Exhibit 10(e).11
AMENDED AND RESTATED AGREEMENT
WITH WILLIAM A. COOPER
THIS AGREEMENT is made and entered into as of July 31, 2008
between TCF FINANCIAL CORPORATION, a Delaware corporation (the
“Company”) and WILLIAM A. COOPER
(“Cooper”).
R E C I T A
L S :
WHEREAS, the Company is a bank holding company and Cooper is now
and has been Chairman of the Board of the Company; and
WHEREAS, Cooper has been elected Chief Executive Officer of the
Company effective July 26, 2008; and
WHEREAS, Cooper and the Company are parties to an agreement dated
as of January 25, 2005 (the “Chairman’s
Agreement”) and the Supplement to Chairman’s Agreement
dated as of January 25, 2005 (the
“Supplement”);
WHEREAS, Cooper and the Company wish to enter into this Agreement
to provide for the amendment and restatement of the
Chairman’s Agreement and the Supplement effective as of the
date hereof;
NOW, THEREFORE, in consideration of the mutual premises and
agreements set forth herein, the parties agree as
follows:
1.
Employment and Duties
. During the
term of this Agreement as set
forth in paragraph 2 below,
Cooper shall be employed as Chief
Executive Officer of the Company with
overall responsibility for the
business and affairs of the
Company and Cooper’s powers and
authority shall be superior to
those of any other officer or
employee of the Company or its
subsidiaries. If elected, Cooper
also agrees to continue to serve as
Chairman of the Board of Directors
of the Company. In
discharging such duties and
responsibilities, Cooper may also serve as
an executive officer and/or director of any direct or
indirect subsidiary of the Company (collectively, the “TCF
Subsidiaries”). During the term of this Agreement,
Cooper shall apply on a substantially full-time basis (allowing for
usual vacations and sick leave) all of his skill and experience to
the performance of his duties in his positions with the Company and
the TCF Subsidiaries. It is understood that Cooper may have
other business investments and participate in other business
ventures which shall not interfere or be inconsistent with his
duties under this Agreement. Cooper shall perform his duties
at the Company’s principal executive offices in Wayzata,
Minnesota or at such other location as may be mutually agreed upon
by Cooper and the Company; provided that Cooper shall travel to
other locations at such times as may be necessary for the
performance of his duties under this Agreement.
2.
Term of Employment . This Agreement shall commence on
the date hereof and shall continue through January 1, 2012;
provided that the term shall be automatically extended for one year
on each January 1st commencing January 1, 2012 unless
either party gives written notice of non-renewal to the other three
months prior to the date on which the automatic extension would be
effective.
3.
Compensation and Benefits . During the term of this
Agreement, Cooper shall be entitled to the following compensation
and benefits:
(a)
Base Salary, Bonus . Cooper shall not receive any cash
compensation, salary or bonus.
(b)
Stock Incentives . Cooper shall receive stock options
and restricted stock under the terms and conditions set forth in a
Restricted Stock Agreement dated July 31, 2008 between the
Company and Cooper (the “Restricted Stock Agreement”)
and a Non-Qualified Stock Option Agreement dated July 31, 2008
between the Company and Cooper (the “Option Agreement”)
(the Option Agreement collectively with the Restricted Stock
Agreement are referred to as the “Award Agreements”)
pursuant to the TCF Financial Incentive Stock Program, as amended
and restated January 21, 2008 (the “TCF Incentive Stock
Program”). Additional awards, if any, of stock options,
restricted stock and stock appreciation rights would be made under
any stock based plan from time to time adopted by the Company (the
“Stock Plans”) as from time to time determined by the
Board of Directors or Compensation Committee of the
Company.
(c)
Reimbursement of Expenses . The Company shall
reimburse Cooper for all business expenses properly documented,
including without limitation, Cooper’s legal fees incurred in
the preparation of this Agreement. Any such payments shall be
made no later than 2 ½ months after the end of the calendar
year in which the expense was incurred.
(d)
Aircraft . Cooper shall be entitled to use of the
Company’s corporate aircraft at the Company’s expense,
provided that Cooper shall be responsible for all individual income
taxes resulting from his use of the aircraft for non-business
travel.
(e)
Other Benefits . Cooper shall be entitled to
participate in and shall be included in any employee benefit plan,
pension plan, supplemental employee retirement plan, fringe benefit
programs or similar plan of the Company now existing or established
hereafter to the extent that he is eligible under the general
provisions thereof.
(f)
Perquisites . Cooper shall be entitled to other
perquisites provided to executive officers, subject to annual
review by the Compensation Committee of the Board of
Directors. Payment of perquisites, if any, shall be made no
later than 2 ½ months after the end of the calendar year in
which Cooper was entitled to such payments.
(g)
Chairman’s Compensation and Benefits . Cooper
shall retain two-thirds of the restricted stock grant described in
the Chairman’s Agreement that has already been earned and he
shall be eligible for earning the remaining portion of that award
in accordance with the terms of a Restricted Stock Agreement
between the Company and Cooper dated January 25, 2005.
He shall no longer receive director’s fees paid to
non-employee directors or an annual fee for serving as
2
Chairman.
(h)
Return of Compensation under Section 304 of the
Sarbanes-Oxley Act . Notwithstanding anything in this
Agreement to the contrary, in the event of a restatement of
financial results by the Company, the Audit Committee of the Board
of Directors shall determine (after reasonable notice to Cooper and
an opportunity for Cooper, together with his legal counsel, to be
heard before the Audit Committee) whether or not repayment of any
compensation is required under Section 304 of the
Sarbanes-Oxley Act. If the Audit Committee determines that
such repayment is required, the Committee shall make a demand for
repayment by Cooper of any bonus or other incentive-based or
equity-based compensation, and any profits realized from the sale
of TCF stock or other TCF securities, which are required to be
returned to the Company as a result of Section 304 of the
Sarbanes-Oxley Act. Cooper shall promptly tender such
repayment unless he disputes the findings of the Audit
Committee.
4.
Termination of Employment .
Upon termination of employment for whatever reason, Cooper shall be
entitled to compensation and benefits determined under the
Company’s benefit plans and policies applicable to Company
executives then in effect and as provided in the Award
Agreements.
5.
Covenant Not to Compete; Non-Solicitation Covenant
.
(a)
Covenant Not to Compete . During the term of this
Agreement, Cooper agrees that he will not directly or indirectly
substantially compete with TCF Financial, TCF National Bank, TCF
National Bank Arizona or their respective subsidiaries in the
Relevant Market. The “Relevant Market” is
financial businesses located in the States of Arizona, Michigan,
Minnesota, Iowa, North Dakota, South Dakota, Colorado and
Wisconsin, and the Chicago metropolitan area.
(b)
Non-Solicitation Covenant . During the term of this
Agreement, Cooper agrees that, except with the prior written
permission of the Board of Directors of TCF Financial, he will not
offer to hire, entice away, or in any manner attempt to persuade
any officer, employee, or agent of TCF Financial, TCF National Bank
or TCF National Bank Arizona or any of their subsidiaries to
discontinue his or her relationship with TCF Financial, TCF
National Bank, TCF National Bank Arizona or any of their
subsidiaries nor will he directly or indirectly solicit, divert,
take away or attempt to solicit any business of the Company or any
of its subsidiaries as to which Cooper has acquired any knowledge
during the term of his employment with the Company or his service
as a director of TCF Financial.
(c)
Extension of Terms of Covenant Not to Compete and
Non-Solicitation Covenant . In consideration for the
acceleration of benefits under the Award Agreements upon a Change
in Control as defined in the TCF Incentive Stock Program,
Cooper’s obligations under paragraphs 5(a) and
5(b) shall be extended for three (3) years following any
such Change in Control; provided, however, that during such
extended period Cooper may be permitted
