EXHIBIT 10.13
AMENDED AND RESTATED MAY 22, 2001
AMENDED AND RESTATED
COMERICA INCORPORATED
STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
OF COMERICA BANK AND AFFILIATED BANKS
SECTION 1. PURPOSE.
The purposes of this Stock Option Plan for Non-Employee Directors of
Comerica Bank and Affiliated Banks are to promote the continued prosperity of
Comerica Bank and other banks affiliated with Comerica Incorporated by aligning
the long-term financial interests of the recipients of options hereunder with
those of the shareholders of Comerica Incorporated, to provide an additional
incentive for such individuals to remain as directors, and to provide a means
through which Comerica Bank and other banks affiliated with Comerica
Incorporated may attract well-qualified individuals to serve as directors.
SECTION 2. DEFINITIONS.
The following words and phrases, wherever capitalized, shall have the
following meanings respectively, unless the context otherwise requires:
A. "Affiliated Bank" means Comerica Bank-Illinois, Comerica
Bank-California, Comerica Bank & Trust, F.S.B., Comerica Bank-Texas or any other
financial institution which is or becomes a member of the controlled group of
corporations within the meaning of Section 1563(a)(1) of the Code (or other
successor provision of the Code
defining the term "controlled group of corporations") of which Comerica
Incorporated is the common parent corporation.
B. "Agreement" means a written agreement which sets forth the terms and
conditions of an option grant under the Plan, including any amendment to such
written agreement. Agreements shall be subject to the express terms and
conditions set forth herein.
C. "Board" means the Board of Directors of Comerica Incorporated.
D. "Cause" means any act of (a) fraud or intentional misrepresentation,
or (b) embezzlement, misappropriation or conversion of assets or opportunities
of the Corporation or any Subsidiary.
E. "Change in Control of the Corporation" shall be deemed to have
occurred if (A) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act), other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Corporation, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Corporation representing 26% or more of the
combined voting power of the Corporation's then outstanding securities; or (B)
during any period of two consecutive years, individuals who at the beginning of
such period constitute the Board and any new director (other than a director
designated by a person who has entered into an agreement with the Corporation to
effect a transaction described in clauses (A) or (C) of this subsection) whose
election by the Board or nomination for election by the stockholders of the
Corporation was approved by a vote of at least two-thirds (2/3) of the directors
then still in office who either were directors at the beginning of the period or
whose election or
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nomination for election was previously so approved, cease for any reason to
constitute a majority thereof; or (C) the shareholders of the Corporation
approve a merger or consolidation of the Corporation with any other corporation,
other than a merger or consolidation which would result in the voting securities
of the Corporation outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) at least 75% of the combined voting power of the voting
securities of the Corporation or such surviving entity outstanding immediately
after such merger or consolidation, or the shareholders of the Corporation
approve a plan of complete liquidation of the Corporation or an agreement for
the sale or disposition of all or substantially all of its assets.
F. "Code" means the Internal Revenue Code of 1986, as amended.
G. "Comerica Bank" means Comerica Bank, a Michigan banking corporation.
H. "Committee" means the Directors Committee of the Corporation.
I. "Common Stock" means shares of $5.00 par value common stock of
Comerica Incorporated, subject to adjustment pursuant to Section 7.
J. "Corporation" means Comerica Incorporated, a Delaware corporation.
K. "Disabled" or "Disability" means unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or to be of long-continued
and indefinite duration. An individual shall not be considered to be disabled
unless he furnishes proof of the existence thereof in such form as the Committee
may require.
L. "ERISA" means the Employee Retirement Income Security Act of 1974,
as from time to time amended.
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M. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
N. "Exercise Price" means, with respect to each share of Common Stock
subject to an Option, the price at which such share may be purchased from the
Corporation pursuant to the exercise of such Option.
O. "Fair Market Value" means the closing price of the Common Stock on
the New York Stock Exchange as reported on the Composite Tape, or if it is not
listed on the New York Stock Exchange, the closing price on the exchange on
which the Common Stock is then listed, or if not listed on any exchange, then
the closing price reported on the NASDAQ National Market System over-the-counter
market; if, however, there is no trading of the Common Stock on the date in
question, then the closing price of the Common Stock, as so reported, on the
last preceding date on which there was trading shall instead be used to
determine Fair Market Value; if Fair Market Value for any date in question
cannot be determined as hereinabove provided, Fair Market Value shall be
determined by the Committee by whatever method or means the members, in the good
faith exercise of their discretion, at that time shall deem appropriate.
P. "Legal Representative" means the "guardian or legal representative"
of the optionholder as those terms are construed under the Exchange Act who,
upon the Disability or incapacity of an optionholder, shall have acquired on
behalf of the optionholder, by legal proceeding or otherwise, the right to
exercise the optionholder's rights and receive his or her benefits under the
Plan.
Q. "Non-Employee Director" means an individual who is a member of the
board of directors of Comerica Bank or any Affiliated Bank provided such
individual (i) is
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not an employee of the Corporation or of any Subsidiary of the Corporation, and
(ii) is not a director of the Corporation.
R. "Option" means the right, granted pursuant to this Plan, of a holder
to purchase shares of Common Stock at the Exercise Price. All options granted
under the Plan shall be "nonstatutory stock options," i.e., options which do not
qualify under Sections 422 or 423 of the Code.
S. "Personal Representative" means the executor, administrator or
personal representative appointed to administer the optionholder's probate
estate, or if the individual has no probate estate, then the successor
trustee(s) of any revocable living trust the individual established during his
or her lifetime.
T. "Plan" means the plan set forth herein which shall be known as the
"Amended and Restated Comerica Incorporated Stock Option Plan For Non-Employee
Directors of Comerica Bank and Affiliated Banks."
U. "Qualified Domestic Relations Order" means a "qualified domestic
relations order" as defined in the Code or in Title I of ERISA, or in rules
promulgated thereunder.
V. "Subsidiary" means any corporation of which a majority of the
outstanding voting capital stock is owned, directly or indirectly, by the
Corporation. With respect to non-corporate entities, it means any entity in
which the Corporation owns, directly or indirectly, a majority of the equity
interest.
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SECTION 3. SHARES AVAILABLE UNDER THE PLAN.
The aggregate number of shares which may be issued and as to which
grants of Options may be made under the Plan is 450,000 shares(1) of the Common
Stock, subject to adjustment as set forth in Section 7. If any Option granted
under the Plan is canceled by mutual consent or terminates or expires for any
reason without having been exercised in full, the number of shares subject
thereto shall again be available for purposes of the Plan. The shares which may
be issued under the Plan may be either authorized but unissued shares or
treasury shares or partly each.
SECTION 4. ADMINISTRATION OF THE PLAN.
The Plan shall be administered by the Directors Committee (the
"Committee"). The Committee may delegate the day-to-day administration of the
Plan to any individual or individuals it deems appropriate. The Committee shall
keep records of action taken at its meetings or by unanimous written consent. A
majority of the Committee shall constitute a quorum at any meeting, and the acts
of a majority of the members present at any meeting at which a quorum is
present, or acts approved in writing by all the members of the Committee, shall
constitute acts of the Committee.
Subject to the remaining provisions of this Section, the Committee
shall have full authority to carry out the provisions of the Plan, including
authority to interpret the Plan and prescribe such rules, regulations and
procedures in connection with the operation of the Plan as it shall deem to be
necessary and advisable for the administration of the
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(1) This number of shares reflects the 1998 "3 for 2" stock split.
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Plan consistent with the purposes of the Plan. All questions of interpretation
and application of the Plan, or as to Options granted under the Plan, shall be
subject to the determination of the Committee, which shall be final and binding.
SECTION 5. GRANT OF STOCK OPTIONS.
A. Automatic Annual Grants. On the day each annual meeting of the
shareholders of the Corporation is held, each Non-Employee Director shall
automatically and without further action by the Board or the Committee be
granted an Option to purchase 2,500 shares(2) of Common Stock, subject to
adjustment and substitution as set forth in Section 7. If the number of shares
then remaining available for the grant of Options under the Plan is not
sufficient for each Non-Employee Director to be granted an Option for 2,500
shares (or the number of adjusted or substituted shares pursuant to Section 7),
then each Non-Employee Director shall be granted an Option for a number of whole
shares equal to the number of shares then remaining available divided by the
number of Non-Employee Directors, disregarding any fractions of a share.
B. Discretionary Grants. Any Non-Employee Director shall be eligible to
receive whatever number of Options the Committee, in its sole discretion,
chooses to grant to him or her from time to time, but shall not have a right to
receive any such grants.
SECTION 6. TERMS AND CONDITIONS APPLICABLE TO OPTION GRANTS.
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(2) This number of shares reflects the 1998 "3 for 2" stock split.
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Options granted under the Plan shall be subject to the following terms
and conditions:
A. Exercise Price. The Exercise Price with respect to each share of
Common Stock covered by the Option shall be 100% of the Fair Market Value of
such share on the date the Option is granted.
B. Payment of Exercise Price. The Exercise Price for each Option shall
be paid in full upon exercise and shall be payable in cash (including check,
bank draft or money order); provided, however, that in lieu of cash, the
individual exercising the Option may pay the Exercise Price, in whole or in
part, by delivering to the Corporation shares of Common Stock having a Fair
Market Value on the date of exercise of the Option equal to the Exercise Price
of the shares being purchased except that any portion of the Exercise Price
representing a fraction of a share shall in any event be paid in cash. Delivery
of shares may also be accomplished through the effective transfer to the
Corporation of shares held by a broker or other agent. The Corporation will also
cooperate with any individual exercising an Option who participates in a
cashless exercise program of a broker or other agent under which all or part of
the shares received upon exercise of the Option are sold through the broker or
other agent or under which the broker or other agent makes a loan to such
individual. Notwithstanding the foregoing, the exercise of the Option shall not
be deemed to occur and no shares of Common Stock will be issued by the
Corporation upon exercise of the Option until the Corporation has received
payment of the Exercise Price in full. The date of exercise of an Option shall
be determined under procedures established by the Committee, and as of the date
of exercise the individual exercising the Option shall be
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considered for all purposes to be the owner of the shares with respect to which
the Option has been exercised. Payment of the Exercise Price with shares shall
not increase the number of shares of Common Stock which may be issued under the
Plan as provided in Section 3.
C. Term of Options and Vesting. No Option shall be exercisable during
the first year of its term except as provided in Section 6.E., upon the
occurrence of a Change in Control of the Corporation, or as the Committee
otherwise determines. Each Option shall be exercisable with respect to all of
the shares subject thereto from and after the first anniversary of the date of
its grant. Subject to Section 6.E. which provides for earlier termination of an
Option under certain circumstances, each Option shall expire ten years after the
date of grant. An Option, to the extent exercisable at any time, may be
exercised in whole or in part.
Notwithstanding any other provision contained in the Plan, in case any
Change in Control of the Corporation occurs, all outstanding Options shall
become immediately and fully exercisable whether or not otherwise exercisable by
their terms.
D. Restrictions on Transferability. No Option shall be transferable by
the grantee otherwise than by will, or if the grantee dies intestate, by the
laws of descent and distribution of the state of domicile of the grantee at the
time of death or pursuant to a Qualified Domestic Relations Order. All Options
shall be exercisable during the lifetime of the grantee only by the grantee or
by the grantee's Legal Representative. These restrictions on transferability
shall not apply to the extent such restrictions are not at the time required for
the Plan to continue to meet the requirements of Rule 16b-3 under the Exchange
Act or any successor Rule.
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E. Separation From Board Service. If a grantee ceases to be a director
of Comerica Bank or any Affiliated Bank, any outstanding Options the grantee
then holds shall be exercisable in accordance with the following provisions:
1.(a) Retirement, Disability, or Other Separation. If the
grantee's separation is due to his or her retirement, Disability, or
any other circumstance not covered in Sections 6.E.1.(b) or 6.E.2.
below, any outstanding Option held by such grantee shall be exercisable
by the grantee, or by his or her Legal Representative or Personal
Representative, as the case may be (but only if exercisable by the
grantee immediately prior to ceasing to be a director), at any time
prior to the expiration date of such Option; and
1.(b) Death. If the grantee's separation is due to his or her
death, any outstanding Option held by such grantee shall be exercisable
by the grantee, or by his or her Legal Representative or Personal
Representative, as the case may be, at any time prior to the expiration
date of such Option or within one year after the date the grantee
ceases to be a director, whichever period is shorter; and
2. Resignation or Removal for Cause. If the grantee's separation
is due to his or her resignation or removal from office for Cause, any
outstanding Option held by the grantee which is exercisable by the
grantee immediately prior to his or her resignation or removal shall be
exercisable by the grantee for 90 days following such resignation or
removal (or by his Personal Representative or Legal Representative
during the remainder of such 90-day period if he or she dies or becomes
Disabled during such period), but not beyond the original term of such
Option.
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An Option held by a grantee who has ceased to be a director of Comerica
Bank or any Affiliated Bank shall expire at the end of the applicable exercise
period, if any, specified in this Section 6.E.
F. Option Agreements. All grants of Options shall be evidenced by an
Agreement which shall be executed on behalf of the Corporation by a
representative of the Committee.
G. Conditions Applicable to Grants of Options. The obligation of the
Corporation to issue shares of Common Stock under the Plan shall be subject to
(i) the effectiveness of a registration statement under the Securities Act of
1933, as amended, with respect to such shares, if deemed necessary or
appropriate by counsel for the Corporation; (ii) the condition that any shares
to be issued shall have been listed (or authorized for listing upon official
notice of issuance) upon each stock exchange, if any, on which the Common Stock
may then be listed; and (iii) all other applicable laws, regulations, rules and
orders which may then be in effect.
Subject to the foregoing provisions of this Section 6 and the other
provisions of the Plan, any Option granted under the Plan shall be subject to
such restrictions and other terms and conditions, if any, as shall be determined
by the Committee in its discretion and set forth in an Agreement; provided,
however, that under no circumstances shall any individual who is subject to the
provisions of Section 16 of the Exchange Act by reason of his relationship to
the Corporation be eligible for grants of Options under this Plan. In the event
any such grant is made due to mistake or otherwise, it shall be null and void.
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SECTION 7. ADJUSTMENT AND SUBSTITUTION OF SHARES.
In the event any change occurs in the number of shares of Common Stock
outstanding as a result of any stock split, stock dividend, recapitalization,
merger, consolidation, reorganization, combination or exchange of shares,
split-up, split-off, spin off, liquidation or other similar change in
capitalization, or any distribution to common shareholders other than cash
dividends, the number or kind of shares that may be issued under the Plan
pursuant to Section 3, including shares covered by existing Options, shall be
automatically adjusted to preserve the proportionate interests of the grantees
in the Corporation as represented by their outstanding Options, and the
proportionality of the share pool under the Plan in relation to the total number
of shares outstanding.
If the outstanding shares of the Common Stock shall be changed into or
become exchangeable for a different number or kind of shares of stock or other
securities of the Corporation or another corporation, whether through
reorganization, reclassification, recapitalization, stock split-up, combination
of shares, merger or consolidation, then there shall be substituted for each
share of the Common Stock set forth in Section 3, including shares covered by
existing Options, the number and kind of shares of stock or other securities
into which each outstanding share of Common Stock shall be so changed or for
which each such share shall become exchangeable.
In case of any adjustment or substitution as provided for in the first
two paragraphs of this Section 7, the aggregate Exercise Price for all shares
subject to each then outstanding Option prior to such adjustment or substitution
shall be the aggregate Exercise Price for all shares of stock or other
securities (including any fraction) into
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which such shares shall have been converted or which shall have been substituted
for such shares. Any new Exercise Price per share shall be carried to at least
three decimal places with the last decimal place rounded upwards to the nearest
whole number.
If the outstanding shares of Common Stock shall be changed in value by
reason of any spin-off, split-off or split-up, or dividend in partial
liquidation, dividend in property other than cash or extraordinary distribution
to holders of Common Stock, the Committee shall make any adjustments to any then
outstanding Option which it determines are equitably required to prevent
dilution or enlargement of the rights of grantees which would otherwise result
from any such transaction.
No adjustment or substitution provided for in this Section 7 shall
require the Corporation to issue or sell a fraction of a share or other
security. Accordingly, all fractional shares or other securities which result
from any such adjustment or substitution shall be eliminated and not carried
forward to any subsequent adjustment or substitution.
Except as provided in this Section 7, a grantee shall have no rights by
reason of the issuance by the Corporation of stock of any class or securities
convertible into stock of any class, any subdivision or consolidation of shares
of stock of any class, the payment of any stock dividend or any other increase
or decrease in the number of shares of stock of any class.
SECTION 8. EFFECT OF THE PLAN ON THE RIGHTS OF THE CORPORATION, ITS AFFILIATES
AND SHAREHOLDERS.
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Nothing in the Plan, in any Option granted under the Plan, or in any
Agreement shall confer any right to any person to continue as a director of
Comerica Bank or any Affiliated Bank, or interfere in any way with the rights of
the shareholders of Comerica Bank or any Affiliated Bank to elect and remove
directors.
SECTION 9. AMENDMENT AND TERMINATION.
The right to amend the Plan at any time and from time to time and the
right to terminate the Plan at any time are hereby specifically reserved to the
Board; provided, however, that no such termination shall result in the
cancellation of any outstanding Options theretofore granted under the Plan. No
amendment or termination of the Plan shall, without the written consent of the
holder of an Option theretofore granted under the Plan, adversely affect the
rights of such holder with respect thereto.
SECTION 10. EFFECTIVE DATE AND DURATION OF PLAN.
The Plan shall become effective on the date of the 1995 Annual Meeting
of Shareholders of the Corporation unless the Board defers such effective date.
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