EXHIBIT 10.15
Amended and Restated as of January 27, 2004
Corporate Governance and Nominating Committee Approval: January 27, 2004
Board Approval: January 27, 2004
AMENDED AND RESTATED COMERICA INCORPORATED
COMMON STOCK NON-EMPLOYEE DIRECTOR FEE DEFERRAL PLAN
AMENDED AND RESTATED COMERICA INCORPORATED
COMMON STOCK NON-EMPLOYEE DIRECTOR FEE DEFERRAL PLAN
TABLE OF CONTENTS
SECTION I - PURPOSE....................................................... 1
SECTION II - DEFINITIONS.................................................. 1
SECTION III - ELIGIBILITY................................................. 3
SECTION IV - PROCEDURES RELATING TO DEFERRALS............................. 3
SECTION V - CREDITING AND ADJUSTING ACCOUNTS.............................. 4
SECTION VI - DISTRIBUTION OF DEFERRED FEES................................ 5
SECTION VII - DESIGNATION OF BENEFICIARY.................................. 6
SECTION VIII - MISCELLANEOUS PROVISIONS................................... 7
AMENDED AND RESTATED COMERICA INCORPORATED
COMMON STOCK NON-EMPLOYEE DIRECTOR FEE DEFERRAL PLAN
SECTION I - PURPOSE
The purpose of the Amended and Restated Comerica Incorporated Common
Stock Non-Employee Director Fee Deferral Plan (the "Common Stock Plan") is to
allow eligible directors to defer their Director Fees, under the conditions
provided herein, into a Corporation Stock Unit Account. Eligible directors of
the Corporation, any Subsidiary, or any Advisory Board may defer all or any
portion of their Director Fees into a Corporation Stock Unit Account as
requested by such director.
The Common Stock Plan was originally established as the "Comerica
Incorporated Plan for Deferring the Payment of Director's Fees." In 1997, such
plan was amended and restated as the "Comerica Incorporated Director Fee
Deferral Plan." Then on May 21, 1999, the plan was divided into two plans, one
of which became the "Comerica Incorporated 1999 Common Stock Director Fee
Deferral Plan," and which was subsequently amended and restated on November 26,
2002 as the "Comerica Incorporated Common Stock Director Fee Deferral Plan," the
plan continued herein.(1)
SECTION II -- DEFINITIONS
The following words and phrases, wherever capitalized, shall have the
following meanings respectively:
A. "Advisory Board" means a special board of directors appointed to
advise a Subsidiary or unit of the Corporation.
B. "Beneficiary(ies)" means such individual(s) or entity(ies)
designated on the most recent valid Beneficiary Designation Form that the
Participant has properly submitted to the Corporation, or in accordance with
Section VII of this Common Stock Plan, if there is no valid Beneficiary
designation.
C. "Beneficiary Designation Form" is the form used to designate the
Participant's Beneficiary(ies), as modified by the Plan Administrator or the
Committee from time to time.
D. "Code" means the Internal Revenue Code of 1986, as amended, or any
successor statute.
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(1) The second plan which resulted from the division was named the "Comerica
Incorporated 1999 Discretionary Director Fee Deferral Plan," which was amended
and restated on November 26, 2002 as the "Comerica Incorporated Director Fee
Deferral Plan" and was further amended and restated on January 27, 2004 as the
"Amended and Restated Comerica Incorporated Non-Employee Director Fee Deferral
Plan."
E. "Committee" means the Corporate Governance and Nominating Committee
of the Board of Directors of the Corporation, or any successor committee duly
authorized by the Board of Directors of the Corporation.
F. "Common Stock" means the common stock of the Corporation, par value
$5.00 per share.
G. "Common Stock Plan" means the Amended and Restated Comerica
Incorporated Common Stock Non-Employee Director Fee Deferral Plan, the
provisions of which are set forth herein, as it may be further amended and
restated from time to time.
H. "Corporation" means Comerica Incorporated, a Delaware corporation,
and its successors and assigns.
I. "Corporation Stock Unit Account" means an account established under
Section V of this Common Stock Plan, solely for bookkeeping purposes, in the
name of each Participant to record those Director Fees that are deferred under
this Common Stock Plan on the Participant's behalf and the earnings and
dividends thereon.
J. "Deferral Election Form" is the form used to defer the payment of
unearned Director Fees timely submitted by a Participant, as modified by the
Plan Administrator or the Committee from time to time.
K. "Director Fees" means a director's annual retainer, if any, fees
earned by the director for performing director duties, including fees for
attending board meetings, fees for attending meetings of any committee of the
board of the Corporation or its Subsidiaries or Advisory Boards, if any, and
fees for serving as chair of any committee of the board of the Corporation or
its Subsidiaries or an Advisory Board, if any.
L. "Participant" means an eligible director meeting the requirements of
Section III below for whom a Corporation Stock Unit Account is maintained under
the Common Stock Plan.
M. "Plan Administrator" means one or more individuals appointed by the
Committee to handle the day-to-day administration of the Common Stock Plan.
N. "Stock Unit" means a unit equivalent to a share of Common Stock that
is maintained for the benefit of a Participant in the Corporation Stock Unit
Account of such Participant.
O. "Subsidiary" means any corporation, partnership or other entity, a
majority of whose stock or interests is or are owned by the Corporation.
P. "Unforeseeable Emergency" means a severe financial hardship to the
Participant resulting from a sudden and unexpected illness or accident of the
Participant or of a dependent (within the meaning of Code Section 152(a)) of the
Participant, loss of the Participant's property due to casualty, or other
similar
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extraordinary and unforeseeable circumstances arising as a result of events
beyond the control of the Participant.
SECTION III - ELIGIBILITY
Each director of the Corporation, each director of any Subsidiary, and
each director of any Advisory Board shall be eligible to participate in the
Common Stock Plan, provided any such director is not an employee of the
Corporation or any Subsidiary of the Corporation.
SECTION IV - PROCEDURES RELATING TO DEFERRALS
A. Deferral of Director Fees. Eligible directors of the Corporation, of
any Subsidiary, and of any Advisory Board may defer any portion (0% - 100%) of
their Director Fees under this Common Stock Plan.
1. Deferral Period. Director Fees may be deferred pursuant to this
Section IV(A) for the period specified by the Participant in a
Deferral Election Form; provided, however, that in no event shall
the period of deferral exceed ten (10) years from the date of
distribution of the first installment. The minimum period of
deferral for Director Fees deferred pursuant to this Section
IV(A) shall be the lesser of the number of years remaining before
regular retirement, as defined in Section IV(B), or five years
from the date of service for which the Director Fees became
payable, notwithstanding the deferral election under this Common
Stock Plan.
2. Deferred Director Fees. Once Director Fees are deferred under
this Common Stock Plan, a Participant may not receive
distributions of such deferred amounts, except in accordance with
Section VI of this Common Stock Plan.
B. Regular Retirement. An eligible director of the Corporation shall
retire from the board of the Corporation as provided in the Corporation's
Corporate Governance Guidelines, as amended from time to time. An eligible
director of any Subsidiary or of any Advisory Board shall retire from the board
on which he or she serves as determined from time to time by the Corporation.
Nothing contained in this Common Stock Plan shall entitle a Participant to serve
beyond the term for which he or she was elected or appointed to the board(s) on
which he or she serves.
C. Deferral Procedures. Any eligible director wishing to defer
Director Fees must submit a Deferral Election Form to Retirement Services,
Deferred Compensation Group, MC 3431, P.O. Box 75000, Detroit, Michigan
48275-3431 or to such other unit or person as designated by the Committee from
time to time, prior to the beginning of the calendar year during which the
Director Fees are to be earned. However, any newly-appointed or newly-elected
director may submit a Deferral Election Form, with respect to unearned Director
Fees, within thirty (30) days of his or her appointment or election. A deferral
election pursuant to this Common Stock Plan may cover all or a portion (0% -
100%) of the Director Fees which may be deferred.
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In the event a Participant does not indicate an appropriate minimum
deferral period in a Deferral Election Form, such Participant's applicable
Director Fees shall be deferred for a period of five years from the date of
service for which the Director Fees became payable, notwithstanding the deferral
election under this Common Stock Plan. If a Participant does not indicate the
method of deferral, such Director Fees shall be paid out in a single lump sum at
the end of the deferral period.
D. Modifications/Irrevocability. If a director has submitted a Deferral
Election Form relating to Director Fees to be earned in the future, he or she
may modify or cancel such election by submitting a new Deferral Election Form,
so long as the modification or cancellation is made prior to the beginning of
the calendar year in which such Director Fees will be earned. Any such Deferral
Election Form will supersede any previous Deferral Election Form as it relates
to Director Fees to be earned in future calendar years. No revocation or
modification can be made with respect to Director Fees which have already been
earned.
SECTION V - CREDITING AND ADJUSTING ACCOUNTS
Director Fees, which have been deferred under the Common Stock Plan,
shall be credited to a Corporation Stock Unit Account. The Corporation Stock
Unit Account shall be adjusted as follows:
A. A Participant's Corporation Stock Unit Account shall be deemed to be
invested in Common Stock. In the event the Corporation, in its sole and absolute
discretion, has established a rabbi trust for its own benefit to fund the
Corporation's obligations under this Common Stock Plan, or otherwise purchases
shares to be held in its own name, or for its own account (as general assets of
the Corporation), that may be used for meeting its obligations to provide
benefits under this Common Stock Plan, the purchase price for the Stock Units
shall be the actual price of the corresponding shares of Common Stock that the
Corporation purchases on the open market, provided such purchase(s) occurs on
the date the Director Fees would have otherwise been paid to the director had
they not been deferred.
In the event that (1) the Corporation, in its sole and absolute
discretion, has not established a rabbi trust and has not otherwise purchased
shares to be held in its own name, or for its own account (as general assets of
the Corporation), that may be used for meeting its obligations to provide
benefits under this Common Stock Plan, or (2) the Corporation, in its sole and
absolute discretion, has established such a rabbi trust or otherwise purchases
such shares as described above, but the purchase does not occur on the date the
Director Fees would have otherwise been paid to the director had they not been
deferred, then the purchase price of Stock Units shall be based upon the closing
price for the Common Stock on the New York Stock Exchange on the day that the
Director Fees would have otherwise been paid to the director had they not been
deferred. To the extent the Corporation, in its sole and absolute discretion,
has established a rabbi trust for its own benefit to fund the Corporation's
obligations under this Common Stock Plan or has otherwise purchased shares to be
held in its own name, or for its own account (as general assets of the
Corporation), that may be used for meeting its obligations to provide benefits
under this Common Stock Plan, no
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director shall have any right to vote any shares of Common Stock held in the
rabbi trust or otherwise owned by the Corporation in respect of its obligations
hereunder.
B. A Participant's Corporation Stock Unit Account shall be charged each
business day with any distributions made on such day. Such account shall also be
credited with earnings, gains and losses each business day, using the closing
price for Common Stock on the New York Stock Exchange as of the most recent
prior trading day. Dividends shall be deemed to be reinvested in Common Stock
and shall be credited at the time actual dividends are paid, with the number of
Stock Units attributable to a dividend being calculated by dividing the dollar
amount of the dividend by the closing price of the Common Stock on the dividend
payment date, provided that if the Corporation, in its sole and absolute
discretion, has established a rabbi trust for its own benefit to fund the
Corporation's obligations under this Common Stock Plan, or otherwise purchased
shares to be held in its own name, or for its own account (as general assets of
the Corporation), that may be used for meeting its obligations to provide
benefits under this Common Stock Plan, then dividends shall be credited based on
the purchase price(s) for the shares of Common Stock determined as in Section
V(A) above. Finally, a Participant's Corporation Stock Unit Account shall be
credited with the amount, if any, of Director Fees deferred and designated to be
credited to such account during each quarter, or on a more frequent basis if
deemed appropriate by the Committee.
SECTION VI - DISTRIBUTION OF DEFERRED FEES
A. Time and Manner. Subject to the provisions of Section IV of this Common
Stock Plan, distribution of the Participant's Corporation Stock Unit Account
shall be made in Common Stock at such time and in such manner, i.e., a lump sum
or installments, as the Participant has specified in the Deferral Election Form.
Fractional shares of Common Stock shall be paid in cash.
1. Lump Sum Distributions. A lump sum distribution under a lump sum
distribution option shall be made to the Participant in shares of
Common Stock in one lump sum. A lump sum will also be the method of
payment used in the event that a Participant fails to indicate a
payment method.
2. Installment Distributions. Installment distributions under an
installment distribution option shall be made to the Participant in
shares of Common Stock in installments over a period of time, not to
exceed ten (10) years from the date of distribution of the first
installment, as specified by the Participant on the applicable Deferral
Election Form. A Participant may choose an applicable installment
period from the options designated by the Corporation on the Deferral
Election Form. The number of shares of Common Stock distributable in
each installment shall be determined by multiplying the number of Stock
Units in the Corporation Stock Unit Account on the date the installment
is scheduled to be distributed by a fraction, the numerator of which is
one and the denominator of which is the number of unpaid installments
remaining at such time.
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a. Less than $10,000. If, at the time an installment distribution is
scheduled to commence, the fair market value of the Participant's
Corporation Stock Unit Account does not exceed $10,000,
notwithstanding an election by the Participant that such account
be distributed in installments, the Stock Units in such account
shall be distributed in shares of Common Stock to the Participant
in a lump sum. For purposes of this Section VI(A)(2)(a), the fair
market value of a Corporation Stock Unit Account shall be based
on the closing price of the Common Stock on the New York Stock
Exchange on the trading day prior to the distribution of either
the lump sum payment or installment payment.
3. Death. Notwithstanding any other provision of the Common Stock Plan,
upon the death of a Participant, the remaining balance of his or her
Corporation Stock Unit Account shall be distributed in one lump sum
to the Participant's Beneficiary(ies) as soon as practicable after
the date the Corporation receives notice of the Participant's death.
B. Hardship Distributions. In the event of an Unforeseeable Emergency
involving a Participant which occurs prior to distribution of the entire balance
of the Participant's Corporation Stock Unit Account, the Committee may, in its
sole discretion, distribute to the Participant in a single distribution, the
number of shares of Common Stock equal to the portion of such account as shall
be necessary, in the judgment of the Committee, to alleviate the financial
hardship occasioned by the Unforeseeable Emergency. Any Participant desiring a
distribution under the Common Stock Plan on account of an Unforeseeable
Emergency shall submit to the Committee a written request for such distribution
which sets forth in reasonable detail the Unforeseeable Emergency which would
cause the Participant severe financial hardship, and the amount which the
Participant believes to be necessary to alleviate the financial hardship. In
determining whether to grant any requested hardship distribution, the Committee
shall apply the standards of Section 1.457-2(h)(4) of the Regulations under the
Code (or any successor regulations dealing with the same subject matter), the
provisions of which are incorporated herein by reference.
SECTION VII - DESIGNATION OF BENEFICIARY
Upon becoming a Participant of the Common Stock Plan, each director shall
submit to Retirement Services, Deferred Compensation Group, MC 3431, P.O. Box
75000, Detroit, Michigan 48275-3431 (or to such other unit or person as
designated by the Committee from time to time) a Beneficiary Designation Form
designating one or more Beneficiaries to whom distributions otherwise due the
Participant shall be made in a lump sum payment in the event of the
Participant's death before distribution of the Participant's Corporation Stock
Unit Account has been completed. A Beneficiary Designation Form will be
effective only if it is signed by the Participant and submitted before the
Participant's death. Any subsequent Beneficiary Designation Form properly
submitted will supersede any previous Beneficiary Designation Form so submitted.
If a Participant designates a spouse as a Beneficiary, such designation shall
automatically
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terminate and be of no effect following the divorce of the Participant and such
individual, unless ratified in writing post-divorce.
If the primary Beneficiary shall predecease the Participant or the primary
Beneficiary and the Participant die in a common disaster under such
circumstances that it is impossible to determine who survived the other, the
undistributed Stock Units in the Participant's Corporation Stock Unit Account
remaining at the time of the Participant's death shall be distributed in shares
to the alternate Beneficiary(ies) who survive(s) the Participant. If there are
no alternate Beneficiaries living or in existence at the date of the
Participant's death, or if the Participant has not submitted a valid Beneficiary
Designation Form to the Corporation, the remaining Stock Units in the
Participant's Corporation Stock Unit Account shall be distributed in shares in a
single distribution to the legal representative for the benefit of the
Participant's estate.
SECTION VIII - MISCELLANEOUS PROVISIONS
A. Participant Consent. By electing to defer compensation pursuant to the
Common Stock Plan, Participants shall be deemed conclusively to have accepted
and consented to all terms of the Common Stock Plan, as amended from time to
time, and all actions or decisions made or to be made by the Corporation, the
Board of Directors, the Committee or the Plan Administrator with regard to the
Common Stock Plan. Such terms and consent shall also apply to, and be binding
upon, the Beneficiaries, distributees and personal representatives and other
successors in interest of each Participant.
B. Notice. Any election made, or notice given by a Participant pursuant to
the Common Stock Plan shall be in writing to the Committee, or to such
representative as may be designated by the Committee for such purpose. Notice
shall be deemed to have been made or given on the date received by the Committee
or its designated representative.
C. Competency. If the Committee determines that any person to whom a
payment is due hereunder is a minor, or is adjudicated incompetent by reason of
physical or mental disability, the Committee shall have the power to cause the
payments becoming due to such person to be made to the legal guardian for the
benefit of the minor or incompetent, without responsibility of the Corporation
or the Committee to see to the application of such payment, unless prior to such
payment claim is made therefore by a duly appointed legal representative.
Payments made pursuant to such power shall operate as a complete discharge of
the Corporation, the Board of Directors and the Committee.
D. Nonalienation of Benefits. Neither the Participant nor any Beneficiary
designated by him or her shall have any right to alienate, assign, or encumber
any benefits that are or may be distributed hereunder, nor may any such amounts
be subject to attachment, garnishment, levy, execution or other legal or
equitable process for the debts, contracts, liabilities, engagements or acts of
any Participant or Beneficiary.
E. Administration of Common Stock Plan. Full power and authority to
construe, interpret, and administer the Common Stock Plan shall be vested in the
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Committee. To the extent permitted by law, the Committee may delegate any
authority it possesses to the Plan Administrator. To the extent the Committee
has delegated authority concerning a matter to the Plan Administrator, any
reference in the Common Stock Plan to the "Committee" insofar as it pertains to
such matter, shall refer likewise to the Plan Administrator. Decisions of the
Committee shall be final, conclusive, and binding upon all parties.
F. Fees and Expenses of Administration. If the Committee so determines,
reasonable trustee's fees (if applicable) and reasonable out-of-pocket expenses
of administering the Common Stock Plan may be ratably deducted (using average
balances) on an annual basis from Corporation Stock Unit Accounts.
G. Amendment or Termination. The Board of Directors of the Corporation may
amend or terminate this Common Stock Plan at any time. The Committee also
maintains the right to make amendments to the Common Stock Plan to the extent
that such amendments pertain to the administration of the Common Stock Plan. Any
amendment or termination of this Common Stock Plan shall not adversely affect
the rights of Participants or Beneficiaries to distribution in shares, of the
value of the Corporation Stock Unit Account at the time of such amendment or
termination, without such Participant's or Beneficiary's consent.
H. Effective Date. The terms of this Common Stock Plan shall apply to all
Director Fees deferred under this Common Stock Plan or one of its predecessors
on and after January 1, 1997, except to the extent that retroactive application
would adversely affect the rights of a Participant or Beneficiary to the amounts
in the applicable Corporation Stock Unit Account at the time of the adoption of
this amendment and restatement of the Common Stock Plan.
I. Statements to Participants. Statements will be provided to Participants
under the Common Stock Plan on at least an annual basis.
J. Nonforfeitability of Participant Accounts. Each Participant shall be
fully vested in his or her Corporation Stock Unit Account, and the right to
receive the amounts in the Corporation Stock Unit Account shall be
nonforfeitable.
K. Successors Bound. The contractual agreement between the Corporation and
each Participant resulting from the execution of a Deferral Election Form shall
be binding upon and inure to the benefit of the Corporation, its successors and
assigns, and to the Participant and to the Participant's beneficiaries, heirs,
executors, administrators and other legal representatives.
L. Governing Law and Rules of Construction. This Common Stock Plan shall
be governed in all respects, whether as to construction, validity or otherwise,
by the laws of the State of Delaware unless preempted by federal law. Each
provision of this Common Stock Plan shall be treated as severable, to the end
that, if any one or more provisions shall be adjudged or declared illegal,
invalid or unenforceable, this Common Stock Plan shall be interpreted, and shall
remain in full force and effect, as though such provision or provisions had
never been contained herein. It is the intention of the Corporation that the
Common Stock Plan established hereunder be "unfunded" for
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income tax purposes, whether or not the Corporation establishes a rabbi trust,
and the provisions hereof shall be construed in a manner to carry out that
intention.
M. Ownership of Deferred Director Fees and Continued Director Status.
Title to and beneficial ownership of any assets, of whatever nature, which may
be allocated by the Corporation to any Corporation Stock Unit Account in the
name of any Participant, shall at all times remain with the Corporation and its
Subsidiaries, and no Participant or Beneficiary shall have any property interest
whatsoever in any specific assets of the Corporation or its Subsidiaries by
reason of the establishment of the Common Stock Plan. The rights of each
Participant and Beneficiary hereunder shall be limited to enforcing the
unfunded, unsecured promise of the Corporation and its Subsidiaries to pay
benefits under the Common Stock Plan, and the status of any Participant or
Beneficiary shall be that of an unsecured general creditor of the Corporation
and its Subsidiaries. Neither the establishment of the Common Stock Plan nor the
distribution of any benefits hereunder or any action of the Corporation, its
Board of Directors, or any committee thereto, shall be held or construed to
confer upon any person the legal right to remain a director of the Corporation
or any Subsidiary or any Advisory Board.
N. Changes in Capitalization. The shares of Common Stock in the
Corporation Stock Unit Accounts shall be subject to adjustment or substitution,
as determined in the sole discretion of the Board of Directors of the
Corporation, in the event of any change in corporate capitalization, such as a
stock split or a corporate transaction, such as any merger, consolidation,
separation, including a spin-off, or other distribution of stock or property of
the Corporation, any reorganization (whether or not such reorganization comes
within the definition of such term in Section 368 of the Code) or any partial or
complete liquidation of the Corporation.
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