Exhibit 10.10
COMERICA INCORPORATED
Comerica Tower at Detroit Center
000 Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Date
Dear FIELD(1)
This will confirm the agreement (Agreement) between you and Comerica
Incorporated (the Corporation) concerning indemnification of you by the
Corporation with respect to expenses, liabilities and losses including
attorneys' fees, judgments, fines and amounts paid or to be paid in settlement
actually and reasonably incurred by you (indemnified costs) in connection with
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (proceeding) (whether or not by or in
the right of the Corporation) in which you are involved, as a party or
otherwise, by reason of your acting or having acted at any time as a director or
officer of the Corporation.
In view of recent developments with respect to the terms, availability and
cost of directors and officers liability insurance (D&O Insurance), the
Corporation is entering into this Agreement pursuant to the authority contained
in its Bylaws and the provisions of the General Corporation Law of Delaware
(Delaware Law), including the provision thereof to the effect that the
indemnification authorized thereby is not exclusive. That provision of Delaware
Law suggests that contracts may be entered into between a corporation organized
under Delaware Law and its directors and officers with respect to
indemnification of such persons.
In order to induce you to continue to act as a director or officer of the
Corporation, the Corporation desires to provide you with the broadest indemnity
which it is permitted by law to extend.
In consideration of the foregoing and of your service as a director or
officer after the date of this Agreement the Corporation agrees as follows:
BASIC INDEMNIFICATION ARRANGEMENT
1. To the fullest extent permitted by applicable law and regulation,
as currently in effect or hereafter amended, the Corporation
shall indemnify you and hold you harmless from and against, and
if paid by you, to reimburse you for, any indemnified costs
incurred by you in connection with any proceedings arising by
reason of the fact that you are or at any time in the past were a
director or officer of the Corporation or are or were serving or
at any time shall serve at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise including
service with respect to employee benefit plans, to the extent of
the highest and most advantageous to you of any combination of
(a) the benefits provided by the indemnification provisions of
the Corporation's Bylaws as in effect on the date hereof; (b) the
benefits provided by the indemnification provisions of the
Corporation's Bylaws in effect at the time such indemnified costs
are incurred by you; (c) the benefits allowable under the
Delaware Law in effect at the date hereof or as the same may
hereafter be amended; (d) the benefits allowable under the law of
the jurisdiction under which the Corporation is organized at the
time
such indemnified costs are incurred by you; (e) the benefits available
under any D&O Insurance or other liability insurance obtained by the
Corporation; and (f) the benefits available to the fullest extent
authorized to be provided to you by the Corporation under the
non-exclusivity provisions of the Bylaws of the Corporation and the
Delaware Law.
2. To the fullest extent permitted by applicable law and regulation,
as currently in effect or hereafter amended, the Corporation
shall pay any and all expenses in connection with a proceeding
arising by reason of the fact that you are or at any time in the
past were a director or officer of the Corporation as the same
are incurred and in advance of the final disposition of any such
proceeding, regardless of whether the directors of the
Corporation have previously authorized such payments, upon
receipt from you, unless not required by the law of the state of
incorporation of the Corporation, of an undertaking by or on your
behalf to repay such amount if it shall ultimately be determined
that you are not entitled to be indemnified by the Corporation
for such expenses under applicable law, the Corporation's Bylaws
or this Agreement or otherwise.
SPOUSAL INDEMNIFICATION
The Corporation further agrees to indemnify your spouse to whom you are
legally married at any time you are covered under the indemnification provided
herein (even if you do not remain married to such spouse during the entire
period of coverage) against third party actions, suits or proceedings or direct
or derivative actions or suits for the same period, to the same extent and
subject to the same standards, limitations, obligations and conditions you are
provided indemnification herein in the event your spouse (or former spouse)
becomes involved in an action, suit or proceeding solely by reason of your
spouse's status as your spouse, including without limitation, any action, suit
or proceeding that seeks damages recoverable from marital community property,
jointly-owned property or property purported to have been transferred from you
to your spouse (or former spouse). Your spouse or former spouse may also be
entitled to advancement of expenses to the same extent you would be hereunder,
and the Corporation may maintain insurance to cover its obligation hereunder
with respect to your spouse (or former spouse) or set aside assets in a trust or
escrow fund for such purpose.
ENFORCEMENT COSTS
To pay any and all costs and expenses (including, without limitation,
reasonable attorneys' fees) incurred by you to enforce your rights hereunder.
INSURANCE
The Corporation will purchase and maintain in effect for your benefit one
or more valid, binding and enforceable policy or policies of D&O Insurance
provided that the Corporation shall not be required to purchase and maintain the
same if such insurance is not reasonably available or if in the reasonable
business judgment of the then directors of the Corporation the cost for such
insurance is substantially
2
disproportionate to the coverage provided or the coverage provided is so limited
by exclusions that the benefits provided by such insurance are insufficient.
The Corporation agrees that the provisions hereof shall remain in effect
regardless of whether D&O Insurance or other liability insurance coverage is at
any time obtained or retained by the Corporation and that any benefits granted
to you hereunder shall be in addition to any indemnification benefits provided
to you by any entity other than the Corporation; except that any payments made
under an insurance policy or from any other source shall reduce the obligations
of the Corporation hereunder.
PARTIAL INDEMNIFICATION
If you are entitled under any provision of this Agreement to
indemnification for some claims but not as to other claims or for some portion
of expenses but not for the total amount thereof, the Corporation shall
nevertheless indemnify you for the portion of such claims and expenses to which
you are entitled to indemnification.
LIMITATIONS ON INDEMNIFICATION
No indemnification, reimbursement or payment shall be required of the
Corporation hereunder except to the extent it is provided from policies of
insurance carried by the Corporation:
(1) with respect to any claim as to which you shall have been finally
adjudged by a court of competent jurisdiction to (a) have acted
with bad faith, (b) be liable for acts or omissions which involve
intentional misconduct, a knowing violation of law or of your
duty of loyalty to the Corporation or its shareholders, (c) have
authorized a redemption of or dividend on the Corporation's stock
which is prohibited by Delaware Law or (d) have effected any
transaction from which you have derived an improper personal
benefit within the meaning of Section 102(b)(7) of the Delaware
Law, except to the extent that such court, or another court
having jurisdiction, shall determine upon application that,
despite the adjudication of liability, but in view of all the
circumstances of the case, you are fairly and reasonably entitled
to indemnity for such indemnified costs as the court shall deem
proper;
(2) with respect to any payment determined by final judgment of a
court, or other tribunal having jurisdiction over the question,
to be unlawful; and
(3) with respect to any obligation of yours under Section 16(b) of
the Securities Exchange Act of 1934, as amended. and
(4) with respect to any liability or expense (including any penalty,
judgment or legal expense) sustained in connection with an
administrative or civil enforcement action which is initiated by
a federal banking agency and results in a final adjudication or
finding against you; if such indemnification, reimbursement or
payment, on the date thereof, is a prohibited indemnification
payment under Part 359 of Title 12, Chapter
3
III of the Code of Federal Regulations as amended and in effect
on the date of such payment.
ESTABLISHMENT OF TRUST
The Corporation may (but shall not be obligated to) dedicate assets of the
Corporation as collateral security for the funding of its obligations under this
Agreement and under similar agreements with other directors, officers, employees
and agents by depositing assets or bank letters of credit in trust or escrow,
establishing reserve accounts, funding self-insurance arrangements or otherwise
on such terms as the Corporation may determine.
LEGAL DEFENSE
You shall provide to the Corporation prompt written notice of any
proceeding brought, threatened, asserted or commenced against you with respect
to which you may assert a right to indemnification hereunder. You shall not
make any admission or effect any settlement without the Corporation's written
consent unless you shall have determined to undertake your own defense in such
matter and have waived the benefits of this Agreement. The Corporation shall
not settle any proceeding to which you are a party in any manner which would
impose any penalty on you without your written consent. Neither you nor the
Corporation will unreasonably withhold consent to any proposed settlement.
Except as otherwise provided below, to the extent that it may wish to do so, the
Corporation jointly with any other indemnifying party similarly notified will be
entitled to assume your defense in any proceeding, with counsel mutually
satisfactory to you and the Corporation. After notice from the Corporation to
you of the Corporation's election so to assume such defense, the Corporation
will not be liable to you under this Agreement for any legal or other expenses
subsequently incurred by you in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below. You shall
have the right to employ counsel in such proceeding but the fees and expenses of
such counsel incurred after notice from the Corporation of its assumption of the
defense thereof shall be at your expense unless (a) the employment of counsel by
you has been authorized by the Corporation, (b) you shall have reasonably
concluded that there may be a conflict of interest between you and the
Corporation in the conduct of the defense of such action, or (c) the Corporation
shall not in fact have employed counsel to assume the defense of such action; in
each of these cases the fees and expenses of counsel shall be at the expense of
the Corporation. The Corporation shall not be entitled to assume your defense
in any proceeding brought by or on behalf of the Corporation or as to which you
shall have made the conclusion provided for in clause (b) above.
INDEMNIFICATION - SECURITIES ACT LIABILITIES
You agree that it will not be a breach of this Agreement for the
Corporation to undertake with the Securities and Exchange Commission in
connection with the registration for sale of any securities of the Corporation
that, in the event a claim for indemnification against liabilities under the
Securities Act of 1933 (Act) (other than the payment of expenses incurred in the
successful defense of any such action, suit or proceeding) is asserted in
connection with such securities being registered, the Corporation will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of competent jurisdiction the question of whether
or not such indemnification by it is against public policy as
4
expressed in the Act and will be governed by the final adjudication of such
issue.
NO PERSONAL LIABILITY
You agree that neither the stockholders nor the directors nor any officer,
employee, representative or agent of the Corporation shall be personally liable
for the satisfaction of the Corporation's obligations under this Agreement, and
you shall look solely to the assets of the Corporation for satisfaction of any
claims hereunder.
CONTINUING RIGHTS
Your rights and the obligation of the Corporation hereunder shall continue
in full force and effect despite any subsequent amendment or modification of the
Bylaws as such are in effect on the date hereof or any action by the directors
or shareholders of the Corporation.
DURATION OF AGREEMENT
This Agreement shall continue until and terminate upon the later of: (a)
10 years after the date that you shall have ceased to serve as a director,
officer, employee, agent or fiduciary of the Corporation or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise which you served at the request of the Corporation; or (b) the final
termination of all pending proceedings in respect of which rights of
indemnification or advancement of expenses are granted under this Agreement.
GOVERNING LAW
This Agreement shall be construed, interpreted and the rights of the
parties determined in accordance with the laws of the State of Delaware and the
rights provided to you hereunder shall not be deemed exclusive of any other
rights you may be or become entitled to in respect of indemnity for your actions
as a director or officer of the Corporation.
SEVERABILITY
The provisions of this Agreement are severable and if any provision or
portion hereof, shall for any reason be held illegal, invalid or unenforceable,
such determination shall not affect any other provision or portion hereof or any
rights existing otherwise than under this Agreement.
SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, executors, personal representatives,
successors and assigns.
5
COMERICA INCORPORATED
By ________________________________
Xxxxxx X. Xxxxxxx
Executive Vice President
General Counsel and Corporate
Secretary
Accepted:
____________________________________
Director or Officer
6
