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EXHIBIT 1(b)
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 number of shares of its preferred stock identified in
Schedule I hereto (the "Securities"). 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 the form of prospectus relating to the Securities,
as 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
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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 Section 13(a) or 15(d) of 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 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 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 Securities have been duly authorized by the Company, and,
upon filing of a Certificate of Designation for such Securities with the
Secretary of State of the State of Delaware (the "Certificate of Designation")
and the issuance and delivery of such Securities against payment therefor by
the Underwriters in accordance with and pursuant to the terms of this
Agreement, will be duly and validly issued, fully paid and non-assessable, and
will conform to the description thereof contained in the Prospectus; and the
issuance of the Securities is not subject to preemptive or other similar
rights.
(h) Neither the Company nor any of its subsidiaries is in
violation of its corporate charter or by-laws or in default under any
agreement, indenture or instrument, the effect of which violation or default
would be material to the Company and its subsidiaries taken as a whole. The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby 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
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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 and the consummation of
the transactions contemplated hereby.
(i) The Company and each of its subsidiaries 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 be reasonably likely, 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 subsidiaries holds all material licenses, permits,
and certificates from governmental authorities necessary for the conduct of its
business as described in the Prospectus.
(j) The authorized, issued and outstanding capital stock of the
Company as of May 31, 1996 is as set forth in the Prospectus under "Outstanding
Capital Stock"; 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 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, except that the deposits of Comerica
Bank & Trust, FSB and certain deposits of other banking subsidiaries that were
acquired from insolvent savings associations are insured by the FDIC's Savings
Association Insurance Fund (the "SAIF"), 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
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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.
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 number of shares of the 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 wire transfer of 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.
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
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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 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 or the Exchange 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;
(c) The Company will deliver to the Representatives, without
charge, signed copies of the Registration Statement relating to the Securities
and (i) three (3) copies 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
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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 later of the Closing Date or the date on which any
price restrictions on the sale of the Securities are terminated (as advised by
the Representatives to the Company), without the prior consent of the
Representatives, the Company will not offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise issue,
transfer or dispose of, directly or indirectly, any equity securities of the
Company substantially similar to the Securities.
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 Skadden, Arps, Slate, Meagher & Flom ("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, 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.
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(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall not have been any
change or decrease specified in the letters referred to in paragraph (g) of
this Section 6 which, in the judgment of the Representatives, makes it
impracticable or inadvisable to proceed with the offering and delivery of the
Securities as contemplated by the Registration Statement and the Prospectus.
(d) The Company shall have furnished to the Representatives the
opinion of Bodman, Longley & Dahling LLP, 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 conform in all material respects to
the descriptions thereof contained in the Prospectus.
(iii) The certificates for the Securities are in due and
proper form; the Securities have been duly authorized by the Company, and, upon
the issuance and delivery of such Securities against payment therefor by the
Underwriters in accordance with and pursuant to the terms of this Agreement,
will be duly and validly issued, fully paid and non-assessable; the issuance of
the Securities is not subject to preemptive or other similar rights.
(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, except for such consents,
approvals, authorizations or orders as have been obtained under the Securities
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 by the Company and the consummation of the transactions contemplated
hereby 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
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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.
(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
included or incorporated by reference therein) comply as to form in all
material respects with the requirements of the Securities Act and the Rules and
Regulations; the documents incorporated by reference in the Prospectus (other
than the financial statements or other financial or statistical data included
or incorporated by reference therein, as to which no opinion need be
expressed), when they were filed with the Commission, complied as to form in
all material respects with the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder.
(ix) Each of the Company's subsidiaries which is a
"significant subsidiary" as defined in Regulation S-X promulgated by the
Commission (each, 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) The authorized, issued and outstanding capital stock
of the Company as of May 31, 1996 is as set forth in the Prospectus under
"Outstanding Capital Stock." 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
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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, except that the deposits of Comerica Bank & Trust, FSB
and certain deposits of other banking subsidiaries that were acquired from
insolvent savings associations are insured by the SAIF, 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 (ii) the Prospectus 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 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 and public officials.
(e) 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.
(f) 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
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which has not been so set forth.
(g) (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, 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.
(h) 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.
(i) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded any of the Company's
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 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 rating of
the Securities by one or more rating agencies, all costs and expenses
(including fees
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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 transfer agent 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 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, employees and agents, each of its directors 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 or any such director, officer, employee,
agent 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 (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 other document prepared or
executed by the Company (or based upon any written information furnished by the
Company) specifically for the purpose of qualifying any or all of the
Securities under the securities laws of any state or other jurisdiction (any
such application, document or information being hereinafter called a "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, and shall reimburse each Underwriter and each such
director, officer, employee, agent and controlling person promptly upon demand
for any legal or other expenses reasonably incurred by that Underwriter,
director, officer, employee, agent 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
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such Underwriter) from whom the person asserting any such loss, claim, damage
or liability purchased the Securities which are the subject thereof if such
person did not receive a copy of the Prospectus at or prior to the confirmation
of the sale of such Securities to such person in any case where such delivery
is required by the Securities Act and the untrue statement or omission of a
material fact contained in any Preliminary Prospectus was corrected in the
Prospectus, unless such failure to deliver the Prospectus was a result of
noncompliance by the Company with Section 5(d) hereof. For purposes of the
proviso in the preceding sentence, the term "Prospectus" shall not be deemed to
include the documents incorporated therein by reference, and no Underwriter
shall be obligated to send or give any supplement or amendment to any document
incorporated by reference in any Preliminary Prospectus or Prospectus to any
person other than a person to whom such Underwriter had delivered such
incorporated document or documents in response to a written request therefor.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, its officers, employees and agents, 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, employee, agent 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, 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 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
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be liable to the indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by 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 judgment of 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 (in addition to local counsel) 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 but
also the relative fault of the Company on the one hand and the Underwriters on
the other with
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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.
9. DEFAULT BY AN UNDERWRITER.
If any one or more Underwriters shall fail to purchase and pay for all
of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the principal amount of Securities set forth
opposite their names in Schedule II hereto bear to the aggregate principal
amount of Securities set opposite the names of the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that in the event that the aggregate principal
amount of Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate principal amount of
the Securities, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such non-defaulting Underwriters do not purchase all the Securities,
this Agreement will terminate without liability to any non-defaulting
Underwriters or the Company. In the event the remaining Underwriters elect to
purchase the Securities which the defaulting Underwriter or Underwriters agreed
to purchase as set
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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 by notice given by you
to the Company if (a) after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your judgment,
is material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event singly or together with any other such
event makes it, in your judgment, impracticable to market 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.
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: Ralph W. Babb, Jr.; Telephone: (313) 222-4000; Telecopy:(313)
964-0638 with a copy to the Corporate Secretary; Telephone (313) 222-3432;
Telecopy: (313) 222-6980.
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
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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: /s/ Mark W. Yonkman
--------------------------------
Name: Mark W. Yonkman, Esq.
Title: Vice President and
Assistant Secretary
The foregoing Agreement is hereby confirmed and accepted as of the
date first above written.
MERRILL LYNCH, PIERCE FENNER & SMITH INCORPORATED
By: /s/ Henry R. Michaels
--------------------------------
Name: Henry R. Michaels
Title: Director
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Richard C. Schwartz
---------------------------------
Name: Richard C. Schwartz
Title: Principal
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
1. Date of Underwriting Agreement: June 18, 1996
2. Registration Statement No.: 333-04297
3. Representatives and Address:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center - North Tower
250 Vesey Street
New York, New York 10281-1325
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
4. Title of Securities: Fixed/Adjustable Rate Noncumulative
Preferred Stock, Series E
5. Date of Board Resolutions and Preferred Stock Designation
Committee Resolution Fixing the Terms and Conditions of the
Securities: March 15, 1996, June 4,1996, and June 18,1996
6. Number of Shares to be issued: 5,000,000 Shares
7. Certificate of Designation: Dated June 18, 1996; Filed June
21, 1996
8. Initial Offering Price to Public: $50.00 per Share
9. Purchase Price by Underwriters: $49.375
10. Specified Funds for Payment of Purchase Price: Immediately
Available Funds
11. Dividend Rate: 6.84% per annum through July 1, 2001
.625% per annum plus highest of Treasury Bill
Rate, Ten Year Constant Maturity Rate and Thirty Year
Constant Maturity Rate after July 1, 2001 but not less
than 7.34% or greater than 13.34%.The dividend rate is
subject to adjustment in the event of certain
amendments to the Internal Revenue Code of 1986, as
amended.
12. Dividend Payment Dates: January 1, April 1, July 1 and October 1
commencing October 1, 1996.
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13. Liquidation Value: $50.00
14. Redemption Provisions: Not redeemable prior to July 1, 2001
except under certain circumstances described in the
Prospectus.
15. Closing Date, Time and Location:
Date: June 21, 1996
Time: 10:00 a.m.
Location: Skadden, Arps, Slate Meagher & Flom
16. Listing: None
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SCHEDULE II
NUMBER OF SHARES
UNDERWRITERS TO BE PURCHASED
------------ -----------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . 2,500,000
Morgan Stanley & Co. Incorporated . . . . . . . . . . . . . . . . . . . 2,500,000
---------
TOTAL: 5,000,000
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