Exhibit 10(i)-1
TCF EXECUTIVE
OFFICER
EMPLOYMENT
AGREEMENT
THIS AGREEMENT, made and entered
into as of January 1, 2006 between TCF FINANCIAL CORPORATION,
a Delaware corporation (the “Company”), and Neil Brown
(the “Executive”).
R E C I T A
L S :
WHEREAS, the Executive has been
elected to the position of President and Chief Financial Officer of
the Company;
WHEREAS, Company and Executive are
currently parties to a “Change in Control Agreement”
and a “Non-Solicitation and Confidentiality Agreement”,
both expiring January 1, 2008 or sooner, (the “Prior
Agreements”);
WHEREAS, the Executive and the
Company wish to enter into this Agreement to provide for the
continued employment of Executive by Company and to supersede and
replace the Prior Agreements;
WHEREAS, the Executive and the
Company are willing to enter into this Agreement upon the terms and
conditions set forth herein; and
WHEREAS, the Executive and the
Company are contemporaneously with the execution and delivery of
this Agreement entering into a new Change in Control Agreement (the
“CIC Agreement”);
NOW, THEREFORE, in consideration of
the mutual promises and agreements set forth herein and in the CIC
Agreement, the parties hereby agree as follows:
1.
Employment and Duties
. The parties hereby agree
that, during the term of this Agreement as set forth in paragraph 2
below, the Executive shall be employed and agrees to serve in an
executive position with such executive officer duties as are
assigned by the Chief Executive Officer of the Company from time to
time. In discharging such duties and responsibilities, the
Executive 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, the Executive shall apply on a 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 the Executive
shall not have any other business interests or investments that
would interfere with or be inconsistent with his duties under this
Agreement. The Executive shall perform his duties at the
Company’s principal
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executive offices in Wayzata, Minnesota or at
such other location as may be mutually agreed upon by the Executive
and the Company; provided that the Executive 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
. Unless sooner terminated as
provided in paragraph 4 below, the term of this Agreement shall
commence on the date hereof and shall continue through
December 31, 2007; provided that the term shall be
automatically extended for one year on each January 1st
commencing January 1, 2008 unless either party gives written
notice to the other six months prior to the date on which the
automatic extension would be effective.
3.
Compensation and
Benefits . During
the term of this Agreement, the Executive shall be entitled to the
following compensation and benefits:
(a)
Base Salary
. As compensation for the
Executive’s services, the Executive shall be paid a base
salary at a minimum annual rate of $400,000 payable in accordance
with the Company’s customary payroll policy, which salary may
be increased (but not reduced) from time to time at the discretion
of the Board of Directors (the “Base
Salary”).
(b)
Other . The Executive shall, in addition to the
Base Salary, also be entitled to an annual bonus opportunity (the
“Annual Bonus”), stock options, restricted stock, stock
appreciation rights and employee benefits in accordance with
company policy and as approved by the Compensation Committee of the
Company’s Board of Directors from time to time. In
addition, Executive shall be entitled to such perquisites as are
approved by the Chief Executive Officer and reported to the
Compensation Committee of the Board from time to time.
(c)
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 the
Executive and an opportunity for the Executive, 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 Executive 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. Executive shall
promptly tender such repayment unless he disputes the findings of
the Audit Committee, in which case the parties shall submit the
dispute to arbitration as provided in paragraph 7 of this
Agreement
4.
Termination of
Employment .
(a)
Death, Disability, Retirement or
Voluntary Resignation . In the event of the Executive’s
death, disability as defined in the Company’s long term
disability plan then in effect, or retirement (termination by
Executive which the Compensation Committee determines is a
retirement) the employment of the Executive hereunder shall
terminate and the Company’s
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obligation to make further Base Salary and
Annual Bonus (to the extent not yet earned) payments hereunder
shall thereupon terminate as of the end of the month in which such
death, or disability or retirement occurs. In the event of
Executive’s termination of employment without Good Reason
other than a retirement (“Voluntary Resignation”) the
Company shall have no obligation to pay Base Salary (other than
through Executive’s last day of employment) and no obligation
to pay any Annual Bonus after the Executive’s employment
termination date. The Executive’s (and his
beneficiaries’) rights to other compensation and benefits
shall be determined under the Company’s benefit plans and
policies applicable to Company executives.
(b)
Termination for Cause by the
Company . By
following the procedure set forth in paragraph 4(e), the Company
shall have the right to terminate the employment of the Executive
for “Cause” 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; (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. If the employment of the Executive is terminated by
the Company for Cause, the Company’s obligation to make
further Base Salary and Annual Bonus (to the extent not yet earned)
payments hereunder shall thereupon terminate, except the Executive
shall receive the Base Salary through the end of the month during
which such a termination occurs. The Executive’s rights
to other compensation and benefits shall be determined under the
Company’s benefit plans and policies applicable to executives
of the Company then in effect.
(c)
Termination for Good Reason by
the Executive . By following the procedure set
forth in paragraph 4(e), the Executive shall have the right to
terminate the Executive’s employment with the Company for
“Good Reason” in the event (i) 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 is entitled under paragraph 3 above
(other than a reduction applied to executives or employees
generally); or (ii) the Company fails to perform its
obligations under this Agreement. If the employment of the
Executive is terminated by the Executive for Good Reason before a
change in control as defined in the CIC Agreement (“Change in
Control”), the Executive shall be entitled to the severance
benefits set forth in paragraph 4(f) below.
(d)
Termination without
Cause . The Company
may terminate the Executive’s employment without Cause prior
to the expiration of the term of this Agreement. If the
employment of the Executive is terminated by the Company without
Cause prior to the expiration of this Agreement, before a Change in
Control, the Executive shall be entitled to the severance benefits
set forth in paragraph 4(f) below.
(e)
Notice of Right to
Cure .
(i) Termination by Company
for Cause . If the Company proposes to terminate the
employment of the Executive for Cause under paragraph 4(b), the
Company shall
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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
4(b)(i) (including any breach of the provisions of paragraph 5
below), (iii) or (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, the
Executive’s employment 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 for Cause.
(ii) Termination by
Executive for Good Reason . If the Executive proposes to
terminate his employment for Good Reason under paragraph
4(c) above, the Executive shall give written notice to the
Company, specifying the reason therefore with particularity and
specifying a cure the Executive deems appropriate for matters
covered by paragraph 4(c)(ii) above. In the event the
Executive proposes to terminate his employment for Good Reason
under paragraph 4(c)(i) above, 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 paragraph 4(c)(ii) above, the Company will have an
opportunity to correct a curable situation to the reasonable
satisfaction of the Executive within the period of time specified
in the notice which shall not be less than fifteen
