Comerica Incorporated Floating Rate Senior Notes due 2010 Underwriting Agreement
Exhibit 99.1
$150,000,000
Comerica Incorporated
Floating Rate Senior Notes due 2010
July 24, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
Barclays Capital Inc.
As representative of the several Underwriters
Barclays Capital Inc.
As representative of the several Underwriters
| c/o | Banc of Americas Securities LLC ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ |
Ladies and Gentlemen:
Comerica Incorporated, a Delaware corporation (the “Company”), proposes to sell to the
underwriters named in Schedule 1 hereto (the “Underwriters”), for whom you are acting as
representatives (the “Representatives”), $150,000,000 of its Floating Rate Senior Notes due 2010
(the “Securities”) to be issued under an indenture, dated as of July 15, 2007 between the Company
and The Bank of New York, as trustee (the “Trustee”).
The Company hereby confirms its agreement with the several Underwriters concerning the
purchase and sale of the Securities, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), an automatic
shelf registration statement on Form S-3 (File No. 333-138924) including a prospectus, for the
registration under the Securities Act of the Securities. Such registration statement, as amended
at the time it becomes effective, including the information, if any, deemed pursuant to Rule 430A,
430B or 430C under the Securities Act to be part of the registration statement at the time of its
effectiveness (“Rule 430 Information”), is referred to herein as the “Registration Statement”; and
as used herein, the term “Preliminary Prospectus” means each prospectus included in such
registration statement (and any amendments thereto) before it becomes effective, any prospectus
filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus
included in the Registration Statement at the time of its effectiveness that omits Rule 430
Information, and the term “Prospectus” means the prospectus in the form first used (or made
available upon request of the Underwriters pursuant to Rule 173 under the Securities Act) in
connection with confirmation of sales of the Securities. If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration
Statement”), then any reference herein to the term
“Registration Statement” shall be deemed to include such Rule 462 Registration Statement. Any
reference in this Agreement to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case
may be and any reference to “amend”, “amendment” or “supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) that are
deemed to be incorporated by reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the time when sales of the Securities were first made (the “Time of
Sale”), the Company had prepared the following information (collectively, the “Time of Sale
Information”): the Preliminary Prospectus dated July 24, 2007, and each “free-writing prospectus”
(as defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto as constituting
part of the Time of Sale Information.
2. Purchase of the Securities by the Underwriters. (a) Subject to the
terms and conditions and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly,
to purchase from the Company, the aggregate principal amount of the Securities set forth opposite
such Underwriter’s name in Schedule 1 hereto at a purchase price of 99.800% of the aggregate
principal amount thereof, plus any accrued and unpaid interest thereon.
(b) The Company understands that the Underwriters intend to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in the judgment of the
Representatives is advisable, and initially to offer the Securities on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell
Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and
sell Securities purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Securities will be made at the offices of Mayer, Brown,
▇▇▇▇ & Maw LLP at 10:00 A.M., New York City time, on July 27, 2007, or at such other time or place
on the same or such other date, not later than the fifth business day thereafter, as the
Representatives and the Company may agree upon in writing. The time and date of such payment and
delivery is referred to herein as the “Closing Date”.
(d) Payment for the Securities shall be made by wire transfer in immediately available funds
to the account(s) specified by the Company to the Representatives against delivery of the
Securities in the form of one or more permanent global securities in definitive form deposited with
or on behalf of The Bank of New York as custodian for The Depository Trust Company (“DTC”) for
credit to the respective accounts of the Underwriters and registered in the name of Cede & Co., as
nominee for DTC. Interests in the permanent global securities
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will be held only in book-entry form through DTC, except in the limited circumstances described in
the Prospectus.
(e) The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect to the offering of
Securities contemplated hereby (including in connection with determining the terms of the offering)
and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, neither the Representatives nor any other Underwriter is advising the Company or any
other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company. The Company agrees that it will not
claim that the Underwriters have rendered advisory services of any nature or respect, or owe an
agency or fiduciary duty to the Company, in connection with the purchase and sale of the Securities
pursuant to this Agreement or the process leading to such purchase and sale.
3. Representations and Warranties. The Company represents and warrants to each
Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with the Securities Act and did 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; provided that Company makes no representation or warranty
with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in any Preliminary Prospectus.
(b) Time of Sale Information. The Time of Sale Information, at the Time of Sale did not, and
at the Closing Date will not, contain any untrue statement of a
material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that Company makes no
representation or warranty with respect to any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in such Time of Sale Information. No
statement of material fact included in the Prospectus has been omitted from the Time of Sale
Information and no statement of material fact included in the Time of Sale Information that is
required to be included in the Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. The Company (including its agents and representatives,
other than the Underwriters in their capacity as such) has not prepared, made,
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used, authorized, approved or referred to and will not prepare, make, use, authorize, approve
or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or solicitation of an offer to buy the Securities (each such
communication by the Company or its agents and representatives (other than a communication referred
to in clauses (i) (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any
document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or
Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the
documents listed on Annex A hereto as included the Time of Sale Information and (v) any electronic
road show or other written communications, in each case approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with
the Securities Act, has been or will be (within the time period specified in Rule 433) filed in
accordance with the Securities Act (to the extent required thereby) and, when taken together with
the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free
Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided that
the Company makes no representation or warranty with respect to any statements or omissions made in
each such Issuer Free Writing Prospectus in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in any Issuer Free Writing Prospectus.
(d) Registration Statement and Prospectus. The Registration Statement is an “automatic shelf
registration statement” as defined under Rule 405 of the Securities Act that has been filed with
the Commission not earlier than three years prior to the date hereof; and no notice of objection of
the Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order
suspending the effectiveness of the Registration Statement has been issued by the Commission and no
proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or
related to the offering has been initiated or threatened by the Commission; as of the applicable
effective date of the Registration Statement and any amendment thereto, the Registration Statement
complied and will comply in all material respects with the Securities Act and the Trust Indenture
Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively,
the “Trust Indenture Act”), and did not and will 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 not misleading; and as of the date of the Prospectus and any amendment or
supplement thereto and as of the Closing Date, the Prospectus will 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; provided that the Company makes no representation or warranty with respect
to any statements or omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through the Representatives
expressly for use in the Registration Statement and the Prospectus and any amendment or supplement
thereto.
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(e) Incorporated Documents. The documents incorporated by reference in the Registration
Statement, the Prospectus and the Time of Sale Information, when they were filed with the
Commission, conformed in all material respects to the requirements of the Exchange Act, and none of
such documents contained any 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, in the light of the
circumstances under which they were made, not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement, the Prospectus or the Time of Sale
Information, 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 or the Exchange
Act, as applicable, and will not contain any 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, in the
light of the circumstances under which they were made, not misleading.
(f) Organization and Good Standing of the Company. The Company has been duly organized and
is validly existing and in good standing under the laws of the State of Delaware, is duly qualified
to do business and is in good standing in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, and has all power and
authority necessary to own or hold its properties and to conduct the businesses in which it is
engaged, except where the failure to be so qualified, in good standing or have such power or
authority would not, individually or in the aggregate, reasonably be expected to have a material
adverse effect on the financial condition, business or results of operations of the Company and its
subsidiaries taken as a whole or on the performance by the Company of its obligations under the
Securities (a “Material Adverse Effect”).
(g) Organization and Good Standing of Significant Subsidiaries. Each significant subsidiary
(as defined in Regulation S-X promulgated by the Commission) of the Company (each a “Significant
Subsidiary”) has been duly organized and is validly existing and in good standing under the laws of
its jurisdictions of organization, is duly qualified to do business and is in good standing in each
jurisdiction in which its ownership or lease of property or the conduct of its business requires
such qualification, and has all power and authority necessary to own or hold its properties and to
conduct its business in which it is engaged, except where the failure to be so qualified, in good
standing or have such power or authority would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; all of the issued and outstanding capital stock of each
Significant Subsidiary of the Company has been duly authorized and validly issued and is fully paid
and non-assessable (except as provided by 12 ▇.▇.▇. §▇▇ or any comparable provision of applicable
state law); and the capital stock of each Significant Subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and defects other than such liens,
encumbrances and defects which would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(h) Capitalization. The Company has an authorized capitalization as set forth in the
Registration Statement, the Time of Sale Information and the Prospectus under the heading
“Capitalization” and all the outstanding shares of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable.
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(i) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
(j) Indenture. The Indenture has been duly authorized and, when executed and delivered by the
Company, assuming due execution and delivery thereof by the Trustee, will constitute a valid and
legally binding agreement of the Company enforceable against the Company in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws of general applicability relating to or affecting creditors’
rights and to general equitable principles, and will conform in all material respects to the
description thereof contained in the Time of Sale Information and the Prospectus.
(k) Securities. The Securities have been duly authorized and, when duly executed,
authenticated and delivered as provided in the Indenture and paid for on the Closing Date, will be
duly and validly issued and outstanding and will constitute valid and legally binding obligations
of the Company entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws of general applicability relating to
or affecting creditors’ rights and to general equitable principles; and the Securities, when issued
and delivered, will conform in all material respects to the description thereof contained in the
Time of Sale Information and the Prospectus. The Indenture has been duly qualified under the Trust
Indenture Act.
(l) Accuracy of Statements. The statements set forth in the Time of Sale Information and the
Prospectus under the captions “Description of the Notes,” insofar as they are descriptions of
contracts, agreements or other legal documents or describe Federal statutes, rules and regulations,
and under the caption “Underwriting,” insofar as they purport to describe the provisions of the
documents referred to therein, constitute an accurate summary of the matters set forth therein in
all material respects.
(m) No Conflicts. The execution, delivery and performance by the Company of this Agreement,
the Indenture and the Securities (collectively, the “Transaction Documents”), the issuance and sale
of the Securities and compliance by the Company with the terms thereof and the consummation of the
transactions contemplated hereby and thereby will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, (ii) result in any
violation of the provisions of the charter or by-laws or similar organizational documents of the
Company or (iii) result in the violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority, except, in the case
of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(n) No Consents Required. No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of each of the Transaction
Documents, the issuance and sale of the Securities and compliance by the Company with the terms
thereof and the consummation of the transactions contemplated by the Transaction Documents, except
for the registration of the Securities under the Securities Act and such consents, approvals,
authorizations, orders and registrations or qualifications as may be required under applicable
state securities laws in connection with the purchase and distribution of the Securities by the
Underwriters.
(o) Legal Proceedings. Except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; and, to the best of the Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(p) Financial Statements. The financial statements of the Company and the related notes
thereto included or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus comply in all material respects with the applicable requirements of
the Securities Act and the Exchange Act, as applicable, and present fairly the financial position
of the Company and its subsidiaries as of the dates indicated and the results of their operations
and the changes in their cash flows for the periods specified; such financial statements have been
prepared in conformity with generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby, and the supporting schedules included or incorporated by
reference in the Registration Statement present fairly the information required to be stated
therein; and the other financial information included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus has been derived from the
accounting records of the Company and its subsidiaries and presents fairly the information shown
thereby.
(q) Independent Accountants. Ernst & Young, LLP, who have certified certain financial
statements of the Company and its subsidiaries is an independent registered public accounting firm
with respect to the Company and its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as
required by the Securities Act.
(r) No Material Adverse Change. Except as otherwise disclosed in the Registration
Statement, the Time of Sale Information and the Prospectus, since the date of the latest
financial statements included or incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus, there has not been any material adverse change in the
financial condition, business or results of operations of the Company and its subsidiaries taken as
a whole.
(s) No Violation or Default. The Company is not (i) in violation of its charter or
by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with
notice or lapse of time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any indenture, mortgage, deed of
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trust, loan agreement or other agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the property or assets of the Company is subject; or
(iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii)
above, for any such default or violation that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(t) Investment Company Act. The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described in the Registration
Statement, the Time of Sale Information and the Prospectus, will not be an “investment company”
required to be registered under the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “Investment Company Act”).
(u) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. There is and has been no failure on the part of the Company or any of
the Company’s directors or officers, in their capacities as such, to comply with any provision of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in connection therewith
(the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), including Section 402 related to loans and Sections 302 and 906 related
to certifications.
(v) Status under the Securities Act. The Company is not an ineligible issuer and is a
well-known seasoned issuer, in each case as defined under the Securities Act, in each case at the
times specified in the Securities Act in connection with the offering of the Securities. As of the
Closing Date, the Company will have paid the registration fee for this offering pursuant to Rule
457 under the Securities Act.
(w) Bank Holding Company Act. The Company is duly registered as a bank holding company and
qualified as a financial holding company under the Bank Holding Company Act of 1956, as amended
(the “BHC Act”).
(x) Deposit Insurance. The deposit accounts of each of the Company’s bank subsidiaries are
insured by the Federal Deposit Insurance Corporation (the “FDIC”) to the fullest extent permitted
by law and the rules and regulations of the FDIC; and no proceedings for the termination of such
insurance are pending or, to the best of the Company’s knowledge, threatened.
(y) Absence
of Consent Decrees. Neither the Company nor any of its subsidiaries is party
to or otherwise the subject of any consent decree, memorandum of understanding, written commitment
or other written supervisory agreement with the Board of Governors of the Federal Reserve System or
any other federal or state authority or agency charged with the supervision or insurance of
depository institutions or their holding companies.
(z) Internal Controls. The Company maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) designed by, or under
the supervision of, the Company’s principal executive officer and principal financial officer to
provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted
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accounting principles. The Company’s internal control over financial reporting was effective
as of December 31, 2006, and the Company was not aware of any material weaknesses in its internal
control over financial reporting at such time.
(aa) Disclosure Controls and Procedures. The Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the
requirements of the Exchange Act; such disclosure controls and procedures have been designed to
ensure that material information relating to the Company and its subsidiaries is made known to the
Company’s principal executive officer and principal financial officer by others within those
entities; and such disclosure controls and procedures are effective.
(bb) Money Laundering Laws To the Company’s knowledge, the operations of the Company and its
subsidiaries are currently in compliance with applicable financial record keeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all United States jurisdictions, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency in the United States (collectively, the “Money Laundering Laws”), except where
the failure to so comply would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; and no formal action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened that would, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(cc) OFAC. None of the Company, any of its subsidiaries or, to the knowledge of the Company,
any director, officer, agent, employee of the Company or any of its affiliates or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will not use the
proceeds of the offering of the Securities or the Junior Subordinated Debentures hereunder, or
lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC, it being acknowledged and agreed that
the Company intends to use the proceeds of the offering to redeem outstanding subordinated notes
from Cede & Co., Inc., which holds such subordinated notes as the registered holder of such
securities on behalf of The Depository Trust Company.
(dd) Business With Cuba. The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
4. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Required Filings. The Company will provide to counsel for the Underwriters one manually
executed copy of the Registration Statement, including all exhibits thereto, in the form it became
effective and all amendments thereto. Prior to the Closing Date, the Company will not file any
amendment of the Registration Statement or supplement (including the Prospectus) to
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the Preliminary Prospectus unless the Company has furnished the Underwriters a copy for their
review prior to filing and will not file any such proposed amendment or supplement to which the
Underwriters do not reasonably object promptly after notice thereof. Neither the Representatives’
consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6 hereof. The Company will promptly advise
the Representatives (i) when the Prospectus shall have been filed with the Commission pursuant to
Rule 424(b), (ii) when any amendment to the Registration Statement relating to the Securities shall
have become effective, (iii) of any request by the Commission for any amendment of the Registration
Statement or amendment of or supplement to the Prospectus or for any additional information, (iv)
of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement, or of any notice that would prevent its use, or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose. In the event of
the issuance of any stop order preventing or suspending the use of any Preliminary Prospectus or
Prospectus, the Company will promptly use their best efforts to obtain the withdrawal of such stop
order.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the Representatives,
two signed copies of the Registration Statement as originally filed and each amendment thereto, in
each case including all exhibits and consents filed therewith and documents incorporated by
reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement
as originally filed and each amendment thereto, in each case including all exhibits and consents
filed therewith and (B) during the Prospectus Delivery Period (as defined below), as many copies of
the Prospectus (including all amendments and supplements thereto and documents incorporated by
reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably
request. As used herein, the term “Prospectus Delivery Period” means such period of time after the
first date of the public offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law to be delivered (or
required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the
Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Before making, preparing,
using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and
before filing any amendment or supplement to the Registration Statement or the Prospectus, whether
before or after the time that the Registration Statement becomes effective the Company will furnish
to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing
Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve,
refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or
supplement to which the Representatives reasonably objects.
(d) Notice to the Representatives. The Company will advise the Representatives promptly, and
confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed
or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus
or any Issuer Free Writing Prospectus has been filed; (iii) of any
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request by the Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or the receipt of any comments from the Commission relating to the
Registration Statement or any other request by the Commission for any additional information; (iv)
of the issuance by the Commission of any order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or
the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the
Securities Act; (v) of the occurrence of any event within the Prospectus Delivery Period as a
result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus
as then amended or supplemented would include 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 existing when the Prospectus, the Time of Sale
Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading;
(vi) of the receipt by the Company of any notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Securities Act; and (viii) of the receipt by the Company of any notice with respect to any
suspension of the qualification of the Securities for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and the Company will use its
reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of
the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification of the Securities and, if any such order is issued,
will obtain as soon as possible the withdrawal thereof.
(e) Time of Sale Information. If at any time prior to the Closing Date (i) any event shall
occur or condition shall exist as a result of which the Time of Sale Information as then amended or
supplemented would include any 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, not
misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply
with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to
the Underwriters and to such dealers as the Representatives may designate, such amendments or
supplements to the Time of Sale Information as may be necessary so that the statements in the Time
of Sale Information as so amended or supplemented will not, in the light of the circumstances, be
misleading or so that the Time of Sale Information will comply with law.
(f) Ongoing Compliance. If during the Prospectus Delivery Period (i) any event shall occur or
condition shall exist as a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it
is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately
notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file
with the Commission and furnish to the Underwriters and to such dealers as the Representatives may
designate, such amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the
11
light of the circumstances existing when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law
(g) Blue Sky Compliance. The Company will qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request
and will continue such qualifications in effect so long as required for distribution of the
Securities; provided that the Company shall not be required to (i) qualify as a foreign
corporation or other entity or as a dealer in securities in any such jurisdiction where it would
not otherwise be required to so qualify, (ii) file any general consent to service of process in any
such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not
otherwise so subject.
(h) Earning Statement. The Company will make generally available to the holders of the
Securities and the Representatives as soon as practicable an earning statement that satisfies the
provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder covering a period of at least twelve months beginning with the first fiscal quarter of
the Company occurring after the “effective date” (as defined in Rule 158) of the Registration
Statement.
(i) Clear Market. During the period from the date hereof through and including the business
day following the Closing Date, the Company will not, without the prior written consent of the
Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities issued
by the Company or guaranteed by the Company and having a tenor of more than one year.
(j) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities
as described in the Registration Statement, the Time of Sale Information and the Prospectus under
the heading “Use of Proceeds”.
(k) No Stabilization. The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Securities.
(l) Record Retention. The Company will, pursuant to reasonable procedures developed in good
faith, each retain copies of each Issuer Free Writing Prospectus that is not filed with the
Commission in accordance with Rule 433 under the Securities Act.
(m) Clearance and Settlement. The Company will cooperate with the Representatives and use all
commercially reasonable efforts to permit the Securities to be eligible for clearance and
settlement through DTC.
(n) Expenses. The Company will pay all expenses incident to the performance of its
obligations under this Agreement, for any filing fees or other expenses (including fees and
disbursements of counsel) in connection with qualification of the Securities for sale and
determination of their eligibility for investment under the laws of such jurisdictions as the
Representatives may designate and the printing of memoranda relating thereto, for any fees charged
by investment rating agencies for the rating of the Securities, for
any travel expenses of
12
the Company’s officers and employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of Securities and for expenses incurred
in distributing any Preliminary Prospectus, any Free Writing Prospectuses or the Prospectus. The
Company will also pay all fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Securities;.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that, solely as a result of use by such
underwriter, would not trigger an obligation to file such free writing prospectus with the
Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex A or
prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or
(iii) any free writing prospectus prepared by such underwriter and approved by the Company in
advance in writing. Notwithstanding the foregoing, the Underwriters may use a term sheet
substantially in the form of Annex B hereto without the consent of the Company.
(b) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
6. Conditions of Underwriters; Obligations. The obligation of each Underwriter to
purchase Securities on the Closing Date as provided herein is subject to the performance by the
Company of its covenants and other obligations hereunder and to the following additional
conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule
401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened
by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely
filed with the Commission under the Securities Act (in the case of a Issuer Free Writing
Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with
Section 4(a) hereof; and all requests by the Commission for additional information shall have been
complied with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of each of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing Date;
and the statements of each of the Company and its officers, as applicable, made in any certificates
delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
13
(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and
delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the
Securities or any other debt securities or preferred stock of the Company or guaranteed by the
Company or any of its subsidiaries by any “nationally recognized statistical rating organization”,
as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act
and (ii) no such organization shall have publicly announced that it has under surveillance or
review, or has changed its outlook with respect to, its rating of the Securities or of any other
debt securities or preferred stock of the Company or guaranteed by the Company or any of its
subsidiaries (other than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3(r)
hereof shall have occurred or shall exist, which event or condition is not described in the Time of
Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any
amendment or supplement thereto) and the effect of which in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the
Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Prospectus.
(e) Officer’s Certificate. The Representatives shall have received on and as of the Closing
Date a certificate signed by an executive officer of the Company who has specific knowledge of the
Company’s financial matters and is satisfactory to the Representatives (i) confirming that such
officer has carefully reviewed the Registration Statement, the Time of Sale Information and the
Prospectus and, to the best knowledge of such officer, the representations and warranties of the
Company in this Agreement are true and correct and that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date, Ernst & Young,
LLP shall have furnished to the Representatives, at the request of the Company, letters, dated the
respective dates of delivery thereof and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Representatives, containing statements and information of the type
customarily included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained or incorporated by reference in
the Registration Statement, the Time of Sale Information and the Prospectus; provided that
the letter delivered on the Closing Date shall use a “cut-off” date no more than three business
days prior to the Closing Date.
(g) Opinion of Counsel for the Company. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., inside counsel for the
Company, shall have furnished to the Representatives, at the request of the Company, his written
opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representatives, to the effect set forth in Exhibit A hereto.
(h) Opinion of Counsel for the Underwriters. The Representatives shall have received on and
as of the Closing Date an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel
14
for the Underwriters, with respect to such matters as the Representatives may reasonably
request, and such counsel shall have received such documents and information as they may reasonably
request to enable them to pass upon such matters.
(i) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or
sale of the Securities; and no injunction or order of any federal, state or foreign court shall
have been issued that would, as of the Closing Date, prevent the issuance or sale of the
Securities.
(j) Good Standing. The Representatives shall have received on and as of the Closing Date
satisfactory evidence of the good standing of the Company in its jurisdiction of organization and
its good standing in such other jurisdictions as the Representatives may reasonably request, in
each case in writing or any standard form of telecommunication from the appropriate governmental
authorities of such jurisdictions.
(k) Additional Documents. On or prior to the Closing Date, the Company shall have furnished
to the Representatives such further certificates and documents as the Representatives may
reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to make the statements
therein, not misleading, (ii) or any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus or any Time of Sale Information, or caused by any omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein (it being understood and agreed that the only
such information consists of the information
15
provided in the seventh, eighth and ninth paragraphs in the section entitled “Underwriting” in the
Time of Sale Information and the Prospectus).
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, and each of its directors and officers who signed the
Registration Statement and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any information relating
to such Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment
or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information (it
being understood and agreed that the only such information consists of the information provided in
the seventh, eighth and ninth paragraphs in the section entitled “Underwriting” in the Time of Sale
Information and the Prospectus).
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under this Section 7 except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this Section 7. If any
such proceeding shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified
Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others
entitled to indemnification pursuant to Section 7 that the Indemnifying Party may designate in such
proceeding and shall pay the fees and expenses of such proceeding and shall pay the fees and
expenses of counsel related to such proceeding, as incurred. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person
and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those available to the
Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interest
between them. It is understood and agreed that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and
16
expenses shall be reimbursed as they are incurred. Any such separate firm for any
Underwriter, its affiliates, directors and officers and any control persons of such Underwriter
shall be designated in writing by the Representatives and any such separate firm for the Company,
or its directors and officers who signed the Registration Statement or any control persons of the
Company shall be designated in writing by the Company. The Indemnifying Person shall not be liable
for any settlement of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify each Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable
for any settlement of any proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii)
the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and indemnification could
have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an
unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject matter of such
proceeding and (y) does not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is 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 (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or liabilities, 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 shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the Company from the sale
of the Securities and the total underwriting discounts and commissions received by the Underwriters
in connection therewith, in each case as set forth in the table on the cover of the Prospectus,
bear to the aggregate offering price of the Securities. The relative fault of the Company on the
one hand and the Underwriters on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company or by the
Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
17
(e) Limitation on Liability. The Company and the Underwriters each agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total underwriting discounts and commissions received by such
Underwriter with respect to the offering of the Securities exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations
to contribute pursuant to this Section 7 are several in proportion to their respective purchase
obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company, if after the execution and delivery of this Agreement
and prior to the Closing Date (i) trading generally shall have been suspended or materially limited
on the New York Stock Exchange or the over-the-counter market; (ii) trading of any securities
issued or guaranteed by the Company shall have been suspended on any exchange or in any
over-the-counter market; (iii) a general moratorium on commercial banking activities shall have
been declared by federal or New York State authorities; or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis,
either within or outside the United States, that, in the judgment of the Representatives, is
material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale
or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the
Time of Sale Information and the Prospectus.
10. Defaulting Underwriter. (a) If, on the Closing Date, any Underwriter defaults on
its obligation to purchase the Securities that it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by
other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36
hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for
the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase
such Securities on such terms. If other persons become obligated or
18
agree to purchase the Securities of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company postpone the Closing Date for up to five full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters
may be necessary in the Registration Statement and the Prospectus or in any other document or
arrangement, and the Company each agree to promptly prepare any amendment or supplement to the
Registration Statement and the Prospectus that effects any such changes. As used in this
Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context
otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10,
purchases Securities that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities,
then the Company shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities that such Underwriter agreed to purchase hereunder plus such
Underwriter’s pro rata share (based on the principal amount of Securities that such
Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the
Company shall not exercise the right described in paragraph (b) above, then this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters. Any termination of
this Agreement pursuant to this Section 10 shall be without liability on the part of the Company,
except that the Company, as the case may be, will continue to be liable for the payment of expenses
as set forth in Section 11 hereof and except that the provisions of Section 7 hereof shall not
terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses. (a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company, in any proportion as may be
agreed between such parties, will pay or cause to be paid all costs and expenses incident to the
performance of their obligations hereunder, including without limitation, (i) the costs incident to
the authorization, issuance, sale, preparation and delivery of the Securities and any taxes payable
in that connection; (ii) the costs incident to the preparation, printing and filing under the
Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing
Prospectus, any Time of Sale Information and the Prospectus (including all exhibits, amendments and
supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing
each of the Transaction Documents; (iv) the fees and expenses of the Company’s counsel and
independent accountants; (v) the fees and expenses incurred in connection with the registration or
qualification and determination of eligibility for investment of the Securities under
19
the laws of such jurisdictions as the Representatives may designate and the preparation, printing
and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for
the Underwriters); (vi) any fees charged by rating agencies for rating the Securities; (vii) the
fees and expenses of the Trustee and any paying agent (including related fees and expenses of any
counsel to such parties); (viii) all expenses and application fees incurred in connection with any
filing with, and clearance of the offering by, the National Association of Securities Dealers,
Inc.; and (ix) all expenses incurred by the Company in connection with any “road show” presentation
to potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason
fails to tender the Securities for delivery to the Underwriters or (iii) the Underwriters decline
to purchase the Securities for any reason permitted under this Agreement, the Company agrees to
reimburse the Underwriters for all out-of-pocket costs and expenses (including the fees and
expenses of their counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to herein, and the affiliates of each
Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No purchaser of Securities from any
Underwriter shall be deemed to be a successor merely by reason of such purchase.
13. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this Agreement or made
by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Company or the Underwriters.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act.
15. Miscellaneous. (a) Authority of the Representatives. Any action by the
Underwriters hereunder may be taken by the Representatives. on behalf of the Underwriters, and any
such action taken by the Representatives shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard
form of telecommunication. Notices to the Underwriters shall be given to the Representatives at
Banc of America Securities LLC, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Facsimile:
▇▇▇- ▇▇▇-▇▇▇▇, Attention: High Grade Transaction Management/Legal and Barclays Capital Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Fixed Income Syndicate, fax: 212-412-
20
7305, telephone: ▇▇▇-▇▇▇-▇▇▇▇. Notices to the Company shall be given at Comerica Tower at Detroit
Center, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇); Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
21
If the foregoing is in accordance with your understanding, please indicate your acceptance of this
Agreement by signing in the space provided below.
| Very truly yours, COMERICA INCORPORATED |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted: July 24, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SECURITIES LLC
BARCLAYS CAPITAL INC.
BARCLAYS CAPITAL INC.
BY: BANC OF AMERICA SECURITIES LLC
| By: | ||||
| Name: | ||||
| Title: | ||||
| BY: BARCLAYS CAPITAL INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
several Underwriters listed
in Schedule 1 hereto.
22
Schedule 1
| Aggregate Principal | ||||
| Underwriter | Amount of Securities | |||
Banc of America Securities LLC |
$ | 64,500,000 | ||
Barclays Capital Inc. |
$ | 64,500,000 | ||
Comerica Securities, Inc. |
$ | 10,500,000 | ||
Sandler, ▇’▇▇▇▇▇ & Partners, L.P. |
$ | 10,500,000 | ||
Total |
$ | 150,000,000 | ||
S-1
Annex A
Time of Sale Information
Final Term Sheet with respect to the Securities dated July 24, 2007 prepared pursuant to Section
5(a) of this Agreement.
Comerica Incorporated
Summary of Terms for Issuance
| Issuer: | Comerica Incorporated. | |
| Ranking: | Senior Notes | |
| Ratings: | A2 /A / A+ (stable / stable / stable) | |
| Principal Amount: | $150,000,000 | |
| Minimum Denominations: | $2,000 | |
| Minimum Increments: | $1,000 | |
| Pricing Date: | July 24, 2007 | |
| Settlement Date: | July 27, 2007 | |
| Maturity Date: | July 27, 2010 | |
| Interest Payment Dates: | Pay quarterly on the 27th of each January, April, July and October, beginning | |
| October 27, 2007 or next business day; modified following business | ||
| convention using New York and London business days. Interest accrues up to | ||
| but not including payment dates. | ||
| Reference Benchmark: | 3 Month LIBOR | |
| Spread to Benchmark: | 17 bps | |
| Reoffer Yield: | 3 Month LIBOR + 17bps | |
| Coupon: | 3 Month LIBOR + 17bps | |
| Price to Public (%): | 100.000% | |
| CUSIP | 200340 AM 9 | |
| ISIN: | US200340AM90 | |
| Book-Running Managers (Underwriting Amount): | Banc of America Securities LLC and Barclays Capital Inc. (43%) | |
| Co-Managers (Underwriting Amount): | Comerica Securities, Inc. and Sandler, ▇’▇▇▇▇▇ & Partners, L.P. (7%) |
The issuer has filed a registration statement (including a prospectus) with the SEC for
the offering to which this communication relates. Before you invest, you should read the prospectus
in that registration statement and other documents the issuer has filed with the SEC for more
complete information about the issuer and this offering. You may get these documents for free by
visiting ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, Banc of America
Securities LLC or Barclays Capital can arrange to send you the prospectus if you request it by
calling or e-mailing Banc of America Securities LLC at 1-800-294-1322 or dg.prospectus
▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or calling Barclays Capital at ▇-▇▇▇-▇▇▇-▇▇▇▇, extension 2663.
Annex A-1
Annex B
Filed under Rule 433
File Nos. 333-138924
July 24, 2007
File Nos. 333-138924
July 24, 2007
Comerica Incorporated
Summary of Terms for Issuance
| Issuer: | Comerica Incorporated. | |
| Ranking: | Senior Notes | |
| Ratings: | A2 /A / A+ (stable / stable / stable) | |
| Principal Amount: | $150,000,000 | |
| Minimum Denominations: | $2,000 | |
| Minimum Increments: | $1,000 | |
| Pricing Date: | July 24, 2007 | |
| Settlement Date: | July 27, 2007 | |
| Maturity Date: | July 27, 2010 | |
| Interest Payment Dates: | Pay quarterly on the 27th of each January, April, July and October, beginning | |
| October 27, 2007 or next business day; modified following business | ||
| convention using New York and London business days. Interest accrues up to | ||
| but not including payment dates. | ||
| Reference Benchmark: | 3 Month LIBOR | |
| Spread to Benchmark: | 17 bps | |
| Reoffer Yield: | 3 Month LIBOR + 17bps | |
| Coupon: | 3 Month LIBOR + 17bps | |
| Price to Public (%): | 100.000% | |
| CUSIP | 200340 AM 9 | |
| ISIN: | US200340AM90 | |
| Book-Running Managers (Underwriting Amount): | Banc of America Securities LLC and Barclays Capital Inc. (43%) | |
| Co-Managers (Underwriting Amount): | Comerica Securities, Inc. and Sandler, ▇’▇▇▇▇▇ & Partners, L.P. (7%) |
The issuer has filed a registration statement (including a prospectus) with the SEC for
the offering to which this communication relates. Before you invest, you should read the prospectus
in that registration statement and other documents the issuer has filed with the SEC for more
complete information about the issuer and this offering. You may get these documents for free by
visiting ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, Banc of America
Securities LLC or Barclays Capital can arrange to send you the prospectus if you request it by
calling or e-mailing Banc of America Securities LLC at 1-800-294-1322 or dg.prospectus
▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or calling Barclays Capital at ▇-▇▇▇-▇▇▇-▇▇▇▇, extension 2663.
Annex B-1
Exhibit A
Form of Opinion of Counsel for the Company pursuant to Section 6(g)
(a) The Company has been duly organized and is validly existing and in good standing under the
laws of the State of Delaware, is duly qualified to do business and is in good standing in each
jurisdiction in which its ownership or lease of property or the conduct of its business requires
such qualification, and has all power and authority necessary to own or hold its properties and to
conduct the businesses in which it is engaged, except where the failure to be so qualified, in good
standing or have such power or authority would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect
(b) Each Significant Subsidiary of the Company has been duly organized and is validly existing
and in good standing under the laws of its jurisdictions of organization, is duly qualified to do
business and is in good standing in each jurisdiction in which its ownership or lease of property
or the conduct of its business requires such qualification, and has all power and authority
necessary to own or hold its properties and to conduct its business in which it is engaged, except
where the failure to be so qualified, in good standing or have such power or authority would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; all of
the issued and outstanding capital stock of each Significant Subsidiary of the Company has been
duly authorized and validly issued and is fully paid and non-assessable (except as provided by 12
▇.▇.▇. §▇▇ or any comparable provision of applicable state law); and the capital stock of each
Significant Subsidiary owned by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects other than such liens, encumbrances and defects which would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(c) The Company has an authorized capitalization as set forth in the Registration Statement,
the Time of Sale Information and the Prospectus under the heading “Capitalization” and all the
outstanding shares of capital stock or other equity interests of each subsidiary of the Company,
have been duly and validly authorized and issued, are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security
interest, restriction on voting or transfer or any other claim of any third party.
(d) This Agreement has been duly authorized, executed and delivered by the Company.
(e) The Indenture has been duly authorized, executed and delivered by the Company and,
assuming due execution and delivery thereof by the Trustee, constitutes a valid and legally binding
agreement of the Company enforceable against the Company in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws of general applicability relating to or affecting creditors’ rights and to general
equitable principles, and will conform in all material respects to the
Exhibit A-1
description thereof contained in the Time of Sale Information and the Prospectus. The Indenture
has been duly qualified under the Trust Indenture Act.
(f) The Securities have been duly authorized, executed and delivered by the Company and,
assuming the due authentication thereof as provided in the Indenture, constitute valid and legally
binding obligations of the Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws of general
applicability relating to or affecting creditors’ rights and to general equitable principles.
(g) The statements set forth in the Time of Sale Information and the Prospectus under the
captions “Description of the Notes, insofar as they are descriptions of contracts, agreements or
other legal documents or describe Federal statutes, rules and regulations, and under the caption
“Underwriting,” insofar as they purport to describe the provisions of the documents referred to
therein, constitute an accurate summary of the matters set forth therein in all material respects.
(h) The execution, delivery and performance by the Company of each of the Transaction
Documents, the issuance and sale of the Securities and compliance by the Company with the terms
thereof and the consummation of the transactions contemplated by the Transaction Documents will not
(i) conflict with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, (ii) result in any violation of the provisions of the charter or by-laws
or similar organizational documents of the Company or (iii) result in the violation of any law or
statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or
regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict,
breach, violation or default that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(i) No consent, approval, authorization, order, registration or qualification of or with any
court or arbitrator or governmental or regulatory authority is required for the execution, delivery
and performance by the Company of each of the Transaction Documents, the issuance and sale of the
Securities and compliance by the Company with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for the registration of the
Securities under the Securities Act and such consents, approvals, authorizations, orders and
registrations or qualifications as may be required under applicable state securities laws in
connection with the purchase and distribution of the Securities by the Underwriters.
(j) Except as described in the Registration Statement, the Time of Sale Information and the
Prospectus, there are no legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or any of
Exhibit A-2
its subsidiaries is the subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; and, to the best of such counsel’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(k) The Company is not and, after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in the Registration Statement, the Time of
Sale Information and the Prospectus, will not be an “investment company” required to be registered
under the Investment Company Act.
(l) The Company is duly registered as a bank holding company and qualified as a financial
holding company under the BHC Act.
(m) The Registration Statement is an “automatic shelf registration statement” as defined under
Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years
prior to the date of the Underwriting Agreement; each of the Preliminary Prospectus and the
Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the
Securities Act specified in such opinion on the date specified therein; and no order suspending the
effectiveness of the Registration Statement has been issued, no notice of objection of the
Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company and no
proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or
in connection with the offering is pending or, to the best knowledge of such counsel, threatened by
the Commission.
(n) The Registration Statement, the Preliminary Prospectus, each Issuer Free Writing
Prospectus included in the Time of Sale Information and the Prospectus (other than the financial
statements and related schedules therein, as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the Securities Act and the Trust
Indenture Act.
(o) The documents incorporated by reference in the Time of Sale Information and the Prospectus
or any further amendment or supplement thereto made by the Company prior to the Closing Date (other
than the financial statements and related schedules therein, as to which such counsel need express
no opinion), when they became effective or were filed with the Commission, as the case may be,
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 such counsel has no reason to believe that
any of such documents, when such documents became effective or were so filed, as the case may be
contained any untrue statement of a material fact or omitted to state a material fact necessary in
order to make the statement therein, in the light of the circumstances under which they were made
when such documents were so filed, not misleading.
Such counsel shall also state that it has participated in conferences with representatives of
the Company and with representatives of its independent accountants and representatives of the
Underwriters at which conferences the contents of the Registration Statement, the Time of Sale
Exhibit A-3
Information and the Prospectus and any amendment and supplement thereto and related matters were
discussed and, although such counsel assume no responsibility for the accuracy, completeness or
fairness of the Registration Statement, the Time of Sale Information, the Prospectus and any
amendment or supplement thereto (except as expressly provided above), nothing has come to the
attention of such counsel to cause such counsel to believe that (i) the Registration Statement, at
the time of its effective date (including the information, if any, deemed pursuant to Rule 430A,
430B or 430C to be part of the Registration Statement at the time of effectiveness), contained any
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, (ii) the Time of Sale
Information, at the Time of Sale (which such counsel may assume to be the date of the Underwriting
Agreement) contained any untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading or (iii) the Prospectus or any amendment or supplement thereto as of its date
and the Closing Date contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading (other than the financial statements and other financial information
contained therein, as to which such counsel need express no belief).
In rendering such opinion, such counsel may rely as to matters involving the application of
laws of any jurisdiction other than the State of Michigan and the Delaware General Corporation Law
or the United States, to the extent deemed proper and specified in such opinion, upon the opinion
of counsel who are satisfactory to counsel for the Underwriters.
Exhibit A-4