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Signed Copy (with Exhibits)
As filed with the Securities and Exchange Commission on __________, 1995
Registration No. 33-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
COMERICA INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 38-1998421
(State of Incorporation) (I.R.S. Employer Identification No.)
One Detroit Center
500 Woodward Avenue, 31st Floor,
Detroit, Michigan 48226
(313) 222-3300
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
COMERICA INCORPORATED STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS OF COMERICA BANK AND AFFILIATED BANKS
(Full title of the Plan)
Judith C. Lalka Dart
Executive Vice President, General Counsel and Secretary
Comerica Incorporated
One Detroit Center
500 Woodward Avenue, 33rd Floor
Detroit, Michigan 48226
(313) 222-3300
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
Title of securities Amount to be Proposed maximum offering Proposed maximum aggregate Amount of
to be registered registered(1) price per share offering price (2) registration fee
- ---------------- ---------- --------------- -------------- ------------
Common Stock 300,000 shares $28.875 $8,662,500 $2,987.07
$5.00 par value
Rights (3) None(4) None(4) 0
- ---------------
(1) Pursuant to Rule 416(a), this Registration Statement shall also be
deemed to cover any additional securities to be offered or issued in connection
with terms of the above-referenced Plan which provide for changes in the
amount of securities to be offered or issued to prevent dilution resulting
from stock splits, stock dividends or similar transactions.
(2) Pursuant to Rule 457(1), the proposed maximum aggregate offering
price is based upon the average of the high and low prices of the Common
Stock as reported on the New York Stock Exchange Composite Tape on April 19,
1995 ($28.875 per share).
(3) The rights are not presently separable from the shares of Common Stock
or exercisable. The number of Rights per share of Common Stock is subject to
adjustment in the event of stock splits, stock-on-stock dividends or similar
events. Currently, each share of Common Stock carries 1/9 of one Right.
(4) No separate consideration will be received for the Rights.
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PART II
INFORMATION NOT REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, heretofore filed by Comerica Incorporated
("Comerica") with the Securities and Exchange Commission (the "Commission"),
are incorporated in this Registration Statement by reference:
1. Annual Report on Form 10-K for the year ended December 31, 1994.
2. All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") since
December 31, 1994.
3. The description of Comerica's common stock, par value $5.00 per
share, contained in the Registration Statement on Form S-4 filed
November 19, 1994 (Commission File Number 33-56627).
All documents filed with the Commission by Comerica pursuant to
Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act subsequent to the date
of this Registration Statement and prior to the filing of a post-effective
amendment hereto which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
thereof from the date of filing of such documents. Any statement contained in a
document all or a portion of which is incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
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statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The General Corporation Law ("GCL") of the State of Delaware provides
that a Delaware corporation, such as Comerica, may indemnify a director or
officer against his or her expenses and judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with any action, suit
or proceeding (other than an action by or in the right of the corporation)
involving such person by reason of the fact that such person is or was a
director or officer, concerning actions taken in good faith and in a manner
reasonably believed to be in or not opposed to the best interest of the
corporation and, with respect to any criminal action or proceeding, without
reasonable cause to believe his or her conduct was unlawful. The GCL also
provides that in a derivative action, a Delaware corporation may indemnify its
directors and officers against expenses actually and reasonably incurred to the
extent that such director or officer acted in good faith and in a manner such
director or officer reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification may be made with
respect to any claim, issue or matter as to which such director or officer is
adjudged to be liable to the corporation unless and only to the extent that the
court determines upon application that, despite the
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adjudication of liability but in view of all the circumstances of the case,
such director or officer is fairly and reasonably entitled to indemnity for
such expenses as the court deems proper. The GCL also generally permits the
advancement of a director's or officer's expenses, including by means of a
mandatory charter or bylaw provision to that effect, in lieu of requiring the
authorization of such advancement by the Board of Directors in specific cases.
Section 12 of Article V of Comerica's bylaws implements such provisions and
provides as follows:
INDEMNIFICATION AND INSURANCE
(a) The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he or she is or
was a director, officer or employee of the Corporation or is or was
serving at the request of the Corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise, against expenses (including attorneys'
fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit,
or proceeding if he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was
unlawful. Any person who is or was an agent of the Corporation may be
indemnified to the same
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extent as hereinabove provided. In addition, in the event any such
action, suit or proceeding is threatened or instituted against a spouse
to whom a director or officer is legally married at the time such
director or officer is covered under the indemnification provided
herein, which action, suit or proceeding arises solely out of his or
her status as the spouse of a director or officer, including, without
limitation, an action, suit or proceeding that seeks damages
recoverable from marital community property of the director or officer
and his or her spouse, property owned jointly by them or property
purported to have been transferred from the director or officer to his
or her spouse, the spouse of the director or officer shall be
indemnified to the same extent as hereinabove provided. The
termination of any action, suit, or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding,
raise any inference that he or she had reasonable cause to believe that
his or her conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending,
or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he or she is
or was a director, officer or employee of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
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employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Corporation, and except that no
indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the court in which such
action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem
proper. Any person who is or was an agent of the Corporation may be
indemnified to the same extent as hereinabove provided. In addition,
in the event any such action or suit is threatened or instituted
against a spouse to whom a director or officer is legally married at
the time such director or officer is covered under the indemnification
provided herein which action or suit arises solely out of his or her
status as the spouse of a director or officer, including, without
limitation, an action or suit that seeks damages recoverable from
marital community property of the director or officer and his or her
spouse, property owned jointly by them or property purported to have
been transferred from the director or officer to his or her spouse, the
spouse of the director or officer shall be indemnified to the same
extent as hereinabove provided.
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(c) To the extent that a director, officer, spouse of the
director or officer, employee, or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b) of this Section, or
in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
Section (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, spouse of the director or
officer, employee, or agent is proper in the circumstances because such
person has met the applicable standard of conduct set forth in
subsections (a) and (b) of this Section. Such determination shall be
made (1) by the Board of Directors by a majority vote of a quorum
consisting of Directors who were not parties to the action, suit or
proceeding, or (2) if such a quorum is not obtainable, or even if
obtainable a quorum of disinterested Directors so directs, by
independent legal counsel chosen by the entire Board of Directors,
subject to the reasonable satisfaction of the party seeking
indemnification, in a written opinion, or (3) by the shareholders.
(e) Expenses (including attorney's fees) incurred by an officer,
director, or spouse of an officer or director, in defending any civil,
criminal, administrative or investigative action, suit or proceeding
may be paid by the Corporation in advance of the final disposition of
such action, suit or
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proceeding upon receipt of an undertaking by or on behalf of the
director, officer or spouse to repay such amount if it shall ultimately
be determined that he or she is not entitled to be indemnified by the
Corporation as authorized in this Section. Such expenses (including
attorney's fees) incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the board of directors deems
appropriate.
(f) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other subsections of this Section shall not
be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to
action in another capacity while holding such office.
(g) The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, spouse of a
director or officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out
of his or her status as such, whether or not the Corporation would have
the power to indemnify such person against such liability under the
provisions of this Section.
(h) For the purposes of this Section, references to "the
Corporation" include, in addition to the resulting or
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surviving corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had the
power and authority to indemnify its directors, officers, spouses of
directors or officers, and employees or agents, so that any person who
is or was a director, officer, spouse of a director or officer,
employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the
provisions of this Section with respect to the resulting or surviving
corporation as he or she would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this Section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a persons with
respect to an employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on,
or involves services by, such director, officer, employee, or agent
with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
or she reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the
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best interests of the Corporation" as referred to in this Section.
(j) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee or agent, and with respect to any
spouse of a director or officer, shall continue following the time the
director or officer spouse ceases to be a director or officer even if
the marriage of the individuals terminates prior to the end of the
period of coverage, and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 102(b)(7) of the GCL provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such
provision may not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) under Section 174
of the GCL (relating to liability for unauthorized acquisitions or redemptions
of, or dividends on, capital stock) or (iv) for any transaction from which the
director derived an improper personal benefit. At the 1987 Annual Meeting of
Comerica's shareholders, the shareholders approved an amendment to Comerica's
Restated Certificate of Incorporation to include such a provision.
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Comerica has entered into Indemnification Agreements (the "Agreements")
with each of its directors pursuant to which Comerica agrees (i) to indemnify
each such director to the fullest extent permitted by any combination of (a)
the benefits provided by the indemnification provisions of Comerica's bylaws as
in effect on the date of such Agreement, (b) the benefits provided by the
indemnification provisions of Comerica's bylaws in effect at the time such
indemnified costs are incurred by such director, (c) the benefits allowable
under the GCL in effect at the date of such Agreement or as the same may be
amended (but in the case of any such amendment, only to the extent that such
amendment permits Comerica to provide broader indemnification than such law
permits Comerica to provide prior to such amendment), (d) the benefits
allowable under the law of the jurisdiction under which Comerica is organized
at the time such indemnified costs are incurred by such director, (e) the
benefits available under any Directors' and Officers' Insurance or other
liability insurance obtained by Comerica, and (f) the benefits available to the
fullest extent authorized to be provided to such director by Comerica under the
non-exclusivity provisions of the bylaws of Comerica and the GCL, against
liability and expenses incurred by reason of such person serving as a director
or officer of Comerica or at Comerica's request as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise or with respect to employee benefit plans; (ii) to advance
certain expenses to such persons; and (iii) except under certain circumstances,
to purchase and maintain in effect one or more Directors' and Officers'
insurance policies.
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No indemnification, reimbursement, or payments are required of Comerica
under the Agreements (except to the extent it is provided from policies of
insurance carried by Comerica): (1) with respect to any claim as to which such
director is finally adjudged by a court of competent jurisdiction to (a) have
acted in bad faith, (b) be liable for acts or omissions which involve
intentional misconduct, a knowing violation of law or of such director's duty
of loyalty to Comerica or its shareholders, (c) have authorized a redemption or
dividend on Comerica's stock which is prohibited by Delaware law, or (d) have
effected any transaction from which such director has derived an improper
personal benefit within the meaning of Section 102(b)(7) of the GCL, except to
the extent that such court, or another court having jurisdiction, determines
upon application that, despite the adjudication of liability, but in view of
all the circumstances of the case, such director is fairly and reasonably
entitled to indemnity for such indemnified costs as the court deems proper; (2)
with respect to any payment determined by final judgment of a court, or other
tribunal having jurisdiction over the question, to be unlawful; and (3) with
respect to any obligation of such director under Section 16(b) of the
Securities Exchange Act of 1934, as amended.
Insurance is maintained on a regular basis (and not specifically in
connection with this offering) against liabilities arising on the part of
directors and officers out of their performance in such capacities or arising
on the part of Comerica out of its foregoing indemnification provisions,
subject to certain exclusions and to the policy limits
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following documents are attached hereto or incorporated herein by
reference as exhibits to this Registration Statement:
Exhibit
Number Description of Document
------- -----------------------
4.1 Restated Certificate of Incorporation of Comerica Incorporated, as amended (incorporated herein by reference to
Registrant's Annual Report on Form 10-K for the year ended December 31, 1993 - Commission File Number 0-7269).
4.2 Amended and restated bylaws of Comerica Incorporated (incorporated herein by reference to Registrant's Annual Report
on Form 10-K for the year ended December 31, 1993 - Commission File Number 0-7269).
4.3 Rights Agreement between Comerica Incorporated and Comerica Bank (incorporated herein by reference to Registrant's
Annual Report on Form 10-K for the year ended December 31, 1987 - Commission File No. 0-7269).
4.4 First Amendment to the Rights Agreement between Comerica Incorporated and Comerica Bank (incorporated herein by
reference to Exhibit 1.1 of Registrant's Form 8 filed November 1, 1991, Commission File Number 0-7269).
4.5 Issuing and Paying Agency Agreement between Comerica Bank, as Issuer and Comerica Bank, as Agent (incorporated herein
by reference to Registrant's Annual Report on Form 10-K for the year ended December 31, 1994, Commission File Number
0-7269).
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Exhibit
Number Description of Document
------- -----------------------
4.6 Specimen of certificate for Registrant's common stock, $5.00 par value (incorporated herein by reference to Exhibit
4(a) of Registrant's Registration Statement on Form S-3 dated May 29, 1991, Commission File Number 33-40921).
5 Opinion and Consent of John P. Sheridan as to the legality of the securities being registered.
15 N/A
23.1 Consent of Ernst and Young LLP, independent auditors.
23.2 Consent of John P. Sheridan, legal counsel (contained in Exhibit 5).
24 Powers of Attorney (contained in the signature pages of this Registration Statement).
28 N/A
99 N/A
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Item 9. Undertakings.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs A(1)(i) and A(1)(ii) shall not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new Registration Statement relating to the
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securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6 above,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by
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a director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer, or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing of Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Detroit, State of Michigan on
April 24, 1995.
COMERICA INCORPORATED
By: /s/ Eugene A. Miller
-----------------------
Eugene A. Miller
Chairman and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated below. By so signing, each of the
undersigned, in his or her capacity as a director or officer, or both, as the
case may be, of the registrant, does hereby appoint Eugene A. Miller, John D.
Lewis, Arthur W. Hermann, and Judith C. Dart, and each of them severally, his
or her true and lawful attorney to execute in his or her name, place and stead,
in his or her capacity as a director or officer, or both, as the case may be,
of the registrant, any and all amendments to this Registration Statement and
post-effective amendments thereto and all instruments necessary or incidental
in connection therewith, and to file the same with the Securities and
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Exchange Commission. Each of said attorneys shall have full power and authority
to do and perform in the name and on behalf of each of the undersigned, in any
and all capacities, every act whatsoever requisite or necessary to be done in
the premises as fully, and for all intents and purposes, as each of the
undersigned might or could do in person, the undersigned hereby ratifying and
approving the acts of said attorneys and each of them.
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Signatures Title Date
---------- ----- ----
(1) Principal Executive Officer:
/s/ Eugene A. Miller March 17, 1995
- --------------------------------- Chairman and Chief
Eugene A. Miller Executive Officer
(2) Principal Financial Officer:
/s/ Paul H. Martzowka March 17, 1995
- --------------------------------- Executive Vice President
Paul H. Martzowka and Chief Financial Officer
(3) Directors:
/s/ E. Paul Casey Director March 17, 1995
- ---------------------------------
E. Paul Casey
/s/ James F. Cordes Director March 17, 1995
- ---------------------------------
James F. Cordes
/s/ J. Philip DiNapoli Director March 17, 1995
- ---------------------------------
J. Philip DiNapoli
/s/ Max M. Fisher Director March 17, 1995
- ---------------------------------
Max M. Fisher
/s/ John D. Lewis Director March 17, 1995
- ---------------------------------
John D. Lewis
/s/ Patricia Shontz Longe Director March 17, 1995
- ---------------------------------
Patricia Shontz Longe, Ph.D.
/s/ Wayne B. Lyon Director March 17, 1995
- ---------------------------------
Wayne B. Lyon
/s/ Gerald V. MacDonald Director March 17, 1995
- ---------------------------------
Gerald V. MacDonald
/s/ Eugene A. Miller Director March 17, 1995
- ---------------------------------
Eugene A. Miller
/s/ Michael T. Monahan Director March 17, 1995
- ---------------------------------
Michael T. Monahan
/s/ Alfred A. Piergallini Director March 17, 1995
- ---------------------------------
Alfred A. Piergallini
/s/ Alan E. Schwartz Director March 17, 1995
- ---------------------------------
Alan E. Schwartz
/s/ Howard F. Sims Director March 17, 1995
- ---------------------------------
Howard F. Sims
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EXHIBIT INDEX
Page in
Sequentially
Exhibit Number Description of Document Numbered Copy
- -------------- ----------------------- -------------
5 Opinion and consent of John P. Sheridan,
legal counsel
23.1 Consent of Ernst & Young LLP
independent auditors
E-1