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As filed with the Securities and Exchange Commission on May 22, 1996
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
COMERICA INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 38-1998421
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
COMERICA TOWER AT DETROIT CENTER
500 WOODWARD AVENUE, DETROIT, MI 48226
(313) 222-4000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
MARK W. YONKMAN, ESQ.
VICE PRESIDENT
COMERICA INCORPORATED
500 WOODWARD AVENUE, 33RD FLOOR
DETROIT, MICHIGAN 48226
(313) 222-3432
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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Copies to:
BARBARA A. BLUFORD, ESQ.
BODMAN, LONGLEY & DAHLING LLP
100 RENAISSANCE CENTER, 34TH FLOOR
DETROIT, MICHIGAN 48243
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after this registration statement becomes effective as determined by
market conditions.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
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If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
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If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
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If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
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CALCULATION OF REGISTRATION FEE
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Title of Proposed
Securities Maximum Amount of
to be Aggregate Registration
Registered Offering Price Fee
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Subordinated
Debt Securities
Preferred Stock,
no par value
Total $600,000,000(1) $206,896.55
(1) In United States dollars or the equivalent thereof in any currency,
currency unit or units, or composite currency or currencies. The proposed
maximum aggregate offering price has been estimated solely for the
purpose of computing the registration fee pursuant to Rule 457 of the
Securities Act of 1933.
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EXPLANATORY NOTE
This Registration Statement contains two forms of prospectus: one to be
used in connection with the offering and sale of Subordinated Debt Securities,
and one to be used in connection with the offering and sale of Preferred Stock.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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SUBJECT TO COMPLETION, DATED MAY 22, 1996
PROSPECTUS
[COMERICA LOGO]
COMERICA INCORPORATED
SUBORDINATED DEBT SECURITIES
Comerica Incorporated ("Comerica"), directly or through agents
designated from time to time, or through dealers or underwriters also to be
designated, may offer from time to time in one or more series of its unsecured
subordinated debt securities (the "Debt Securities"). The Debt Securities may
be offered, separately or together, in separate series in amounts, at prices
and on terms determined at the time of sale and set forth in one or more
supplements to this Prospectus (collectively, the "Prospectus Supplement").
Pursuant to the terms of the Registration Statement of which this Prospectus
forms a part, up to _____ shares of Comerica's preferred stock (the "Preferred
Stock" and, together with the Debt Securities, the "Securities") may also be
offered under the Registration Statement. In no event will the aggregate
initial offering price of the Debt Securities and Preferred Stock issued under
such Registration Statement exceed $600,000,000 (or its equivalent based upon
the applicable exchange rate at the time of the offering).
The specific designation, aggregate principal amount, maturity, rate
and time of payment of interest, if any, purchase price, any terms for
redemption, any mandatory or optional sinking fund or analogous provisions,
whether the Debt Securities are issuable in certificated or uncertificated
form, whether the Debt Securities initially will be represented by a single
global debt security and the agents, dealers or underwriters, if any, in
connection with the sale of the Debt Securities in respect of which this
Prospectus is being delivered will be set forth in an accompanying Prospectus
Supplement. The Prospectus Supplement will also contain information, where
applicable, concerning certain United States federal income tax considerations
relating to the Debt Securities covered by such Prospectus Supplement.
The Debt Securities may be offered by Comerica directly to purchasers,
through agents designated from time to time, through underwriting syndicates
led by one or more managing underwriters or through one or more underwriters
acting alone. If Comerica, directly or through agents, solicits offers to
purchase Debt Securities, Comerica reserves the sole right to accept and,
together with its agents, to reject in whole or in part any proposed purchase
of Debt Securities. Affiliates of Comerica may from time to time act as agents
or underwriters in connection with the sale of Debt Securities to the extent
permitted by applicable law. Comerica reserves the sole right to accept and,
together with its agents from time to time, to reject in whole or in part any
proposed purchase of Debt Securities to be made directly or through agents.
The Debt Securities will be subordinated to all present and future
Senior Indebtedness (as defined) of Comerica and, under certain circumstances,
to Other Financial Obligations (as defined) of Comerica. Payment of principal
of the Debt Securities may be accelerated only in the case of certain events of
bankruptcy or insolvency of Comerica. There is no right of acceleration in the
case of a default in the payment of the principal of, or any premium or
interest on, the Debt Securities or the performance of any agreement or
covenant of Comerica. See "Description of the Debt Securities".
THE DEBT SECURITIES ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER
OBLIGATIONS OF ANY BANK OR NONBANK SUBSIDIARY OF COMERICA AND ARE NOT INSURED
BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, OR ANY OTHER GOVERNMENT ENTITY.
The Debt Securities will not be listed on any securities exchange, and
there can be no assurance that there will be a secondary market for the Debt
Securities or if such secondary market develops, the liquidity of the Debt
Securities in such secondary market.
This Prospectus may not be used to consummate sales of the Debt
Securities unless accompanied by a Prospectus Supplement. The delivery of this
Prospectus together with a Prospectus Supplement relating to particular
Securities shall not constitute an offer in any jurisdiction of any of the
other Securities covered by this Prospectus.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is ______________ , 1996
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
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IN CONNECTION WITH ANY UNDERWRITTEN OFFERING OF THE DEBT SECURITIES, THE
UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN
THE MARKET PRICE OF THE DEBT SECURITIES AT A LEVEL ABOVE THAT WHICH MIGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED IN THE
OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
If an agent of Comerica or a dealer or underwriter is involved in the
sale of the Debt Securities in respect of which this Prospectus is being
delivered, the agent's commission, dealer's purchase price, or underwriter's
discount will be set forth in, or may be calculated from, the Prospectus
Supplement and the net proceeds to Comerica from such sale will be the purchase
price of such Debt Securities less such commission in the case of an agent, the
purchase price of such Debt Securities in the case of a dealer or the public
offering price less such discount in the case of an underwriter, and less, in
each case, the other attributable issuance expenses. The aggregate proceeds to
Comerica from all the Debt Securities will be the purchase price of the Debt
Securities sold less the aggregate of agents' commissions and underwriters'
discounts and other expenses of issuance and distribution. See "Plan of
Distribution" for possible indemnification arrangements for the agents, dealers
and underwriters.
(ii)
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AVAILABLE INFORMATION
Comerica is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith Comerica files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices
at 7 World Trade Center, Suite 1300, New York, New York 10048 and Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of
such material also can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. In addition, material filed by Comerica can be inspected at the offices
of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York
10005.
Comerica has filed with the Commission a Registration Statement on Form
S-3 (together with any amendments thereto, the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities Act"). This Prospectus
does not contain all the information set forth in the Registration Statement
and the exhibits thereto, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information, reference
is hereby made to said Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by Comerica with the
Commission pursuant to the Exchange Act, are incorporated by reference in this
Prospectus and shall be deemed to be a part hereof:
1. Comerica's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
2. Comerica's Quarterly Report on Form 10-Q for the period ended
March 31, 1996; and
3. Comerica's Registration Statement on Form 8-A dated March 4,
1991, as amended by an amendment on Form 8 dated November 1,
1991.
All documents filed by Comerica with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering hereunder shall be
deemed to be incorporated by reference in this Prospectus and to be made a part
hereof from their respective dates of filing. The documents incorporated by
reference or deemed to be incorporated by reference herein are sometimes
hereinafter called the "Incorporated Documents". Any statement contained herein
or in any Incorporated Documents shall be deemed to be modified or superseded
for all purposes of this Prospectus to the extent that a statement contained in
this Prospectus or in any subsequently filed Incorporated Document modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
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The information relating to Comerica contained in this Prospectus
summarizes, is based upon, or refers to, information and financial statements
contained in one or more of the documents incorporated by reference
herein; accordingly, such information contained herein is qualified in its
entirety by reference to such documents and should be read in conjunction
therewith.
Comerica hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom this Prospectus has been delivered,
upon the written or oral request of any such person, a copy of any or all of
the Incorporated Documents, except exhibits that are specifically incorporated
by reference into the information that this Prospectus incorporates. Requests
for such copies should be directed to: Comerica Incorporated, 500 Woodward
Avenue, Detroit, Michigan 48226: Attention: Mark W. Yonkman, Vice President
(telephone (313) 222-3432).
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COMERICA
Comerica Incorporated ("Comerica" or the "Company") is a registered bank
holding company incorporated under the laws of the State of Delaware,
headquartered in Detroit, Michigan, and was formed in 1973 to acquire the
outstanding common stock of Comerica Bank (formerly Comerica Bank-Detroit), a
Michigan banking corporation ("Comerica Bank"). As of December 31, 1995,
Comerica owned directly or indirectly all the outstanding common stock (except
for directors' qualifying shares, where applicable) of nine banking and
forty-one non-banking subsidiaries. At December 31, 1995, Comerica had total
assets of approximately $35.5 billion, total deposits of approximately $23.2
billion, total loans (net of unearned income) of approximately $24.4 billion,
and shareholders' equity of approximately $2.6 billion. At December 31, 1995,
Comerica was the largest bank holding company headquartered in Michigan in
terms of both total assets and total deposits.
Comerica's executive offices are located at Comerica Tower at Detroit
Center, 500 Woodward Avenue, Detroit, Michigan 48226 and its telephone number
is (313) 222-4000.
Comerica has strategically focused its operations on three major lines of
business: the Business Bank, the Individual Bank and the Investment Bank.
The Business Bank is comprised of middle market lending, large corporate
banking, international financial services and institutional trust. This line of
business meets the needs of medium-size businesses, multinational corporations,
and governmental entities by offering various products and services, including
commercial loans and lines of credit, deposits, cash management, corporate and
institutional trust, international trade finance, letters of credit and foreign
exchange management services.
The Individual Bank includes consumer lending, consumer deposit gathering,
mortgage loan origination and servicing, small business banking, and private
banking. This line of business offers a variety of consumer products, including
deposit accounts, direct and indirect installment loans, credit cards, home
equity lines of credit and residential mortgage loans. In addition, a full
range of financial services is provided to local companies with annual sales
under $5 million, area merchants and municipalities. Private lending and
personal trust services are also provided to meet the personal financial needs
of affluent individuals (as defined by individual net income or wealth).
The Investment Bank is responsible for the sales of mutual fund and
annuity products, as well as life, disability, and long-term care insurance
products. This line of business also offers capital market products, manages
loan syndications and provides investment management and advisory services,
investment banking, and full and discount securities brokerage services.
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Comerica has strategically focused its lines of business in each of
Comerica's four primary geographic markets: Michigan, Texas, California and
Florida. Comerica pursues all three lines of business in Michigan, Texas and
California, and has focused on the Individual Bank in Florida.
REGULATORY MATTERS
GENERAL. Comerica is a bank holding company subject to supervision and
regulation by the Board of Governors of the Federal Reserve System (the "Federal
Reserve Board") under the Bank Holding Company Act of 1956, as amended (the
"BHCA"). As a bank holding company, Comerica's activities and those of its
banking and nonbanking subsidiaries are limited to the business of banking and
activities closely related or incidental to banking, and Comerica may not
directly or indirectly acquire the ownership or control of more than five
percent of any class of voting shares or substantially all of the assets of any
company, including a bank, without the prior approval of the Federal Reserve
Board.
Comerica Bank is chartered by the State of Michigan and is supervised and
regulated by the Financial Institutions Bureau of the State of Michigan.
Comerica Bank-Texas is chartered by the State of Texas and is supervised and
regulated by the Texas Department of Banking. Comerica Bank-Midwest, N.A. and
Comerica Bank-Ann Arbor, N.A. are chartered under federal law and subject to
supervision and regulation by the Office of the Comptroller of the Currency
(the "OCC"). Comerica Bank-California is chartered and regulated by the State
of California. Comerica Bank & Trust, FSB is chartered under federal law and
subject to supervision and regulation by the Office of Thrift Supervision (the
"OTS"). Comerica Bank-Illinois is chartered by the State of Illinois and is
regulated by the State of Illinois Commissioner of Banks and Trust Companies.
Comerica Bank and Comerica Bank-Illinois are members of the Federal Reserve
System. State member banks are also regulated by the local Federal Reserve
Bank and state non-member banks are also regulated by the Federal Deposit
Insurance Corporation (the "FDIC"). Comerica Bank-Texas and Comerica
Bank-California are not members of the Federal Reserve System, and as such, are
also regulated by the FDIC. The FDIC also has back-up enforcement authority
with respect to the above banking subsidiaries. Comerica's banking
subsidiaries are also subject to requirements and restrictions under federal
and state law, including requirements to maintain reserves against
deposits, restrictions on the types and amounts of loans that may be made and
the interest that may be charged thereon, and limitations on the types of
investments that may be made and the types of services that may be offered.
Various consumer laws and regulations also affect the operations of Comerica's
banking subsidiaries.
Supervision and regulation of bank holding companies and their
subsidiaries is intended primarily for the protection of depositors, the
deposit insurance funds of the FDIC and the banking system as a whole, not for
the protection of bank holding company shareholders or creditors.
The following description summarizes some of the laws to which Comerica
and its banking subsidiaries are subject. To the extent statutory or
regulatory provisions or proposals are described, the description is qualified
in its entirety by reference to the particular statutory or regulatory
provisions or proposals.
REGULATORY RESTRICTIONS ON DIVIDENDS. It is the policy of the Federal
Reserve Board that bank holding companies should pay cash dividends on common
stock only out of income available over the past year and only if prospective
earnings retention is consistent with the organization's expected future needs
and financial condition. The policy provides that bank holding companies should
not maintain a level of cash dividends that undermines the bank holding
company's ability to serve as a source of strength to its banking subsidiaries.
Principal sources of revenues for Comerica are dividends received from its banks
and other subsidiaries.
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Each state bank that is a member of the Federal Reserve System and each
national bank is limited in the amount of dividends it may declare. Two
different calculations are performed to measure the amount of dividends that may
be paid: a recent earnings test and a cumulative net profit test. Under the
recent earnings test, a dividend may not be paid if the total of all dividends
declared by the bank in any calendar year is in excess of the current year's net
profits combined with the retained net profits of the two preceding years unless
the bank obtains the approval of the appropriate regulatory agency. Under the
cumulative net undivided profits test, a dividend may not be paid in excess of a
bank's cumulative net profits after deducting bad debts in excess of the reserve
for loan losses. Comerica's state bank subsidiaries that are not members of the
Federal Reserve System are also subject to limitations under state law regarding
the amount of earnings that may be paid out as dividends. In addition, the OTS
also limits the amount of earnings that may be paid out as dividends.
Under the foregoing dividend restrictions, at January 1, 1996 Comerica's
banking subsidiaries, without obtaining governmental approvals, could declare
aggregate dividends of approximately $279 million from retained net profits of
the preceding two years, plus an amount approximately equal to the net profits
(as measured under current regulations), if any, earned for the period from
January 1, 1996 through the date of declaration. Dividends paid to Comerica by
its subsidiary banks amounted to $184 million in 1995 and $293 million in 1994.
In addition, the federal regulatory agencies are authorized to prohibit a
banking institution or bank holding company from engaging in an unsafe or
unsound banking practice. Depending upon the circumstances, the agencies could
take the position that paying a dividend would constitute an unsafe or unsound
banking practice.
HOLDING COMPANY STRUCTURE. Comerica's banking subsidiaries are subject to
restrictions under federal law which limit certain transactions by each of them
with Comerica and its nonbanking subsidiaries, including loans, other extensions
of credit, investments or asset purchases. Such transactions by any banking
subsidiary with Comerica or any of its nonbanking subsidiaries are limited in
amount to ten percent of such banking subsidiary's capital and surplus and, with
respect to Comerica and all of its nonbanking subsidiaries together, to an
aggregate of twenty percent of such banking subsidiary's capital and surplus.
Furthermore, such loans and extensions of credit, as well as certain other
transactions, are required to be secured in specified amounts. These and
certain other transactions, including any payment of money to Comerica, must be
on terms and conditions that are or in good faith would be offered to
nonaffiliated companies.
Because Comerica is a legal entity separate and distinct from its
subsidiaries, its right to participate in the distribution of assets of any
subsidiary upon the subsidiary's liquidation or reorganization will be subject
to the prior claims of the subsidiary's creditors. In the event of a
liquidation or other resolution of an insured depository institution, the
claims of depositors and other general or subordinated creditors are entitled
to a priority of payment over the claims of holders of any obligation of the
institution to its shareholders, including any depository institution holding
company (such as Comerica) or any shareholder or creditor thereof.
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CROSS-GUARANTY AND HOLDING COMPANY LIABILITY. A depository institution
insured by the FDIC can be held liable for any loss incurred by, or reasonably
expected to be incurred by, the FDIC in connection with (i) the default of a
commonly controlled FDIC-insured depository institution or (ii) any assistance
provided by the FDIC to a commonly controlled depository institution in danger
of default. Each of Comerica's banking subsidiaries is a commonly controlled
depository institution for this purpose. Cross-guarantee liability may result
in the ultimate failure or insolvency of other insured depository institutions
in a holding company structure. Any obligation or liability owed by a banking
subsidiary to its parent company or any of the banking subsidiary's other
affiliates is subordinate to the banking subsidiary's cross-guarantee liability.
Under Federal Reserve Board policy, a bank holding company is expected to
act as a source of financial strength to each of its banking subsidiaries
and commit resources to their support. Such support may be required at times
when, absent this Federal Reserve Board policy, a holding company may not be
inclined to provide it. As discussed below under "Prompt Corrective Action," a
bank holding company in certain circumstances could be required to guarantee
the capital plan of an undercapitalized banking subsidiary.
In the event of a bank holding company's bankruptcy under Chapter 11 of
the U.S. Bankruptcy Code, the trustee will be deemed to have assumed and is
required to cure immediately any deficit under any commitment by the debtor
holding company to any of the federal banking agencies to maintain the capital
of an insured depository institution, and any claim for breach of such
obligation will generally have priority over most other unsecured claims.
PROMPT CORRECTIVE ACTION. Under the Federal Deposit Insurance Corporation
Improvement Act of 1991 ("FDICIA"), the federal banking agencies must take
prompt supervisory and regulatory actions against undercapitalized depository
institutions. Depository institutions are assigned one of five capital
categories: "well capitalized," "adequately capitalized," "undercapitalized,"
"significantly undercapitalized," and "critically undercapitalized," and
subjected to differential regulation corresponding to the capital category
within which the institution falls. Under certain circumstances, a well
capitalized, adequately capitalized or undercapitalized institution may be
treated as if the institution were in the next lower capital category. A
depository institution is generally prohibited from making capital distributions
(including paying dividends) or paying management fees to a holding company if
the institution would thereafter be undercapitalized. Adequately capitalized
institutions cannot accept, renew or roll over brokered deposits except with a
waiver from the FDIC, and are subject to restrictions on the interest rates that
can be paid on such deposits. Undercapitalized institutions may not accept,
renew, or roll over brokered deposits.
The banking regulatory agencies are permitted or, in certain cases,
required to take certain actions with respect to institutions falling within one
of the three undercapitalized categories. Depending on the level of an
institution's capital, the agency's corrective powers include, among other
things: prohibiting the payment of principal and interest on subordinated debt;
prohibiting the holding company from making distributions without prior
regulatory approval; placing limits on asset growth and restrictions on
activities; placing additional restrictions on transactions with affiliates;
restricting the interest rate the institution may pay on deposits; prohibiting
the institution from accepting deposits from correspondent banks; and in the
most severe cases, appointing a conservator or receiver for the institution. A
banking institution that is undercapitalized is required to submit a capital
restoration plan, and such a plan will not be accepted unless, among other
things, the banking institution's holding company guarantees the plan up to a
certain specified amount. Any such guarantee from a depository institution's
holding company is entitled to a priority of payment in bankruptcy. As of
December 31, 1995, all of Comerica's banking subsidiaries exceeded the required
capital ratios for classification as "well capitalized." See "Capital Adequacy."
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CAPITAL ADEQUACY. The Federal Reserve Board has adopted risk-based capital
guidelines for bank holding companies. The minimum ratio of total capital to
risk-weighted assets (which are the credit risk equivalents of balance sheet
assets and certain off balance sheet items such as standby letters of credit) is
8.00 percent. At least half of the total capital must be composed of common
stockholders' equity (including retained earnings), qualifying non-cumulative
perpetual preferred stock (and, for bank holding companies only, a limited
amount of qualifying cumulative perpetual preferred stock), and minority
interests in the equity accounts of consolidated subsidiaries, less goodwill,
other disallowed intangibles and disallowed deferred tax assets, among other
items ("Tier 1 capital"). The remainder may consist of a limited amount of
subordinated debt, other perpetual preferred stock, hybrid capital instruments,
mandatory convertible debt securities that meet certain requirements, as well as
a limited amount of reserves for loan losses ("Tier 2 capital"). The Federal
Reserve Board has also adopted a minimum leverage ratio for bank holding
companies, requiring Tier 1 capital of at least 3.00 percent of average total
consolidated assets.
The OCC, the FDIC, the Federal Reserve Board, and the OTS have also
established risk-based and leverage capital guidelines for banking
institutions. These regulations are generally similar to those established by
the Federal Reserve Board for bank holding companies.
The federal banking agencies' risk-based and leverage ratios are minimum
supervisory ratios generally applicable to banking organizations that meet
certain specified criteria, assuming that they have the highest regulatory
rating. Banking organizations not meeting these criteria are expected to
operate with capital positions well above the minimum ratios. The federal bank
regulatory agencies may set capital requirements for a particular banking
organization that are higher than the minimum ratios when circumstances warrant.
Federal Reserve Board guidelines also provide that banking organizations
experiencing internal growth or making acquisitions will be expected to maintain
strong capital positions substantially above the minimum supervisory levels,
without significant reliance on intangible assets. In addition, the regulations
of the Federal Reserve Board provide that concentration of credit risk and
certain risks arising from nontraditional activities, as well as an
institution's ability to manage these risks, are important factors to be taken
into account by regulatory agencies in assessing an organization's overall
capital adequacy.
The Federal Reserve Board and the other federal banking agencies recently
adopted amendments to their risk-based capital regulations to provide for the
consideration of interest rate risk in the agencies' determination of a banking
institution's capital adequacy. The amendments require such institutions to
effectively measure and monitor their interest rate risk and to maintain
capital adequate for that risk. The agencies have also issued for comment a
joint policy statement that describes a framework that may be used by the
agencies to measure and monitor an institution's level of interest rate risk in
the assessment of a banking institution's capital adequacy. The agencies plan
at some future date to propose the establishment of an explicit minimum capital
requirement to account for interest rate risk.
As discussed below under "Enforcement Powers," failure to meet the minimum
regulatory capital requirements could subject a banking institution to a
variety of enforcement remedies available to federal regulatory authorities,
including, in the most severe cases, the termination of deposit insurance by
the FDIC and placing the institution into conservatorship or receivership.
As of December 31, 1995, Comerica exceeded the minimum ratio of total capital
to risk-weighted assets and the minimum leverage ratio for bank holding
companies.
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ENFORCEMENT POWERS OF THE FEDERAL BANKING AGENCIES. The Federal
Reserve Board and the other federal banking agencies have broad enforcement
powers, including the power to terminate deposit insurance, impose substantial
fines and other civil and criminal penalties and appoint a conservator or
receiver. Failure to comply with applicable laws, regulations and supervisory
agreements could subject Comerica or its banking subsidiaries, as well as
officers, directors and other institution-affiliated parties of these
organizations, to administrative sanctions and potentially substantial civil
money penalties. In addition to the grounds discussed under "Prompt Corrective
Action," the appropriate federal banking agency may appoint the FDIC as
conservator or receiver for a banking institution (or the FDIC may appoint
itself, under certain circumstances) if any one or more of a number of
circumstances exist, including, without limitation, the fact that the banking
institution is undercapitalized and has no reasonable prospect of becoming
adequately capitalized; fails to become adequately capitalized when required to
do so; fails to submit a timely and acceptable capital restoration plan; or
materially fails to implement an accepted capital restoration plan.
FDIC INSURANCE ASSESSMENTS. The deposits of all the banking subsidiaries
are insured by the Bank Insurance Fund (the "BIF") of the FDIC to the extent
provided by law, 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").
The FDIC has adopted a risk-based assessment system under which the
assessment rate for an insured depository institution varies according to the
level of risk involved in its activities. Under this risk-based insurance
system, effective January 1, 1996, the rate assessed for each of Comerica's
BIF-insured banking subsidiaries decreased from 4 cents per $100 of eligible
deposits to zero, subject to a minimum assessment of $2,000 per institution per
year.
Most thrift institutions are insured by the SAIF of the FDIC and are
currently assessed deposit insurance premiums higher than those assessed
against most BIF institutions. The deposits held by Comerica's federal savings
bank in Florida, as well as SAIF-insured deposits that were acquired from
insolvent savings associations by Comerica's subsidiary banks, are subject to
this higher premium.
In response to concerns that this insurance premium disparity would have a
negative effect on SAIF-insured institutions and the SAIF, Congress recently
passed legislation that would have, among other things, eliminated the deposit
insurance premium disparity and utilized BIF assessments to help fund debt
service on certain Financing Corporation (FICO) bonds, which could have resulted
in higher insurance premiums for BIF-insured institutions. This legislation was
vetoed by President Clinton in December 1995, but could reappear in subsequent
legislation. In addition, other bills to eliminate the BIF-SAIF assessment
disparity have been introduced in Congress. It cannot be predicted whether,
when or in what form any such legislation will be enacted, or what effect such
legislation will have on Comerica's banking subsidiaries.
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<PAGE> 13
CONTROL ACQUISITIONS. The Change in Bank Control Act (the "CBCA") prohibits
a person or group of persons from acquiring "control" of a bank holding company
unless the Federal Reserve Board has been notified and has not objected to the
transaction. Under a rebuttable presumption established by the Federal Reserve
Board, the acquisition of 10% or more of a class of voting stock of a bank
holding company with a class of securities registered under Section 12 of the
Exchange Act, such as Comerica, would, under the circumstances set forth in the
presumption, constitute acquisition of control of Comerica.
In addition, any company is required to obtain the approval of the Federal
Reserve Board under the BHCA before acquiring 25% (5% in the case of an
acquiror that is a bank holding company) or more of the outstanding Common
Stock of Comerica, or otherwise obtaining control or a "controlling influence"
over Comerica.
Effective September 24, 1995, the Riegle-Neal Interstate Banking and
Branching Efficiency Act of 1994 has permitted an adequately capitalized and
adequately managed bank holding company, with Federal Reserve Board approval,
to acquire banking institutions located in states other than the bank holding
company's home state without regard to whether the transaction is prohibited
under state law. In addition, effective June 1, 1997, national banks and state
banks with different home states will be permitted to merge across state lines,
with the approval of the appropriate federal banking agency, unless the home
state of a participating banking institution passes legislation prior to that
date that expressly prohibits interstate mergers. Of Comerica's primary
markets, Texas is the only state to date to have opted out of the interstate
branching provisions. Further, such interstate mergers may be effected prior
to June 1, 1997 so long as the home state of each participating banking
institution has passed qualifying legislation that expressly permits such
transactions. Michigan, California, and Illinois have all passed early opt-in
legislation. The Michigan and California legislation is already effective.
The Illinois legislation will be effective as of January 6, 1997.
FUTURE LEGISLATION. Various legislation, including proposals to overhaul
the bank regulatory system, expand the powers of banking institutions and bank
holding companies and limit the investments that a depository institution may
make with insured funds, is from time to time introduced in Congress. Such
legislation may change banking statutes and the operating environment of
Comerica and its banking subsidiaries in substantial and unpredictable ways.
Comerica cannot determine the ultimate effect that potential legislation, if
enacted, or implementing regulations, would have upon the financial condition or
results of operations of Comerica or its subsidiaries.
USE OF PROCEEDS
Except as otherwise specified in a Prospectus Supplement, the net proceeds
from the sale of the Debt Securities offered by this Prospectus will be applied
to Comerica's general funds to be utilized for such corporate purposes as may be
determined by management, which may include investments in, and extensions of
credit to, existing and future subsidiaries, the funding of acquisitions of
banking and nonbanking institutions (including the repurchase of issued and
outstanding shares of common stock of Comerica which may be used to fund part
or all of the acquisition consideration) and other general corporate purposes.
Except as otherwise indicated in a Prospectus Supplement, specific
allocations of the proceeds to such purposes will not have been made at the
date of the applicable Prospectus Supplement. The precise amount and timing of
investments in, and extensions of credit to, subsidiaries will depend upon
their funding requirements and the availability of other funds to Comerica and
its subsidiaries. Based upon the anticipated future financing requirements of
Comerica and its subsidiaries, Comerica expects that it will, from time to
time, engage in additional financings of a character and in an amount to be
determined.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Comerica's ratios of earnings to fixed charges are set forth below for the
periods indicated:
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<TABLE>
<CAPTION>
Three Months
Ended March 31, Year Ended December 31,
--------------- -----------------------
1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated ratio
of earnings to
fixed charges
(including interest
on deposits) 1.56 x 1.49 x 1.47 x 1.64 x 1.70 x 1.39 x 1.31 x
-------- -------- ------ ------ ------ ------ ------
Consolidated ratio
of earnings to
fixed charges
(excluding interest
on deposits) 2.30 x 2.09 x 2.03 x 2.61 x 3.95 x 3.31 x 2.81 x
======== ======== ====== ====== ====== ====== ======
</TABLE>
The ratio of earnings to fixed charges is computed by dividing income
before income taxes and fixed charges by fixed charges. Fixed charges are
defined as interest expense and the portion of net rental expense estimated to
be representative of the interest factor.
DESCRIPTION OF THE Debt Securities
The Debt Securities are to be issued under an indenture to be dated
_______, 1996 (the "Indenture") between Comerica and
______________________________, as Trustee (the "Trustee"). A copy of the form
of the Indenture is filed as an exhibit to the Registration Statement of which
this Prospectus is a part. See "Available Information." The following
summaries of certain provisions of the Indenture do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all of
the provisions of the Indenture, including the definition therein of certain
capitalized terms used herein. Wherever particular sections or defined terms of
the Indenture are referred to, it is intended that such sections or defined
terms shall be incorporated herein by reference. The following sets forth
certain general terms and provisions of the Debt Securities. Further terms of
each series of Debt Securities will be set forth in the Prospectus Supplement
relating thereto.
GENERAL. The Indenture does not limit the aggregate principal amount of
Debt Securities which may be issued thereunder and provides that Debt
Securities may be issued from time to time in series. The Debt Securities will
be unsecured subordinated obligations of Comerica. The Indenture does not limit
Comerica's ability to incur other indebtedness or contain provisions which
would protect the Holders of, or owners of beneficial interests in, the Debt
Securities against a sudden decline in credit quality resulting from takeovers,
recapitalizations or other similar restructurings.
The Prospectus Supplement will describe the following terms of each
series of Debt Securities in respect of which this Prospectus is being
delivered: (1) the title of the Debt Securities; (2) any limit on the aggregate
principal amount of the Debt Securities; (3) the date or dates on which the
Debt Securities will mature; (4) the rate or rates per annum at which the Debt
Securities will bear interest, if any, or the manner in which such rates will
be determined and the date from which such interest, if any, will accrue; (5)
the
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<PAGE> 15
Interest Payment Dates on which such interest (if any) on the Debt Securities
will be payable and the Regular Record Dates for such Interest Payment Dates;
(6) the currency or currency unit, if other than United States dollars, of
payment of principal of, and any premium and interest, if any, on, the Debt
Securities; (7) any index used to determine the amount of payment of principal
of, and any premium and interest on, the Debt Securities; (8) if the Debt
Securities are to be issued in the form of one or more global securities (a
"Global Security"), the identity of the depositary for such Global Security or
Securities; (9) any mandatory or optional sinking fund or analogous provisions;
(10) any additions to, or modifications or deletions of, any Events of Default
or covenants and the remedies with respect thereto provided for with respect to
the Debt Securities; (11) any redemption terms; (12) any provisions permitting
defeasance of Comerica's obligations with respect to the Debt Securities or the
Indenture; (13) if other than the principal amount thereof, the portion of the
principal amount of the Debt Securities payable upon acceleration of the
maturity thereof; and (14) any other specific terms of the Debt Securities.
Unless otherwise specified in the Prospectus Supplement, principal of, and
premium and interest, if any, on, the Debt Securities will be payable at the
office or agency of Comerica maintained for that purpose in the City of New
York, and the Debt Securities may be surrendered for transfer or exchange at
said office or agency; provided that payment of interest, if any, may be made at
the option of Comerica by check mailed to the address of the person entitled
thereto as it appears in the register for the Debt Securities on the Regular
Record Date for such interest. (Sections 3.1 and 10.2) The office of the Trustee
in the City of New York, will initially be designated as such office or agency.
After the execution and delivery of the Indenture, Comerica may deliver
Debt Securities to the Trustee for authentication. Accompanying the delivery of
the Debt Securities to the Trustee will be a Company Order for the
authentication and delivery of the Debt Securities. In accordance with the
Company Order, the Trustee will authenticate and deliver the Debt Securities.
Each Debt Security will be dated the date of its authentication. (Section 3.3)
The Debt Securities will be issued only in fully registered form without
coupons and, unless otherwise indicated in the Prospectus Supplement, if
denominated in United States dollars, will be issued in minimum denominations of
$250,000 and integral multiples of $1,000 in excess thereof. No service charge
will be made for any transfer or exchange of the Debt Securities, but Comerica
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. Comerica shall not be required (i) to
issue, register the transfer of or exchange any Debt Securities of any series
during a period beginning at the opening of business 15 days before the date of
the mailing of a notice of redemption of Debt Securities of that series selected
for redemption and ending at the close of business on the date of such mailing
or (ii) to register the transfer of or exchange any Debt Securities selected
for redemption in whole or in part, except the unredeemed portion of Debt
Securities being redeemed in part. (Sections 3.2 and 3.5)
All moneys paid by Comerica to the Trustee or any Paying Agent for the
payment of principal of and premium and interest on any Debt Securities which
remain unclaimed for two years after such principal, premium or interest shall
have become due and payable may be repaid to Comerica and thereafter the Holder
of such Debt Securities shall look only to Comerica for payment thereof.
(Section 10.3)
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<PAGE> 16
If any Debt Securities are payable in a currency or currency unit other
than United States dollars, the special federal income tax and other
considerations applicable to such Debt Securities will be described in the
Prospectus Supplement relating thereto.
The Debt Securities may be issued as Original Issue Discount Securities
(bearing no interest or bearing interest at a rate which at the time of issue
is below market rates) to be sold at a substantial discount below their
principal amount. If any Debt Securities are issued as Original Issue Discount
Securities, the special federal income tax and other considerations applicable
to such Debt Securities will be described in the Prospectus Supplement relating
thereto.
Unless otherwise indicated in the applicable Prospectus Supplement, the
covenants contained in the Indenture and the Debt Securities will not afford
Holders protection in the event of a sudden decline in credit rating that might
result from a recapitalization, restructuring, or other highly leveraged
transaction.
RISK FACTORS OF DEBT SECURITIES DENOMINATED IN FOREIGN CURRENCIES. Debt
Securities denominated or payable in foreign currencies may entail significant
risks. These risks include, without limitation, the possibility of significant
fluctuations in the foreign currency market, the imposition of foreign exchange
controls, and potential illiquidity in the secondary market. These risks will
vary depending upon the currency involved. These risks may be more fully
described in the applicable Prospectus Supplement.
GLOBAL SECURITIES. The Debt Securities may be issued in whole or in
part in the form of one or more Global Securities that will be deposited with,
or on behalf of, a depositary (the "Depository") identified in the Prospectus
Supplement relating to such Debt Securities. Unless and until it is
exchangeable in whole or in part for Debt Securities in definitive form, a
Global Security may generally not be transferred except as a whole by the
Depository for such Global Security to a nominee of such Depository. (Section
2.4)
The specific terms of the depositary arrangement, if any, with respect
to a series of Debt Securities will be described in the Prospectus Supplement
relating to such series. Comerica anticipates that the following provisions
will apply to all depositary arrangements.
Ownership of beneficial interests in a Global Security will be limited
to persons that have accounts with the Depository for such Global Security or
its nominee ("Participants") or persons that may hold interests through
Participants. Such accounts shall be designated by the underwriters or agents
with respect to the Debt Securities underwritten or solicited by them. Comerica
expects that upon the issuance of a Global Security, the Depository for such
Global Security will credit, on its book-entry registration and transfer
system, the Participants' accounts with the respective principal amounts of the
Debt Securities represented by such Global Security. Ownership of beneficial
interests in such Global Security will be shown on, and the transfer of such
ownership interests will be effected only through, records maintained by the
Depository (with respect to interests of Participants) and on the records of
Participants (with respect to interests of persons held through Participants).
The laws of some states may require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such limits and such
laws may impair the ability to own, transfer or pledge beneficial interests in
a Global Security.
So long as the Depository for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depository or such nominee, as
the case may be, will be considered the sole owner or Holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. (Section 3.8) Except as provided below, owners of beneficial
interests in a Global Security will not be entitled to have the Debt Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of the Debt Securities in
definitive form and will not be considered the owners or Holders thereof under
the Indenture. Accordingly, each person owning a beneficial interest in such a
Global Security must rely on the procedures of
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<PAGE> 17
the Depository and, if such person is not a Participant, on the procedures
of the Participant through which such person owns its interest, to exercise
any rights of a Holder under the Indenture. Comerica understands that
under existing industry practices, in the event that Comerica requests any
action of Holders or that an owner of a beneficial interest in such a Global
Security desires to take any action which a Holder is entitled to take under
the Indenture, the Depository would authorize the Participants holding the
relevant beneficial interests to take such action, and such Participants would
authorize beneficial owners owning through such Participants to take such
action or would otherwise act upon the instructions of beneficial owners owning
through them.
Payment of principal of, and premium and interest, if any, on, Debt
Securities registered in the name of a Depository or its nominee will be made
to the Depository or its nominee, as the case may be, as the registered owner
of the Global Security representing such Debt Securities. None of Comerica, the
Trustee, any Paying Agent or any other agent of Comerica or the Trustee will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in the Global
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Comerica expects that upon receipt of any payment of principal of, or premium
or interest on, a Global Security, the Depository will immediately credit
Participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global Security
as shown on the records of the Depository. Payments by Participants to owners
of beneficial interests in such Global Security held through such Participants
will be the responsibility of such Participants, as is now the case with
securities held for the accounts of customers registered in "street name."
If the Depository for any Debt Securities represented by a Global
Security notifies Comerica that it is unwilling or unable to continue as
Depository or ceases to be a clearing agency registered under the Exchange Act
and a successor Depository is not appointed by Comerica within ninety days
after receiving such notice or becoming aware that the Depository is no longer
so registered, Comerica will issue such Debt Securities in definitive form
upon registration of transfer of, or in exchange for, such Global Security. In
addition, Comerica may at any time and in its sole discretion determine not to
have the Debt Securities represented by one or more Global Securities and, in
such event, will issue Debt Securities in definitive form in exchange for all
of the Global Securities representing such Debt Securities. (Section 3.5)
SUBORDINATION OF DEBT SECURITIES. The Debt Securities are expressly
subordinated in right of payment, to the extent set forth in the Indenture, to
all Senior Indebtedness (as defined below). (Section 13.1) In certain events of
insolvency, the Debt Securities will, to the extent set forth in the Indenture,
also be effectively subordinated in right of payment to the prior payment of
all Other Financial Obligations (as defined below). (Section 13.15)
If Comerica shall default in the payment of the principal of, or any
premium or interest on any Senior Indebtedness when the same becomes due and
payable beyond any applicable grace
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<PAGE> 18
period with respect thereto, or if any event of default with respect to Senior
Indebtedness permitting the holders thereof to accelerate the maturity thereof
shall have occurred and be continuing, or any judicial proceeding shall be
pending with respect to any such default in payment or event of default then,
unless and until such event of default shall have been cured or waived or
shall have ceased to exist or such judicial proceeding shall be no longer
pending, no payment shall be made for principal of or premium or interest on
the Debt Securities, or in respect of any purchase or other acquisition of any
of the Debt Securities. (Section 13.4) "Senior Indebtedness" of Comerica means
the principal of, or any premium or interest on all indebtedness for money
borrowed or purchased by Comerica, or borrowed by another and guaranteed by
Comerica (including any deferred obligation for the payment of the purchase
price of property or assets evidenced by a note or similar agreement), whether
now outstanding or subsequently created, assumed or incurred, and any
amendments, deferrals, renewals or extensions of any such Senior Indebtedness,
other than (i) any obligation as to which it is provided that such obligation
is not to be senior in right of payment to the Debt Securities and (ii) the
Debt Securities. (Section 1.1) At March 31, 1996, Comerica had no Senior
Indebtedness outstanding.
The Indenture does not limit the amount of Senior Indebtedness which
Comerica may incur.
In the event of any insolvency, bankruptcy, receivership,
reorganization, readjustment of debt, assignment for the benefit of creditors,
marshaling of assets and liabilities, or similar proceedings relating to, or
any liquidation, dissolution, or winding-up of, Comerica, whether voluntary or
involuntary, all obligations of Comerica to holders of Senior Indebtedness
shall be entitled to be paid in full (or provision shall be made for such
payment) before any payment shall be made on account of the principal of or
premium or interest on the Debt Securities. In the event of any such
proceeding, if any payment by or distribution of assets of Comerica of any kind
or character, whether in cash, property, or securities (other than securities
of Comerica or any other corporation provided for by a plan of reorganization
or readjustment, the payment of which is subordinate, at least to the extent
provided in the subordination provisions with respect to the Debt Securities,
to the payment of all Senior Indebtedness at the time outstanding and to any
securities issued in respect thereof under any such plan of reorganization or
readjustment), shall be received by the Trustee or the Holders of the Debt
Securities before all Senior Indebtedness is paid in full, such payment or
distribution shall be held (in trust if received by the Holders of the Debt
Securities) for the benefit of the holders of such Senior Indebtedness and
shall be paid over to the trustee in bankruptcy or other Person making payment
or distribution of the assets of Comerica for application to the payment of all
Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall
have been paid in full after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness. (Section 13.2) If,
upon any such payment or distribution of assets to creditors, there remain,
after giving effect to such subordination provisions in favor of the holders of
Senior Indebtedness, any amounts of cash, property or securities available for
payment or distribution in respect of Debt Securities (as defined in the
Indenture, "Excess Proceeds") and if, at such time, any person entitled to
payment pursuant to the terms of Other Financial Obligations has not received
payment in full of all amounts due or to become due on or in respect of such
Other Financial
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<PAGE> 19
Obligations, then such Excess Proceeds shall first be applied to pay or provide
for the payment in full of such Other Financial Obligations before any payment
or distribution may be made in respect of the Debt Securities. (Section 13.15)
Unless otherwise specified in the Prospectus Supplement relating to the
particular series of Debt Securities, the term "Other Financial Obligations"
includes all obligations of Comerica to make payment pursuant to the terms of
financial instruments, such as: (i) securities contracts and currency and
foreign exchange contracts, and (ii) derivative instruments, such as swap
agreements (including interest rate and currency and foreign exchange rate swap
agreements), cap agreements, floor agreements, collar agreements, interest rate
agreements, foreign exchange agreements, options, commodity futures contracts
and commodity options contracts, other than (x) obligations on account of Senior
Indebtedness and (y) obligations on account of indebtedness for money borrowed
ranking pari passu with or subordinate to the Debt Securities. (Section 1.1)
By reason of such subordination, in the event of the bankruptcy or
insolvency of Comerica or similar event, whether before or after maturity of
the Debt Securities, holders of Senior Indebtedness or of Other Financial
Obligations may receive more, ratably, and Holders of the Debt Securities
having a claim pursuant to the Debt Securities may receive less, ratably, than
creditors of Comerica who do not hold Senior Indebtedness, Other Financial
Obligations or Debt Securities.
In addition, in the event of the insolvency, bankruptcy, receivership,
conservatorship or reorganization of Comerica, the claims of the Holders of the
Debt Securities would be subject as to enforcement to the broad equity power of
a federal bankruptcy court, and to the determination by that court of the
nature of the rights of the Holders.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE. Comerica may, without the
consent of any Holder of the Debt Securities, merge or consolidate with any
other corporation or transfer or convey all or substantially all of its assets
to any corporation, provided that the successor corporation (if other than
Comerica) shall expressly assume Comerica's obligations under the Indenture and
on the Debt Securities, and, immediately after giving effect to such merger,
consolidation, transfer or conveyance, there shall be no Event of Default under
the Indenture, and no event shall have happened and be continuing which, with
the giving of notice or passage of time, would become an Event of Default. In
addition, Comerica may, without the consent of any Holder of the Debt
Securities, convey its assets substantially as an entirety to any Person in
connection with a transfer that is assisted by a federal bank regulatory
authority and in such case Comerica's obligations under the Indenture need not
be assumed by the entity acquiring such assets. (Section 8.1)
EVENTS OF DEFAULT AND LIMITED RIGHTS OF ACCELERATION. Unless otherwise
provided in the applicable Prospectus Supplement, the Indenture defines an
Event of Default as any one of the following events: (a) default for 30 days in
the payment of any interest upon any Debt Securities when it becomes due and
payable; (b) default in the payment of the principal of (or premium, if any,
on) any Debt Security at its maturity; (c) default in the deposit of any sinking
fund payment, when and as due by the terms of the Debt Securities; (d) default
in the performance, or breach, of any covenant or warranty of Comerica
(other than a covenant or warranty included in the Indenture solely for the
benefit
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of a series of Debt Securities other than the Debt Securities) which continues
for 60 days after the Holders of at least 25% in principal amount of
Outstanding Debt Securities have given written notice as provided in the
Indenture; (e) certain events of bankruptcy, insolvency or reorganization of
Comerica; or (f) any other Events of Default as may be specified in a
Prospectus Supplement with respect to the Debt Securities. (Section 5.1) An
Event of Default under one series of Debt Securities will not necessarily be an
Event of Default with respect to any other series of Debt Securities.
If an Event of Default of a type set forth in clause (e) above with
respect to the Debt Securities of any series at the time Outstanding occurs and
is continuing, either the Trustee or the Holders of at least 25% in aggregate
principal amount of the Outstanding Debt Securities of that series may declare
the principal amount (or, if the Debt Securities of that series are Original
Issue Discount Securities, such portion of that principal amount as may be
specified in the terms of that series) of all the Debt Securities of that
series to be due and payable immediately. At any time after a declaration of
acceleration with respect to Debt Securities of any series has been made, but
before a judgment or decree based on acceleration has been obtained, the
Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of that series may, under certain circumstances, rescind and annul
such acceleration. (Section 5.2)
The Indenture does not provide for any right of acceleration of the
payment of the principal of a series of Debt Securities upon a default in the
payment of principal, premium, if any, or interest or a default in the
performance of any covenant or agreement in the Debt Securities of that series
or in the Indenture. Accordingly, the Trustee and the Holders will not be
entitled to accelerate the maturity of these Debt Securities upon the
occurrence of any of the Events of Default described above, except for those
described in clause (e) above. If a default in the payment of principal,
premium, if any, or interest or in the performance of any covenant or agreement
in the Debt Securities of any series or in the Indenture occurs, the Trustee
may, subject to certain limitations and conditions, seek to enforce payment of
such principal, premium, if any, or interest on the Debt Securities of that
series, or the performance of such covenant or agreement. (Section 5.3)
The Indenture provides that, subject to the duty of the Trustee during
the continuance of an Event of Default to act with the required standard of
care, the Trustee will be under no obligation to exercise any of its rights or
powers under the Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Trustee reasonable indemnity.
(Section 6.3) Subject to certain limitations, the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of any series
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Debt Securities of that
series. (Section 5.12) The right of a Holder of any Debt Securities to
institute a proceeding with respect to the Indenture is subject to certain
conditions precedent, but each Holder has an absolute right to receive payment
of principal, premium and interest, if any, when due and to institute suit for
the enforcement of any such payment. (Sections 5.7 and 5.8)
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Comerica is required to furnish to the Trustee annually a statement as to
the performance by Comerica of certain of its obligations under the Indenture
and as to any default in such performance. (Sections 1.2 and 10.4)
DEFEASANCE AND COVENANT DEFEASANCE. The Indenture provides that, if such
provision is made applicable to the Debt Securities of any series pursuant to
Section 3.1 of the Indenture (which will be indicated in the applicable
Prospectus Supplement), Comerica may elect either (a) to defease and be
discharged from any and all obligations in respect of such Debt Securities then
outstanding (including the provisions described under "Subordination of Debt
Securities" and except for certain obligations to register the transfer of or
exchange of such Debt Securities, replace stolen, lost or mutilated Debt
Securities, maintain paying agencies and hold monies for payment in trust)
("defeasance") or (b) to be released from its obligations with respect to the
subordination provisions described under "Subordination of Debt Securities" and
any other covenants applicable to such Debt Securities which are determined
pursuant to Section 3.1 of the Indenture to be subject to covenant defeasance
("covenant defeasance"), and the occurrence of an event described in clause (d)
(insofar as with respect to covenants subject to covenant defeasance) under
"Events of Default and Limited Rights of Acceleration" above shall no longer be
an Event of Default, in each case (a) or (b), if Comerica deposits, in trust,
with the Trustee money or U.S. Government Obligations, which through the payment
of interest thereon and principal thereof in accordance with their terms will
provide money, in an amount sufficient, without reinvestment, to pay all the
principal of (and premium, if any) and interest on such Debt Securities on the
dates such payments are due (which may include one or more redemption dates
designated by Comerica) and any mandatory sinking fund or analogous payments
thereon in accordance with the terms of such Debt Securities. Such a trust may
only be established if, among other things, (i) no Event of Default or event
which with the giving of notice or lapse of time, or both, would become an Event
of Default under the Indenture shall have occurred and be continuing on the date
of such deposit, (ii) such deposit will not cause the Trustee to have any
conflicting interest with respect to other securities of Comerica and (iii)
Comerica shall have delivered an Opinion of Counsel to the effect that the
Holders will not recognize income, gain or loss for Federal income tax purposes
as a result of such deposit or defeasance and will be subject to Federal income
tax in the same manner as if such defeasance had not occurred.
Comerica may exercise its defeasance option with respect to such Debt
Securities notwithstanding its prior exercise of its covenant defeasance option.
If Comerica exercises its defeasance option, payment of such Debt Securities may
not be accelerated because of an Event of Default. If Comerica exercises its
covenant defeasance option, payment of such Debt Securities may not be
accelerated by reference to the covenants noted under clause (b) above. In the
event Comerica omits to comply with its remaining obligations with respect to
such Debt Securities under the Indenture after exercising its covenant
defeasance option and such Debt Securities are declared due and payable because
of the occurrence of any Event of Default, the amount of money and U.S.
Government Obligations on deposit with the Trustee may be insufficient to pay
amounts due on the Debt Securities of such series at the time of the
acceleration resulting from such Event of Default. However, Comerica will
remain liable in respect of such payments. (Article Fourteen)
MODIFICATIONS AND WAIVER. The Indenture provides that Comerica and the
Trustee may enter into a supplemental indenture to amend the Indenture or the
Debt Securities without the consent of any Holder of any Outstanding Debt
Securities: (1) to evidence the succession of another Person to Comerica and the
assumption by such successor of Comerica's obligations under the Indenture; (2)
to add to the covenants of Comerica further covenants, restrictions or
conditions for the protection of the Holders of all or any particular series of
Debt Securities or to surrender any right or power conferred upon Comerica in
the Indenture; (3) to add or change any of the provisions of the Indenture
necessary to facilitate the issuance of Debt Securities in bearer form; (4) to
eliminate or change any provision of the Indenture prior to the issuance of the
series that is entitled to the benefit of such provision; (5) to establish the
terms and conditions of Debt Securities of any series; (6) to provide for the
acceptance of appointment by a successor trustee or to add or change any of the
provisions of the Indenture necessary to provide for or facilitate the
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<PAGE> 22
administration of the trust by more than one Trustee; (7) to cure any ambiguity,
defect or inconsistency or to make such other provision in regard to matters or
questions arising under the Indenture which do not adversely affect the
interests of the Holders of the Debt Securities; (8) to secure the Debt
Securities; (9) to provide for the conversion or exchange of Debt Securities of
a particular series into or for other securities of Comerica; (10) to add to,
change or eliminate any of the provisions of the Indenture relating to
subordination of the Debt Securities in respect of any series of Debt
Securities, provided that any such action shall not adversely affect the
interests of the Holders of Debt Securities of any series in any material
respect; or (11) to add additional Events of Default. (Section 9.1)
In addition to the foregoing, modifications and amendments of the Indenture
may be made by Comerica and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Debt Securities of
each series affected by such modification or amendment; provided, however, that
no such modification or amendment may, without the consent of the Holder of each
Outstanding Debt Securities affected thereby, (a) change the stated maturity
date of the principal of, or any premium or installment of interest, if any, on
any Debt Securities, (b) reduce the principal amount of, or premium or interest,
if any, on, any Debt Securities, (c) reduce the amount of principal on an
Original Issue Discount Security payable upon acceleration of the maturity
thereof, (d) change the currency of payment of principal of, or premium or
interest, if any, on, any Debt Securities, (e) impair the right to institute
suit for the enforcement of any such payment on or with respect to any Debt
Securities, (f) reduce the percentage in principal amount of Outstanding Debt
Securities of any series the consent of whose Holders is required for
modification or amendment of the Indenture or for any waiver. (Section 9.2)
The Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of all Holders of
Debt Securities of that series, waive, insofar as that series is concerned,
compliance by Comerica with certain restrictive provisions of the Indenture.
(Section 10.8) The Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of all Holders of
Debt Securities of that series, waive any past default under the Indenture
with respect to Debt Securities of that series, except a default in the
payment of principal, or of premium or interest, if any, or in respect of a
provision which under the Indenture cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Securities of that series.
(Section 5.13)
SATISFACTION AND DISCHARGE. The Trustee will discharge the Indenture
upon Company Request when all the authenticated and delivered Debt Securities
have been (a) delivered to the Trustee for cancellation, or (b) Comerica has
deposited or caused to be deposited with the Trustee, funds to be held in trust
in an amount sufficient to pay and discharge the entire indebtedness on the
Debt Securities not previously delivered to the Trustee and the Debt Securities
have (i) become due and payable, (ii) will become due and payable at their
Stated Maturity within one year, or (iii) are to be called for redemption
within one year. (Section 4.1)
GOVERNING LAW. The Indenture and the Debt Securities will be governed
by and construed in accordance with the laws of the State of New York.
INFORMATION CONCERNING THE TRUSTEE. Comerica and its subsidiaries
maintain deposit accounts and conduct other banking transactions with the
Trustee in the ordinary course of business.
PLAN OF DISTRIBUTION
Debt Securities may be offered and sold by Comerica by any of three
means of distribution: (1) through agents, (2) through underwriters or dealers
or (3) directly to one or more purchasers. Such underwriters, dealers or agents
may be affiliates of Comerica, and offers and sales of Securities may include
secondary market transactions by affiliates of Comerica. The applicable
Prospectus Supplement will set forth the terms of the offering to which such
Prospectus Supplement relates, including the name or names of any underwriters
or agents, the public offering or purchase price, the net proceeds to Comerica,
underwriting discounts and other items constituting underwriters' compensation,
any discounts and commissions allowed or paid to dealers, any commissions
allowed or paid to agents [, and the securities exchanges, if any, on which such
Debt Securities will be listed]. Dealer trading may take place in certain of the
Debt Securities, including Debt Securities not listed on any securities
exchange. [Direct sales may be made on a national securities exchange or
otherwise.]
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<PAGE> 23
The Securities may be purchased to be reoffered to the public through
underwriting syndicates led by one or more managing underwriters, or through
one or more underwriters acting alone. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time. If so indicated in the applicable Prospectus
Supplement, Comerica will authorize underwriters or agents to solicit offers by
certain institutions to purchase securities from Comerica pursuant to Delayed
Delivery Contracts providing for payment and delivery at a future date.
Any underwriter or agent participating in the distribution of the
Securities may be deemed to be an underwriter, as that term is defined in the
Securities Act of 1933, as amended (the "Securities Act"), of the Securities so
offered and sold and any discounts or commissions received by them and any
profit realized by them on the sale or resale of the Securities may be deemed
to be underwriting discounts and commissions under the Securities Act.
Underwriters, agents and their controlling persons may be entitled, under
agreements entered into with Comerica, to indemnification by Comerica against
certain civil liabilities, including liabilities under the Securities Act.
Underwriters, agents or their controlling persons may engage in
transactions with and perform services for Comerica in the ordinary course of
business.
EXPERTS
The consolidated financial statements of Comerica as of December 31, 1995
and 1994 incorporated by reference in this Prospectus from Comerica's Annual
Report on Form 10-K for the year ended December 31, 1995 have been audited by
Ernst & Young LLP, independent public accountants, and are given on the
authority of said firm as experts in auditing and accounting.
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<PAGE> 24
LEGAL MATTERS
The validity of the Securities will be passed upon for Comerica by Bodman,
Longley & Dahling LLP, Detroit, Michigan. As of May 20, 1996 approximately
62,269 shares of Comerica's Common Stock, $5 par value, were beneficially owned
by the attorneys in the firm of Bodman, Longley & Dahling LLP.
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<PAGE> 25
SUBJECT TO COMPLETION, DATED MAY 22, 1996
PROSPECTUS
[COMERICA LOGO]
COMERICA INCORPORATED
PREFERRED STOCK
Comerica Incorporated ("Comerica"), directly or through agents
designated from time to time, or through dealers or underwriters also to be
designated, may offer from time to time in one or more series up to _______
shares of its preferred stock (the "Preferred Stock"). The Preferred Stock may
be offered, in separate series in amounts, at prices and on terms determined at
the time of sale and set forth in one or more supplements to this Prospectus
(together, the "Prospectus Supplement"). Pursuant to the terms of the
Registration Statement of which this Prospectus forms a part, Comerica's
unsecured subordinated debt securities (the "Debt Securities" and, together
with the Preferred Stock, the "Securities") may also be offered under such
Registration Statement. In no event will the aggregate initial offering price
of the Preferred Stock and Debt Securities issued under such Registration
Statement exceed $600,000,000 (or its equivalent based upon the applicable
exchange rate at the time of the offering).
The Prospectus Supplement will also include the specific designation,
the aggregate number of shares offered, the dividend rate or method of
calculation, the dividend period and dividend payment dates, whether such
dividends will be cumulative or noncumulative, the liquidation preference, any
terms for redemption at the option of the holder or Comerica and any applicable
conversion provisions, in the event that such series of Preferred Stock is
convertible at the option of the holder thereof or of Comerica, into shares of
Common Stock. The Preferred Stock will have no voting rights, except as may be
required by law.
[The Preferred Stock will not be listed on any securities exchange,]
and there can be no assurance that there will be a secondary market for the
Preferred Stock or if such secondary market develops, as to the liquidity of
the Preferred Stock in such secondary market.
This Prospectus may not be used to consummate sales of the Preferred
Stock unless accompanied by a Prospectus Supplement. The delivery of this
Prospectus together with a Prospectus Supplement relating to particular
Preferred Stock shall not constitute an offer in any jurisdiction of any of the
other Preferred Stock covered by this Prospectus.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is _____________________, 1996
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OF THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE> 26
IN CONNECTION WITH ANY UNDERWRITTEN OFFERING OF THE PREFERRED STOCK, THE
UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN
THE MARKET PRICE OF THE PREFERRED STOCK OFFERED HEREBY AT A LEVEL ABOVE THAT
WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE
EFFECTED IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
If an agent of Comerica or a dealer or underwriter is involved in the sale
of the Preferred Stock in respect of which this Prospectus is being delivered,
the agent's commission, dealer's purchase price, or underwriter's discount will
be set forth in, or may be calculated from, the Prospectus Supplement and the
net proceeds to Comerica from such sale will be the purchase price of such
Preferred Stock less such commission in the case of an agent, the purchase
price of such Preferred Stock in the case of a dealer or the public offering
price less such discount in the case of an underwriter, and less, in each case,
the other attributable issuance expenses. The aggregate proceeds to Comerica
from all the Preferred Stock will be the purchase price of the Preferred Stock
sold less the aggregate of agents' commissions and underwriters' discounts and
other expenses of issuance and distribution. See "Plan of Distribution" for
possible indemnification arrangements for the agents, dealers and underwriters.
(ii)
<PAGE> 27
AVAILABLE INFORMATION
Comerica is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith Comerica files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices
at 7 World Trade Center, Suite 1300, New York, New York 10048 and Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of
such material also can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. In addition, material filed by Comerica can be inspected at the offices
of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York
10005.
Comerica has filed with the Commission a Registration Statement on Form
S-3 (together with any amendments thereto, the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities Act"). This Prospectus
does not contain all the information set forth in the Registration Statement
and the exhibits thereto, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information, reference
is hereby made to said Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by Comerica with the
Commission pursuant to the Exchange Act, are incorporated by reference in this
Prospectus and shall be deemed to be a part hereof:
1. Comerica's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
2. Comerica's Quarterly Report on Form 10-Q for the period ended March
31, 1996; and
3. Comerica's Registration Statement on Form 8-A dated March 4, 1991, as
amended by an amendment on Form 8 dated November 1, 1991.
All documents filed by Comerica with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering hereunder shall be
deemed to be incorporated by reference in this Prospectus and to be made a part
hereof from their respective dates of filing. The documents incorporated by
reference or deemed to be incorporated by reference herein are sometimes
hereinafter called the "Incorporated Documents". Any statement contained herein
or in any Incorporated Documents shall be deemed to be modified or superseded
for all purposes of this Prospectus to the extent that a statement contained in
this Prospectus or in any subsequently filed Incorporated Document modifies or
supersedes such statement. Any such statement so modified
<PAGE> 28
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The information relating to Comerica contained in this Prospectus
summarizes, is based upon, or refers to, information and financial statements
contained in one or more of the documents incorporated by reference herein;
accordingly, such information contained herein is qualified in its entirety by
reference to such documents and should be read in conjunction therewith.
Comerica hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom this Prospectus has been delivered,
upon the written or oral request of any such person, a copy of any or all of
the Incorporated Documents, except exhibits that are specifically incorporated
by reference into the information that this Prospectus incorporates. Requests
for such copies should be directed to: Comerica Incorporated, 500 Woodward
Avenue, Detroit, Michigan 48226: Attention: Mark W. Yonkman, Vice President
(telephone (313) 222-3432).
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<PAGE> 29
COMERICA
Comerica Incorporated ("Comerica" or the "Company") is a registered bank
holding company incorporated under the laws of the State of Delaware,
headquartered in Detroit, Michigan, and was formed in 1973 to acquire the
outstanding common stock of Comerica Bank (formerly Comerica Bank-Detroit), a
Michigan banking corporation ("Comerica Bank"). As of December 31, 1995,
Comerica owned directly or indirectly all the outstanding common stock (except
for directors' qualifying shares, where applicable) of nine banking and
forty-one non-banking subsidiaries. At December 31, 1995, Comerica had total
assets of approximately $35.5 billion, total deposits of approximately $23.2
billion, total loans (net of unearned income) of approximately $24.4 billion,
and shareholders' equity of approximately $2.6 billion. At December 31, 1995,
Comerica was the largest bank holding company headquartered in Michigan in
terms of both total assets and total deposits.
Comerica's executive offices are located at Comerica Tower at Detroit
Center, 500 Woodward Avenue, Detroit, Michigan 48226 and its telephone number
is (313) 222-4000.
Comerica has strategically focused its operations on three major lines of
business: the Business Bank, the Individual Bank and the Investment Bank.
The Business Bank is comprised of middle market lending, large corporate
banking, international financial services and institutional trust. This line of
business meets the needs of medium-size businesses, multinational corporations,
and governmental entities by offering various products and services, including
commercial loans and lines of credit, deposits, cash management, corporate and
institutional trust, international trade finance, letters of credit and foreign
exchange management services.
The Individual Bank includes consumer lending, consumer deposit gathering,
mortgage loan origination and servicing, small business banking, and private
banking. This line of business offers a variety of consumer products, including
deposit accounts, direct and indirect installment loans, credit cards, home
equity lines of credit and residential mortgage loans. In addition, a full
range of financial services is provided to local companies with annual sales
under $5 million, area merchants and municipalities. Private lending and
personal trust services are also provided to meet the personal financial needs
of affluent individuals (as defined by individual net income or wealth).
The Investment Bank is responsible for the sales of mutual fund and
annuity products, as well as life, disability, and long-term care insurance
products. This line of business also offers capital market products, manages
loan syndications and provides investment management and advisory services,
investment banking, and full and discount securities brokerage services.
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<PAGE> 30
Comerica has strategically focused its lines of business in each of
Comerica's four primary geographic markets: Michigan, Texas, California and
Florida. Comerica pursues all three lines of business in Michigan, Texas and
California, and has focused on the Individual Bank in Florida.
REGULATORY MATTERS
GENERAL. Comerica is a bank holding company subject to supervision and
regulation by the Board of Governors of the Federal Reserve System (the "Federal
Reserve Board") under the Bank Holding Company Act of 1956, as amended (the
"BHCA"). As a bank holding company, Comerica's activities and those of its
banking and nonbanking subsidiaries are limited to the business of banking and
activities closely related or incidental to banking, and Comerica may not
directly or indirectly acquire the ownership or control of more than five
percent of any class of voting shares or substantially all of the assets of any
company, including a bank, without the prior approval of the Federal Reserve
Board.
Comerica Bank is chartered by the State of Michigan and is supervised and
regulated by the Financial Institutions Bureau of the State of Michigan.
Comerica Bank-Texas is chartered by the State of Texas and is supervised and
regulated by the Texas Department of Banking. Comerica Bank-Midwest, N.A. and
Comerica Bank-Ann Arbor, N.A. are chartered under federal law and subject to
supervision and regulation by the Office of the Comptroller of the Currency
(the "OCC"). Comerica Bank-California is chartered and regulated by the State
of California. Comerica Bank & Trust, FSB is chartered under federal law and
subject to supervision and regulation by the Office of Thrift Supervision (the
"OTS"). Comerica Bank-Illinois is chartered by the State of Illinois and is
regulated by the State of Illinois Commissioner of Banks and Trust Companies.
Comerica Bank and Comerica Bank-Illinois are members of the Federal Reserve
System. State member banks are also regulated by the local Federal Reserve
Bank and state non-member banks are also regulated by the Federal Deposit
Insurance Corporation (the "FDIC"). Comerica Bank-Texas and Comerica
Bank-California are not members of the Federal Reserve System, and as such, are
also regulated by the FDIC. The FDIC also has back-up enforcement authority
with respect to the above banking subsidiaries. Comerica's banking
subsidiaries are also subject to requirements and restrictions under federal
and state law, including requirements to maintain reserves against
deposits, restrictions on the types and amounts of loans that may be made and
the interest that may be charged thereon, and limitations on the types of
investments that may be made and the types of services that may be offered.
Various consumer laws and regulations also affect the operations of Comerica's
banking subsidiaries.
Supervision and regulation of bank holding companies and their
subsidiaries is intended primarily for the protection of depositors, the
deposit insurance funds of the FDIC and the banking system as a whole, not for
the protection of bank holding company shareholders or creditors.
The following description summarizes some of the laws to which Comerica
and its banking subsidiaries are subject. To the extent statutory or
regulatory provisions or proposals are described, the description is qualified
in its entirety by reference to the particular statutory or regulatory
provisions or proposals.
REGULATORY RESTRICTIONS ON DIVIDENDS. It is the policy of the Federal
Reserve Board that bank holding companies should pay cash dividends on common
stock only out of income available over the past year and only if prospective
earnings retention is consistent with the organization's expected future needs
and financial condition. The policy provides that bank holding companies should
not maintain a level of cash dividends that undermines the bank holding
company's ability to serve as a source of strength to its banking subsidiaries.
Principal sources of revenues for Comerica are dividends received from its banks
and other subsidiaries.
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<PAGE> 31
Each state bank that is a member of the Federal Reserve System and each
national bank is limited in the amount of dividends it may declare. Two
different calculations are performed to measure the amount of dividends that may
be paid: a recent earnings test and a cumulative net profit test. Under the
recent earnings test, a dividend may not be paid if the total of all dividends
declared by the bank in any calendar year is in excess of the current year's net
profits combined with the retained net profits of the two preceding years unless
the bank obtains the approval of the appropriate regulatory agency. Under the
cumulative net undivided profits test, a dividend may not be paid in excess of a
bank's cumulative net profits after deducting bad debts in excess of the reserve
for loan losses. Comerica's state bank subsidiaries that are not members of the
Federal Reserve System are also subject to limitations under state law regarding
the amount of earnings that may be paid out as dividends. In addition, the OTS
also limits the amount of earnings that may be paid out as dividends.
Under the foregoing dividend restrictions, at January 1, 1996 Comerica's
banking subsidiaries, without obtaining governmental approvals, could declare
aggregate dividends of approximately $279 million from retained net profits of
the preceding two years, plus an amount approximately equal to the net profits
(as measured under current regulations), if any, earned for the period from
January 1, 1996 through the date of declaration. Dividends paid to Comerica by
its subsidiary banks amounted to $184 million in 1995 and $293 million in 1994.
In addition, the federal regulatory agencies are authorized to prohibit a
banking institution or bank holding company from engaging in an unsafe or
unsound banking practice. Depending upon the circumstances, the agencies could
take the position that paying a dividend would constitute an unsafe or unsound
banking practice.
HOLDING COMPANY STRUCTURE. Comerica's banking subsidiaries are subject to
restrictions under federal law which limit certain transactions by each of them
with Comerica and its nonbanking subsidiaries, including loans, other extensions
of credit, investments or asset purchases. Such transactions by any banking
subsidiary with Comerica or any of its nonbanking subsidiaries are limited in
amount to ten percent of such banking subsidiary's capital and surplus and, with
respect to Comerica and all of its nonbanking subsidiaries together, to an
aggregate of twenty percent of such banking subsidiary's capital and surplus.
Furthermore, such loans and extensions of credit, as well as certain other
transactions, are required to be secured in specified amounts. These and
certain other transactions, including any payment of money to Comerica, must be
on terms and conditions that are or in good faith would be offered to
nonaffiliated companies.
Because Comerica is a legal entity separate and distinct from its
subsidiaries, its right to participate in the distribution of assets of any
subsidiary upon the subsidiary's liquidation or reorganization will be subject
to the prior claims of the subsidiary's creditors. In the event of a
liquidation or other resolution of an insured depository institution, the
claims of depositors and other general or subordinated creditors are entitled
to a priority of payment over the claims of holders of any obligation of the
institution to its shareholders, including any depository institution holding
company (such as Comerica) or any shareholder or creditor thereof.
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<PAGE> 32
CROSS-GUARANTY AND HOLDING COMPANY LIABILITY. A depository institution
insured by the FDIC can be held liable for any loss incurred by, or reasonably
expected to be incurred by, the FDIC in connection with (i) the default of a
commonly controlled FDIC-insured depository institution or (ii) any assistance
provided by the FDIC to a commonly controlled depository institution in danger
of default. Each of Comerica's banking subsidiaries is a commonly controlled
depository institution for this purpose. Cross-guarantee liability may result
in the ultimate failure or insolvency of other insured depository institutions
in a holding company structure. Any obligation or liability owed by a banking
subsidiary to its parent company or any of the banking subsidiary's other
affiliates is subordinate to the banking subsidiary's cross-guarantee liability.
Under Federal Reserve Board policy, a bank holding company is expected to
act as a source of financial strength to each of its banking subsidiaries
and commit resources to their support. Such support may be required at times
when, absent this Federal Reserve Board policy, a holding company may not be
inclined to provide it. As discussed below under "Prompt Corrective Action," a
bank holding company in certain circumstances could be required to guarantee
the capital plan of an undercapitalized banking subsidiary.
In the event of a bank holding company's bankruptcy under Chapter 11 of
the U.S. Bankruptcy Code, the trustee will be deemed to have assumed and is
required to cure immediately any deficit under any commitment by the debtor
holding company to any of the federal banking agencies to maintain the capital
of an insured depository institution, and any claim for breach of such
obligation will generally have priority over most other unsecured claims.
PROMPT CORRECTIVE ACTION. Under the Federal Deposit Insurance Corporation
Improvement Act of 1991 ("FDICIA"), the federal banking agencies must take
prompt supervisory and regulatory actions against undercapitalized depository
institutions. Depository institutions are assigned one of five capital
categories: "well capitalized," "adequately capitalized," "undercapitalized,"
"significantly undercapitalized," and "critically undercapitalized," and
subjected to differential regulation corresponding to the capital category
within which the institution falls. Under certain circumstances, a well
capitalized, adequately capitalized or undercapitalized institution may be
treated as if the institution were in the next lower capital category. A
depository institution is generally prohibited from making capital distributions
(including paying dividends) or paying management fees to a holding company if
the institution would thereafter be undercapitalized. Adequately capitalized
institutions cannot accept, renew or roll over brokered deposits except with a
waiver from the FDIC, and are subject to restrictions on the interest rates that
can be paid on such deposits. Undercapitalized institutions may not accept,
renew, or roll over brokered deposits.
The banking regulatory agencies are permitted or, in certain cases,
required to take certain actions with respect to institutions falling within one
of the three undercapitalized categories. Depending on the level of an
institution's capital, the agency's corrective powers include, among other
things: prohibiting the payment of principal and interest on subordinated debt;
prohibiting the holding company from making distributions without prior
regulatory approval; placing limits on asset growth and restrictions on
activities; placing additional restrictions on transactions with affiliates;
restricting the interest rate the institution may pay on deposits; prohibiting
the institution from accepting deposits from correspondent banks; and in the
most severe cases, appointing a conservator or receiver for the institution. A
banking institution that is undercapitalized is required to submit a capital
restoration plan, and such a plan will not be accepted unless, among other
things, the banking institution's holding company guarantees the plan up to a
certain specified amount. Any such guarantee from a depository institution's
holding company is entitled to a priority of payment in bankruptcy. As of
December 31, 1995, all of Comerica's banking subsidiaries exceeded the required
capital ratios for classification as "well capitalized." See "Capital Adequacy."
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CAPITAL ADEQUACY. The Federal Reserve Board has adopted risk-based capital
guidelines for bank holding companies. The minimum ratio of total capital to
risk-weighted assets (which are the credit risk equivalents of balance sheet
assets and certain off balance sheet items such as standby letters of credit) is
8.00 percent. At least half of the total capital must be composed of common
stockholders' equity (including retained earnings), qualifying non-cumulative
perpetual preferred stock (and, for bank holding companies only, a limited
amount of qualifying cumulative perpetual preferred stock), and minority
interests in the equity accounts of consolidated subsidiaries, less goodwill,
other disallowed intangibles and disallowed deferred tax assets, among other
items ("Tier 1 capital"). The remainder may consist of a limited amount of
subordinated debt, other perpetual preferred stock, hybrid capital instruments,
mandatory convertible debt securities that meet certain requirements, as well as
a limited amount of reserves for loan losses ("Tier 2 capital"). The Federal
Reserve Board has also adopted a minimum leverage ratio for bank holding
companies, requiring Tier 1 capital of at least 3.00 percent of average total
consolidated assets.
The OCC, the FDIC, the Federal Reserve Board, and the OTS have also
established risk-based and leverage capital guidelines for banking
institutions. These regulations are generally similar to those established by
the Federal Reserve Board for bank holding companies.
The federal banking agencies' risk-based and leverage ratios are minimum
supervisory ratios generally applicable to banking organizations that meet
certain specified criteria, assuming that they have the highest regulatory
rating. Banking organizations not meeting these criteria are expected to
operate with capital positions well above the minimum ratios. The federal bank
regulatory agencies may set capital requirements for a particular banking
organization that are higher than the minimum ratios when circumstances warrant.
Federal Reserve Board guidelines also provide that banking organizations
experiencing internal growth or making acquisitions will be expected to maintain
strong capital positions substantially above the minimum supervisory levels,
without significant reliance on intangible assets. In addition, the regulations
of the Federal Reserve Board provide that concentration of credit risk and
certain risks arising from nontraditional activities, as well as an
institution's ability to manage these risks, are important factors to be taken
into account by regulatory agencies in assessing an organization's overall
capital adequacy.
The Federal Reserve Board and the other federal banking agencies recently
adopted amendments to their risk-based capital regulations to provide for the
consideration of interest rate risk in the agencies' determination of a banking
institution's capital adequacy. The amendments require such institutions to
effectively measure and monitor their interest rate risk and to maintain
capital adequate for that risk. The agencies have also issued for comment a
joint policy statement that describes a framework that may be used by the
agencies to measure and monitor an institution's level of interest rate risk in
the assessment of a banking institution's capital adequacy. The agencies plan
at some future date to propose the establishment of an explicit minimum capital
requirement to account for interest rate risk.
As discussed below under "Enforcement Powers," failure to meet the minimum
regulatory capital requirements could subject a banking institution to a
variety of enforcement remedies available to federal regulatory authorities,
including, in the most severe cases, the termination of deposit insurance by
the FDIC and placing the institution into conservatorship or receivership.
As of December 31, 1995, Comerica exceeded the minimum ratio of total capital
to risk-weighted assets and the minimum leverage ratio for bank holding
companies.
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ENFORCEMENT POWERS OF THE FEDERAL BANKING AGENCIES. The Federal
Reserve Board and the other federal banking agencies have broad enforcement
powers, including the power to terminate deposit insurance, impose substantial
fines and other civil and criminal penalties and appoint a conservator or
receiver. Failure to comply with applicable laws, regulations and supervisory
agreements could subject Comerica or its banking subsidiaries, as well as
officers, directors and other institution-affiliated parties of these
organizations, to administrative sanctions and potentially substantial civil
money penalties. In addition to the grounds discussed under "Prompt Corrective
Action," the appropriate federal banking agency may appoint the FDIC as
conservator or receiver for a banking institution (or the FDIC may appoint
itself, under certain circumstances) if any one or more of a number of
circumstances exist, including, without limitation, the fact that the banking
institution is undercapitalized and has no reasonable prospect of becoming
adequately capitalized; fails to become adequately capitalized when required to
do so; fails to submit a timely and acceptable capital restoration plan; or
materially fails to implement an accepted capital restoration plan.
FDIC INSURANCE ASSESSMENTS. The deposits of all the banking subsidiaries
are insured by the Bank Insurance Fund (the "BIF") of the FDIC to the extent
provided by law, 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").
The FDIC has adopted a risk-based assessment system under which the
assessment rate for an insured depository institution varies according to the
level of risk involved in its activities. Under this risk-based insurance
system, effective January 1, 1996, the rate assessed for each of Comerica's
BIF-insured banking subsidiaries decreased from 4 cents per $100 of eligible
deposits to zero, subject to a minimum assessment of $2,000 per institution per
year.
Most thrift institutions are insured by the SAIF of the FDIC and are
currently assessed deposit insurance premiums higher than those assessed
against most BIF institutions. The deposits held by Comerica's federal savings
bank in Florida, as well as SAIF-insured deposits that were acquired from
insolvent savings associations by Comerica's subsidiary banks, are subject to
this higher premium.
In response to concerns that this insurance premium disparity would have a
negative effect on SAIF-insured institutions and the SAIF, Congress recently
passed legislation that would have, among other things, eliminated the deposit
insurance premium disparity and utilized BIF assessments to help fund debt
service on certain Financing Corporation (FICO) bonds, which could have resulted
in higher insurance premiums for BIF-insured institutions. This legislation was
vetoed by President Clinton in December 1995, but could reappear in subsequent
legislation. In addition, other bills to eliminate the BIF-SAIF assessment
disparity have been introduced in Congress. It cannot be predicted whether,
when or in what form any such legislation will be enacted, or what effect such
legislation will have on Comerica's banking subsidiaries.
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CONTROL ACQUISITIONS. The Change in Bank Control Act (the "CBCA") prohibits
a person or group of persons from acquiring "control" of a bank holding company
unless the Federal Reserve Board has been notified and has not objected to the
transaction. Under a rebuttable presumption established by the Federal Reserve
Board, the acquisition of 10% or more of a class of voting stock of a bank
holding company with a class of securities registered under Section 12 of the
Exchange Act, such as Comerica, would, under the circumstances set forth in the
presumption, constitute acquisition of control of Comerica.
In addition, any company is required to obtain the approval of the Federal
Reserve Board under the BHCA before acquiring 25% (5% in the case of an
acquiror that is a bank holding company) or more of the outstanding Common
Stock of Comerica, or otherwise obtaining control or a "controlling influence"
over Comerica.
Effective September 24, 1995, the Riegle-Neal Interstate Banking and
Branching Efficiency Act of 1994 has permitted an adequately capitalized and
adequately managed bank holding company, with Federal Reserve Board approval,
to acquire banking institutions located in states other than the bank holding
company's home state without regard to whether the transaction is prohibited
under state law. In addition, effective June 1, 1997, national banks and state
banks with different home states will be permitted to merge across state lines,
with the approval of the appropriate federal banking agency, unless the home
state of a participating banking institution passes legislation prior to that
date that expressly prohibits interstate mergers. Of Comerica's primary
markets, Texas is the only state to date to have opted out of the interstate
branching provisions. Further, such interstate mergers may be effected prior
to June 1, 1997 so long as the home state of each participating banking
institution has passed qualifying legislation that expressly permits such
transactions. Michigan, California, and Illinois have all passed early opt-in
legislation. The Michigan and California legislation is already effective.
The Illinois legislation will be effective as of January 6, 1997.
FUTURE LEGISLATION. Various legislation, including proposals to overhaul
the bank regulatory system, expand the powers of banking institutions and bank
holding companies and limit the investments that a depository institution may
make with insured funds, is from time to time introduced in Congress. Such
legislation may change banking statutes and the operating environment of
Comerica and its banking subsidiaries in substantial and unpredictable ways.
Comerica cannot determine the ultimate effect that potential legislation, if
enacted, or implementing regulations, would have upon the financial condition or
results of operations of Comerica or its subsidiaries.
USE OF PROCEEDS
Except as otherwise specified in a Prospectus Supplement, the net proceeds
from the sale of the Preferred Stock offered by this Prospectus will be applied
to Comerica's general funds to be utilized for such corporate purposes as may be
determined by management, which may include investments in, and extensions of
credit to, existing and future subsidiaries, the funding of acquisitions of
banking and nonbanking institutions (including the repurchase of issued and
outstanding shares of common stock of Comerica which may be used to fund part
or all of the acquisition consideration) and other general corporate purposes.
Except as otherwise indicated in a Prospectus Supplement, specific
allocations of the proceeds to such purposes will not have been made at the
date of the applicable Prospectus Supplement. The precise amount and timing of
investments in, and extensions of credit to, subsidiaries will depend upon
their funding requirements and the availability of other funds to Comerica and
its subsidiaries. Based upon the anticipated future financing requirements of
Comerica and its subsidiaries, Comerica expects that it will, from time to
time, engage in additional financings of a character and in an amount to be
determined.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
INCLUDING PREFERRED STOCK DIVIDENDS
Comerica's ratios of earnings to combined fixed charges and preferred
stock dividends are set forth below for the periods indicated:
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<TABLE>
<CAPTION>
Three Months
Ended March 31, Year Ended December 31,
--------------- -----------------------
1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated ratio
of earnings to
combined fixed
charges and
preferred stock
dividends
(including interest
on deposits) 1.56 x 1.49 x 1.47 x 1.64 x 1.70 x 1.38 x 1.30 x
-------- -------- ------ ------ ------ ------ ------
Consolidated ratio
of earnings to
combined fixed
charges and
preferred stock
dividends
(excluding interest
on deposits) 2.30 x 2.09 x 2.03 x 2.61 x 3.94 x 3.20 x 2.75 x
======== ======== ====== ====== ====== ====== ======
</TABLE>
The ratio of earnings to combined fixed charges and preferred stock
dividends is computed by dividing income before income taxes and fixed charges
by fixed charges and pre-tax earnings required to cover preferred stock
dividends. Fixed charges are defined as interest expense and the portion of net
rental expense estimated to be representative of the interest factor.
DESCRIPTION OF COMERICA CAPITAL STOCK
The following description contains a summary of all of the material
features of the capital stock of Comerica but does not purport to be complete
and is subject to and qualified in its entirety by reference to the Comerica
Restated Certificate of Incorporation, including the Certificate of Designation
for the Comerica Series C Preferred Stock (the "Comerica Charter"), both of
which are filed as exhibits to the Registration Statement of which this
Prospectus forms a part and are incorporated herein by reference.
GENERAL. Comerica's total authorized capital stock currently consists of
(i) 10,000,000 shares of preferred stock, without par value (the "Preferred
Stock"), and (ii) 250,000,000 shares of common stock, with a par value of $5.00
per share (the "Common Stock").
PREFERRED STOCK. For a general description of the Preferred Stock being
offered pursuant to this Prospectus, see "DESCRIPTION OF PREFERRED STOCK"
below. Of the 10,000,000 shares of Preferred Stock authorized, 500,000 shares
with no stated value have been designated as Series C Participating Preferred
Stock (the "Comerica Series C Preferred Stock"). All shares of two former
series of Preferred Stock, designated Adjustable Rate Cumulative Preferred
Stock, Series A and Series B Preferred Stock, have been redeemed and restored
to the status of authorized but unissued Preferred Stock. All shares designated
as Comerica Series C Preferred Stock have been reserved for issuance in
connection with the Comerica Rights Plan. For a description of the Comerica
Rights and the Comerica Rights Plan, see "THE COMERICA
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RIGHTS PLAN" below. The Comerica Rights are not currently exercisable and no
shares of Comerica Series C Preferred Stock are outstanding.
COMERICA SERIES C PREFERRED STOCK. The Comerica Series C Preferred Stock
is issuable upon exercise of the Comerica Rights. The Comerica Rights are not
currently exercisable and no shares of Comerica Series C Preferred Stock are
outstanding. For a description of the Comerica Rights, see "THE COMERICA RIGHTS
PLAN" below. The Comerica Series C Preferred Stock carries a quarterly dividend
rate equal (rounded to the nearest cent) to the greater of (a) $10 or (b) a
multiple (the "Comerica Multiple") times the aggregate per share amount of all
cash dividends and the Comerica Multiple times the aggregate per share amount
of all non-cash dividends or other distributions other than a dividend payable
in shares of Common Stock or a subdivision of the outstanding shares of Common
Stock, declared on the Common Stock during the period specified. Dividends on
the Comerica Series C Preferred Stock are cumulative. The Comerica Multiple,
which is subject to adjustment upon the occurrence of stock dividends on, or
splits or combinations of, outstanding Common Stock is 450. Unless all
dividends on the Comerica Series C Preferred Stock have been paid in full, no
dividend may be declared or paid on the Common Stock. If dividends shall be in
arrears in an amount equal to six quarterly dividends, the holders of the
Comerica Series C Preferred Stock shall have the right, voting as a class, to
elect two directors.
Each share of Comerica Series C Preferred Stock is entitled to vote on all
matters submitted to a vote of the shareholders of Comerica, the number of
votes being subject to adjustment under the same circumstances which require an
adjustment of the Comerica Multiple but may not have more than one vote per
share. Except as otherwise required by the Comerica Charter or bylaws, the
holders of shares of Comerica Series C Preferred Stock and the holders of Common
Stock vote together as one class.
Upon any liquidation, dissolution or winding up of Comerica, each share of
Comerica Series C Preferred Stock is entitled, prior to any payment or
distribution in respect of the Common Stock, to a liquidation preference equal
to $100 plus any accrued and unpaid dividends. If sufficient assets of Comerica
remain after payment of the liquidation preference in respect of the Comerica
Series C Preferred Stock and certain payments to the holders of Common Stock,
the Comerica Series C Preferred Stock participates with the Common Stock in
respect of the remaining assets of Comerica based on a ratio.
If Comerica enters into any consolidation, merger, combination or other
transaction in which Common Stock is exchanged for other stock, securities,
cash or other property, then the shares of Comerica Series C Preferred Stock
will at the same time be similarly exchanged in an amount per share, subject to
certain adjustments, equal to the Comerica Multiple times the aggregate amount
of stock, security, cash or other property into which or for which each share
of Common Stock is changed or exchanged.
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COMMON STOCK. Subject to the rights of any outstanding shares of Preferred
Stock, the holders of Common Stock are entitled to receive such dividends as
may from time to time be declared by the Comerica Board of Directors (the
"Comerica Board"). They are entitled to one vote per share of Common Stock on
every issue submitted to them as Comerica shareholders at a meeting of
shareholders or otherwise. In the event of liquidation they are entitled, after
payment in full of the liquidation preference of any outstanding Preferred
Stock and subject to the right of the holders of Comerica Series C Preferred
Stock to participate in certain distributions, to share ratably in all assets
of Comerica available for distribution to holders of Common Stock. Holders of
shares of Common Stock do not have preemptive or cumulative voting rights. All
shares of Common Stock now issued and outstanding are fully paid and
nonassessable. As of April 30, 1996, 116,667,000 shares of Common Stock were
issued and outstanding.
The registrar and transfer agent for the Common Stock is Norwest Bank,
Minnesota, National Association.
THE COMERICA RIGHTS PLAN
On January 26, 1988, the Comerica Board declared a dividend distribution
of one right (each, a "Comerica Right") for each outstanding share of Comerica
Common Stock to shareholders of record at the close of business on February 8,
1988. Each Comerica Right entitles the registered holder to purchase from
Comerica a unit consisting of 1/100th of one share (a "Unit") of Comerica
Series C Preferred Stock at a Purchase Price (the "Comerica Purchase Price") of
$175 in cash per Unit, subject to adjustment. The number of Comerica Rights
per share of Comerica Common Stock is subject to adjustment in certain events
described below. Each share of Comerica Common Stock currently carries 1/9th of
one Comerica Right.
The description and terms of the Comerica Rights are set forth in a Rights
Agreement (the "Comerica Rights Agreement"), dated as of January 28, 1988, as
amended, between Comerica and Comerica Bank, as Rights Agent (the "Comerica
Rights Agent").
At the present time, the Comerica Rights attach to all Comerica Common
Stock certificates representing outstanding shares, and no separate Comerica
Rights certificates have been distributed. The Comerica Rights will separate
from the Comerica Common Stock and a "Comerica Distribution Date" will occur
upon the earlier of (i) ten days following a public announcement that a person
or group of affiliated or associated persons (a "Comerica Acquiring Person")
has acquired, or obtained the right to acquire, beneficial ownership of 20
percent or more of the outstanding shares of Comerica Common Stock (the
"Comerica Stock Acquisition Date"), or (ii) ten business days following the
commencement of a tender offer or exchange offer that would result in a person
or group beneficially owning 25% or more of such outstanding shares of Comerica
Common Stock. Until a Comerica Distribution Date, (i) the Comerica Rights will
be evidenced by the Comerica Common Stock certificates and will be transferred
with and only with such Comerica Common Stock certificates, (ii) new Comerica
Common Stock certificates issued after February 8, 1988 will contain a notation
incorporating the Comerica Rights
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Agreement by reference, and (iii) the surrender for transfer of any
certificates for Comerica Common Stock outstanding will also constitute the
transfer of the Comerica Rights associated with the Comerica Common Stock
represented by such certificates.
The Comerica Rights are not exercisable until the Comerica Distribution
Date and will expire at the earlier of (i) the close of business on February 8,
1998, and (ii) the date which is 24 months after the first date upon which
Comerica can generally be acquired by bank holding companies, and Comerica is
generally permitted to acquire banks, principally located in at least 15 of the
20 states listed on Exhibit D to the Comerica Rights Agreement, unless earlier
redeemed by Comerica as described below. Pursuant to the Comerica Rights
Agreement, Comerica reserves the right to require prior to the occurrence of a
Comerica Triggering Event (as defined below) that, upon any exercise of
Comerica Rights, a number of Comerica Rights be exercised so that only whole
shares of Comerica Series C Preferred Stock will be issued.
As soon as practicable after a Comerica Distribution Date, Comerica Rights
certificates will be mailed to holders of record of the Comerica Common Stock
as of the close of business on the Comerica Distribution Date and, thereafter,
the separate Comerica Rights certificates alone will represent the Comerica
Rights. Except as otherwise determined by the Comerica Board and except in
connection with the shares of Comerica Common Stock issued upon the exercise of
employee stock options or the conversion of convertible securities, only shares
of Comerica Common Stock issued prior to the Comerica Distribution Date will be
issued with Comerica Rights. The number of Comerica Rights per share of
Comerica Common Stock is subject to adjustment upon the occurrence of stock
dividends on, or splits or combinations of, outstanding Comerica Common Stock.
Currently, each share of Comerica Common Stock currently carries 1/9th of one
Comerica Right.
In the event that, at any time following the Comerica Distribution Date,
(i) a person becomes the beneficial owner of more than 25 percent of the then
outstanding shares of Comerica Common Stock except pursuant to an offer for all
outstanding shares of Comerica Common Stock which the independent directors
serving on the Comerica Board determine to be fair to, and otherwise in the
best interests of, Comerica shareholders, or (ii) Comerica is the Surviving
Corporation in a merger with a Comerica Acquiring Person and the Comerica
Common Stock is not changed or exchanged, each holder of a Comerica Right will
thereafter have the right to receive, upon exercise, Comerica Common Stock (or,
in certain circumstances, cash, property, or other securities of Comerica)
having a value equal to two times the exercise price of the Comerica Right.
Notwithstanding the foregoing, following the occurrence of any of the events
set forth in this paragraph, all Comerica Rights that are, or (under certain
circumstances specified in the Comerica Rights Agreement) were, beneficially
owned by any Comerica Acquiring Person will be null and void. However, Comerica
Rights are not exercisable following the occurrence of either of the events set
forth above until such time as the Comerica Rights are no longer redeemable by
Comerica as set forth below.
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<PAGE> 40
In the event that, at any time following the Comerica Stock Acquisition
Date, (i) Comerica is acquired in a merger or other business combination
transaction in which Comerica is not the Surviving Corporation or Comerica
Common Stock is changed or exchanged (other than a merger which follows an
offer described in clause (i) of the preceding paragraph), or (ii) 50 percent
or more of Comerica's assets or earning power is sold or transferred, each
holder of a Comerica Right (except Comerica Rights which previously have been
voided as set forth above) shall thereafter have the right to receive, upon
exercise, common stock of the acquiring company having a value equal to two
times the exercise price of the Comerica Right. Each of the events set forth in
this paragraph and in the preceding paragraph is referred to as a "Comerica
Triggering Event."
The Comerica Purchase Price payable, and the number of Units of Comerica
Series C Preferred Stock or other securities or property issuable, upon
exercise of the Comerica Rights are subject to adjustment in certain events.
At any time until ten days following the Comerica Stock Acquisition Date,
Comerica may redeem the Comerica Rights in whole, but not in part, at a price
of $0.05 per Comerica Right, subject to adjustment where appropriate (payable
in cash, stock, or other consideration deemed appropriate by the Comerica
Board). After the redemption period has expired, Comerica's right of redemption
may be reinstated if a Comerica Acquiring Person reduces his or her beneficial
ownership to 10 percent or less of the outstanding shares of Comerica Common
Stock in a transaction or series of transactions not involving Comerica.
Immediately upon the action of the Comerica Board ordering redemption of the
Comerica Rights, the Comerica Rights will terminate and the only right of the
holders of Comerica Rights will be to receive the $0.05 redemption price. Until
a Comerica Right is exercised, the holder thereof, as such, will have no rights
as a holder of Comerica shares, including, without limitation, the right to
vote or to receive dividends.
Other than those provisions relating to the principal economic terms of
the Comerica Rights, any of the provisions of the Comerica Rights Agreement
(including the provisions relating to the termination of such agreement) may be
amended by the Comerica Board prior to the Comerica Distribution Date. After
the Comerica Distribution Date, the provisions of the Comerica Rights Agreement
may be amended by the Comerica Board in order to cure any ambiguity, to make
changes which do not adversely affect the interests of holders of Comerica
Rights (excluding the interests of any Comerica Acquiring Person), or to
shorten or lengthen any time period under the Comerica Rights Agreement;
provided, however, that no amendment to adjust the time period governing
redemption shall be made at such time as the Comerica Rights are not
redeemable.
The Comerica Rights have certain anti-takeover effects. The Comerica
Rights will cause substantial dilution to a person or group that attempts to
acquire Comerica on terms not approved by the Comerica Board, unless the offer
is conditional on a substantial number of Comerica Rights being acquired. The
Comerica Rights, however, should not affect any prospective offeror willing to
make an offer at a fair price and otherwise in the best interests of Comerica
and its shareholders as determined by a majority of the independent directors
on the Comerica Board, or willing to
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<PAGE> 41
negotiate with the Comerica Board. The Comerica Rights should not interfere
with any merger or other business combination approved by the Comerica Board
since the Comerica Board may, at its option, at any time until ten days
following the Comerica Stock Acquisition Date redeem all but not less than all
of the then outstanding Comerica Rights at the $0.05 redemption price.
The foregoing description of the Comerica Rights does not purport to be
complete and is qualified in its entirety by reference to the Comerica Rights
Agreement, as amended, which is incorporated by reference herein. See
"INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE" above.
DESCRIPTION OF PREFERRED STOCK
GENERAL. Comerica is authorized by its Restated Certificate of
Incorporation, as amended, to issue 10,000,000 shares of Preferred Stock,
without par value, which may be issued in one or more series with such voting
powers, full or limited, but not to exceed one vote per share, or without voting
powers, and with such designations, preferences and privileges, relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, as shall be stated and expressed in the resolution or
resolutions providing for the issue thereof adopted by the Comerica Board and
the Preferred Stock Designation Committee thereof (the "Stock Committee"). Of
the 10,000,000 shares of Preferred Stock authorized, 500,000 shares with no
stated value have been designated as Series C Participating Preferred Stock. See
"DESCRIPTION OF COMERICA CAPITAL STOCK-- Comerica Series C Preferred Stock",
above.
The following description of the terms of the Preferred Stock being
offered pursuant to this Prospectus sets forth certain general terms and
provisions of the Preferred Stock to which any Prospectus Supplement may
relate. Certain terms of any series of Preferred Stock offered by any
Prospectus Supplement will be described in the Prospectus Supplement relating
to such series of Preferred Stock. If so indicated in the Prospectus
Supplement, the terms of any such series may differ from the terms set forth
below.
The Stock Committee is authorized to declare dividends payable on the
Preferred Stock and to establish and designate series and to fix the number of
shares and the relative rights, preferences and limitations of the respective
series of Preferred Stock (other than voting rights), all of which terms and
conditions shall be set forth in the Prospectus Supplement accompanying
this Prospectus relating to the particular series of Preferred Stock offered
thereby. The terms of particular series of Preferred Stock may differ, among
other things, in (a) the number of shares to constitute such series, (b) the
dividend rate (or the method of calculation thereof) on the shares of such
series and whether such dividends will be cumulative or noncumulative, (c)
whether or not the shares of the series will be redeemable or convertible at
the option of the holder or Comerica and the terms thereof, (d) the amount per
share payable on the shares of the series in case of liquidation, dissolution
or winding up of Comerica and (e) the other rights and privileges and any
qualifications, limitations or restrictions of such rights or privileges of
such series.
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Unless stated otherwise in the applicable Prospectus Supplement, when
issued, each series of Preferred Stock will rank on a parity with all the other
outstanding series of preferred stock issued by Comerica as to payment of
dividends (except with respect to the cumulation thereof) and as to the
distribution of assets upon liquidation, dissolution or winding up. Subject to
the terms of the Preferred Stock to be offered, the remaining shares of
undesignated Preferred Stock may be issued by Comerica in one or more series,
at any time or from time to time, with such rights, preferences and limitations
as the Comerica Board or any duly authorized committee thereof (including the
Stock Committee) shall determine, all without further action of the holders of
the Preferred Stock or any other stockholders. Norwest Bank, Minnesota,
National Association will be the transfer agent, dividend disbursing agent and
registrar for the shares of Preferred Stock.
Under existing interpretations of the Federal Reserve Board and the Office
of Thrift Supervision, if the holders of the Preferred Stock become entitled to
vote for the election of directors, Preferred Stock may then be deemed a "class
of voting securities" and a holder of 25% or more of the Preferred Stock (or a
holder of 5% or more of the Preferred Stock that otherwise exercises a
"controlling influence" over Comerica) may then be subject to regulation as a
"bank holding company" in accordance with the Bank Holding Company Act of 1956,
as amended, and a holder of 25% or more of the Preferred Stock (or a holder of
10% or more of the Preferred Stock that otherwise possesses certain "control
factors" with respect to Comerica) may then be subject to regulation as a
"savings and loan holding company" in accordance with the Home Owners' Loan Act
of 1933, as amended. In addition, at such time, (i) any bank holding company or
foreign bank with a U.S. presence generally would be required to obtain the
approval of the Federal Reserve Board under the Bank Holding Company Act of
1956, as amended, to acquire or retain 5% or more of the Preferred Stock; (ii)
any person other than a bank holding company may be required to obtain the
approval of the Federal Reserve Board and the Office of Thrift Supervision
under the Change in Bank Control Act to acquire or retain 10% or more of the
Preferred Stock; and (iii) any savings and loan holding company generally could
not retain in excess of 5% of the Preferred Stock.
The following statements are brief summaries of certain provisions that
will be contained in the Certificate of Designations authorizing the issuance
of a series of Preferred Stock, do not purport to be complete and are qualified
in their entirety by reference to such Certificate of Designations and
Comerica's Restated Certificate of Incorporation, as amended. Prior to the
issuance of a series of Preferred Stock the resolutions set forth in the
Certificate of Designations will be adopted by the Comerica Board or the Stock
Committee and such Certificate of Designations will then be filed with the
Secretary of State of the State of Delaware.
DIVIDENDS. Holders of shares of Preferred Stock will be entitled to
receive, as, if and when declared by the Comerica Board or the Stock Committee
out of assets of Comerica legally available for payment, cash dividends at the
rate set forth in, or calculated in accordance with the formula set forth in,
the Prospectus Supplement. Dividends on the Preferred Stock may be cumulative
("Cumulative Preferred Stock") or noncumulative ("Noncumulative Preferred
Stock")
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<PAGE> 43
as provided in the Prospectus Supplement. Unless otherwise provided in
the Prospectus Supplement, dividends on Cumulative Preferred Stock will be
cumulative from the date of original issue of such series and will be payable
quarterly in arrears on the dates specified in the Prospectus Supplement. If
any date so specified as a dividend payment date is not a business day,
dividends (if declared) on the Preferred Stock (unless otherwise provided in
the Prospectus Supplement) will be paid on the immediately succeeding business
day, without interest. A dividend period with respect to a dividend payment
date is the period commencing on the immediately preceding dividend payment
date (or, in the case of the initial dividend period, the date of issuance of
the Preferred Stock) and ending on the day immediately prior to the next
succeeding dividend payment date. If the Comerica Board or the Stock Committee
fails to declare or pay a dividend on any series of Noncumulative Preferred
Stock for any dividend period, Comerica shall have no obligation to pay a
dividend for such period, whether or not dividends on such series of
Noncumulative Preferred Stock are declared for any future dividend period.
Dividends on the Preferred Stock will be payable in arrears to holders of
record as they appear on the stock register of Comerica on such record dates,
not more than thirty nor less than fifteen days preceding the payment dates
thereof, as shall be fixed by the Comerica Board or the Stock Committee. No full
dividends will be declared or paid or set apart for payment on the preferred
stock of any series ranking, as to dividends, on a parity with or junior to any
other series of Preferred Stock for any period unless full dividends have been
or are contemporaneously declared and paid or declared and a sum sufficient for
the payment thereof is set apart for such payment on such series of Preferred
Stock for (i) all dividend periods terminating on or prior to the date of
payment of such full cumulative dividends (in the case of a series of
Cumulative Preferred Stock) or (ii) the immediately preceding dividend period
(in the case of a series of Noncumulative Preferred Stock). When dividends are
not paid in full upon any series of Preferred Stock (whether Cumulative
Preferred Stock or Noncumulative Preferred Stock) and any other preferred stock
ranking on a parity as to dividends with such series of Preferred Stock, all
dividends declared upon shares of such series of Preferred Stock and any other
preferred stock ranking on a parity as to dividends will be declared pro rata
so that the amount of dividends declared per share on such series of Preferred
Stock and such other preferred stock will in all cases bear to each other the
same ratio that accrued dividends per share (which, in the case of
Noncumulative Preferred Stock, shall not include any cumulation in respect of
unpaid dividends for prior dividend periods) on the shares of such series of
Preferred Stock and such other preferred stock bear to each other. Except as
provided in the preceding sentence, unless full dividends on all outstanding
shares of any such series of Preferred Stock have been declared and paid or set
apart for payment for all past dividend periods, in the case of a series of
Cumulative Preferred Stock, or for the immediately preceding dividend period,
in the case of a series of Noncumulative Preferred Stock, and Comerica is not
in default with respect to any redemption of shares of Preferred Stock
announced by Comerica as described under "Redemption" below, no dividends
(other than dividends or distributions paid in shares of, or options, warrants
or rights to subscribe for or purchase shares of, the Common Stock of Comerica
or another stock of Comerica ranking junior to the Preferred Stock as to
dividends and upon liquidation) will be declared or paid or set aside for
payment or other distribution declared or made upon the Common Stock of
Comerica or upon any other stock of Comerica ranking junior to or on parity
with the Preferred Stock as to dividends or upon
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<PAGE> 44
liquidation, nor will any Common Stock of Comerica nor any other stock of
Comerica ranking junior to or on parity with such Preferred Stock 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 redemption of any shares of any such stock) by Comerica (except by
conversion into or exchange for stock of Comerica ranking junior to the
Preferred Stock as to dividends and upon liquidation). Unless otherwise
specified in the Prospectus Supplement, the amount of dividends payable for any
period shorter than a full dividend period shall be computed on the basis of
twelve 30-day months, a 360-day year and the actual number of days elapsed in
any period of less than one month.
LIQUIDATION PREFERENCE. Upon any liquidation, dissolution or winding up of
Comerica, whether voluntary or involuntary, the holders of the Preferred Stock
will have preference and priority over the Common Stock, or any other class of
stock of Comerica ranking on liquidation, dissolution or winding up junior to
the Preferred Stock, for payments out of or distribution of the assets of
Comerica or proceeds thereof, whether from capital or surplus, of the amount
per share set forth in the Prospectus Supplement plus all dividends
(whether or not earned or declared), accrued and unpaid thereon to the date of
final distribution to such holders (but in the case of Noncumulative Preferred
Stock, without cumulation of unpaid dividends for prior dividend periods), and
after such payment the holders of Preferred Stock will be entitled to no other
payments. If, in the case of any such liquidation, dissolution or winding up of
Comerica, the assets of Comerica or proceeds thereof should be insufficient to
make the full liquidation payment in the amount per share set forth in the
Prospectus Supplement, plus all accrued and unpaid dividends on the Preferred
Stock (but in the case of Noncumulative Preferred Stock without cumulation of
unpaid dividends for prior dividend periods) and liquidating payments on any
other preferred stock ranking as to liquidation, dissolution or winding up on a
parity with the Preferred Stock, then such assets or proceeds thereof will be
distributed among the holders of the Preferred Stock and any such other
preferred stock ratably in accordance with the respective amounts which would
be payable on such shares of Preferred Stock and any such other preferred stock
if all amounts thereon were paid in full. A consolidation or merger of Comerica
with one or more corporations will not be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary, of Comerica.
REDEMPTION. Unless otherwise specified in the applicable Prospectus
Supplement, Comerica may, at its option, with prior Federal Reserve Board
approval to the extent then required by applicable law, at any time or from
time to time on not less than 30 and not more than 60 days' notice, redeem any
series of Preferred Stock in whole or part at the redemption prices and on the
dates set forth in the Prospectus Supplement for the related series of
Preferred Stock.
If less than all outstanding shares of a series of Preferred Stock are to
be redeemed, the selection of the shares to be redeemed will be decided by lot
or pro rata as may be determined by the Comerica Board or the Stock Committee,
or by any other method which may be determined by the Comerica Board or the
Stock Committee to be equitable. From and after the redemption date (unless
default shall be made by Comerica in providing money for the payment of the
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<PAGE> 45
redemption price), dividends will cease to accrue on the shares of Preferred
Stock called for redemption, such shares will no longer be deemed to be
outstanding and all rights of the holders thereof (except the right to receive
the redemption price) will cease.
In addition, Comerica, 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, out of
funds legally available therefor, if the holders of such shares would be
entitled to vote upon or consent to a merger or consolidation of Comerica under
the circumstances described under "Voting Rights" below and all of the
following conditions have been satisfied: (i) Comerica shall have requested the
vote or consent of the holders of such shares to the consummation of such
merger or consolidation, stating in such request that failing the requisite
favorable vote or consent Comerica will have the option to redeem such shares,
(ii) Comerica shall have not received the favorable vote or consent requisite
to the consummation of the transaction within 60 days after making such request
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 aforesaid at a redemption price
per share of the Preferred Stock set forth in the Prospectus Supplement,
plus accrued and unpaid dividends thereon (but in the case of Noncumulative
Preferred Stock without cumulation of unpaid dividends for prior dividend
periods) to the date fixed for redemption.
VOTING RIGHTS. Holders of the Preferred Stock will have no voting rights
except as from time to time required by law.
CONVERSION RIGHTS. If so described in the applicable Prospectus Supplement,
shares of a series of Preferred Stock may be convertible at the option of the
holder or Comerica into Common Stock ("Convertible Preferred Stock"), on the
terms and conditions described in the Prospectus Supplement.
TRANSFER AGENT. The registrar and transfer agent for the Preferred Stock
is Norwest Bank, Minnesota, National Association.
PLAN OF DISTRIBUTION
Preferred Stock may be offered and sold by Comerica by any of three means
of distribution: (1) through agents, (2) through underwriters or dealers or (3)
directly to one or more purchasers. Such underwriters, dealers or agents may be
affiliates of Comerica, and offers and sales of Preferred Stock may include
secondary market transactions by affiliates of Comerica. The applicable
Prospectus Supplement will set forth the terms of the offering to which such
Prospectus Supplement relates, including the name or names of any underwriters
or agents, the public offering or purchase price, the net proceeds to Comerica,
underwriting discounts and other items constituting underwriters' compensation,
any discounts and commissions allowed or paid to dealers, any commissions
allowed or paid to agents, and the securities exchanges, if any, on which such
Preferred Stock will be listed. Dealer trading may take place in certain of the
Preferred Stock, including Preferred Stock not listed on any securities
exchange. Direct sales may be made on a national securities exchange or
otherwise.
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<PAGE> 46
The Preferred Stock may be purchased to be reoffered to the public through
underwriting syndicates led by one or more managing underwriters, or through one
or more underwriters acting alone. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time. If so indicated in the applicable Prospectus
Supplement, Comerica will authorize underwriters or agents to solicit offers by
certain institutions to purchase securities from Comerica pursuant to Delayed
Delivery Contracts providing for payment and delivery at a future date.
Any underwriter or agent participating in the distribution of the
Preferred Stock may be deemed to be an underwriter, as that term is defined in
the Securities Act of 1933, as amended (the "Securities Act"), of the Preferred
Stock so offered and sold and any discounts or commissions received by them and
any profit realized by them on the sale or resale of the Preferred Stock may be
deemed to be underwriting discounts and commissions under the Securities Act.
Underwriters, agents and their controlling persons may be entitled, under
agreements entered into with Comerica, to indemnification by Comerica against
certain civil liabilities, including liabilities under the Securities Act.
Underwriters, agents or their controlling persons may engage in
transactions with and perform services for Comerica in the ordinary course of
business.
-20-
<PAGE> 47
EXPERTS
The consolidated financial statements of Comerica as of December 31, 1995
and 1994 incorporated by reference in this Prospectus from Comerica's Annual
Report on Form 10-K for the year ended December 31, 1995 have been audited by
Ernst & Young LLP, independent public accountants, and are given on the
authority of said firm as experts in auditing and accounting.
LEGAL MATTERS
The validity of the Securities will be passed upon for Comerica by Bodman,
Longley & Dahling LLP, Detroit, Michigan. As of May 20, 1996, approximately
62,269 shares of Comerica's Common Stock, $5 par value, were beneficially owned
by the attorneys in the firm of Bodman, Longley & Dahling LLP.
-21-
<PAGE> 48
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting discounts and commissions,
are:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee. . . . $________
New York Stock Exchange filing fee . . . . . . . . . . . . ________
Legal fees and expenses . . . . . . . . . . . . . . . . . ________
Blue sky fees and expenses (including fees of counsel) . . ________
Accounting Services. . . . . . . . . . . . . . . . . . . . ________
Printing and engraving fees. . . . . . . . . . . . . . . . ________
Transfer Agent's fees. . . . . . . . . . . . . . . . . . . ________
Trustee's fees . . . . . . . . . . . . . . . . . . . . . . ________
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . ________
Total $ . . . . . . . . . . . . . . . . . . . . . . . $________
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law authorizes a corporation's Board of
Directors to grant indemnity to officers and directors for certain liabilities,
including reimbursement of expenses incurred, arising under the Securities Act.
Article 12 of Comerica's Bylaws provides for indemnification of its officers,
directors, employees and other agents to the maximum extent permitted by
Delaware law.
Comerica has purchased directors' and officers' liability insurance
covering certain liabilities incurred by its directors in connection with the
performance of their duties.
The Underwriting Agreement filed herewith as Exhibit 1(a) contains
provisions by which the Underwriter has agreed to indemnify Comerica, each
person who controls Comerica within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, each director of Comerica, and each
officer of Comerica who signs this Registration Statement with respect to
information furnished in writing by the Underwriter for use in this Registration
Statement.
II-1
<PAGE> 49
ITEM 16. EXHIBITS.
1(a) Proposed form of Underwriting Agreement for Debt Securities
1(b)* Proposed form of Underwriting Agreement for Preferred Stock
4(a) Restated Certificate of Incorporation of Comerica**
4(b) Bylaws of Comerica
4(c) Form of Indenture (which includes form of Note) between Comerica
and ____________, as Trustee
4(d)* Form of Certificate of Designation
5 * Opinion of Bodman, Longley & Dahling LLP
12(a) Statement re Computation of Ratios of Earnings to Fixed Charges
12(b) Statement re Computation of Ratios of Earnings to Fixed Charges and
Dividends on Preferred Stock
23(a) Consent of Ernst & Young L.L.P.
23(b)* Consent of Bodman, Longley & Dahling LLP (to be included in
Exhibit 5).
24 Power of Attorney (included at page II-5 -- II-6).
25 * Statement of Eligibility of Trustee
27 Financial Data Schedule. Schedule has been omitted because it is
not required.
- ---------------
* To be filed by amendment.
** Incorporated by reference to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1995, file no. 1-10706.
II-2
<PAGE> 50
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(d) The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-3
<PAGE> 51
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Detroit, State of Michigan, on May 17, 1996.
COMERICA INCORPORATED
By: /s/ Eugene A. Miller
------------------------------------------
Name: Eugene A. Miller
Chairman and Chief Executive Officer
By: /s/ Ralph W. Babb, Jr.
------------------------------------------
Name: Ralph W. Babb, Jr.
Executive Vice President and
Chief Financial Officer
By: /s/ Arthur W. Hermann
------------------------------------------
Name: Arthur W. Hermann
Senior Vice President and Controller
(Principal Accounting Officer)
II-4
<PAGE> 52
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Mark W. Yonkman and Gloria G. Freud, and each of
them, his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, to act, without the other, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any or
all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ E. Paul Casey Director May 17, 1996
- ------------------------
E. Paul Casey
/s/ James F. Cordes Director May 17, 1996
- ------------------------
James F. Cordes
/s/ J. Philip DiNapoli Director May 17, 1996
- ------------------------
J. Philip DiNapoli
/s/ Max M. Fisher Director May 17, 1996
- ------------------------
Max M. Fisher
/s/ John D. Lewis Director May 17, 1996
- ------------------------
John D. Lewis
II-5
<PAGE> 53
/s/ Patricia Shontz Longe, Ph.D. Director May 17, 1996
- -------------------------------
Patricia Shontz Longe, Ph.D.
/s/ Wayne B. Lyon Director May 17, 1996
- -------------------------
Wayne B. Lyon
/s/ Gerald V. MacDonald Director May 17, 1996
- -------------------------
Gerald V. MacDonald
/s/ Eugene A. Miller Director May 17, 1996
- -------------------------
Eugene A. Miller
/s/ Michael T. Monahan Director May 17, 1996
- -------------------------
Michael T. Monahan
Director May 17, 1996
- -------------------------
Alfred A. Piergallini
/s/ Howard F. Sims Director May 17, 1996
- -------------------------
Howard F. Sims
Director May 17, 1996
- -------------------------
Martin D. Walker
II-6
<PAGE> 54
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE NUMBER
<S> <C> <C>
1(a) Proposed form of Underwriting Agreement for Debt Securities
1(b)* Proposed form of Underwriting Agreement for Preferred Stock
4(a) Restated Certificate of Incorporation of Comerica**
4(b) Bylaws of Comerica
4(c) Form of Indenture (which includes form of Note) between
Comerica and ____________, as Trustee
4(d)* Form of Certificate of Designation
5* Opinion of Bodman, Longley & Dahling LLP
12(a) Statement re Computation of Ratios of Earnings to Fixed Charges
12(b) Statement re Computation of Ratios of Earnings to Fixed Charges
and Dividends on Preferred Stock
23(a) Consent of Ernst & Young L.L.P.
23(b)* Consent of Bodman, Longley & Dahling LLP (to be included in Exhibit 5).
24 Power of Attorney (included at pages II-5 -- II-6).
25* Statement of Eligibility of Trustee
</TABLE>
- ----------
*To be filed by amendment.
**Incorporated by reference to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1995, file no. 1-10706.
<PAGE> 1
EXHIBIT 1 (a)
COMERICA INCORPORATED
UNDERWRITING AGREEMENT
Dated the date set forth in Schedule I hereto
To the Representative(s) named in Schedule I hereto, of the Underwriters named
in Schedule II hereto
Ladies and Gentlemen:
Comerica Incorporated, a Delaware corporation (the "Company"), proposes to
issue and sell to you and the other underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities") to be issued under the indenture (the
"Indenture") identified in such Schedule I, between the Company and the trustee
(the "Trustee") identified therein and having the terms set forth therein. If
the firm or firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives" shall each be deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to each Underwriter that:
(a) A registration statement in respect of the Securities (the file
number of which is set forth on Schedule I hereto) has been prepared by the
Company in conformity with the requirements of the Securities Act of 1933 (the
"Securities Act") and the rules and regulations (the "Rules and Regulations")
of the Securities and Exchange Commission (the "Commission") thereunder and has
been filed with the Commission in the form heretofore delivered or to be
delivered to the Representatives, and such registration statement in such form
has been declared effective by the Commission and no stop order suspending the
effectiveness of such registration statement has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement being
hereinafter called a "Preliminary Prospectus"); if any post-effective amendment
to such registration statement has been filed with the Commission prior to the
date of this Agreement, the most recent such amendment has been declared
effective by the Commission. As used in this Agreement, "Effective Date" means
the date as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; "Registration Statement" means such registration statement, as
amended at the Effective Date, including all material incorporated by reference
therein; "Prospectus" means
<PAGE> 2
the form of prospectus relating to the Securities, as first filed pursuant to
Rule 424 ("Rule 424") under the Securities Act of 1933, as amended (the
"Securities Act"), as such form of prospectus may be supplemented to reflect
the terms of the Securities and the terms of offering thereof; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to the
applicable form under the Securities Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated therein by reference;
and any reference to any amendment to the Registration Statement shall be
deemed to include any annual report of the Company filed with the Commission
pursuant to the Exchange Act after the Effective Date that is incorporated by
reference in the Registration Statement.
(b) The Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects to the
requirements of the Securities Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder, and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any supplement thereto, contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
apply only to amendments or supplements filed or made during the prospectus
delivery period; and provided further, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use in the Prospectus.
(c) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act
and the Rules and Regulations or the Exchange Act and the rules and regulations
of the Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; any
further documents so filed and incorporated by reference in the Prospectus or
in any amendments or supplements thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act and the Rules and
Regulations or the Exchange Act and the rules and regulations of the Commission
thereunder, as applicable, and the Rules and Regulations and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
apply only to documents so filed and incorporated by reference during the
period that a prospectus relating to the Securities is required to be delivered
in connection with sales of such Securities (such period being hereinafter
sometimes referred to as the "prospectus delivery period").
2
<PAGE> 3
(d) The nationally recognized firm of independent public accountants
whose report appears in the Company's most recent Annual Report on Form 10-K,
which is incorporated by reference in the Prospectus, are independent public
accountants as required by the Securities Act and the Rules and Regulations.
(e) The consolidated financial statements of the Company included or
incorporated by reference in the Prospectus and the Registration Statement
present fairly on a consolidated basis the financial position, the results of
operations, changes in stockholders' equity and cash flows of the Company and
its subsidiaries, as of the respective dates and for the respective periods
indicated, all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved except as
otherwise stated therein or in the notes thereto.
(f) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since such date, there has not been any material adverse
change in the consolidated stockholders' equity or long-term debt of the
Company and its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus.
(g) The Indenture has been duly authorized, and when duly executed and
delivered by the proper officers of the Company (if not so executed and
delivered prior to the date of this Agreement), will (assuming due execution
and delivery by the Trustee) constitute a valid and binding agreement of the
Company enforceable against the Company in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered
in a proceeding in equity or at law) or an implied covenant of good faith and
fair dealing; and the Securities have been duly authorized, and, when duly
executed, authenticated, issued and delivered as provided in the Indenture,
will be duly and validly issued and outstanding, and will constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture
and enforceable in accordance with their terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a proceeding in equity or
at law) or an implied covenant of good faith and fair dealing; the Indenture
has been duly qualified under the Trust Indenture Act; and the Indenture
conforms, and the Securities, when issued and delivered, will conform, to the
description thereof contained in the Prospectus.
(h) Neither the Company nor any of its subsidiaries is in violation of
its corporate charter or by-laws or in default under any agreement, indenture
or instrument, the effect of which violation or default would be material to
the Company and its subsidiaries taken as a whole. The execution,
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delivery and performance of this Agreement and the Indenture and the
consummation of the transactions contemplated hereby and thereby will not
conflict with, result in the creation or imposition of any material lien,
charge or encumbrance upon any of the assets of the Company or any of its
subsidiaries pursuant to the terms of, or constitute a default under, any
material agreement, indenture or instrument, or result in a violation of the
corporate charter or by-laws of the Company or any of its subsidiaries or any
order, rule or regulation of any court or governmental agency having
jurisdiction over the Company, any of its subsidiaries or their respective
properties, except for any such conflicts, defaults or violations of any such
liens, charges or encumbrances as would not individually or in the aggregate
have a material adverse effect on the business, financial condition, results of
operations or prospects of the Company and its subsidiaries taken as a whole.
Except as required by the Securities Act and by applicable state securities
laws in connection with the purchase and distribution of the Securities by the
Underwriters, no consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the execution, delivery
and performance of this Agreement or the Indenture.
(i) The Company and each of its subsidiaries which is a "significant
subsidiary" as defined in Regulation S-X promulgated by the Commission (each, a
"Significant Subsidiary") have been duly organized, are validly existing and in
good standing under the laws of their respective jurisdictions of incorporation,
are duly qualified to do business and in good standing as foreign corporations
in each jurisdiction in which their respective ownership of property or the
conduct of their respective businesses requires such qualification and in which
the failure to qualify would, individually or in the aggregate, to have a
material adverse effect on the business, financial condition, results of
operations or prospects of the Company and its subsidiaries taken as a whole.
Each of the Company and its Significant Subsidiaries holds all material
licenses, permits, and certificates from governmental authorities necessary for
the conduct of its business as described in the Prospectus.
(j) All of the outstanding shares of capital stock of the Company are
duly authorized, validly issued and outstanding, fully paid and non-assessable.
Except as may be disclosed in the Registration Statement and the Prospectus,
all outstanding shares of capital stock of the Company's subsidiaries (other
than directors' qualifying shares, if any) are owned by the Company, directly
or indirectly through subsidiaries, free and clear of any lien, pledge and
encumbrance or any claim of any third party and are duly authorized, validly
issued and outstanding, fully paid and non-assessable (except as provided in 12
U.S.C. Section 55 or any comparable provision of applicable state law).
(k) Except as described in the Registration Statement and the Prospectus,
there are no legal or governmental proceedings pending or, to the knowledge of
the Company, threatened against the Company or any of its subsidiaries or their
respective properties which might reasonably be expected to have a material
adverse effect on the business, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole or which is
required to be disclosed in the Registration Statement and the Prospectus.
(l) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration Statement
by the Securities Act or by the Rules and
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Regulations which have not been described in the Prospectus or filed as
exhibits to the Registration Statement or incorporated therein by reference as
permitted by the Rules and Regulations.
(m) The Company is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended; the deposit accounts of each of
the Company's domestic bank subsidiaries are insured by the Federal Deposit
Insurance Corporation (the "FDIC") to the fullest extent permitted by law and
the rules and regulations of the FDIC, and no proceedings for the termination
of such insurance are pending or, to the best of the Company's knowledge,
threatened; and neither the Company nor any of its subsidiaries is party to or
otherwise the subject of any consent decree, memorandum of understanding,
written commitment or other written supervisory agreement with the Board of
Governors of the Federal Reserve System or any other federal or state authority
or agency charged with the supervision or insurance of depositary institutions
or their holding companies.
(n) This Agreement has been duly authorized, executed and delivered by
the Company.
2. SALE AND PURCHASE OF THE SECURITIES.
The Company agrees to sell to each Underwriter, and each Underwriter, on
the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein stated, agrees to purchase from
the Company, at the purchase price set forth in Schedule I hereto, the
principal amount of Securities set forth opposite the name of such Underwriter
in Schedule II hereto. The obligations of the Underwriters under this Agreement
are several and not joint.
3. DELIVERY AND PAYMENT.
Delivery by the Company of the Securities to the Representatives for the
respective accounts of the several Underwriters and payment by the Underwriters
therefor by certified or official bank check or checks payable in, or by wire
transfer of, [New York Clearing House (next-day funds) [immediately available
(federal) funds] to or upon the order of the Company shall take place at the
office, on the date and at the time specified in Schedule I hereto, which date
and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the "Closing Date"). The
Securities will be registered in such names and in such authorized
denominations as the Representatives may request not less than two full
business days in advance of the Closing Date. The Company agrees to have the
Securities available for inspection, checking and packaging by the
Representatives at such place as is designated by the Representatives, not
later than 1:00 p.m., New York City time, on the business day prior to the
Closing Date.
4. OFFERING BY UNDERWRITERS.
Upon authorization by the Representatives of the release of the
Securities, the several Underwriters propose to offer the Securities for sale
upon the terms and conditions set forth in the Prospectus.
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5. AGREEMENTS.
The Company agrees:
(a) To prepare the Prospectus as amended and supplemented in relation to
the Securities in a form approved by the Representatives and to file such
Prospectus with the Commission pursuant to Rule 424 within the time prescribed
therein; to advise the Representatives promptly of any such filing pursuant to
Rule 424; after the Closing Date and during the prospectus delivery period,
prior to the filing with the Commission of any amendment or supplement to the
Registration Statement or Prospectus, to furnish the Representatives and
counsel to the Underwriters with copies thereof and not to file any such
document to which the Representatives shall reasonably object after having been
given reasonable notice of the proposed filing thereof; to file promptly all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and during
the prospectus delivery period; and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or become effective
or any supplement to the Prospectus or any amended Prospectus has been filed,
or mailed for filing, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of such Securities for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any prospectus
relating to the Securities or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) If the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Securities and if at such time any
event shall have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Securities Act, the Exchange Act or the Trust
Indenture Act, to notify the Representatives and upon the request of the
Representatives to file such document and to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance; and in case any Underwriter is required
to deliver a prospectus in connection with sales of any of such Securities at
any time nine months or more after the time of issue of the Prospectus, upon
the request of the Representatives but at the expense of such Underwriter, to
prepare and deliver to such Underwriter as many copies as the
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Representatives may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Securities Act;
(c) The Company will deliver to the Representatives, without charge, (i)
signed copies of the Registration Statement relating to the Securities and of
any amendments thereto (including all exhibits filed with, or incorporated by
reference in, any such document) and (ii) as many conformed copies of the
Registration Statement and of any amendments thereto which shall become
effective on or before the Closing Date (excluding exhibits) as the
Representatives may reasonably request;
(d) During the prospectus delivery period, the Company will deliver,
without charge to the Representatives and to Underwriters and dealers, at such
office or offices in New York City as the Representatives may designate, and
initially prior to 10:00 a.m. on the business day next succeeding the date of
this Agreement, as many copies of the Prospectus as then amended or
supplemented as the Representatives may reasonably request.
(e) The Company will make generally available to its security holders and
to the Representatives as soon as practicable an earnings statement (which need
not be audited) of the Company and its subsidiaries, covering a period of at
least 12 months beginning after the Effective Date (or, if later, the date of
the Company's most recent annual report on Form 10-K which is incorporated by
reference in the Prospectus), which will satisfy the provisions of Section
11(a) of the Securities Act (including, at the option of the Company, Rule 158
thereunder).
(f) The Company will furnish such information, execute such instruments
and take such actions as may be required to qualify the Securities for offering
and sale under the laws of such jurisdictions as the Representatives may
designate and will maintain such qualifications in effect so long as required
for the distribution of the Securities; provided, however, that the Company
shall not be required to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action which would subject it to general
service of process in any jurisdiction where it is not now so subject.
(g) So long as any Securities are outstanding, the Company will furnish
or cause to be furnished to the Representatives copies of all annual reports
and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or
such other similar forms as may be designated by the Commission and such other
documents, reports and information as shall be furnished by the Company to the
holders of the Securities.
(h) For a period beginning at the time of execution of this Agreement and
ending on the Closing Date, without the prior consent of the Representatives,
the Company will not offer, sell, contract to sell or otherwise issue any debt
securities of the Company having a maturity of greater than one year.
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<PAGE> 8
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS.
The obligations of the Underwriters to purchase the Securities shall be
subject to the accuracy in all material respects of the representations and
warranties on the part of the Company contained herein as of the date hereof
and the Closing Date, to the accuracy of any material statements made in any
certificates, opinions, affidavits, written statements or letters furnished to
the Representatives or to __________________________ ("Underwriters' Counsel")
pursuant to this Section 6, to the performance by the Company of its respective
obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
Rules and Regulations and in accordance with Section 5(a) of this Agreement.
(b) No order suspending the effectiveness of the Registration Statement,
as amended from time to time, or suspending the qualification of the Indenture,
shall be in effect and no proceedings for such purpose shall be pending before
or threatened by the Commission and any requests for additional information on
the part of the Commission (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the reasonable
satisfaction of the Representatives.
(c) The Company shall have furnished to the Representatives the
opinion of Bodman, Longley & Dahling LLP and Mark W. Yonkman, Esq., Vice
President of the Company, dated the day of the Closing Date, to the effect
that:
(i) The Company has been duly organized and is validly existing and
in good standing under the laws of the State of Delaware with all requisite
corporate power and authority to own and operate its properties and to conduct
its business as described in the Prospectus.
(ii) The Securities and the Indenture conform in all material respects
to the descriptions thereof contained in the Prospectus.
(iii) The Indenture has been duly authorized, executed and delivered by
the Company, has been duly qualified under the Trust Indenture Act and
(assuming due execution and delivery thereof by the Trustee) constitutes a
legal, valid and binding instrument enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance and other laws
relating to or affecting creditors' rights
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<PAGE> 9
generally and to general principles of equity (whether considered in a
proceeding in equity or at law) and by an implied covenant of good faith and
fair dealing; and the Securities have been duly authorized, executed, issued
and delivered and (assuming due authentication thereof by the Trustee)
constitute legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture, subject to the effects of bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance and other laws
relating to or affecting creditors' rights generally and to general principles
of equity (whether considered in a proceeding in equity or at law) and by an
implied covenant of good faith.
(iv) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated in this Agreement and the Indenture, except for such
consents, approvals, authorizations or orders as have been obtained under the
Securities Act and the Trust Indenture Act and such as may be required under
the Exchange Act and the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the Underwriters.
(v) Such counsel does not know of any contracts or other documents which
are required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and Regulations
which have not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by the
Rules and Regulations.
(vi) This Agreement has been duly authorized, executed and delivered by
the Company; the execution, delivery and performance of this Agreement and the
Indenture by the Company will not conflict with, or result in the creation or
imposition of any material lien, charge or encumbrance upon any of the assets
of the Company or any of its subsidiaries pursuant to the terms of, or
constitute a default under, any material agreement, indenture or instrument
known to such counsel and to which the Company or any of its subsidiaries is a
party or is bound or to which any of their respective properties are subject,
or result in a violation of the corporate charter or by-laws of the Company or
any of its subsidiaries or any order, rule or regulation known to such counsel
of any court or governmental agency having jurisdiction over the Company, any
of its subsidiaries or any of their respective properties, which would have a
material adverse effect on the business, financial condition, results of
operations or prospects of Company and its subsidiaries taken as a whole.
(vii) The Registration Statement has become effective under the Securities
Act, and, to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose is pending or threatened by the Commission; the Indenture has
been duly qualified under the Trust Indenture Act.
(viii) The Registration Statement, the Prospectus and each amendment
thereof or supplement thereto (except that no opinion need be expressed as to
the financial statements or other financial or statistical data or the Form T-1
of the Trustee under the Trust Indenture Act included or incorporated by
reference therein) comply as to form in all material respects with the
requirements
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of the Securities Act and the Rules and Regulations; the documents incorporated
by reference in the Prospectus (other than the financial statements or other
financial or statistical data included or incorporated by reference therein, as
to which no opinion need be expressed), when they were filed with the
Commission, complied as to form in all material respects with the requirements
of the Exchange Act and the rules and regulations of the Commission thereunder;
and the Indenture conforms in all material respects to the requirements of the
Trust Indenture Act and the applicable rules and regulations of the Commission
thereunder.
(ix) Each of the Company's subsidiaries which is a "Significant
Subsidiary" is a duly organized and validly existing corporation
in good standing under the laws of the jurisdiction of its incorporation with
all requisite corporate power and authority to own and operate its properties
and to conduct its business as described in the Prospectus. Each of the Company
and each Significant Subsidiary is duly qualified to do business as a foreign
corporation in each jurisdiction in which the nature of the business conducted
by it or in which the ownership or holding by lease of the properties owned or
held by it require such qualification and where the failure to so qualify
would, either individually or in the aggregate, have a material adverse effect
on the business, financial condition, results of operations or prospects of the
Company and its subsidiaries taken as a whole.
(x) All of the outstanding shares of capital stock of each of the
Company's Significant Subsidiaries have been duly and validly authorized and
issued and are fully paid and non-assessable (except as provided by 12 U.S.C.
Section 55 or any comparable provision of applicable state law) and, except for
directors' qualifying shares, are owned of record and, to the best knowledge of
such counsel, beneficially by the Company or a subsidiary of the Company free
and clear, to the best of such counsel's knowledge, of any claims, liens,
encumbrances or security interests.
(xi) Such counsel does not know of any legal or governmental proceeding
pending or threatened against the Company or any of its subsidiaries which
would affect the subject matter of this Agreement or is required to be
disclosed in the Prospectus which is not disclosed and correctly summarized
therein.
(xii) The Company is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended; and the deposit accounts of each
of the Company's domestic bank subsidiaries which is a Significant Subsidiary
are insured by the FDIC to the fullest extent permitted by law and the rules
and regulations of the FDIC, and no proceedings for the termination of such
insurance are pending or, to the best of such counsel's knowledge, threatened.
Such opinion shall also contain a statement that although such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (except as to those matters stated in paragraph
(ii) of such opinion), such counsel has no reason to believe that (i) the
Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or
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(ii) the Prospectus as of its date and as of the Closing Date contains any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that no opinion
need be expressed as to the financial statements or other financial or
statistical data or the Form T-1 included or incorporated by reference therein).
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent such counsel deems proper, upon certificates or affidavits of officers of
the Company, the Trustee and public officials.
(d) The Representatives shall have received from Underwriters'
Counsel such opinion or opinions, dated the day of the Closing Date, with
respect to the issuance and sale of the Securities, the Registration Statement,
the Prospectus and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of its Chief Executive Officer, its President or any Executive Vice
President and its Chief Financial Officer, dated as of the Closing Date, to the
effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date, and the
Company has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the Closing Date.
(ii) To the best of their knowledge after due inquiry, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or threatened.
(iii) In their opinion, (x) the Registration Statement, as of its
effective date, did not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, (y) the Prospectus does not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
(z) since the effective date of the Registration Statement there has not
occurred any event required to be set forth in an amended or supplemented
prospectus which has not been so set forth.
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus or
(ii) since such date there shall not have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the general
affairs,
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management, financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case described
in clause (i) or (ii), is, in the judgment of the Representatives, so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus.
(g) With respect to the letter of Ernest & Young LLP delivered to the
Representatives concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the Representatives a letter (the
"bring-down letter") of such accountants, addressed to the Underwriters and
dated the Closing Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of
the bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five days
prior to the date of the bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters covered
by the initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(h) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
7. EXPENSES.
(a) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, the Company will pay all costs and
expenses incident to the performance of the obligations of the Company
hereunder, including, without limiting the generality of the foregoing, all
costs, taxes and expenses incident to the issuance, sale and delivery of the
Securities to the Underwriters, all fees and expenses of the Company's counsel
and accountants, all costs and expenses incident to the preparing, printing and
filing of the Registration Statement (including all exhibits thereto), the
Prospectus and any amendments thereof or supplements thereto and the Indenture,
and the rating of the Securities by one or more rating agencies, all costs and
expenses (including fees of Underwriters' counsel and their disbursements)
incurred in connection with blue sky qualifications, the filing requirements,
if any, of the National Association of Securities Dealers, Inc. in connection
with its review of corporate financings, the fee for listing the Securities on
any exchange, the fees and expenses of the Trustee and all costs and expenses
of the printing and distribution of all documents in connection with such
offering. Except as provided in this Section 7, the Company will have no
responsibility to the Underwriters for the Underwriters' own costs and
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expenses, including the fees of Underwriters' Counsel and any advertising
expenses in connection with any offer the Underwriters may make.
(b) If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 6 hereof is not satisfied or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or comply
with any provision hereof, the Company will, subject to demand by the
Representatives, reimburse the Underwriters for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. INDEMNIFICATION.
(a) The Company shall indemnify and hold harmless each Underwriter, its
officers and employees and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Securities), to which that Underwriter,
officer, employee or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, as
originally filed or in any amendment thereof, or in any Preliminary Prospectus,
any preliminary prospectus supplement, the Prospectus or in any amendment
thereof or supplement thereto, or (ii) the omission or alleged omission to state
therein any material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse each Underwriter and each
such officer, employee and controlling person promptly upon demand for any legal
or other expenses reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that (i) the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein and (ii) such indemnity with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Prospectus at or prior to
the confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Securities Act and the untrue statement or
omission of a material fact contained in any Preliminary Prospectus was
corrected in the Prospectus, unless such
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failure to deliver the Prospectus was a result of noncompliance by the
Company with Section 5(d) hereof. For purposes of the proviso in the preceding
sentence, the term "Prospectus" shall not be deemed to include the documents
incorporated therein by reference, and no Underwriter shall be obligated to
send or give any supplement or amendment to any document incorporated by
reference in any Preliminary Prospectus or Prospectus to any person other than
a person to whom such Underwriter had delivered such incorporated document or
documents in response to a written request therefor. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of its directors
and each person, if any, who controls the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) the Registration Statement,
as originally filed or in any amendment thereof, or in any Preliminary
Prospectus, any preliminary prospectus supplement, the Prospectus or in any
amendment thereof or supplement thereto, or (B) in any Blue Sky Application or
(ii) the omission or alleged omission to state therein any material fact
required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company
through the Representatives by or on behalf of that Underwriter specifically
for inclusion therein, and shall reimburse the Company and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by the indemnified party
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in connection with the defense thereof other than reasonable costs of
investigation; provided, however, any indemnified party shall have the right to
employ separate counsel in any such action and to participate in the defense
thereof but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the employment thereof has been specifically
authorized by the indemnifying party in writing, (ii) such indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party and in the reasonable judgment of such
counsel it is advisable for such indemnified party to employ separate counsel
or (iii) the indemnifying party has failed to assume the defense of such action
and employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing that
it elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, that
the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be designated in
writing by the Representatives, if the indemnified parties under this Section 8
consist of any Underwriter or any of their respective officers, employees or
controlling persons, or by the Company, if the indemnified parties under this
Section consist of the Company or any of the Company's directors, officers,
employees or controlling persons. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 8(a) and 8(b), shall use its best
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or (ii) be liable for any settlement
of any such action effected without its written consent (which consent shall
not be unreasonably withheld), but if settled with its written consent or if
there be a final judgment of the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from and
against any loss of liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (a) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Securities or (b) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above
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but also the relative fault of the Company on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Securities
purchased under this Agreement (before deducting expenses) received by the
Company, on the one hand, and the total underwriting discounts and commissions
received by the Underwriters with respect to the Securities purchased under
this Agreement, on the other hand, bear to the total gross proceeds from the
offering of the Securities under this Agreement, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Section 8(d) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 8(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public was offered to the public exceeds the amount of any
damages which such Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting obligations and not
joint.
(e) The Underwriters severally confirm that the statements with
respect to the public offering of the Securities set forth on the cover page
of, and under the caption "Underwriting" in the Prospectus are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in the Prospectus.
9. DEFAULT BY AN UNDERWRITER.
If any one or more Underwriters shall fail to purchase and pay for all of
the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the principal amount of Securities set forth
opposite their names in Schedule II hereto bear to the aggregate principal
amount of Securities set opposite the names of the remaining Underwriters) the
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<PAGE> 17
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
principal amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate principal
amount of the Securities, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such non-defaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any
non-defaulting Underwriters or the Company. In the event the remaining
Underwriters elect to purchase the Securities which the defaulting Underwriter
or Underwriters agreed to purchase as set forth in this Section 9, the Closing
Date may be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing herein contained shall relieve any
defaulting Underwriter of its liability, if any, to the Company and any
non-defaulting Underwriter for damages occasioned by its default hereunder.
10. TERMINATION.
This Agreement shall be subject to termination in the absolute discretion
of the Representatives, by notice given to the Company at or prior to delivery
of and payment for all the Securities, if, prior to such time (i) trading in
securities generally on the New York Stock Exchange or in the over-the-counter
market, or trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum prices shall have
been established on any such exchange or such market by the Commission, by such
exchange or by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared by Federal or
state authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving the
United States or there shall have been a declaration of a national emergency or
war by the United States or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the United
States shall be such) as to make it, in the judgment of a majority in interest
of the several Underwriters, impracticable or inadvisable to proceed with the
public offering or delivery of the Securities on the terms and in the manner
contemplated in the Prospectus.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY.
The respective agreements, representations, warranties, indemnities and
other statements of the Company or its officers (as such officers) and of the
Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or the Company or any of its officers or directors or any
controlling person within the meaning of the Securities Act, and will survive
delivery of the payment for the Securities.
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12. NOTICES.
All communications hereunder will be in writing, and, if sent to the
Representatives will be mailed, delivered, telecopied and confirmed to them, at
the address specified in Schedule I hereto; or, if sent to the Company will be
mailed, delivered, telecopied and confirmed to it at Comerica Tower at One
Detroit Center, 500 Woodward Avenue, Suite 3100, Detroit, Michigan 48226,
Attention: [Chief Financial Officer]; Telephone:__________;
Telecopy:______________.
13. SUCCESSORS.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their successors and, to the extent and only to the extent
stated in Section 8 hereof, the officers and directors and controlling persons
referred to in Section 8 hereof, and except as provided in Section 8 hereof, no
person other than the parties hereto and their respective successors will have
any right or obligation hereunder.
14. APPLICABLE LAW.
This Agreement will be governed by and construed in accordance with the
laws of the State of New York.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
COMERICA INCORPORATED
By: ____________________________
Title: _________________________
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
________________________________
By: ____________________________
Title: _________________________
Acting on behalf of the Representatives named in Schedule I annexed hereto
and the several Underwriters named in Schedule II annexed hereto.
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<PAGE> 20
SCHEDULE I
Date of Underwriting Agreement:
Registration Statement No.:
Representatives and Address:
Indenture, Title, Purchase Price and Description of Securities:
Indenture: Indenture dated as of ____________, with __________ as trustee
Title:
Principal amount: $
Price to public: ____% plus accrued interest, if any, from __________
Purchase price: ___% plus accrued interest, if any, from ________
Interest rate: ___%
Time of payment of interest:
Maturity:
Sinking fund provisions:
Redemption provisions:
Repayment:
Closing Date, Time and Location:
Date:
Time:
Location:
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SCHEDULE II
PRINCIPAL AMOUNT
OF SECURITIES
UNDERWRITERS TO BE PURCHASED
- ------------ ----------------
TOTAL:
21
<PAGE> 1
EXHIBIT 4(b)
As Amended on
May 17, 1996
BYLAWS
OF
COMERICA INCORPORATED
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office shall be in the City
of Wilmington, County of New Castle, State of Delaware.
SECTION 2. OTHER OFFICES. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
MEETINGS
SECTION 1. PLACE OF MEETING. All meetings of the shareholders of this
Corporation shall be held at such time and place, either within or without the
State of Delaware, as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting.
SECTION 2. ANNUAL MEETING OF SHAREHOLDERS. The annual meeting of
shareholders shall be held on the third Friday of May, if not a legal holiday,
and if a legal holiday then the next secular day following, at 10:00 a.m., or
at such other date and time as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting. At said meeting,
shareholders shall elect by a plurality vote the Directors to be elected at
such meeting, and shall transact such other business as may properly be brought
before the meeting.
SECTION 3. NOTICE OF MEETING OF SHAREHOLDERS. Written notice of every
meeting of shareholders stating the place, date and hour of the meeting, and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called, shall be given to each shareholder entitled to vote at such meeting
not less than ten (10) nor more than sixty (60) days before the date of the
meeting.
<PAGE> 2
SECTION 4. LIST OF SHAREHOLDERS ENTITLED TO VOTE. The officer who has
charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of shareholders, a complete list of the
shareholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each shareholder and the number of shares registered
in the name of each shareholder. Such list shall be open to the examination of
any shareholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at
the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and
may be inspected by any shareholder who is present.
SECTION 5. SPECIAL MEETINGS OF SHAREHOLDERS. Special meetings of the
shareholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the Chairman
of the Board of Directors or, during the absence or disability of the Chairman
or while that office is vacant, by the President and shall be called by the
President or Secretary at the request in writing of a majority of the Board of
Directors, or at the request in writing of shareholders owning, in the
aggregate, at least seventy-five percent (75%) in amount of the entire capital
stock of the Corporation issued and outstanding and entitled to vote at such
special meeting. Such request shall state the purpose or purposes of the
proposed meeting.
SECTION 6. QUORUM OF SHAREHOLDERS. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
shareholders for the transaction of business except as otherwise provided by
statute or by the Certificate of Incorporation. If, however, such quorum shall
not be present or represented at any meeting of the shareholders, the
shareholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present
or represented any business may be transacted which might have been transacted
at the meeting as originally notified. If the adjournment is for more than
thirty (30) days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting.
SECTION 7. REQUIRED VOTE. When a quorum is present at any meeting, the
vote of the holders of a majority of the stock having voting power, present in
person or represented by proxy, shall decide any question brought before such
meeting, unless the question is one upon which a different vote is required by
statute or by the Certificate of Incorporation.
SECTION 8. VOTING. Unless otherwise provided in the Certificate of
Incorporation or in a certificate filed pursuant to Section 151(g) of the
General Corporation Law of Delaware, as amended, each shareholder shall at
every meeting of the shareholders be entitled to one vote, in
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<PAGE> 3
person or by proxy, for each share of the capital stock having voting power
held by such shareholder, but no proxy shall be voted on after three (3) years
from its date, unless the proxy provides for a longer period.
SECTION 9. NATURE OF BUSINESS. At any meeting of shareholders, only such
business shall be conducted as shall have been brought before the meeting by or
at the direction of the Board of Directors or by any shareholder who complies
with the procedures set forth in this Section 9. No business may be transacted
at any meeting of shareholders, other than business that is either:
(a) specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors (or any duly authorized
committee thereof);
(b) otherwise properly brought before such meeting of shareholders
by or at the direction of the Board of Directors (or any duly authorized
committee thereof); or
(c) in the case of an annual meeting of shareholders, otherwise
properly brought before such meeting by any shareholder (i) who is a
shareholder of record on the date of the giving of the notice provided for in
this Section 9 and on the record date for the determination of shareholders
entitled to vote at such annual meeting of shareholders; and (ii) who complies
with the notice procedures set forth in this Section 9.
In addition to any other applicable requirements, for business to be properly
brought before an annual meeting of shareholders by a shareholder, such
shareholder must have given timely notice thereof in proper written form to the
Secretary of the Corporation. To be timely, a shareholder's notice to the
Secretary of the Corporation must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than sixty (60) days
nor more than ninety (90) days prior to the anniversary date of the immediately
preceding annual meeting of shareholders; provided, however, that in the event
that the annual meeting of shareholders is called for a date that is not within
thirty (30) days before or after such anniversary date, notice by the
shareholder in order to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on which notice of the
date of the annual meeting of shareholders was mailed or public disclosure of
the date of the annual meeting of shareholders was made, whichever first
occurs.
To be in proper written form, a shareholder's notice to the Secretary of the
Corporation must set forth as to each matter such shareholder proposes to bring
before the annual meeting of shareholders: (i) a brief description of the
business desired to be brought before the annual meeting of shareholders and
the reasons for conducting such business at the annual meeting of shareholders;
(ii) the name and record address of such shareholder; (iii) the class or series
and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such shareholder as of the record date for the
meeting (if such date shall then have been made publicly available and shall
have occurred); (iv) as of the date of such notice, a description of all
arrangements or understandings between such shareholder an any other person or
persons (including their names) in connection with
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<PAGE> 4
the proposal of such business by such shareholder and any material interest of
such shareholder in such business; (v) any other information which would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with the solicitation of proxies for the proposal pursuant
to Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder if such
shareholder were engaged in such a solicitation; and (vi) a representation that
such shareholder intends to appear in person or by proxy at the annual meeting
of shareholders to bring such business before the meeting.
No business shall be conducted at the annual meeting of shareholders except
business brought before the annual meeting of shareholders in accordance with
the procedures set forth in this Section 9, provided however, that once
business has been properly brought before the annual meeting of shareholders in
accordance with such procedures, nothing in this Section 9 shall be deemed to
preclude discussion by any shareholder of any such business. If the Chairman
of an annual meeting of shareholders determines that business was not properly
brought before the annual meeting of shareholders in accordance with the
foregoing procedures, the Chairman shall declare to the meeting that the
business was not properly brought before the meeting and such business shall
not be transacted. When a meeting is adjourned to another time or place,
notice of the adjourned meeting need not be given if the time and place thereof
are announced at the meeting at which the adjournment is taken, unless the
adjournment is for more than 30 days, or unless after the adjournment a new
record date is fixed for the adjourned meeting, in which case notice of the
adjourned meeting shall be given to each shareholder of record entitled to vote
at the meeting. At such adjourned meeting at which a quorum shall be present
or represented, any business may be transacted which might have been transacted
at the original meeting as originally notified.
ARTICLE III
DIRECTORS
SECTION 1. POWERS. The business of the Corporation shall be managed by or
under the direction of its Board of Directors which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these Bylaws directed or
required to be exercised or done by the shareholders.
SECTION 2. LOCATION OF MEETINGS. The Board of Directors of the
Corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
SECTION 3. ORGANIZATION MEETING OF BOARD. The first meeting of each newly
elected Board of Directors shall be held at the place of holding the annual
meeting of shareholders, and immediately following the same, for the purpose of
electing officers and transacting any other business properly brought before
it, provided that the organization meeting in any year may be held at a
different time and place than that herein provided by a consent of a majority
of the Directors of such new Board. No notice of such meeting shall be
necessary to the
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<PAGE> 5
newly elected Directors in order legally to constitute the meeting, provided a
quorum shall be present, unless said meeting is not held at the place of
holding and immediately following the annual meeting of shareholders.
SECTION 4. REGULAR MEETINGS OF BOARD. Regular meetings of the Board of
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board.
SECTION 5. SPECIAL MEETINGS OF BOARD. Special meetings of the Board of
Directors may be called by the Chairman of the Board of Directors or, during
the absence or disability of the Chairman or while that office is vacant by the
President on one (1) day's notice to each director; and special meetings shall
be called by the President or Secretary on like notice on the written request
of five or more Directors.
SECTION 6. QUORUM AND REQUIRED VOTE. At all meetings of the Board of
Directors a majority of the total number of Directors shall constitute a quorum
for the transaction of business and the act of a majority of the Directors
present at any meeting at which there is a quorum shall be the act of the Board
of Directors, except as may be otherwise specifically provided by statute or by
the Certificate of Incorporation. If a quorum shall not be present at any
meeting of the Board of Directors the Directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
SECTION 7. CONSENT OF DIRECTORS IN LIEU OF MEETING. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or
of any Committee thereof may be taken without a meeting if all members of the
Board or Committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors or Committee.
SECTION 8. COMMITTEES OF DIRECTORS.
(a) General Authority. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
Committees, each Committee to consist of one or more of the Directors of
the Corporation. The Board may designate one or more Directors as alternate
members of any Committee, who may replace any absent or disqualified member of
any meeting of the Committee. In the absence or disqualification of a member
of a Committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
Committee, to the extent provided in the resolution of the Board of Directors,
or in these Bylaws shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such Committee shall have the power or
authority in
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reference to amending the Certificate of Incorporation, adopting an agreement
of merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the Bylaws of the Corporation; and,
unless the resolution of the Board of Directors or the Certificate of
Incorporation expressly so provide, no such Committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock.
(b) Directors Committee. The Board of Directors may establish a
Directors Committee of the Board of Directors. The Directors Committee may:
(i) nominate candidates for election as Directors of the Corporation at any
meeting of shareholders called for election of Directors (an "Election
Meeting"); (ii) nominate candidates to fill any vacancies on the Board of
Directors which may exist from time to time; and (iii) have such other powers
and authority as the Board of Directors may delegate to it from time to time.
(c) MNC Indemnification Committee. Until June 18, 1998, there
shall be an MNC Indemnification Committee consisting of all the directors
of the Corporation who were directors of Manufacturers National Corporation
("MNC") immediately prior to June 18, 1992. The MNC Indemnification
Committee shall make all determinations necessary with respect to the
Corporation's indemnification obligations pursuant to Section 5.13 of the
Agreement and Plan of Merger, dated as of October 27, 1991, between the
Corporation and MNC (the "Merger Agreement").
(d) Comerica Indemnification Committee. Until June 18, 1998,
there shall be a Comerica Indemnification Committee consisting of all the
directors of the Corporation immediately prior to June 18, 1992. The
Comerica Indemnification Committee shall make all determinations necessary with
respect to the Corporation's indemnification obligations pursuant to the
Corporation's Bylaws prior to June 18, 1992.
SECTION 9. COMMITTEE MINUTES. Each Committee shall keep regular minutes
of its meetings and report the same to the Board of Directors when required.
SECTION 10. COMPENSATION OF DIRECTORS. Unless otherwise restricted by the
Certificate of Incorporation, the Board of Directors shall have authority to
fix the compensation of Directors. The Directors may be paid their expenses,
if any, of attendance at each meeting of the Board of Directors and may be paid
a fixed sum for attendance at each meeting of the Board of Directors or a
stated salary as Director. No such payment shall preclude any Director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending Committee meetings.
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SECTION 11. PARTICIPATION IN MEETING BY TELEPHONE. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, members of the
Board of Directors or any Committee designated by the Board of Directors may
participate in a meeting of the Board of Directors or Committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
SECTION 12. NOMINATIONS OF DIRECTOR CANDIDATES. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors of the Corporation, except as may be otherwise provided
in the Certificate of Incorporation with respect to the right of holders of
preferred stock of the Corporation to nominate and elect a specified number of
directors in certain circumstances. Nominations of persons for election to the
Board of Directors may be made at any annual meeting of shareholders, or at any
special meeting of shareholders called for the purpose of electing directors,
shall be made:
(a) by or at the direction of the Board of Directors (or any duly
authorized committee thereof, including the Directors' Committee); or
(b) by any shareholder of the Corporation: (i) who is a
shareholder of record on the date of the giving of the notice provided for in
this Section 12 and on the record date for the determination of shareholders
entitled to vote at such meeting; and (ii) who complies with the notice
procedures set forth in this Section 12.
In addition to any other applicable requirements, for a nomination to be made
by a shareholder, such shareholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation. To be timely, a
shareholder's notice to the Secretary of the Corporation must be delivered to
or mailed and received at the principal executive offices of the Corporation
(a) in the case of an annual meeting of shareholders, not less than sixty (60)
days nor more than ninety (90) days prior to the anniversary date of the
immediately preceding annual meeting of shareholders; provided, however, that
in the event that the annual meeting of shareholders is called for a date that
is not within thirty (30) days before or after such anniversary date, notice by
the shareholder in order to be timely must be so received not later than the
close of business on the tenth (10th) day following the day on which notice of
the date of the annual meeting of shareholders was mailed or public disclosure
of the date of the annual meeting was made, whichever first occurs; and (b) in
the case of a special meeting of shareholders called for the purpose of
electing directors, not later than the close of business on the tenth (l0th)
day following the day on which notice of the date of the special meeting of
shareholders was mailed or public disclosure of the date of the special meeting
of shareholders was made, whichever first occurs.
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To be in proper written form, a shareholder's notice to the Secretary of the
Corporation must set forth:
(a) as to each person whom the shareholder proposes to nominate for
election as a director: (i) the name, age, business address and residence
address of the person; (ii) the principal occupation or employment of the
person; (iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by the person as of the
record date for the meeting (if such date shall then have been made publicly
available and shall have occurred) and as of the date of such notice; and (iv)
any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
section 14 of the Exchange Act, and the rules and regulations promulgated
thereunder; and
(b) as to the shareholder giving the notice: (i) the name and
record address of such shareholder; (ii) the class or series and number of
shares of capital stock of the Corporation which are owned beneficially or
of record by such shareholder as of the record date for the meeting (if such
date shall then have been made publicly available and shall have occurred) and
as of the date of such notice; (iii) a description of all arrangements or
understandings between such shareholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nominations are
to be made by such shareholder; (iv) a representation that such shareholder
intends to appear in person or by proxy at the meeting to nominate the persons
named in its notice; and (v) any other information relating to such shareholder
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by the
written consent to such nomination of each person proposed as a nominee and
such person's written consent to serve as a director if elected.
No person shall be eligible for election as a director of the Corporation
unless nominated in accordance with the procedures set forth in this Section
12. If the Chairman of the meeting determines that a nomination was not made
in accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the nomination was defective and such defective nomination shall
be disregarded.
ARTICLE IV
NOTICES
SECTION 1. NOTICE. Whenever any notice is required to be given to any
director or shareholder under any provision of statute or of the Certificate of
Incorporation or of these Bylaws, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or shareholder, at his address as it appears on the records of the
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Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States
mail. Notice to Directors may also be given orally in person or by telegram,
telex, radiogram or cablegram, and such notice shall be deemed to be given when
the recipient receives the notice personally, by telephone or when the notice,
addressed as provided above, has been delivered to the company, or to the
equipment transmitting such notice.
SECTION 2. WAIVER OF NOTICE. Whenever any notice is required to be
given under any provision of statute or of the Certificate of Incorporation or
of these Bylaws, a written waiver thereof, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent to notice. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the stockholders, Directors,
or members of a Committee of Directors need be specified in any written waiver
of notice unless so required by the Certificate of Incorporation or these
Bylaws. Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE V
OFFICERS
SECTION 1. SELECTION. The Board of Directors may appoint such officers
and agents as it shall deem necessary who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board. The officers so appointed may
include a Chairman of the Board, President, one or more Vice Chairmen, one or
more Vice Presidents (including Executive, Senior, First, regular and Assistant
Vice Presidents), a Secretary and a Treasurer, and one or more lesser officers
as may be deemed appropriate. The Chief Executive Officer may also appoint
officers of the level of Senior Vice President and below as he shall deem
necessary, at any time, which officers shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board or the Chief Executive Officer. Any number of
offices may be held by the same person, unless the Certificate of Incorporation
otherwise provides.
SECTION 2. COMPENSATION. The salaries of all executive officers of the
Corporation shall be fixed by the Board of Directors.
SECTION 3. TERM, REMOVAL AND VACANCIES. Each officer of the Corporation
shall hold office until his or her successor is elected and qualified or until
his or her earlier resignation or removal. Any officer elected or appointed by
the Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Additionally, any officer of the level of
regular Vice President or below may also be removed at any time by the Chief
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Executive Officer. Any vacancy occurring in any office of the Corporation may
be filled by the Board of Directors. Any vacancy occurring in any office of
the Corporation of the level of regular Vice President or below may also be
filled by the Chief Executive Officer.
SECTION 4. CHIEF EXECUTIVE OFFICER AND CHIEF OPERATING OFFICER.
(a) Chief Executive Officer. At the first meeting of each
newly-elected Board of Directors, the Board shall designate the Chairman
of the Board or President as the chief executive officer of the Corporation;
provided, however, that if a motion is not made and carried to change the
designation, the designation shall be same as the designation for the
preceding year; provided, further, that the designation of the chief
executive officer may be changed at any regular or special meeting of the Board
of Directors. The chief executive officer shall be responsible to the Board of
Directors for the general supervision and management of the business and
affairs of the Corporation. The Chairman of the Board or President who is not
the chief executive officer shall be subject to the authority of the chief
executive officer, but shall exercise all of the powers and discharge all of
the duties of the chief executive officer, during the absence or disability of
the chief executive officer.
(b) Chief Operating Officer. At any meeting of the Board of
Directors, the Board may designate a chief operating officer of the
Corporation. The chief operating officer shall perform such duties as may be
delegated to him or her by the Board of Directors, the Executive Committee of
the Board or the Chairman of the Board.
SECTION 5. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the Board
of Directors shall be selected by, and from among the membership of, the Board
of Directors. He shall preside at all meetings of the shareholders and of the
Board of Directors. He shall perform such other duties and functions as shall
be assigned to him from time to time by the Board of Directors. He shall be,
ex officio, a member of all standing committees except the Select Compensation
Committee and the Audit and Legal Committee. Except where by law the signature
of the President of this Corporation is required, the Chairman of the Board of
Directors shall possess the same power and authority as the President to sign
all certificates, contracts, instruments, papers and documents of every
conceivable kind and character whatsoever, in the name of and on behalf of this
Corporation, which may be authorized by the Board of Directors. During the
absence or disability of the President, the Chairman of the Board of Directors
shall exercise all of the powers and discharge all of the duties of the
President.
SECTION 6. PRESIDENT. The President shall be selected by, and from among
the membership of, the Board of Directors. During the absence or disability of
the Chairman of the Board of Directors, or while such office is vacant, the
President shall perform all duties and functions, and while so acting shall
have all of the powers and authority, of the Chairman of the Board of
Directors. The President shall perform all duties incident to the office of
President and such other duties as may be prescribed by the Board of Directors.
The President shall be, ex officio, a member of all standing committees except
the Select Compensation Committee and the Audit and Legal Committee.
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SECTION 7. VICE CHAIRMEN. One or more Vice Chairmen may be chosen from
the membership of the Board. Unless the Board of Directors shall otherwise
provide by resolution duly adopted by it, such of the Vice Chairmen who are
members of the Board of Directors in the order specified by the Board of
Directors shall perform the duties and exercise the powers of the President
during the absence or disability of the President. The Vice Chairmen shall
perform such other duties as may be delegated to them by the Board of
Directors, any executive committee, or the President.
SECTION 8. SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and shall record all
the proceedings thereof in a book to be kept for that purpose and shall perform
like duties for the standing committees when required. The Secretary shall
give, or cause to be given, all notices required by statute, Bylaw or
resolution, and shall perform such other duties as may be prescribed by the
Board of Directors or President. The Secretary shall have custody of the
corporate seal of the Corporation and the Secretary and Assistant Secretaries
shall have authority to affix the same to any instrument when its use is
required or appropriate.
SECTION 9. ASSISTANT SECRETARIES. The Assistant Secretary or Assistant
Secretaries shall, in the absence of the Secretary or in the event of his or
her inability or refusal to act, perform the duties and exercise the powers of
the Secretary and shall perform such other duties and have such other powers as
the Board of Directors may from time to time prescribe.
SECTION 10. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors,
at its regular meetings, or when the Board of Directors so requires, an account
of all his or her transactions as Treasurer and of the financial condition of
the Corporation. If required by the Board of Directors, the Treasurer shall
deliver to the Corporation, and shall keep in force, a bond, in such form,
amount, and with such surety or sureties as shall be satisfactory to the Board
of Directors, for the faithful performance of the duties of his or her office
and for the restoration to the Corporation, in case of his or her death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his or her possession or under his
or her control belonging to the Corporation.
SECTION 11. ASSISTANT TREASURERS. The Assistant Treasurer or Assistant
Treasurers shall, in the absence of the Treasurer or in the event of his or her
inability or refusal to act, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
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SECTION 12. INDEMNIFICATION AND INSURANCE.
(a) To the fullest extent permitted by applicable law and
regulation, the Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending, or completed
action, suit or proceeding, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of the Corporation)
by reason of the fact that he or she is or was a director, officer or employee
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise, against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit, or
proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. Any person who is
or was an agent of the Corporation may be indemnified to the same extent as
hereinabove provided. In addition, in the event any such action, suit or
proceeding is threatened or instituted against a spouse to whom a director or
officer is legally married at the time such director or officer is covered
under the indemnification provided herein which action, suit or proceeding
arises solely out of his or her status as the spouse of a director or officer,
including, without limitation, an action, suit or proceeding that seeks damages
recoverable from marital community property of the director or officer and his
or her spouse, property owned jointly by them or property purported to have
been transferred from the director or officer to his or her spouse, then the
spouse of the director or officer shall be indemnified to the same extent as
provided above. The termination of any action, suit, or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, raise any inference that he or she had
reasonable cause to believe that his or her conduct was unlawful.
(b) To the fullest extent permitted by applicable law and
regulation, the Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending, or completed
action or suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that he or she is or was a director,
officer or employee of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit if
he or she acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Corporation, and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of
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Chancery or such other court shall deem proper. Any person who is or was an
agent of the Corporation may be indemnified to the same extent as hereinabove
provided. In addition, in the event any such action or suit is threatened or
instituted against a spouse to whom a director or officer is legally married at
the time such director or officer is covered under the indemnification provided
herein which action or suit arises solely out of his or her status as the
spouse of a director or officer, including, without limitation, an action or
suit that seeks damages recoverable from marital community property of the
director or officer and his or her spouse, property owned jointly by them or
property purported to have been transferred from the director or officer to his
or her spouse, then the spouse of the director or officer shall be indemnified
to the same extent as provided above.
(c) To the extent that a director, officer, spouse of the director
or officer, employee, or agent of the Corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of this Section, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith.
(d) Any indemnification under subsections (a) and (b) of this
Section (unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that indemnification
of the director, officer, spouse of the director or officer, employee, or
agent is proper in the circumstances because such person has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
Section. Such determination shall be made (i)by a majority vote of Directors
who were not parties to the action, suit or proceeding, even if they constitute
less than a quorum, or (ii) if there are no such disinterested directors, or if
a majority of such disinterested directors so directs, by independent legal
counsel chosen by the entire Board of Directors, subject to the reasonable
satisfaction of the party seeking indemnification, in a written opinion, or
(iii) by the shareholders.
(e) Expenses (including attorney's fees) incurred by an officer,
director, or spouse of an officer or director, in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director,
officer or spouse to repay such amount if it shall ultimately be determined
that he or she is not entitled to be indemnified by the Corporation as
authorized in this Section. Such expenses (including attorneys' fees) incurred
by other employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding
such office.
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(g) The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, spouse of a director or
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify such person against such
liability under the provisions of this Section.
(h) For the purposes of this Section, references to "the
Corporation" include, in addition to the resulting or surviving corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had the power and authority to indemnify its directors,
officers, spouses of directors or officers, and employees or agents, so
that any person who is or was a director, officer, spouse of a director
or officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as a director,
officer, employee, or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the
provisions of this Section with respect to the resulting or surviving
corporation as he or she would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this Section, references to "other
enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer, employee or
agent of the Corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit plan,
its participants, or beneficiaries; and a person who acted in good faith and in
a manner he or she reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation"
as referred to in this Section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent, and with respect to any spouse of a
director or officer, shall continue following the time the director or officer
spouse ceases to be a director or officer even if the marriage of the
individuals terminates prior to the end of the period of coverage, and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
(k) The Court of Chancery shall have exclusive jurisdiction to
hear and determine all actions for advancement of expenses or indemnification
brought under this Section or under any agreement, vote of shareholders or
disinterested directors, or otherwise. The Court of Chancery may summarily
determine the Corporation's obligation to advance expenses (including
attorneys' fees).
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SECTION 13. OFFICERS APPOINTED PURSUANT TO MERGER AGREEMENT. During the
period in which the Employment Agreement, dated as of February 20, 1992,
between the Corporation and Mr. Gerald V. MacDonald, and the Employment
Agreement, entered into as of February 20, 1992, between the Corporation and
Mr. Eugene A. Miller (the "Employment Agreements") are in effect, any
modification, amendment or failure to honor the terms of either of such
Employment Agreements shall require the affirmative vote of 75% of the members
of the entire Board of Directors.
ARTICLE VI
STOCK AND TRANSFERS
SECTION 1. CERTIFICATES OF STOCK. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by, or in the name
of the Corporation by, the Chairman of the Board of Directors, or the President
or a Vice President and the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation, certifying the number
of shares owned by him in the Corporation. If the Corporation shall be
authorized to issue more than one class of stock or more than one series of any
class, the designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights
shall be set forth in full or summarized on the face or back of the Certificate
which the Corporation shall issue to represent such class or series of stock,
provided that, except as otherwise provided in Section 202 of the General
Corporation Law of Delaware, in lieu of the foregoing requirements, there may
be set forth on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, a statement that the
Corporation will furnish without charge to each stockholder who so requests the
designations, preferences and relative, participating optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights. Any of or all
of the signatures on the certificate may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
SECTION 2. LOST CERTIFICATES. The Board of Directors may direct a new
certificate to be issued in the place of any certificate theretofore issued by
the Corporation, alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate of
stock to be lost, stolen or destroyed. When authorizing the issuance of a new
certificate the Board of Directors may, in its discretion and as a condition
present to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate, or his legal representative, to advertise the same in
such manner as it shall require and/or to give the Corporation
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a bond in such sum as it may direct as indemnity against any claim that may be
made against it with respect to the certificate alleged to have been lost,
stolen or destroyed.
SECTION 3. TRANSFERS OF STOCK. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
SECTION 4. FIXING RECORD DATE. In order that the Corporation may
determine the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which shall not be more than sixty (60) nor less
than ten (10) days before the date of such meeting, nor more than sixty (60)
days prior to any other action. A determination of shareholders of record
entitled to notice of or to vote at a meeting of shareholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
SECTION 5. REGISTERED SHAREHOLDERS. The Corporation shall have the right
to treat the person registered on its books as the owner of shares as the
absolute owner thereof, and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. The Board of Directors, subject to any restrictions
contained in its Certificate of Incorporation, may declare and pay any
dividends upon the shares of its capital stock either (a) out of surplus as
defined in and computed in accordance with the provisions of the governing
statute, or (b) in case there shall be no such surplus, out of its net profits
for the fiscal year in which the dividend is declared and/or the preceding
fiscal year. Dividends may be paid in cash, in property, or in shares of the
Corporation's capital stock, subject to the provisions of the statute and of
the Certificate of Incorporation.
SECTION 2. RESERVES. The Board of Directors shall have power and
authority to set apart, out of any funds available for dividends, such reserve
or reserves, for any proper purpose, as the Board in its discretion shall
approve, and the Board shall have the power and authority to abolish any
reserve created by the Board.
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SECTION 3. VOTING SECURITIES. Unless otherwise directed by the Board, the
Chairman of the Board or President, or, in the case of their absence or
inability to act, the Vice Presidents, in order of their seniority, shall have
full power and authority on behalf of the Corporation to attend and to act and
to vote, or to execute in the name or on behalf of the Corporation a proxy
authorizing an agent or attorney-in-fact for the Corporation to attend and vote
at any meetings of security holders of Corporations in which the Corporation
may hold securities, and at such meetings he or his duly authorized agent or
attorney-in-fact shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof,
the Corporation might have possessed and exercised if present. The Board by
resolution from time to time may confer like power upon any other person or
persons.
SECTION 4. CHECKS. All checks, drafts and orders for the payment of money
shall be signed in the name of the Corporation in such manner and by such
officer or officers or such other person or persons as the Board of Directors
shall from time to time designate for that purpose.
SECTION 5. CONTRACTS, CONVEYANCES, ETC. When the execution of any
contract, conveyance or other instruments has been authorized without
specification of the executing officers, the Chairman of the Board, President
or any Vice President, and the Secretary or Assistant Secretary, may execute
the same in the name and on behalf of this Corporation and may affix the
corporate seal thereto. The Board of Directors shall have power to designate
the officers and agents who shall have authority to execute any instrument in
behalf of this Corporation.
SECTION 6. FISCAL YEAR. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
SECTION 7. SEAL. The corporate seal shall have inscribed thereon the name
of the Corporation and the words "Corporate Seal" and "Delaware". The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
SECTION 8. MICHIGAN CONTROL SHARE STATUTE. Pursuant to Section 794 of the
Michigan Business Corporation Act ("MBCA"), Chapter 7B of the MBCA shall not
apply to the Corporation or control share acquisitions (as such term is defined
in Section 791 of the MBCA) of the shares of the Corporation's capital stock.
ARTICLE VIII
AMENDMENTS
SECTION 1. AMENDMENT BY REGULAR VOTE. These bylaws may be altered,
amended or repealed or new Bylaws may be adopted by the shareholders or by the
Board of Directors, when such power is conferred upon the Board of Directors by
the Certificate of Incorporation, at any regular meeting of the shareholders or
of the Board of Directors or at any
17
<PAGE> 18
special meeting of the shareholders or of the Board of Directors if notice of
such alteration, amendment, repeal or adoption of new Bylaws be contained in
the notice of such special meeting.
SECTION 2. AMENDMENT BY 75% VOTE. The affirmative vote of 75% of the
total Board of Directors is required to alter, amend, repeal, add to or
otherwise change the effects of Article III, Sections 8(b), (c) or (d); Article
V, Section 13; or this Article VIII, Section 2 of the Corporation's Bylaws.
18
<PAGE> 1
EXHIBIT 4(C)
================================================================================
COMERICA INCORPORATED
TO
--------------------
TRUSTEE
--------------------
SUBORDINATED DEBT SECURITIES
--------------------
INDENTURE
DATED AS OF , 1996
-----------------------
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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ARTICLE I Definitions and Other Provisions
of General Application ................................................... -1-
Section 1.1 Definitions ............................................. -1-
Section 1.2 Compliance Certificates and Opinions .................... -7-
Section 1.3 Form of Documents Delivered to Trustee .................. -7-
Section 1.4 Acts of Holders; Record Dates ........................... -8-
Section 1.5 Notices, Etc., to Trustee and Company ................... -9-
Section 1.6 Notice to Holders; Waiver ............................... -9-
Section 1.7 Conflict with Trust Indenture Act ....................... -10-
Section 1.8 Effect of Headings and Table of Contents ................ -10-
Section 1.9 Successors and Assigns .................................. -10-
Section 1.10 Separability Clause ..................................... -10-
Section 1.11 Benefits of Indenture ................................... -10-
Section 1.12 Governing Law ........................................... -10-
Section 1.13 Legal Holidays .......................................... -10-
ARTICLE II Security Forms ................................................ -11-
Section 2.1 Forms Generally ......................................... -11-
Section 2.2 Form of Face of Security ................................ -11-
Section 2.3 Form of Reverse of Security ............................. -13-
Section 2.4 Form of Legend for Global Securities .................... -16-
Section 2.5 Form of Trustee's Certificate of Authentication ......... -17-
ARTICLE III The Securities ................................................ -17-
Section 3.1 Amount Unlimited; Issuable in Series ..................... -17-
Section 3.2 Denominations ............................................ -20-
Section 3.3 Execution, Authentication, Delivery and Dating ........... -20-
Section 3.4 Temporary Securities ..................................... -21-
Section 3.5 Registration, Registration of Transfer and Exchange ...... -22-
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities ......... -23-
Section 3.7 Payment of Interest; Interest Rights Preserved ........... -24-
Section 3.8 Persons Deemed Owners .................................... -25-
Section 3.9 Cancellation ............................................. -25-
Section 3.10 Computation of Interest .................................. -26-
</TABLE>
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TABLE OF CONTENTS
(Continued)
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ARTICLE IV Satisfaction and Discharge .................................... -26-
Section 4.1 Satisfaction and Discharge of Indenture ................. -26-
Section 4.2 Application of Trust Money .............................. -27-
ARTICLE V Remedies ....................................................... -27-
Section 5.1 Events of Default ....................................... -27-
Section 5.2 Acceleration of Maturity; Rescission and Annulment ...... -28-
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee ................................. -29-
Section 5.4 Trustee May File Proofs of Claim ........................ -30-
Section 5.5 Trustee May Enforce Claims Without Possession
of Securities .......................................... -30-
Section 5.6 Application of Money Collected .......................... -30-
Section 5.7 Limitation on Suits ..................................... -31-
Section 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest ................................... -31-
Section 5.9 Restoration of Rights and Remedies ...................... -31-
Section 5.10 Rights and Remedies Cumulative .......................... -32-
Section 5.11 Delay or Omission Not Waiver ............................ -32-
Section 5.12 Control by Holders ...................................... -32-
Section 5.13 Waiver of Past Defaults ................................. -32-
Section 5.14 Undertaking for Costs ................................... -33-
Section 5.15 Waiver of Usury, Stay or Extension Laws ................. -33-
ARTICLE VI The Trustee ................................................... -33-
Section 6.1 Certain Duties and Responsibilities ..................... -33-
Section 6.2 Notice of Defaults ...................................... -34-
Section 6.3 Certain Rights of Trustee ............................... -34-
Section 6.4 Not Responsible for Recitals or Issuance of Securities .. -35-
Section 6.5 May Hold Securities ..................................... -35-
Section 6.6 Money Held in Trust ..................................... -35-
Section 6.7 Compensation and Reimbursement .......................... -35-
Section 6.8 Disqualification; Conflicting Interests ................. -36-
Section 6.9 Corporate Trustee Required; Eligibility ................. -36-
Section 6.10 Resignation and Removal; Appointment of Successor ....... -36-
Section 6.11 Acceptance of Appointment by Successor .................. -38-
Section 6.12 Merger, Conversion, Consolidation or Succession
to Business ............................................ -39-
Section 6.13 Preferential Collection of Claims Against Company ....... -39-
Section 6.14 Appointment of Authenticating Agent ..................... -39-
</TABLE>
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TABLE OF CONTENTS
(Continued)
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ARTICLE VII Holders' Lists and Reports by Trustee and Company ............. -41-
Section 7.1 Company to Furnish Trustee Names and Addresses
of Holders .............................................. -41-
Section 7.2 Preservation of Information; Communications to Holders ... -41-
Section 7.3 Reports by Trustee ....................................... -41-
Section 7.4 Reports by Company ....................................... -42-
ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease ......... -42-
Section 8.1 Company May Consolidate, Etc., Only on Certain Terms ..... -42-
Section 8.2 Successor Substituted .................................... -43-
ARTICLE IX Supplemental Indentures ........................................ -43-
Section 9.1 Supplemental Indentures Without Consent of Holders ....... -43-
Section 9.2 Supplemental Indentures with Consent of Holders .......... -44-
Section 9.3 Execution of Supplemental Indentures ..................... -45-
Section 9.4 Effect of Supplemental Indentures ........................ -46-
Section 9.5 Conformity with Trust Indenture Act ...................... -46-
Section 9.6 Reference in Securities to Supplemental Indentures ....... -46-
ARTICLE X Covenants ....................................................... -46-
Section 10.1 Payment of Principal, Premium and Interest ............... -46-
Section 10.2 Maintenance of Office or Agency .......................... -46-
Section 10.3 Money for Securities Payments to Be Held in Trust ........ -47-
Section 10.4 Statement by Officers as to Default ...................... -48-
Section 10.5 Existence ................................................ -48-
Section 10.6 Maintenance of Properties ................................ -48-
Section 10.7 Payment of Taxes and Other Claims ........................ -48-
Section 10.8 Waiver of Certain Covenants .............................. -49-
ARTICLE XI Redemption of Securities ...................................... -49-
Section 11.1 Applicability of Article ................................. -49-
Section 11.2 Election to Redeem; Notice to Trustee .................... -49-
Section 11.3 Selection by Trustee of Securities to Be Redeemed ........ -49-
Section 11.4 Notice of Redemption ..................................... -50-
Section 11.5 Deposit of Redemption Price .............................. -50-
Section 11.6 Securities Payable on Redemption Date .................... -51-
Section 11.7 Securities Redeemed in Part .............................. -51-
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TABLE OF CONTENTS
(Continued)
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ARTICLE XII Sinking Funds ................................................. -51-
Section 12.1 Applicability of Article ................................. -51-
Section 12.2 Satisfaction of Sinking Fund Payments with Securities .... -52-
Section 12.3 Redemption of Securities for Sinking Fund ................ -52-
ARTICLE XIII Subordination of Securities .................................. -52-
Section 13.1 Securities Subordinate to Senior Indebtedness ............ -52-
Section 13.2 Payment Over of Proceeds Upon Dissolution, Etc ........... -52-
Section 13.3 Prior Payment to Senior Indebtedness Upon
Acceleration of Securities .............................. -53-
Section 13.4 No Payment When Senior Indebtedness Default .............. -54-
Section 13.5 Payment Permitted If No Default .......................... -54-
Section 13.6 Subrogation to Rights of Holders of Senior Indebtedness .. -55-
Section 13.7 Provisions Solely to Define Relative Rights .............. -55-
Section 13.8 Trustee to Effectuate Subordination ...................... -55-
Section 13.9 No Waiver of Subordination Provisions .................... -56-
Section 13.10 Notice to Trustee ........................................ -56-
Section 13.11 Reliance on Judicial Order or Certificate
of Liquidating Agent .................................... -57-
Section 13.12 Trustee Not Fiduciary for Holders of Senior
Indebtedness or Entitled Persons ........................ -57-
Section 13.13 Rights of Trustee as Holder of Senior Indebtedness or
Entitled Person; Preservation of Trustee's Rights ....... -57-
Section 13.14 Article Applicable to Paying Agents ...................... -58-
Section 13.15 Payment of Proceeds in Certain Cases ..................... -58-
ARTICLE XIV Defeasance and Covenant Defeasance ............................ -59-
Section 14.1 Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance ................ -59-
Section 14.2 Defeasance and Discharge ................................. -59-
Section 14.3 Covenant Defeasance ...................................... -60-
Section 14.4 Conditions to Defeasance or Covenant Defeasance .......... -60-
Section 14.5 Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions ............ -62-
Section 14.6 Reinstatement ............................................ -63-
</TABLE>
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COMERICA INCORPORATED
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:
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TRUST INDENTURE INDENTURE
ACT SECTION SECTION
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Section 310 (a)(1) ...................................... 6.9
(a)(2) .................................................. 6.9
(a)(3) .................................................. Not Applicable
(a)(4) .................................................. Not Applicable
(b) ..................................................... 6.8
6.10
6.13
Section 311 (a) ......................................... 6.13
(b) ..................................................... 6.13
Section 312 (a) ......................................... 7.1
(b) ..................................................... 7.2(a)
(c) ..................................................... 7.2(b)
Section 313 (a) ......................................... 7.3(a)
(b) ..................................................... 7.3(a)
(c) ..................................................... 7.3(a)
(d) ..................................................... 7.3(b)
Section 314 (a) ......................................... 7.4
(a)(4) .................................................. 1.2
10.4
(b) ..................................................... Not Applicable
(c)(1) .................................................. 1.2
(c)(2) .................................................. 1.2
(c)(3) ................................................. Not Applicable
(d) ..................................................... Not Applicable
(e) ..................................................... 1.2
Section 315 (a) ......................................... 6.1
(b) ..................................................... 6.2
(c) ..................................................... 6.1
(d) ..................................................... 6.1
(d)(1) .................................................. 6.1
(d)(2) .................................................. 6.1
(d)(3) .................................................. 6.1
(e) ..................................................... 5.14
Section 316 (a)(1)(A) .................................... 5.2
5.12
(a)(1)(B) ............................................... 5.13
(a)(2) .................................................. Not Applicable
(b) ..................................................... 5.8
(c) ..................................................... 1.4(c)
Section 317 (a)(1) ...................................... 5.3
(a)(2) .................................................. 5.4
(b) ..................................................... 10.3
Section 318 (a) ......................................... 1.7
</TABLE>
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<PAGE> 7
INDENTURE, dated as of _________, 1996, between COMERICA INCORPORATED,
a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at Comerica
Tower at One Detroit Center, Detroit, Michigan 48226 and ____________________,
a ____________________________, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.4.
<PAGE> 8
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Officer" means any officer of the Company designated by a
resolution of the Board of Directors to take certain actions as specified in
this Indenture.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors, or by action of an Authorized Officer designated as
such pursuant to a resolution of the Board of Directors, and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President, its Chief Financial Officer or a Vice
President, and by its Controller, an Assistant Controller, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office as of the date hereof is located at
[__________________________], Attention [Corporate Trust Services Division].
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 3.7.
-2-
<PAGE> 9
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary for such series by the Company
pursuant to Section 3.1, which Person shall be a clearing agency registered
under the Securities Exchange Act of 1934, as amended.
"Entitled Person" means any person entitled to payment pursuant to the
terms of Other Financial Obligations.
"Event of Default" has the meaning specified in Section 5.1.
"Excess Proceeds" has the meaning specified in Section 13.15.
"Exchange Act" means the Securities Exchange Act of 1934 as it may be
amended and any successor act thereto.
"Global Security" means a Security bearing the legend prescribed in
Section 2.4 evidencing all or part of a series of Securities, authenticated and
delivered to the Depositary for such series or its nominee, and registered in
the name of such Depositary or nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.1.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President, the Chief Financial
Officer or a Vice President, and by the Controller, an Assistant Controller,
the Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 10.4 shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company and who shall be acceptable to the Trustee.
-3-
<PAGE> 10
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Other Financial Obligations" means, unless otherwise determined with
respect to any series of Securities pursuant to Section 3.1, all obligations of
the Company to make payment pursuant to the terms of financial instruments,
such as (i) securities contracts and currency and foreign exchange contracts
and (ii) derivative instruments, such as swap agreements (including interest
rate and currency and foreign exchange rate swap agreements), cap agreements,
floor agreements, collar agreements, interest rate agreements, foreign exchange
agreements, options, commodity future contracts and commodity options
contracts, other than (x) obligations on account of Senior Indebtedness and (y)
obligations on account of indebtedness for money borrowed ranking pari passu
with or subordinate to the Securities.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(iv) Securities which have been defeased pursuant to Section
14.2 hereof;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 5.2, (ii) the principal amount of a
Security denominated in one or more foreign currencies or currency units shall
be the U.S. dollar equivalent, determined in the manner provided as
contemplated by Section 3.1 on the date of original issuance of such Security,
of the principal amount (or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
and (iii) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in
-4-
<PAGE> 11
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or
any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, any
assistant vice president, the secretary, any assistant secretary, the cashier,
any assistant cashier, any senior trust officer, trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
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<PAGE> 12
"Senior Indebtedness" means, unless otherwise determined with respect
to any series of Securities pursuant to Section 3.1, the principal of (and
premium, if any) and interest on (a) all indebtedness of the Company for money
borrowed or purchased (including indebtedness of others for money borrowed or
purchased guaranteed by the Company), whether outstanding on the date of
execution of this Indenture or thereafter created, assumed or incurred other
than (i) the Securities, whether outstanding on the date of this Indenture or
thereafter issued, (ii) the Company's existing subordinated indebtedness, if
any, and (iii) such other indebtedness of the Company as by its terms is
expressly stated to be not superior in right of payment to the Securities or to
rank pari passu in right of payment with the Securities and (b) amendments,
renewals, extensions, modifications and refundings of any such Senior
Indebtedness. For the purposes of this definition, "indebtedness for money
borrowed" when used with respect to the Company means (i) any obligation of, or
any obligation guaranteed by, the Company for the repayment of borrowed or
purchased money, whether or not evidenced by bonds, debentures, notes or other
written instruments, and direct credit substitutes (ii) any deferred payment
obligation of, or any such obligation guaranteed by, the Company for the
payment of the purchase price of property or assets evidenced by a note or
similar instrument, and (iii) any obligation of, or any such obligation
guaranteed by, the Company for the payment of rent or other amounts under a
lease of property or assets which obligation is required to be classified and
accounted for as a capitalized lease on the balance sheet of the Company under
generally accepted accounting principles.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president (but shall not include any assistant vice
president), whether or not designated by a number or a word or words added
before or after the title "vice president".
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<PAGE> 13
"Wholly-owned Subsidiary" means any Subsidiary all of whose
outstanding voting stock (other than directors' qualifying shares) shall at the
time be owned by the Company or one or more of its Wholly-owned Subsidiaries.
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion (other than the Officers' Certificate
delivered under Section 10.4 hereof) with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company,
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<PAGE> 14
unless such counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
Without limiting the generality of the foregoing, a Holder, including
a Depositary that is a Holder of a Global Security, may make, give or take, by
a proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted in this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining
the Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or
to vote on any action, authorized or permitted to be given or taken by Holders
of Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 7.1) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
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<PAGE> 15
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular Security may do
so with regard to all or any part of the principal amount of such Security or
by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trustee Administration Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company, Attention: Chief Financial Officer.
SECTION 1.6 NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
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<PAGE> 16
SECTION 1.7 CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
SECTION 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10 SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than (a) the parties hereto and their
successors hereunder, (b) the holders of Senior Indebtedness (c) the Holders,
and (d) subject to Section 13.15, Entitled Persons in respect of Other
Financial Obligations, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 1.12 GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICTS OF LAW RULES OF SUCH STATE.
SECTION 1.13 LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity,
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<PAGE> 17
provided that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE II
SECURITY FORMS
SECTION 2.1 FORMS GENERALLY.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.3 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.2 FORM OF FACE OF SECURITY.
THIS SECURITY IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY FEDERAL OR OTHER GOVERNMENTAL AGENCY.
[Insert any legend required by the Internal Revenue Code of 1986, as amended,
and the regulations thereunder.]
COMERICA INCORPORATED
_____________________________________________
No.____________ $____________________
Comerica Incorporated a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ____________________________
_____________________________, or registered assigns, the principal sum of
______________________________________________________________________ Dollars
on _________________________________ [if the Security is to bear interest prior
to Maturity, insert --, and to pay interest thereon from ______________________
or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually on ___________________ and_______________ in
each year, commencing ____________________________, at the rate of _______% per
annum,
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<PAGE> 18
until the principal hereof is paid or made available for payment [if
applicable, insert -- , and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of _______% per annum on any overdue
principal and premium and on any overdue installment of interest]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the ______________________ or __________________ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said
Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of _______% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on
demand. Any interest on any overdue principal shall bear interest at the rate
of ______% per annum (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such default in
payment to the date payment of such interest has been made or duly provided
for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in the City of New York, in
such coin or currency of [the United States of America] [insert other currency,
if applicable] as at the time of payment is legal tender for payment of public
and private debts [if applicable, insert -- ; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
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<PAGE> 19
COMERICA INCORPORATED
By:__________________
Attest:
_________________
SECTION 2.3 FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of [_______________], 1996 (herein
called the "Indenture"), between the Company and ___________________
__________, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee, the holders of Senior Indebtedness, Entitled Persons and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof[, limited in aggregate principal amount to
$_______________].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert
- -- (1) on _______________________ in any year commencing with the year ______
and ending with the year _______ through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and (2)] at
any time [on or after _________________, 19___], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [on or before
____________________, _______%, and if redeemed] during the 12-month period
beginning _______________________ of the years indicated,
<TABLE>
<CAPTION>
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
---- ----- ---- -----
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ______% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
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<PAGE> 20
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ___
________________ in any year commencing with the year _______ and ending with
the year _______ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after __________________], as a whole or in
part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning ______________________ of the years indicated,
<TABLE>
<CAPTION>
REDEMPTION PRICE REDEMPTION PRICE FOR
FOR REDEMPTION REDEMPTION OTHERWISE
THROUGH OPERATION THAN THROUGH OPERATION
YEAR OF THE SINKING FUND OF THE SINKING FUND
---- ------------------- -------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to _______% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
__________________, redeem any Securities of this series as contemplated by
[Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than ______% per annum.]
[The sinking fund for this series provides for the redemption on
______________ in each year beginning with the year __________ and ending with
the year ________ of [not less than $____________ ("mandatory sinking fund") and
not more than] $____________ aggregate principal amount of Securities of this
series. Securities of this series acquired or redeemed by the Company otherwise
than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made [in
the inverse order in which they become due].]
[If the Security is subject to redemption, insert -- In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Security is not subject to redemption
prior to maturity.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [(a)] [the entire indebtedness evidenced by this
Security] [and (b)] [certain restrictive covenants,] [in each case] upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.]
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<PAGE> 21
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. This Security is also
issued subordinate and subject to the provisions of the Indenture regarding
prior payment in full to Entitled Persons in respect of Other Financial
Obligations. The Indenture also provides that if, upon the occurrence of
certain events of bankruptcy or insolvency relating to the Company, there
remains, after giving effect to such subordination provisions, any amount of
cash, property or securities available for payment or distribution in respect
of Securities of this series (as defined in the Indenture, "Excess Proceeds"),
and if, at such time, any Entitled Person (as defined in the Indenture) has not
received payment in full of all amounts due or to become due on or in respect
of Other Financial Obligations (as defined in the Indenture), then such Excess
Proceeds shall first be applied to pay or provide for the payment in full of
such Other Financial Obligations before any payment or distribution may be made
in respect of Securities of this series. Each Holder of this Security, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination and payment of Excess
Proceeds as provided in the Indenture and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes.
[If the Security is not an Original Issue Discount Security, insert --
The principal of this Security may not be declared due and payable upon the
occurrence of an Event of Default, except an Event of Default relating to
certain events involving the bankruptcy, insolvency or reorganization of the
Company. If an Event of Default with respect to Securities of this series
relating to certain events involving the bankruptcy, insolvency or
reorganization of the Company shall occur and be continuing, the principal of
the Securities of this series may be declared due and payable in the manner and
with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- The
principal of this Security may not be declared due and payable upon the
occurrence of an Event of Default, except an Event of Default relating to
certain events involving the bankruptcy, insolvency or reorganization of the
Company. If an Event of Default with respect to Securities of this series
relating to certain events involving the bankruptcy, insolvency or
reorganization of the Company shall occur and be continuing, an amount of
principal of the Securities of this series may be declared due and payable in
the manner and with the effect provided in the Indenture. Such amount shall be
equal to -- insert formula for determining the amount. Upon payment [if
applicable, insert -- (i)] of the amount of principal so declared due and
payable [if applicable, insert -- and (ii) of interest on any overdue principal
and overdue interest (in each case to the extent that the payment of such
interest shall be legally enforceable)], all of the Company's obligations in
respect of the payment of the principal of and interest, if any, on the
Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
at the time Outstanding of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive certain past
defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this
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<PAGE> 22
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the
Security Register, upon surrender of this Security for registration of transfer
at the office or agency of the Company in any place where the principal of and
any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $ ______________ and any integral
multiple [of $1,000 in excess] thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 2.4 FORM OF LEGEND FOR GLOBAL SECURITIES.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee thereof. This Security may not be transferred
to, or registered or exchanged for Securities registered in the name
of, any Person other than the Depositary or a nominee thereof or a
successor of such Depositary or a nominee of such successor and no
such transfer may be registered, except in the limited circumstances
described
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<PAGE> 23
in the Indenture. Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, this
Security shall be a Global Security subject to the foregoing, except
in such limited circumstances."
SECTION 2.5 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
______________________________,
As Trustee
By:___________________________
Authorized Officer
ARTICLE III
THE SECURITIES
SECTION 3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth, or determined in the manner provided, in an Officers' Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series,
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of any
other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 3.4, 3.5,
3,6, 9.6 or 11.7 and except for any Securities which, pursuant to
Section 3.3, are deemed never to have been authenticated and delivered
hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
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(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the
series shall bear interest, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for any interest
payable on any Interest Payment Date;
(6) the place or places in addition to the City of New
York, where the principal of and any premium and interest on
Securities of the series shall be payable;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of
the series may be redeemed, in whole or in part, at the option of the
Company;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than minimum denominations of $250,000 and
any integral multiple of $1,000 in excess thereof, the denominations
in which Securities of the series shall be issuable;
(10) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any
Securities of the series shall be payable if other than the currency
of the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of "Outstanding" in Section 1.1;
(11) if the amount of payments of principal of or any
premium or interest on any Securities of the series may be determined
with reference to an index or formula, the manner in which such
amounts shall be determined;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to
be payable, the currency, currencies or currency units in which
payment of the principal of and any premium and interest on Securities
of such series as to which such election is made shall be payable, and
the periods within which and the terms and conditions upon which such
election is to be made;
(13) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.2;
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(14) the application, if any, of either or both of Section
14.2 and Section 14.3 to the Securities of the series;
(15) whether the Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such
Global Security or Global Securities and any circumstances other than
those set forth in Section 3.5 in which any such Global Security may
be transferred to, and registered and exchanged for Securities
registered in the name of, a Person other than the Depositary for such
Global Security or a nominee thereof and in which any such transfer
may be registered;
(16) if other than as specified in Section 5.1, the Events
of Default applicable with respect to the Securities of the series;
(17) the Events of Default set forth in Section 5.1
applicable with respect to the Securities of the series, if fewer than
all of the Events of Default set forth in Section 5.1;
(18) if other than as specified in Section 5.2, the Events
of Default the occurrence of which would permit the declaration of the
acceleration of Maturity pursuant to Section 5.2;
(19) the Events of Default the occurrence of which would
permit the declaration of Maturity pursuant to Section 5.2, if fewer
than all of the Events of Default set forth in Section 5.2;
(20) any other covenant or warranty included for the
benefit of Securities of the series in addition to (and not
inconsistent with) those included in this Indenture for the benefit of
Securities of all series, or any other covenant or warranty included
for the benefit of Securities of the series in lieu of any covenant or
warranty included in this Indenture for the benefit of Securities of
all series, or any provision that any covenant or warranty included in
this Indenture for the benefit of Securities of all series shall not
be for the benefit of Securities of such series, or any combination of
such covenants, warranties or provisions;
(21) if other than as specified on Article XIII, the
subordination provisions applicable with respect to the Securities of
the series, including a different definition of the terms "Senior
Indebtedness," "Entitled Persons" or "Other Financial Obligations";
and
(22) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to the Board Resolution referred to above and (subject to Section 3.3)
set forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
Unless otherwise provided with respect to the Securities of any
series, at the option of the Company, interest on the Securities of any series
that bears interest may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the Security Register.
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If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.2 DENOMINATIONS.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.1. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
minimum denominations of $250,000 and any integral multiple of $1,000 in excess
thereof.
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
6.1) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 2.1, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities (or the manner of determining such
terms) have been established by or pursuant to Board Resolution as permitted by
Section 3.1, that such terms (or the manner of determining such terms) have
been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their
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terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an Authorized Officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
SECTION 3.4 TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and
of a like aggregate principal amount and tenor. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series and
tenor.
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SECTION 3.5 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities
to be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
11.3 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Notwithstanding the foregoing and except as otherwise specified or
contemplated by Section 3.1, if at any time the Depositary for the Securities
of a series notifies the Company that it is unwilling or unable to continue as
a Depositary for the Securities of such series or if at any time the Depositary
for Securities of a series shall no longer be registered or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If a successor Depositary
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for the Securities of such series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition,
the Company will execute, and the Trustee, upon Company Request, will
authenticate and deliver Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
or Global Securities representing Securities of such series in exchange for
such Global Security or Global Securities.
In the event that (i) the Company at any time and in its sole
discretion determines that the Securities of any series issued in the form of
one or more Global Securities shall no longer be represented by such Global
Security or Global Securities or (ii) there shall have occurred and be
continuing an Event of Default or an event which, with the giving of notice or
lapse of time or both, would constitute an Event of Default with respect to the
Securities of any series, the Company will execute, and the Trustee, upon
Company Request, will authenticate and deliver Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Global Securities representing such series in
exchange for such Global Security or Global Securities.
Upon the occurrence in respect of any Global Security of any series of
any one or more of the conditions specified in the preceding two paragraphs or
such other conditions as may be specified as contemplated by Section 3.1 for
such series, such Global Security may be exchanged for Securities registered in
the names of, and the transfer of such Global Security may be registered to,
such Persons (including Persons other than the Depositary with respect to such
series and its nominees) as such Depositary shall direct. Notwithstanding any
other provision of this Indenture, any Security authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, any Global
Security shall also be a Global Security and shall bear the legend specified in
Section 2.4 except for any Security authenticated and delivered in exchange
for, or upon registration of transfer of, a Global Security pursuant to the
preceding sentence.
SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
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Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise provided as contemplated by Section 3.1 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so
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mailed, such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.8 PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 3.7) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by a Depositary or impair, as between a
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary (or its
nominee) as Holder of any Security.
SECTION 3.9 CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of as directed by a
Company Order.
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SECTION 3.10 COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6 and (ii) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
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(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations
(if any) of the Trustee to any Authenticating Agent under Section 6.14 and, if
money shall have been deposited with the Trustee pursuant to subclause (B) of
Clause (1) of this Section, the obligations of the Trustee under Section 4.2
and the last paragraph of Section 10.3 shall survive.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then
the effectiveness of any such instrument shall be conditioned upon receipt of
such instruments from all Trustees hereunder.
SECTION 4.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium
and interest for whose payment such money has been deposited with the Trustee.
Money deposited and held in trust pursuant to this Section shall not be subject
to claims of the holders of Senior Indebtedness or of Entitled Persons under
Article XIII.
ARTICLE V
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default, whether it shall be occasioned by the provisions of Article
XIII and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series; or
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(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of
series of Securities other than that series), and continuance of such
default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry by a court or a governmental authority
having jurisdiction in the premises of (A) a decree or order for
relief in respect of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging
the Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company or substantially all of its assets or ordering the winding up
or liquidation of the affairs of the Company, and the continuance of
any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case
or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or substantially all of its
assets; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default specified in Sections 5.1(5) or 5.1(6) with
respect to Securities of any series at the time Outstanding occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Securities of that series may
declare the principal amount (or, if any of the Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of
such Securities as may be specified in the terms thereof) of all of the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.
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At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on all Securities of
that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of Securities
of that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any
sinking fund payment or analogous obligation when the same becomes due
pursuant to the terms of any Security,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
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If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding; provided,
however, the Trustee may vote on behalf of the Holders for the election of a
trustee in bankruptcy or similar official and may be a member of a creditors'
or other similar committee.
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.6 APPLICATION OF MONEY COLLECTED.
Subject to Article XIII, any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal or any premium or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.7; and
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SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal and any premium and interest, respectively.
SECTION 5.7 LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section
3.7) any interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date), and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has
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been determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12 CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of
the Trustee, determine that the proceeding so directed would involve
the Trustee in personal liability.
SECTION 5.13 WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
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(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article IX cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Securities
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.14 shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Securities on or after the Stated
Maturity or Maturities expressed in such Securities (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.15 WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for
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believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 6.2 NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified
in Section 5.1(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 6.3 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or
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other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 6.5 MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 6.6 MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 6.7 COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly provided
herein, to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except
any such expense, disbursement or advance as may be
attributable to its negligence or bad faith;
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(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the
trust or trusts hereunder, including the reasonable costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder;
(4) to secure the Company's obligations under
this Section, the Trustee shall have a lien prior to the
Securities upon all money or property held or collected by the
Trustee in its capacity as Trustee, except for such money and
property which is held in trust to pay principal (and premium,
if any) or interest on particular Securities; and
(5) when the Trustee incurs any expenses or
renders any services after the occurrence of an Event of
Default specified in Section 5.1(6) or (7), such expenses and
the compensation for such services are intended to constitute
expenses of administration under the United States Bankruptcy
Code (Title 11 of the United States Code) or any similar
federal or state law for the relief of debtors.
SECTION 6.8 DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section
6.11.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor Trustee
required by Section 6.11 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may
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petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
6.8 after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or more or all
of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11. If, within
one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any Series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable requirements of
Section 6.11, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any Series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required
by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
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(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series
in the manner provided in Section 1.6. Each notice shall include the
name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute
such Trustees cotrustees of the same trust and that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
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(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (a) and (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents (which may
be an affiliate of the Company) with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.6, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall
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cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
Unless the Authenticating Agent has been appointed by the Trustee at
the request of the Company, the Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its services under this
Section, and the Trustee shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 6.7.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
_____________________________
As Trustee
By:_____________________________
As Authenticating Agent
By:_____________________________
Authorized Officer
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than June 30 and December 31
in each year, a list for each series, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of
Securities of such series as of the preceding June 15 or December 15,
as the case may be, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as provided
in Section 7.1 and the names and addresses of Holders received by the
Trustee in its capacity as Security Registrar. The Trustee may destroy
any list furnished to it as provided in Section 7.1 upon receipt of a
new list so furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 7.3 REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. To the extent that any such report
is required by the Trust Indenture Act with respect to any 12-month
period, such report shall cover the 12-month period ending March 15
and shall be transmitted by the next succeeding March 15.
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(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
SECTION 7.4 REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person formed
by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety
shall be a corporation and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and any premium and interest on all the Securities and
the performance or observance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction
and treating any indebtedness which becomes an obligation of the
Company or a Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with;
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provided, however, the Company may, without the consent of the Holder or
Holders of any series of Securities, convey or transfer its assets
substantially as an entirety to any Person in connection with a transfer that
is assisted or sponsored by a Federal bank regulatory authority, and in such
case the Company's obligations under the Indenture need not be assumed by the
entity acquiring such assets.
SECTION 8.2 SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 8.1, the successor Person formed by such consolidation or into which
the Company is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(5) to add to, change or eliminate any of the provisions
of this Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination (i) shall
neither (A) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit
of such provision nor (B)
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modify the rights of the Holder of any such Security with respect to
such provision or (ii) shall become effective only when there is no
such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11(b); or
(9) to add to, change or eliminate any of the
provisions of Article XIII in respect of any series of Securities,
including Outstanding Securities, provided that any such action
pursuant to this clause (9) shall not adversely affect the interests
of the Holders of Securities of any series in any material respect; or
(10) to provide that Securities of any Series may be
convertible into other securities or other property and to set forth
the terms and conditions of conversion of any such convertible
Securities;
(11) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (11) shall not adversely affect the interests
of the Holders of Securities of any series in any material respect.
Notwithstanding any provision in this Indenture or otherwise, the
rights of creditors in respect of Other Financial Obligations under this
Indenture and otherwise in respect of the Securities may, at any time and from
time to time, be reduced or eliminated by a supplemental indenture entered into
by the Company and the Trustee, which supplemental indenture will not require
the consent of Holders of Securities or any creditor in respect of Other
Financial Obligations.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
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(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or adversely affect any right of
repayment at the option of the Holder of any Security, or reduce the
amount of, or postpone the date fixed for, the payment of any sinking
fund payment or analogous obligation, or change the coin or currency
in which, any Security or any premium or interest thereon is payable,
or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date) or modify the provisions
of this Indenture with respect to the subordination of the Securities
of any series in a manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver of certain defaults hereunder and
their consequences provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section
5.13 or Section 10.8, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, provided, however, that this
clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 6.11(b) and 9.1(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such
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purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
SECTION 10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or
any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each
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Business Day and of general circulation in the City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 10.4 STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate (one of the signers of which shall be the principal executive
officer, principal financial officer or principal accounting officer of the
Company), stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 10.5 EXISTENCE.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not and is not reasonably likely to be disadvantageous in any
material respect to the Holders.
SECTION 10.6 MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 10.7 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which adequate provision is made.
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SECTION 10.8 WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 10.5 to 10.7, inclusive,
with respect to the Securities of any series if before the time for such
compliance the Holders of a majority in principal amount of the Outstanding
Securities of such series shall, by act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any
series) in accordance with this Article.
SECTION 11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date, of the principal amount of Securities of such series to
be redeemed and, if applicable, of the tenor of the Securities to be redeemed.
In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less than
all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
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The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.4 NOTICE OF REDEMPTION.
Notice of 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 Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest, if any,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption of any Securities, the principal amounts) of the
particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price and
accrued interest, if any, will become due and payable upon each such
Security to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
if any,
(6) that the redemption is for a sinking fund, if such
is the case, and
(7) the CUSIP numbers, if any, of the Securities to be
redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 11.5 DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
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SECTION 11.6 SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 3.1, installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 11.7 SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
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SECTION 12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Securities of a series (other than any
previously called for redemption) and (2) may apply as a credit Securities of a
series which theretofore have been redeemed or otherwise acquired by the
Company either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such Securities have
not been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
SECTION 12.3 REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 90 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.2 and the basis for such credit and will also deliver to
the Trustee any Securities to be so delivered. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 11.3 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 11.4.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1 SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security of any
series, by his acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article (subject to the
provisions of Article XIV), the indebtedness represented by the Securities of
such series and the payment of the principal of (and premium, if any) and
interest on each of all of the Securities of such series are hereby expressly
made subordinate and subject in right of payment to the prior payment in full
of all Senior Indebtedness and, as provided in Section 13.15, of all Other
Financial Obligations.
SECTION 13.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether
or not involving
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insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company, then and in any
such event the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in money or
money's worth, before the Holders of the Securities of any series are entitled
to receive any payment on account of principal of (or premium, if any) or
interest on the Securities of such series, and to that end the holders of
Senior Indebtedness shall be entitled to receive, for application to the
payment hereof, any payment or distribution of any kind or character, whether
in cash, property or securities, which may be payable or deliverable in respect
of the Securities of any series in any such case, proceeding, dissolution,
liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the holder of any Security of any series shall have
received any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, before all Senior
Indebtedness is paid in full or payment thereof provided for, and if such fact
shall, at or prior to the time of such payment or distribution have been made
known to the Trustee or, as the case may be, such Holder, then and in such
event such payment or distribution shall be paid over or delivered forthwith to
the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the Company
for application to the payment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all Senior Indebtedness in full, after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment which are
subordinated in right of payment to all Senior Indebtedness which may at the
time be outstanding to the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article. The consolidation
of the Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance or transfer
of its properties and assets substantially as an entirety to another Person
upon the terms and conditions set forth in Article VIII shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshalling of assets and liabilities of the Company
for the purposes of this Section if the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance,
transfer or lease such properties and assets substantially as an entirety, as
the case may be, shall, as a part of such consolidation, merger, conveyance,
transfer or lease, comply with the conditions set forth in Article VIII.
SECTION 13.3 PRIOR PAYMENT TO SENIOR INDEBTEDNESS UPON ACCELERATION OF
SECURITIES.
In the event that any Securities of any series are declared due and
payable before their Stated Maturity, then and in such event the holders of
Senior Indebtedness shall be entitled to receive payment in full of all amounts
due or to become due on or in respect of all Senior Indebtedness, or provision
shall be made for such payment in cash, before the Holders of the Securities of
such series are entitled to receive any payment of the principal of, premium,
if any, or interest on the Securities of such series or on account of the
purchase or other acquisition of Securities of such series.
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In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security of any series
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment shall
be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 13.2 would be applicable.
SECTION 13.4 NO PAYMENT WHEN SENIOR INDEBTEDNESS DEFAULT.
(a) In the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on any Senior
Indebtedness beyond any applicable grace period with respect thereto, or in the
event that any event of default with respect to any Senior Indebtedness shall
have occurred and be continuing permitting the holders of such Senior
Indebtedness (or a trustee on behalf of the holders thereof) to declare such
Senior Indebtedness due and payable prior to the date on which it would
otherwise have become due and payable, unless and until such event of default
shall have been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or (b) in the event any
judicial proceeding shall be pending with respect to any such default in
payment, or event of default, then no payment shall be made by the Company on
account of principal of (or premium, if any) or interest on the Securities of
any series or on account of the purchase or other acquisition of Securities of
any series.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security of any series
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment shall
be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 13.2 would be applicable.
SECTION 13.5 PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities of any series shall prevent (a) the Company, at any time
except during the pendency of any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other marshalling
of assets and liabilities of the Company referred to in Section 13.2 or under
the conditions described in Section 13.3 or 13.4, from making payments at any
time of principal of (and premium, if any) or interest on the Securities of any
series, or (b) the application by the Trustee of any money deposited with it
hereunder to the payment of or on account of the principal of (and premium, if
any) or interest on the Securities of any series or the retention of such
payment by the Holder, if, at the time of such application by the Trustee, it
did not have actual knowledge that such payment would have been prohibited by
the provisions of this Article.
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SECTION 13.6 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities of a series shall be subrogated to the extent of the payments
or distributions made to the holders of such Senior Indebtedness pursuant to
the provisions of this Article to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest on the Securities of such series shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities of a series or the Trustee would be entitled
except for the provisions of this Article, and no payments over pursuant to the
provisions of this Article to the holders of Senior Indebtedness by Holders of
the Securities of a series or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities of such series, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
SECTION 13.7 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities of a
series on the one hand and the holders of Senior Indebtedness (and, in the case
of Section 13.15, Entitled Persons in respect of Other Financial Obligations)
on the other hand. Nothing contained in this Article or elsewhere in this
Indenture or in the Securities of any series is intended to or shall (a)
impair, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities of any series, the obligation of
the Company, which is absolute and unconditional (and which, subject to the
rights under this Article of the holders of Senior Indebtedness and the rights
under Section 13.15 of Entitled Persons in respect of Other Financial
Obligations, is intended to rank equally with all other obligations of the
Company), to pay to the Holders of the Securities of a series the principal of
(and premium, if any) and interest on the Securities of such series as and when
the same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders of the Securities
of a series and creditors of the Company other than the holders of Senior
Indebtedness or Entitled Persons in respect of Other Financial Obligations; or
(c) prevent the Trustee or the Holder of any Security of any series from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness, and under Section 13.15 of Entitled Persons in
respect of Other Financial Obligations, to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
SECTION 13.8 TRUSTEE TO EFFECTUATE SUBORDINATION.
Each holder of a Security of any series by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
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SECTION 13.9 NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness or
an Entitled Person in respect of Other Financial Obligations to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any
failure to act, in good faith, by any such holder, or by any non-compliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness or an Entitled Person in respect of Other
Financial Obligations may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities of any
series, without incurring responsibility to the Holders of the Securities of
any series and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of the Securities to
the holders of Senior Indebtedness or an Entitled Person in respect of Other
Financial Obligations, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness or Other Financial Obligations, or otherwise amend
or supplement in any manner Senior Indebtedness or Other Financial Obligations
or any instrument evidencing the same or any agreement under which Senior
Indebtedness or Other Financial Obligations is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness or Other Financial Obligations; (iii)
release any Person liable in any manner for the collection of Senior
Indebtedness or Other Financial Obligations; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 13.10 NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities of any series. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities of a series, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Indebtedness or
from any trustee therefor or from any Entitled Persons in respect of Other
Financial Obligations; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 6.1, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section at
least two Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal (and premium, if any) or interest on any Security),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to apply the same
to the purpose for which such money was received and shall not be affected by
any notice to the contrary which may be received by it within two Business Days
prior to such date.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee
therefor) or an Entitled Person in respect of Other Financial Obligations to
establish that
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such notice has been given by a holder of Senior Indebtedness (or a trustee
therefor) or an Entitled Person in respect of Other Financial Obligations. In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness or an Entitled Person in respect of Other Financial Obligations to
participate in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness or Other
Financial Obligations held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 13.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 6.1, and the
Holders of the Securities of any series shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities of such
series, for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company and the Entitled Persons in respect of Other
Financial Obligations, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article.
SECTION 13.12 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS OR
ENTITLED PERSONS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness or Entitled Persons with respect to Other
Financial Obligations and shall not be liable to any such holders or creditors
if it shall in good faith mistakenly pay over or distribute to Holders of
Securities of any series or to the Company or to any other Person cash,
property or securities to which any holders of Senior Indebtedness or Entitled
Persons with respect to Other Financial Obligations shall be entitled by virtue
of this Article or otherwise.
SECTION 13.13 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS OR ENTITLED
PERSON; PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it and with respect to any Other Financial
Obligations owed to the Trustee as the Entitled Person, to the same extent as
any other holder of Senior Indebtedness or Entitled Person in respect of Other
Financial Obligations, as the case may be, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder or Entitled Person.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.7.
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SECTION 13.14 ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 13.13 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 13.15 PAYMENT OF PROCEEDS IN CERTAIN CASES.
(a) Upon the occurrence of any of the events specified in
clauses (a), (b) and (c) of the first paragraph of Section 13.2, the
provisions of that Section shall be given effect to determine the
amount of cash, property or securities which may be payable or
deliverable as between the holders of Senior Indebtedness, on the one
hand, and the Holders of Securities, on the other hand.
(b) If, after giving effect to the provisions of Section
13.2 and Section 13.6, any amount of cash, property or securities
shall be available for payment or distribution in respect of the
Securities ("Excess Proceeds"), and any Entitled Persons in respect of
Other Financial Obligations shall not have received payment in full of
all amounts due or to become due on or in respect of such Other
Financial Obligations (and provision shall not have been made for such
payment in money or money's worth), then such Excess Proceeds shall
first be applied (ratably with any amount of cash, property or
securities available for payment or distribution in respect of any
other indebtedness of the Company that by its express terms provides
for the payment over of amounts corresponding to Excess Proceeds to
Entitled Persons in respect of Other Financial Obligations) to pay or
provide for the payment of the Other Financial Obligations remaining
unpaid, to the extent necessary to pay all Other Financial Obligations
in full, after giving effect to any concurrent payment or distribution
to or for Entitled Persons in respect of Other Financial Obligations.
Any Excess Proceeds remaining after the payment (or provisions for
payment) in full of all Other Financial Obligations shall be available
for payment or distribution in respect of the Securities.
(c) In the event that, notwithstanding the foregoing
provisions of subsection (b) of this Section, the Trustee or Holder of
any Security shall have received any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, before all Other Financial Obligations are paid in full or
payment thereof duly provided for, and if such fact shall, at or prior
to the time of such payment or distribution have been made known to
the Trustee or, as the case may be, such Holder, then and in such
event, subject to any obligation that the Trustee or such Holder may
have pursuant to Section 13.2, such payment or distribution shall be
paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for
payment in accordance with subsection (b).
(d) Subject to the payment in full of all Other Financial
Obligations, the Holders of the Securities shall be subrogated
(equally and ratably with the holders of all indebtedness
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of the Company that by its express terms provides for the payment over
of amounts corresponding to Excess Proceeds to Entitled Persons in
respect of Other Financial Obligations and is entitled to like rights
of subrogation) to the rights of the Entitled Persons in respect of
Other Financial Obligations to receive payments and distributions of
cash, property and securities applicable to the Other Financial
Obligations until the principal of and interest on the Securities
shall be paid in full. For purposes of such subrogation, no payments
or distributions to Entitled Persons in respect of Other Financial
Obligations of any cash, property or securities to which Holders of
the Securities or the Trustee would be entitled except for the
provisions of this Section, and no payments over pursuant to the
provisions of this Section to Entitled Persons in respect of Other
Financial Obligations by Holders of Securities or the Trustee, shall,
as among the Company, its creditors other than Entitled Persons in
respect of Other Financial Obligations and the Holders of Securities,
be deemed to be a payment or distribution by the Company to or on
account of the Other Financial Obligations.
(e) The provisions of subsections (b), (c) and (d) of
this Section are and are intended solely for the purpose of defining
the relative rights of the Holders of the Securities, on the one hand,
and the Entitled Persons in respect of Other Financial Obligations, on
the other hand, after giving effect to the rights of the holders of
Senior Indebtedness, as provided in this Article. Nothing contained
in subsections (b), (c) and (d) of this Section is intended to or
shall affect the relative rights against the Company of the Holders of
the Securities and (1) the holders of Senior Indebtedness or (2) other
creditors of the Company other than Entitled Persons in respect of
Other Financial Obligations.
ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.1 APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE.
If pursuant to Section 3.1 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 14.2 or (b) covenant
defeasance of the Securities of a series under Section 14.3, then the
provisions of such Section or Sections, as the case may be, together with the
other provisions of this Article XIV, shall be applicable to the Securities of
such series, and the Company may at its option by Board Resolution, at any
time, with respect to the Securities of such series, elect to have either
Section 14.2 (if applicable) or Section 14.3 (if applicable) be applied to the
Outstanding Securities of such series upon compliance with the conditions set
forth below in this Article XIV.
SECTION 14.2 DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series on and
after the date the conditions precedent set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities
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of such series and to have satisfied all its other obligations under such
Securities and this Indenture, including the provisions of Article XIII hereof,
insofar as such Securities are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of outstanding Securities of such series
to receive, solely from the trust fund described in Section 14.4 as more fully
set forth in such Section, payments of the principal of (and premium, if any)
and interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 3.4, 3.5, 3.6, 10.2
and 10.3 and such obligations as shall be ancillary thereto, (C) the rights,
powers, trusts, duties, immunities and other provisions in respect of the
Trustee hereunder and (D) this Article XIV. Subject to compliance with this
Article XIV, the Company may exercise its option under this Section 14.2
notwithstanding the prior exercise of its option under Section 14.3 with
respect to the Securities of such series. Following a defeasance, payment of
the Securities of such series may not be accelerated because of an Event of
Default.
SECTION 14.3 COVENANT DEFEASANCE.
Upon the Company's exercise of the above option applicable to this
Section and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), the Company shall be released from its
obligations under any covenant applicable to such Securities that is determined
pursuant to Section 3.1 to be subject to this provision, and the occurrence of
an event specified in Section 5.1(4) (with respect to any Section applicable to
such Securities that are determined pursuant to Section 3.1 to be subject to
this provision) shall not be deemed to be an Event of Default with respect to
the outstanding Securities of such series. For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of such
series, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
SECTION 14.4 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions precedent to application of
either Section 14.2 or Section 14.3 to the Outstanding Securities of such
series:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, without
reinvestment, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee to pay and discharge, the principal of
(and premium, if any) and interest on the Outstanding Securities of
such series on the Maturity of such principal, premium, if any, or
interest and any mandatory sinking fund payments or analogous payments
applicable to the Outstanding
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Securities of such series on the due dates thereof. Before such a
deposit the Company may make arrangements satisfactory to the Trustee
for the redemption of Securities at a future date or dates in
accordance with Article XI, which shall be given effect in applying
the foregoing. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of
America for the payment of which its full faith and credit is pledged
or (y) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal of or
interest on the U.S. Government Obligation evidenced by such
depository receipt.
(2) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to
the Securities of such series shall have occurred and be continuing
(A) on the date of such deposit or (B) insofar as subsections 5.1(5)
and (6) are concerned, at any time during the period ending on the
123rd day after the date of such deposit or, if longer, ending on the
day following the expiration of the longest preference period
applicable to the Company in respect of such deposit (it being
understood that the condition in this Clause (B) shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A)
cause the Trustee for the Securities of such series to have a
conflicting interest as defined in Section 6.8 or for purposes of the
Trust Indenture Act with respect to any securities of the Company or
(B) result in the trust arising from such deposit to constitute,
unless it is qualified as, a regulated investment company under the
Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under,
this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound.
(5) Such defeasance or covenant defeasance shall not
cause any Securities of such series then listed on any registered
national securities exchange under the Securities Exchange Act of
1934, as amended, to be delisted.
(6) In the case of an election under Section 14.2, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the
date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize income, gain
or loss for Federal
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income tax purposes as a result of such defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had not
occurred.
(7) In the case of an election under Section 14.3, the
Company shall have delivered to the Trustee an opinion of Counsel to
the effect that the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance
had not occurred.
(8) At the time of such deposit; (A) no default in the
payment of all or a portion of principal of (or premium, if any) or
interest on any Senior Indebtedness shall have occurred and be
continuing, and no event of default with respect to any Senior
Indebtedness shall have occurred and be continuing and shall have
resulted in such Senior Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become
due and payable and (B) no other event of default with respect to any
Senior Indebtedness shall have occurred and be continuing permitting
(after notice or the lapse of time, or both) the holders of such
Senior Indebtedness (or a trustee on behalf of the holders thereof) to
declare such Senior Indebtedness due and payable prior to the date on
which it would otherwise have become due and payable, or, in the case
of either Clause (A) or Clause (B) above, each such default or event
of default shall have been cured or waived or shall have ceased to
exist.
(9) Such defeasance or covenant defeasance shall be
effected in compliance with any additional terms, conditions or
limitations which may be imposed on the Company in connection
therewith pursuant to Section 3.1.
(10) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 14.2 or the covenant defeasance under Section 14.3 (as
the case may be) have been complied with.
SECTION 14.5 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 10.3, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee pursuant to Section 14.4 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law. Money so held in trust shall not be subject to the provisions of Article
XIII.
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<PAGE> 69
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 14.4 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 14.4 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
SECTION 14.6 REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 14.5 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article XIV until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 14.5; provided, however, that
if the Company makes any payment of principal of (and premium, if any) or
interest on any such Security following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee or the Paying Agent.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE> 70
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
COMERICA INCORPORATED
By:_________________________
Title:______________________
Attest:
By:________________________
Title:_____________________
___________________________,
As Trustee
By:_________________________
Title:______________________
Attest:
By:__________________________
Title:_______________________
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<PAGE> 71
STATE OF )
) ss.:
CITY AND COUNTY OF )
On the ______ day of __________________, before me personally came
__________________________________________, to me known, who, being by me duly
sworn, did depose and say that he is ___________________________ of Comerica
Incorporated, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
_____________________________
STATE OF )
) ss.:
CITY AND COUNTY OF )
On the ______ day of _________________, before me personally came
______________________________________, to me known, who, being by me duly
sworn, did depose and say that he is _______________________________ of
______________________________, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
_____________________________
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<PAGE> 1
EXHIBIT 12(A)
STATEMENT RE COMPUTATION OF EARNINGS
TO FIXED CHARGES
<TABLE>
<CAPTION>
Three Months
Ended March 31, Year ended December 31,
-------------- ----------------------
(dollars in thousands) 1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Interest expense $314,875 $307,342 $1,311,676 $890,605 $681,554 $836,035 $1,233,258
Portion of net rental expense estimated to be
representative of the interest factor 4,005 3,671 14,737 14,638 14,098 13,530 12,389
-------- -------- ---------- ---------- ---------- ---------- ----------
Fixed charges 318,880 311,013 1,326,413 905,243 695,652 849,565 1,245,647
Income before income taxes 179,214 151,609 625,694 582,095 488,575 329,035 385,035
-------- -------- ---------- ---------- ---------- ---------- ----------
Income before income taxes and fixed charges $498,094 $462,622 $1,952,107 $1,487,338 $1,184,227 $1,178,600 $1,630,682
Consolidated ratio of earnings to fixed charges
(including interest on deposits) 1.56 x 1.49 x 1.47 x 1.64 x 1.70 x 1.39 x 1.31 x
======== ========= ========== ========== ========== ========== ==========
Interest expense $314,875 $307,342 $1,311,676 $890,605 $681,554 $836,035 $1,233,258
Less: Interest on deposits (180,890) (171,825) (721,475) (542,727) (529,802) (706,873) (1,033,145)
Portion of net rental expense estimated to be
representative of the interest factor 4,005 3,671 14,638 14,638 14,098 13,530 12,389
-------- -------- ---------- ---------- ---------- ---------- ----------
Fixed charges excluding interest on deposits 137,990 139,188 604,839 362,516 165,850 142,692 212,502
Income before income taxes 179,214 151,609 625,694 582,095 488,575 329,035 385,035
-------- -------- ---------- ---------- ---------- ---------- ----------
Income before income taxes and fixed charges $317,204 $290,797 $1,230,533 $944,611 $654,425 $471,727 $597,537
Consolidated ratio of earnings to fixed charges
(excluding interest on deposits) 2.30 x 2.09 x 2.03 x 2.61 x 3.95 x 3.31 x 2.81 x
======== ======== ========== ========== ========== ========== =========
</TABLE>
* The ratio of earnings to fixed charges is computed by dividing income
before income taxes and fixed charges by fixed charges. Fixed charges are
defined as interest expense and the portion of net rental expense
estimated to be representative of the interest factor.
<PAGE> 1
EXHIBIT 12(B)
STATEMENT RE COMPUTATION OF RATIOS OF EARNINGS
TO FIXED CHARGES AND DIVIDENDS ON PREFERRED
STOCK
<TABLE>
<CAPTION>
Three Months
Ended March 31, Year ended December 31,
-------------- ----------------------
(dollars in thousands) 1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Interest expense $314,875 $307,342 $1,311,676 $890,605 $681,554 $836,035 $1,233,258
Portion of net rental expense estimated to be
representative of the interest factor 4,005 3,671 14,737 14,638 14,098 13,530 12,389
-------- -------- ---------- ---------- ---------- ---------- ----------
Fixed charges 318,880 311,013 1,326,413 905,243 695,652 849,565 1,245,647
Income before income taxes 179,214 151,609 625,694 582,095 488,575 329,035 385,035
-------- -------- ---------- ---------- ---------- ---------- ----------
Income before income taxes and fixed
charges $498,094 $462,622 $1,952,107 $1,487,338 $1,184,227 $1,178,600 $1,630,682
Fixed charges 318,880 311,013 1,326,413 905,243 695,652 849,565 1,245,647
Pre-tax earnings required to cover preferred
stock dividends 0 0 0 0 60 4,944 4,962
--------- -------- ---------- ---------- ---------- ---------- -----------
$318,880 $311,013 $1,326,413 $905,243 $695,712 $854,509 $1,250,609
Consolidated ratio of earnings to combined
fixed charges and preferred stock dividends
(including interest on deposits) 1.56 x 1.49 x 1.47 x 1.64 x 1.70 x 1.38 x 1.30 x
======== ======== ========== ========== ========== ========== =========
Interest expense $314,875 $307,342 $1,311,676 $890,605 $681,554 $836,035 $1,233,258
Less: Interest on deposits (180,890) (171,825) (721,475) (542,727) (529,802) (706,873) (1,033,145)
Portion of net rental expense estimated to be
representative of the interest factor 4,005 3,671 14,638 14,638 14,098 13,530 12,389
-------- -------- ---------- ---------- ---------- ---------- ----------
Fixed charges excluding interest on deposits 137,990 139,188 604,839 362,516 165,850 142,692 212,502
Income before income taxes 179,214 151,609 625,694 582,095 488,575 329,035 385,035
-------- -------- ---------- ---------- ---------- ---------- ----------
Income before income taxes and fixed
charges $317,204 $290,797 $1,230,533 $944,611 $654,425 $471,727 $597,537
Fixed charges 137,990 139,188 604,839 362,516 165,850 142,692 212,502
Pre-tax earnings required to cover preferred
stock dividends 0 0 0 0 60 4,944 4,962
--------- -------- ---------- ---------- ---------- ---------- ----------
$137,990 $139,188 $604,839 $362,516 $165,910 $147,636 $217,464
Consolidated ratio of earnings to combined
fixed charges and preferred stock dividends
(excluding interest on deposits) 2.30 x 2.09 x 2.03 x 2.61 x 3.94 x 3.20 x 2.75 x
======== ======== ========== ========== ========== ========== =========
</TABLE>
* The ratio of earnings to combined fixed charges and preferred stock
dividends is computed by dividing income before income taxes and fixed
charges by fixed charges and pre-tax earnings required to cover preferred
stock dividends. Fixed charges are defined as interest expense and the
portion of net rental expense estimated to be representative of the
interest factor.
<PAGE> 1
[ERNST & YOUNG LLP LETTERHEAD]
Exhibit 23(a)
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related prospectuses of Comerica
Incorporated for the registration of up to $600,000,000 in the aggregate of
Subordinated Debt Securities and Preferred Stock and the incorporation by
reference therein of our report dated January 16, 1996 with respect to the
consolidated financial statements of Comerica Incorporated incorporated by
reference in the Company's Annual Report on Form 10-K, for the year ended
December 31, 1995, filed with the Securities and Exchange Commission.
Ernst & Young LLP
May 16, 1996
