EXHIBIT 10.6
COMERICA INCORPORATED
Comerica Tower at Detroit Center
000 Xxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
____________, 2002
Dear Mr./Ms.____________
If you have any agreement currently in effect (the "Prior Agreement") with
Comerica Incorporated (the "Corporation") concerning indemnification of you by
the Corporation in connection with your acting or having acted at any time as a
director or officer of the Corporation, this agreement (the "Agreement") hereby
amends and restates the Prior Agreement in its entirety. If you do not have a
Prior Agreement with the Corporation concerning such indemnification, this
Agreement shall serve as your initial Agreement with the Corporation concerning
the 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 (whether or not by or in the right of the Corporation)
(collectively, a "Proceeding") in which you are involved, as a party, a
threatened party or otherwise, by reason of your acting or having acted at any
time as a director or officer of the Corporation.
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 (8 Del. C.ss.101 et seq.) ("Delaware Law"), including the provision of
8 Del. C.ss.145 to the effect that the indemnification authorized thereby is not
exclusive. That provision of the Delaware Law suggests that contracts may be
entered into between a corporation organized under the Delaware Law and its
directors and officers with respect to indemnification of those persons.
To induce you to act and 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 to the terms and
conditions set forth below.
I. BASIC INDEMNIFICATION ARRANGEMENT
To the fullest extent authorized or permitted by applicable law and regulation,
as currently in effect or hereafter amended, and subject to the limitations on
indemnification set forth in this Agreement, the Corporation will:
1. Indemnify you and hold you harmless from and against and, if paid by
you, 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 will 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 of this
Agreement;
(b) the benefits provided by the indemnification provisions of the
Corporation's Bylaws in effect at the time the Indemnified
Costs are incurred by you;
(c) the benefits allowable under the Delaware Law in effect as of
the date of this Agreement 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 the Indemnified
Costs are incurred by you;
(e) the benefits available under any director's and officer's
insurance ("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. 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 those expenses are incurred
and in advance of the final disposition of the Proceeding, regardless
of whether the directors of the Corporation previously authorized those
payments, upon receipt from you of an undertaking by or on your behalf
to repay such amount if it ultimately is determined that you are not
entitled to be indemnified by the Corporation for those expenses under
applicable law, the Corporation's Bylaws, this Agreement or otherwise.
II. DETERMINATION OF STANDARD OF CONDUCT
To the extent the Corporation's Bylaws, Delaware Law or the law of the
jurisdiction under which the Corporation is organized at the time the
Indemnified Costs are incurred by you, as the case may be, requires that you or
your spouse (a "D&O Claimant"), meet a standard of conduct in order to be
entitled to indemnification, such determination, unless prohibited by applicable
law or regulation, or otherwise required by Section 18(k) of the Federal Deposit
Insurance Act, as amended, shall be made by Independent Legal Counsel, as
follows:
1. the Disinterested Directors (as defined below) shall select
Independent Legal Counsel by majority vote, even if such
Disinterested Directors constitute less than a quorum, and
direct that the determination be made by such counsel (or, if
there are no Disinterested Directors, the full Board of
Directors shall select Independent Legal Counsel by majority
vote and shall direct that the determination be made by such
counsel); unless there shall have occurred within two years
prior to the date of the commencement of the Proceeding for
which indemnification is claimed a "Change of Control" as
defined in the
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Amended and Restated Comerica Incorporated 1997 Long-Term
Incentive Plan as in effect on the date of this Agreement, in
which case the Independent Legal Counsel shall be selected by
the D&O Claimant unless the D&O Claimant shall request that
such selection be made by the Board of Directors. If it is so
determined that the D&O Claimant is entitled to
indemnification, payment to the D&O Claimant shall be made
within 10 days after such determination.
2. the term "Disinterested Directors" shall mean directors that
are not and were not parties, and who are not and were not
threatened to be made parties, to such Proceeding;
3. "Independent Legal Counsel" shall mean a law firm, a member of
a law firm, or an independent practitioner, that is
experienced in matters of corporation law and that, under the
applicable standards of professional conduct then prevailing,
would not have a conflict of interest in representing either
the Corporation or the D&O Claimant in an action to determine
the D&O Claimant's rights under this Section.
III. SPOUSAL INDEMNIFICATION
The Corporation will indemnify your spouse to whom you are legally married at
any time you are covered under the indemnification provided in this Agreement
(even if you do not remain married to him or her during the entire period of
coverage) against third party 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 under which you are provided
indemnification herein, if your spouse (or former spouse) becomes involved in a
Proceeding solely by reason of his or her status as your spouse, including,
without limitation, any 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 also may be entitled to advancement of expenses to the same extent that
you are entitled to advancement of expenses herein. 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 that purpose.
IV. ENFORCEMENT COSTS
The Corporation will pay any and all reasonable costs and expenses (including,
without limitation, reasonable attorneys' fees) incurred by you to enforce your
rights under this Agreement.
V. 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 will not be required to purchase and maintain the
same if the insurance is not reasonably available or if, in the reasonable
business judgment of the then directors of the Corporation (or a committee
thereof), the cost for the insurance is substantially disproportionate to the
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coverage provided or the coverage provided is so limited by exclusions that the
benefits provided by the 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
obtained or retained at any time by the Corporation, and that any benefits
granted to you hereunder will 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 will reduce the
obligations of the Corporation hereunder.
VI. PARTIAL INDEMNIFICATION
If you are entitled under any provision of this Agreement to indemnification for
some claims but not for others, or for some portion of expenses but not for the
total amount thereof, the Corporation will indemnify you for that portion of the
claims and expenses for which you are entitled to indemnification.
VII. LIMITATIONS ON INDEMNIFICATION
No indemnification, reimbursement or payment shall be required of the
Corporation under this Agreement with respect to any of the items set forth
below, except to the extent it is provided from policies of insurance carried by
the Corporation:
1. Any claim as to which you shall have been finally adjudged by a court
of competent jurisdiction to:
(a) have breached a director's duty of loyalty to the Corporation
or its shareholders;
(b) have committed acts or omissions not in good faith or
involving intentional misconduct or a knowing violation of
law;
(c) have effected any transaction from which you have derived an
improper personal benefit within the meaning of the Delaware
Law (8 Del.C.ss.102(b)(7)); or
(d) have authorized any unlawful payment of dividend or unlawful
stock purchase or redemption on the Corporation's stock
prohibited by the Delaware Law (8 Del. C.ss.174);
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
deems proper.
2. Any payment determined to be unlawful by final judgment of a court or
other tribunal having jurisdiction over the question.
3. Any obligation of yours under Section 16(b) of the Securities Exchange
Act of 1934, as amended.
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4. 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 Regulations and Statements of
General Policy of the Federal Deposit Insurance Corporation (including,
without limitation, 12 CFR 359.0 et seq.) or federal banking law
(including, without limitation, 12 USC 1828(k)), as both are amended
and in effect on the date of such payment.
You hereby agree to reimburse the Corporation, to the extent not covered by
payments from insurance or bonds purchased pursuant to 12 CFR 359.1(1)(2), as
amended for that portion of the advanced indemnification payments that
subsequently become prohibited indemnification payments, as defined in 12 CFR
359.1(1), as amended.
VIII. ESTABLISHMENT OF TRUST
The Corporation may (but is not 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 terms determined by the Corporation.
IX. LEGAL DEFENSE
You will 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 under this Agreement. You will not make
any admission or effect any settlement without the Corporation's written consent
unless you have undertaken your own defense in the matter and have waived the
benefits of this Agreement. The Corporation will 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 wishes to do so, the Corporation jointly with any other
indemnifying party similarly notified (or its or their insurer), 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 of the matter other
than reasonable costs of investigation or as otherwise provided below. You will
have the right to employ counsel in such Proceeding, but the fees and expenses
of such counsel incurred after notice from the Corporation (or its insurer), of
its assumption of the defense of the Proceeding will be at your expense unless:
(a) the employment of counsel by you was authorized by the
Corporation;
(b) you reasonably concluded that there may be a conflict of
interest between you and the Corporation in the conduct of the
defense of the action; or
(c) the Corporation in fact will not have employed counsel to
assume the defense of the action;
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in each of these cases the fees and expenses of counsel will be at the expense
of the Corporation. The Corporation will not be entitled to assume your defense
in any Proceeding brought by or on behalf of the Corporation or as to which you
will have made the conclusion provided for in clause (b) above.
X. INDEMNIFICATION - SECURITIES ACT LIABILITIES
If a claim is asserted for indemnification against liabilities under the
Securities Act of 1933 or the Securities Exchange Act of 1934 (Acts) in
connection with the registration for sale of any securities of the Corporation
(other than a claim for the payment of expenses incurred in the successful
defense of any such Proceeding), you agree that it will not be a breach of this
Agreement for the Corporation to agree with the Securities and Exchange
Commission that, unless in the opinion of the Corporation's counsel the matter
has been settled by controlling precedent, the Corporation will submit to a
court of competent jurisdiction the question of whether or not such
indemnification by the Corporation is against public policy as expressed in the
Acts, and the Corporation will be governed by the final adjudication of the
issue.
XI. NO PERSONAL LIABILITY
You agree that neither the shareholders nor the directors nor any officer,
employee, representative or agent of the Corporation will be personally liable
for the satisfaction of the Corporation's obligations under this Agreement, and
you will look solely to the assets of the Corporation for satisfaction of any
claims hereunder.
XII. CONTINUING RIGHTS
Your rights and the obligations of the Corporation under this Agreement will
continue in full force and effect despite any subsequent amendment or
modification of the Corporation's Bylaws as in effect on the date hereof, or any
subsequent action by the directors or shareholders of the Corporation.
XIII. DURATION OF AGREEMENT
This Agreement will continue until and terminate upon the later of:
(a) 10 years after the date that you cease 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 for which you served
as a director, officer, employee, agent or fiduciary at the
request of the Corporation; or
(b) the final termination of all pending Proceedings for which
rights of indemnification or advancement of expenses are
granted under this Agreement.
XIV. GOVERNING LAW
This Agreement will be construed and interpreted and the rights of the Parties
hereunder will be determined in accordance with the laws of the State of
Delaware without giving
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effect to principles of conflicts of law. The rights provided to you under this
Agreement will not be deemed exclusive of any other rights to indemnity to which
you may be or become entitled in connection with your service as a director or
officer of the Corporation.
XV. SEVERABILITY
The provisions of this Agreement are severable and if for any reason any
provision or portion hereof is held illegal, invalid or unenforceable, such
determination will not affect any other provision or portion of this Agreement
or any rights existing otherwise than under this Agreement.
XVI. SUCCESSORS AND ASSIGNS
This Agreement is binding upon and will inure to the benefit of the Parties
hereto and their respective heirs, executors, personal representatives,
successors and assigns.
COMERICA INCORPORATED
By:
Name: Xxxxxx X. Xxxxxxx
Its: Executive Vice President, General Counsel and
Corporate Secretary
Accepted by:
[DIRECTOR OR OFFICER]
