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Exhibit 10.2
EMPLOYMENT AGREEMENT (EXEC. OFF.)
AGREEMENT, dated
as of the ________ day of _______, ____, by and between
COMERICA INCORPORATED, a Delaware
corporation (the "Company"), and [FIELD](name
(caps))(the "Executive") who resides at
[FIELD](street),
[FIELD](city/state/zip).
The Board of
Directors of the Company (the "Board"), has determined that it
is in the best interests of the Company and
its shareholders to assure that the
Company will have the continued dedication
of the Executive, notwithstanding the
possibility, threat or occurrence of a
Change of Control (as defined below) of
the Company. The Board believes it is
imperative to diminish the inevitable
distraction of the Executive by virtue of
the personal uncertainties and risks
created by a pending or threatened Change
of Control and to encourage the
Executive's full attention and dedication
to the Company currently and in the
event of any threatened or pending Change
of Control, and to provide the
Executive with compensation and benefits
arrangements upon a Change of Control
which ensure that the compensation and
benefits expectations of the Executive
will be satisfied and which are competitive
with those of other corporations.
Therefore, in order to accomplish these
objectives, the Board has caused the
Company to enter into this Agreement.
NOW, THEREFORE,
IT IS HEREBY AGREED AS FOLLOWS:
1. Certain
Definitions. (a) The "Effective Date" shall mean the first date
during the Agreement Period (as defined in
Section 1(b)) on which a Change of
Control(as defined in Section 2) occurs.
Anything in this Agreement to the
contrary notwithstanding, if a Change of
Control occurs and if the Executive's
employment with the Company is terminated
prior to the date on which the Change
of Control occurs, and if it is reasonably
demonstrated by the Executive that
such termination of employment (i) was at
the request of a third party who has
taken steps reasonably calculated to effect
a Change of Control or (ii)
otherwise arose in connection with or
anticipation of a Change of Control, then
for all purposes of this Agreement the
"Effective Date" shall mean the date
immediately prior to the date of such
termination of employment.
(b) The
"Agreement Period" shall mean the period commencing on the date
hereof and ending on the third anniversary
of the date hereof; provided,
however, that commencing on the date one
year after the date hereof, and on each
annual anniversary of such date (such date
and each annual anniversary thereof
shall be hereinafter referred to as the
"Renewal Date"), unless previously
terminated, the Agreement Period shall be
automatically extended so as to
terminate three years from such Renewal
Date, unless at least 60 days prior to
the Renewal Date the Company shall give
notice to the Executive that the
Agreement Period shall not be so
extended.
2. Change of
Control. For the purpose of this Agreement, a "Change of
Control" shall mean:
(a) The
acquisition by any individual, entity or group (within the
meaning
of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (a "Person")
of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of
either (i) the then outstanding shares of
common stock of the Company (the
"Outstanding Company Common Stock") or (ii)
the combined voting power of the
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then outstanding voting securities of the
Company entitled to vote generally in
the election of directors (the "Outstanding
Company Voting Securities");
provided, however, that for purposes of
this subsection (a), the following
acquisitions shall not constitute a Change
of Control: (i) any acquisition
directly from the Company, (ii) any
acquisition by the Company, (iii) any
acquisition by any employee benefit plan
(or related trust) sponsored or
maintained by the Company or any
corporation controlled by the Company or (iv)
any acquisition by any corporation pursuant
to a transaction which complies with
clauses (i), (ii) and (iii) of subsection
(c) of this Section 2; or
(b) Individuals
who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to
constitute at least a majority of the
Board; provided, however, that any
individual becoming a director subsequent to
the date hereof whose election, or
nomination for election by the Company's
shareholders, was approved by a vote of at
least a majority of the directors
then comprising the Incumbent Board shall
be considered as though such
individual were a member of the Incumbent
Board, but excluding, for this
purpose, any such individual whose initial
assumption of office occurs as a
result of an actual or threatened election
contest with respect to the election
or removal of directors or other actual or
threatened solicitation of proxies or
consents by or on behalf of a Person other
than the Board; or
(c) Consummation of a
reorganization, merger or consolidation or sale or
other disposition of all or substantially
all of the assets of the Company (a
"Business Combination"), in each case,
unless, following such Business
Combination, (i) all or substantially all
of the individuals and entities who
were the beneficial owners, respectively,
of the Outstanding Company Common
Stock and Outstanding Company Voting
Securities immediately prior to such
Business Combination beneficially own,
directly or indirectly, more than 50% of,
respectively, the then outstanding shares
of common stock and the combined
voting power of the then outstanding voting
securities entitled to vote
generally in the election of directors, as
the case may be, of the corporation
resulting from such Business Combination
(including, without limitation, a
corporation which as a result of such
transaction owns the Company or all or
substantially all of the Company's assets
either directly or through one or more
subsidiaries) in substantially the same
proportions as their ownership,
immediately prior to such Business
Combination of the Outstanding Company Common
Stock and Outstanding Company Voting
Securities, as the case may be, (ii) no
Person (excluding any corporation resulting
from such Business Combination or
any employee benefit plan (or related
trust) of the Company or such corporation
resulting from such Business Combination)
beneficially owns, directly or
indirectly, 20% or more of, respectively,
the then outstanding shares of common
stock of the corporation resulting from
such Business Combination or the
combined voting power of the then
outstanding voting securities of such
corporation except to the extent that such
ownership existed prior to the
Business Combination, and (iii) at least a
majority of the members of the board
of directors of the corporation resulting
from such Business Combination were
members of the Incumbent Board at the time
of the execution of the initial
agreement, or of the action of the Board,
providing for such Business
Combination; or
(d) Approval by
the shareholders of the Company of a complete liquidation
or dissolution of the Company.
3. Employment
Period. The Company hereby agrees to continue the Executive
in its employ, and the Executive hereby
agrees to remain in the employ of the
Company subject to the
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terms and conditions of this Agreement, for
the period commencing on the
Effective Date and ending on the last day
of the thirtieth consecutive month
following such date (the "Employment
Period").
4. Terms of
Employment. (a) Position and Duties. (i) During the Employment
Period, (A) the Executive's position
(including status, offices, titles and
reporting requirements), authority, duties
and responsibilities shall be at
least commensurate in all material respects
with the most significant of those
held, exercised and assigned at any time
during the 120-day period immediately
preceding the Effective Date and (B) the
Executive's services shall be performed
at the location where the Executive was
employed immediately preceding the
Effective Date or any office or location
less than 60 miles from such location.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which the
Executive is entitled, the Executive agrees
to devote reasonable attention and time
during normal business hours to the
business and affairs of the Company and, to
the extent necessary to discharge
the responsibilities assigned to the
Executive hereunder, to use the Executive's
reasonable best efforts to perform
faithfully and efficiently such
responsibilities. During the Employment
Period it shall not be a violation of
this Agreement for the Executive to (A)
serve on corporate, civic or charitable
boards or committees, (B) deliver lectures,
fulfill speaking engagements or
teach at educational institutions and (C)
manage personal investments, so long
as such activities do not significantly
interfere with the performance of the
Executive's responsibilities as an employee
of the Company in accordance with
this Agreement. It is expressly understood
and agreed that to the extent that
any such activities have been conducted by
the Executive prior to the Effective
Date, the continued conduct of such
activities (or the conduct of activities
similar in nature and scope thereto)
subsequent to the Effective Date shall not
thereafter be deemed to interfere with the
performance of the Executive's
responsibilities to the Company.
(b)
Compensation. (i) Base Salary. During the Employment Period,
the
Executive shall receive an annual base
salary ("Annual Base Salary"), which
shall be paid at a monthly rate, at least
equal to twelve times the highest
monthly base salary paid or payable,
including any base salary which has been
earned but deferred, to the Executive by
the Company and its affiliated
companies in respect of the twelve-month
period immediately preceding the month
in which the Effective Date occurs. During
the Employment Period, the Annual
Base Salary shall be reviewed no more than
12 months after the last salary
increase awarded to the Executive prior to
the Effective Date and thereafter at
least annually. Any increase in Annual Base
Salary shall not serve to limit or
reduce any other obligation to the
Executive under this Agreement. Annual Base
Salary shall not be reduced after any such
increase and the term Annual Base
Salary as utilized in this Agreement shall
refer to Annual Base Salary as so
increased. As used in this Agreement, the
term "affiliated companies" shall
include any company controlled by,
controlling or under common control with the
Company.
(ii) Annual Bonus. In addition to Annual Base Salary, the
Executive
shall be awarded, for each fiscal year
ending during the Employment Period, an
annual bonus (the "Annual Bonus") in cash
at least equal to the Executive's
highest bonus under the Company's
Management Incentive Plan, Long-Term Incentive
Plan and/or business unit incentive plan
(or any predecessor or successor plan
to any thereof) as applicable, for the last
three full fiscal years prior to the
Effective Date (annualized in the event
that the Executive was not employed by
the Company for the whole
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of such fiscal year) (the "Recent Annual
Bonus"). Each such Annual Bonus shall
be paid no later than the end of the third
month of the fiscal year next
following the fiscal year for which the
Annual Bonus is awarded, unless the
Executive shall elect to defer the receipt
of such Annual Bonus.
(iii) Incentive, Savings and Retirement Plans. During the
Employment
Period, the Executive shall be entitled to
participate in all incentive, savings
and retirement plans, practices, policies
and programs applicable generally to
other peer executives of the Company and
its affiliated companies, but in no
event shall such plans, practices, policies
and programs provide the Executive
with incentive opportunities (measured with
respect to both regular and special
incentive opportunities, to the extent, if
any, that such distinction is
applicable), savings opportunities and
retirement benefit opportunities, in each
case, less favorable, in the aggregate,
than the most favorable of those
provided by the Company and its affiliated
companies for the Executive under
such plans, practices, policies and
programs as in effect at any time during the
120-day period immediately preceding the
Effective Date or if more favorable to
the Executive, those provided generally at
any time after the Effective Date to
other peer executives of the Company and
its affiliated companies.
(iv) Welfare Benefit Plans. During the Employment Period, the
Executive and/or the Executive's family, as
the case may be, shall be eligible
for participation in and shall receive all
benefits under welfare benefit plans,
practices, policies and programs provided
by the Company and its affiliated
companies (including, without limitation,
medical, prescription, dental,
disability, employee life, group life,
accidental death and travel accident
insurance plans and programs) to the extent
applicable generally to other peer
executives of the Company and its
affiliated companies, but in no event shall
such plans, practices, policies and
programs provide the Executive with benefits
which are less favorable, in the aggregate,
than the most favorable of such
plans, practices, policies and programs in
effect for the Executive at any time
during the 120-day period immediately
preceding the Effective Date or, if more
favorable to the Executive, those provided
generally at any time after the
Effective Date to other peer executives of
the Company and its affiliated
companies.
(v) Expenses. During the Employment Period, the Executive shall
be
entitled to receive prompt reimbursement
for all reasonable expenses incurred by
the Executive in accordance with the most
favorable policies, practices and
procedures of the Company and its
affiliated companies in effect for the
Executive at any time during the 120-day
period immediately preceding the
Effective Date or, if more favorable to the
Executive, as in effect generally at
any time thereafter with respect to other
peer executives of the Company and its
affiliated companies.
(vi) Fringe Benefits. During the Employment Period, the
Executive
shall be entitled to fringe benefits,
including, without limitation, tax and
financial planning services, payment of
club dues, and, if applicable, use of an
automobile and payment of related expenses,
in accordance with the most
favorable plans, practices, programs and
policies of the Company and its
affiliated companies in effect for the
Executive at any time during the 120-day
period immediately preceding the Effective
Date or, if more favorable to the
Executive, as in effect generally at any
time thereafter with respect to other
peer executives of the Company and its
affiliated companies.
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(vii) Office and Support Staff. During the Employment Period,
the
Executive shall be entitled to an office or
offices of a size and with
furnishings and other appointments, and to
exclusive personal secretarial and
other assistance, at least equal to the
most favorable of the foregoing provided
to the Executive by the Company and its
affiliated companies at any time during
the 120-day period immediately preceding
the Effective Date or, if more
favorable to the Executive, as provided
generally at any time thereafter with
respect to other peer executives of the
Company and its affiliated companies.
(viii) Vacation. During the Employment Period, the Executive shall
be
entitled to paid vacation in accordance
with the most favorable plans, policies,
programs and practices of the Company and
its affiliated companies as in effect
for the Executive at any time during the
120-day period immediately preceding
the Effective Date or, if more favorable to
the Executive, as in effect
generally at any time thereafter with
respect to other peer executives of the
Company and its affiliated companies.
5. Termination
of Employment. (a) Death or Disability. The Executive's
employment shall terminate automatically
upon the Executive's death during the
Employment Period. If the Company
determines in good faith that the Disability
of the Executive has occurred during the
Employment Period (pursuant to the
definition of Disability set forth below),
it may give to the Executive written
notice in accordance with Section 12(b) of
this Agreement of its intention to
terminate the Executive's employment. In
such event, the Executive's employment
with the Company shall terminate effective
on the 30th day after receipt of such
notice by the Executive (the "Disability
Effective Date"), provided that, within
the 30 days after such receipt, the
Executive shall not have returned to
full-time performance of the Executive's
duties. For purposes of this Agreement,
"Disability" shall mean the absence of the
Executive from the Executive's duties
with the Company on a full-time basis for
180 consecutive business days as a
result of incapacity due to mental or
physical illness which is determined to be
total and permanent by a physician selected
by the Company or its insurers and
acceptable to the Executive or the
Executive's legal representative.
(b) Cause. The
Company may terminate the Executive's employment during the
Employment Period for Cause. For purposes
of this Agreement, "Cause" shall mean:
(i) the willful and continued failure of the Executive to
perform
substantially
the Executive's duties with the Company or one of its
affiliated
companies (other than any such failure resulting from
incapacity
due to physical
or mental illness), after a written demand for substantial
performance is
delivered to the Executive by the Board or the Chief
Executive
Officer of the Company which specifically identifies the manner
in which the
Board or Chief Executive Officer believes that the Executive
has not
substantially performed the Executive's duties, or
(ii) the willful engaging by the Executive in illegal conduct or
gross
misconduct which
is materially and demonstrably injurious to the Company.
For purposes of this provision, no act or
failure to act, on the part of the
Executive, shall be considered "willful"
unless it is done, or omitted to be
done, by the Executive in bad faith or
without reasonable belief that the
Executive's action or omission was in the
best interests of the Company.
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Any act, or failure to act, based upon
authority given pursuant to a resolution
duly adopted by the Board or upon the
instructions of the Chief Executive
Officer or a senior officer of the Company
or based upon the advice of counsel
for the Company shall be conclusively
presumed to be done, or omitted to be
done, by the Executive in good faith and in
the best interests of the Company.
The cessation of employment of the
Executive shall not be deemed to be for Cause
unless and until there shall have been
delivered to the Executive a copy of a
resolution duly adopted by the affirmative
vote of not less than three-quarters
of the entire membership of the Board at a
meeting of the Board called and held
for such purpose (after reasonable notice
is provided to the Executive and the
Executive is given an opportunity,
