Exhibit 10.1


 


AMENDED AND RESTATED


BENEFIT EQUALIZATION PLAN
FOR

EMPLOYEES OF COMERICA INCORPORATED


 


PREAMBLE


 


Comerica Incorporated maintains the Comerica
Incorporated Retirement Plan and Manufacturers National Corporation formerly
maintained the Manufacturers National Corporation Pension Plan.  In June of 1992, Manufacturers National
Corporation merged into Comerica Incorporated. 
Effective as of December 31, 1993, the Manufacturers National
Corporation Pension Plan was merged into the Comerica Incorporated Retirement
Plan.


 


Effective as of October 28, 1980, Comerica
Incorporated established the “Comerica Incorporated Nonqualified Retirement
Income Guarantee Plan,” the purpose of which is to restore benefits not
available to participants of the Comerica Incorporated Retirement Plan due to
tax law limitations.  Manufacturers
National Corporation established the “Benefit Equalization Plan for Employees
of Manufacturers National Corporation” effective as of January 1, 1983 in
order to restore benefits not available to participants of the Manufacturers
National Corporation Pension Plan due to tax law limitations.


 


As a consequence of the merger of the Manufacturers
National Corporation Pension Plan into the Comerica Incorporated Retirement
Plan, the Board of Directors of Comerica Incorporated approved the merger of
the Comerica Incorporated Nonqualified Retirement Income Guarantee Plan into
the Benefit Equalization Plan for Employees of Manufacturers National
Corporation, and renamed the resulting plan the “Benefit Equalization Plan for
Employees of Comerica Incorporated.”


 


Such Benefit Equalization Plan for Employees of
Comerica Incorporated (the “Plan”) was amended and restated, effective December 31,
2008, to the extent necessary to comply with the requirements of Section 409A
of the Internal Revenue Code of 1986, as amended, and to make such changes as
are necessary to reflect its administration.


 


The Plan is now being further amended and restated,
effective January 1, 2009.


 


SECTION 1


PURPOSE AND
EFFECTIVE DATE


 


The sole purpose of this Plan is to assure that
Participants who have a vested right to receive benefits under the Qualified
Plan will receive the same value of benefits they would receive but for the
limitations on contributions and benefits contained in ERISA and Sections
401(a)(17), 415 and 416 of the Code, and, also, but for the nonrecognition
under the Qualified Plan of deferred incentive compensation under the
Manufacturers Incentive Compensation Plans. 
This Plan is not intended to and shall


 


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not be construed so as to provide any Participant
receiving benefits under the Qualified Plan, and where applicable, this Plan,
with benefits which, in the aggregate, either have a greater or lesser value
than the benefit which would result from the calculation made under the
applicable provisions of the Qualified Plan without giving effect to the
benefit limitation provisions of ERISA and the Code and regulations promulgated
thereunder, or the nonrecognition of compensation deferred under the
Manufacturers Incentive Compensation Plans. 
The provisions of this restated Plan shall be effective as of December 31,
2008.


 


SECTION 2


DEFINITIONS


 


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


 


A.                                   “Affiliate”
means any entity that is controlled by the Company, whether directly or
indirectly.


 


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


 


C.                                     “Code”
means the Internal Revenue Code of 1986, as it may be amended from time to
time.


 


D.                                    “Committee”
means the Governance, Compensation and Nominating Committee of the Company.


 


E.                                      “Company”
means Comerica Incorporated, a Delaware corporation.


 


F.                                      “Employer”
means the Company and each Affiliate thereof.


 


G.                                     “ERISA:
means the Employee Retirement Income Security Act of 1974 (Public Law 93-406),
as from time to time amended.


 


H.                                    “Manufacturers
Incentive Compensation Plans” means the following plans:  (i) the Manufacturers National
Corporation Executive Incentive Plan; (ii) the Manufacturers National
Corporation Trust Investment Incentive Plan; (iii) the Manufacturers
National Corporation Institutional Trust Sales and Servicing Plans; (iv) the
Manufacturers National Corporation Private Banking Sales and Servicing Plans; (v) the
Manufacturers National Corporation incentive plans for Foreign Exchange
Trading, Mergers and Acquisitions, and Commercial Mortgage Banking Services;
and (vi) any similar incentive compensation plans formerly maintained by
Manufacturers National Corporation for employees of its business units as
determined by the Committee.


 


I.                                         “Participant”
means an individual who at the time in question is participating in the Plan
pursuant to Section 3.


 


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J.                                        “Plan”
means the plan set forth herein which is to be known as the “Benefit
Equalization Plan for Employees of Comerica Incorporated.”


 


K.                                    “Plan
Administrator” means the Employee Benefits Committee of the Corporation.


 


L.                                      “Qualified
Plan” means the Comerica Incorporated Retirement Plan, as amended and restated
from time to time.


 


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


 


N.                                    “Separation
from Service” means a reasonably anticipated permanent reduction in the level
of bona fide services performed by the Participant for the Company to twenty
percent (20%) or less of the average level of bona fide services performed by
the Participant for the Company (whether as an employee or an independent
contractor) in the immediately preceding thirty-six (36) months (or the full
period of service to the Company if the Participant has been providing services
to the Company for less than thirty-six (36) months).  The determination of whether a Separation
from Service has occurred shall be made by the Committee in accordance with the
provisions of Code Section 409A and the Regulations.


 


O.                                    “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.


 


P.                                      “Trust”
means a Trust established pursuant to Section 5(I) hereof.


 


Q.                                    “Alternative
Benefits” means an award granted by the Committee under the Comerica
Incorporated 2006 Amended and Restated Long-Term Incentive Plan, as it may be
amended and/or restated from time to time, or its successor plan, to a
Participant where the Committee, in its sole discretion, expressly grants such
award in lieu of an award earned but not paid for a particular performance
period under the Comerica Incorporated 2006 Amended and Restated Management
Incentive Plan, as it may be amended and/or restated from time to time, or its
successor plan.


 


SECTION 3


ELIGIBILITY AND
PARTICIPATION


 


Any participant of the Qualified Plan whose benefits
thereunder are limited by the provisions of Sections 401(a)(17), 415 and/or 416
of the Code or by the nonrecognition under the Qualified Plan of compensation
deferred under any of the Manufacturers Incentive Compensation Plans shall
automatically participate in and accrue benefits under this Plan.


 


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SECTION 4


 


AMOUNT OF BENEFITS


 


The benefits payable under this Plan shall equal the
excess, if any, of:


 


(a)                                      the benefits which would have been paid to such
Participant for his or her life only at normal retirement under the Qualified
Plan (excluding the supplemental pension benefit described in Appendix E
thereof) if the provisions of such plan were administered and benefits paid
without regard to the special benefit limitations added to such plan to conform
it to Sections 401(a)(17), 415 and 416 of the Code, and including in the
benefit calculation (i) compensation of the Participant which was deferred
under the Manufacturers Incentive Compensation Plans or any nonqualified
deferred compensation plan of the Company and which is not otherwise recognized
under the Qualified Plan and (ii) the value, as determined by the
Committee, of the Participant’s Alternative Benefits on the date of grant, over


 


 (b)                                  the
benefits which would be payable to such Participant for his or her life only at
normal retirement under the Qualified Plan (excluding the supplemental pension
benefit described in Appendix E thereof, and without reduction for the
qualified pre-retirement survivor annuity provided thereunder);


 


such excess then to be
converted to its actuarial equivalent (as that term is defined in the Qualified
Plan) to account for (i) the benefits commencement date of the benefit
under this Plan, using the early retirement pension reduction factors set forth
in the Qualified Plan, and (ii) the payment method determined pursuant to
the following paragraph and computed in each case on the assumption that the
assets in the Qualified Plan are sufficient to pay all vested benefits.  (If the benefit commencement date under this
Plan is earlier than the earliest date upon which benefits are payable to such
Participant under the Qualified Plan, then such excess shall be further reduced
by 5/12 percent for each month or fraction thereof from the commencement of the
benefit under this Plan until the date on which such Participant would attain
age 55.)


 


Calculation of the amount of benefits under this Plan
shall disregard the method of payment selected by the Participant under the
Qualified Plan.  The method of payment
under this Plan shall be in the form of a 100% joint and survivor annuity with
the Participant’s spouse as the joint annuitant.  The benefit under this Plan shall be
calculated using the ages of the Participant and the joint annuitant (if any)
at the date benefits commence under this Plan and in accordance with the
applicable actuarial assumptions set forth in the Qualified Plan.  If the Participant has no spouse, then the
benefit under this Plan shall be paid in the form of an annuity for the life of
the Participant.


 


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Nothing herein shall restrict the right of the Company
to amend the Qualified Plan and the computations under this section shall be
made according to the terms of the Qualified Plan in effect at the time the
benefits first become payable.


 


SECTION 5


PAYMENT OF
BENEFITS


AND ESTABLISHMENT
OF TRUST


 


A.                                   Payment
of benefits under this Plan shall commence within sixty (60) days following the
date of the Participant’s Separation from Service with the Company.  Notwithstanding the preceding sentence, in
the case of a Specified Employee, payment of benefits under this Plan will be
delayed until the first business day following the 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).


 


B.                                     Notwithstanding
any provision of the Plan to the contrary, if the actuarial present value of
the Participant’s benefit does not exceed $5,000, the Committee shall make an
immediate lump sum payment to the Participant (or, if applicable, the beneficiary)
of such benefit.


 


C.                                     If
any portion of the benefits payable under this Plan is required to be included
in income by the Participant prior to receipt due to a failure of this Plan or
any Aggregated Plan to comply with the requirements of Code Section 409A
and the Regulations, the Committee may determine that such Participant shall
receive a distribution from the Plan in an amount equal to the lesser of: (i) the
portion of the benefits payable under this Plan required to be included in
income as a result of the failure of the Plan or any Aggregated Plan to comply
with the requirements of Code Section 409A and the Regulations, or (ii) the
total benefits payable under this Plan to such Participant.


 


D.                                    If
the Company is required to withhold amounts to pay the Participant’s portion of
the Federal Insurance Contributions Act (FICA) tax imposed under Code Sections
3101, 3121(a) or 3121(v)(2) with respect to benefits that are or will
be paid to the Participant under this Plan before they otherwise would be paid,
the Committee may determine that such Participant shall receive a distribution
from the Plan in an amount equal to the lesser of: (i) the total benefits
payable under this Plan to such Participant or (ii) the aggregate of the
FICA taxes imposed and the income tax withholding related to such amount.


 


E.                                      In
the event the Company reasonably anticipates that the payment of benefits under
this Plan would result in the loss of the Company’s Federal income tax
deduction with respect to such payment due to the application of Code Section 162(m),
the Committee may delay the payment of all such benefits under this Plan until (i) the
first taxable year in which the Company reasonably anticipates, or should
reasonably anticipate, that if the payment were made during such year, the
deduction of such


 


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payment would not be barred by application of
Code Section 162(m) or (ii) during the period beginning with the
date of the Participant’s Separation from Service (or, for Specified Employees,
the date which is six (6) months after the date of the Participant’s
Separation from Service) and ending on the later of (A) the last day of
the taxable year of the Company which includes such date or (B) the 15th
day of the third month following the date of the Participant’s Separation from
Service (or, for Specified Employees, the date which is six (6) months
after the date of the Participant’s Separation from Service).


 


F.                                      In
the event the Company reasonably anticipates that the payment of benefits under
this Plan would violate Federal securities laws or other applicable law, the
Committee may delay the payment until the earliest date at which the Company
reasonably anticipates that the making of such payment would not cause such
violation.


 


G.                                     In
the event the Company determines that the making of any payment of benefits
under this Plan on the date specified hereunder would jeopardize the ability of
the Company to continue as a going concern, the Committee may delay the payment
of benefits under this Plan until the first calendar year in which the payment
of benefits would not have such effect.


 


H.                                    In
the event of administrative necessity, the payment of benefits under this Plan
may be delayed up to the later of the last day of the calendar year in which
payment would otherwise be made or the 15th day of the third calendar month
following the date on which payment would otherwise be made.  Further, if, as a result of events beyond the
control of the Participant (or following the Participant’s death, the
Participant’s spouse or beneficiary), it is not administratively practicable
for the Committee to calculate the amount of benefits due to Participant as of
the date on which payment would otherwise be made, the payment may be delayed
until the first calendar year in which calculation of the amount is
administratively practicable.


 


I.                                         Notwithstanding
the foregoing provisions, if the period during which payment of benefits
hereunder will be made occurs, or will occur, in two calendar years, the
Participant shall not be permitted to elect the calendar year in which the
payment shall be made.


 


J.                                        The
Company may establish a Trust under which the Company may fund an amount that,
on the same actuarial basis employed with respect to the funding of the
Qualified Plan, is expected to provide funds equal to the sum of the expected
benefits under this Plan.  The Company
may augment the funds in the Trust from time to time as deemed appropriate.  The assets of the Trust shall at all times be
subject to levy by the Company’s general creditors and Participants of this
Plan shall have no greater right to the Trust assets than other unsecured
general creditors of the Company.


 


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SECTION 6


RIGHTS OF
PARTICIPANTS


 


A.                                   For
purposes of clarification, and in accordance with the current and prior
administration of this Plan, each Participant shall have a vested right to
benefits provided by this Plan only if and when the Participant has a vested
right to benefits under the Qualified Plan.


 


B.                                     No
right or interest of any Participant in the Plan shall be assignable or
transferable, otherwise than by will or the laws of descent or pursuant to a
beneficiary designation, nor shall such right or interest be subject to any
lien directly, by operation of law, or otherwise, including execution, levy,
garnishment, attachment, pledge and bankruptcy.


 


SECTION 7


AMENDMENT AND
DISCONTINUANCE


 


A.                                   This
Plan may be amended at any time in the sole discretion of the Committee or the
Board by written resolution, provided such amendment complies with applicable
laws including Code Section 409A and the Regulations promulgated
thereunder.  No such amendment shall
affect the time of distribution of any benefit payable hereunder earned prior
to the effective date of such amendment except as the Committee or the Board
may determine to be necessary to carry out the purpose of the Plan.  Written notice of any such amendment shall be
given to each Participant.  In addition,
no such amendment shall make an irrevocable Trust, if any, revocable.


 


B.                                     The
Plan may be terminated at any time in the sole discretion of the Committee or
the Board by a written instrument executed by its members.  Upon termination, the Plan may be liquidated
in accordance with one of the following:


 


1.                                       the
termination and liquidation of the Plan within twelve (12)  months of a complete dissolution of the
Company taxed under Section 331 of the Code or with the approval of a
bankruptcy court pursuant to 11 U.S.C. § 503(b)(1)(A); provided that the
amounts deferred under this Plan are included in the Participants’ gross
incomes in the latest of the following years (or, if earlier, the taxable year
in which the amount is actually or constructively received): (i) the
calendar year in which the Plan is terminated; (ii) the first calendar
year in which the amount is no longer subject to a substantial risk of
forfeiture; or (iii) the first calendar year in which the payment is
administratively practicable;


 


2.                                       the
termination and liquidation of the Plan pursuant to irrevocable action taken by
the Committee or the Company within the thirty (30) days preceding or the
twelve (12) months following a change in control event (as such term is defined
in Section 1.409A-3(i)(5) of the Regulations); provided that all
Aggregated Plans are terminated and liquidated with respect to each Participant
that experienced the change in control event, so that under the terms of the
termination and liquidation, all such Participants are required to receive all


 


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amounts of deferred compensation under this Plan and any other
Aggregated Plans within twelve (12) months of the date the Committee or the
Company irrevocably takes all necessary action to terminate and liquidate this
Plan, and the Committee or the Company, as the case may be, irrevocably takes
all necessary action to terminate and liquidate and such other Aggregated
Plans; or


 


3.                                       the
termination and liquidation of the Plan, provided that: (i) the
termination and liquidation does not occur proximate to a downturn in the
Company’s financial health; (2) the Company or the Committee, as the case
may be, terminates and liquidates all Aggregated Plans; (3) no payments in
liquidation of this Plan are made within twelve (12) months of the date the
Committee or the Company irrevocably takes all necessary action to terminate
and liquidate this Plan, other than payments that would be payable under the
terms of this Plan if the action to terminate and liquidate this Plan had not
occurred; (4) all payments are made within twenty four (24) months of the
date on which the Committee or the Company irrevocably takes all action
necessary to terminate and liquidate this Plan; and (5) the Company does
not adopt a new Aggregated Plan at any time within three (3) years
following the date on which the Committee or the Company, as the case may be,
irrevocably takes all action necessary to terminate and liquidate the Plan.


 


C.                                     In
the event the Committee or Board amends or terminates this Plan, the Company
shall be liable for any benefits that shall have accrued under this Plan to
those persons who are eligible under Section 3 as of the date of such
amendment or termination and the amount of such accrued benefits to be
determined as though the Participant’s Separation from Service had occurred on
the date of such amendment or termination.


 


SECTION 8


ADMINISTRATION


 


A.                                   This
Plan shall be administered by the Plan Administrator as an unfunded plan which
is not intended to meet the qualification requirements of Section 401 of
the Code.  The Plan Administrator shall
have full power to construe and interpret the Plan, and the Plan Administrator’s
decisions in all matters involving the interpretation and application of this
Plan shall be conclusive.  The claims
procedure of the Qualified Plan shall apply to this Plan.


 


B.                                     This
Plan is intended to comply with the requirements of Section 409A of the
Code and the Regulations and other guidance issued thereunder.  Accordingly, the provisions of this Plan shall
be interpreted to the extent necessary to comply with such requirements.


 


C.                                     This
Plan shall at all times be maintained by the Company and administered by the
Plan Administrator as a plan wholly separate from the Qualified Plan.


 


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SECTION 9


ADDITIONAL BENEFIT


 


In addition to the purpose of Section 1 of this
Plan, this Section shall, for individuals who are (or may be later)
specifically named by resolution of the Board of Directors of the Company, increase
the benefit determined under Section 4(a) of this Plan by including
in the benefit calculation all of the individual’s service with the Company
(and its predecessors) from the date of the individual’s initial participation
in the Qualified Plan until the individual’s Separation from Service and
disregarding any breaks in service occurring before January 1, 1990;
provided, however, that each named individual shall be entitled to an
additional benefit derived from this Section only if the individual’s employment
with the Company continues until or after the date he or she attains age 62.


 


Each individual who is specifically named by
resolution of the Board of Directors of the Company to be entitled to the
benefit established by this Section shall receive such benefits upon the
condition that during the period such individual is entitled to payments of
deferred compensation under this Section, he will not directly or indirectly
enter into or engage in any banking or related businesses in the geographic area
served by the Company either as an individual on his own account, as a partner
or joint venturer, as an employee or agent, or as an officer or director of a
competing organization.


 


The Committee may, in its sole discretion and by way
of a resolution, waive or modify the age 62 employment requirement and the
noncompetition requirement for any named individual as well as any other
restrictions imposed on the individuals by the provisions hereof.  Any additional benefit derived from this Section shall
be treated as a benefit payable under Section 4 for the purpose of
Sections 4, 5, 6, and 7 of this Plan.


 


SECTION 10


BENEFITS PROVIDED
UNDER SEPARATE AGREEMENT


 


Notwithstanding any provision of this Plan to the
contrary, the Company may provide benefits under this Plan in accordance with
one or more separate written agreements with an individual, provided the terms
of such agreement(s) state that such benefits shall be paid from this
Plan.  The benefits provided under this
Plan in accordance with such agreement(s) shall be paid in the same manner
as benefits provided under Section 4 hereof and shall be subject to all
provisions of this Plan, unless otherwise specifically provided in such
agreement(s).


 


ORIGINAL BOARD
APPROVAL:  NOVEMBER 18, 1994


AMENDED AND RESTATED
BOARD AND COMMITTEE APPROVAL: NOVEMBER 18, 2008, EFFECTIVE DECEMBER 31, 2008


FURTHER AMENDED
AND RESTATED COMMITTEE APPROVAL:  MARCH 24,
2009, EFFECTIVE JANUARY 1, 2009


 


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