Exhibit 10.23


 


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


COMMON STOCK NON-EMPLOYEE DIRECTOR FEE DEFERRAL PLAN


 


(EFFECTIVE DECEMBER 31, 2008)


 





















 


AMENDED AND RESTATED COMERICA INCORPORATED

COMMON STOCK 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

  	
  8

  
	
  SECTION VIII

  	
  AMENDMENT
  AND TERMINATION

  	
  9

  
	
  SECTION IX

  	
  MISCELLANEOUS
  PROVISIONS

  	
  10

  



 


i





















 


AMENDED AND RESTATED COMERICA
INCORPORATED


COMMON STOCK NON-EMPLOYEE
DIRECTOR FEE DEFERRAL PLAN


 


(EFFECTIVE DECEMBER 31, 2008)


 


SECTION I

PURPOSE


 


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


 


The Common Stock
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 Common Stock Director Fee Deferral
Plan,” and which was subsequently amended and restated on November 26,
2002 as the “Comerica Incorporated Common Stock Director Fee Deferral Plan,”
and on January 27, 2004 as the “Amended and Restated Comerica Incorporated
Common Stock 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 the Common Stock Plan under Section 1.409A-1(c) of
the Regulations.


 


C.                                   “Beneficiary(ies)”
means such individual(s) or entity(ies) designated on the most recent
valid Beneficiary Designation Form that the Participant has properly 


 






	
  (1)

  	
   

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

  



 


1

















 


submitted to the Corporation, or in
accordance with Section VII of this Common Stock 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.                                   “Common Stock” means
the common stock of the Corporation, par value $5.00 per share.


 


H.                                  “Common Stock Plan”
means the Amended and Restated Comerica Incorporated Common Stock 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.


 


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


 


J.                                      “Corporation
Stock Unit Account” means an account established under Section V of this
Common Stock Plan, solely for bookkeeping purposes, in the name of each
Participant to record those Director Fees that are deferred under this Common
Stock Plan on the Participant’s behalf and the earnings and dividends thereon.


 


K.                                  “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.


 


L.                                    “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.


 


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


 


N.                                  “Participant” means
an Eligible Director for whom a Corporation Stock Unit Account is maintained
under the Common Stock Plan.


 


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


 


2

















 


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.                                   “Stock Unit” means a
unit equivalent to a share of Common Stock that is maintained for the benefit
of a Participant in the Corporation Stock Unit Account of such Participant.


 


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


 


T.                                   “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 Common
Stock 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 Common Stock
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 Common Stock Plan, a Participant may not
receive distributions of such 


 


3

















 


deferred
amounts, except in accordance with Section VI of this Common Stock Plan.


 


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 Common Stock Plan may cover all or a portion (0% –
100%) of the Director Fees which may be deferred.


 


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 Common Stock 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.                                 Director
Fees, which have been deferred under the Common Stock Plan, and deemed earnings
thereon, shall be credited to a Corporation Stock Unit Account created by and
recorded on the books of the Corporation from time to time.  The Corporation Stock Unit Account shall be
adjusted as follows:


 


4














 


1.                                       A
Participant’s Corporation Stock Unit Account shall be deemed to be invested in
Common Stock.  In the event the
Corporation, in its sole and absolute discretion, has purchased shares of
Common Stock that may be used for meeting its obligations to provide benefits
under this Common Stock Plan, whether such shares are held in a rabbi trust for
its own benefit to fund the Corporation’s obligations under this Common Stock
Plan, or held in the Corporation’s own name or for its own account (as general
assets of the Corporation), the purchase 
price for the Stock Units shall be the actual price of the corresponding
shares of Common Stock that the Corporation purchases on the open market,
provided such purchase(s) occurs on the date the Director Fees would have
otherwise been paid to the director had they not been deferred.


 


2.                                       In
the event that (1) the Corporation, in its sole and absolute discretion,
has not purchased shares of Common Stock that may be used for meeting its
obligations to provide benefits under this Common Stock Plan or (2) has
purchased such shares as described above, but the purchase does not occur on
the date the Director Fees would have otherwise been paid to the director had
they not been deferred, then the purchase price of Stock Units shall be based
upon the closing price for the Common Stock on the New York Stock Exchange on
the day that the Director Fees would have otherwise been paid to the director
had they not been deferred.


 


3.                                       To
the extent the Corporation, in its sole and absolute discretion, has purchased
shares of Common Stock that may be used for meeting its obligations to provide
benefits under this Common Stock Plan, whether such shares are held in a rabbi
trust for its own benefit to fund the Corporation’s obligations under this
Common Stock Plan, or held in the Corporation’s own name or for its own account
(as general assets of the Corporation), no Participant shall have any right to
vote any shares of Common Stock held in the rabbi trust or otherwise owned by
the Corporation in respect of its obligations hereunder.


 


4.                                       A
Participant’s Corporation Stock Unit Account shall be charged each business day
with any distributions made on such day. 
Such Corporation Stock Unit Account shall also be credited with deemed
earnings, gains and losses each business day, using the closing price for
Common Stock on the New York Stock Exchange as of the most recent prior trading
day.  Dividends shall be deemed to be
reinvested in Common Stock and shall be credited at the time actual dividends
are paid, with the number of Stock Units attributable to a dividend being
calculated by dividing the dollar amount of the dividend by the closing price
of the Common Stock 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 Common
Stock 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 Common Stock Plan, then
dividends shall be credited based on the purchase price(s) for the shares
of Common Stock 


 


5

















 


determined as in Section V(A) above.  Finally, a Participant’s Corporation Stock
Unit Account shall be credited with the amount, if any, of Director Fees
deferred and designated to be credited to such account during each quarter, or
on a more frequent basis if deemed appropriate by the Committee.


 


B.                                     Changes
in Capitalization.  The shares of
Common Stock in the Corporation Stock Unit Accounts shall be subject to
adjustment or substitution, as determined in the sole discretion of the Board
of Directors of the Corporation, in the event of any change in corporate
capitalization, such as a stock split or a corporate transaction, such as any
merger, consolidation, separation, including a spin off, or other distribution
of stock or property of the Corporation, any reorganization (whether or not
such reorganization comes within the definition of such term in Section 368
of the Code) or any partial or complete liquidation of the Corporation.


 


SECTION VI


DISTRIBUTION OF DEFERRED FEES


 


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


 


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.


 


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 distributions 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 number of shares of Common Stock distributable in each installment
shall be determined by multiplying the amounts subject to the Deferral Election
Form on the date the installment is scheduled to be distributed 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 is scheduled to commence, the fair market value of the
Participant’s 


 


6

















 


Corporation Stock Unit Account
does not exceed $10,000, notwithstanding an election by the Participant that
such account be distributed in installments, the Stock Units in such account
shall be distributed in shares of Common Stock to the Participant in a lump
sum.  For purposes of this Section VI(A)(2)(a),
the fair market value of a Corporation Stock Unit Account shall be based on the
closing price of the Common Stock on the New York Stock Exchange 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
Common Stock Plan, upon the death of a Participant, the remaining balance of
his or her Corporation Stock 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 Corporation Stock Unit
Account, the Committee may, in its sole discretion, direct a distribution to
the Participant, within ninety (90) days following such Unforeseeable
Emergency, of the number of shares of Common Stock with a fair market value
equal to 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 Common Stock Plan on
account of an Unforeseeable Emergency shall submit to the Committee a written
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 Corporation
Stock Unit Account is required to be included in income by the Participant
prior to receipt due to a failure of this Common Stock 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 Corporation Stock Unit Account required to be
included in income as a result of the failure of the Common Stock Plan or any
Aggregated Plan to comply with 


 


7

















 


the
requirements of Code Section 409A and the Regulations, or (ii) the
balance of the Participant’s Corporation Stock 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 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 Common Stock 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 Corporation Stock 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 


 


8

















 


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 undistributed Stock Units in the Participant’s
Corporation Stock Unit Account remaining at the time of the Participant’s death
shall be distributed in shares 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 remaining Stock
Units in the Participant’s Corporation Stock Unit Account shall be distributed
in shares in a single distribution to the legal representative for the benefit
of the Participant’s estate.


 


SECTION VIII

AMENDMENT AND TERMINATION


 


A.                                   Amendment
of Plan.  The Common Stock Plan may
be amended at any time in the sole discretion of the Committee or the Board, by
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 Common Stock Plan.


 


B.                                     Termination
of Plan.  The Common Stock 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 Common
Stock Plan, the Corporation Stock Unit Accounts may be liquidated in accordance
with one of the following:


 


1.                                       the
termination and liquidation of the Common Stock 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 the Common Stock 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 Common Stock 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 Common Stock 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 


 


9

















 


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 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 Common Stock 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 the Common Stock Plan are made within twelve (12)
months of the date the Committee or the Corporation irrevocably takes all
necessary action to terminate and liquidate the Common Stock Plan, other than
payments that would be payable under the terms of the Common Stock Plan if the
action to terminate and liquidate the Common Stock 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 the Common Stock Plan; and (v) 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 Common Stock Plan.


 


SECTION IX

MISCELLANEOUS PROVISIONS


 


A.                                   Participant
Consent.  By electing to defer
compensation pursuant to the Common Stock Plan, Participants shall be deemed
conclusively to have accepted and consented to all terms of the Common Stock
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 Common Stock Plan.  Such
terms and consent shall also apply to, 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 Common Stock 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 


 


10

















 


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 amounts 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 Common Stock Plan. Full power and authority to construe, interpret, and
administer the Common Stock 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
Common Stock 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 Common Stock Plan may be
ratably deducted (using average balances) on an annual basis from Corporation
Stock Unit Accounts.


 


G.                                     Effective
Date.  The terms of this Common Stock
Plan, as amended and restated, shall apply to all Director Fees deferred under
this Common Stock 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
Corporation Stock Unit Account at the time of the adoption of this amendment
and restatement of the Common Stock Plan.


 


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


 


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


 


11

















 


K.                                    Governing
Laws and Rules of Construction. 
This Common Stock 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 Common Stock
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 Common Stock 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 Common Stock 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 Corporation Stock 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 Common Stock 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 Common Stock 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 Common
Stock Plan nor the distribution of any benefits hereunder or any 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.


 


12