|COMERICA INC /NEW/ filed this Form 8-K on 01/11/2019|
RESTRICTIVE COVENANTS AND GENERAL RELEASE AGREEMENT
THIS RESTRICTIVE COVENANTS AND GENERAL RELEASE AGREEMENT (the “Agreement”) is entered into on January 8, 2019 between Michael H. Michalak (hereafter “Executive”) and Comerica Incorporated, a Delaware corporation, for the benefit of Comerica Incorporated, Comerica Bank, a Texas banking association, all of their past, present and future subsidiaries, affiliates, predecessors, and successors, and all of their subsidiaries and affiliates, (hereafter all individually and collectively referred to as “Comerica”). This Agreement sets forth the complete understanding and agreement between Comerica and Executive relating to Executive’s employment and cessation of employment with Comerica. This Agreement shall be effective as of the Effective Date (as defined in Paragraph 18 below), and in the event the Effective Date does not occur, this Agreement shall be void ab initio.
Accordingly, Executive and Comerica hereby agree as follows:
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accordance with Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and the terms of the applicable plan. Executive must elect COBRA and complete all COBRA documentation within sixty (60) days from the Separation Date for coverage to take effect.
Assuming Executive elects COBRA continuation coverage under Comerica’s medical benefit plan, Executive shall be eligible to continue medical benefit plan coverage under COBRA for the period of coverage under COBRA, with the cost of such coverage to be paid by Executive pursuant to the terms generally applicable to retired employees of Comerica as in effect from time to time. Executive’s conversion rights under other insurance programs following the Separation Date shall be determined in accordance with the terms of the applicable plan.
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and the 1999 Comerica Incorporated Amended and Restated Common Stock Deferred Incentive Award Plan (“DIAP”), distributions from Executive’s accounts, if any, under those plans, payable in accordance with Executive’s prior elections, the terms of the DCP and the DIAP, and applicable laws including, but not limited to, Section 409A of the Code. Such distributions will be subject to all applicable taxes, FICA and other withholding and deductions required by law and will be made pursuant to the distribution schedule followed under the administrative procedures of the DCP and the DIAP, and applicable laws including, but not limited to, Section 409A of the Code.
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Compensation and Nominating Committee under the MIP with respect to the one-year Annual Executive Incentive program with a performance period ending December 31, 2018. The amount of the payment(s), if any, was/were or will be made pursuant to the applicable funding formula and other criteria established by the Governance, Compensation and Nominating Committee, in accordance with the terms of the MIP, and is/are subject to all applicable taxes, FICA and other withholdings and deductions required by law. Executive is not eligible for any additional incentive payment (prorated or otherwise) under the MIP, including, without limitation, any such incentive payment for performance periods ending December 31, 2019 or thereafter.
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and hold Executive harmless from and against all liability for actions taken by Executive within the scope of Executive’s responsibilities so long as Executive’s conduct in any such matter was consistent with the standards contained in such Article V, Section12.
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occurring on or prior to the Effective Date of this Agreement. This release includes, but is not limited to, any and all claims of any nature that relate to Executive’s employment by or termination of employment with Comerica. This release includes, but is not limited to: claims of promissory estoppel, forced resignation, constructive discharge, libel, slander, deprivation of due process, wrongful or retaliatory discharge, discharge in violation of public policy, breach of contract, breach of implied contract, infliction of emotional distress, detrimental reliance, invasion of privacy, negligence, malicious prosecution, false imprisonment, fraud, assault and battery, interference with contractual or other relationships, or any other claim under common law. This release also specifically includes, but is not limited to: any and all claims under any federal, state, and/or local law, regulation, or order prohibiting discrimination, including the Age Discrimination in Employment Act, the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, the Elliott-Larsen Civil Rights Act, or the Michigan Persons With Disabilities Civil Rights Act, the Michigan Wage & Fringe Benefit Act, together with any and all claims under the Fair Credit Reporting Act, the Uniform Services Employment and Reemployment Rights Act, the Employee Retirement Security Income Security Act, the Family Medical Leave Act, or any other federal, state, and or local law, regulation, or order relating to employment, as they all have been or may be amended. It is Executive’s intent, by executing this
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Agreement, to release all claims as specified above to the maximum extent permitted by law, whether said claims are presently known or unknown.
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shall be entitled to receive the shares in Executive’s Non-Deferred Account following Executive’s Separation Date.
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public domain through no wrongful act of the recipient, or (iii) information received by Executive from a third party who was free to disclose it. Executive understands that Comerica’s Confidential Information, including its trade secrets, is highly sensitive information relating to the business of Comerica and of Comerica’s clients, which has had its secrecy protected both internally and externally and which is a competitive asset of Comerica. Executive hereby agrees that Executive shall not use, commercialize or disclose such Confidential Information to any person or entity, except to such individuals as approved by Comerica in writing prior to any such disclosure or as otherwise required by law. Nothing in this Agreement shall prohibit or limit Executive’s ability to make disclosures that are protected by Rule 21F-17 of the Securities and Exchange Act of 1934 or similar provisions of federal law or regulation, including, without limitation, disclosures pursuant to Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Executive’s obligations pursuant to this Paragraph shall survive the termination of this Agreement.
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Executive shall make himself reasonably available for interviews, depositions, and testimony as directed by Comerica or its counsel, and shall further execute truthful statements, declarations, or affidavits pertaining to such matters at the request of Comerica or its counsel. Executive shall be reimbursed for any reasonable out of pocket expenses that Executive may incur as a result of Executive’s compliance with this Paragraph, subject to Comerica’s expense reimbursement policies. Nothing in this Paragraph shall be construed as requiring Executive to be non-truthful or as preventing Executive from disclosing information that would be considered adverse to Comerica or requiring Executive to do anything in violation of any applicable law, rule or regulation.
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Executive agrees that Executive shall provide notice to Comerica in advance of any such cooperation or testimony, unless such notice is prohibited. It is further understood that nothing in this Paragraph 9(a) shall be construed to preclude Executive from discharging Executive’s legal obligations to any administrative or regulatory agencies or auditing entities.
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partner, investor, principal, agent, representative, proprietor, consultant, or in any other capacity, do any of the following:
or Florida. For purposes of this Paragraph 10(a), Executive shall be “in competition with Comerica” if (1) Executive accepts employment or serves as an agent, employee, director or consultant to, a competitor of Comerica, or (2) Executive acquires or has an interest (direct or indirect) in any firm, corporation, partnership or other entity engaged in a business that is competitive with Comerica. The mere ownership of less than 1% debt and/or equity interest in a competing entity whose stock is publicly held shall not be considered as having a prohibited interest in a competitor, and neither shall the mere ownership of less than 5% debt and/or equity interest in a competing entity whose stock is not publicly held. For purposes of this Paragraph 10(a), any commercial bank, savings and loan association, securities broker or dealer, or other business or financial institution that offers any major service offered by Comerica as of the Separation Date, and which conducts business in Michigan, California, Texas, Arizona or Florida, shall be deemed a competitor;
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Separation Date to patronize any business that is competitive with Comerica; and
During the two-year period following the execution of this Agreement, Executive may request an exception to this provision. The request must be made in writing, describe the scope and nature of the engagement, and be directed to Comerica’s Chief Legal Officer. Any exception will be at Comerica’s sole discretion.
11. Representation. Executive represents and warrants:
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Conduct and Ethics for Members of the Board of Directors, each as amended and/or restated from time to time.
Executive to misappropriate the relationship and goodwill existing between Comerica and such entities and individuals. Executive further acknowledges that, at the outset of Executive’s employment with Comerica and throughout Executive’s employment with Comerica, Executive received, and continues to receive and/or have access to Comerica and Comerica’s clients’ proprietary Confidential Information, specialized training and goodwill that Executive would not otherwise have but for Executive’s employment with Comerica. Therefore, Executive agrees that it is fair and reasonable for Comerica to take steps to protect itself from the risk of misappropriation of Comerica’s trade secrets including but not limited to its business relationships, goodwill, proprietary information, specialized training, and other Confidential Information.
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customers and do not confer a benefit on Comerica that is out of proportion to the restrictions placed on Executive.
12. Dispute Resolution.
However, should Executive later challenge any provision as unclear, unenforceable, or inapplicable to any competitive or other activity that Executive intends to engage in, Executive will first notify Comerica in writing and meet with a Comerica representative and a neutral mediator (if either party elects to retain one at its own expense) to discuss resolution of any disputes between the parties. Executive will provide this notification at least fourteen (14) calendar days before Executive engages in any activity that could reasonably and foreseeably fall within a questioned restriction. Executive’s failure to comply with this early resolution conference requirement (the “Resolution Requirement”) shall waive Executive’s right to challenge the reasonable scope, clarity, applicability or enforceability of this Agreement and its restrictions at a later time. Comerica will respond to Executive’s notification required by this Paragraph within fourteen (14) calendar days following receipt of the written notification. Comerica’s failure to respond with an acceptance or denial within the fourteen (14) calendar day period, unless a party has invoked the mediation process described above, shall waive its right to challenge Executive’s activity that could reasonably fall within a questioned restriction at a later time. All
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rights of both parties will be preserved if the Resolution Requirement is complied with even if no agreement is reached in the conference.
In the event the parties cannot agree on the selection of a single arbitrator, the following process to select an arbitration panel will be followed: (1)
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when a party reasonably believes that there will be no agreement on the selection of a single, neutral arbitrator, that party may notify the other at the address provided in Paragraph 17 of this Agreement of the fact an impasse has been reached, (2) within five (5) days of receipt of such notice, each party must provide the other with the name of its respective panel member, and (3) within ten (10) days of their selection, the parties’ panel members must agree on the third, neutral member of the arbitration panel.
The arbitrator, or arbitration panel (“panel”) if one is utilized, shall have the power to enter any award that could be entered by a judge of a trial court of the State of Michigan, and only such power, and shall follow the law. Notwithstanding the foregoing, the arbitrator or panel may award reasonable attorney fees and costs to the prevailing party. In the event the arbitrator or panel does not follow the law, the arbitrator or panel will have exceeded the scope of his or her authority and the parties may, at their option, file a motion to vacate the award in court. Except as otherwise provided herein, the parties agree to abide by and perform any award rendered by the arbitrator. The arbitrator or panel shall issue the award in writing and therein state the essential findings and conclusions on which the award is based. Judgment on the award may be entered in any court having jurisdiction thereof. In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations. This agreement to arbitrate shall be
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specifically enforceable under the prevailing arbitration law, and shall be in accordance with the procedures established for arbitration in the Michigan Rules of Civil Procedure. Unless otherwise prohibited by law, each party shall bear its own costs, including, but not limited to, any costs associated with the appointment of its panel member in the event an arbitration panel
is constituted, in any such arbitration and shall share equally any fees or other expenses charged by the neutral arbitrator for services rendered. The parties understand that by agreeing to arbitrate their disputes, they are giving up their right to have their disputes heard in a court of law and, if applicable, by a jury.
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John D. Buchanan,
Executive Vice President, Chief Legal Officer
1717 Main Street, MC 6504
Dallas, Texas 75201
Michael H. Michalak
At the address on record with Comerica as of the Separation Date
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Executive understands Executive may revoke Executive’s signature by delivery of a written notice of revocation to Von E. Hays, Senior Vice President and General Counsel, Litigation and Corporate Operations, 1717 Main Street, 4th Floor, MC 6506, Dallas, Texas, 75201. The revocation must be delivered to this address before 5:00 p.m. CST on or before the 7th day following the signing of this Agreement. This Agreement shall become effective and enforceable on the eighth (8th) day following its execution by Executive, provided Executive does not exercise Executive’s right of revocation as described above (the “Effective Date”). If Executive revokes Executive’s signature, this Agreement will be without force or effect, and Executive shall not be entitled to any of the rights and benefits hereunder.
Delivered to Executive for Executive’s consideration this 2nd day of January, 2019.
Chief Legal Officer
I, MICHAEL H. MICHALAK, HAVING READ THE FOREGOING SEPARATION AND RESTRICTIVE COVENANTS AGREEMENT, UNDERSTANDING ITS CONTENT AND HAVING HAD AN OPPORTUNITY, AND BEEN ADVISED, TO CONSULT WITH COUNSEL OF MY CHOICE, DO HEREBY KNOWINGLY AND VOLUNTARILY SIGN THIS AGREEMENT, THEREBY AGREEING TO THE TERMS THEREOF AND WAIVING AND RELEASING MY CLAIMS, ON JANUARY 8, 2019.
/s/ Michael H. Michalak
Michael H. Michalak
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