Exhibit 10(g)-2
CHANGE IN CONTROL
AGREEMENT
THIS AGREEMENT made and entered into as of
January 1, 2006 between TCF FINANCIAL CORPORATION, a Delaware
Corporation (“TCF Financial” or the
“Company”) and [Name] (the
“Executive”).
R E C I T A
L S :
WHEREAS, the Executive has been
elected to the position of [Position Title] of the
Company;
WHEREAS, the Board of Directors of
the Company believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal
uncertainties and risks created by any pending or threatened Change
in Control (as defined below) of the Company; and
NOW, THEREFORE, in consideration of
the mutual premises and agreements set forth herein, the parties
hereby agree as follows:
1.
Definitions
. As used in this Agreement,
the following terms shall have the following meanings:
(a)
Change in Control
. A “Change in
Control” shall be deemed to have occurred if, prior to the
expiration of this Agreement:
(i)
during any period of two
(2) consecutive years individuals who at the beginning of such
period constitute the Board of Directors of TCF Financial cease for
any reason to constitute a majority thereof, unless the election or
nomination for election of each new director was approved by a vote
of at least two-thirds (2/3) of the directors then still in office
who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved;
or
(ii)
any “person”, as defined
in sections 13(d) and 14(d) of the Securities Exchange
Act of 1934 (the “Exchange Act”) is or becomes the
“beneficial owner” as defined in Rule 13d-3 under
the Exchange Act, directly or indirectly, of securities of TCF
Financial representing fifty percent (50%) or more of the combined
voting power of TCF Financial’s then outstanding securities,
except for any securities purchased by a TCF employee benefit plan
or trust and any person who becomes a fifty percent (50%)
beneficial owner solely as a result of stock repurchases by TCF
Financial; or
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(iii)
the shareholders of TCF Financial
approve a merger or consolidation of TCF Financial with any other
corporation, other than a merger or consolidation which would
result in the voting securities of TCF Financial outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) more than fifty percent (50%) of the
combined voting power of the voting securities of TCF Financial or
such surviving entity outstanding immediately after such merger or
consolidation, or the shareholders of TCF Financial approve a plan
of complete liquidation of TCF Financial or an agreement for the
sale or disposition by TCF Financial of all or substantially all
TCF Financial’s assets; provided, however, that no Change in
Control will be deemed to have occurred if such merger,
consolidation, sale or disposition of assets, or liquidation is not
subsequently consummated.
The date of any Change in Control shall be
deemed to be the date on which it is consummated.
(b)
Good Reason.
By following the procedure set forth
in this paragraph, the Executive shall have the right to terminate
the Executive’s employment with the company for “Good
Reason” in the event (i) the Executive is not at all
times the same duly elected officer of the Company that Executive
was immediately prior to the Change in Control; (ii) there is
any material reduction in the scope of the Executive’s
authority and responsibility (provided, however, in the event of
any illness or injury which disables the Executive from performing
the Executive’s duties, the Company may reassign the
Executive’s duties to one or more other employees until the
Executive is able to perform such duties); (iii) there is a
reduction in the Executive’s Base Salary, an amendment to any
stock incentive plan, pension plan or supplemental employee
retirement plan applicable to the Executive which is materially
adverse to the Executive, or a material reduction in the other
benefits to which the Executive was entitled prior to the Change in
Control; or (iv) the Company requires the Executive’s
principal place of employment to be anywhere other than where it
was immediately prior to the Change in Control. If the
Executive proposes to terminate his employment for Good Reason
under this paragraph, the Executive shall give written notice to
the Company, specifying the reason therefore with
particularity. In the event the Executive proposes to
terminate his employment for Good Reason under clause (i), (iii),
or (iv) in this paragraph, the termination shall be effective
on the date of such notice. In the event the Executive
proposes to terminate his employment for Good Reason under clause
(ii) in this paragraph, the Company will have an opportunity
to correct any curable situation to the reasonable satisfaction of
the Executive within the period of time specified in the notice
which shall not be less than thirty (30) days. If such
correction is not so made or the circumstances or situation is such
that it is not curable, the Executive may, within thirty (30) days
after the expiration of the time so fixed within which to correct
such situation, give written notice to the Company that his
employment is terminated for Good Reason effective
forthwith.
(c)
Termination Date
. “Termination
Date” means the date on which the Executive’s
employment with the Company is terminated.
2.
Termination of this Agreement for
“Cause” by the Company .
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(a)
Termination of this Agreement for
“Cause” applies in the event the Executive:
(i) has engaged in willful and recurring misconduct in not
following the legitimate directions of the Board of Directors of
the Company after fair warning or breached any non-competition or
non-solicitation covenant to which Executive is subject;
(ii) has been convicted of a felony and all appeals from such
conviction have been exhausted; (iii) has engaged in habitual
drunkenness; (iv) has been excessively absent from work which
absence is not related to disability, illness, sick leave or
vacations; or (v) has engaged in continuous conflicts of
interest between his personal interests and the interests of the
Company after fair warning.
(b)
Notice of Right to
Cure . If the
Company proposes to terminate its obligations hereunder for Cause
under paragraph 2(a), the Company shall give written notice to the
Executive specifying the reasons for such proposed determination
with particularity and specifying a cure the Company deems
appropriate, and, in the case of a termination for Cause under
paragraphs 2(a)(i), (iii), (iv), or (v) the Executive shall
have a reasonable opportunity to correct any curable situation to
the reasonable satisfaction of the Board of Directors of the
Company, which period shall be no less than fifteen (15) days from
the Executive’s receipt of the notice of proposed
termination. Notwithstanding the foregoing, this Agreement
shall not be terminated for Cause unless and until there shall be
delivered to the Executive a copy of the resolution duly adopted by
the affirmative vote of not less than the majority of the members
of the Board of Directors of the Company at a meeting called and
held for the purpose (after reasonable notice to the Executive and
an opportunity for the Executive, together with his legal counsel,
to be heard before the Board of Directors) finding that, in the
opinion of the Company’s Board of Directors, the Executive
has engaged in conduct justifying a termination of this Agreement
for Cause.
3.
Termination of Employment Upon
Change in Control – Severance Payments
. In the event of a Change in
Control, if: (i) the Executive terminates his or her
employment for any reason by giving the Company notice within the
30-day period immediately preceding the first anniversary of the
closing date of the Change in Control; or (ii) within the
twenty-four (24) months after the occurrence of such Change in
Control the Executive terminates employment for Good Reason, or
(iii) within the six (6) months before or the twenty-four
(24) months after the occurrence of such Change in Control the
Executive’s employment ends for any other reason, including
(x) the Company’s failure to continue to employ Executive
after expiration of Executive’s employment agreement, but not
including (y) such an end of employment by reason of death,
disability or after this Agreement has been terminated for Cause
(as defined herein); then the Executive shall be entitled to the
following severance benefits (which benefits in either case are
referred to as the “Termination Payments”):
(a)
Base Salary and Annual
Bonus . The Company
shall pay the Executive, no later than 30 days after
Executive’s termination of employment, in a single sum, an
amount equal to two times the sum of (x) the Executive’s
annual salary at the time of termination; and (y) the average
Annual Bonus paid or payable to Executive in respect of the three
calendar years
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immediately preceding the year in which
termination occurs. In the event Executive’s
termination occurs after the end of a calendar year, but before a
bonus earned in that calendar year has been paid, the Company shall
pay such bonus to Executive in addition to the amount otherwise
payable under this paragraph (a).
(b)
Medical and Other Benefits
Continuation .
Executive shall be entitled to continuation of Company medical
coverage for the full period provided under the Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”) at
Company expense. If eligible, Executive shall participate in
retiree medical coverage of the Company on the same terms and
conditions as apply to TCF employees generally. Executive
shall also be entitled to continuation of all other benefits after
employment termination as provided by the benefit plans or by law;
provided that, if Executive obtains new employment with comparable
benefits during the Severance Period, all entitlements under this
paragraph shall cease. Nothing in this paragraph shall be
construed as providing Executive with coverage under any plan of
Employer to which Executive would not otherwise be entitled and in
the event any coverage is unavailable, e.g. if Executive is
uninsurable, Employer’s obligations under this paragraph may
be satisfied by paying to the Executive the cost of such coverage
if it were available, as determined in good faith by the
Company.
(c)
Stock Incentives
. Executive shall be entitled
to such vesting or other benefits as are provided by the award
agreement pertaining thereto.
(d)
Section 409A of the Internal
Revenue Code . The
arrangements described in this Agreement are intended to comply
with Section 409A of the Internal Revenue Code to the extent
such arrangements are subject to that law. The parties agree
that they will negotiate in good faith regarding amendments
necessary to bring this Agreement into compliance with the terms of
that Section or an exemption therefrom as interpreted by
guidance issued by the Internal Revenue Service. The parties
further agree that to the extent any part of this Agreement fails
to qualify for exemption from or satisfy the requirements of
Section 409A, the affected arrangement may be operated in
compliance with Section 409A pending amendment to the extent
authorized by the Internal Revenue Service. In such
circumstances Company will administer this Agreement in a manner
which adheres as closely as possible to the existing terms and
intent of the Agreement while complying with
Section 409A. This paragraph does not restrict
Company’s rights (including, without limitation, the right to
amend or terminate) with respect to this Agreement to the extent
such rights are reserved under the terms of this
Agreement.
4.
Certain Additional Payments by
the Company .
(a)
Gross-Up Payment
. Anything to the contrary
notwithstanding, in the event it shall be determined that
a
