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EXHIBIT 1.1
July 25, 2001
COMERICA CAPITAL I
COMERICA CAPITAL II
PREFERRED SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED BY
COMERICA INCORPORATED
UNDERWRITING AGREEMENT
1. Introductory. Comerica Incorporated, a Delaware corporation (the
"COMPANY"), proposes to issue and sell from time to time certain undivided
beneficial interests represented by preferred securities (the "PREFERRED
SECURITIES") of Comerica Capital Trust I or Comerica Capital Trust II, each a
statutory business trust formed under the Business Trust Act of the State of
Delaware (the trust involved in any such offering hereinafter referred to as the
"TRUST"), guaranteed by the Company pursuant to a Guarantee Agreement (the
"GUARANTEE Agreement" and, together with the Preferred Securities and the Junior
Subordinated Debentures referred to below, the "REGISTERED SECURITIES") between
the Company and Chase Manhattan Trust Company, National Association, as
guarantee trustee (the "GUARANTEE TRUSTEE"). The Company will be the owner of
all of the undivided beneficial ownership interests represented by the common
securities (the "COMMON SECURITIES") of the Trust. The Trust will issue the
Preferred Securities and the Common Securities to the Company in exchange for
Junior Subordinated Debentures (the "JUNIOR SUBORDINATED DEBENTURES") issued by
the Company. The Junior Subordinated Debentures are to be issued pursuant to an
Indenture (the "INDENTURE") dated as of July 31, 2001, between the Company and
Chase Manhattan Trust Company, National Association, as indenture trustee (the
"INDENTURE TRUSTEE"). The Registered Securities may be issued in one or more
series, which series may vary as to distribution and interest rates, maturities,
redemption provisions, selling prices and other terms with all such terms for
any particular series of the Registered Securities being determined at the time
of sale. Particular series or offerings of Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3, for resale in accordance
with terms of offering determined at the time of sale.
The Registered Securities specified in Schedule A to the Terms
Agreement are hereinafter referred to as the "FIRM SECURITIES." If specified in
such Terms Agreement, the Company and the Trust may grant to the Underwriters
(as defined below) the right to purchase at their election an additional number
of Registered Securities in any such offering as provided in Section 3 hereof
(the "OPTIONAL SECURITIES"). The Firm Securities and the Optional Securities, if
any, involved in any such offering are hereinafter referred to as the "OFFERED
SECURITIES." The firm or firms which agree to purchase the Offered Securities
are hereinafter referred to as the "UNDERWRITERS" of such securities, and the
representative or representatives of the Underwriters, if any, specified in a
Terms Agreement referred to in Section 3 are hereinafter referred to as the
"REPRESENTATIVES"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term "REPRESENTATIVES", as
used in this Agreement (other than in Sections 2(b), 5(c) and 6 and the second
sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company and the Trust. The
Company and the Trust, as of the date of each Terms Agreement referred to in
Section 3, jointly and severally, represent and warrant to, and agree with, each
Underwriter that:
(a) A registration statement (No. 333-63090), including a
prospectus, relating to the
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Registered Securities has been filed with the Securities and Exchange
Commission ("COMMISSION") and has become effective. Such registration
statement, as amended at the time of any Terms Agreement referred to in
Section 3, is hereinafter referred to as the "REGISTRATION STATEMENT,"
and the prospectus included in such Registration Statement, as
supplemented as contemplated by Section 3 to reflect the terms of the
Offered Securities and the terms of offering thereof, as first filed
with the Commission pursuant to and in accordance with Rule 424(b)
("RULE 424(B)") under the Securities Act of 1933 ("ACT"), including all
material incorporated by reference therein, is hereinafter referred to
as the "PROSPECTUS". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(c) On the effective date of the registration statement
relating to the Registered Securities, such registration statement
conformed in all material respects to the requirements of the Act, the
Trust Indenture Act of 1939 ("TRUST INDENTURE ACT") and the rules and
regulations of the Commission ("RULES AND REGULATIONS") and did not
include 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, and on the date of each Terms
Agreement referred to in Section 3, the Registration Statement and the
Prospectus will conform in all material respects to the requirements of
the Act, the Trust Indenture Act and the Rules and Regulations, and the
Registration Statement will not include 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, and
the Prospectus will not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements in the light of the circumstances under which they were
made, not misleading, except that the foregoing does not apply to
statements in or omissions from any of such documents based upon
written information furnished to the Company by any Underwriter through
the Representatives, if any, specifically for use therein.
(d) The Company has been duly incorporated and is an existing
corporation or in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification other than
such jurisdictions in which the failure to so qualify, individually or
in the aggregate, would not reasonably be expected to have a material
adverse effect on the financial condition, business or results of
operations of the Company and its subsidiaries taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(e) Each significant subsidiary (as defined in Regulation S-X
promulgated by the Commission) of the Company (each a "Significant
Subsidiary") has been duly incorporated and is an existing corporation
in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus;
and each Significant Subsidiary of the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification other than such
jurisdictions in which the failure to so qualify, individually or in
the aggregate, would not reasonably be expected to have a Material
Adverse Effect; all of the issued and outstanding capital stock of each
Significant Subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable (except as provided
by 12 U.S.C. ss. 55 or any comparable provision of applicable state
law); and the capital stock of each Significant Subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects other than such liens, encumbrances and
defects which would not individually or in the aggregate reasonably be
expected to have a Material Adverse Effect.
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(f) The Trust has been duly created and is validly existing as
a statutory business trust in good standing under the Business Trust
Act of the State of Delaware (the "DELAWARE BUSINESS TRUST ACT") with
trust power and authority to own property and conduct its business as
described in the Prospectus; the Trust has conducted and will conduct
no business other than the transactions contemplated by this Agreement
and as described in the Prospectus; the Trust is not a party to or
bound by any agreement or instrument other than this Agreement, the
Declaration of Trust dated as of June 12, 2001 and the Amended and
Restated Declaration of Trust (the "DECLARATION") among the Company,
Chase Manhattan Trust Company, National Association, as property
trustee (the "PROPERTY TRUSTEE"), Chase Manhattan Bank USA, National
Association, as Delaware trustee (the "DELAWARE TRUSTEE") and the
individuals named therein as the administrative trustees (the
"ADMINISTRATIVE TRUSTEES," and together with the Property Trustee and
the Delaware Trustees, the "TRUSTEES"), and the holders, from time to
time, of undivided beneficial ownership interests in the assets of the
Trust, and the agreements and instruments contemplated by the
Declaration and described in the Prospectus; the Trust has no
liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the agreements and
instruments contemplated by the Declaration and described in the
Prospectus; and the Trust is not a party or subject to any action, suit
or proceeding of any nature.
(g) The Declaration has been duly authorized, and when
executed and delivered by the Company, as Sponsor, and the
Administrative Trustees, and, assuming due authorization, execution and
delivery of the Declaration by the Property Trustee and the Delaware
Trustee, will constitute a valid and legally binding obligation of the
Company and the Trust, enforceable against the Company and the Trust in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance and transfer, reorganization,
moratorium and other similar laws of general applicability relating to
or affecting creditors' rights and to general equitable principles, and
will conform to the description thereof contained in the Prospectus.
Each of the Administrative Trustees currently is an employee of the
Company and has been duly authorized by the Company to serve in such
capacity and to execute and deliver the Declaration.
(h) The Preferred Securities and the Common Securities have
been duly and validly authorized and, when issued and delivered in
exchange for the Junior Subordinated Debentures as described above,
will be duly and validly issued and fully paid and the Preferred
Securities will be non-assessable; and the Preferred Securities and the
Common Securities, when issued and delivered, will conform in all
material respects to the description thereof contained in the
Prospectus.
(i) The Indenture has been duly qualified under the Trust
Indenture Act; the Indenture has been duly authorized and when executed
and delivered by the Company, assuming due execution and delivery by
the Indenture Trustee, will constitute a valid and legally binding
agreement of the Company enforceable against the Company in accordance
with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws of general applicability relating to or affecting creditors'
rights and to general equitable principles, and will conform in all
material respects to the description thereof contained in the
Prospectus; the Junior Subordinated Debentures have been duly
authorized and, when duly executed, authenticated and delivered as
provided in the Indenture and paid for pursuant to the Terms Agreement
on the Closing Date (as defined below), will be duly and validly issued
and outstanding and will constitute valid and legally binding
obligations of the Company entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights and to
general equitable principles; and the Junior Subordinated Debentures,
when issued and delivered, will conform in all material respects to the
description thereof contained in the Prospectus.
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(j) The Guarantee Agreement has been duly authorized and when
executed and delivered by the Company, assuming due execution and
delivery by the Guarantee Trustee, will constitute a valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws of general applicability relating to or affecting
creditors' rights and to general equitable principles, and will conform
in all material respects to the description thereof contained in the
Prospectus.
(k) The Terms Agreement (including the provisions of this
Agreement) has been duly authorized, executed and delivered by each of
the Company and the Trust.
(l) The issuance of the Offered Securities is not subject to
any preemptive or similar rights.
(m) The Offered Securities have been approved for listing on
the stock exchange indicated in the Terms Agreement, subject to notice
of issuance.
(n) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement) in connection
with the issuance and sale of the Offered Securities by the Company,
except such as have been obtained and made under the Act and the Trust
Indenture Act and such as may be required under state securities laws
and except for such state banking notices which are required to be
given after the fact.
(o) The execution, delivery and performance of the
Declaration, the Guarantee Agreement, the Indenture, the Terms
Agreement (including the provisions of this Agreement), the issuance of
the Common Securities and the Preferred Securities by the Trust in
exchange for the Junior Subordinated Debentures, the issuance of the
Junior Subordinated Debentures by the Company in exchange for the
Common Securities and the Preferred Securities, the sale of the
Preferred Securities by the Company, the compliance with the terms of
each of the Offered Securities by the issuer thereof and the
consummation of the other transactions contemplated herein and therein
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (i) any statute, any
rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or the Trust or any of their properties, or
any agreement or instrument to which the Company or any such subsidiary
or the Trust is a party or by which the Company or any such subsidiary
or the Trust is bound or to which any of the properties of the Company
or any such subsidiary or the Trust is subject, except for any
breaches, violations or defaults as would not individually or in the
aggregate reasonably be expected to have a Material Adverse Effect, or
(ii) the charter or by-laws of the Company or any such subsidiary or
the Declaration of the Trust. The Trust has full power and authority to
authorize, issue and sell the Preferred Securities to the Company, the
Company has full power and authority to authorize, issue and sell the
Junior Subordinated Debentures to the Trust and the Company has full
power and authority to sell the Offered Securities as contemplated by
the Terms Agreement (including the provisions of this Agreement).
(p) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its subsidiaries
would individually or in the aggregate reasonably be expected to have a
Material Adverse Effect.
(q) No labor dispute with the employees of the Company or any
subsidiary exists or, to the
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knowledge of the Company, is imminent that would reasonably be expected
to have a Material Adverse Effect.
(s) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries would
individually or in the aggregate be reasonably be expected to have a
Material Adverse Effect, or would materially and adversely affect the
ability of the Company or the Trust to perform their obligations under
this Agreement, the Declaration, the Guarantee Agreement, the Indenture
or the Terms Agreement (including the provisions of this Agreement);
and no such actions, suits or proceedings are threatened or, to the
Company's knowledge, contemplated.
(t) The financial statements included in the Registration
Statement and Prospectus present fairly in all material respects the
financial position of the Company and its consolidated subsidiaries as
of the dates shown and their results of operations and cash flows for
the periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis (except as noted therein);
any schedules included in the Registration Statement present fairly the
information required to be stated therein; and if pro forma financial
statements are included in the Registration Statement and Prospectus:
the assumptions used in preparing the pro forma financial statements
included in the Registration Statement and the Prospectus provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the
related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(u) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the financial
condition, business or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(v) Each of the Company and the Trust is not and, after giving
effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Prospectus,
will not be an "investment company" as defined in the Investment
Company Act of 1940.
(w) The Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended (the "BHC ACT").
(x) The deposit accounts of each of the Company's bank
subsidiaries are insured by the Federal Deposit Insurance Corporation
(the "FDIC") to the fullest extent permitted by law and the rules and
regulations of the FDIC; and no proceedings for the termination of such
insurance are pending or, to the best of the Company's knowledge,
threatened.
(y) Neither the Company nor any of its subsidiaries is party
to or otherwise the subject of any consent decree, memorandum of
understanding, written commitment or other written supervisory
agreement with the Board of Governors of the Federal Reserve System or
any other federal or state authority or agency charged with the
supervision or insurance of depository institutions or their holding
companies.
(a') Immediately prior to the closing of the transactions
contemplated hereby and in the Terms Agreement on the Closing Date, the
Company will have good and valid title to the Preferred
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Securities to be sold by it under the Terms Agreement, free and clear
of all liens, encumbrances, equities or claims; and upon delivery of
the Preferred Securities and payment therefore pursuant to the Terms
Agreement, good and valid title to the Preferred Securities, free and
clear of all liens, encumbrances, equities or claims, will pass to the
several Underwriters.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("TERMS AGREEMENT") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives and the number of shares of
Offered Securities to be purchased by each Underwriter the purchase price to be
paid by the Underwriters and the terms of the Offered Securities not already
specified, including but not limited to the distribution rate, maturity and any
redemption provisions. The Terms Agreement will also specify the time and date
of delivery and payment (such time and date, or such other time not later than
seven full business days thereafter as the Underwriter first named in the Terms
Agreement (the "LEAD UNDERWRITER") and the Company agree as the time for payment
and delivery, each time and date of such payment and delivery being herein and
in the Terms Agreement referred to as a "CLOSING DATE"), the place of delivery
and payment and any details of the terms of offering that should be reflected in
the prospectus supplement relating to the offering of the Offered Securities.
For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the
Closing Date (if later than the otherwise applicable settlement date) shall be
the date for payment of funds and delivery of securities for all the Offered
Securities sold pursuant to the offering. The obligations of the Underwriters to
purchase the Offered Securities will be several and not joint. It is understood
that the Underwriters propose to offer the Offered Securities for sale as set
forth in the Prospectus.
The Company and the Trust may specify in the Terms Agreement that the
Company and the Trust thereby grant to the Underwriters the right (an
"OVERALLOTMENT OPTION") to purchase at their election up to the number of
Optional Securities set forth in such Terms Agreement, on the terms set forth in
this section, for the sole purpose of covering over-allotments in the sale of
the Firm Securities. Any such election to purchase Optional Securities may be
exercised by written notice from the Representatives to the Company and the
Trust, given within the period specified in the Terms Agreement, setting forth
the aggregate number of Optional Securities to be purchased and the date on
which such Optional Securities are to be delivered, as determined by the
Representatives but in no event earlier than the Closing Date or, unless the
Representatives, the Company and the Trust otherwise agree in writing, earlier
than or later than the number of business days after the date of such notice set
forth in such Terms Agreement.
The number of Optional Securities to be added to the number of Firm
Securities to be purchased by each Underwriter as set forth in Schedule A to the
Terms Agreement applicable to such Firm Securities shall be, in each case, the
number of Optional Securities which the Company has been advised by the
Representatives have been attributed to such Underwriter; provided that, if the
Company and the Trust have not been so advised, the number of Optional
Securities to be so added shall be, in each case, that proportion of Optional
Securities which the number of Firm Securities to be purchased by such
Underwriter under such Terms Agreement bears to the aggregate number of Firm
Securities (rounded as the Representatives may determine to the nearest 10
shares). The total number of Offered Securities to be purchased by all
Underwriters pursuant to such Terms Agreement shall be the aggregate number of
Firm Securities set forth in Schedule A to such Terms Agreement plus the
aggregate number of Optional Securities which the Underwriters elect to
purchase.
The Company will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global securities in
definitive form (the "GLOBAL SECURITIES") deposited with the Property Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent global securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Prospectus. Payment for the
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Offered Securities shall be made by the Underwriters in Federal (same day) funds
by wire transfer to an account previously designated by the Company, in each
case drawn to the order of Comerica Incorporated at the place of payment
specified in the Terms Agreement on the Closing Date, against delivery to the
Property Trustee as custodian for DTC of the Global Securities representing all
of the Offered Securities.
4. Certain Agreements of the Company and the Trust. Each of the Company
and the Trust, jointly and severally agrees with the several Underwriters that
it will furnish to counsel for the Underwriters, one copy of the signed
registration statement relating to the Registered Securities, including all
exhibits, in the form it became effective and of all amendments thereto and
that, in connection with each offering of Offered Securities:
(a) The Company and the Trust will file the Prospectus with
the Commission pursuant to and in accordance with Rule 424(b)(2) (or,
if applicable and if consented to by the Lead Underwriter, subparagraph
(5)) not later than the second business day following the execution and
delivery of the Terms Agreement.
(b) The Company and the Trust will advise the Lead Underwriter
promptly of any proposal to amend or supplement the Registration
Statement or the Prospectus and will afford the Lead Underwriter a
reasonable opportunity to comment on any such proposed amendment or
supplement; and the Company and the Trust will also advise the Lead
Underwriter promptly of the filing of any such amendment or supplement
and of the institution by the Commission of any stop order proceedings
in respect of the Registration Statement or of any part thereof and
will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs 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 to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company and the Trust promptly will notify the Lead Underwriter of
such event and will promptly prepare and file with the Commission, at
its own expense, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance. Neither the Lead Underwriter's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5
hereof.
(d) As soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the
effective date of the registration statement relating to the Registered
Securities, (ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to
the date of such Terms Agreement and (iii) the date of the Company's
most recent Annual Report on Form 10-K filed with the Commission prior
to the date of such Terms Agreement, which will satisfy the provisions
of Section 11(a) of the Act (including, at the option of the Company,
Rule 158).
(e) The Company and the Trust will furnish to the
Representatives copies of the Registration Statement, including all
exhibits, any related preliminary prospectus, any related preliminary
prospectus supplement, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as the Lead Underwriter reasonably requests. The
Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
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(f) The Company and the Trust will arrange for the
qualification of the Offered Securities for sale and the determination
of their eligibility for investment under the laws of such
jurisdictions as the Lead Underwriter designates and will continue such
qualifications in effect so long as is required for the distribution,
provided that in connection therewith the Company shall not be required
to file a general consent to service of process in any jurisdiction or
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(g) During the period of five years after the date of any
Terms Agreement, the Company will furnish to the Representatives and,
upon request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will make
available (including by way of filing with the Commission) to the
Representatives as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission
under the Securities Exchange Act of 1934 or mailed to stockholders.
(h) The Company will pay all expenses incident to the
performance of its and the Trust's obligations under the Terms
Agreement (including the provisions of this Agreement), for any filing
fees or other expenses (including fees and disbursements of counsel) in
connection with qualification of the Registered Securities for sale and
any determination of their eligibility for investment under the laws of
such jurisdictions as the Lead Underwriter may designate and the
printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Preferred Securities,
for any applicable filing fee incident to, the review by the National
Association of Securities Dealers, Inc. of the Registered Securities,
for any travel expenses of the Company's officers and employees and any
other expenses of the Company or the Trust in connection with attending
or hosting meetings with prospective purchasers of Registered
Securities and for expenses incurred in distributing the Prospectus,
any preliminary prospectuses, any preliminary prospectus supplements or
any other amendments or supplements to the Prospectus to the
Underwriters.
(i) The Company and Trust, during a period of 30 days from
each Closing Date, will not offer, sell, contract to sell or otherwise
dispose of any Preferred Securities, Junior Subordinated Debentures,
any other beneficial interests in the Trust, or any other securities
that are substantially similar to the Preferred Securities or Junior
Subordinated Debentures, including any guarantee of such securities, or
any securities convertible into or exchangeable for or representing the
right to receive Preferred Securities, Junior Subordinated Debentures
or any such substantially similar securities, without the prior written
consent of the Lead Underwriter.
5. Conditions to the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities will
be subject to the accuracy of the representations and warranties on the part of
the Company and the Trust herein, to the accuracy of the statements of Company's
and the Trust's officers made pursuant to the provisions hereof, to the
performance by the Company and the Trust of their obligations hereunder and to
the following additional conditions precedent:
(a) On the date of the Terms Agreement, the Representatives
shall have received a letter, dated the date of such Terms Agreement
from Ernst & Young, LLP addressed to the Underwriters stating to the
effect that:
(i) in their opinion the financial statements and any
schedules and any summary of earnings examined by them and
included in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of
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Certified Public Accountants for a review of interim financial
information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on any unaudited
financial statements included in the Registration Statement;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements, if
any, and any summary of earnings included in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations or any material modifications should be
made to such unaudited financial statements and
summary of earnings for them to be in conformity with
generally accepted accounting principles;
(B) if any unaudited "capsule" information
is contained in the Prospectus, the unaudited
consolidated net sales, net operating income, net
income and net income per share amounts or other
amounts constituting such "capsule" information and
described in such letter do not agree with the
corresponding amounts set forth in the unaudited
consolidated financial statements or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
statements of income;
(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of the such letter,
there was any change in the common stock or any
increase in medium or long-term debt of the Company
and its consolidated subsidiaries or, at the date of
the latest available balance sheet read by such
accountants, there was any decrease in consolidated
total assets, consolidated total deposits,
consolidated other borrowed funds, consolidated
allowance for loan losses or consolidated
shareholders' equity as compared with amounts shown
on the latest balance sheet included in the
Prospectus; or
(D) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year and with
the period of corresponding length ended the date of
the latest income statement included in the
Prospectus, in consolidated net interest income,
consolidated net interest income after provision for
loan losses, consolidated noninterest income, in the
total or per share amounts of consolidated net income
before extraordinary items, in the ratio of earnings
to fixed charges or in the ratio of earnings to fixed
charges and preferred stock dividends combined;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from
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such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting
records and other procedures specified in such letter and have
found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
(b) On the date of the Terms Agreement, the Representatives
shall have received a letter, dated the date of such Terms Agreement
from KPMG LLP in respect of the consolidated financial statements of
Imperial Bancorp and its subsidiaries as of December 31, 2000 and 1999
for each of the years in the three year period ended December 31, 2000
addressed to the Underwriters in form and substance satisfactory to the
Representatives.
(c) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company, the Trust or any Underwriter, shall be
contemplated by the Commission.
(d) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the financial condition, business or
results of operations of the Company and its subsidiaries taken as one
enterprise which, in the judgment of a majority in interest of the
Underwriters including any Representatives, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities;
(ii) any downgrading in the rating of any debt securities or preferred
stock of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act),
or any public announcement that any such organization has under
surveillance or review its rating of any debt securities or preferred
stock of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal or New York authorities; or (v) any
outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including any
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and
payment for the Offered Securities.
(e) Mayer, Brown & Platt shall have furnished to the
Representatives a written opinion, addressed to the Underwriters and
dated the Closing Date to the effect that;
(i) The Company has been duly incorporated and is an
existing corporation or in good standing under the laws of the
State of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus.
(ii) The Terms Agreement (including the provisions of
this Agreement) has been duly authorized, executed and
delivered by the Company and has been duly executed and
delivered by the Trust.
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(iii) The Indenture has been duly authorized,
executed, and delivered by the Company, has been duly
qualified under the Trust Indenture Act, conforms in all
material respects to the description thereof contained in the
Prospectus and, assuming due authorization, execution and
delivery thereof by the Indenture Trustee, constitutes a valid
and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws of general applicability
relating to or affecting creditors' rights and to general
equitable principles.
(iv) The Junior Subordinated Debentures have been
duly authorized, executed and delivered by the Company,
conforms in all material respects to the description thereof
contained in the Prospectus and, assuming due authentification
thereof by the Indenture Trustee and payment and delivery as
provided in the Terms Agreement, constitute valid and legally
binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to the effects
of bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights and
to general equitable principles.
(v) The Guarantee Agreement has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act, conforms in all material
respects to the description thereof contained in the
Prospectus and, assuming due authorization, execution and
delivery by the Guarantee Trustee, constitutes a valid and
legally binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights and
to general equitable principles.
(vi) The Declaration has been duly authorized,
executed and delivered by the Company in its capacity as
sponsor thereunder, conforms in all material respects to the
description thereof contained in the Prospectus and has been
duly qualified under the Trust Indenture Act.
(vii) Neither the Company nor the Trust is, and after
giving effect to the offering and sale of the Offered
Securities and the application of the proceeds thereof as
described in the Prospectus, will be, an "investment company"
as defined in the Investment Company Act of 1940.
(viii) Upon payment for, and delivery of, the
Preferred Securities to be sold by the Company under the Terms
Agreement in accordance with the terms thereof, the
Underwriters will acquire all of the rights of the Company in
the Preferred Securities and will also acquire the interest of
the Company in the Preferred Securities free of any adverse
claim (within the meaning of the Uniform Commercial Code).
Such counsel shall also state that the Registration Statement
has become effective under the Act, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) specified in
such opinion on the date specified therein, and, to the best of the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement or any part thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the registration statement relating to
the Registered Securities, as of its effective date, the Registration
Statement and the Prospectus, as of the date of the Terms Agreement,
and any amendment or supplement thereto, as of its date, complied as
to form in all material respects with the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations; no facts have come
to such counsel's attention that have caused it to believe that such
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Registration Statement, as of its effective date, or as of the Closing
Date, or any amendment thereto, as of its date or as of the Closing
Date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as
of its date or as of the Closing Date, or any amendment or supplement
thereto, as of its date or as of the Closing Date, contained any
untrue statement of a material fact or omitted 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; it
being understood that such counsel need express no opinion as to the
form T-1 or the financial statements or other financial data contained
in or omitted from the Registration Statement or the Prospectus.
(f) Mark W. Yonkman, First Vice President, Assistant Secretary
and General Counsel - Investment Bank and Finance of the Company shall
have furnished to the Representatives a written opinion, addressed to
the Underwriters and dated the Closing Date to the effect that:
(i) The Company is duly qualified to do business as a
foreign corporation in good standing in all jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification.
(ii) Each Significant Subsidiary of the Company has
been duly incorporated and is an existing corporation in good
standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other)
to own its properties and conduct its business as described in
the Prospectus; and each Significant Subsidiary of the Company
is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business
requires such qualification other than such jurisdictions in
which the failure to qualify, individually or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect; all of the issued and outstanding capital
stock of each Significant Subsidiary of the Company has been
duly authorized and validly issued and is fully paid and
nonassessable (except as provided by 12 U.S.C. ss. 55 or any
comparable provision of applicable state law); and the capital
stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances
and defects other than such liens, encumbrances and defects
which would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(iii) The execution, delivery and performance of the
Declaration, the Guarantee Agreement, the Indenture, the Terms
Agreement (including the provisions of this Agreement), the
issuance of the Common Securities and the Preferred Securities
by the Trust in exchange for the Junior Subordinated
Debentures, the issuance of the Junior Subordinated Debentures
by the Company in exchange for the Common Securities and the
Preferred Securities, the sale of the Preferred Securities by
the Company, the compliance with the terms of each of the
Offered Securities by the issuer thereof and the consummation
of the other transactions contemplated herein and therein will
not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (i) any statute,
any rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction
over the Company or any subsidiary of the Company or the Trust
or any of their properties, or any agreement or instrument to
which the Company or any such subsidiary or the Trust is a
party or by which the Company or any such subsidiary or the
Trust is bound or to which any of the properties of the
Company or any such subsidiary or the Trust is subject, except
for any breaches, violations or defaults as would not
individually or in the aggregate reasonably be expected to
have a Material Adverse Effect, or (ii) the charter or by-laws
of the
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Company or any such subsidiary or the Declaration of the
Trust. The Trust has full power and authority to authorize,
issue and sell the Preferred Securities to the Company, the
Company has full power and authority to authorize, issue and
sell the Junior Subordinated Debentures to the Trust and the
Company has full power and authority to sell the Offered
Securities as contemplated by the Terms Agreement (including
the provisions of this Agreement).
(v) No consent, approval, authorization, order,
registration, filing, or qualification of or with any federal
or Delaware governmental agency or body or, to such counsel's
knowledge, any federal or Delaware court is required for the
issue by the Trust of the Preferred Securities in exchange for
the Junior Subordinated Debentures, the issuance by the
Company of the Junior Subordinated Debentures in exchange for
the Preferred Securities, the sale by the Company of the
Preferred Securities, the issuance and sale of the Guarantee
by the Company and the compliance by the Company and the Trust
with all of the provisions of the Terms Agreement and the
consummation of the transactions contemplated by the Terms
Agreement, except for such consents, approvals,
authorizations, registrations, filings, or qualifications as
have been obtained and made under the Act and the Trust
Indenture and such as may be required under state securities
or Blue Sky laws in connection with the purchase and
distribution of the Offered Securities by the Underwriters and
except for such state banking notices which are required to be
given after the fact.
(vi) To the best of such counsel's knowledge, no
contracts, agreements or understandings exist between the
Company and any person granting such person the right to
require the Company to include any securities of the Company
owned or to be owned by such person in the securities
registered pursuant to the Registration Statement.
(vii) To the best of such counsel's knowledge, the
Trust is not a party to or otherwise bound by any agreement
other than those described in the Prospectus.
(viii) The Company is duly registered as a bank
holding company under the BHC Act; and the deposit accounts of
the Company's domestic bank subsidiaries are insured by the
FDIC to the fullest extent permitted by law and the rules and
regulations of the FDIC, and no proceedings for the
termination of such insurance are pending or, to the best
knowledge of such counsel, threatened.
Such counsel shall also state that any documents incorporated
by reference, as of the date it was filed with the Commission,
complied as to form in all material respects with the requirements of
the Act, the Trust Indenture Act and the Rules and Regulations; no
facts have come to such counsel's attention that have caused it to
believe that such Registration Statement, as of its effective date, or
as of the Closing Date, or any amendment thereto, as of its date or as
of the Closing Date, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Terms Agreement or as of the Closing
Date, or any amendment or supplement thereto, as of its date or as of
the Closing Date, contained any untrue statement of a material fact or
omitted 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; the descriptions in the Registration
Statement and Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate and fairly
present the information required to be shown; and such counsel do not
know of any legal or governmental proceedings required to be described
in the Prospectus which are not described as required or of any
contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as
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required; it being understood that such counsel need express no opinion
as to the Form T-1 or the financial statements or other financial data
contained in or omitted from the Registration Statement or the
Prospectus.
(g) Mayer, Brown & Platt shall have furnished to the
Representatives its written opinion, as special United States federal
income tax counsel to the Company and the Trust, addressed to the
Underwriters and dated the Closing Date to the effect that:
(i) The Trust will be classified as a grantor trust
for United States federal income tax purposes and not as an
association taxable as a corporation;
(ii) The Junior Subordinated Debentures will be
classified as indebtedness for United States federal income
tax purposes; and
(iii) Subject to the qualifications and limitations
set forth therein, the statements set forth in the Prospectus
under the caption "United States Federal Income Tax
Consequences," insofar as they purport to constitute summaries
of matters of United States federal tax law and regulations or
legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material
respects.
(h) Richards, Layton & Finger, P.A. shall have furnished to
the Representatives its written opinion, as special Delaware counsel to
the Company and the Trust, addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act; and all filings required under
the laws of the State of Delaware with respect to the creation
and valid existence of the Trust as a business trust have been
made; and under the Declaration and the Delaware Business
Trust Act, the Trust has the trust power and authority to own
property and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under
each of the Terms Agreement, the Preferred Securities and
Common Securities.
(ii) The Declaration constitutes a valid and legally
binding obligation of the Company and the Trustees, and is
enforceable against the Company and the Trustees, in
accordance with its terms, subject, as to enforcement, to the
effect upon the Declaration of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation,
fraudulent transfer and other similar laws relating to the
rights and remedies of creditors generally, (ii) principles of
equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable
public policy on the enforceability of provisions relating to
indemnification or contribution.
(iii) Under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority (i)
to execute and deliver and to perform its obligations under,
the Terms Agreement and (ii) to execute and deliver the
Preferred Securities.
(iv) The Preferred Securities have been duly
authorized by the Declaration and, when issued and delivered
in exchange for the Junior Subordinated Debentures as
described in the Prospectus, the Preferred Securities will be
duly and validly issued and (subject to the qualifications set
forth in this paragraph) fully paid and nonassessable
undivided beneficial interests in the assets of the Trust; the
holders of the Preferred Securities will be entitled to the
benefits of the Declaration and, as beneficial owners of the
Trust, will be
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entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware
(such counsel may note that the holders of Offered Securities
will be subject to the withholding provisions of Section 10.4
of the Declaration and will be required to make payment or
provide indemnity or security in connection with taxes or
governmental charges arising from transfers or exchanges of
certificates for Offered Securities and the issuance of
replacement certificates for Preferred Securities, and to
provide security or indemnity in connection with requests of
or directions to the Property Trustee to exercise its rights
and powers under the Declaration, all as set forth in the
Declaration).
(v) Under the Delaware Business Trust Act and the
Declaration, all necessary trust action has been taken to duly
authorize the execution and delivery by the Trust of this
Agreement and the performance by the Trust of its obligations
thereunder.
(vi) Under the Delaware Business Trust Act and the
Declaration, the issuance of the Offered Securities is not
subject to preemptive rights.
(vii) The issuance by the Trust of the Preferred
Securities in exchange for the Junior Subordinated Debentures,
the sale by the Company of the Preferred Securities, the
execution, delivery and performance by the Trust of this
Agreement, the consummation by the Trust of the transactions
contemplated by this Agreement, the compliance by the Trust
with its obligations thereunder and the performance by the
Company, as sponsor, of its obligations under the Declaration
(A) do not violate (i) any of the provisions of the
Certificate of Trust or the Declaration or (ii) any applicable
Delaware law or administrative regulation and (B) do not
require any consent, approval, license, authorization or
validation of, or filing or registration with, any Delaware
legislative, administrative or regulatory body under the laws
or administrative regulations of the State of Delaware (other
that as may be required under the securities or blue sky laws
of the state of Delaware, as to which such counsel need
express no opinion.
(viii) Assuming that the Trust derives no income from
or connected with services provided within the State of
Delaware and has no assets, activities (other than having a
Delaware Trustee as required by the Delaware Business Trust
Act and the filing of documents with the Secretary of State of
the State of Delaware) or employees in the State of Delaware,
the holders of the Offered Securities (other than those
holders of Offered Securities who reside or are domiciled in
the State of Delaware) will have no liability for income taxes
imposed by the State of Delaware solely as a result of their
participation in the Trust, and the Trust will not be liable
for any income tax imposed by the State of Delaware.
(i) The Representatives shall have received from Simpson
Thacher & Bartlett, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the incorporation of
the Company, the validity of the Offered Securities, the Registration
Statement, the Prospectus and other related matters as the
Representatives may 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.
(j) The Representatives shall have received a certificate,
dated the Closing Date, of the President or any Vice President and the
principal financial or accounting officer of the Company in
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which such officers shall state that, to their knowledge, the
representations and warranties of the Company in this Agreement are
true and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement or of any
part thereof has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission and that,
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the financial condition, business, properties or results of
operations of the Company and its subsidiaries taken as a whole except
as set forth in or contemplated by the Prospectus or as described in
such certificate.
(l) The Representatives shall have received a certificate,
dated the Closing Date, of the Administrative Trustees of the Trust in
which such trustees, to their knowledge, shall state that the
representations and warranties of the Trust in this Agreement are true
and correct and that Trust has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date.
(m) If the Terms Agreement specifies that the Preferred
Securities are to be listed on a stock exchange, such stock exchange
shall have approved the Preferred Securities for listing, subject only
to official notice of issuance and evidence of satisfactory
distribution.
(n) With respect to the letter of Ernst & Young LLP delivered
to the Representatives concurrently with the execution of the Terms
Agreement which meets the requirements of subsection (a) of this
Section (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) 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 three 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 (ii) confirming in all material respects the conclusions and
findings set forth in the initial letter.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company and the Trust,
jointly and severally, will indemnify and hold harmless each Underwriter, its
partners, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein, it being understood and
agreed that the only
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such information furnished by any Underwriter consists of the information
described as such in the Terms Agreement; and provided, further, that with
respect to any untrue statement or alleged untrue statement in or omission or
alleged omission from any preliminary prospectus the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Preferred Securities concerned, to the extent that a
prospectus relating to such Preferred Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and was not and
if the Prospectus (as amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability of such Underwriter unless
such failure to deliver the Prospectus was the result of non-compliance by the
Company with Section 4(e) hereof.
(a) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and the Trust, their directors and officers and each
person, if any, who controls the Company or the Trust within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities to
which the Company or the Trust may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such 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 or the Trust by such Underwriter through the Representatives, if any,
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company or the Trust in connection with investigating
or defending any such loss, claim, damage, liability or action as such expenses
are incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
the Terms Agreement.
(b) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or behalf of an
indemnified party.
(c) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Trust on
the one hand
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and the Underwriters on the other from the offering of the Offered
Securities or (ii) 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 and the Trust on the
one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Trust on the one
hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Trust or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement
or omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of
this subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Trust under this Section
shall be in addition to any liability which the Company or the Trust may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company and
the Trust, to each officer of the Company and the Trust who has signed the
Registration Statement and to each person, if any, who controls the Company or
the Trust within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities under the Terms Agreement
and the aggregate number of shares of Preferred Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total number of shares of Preferred Securities, the Lead Underwriter may
make arrangements satisfactory to the Company and the Trust for the purchase of
such Preferred Securities by other persons, including any of the Underwriters,
but if no such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments under the Terms Agreement (including the provisions of this
Agreement), to purchase the Preferred Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate number of shares of Preferred Securities with
respect to which such default or defaults occur exceeds 10% of the total number
of shares of Preferred Securities and arrangements satisfactory to the Lead
Underwriter, the Company and the Trust for the purchase of such Preferred
Securities by other persons are not made within 36 hours after such default, the
Terms Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Trust, except as provided in
Section 8. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
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9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, the Trust or their respective officers and of the several Underwriters
set forth in or made pursuant to the Terms Agreement (including the provisions
of this Agreement) will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter, the Company, the Trust or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If the Terms
Agreement is terminated pursuant to Section 7 or if for any reason the purchase
of the Offered Securities by the Underwriters is not consummated, the Company
and the Trust shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 4 and the respective obligations of the Company, the
Trust and the Underwriters pursuant to Section 6 shall remain in effect. If the
purchase of the Preferred Securities by the Underwriters is not consummated for
any reason other than solely because of the termination of the Terms Agreement
pursuant to Section 7 or the occurrence of any event specified in clause (iii),
(iv) or (v) of Section 5(d), the Company and the Trust will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company or the Trust, will be
mailed, delivered or telegraphed and confirmed to it at
Comerica Incorporated
Comerica Tower at One Detroit Center MC-3391
Detroit, Michigan 48226
Fax: (313) 222-3977
Attention: George Madison, Executive Vice President, General Counsel & Secretary
11. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and the
Trust and such Underwriters as are identified in the Terms Agreement and their
respective successors and the officers and directors and controlling persons
referred to in Section 6, and no other person will have any right or obligation
hereunder.
12. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
13. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
1. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
The Company and the Trust hereby submit to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to the
Terms Agreement (including the provisions of this Agreement) or the transactions
contemplated thereby.
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[NAME OF TRUST]
("COMPANY")
% TRUST PREFERRED SECURITIES
AS FULLY AND UNCONDITIONALLY GUARANTEED BY
COMERICA INCORPORATED
TERMS AGREEMENT
[ ], 2001
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named in
Schedule A hereto for their respective accounts, on and subject to the terms and
conditions of the Underwriting Agreement filed as an exhibit to the Company's
registration statement on Form S-3 (No. 333-63090) ("UNDERWRITING AGREEMENT"),
the following securities on the following terms:
TITLE: % Trust Preferred Securities fully and unconditionally
guaranteed by Comerica Incorporated (the "SECURITIES")
NUMBER OF SECURITIES:
DISTRIBUTION RATE:
OPTIONAL REDEMPTION:
LISTING: [New York Stock Exchange.]
PURCHASE PRICE: $ per Security plus accrued distributions, if
any, from , 2001
EXPECTED REOFFERING PRICE: $ per Security, subject to change by
the Representative
CLOSING: A.M. on , 200 , at , in Federal
(same day) funds.
OVERALLOTMENT OPTION:
NAME[S] AND ADDRESS[ES] OF THE [REPRESENTATIVE[S]] [UNDERWRITER[S]]:
The respective number Securities to be purchased by each of the
Underwriters are set forth opposite their names in Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of the following information in the Prospectus furnished on
behalf of each Underwriter: [the concession and reallowance figures appearing in
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the paragraph under the caption "UNDERWRITING" in the prospectus supplement
and the information contained in the paragraph under the caption
"UNDERWRITING" in the prospectus supplement pertaining to Regulation M under the
Act].
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
Comerica Incorporated
By
------------------------
[Name of Trust]
By
------------------------
[Insert title]
The foregoing Terms Agreement is hereby confirmed
and accepted as of the date first above written.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
--------------------------------------------
[Insert title]
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SCHEDULE A
NUMBER
OF
UNDERWRITER SECURITIES
- ----------- ----------
Credit Suisse First Boston Corporation.......
----------
Total .............................
==========
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