EXHIBIT 1.1
EXECUTION COPY
CITIZENS FUNDING TRUST I
7.50% Enhanced Trust Preferred Securities
Fully and unconditionally guaranteed on a junior subordinated basis,
as described in the Prospectus, by
CITIZENS BANKING CORPORATION
UNDERWRITING AGREEMENT
SEPTEMBER 26, 2006
UNDERWRITING AGREEMENT
September 26, 2006
Morgan Stanley & Co. Incorporated
UBS Securities LLC
as Managing Underwriters
c/o UBS Securities LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
Citizens Funding Trust I, a statutory trust organized under the laws
of the State of Delaware (the "Trust"), a subsidiary of Citizens Banking
Corporation, a Michigan corporation (the "Company" and, together with the
Trust, the "Offerors"), proposes to issue and sell to the several underwriters
named in Schedule A hereto (the "Underwriters"), for whom you are acting as
representatives, $150,000,000 aggregate liquidation amount of 7.50% Enhanced
Trust Preferred Securities (liquidation amount $25 per trust preferred security)
issued by the Trust (the "Securities"). The Securities are described in the
Prospectus that is referred to below.
The Securities are to be issued under an amended and restated trust
agreement (the "Trust Agreement"), to be dated as of the Closing Date, among the
Company, as depositor, U.S. Bank National Association, as property trustee (the
"Property Trustee"), U.S. Bank Trust National Association, as Delaware trustee
(the "Delaware Trustee"), and two individuals who are officers or employees of
the Company, as administrative trustees (the "Administrative Trustees" and,
together with the Property Trustee and the Delaware Trustee, the "Trustees"),
and the holders from time to time of undivided beneficial interests in the
assets of the Trust. The Securities will be guaranteed by the Company on a
junior subordinated basis with respect to distributions and amounts payable upon
liquidation or redemption (the "Guarantee"), to the extent described in the
Prospectus, pursuant to a guarantee agreement, to be dated as of the Closing
Date (the "Guarantee Agreement"), between the Company and U.S. Bank National
Association, as guarantee trustee (the "Guarantee Trustee").
The Trust will use the proceeds from the sale of the Securities
together with the proceeds from the sale of its common securities (the "Common
Securities") to the Company to purchase $150,010,000 aggregate principal amount
of 7.50% Junior Subordinated Debentures due 2066 (the "Junior Subordinated
Debentures") issued by the Company pursuant to the provisions of a junior
subordinated indenture to be dated as of the Closing Date (the "Indenture"), as
supplemented by a first supplemental indenture to be dated as of the Closing
Date (the "First Supplemental Indenture") between the Company and U.S. Bank
National Association, as trustee (the "Indenture Trustee").
The Offerors have prepared and filed in respect of the Securities, in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations
promulgated thereunder (collectively, the "Act"), with the Securities and
Exchange Commission (the "Commission") an "automatic shelf registration
statement" (as defined in Rule 405 under the Act) on Form S-3 (File No.
333-137490) (the "registration statement"), including a prospectus, which
registration statement incorporates by reference documents which the Company has
filed, or will file, in accordance with the provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(collectively, the "Exchange Act"). Such registration statement, and any post
effective amendment thereto, became effective on filing.
Except where the context otherwise requires, "Registration Statement",
as used herein, means the registration statement, as amended at the time of such
registration statement's effectiveness for purposes of Section 11 of the Act, as
such section applies to the respective Underwriters (the "Effective Time"),
including (i) all documents filed as a part thereof or incorporated or deemed to
be incorporated by reference therein and (ii) any information contained or
incorporated by reference in a prospectus filed with the Commission pursuant to
Rule 424(b) under the Act, to the extent such information is deemed, pursuant to
Rule 430B under the Act, to be part of the registration statement at the
Effective Time.
The Offerors have furnished to you, for use by the Underwriters and by
dealers in connection with the offering of the Securities, copies of one or more
preliminary prospectus supplements, and the documents incorporated by reference
therein, relating to the Securities. Except where the context otherwise
requires, "Pre-Pricing Prospectus", as used herein, means each such preliminary
prospectus supplement, in the form so furnished, including any basic prospectus
(whether or not in preliminary form) furnished to you by the Offerors and
attached to or used with such preliminary prospectus supplement. Except where
the context otherwise requires, "Basic Prospectus", as used herein, means any
such basic prospectus and any basic prospectus furnished to you by the Offerors
and attached to or used with the Prospectus Supplement (as defined below).
Except where the context otherwise requires:
- "Pricing Prospectus", as used herein, means the Pre-Pricing
Prospectus (including the related Basic Prospectus), as amended
and supplemented immediately prior to the Applicable Time;
- "Prospectus Supplement", as used herein, means the final
prospectus supplement, relating to the Securities, filed by the
Offerors with the Commission pursuant to Rule 424(b) under the
Act on or before the second business day after the date hereof
(or such earlier time as may be required under the Act), in the
form furnished by the Offerors to you for use by the Underwriters
and by dealers in connection with the offering of the Securities;
and
- "Prospectus", as used herein, means the Prospectus Supplement
together with the Basic Prospectus attached to or used with the
Prospectus Supplement.
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"Permitted Free Writing Prospectuses", as used herein, means the
documents listed on Schedule B attached hereto and each "road show" (as defined
in Rule 433 under the Act), if any, related to the offering of the Securities
contemplated hereby that is a "written communication" (as defined in Rule 405
under the Act). Each Underwriter severally covenants and agrees with the
Offerors that such Underwriter has not offered or sold and will not offer or
sell, without the Company's prior written consent, any Securities by means of
any "free writing prospectus" (as defined in Rule 405 under the Act) (other than
one or more term sheets containing customary information which in their final
form will not be inconsistent with Exhibit C hereof) where the use or reference
to such free writing prospectus would require the filing of any "issuer
information" (as defined in Rule 433 under the Act), other than a Permitted Free
Writing Prospectus.
"Pricing Disclosure Package", as used herein, means the Pricing
Prospectus as supplemented by the final term sheet prepared and filed pursuant
to Section 4(b) hereof, taken together with each Permitted Free Writing
Prospectus, as of 11:00 a.m. (Eastern time) on the date of this Agreement (the
"Applicable Time").
Any reference herein to the Registration Statement, any Basic
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to
and include the documents, if any, incorporated by reference, or deemed to be
incorporated by reference, therein (the "Incorporated Documents"), including,
unless the context otherwise requires, the documents, if any, filed as exhibits
to such Incorporated Documents. Any reference herein to the terms "amend",
"amendment" or "supplement", with respect to the Registration Statement, any
Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to
and include the filing of any document under the Exchange Act on or after the
initial effective date of the Registration Statement, or the date of such Basic
Prospectus, such Pre-Pricing Prospectus, the Prospectus Supplement, the
Prospectus or such Permitted Free Writing Prospectus, as the case may be, and
deemed to be incorporated therein by reference.
As used in this Agreement, "business day" shall mean a day on which
the New York Stock Exchange (the "NYSE") is open for trading. The terms
"herein", "hereof", "hereto", "hereinafter" and similar terms, as used in this
Agreement, shall in each case refer to this Agreement as a whole and not to any
particular section, paragraph, sentence or other subdivision of this Agreement.
The term "or", as used herein, is not exclusive.
The Offerors and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Trust
agrees to issue and sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Trust the
number of Securities set forth opposite the name of such Underwriter in Schedule
A attached hereto, subject to adjustment in accordance with Section 8 hereof, in
each case at a purchase price of $25.00 per Security. The Offerors are advised
by you that the Underwriters intend (i) to make a public offering of their
respective portions of the Securities as soon after the effectiveness of this
Agreement as in your judgment is advisable and
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(ii) initially to offer the Securities upon the terms set forth in the
Prospectus. You may from time to time increase or decrease the public offering
price after the initial public offering to such extent as you may determine.
In consideration of such purchases on the Closing Date, the proceeds
of which will be used to purchase the Junior Subordinated Debentures, the
Offerors shall pay to the Underwriters as compensation, in immediately available
funds, on the Closing Date, an aggregate of $4,480,625.
2. Payment and Delivery. Payment of the purchase price for the
Securities shall be made to the Company, on behalf of the Trust, by Federal
Funds wire transfer against delivery of the Securities to you through the
facilities of The Depository Trust Company ("DTC") for the respective accounts
of the Underwriters. Such payment and delivery shall be made at 10:00 a.m., New
York City time, on October 3, 2006 (such time being referred to herein as the
"Time of Purchase", and such date being referred to herein as the "Closing
Date") (unless another time shall be agreed to by you and the Offerors or unless
postponed in accordance with the provisions of Section 8 hereof). Electronic
transfer of the Securities shall be made to you at the Time of Purchase in such
names and in such denominations as you shall specify.
Deliveries of the documents described in Section 6 hereof with respect
to the purchase of the Securities shall be made at the offices of Sullivan &
Cromwell LLP at 125 Broad Street, New York, New York, 10004, at 9:00 a.m., New
York City time, on the date of closing of the Securities.
3. Representations and Warranties of the Offerors. The Company
represents and warrants to and agrees with each of the Underwriters, and the
Trust represents, warrants to and agrees with each of the Underwriters with
respect to matters relating to the Trust, that:
(a) the Registration Statement has heretofore become effective under
the Act; no stop order of the Commission preventing or suspending the use
of any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus
Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the
effectiveness of the Registration Statement, has been issued, and no
proceedings for such purpose have been instituted or, to the Offerors'
knowledge, threatened by the Commission;
(b) the Registration Statement complied when it became effective,
complies as of the date hereof and, as amended or supplemented, at the Time
of Purchase in connection with any sale of Securities, will comply, in all
material respects, with the requirements of the Act; the conditions to the
use of Form "S-3" in connection with the offering and sale of the
Securities as contemplated hereby have been satisfied; the Registration
Statement constitutes an "automatic shelf registration statement" (as
defined in Rule 405 under the Act); the Offerors have not received from the
Commission a notice, pursuant to Rule 401(g)(2) under the Act, of objection
to the use of the automatic shelf registration statement form; as of the
determination date applicable to the Registration Statement (and any
amendment thereof) and the offering contemplated hereby, the Company is a
"well-known seasoned issuer" as defined in Rule 405 under the Act; the
Registration Statement did not, as of the Effective Time, contain an untrue
statement of a
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material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; each
Pre-Pricing Prospectus complied, at the time it was filed with the
Commission, and complies as of the date hereof, in all material respects
with the requirements of the Act; each Pre-Pricing Prospectus and any
amendment or supplement thereto, as of its date and the date it was filed
with the Commission, and the Pricing Prospectus, as then amended or
supplemented as of the Applicable Time, in each case when read together
with the then issued Permitted Free Writing Prospectuses and the
information in Schedule C hereto, did not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; each of the Prospectus Supplement and the
Prospectus will comply, as of the date that it is filed with the
Commission, the date of the Prospectus Supplement, the Time of Purchase in
connection with any sale of Securities, in all material respects, with the
requirements of the Act (in the case of the Prospectus, including, without
limitation, Section 10(a) of the Act); at no time during the period that
begins on the earlier of the date of the Prospectus Supplement and the date
the Prospectus Supplement is filed with the Commission and ends at the
later of the Time of Purchase and the end of the period during which a
prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Securities did or will the Prospectus, as then
amended or supplemented, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; each Permitted Free Writing Prospectus does not conflict in any
material respect with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus and, each Permitted
Free Writing Prospectus, when read together with the Pricing Prospectus,
any other Permitted Free Writing Prospectuses then issued and the
information in Schedule C hereto, as of the Applicable Time, did not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Offerors make no representation or warranty in this
Section 3(b) with respect to any statement contained in or omission from
the Registration Statement, any Pre-Pricing Prospectus, the Prospectus or
any Permitted Free Writing Prospectus in reliance upon and in conformity
with information concerning an Underwriter and furnished in writing by or
on behalf of such Underwriter through you to the Offerors expressly for use
in the Registration Statement, such Pre-Pricing Prospectus, the Prospectus
or such Permitted Free Writing Prospectus; each Incorporated Document, at
the time such document was filed with the Commission or at the time such
document became effective, as applicable, complied, in all material
respects, with the requirements of the Exchange Act and did not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(c) prior to the execution of this Agreement, the Offerors have not,
directly or indirectly, offered or sold any Securities by means of any
"prospectus" (within the meaning of the Act) or used any "prospectus"
(within the meaning of the Act) in connection with the offer or sale of the
Securities other than the Pre-Pricing Prospectuses
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and the Permitted Free Writing Prospectuses, if any; neither Offeror is an
"ineligible issuer" (as defined in Rule 405 under the Act) for the purposes
of Rules 164 and Rule 433 under the Act with respect to the offer of the
Securities; and the Offerors have complied with the requirements of Rule
163, Rule 164 and Rule 433 under the Act applicable to any Permitted Free
Writing Prospectus;
(d) as of the date set forth in the Prospectus, the Company has an
outstanding capitalization as set forth in the section of the Pricing
Prospectus and the Prospectus entitled "Capitalization" (and any similar
sections or information, if any, contained in any Permitted Free Writing
Prospectus); the Securities are duly listed, and admitted and authorized
for trading, subject to official notice of issuance, on the New York Stock
Exchange (the "NYSE")";
(e) the Company has been duly incorporated and is an existing
corporation under the laws of the State of Michigan, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Pricing Disclosure Package; and the Company is
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except for such
failure to qualify that would not, individually or in the aggregate, have a
material adverse effect on (i) the Trust, (ii) the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole or (iii) the consummation of any of the
transactions contemplated by the Pricing Disclosure Package or this
Agreement (a "Material Adverse Effect");
(f) each of Citizens Bank, F&M Bank - Iowa and Citizens Bank Wealth
Management, N.A. (the "Significant Subsidiaries") has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, and each of the
Significant Subsidiaries has the corporate power and authority to own its
property and to conduct its business as described in the Pricing Disclosure
Package and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not have a
Material Adverse Effect; all of the issued shares of capital stock of each
Subsidiary have been duly and validly authorized and issued, are fully paid
and non-assessable and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims; the Company
has no "significant subsidiaries" as defined in Rule 1-02(w) of the
Commission's Regulation S-X, other than the Significant Subsidiaries;
(g) the Trust has been duly formed and is validly existing in good
standing as a statutory trust under the Delaware Act, is and will be
treated as a "grantor trust" for federal income tax purposes under existing
law, has the statutory trust power and authority to conduct its business as
presently conducted and as described in the Pricing Disclosure Package, and
to perform its obligations hereunder and in the Trust Agreement, is not
required to be authorized to do business in any other jurisdiction, and is
not a party
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to or otherwise bound by any agreement other than those described in the
Pricing Disclosure Package;
(h) this Agreement has been duly authorized, executed and delivered by
the Company and the Trust and is a valid and binding agreement of the
Company and the Trust enforceable in accordance with its terms (except as
limited by (i) bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) equitable principles of general applicability);
(i) the Junior Subordinated Debentures have been duly authorized by
the Company and, when validly issued, executed and delivered by the Company
and authenticated in accordance with the provisions of the Indenture and
the First Supplemental Indenture, will be entitled to the benefits of the
Indenture and the First Supplemental Indenture, and will be valid and
binding obligations of the Company, enforceable in accordance with their
terms except as limited by (i) bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) equitable principles of
general applicability;
(j) the Common Securities have been duly authorized on behalf of the
Trust by the Company, as depositor of the Trust, and upon delivery by the
Trust to the Company against payment therefor as set forth in the Trust
Agreement, will be duly and validly issued and non-assessable beneficial
interests in the Trust and will conform to the description thereof
contained in the Pricing Disclosure Package and the Prospectus; the
issuance of the Common Securities is not subject to preemptive or other
similar rights; the Common Securities conform to the description thereof
contained in the Pricing Disclosure Package; and at the Time of Delivery
all of the issued and outstanding Common Securities will be directly owned
by the Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity;
(k) the Guarantee Agreement, the Trust Agreement, the Junior
Subordinated Debentures, the Indenture and the First Supplemental Indenture
(together, the "Company Agreements") have each been duly authorized and
when validly executed and delivered by the Company and, in the case of the
Guarantee Agreement, by the Guarantee Trustee, in the case of the Trust
Agreement, by the Trustees (as defined in the Trust Agreement) and, in the
case of the Indenture, by the Indenture Trustee, and, in the case of the
Junior Subordinated Debentures, when validly issued by the Company and duly
authenticated and delivered by the Indenture Trustee, will constitute valid
and legally binding obligations of the Company, enforceable in accordance
with their respective terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles; the
Trust Agreement, the Indenture and the Guarantee have each been duly
qualified under the Trust Indenture Act; the Junior Subordinated Debentures
are entitled to the benefits of the Indenture and the First Supplemental
Indenture; and the Company Agreements, which will be in substantially the
form filed as an exhibit to the Registration Statement, will conform to the
descriptions thereof in the Pricing Disclosure Package and the Prospectus;
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(l) the Securities have been duly and validly authorized for issuance
by the Trust and, when authenticated in the manner provided for in the
Trust Agreement and issued and delivered against payment therefor as
provided herein, will be duly and validly issued and (subject to the terms
of the Trust Agreement) fully paid and non-assessable undivided beneficial
interests in the assets of the Trust, not subject to any preemptive or
other similar rights, and will conform as to legal matters in all material
respects to the descriptions thereof contained in the Pricing Disclosure
Package; holders of the Securities will be entitled to the same limitation
of personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware;
(m) Ernst & Young LLP are independent public accountants with respect
to the Company as required by the Securities Act;
(n) none of the Company, each Subsidiary or the Trust is in violation
of its respective organizational documents or in default in any material
respect in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or other evidence of indebtedness
material to the Company and its subsidiaries, taken as a whole, or the
Trust, or in any other agreement, indenture or instrument material to the
conduct of the business of the Company and its subsidiaries, taken as a
whole, to which the Company or any of the Significant Subsidiaries is a
party or by which it or any of the Significant Subsidiaries or their
respective property is bound;
(o) the execution, delivery and performance of this Agreement, the
Trust Agreement, the Securities, the Indenture, the First Supplemental
Indenture, the Guarantee Agreement and the Junior Subordinated Debentures
and compliance by the Company and the Trust with all the provisions hereof
and thereof and the consummation by the Company and the Trust of the
transactions contemplated hereby and thereby will not require any consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except as such may be
required under the securities or Blue Sky laws of the various states) and
will not conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws of the Company or
any of the Significant Subsidiaries or the Trust Agreement or any material
indenture, agreement, or other instrument to which it or any of the
Significant Subsidiaries is a party or by which it or any of the
Significant Subsidiaries or their respective property is bound, or violate
or conflict with any laws, administrative regulations or rulings or court
decrees applicable to the Trust, the Company, any of the Significant
Subsidiaries or their respective property;
(p) the execution, delivery and performance of this Agreement, the
issuance and sale of the Securities and the Common Securities, and the
consummation of the transactions contemplated herein and therein and
compliance by the Trust with its obligations hereunder and thereunder have
been duly authorized by all necessary action (corporate or otherwise) on
the part of the Trust and do not and will not result in any violation of
the Trust Agreement or Certificate of Trust for the Trust, dated as of
September 19, 2006 (the "Certificate of Trust"), and do not and will not
conflict with, or result in a breach of any of the terms or provisions of,
or constitute a default under, or
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result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Trust under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to
which the Trust is a party or by which it may be bound or to which any of
its properties may be subject or (B) any existing applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, or any regulatory body or
administrative agency or other governmental body having jurisdiction over
the Trust or any of its properties (except for conflicts, breaches,
violations or defaults which would not, individually or in the aggregate,
have a Material Adverse Effect);
(q) the Company and each of the Significant Subsidiaries and the Trust
are in compliance in all material respects with all laws administered by
and regulations of the Board of Governors of the Federal Reserve System,
the Federal Deposit Insurance Corporation, the Office of Thrift Supervision
and any other federal or state bank regulatory authority with jurisdiction
over the Company or any of its subsidiaries (the "Bank Regulatory
Authorities"), other than where such failures to comply would not have a
Material Adverse Effect;
(r) there are no written agreements or other written statements as
described under 12 U.S.C. 1818(u) between any federal banking agency and
the Company or any of its subsidiaries (whether or not such federal banking
agency has determined that publication would be contrary to the public
interest) and except as disclosed to the Underwriters, there are no
material agreements, memoranda of understanding, cease and desist orders,
orders of prohibition or suspension or consent decrees between any federal
or state regulatory authority and the Company or any of its subsidiaries;
(s) the Company and the Significant Subsidiaries possess all
certificates, licenses, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, and neither the Company nor any of the
Significant Subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such certificate, license,
authorization or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would have a Material
Adverse Effect; each of the Company and the Significant Subsidiaries is in
material compliance will all applicable federal, state or foreign bank
regulatory requirements, laws and regulations;
(t) except as disclosed in the Pricing Disclosure Package and except
for such failure that would not individually or in the aggregate have a
Material Adverse Effect, the Company and its subsidiaries have good and
marketable title to all real properties and all other properties and assets
owned by them, in each case free from liens, encumbrances and defects that
would affect the value thereof or interfere with the use made or to be made
thereof by them; and except as disclosed in the Pricing Disclosure Package
and except for such failure that would not individually or in the aggregate
have a Material Adverse Effect, the Company and its subsidiaries hold all
leased real or personal property under valid and enforceable leases with no
exceptions that would interfere with the use made or to be made thereof by
them;
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(u) each of the Administrative Trustees is an employee of the Company;
(v) no authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale of the Common Securities or the offering of the
Securities, the Junior Subordinated Debentures or the Guarantee hereunder,
except (i) such as will have been obtained or made prior to the Time of
Purchase and (ii) as may be required under state securities or "blue sky"
laws;
(w) neither of the Offerors is, and upon the issuance and sale of the
Securities pursuant to this Agreement, neither of the Offerors will be,
required to register as an "investment company" as such term is defined in
the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(x) except as otherwise set forth in the Pricing Disclosure Package,
there are no material legal or governmental proceedings pending to which
the Company or any of its subsidiaries (including the Trust) is a party or
of which any of their respective property is the subject, and, to the best
of the Company's knowledge, no such proceedings are threatened or
contemplated; no contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement is not so described or filed as
required;
(y) the financial statements of the Company (including the related
notes and supporting schedules) included or incorporated by reference in
the Pricing Disclosure Package present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown in such
financial statements, and, except as otherwise disclosed in the Pricing
Disclosure Package, such financial statements have been prepared in
conformity with the generally accepted accounting principles in the United
States applied on a consistent basis;
(z) the pro forma condensed combined financial statements of the
Company and Republic Bancorp, Inc. and the related notes thereto included
in the Pricing Prospectus under the caption "Citizens Banking Corporation
and Republic Bancorp Inc. Unaudited Pro Forma Condensed Combined Financial
Information" have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have been
properly presented on the bases described therein, and the assumptions used
in the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions referred to therein; and
the pro forma financial information of the Company and Republic Bancorp,
Inc. and the related notes thereto included in the Pricing Prospectus under
the caption "Citizens Banking Corporation and Republic Bancorp Inc.
Unaudited Pro Forma Condensed Combined Financial Information" present
fairly the information set forth therein on the bases described therein,
and the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
referred to therein;
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(aa) the Company maintains (i) effective internal control over
financial reporting as defined in Rule 13a-15 under the Exchange Act, and
(ii) a system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance with
the management's general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (C) access to assets is permitted only in accordance
with management's general or specific authorization; and (D) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences;
(bb) based on its most recent evaluation of its internal control over
financial reporting undertaken pursuant to the requirements of the
Securities Act, the Company is not aware of (i) any significant deficiency
or material weakness in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect the
Company's ability to record, process, summarize and report financial
information; or (ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the Company's
internal control over financial reporting;
(cc) the operations of the Company and its subsidiaries are and have
been conducted at all times in material compliance with applicable
financial recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively,
the "Money Laundering Laws"); and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any
arbitrator or non-governmental authority involving the Company or any of
its subsidiaries with respect to the Money Laundering Laws is pending or,
to the Company's knowledge, threatened;
(dd) neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently subject to
any U.S. sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department ("OFAC"); and the Company will not directly or
indirectly use the proceeds of the offering of the Securities contemplated
hereby, or lend, contribute or otherwise make available such proceeds to
any subsidiary, joint venture partner or other person or entity for the
purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC;
(ee) to the Company's knowledge, there are no affiliations or
associations between (i) any member of the NASD and (ii) the Company or any
of the Company's officers, directors or 5% or greater security holders or
any beneficial owner of the Company's unregistered equity securities that
were acquired at any time on or after the 180th day immediately preceding
the date the Registration Statement was initially filed with the
Commission, except as disclosed in the Registration Statement (excluding
the exhibits thereto), the Pre-Pricing Prospectuses and the Prospectus;
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(ff) prior to the date hereof, neither the Company nor any of its
affiliates has taken any action which is designed to or which has
constituted or which could reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
in connection with the offering of the Securities; and
(gg) except as disclosed in the Pricing Disclosure Package, since the
date of the latest financial statements included or incorporated by
reference in the Pricing Disclosure Package there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole, and, except as disclosed in or contemplated by Pricing
Disclosure Package, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock,
other than ordinary and customary cash dividends.
In addition, any certificate signed by any officer of the Company or
any of its subsidiaries and delivered to the Underwriters or counsel for
the Underwriters in connection with the offering of the Securities shall be
deemed to be a representation and warranty by the Company, as to matters
covered thereby, to each Underwriter.
4. Certain Covenants of the Offerors. The Offerors jointly and
severally agree:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Securities for offering and sale under the
securities or blue sky laws of such states or other jurisdictions as you
may reasonably designate and to maintain such qualifications in effect so
long as you may request for the distribution of the Securities; provided,
however, that neither Offeror shall be required to qualify as a foreign
corporation or to consent to the service of process under the laws of any
such jurisdiction (except service of process with respect to the offering
and sale of the Securities); and to advise you promptly of the receipt by
either Offeror of any notification with respect to the suspension of the
qualification of the Securities for offer or sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose;
(b) to prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
date of this Agreement; to make no further amendment or any supplement to
the Registration Statement, the Basic Prospectus or the Prospectus prior to
the Time of Purchase that shall be reasonably disapproved by you promptly
after reasonable notice thereof; to advise you, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any amendment or
supplement to the Prospectus has been filed and to furnish you with copies
thereof; to prepare a final term sheet, containing solely a description of
the Securities, in the form set forth in Schedule C hereto and to file such
term sheet pursuant to Rule 433(d) under the Act within the time required
by such Rule; to file promptly all other material required to be filed by
the Offerors with the Commission pursuant to Rule 433(d) under the Act;
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(c) to make available to the Underwriters in New York City, as soon as
practicable after this Agreement becomes effective, and thereafter from
time to time to furnish to the Underwriters, as many copies of the
Prospectus (or of the Prospectus as amended or supplemented if the Company
shall have made any amendments or supplements thereto after the effective
date of the Registration Statement) as the Underwriters may reasonably
request for the purposes contemplated by the Act;
(d) if, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the Registration Statement, to
be filed with the Commission and become effective before the Securities may
be sold, the Offerors will use their reasonable best efforts to cause such
post-effective amendment or such Registration Statement to be filed and
become effective, and will pay any applicable fees in accordance with the
Act, as soon as possible; and the Offerors will advise you promptly and, if
requested by you, will confirm such advice in writing, (i) when such
post-effective amendment or such Registration Statement has become
effective, and (ii) if Rule 430A under the Act is used, when the Prospectus
is filed with the Commission pursuant to Rule 424(b) under the Act (which
the Offerors agree to file in a timely manner in accordance with such
Rules);
(e) if, at any time during the period when a prospectus is required by
the Act to be delivered (whether physically or through compliance with Rule
172 under the Act or any similar rule) in connection with the offering and
sale of Securities, the Registration Statement shall cease to comply with
the requirements of the Act with respect to eligibility for the use of the
form on which the Registration Statement was filed with the Commission or
the Registration Statement shall cease to be an "automatic shelf
registration statement" (as defined in Rule 405 under the Act) or either of
the Offerors shall have received, from the Commission, a notice, pursuant
to Rule 401(g)(2), of objection to the use of the form on which the
Registration Statement was filed with the Commission, to (i) notify you
promptly, (ii) file promptly with the Commission a new registration
statement under the Act relating to the Securities, or a post-effective
amendment to the Registration Statement, which new registration statement
or post-effective amendment shall comply with the requirements of the Act
and shall be in a form reasonably satisfactory to you, (iii) use their
reasonable best efforts to cause such new registration statement or
post-effective amendment to become effective under the Act as soon as
practicable, (iv) promptly notify you of such effectiveness and (v) take
all other action necessary or appropriate to permit the public offering and
sale of the Securities to continue as contemplated in the Prospectus (in
each case at the Company's expense at any time up to nine months after the
date hereof, and at the expense of the Underwriters thereafter); all
references herein to the Registration Statement shall be deemed to include
each such new registration statement or post-effective amendment, if any;
(f) if the third anniversary of the initial effective date of the
Registration Statement (within the meaning of Rule 415(a)(5) under the Act)
shall occur at any time during the period when a prospectus is required by
the Act to be delivered (whether physically or through compliance with Rule
172 under the Act or any similar rule) in connection with the offering and
sale of Securities, to file with the Commission, prior to such third
anniversary, a new registration statement under the Act relating to the
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Securities, which new registration statement shall comply with the
requirements of the Act (including, without limitation, Rule 415(a)(6)
under the Act) and shall be in a form reasonably satisfactory to you; such
new registration statement shall constitute an "automatic shelf
registration statement" (as defined in Rule 405 under the Act); provided,
however, that if the Offerors are not then eligible to file an "automatic
shelf registration statement" (as defined in Rule 405 under the Act), then
such new registration statement need not constitute an "automatic shelf
registration statement" (as defined in Rule 405 under the Act), but the
Offerors shall use their reasonable best efforts to cause such new
registration statement to become effective under the Act as soon as
practicable, but in any event within 180 days after such third anniversary
and promptly notify you of such effectiveness; the Offerors shall take all
other action necessary or appropriate to permit the public offering and
sale of the Securities to continue as contemplated in the Prospectus; all
references herein to the Registration Statement shall be deemed to include
each such new registration statement, if any; provided, that at any action
required to be taken by the Offerors pursuant to this paragraph shall be at
the Company's expense at any time up to nine months after the date hereof,
and at the expense of the Underwriters thereafter;
(g) to advise you promptly, confirming such advice in writing, of any
request by the Commission for amendments or supplements to the Registration
Statement, any Pre-Pricing Prospectus, the Prospectus or any Permitted Free
Writing Prospectus or for additional information with respect thereto, or
of notice of institution of proceedings for, or the entry of a stop order,
suspending the effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the effectiveness of the
Registration Statement, to use the Offerors' reasonable best efforts to
obtain the lifting or removal of such order as soon as possible; to advise
you promptly of any proposal to amend or supplement the Registration
Statement, any Pre-Pricing Prospectus or the Prospectus, and to provide you
and Underwriters' counsel copies of any such documents (other than
amendments consisting solely of one or more reports, statements or other
documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of
the Exchange Act) for review and comment a reasonable amount of time prior
to any proposed filing and to file no such amendment or supplement to which
you shall object in writing;
(h) to file promptly all reports and documents and any preliminary or
definitive proxy or information statement required to be filed by the
Offerors with the Commission in order to comply with the Exchange Act for
so long as a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Securities;
(i) to pay the fees applicable to the Registration Statement in
connection with the offering of the Securities within the time required by
Rule 456(b)(1)(i) under the Act (without reliance on the proviso to Rule
456(b)(1)(i) under the Act) and in compliance with Rule 456(b) and Rule
457(r) under the Act;
(j) to advise the Underwriters promptly of the happening of any event
within the period during which a prospectus is required by the Act to be
delivered (whether
-14-
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with the offering and sale of the Securities, which
event could require the making of any change in the Prospectus then being
used so that the Prospectus would not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
are made, not misleading, and to advise the Underwriters promptly if,
during such period, it shall become necessary to amend or supplement the
Prospectus to cause the Prospectus to comply with the requirements of the
Act, and, in each case, during such time, subject to Section 4(f) hereof,
promptly to prepare and furnish, (at the Company's expense at any time up
to nine months after the date hereof, and at the expense of the
Underwriters thereafter) to the Underwriters such amendments or supplements
to such Prospectus as may be necessary to reflect any such change or to
effect such compliance;
(k) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will satisfy
the provisions of Section 11(a) of the Act) covering a period of twelve
months beginning after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act) as soon as is reasonably practicable
after the termination of such twelve-month period;
(l) to furnish to you two copies of the Registration Statement, as
initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto and documents incorporated by reference
therein) and sufficient copies of the foregoing (other than exhibits) for
distribution of a copy to each of the other Underwriters, in each case only
to the extent such documents are not publicly available on the Commission's
EDGAR database;
(m) to apply the net proceeds from the sale of the Securities and the
Junior Subordinated Debentures in the manner set forth under the caption
"Use of Proceeds" in the Prospectus Supplement;
(n) that the Company will pay all costs, expenses, fees and taxes in
connection with (i) the preparation and filing of the Registration
Statement, each Basic Prospectus, each Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus, each Permitted Free Writing
Prospectus and any amendments or supplements thereto, and the printing and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (ii) the registration, issue,
sale and delivery of the Securities to the Underwriters, including any
stock or transfer taxes and stamp or similar duties payable upon issuance
of the Junior Subordinated Debentures and the sale thereof to the Trust or
the sale, issuance or delivery of the Securities to the Underwriters, (iii)
the producing, word processing and/or printing of this Agreement, any
Agreement Among Underwriters, any dealer agreements, any powers of attorney
and any closing documents (including compilations thereof) and the
reproduction and/or printing and furnishing of copies of each thereof to
the Underwriters and (except closing documents) to dealers (including costs
of mailing and shipment), (iv) the qualification of the Securities for
offering and sale under state or foreign laws and the determination of
their eligibility for investment under state or foreign law (including the
reasonable legal fees and filing fees and other disbursements of counsel
for the Underwriters) and the printing and furnishing
-15-
of copies of any blue sky surveys or legal investment surveys to the
Underwriters and to dealers, (v) any listing of the Securities on any
securities exchange or qualification of the Securities for quotation on the
NYSE and any registration thereof under the Exchange Act, (vi) any filing
for review of the public offering of the Securities by the NASD, including
the legal fees and filing fees and other disbursements of counsel to the
Underwriters relating thereto, (vii) the fees and disbursements of any
transfer agent or registrar for the Securities, (viii) the costs and
expenses of the Company relating to presentations or meetings undertaken in
connection with the marketing of the offering and sale of the Securities to
prospective investors and the Underwriters' sales forces, including,
without limitation, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged with the
Company's prior approval in connection with the road show presentations,
travel, lodging and other expenses incurred by the officers of the Company
and any such consultants, and the cost of any aircraft chartered in
connection with the road show and (ix) the performance of the Offerors'
other obligations hereunder. It is understood, however, that except as
provided in this Section, and Sections 5 and 9, the Underwriters will pay
all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they make;
(o) with respect to the offering of the Securities to comply with Rule
433(d) under the Act (without reliance on Rule 164(b) under the Act) and
with Rule 433(g) under the Act;
(p) not, at any time at or after the execution of this Agreement,
directly or indirectly, to offer or sell any Securities by means of any
"prospectus" (within the meaning of the Act), or use any "prospectus"
(within the meaning of the Act) in connection with the offer or sale of the
Securities, in each case other than the Prospectus;
(q) not to, and to cause the each of its direct and indirect
subsidiaries not to, take, directly or indirectly, any action designed, or
which will constitute, or has constituted, or might reasonably be expected
to cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities;
(r) beginning on the date hereof and ending on, and including, the
earlier of (1) the date that is 60 days after the date of the Prospectus
Supplement or (2) the date on which the Underwriters notify the Company
that they have completed the distribution of the Securities, without the
prior written consent of the Underwriters, not to (i) issue, sell, offer to
sell, contract or agree to sell, hypothecate, pledge, grant any option to
purchase or otherwise dispose of or agree to dispose of, directly or
indirectly, or establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of Section 16 of
the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, with respect to, any Securities or any other
securities of the Trust or the Company that are substantially similar to
the Securities, or any securities convertible into or exchangeable or
exercisable for, or any warrants or other rights to purchase, the
foregoing, (ii) file or cause to become effective a registration statement
under the Act relating to the offer and sale of any Securities or any other
-16-
securities of the Trust or the Company that are substantially similar to
the Securities, or any securities convertible into or exchangeable or
exercisable for, or any warrants or other rights to purchase, the
foregoing, (iii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership
of the Securities or any other securities of the Trust or the Company that
are substantially similar to the Securities, or any securities convertible
into or exchangeable or exercisable for, or any warrants or other rights to
purchase, the foregoing, whether any such transaction is to be settled by
delivery of Securities or such other securities, in cash or otherwise or
(iv) publicly announce an intention to effect any transaction specified in
clause (i), (ii) or (iii), except, in each case, for the registration of
the offer and sale of the Securities as contemplated by this Agreement;
(s) to use its reasonable best efforts to cause the Securities to be
listed on the NYSE and to maintain the listing of the Securities on the
NYSE; and
(t) to maintain a transfer agent and, if necessary under applicable
law, a registrar for the Junior Subordinated Debentures; and to maintain a
transfer agent and depositary for the Securities.
5. Reimbursement of Underwriters' Expenses. If the Securities are not
delivered for any reason other than the termination of this Agreement pursuant
to the fifth paragraph of Section 8 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company
shall, in addition to paying the amounts described in Section 4(n) hereof,
reimburse the Underwriters for all of their reasonably incurred out-of-pocket
expenses, including the fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of each of the Offerors on the date hereof and at the
Time of Purchase and to the following additional conditions precedent:
(a) The Company shall furnish to you at the Time of Purchase an
opinion of Wachtell, Lipton, Rosen & Katz, counsel for the Company,
addressed to the Underwriters, and dated the Time of Purchase, with
executed copies for each of the Underwriters, and in form and substance
reasonably satisfactory to you, substantially in the form set forth in
Exhibit A hereto.
(b) The Company shall furnish to you at the Time of Purchase an
opinion of Richards, Layton & Finger, P.A., special Delaware counsel for
the Company and the Trust, addressed to the Underwriters, and dated the
Time of Purchase, with executed copies for each of the Underwriters, and in
form and substance reasonably satisfactory to you, substantially in the
form set forth in Exhibit B hereto.
(c) The Company shall furnish to you at the Time of Purchase an
opinion of Thompson Hine LLP, special counsel for U.S. Bank Trust National
Association, as Delaware Trustee and U.S. Bank National Association as
Property Trustee, Indenture Trustee and Guarantee Trustee, addressed to the
Underwriters, and dated the Time of
-17-
Purchase, with executed copies for each of the Underwriters, and in form
and substance reasonably satisfactory to you, substantially in the form set
forth in Exhibit C hereto.
(d) The Company shall furnish to you at the Time of Purchase an
opinion of Thomas W. Gallagher, General Counsel of the Company, addressed
to the Underwriters, and dated the Time of Purchase, with executed copies
for each of the Underwriters, and in form and substance reasonably
satisfactory to you, substantially in the form set forth in Exhibit D
hereto.
(e) You shall have received from Ernst & Young LLP letters dated,
respectively, the date of this Agreement and the Time of Purchase and
addressed to the Underwriters (with executed copies for each of the
Underwriters) in the forms reasonably satisfactory to UBS, which letters
shall cover, without limitation, the various financial disclosures
contained in the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any.
(f) You shall have received at the Time of Purchase the favorable
opinion of Sullivan & Cromwell LLP, counsel for the Underwriters, dated the
Time of Purchase, in form and substance reasonably satisfactory to you.
(g) At the Time of Purchase, at least one "nationally recognized
statistical rating organization" (as defined for purposes of Rule 435(g)
under the Securities Act), has rated the Securities in one of its four
highest categories.
(h) No Prospectus or amendment or supplement to the Registration
Statement or the Prospectus shall have been filed to which you shall have
reasonably objected in writing.
(i) The Registration Statement shall have been filed and shall have
become effective under the Act. The Prospectus Supplement shall have been
filed with the Commission pursuant to Rule 424(b) under the Act at or
before 5:30 p.m., New York City time, on the second full business day after
the date of this Agreement (or such earlier time as may be required under
the Act).
(j) Prior to and at the Time of Purchase, (i) no stop order with
respect to the effectiveness of the Registration Statement shall have been
issued under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto shall
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; (iii) the Prospectus, and all amendments
or supplements thereto, shall not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they are
made, not misleading; (iv) neither the Pricing Disclosure Package, nor any
amendment or supplement thereto, shall include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
are made, not misleading; and (v) none of the Permitted Free Writing
Prospectuses, if any, when read
-18-
together with the Pricing Disclosure Package shall include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they are made, not misleading.
(k) The Company will, at the Time of Purchase, deliver to you a
certificate of its Chief Executive Officer and its Chief Financial Officer
in the form attached as Exhibit E hereto.
(l) The Trust will, at the Time of Purchase, deliver to you a
certificate of an Administrative Trustee in the form attached as Exhibit F
hereto.
(m) The Company shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement, the Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus as of the Time of Purchase as you may
reasonably request.
(n) The Securities shall have been approved for listing on the NYSE,
subject only to notice of issuance at or prior to the Time of Purchase.
(o) The National Association of Securities Dealers, Inc. (the "NASD")
shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the
transactions, contemplated hereby.
7. Effective Date of Agreement; Termination. This Agreement shall
become effective when the parties hereto have executed and delivered this
Agreement.
The obligations of the several Underwriters hereunder shall be subject
to termination in your absolute discretion, if (1) since the time of execution
of this Agreement or the earlier respective dates as of which information is
given in the Registration Statement, the Pricing Prospectuses, the Prospectus
and the Permitted Free Writing Prospectuses, if any, there has been any change
or any development involving a prospective change in the business, properties,
management, financial condition or results of operations of the Company and its
subsidiaries (including the Trust) taken as a whole, otherwise than as set forth
or contemplated in the Registration Statement, Pricing Prospectus, the
Prospectus or the Permitted Free Writing Prospectuses, the effect of which
change or development is, in your sole judgment, so material and adverse as to
make it impractical or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in the
Registration Statement, the Pricing Prospectus, the Prospectus and the Permitted
Free Writing Prospectuses, if any, or (2) since the time of execution of this
Agreement, there shall have occurred: (A) a suspension or material limitation in
trading in securities generally on the NYSE, the American Stock Exchange or the
NASDAQ; (B) a suspension or material limitation in trading in the Company's
common stock on the NASDAQ; (C) a general moratorium on commercial banking
activities declared by either federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States; (D) an outbreak or escalation of hostilities or
acts of terrorism involving the United States or a declaration by the United
States of a national emergency or war; or (E) any other calamity or crisis or
any change in financial, political or economic conditions in the United States
or
-19-
elsewhere, if the effect of any such event specified in clause (D) or (E), in
your sole judgment, makes it impractical or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the manner
contemplated in the Registration Statement, the Pricing Prospectus, the
Prospectus and the Permitted Free Writing Prospectuses, if any, or (3) since the
time of execution of this Agreement, there shall have occurred any downgrading,
or any notice or announcement shall have been given or made of: (A) any intended
or potential downgrading or (B) any watch, review or possible change that does
not indicate an affirmation or improvement in the rating accorded any securities
of or guaranteed by the Company or any of its subsidiaries by any "nationally
recognized statistical rating organization", as that term is defined in Rule
436(g)(2) under the Act.
If you elect to terminate this Agreement as provided in this Section
7, the Company and each other Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the Securities, as contemplated by
this Agreement, is not carried out by the Underwriters for any reason permitted
under this Agreement, or if such sale is not carried out because either of the
Offerors shall be unable to comply with any of the terms of this Agreement, the
Offerors shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 4(n), 5 and 9 hereof), and the
Underwriters shall be under no obligation or liability to the Offerors under
this Agreement (except to the extent provided in Section 9 hereof) or to one
another hereunder.
8. Increase in Underwriters' Commitments. Subject to Sections 6 and 7
hereof, if any Underwriter shall default in its obligation to take up and pay
for the Securities to be purchased by it hereunder (otherwise than for a failure
of a condition set forth in Section 6 hereof or a reason sufficient to justify
the termination of this Agreement under the provisions of Section 7 hereof) and
if the number of Securities which all Underwriters so defaulting shall have
agreed but failed to take up and pay for does not exceed 10% of the total number
of Securities, the non-defaulting Underwriters (including the Underwriters, if
any, substituted in the manner set forth below) shall take up and pay for (in
addition to the aggregate number of Securities they are obligated to purchase
pursuant to Section 1 hereof) the number of Securities agreed to be purchased by
all such defaulting Underwriters, as hereinafter provided. Such Securities shall
be taken up and paid for by such non-defaulting Underwriters in such amount or
amounts as you may designate with the consent of each Underwriter so designated
or, in the event no such designation is made, such Securities shall be taken up
and paid for by all non-defaulting Underwriters pro rata in proportion to the
aggregate number of Securities set forth opposite the names of such
non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Securities hereunder unless all of the Securities are purchased by
the Underwriters (or by substituted Underwriters selected by you with the
approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the Time of Purchase for a period
-20-
not exceeding five business days in order that any necessary changes in the
Registration Statement and the Prospectus and other documents may be effected.
The term "Underwriter" as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in Schedule A hereto.
If the aggregate number of Securities which the defaulting Underwriter
or Underwriters agreed to purchase exceeds 10% of the total number of Securities
which all Underwriters agreed to purchase hereunder, and if neither the
non-defaulting Underwriters nor the Company shall make arrangements within the
five business day period stated above for the purchase of all the Securities
which the defaulting Underwriter or Underwriters agreed to purchase hereunder,
this Agreement shall terminate without further act or deed and without any
liability on the part of the Offerors to any Underwriter and without any
liability on the part of any non-defaulting Underwriter to the Offerors. Nothing
in this paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
9. Indemnity and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter, its partners, directors and officers, and any
person who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or arise out of or are
based upon any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or (ii) any untrue statement or alleged untrue statement of
a material fact included in any Prospectus (the term Prospectus for the
purpose of this Section 9 being deemed to include any Basic Prospectus, any
Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and any
amendments or supplements to the foregoing), in any Permitted Free Writing
Prospectus or in any "issuer information" (as defined in Rule 433 under the
Act) of the Company which is filed or required to be filed pursuant to Rule
433(d) under the Act, or arise out of or are based upon any omission or
alleged omission to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration
Statement, Prospectus, Permitted Free Writing Prospectus or any amendment
or supplement thereto in reliance upon and in conformity with written
-21-
information furnished to the Offerors by or on behalf of an Underwriter
expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Offerors,
their directors and officers, and any person who controls the Offerors
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, against any losses, claims, damages or liabilities to which either
Offeror or any such person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in, and in conformity
with information concerning such Underwriter furnished in writing by or on
behalf of such Underwriter through you to the Offerors, as identified in
Section 10, expressly for use in, the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof
by the Offerors), or arise out of or are based upon any omission or alleged
omission to state a material fact in such Registration Statement in
connection with such information, which material fact was not contained in
such information and which material fact was required to be stated in such
Registration Statement or was necessary to make such information not
misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in, and in conformity with information concerning
such Underwriter furnished in writing by or on behalf of such Underwriter
through you to the Offerors, as identified in Section 10, expressly for use
in, a Prospectus or a Permitted Free Writing Prospectus, or arise out of or
are based upon any omission or alleged omission to state a material fact in
such Prospectus or Permitted Free Writing Prospectus in connection with
such information, which material fact was not contained in such information
and which material fact was necessary in order to make the statements in
such information, in the light of the circumstances under which they were
made, not misleading, and will reimburse the Offerors for any legal or
other expenses reasonably incurred by them in connection with investigating
or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall promptly notify the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs
of investigation. No
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indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
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. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then
each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Offerors on
the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Offerors on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering of Securities
(before deducting expenses) received by the Trust bear to the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the Prospectus Supplement. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Offerors on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Offerors and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were 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 account of the
equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include 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 subsection (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 investors were
offered to investors exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
-23-
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in proportion
to their respective underwriting obligations and not joint.
(e) The obligations of the Offerors under this Section 9 shall be in
addition to any liability which the Offerors may otherwise have and shall
extend, upon the same terms and conditions, to any affiliate of each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of the Act; and the obligations of the Underwriters under this
Section 9 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person,
if any, who controls either Offeror within the meaning of the Act.
10. Information Furnished by the Underwriters. The statements set
forth under the caption "Underwriting" in the Prospectus Supplement, only
insofar as such statements relate to the amount of selling concession and
reallowance or to stabilization activities that may be undertaken by the
Underwriters, constitute the only information furnished by or on behalf of the
Underwriters, as such information is referred to in Sections 3 and 9 hereof.
11. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram or facsimile
and, if to the Underwriters, shall be sufficient in all respects if delivered or
sent to UBS Securities LLC, 299 Park Avenue, New York, NY 10171-0026, Attention:
Syndicate Department and, if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at 328 South
Saginaw Street, Flint, Michigan 48502-2401, Attention: General Counsel.
12. GOVERNING LAW; CONSTRUCTION. THIS AGREEMENT AND ANY CLAIM,
COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN
ANY WAY RELATING TO THIS AGREEMENT ("CLAIM"), DIRECTLY OR INDIRECTLY, SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. THE SECTION HEADINGS IN THIS AGREEMENT HAVE BEEN INSERTED AS A MATTER OF
CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS AGREEMENT.
13. Submission to Jurisdiction. Except as set forth below, no Claim
may be commenced, prosecuted or continued in any court other than the courts of
the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which courts
shall have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby consents to personal jurisdiction, service and venue
in any court in which any Claim arising out of or in any way relating to this
Agreement is brought by any third party against any Underwriter or any
indemnified party. Each Underwriter and each of the Offerors (on its behalf and,
to the extent permitted by applicable law, on behalf of its shareholders and
affiliates) waive all right to trial by jury in any action, proceeding or
-24-
counterclaim (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. Each Offeror agrees that a final judgment
in any such action, proceeding or counterclaim brought in any such court shall
be conclusive and binding upon such Offeror and may be enforced in any other
courts to the jurisdiction of which such Offeror is or may be subject, by suit
upon such judgment.
14. Parties at Interest. The Agreement herein set forth has been and
is made solely for the benefit of the Underwriters and the Offerors and to the
extent provided in Section 9 hereof the controlling persons, partners, directors
and officers referred to in such Section, and their respective successors,
assigns, heirs, personal representatives and executors and administrators. No
other person, partnership, association or corporation (including a purchaser, as
such purchaser, from any of the Underwriters) shall acquire or have any right
under or by virtue of this Agreement.
15. No Fiduciary Relationship. The Offerors hereby acknowledge that
the Underwriters are acting solely as underwriters in connection with the
purchase and sale of the Securities. The Offerors further acknowledge that the
Underwriters are acting pursuant to a contractual relationship created solely by
this Agreement entered into on an arm's length basis, and in no event do the
parties intend that the Underwriters act or be responsible as a fiduciary to the
Offerors, their management, stockholders or creditors or any other person in
connection with any activity that the Underwriters may undertake or have
undertaken in furtherance of the purchase and sale of the Securities, either
before or after the date hereof. The Underwriters hereby expressly disclaim any
fiduciary or similar obligations to the Offerors, either in connection with the
transactions contemplated by this Agreement or any matters leading up to such
transactions, and each Offeror hereby confirms its understanding and agreement
to that effect. The Offerors and the Underwriters agree that they are each
responsible for making their own independent judgments with respect to any such
transactions and that any opinions or views expressed by the Underwriters to the
Offerors regarding such transactions, including, but not limited to, any
opinions or views with respect to the price or market for any of the Offerors'
securities, do not constitute advice or recommendations to the Offerors. The
Offerors hereby waive and release, to the fullest extent permitted by law, any
claims that they may have against the Underwriters with respect to any breach or
alleged breach of any fiduciary or similar duty to either Offeror in connection
with the transactions contemplated by this Agreement; provided, however, that
all matters relating to the engagement of UBS Securities LLC in connection with
the pending merger with Republic Bancorp Inc. shall be governed by that certain
engagement letter between UBS Securities LLC and the Company dated May 4, 2006.
16. Counterparts. This Agreement may be signed by the parties in one
or more counterparts which together shall constitute one and the same agreement
among the parties.
17. Successors and Assigns. This Agreement shall be binding upon the
Underwriters and the Offerors and their successors and assigns and any successor
or assign of any substantial portion of either Offeror's and any of the
Underwriters' respective businesses and/or assets.
18. Miscellaneous. UBS, an indirect, wholly owned subsidiary of UBS
AG, is not a bank and is separate from any affiliated bank, including any U.S.
branch or agency of UBS
-25-
AG. Because UBS is a separately incorporated entity, it is solely responsible
for its own contractual obligations and commitments, including obligations with
respect to sales and purchases of securities. Securities sold, offered or
recommended by UBS are not deposits, are not insured by the Federal Deposit
Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
-26-
If the foregoing correctly sets forth the understanding between the
Company and the several Underwriters, please so indicate in the space provided
below for that purpose, whereupon this Agreement and your acceptance shall
constitute a binding agreement among the Trust, the Company and the
Underwriters, severally.
Very truly yours,
CITIZENS FUNDING TRUST I
by Citizens Banking Corporation,
as Depositor
By: /s/ Thomas W. Gallagher
------------------------------------
Name: Thomas W. Gallagher
Title: General Counsel & Secretary
CITIZENS BANKING CORPORATION
By: /s/ Thomas W. Gallagher
------------------------------------
Name: Thomas W. Gallagher
Title: General Counsel & Secretary
Accepted and agreed to as of the date first above written, on behalf of
themselves and the other several Underwriters named in Schedule A
Morgan Stanley & Co. Incorporated
By: /s/ Michael Fusco
---------------------------------
Name: Michael Fusco
Title: Executive Director
UBS Securities LLC
By: /s/ Michael Ravanesi
---------------------------------
Name: Michael Ravanesi
Title: Director
By: /s/ William J. Woolfrey
---------------------------------
Name: William J. Woolfrey
Title: Executive Director
SCHEDULE A
Liquidation
Amount of
Securities
to be
Underwriter Purchased
- ----------- -----------
Morgan Stanley & Co. Incorporated................................. 1,080,000
UBS Securities LLC................................................ 1,080,000
Citigroup Global Markets Inc...................................... 1,080,000
Wachovia Capital Markets, LLC..................................... 1,080,000
Keefe, Bruyette & Woods, Inc...................................... 520,000
Credit Suisse Securities (USA) LLC................................ 125,000
A.G. Edwards & Sons, Inc.......................................... 45,000
Banc of America Securities LLC.................................... 45,000
Bear, Stearns & Co. Inc........................................... 45,000
Boenning & Scattergood, Inc....................................... 45,000
Cohen & Company Securities, LLC................................... 45,000
D.A. Davidson & Co................................................ 45,000
Deutsche Bank Securities Inc...................................... 45,000
HSBC Securities (USA) Inc......................................... 45,000
J.P. Morgan Securities Inc........................................ 45,000
Janney Montgomery Scott LLC....................................... 45,000
Jeffries & Company, Inc........................................... 45,000
KeyBanc Capital Markets, a division of McDonald Investments Inc... 45,000
McGinn, Smith & Company, Inc...................................... 45,000
Mesirow Financial, Inc............................................ 45,000
Morgan Keegan & Company, Inc...................................... 45,000
Oppenheimer & Co. Inc............................................. 45,000
Pershing LLC...................................................... 45,000
RBC Capital Markets Corporation................................... 45,000
Robert W. Baird & Co. Incorporated................................ 45,000
Raymond James & Associates, Inc................................... 45,000
Ryan, Beck & Co. LLC.............................................. 45,000
Sandler, O'Neill & Partners, L.P.................................. 45,000
Stifel, Nicolaus & Company, Incorporated.......................... 45,000
---------
Total 6,000,000
=========
SCHEDULE B
Permitted Free Writing Prospectuses
Final Term Sheet prepared and filed pursuant to Section 4(b) and in the form of
Schedule C.
SCHEDULE C
FILED UNDER RULE 433
FILE NO. 333-137490
CITIZENS BANKING CORPORATION
FINAL TERM SHEET
ISSUER: Citizens Funding Trust I
OFFERED SECURITIES: 7.50% Enhanced Trust Preferred Securities of
Citizens Funding Trust I, fully and
unconditionally guaranteed by Citizens
Banking Corporation, to the extent described
in the prospectus supplement subject to
completion, dated September 25, 2006, to the
prospectus dated September 21, 2006
SIZE: 6,000,000 Trust preferred securities,
liquidation amount $25 per trust preferred
security and $150,000,000 in the aggregate
EXPECTED RATINGS: Moody's Investor Services: Baa2 (stable)
Standard & Poor's: BB+ (negative outlook)
Fitch Ratings: BBB- (stable)
Dominion Bond Rating Service: BBB (stable)
TRUST PREFERRED Upon the earlier of the stated maturity of
SECURITIES MATURITY DATE: the junior subordinated debentures or the
earlier redemption of the junior subordinated
debentures
JUNIOR SUBORDINATED September 15, 2066
DEBENTURES MATURITY DATE:
COUPON/DISTRIBUTION RATE: 7.50% per annum
COUPON/DISTRIBUTION DATES: Quarterly in arrears on March 15, June 15,
September 15, and December 15 of each year,
commencing December 15, 2006
OPTIONAL REDEMPTION: On or after September 15, 2011 in whole or in
part
TRADE DATE: September 26, 2006
SETTLEMENT DATE: October 3, 2006 (T+5)
EXPECTED LISTING: NYSE
PUBLIC OFFERING PRICE: $25 per trust preferred security
UNDERWRITING COMMISSIONS: $0.7875 per trust preferred security and
$4,725,000 in the aggregate, except that the
underwriting commission will be $0.50 per
trust preferred security with respect to any
trust preferred securities sold to
institutions. To the extent of those sales,
the total underwriting commission will
decrease and the net proceeds to the Issuer
will increase.
NET PROCEEDS TO THE $145,275,000 in the aggregate
ISSUER:
JOINT-BOOK-RUNNING UBS Securities LLC, Morgan Stanley & Co.
MANAGERS: Incorporated, Citigroup Global Markets Inc.,
and Wachovia Capital Markets, LLC
CO-MANAGERS: Keefe, Bruyette & Woods, Inc., and Credit
Suisse Securities (USA) LLC
SYNDICATE: A.G. Edwards & Sons, Inc., Banc of America
Securities LLC, Bear, Stearns & Co. Inc.,
Boenning & Scattergood, Inc., Cohen & Company
Securities LLC, D.A. Davidson & Co., Deutsche
Bank Securities Inc., HSBC Securities (USA)
Inc., J.P. Morgan Securities Inc., Janney
Montgomery Scott LLC, Jeffries & Company,
Inc., KeyBanc Capital Markets, a division of
McDonald Investments Inc., McGinn, Smith &
Co, Inc., Mesirow Financial, Inc., Morgan
Keegan & Company, Inc., Oppenheimer & Co.
Inc., Pershing LLC, RBC Dain Rauscher Inc.,
Robert W. Baird & Co. Incorporated, Raymond
James & Associates, Inc., Ryan, Beck & Co.
LLC, Sandler, O'Neill & Partners, L.P., and
Stifel, Nicolaus & Company, Incorporated
CUSIP: 174687 10 3
THE ISSUER HAS FILED A REGISTRATION STATEMENT, INCLUDING A PROSPECTUS, WITH THE
SEC FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST, YOU
SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS
THE ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER
AND THIS OFFERING. YOU MAY GET THESE DOCUMENTS FOR FREE BY VISITING EDGAR ON THE
SEC WEB SITE AT WWW.SEC.GOV. ALTERNATIVELY, THE ISSUER, ANY UNDERWRITER OR ANY
DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS IF
YOU REQUEST IT BY CALLING TOLL-FREE 1-888-722-9555 X1088.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE
TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER
NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION
BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.