Exhibit 10.22


 


Amended and Restated as of December 31,
2008


Governance, Compensation and Nominating
Committee Approval: November 18, 2008


Board Approval: November 18, 2008


 


AMENDED AND RESTATED
COMERICA INCORPORATED


NON-EMPLOYEE DIRECTOR FEE
DEFERRAL PLAN


 


(EFFECTIVE DECEMBER 31,
2008)


 

















 


AMENDED AND RESTATED COMERICA
INCORPORATED

NON-EMPLOYEE DIRECTOR FEE DEFERRAL PLAN


 


(EFFECTIVE DECEMBER 31,
2008)


 


TABLE OF CONTENTS


 


	
  SECTION I

  	
  PURPOSE

  	
  1

  
	
  SECTION II

  	
  DEFINITIONS

  	
  1

  
	
  SECTION III

  	
  ELIGIBILITY

  	
  3

  
	
  SECTION IV

  	
  PROCEDURES RELATING
  TO DEFERRALS

  	
  3

  
	
  SECTION V

  	
  CREDITING AND
  ADJUSTING ACCOUNTS

  	
  4

  
	
  SECTION VI

  	
  DISTRIBUTION OF
  DEFERRED FEES

  	
  6

  
	
  SECTION VII

  	
  DESIGNATION OF
  BENEFICIARY

  	
  9

  
	
  SECTION VIII

  	
  AMENDMENT AND
  TERMINATION

  	
  9

  
	
  SECTION IX

  	
  MISCELLANEOUS
  PROVISIONS

  	
  10

  



 


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AMENDED AND RESTATED
COMERICA INCORPORATED

NON-EMPLOYEE DIRECTOR FEE DEFERRAL PLAN


 


(EFFECTIVE DECEMBER 31,
2008)


 


SECTION I

PURPOSE


 


The purpose of the Amended and Restated Comerica
Incorporated Non-Employee Director Fee Deferral Plan (the “Plan”) is to allow
Eligible Directors to defer their Director Fees, under the conditions provided
herein, into an Investment Fund Unit Account. 
Eligible directors of the Corporation, directors of any Subsidiary or
directors of any Advisory Board may defer all or any portion of their Director
Fees into an Investment Fund Unit Account, as requested by such director.


 


The Plan was originally established as the “Comerica
Incorporated Plan for Deferring the Payment of Director’s Fees.”  In 1997, such plan was amended and restated
as the “Comerica Incorporated Director Fee Deferral Plan.”  Then on May 21, 1999, the plan was
divided into two plans, one of which became the “Comerica Incorporated 1999
Discretionary Director Fee Deferral Plan,” and which was subsequently amended
and restated on November 26, 2002 as the “Comerica Incorporated Director
Fee Deferral Plan,” and on January 27, 2004 as the “Comerica Incorporated
Non-Employee Director Fee Deferral Plan”.(1)  Subsequently, on November 18,
2008, the Plan was amended and restated, effective December 31, 2008, to
accurately reflect its administration and to comply with the requirements of
Code Section 409A.


 


SECTION II

DEFINITIONS


 


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


 


A.                     “Advisory
Board” means a special board of directors appointed to advise a Subsidiary or
unit of the Corporation.


 


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


 










(1) The second plan which resulted from
the division was named the “Comerica Incorporated 1999 Common Stock Director
Fee Deferral Plan,” which was amended and restated on November 26, 2002 as
the “Comerica Incorporated Common Stock Director Fee Deferral Plan” and was
further amended and restated on January 27, 2004 as the “Amended and
Restated Comerica Incorporated Common Stock Non-Employee Director Fee Deferral
Plan” and again amended and restated, effective November 18, 2008.


 


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C.                       “Beneficiary(ies)”
means such individual(s) or entity(ies) designated on the most recent
valid Beneficiary Designation Form that the Participant has properly
submitted to the Corporation or in accordance with Section VII of this
Plan, if there is no valid Beneficiary designation.


 


D.                      “Beneficiary
Designation Form” is the form used to designate the Participant’s Beneficiary(ies),
as modified by the Plan Administrator or the Committee from time to time.


 


E.                        “Code”
means the Internal Revenue Code of 1986, as amended, or any successor statute.


 


F.                        “Committee”
means the Governance, Compensation and Nominating Committee of the Board of
Directors of the Corporation, or any successor committee duly authorized by the
Board of Directors of the Corporation.


 


G.                       “Corporation”
means Comerica Incorporated, a Delaware corporation, and its successors and
assigns.


 


H.                      “Deferral
Election Form” is the form used to defer the payment of unearned Director Fees
timely submitted by a Participant, as modified by the Plan Administrator or the
Committee from time to time.


 


I.                           “Director
Fees” means the fees paid in connection with the performance of duties as an
Eligible Director, including attendance fees, retainer fees and fees for
serving as chair or vice-chair of any committee of the board of the Corporation
or its Subsidiaries or an Advisory Board.


 


J.                          “Eligible
Director” means a director of the Corporation, a Subsidiary or Advisory Board
who is not an employee of the Corporation or any Subsidiary.


 


K.                      “Investment
Fund Unit” means a unit equivalent to a fund share that is maintained for the
benefit of a Participant in an Investment Fund Unit Account of such
Participant.


 


L.                        “Investment
Fund Unit Account” means an account established under Section V of this
Plan, solely for bookkeeping purposes, in the name of each Participant to
record those Director Fees that have been deferred to such account and the
earnings thereon.


 


M.                   “Participant”
means an Eligible Director for whom an Investment Fund Unit Account is
maintained under the Plan.


 


N.                      “Plan” means
the Amended and Restated Comerica Incorporated Non-Employee Director Fee
Deferral Plan, the provisions of which are set forth herein, as it may be
further amended and restated from time to time.


 


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O.                      “Plan
Administrator” means one or more individuals appointed by the Committee to
handle the day-to-day administration of the Plan.


 


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


 


Q.                      “Retirement”
means the date of the next annual shareholder’s meeting of the Corporation
immediately following the Director’s 70th birthday.


 


R.                       “Subsidiary”
means any corporation, partnership or other entity, a majority of whose stock
or interests is or are owned by the Corporation.


 


S.                        “Unforeseeable
Emergency” means a severe financial hardship to the Participant resulting from
a sudden and unexpected illness or accident of the Participant, the Participant’s
spouse, or a dependent (as defined in Code Section 152, without regard to Section 152(b)(1),
(b)(2), and (d)(1)(B)) of the Participant; loss of the Participant’s property
due to casualty (including the need to rebuild a home following damage to a
home not otherwise covered by insurance, for example not as a result of a
natural disaster); or other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of the
Participant.  This definition shall be
construed in a manner that is consistent with Code Section 409A and the
Regulations promulgated thereunder.


 


SECTION III

ELIGIBILITY


 


Each Eligible Director shall be eligible to
participate in the Plan.


 


SECTION IV

PROCEDURES RELATING TO DEFERRALS


 


A.                                 Deferral
of Director Fees.  Eligible Directors
may defer any portion (0% - 100%) of their Director Fees under this Plan.


 


1.                                       Deferral
Period. Director Fees may be deferred pursuant to this Section IV(A) for
the period specified by the Eligible Director or Participant in a Deferral
Election Form.  The minimum deferral
period for Director Fees deferred pursuant to this Section IV(A) shall
be the lesser of the number of years remaining before Retirement, as defined in
Section II(R), or five (5) years from the date of service for which
the Director Fees became payable, notwithstanding the deferral election under
this Plan.  With respect to a Director
whose service commences during a calendar year, the deferral period with
respect to Director Fees earned during such year shall include the full
calendar year in which his or her services commence.


 


2.                                       Deferred
Director Fees.  Once Director Fees
are deferred under this Plan, the Participant may not receive distributions of
such deferred amounts, except in accordance with Section VI of this Plan.


 


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B.                                     Deferral
Procedures.  Any Eligible Director
wishing to defer Director Fees must submit a Deferral Election Form to
Human Resources, Compensation, Comerica Bank Tower, 1717 Main Street, MC 6515,
Dallas, Texas 75201 or to such other unit or person as designated by the
Committee from time to time, within the time frame permitted by the Plan
Administrator, which shall in no event be later than the last business date
preceding the calendar year during which the Director Fees are to be
earned.  However, any newly-appointed or
newly-elected director may submit a Deferral Election Form with respect to
unearned Director Fees within thirty (30) days of his or her appointment or
election.  A deferral election pursuant
to this Plan may cover all or a portion (0% - 100%) of the Director Fees which
may be deferred, and shall designate into which investment fund and in what
proportions the Director Fees should be recorded.


 


In the event a Participant does not indicate an
appropriate minimum deferral period in a Deferral Election Form, such
Participant’s applicable Director Fees shall be deferred for a period of five (5) years
from the date of service for which the Director Fees became payable,
notwithstanding the deferral election under this Plan.  If a Participant does not indicate the method
of deferral, such Director Fees shall be paid out in a single lump sum at the
end of the deferral period.


 


C.                       Modifications/Irrevocability.  The Participant’s deferral election shall
remain in effect with respect to all unearned Director Fees unless the
Participant modifies such election prior to the date on which the election
becomes irrevocable with respect to such fees. Except to the extent expressly
provided under the Plan or permitted under Code Section 409A and the
Regulations promulgated thereunder, the provisions of the Deferral Election Form relating
to an election to defer Director Fees and the selection of the deferral period
and manner of payment of the deferrals shall be irrevocable as of the last date
on which such Deferral Election Form may be submitted in accordance with Article IV(B).  If a director has submitted a Deferral
Election Form relating to Director Fees to be earned in the future, he or
she may modify or cancel such election by submitting a new Deferral Election Form at
any time prior to the date on which such election is irrevocable with respect
to such fees.


 


D.                                    Subsequent
Elections.  A Director is not
permitted to make a subsequent election with respect to the timing or form of
payment of any Director Fees deferred under this Plan pursuant to a Deferral
Election Form that has become irrevocable in accordance with Article IV(C)above.


 


SECTION V

CREDITING AND ADJUSTING ACCOUNTS


 


A.                                   Value
of Investment Fund Unit Account. 
Director Fees which have been deferred under this Plan, and deemed
earnings thereon, shall be credited to Investment Fund Unit Accounts created by
and recorded on the books of the Corporation from time to time.  Each Investment Fund Unit Account shall be
adjusted as follows:


 


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1.                                       Each Participant’s Investment Fund Unit Account
shall be deemed to be invested in one or more of the investment funds offered
for investment and designated by such Participant in the manner determined by
the Plan Administrator.  In the event the
Corporation purchases investment fund shares on the open market that may be
used for meeting its obligations to provide benefits under this Plan, whether
such shares are held in a rabbi trust established in the Corporation’s sole and
absolute discretion for its own benefit to fund the Corporation’s obligations
under this Plan or otherwise held in the Corporation’s own name or for its own
account (as general assets of the Corporation), the purchase price for
Investment Fund Units shall be the actual price of the corresponding shares
purchased by the Corporation on the open market, provided such purchase(s) occurs
within forty (40) business days of the date the Director Fees would have
otherwise been paid to the director had they not been deferred.  The Investment Fund Unit Accounts of
Participants deferring fees from the same annual retainer payment or the same meeting will be credited on the same
basis (e.g., by averaging prices) if investment fund shares are purchased on
different days.  No Participant shall
have any right to vote any shares of the investment funds held in the rabbi
trust or otherwise owned by the Corporation in respect of its obligations
hereunder.


 


In the event that the Corporation has not
purchased shares on the open market that may be used for meeting its
obligations to provide benefits under this Plan, the purchase price for
Investment Fund Units under this Plan shall be based upon the closing price for
the corresponding investment fund shares on the exchange on which the relevant
investment fund is listed or the market on which such investment fund is traded
on the day that the Director Fees would have otherwise been paid to the
Participant had they not been deferred.


 


2.                                       A
Participant’s Investment Fund Unit Account
shall be charged each business day with any distributions made on such
day.  Such Investment Fund Unit Account
shall also be credited with deemed earnings, gains and losses each
business day, using the closing price for the designated investment fund
on the exchange on which such investment fund is listed or the market on which
such investment fund is traded as of the most recent prior trading
day.  Dividends shall be deemed to be reinvested in like investment funds
and shall be credited at the time actual dividends are paid, with the number of
Investment Fund Units attributable to a dividend being calculated by dividing
the dollar amount of the dividend by the closing price of a share of the
designated investment fund on the dividend payment date; provided that if the
Corporation, in its sole and absolute discretion, has established a rabbi trust
for its own benefit to fund the Corporation’s obligations under this Plan, or
otherwise purchased shares to be held in its own name, or for its own account
(as general assets of the Corporation), that may be used for meeting its
obligations to provide benefits under this Plan, then dividends shall be
credited based on the purchase price(s) for the investment fund shares, as
determined under Section V.A.1. above. 
Finally, a Participant’s Investment Fund Unit Account shall be credited
with the amount, if any, of Director Fees deferred and designated to be
credited to such 


 


5





















 


account during each quarter, or
on a more frequent basis if deemed appropriate by the Committee.


 


B.                                     Reallocation
of Existing Account Balances.  Each
Participant may reallocate all or a portion of his or her existing Investment
Fund Unit Account to an alternate investment fund or funds, as an investment
option with respect to existing deferred Director Fees, in the manner
designated by the Corporation for this purpose. To the extent the Corporation
has purchased investment fund shares on the
open market that may be used for meeting its obligations to provide benefits
under this Plan, whether such shares are held in a rabbi trust established in
the Corporation’s sole and absolute discretion for its own benefit to fund the
Corporation’s obligations under this Plan or otherwise held in the Corporation’s
own name or for its own account (as general assets of the Corporation), (1) the
Plan Administrator may delay any reallocation request because of a trading
blackout period or any other trading restriction which may be imposed on the
Corporation, whether voluntary or involuntary, and (2) no transfers
between investment options will be allowed if prohibited by the rules applicable
to the particular investment fund from or to which a transfer is to be made or
by rules adopted by the Plan Administrator and communicated to the
Participants.


 


C.                                     Reallocation
of Future Deferral Elections.  Each
Participant may reallocate all or a portion of his or her Investment Fund Unit
Account to change prospectively the percentage(s) of an investment and/or
designate an alternate investment fund or funds, as an investment option with
respect to future deferred Director Fees in the manner designated by the
Corporation for this purpose.  To the
extent the Corporation purchases investment
fund shares on the open market that may be used for meeting its obligations to
provide benefits under this Plan, whether such shares are held in a rabbi trust
established in the Corporation’s sole and absolute discretion for its own
benefit to fund the Corporation’s obligations under this Plan or otherwise held
in the Corporation’s own name or for its own account (as general assets of the
Corporation), the Plan Administrator may delay any reallocation request
because of a trading blackout period or any other trading restriction which may
be imposed on the Corporation, whether voluntary or involuntary.


 


SECTION VI

DISTRIBUTION OF DEFERRED FEES


 


A.                                 Time
and Manner.  Subject to the
provisions of Section IV of this Plan, distribution of the Participant’s
Investment Fund Unit Account shall be made in cash at such time and in such
manner, i.e., a lump sum or installments, as the Participant has specified in
the Deferral Election Form.


 


1.                                       Lump
Sum Distributions.  If the
Participant elects to receive a lump sum distribution, the Corporation shall
make a single payment of the amounts subject to that election in the applicable
Deferral Election Form in the calendar year following the calendar year in
which the deferral period ends.  If a
Participant fails to indicate a payment method, the Participant shall be deemed
to have elected a lump sum distribution.


 


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2.                                       Installment
Distributions. If the Participant elects to receive installment
distributions, the Corporation shall make installment payments of the amounts
subject to that election in the applicable Deferral Election Form over a
period of time as specified by the Participant on the applicable Deferral
Election Form.  Installment payments
shall commence in the calendar year following the calendar year in which the
deferral period ends.  A Participant may
choose an applicable installment period from the options designated by the
Corporation on the Deferral Election Form, which shall not exceed ten (10) years
from the date of distribution of the first installment.  The amount of each installment payment shall
be determined by multiplying the amounts subject to such Deferral Election Form on
the date the installment is scheduled to be paid by a fraction, the numerator
of which is one and the denominator of which is the number of unpaid
installments remaining at such time.


 


a.                                       Less
than $10,000. If, at the time an installment distribution of an Investment
Fund Unit Account is scheduled to commence, the fair market value of all the
Investment Fund Units in such Investment Fund Unit Account does not exceed
$10,000, notwithstanding an election by the Participant that such account be
distributed in installments, the balance of such account shall be distributed
to the Participant in a lump sum, in cash. For purposes of this Section VI(A)(2)(a),
the fair market value of an Investment Fund Unit shall be based on the closing
price of the corresponding investment fund on the exchange on which such investment fund is listed or the market on which
such investment fund is traded, on the trading day prior to the
distribution of either the lump sum payment or installment payment.


 


B.                                   Death.  Notwithstanding any other provision of the
Plan, upon the death of a Participant, the remaining balance of his or her
Investment Fund Unit Account shall be distributed in one lump sum to the
Participant’s Beneficiary(ies) within ninety (90) days after the date of the
Participant’s death.


 


C.                                   Hardship
Distributions.  In the event of an
Unforeseeable Emergency prior to distribution of the entire balance of the
Participant’s Investment Fund Unit Account, the Committee may, in its sole
discretion, direct a distribution to the Participant, within ninety (90) days
following such Unforeseeable Emergency, in an amount reasonably necessary, in
the judgment of the Committee, to satisfy the financial hardship occasioned by
the Unforeseeable Emergency, plus amounts necessary to pay any Federal, state,
local or foreign income taxes anticipated as a result of the distribution or
cancel a future deferral election with respect to the amount reasonably
necessary, in the judgment of the Committee, to alleviate such financial
hardship.  However, no distribution will
be made on account of an Unforeseeable Emergency to the extent that such
emergency is or may be relieved through reimbursement or compensation from
insurance or otherwise, by liquidation of the Participant’s assets, to the
extent the liquidation of such assets would not cause severe financial
hardship, or by cessation of deferrals under the Plan.  Any Participant desiring a distribution under
the Plan on account of an Unforeseeable Emergency shall submit to the Committee
a written 


 


7

















 


request for such distribution
which sets forth in reasonable detail the Unforeseeable Emergency which would
cause the Participant severe financial hardship, and the amount which the
Participant believes to be necessary to alleviate the financial hardship.  Any Participant who receives a hardship
distribution shall have his deferral election cancelled hereunder and shall not
again be eligible to submit a deferral election until the next enrollment
period after the calendar year in which the hardship distribution is made.


 


D.                                    Distribution
in the Event of Income Inclusion Under Code Section 409A.  If any portion of a Participant’s Investment
Fund Unit Account 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 Participant’s
Investment Fund Unit Account 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 balance of the
Participant’s Investment Fund Unit Account.


 


E.                                      Delay
for Payments in Violation of Federal Securities Laws or Other Applicable Law.  In the event the Corporation reasonably
anticipates that the payment of benefits as specified hereunder would violate
Federal securities laws or other applicable law, the Committee may delay the
payment under this Section VI until the earliest date at which the
Corporation reasonably anticipates that making of such payment would not cause
such violation.


 


F.                                      Delay
for Insolvency or Compelling Business Reasons.  In the event the Corporation determines that
the making of any payment of benefits on the date specified hereunder would
jeopardize the ability of the Corporation to continue as a going concern, the
Committee may delay the payment of benefits under this Section VI until
the first calendar year in which the Corporation notifies the Committee that
the payment of benefits would not have such effect.


 


G.                                     Administrative
Delay in Payment.  The payment of
benefits hereunder shall begin at the date specified in accordance with the
provisions of the foregoing paragraphs of this Section VI; provided that,
in the case of administrative necessity, the payment of such benefits 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 Beneficiary), it is not administratively practicable for the Plan
Administrator 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.


 


H.                                    No
Participant Election. 
Notwithstanding the foregoing provisions, if the period during which
payment of benefits hereunder will be made occurs, or will occur, in 


 


8

















 


two calendar years, the
Participant shall not be permitted to elect the calendar year in which the
payment shall be made.


 


SECTION VII

DESIGNATION OF BENEFICIARY


 


Upon becoming a Participant of the Plan, each director shall submit to Human
Resources, Compensation, Comerica Bank Tower, 1717 Main Street, MC 6515,
Dallas, Texas 75201  (or to such
other unit or person as designated by the Committee from time to time) a
Beneficiary Designation Form designating one or more Beneficiaries to whom
distributions otherwise due the Participant, shall be made in a lump sum
payment in the event of the Participant’s death before distribution of the
Participant’s Investment Fund Unit Account has been completed.  A Beneficiary Designation Form will be
effective only if it is signed by the Participant and submitted before the
Participant’s death.  Any subsequent
Beneficiary Designation Form properly submitted will supersede any
previous Beneficiary Designation Form so submitted.  If a Participant designates a spouse as a
Beneficiary, such designation shall automatically terminate and be of no effect
following the divorce of the Participant and such individual, unless ratified
in writing post-divorce.


 


If the primary Beneficiary shall predecease the
Participant, or the primary Beneficiary and the Participant die in a common
disaster under such circumstances that it is impossible to determine who
survived the other, the portion of the Investment Fund Unit Account that
remains undistributed at the time of the Participant’s death shall be paid to
the alternate Beneficiary(ies) who survive(s) the Participant.  If there are no alternate Beneficiaries
living or in existence at the date of the Participant’s death, or if the
Participant has not submitted a valid Beneficiary Designation Form to the
Corporation, the balance of the account shall be paid in a lump sum
distribution to the legal representative for the benefit of the Participant’s
estate.


 


SECTION VIII

AMENDMENT AND TERMINATION


 


A.                     Amendment
of Plan.  This Plan may be amended at
any time in the sole discretion of the Board or Committee, by a written
resolution, to the extent that 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 of the Incentive Awards earned prior to
the time of such amendment except as the Committee may determine to be
necessary to carry out the purpose of the Plan.


 


B.                       Termination
of Plan.  The Plan may be terminated
at any time in the sole discretion of the Board or Committee by a written
resolution of its members. Following the termination of the Plan, the
Investment Fund Unit Accounts may be liquidated in accordance with one of the
following:


 


9

















 


1.                                       the
termination and liquidation of the Plan within twelve (12)  months of a complete dissolution of the
Corporation 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 Corporation 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, so that under the terms of the
termination and liquidation, all such Participants are required to receive all
amounts of deferred compensation under this Plan and any other Aggregated Plans
within twelve (12) months of the date the Committee or the Corporation
irrevocably takes all necessary action to terminate and liquidate this Plan and
the date the Committee (or the Corporation, as the case may be) irrevocably
takes all necessary action to terminate and liquidate such other Aggregated
Plans;


 


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


 


SECTION IX

MISCELLANEOUS PROVISIONS


 


A.                     Participant
Consent.  By electing to defer
compensation pursuant to the Plan, Participants shall be deemed conclusively to
have accepted and consented to all terms of the Plan as amended from time to
time, and all actions or decisions made or to be made by the Corporation, the
Board of Directors, the Committee or the Plan Administrator with regard to the
Plan.  Such terms and consent shall also
apply to, 


 


10

















 


and be binding upon, the Beneficiaries,
distributees and personal representatives and other successors in interest of
each Participant.


 


B.                       Notice.  Any election made, or notice given by a
Participant pursuant to the Plan shall be in writing to the Committee, or to
such representative as may be designated by the Committee for such
purpose.  Notice shall be deemed to have
been made or given on the date received by the Committee or its designated
representative.


 


C.                       Competency.  If the Committee determines that any person
to whom a payment is due hereunder is a minor, or is adjudicated incompetent by
reason of physical or mental disability, the Committee shall have the power to
cause the payments becoming due to such person to be made to the legal guardian
for the benefit of the minor or incompetent, without responsibility of the
Corporation or the Committee to see to the application of such payment, unless
prior to such payment claim is made therefore by a duly appointed legal
representative.  Payments made pursuant
to such power shall operate as a complete discharge of the Corporation, the
Board of Directors and the Committee.


 


D.                      Nonalienation
of Benefits.  Neither the Participant
nor any Beneficiary designated by him or her shall have any right to alienate,
assign, or encumber any benefits that are or may be distributed hereunder, nor
may any such amount be subject to attachment, garnishment, levy, execution or
other legal or equitable process for the debts, contracts, liabilities,
engagements or acts of any Participant or Beneficiary.


 


E.                        Administration
of Plan.  Full power and authority to
construe, interpret, and administer the Plan shall be vested in the Committee.
To the extent permitted by law, the Committee may delegate any authority it
possesses to the Plan Administrator. To the extent the Committee has delegated
authority concerning a matter to the Plan Administrator, any reference in the
Plan to the “Committee” insofar as it pertains to such matter, shall refer
likewise to the Plan Administrator. Decisions of the Committee shall be final,
conclusive, and binding upon all parties.


 


F.                        Fees
and Expenses of Administration.  If
the Committee so determines, reasonable trustee’s fees (if applicable) and
reasonable out-of-pocket expenses of administering the Plan may be ratably
deducted (using average balances) on an annual basis from Investment
Fund Unit Accounts. In the event the
Corporation, in its sole and absolute discretion, has established a rabbi trust
for its own benefit to fund the Corporation’s obligations under this Plan, or
otherwise purchased shares to be held in its own name, or for its own account
(as general assets of the Corporation), that may be used for meeting its
obligations to provide benefits under this Plan and fees of any kind, including,
without limitation, redemption fees, are assessed or imposed thereto by
an investment fund company in connection with any purchase or sale, including,
without limitation, a Participant’s early trading activity, such fees shall be
charged to the applicable Participant’s Investment Fund Unit Account.


 


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G.                       Effective
Date.  The terms of this Plan shall
apply to all Director Fees deferred under this Plan or one of its predecessors
on and after December 31, 2008, except to the extent that retroactive
application would adversely affect the rights of a Participant or Beneficiary
to the amounts in the applicable Investment Fund Unit Account at the time of
the adoption of this amendment and restatement of the Plan.


 


H.                      Statements
to Participants.  Statements will be
provided to Participants under the Plan on at least an annual basis.


 


I.                           Nonforfeitability
of Participant Accounts.  Each
Participant shall be fully vested in his or her Investment Fund Unit Account,
and the right to receive the amounts in the Investment Fund Unit Account shall
be nonforfeitable.


 


J.                          Successors
Bound.  The contractual agreement
between the Corporation and each Participant resulting from the execution of a
Deferral Election Form shall be binding upon and inure to the benefit of
the Corporation, its successors and assigns, and to the Participant and to the
Participant’s beneficiaries, heirs, executors, administrators and other legal
representatives.


 


K.                      Governing
Law and Rules of Construction. 
This Plan shall be governed in all respects, whether as to construction,
validity or otherwise, by the laws of the State of Delaware unless preempted by
Federal law.


 


L.                        Compliance &
Severability.  It is the Corporation’s
intent to comply with all applicable tax and other laws, including Code Section 409A
and the Regulations promulgated thereunder, so that all rights under the Plan
will be limited as necessary in the judgment of the Committee to conform
therewith.  Therefore, consistent with
the effectuation of the purposes hereof, each provision of this Plan shall be
treated as severable, to the end that, if any one or more provisions shall be
adjudged or declared illegal, invalid or unenforceable, this Plan shall be
interpreted, and shall remain in full force and effect, as though such
provision or provisions had never been contained herein. It is the intention of
the Corporation that the Plan established hereunder be “unfunded” for income
tax purposes, whether or not the Corporation establishes a rabbi trust, and the
provisions hereof shall be construed in a manner to carry out that intention.


 


M.                   Ownership of
Deferred Director Fees and Continued Director Status.  Title to and beneficial ownership of any
assets, of whatever nature, which may be allocated by the Corporation to any
Investment Fund Unit Account in the name of any Participant shall at all times
remain with the Corporation and its Subsidiaries, and no Participant or
Beneficiary shall have any property interest whatsoever in any specific assets
of the Corporation or its Subsidiaries by reason of the establishment of the
Plan. The rights of each Participant and Beneficiary hereunder shall be limited
to enforcing the unfunded, unsecured promise of the Corporation and its
Subsidiaries to pay benefits under the Plan, and the status of any Participant
or Beneficiary shall be that of an unsecured general creditor of the
Corporation and its Subsidiaries. 
Neither the establishment of the Plan nor the distribution of any
benefits hereunder or any 


 


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action of the Corporation, its Board of
Directors or any committee thereto, shall be held or construed to confer upon
any person the legal right to remain a director of the Corporation or any
Subsidiary or any Advisory Board beyond the term for which he or she was
elected or appointed to the board(s) on which he or she serves.


 


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