Exhibit 10(g)-7
CHANGE IN CONTROL AND
NON-SOLICITATION 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 Nam e (the
“Executive”), Position Title , 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; and
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 qualify for the Short Term
Deferral and/or the Separation Pay Plan exception outlined in
Treas. Reg. § 1.409A-1(b)(4) and § 1.409A-1(b)(9),
respectively, or are “permissible payments” under
Treas. Reg. § 1.409A-3,
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
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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
(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 there is (i) any material diminution 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); (ii) a material diminution in the Executive’s
base compensation (salary, bonus opportunity, benefits or
perquisites as in effect before the Change in Control); (iii) a
material diminution in the authority, duties, responsibilities of
the supervisor to whom the Executive is required to report; (iv) a
material diminution in the budget over which the Executive
retains authority ; (v) a material change in geographic location at
which the Executive must perform the services; or (vi) any other
action or inaction that constitutes a material breach by the
Company of the Executive’s employment agreement under
which the Executive provides services. In the event the Executive
proposes to terminate his employment for Good Reason under this
paragraph, the Executive shall first provide written notice to the
Company of the existence of the condition described as Good Reason
not less than 90 days after the initial existence of the condition.
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 (but not more
than two years after the initial existence of the Good Reason),
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 .
(a)
Termination of this Agreement for “Cause” applies in
the event the Executive: (i)
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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: (1) 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 (2) within the six (6) months before or
twenty-four (24) months after the occurrence of such Change in
Control (i) the Executive terminates employment for Good Reason, or
(ii) the Executive’s employment is terminated by the Company
without Cause (as defined herein), provided that the
Executive’s termination results in a complete cessation of
services for the Company and that no payment is due in the event of
termination of employment by reason of death or disability; 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
immediately preceding the year in which termination occurs. In the
event Executive’s termination from employment 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) promptly but no later than 2 ½ months after
the end of the calendar year which the bonus was earned.
(b)
Medical and Other Benefits Continuation . Executive
shall be entitled to
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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 be either
exempt from, or permissible payments under, IRC § 409A, and
the regulations thereunder.
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
paym
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