and the Rules and Regulations
or the Exchange Act and the rules and regulations of the Commission thereunder,
as applicable, and the Rules and Regulations and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall apply only to
documents so filed and incorporated by reference during the period that a
prospectus relating to the Securities is required to be delivered in connection
with sales of such Securities (such period being hereinafter sometimes referred
to as the "prospectus delivery period").
(d) The nationally recognized firms of independent public accountants
whose reports appear in the Company's most recent Annual Report on Form 10-K,
which is incorporated by
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reference in the Prospectus, are independent public accountants as required by
the Securities Act and the Rules and Regulations.
(e) The consolidated financial statements of the Company included or
incorporated by reference in the Prospectus and the Registration Statement
present fairly on a consolidated basis the financial position, the results of
operations, changes in stockholders' equity and cash flows of the Company and
its subsidiaries, as of the respective dates and for the respective periods
indicated, all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved except as
otherwise stated therein or in the notes thereto.
(f) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
and, since such date, there has not been any material adverse change in the
consolidated stockholders' equity or long-term debt of the Company and its
subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus.
(g) The Indenture has been duly authorized, and when duly executed and
delivered by the proper officers of the Company (if not so executed and
delivered prior to the date of this Agreement), will (assuming due execution and
delivery by the Trustee) constitute a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) or an implied covenant of good faith and fair dealing; and the
Securities have been duly authorized, and, when duly executed, authenticated,
issued and delivered as provided in the Indenture, will be duly and validly
issued and outstanding, and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable in accordance
with their terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) or an implied covenant of good
faith and fair dealing; the Indenture has been duly qualified under the Trust
Indenture Act; and the Indenture conforms, and the Securities, when issued and
delivered, will conform, to the description thereof contained in the Prospectus.
(h) Neither the Company nor any of its subsidiaries is in violation of
its corporate charter or by-laws or in default under any agreement, indenture or
instrument, the effect of which violation or default would be material to the
Company and its subsidiaries taken as a whole. The execution, delivery and
performance of this Agreement and the Indenture and the consummation of the
transactions contemplated hereby and thereby will not conflict with, result in
the creation or imposition of any material lien, charge or encumbrance upon any
of the assets of the Company or any of its subsidiaries pursuant to the terms
of, or constitute a default under, any
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material agreement, indenture or instrument, or result in a violation of the
corporate charter or by-laws of the Company or any of its subsidiaries or any
order, rule or regulation of any court or governmental agency having
jurisdiction over the Company, any of its subsidiaries or their respective
properties, except for any such conflicts, defaults or violations of any such
liens, charges or encumbrances as would not individually or in the aggregate
have a material adverse effect on the business, financial condition, results of
operations or prospects of the Company and its subsidiaries taken as a whole.
Except as required by the Securities Act and by applicable state securities laws
in connection with the purchase and distribution of the Securities by the
Underwriters, no consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the execution, delivery
and performance of this Agreement or the Indenture.
(i) The Company and each of its subsidiaries which is a "significant
subsidiary" as defined in Regulation S-X promulgated by the Commission (each, a
"Significant Subsidiary") have been duly organized, are validly existing and in
good standing under the laws of their respective jurisdictions of incorporation,
are duly qualified to do business and in good standing as foreign corporations
in each jurisdiction in which their respective ownership of property or the
conduct of their respective businesses requires such qualification and in which
the failure to qualify would, individually or in the aggregate, have a material
adverse effect on the business, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole. Each of the
Company and its Significant Subsidiaries holds all material licenses, permits,
and certificates from governmental authorities necessary for the conduct of its
business as described in the Prospectus.
(j) All of the outstanding shares of capital stock of the Company are
duly authorized, validly issued and outstanding, fully paid and non-assessable.
Except as may be disclosed in the Registration Statement and the Prospectus, all
outstanding shares of capital stock of the Company's Significant Subsidiaries
(other than directors' qualifying shares, if any) are owned by the Company,
directly or indirectly through subsidiaries, free and clear of any lien, pledge
or encumbrance or any claim of any third party and are duly authorized, validly
issued and outstanding, fully paid and non-assessable (except as provided in 12
U.S.C. Section 55 or any comparable provision of applicable state law).
(k) Except as described in the Registration Statement and the
Prospectus, there are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened against the Company or any of its
subsidiaries or their respective properties which might reasonably be expected
to have a material adverse effect on the business, financial condition, results
of operations or prospects of the Company and its subsidiaries taken as a whole
or which are required to be disclosed in the Registration Statement and the
Prospectus.
(l) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration Statement
by the Securities Act or by the Rules and Regulations which have not been
described in the Prospectus or filed as exhibits to the Registration Statement
or incorporated therein by reference as permitted by the Rules and Regulations.
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(m) The Company is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended; the deposit accounts of each of
the Company's domestic bank subsidiaries are insured by the Federal Deposit
Insurance Corporation (the "FDIC") to the fullest extent permitted by law and
the rules and regulations of the FDIC, and no proceedings for the termination of
such insurance are pending or, to the best of the Company's knowledge,
threatened; and neither the Company nor any of its subsidiaries is party to or
otherwise the subject of any consent decree, memorandum of understanding,
written commitment or other written supervisory agreement with the Board of
Governors of the Federal Reserve System or any other federal or state authority
or agency charged with the supervision or insurance of depositary institutions
or their holding companies.
(n) This Agreement has been duly authorized, validly executed and
delivered by the Company.
(o) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them and have not received any
notice of proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate reasonably be
expected to have a material adverse effect on the business, financial condition,
results of operations or prospects of the Company and its subsidiaries taken as
a whole.
(p) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940.
(q) The conditions for use of Form S-3 by the Company, as set forth in
the General Instructions thereto, have been satisfied.
2. SALE AND PURCHASE OF THE SECURITIES.
The Company agrees to sell to each Underwriter, and each Underwriter,
on the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein stated, agrees to purchase from
the Company, at the purchase price set forth in Schedule I hereto, the principal
amount of Securities set forth opposite the name of such Underwriter in Schedule
II hereto. The obligations of the Underwriters under this Agreement are several
and not joint.
3. DELIVERY AND PAYMENT.
Delivery by the Company of the Securities to Citigroup for the
respective accounts of the several Underwriters and payment by the Underwriters
of the purchase price therefor by wire transfer of immediately available
(federal) funds to an account specified by the Company shall take place at the
office, on the date and at the time specified in Schedule I hereto, which date
and time may be postponed by agreement between Citigroup and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
will be made to Citigroup for the respective accounts of the several
Underwriters by causing The Depository Trust Company to
5
credit the Securities to the account of Citigroup at The Depository Trust
Company, unless Citigroup shall otherwise instruct. The Company agrees to have
the Securities available for inspection by Citigroup at such place as is
designated by Citigroup, not later than 1:00 p.m., New York City time, on the
business day prior to the Closing Date.
The Securities will be represented by one or more definitive global
Securities in book-entry form that will be deposited by or on behalf of the
Company with The Depository Trust Company or its designated custodian. The
Company will cause the certificates representing the Securities to be made
available to Citigroup for inspection not later than 1:00 p.m., New York City
time, on the business day prior to the Closing Date at such place as is
designated by Citigroup. The Securities shall be registered in such names and in
such denominations as Citigroup shall request in writing not less than two full
business days prior to the Closing Date.
4. OFFERING BY UNDERWRITERS.
Upon authorization by Citigroup of the release of the Securities, the
several Underwriters propose to offer the Securities for sale upon the terms and
conditions set forth in the Prospectus.
5. AGREEMENTS.
The Company agrees:
(a) To prepare the Prospectus as amended and supplemented in relation
to the Securities in a form approved by Citigroup and to file such Prospectus
with the Commission pursuant to Rule 424 within the time prescribed therein; to
advise Citigroup promptly of any such filing pursuant to Rule 424; after the
Closing Date and during the prospectus delivery period, prior to the filing with
the Commission of any amendment or supplement to the Registration Statement or
Prospectus, to furnish Citigroup and counsel to the Underwriters with copies
thereof and not to file any such document to which Citigroup shall reasonably
object after having been given reasonable notice of the proposed filing thereof;
to file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and during the prospectus delivery period; and during such same
period to advise Citigroup, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or become
effective or any supplement to the Prospectus or any amended Prospectus has been
filed, or mailed for filing, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any prospectus relating to
the Securities, of the suspension of the qualification of such Securities for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such stop order
or of any such order preventing or suspending the use of any prospectus relating
to the Securities or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) If the delivery of a prospectus is required at any time prior to
the expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of
6
the Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act, the Exchange Act or the Trust Indenture Act, to notify Citigroup
and upon the request of Citigroup to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer in securities as
many copies as Citigroup may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance; and in case any Underwriter is required
to deliver a prospectus in connection with sales of any of such Securities at
any time nine months or more after the time of issue of the Prospectus, upon the
request of Citigroup but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as Citigroup may request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of the
Securities Act;
(c) The Company will deliver to Citigroup, without charge, (i) signed
copies of the Registration Statement relating to the Securities and of any
amendments thereto (including all exhibits filed with, or incorporated by
reference in, any such document) and (ii) as many conformed copies of the
Registration Statement and of any amendments thereto which shall become
effective on or before the Closing Date (excluding exhibits) as Citigroup may
reasonably request;
(d) During the prospectus delivery period, the Company will deliver,
without charge to Citigroup and to Underwriters and dealers, at such office or
offices in New York City as Citigroup may designate, and initially prior to
10:00 a.m. on the business day next succeeding the date of this Agreement, as
many copies of the Prospectus as then amended or supplemented as Citigroup may
reasonably request;
(e) The Company will make generally available to its security holders
and to Citigroup as soon as practicable an earnings statement (which need not be
audited) of the Company and its subsidiaries, covering a period of at least 12
months beginning after the Effective Date (or, if later, the date of the
Company's most recent annual report on Form 10-K which is incorporated by
reference in the Prospectus), which will satisfy the provisions of Section 11(a)
of the Securities Act (including, at the option of the Company, Rule 158
thereunder);
(f) The Company will furnish such information, execute such instruments
and take such actions as may be required to qualify the Securities for offering
and sale under the laws of such jurisdictions as Citigroup may designate and
will maintain such qualifications in effect so long as required for the
distribution of the Securities; provided, however, that the Company shall not be
required to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general service of
process in any jurisdiction where it is not now so subject;
7
(g) So long as any Securities are outstanding, the Company will furnish
or cause to be furnished to Citigroup, unless available on EDGAR, copies of all
annual reports and current reports filed with the Commission on Forms 10-K, 10-Q
and 8-K, or such other similar forms as may be designated by the Commission and
such other documents, reports and information as shall be furnished by the
Company to the holders of the Securities;
(h) For a period beginning at the time of execution of this Agreement
and ending on the Closing Date, without the prior consent of Citigroup, the
Company will not offer, sell, contract to sell or otherwise issue any debt
securities of the Company having a maturity of greater than one year; and
(i) To apply the net proceeds from the sale of the Securities being
sold by the Company as set forth in the Prospectus.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS.
The obligations of the Underwriters to purchase the Securities shall be
subject to the accuracy in all material respects of the representations and
warranties on the part of the Company contained herein as of the date hereof and
the Closing Date, to the accuracy of any material statements made in any
certificates, opinions, affidavits, written statements or letters furnished to
Citigroup or to Mayer, Brown, Rowe & Maw ("Underwriters' Counsel") pursuant to
this Section 6, to the performance by the Company of its respective obligations
hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing by
the Rules and Regulations and in accordance with Section 5(a) of this Agreement.
(b) No order suspending the effectiveness of the Registration
Statement, as amended from time to time, or suspending the qualification of the
Indenture, shall be in effect and no proceedings for such purpose shall be
pending before or threatened by the Commission and any requests for additional
information on the part of the Commission (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to the
reasonable satisfaction of Citigroup.
(c) The Company shall have furnished to Citigroup the opinion of Mark
W. Yonkman, Esq., the Company's Senior Vice President, Assistant Secretary and
General Counsel - Investment Bank and Corporate Finance, dated the Closing Date,
to the effect that:
(i) The Company has been duly organized and is validly
existing and in good standing under the laws of the State of Delaware with all
requisite corporate power and authority to own and operate its properties and to
conduct its business as described in the Prospectus.
(ii) The Securities and the Indenture conform in all material
respects to the descriptions thereof contained in the Prospectus.
(iii) The Indenture has been duly authorized, validly executed
and delivered by the Company, has been duly qualified under the Trust Indenture
Act and (assuming due
8
execution and delivery thereof by the Trustee) constitutes a legal, valid and
binding instrument enforceable against the Company in accordance with its terms,
subject to the effects of bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance and other laws relating to or affecting creditors' rights
generally and to general principles of equity (whether considered in a
proceeding in equity or at law) and by an implied covenant of good faith and
fair dealing; and the Securities have been duly authorized, validly executed,
issued and delivered and (assuming due authentication thereof by the Trustee)
constitute legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture, subject to the effects of bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance and other laws relating to or
affecting creditors' rights generally and to general principles of equity
(whether considered in a proceeding in equity or at law) and by an implied
covenant of good faith.
(iv) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated in this Agreement and the Indenture, except for such
consents, approvals, authorizations or orders as have been obtained under the
Securities Act and the Trust Indenture Act and such as may be required under the
Exchange Act and the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters.
(v) Such counsel does not know of any contracts or other
documents which are required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed as exhibits
to the Registration Statement or incorporated therein by reference as permitted
by the Rules and Regulations.
(vi) This Agreement has been duly authorized, validly executed
and delivered by the Company; the execution, delivery and performance of this
Agreement and the Indenture by the Company will not conflict with, or result in
the creation or imposition of any material lien, charge or encumbrance upon any
of the assets of the Company or any of its subsidiaries pursuant to the terms
of, or constitute a default under, any material agreement, indenture or
instrument known to such counsel and to which the Company or any of its
subsidiaries is a party or is bound or to which any of their respective
properties are subject, or result in a violation of the corporate charter or
by-laws of the Company or any of its subsidiaries or any order, rule or
regulation known to such counsel of any court or governmental agency having
jurisdiction over the Company, any of its subsidiaries or any of their
respective properties, which would have a material adverse effect on the
business, financial condition, results of operations or prospects of Company and
its subsidiaries taken as a whole.
(vii) The Registration Statement has become effective under
the Securities Act, any required filing of the Prospectus and any supplements
thereto pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b), and, to the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose is pending or threatened by the
Commission.
(viii) The Registration Statement, the Prospectus and each
amendment thereof or supplement thereto (except that no opinion need be
expressed as to the financial statements or
9
other financial or statistical data or the Form T-1 of the Trustee under the
Trust Indenture Act included or incorporated by reference therein) comply as to
form in all material respects with the requirements of the Securities Act and
the Rules and Regulations; the documents incorporated by reference in the
Prospectus (other than the financial statements or other financial or
statistical data included or incorporated by reference therein, as to which no
opinion need be expressed), when they were filed with the Commission, complied
as to form in all material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder; and the Indenture
conforms in all material respects to the requirements of the Trust Indenture Act
and the applicable rules and regulations of the Commission thereunder.
(ix) Each of the Company's subsidiaries which is a Significant
Subsidiary is a duly organized and validly existing corporation in good standing
under the laws of the jurisdiction of its incorporation with all requisite
corporate power and authority to own and operate its properties and to conduct
its business as described in the Prospectus. Each of the Company and each
Significant Subsidiary is duly qualified to do business as a foreign corporation
in each jurisdiction in which the nature of the business conducted by it or in
which the ownership or holding by lease of the properties owned or held by it
require such qualification and where the failure to so qualify would, either
individually or in the aggregate, have a material adverse effect on the
business, financial condition, results of operations or prospects of the Company
and its subsidiaries taken as a whole.
(x) All of the outstanding shares of capital stock of each of
the Company's Significant Subsidiaries have been duly and validly authorized and
issued and are fully paid and non-assessable (except as provided by 12 U.S.C.
Section 55 or any comparable provision of applicable state law) and, except for
directors' qualifying shares, are owned of record and, to the best knowledge of
such counsel, beneficially by the Company or a subsidiary of the Company free
and clear, to the best of such counsel's knowledge, of any claims, liens,
encumbrances or security interests.
(xi) Such counsel does not know of any legal or governmental
proceeding pending or threatened against the Company or any of its subsidiaries
which would affect the subject matter of this Agreement or is required to be
disclosed in the Prospectus which is not disclosed and correctly summarized
therein.
(xii) The Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended; and the deposit accounts
of each of the Company's domestic bank subsidiaries which is a Significant
Subsidiary are insured by the FDIC to the fullest extent permitted by law and
the rules and regulations of the FDIC, and no proceedings for the termination of
such insurance are pending or, to the best of such counsel's knowledge,
threatened.
(xiii) The Company is not, and after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940.
Such opinion shall also contain a statement that although such counsel
is not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the
10
statements contained in the Registration Statement and the Prospectus
(except as to those matters stated in paragraph (ii) of such opinion), such
counsel has no reason to believe that (i) the Registration Statement, as of its
effective date or as of the date hereof, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading or
(ii) the Prospectus as of its date and as of the Closing Date contains any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that no opinion
need be expressed as to the financial statements or other financial or
statistical data or the Form T-1 included or incorporated by reference therein).
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent such counsel deems proper, upon certificates or affidavits of officers of
the Company, the Trustee and public officials.
(d) Citigroup shall have received from Underwriters' Counsel such
opinion or opinions, dated the Closing Date, with respect to the issuance and
sale of the Securities, the Registration Statement, the Prospectus and other
related matters as Citigroup may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(e) The Company shall have furnished to Citigroup a certificate of its
Chief Executive Officer, its President or any Executive Vice President and its
Chief Financial Officer or Treasurer, dated as of the Closing Date, to the
effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the Closing
Date with the same effect as if made on the Closing Date, and the Company has
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the Closing Date.
(ii) To the best of their knowledge after due inquiry, no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or threatened.
(iii) In their opinion, (x) the Registration Statement, as of
its effective date, did not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, (y) the Prospectus does not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and (z) since the effective date of the Registration Statement there
has not occurred any event required to be set forth in an amended or
supplemented prospectus which has not been so set forth.
(f) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus or (ii)
since such date there shall not have been any change in the capital stock or
long-term debt of the Company
11
or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, whether or not arising from transactions in the
ordinary course of business, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is, in the judgment of Citigroup, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus.
(g) Citigroup shall have received on the Closing Date a letter, dated
the Closing Date, in form and substance satisfactory to Citigroup, from Ernst &
Young LLP, confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, and stating, as of the Closing Date (or, with
respect to matters involving changes or developments since the respective dates
as of which specified information is given in the Prospectus, as of a date not
more than five days prior to Closing Date), the conclusions and findings of such
firm with respect to the financial information and other matters as provided in
SAS No. 72. References to the Prospectus in this paragraph (g) include any
supplement thereto at the Closing Date.
(h) Citigroup shall have received on the Closing Date a letter, dated
the Closing Date, from KPMG LLP in respect of the consolidated statements of
income, changes in shareholders' equity and comprehensive income, and cash flows
of Imperial Bancorp and its subsidiaries for the year ended December 31, 2000
addressed to the Underwriters in form and substance satisfactory to Citigroup.
(i) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of a possible change that does not
indicate the direction of the possible change, in the rating accorded any of the
Company's debt securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) of the
Rules and Regulations.
(j) Citigroup shall have received from the Company such further
information, certificates and documents as they may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions, letters and certificates mentioned above or elsewhere
in this Agreement shall not be in all material respects reasonably satisfactory
in form and substance to Citigroup and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by Citigroup. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
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7. EXPENSES.
(a) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, the Company will pay all costs and
expenses incident to the performance of the obligations of the Company
hereunder, including, without limiting the generality of the foregoing, (i) all
costs, taxes and expenses incident to the issuance, sale and delivery of the
Securities to the Underwriters, (ii) all fees and expenses of the Company's
counsel and accountants, (iii) all costs and expenses incident to the preparing,
printing and filing of the Registration Statement (including all exhibits
thereto), the Prospectus and any amendments thereof or supplements thereto and
the Indenture, and the rating of the Securities by one or more rating agencies,
(iv) all costs and expenses (including fees of Underwriters' counsel and their
disbursements) incurred in connection with blue sky qualifications and the
filing requirements, if any, of the National Association of Securities Dealers,
Inc. in connection with its review of corporate financings, (v) the fee for
listing the Securities on any exchange, (vi) the fees and expenses of the
Trustee and (vii) all costs and expenses of the printing and distribution of all
documents in connection with such offering. Except as provided in this Section
7, the Company will have no responsibility to the Underwriters for the
Underwriters' own costs and expenses, including the fees of Underwriters'
Counsel and any advertising expenses in connection with any offer the
Underwriters may make.
(b) If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof, the Company will, subject to demand by Citigroup,
reimburse the Underwriters for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. INDEMNIFICATION.
(a) The Company shall indemnify and hold harmless each Underwriter, its
directors, its officers and its employees and each person, if any, who controls
any Underwriter within the meaning of the Securities Act or Exchange Act, from
and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Securities), to
which that Underwriter, director, officer, employee or controlling person may
become subject, under the Securities Act, the Exchange Act or otherwise, insofar
as such loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, as originally filed or in any amendment
thereof, or in any Preliminary Prospectus, any preliminary prospectus
supplement, the Prospectus or in any amendment thereof or supplement thereto,
(ii) the omission or alleged omission to state therein any material fact
required to be stated therein or necessary to make the statements therein not
misleading or (iii) any act or failure to act or any alleged act or failure to
act by any Underwriter in connection with, or relating in any manner to, the
Securities or the offering contemplated hereby, and which is included as part of
or referred to in any loss, claim, damage, liability or action arising out of or
based upon matters covered by clause (i) or (ii) above (provided that the
Company shall not be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction that such
loss, claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or
13
omitted to be taken by such Underwriter through its gross negligence or willful
misconduct), and shall reimburse each Underwriter and each such director,
officer, employee and controlling person promptly upon demand for any legal or
other expenses reasonably incurred by that Underwriter, director, officer,
employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that (i) the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company through Citigroup by or on behalf of any Underwriter specifically for
inclusion therein and (ii) such indemnity with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Prospectus at or prior to
the confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Securities Act and the untrue statement or
omission of a material fact contained in any Preliminary Prospectus was
corrected in the Prospectus, unless such failure to deliver the Prospectus was a
result of noncompliance by the Company with Section 5(d) hereof. For purposes of
the proviso in the preceding sentence, the term "Prospectus" shall not be deemed
to include the documents incorporated therein by reference, and no Underwriter
shall be obligated to send or give any supplement or amendment to any document
incorporated by reference in any Preliminary Prospectus or Prospectus to any
person other than a person to whom such Underwriter had delivered such
incorporated document or documents in response to a written request therefor.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of its directors and
each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company or any such director, officer or controlling person may become subject,
under the Securities Act, the Exchange Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained (A) in
the Registration Statement, as originally filed or in any amendment thereof, or
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Prospectus or in any amendment thereof or supplement thereto, or (B) in any Blue
Sky Application or (ii) the omission or alleged omission to state therein any
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company through Citigroup by or on behalf of that Underwriter specifically for
inclusion therein, and shall reimburse the Company and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have.
14
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such indemnified
parties, which firm shall be designated in writing by Citigroup, if the
indemnified parties under this Section 8 consist of any Underwriter or any of
their respective directors, officers, employees or controlling persons, or by
the Company, if the indemnified parties under this Section consist of the
Company or any of the Company's directors, officers, employees or controlling
persons. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 8(a) and 8(b), shall use its best efforts to cooperate
with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld),
15
but if settled with its written consent or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss of liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (a) in such proportion
as shall be appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters on the other from the offering of the
Securities or (b) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other with respect to such offering shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Securities purchased under this Agreement (before deducting
expenses) received by the Company, on the one hand, and the total underwriting
discounts and commissions received by the Underwriters with respect to the
Securities purchased under this Agreement, on the other hand, bear to the total
gross proceeds from the offering of the Securities under this Agreement, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriters, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 8(d) were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public was offered to the public exceeds the amount of any
damages which such Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting obligations and not
joint.
16
(e) The Underwriters severally confirm that the statements with respect
to the public offering of the Securities set forth on the cover page of, and
under the caption "Underwriting" in the Prospectus are correct and constitute
the only information furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Prospectus.
9. DEFAULT BY AN UNDERWRITER.
If any one or more Underwriters shall fail to purchase and pay for all
of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the principal amount of Securities set forth
opposite their names in Schedule II hereto bear to the aggregate principal
amount of Securities set opposite the names of the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate principal
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate principal amount of the
Securities, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such non-defaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any non-defaulting Underwriters or
the Company. In the event the remaining Underwriters elect to purchase the
Securities which the defaulting Underwriter or Underwriters agreed to purchase
as set forth in this Section 9, the Closing Date may be postponed for such
period, not exceeding seven days, as Citigroup shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing herein contained shall
relieve any defaulting Underwriter of its liability, if any, to the Company and
any non-defaulting Underwriter for damages occasioned by its default hereunder.
10. TERMINATION.
This Agreement shall be subject to termination in the absolute
discretion of Citigroup, by notice given to the Company at or prior to delivery
of and payment for all the Securities, if, prior to such time (i) trading in
securities generally on the New York Stock Exchange or in the over-the-counter
market, or trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or materially limited or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall have
been declared by Federal or state authorities, (iii) there shall have occurred
any outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war or other calamity or crisis or (iv) there shall have
occurred a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial markets
in the United States shall be such), the effect of which, in any such case
described in clauses (iii) or (iv), is to make it, in the sole judgment of
Citigroup, impracticable or inadvisable to proceed with the public offering or
delivery of the Securities on the terms and in the manner contemplated in the
Prospectus.
17
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY.
The respective agreements, representations, warranties, indemnities and
other statements of the Company or its officers (as such officers) and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of its officers or directors or any
controlling person within the meaning of the Securities Act, and will survive
delivery of the payment for the Securities.
12. NOTICES.
All communications hereunder will be in writing, and, if sent to
Citigroup will be mailed, delivered, telecopied and confirmed to them, at the
address specified in Schedule I hereto; or, if sent to the Company will be
mailed, delivered, telecopied and confirmed to it at Comerica Tower at One
Detroit Center, 500 Woodward Avenue, Suite 3100, Detroit, Michigan 48226,
Attention: Elizabeth S. Acton, Chief Financial Officer; Telephone: (313)
222-9391; Telecopy: (313) 964-0638.
13. SUCCESSORS.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their successors and, to the extent and only to the extent
stated in Section 8 hereof, the officers, directors, employees and controlling
persons referred to in Section 8 hereof, and except as provided in Section 8
hereof, no person other than the parties hereto and their respective successors
will have any right or obligation hereunder.
14. APPLICABLE LAW.
This Agreement will be governed by and construed in accordance with the
laws of the State of New York.
18
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
COMERICA INCORPORATED
By: /s/ Ronald D. Marks
--------------------------------------------
Name: Ronald D. Marks
Title: Senior Vice President and Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Jeffrey A. Drake
--------------------------------------------
Name: Jeffrey A. Drake
Title: Vice President
As representative of the
several Underwriters named
in Schedule II annexed
hereto.
19
SCHEDULE I
DATE OF UNDERWRITING AGREEMENT: May 1, 2003
REGISTRATION STATEMENT NO.: 333-04297
CITIGROUP ADDRESS:
Citigroup Global Markets Inc.
Attn: General Counsel
388 Greenwich Street
New York, New York 10013
Fax: (212) 816-7912
INDENTURE, TITLE, PURCHASE PRICE AND DESCRIPTION OF SECURITIES:
Indenture: Indenture dated as of May 1, 2003, with JPMorgan Chase Bank
as trustee
Title: 4.80% Subordinated Notes due 2015
Principal amount: $300,000,000
Price to public: 99.541% plus accrued interest, if any, from May 6, 2003
Purchase price: 98.866% plus accrued interest, if any, from May 6, 2003
Interest rate: 4.80%
Time of payment of interest: May 1 and November 1
Maturity: May 1, 2015
CLOSING DATE, TIME AND LOCATION:
Date: May 6, 2003
Time: 9:00 a.m., Chicago time
Location: Mayer, Brown, Rowe & Maw
190 South LaSalle Street
Chicago, Illinois 60603
20
SCHEDULE II
PRINCIPAL AMOUNT
OF SECURITIES
UNDERWRITERS TO BE PURCHASED
Citigroup Global Markets Inc..................... $174,000,000
Comerica Securities, Inc......................... $42,000,000
Credit Suisse First Boston LLC................... $42,000,000
J.P. Morgan Securities Inc....................... $42,000,000
TOTAL: $300,000,000
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