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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report: June 21, 1996
COMERICA INCORPORATED
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(Exact name of registrant as specified in its charter)
Delaware 1-10706 38-1998421
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(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification Number)
incorporation)
Comerica Tower at Detroit Center 48226
Detroit, Michigan
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(Address of principal executive offices) (Zip Code)
(313) 222-3300
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(Registrant's telephone number, including area code)
N/A
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(Former name or former address, if changed since last report)
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Comerica Incorporated
(Registrant)
BY: /s/ Mark W. Yonkman
----------------------------------
Name: Mark W. Yonkman
Title: Vice President and
Assistant Secretary
Dated: July 3, 1996
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Item 5. Other Events.
On June 18, 1996, Comerica Incorporated (the "Company") authorized
the sale of and established the terms of 5,000,000 shares of its
Fixed/Adjustable Rate Noncumulative Preferred Stock, Series E (the "Series E
Preferred Stock") under Registration No. 33-04297. The Company entered into an
Underwriting Agreement dated June 18, 1996 with Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Morgan Stanley & Co. Incorporated (the "Underwriters")
whereby the Underwriters severally agreed to purchase, and the Company agreed
to sell to them, severally, the respective number of shares of Series E
Preferred Stock set forth in the Underwriting Agreement. Delivery of the Series
E Preferred Stock was made on June 21, 1996 against payment therefor.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
The following exhibits are filed as part of this report:
<TABLE>
<CAPTION>
Exhibit No. Exhibit
----------- -------
<S> <C>
1(b) Underwriting Agreement dated June 18, 1996 by and between
Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan
Stanley & Co. Incorporated
4(d) Certificate of Designation for Fixed/Adjustable Rate Noncumulative
Preferred Stock, Series E
5 Opinion of Bodman, Longley & Dahling LLP
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Exhibit
----------- -------
<S> <C>
1(b) Underwriting Agreement dated June 18,
1996 by and between Company and
Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Morgan
Stanley & Co. Incorporated
4(d) Certificate of Designation for
Fixed/Adjustable Rate Noncumulative
Preferred Stock, Series E
5 Opinion of Bodman, Longley &
Dahling LLP
</TABLE>
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EXHIBIT 1(b)
COMERICA INCORPORATED
UNDERWRITING AGREEMENT
Dated the date set forth in Schedule I hereto
To the Representative(s), named in Schedule I hereto, of the Underwriters,
named in Schedule II hereto
Ladies and Gentlemen:
Comerica Incorporated, a Delaware corporation (the "Company"),
proposes to issue and sell to you and the other underwriters named in Schedule
II hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the number of shares of its preferred stock identified in
Schedule I hereto (the "Securities"). If the firm or firms listed in Schedule
II hereto include only the firm or firms listed in Schedule I hereto, then the
terms "Underwriters" and "Representatives" shall each be deemed to refer to
such firm or firms.
1. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to each Underwriter that:
(a) A registration statement in respect of the Securities (the
file number of which is set forth on Schedule I hereto) has been prepared by
the Company in conformity with the requirements of the Securities Act of 1933
(the "Securities Act") and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder and has been filed with the Commission in the form heretofore
delivered or to be delivered to the Representatives, and such registration
statement in such form has been declared effective by the Commission and no
stop order suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in such registration
statement being hereinafter called a "Preliminary Prospectus"); if any
post-effective amendment to such registration statement has been filed with the
Commission prior to the date of this Agreement, the most recent such amendment
has been declared effective by the Commission. As used in this Agreement,
"Effective Date" means the date as of which such registration statement, or the
most recent post-effective amendment thereto, if any, was declared effective by
the Commission; "Registration Statement" means such registration statement, as
amended at the Effective Date, including all material incorporated by reference
therein; "Prospectus" means the form of prospectus relating to the Securities,
as filed pursuant to Rule 424 ("Rule 424") under the Securities Act of 1933, as
amended (the "Securities Act"), as such form of prospectus may be supplemented
to reflect the terms of the Securities and the terms of offering thereof; any
reference
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herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to the
applicable form under the Securities Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and incorporated therein by reference;
and any reference to any amendment to the Registration Statement shall be
deemed to include any annual report of the Company filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective Date
that is incorporated by reference in the Registration Statement.
(b) The Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects to the
requirements of the Securities Act and the rules and regulations of the
Commission thereunder, and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any supplement thereto, contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
apply only to amendments or supplements filed or made during the prospectus
delivery period; and provided further, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use in the Prospectus.
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Securities
Act and the Rules and Regulations or the Exchange Act and the rules and
regulations of the Commission thereunder, and none of such documents contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; any further documents so filed and incorporated by reference in the
Prospectus or in any amendments or supplements thereto, when such documents
become effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Securities Act and
the Rules and Regulations or the Exchange Act and the rules and regulations of
the Commission thereunder, as applicable, and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall apply only to
documents so filed and incorporated by reference during the period that a
prospectus relating to the Securities is required to be delivered in connection
with sales of such Securities (such period being hereinafter sometimes referred
to as the "prospectus delivery period").
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(d) The nationally recognized firm of independent public
accountants whose report appears in the Company's most recent Annual Report on
Form 10-K, which is incorporated by reference in the Prospectus, are
independent public accountants as required by the Securities Act and the Rules
and Regulations.
(e) The consolidated financial statements of the Company included
or incorporated by reference in the Prospectus and the Registration Statement
present fairly on a consolidated basis the financial position, the results of
operations, changes in stockholders' equity and cash flows of the Company and
its subsidiaries, as of the respective dates and for the respective periods
indicated, all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved except as
otherwise stated therein or in the notes thereto.
(f) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since such date, there has not been any material adverse
change in the consolidated stockholders' equity or long-term debt of the
Company and its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus.
(g) The Securities have been duly authorized by the Company, and,
upon filing of a Certificate of Designation for such Securities with the
Secretary of State of the State of Delaware (the "Certificate of Designation")
and the issuance and delivery of such Securities against payment therefor by
the Underwriters in accordance with and pursuant to the terms of this
Agreement, will be duly and validly issued, fully paid and non-assessable, and
will conform to the description thereof contained in the Prospectus; and the
issuance of the Securities is not subject to preemptive or other similar
rights.
(h) Neither the Company nor any of its subsidiaries is in
violation of its corporate charter or by-laws or in default under any
agreement, indenture or instrument, the effect of which violation or default
would be material to the Company and its subsidiaries taken as a whole. The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby will not conflict with, result in the
creation or imposition of any material lien, charge or encumbrance upon any of
the assets of the Company or any of its subsidiaries pursuant to the terms of,
or constitute a default under, any material agreement, indenture or instrument,
or result in a violation of the corporate charter or by-laws of the Company or
any of its subsidiaries or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company, any of its
subsidiaries or their respective properties, except for any such conflicts,
defaults or violations of any such liens, charges or encumbrances as would not
individually or in the aggregate have a material adverse effect on the
business, financial condition, results of operations or prospects of the
Company and its subsidiaries taken as a whole. Except as required by the
Securities Act and by applicable state securities laws in connection with the
purchase and distribution of the Securities by
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the Underwriters, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby.
(i) The Company and each of its subsidiaries have been duly
organized, are validly existing and in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do business
and in good standing as foreign corporations in each jurisdiction in which
their respective ownership of property or the conduct of their respective
businesses requires such qualification and in which the failure to qualify
would be reasonably likely, individually or in the aggregate, to have a
material adverse effect on the business, financial condition, results of
operations or prospects of the Company and its subsidiaries taken as a whole.
Each of the Company and its subsidiaries holds all material licenses, permits,
and certificates from governmental authorities necessary for the conduct of its
business as described in the Prospectus.
(j) The authorized, issued and outstanding capital stock of the
Company as of May 31, 1996 is as set forth in the Prospectus under "Outstanding
Capital Stock"; all of the outstanding shares of capital stock of the Company
are duly authorized, validly issued and outstanding, fully paid and
non-assessable. Except as may be disclosed in the Registration Statement and
the Prospectus, all outstanding shares of capital stock of the Company's
subsidiaries (other than directors' qualifying shares, if any) are owned by the
Company, directly or indirectly through subsidiaries, free and clear of any
lien, pledge and encumbrance or any claim of any third party and are duly
authorized, validly issued and outstanding, fully paid and non-assessable
(except as provided in 12 U.S.C. Section 55 or any comparable provision of
applicable state law).
(k) Except as described in the Registration Statement and the
Prospectus, there are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened against the Company or any of its
subsidiaries or their respective properties which might reasonably be expected
to have a material adverse effect on the business, financial condition, results
of operations or prospects of the Company and its subsidiaries taken as a whole
or which is required to be disclosed in the Registration Statement and the
Prospectus.
(l) There are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have not
been described in the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by the Rules and
Regulations.
(m) The Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended; the deposit accounts of each
of the Company's domestic bank subsidiaries are insured by the Federal Deposit
Insurance Corporation (the "FDIC") to the fullest extent permitted by law and
the rules and regulations of the FDIC, except that the deposits of Comerica
Bank & Trust, FSB and certain deposits of other banking subsidiaries that were
acquired from insolvent savings associations are insured by the FDIC's Savings
Association Insurance Fund (the "SAIF"), and no proceedings for the termination
of such insurance are pending or, to the best of the Company's knowledge,
threatened; and neither the Company nor any of its subsidiaries is party to or
otherwise the subject of any consent decree, memorandum of understanding,
written
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commitment or other written supervisory agreement with the Board of Governors
of the Federal Reserve System or any other federal or state authority or agency
charged with the supervision or insurance of depositary institutions or their
holding companies.
2. SALE AND PURCHASE OF THE SECURITIES.
The Company agrees to sell to each Underwriter, and each Underwriter,
on the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein stated, agrees to
purchase from the Company, at the purchase price set forth in Schedule I
hereto, the number of shares of the Securities set forth opposite the name of
such Underwriter in Schedule II hereto. The obligations of the Underwriters
under this Agreement are several and not joint.
3. DELIVERY AND PAYMENT.
Delivery by the Company of the Securities to the Representatives for
the respective accounts of the several Underwriters and payment by the
Underwriters therefor by wire transfer of immediately available (federal) funds
to or upon the order of the Company shall take place at the office, on the date
and at the time specified in Schedule I hereto, which date and time may be
postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for
the Securities being herein called the "Closing Date"). The Securities will be
registered in such names and in such authorized denominations as the
Representatives may request not less than two full business days in advance of
the Closing Date. The Company agrees to have the Securities available for
inspection, checking and packaging by the Representatives at such place as is
designated by the Representatives, not later than 1:00 p.m., New York City
time, on the business day prior to the Closing Date.
4. OFFERING BY UNDERWRITERS.
Upon authorization by the Representatives of the release of the
Securities, the several Underwriters propose to offer the Securities for sale
upon the terms and conditions set forth in the Prospectus.
5. AGREEMENTS.
The Company agrees:
(a) To prepare the Prospectus as amended and supplemented in
relation to the Securities in a form approved by the Representatives and to
file such Prospectus with the Commission pursuant to Rule 424 within the time
prescribed therein; to advise the Representatives promptly of any such filing
pursuant to Rule 424; after the Closing Date and during the prospectus delivery
period, prior to the filing with the Commission of any amendment or supplement
to the Registration Statement or Prospectus, to furnish the Representatives and
counsel to the Underwriters with copies thereof and not to file any such
document to which the Representatives shall reasonably object after having been
given reasonable notice of the proposed filing thereof; to file promptly all
reports and any definitive
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proxy or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and during the prospectus delivery
period; and during such same period to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or become effective or any supplement to
the Prospectus or any amended Prospectus has been filed, or mailed for filing,
of the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Securities
or suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) If the delivery of a prospectus is required at any time after
the time of issue of the Prospectus in connection with the offering or sale of
the Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, to notify the Representatives and upon the
request of the Representatives to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(c) The Company will deliver to the Representatives, without
charge, signed copies of the Registration Statement relating to the Securities
and (i) three (3) copies of any amendments thereto (including all exhibits
filed with, or incorporated by reference in, any such document) and (ii) as
many conformed copies of the Registration Statement and of any amendments
thereto which shall become effective on or before the Closing Date (excluding
exhibits) as the Representatives may reasonably request;
(d) During the prospectus delivery period, the Company will
deliver, without charge to the Representatives and to Underwriters and dealers,
at such office or offices in New York City as the Representatives may
designate, and initially prior to 10:00 a.m. on the business day next
succeeding the date of this Agreement, as many copies of the Prospectus as then
amended or supplemented as the Representatives may reasonably request.
(e) The Company will make generally available to its security
holders and to the Representatives as soon as practicable an earnings statement
(which need not be audited) of the Company and its subsidiaries, covering a
period of at least 12 months beginning after the Effective Date (or, if later,
the date of the Company's most recent annual report on Form 10-K which is
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incorporated by reference in the Prospectus), which will satisfy the provisions
of Section 11(a) of the Securities Act (including, at the option of the
Company, Rule 158 thereunder).
(f) The Company will furnish such information, execute such
instruments and take such actions as may be required to qualify the Securities
for offering and sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in effect
so long as required for the distribution of the Securities; provided, however,
that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to general service of process in any jurisdiction where it is not
now so subject.
(g) So long as any Securities are outstanding, the Company will
furnish or cause to be furnished to the Representatives copies of all annual
reports and current reports filed with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar forms as may be designated by the Commission and
such other documents, reports and information as shall be furnished by the
Company to the holders of the Securities.
(h) For a period beginning at the time of execution of this
Agreement and ending on the later of the Closing Date or the date on which any
price restrictions on the sale of the Securities are terminated (as advised by
the Representatives to the Company), without the prior consent of the
Representatives, the Company will not offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise issue,
transfer or dispose of, directly or indirectly, any equity securities of the
Company substantially similar to the Securities.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS.
The obligations of the Underwriters to purchase the Securities shall
be subject to the accuracy in all material respects of the representations and
warranties on the part of the Company contained herein as of the date hereof
and the Closing Date, to the accuracy of any material statements made in any
certificates, opinions, affidavits, written statements or letters furnished to
the Representatives or to Skadden, Arps, Slate, Meagher & Flom ("Underwriters'
Counsel") pursuant to this Section 6, to the performance by the Company of its
respective obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the Rules and Regulations and in accordance with Section 5(a) of this
Agreement;
(b) No order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall be in effect and no proceedings
for such purpose shall be pending before or threatened by the Commission and
any requests for additional information on the part of the Commission (to be
included in the Registration Statement or the Prospectus or otherwise) shall
have been complied with to the reasonable satisfaction of the Representatives.
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(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall not have been any
change or decrease specified in the letters referred to in paragraph (g) of
this Section 6 which, in the judgment of the Representatives, makes it
impracticable or inadvisable to proceed with the offering and delivery of the
Securities as contemplated by the Registration Statement and the Prospectus.
(d) The Company shall have furnished to the Representatives the
opinion of Bodman, Longley & Dahling LLP, dated the day of the Closing Date, to
the effect that:
(i) The Company has been duly organized and is validly
existing and in good standing under the laws of the State of Delaware with all
requisite corporate power and authority to own and operate its properties and
to conduct its business as described in the Prospectus.
(ii) The Securities conform in all material respects to
the descriptions thereof contained in the Prospectus.
(iii) The certificates for the Securities are in due and
proper form; the Securities have been duly authorized by the Company, and, upon
the issuance and delivery of such Securities against payment therefor by the
Underwriters in accordance with and pursuant to the terms of this Agreement,
will be duly and validly issued, fully paid and non-assessable; the issuance of
the Securities is not subject to preemptive or other similar rights.
(iv) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation of the
transactions contemplated in this Agreement, except for such consents,
approvals, authorizations or orders as have been obtained under the Securities
Act and such as may be required under the Exchange Act and the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters.
(v) Such counsel does not know of any contracts or other
documents which are required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act or by the Rules
and Regulations which have not been described in the Prospectus or filed as
exhibits to the Registration Statement or incorporated therein by reference as
permitted by the Rules and Regulations.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company; the execution, delivery and performance of this
Agreement by the Company and the consummation of the transactions contemplated
hereby will not conflict with, or result in the creation or imposition of any
material lien, charge or encumbrance upon any of the assets of the Company or
any of its subsidiaries pursuant to the terms of, or constitute a default
under, any material agreement, indenture or instrument known to such counsel
and to which the Company or any of its subsidiaries is a party or is bound or
to which any of their respective properties are subject, or result in a
violation of the corporate charter or by-laws of the Company or any of its
subsidiaries or any order, rule or regulation known to such counsel of any
court or governmental agency having jurisdiction over the
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Company, any of its subsidiaries or any of their respective properties, which
would have a material adverse effect on the business, financial condition,
results of operations or prospects of Company and its subsidiaries taken as a
whole.
(vii) The Registration Statement has become effective under
the Securities Act, and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose is pending or threatened by the Commission.
(viii) The Registration Statement, the Prospectus and each
amendment thereof or supplement thereto (except that no opinion need be
expressed as to the financial statements or other financial or statistical data
included or incorporated by reference therein) comply as to form in all
material respects with the requirements of the Securities Act and the Rules and
Regulations; the documents incorporated by reference in the Prospectus (other
than the financial statements or other financial or statistical data included
or incorporated by reference therein, as to which no opinion need be
expressed), when they were filed with the Commission, complied as to form in
all material respects with the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder.
(ix) Each of the Company's subsidiaries which is a
"significant subsidiary" as defined in Regulation S-X promulgated by the
Commission (each, a "Significant Subsidiary") is a duly organized and validly
existing corporation in good standing under the laws of the jurisdiction of its
incorporation with all requisite corporate power and authority to own and
operate its properties and to conduct its business as described in the
Prospectus. Each of the Company and each Significant Subsidiary is duly
qualified to do business as a foreign corporation in each jurisdiction in which
the nature of the business conducted by it or in which the ownership or holding
by lease of the properties owned or held by it require such qualification and
where the failure to so qualify would, either individually or in the aggregate,
have a material adverse effect on the business, financial condition, results of
operations or prospects of the Company and its subsidiaries taken as a whole.
(x) The authorized, issued and outstanding capital stock
of the Company as of May 31, 1996 is as set forth in the Prospectus under
"Outstanding Capital Stock." All of the outstanding shares of capital stock of
each of the Company's Significant Subsidiaries have been duly and validly
authorized and issued and are fully paid and non-assessable (except as provided
by 12 U.S.C. Section 55 or any comparable provision of applicable state law)
and, except for directors' qualifying shares, are owned of record and, to the
best knowledge of such counsel, beneficially by the Company or a subsidiary of
the Company free and clear, to the best of such counsel's knowledge, of any
claims, liens, encumbrances or security interests.
(xi) Such counsel does not know of any legal or
governmental proceeding pending or threatened against the Company or any of its
subsidiaries which would affect the subject matter of this Agreement or is
required to be disclosed in the Prospectus which is not disclosed and correctly
summarized therein.
(xii) The Company is duly registered as a bank holding
company under the Bank
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Holding Company Act of 1956, as amended; and the deposit accounts of each of
the Company's domestic bank subsidiaries which is a Significant Subsidiary are
insured by the FDIC to the fullest extent permitted by law and the rules and
regulations of the FDIC, except that the deposits of Comerica Bank & Trust, FSB
and certain deposits of other banking subsidiaries that were acquired from
insolvent savings associations are insured by the SAIF, and no proceedings for
the termination of such insurance are pending or, to the best of such counsel's
knowledge, threatened. Such opinion shall also contain a statement that
although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus (except as to those
matters stated in paragraph (ii) of such opinion), such counsel has no reason
to believe that (i) the Registration Statement, as of its effective date,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading or (ii) the Prospectus contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (except that no opinion need be expressed
as to the financial statements or other financial or statistical data included
or incorporated by reference therein). In rendering such opinion, such counsel
may rely as to matters of fact, to the extent such counsel deems proper, upon
certificates or affidavits of officers of the Company and public officials.
(e) The Representatives shall have received from Underwriters'
Counsel such opinion or opinions, dated the day of the Closing Date, with
respect to the issuance and sale of the Securities, the Registration Statement,
the Prospectus and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a
certificate of its Chief Executive Officer, its President or any Executive Vice
President and its Chief Financial Officer, dated as of the Closing Date, to the
effect that:
(i) The representations and warranties of the Company in
this Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date, and the
Company has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the Closing Date.
(ii) To the best of their knowledge after due inquiry, no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or threatened.
(iii) In their opinion, (x) the Registration Statement, as
of its effective date, did not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, (y) the Prospectus does not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and (z) since the effective date of the Registration Statement
there has not occurred any event required to be set forth in an amended or
supplemented prospectus
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<PAGE> 11
which has not been so set forth.
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus or
(ii) since such date there shall not have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case described
in clause (i) or (ii), is, in the judgment of the Representatives, so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus.
(h) With respect to the letter of Ernest & Young LLP delivered to
the Representatives concurrently with the execution of this Agreement (the
"initial letter"), the Company shall have furnished to the Representatives a
letter (the "bring-down letter") of such accountants, addressed to the
Underwriters and dated the Closing Date (i) confirming that they are
independent public accountants within the meaning of the Securities Act and are
in compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating,
as of the date of the bring-down letter (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more than
five days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by the initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letter.
(i) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's securities.
7. EXPENSES.
(a) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, the Company will pay all costs
and expenses incident to the performance of the obligations of the Company
hereunder, including, without limiting the generality of the foregoing, all
costs, taxes and expenses incident to the issuance, sale and delivery of the
Securities to the Underwriters, all fees and expenses of the Company's counsel
and accountants, all costs and expenses incident to the preparing, printing and
filing of the Registration Statement (including all exhibits thereto), the
Prospectus and any amendments thereof or supplements thereto, and the rating of
the Securities by one or more rating agencies, all costs and expenses
(including fees
11
<PAGE> 12
of Underwriters' counsel and their disbursements) incurred in connection with
blue sky qualifications, the filing requirements, if any, of the National
Association of Securities Dealers, Inc. in connection with its review of
corporate financings, the fee for listing the Securities on any exchange, the
fees and expenses of the transfer agent and all costs and expenses of the
printing and distribution of all documents in connection with such offering.
Except as provided in this Section 7, the Company will have no responsibility
to the Underwriters for the Underwriters' own costs and expenses, including the
fees of Underwriters' Counsel and any advertising expenses in connection with
any offer the Underwriters may make.
(b) If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof, the Company will, subject to demand by the
Representatives, reimburse the Underwriters for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. INDEMNIFICATION.
(a) The Company shall indemnify and hold harmless each
Underwriter, its officers, employees and agents, each of its directors and
each person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Securities), to which that Underwriter or any such director, officer, employee,
agent or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Registration Statement, as originally filed
or in any amendment thereof, or in any Preliminary Prospectus, any preliminary
prospectus supplement, the Prospectus or in any amendment thereof or supplement
thereto, or (B) in any blue sky application or other document prepared or
executed by the Company (or based upon any written information furnished by the
Company) specifically for the purpose of qualifying any or all of the
Securities under the securities laws of any state or other jurisdiction (any
such application, document or information being hereinafter called a "Blue Sky
Application"), or (ii) the omission or alleged omission to state therein any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse each Underwriter and each such
director, officer, employee, agent and controlling person promptly upon demand
for any legal or other expenses reasonably incurred by that Underwriter,
director, officer, employee, agent or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that (i) the Company shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein and (ii) such
indemnity with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling
12
<PAGE> 13
such Underwriter) from whom the person asserting any such loss, claim, damage
or liability purchased the Securities which are the subject thereof if such
person did not receive a copy of the Prospectus at or prior to the confirmation
of the sale of such Securities to such person in any case where such delivery
is required by the Securities Act and the untrue statement or omission of a
material fact contained in any Preliminary Prospectus was corrected in the
Prospectus, unless such failure to deliver the Prospectus was a result of
noncompliance by the Company with Section 5(d) hereof. For purposes of the
proviso in the preceding sentence, the term "Prospectus" shall not be deemed to
include the documents incorporated therein by reference, and no Underwriter
shall be obligated to send or give any supplement or amendment to any document
incorporated by reference in any Preliminary Prospectus or Prospectus to any
person other than a person to whom such Underwriter had delivered such
incorporated document or documents in response to a written request therefor.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, its officers, employees and agents, each of its
directors and each person, if any, who controls the Company within the meaning
of the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company or any
such director, officer, employee, agent or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, as originally filed or in any amendment thereof, or in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Prospectus or in any amendment thereof or supplement thereto or (ii) the
omission or alleged omission to state therein any material fact required to be
stated therein or necessary to make the statements therein not misleading, but
in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company through the
Representatives by or on behalf of that Underwriter specifically for inclusion
therein, and shall reimburse the Company and any such director, officer or
controlling person for any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 and, provided further, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not
13
<PAGE> 14
be liable to the indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by counsel that there may be one or more legal defenses available to it
which are different from or additional to those available to the indemnifying
party and in the judgment of counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to local counsel) at any
time for all such indemnified parties, which firm shall be designated in
writing by the Representatives, if the indemnified parties under this Section 8
consist of any Underwriter or any of their respective officers, employees or
controlling persons, or by the Company, if the indemnified parties under this
Section consist of the Company or any of the Company's directors, officers,
employees or controlling persons. Each indemnified party, as a condition of
the indemnity agreements contained in Sections 8(a) and 8(b), shall use its
best efforts to cooperate with the indemnifying party in the defense of any
such action or claim. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or (ii) be liable for any settlement
of any such action effected without its written consent (which consent shall
not be unreasonably withheld), but if settled with its written consent or if
there be a final judgment of the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from and
against any loss of liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof,
(a) in such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Securities or (b) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other with
14
<PAGE> 15
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Securities purchased under this Agreement (before
deducting expenses) received by the Company, on the one hand, and the total
underwriting discounts and commissions received by the Underwriters with
respect to the Securities purchased under this Agreement, on the other hand,
bear to the total gross proceeds from the offering of the Securities under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
8(d) shall be deemed to include, for purposes of this Section 8(d), any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public was offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 8(d) are several in proportion to their respective
underwriting obligations and not joint.
9. DEFAULT BY AN UNDERWRITER.
If any one or more Underwriters shall fail to purchase and pay for all
of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the principal amount of Securities set forth
opposite their names in Schedule II hereto bear to the aggregate principal
amount of Securities set opposite the names of the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that in the event that the aggregate principal
amount of Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate principal amount of
the Securities, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such non-defaulting Underwriters do not purchase all the Securities,
this Agreement will terminate without liability to any non-defaulting
Underwriters or the Company. In the event the remaining Underwriters elect to
purchase the Securities which the defaulting Underwriter or Underwriters agreed
to purchase as set
15
<PAGE> 16
forth in this Section 9, the Closing Date may be postponed for such period, not
exceeding seven days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing herein contained
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any non-defaulting Underwriter for damages occasioned by its
default hereunder.
10. TERMINATION.
This Agreement shall be subject to termination by notice given by you
to the Company if (a) after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your judgment,
is material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event singly or together with any other such
event makes it, in your judgment, impracticable to market the Securities on the
terms and in the manner contemplated in the Prospectus.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY.
The respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers (as such officers) and of
the Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or the Company or any of its officers or directors or any
controlling person within the meaning of the Securities Act, and will survive
delivery of the payment for the Securities.
12. NOTICES.
All communications hereunder will be in writing, and, if sent to the
Representatives will be mailed, delivered, telecopied and confirmed to them, at
the address specified in Schedule I hereto; or, if sent to the Company will be
mailed, delivered, telecopied and confirmed to it at Comerica Tower at One
Detroit Center, 500 Woodward Avenue, Suite 3100, Detroit, Michigan 48226,
Attention: Ralph W. Babb, Jr.; Telephone: (313) 222-4000; Telecopy:(313)
964-0638 with a copy to the Corporate Secretary; Telephone (313) 222-3432;
Telecopy: (313) 222-6980.
13. SUCCESSORS.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their successors and, to the extent and only to the extent
stated in Section 8 hereof, the officers and directors and controlling persons
referred to in Section 8 hereof, and except as provided in Section 8 hereof, no
person other than the parties hereto and their respective successors will have
any right
16
<PAGE> 17
or obligation hereunder.
14. APPLICABLE LAW.
This Agreement will be governed by and construed in accordance with
the laws of the State of New York.
17
<PAGE> 18
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
COMERICA INCORPORATED
By: /s/ Mark W. Yonkman
--------------------------------
Name: Mark W. Yonkman, Esq.
Title: Vice President and
Assistant Secretary
The foregoing Agreement is hereby confirmed and accepted as of the
date first above written.
MERRILL LYNCH, PIERCE FENNER & SMITH INCORPORATED
By: /s/ Henry R. Michaels
--------------------------------
Name: Henry R. Michaels
Title: Director
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Richard C. Schwartz
---------------------------------
Name: Richard C. Schwartz
Title: Principal
Acting on behalf of the Representatives named in Schedule I annexed
hereto and the several Underwriters named in Schedule II annexed hereto.
18
<PAGE> 19
SCHEDULE I
1. Date of Underwriting Agreement: June 18, 1996
2. Registration Statement No.: 333-04297
3. Representatives and Address:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center - North Tower
250 Vesey Street
New York, New York 10281-1325
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
4. Title of Securities: Fixed/Adjustable Rate Noncumulative
Preferred Stock, Series E
5. Date of Board Resolutions and Preferred Stock Designation
Committee Resolution Fixing the Terms and Conditions of the
Securities: March 15, 1996, June 4,1996, and June 18,1996
6. Number of Shares to be issued: 5,000,000 Shares
7. Certificate of Designation: Dated June 18, 1996; Filed June
21, 1996
8. Initial Offering Price to Public: $50.00 per Share
9. Purchase Price by Underwriters: $49.375
10. Specified Funds for Payment of Purchase Price: Immediately
Available Funds
11. Dividend Rate: 6.84% per annum through July 1, 2001
.625% per annum plus highest of Treasury Bill
Rate, Ten Year Constant Maturity Rate and Thirty Year
Constant Maturity Rate after July 1, 2001 but not less
than 7.34% or greater than 13.34%.The dividend rate is
subject to adjustment in the event of certain
amendments to the Internal Revenue Code of 1986, as
amended.
12. Dividend Payment Dates: January 1, April 1, July 1 and October 1
commencing October 1, 1996.
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<PAGE> 20
13. Liquidation Value: $50.00
14. Redemption Provisions: Not redeemable prior to July 1, 2001
except under certain circumstances described in the
Prospectus.
15. Closing Date, Time and Location:
Date: June 21, 1996
Time: 10:00 a.m.
Location: Skadden, Arps, Slate Meagher & Flom
16. Listing: None
20
<PAGE> 21
SCHEDULE II
<TABLE>
<CAPTION>
NUMBER OF SHARES
UNDERWRITERS TO BE PURCHASED
------------ -----------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . 2,500,000
Morgan Stanley & Co. Incorporated . . . . . . . . . . . . . . . . . . . 2,500,000
---------
TOTAL: 5,000,000
=========
</TABLE>
<PAGE> 1
EXHIBIT 4(d)
CERTIFICATE OF DESIGNATION
Pursuant to Section 151(g) of the General
Corporation Law of the State of Delaware
=========================================
5,000,000 SHARES OF
FIXED/ADJUSTABLE RATE
NONCUMULATIVE PREFERRED STOCK
SERIES E
==========================================
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").
1
<PAGE> 2
(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.
2
<PAGE> 3
(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
3
<PAGE> 4
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
4
<PAGE> 5
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
5
<PAGE> 6
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)]
-----------------
1-[.35 (1 - DRP)]
6
<PAGE> 7
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
7
<PAGE> 8
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
8
<PAGE> 9
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
9
<PAGE> 10
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.
<TABLE>
<CAPTION>
REDEMPTION PERIOD REDEMPTION PRICE PER SHARE
----------------- --------------------------
<S> <C>
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
</TABLE>
(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
10
<PAGE> 11
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).
11
<PAGE> 12
(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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Exhibit 5
[Letterhead of Bodman, Longley & Dahling LLP]
June 21, 1996
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center--North Tower
250 Vesey Street
New York, New York 10281-1325
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Re: Comerica Incorporated Fixed/Adjustable Rate Noncumulative Preferred
Stock, Series E
Ladies and Gentlemen:
We have acted as counsel to Comerica Incorporated, a Delaware
corporation (the "Corporation"), in connection with the Underwriting Agreement
dated as of June 18, 1996 (the "Underwriting Agreement") between the
Corporation and the Merrill Lynch & Co. and Morgan Stanley & Co. Incorporated
(collectively, the "Underwriters") providing for the issuance and sale of
5,000,000 shares of Fixed/Adjustable Rate Noncumulative Preferred Stock, Series
E (the "Securities"). This opinion is being furnished to you pursuant to
Section 6(d) of the Underwriting Agreement, and all terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the
Underwriting Agreement.
In arriving at the opinions expressed below, we have examined the
Underwriting
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Agreement, the Preliminary Prospectus, Prospectus, Registration Statement and
Certificate of Designation filed with the Secretary of State of the State of
Delaware on June 21, 1996 relating to the Securities. We have also examined or
caused to be examined such records of the Corporation and such agreements,
certificates of public officials, certificates of officers or representatives
of the Corporation and others, and such other documents, certificates and
corporate or other records as we have deemed necessary or appropriate as a
basis for the opinions set forth herein. We have assumed the genuineness of
all signatures, the authenticity of all documents submitted as originals, and
the conformity to original documents of all documents submitted as certified or
photostatic copies.
Based upon and subject to the foregoing, we are of the opinion that:
(i) The Company has been duly organized and is validly existing
and in good standing under the laws of the State of Delaware with all requisite
corporate power and authority to own and operate its properties and to conduct
its business as described in the Prospectus.
(ii) The Securities conform in all material respects to the
descriptions thereof contained in the Prospectus.
(iii) The certificates for the Securities are in due and proper
form; the Securities have been duly authorized by the Corporation and, upon the
issuance and delivery of such Securities against payment therefor by the
Underwriters in accordance with and pursuant to the terms of the Underwriting
Agreement, will be duly and validly issued, fully paid and non-assessable; and
the issuance of the Securities is not subject to preemptive or other similar
rights.
(iv) To our knowledge, no consent, approval, authorization or order
of any court or governmental agency or body is required for the consummation of
the transactions contemplated in this Agreement, except for such consents,
approvals, authorizations or orders as have been obtained under the Securities
Act and such as may be required under the Exchange Act and the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters, as to which we express no opinion.
(v) To our knowledge, there are no contracts or other documents
which are required to be described in the Prospectus or filed as exhibits to
the Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed as
exhibits to the Registration Statement or incorporated therein by reference as
permitted by the Rules and Regulations.
(vi) The Underwriting Agreement has been duly authorized, executed
and delivered by the Corporation; and the execution, delivery and performance
of the Underwriting Agreement by the Corporation and the consummation of the
transactions contemplated thereby will not conflict with, or result in the
creation or imposition of any material lien, charge or encumbrance upon any of
the assets of the Corporation or any of its subsidiaries pursuant to
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<PAGE> 3
the terms of, or constitute a default under, any agreement, indenture or
instrument identified to us as material by the Corporation to which the
Corporation or any of its subsidiaries is a party or is bound or to which any
of their respective properties are subject, or result in a violation of the
corporate charter or by-laws of the Corporation or any of its subsidiaries or,
to our knowledge, any order, rule or regulation of any court or governmental
agency having jurisdiction over the Corporation, any of its subsidiaries or any
of their respective properties, which would have a material adverse effect on
the business, financial condition, results of operations or prospects of the
Corporation and its subsidiaries taken as a whole.
(vii) The Registration Statement has become effective under the
Securities Act and, to our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose is pending or threatened by the Commission.
(viii) The Registration Statement, the Prospectus and each supplement
thereto (except that no opinion is expressed as to the financial statements or
other financial or statistical data included or incorporated by reference
therein) comply as to form in all material respects with the requirements of
the Securities Act and the Rules and Regulations; the documents incorporated by
reference in the Prospectus (other than the financial statements or other
financial or statistical data included or incorporated by reference therein, as
to which no opinion is expressed), when they were filed with the Commission,
complied as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder.
(ix) Each of the Corporation's subsidiaries which is a "significant
subsidiary" as defined in Regulation S-X promulgated by the Commission (each, a
"Significant Subsidiary") is a duly organized and validly existing corporation
in good standing under the laws of the jurisdiction of its incorporation with
all requisite corporate power and authority to own and operate its properties
and to conduct its business as described in the Prospectus. Each of the
Corporation and each Significant Subsidiary is duly qualified to do business as
a foreign corporation in each jurisdiction in which the nature of the business
conducted by it or in which the ownership or holding by lease of the properties
owned or held by it require such qualification and where the failure to so
qualify would, either individually or in the aggregate, have a material adverse
effect on the business, financial condition, results of operations or prospects
of the Corporation and its subsidiaries taken as a whole.
(x) The authorized and, to our knowledge, issued and outstanding
capital stock of the Corporation as of May 31, 1996 is as set forth in the
Prospectus under "Outstanding Capital Stock." All of the outstanding shares of
capital stock of each of the Corporation's Significant Subsidiaries have been
duly and validly authorized and issued and are fully paid and non-assessable
(except as provided by 12 U.S.C. Section 55 or any comparable provision of
applicable state law) and, except for directors' qualifying shares, are owned
of record and, to our knowledge, beneficially by the Corporation or a
subsidiary of the Corporation free and clear, to our knowledge, of any claims,
liens, encumbrances or security interests.
(xi) To our knowledge, there is no legal or governmental proceeding
pending or
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threatened against the Corporation or any of its subsidiaries which would
affect the subject matter of the Underwriting Agreement or is required to be
disclosed in the Prospectus which is not disclosed and correctly summarized
therein or in a document incorporated by reference therein.
(xii) The Corporation is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended; and the deposit
accounts of each of the Corporation's domestic bank subsidiaries which is a
Significant Subsidiary are insured by the FDIC to the fullest extent permitted
by law and the rules and regulations of the FDIC (except that certain deposits
that were acquired from insolvent savings associations are insured by the
FDIC's Savings Association Insurance Fund ("SAIF")), and no proceedings for the
termination of such insurance are pending or, to our knowledge, threatened.
Although we are not passing upon and do not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus (except as to those matters stated in
paragraph (ii) of this opinion), we have no reason to believe that (i) the
Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading or (ii) the Prospectus contains any untrue statement of a material
fact or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (except that no opinion is expressed as to the financial
statements or other financial or statistical data included or incorporated by
reference therein).
Whenever our opinion herein with respect to the existence or absence
of facts is indicated to be based on our knowledge, it is intended to signify
that during the course of our representation of the Corporation, as herein
described, no information has come to our attention which would give us actual
knowledge of the existence or absence of such facts. However, except to the
extent expressly set forth herein, we have not undertaken any independent
investigation to determine the existence or absence of such facts, and no
inference as to our knowledge of the existence or absence of such facts should
be drawn from our representation of the Corporation. As to any facts material
to the opinion expressed herein, we did not independently establish or verify
such facts but have relied upon the statements, representations and/or
warranties contained in the Underwriting Agreement, the Registration Statement
and the Prospectus, and upon certificates, statements and representations of
officers and other representatives of the Corporation. No inquiry or
investigation independent of any of the foregoing was required by you or
performed by us to determine the accuracy or completeness thereof.
The opinions expressed herein are as of the date hereof and are
specifically qualified by reference to, and are based solely upon, laws,
rulings and regulations in effect on the date hereof and are subject to
modification to the extent such laws, rules and regulations are changed in the
future; provided, however, in rendering this opinion, we assume no obligation
to revise or supplement this opinion should any law, rulings or regulations in
effect be changed by legislative action, judicial decision, or otherwise. This
opinion is limited solely to the
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matters specifically addressed herein and we do not opine on any other matters.
In giving the foregoing opinions, we express no opinion other than as
to the laws of the State of Michigan, the Delaware General Corporation Law and
the federal laws of the United States of America.
This opinion is furnished to you solely for your benefit with respect
to your solicitation of offers to purchase Securities from the Corporation,
upon the understanding, as we have advised you and you have agreed, that we are
not hereby assuming any professional responsibility to any other person
whatsoever.
Very truly yours,
BODMAN, LONGLEY & DAHLING LLP
By: /s/ Randolph S. Perry
-----------------------------
Randolph S. Perry, a Partner
5
