Exhibit 10(g)-4
CHIEF EXECUTIVE
OFFICER
CHANGE IN CONTROL
AGREEMENT
THIS AGREEMENT, made and entered into as of
January 1, 2008 between TCF FINANCIAL CORPORATION, a Delaware
corporation (“TCF Financial” or the
“Company”) and Lynn A. Nagorske, Chief Executive
Officer, (the “Executive”) as an amendment and
restatement of the prior agreement dated January 1,
2006.
R E C I
T A L S :
WHEREAS, the Company and Executive have
previously executed an agreement (the “Prior
Agreement”);
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;
WHEREAS, as a
result of the enactment of Internal Revenue Code
(“IRC”) § 409A, the Company and the Executive
desire to amend the Agreement in order to insure that payments
under this Agreement comply with IRC § 409A and the
regulations thereunder, and
NOW, THEREFORE, in consideration of the mutual
promises 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)
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 .
(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 employment for any
reason
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within 24
months after such Change in Control; or (ii) the Executive’s
employment ends for any other reason (x) including the
Company’s failure to continue to employ Executive after
expiration of Executive’s employment agreement but (y) not
including such an end of employment by reason of death, disability
or after this Agreement has been terminated for Cause (as defined
herein), during the six months before a Change in Control or within
twenty-four (24) months after a Change in Control, 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, as soon as administratively practicable six (6)
months after Executive’s termination of employment, in a
single sum, an amount equal to three 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 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) as soon as administratively
practicable six (6) months after Executive’s termination of
employment.
(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 applicable continuation 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 IRC § 409A to the extent such arrangements are subject to
that law.
4.
Certain Additional Payments by the Company .
(a)
Gross-Up Payment . Anything to the contrary
notwithstanding, in the event it shall be determined that any
payment, distribution or benefit made or provided by the Company
(or any successor thereto) to or for the benefit of the Executive
(whether pursuant to this Agreement or otherwise) (a
“Payment”), would be subject to the excise tax imposed
by Section 4999 of the Internal Revenue Code of 1986, as amended,
(the “Code”) or any interest or penalties with
respect
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to such excise
tax (such excise tax, together with any such interest and
penalties, are collectively referred to as the “Excise
Tax”), then the Company shall pay the Executive in cash an
amount (the “Gross-Up Payment”) such that after payment
by the Executive of all t
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