1
EXHIBIT 10.1
EMPLOYMENT AGREEMENT
AGREEMENT by and among Comerica Holdings, Inc., a Delaware corporation
(the "Company"), Comerica, Inc., a Delaware corporation (the "Parent"), and
Xxxxxx Xxxxxxxxx, Xx. (the "Executive") dated as of the 31st day of October,
2000.
Imperial Bancorp, a California corporation ("Imperial") and the Parent
have determined that it is in the best interests of Imperial and the Parent and
their respective shareholders to assure that Imperial will have the continued
dedication of the Executive pending the merger (the "Merger") of the Company and
Imperial, pursuant to the Agreement and Plan of Merger by and among the Company,
Imperial and Parent, dated as of October 31, 2000 (the "Merger Agreement"), and
to provide the surviving corporation after the Merger with continuity of
management. Therefore, in order to accomplish these objectives, the Boards of
Directors of Imperial and the Parent have caused the Company and the Parent to
enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Effective Date. The "Effective Date" shall mean the date on which
the Effective Time (as defined in the Merger Agreement) of the Merger occurs.
2. Employment Period. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to enter into the employ of the
Company, subject to the terms and conditions of this Agreement, for the period
commencing on the Effective Date and ending on December 31, 2001 ("Employment
Period"), unless sooner terminated in accordance with Section 4 hereof.
3. Terms of Employment. (a) Position and Duties. (i) During the
Employment Period, (A) the Executive shall serve as Chairman of the Board of
Directors of Comerica Bank-California, reporting directly to the President and
Chief Executive Officer of Comerica Bank-California (the "Reporting Person"),
with such authority, duties and responsibilities as may assigned to the
Executive by the Reporting Person and as are commensurate and consistent with
such position and (B) the Executive's services shall be performed primarily at
the Company's office in Los Angeles, California. The Executive shall remain as a
member of the Board of Directors of Comerica Bank-California until the third
anniversary of the Effective Date.
(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 substantially all of his 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
2
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 a base salary at an annual rate that is no less than
that paid to the Executive as of the date hereof (the "Annual Base Salary").
(ii) Annual Bonus. During the Employment Period, the Executive
shall be eligible to receive an annual cash bonus (the "Annual Bonus"), with a
target bonus opportunity of up to 125% of the Executive's Annual Base Salary
(the "Target Annual Bonus"). The actual amount of the Annual Bonus shall be
determined based on the achievement by the Executive of pre-established
performance goals, which goals shall be no less favorable than the goals
established for the Executive under the Company's annual bonus program as in
effect on the date hereof.
(iii) Other Employee Benefit Plans. During the Employment Period,
except as otherwise expressly provided herein, the Executive shall be entitled
to participate in all employee benefit, welfare and other plans, practices,
policies and programs (other than equity and cash incentive plans and programs)
generally applicable to similarly situated executives of the Company as in
effect from time to time. During the Employment Period, the Executive shall be
provided with perquisites (including automobile allowance) on a basis no less
favorable than such benefits are generally provided to similarly situated
executives of the Company from time to time. In addition, the Company shall
continue in accordance with its terms the Agreement between the Executive and
Imperial dated December 23, 1986 (the "1986 Agreement") as it relates to death
and disability benefits and will continue any split-dollar insurance in force in
accordance with its terms. The Company shall also make available to the
Executive and his spouse for each of their respective lives, medical benefits on
the same basis, including without limitation, employee contributions, as such
benefits are provided to them as of the date hereof; provided, however, that if
the Executive or his spouse cannot continue to participate in the Company plan
providing such medical benefits, the Company shall arrange to provide the
Executive and his spouse with the economic equivalent of such benefits that they
would otherwise have been entitled to receive under such plan.
(iv) Expenses. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable business expenses
incurred by the Executive in accordance with the Company's policies as in effect
from time to time.
(v) Office and Support Staff. During the Employment Period and
while the Executive serves as a member of the Board of Directors of Comerica
Bank-California, the Executive shall be entitled to an office or offices of a
size and with furnishings and other appointments and shared secretarial and
administrative assistance, as provided generally to similarly situated
executives of the Company. The Executive shall have the right to buy from the
Company certain items of art and furniture at their appraised fair market value
as determined by an appraiser selected by mutual agreement of the Executive and
the Company.
-2-
3
(vi) Vacation. During the Employment Period, the Executive shall be
entitled to paid vacation in accordance with the plans, policies, programs and
practices of the Company as in effect from time to time generally with respect
to the similarly situated executives of the Company.
(c) Special Payment. As soon as practicable following the Effective
Date, the Company shall make a lump sum cash payment to the Executive equal to
the amount of the "Special Compensation Payment" (as defined in the Special
Compensation Agreement between the Company and the Executive, dated as of May
19, 2000 (the "Existing Agreement")), as if the Executive had been terminated by
the Company in a "Termination Following a Change in Control" (as defined in the
Existing Agreement) immediately after the Effective Date. The Special
Compensation Payment shall be calculated as though the Executive's "Date of
Termination" for purposes of the Existing Agreement were the Effective Date. The
Special Compensation Payment shall be in full satisfaction of all rights of the
Executive and the obligations of the Company or the Parent under the Existing
Agreement.
4. 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 or without Cause. For purposes of this
Agreement, "Cause" shall mean:
(i) the 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 Reporting Person or the Chief Executive Officer of the Parent
which specifically identifies the manner in which the Reporting Person or the
Chief Executive Officer of the Parent 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
or any of its affiliated companies, or
-3-
4
(iii) conviction of a felony or guilty or nolo contendere plea by
the Executive with respect thereto.
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. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board of Directors of the Company or upon the instructions of the
Reporting Person or the Chief Executive Officer or a senior officer of the
Parent or based upon the advice of counsel for the Company or the Parent 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 and its affiliated
companies. 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
two-thirds of the entire membership of the Board of Directors of the Company at
a meeting of such Board called and held for such purpose (after reasonable
notice is provided to the Executive and the Executive is given an opportunity,
together with counsel, to be heard before the Board), finding that, in the good
faith opinion of the Board, the Executive is guilty of the conduct described in
subparagraph (i) or (ii) above, and specifying the particulars thereof in
detail.
(c) Good Reason. The Executive's employment may be terminated by the
Executive for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean in the absence of a written consent of the Executive:
(i) the assignment to the Executive of any duties inconsistent in
any respect with the Executive's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as contemplated
by Section 3(a) of this Agreement, or any other action by the Company which
results in a diminution in such position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and inadvertent action not
taken in bad faith and which is remedied by the Company promptly after receipt
of notice thereof given by the Executive;
(ii) any failure by the Company to comply with any of the
provisions of Section 3(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(iii) the Company's requiring the Executive to be based at any
office or location outside of the metropolitan Los Angeles area;
(iv) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement; or
(v) any failure by the Company or the Parent to comply with and
satisfy Section 11(c) of this Agreement.
(d) Notice of Termination. Any termination by the Company for Cause, or
by the Executive for Good Reason, shall be communicated by Notice of Termination
to the other
-4-
5
party hereto given in accordance with Section 12(b) of this Agreement. For
purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than thirty days after the
giving of such notice). The failure by the Executive or the Company to set forth
in the Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of the Executive or
the Company, respectively, hereunder or preclude the Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein within 30 days of such notice, as the case may
be, (ii) if the Executive's employment is terminated by the Company other than
for Cause or Disability, the Date of Termination shall be the date on which the
Company notifies the Executive of such termination and (iii) if the Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be.
5. Obligations of the Company upon Termination. (a) Good Reason; Other
Than for Cause, Death or Disability. If, during the Employment Period, the
Company shall terminate the Executive's employment other than for Cause, death
or Disability or the Executive shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the following
amounts:
A. the Executive's Annual Base Salary through the Date of
Termination to the extent not theretofore paid ("Accrued Base Salary");
and
B. the amount equal to the product of (1) the number of months and
portions thereof from the Date of Termination until December 31, 2001,
and (2) the Executive's Annual Base Salary; and
C. to the extent not theretofore paid, a pro rata Target Bonus for
2001 based on the number of days from the Effective Date until
December 31, 2001; and
(ii) to the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Executive any other amounts or benefits
required to be paid or provided or which the Executive is eligible to receive
under any plan, program, policy or practice of, or contract or agreement with,
the Company or its affiliated companies through the Date of Termination (such
other amounts and benefits shall be hereinafter referred to as the "Other
Benefits").
-5-
6
(b) Death. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Period, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, other than for payment of Accrued Base Salary and the timely payment
or provision of Other Benefits. Accrued Base Salary shall be paid to the
Executive's estate or beneficiary, as applicable, in a lump sum in cash within
30 days of the Date of Termination. With respect to the provision of Other
Benefits, the term Other Benefits as utilized in this Section 5(b) shall include
death benefits as in effect on the date of the Executive's death generally with
respect to similarly situated executives of the Company or, if applicable,
pursuant to the terms of the 1986 Agreement; provided, however that the Company
shall have the right to offset any payments pursuant to the 1986 Agreement in
repayment of any loan outstanding between Imperial or the Company and the
Executive.
(c) Disability. If the Executive's employment is terminated by reason
of the Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than for payment
of Accrued Base Salary and the timely payment or provision of Other Benefits.
Accrued Base Salary shall be paid to the Executive in a lump sum in cash within
30 days of the Date of Termination. With respect to the provision of Other
Benefits, the term Other Benefits as utilized in this Section 5(c) shall
include, and the Executive shall be entitled after the Disability Effective Date
to receive, disability benefits as in effect on the Disability Effective Date
generally with respect to similarly situated executives of the Company, or, if
applicable, pursuant to the terms of the 1986 Agreement; provided, however that
the Company shall have the right to offset any payments pursuant to the 1986
Agreement in repayment of any loan outstanding between Imperial or the Company
and the Executive.
(d) Cause; Other than for Good Reason. If the Executive's employment
shall be terminated for Cause or the Executive terminates his employment without
Good Reason during the Employment Period, this Agreement shall terminate without
further obligations to the Executive other than the obligation to pay to the
Executive (x) his Annual Base Salary through the Date of Termination and (y)
Other Benefits, in each case to the extent theretofore unpaid.
6. Non-exclusivity of Rights. Except as specifically provided, nothing
in this Agreement shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided by the Company
or any of its affiliated companies and for which the Executive may qualify, nor,
subject to Section 12(f), shall anything herein limit or otherwise affect such
rights as the Executive may have under any contract or agreement with, or plan,
policy or program of, the Company or any of its affiliated companies. Amounts
which are vested benefits or which the Executive is otherwise entitled to
receive under any plan, policy, practice or program of, or any contract or
agreement with, the Company or any of its affiliated companies at or subsequent
to the Date of Termination shall be payable in accordance with such plan,
policy, practice or program or contract or agreement except as explicitly
modified by this Agreement.
7. Full Settlement. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
-6-
7
to the Executive under any of the provisions of this Agreement and, such amounts
shall not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay as incurred, to the full extent permitted by law, all
legal fees and expenses which the Executive may reasonably incur as a result of
any contest (regardless of the outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986, as amended (the "Code").
8. Certain Additional Payments by the Company. (a) Anything in this
Agreement to the contrary notwithstanding and except as set forth below, in the
event it shall be determined that any payment or distribution by the Company to
or for the benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise but not
including any payment pursuant to the 1986 Agreement, but determined without
regard to any additional payments required under this Section 8) (a "Payment")
would be subject to the excise tax imposed by Section 4999 of the Code or any
interest or penalties are incurred by the Executive with respect to such excise
tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then the Executive
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments. Notwithstanding the foregoing provisions of this Section 8(a), if
it shall be determined that the Executive is entitled to a Gross-Up Payment, but
that the Payments do not exceed 110% of the greatest amount (the "Reduced
Amount") that could be paid to the Executive such that the receipt of Payments
would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to
the Executive and the Payments, in the aggregate, shall be reduced to the
Reduced Amount.
(b) Subject to the provisions of Section 8(c), all determinations
required to be made under this Section 8, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by Ernst & Young
LLP or such other certified public accounting firm reasonably acceptable to the
Executive as may be designated by the Company (the "Accounting Firm") which
shall provide detailed supporting calculations both to the Company and the
Executive within 15 business days of the receipt of notice from the Executive
that there has been a Payment, or such earlier time as is requested by the
Company. All fees and expenses of the Accounting Firm shall be borne solely by
the Company. Any Gross-Up Payment, as determined pursuant to this Section 8,
shall be paid by the Company to the Executive within five days of (i) the later
of the due date for the payment of any Excise Tax, and (ii) the receipt of the
Accounting Firm's determination. Any determination by the Accounting Firm shall
be binding upon the Company and the Executive. As a result of the uncertainty in
the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event
-7-
8
that the Company exhausts its remedies pursuant to Section 8(c) and the
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be promptly paid by the Company to or for the
benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period following
the date on which it gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due).
If the Company notifies the Executive in writing prior to the expiration of such
period that it desires to contest such claim, the Executive shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
(ii) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order effectively
to contest such claim, and
(iv) permit the Company to participate in any proceedings relating
to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 8(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and xxx for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relat-
-8-
9
ing to payment of taxes for the taxable year of the Executive with respect to
which such contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and the Executive shall be entitled to settle or contest, as the case
may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 8(c), the Executive becomes entitled to receive any
refund with respect to such claim, the Executive shall (subject to the Company's
complying with the requirements of Section 8(c)) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 8(c), a determination is made that
the Executive shall not be entitled to any refund with respect to such claim and
the Company does not notify the Executive in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
9. Confidential Information. (a) The Executive shall hold in a
fiduciary capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company or any of its affiliated
companies, and their respective businesses, which shall have been obtained by
the Executive during the Executive's employment by the Company or any of its
affiliated companies and which shall not be or become public knowledge (other
than by acts by the Executive or representatives of the Executive in violation
of this Agreement). After termination of the Executive's employment with the
Company, the Executive shall not, without the prior written consent of the
Company or as may otherwise be required by law or legal process, communicate or
divulge any such information, knowledge or data to anyone other than the Company
and those designated by it.
(b) In the event of a breach or threatened breach of this Section 9,
the Executive agrees that the Company shall be entitled to injunctive relief in
a court of appropriate jurisdiction to remedy any such breach or threatened
breach, the Executive acknowledges that damages would be inadequate and
insufficient.
(c) Any termination of the Executive's employment or of this Agreement
shall have no effect on the continuing operation of this Section 9.
10. Dispute Resolution. If any dispute, controversies or claims should
arise concerning this Agreement, the interpretation of this Agreement or
otherwise relating to the terms and conditions of the Executive's employment or
its termination, including any claim of statutory discrimination, the parties
agree to submit such dispute to arbitration before a panel of three (3) neutral
arbitrators from and in accordance with the rules of the American Arbitration
Association in Los Angeles, California. For injunctive relief, it is also agreed
that any court of competent jurisdiction may also entertain an application by
either party, as provided in Section 9(b) of this Agreement. The parties agree
that if a court or panel of arbitrators having jurisdiction over this Agreement
shall determine that the subject matter or duration of the covenants and
-9-
10
undertakings in Section 9 of this Agreement are unreasonable in any respect,
they shall be reduced, and not terminated, as such court or panel of arbitrators
determines may be reasonable. The parties further agree that no demand for
punitive damages shall be made in any such arbitration proceeding and that the
arbitrators shall not have the power to award punitive damages in any such
proceeding. Any award of the arbitrators shall be final and binding, subject
only to the right of appeal that may lie as a matter of law.
11. Successors. (a) This Agreement is personal to the Executive and
without the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company and/or the Parent will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company and/or the Parent
to assume expressly and agree to perform this Agreement in the same manner and
to the same extent that the Company and/or the Parent would be required to
perform it if no such succession had taken place. As used in this Agreement,
"Company" and "Parent" shall mean the Company and the Parent as hereinbefore
defined and any successor to their respective businesses and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise. As used in this Agreement, the term "affiliated companies"
shall include any company controlled by, controlling or under common control
with the Company or the Parent.
12. Miscellaneous. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without
reference to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive: At the most recent address
------------------- on file for the Executive at
the Company.
If to the Company:
-----------------
Attention: General Counsel
copy to: Parent
-10-
11
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 4(c) of this Agreement, shall not be deemed to be a waiver
of such provision or right or any other provision or right of this Agreement.
(f) From and after the Effective Date, this Agreement shall supersede
any other employment, severance or change of control agreement between the
parties, including without limitation the Existing Agreement, and the
Executive's rights under any severance or change of control plan or policy,
including without limitation, the Company's Basic Severance Compensation Plan
and the Acquisition Compensation Continuation Plan.
-11-
12
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from their respective Boards of Directors,
each of the Company and the Parent has caused these presents to be executed in
its name on its behalf, all as of the day and year first above written.
---------------------------------------
XXXXXX XXXXXXXXX, XX.
COMERICA HOLDINGS, INC.
By
-------------------------------------
Name:
Title:
COMERICA, INC.
By
--------------------------------------
Name:
Title:
-12-
