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EXHIBIT 4(d)
CERTIFICATE OF DESIGNATION
Pursuant to Section 151(g) of the General
Corporation Law of the State of Delaware
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5,000,000 SHARES OF
FIXED/ADJUSTABLE RATE
NONCUMULATIVE PREFERRED STOCK
SERIES E
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COMERICA INCORPORATED, a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), HEREBY CERTIFIES that the
following resolution was duly adopted by the Board of Directors of the
Corporation pursuant to authority conferred upon the Board of Directors by the
provisions of the Restated Certificate of Incorporation of the Corporation,
which authorizes the issuance of up to 10,000,000 shares of preferred stock
without par value, and by the Preferred Stock Designation Committee of the
Board of Directors (the "Stock Committee"), pursuant to authority conferred
upon the Stock Committee of the Board of Directors in accordance with Section
141(c) of the General Corporation Law of the State of Delaware, by Article III,
Section 8 of the Bylaws of the Corporation and by resolutions of the Board of
Directors at meetings of the Board of Directors duly held on March 15, 1996 and
June 4, 1996, and at a meeting of the Preferred Stock Designation Committee of
the Board of Directors duly held on June 18, 1996:
RESOLVED, that the issue of a series of preferred stock without par
value of this Corporation is hereby authorized and the designation, powers,
preferences and privileges, relative, participating, optional and other special
rights, and qualifications, limitations and restrictions thereof, in addition
to those set forth in the Restated Certificate of Incorporation, as amended, of
the Corporation, are hereby fixed as follows:
FIXED/ADJUSTABLE RATE NONCUMULATIVE PREFERRED STOCK, SERIES E
(1) Number Of Shares And Designation. Five million (5,000,000)
shares of the preferred stock without par value of the Corporation are hereby
constituted as a series of preferred stock without par value designated as
"Fixed/Adjustable Rate Noncumulative Preferred Stock, Series E" (hereinafter
called the "Preferred Stock, Series E").
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(2) Dividends.
(a) The holders of shares of the Preferred Stock, Series E, shall
be entitled to receive cash dividends, as, if and when declared by the Board of
Directors of the Corporation (the "Board of Directors") or by the Preferred
Stock Designation Committee of said Board of Directors (the "Stock
Committee"), out of funds legally available for that purpose, at the rate set
forth below in this Section (2) applied to the amount of $50 per share. Such
dividends shall be payable quarterly, as, if and when declared by the Board of
Directors or by the Stock Committee on January 1, April 1, July 1 and October 1
of each year, commencing on October 1, 1996. Each such dividend shall be
payable in arrears to the holders of record of shares of the Preferred Stock,
Series E, as they appear on the stock register of the Corporation on such
record dates, not more than 30 nor less than 15 days preceding the payment
dates thereof, as shall be fixed by the Board of Directors or the Stock
Committee. Dividends on Preferred Stock, Series E shall not be cumulative and
no rights shall accrue to the holders of Preferred Stock, Series E by reason of
the fact that the Corporation may fail to declare or pay dividends on the
Preferred Stock, Series E in any amount in any year, whether or not the
earnings of the Corporation in any year were sufficient to pay such dividends
in whole or in part.
(b) (i) Dividend periods ("Dividend Periods") shall
commence on January 1, April 1, July 1 and October 1 of each
year other than the initial Dividend Period, which shall
commence on the date of original issue of the Preferred Stock,
Series E and shall end on and include the calendar day next
preceding the first day of the next Dividend Period. The
initial dividend on the shares of Preferred Stock, Series E,
for the period from the date of original issue thereof to but
not including October 1, 1996 will be $.95 per share of
Preferred Stock, Series E and such dividend shall be payable
(if declared) on October 1, 1996. For each Dividend Period
thereafter the dividend rate on the shares of Preferred Stock,
Series E shall be 6.84% per annum through July 1, 2001. The
amount of dividends payable for each full Dividend Period
occurring prior to July 1, 2001 for the Preferred Stock,
Series E, shall be computed by dividing the dividend rate of
6.84% per annum by four and applying the resulting rate of
1.71% to the amount of $50 per share. For each Dividend Period
beginning on or after July 1, 2001, the dividend rate on the
shares of Preferred Stock, Series E shall be the Applicable
Rate (as defined below) per annum. The amount of dividends
payable for each full Dividend Period beginning on or after
July 1, 2001 shall be computed by dividing the Applicable Rate
per annum by four and applying the resulting rate to the
amount of $50 per share. The amount of dividends payable for
any period shorter or longer than a full Dividend Period on
the Preferred Stock, Series E, shall be computed on the basis
of twelve 30-day months, a 360-day year and, for any Dividend
Period of less than one month (other than the initial Dividend
Period), the actual number of days elapsed in such period.
Unless otherwise required by law, dividends payable with
respect to each share of Preferred Stock, Series E, shall be
rounded to the nearest one cent, with $.005 being rounded
upward. Holders of shares called for redemption on a
redemption date between a dividend payment record date and the
dividend payment date shall not be entitled to receive the
dividend payable on such dividend payment date.
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(ii) Except as provided below in this paragraph
(ii), the "Applicable Rate" per annum for any Dividend Period
beginning on or after July 1, 2001 will be equal to 0.625%
plus the Effective Rate (as defined below), but not less than
7.34% or more than 13.34% (without taking into consideration
any adjustments as described in paragraph (viii) below). The
"Effective Rate" for any Dividend Period beginning on or after
July 1, 2001 will be equal to the highest of the Treasury Bill
Rate, the Ten Year Constant Maturity Rate and the Thirty Year
Constant Maturity Rate (each as defined below) for such
Dividend Period. The Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Thirty Year Constant Maturity Rate will
each be rounded to the nearest five hundredths of a percent,
with .025% being rounded upward. In the event that the
Corporation determines in good faith that for any reason: (A)
any one of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate or the Thirty Year Constant Maturity Rate cannot
be determined for any Dividend Period beginning on or after
July 1, 2001, then the Effective Rate for such Dividend Period
will be equal to the higher of whichever two of such rates can
be so determined; (B) only one of the Treasury Bill Rate, the
Ten Year Constant Maturity Rate or the Thirty Year Constant
Maturity Rate can be determined for any Dividend Period
beginning on or after July 1, 2001, then the Effective Rate
for such Dividend Period will be equal to whichever such rate
can be so determined; or (C) none of the Treasury Bill Rate,
the Ten Year Constant Maturity Rate or the Thirty Year
Constant Maturity Rate can be determined for any Dividend
Period beginning on or after July 1, 2001, then the Effective
Rate for the preceding Dividend Period will be continued for
such Dividend Period.
(iii) Except as described below in this paragraph
(iii), the "Treasury Bill Rate" for each applicable Dividend
Period will be the arithmetic average of the two most recent
weekly per annum market discount rates (or the one weekly per
annum market discount rate, if only one such rate is published
during the relevant Calendar Period (as defined below)) for
three-month U.S. Treasury bills, as published weekly by the
Federal Reserve Board (as defined below) during the Calendar
Period immediately preceding the last ten calendar days
preceding the Dividend Period for which the dividend rate on
the Preferred Stock, Series E is being determined. In the
event that the Federal Reserve Board does not publish such a
weekly per annum market discount rate during any such
Calendar Period, then the Treasury Bill Rate for such Dividend
Period will be the arithmetic average of the two most recent
weekly per annum market discount rates (or the one weekly per
annum market discount rate, if only one such rate is
published during the relevant Calendar Period) for three-month
U.S. Treasury bills, as published weekly during such Calendar
Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. In the event
that a per annum market discount rate for three-month U.S.
Treasury bills is not published by the Federal Reserve Board
or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the
Treasury Bill Rate for such Dividend Period will be the
arithmetic average of the two most recent weekly per annum
market discount rates (or the one weekly per annum market
discount rate, if only one such rate is published
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during the relevant Calendar Period) for all of the U.S.
Treasury bills then having remaining maturities of not less
than 80 nor more than 100 days, as published during such
Calendar Period by the Federal Reserve Board or, if the
Federal Reserve Board does not publish such rates, by any
Federal Reserve Bank or by any U.S. Government department or
agency selected by the Corporation. In the event that the
Corporation determines in good faith that for any reason no
such U.S. Treasury bill rates are published as provided above
during such Calendar Period, then the Treasury Bill Rate for
such Dividend Period will be the arithmetic average of the per
annum market discount rates based upon the closing bids during
such Calendar Period for each of the issues of marketable
non-interest-bearing U.S. Treasury securities with a
remaining maturity of not less than 80 nor more than 100 days
from the date of each such quotation, as chosen and quoted
daily for each business day in New York City (or less
frequently if daily quotations are not generally available) to
the Corporation by at least three recognized dealers in U.S.
Government securities selected by the Corporation. In the
event that the Corporation determines in good faith that for
any reason the Corporation cannot determine the Treasury Bill
Rate for any applicable Dividend Period as provided above in
this paragraph, the Treasury Bill Rate for such applicable
Dividend Period will be the arithmetic average of the per
annum market discount rates based upon the closing bids during
such Calendar Period for each of the issues of marketable
interest-bearing U.S. Treasury securities with a remaining
maturity of not less than 80 nor more than 100 days, as chosen
and quoted daily for each business day in New York City (or
less frequently if daily quotations are not generally
available) to the Corporation by at least three recognized
dealers in U.S. Government securities selected by the
Corporation.
(iv) Except as described below in this paragraph
(iv), the "Ten Year Constant Maturity Rate" for each
applicable Dividend Period will be the arithmetic average of
the two most recent weekly per annum Ten Year Average Yields
(as defined below) (or the one weekly per annum Ten Year
Average Yield, if only one such yield is published during the
relevant Calendar Period), as published weekly by the Federal
Reserve Board during the Calendar Period immediately preceding
the last ten calendar days preceding the Dividend Period for
which the dividend rate on the Preferred Stock, Series E is
being determined. In the event that the Federal Reserve Board
does not publish such a weekly per annum Ten Year Average
Yield during such Calendar Period, then the Ten Year Constant
Maturity Rate for such Dividend Period will be the arithmetic
average of the two most recent weekly per annum Ten Year
Average Yields (or the one weekly per annum Ten Year Average
Yield, if only one such yield is published during the relevant
Calendar Period), as published weekly during such Calendar
Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. In the event
that a per annum Ten Year Average Yield is not published by
the Federal Reserve Board or by any Federal Reserve Bank or by
any U.S. Government department or agency during such Calendar
Period, then the Ten Year Constant Maturity Rate for such
Dividend Period will be the arithmetic average of the two most
recent weekly per annum average yields to maturity (or the one
weekly per annum average yield to
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maturity, if only one such yield is published during the
relevant Calendar Period) for all of the actively traded
marketable U.S. Treasury fixed interest rate securities (other
than Special Securities (as defined below)) then having
remaining maturities of not less than eight nor more than
twelve years, as published during such Calendar Period by the
Federal Reserve Board or, if the Federal Reserve Board does
not publish such yields, by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the
Corporation. In the event that the Corporation determines in
good faith that for any reason the Corporation cannot
determine the Ten Year Constant Maturity Rate for any
applicable Dividend Period as provided above in this
paragraph, then the Ten Year Constant Maturity Rate for such
Dividend Period will be the arithmetic average of the per
annum average yields to maturity based upon the closing bids
during such Calendar Period for each of the issues of actively
traded marketable U.S. Treasury fixed interest rate securities
(other than Special Securities) with a final maturity date not
less than eight nor more than twelve years from the date of
each such quotation, as chosen and quoted daily for each
business day in New York City (or less frequently if daily
quotations are not generally available) to the Corporation by
at least three recognized dealers in U.S. Government
securities selected by the Corporation.
(v) Except as described below in this paragraph
(v), the "Thirty Year Constant Maturity Rate" for each
applicable Dividend Period will be the arithmetic average of
the two most recent weekly per annum Thirty Year Average
Yields (as defined below) (or the one weekly per annum Thirty
Year Average Yield, if only one such yield is published during
the relevant Calendar Period), as published weekly by the
Federal Reserve Board during the Calendar Period immediately
preceding the last ten calendar days preceding the Dividend
Period for which the dividend rate on the Preferred Stock,
Series E is being determined. In the event that the Federal
Reserve Board does not publish such a weekly per annum Thirty
Year Average Yield during such Calendar Period, then the
Thirty Year Constant Maturity Rate for such Dividend Period
will be the arithmetic average of the two most recent weekly
per annum Thirty Year Average Yields (or the one weekly per
annum Thirty Year Average Yield, if only one such yield is
published during the relevant Calendar Period), as published
weekly during such Calendar Period by any Federal Reserve Bank
or by any U.S. Government department or agency selected by
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the Corporation. In the event that a per annum Thirty Year
Average Yield is not published by the Federal Reserve Board or
by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the
Thirty Year Constant Maturity Rate for such Dividend Period
will be the arithmetic average of the two most recent weekly
per annum average yields to maturity (or the one weekly per
annum average yield to maturity, if only one such yield is
published during the relevant Calendar Period) for all of the
actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) then having
remaining maturities of not less than twenty-eight nor more
than thirty years, as published during such Calendar Period by
the Federal Reserve Board or, if the Federal Reserve Board
does not publish such yields, by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the
Corporation. In the event that the Corporation determines in
good faith that for any reason the Corporation cannot
determine the Thirty Year Constant Maturity Rate for any
applicable Dividend Period as provided above in this
paragraph, then the Thirty Year Constant Maturity Rate for
such Dividend Period will be the arithmetic average of the per
annum average yields to maturity based upon the closing bids
during such Calendar Period for each of the issues of actively
traded marketable U.S. Treasury fixed interest rate securities
(other than Special Securities) with a final maturity date not
less than twenty-eight nor more than thirty years from the
date of each such quotation, as chosen and quoted daily for
each business day in New York City (or less frequently if
daily quotations are not generally available) to the
Corporation by at least three recognized dealers in U.S.
Government securities selected by the Corporation.
(vi) The Applicable Rate with respect to each
Dividend Period beginning on or after July 1, 2001 will be
calculated as promptly as practicable by the Corporation
according to the appropriate method described above. The
Corporation will cause notice of each Applicable Rate to be
enclosed with the dividend payment checks next mailed to the
holders of Preferred Stock, Series E.
(vii) As used above, the term "Calendar Period"
means a period of fourteen calendar days; the term "Federal
Reserve Board" means the Board of Governors of the Federal
Reserve System; the term "Special Securities" means securities
which can, at the option of the holder, be surrendered at face
value in payment of any Federal estate tax or which provide
tax benefits to the holder and are priced to reflect such tax
benefits or which were originally issued at a deep or
substantial discount; the term "Ten Year Average Yield" means
the average yield to maturity for actively traded marketable
U.S. Treasury fixed interest rate securities (adjusted to
constant maturities of ten years); and the term "Thirty Year
Average Yield" means the average yield to maturity for
actively traded marketable U.S. Treasury fixed interest rate
securities (adjusted to constant maturities of thirty years).
(viii) If one or more amendments to the Internal
Revenue Code of 1986, as amended (the "Code"), are enacted
that change the percentage of the dividends received deduction
as specified in Section 243(a)(1) of the Code or any successor
provision (the "Dividends Received Percentage"), the amount of
each dividend payable per share of the Preferred Stock, Series
E for dividend payments made on or after the date of enactment
of such change shall be adjusted by multiplying the amount of
the dividend payable determined as described above (before
adjustment) by a factor, which shall be the number determined
in accordance with the following formula (the "DRD Formula"),
and rounding the result to the nearest cent:
1-[.35 (1 - .70)]
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1-[.35 (1 - DRP)]
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For the purposes of the DRD Formula, "DRP" means the Dividends
Received Percentage applicable to the dividend in question. No
amendment to the Code, other than a change in the percentage
of the dividends received deduction set forth in Section 243
(a)(1) of the Code or any successor provision, will give rise
to an adjustment. Notwithstanding the foregoing provisions, in
the event that, with respect to any such amendment, the
Corporation shall receive either an unqualified opinion of
nationally recognized independent tax counsel selected by the
Corporation and approved by Skadden, Arps, Slate, Meagher &
Flom (which approval shall not be unreasonably withheld) or a
private letter ruling or similar form of authorization from
the Internal Revenue Service to the effect that such an
amendment would not apply to dividends payable on the
Preferred Stock, Series E, then any such amendment shall not
result in the adjustment provided for pursuant to the DRD
Formula. The opinion referenced in the previous sentence shall
be based upon a specific exception in the legislation amending
the DRP or upon a published pronouncement of the Internal
Revenue Service addressing such legislation. Unless the
context otherwise requires, references to dividends in this
Certificate of Designations shall mean dividends as adjusted
by the DRD Formula. The Corporation's calculation of the
dividends payable as so adjusted and as certified accurate as
to calculation and reasonable as to method by the independent
certified public accountants then regularly engaged by the
Corporation, shall be final and not subject to review.
(ix) If any amendment to the Code which reduces
the Dividends Received Percentage is enacted after a dividend
payable on a Dividend Payment Date has been declared, the
amount of dividend payable on such Dividend Payment Date will
not be increased in accordance with paragraph (viii) above,
but instead, an amount equal to the excess of (x) the product
of the dividends paid by the Corporation on such Dividend
Payment Date and the DRD Formula (where the DRP used in the
DRD Formula would be equal to the reduced Dividends Received
Percentage) and (y) the dividends paid by the Corporation on
such Dividend Payment Date, will be payable to holders of
record on the next succeeding Dividend Payment Date in
addition to any other amounts payable on such date.
(x) If, prior to January 2, 1997, an amendment to
the Code is enacted that reduces the Dividends Received
Percentage and such reduction retroactively applies to a
Dividend Payment Date as to which the Corporation previously
paid dividends on the Preferred Stock, Series E (each an
"Affected Dividend Payment Date"), holders of the Preferred
Stock, Series E shall be entitled to receive as, if and when
declared by the Board of Directors or the Stock Committee, out
of funds legally available for that purpose, additional
dividends (the "Additional Dividends") on the next succeeding
Dividend Payment Date (or if such amendment is enacted after
the dividend payable on such Dividend Payment Date has been
declared, on the second succeeding Dividend Payment Date
following the date of enactment) to holders of record on such
succeeding Dividend Payment Date in an amount equal to the
excess of (x) the product of the dividends paid by the
Corporation on each Affected Dividend Payment Date and the DRD
Formula (where the DRP used in the DRD Formula
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would be equal to the Dividends Received Percentage applied to
each Affected Dividend Payment Date) and (y) the dividends
paid by the Corporation on each Affected Dividend Payment
Date. Additional Dividends will not be paid in respect of the
enactment of any amendment to the Code if such amendment would
not result in an adjustment due to the Corporation having
received either an opinion of counsel or tax ruling referred
to in paragraph (viii) above. The Corporation shall only make
one payment of Additional Dividends.
(xi) In the event that the amount of dividend
payable per share of the Preferred Stock, Series E, shall be
adjusted pursuant to the DRD Formula and/or Additional
Dividends are to be paid, the Corporation will cause notice of
each such adjustment and, if applicable, any Additional
Dividends, to be sent to the holders of the Preferred Stock,
Series E.
(c) So long as any shares of the Preferred Stock, Series E, are
outstanding, no full dividends shall be declared or paid or set apart for
payment on the preferred stock of the Corporation of any series ranking, as to
dividends, on a parity with or junior to the Preferred Stock, Series E, for any
period unless full dividends for the Dividend Period immediately preceding the
date of payment of such full dividends have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof set
apart for such payment on the Preferred Stock, Series E. When dividends are not
paid in full, as aforesaid, upon the shares of the Preferred Stock, Series E,
and any other preferred stock of the Corporation ranking on a parity as to
dividends with the Preferred Stock, Series E, all dividends declared upon
shares of the Preferred Stock, Series E, and any other preferred stock of the
Corporation ranking on a parity as to dividends (whether dividends on such
other preferred stock are cumulative or noncumulative) with the Preferred
Stock, Series E, shall be declared pro rata so that the amount of dividends
declared per share on the Preferred Stock, Series E, and such other preferred
stock shall in all cases bear to each other the same ratio that accrued
dividends per share on the shares of the Preferred Stock, Series E (but without
any cumulation in respect of unpaid dividends for Dividend Periods prior to the
immediately preceding Dividend Period on the Preferred Stock, Series E and any
other noncumulative preferred stock) and such other preferred stock bear to
each other. Holders of shares of the Preferred Stock, Series E shall not be
entitled to any dividends, whether payable in cash, property or stock, in
excess of full dividends, as herein provided, on the Preferred Stock, Series E.
No interest, or sum of money in lieu of interest, shall be payable in respect
of any dividend payment on the Preferred Stock, Series E which may be in
arrears.
(d) So long as any shares of the Preferred Stock, Series E are
outstanding, no dividend (other than dividends or distributions paid in shares
of, or options, warrants or rights to subscribe for or purchase shares of stock
ranking junior to the Preferred Stock, Series E, as to dividends and upon
liquidation and other than as provided in subsection (c) of this Section (2))
shall be declared or paid or set aside for payment or other distribution
declared or made upon any stock of the Corporation ranking junior to or on a
parity with the Preferred Stock, Series E, as to dividends or upon liquidation,
nor shall any stock of the Corporation ranking junior to or on a parity with
the Preferred Stock, Series E, as to dividends or upon liquidation be redeemed,
purchased or otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the
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redemption of any shares of any such stock) by the Corporation (except by
conversion into or exchange for stock of the Corporation ranking junior to the
Preferred Stock, Series E, as to dividends and upon liquidation) unless, in
each case, full dividends for the immediately preceding Dividend Period shall
have been paid or set apart for payment and the Corporation is not in default
with respect to any redemption of shares of Preferred Stock, Series E,
announced by the Corporation pursuant to Section (4) below.
(3) Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation (whether capital or surplus)
shall be made to or set apart for the holders of any series or class or classes
of stock of the Corporation ranking junior to the Preferred Stock, Series E,
upon liquidation, dissolution or winding up, the holders of the shares of the
Preferred Stock, Series E, shall be entitled to receive $50 per share plus an
amount equal to all dividends (whether or not earned or declared) accrued and
unpaid thereon from the immediately preceding dividend payment date (but
without any cumulation for unpaid dividends for prior Dividend Periods on the
Preferred Stock, Series E) to the date of final distribution to such holders;
but such holders shall not be entitled to any further payment. If, upon any
liquidation, dissolution or winding up of the Corporation, the assets of the
Corporation, or proceeds thereof, distributable among the holders of the shares
of the Preferred Stock, Series E, shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any other preferred
stock ranking, as to liquidation, dissolution or winding up, on a parity with
the Preferred Stock, Series E, then such assets, or the proceeds thereof, shall
be distributed among the holders of shares of Preferred Stock, Series E, and
any such other preferred stock ratably in accordance with the respective
amounts which would be payable on such shares of Preferred Stock, Series E, and
any such other preferred stock if all amounts payable thereon were paid in
full. For the purposes of this Section (3), a consolidation or merger of the
Corporation with one or more corporations shall not be deemed to be a
liquidation, dissolution or winding up, voluntary or involuntary.
(b) Subject to the rights of holders of shares of any series or
class or classes of stock ranking on a parity with or prior to the Preferred
Stock, Series E, as to distribution of assets upon liquidation, dissolution or
winding up, upon any liquidation, dissolution or winding up of the Corporation,
after payment shall have been made in full to the holders of Preferred Stock,
Series E, as provided in this Section (3), but not prior thereto, any other
series or class or classes of stock ranking junior to the Preferred Stock,
Series E, upon liquidation shall, subject to the respective terms and
provisions (if any) applying thereto, be entitled to receive any and all assets
remaining to be paid or distributed, and the holders of the Preferred Stock,
Series E, shall not be entitled to share therein.
(4) Redemption.
(a) Except as provided in subsections (b) and (c) of this Section
(4), the Preferred Stock, Series E, may not be redeemed prior to July 1, 2001.
At any time or from time to time on and after July 1, 2001, the Corporation, at
its option, may, with prior Federal Reserve Board approval to the extent then
required by applicable law, redeem shares of the Preferred Stock, Series E, in
whole or in part, out of funds legally available therefor, at a redemption
price of $50 per share, together in each
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case with accrued and unpaid dividends (whether or not declared) from the
immediately preceding dividend payment date (but without any cumulation for
unpaid dividends for prior Dividend Periods on the Preferred Stock, Series E)
to the date fixed for redemption.
(b) If the Dividends Received Percentage is equal to or less than
40% and, as a result, the amount of dividends on the Preferred Stock, Series E
payable on any Dividend Payment Date will be or is adjusted upwards as
described in paragraph 2(b)(viii) above, the Corporation, at its option, with
prior Federal Reserve Board approval to the extent then required by applicable
law, may redeem all, but not less than all, of the outstanding shares of the
Preferred Stock, Series E, out of funds legally available therefor, provided,
that within sixty days of the date on which an amendment to the Code is enacted
which reduces the Dividends Received Percentage to 40% or less, the Corporation
sends notice to holders of the Preferred Stock, Series E of such redemption in
accordance with subsection (d) below. Any redemption of the Preferred Stock,
Series E in accordance with this subsection (b) shall be on notice as aforesaid
at the applicable redemption price set forth in the following table, in each
case plus accrued and unpaid dividends (whether or not declared) from the
immediately preceding dividend payment date (but without any cumulation for
unpaid dividends for prior Dividend Periods on the Preferred Stock, Series E)
to the date fixed for redemption.
REDEMPTION PERIOD REDEMPTION PRICE PER SHARE
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June 21, 1996 to June 30, 1997 $52.50
July 1, 1997 to June 30, 1998 52.00
July 1, 1998 to June 30, 1999 51.50
July 1, 1999 to June 30, 2000 51.00
July 1, 2000 to June 30, 2001 50.50
On or after July 1, 2001 50.00
(c) The Corporation, at its option, may, with prior Federal
Reserve Board approval to the extent then required by applicable law, redeem
all, but not less than all, of the outstanding shares of the Preferred Stock,
Series E, out of funds legally available therefor if the holders of the shares
of the Preferred Stock, Series E, shall be entitled to vote upon or consent to
a merger or consolidation of the Corporation as provided in Section 11 below
and all of the following conditions have been satisfied: (i) the Corporation
shall have requested the vote or consent of the holders of the Preferred Stock,
Series E, to the consummation of such merger or consolidation, stating in such
request that failing the requisite favorable vote or consent the Corporation
will have the option to redeem the Preferred Stock, Series E, (ii) the
Corporation shall not have received the favorable vote or consent requisite to
the consummation of the transaction within 60 days after making such written
request (which shall be deemed to have been made upon the mailing of the notice
of any meeting of holders of the Preferred Stock, Series E, to vote upon such
merger or consolidation or the mailing of the form of written consent to be
signed by such holders), and (iii) such transaction shall be consummated on the
date fixed for such redemption, which date shall be no more than one year after
such request is made. Any such redemption shall be on notice as set forth in
subsection (d) of this Section 4 at a redemption price of $50 per share of the
Preferred Stock, Series E, together with accrued and unpaid dividends, if any,
from the immediately preceding dividend payment date (but without any
cumulation for unpaid dividends for prior Dividend Periods on the Preferred
Stock, Series E) to the date fixed
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for redemption.
(d) In the event the Corporation shall redeem shares of Preferred
Stock, Series E, notice of such redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
redemption date, to each holder of record of the shares to be redeemed, at such
holder's address as the same appears on the stock register of the Corporation.
Each such notice shall state: (1) the redemption date; (2) the number of shares
of Preferred Stock, Series E, to be redeemed and, if less than all the shares
held by such holder are to be redeemed, the number of such shares to be
redeemed from such holder; (3) the redemption price; (4) the place or places
where certificates for such shares are to be surrendered for payment of the
redemption price; and (5) that dividends on the shares to be redeemed will
cease to accrue on such redemption date. Notice having been mailed as
aforesaid, from and after the redemption date (unless default shall be made by
the Corporation in providing money for the payment of the redemption price,
together with accrued and unpaid dividends from the immediately preceding
dividend payment date to the date of redemption) dividends on the shares of the
Preferred Stock, Series E, so called for redemption shall cease to accrue, and
said shares shall no longer be deemed to be outstanding, and all rights of the
holders thereof as stockholders of the Corporation (except the right to receive
from the Corporation the redemption price, together with accrued and unpaid
dividends from the immediately preceding dividend payment date, whether or not
declared) shall cease. The Corporation's obligation to provide moneys in
accordance with the preceding sentence shall be deemed fulfilled if, on or
before the redemption date, the Corporation shall deposit with a bank or trust
company (which may be an affiliate of the Corporation) having an office in the
Borough of Manhattan, City of New York, having a capital and surplus of at
least $50,000,000, funds necessary for such redemption, in trust, with
irrevocable instructions that such funds be applied to the redemption of the
shares of Preferred Stock, Series E, so called for redemption. Any interest
accrued on such funds shall be paid to the Corporation from time to time. Any
funds so deposited and unclaimed at the end of two years from such redemption
date shall be released or repaid to the Corporation, after which the holder or
holders of such shares of Preferred Stock, Series E, so called for redemption
shall look only to the Corporation for payment of the funds necessary for such
redemption. Upon surrender in accordance with said notice of the certificates
for any shares so redeemed (properly endorsed or assigned for transfer, if the
Board of Directors shall so require and the notice shall so state), such shares
shall be redeemed by the Corporation at the applicable redemption price
aforesaid, together with accrued and unpaid dividends from the immediately
preceding dividend payment date to the date of redemption. If less than all the
outstanding shares of Preferred Stock, Series E, are to be redeemed, shares to
be redeemed shall be selected by the Corporation from outstanding shares of
Preferred Stock, Series E, not previously called for redemption by lot or pro
rata (as nearly as may be) or by any other method determined by the Corporation
in its sole discretion to be equitable. If fewer than all the shares
represented by any certificate are redeemed a new certificate shall be issued
representing the unredeemed shares without cost to the holder thereof.
(e) In no event shall the Corporation redeem less than all the
outstanding shares of Preferred Stock, Series E, pursuant to subsection (a) of
this Section (4) unless full dividends shall have been paid or declared and set
apart for payment upon all outstanding shares of Preferred Stock, Series E, for
the Dividend Period immediately preceding the date of redemption (but without
any cumulation for unpaid dividends for prior Dividend Periods on the Preferred
Stock, Series E).
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(5) Shares to be Retired. All shares of Preferred Stock, Series E,
purchased or redeemed by the Corporation shall be retired and canceled and the
Board of Directors shall cause to be taken all action necessary to restore such
shares to the status of authorized but unissued shares of preferred stock,
without designation as to series, and such shares may thereafter be issued, but
not as shares of Preferred Stock, Series E.
(6) Conversion or Exchange. The holders of shares of Preferred
Stock, Series E, shall not have any rights herein to convert such shares into
or exchange such shares for shares of any other class or classes or of any
other series of any class or classes of capital stock (or any other security)
of the Corporation.
(7) Ranking. Any class or series of stock of the Corporation shall
be deemed to rank:
(i) prior to the Preferred Stock, Series E, as to
dividends or as to distribution of assets upon liquidation,
dissolution or winding up, if holders of such class shall be
entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up, as
the case may be, in preference or priority to the holders of
Preferred Stock, Series E;
(ii) on a parity with the Preferred Stock, Series
E, as to dividends or as to distribution of assets upon
liquidation, dissolution or winding up, whether or not the
dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof be different from those
of the Preferred Stock, Series E, if the holders of such class
of stock and the Preferred Stock, Series E (whether or not
such class of stock is cumulative or noncumulative as to
payment of dividends) shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in proportion
to their respective amounts of accrued and unpaid dividends
per share or liquidation prices, without preference or
priority one over the other (except with respect to the
cumulation of dividends on such class of stock); and
(iii) junior to the Preferred Stock, Series E, as
to dividends or as to the distribution of assets upon
liquidation, dissolution or winding up, if such stock shall be
common stock or if the holders of Preferred Stock, Series E,
shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up, as
the case may be, in preference or priority to the holders of
shares of such stock. Accordingly, the Preferred Stock, Series
E, shall be deemed to rank on a parity with all other series
of preferred stock of the Corporation (whether or not such
other series of preferred stock is cumulative or noncumulative
as to payment of dividends) outstanding on the date on which
this Certificate of Designation is first filed with the
Secretary of State of the State of Delaware.
(8) Exclusion of Other Rights. Unless otherwise required by law,
shares of Preferred Stock, Series E, shall not have any rights, including
preemptive rights, or preferences other than those specifically set forth
herein or as provided by applicable law.
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(9) Notices. All notices or communications, unless otherwise
specified in the Bylaws of the Corporation or the Restated Certificate of
Incorporation, as amended, shall be sufficiently given if in writing and
delivered in person or mailed by first-class mail, postage prepaid to the
holders of record of the Preferred Stock, Series E. Notice shall be deemed
given on the earlier of the date received or the date such notice is mailed.
(10) Record Holders. The Corporation and the transfer agent for the
Preferred Stock, Series E, may deem and treat the record holder of any share of
such Preferred Stock as the true and lawful owner thereof for all purposes, and
neither the Corporation nor such transfer agent shall be affected by any notice
to the contrary.
(11) Voting Rights. Except as hereinafter set forth in this Section
(11) or as otherwise from time to time required by law, the Preferred Stock,
Series E, shall have no voting rights. Whenever, at any time or times,
dividends payable on the Preferred Stock, Series E, shall be unpaid for such
number of dividend periods, whether or not consecutive, which shall in the
aggregate contain not less than 540 days, the holders of the outstanding
Preferred Stock, Series E, shall have the exclusive right, voting separately as
a class with holders of shares of any one or more other series of preferred
stock ranking on a parity with the Preferred Stock, Series E, either as to
dividends (whether or not such other series of preferred stock is cumulative or
noncumulative as to payment of dividends) or on the distribution of assets upon
liquidation, dissolution or winding up and upon which like voting rights have
been conferred and are exercisable, to elect two directors of the Corporation
at the Corporation's next annual meeting of stockholders and at each subsequent
annual meeting of stockholders. At elections for such directors, each holder of
the Preferred Stock, Series E, shall be entitled to one vote for each share
held (the holders of shares of any other series of preferred stock ranking on
such a parity being entitled to such number of votes, if any, for each share of
stock held as may be granted to them). Upon the vesting of such right of such
holders, the maximum authorized number of members of the Board of Directors
shall automatically be increased by two and the two vacancies so created shall
be filled by vote of the holders of such outstanding shares of the Preferred
Stock, Series E (either alone or together with the holders of shares of any one
or more other series of preferred stock ranking on such a parity and upon which
like voting rights have been conferred and are exercisable) as hereinafter set
forth. The right of such holders of such shares of the Preferred Stock, Series
E, voting separately as a class, to elect (together with the holders of shares
of any one or more other series of preferred stock ranking on such a parity and
upon which like voting rights have been conferred and are exercisable) members
of the Board of Directors of the Corporation as aforesaid shall continue until
such time as all dividends on the Preferred Stock, Series E, shall have been
paid in full for at least one year, at which time such right shall terminate,
except as herein or by law expressly provided, subject to revesting in the
event of each and every subsequent default of the character above mentioned.
Upon any termination of the right of the holders of the Preferred
Stock, Series E, as a class to vote for directors as herein provided, the term
of office of all directors then in office elected by such holders voting as a
class shall terminate immediately. If the office of any director elected by
such holders voting as a class becomes vacant by reason of death, resignation,
retirement, disqualification, removal from office or otherwise, the remaining
director elected by such holders voting as a class may choose a successor who
shall hold office for the unexpired term in respect of which such vacancy
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occurred. Whenever the term of office of the directors elected by such holders
voting as a class shall end and the special voting powers vested in such
holders as provided in this Section (11) shall have expired, the number of
directors shall automatically be decreased to such number as may be provided
for in the By-Laws irrespective of any increase made pursuant to the provisions
of this Section (11).
So long as any shares of the Preferred Stock, Series E, remain
outstanding, the consent of the holders of at least two-thirds of the shares of
the Preferred Stock, Series E, outstanding at the time (voting separately as a
class together with all other series of preferred stock ranking on a parity
with such series either as to dividends (whether or not such other series of
preferred stock is cumulative or noncumulative as to payment of dividends) or
the distribution of assets upon liquidation, dissolution or winding up and upon
which like voting rights have been conferred and are exercisable) given in
person or by proxy, either in writing or at any special or annual meeting
called for the purpose, shall be necessary to permit, effect or validate any
one or more of the following:
(a) The authorization, creation or issuance, or any increase in the
authorized or issued amount, of any class or series of stock ranking prior to
the Preferred Stock, Series E, with respect to payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up, or
(b) The amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the Restated
Certificate of Incorporation, as amended, or of the resolution contained in
this Certificate of Designations for the Preferred Stock, Series E, and the
powers, preferences and privileges, relative, participating, optional and other
special rights and qualifications, limitations and restrictions thereof which
would materially and adversely affect any right, preference, privilege or
voting power of the Preferred Stock, Series E, or of the holders thereof;
provided, however, that any increase in the amount of authorized preferred
stock or the creation and issuance of other series of preferred stock, or any
increase in the amount of authorized shares of the Preferred Stock, Series E,
or of any other series of preferred stock, in each case ranking on a parity
with or junior to the Preferred Stock, Series E, with respect to the payment of
dividends (whether or not such other series of preferred stock is cumulative or
noncumulative as to payment of dividends) and the distribution of assets upon
liquidation, dissolution or winding up, shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting powers.
The foregoing voting provisions shall not apply if, at or prior to the
time when the act with respect to such vote would otherwise be required shall
be effected, all outstanding shares of the Preferred Stock, Series E, shall
have been redeemed or sufficient funds shall have been deposited in trust to
effect such redemption, scheduled to be consummated within three months after
such time.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be signed by Mark W. Yonkman, its Vice President and Assistant
Secretary, as of the 18th day of June, 1996.
COMERICA INCORPORATED
By: /s/ Mark W. Yonkman
------------------------
Mark W. Yonkman
Its: Vice President and
Assistant Secretary
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