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