1999 COMERICA INCORPORATED

AMENDED AND RESTATED

DEFERRED COMPENSATION PLAN

 

ARTICLE I	PURPOSE AND INTENT	1
ARTICLE II	DEFINITIONS	1
A.	DEFINITIONS	1
ARTICLE III	ELECTION TO PARTICIPATE IN THE PLAN	4
A.	COMPLETION OF IRREVOCABLE ELECTION FORM	4
B.	CONTENTS OF IRREVOCABLE ELECTION FORM	5
C.	EFFECT OF SUBMITTING AN IRREVOCABLE ELECTION FORM	5
D.	SPECIAL RULES APPLICABLE TO IRREVOCABLE ELECTION FORMS AND DEFERRAL OF COMPENSATION	5
E.	DEFERRED COMPENSATION TRANSFERRED INTO THE PLAN	6
F.	SUBSEQUENT ELECTIONS	6
ARTICLE IV	DEFERRED COMPENSATION ACCOUNTS AND INVESTMENT OF DEFERRED COMPENSATION	7
A.	DEFERRED COMPENSATION ACCOUNTS	7
B.	EARNINGS AND CHARGES ON ACCOUNTS	7
C.	CONTRIBUTION OF COMPENSATION DEFERRALS TO TRUST	7
D.	INSULATION FROM LIABILITY	7
E.	OWNERSHIP OF COMPENSATION DEFERRALS	8
F.	SPECIAL RULE APPLICABLE TO CERTAIN REALLOCATIONS	8
G.	ADJUSTMENT OF ACCOUNTS UPON CHANGES IN CAPITALIZATION	9
ARTICLE V	DISTRIBUTION OF COMPENSATION DEFERRALS	9
A.	IN GENERAL	9
B.	DESIGNATION OF BENEFICIARY	13
ARTICLE VI	AMENDMENT OR TERMINATION	13
A.	AMENDMENT OF PLAN	13
B.	TERMINATION OF PLAN	13
ARTICLE VII	AUDITING OF ACCOUNTS AND STATEMENTS TO PARTICIPANTS	14
A.	AUDITING OF ACCOUNTS	14
B.	STATEMENTS TO PARTICIPANTS	14
C.	FEES AND EXPENSES OF ADMINISTRATION	14
D.	NONCOMPLIANCE	15
ARTICLE VIII	MISCELLANEOUS PROVISIONS	15
A.	VESTING OF ACCOUNTS	15
B.	PROHIBITION AGAINST ASSIGNMENT	15
C.	NO EMPLOYMENT CONTRACT	15
D.	SUCCESSORS BOUND	15
E.	PROHIBITION AGAINST LOANS	15
F.	ADMINISTRATION BY COMMITTEE	15
G.	GOVERNING LAW AND RULES OF CONSTRUCTION	16
H.	POWER TO INTERPRET	16
I.	COMPLIANCE & SEVERABILITY	16

 

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J.	CLAIMS PROCEDURES	16
K.	EFFECTIVE DATE	16

 

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ARTICLE I
PURPOSE AND INTENT

 

The 1999 Comerica Incorporated Amended and Restated Deferred Compensation Plan (the “Plan”) enables Participants to defer receipt of all or a portion of their Compensation to provide additional income for them subsequent to their retirement, Disability or termination of employment.  It is the intention of the Corporation that the Plan be a plan which is unfunded and maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees.

 

ARTICLE II
DEFINITIONS

 

A.            Definitions .  The following words and phrases, wherever capitalized, shall have the following meanings respectively:

 

1.             “Account(s)” means the book reserve account established by the Plan Administrator for each Participant under Article IV(A) hereof.

 

2.             “Aggregated Plan” means all agreements, methods, programs, and other arrangements sponsored by the Corporation that would be aggregated with this Plan under Section 1.409A-1(c) of the Regulations.

 

3.             “Annual Base Compensation” means all ordinary and regular compensation earned by a Participant during a calendar year, including overtime and commissions.

 

4.             “Beneficiary(ies)” means the person(s), natural or corporate, in whatever capacity, designated by a Participant pursuant to this Plan, or the person otherwise deemed to constitute the Participant’s beneficiary under Article V(B)(2) hereof, to receive a distribution hereunder on account of the Participant’s death.

 

5.             “Board” means the Board of Directors of the Corporation.

 

6.             “Change in Control” shall have the meaning set forth in Exhibit A to this Plan.

 

7.             “Code” means the Internal Revenue Code of 1986, as amended.

 

8.             “Comerica Stock” means shares of common stock of the Corporation, $5.00 par value.

 

9.             “Comerica Stock Fund” means the investment option established under the Plan in which a Participant may have requested, prior to January 1, 1999, to have Compensation Deferrals be deemed invested in units whose value is tied to the market value of shares of Comerica Stock.

 

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10.           “Committee” means the Governance, Compensation and Nominating Committee of the Board, or such other committee appointed by the Board to administer the Plan.

 

11.           “Compensation” means gross salary from the Employer, including Annual Base Compensation, any Incentive Award and any other form of cash remuneration approved by the Committee.

 

12.           “Compensation Deferral(s)” means the amount of Compensation deferred pursuant to an Irrevocable Election Form, plus any amount of Compensation deferred under another deferred compensation plan that is transferred into the Plan pursuant to Article III(F), and where the context requires, shall include earnings on said amounts.

 

13.           “Corporation” means Comerica Incorporated, a Delaware corporation, and any successor entity.

 

14.           “Disabled” or “Disability” means a Participant’s inability 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 can be expected to last for a continuous period of not less than twelve (12) months, or is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Participant’s Employer.

 

15.           “Eligible Employee” means an individual employed by an Employer who is: (i) eligible to receive Compensation under the Management Incentive Plan; or (ii) eligible to receive Compensation under an incentive program sponsored by any business unit of the Employer and a member of a select group of management or highly compensated employees for the period with respect to which the election relates.

 

16.           “Employer” means the Corporation and each subsidiary corporation, and any successor entity thereto.

 

17.           “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

 

18.           “Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

19.           “Incentive Award” means (a) a business unit incentive or (b) an incentive award granted to Participants pursuant to the Management Incentive Plan which qualifies as Section 409A Performance Based Compensation and which is related to the Corporation’s performance, including, but not limited to, awards earned with respect to one-year and three-year Performance Periods. Notwithstanding the foregoing, the term “Incentive Award” shall not include business unit incentives granted under any warrant compensation plan.

 

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20.           “Irrevocable Election Form” means the form used by an Eligible Employee or Participant to make deferral elections under this Plan, as provided by the Corporation, and as revised from time to time.

 

21.           “Management Incentive Plan” means the Amended and Restated Comerica Incorporated Management Incentive Plan, as amended from time to time.

 

22.           “Participant” means an employee whose Irrevocable Election Form has been timely received by the Corporation pursuant to Article III(A) hereof or on whose behalf an Irrevocable Election Form has been filed by the Committee pursuant to Article III(E), an employee who has a deferral election currently in effect, or an employee or former employee with an Account balance under the Plan.

 

23.           “Performance Period” means, with respect to Incentive Awards, the period specified by the Committee, which period shall not be less than 12 months, during which Participants can earn such Compensation.

 

24.           “Plan” means the 1999 Comerica Incorporated Amended and Restated Deferred Compensation Plan, the provisions of which are set forth herein, as they may be amended from time to time.

 

25.           “Plan Administrator(s)” means the individual(s) appointed by the Committee to handle the day-to-day administration of the Plan.

 

26.           “Regulations” means the Treasury Regulations promulgated under the Code.

 

27.           “Retirement” means, for purposes of this Plan, the earlier of (i) the date on which the Participant attains at least age fifty-five (55) and completes five (5) years of service or (ii) the date on which the Participant attains age sixty-five (65) .

 

28.           “Section 16 Insider” means any Participant who is designated by the Corporation as a reporting person under Section 16 of the Exchange Act.

 

29.           “Section 409A Performance Based Compensation” means any Incentive Award that qualifies as “performance based compensation” within the meaning of Regulations Section 1.409A-1(e).  Notwithstanding any other provision herein, no Incentive Award will be deemed to constitute Section 409A Performance Based Compensation if the performance conditions that serve as the basis for the Incentive Award are substantially certain to be satisfied at the time such performance conditions are established.

 

30.           “Separation from Service” means a reasonably anticipated permanent reduction in the level of bona fide services performed by the Participant for the Employer to 20% or less of the average level of bona fide services performed by the Participant for the Employer (whether as an employee or an independent contractor) in the immediately preceding thirty-six (36) months (or the full period of service to the Employer if the Participant has been providing services to the Employer for less than thirty-six (36)

 

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months).  The determination of whether a Separation from Service has occurred shall be made by the Plan Administrator in accordance with the provisions of Code Section 409A and the Regulations promulgated thereunder.

 

32.           “Specified Employee” means a key employee, as defined in Code Section 416(i), without regard to paragraph (5) thereof, of an Employer, as contemplated in Code Section 409A and the Regulations promulgated thereunder.

 

33.           “Trust” means one or more rabbi trusts, as may be established by the Corporation in connection with this Plan.  Such rabbi trusts may be irrevocable and shall conform with the requirements of Revenue Procedure 92-64 (and subsequent guidance issued thereto).

 

34.           “Trustee” means the entity selected by the Corporation as trustee of the Trust, if any.

 

35.           “Unforeseeable Emergency” means a severe financial hardship to the Participant resulting from an illness or accident of the Participant, the Participant’s spouse, or a dependent (as defined in Code Section 152, without regard to Section 152(b)(1), (b)(2), and (d)(1)(B)) of the Participant; loss of the Participant’s property due to casualty (including the need to rebuild a home following damage to a home not otherwise covered by insurance, for example not as a result of a natural disaster); or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant.  The determination of whether a Participant has suffered a financial hardship as a result of an Unforeseeable Emergency shall be made by the Committee in accordance with the provisions of Code Section 409A and the Regulations promulgated thereunder.

 

ARTICLE III
ELECTION TO PARTICIPATE IN THE PLAN

 

A.            Completion of Irrevocable Election Form .

 

1.             Deferrals of Annual Base Compensation and Non-Performance Based Incentive Awards .  An Eligible Employee who wishes to become a Participant in the Plan must submit a signed Irrevocable Election Form in accordance with Article III(B) and (D) below within the time frame permitted by the Plan Administrator, which shall in no event be later than the last business date preceding the calendar year in which such Annual Base Compensation or Incentive Award that does not qualify as Section 409A Performance Based Compensation is earned.

 

2.             Deferrals of Section 409A Performance Based Compensation .    Notwithstanding the preceding subparagraph, any Eligible Employee who wishes to defer an Incentive Award that qualifies as Section 409A Performance Based Compensation must submit a signed Irrevocable Election Form in accordance with Article III(B) and (D) below within the time frame permitted by the Plan Administrator, which shall in no

 

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event be later than six (6) months before the end of the applicable Performance Period during which the Incentive Award may be earned.

 

The Eligible Employee will be deemed to have made an election to participate in this Plan on the date that the Corporation receives the Irrevocable Election Form.  An Eligible Employee or Participant must timely file an Irrevocable Election Form with respect to each calendar year or Performance Period in which he or she wishes to defer Compensation. Notwithstanding anything in this Article III to the contrary, the Committee, in its sole discretion, may impose limitations on the percentage or dollar amount of any election to defer Compensation hereunder.

 

B.            Contents of Irrevocable Election Form .  Each Irrevocable Election Form shall:  (i) designate the amount of Compensation to be deferred in whole percentages or in whole dollars, to the extent permitted by the Plan Administrator; (ii) request that the Employer defer payment of Compensation to the Participant until the Participant’s Separation from Service; (iii) state how the Participant wishes to receive payment of the Compensation Deferrals at Retirement (e.g. in a lump sum or installments); and (iv) contain other provisions the Plan Administrator deems appropriate.

 

C.            Effect of Submitting an Irrevocable Election Form .  Upon  submission of his or her Irrevocable Election Form, an eligible Employee or Participant shall be (i) bound by the provisions of the Plan and by the provisions of any agreement governing the Trust; (ii) bound by the provisions of the Irrevocable Election Form; and (iii) deemed to have assumed the risks of deferral, including, without limitation, the risk of poor investment performance, the risk that the Corporation may become insolvent and the risk that Compensation Deferrals (and earnings thereon) may be subject to penalties and interest as a result of noncompliance with Code Section 409A as described in Article VII(D) of this Plan.

 

D.            Special Rules Applicable to Irrevocable Election Forms and Deferral of Compensation .

 

1.             Deferral Election to be Made Before Compensation is Earned .  Compensation may only be deferred to the extent that it has not yet been earned by the Eligible Employee or Participant.

 

2.             Deferral Elections for Performance-Based Incentive Awards .  An eligible Employee or Participant may elect to defer an Incentive Award that qualifies as Section 409A Performance Based Compensation in accordance with Article III(A)(2) above; provided, that the Participant performs services for the Employer continuously from the later of (i) the beginning of the Performance Period or (ii) the date the performance criteria for the applicable Incentive Award are established through the date that such election is made and, provided further, that no election to defer such Incentive Award may be made after such Incentive Award has become “readily ascertainable” for purposes of Code Section 409A.

 

3.             Deferral Elections Upon Initial Participation .  Notwithstanding the preceding sentence, an Eligible Employee may file an Irrevocable Election Form with the

 

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Corporation within thirty (30) days after the date such individual first becomes eligible to participate in the Plan with respect to Compensation earned for services performed after the date of the election (which, with respect to Incentive Awards that qualify as Section 409A Performance Based Compensation, shall be limited to a percentage of the Incentive Award represented by a fraction, the numerator of which is the number of days remaining in the Performance Period after the election is made and the denominator of which is the total number of days in the Performance Period).

 

4.             Irrevocability of Deferral Election .  Except to the extent expressly provided under the Plan or permitted under Code Section 409A and the Regulations promulgated thereunder, the provisions of the Irrevocable Election Form relating to an election to defer Compensation and the selection of the time and manner of payment of the Compensation Deferrals shall be irrevocable as of the last date on which such Irrevocable Election Form may be submitted in accordance with Article III(A).

 

E.             Deferred Compensation Transferred into the Plan .

 

1.             At the discretion of the Committee, a Participant may be permitted to transfer previously deferred compensation into the Plan, so long as such amounts were deferred pursuant to the terms of a nonqualified deferred compensation plan of an Employer.  Further, such transfer will only be permitted if the Committee determines (1) that the transfer will meet the applicable requirements of the Plan; (2) will not adversely affect the Plan’s status as an “unfunded” Plan for income tax purposes and for purposes of Title I of ERISA; (3) the Participant has had no right, in conjunction with said transfer, to receive such deferred compensation in cash; and (4) such transfer will not result in a violation of Code Section 409A.  Compensation Deferrals that are transferred into the Plan will be allocated to the Participant’s Account and, unless otherwise stated, will be subject to all of the terms and conditions of the Plan for Compensation Deferrals, including, but not limited to the provisions of Article IV.

 

2.             Amounts transferred from the Imperial Bancorp Deferred Compensation Plan effective November 30, 2001, were accepted into this Plan pursuant to Resolutions of the Compensation Committee of the Board of Directors of Comerica, signed January 21, 2002.  If any Participant, prior to November 30, 2001, had elected to receive a “Short-Term Payout” from such plan pursuant to its Article 4, Section 4.1, such election shall be honored.  “Short-Term Payouts” are not permitted under any other circumstances.

 

F.             Subsequent Elections .  A Participant is not permitted to make a subsequent election with respect to the timing or form of payment of any Compensation deferred under this Plan pursuant to an Irrevocable Election Form that has become irrevocable in accordance with Article III(D)(4) above.

 

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person’s status as a member of the Committee or the Plan Administrator against any costs (including reasonable attorneys’ fees)  or liability, unless attributable to such individual’s own fraud or willful misconduct.

 

E.                                       Ownership of Compensation Deferrals .  Title to and beneficial ownership of any assets, of whatever nature, which may be credited to any Account shall at all times remain with the Corporation, and no Participant or Beneficiary shall have any property interest whatsoever in any specific assets of the Corporation by reason of the establishment of the Plan nor shall the rights of any Participant or Beneficiary to payments under the Plan be increased by reason of the Corporation’s contribution of Compensation Deferrals to the Trust.  The rights of each Participant and Beneficiary hereunder shall be limited to enforcing the unfunded, unsecured promise of the Corporation to pay benefits under the Plan, and the status of any Participant or Beneficiary shall be that of an unsecured general creditor of the Corporation.  Participants and Beneficiaries shall not be deemed to be parties to any trust agreement the Corporation enters into with the Trustee.

 

F.                                       Special Rule Applicable To Certain Reallocations .

 

1.                                        Effective January 1, 1999, a Participant may not elect to have any portion of his Account deemed invested in the Comerica Stock Fund. Notwithstanding the foregoing, a Participant whose Account, all or a portion of which is deemed invested in the Comerica Stock Fund on January 1, 1999, may continue to have such amounts deemed invested in the Comerica Stock Fund.  Further, except to the extent provided in subsection (2) of this Section F, a Participant whose Account, all or a portion of which is deemed invested in the Comerica Stock Fund on January 1, 1999, may elect to have all or any portion of such amounts deemed invested in any other investment option selected by the Committee (which shall not include the Comerica Stock Fund).  Amounts that are reallocated from the Comerica Stock Fund to another investment option after January 1, 1999 may not thereafter be deemed invested in the Comerica Stock Fund.

 

2.                                        Notwithstanding the provisions of subsection (1) above, a Section 16 Insider whose Account, all or a portion of which is deemed invested in the Comerica Stock Fund, may not elect to have all or any portion of such amounts to be deemed invested into any other investment funds if, within the previous six months, he or she (or any other person whose transactions are attributed to the Section 16 Insider under Section 16 of the Exchange Act) either (i) acquired shares of Comerica Stock in the open market or pursuant to a private transaction, or (ii) made an election under the Plan (or under any other plan sponsored by the Corporation) that resulted in an “acquisition” of equity securities of the Corporation within the meaning of that term under Section 16 of the Exchange Act.

 

To the extent consistent with rules under Section 16 of the Exchange Act, the foregoing prohibitions shall not be applicable if the reallocation is in connection with the Section 16 Insider’s death, Disability, Retirement or termination of employment.

 

Notwithstanding any other provision of the Plan, effective January 1, 1999, except in the circumstances of death, Disability, Retirement or other termination of

 

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employment, a Section 16 Insider shall not be permitted to receive a cash distribution from the Plan which is funded to any extent by a disposition of his or her interest.

 

G.                                      Adjustment of Accounts Upon Changes In Capitalization .  With respect to Accounts that are deemed to be invested in whole or in part in the Comerica Stock Fund, in the event the number of outstanding shares of Comerica Stock changes as a result of any stock split, stock dividend, recapitalization, merger, consolidation, reorganization, combination, or exchange of shares, split-up, spin-off, liquidation or other similar change in capitalization, or any distribution made to common stockholders other than cash dividends, the number or kind of shares of Comerica Stock in which such Accounts are deemed to be invested shall be automatically adjusted, and the Plan Administrator shall be authorized to make such other equitable adjustment of any Account, so that the value of the Account shall not be decreased by reason of the occurrence of such event.  Any such adjustment shall be conclusive and binding.

 

ARTICLE V

DISTRIBUTION OF COMPENSATION DEFERRALS

 

A.                                    In General .  The Compensation Deferrals shall be paid to the Participant or, if applicable, to the Participant’s Beneficiary as follows:

 

1.                                        Separation from Service Following Retirement .  If the Participant’s Separation from Service occurs on or after the date on which the Participant qualifies for Retirement, the Corporation shall distribute, or commence to distribute (or instruct the Trustee to distribute, or to commence to distribute) within ninety (90) days following such Participant’s Separation from Service, the balance of the Participant’s Account, in cash, to the Participant or, if applicable, the Participant’s Beneficiary in any manner described below that is specified in the applicable Irrevocable Election Form:  (i) a single lump sum; (ii) five (5) annual installments; (iii) ten (10) annual installments; or (iv) fifteen (15) annual installments; provided, however, that distribution of any portion of the Participant’s Account attributable to amounts transferred into the Plan from the Imperial Entertainment Group Equity Appreciation Rights Program, shall be made in a single lump sum payment only.  Notwithstanding the preceding sentence, in the case of a Specified Employee, distributions will be delayed until the first business date that is six (6) months after the date of such Specified Employee’s Separation from Service (or, if earlier, the date of death of the Specified Employee).

 

Installment payments shall be calculated by multiplying the Participant’s Account balance on the date of determination by a fraction, the numerator of which is one (1) and the denominator of which is the number of years over which the benefits will be paid, as