Exhibit 10(c)
01-24-05
TCF FINANCIAL CORPORATION
TCF FINANCIAL EXECUTIVE DEFERRED COMPENSATION PLAN
(As Amended and
Restated through January 24, 2005)
(Applicable
only to deferrals elected
for the
calendar years 2004 and earlier)
TCF FINANCIAL EXECUTIVE DEFERRED COMPENSATION PLAN
(As Amended and Restated through January 24, 2005)
(Applicable only to amounts deferred in calendar years before 2005)
1.
Deferral
of Incentive Compensation, Salaries and Stock Awards
.
As provided in Appendix C, effective for
salaries and incentive compensation earned on or after January 1, 2005 and
stock grants awarded after that date, no deferral elections shall be allowed
under section 1 of this Plan as a result of Internal Revenue Code § 409A
(“IRC § 409A”). Incentive
compensation earned in 2004 (but paid in 2005) and stock awards made and
deferred under this Plan prior to January 1, 2005 but which were not “earned
and vested” (as defined in regulations issued pursuant to IRC § 409A) on
or before December 31, 2004 shall remain under this Plan but subject to
IRC § 409A, the election provisions of the next paragraph and section 5.m
of this Plan as added by Appendix C. All
amounts which were earned and vested under this Plan as of December 31,
2004 are not subject to IRC § 409A and instead remain subject to the Plan
as in effect on December 31, 2004 and as continued in this Plan
restatement.
During the calendar year 2005 the Company may offer some or all plan
participants one or more elections, as the Company may determine in its
discretion, to cancel or revoke a deferral election previously made under this section 1
and to have treated as current income in 2005 any amounts that were not earned
and vested as of December 31, 2004 as determined under IRC § 409A,
under such rules and procedures as the Company may determine for the elections
which are consistent with the requirements of IRC § 409A and regulations
issued thereunder.
2.
Committee
.
The Committee (the “Committee”) shall
consist of such members of the Compensation/Nominating/Corporate Governance
Committee of the Board of Directors of TCF Financial Corporation who qualify as
non-employee directors from time to time under Rule 16b-3 of the Securities and
Exchange Commission. Full power and
authority to construe, interpret, and administer this Plan document shall be
vested in the Committee. The Committee shall
have full power and authority to make each determination provided for in this
Plan document, and in this connection, to promulgate such rules and regulations
as the Committee considers necessary or appropriate for the implementation and
management of this Plan as are consistent with the terms of this Plan. The Committee shall have authority to
designate officers of TCF Financial and to delegate authority to such officers
to receive documents which are required to be filed with the Committee, to
execute and provide directions to the Trustee and other administrators, and to
do such other actions as the Committee may specify on its behalf, and any such
actions undertaken by such officers shall be deemed to have the same authority
and effect as if done by the Committee itself.
Notwithstanding anything in this Section 2 to the contrary, no
action or determination made or taken by any officer of TCF Financial on behalf
of the Committee, and no action or determination by the Committee affecting the
amount payable under this Plan to a participant or beneficiary, shall be
entitled to any deference by a reviewing court (i.e., judicial review of any
such actions or determinations shall be de novo).
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3.
Deferred Compensation Accounts
. Each Company shall establish on its books a
separate account (“ Account”), including sub-accounts pursuant to Exhibit A
hereto and Section 10 hereof, for each of its Employees who becomes a
participant in this Plan, and each such Account shall be maintained as follows:
a.
Each Account
shall be credited with the Deferred Amounts elected by the Employee for whom
such Account is established as of the date on which such Deferred Amount would
otherwise have been paid to the Employee.
Separate Accounts will be maintained for any Deferred Amounts that are
payable at different times or in different forms than other Deferred Amounts.
b.
Within 30 days
after the date on which Deferred Amounts are credited to an Employee’s Account,
they shall have been deemed to have been invested in such investments as shall
be permitted by the Committee and as the Employee shall direct, except that
Deferred Amounts pertaining to TCF Stock awards shall always be deemed to be
invested in TCF Stock unless they are deemed to have been sold pursuant to a
Change in Control Diversification Election.
Any investment direction by an Employee shall be consistent with Section 10
and Exhibit A and shall be irrevocable with respect to the calendar year to
which it applies, unless the Committee allows additional elections. While an Employee’s Account is deemed to be
so invested, it shall be credited with all interest, dividends (whether in
stock, cash, or other property), stock splits, or other property that would
have been received if the Deferred Amounts had actually been so invested,
except if an Employee has elected not to defer dividends. All cash deemed to have been received with
respect to investments deemed to have been made for an Employee’s Account shall
be deemed to be reinvested in such investments as the Employee shall direct as
of a date selected by the Committee, which date shall be not more than 30 days
after receipt of such direction, and the balance credited to an Employee’s
Account as of any date shall be equal to the fair market value of the
investments deemed to have been made for such Account as of such date. Starting with Deferred Amounts elected for
the year 2000 and after Accounts for each Employee shall be separately
maintained on a calendar year basis, with each year’s account (the “Class Year
Account”) reflecting only the Deferred Amounts of compensation earned in that
year and the investments in which the Deferred Amounts are deemed to be
invested. All Deferred Amounts elected
before the year 2000, including deferrals of TCF Stock awards made before that
date, and the investments in which they are deemed to be invested from time to
time, shall be aggregated and maintained as a “ Pre-2000 Account.”
c.
Although the
value of an Employee’s Account is to be measured by the value of and income
from certain deemed investments, the Companies need not actually make such
investments. The value of and income
from such investments are merely a measuring device to determine the payments
to be made to each Employee hereunder.
Each Employee, and each other recipient of an Employee’s Deferred
Amounts pursuant to Section 7, shall be and remain an unsecured general
creditor of the Company by which he is employed with respect to any payments
due and owing to such Employee hereunder.
If a Company should from time to time, in its discretion, actually
purchase the investments deemed to have been made for an Employee’s Account,
either directly or through the trust described in Section 4, such investments
shall be solely for the
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Company’s or such trust’s
own account, and the Employees shall have no right, title or interest therein.
d.
Sub-accounts
shall be maintained as provided in Exhibit A hereto and in Section 10
hereof.
e.
Notwithstanding
the provisions of Exhibit A and Section 10, in the event of a Change in
Control in which TCF Stock is exchanged for shares of a successor company, or
for cash, securities or other property, such that TCF Stock is no longer
outstanding, each Employee may make a one-time diversification election prior
to the closing of the Change in Control to have the assets then deemed to be
held in the Employee’s TCF Stock Account deemed to have been sold in an orderly
liquidation after the closing, and the proceeds deemed to have been reinvested
in such investments as the Employee shall elect. If the Employee does not make such a
diversification election, the shares of TCF Stock that were deemed to have been
allocated to the Employee’s account upon the closing shall be deemed to have
been exchanged for the same consideration in the Change in Control as shares of
TCF Stock generally receive in the Change in Control. Any portion of such consideration consisting
of securities of a successor company will be allocated to the TCF Stock Account
and thereafter will be subject to the same restrictions on deemed sales as
applied to TCF Stock prior to the Change in Control. Any portion of such consideration consisting
of assets other than securities of a successor company will be allocated to the
Employee’s Diversified Account.
f.
An Employee’s
right to direct the deemed investments of the Employee’s Account shall continue
during any period of distribution subsequent to the Employee’s termination of
employment in the same manner as if the Employee had continued as an active
Employee, although the Committee may, in its discretion, add additional
registered mutual funds or collective or common trust funds as permissible
deemed investments only for the Accounts of terminated Employees if the
Committee deems such funds to be particularly appropriate or suitable for such
Accounts.
g.
Sub-Accounts
shall be maintained as provided in Exhibit A hereto and in Section 10
hereof.
4.
Trust
. TCF Financial has established a trust (of the
type commonly known as a “rabbi trust”) to aid in the accumulation of assets
for payment of Deferred Amounts. The
trust provides for separate accounts in the name of each Employee who has
elected a Deferred Amount. Each Company
shall contribute to the trust such amounts as are necessary to keep the
separate accounts maintained for that Company’s Employees sufficient at all
times to pay in full all benefits payable under the Plan with respect to such
Company’s Employees, including, without limitation, any liquidated damages
payable to such Company’s Employees pursuant to Section 9.f. In addition:
a.
TCF Financial
may, in its sole discretion, require the Companies to contribute additional
amounts, which TCF Financial may direct the Trustee not to credit to an account
for any Employee, but instead to a general account for the payment of Plan
expenses; and
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b.
within ten (10)
business days following the occurrence of a Change in Control, the Companies
shall contribute an amount equal to 300% of the aggregate expenses incurred by
the Companies and the Trustee in administering the Plan and the trust described
in this Section 4 during the last full calendar year immediately preceding
the occurrence of the Change in Control, which amount shall also be credited to
a general account for the payment of Plan expenses. If the aggregate expenses that were incurred
by the Companies and the Trustee in administering the Plan and the trust during
the last full calendar year immediately preceding the occurrence of the Change
in Control cannot be determined with reasonable certainty prior to the date on
which this contribution is due, the amount of the contribution shall be
$150,000.
The assets of the trust shall be invested in accordance with the
provisions of the agreement or agreements pursuant to which the trust is
maintained, which agreement(s) shall be consistent with the terms of this
Plan. The trustee of the trust (“Trustee”)
shall be a corporate trustee independent of the Companies. The trust assets shall remain subject to the
claims of the Companies’ general creditors.
5.
Payment
of Deferred Amounts
.
a.
Deferrals On or
After January 1, 2000 (“Class Year Accounts”)
. For Deferred Amounts of compensation earned
on or after January 1, 2000 and of TCF Stock awards made on or after that
date, at the same time as the Employee elects the Deferred Amounts for a
calendar year, or for a TCF Stock Award, the Employee shall also elect the
timing and form of distribution of such Deferred Amounts for that year, or for
the TCF Stock award, from among the following options:
(I)
Upon a Date
Certain
. As to Deferred Amounts other
than TCF Stock awards, the Employee may designate the distribution to be either
a lump sum or annual installments (but no fewer than two and no more than 15)
to be paid or to commence on a date in a year designated by the Employee (“Date
Certain”) either before or after employment termination but in no event sooner
than two calendar years after the calendar year when the Deferred Amount was
earned, subject to the Committee’s designation of a uniform month and day for
each year. For all Deferred Amounts, the
Employee may designate the distribution to be either a lump sum or annual
installments (but no fewer than two and no more than 15) to be paid on or to
commence on such Date Certain. Any
distribution in annual installments shall commence 30 days after the Date
Certain with succeeding installments paid thereafter on the date designated by
the Committee in each subsequent year.
Each installment shall consist of the balance of the Employee’s account
at the end of the previous calendar year, multiplied by a fraction, the
numerator of which is 1 and the denominator of which is the number of
installments remaining to be paid.
Distributions of amounts credited to the Employee’s TCF Stock account
shall be made in whole shares of TCF Stock (disregarding any shares in suspense
or unvested as of the end of the calendar year). Distributions of amounts credited to the
Employee’s Diversified Account shall be made in cash. Distributions shall be charged first to any
available cash that is deemed to be held in the Employee’s Account and, to the
extent such cash
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is not sufficient to cover
the distribution, pro rata from the TCF Stock Account and the Diversified
Account (by liquidating pro rata portions of each deemed investment in the
Diversified Account).
(II)
Upon Disability
. The Employee may designate an alternative
distribution in the event of Disability, as defined in this Plan, in the form
of either a lump sum or annual installments (but no fewer than two and no more
than 15) to be paid or to commence 30 days after such Disability occurs. The determination of payments and installments,
including the distribution of only whole shares of TCF Stock with respect to
amounts credited to the TCF Stock Account shall be the same as under the
preceding paragraph (I).
(III)
Upon Other
Termination of Employment, Including Retirement and Death
. The Employee may designate an alternative
distribution in the event of a termination of employment, including retirement,
in the form of either a lump sum or annual installments (but no fewer than two
and no more than 15) to be paid or to commence 30 days after such termination
of employment occurs. The determination
of payments and installments, including the distribution of only whole shares
of TCF Stock with respect to amounts credited to the TCF Stock account, shall
be the same as under the preceding paragraph (1).
(IV)
Upon a Change
in Control
. The
Employee may designate an alternative distribution in the event of a Change in
Control (as defined in Section 5.j.) in the form of either a lump sum or
annual installments (but no fewer than two and no more than 15) to be paid or,
in the case of annual installments, to commence 30 days after the one year
anniversary of the closing of such Change in Control. The determination of payments and
installments, including the distribution of only whole shares of TCF Stock from
the TCF Stock account, shall be the same as under the preceding paragraph (I).
b.
Pre-2000
Account
. Not later than 30 days after
an Employee’s “Distribution Event” (as defined herein), the Trustee shall
commence distribution of the amounts credited to such Employee’s Pre-2000 Account. Notwithstanding the foregoing sentence, if an
Employee’s distribution requires Committee action then the commencement of
distributions shall occur not later than 30 days after such Committee action
or, if later, after the Employee’s Distribution Event. Provided, that the Committee shall take any
action required of it no later than its next regularly scheduled meeting after
the Employee’s Distribution Event. An
Employee’s “Distribution Event” is the first to occur of the following: (i)
termination of employment; (ii) disability; or (iii) the date one year after a “Change
in Control” (as defined herein).
Commencing within such 30 day period, the balance credited to the
Employee’s Account shall be paid as follows.
15-Year
Payment Schedule Subject to Acceleration by Committee
. For distributions not subject to Section 5.c.,
d., or k., payment of the Employee’s Pre-2000 Account shall be in fifteen
annual installments unless the Committee approves a different schedule or
the Employee’s account is subject to the last paragraph of this Section 5.b. The Committee may determine on a case by case
basis to approve a different payment
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schedule for an
Employee after taking into account whether the Employee has executed or will
execute a non-competition agreement in form and scope reasonably acceptable to
the Committee. The Committee may also
consider such other factors as the Committee considers appropriate in each
case. Any alternative payment schedule the
Committee approves under this Section 5.b. may be in the form of
installments over such period as the Committee selects, in the form of a lump
sum, or any combination of installments and lump sum payments. For distributions from the Accounts of
Employees who did not consent to the terms of this Section 5.b., the
balance in the Account shall be paid as provided at the end of this section.
(I)
The first
payment under Section 5.b. shall be paid on a date the Committee selects
which is no later than 30 days after the Committee’s direction as to the form
and timing of distributions is made or, if later, 30 days after the Employee’s
Distribution Event. If no date is
selected, the first payment shall be on the date that is the later of 30 days
after the Committee’s action or 30 days after the Employee’s Distribution
Event. Succeeding installments (if any)
shall be paid on January 31 of each calendar year following the calendar
year in which the first payment was made.
(II)
Each payment
shall be made in cash or in kind as the Committee, in its discretion, shall
determine except that distributions of amounts credited to an Employee’s TCF
Stock Account shall be distributed in the form of TCF Stock. If the Committee makes no instruction,
distributions of amounts credited to an Employee’s Account that are deemed to
be invested in assets other than TCF Stock shall be distributed in the form of
cash. Annual installments are intended
to be substantially equal in value. To
that end, each annual distribution shall be determined as follows. The amount credited to Employee’s Account, as
reported on the latest available account statement, shall be multiplied by a
fraction, the numerator of which is one and the denominator of which is the
number of installments remaining to be paid, including the current
installment. The value of any portion of
the Account distributed in cash shall be equal to the cash that would have been
received if the assets in which the Account was deemed to have been invested
had been liquidated on the latest practicable date prior to the distribution
date.
(III)
Notwithstanding
the foregoing subparagraph (I), an Employee who has terminated employment and
commenced receiving payments may elect each year to have the payment otherwise
due on January 31 of the next succeeding year paid as monthly installments
instead, with each payment made on the last day of each month. Any such election shall be made in writing
and delivered to the Committee on or before December 1 prior to any year
for which it is to be effective. Such
election may also indicate the assets to be deemed to have been liquidated in
connection with each monthly payment (subject to the requirement that
distributions of amounts credited to an Employee’s TCF Stock Account must be
distributed in the form of whole shares of TCF Stock). The amount of each monthly payment shall be
equal to the amount that would otherwise be paid in one payment in January,
divided by 12. Any assets that must be
deemed to have
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been liquidated in order to
pay monthly benefits shall be deemed to have been liquidated on the last
practicable date prior to the installment’s payment date. In no event shall this subparagraph be
construed as allowing the executive to lengthen or shorten the number of years
over which his or her benefits will be paid; the election herein pertains only
to timing of payments within a year.
Pre-2000
Account: Lump Sum Payment
. For an Employee’s Pre-2000
Account, distributions to Employees who did not consent to the foregoing terms
of Section 5.b. at the time such provisions were added to the Plan in
1996, shall occur on or about the 30th day after the Employee’s Distribution
Event. Distribution shall consist of a
single lump sum equal to the total value of the Employee’s Pre-2000 Account,
unless the termination of employment was due to retirement or disability (as
defined herein), in which case the distribution shall be in five annual
installments. However, the Committee
shall reduce the number of the installments if necessary to provide for annual
payments of at least $15,000. In
addition, if the value of the Employee’s Account is less than $15,000 as of any
annual installment payment date, the Account shall be paid in full as of such
installment payment date. Distributions
shall be in the form of cash, except that any portion of the Account that is
deemed to be invested in TCF Stock shall be distributed in the form of
whole shares of TCF Stock. The value of any portion of the Account distributed
in cash shall be equal to the cash that would have been received if the assets in which such portion of the
Account was deemed to be invested had been liquidated by the Trustee on the
latest practicable date prior to the distribution date.
c.
Overriding Lump
Sum Distribution in Exchange for Non-Competition Covenant or Reduction in
Account Balance
. Effective
on and after September 30, 1998, each Employee who so elects in accordance
with this paragraph c. and who has had a Distribution Event shall be entitled
to elect to receive a lump sum form of distribution of either the Pre-2000
Account or any Class Year Account. A
lump sum distribution shall consist of a single distribution of the entire
value of the Employee’s Pre-2000 or Class Year Account (unless the Employee
elects to apply the election to only the portion of the Account that is deemed
to be invested in TCF Stock or to only the portion of the Account that is
deemed to be invested in assets other than TCF Stock) on or about 30 days after
the later of the Employee’s Distribution Event or the date on which the
Employee’s election is filed with TCF Financial. The distribution shall be in the form of
cash, except that any portion of the Employee’s Account that is deemed to be
invested in TCF Stock shall be distributed in the form of whole shares of TCF
Stock. The value of any portion of the
Account distributed in cash shall be equal to the cash that would have been
received if the assets in which such portion of the Account was deemed to be
invested had been liquidated by the Trustee on the latest practicable date
prior to the distribution date. An
Employee’s election under this paragraph c. may occur at any time prior to or
after the commencement of distributions to such Employee. If distributions have already commenced, such
election shall apply only to the balance of the Employee’s Account at the time
of the election. The election shall be
made on such form as TCF Financial reasonably requires and shall be accompanied
by whichever of the following the Employee elects to provide: (a) a
non-competition agreement having a value as of the Committee’s action date,
equal to at least 10% of the then-current value of the Employee’s Account; (b)
the Employee’s written acceptance of a reduction by 10% in the
8
Employee’s Account; or (c)
the Employee’s written acceptance of a reduction by less than 10% in the
Employee’s Account and a non-competition agreement having a value as of the
Committee’s action date equal to at least the difference between 10% of the
then-current value of the Employee’s Account and the reduction accepted in
writing by the Employee.
d.
Change in
Control Distribution
. In the
event of a Change in Control (as defined in this Plan) all Pre-2000 Accounts in
the Plan will be distributed to all Employees.
If the Employee’s Pre-2000 Account is subject to Section 5.b.,
distribution will be in the form required by Section 5.b. If the Employee elects to have Section 5.c.
apply to the Pre-2000 Account, however, then distribution will be in the form
of a lump sum. Any election to apply Section 5.c.
to an Account in connection with a Change in Control shall meet the
requirements of Section 5.c. The
first payment, or the lump sum payment, whichever applies, of a Pre-2000
Account shall occur on or about 30 days after the earlier of (i) the date one
year after the Change in Control, or (ii) the date of the Employee’s
termination of employment or disability.
Any shares of TCF Stock (or securities of a successor company exchanged
for TCF Stock) that are deemed to be held in the TCF Stock Account shall be
distributed in the form of investment in which they are then deemed to be
held. The value of any distribution from
the Diversified Account distributed in cash shall be equal to the cash that
would have been received if the assets in which the Diversified Account was
deemed to be invested had been liquidated by the Trustee on the latest
practicable date prior to the distribution date. Notwithstanding anything in this Section 5.d.
to the contrary, if at least twelve months prior to the earlier of: (A) the
date on which a Change in Control occurs; or (B) the date on which a definitive
agreement pursuant to which a Change in Control occurs is signed by all
parties, an Employee files a written election with the Committee to have his or
her Pre-2000 Account in the Plan distributed on a Date Certain in accordance
with rules substantially similar to those described in Section 5.a.(I) or
upon termination of employment in accordance with rules substantially similar
to those described in Section 5.a(III), the Employee’s Pre-2000 Account
shall be distributed in accordance with the Employee’s last timely written
election to that effect and not in accordance with the default rules of this Section 5.d. In the event of a Change in Control, all
Class Year Accounts of an Employee shall be distributed to the Employee if he
or she so elected, at the time and in the manner elected under Section 5.a.
at the time the Class Year Account was deferred. If the Employee subsequently elects to have Section 5.c.
apply to the Class Year Account, however, then distribution shall be in the
form of a lump sum.
e.
For purposes of
this section, an Employee’s employment is considered to terminate as of the
date which is the later of (i) Employee’s last date of service for the Company,
or (ii) the last date on which there is an employment relationship between the
Employee and a Company.
f.
For purposes of
this section, an Employee is disabled as of the date the Employee is eligible
for payments under the long term disability plan of a Company.
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g.
In the event
installment payments commence and any installments are unpaid at the time of
Employee’s death, the payments shall be made at the times and in such amounts
as if Employee were living to the persons specified in Section 7.a.
h.
For purposes of
this section, an Employee’s termination of employment is a retirement if so
determined by the Committee under all the facts and circumstances.
i.
For purposes of
this Section 5, the value of a non-competition agreement shall be
determined in all cases on the basis of an independent appraisal, unless such
an appraisal is deemed unnecessary by both the Committee and the Employee.
j.
For purposes of
this Plan, a Change in Control shall be deemed to have occurred if (i) 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 (for purposes of this clause
(i), the term “beneficial owner” does not include any employee benefit plan
maintained by TCF Financial that invests in TCF Financial’s voting securities;
or (ii) during any period of two (2) consecutive years there shall cease to be
a majority of the Board comprised as follows: individuals who at the beginning
of such period constitute the Board or new directors whose nomination for
election by the company’s shareholders 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 (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) at least 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 a Change in Control, for purposes
of this Plan, is the date on which the Change in Control is consummated.
k.
Notwithstanding
any other provision of this Section 5 or any payment schedule approved
by the Committee pursuant to this Section 5 and regardless of whether
payments have commenced under this Section 5, in the event that the
Internal Revenue Service should finally determine with respect to an Employee who
has terminated employment with a Company that part or all of the value of the
Employee’s Deferred Amounts or Plan Account which has not actually been
distributed to the Employee, or that part or all of a separate account that has
been established for the Employee under a trust described in Section 4, is
nevertheless required to be included in the Employee’s gross income for federal
and/or State income tax purposes, then the Deferred Amounts or
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the Account or the part
thereof that was determined to be includible in gross income shall be
distributed to the Employee in a lump sum as soon as practicable after such
determination without any action or approval by the Committee. A “final determination” of the Internal
Revenue Service for purposes of this Section 5.k. is a determination in
writing by said Service ordering the payment of additional tax, reporting of
additional gross income or otherwise requiring Plan amounts to be included in
gross income, which is not appealable or which the Employee does not appeal
within the time prescribed for appeals.
l.
Effective for
distributions commencing on or after May 16, 2001, an Eligible Employee may
elect to have benefits due under this Plan distributed in any one of the forms
allowed by the Plan, provided that the election is in writing and is executed
and delivered to TCF Financial or to its Corporate Secretary (or designee) on
behalf of TCF Financial, prior to the Employee’s termination of employment and
no later than one year (365 days) before such Employee’s distribution event.
m.
Notwithstanding
the foregoing, with respect to any amounts deferred by Participants under the
Plan on or before December 31, 2004, but which were not earned and vested
(as defined under IRC § 409A) on that date, such amounts shall be
separately accounted for under the Plan and shall be distributed to the
Participant in a lump sum form of distribution no sooner than six months after
the earliest to occur of the following: such Participant’s termination of
employment, financial emergency (as defined in IRC § 409A), disability or
death, previously-elected date certain, the termination of the Plan (to the
extent IRC § 409A permits distributions on Plan termination), change in
control (to the extent IRC § 409A permits distributions upon a change in
control) or any other distribution event under the Plan which is a permitted
distribution event under IRC § 409A.
6.
Emergency Payments
. In the event of an “unforeseeable emergency”
as determined hereafter, the Committee may determine the amounts payable under Section 5
hereof and pay all or a part of such amounts without regard to the payment
dates provided in Section 5 to the extent the Committee determines that
such action is necessary in light of immediate and heavy needs of the Employee
(or his beneficiary) occasioned by severe financial hardship. For the purposes of this Section 6, an “unforeseeable
emergency” is a severe financial hardship to the Employee resulting from a
sudden and unexpected illness or accident of the Employee or beneficiary, or of
a dependent (as defined in Section 152(a) of the Internal Revenue Code of
1986, as amended) of the Employee or beneficiary, loss of the Employee’s or
beneficiary’s property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the Employee or beneficiary. Payments
shall not be made pursuant to this Section 6 to the extent that such
hardship is or may be relieved: (a) through reimbursement or compensation by
insurance or otherwise, (b) by liquidation of the Employee’s or beneficiary’s
assets, to the extent the liquidation of such assets would not itself cause
severe financial hardship, or (c) by cessation of the Employee’s deferrals
under the Plan. Such action shall be
taken only if Employee (or Employee’s legal representatives or successors)
signs an application describing fully the circumstances which are deemed to
justify the payment, together with an estimate of the amounts necessary to
prevent such hardship, which application shall be
11
approved by the Committee after making such inquiries as the Committee
deems necessary or appropriate.
7.
Method of Payments
.
a.
In the event of
Employee’s death, payments shall be made to the persons (including a trustee or
trustees) named in the last written instrument signed by Employee and received
by the Committee prior to Employee’s death, or if Employee fails to so name any
person, the amounts shall be paid to Employee’s estate or the appropriate
distributee thereof. The Committee, the
Companies, and the Trustee shall be fully protected in making any payments due
hereunder in accordance with what the Committee believes to be such last
written instrument received by it.
b.
Payments due to
a legally incompetent person may be made in such of the following ways as the
Committee shall determine:
i.
directly to
such incompetent person,
ii.
to the legal
representative of such incompetent person, or
iii.
to some near
relative of the incompetent person to be used for the latter’s benefit.
c.
Except as
otherwise provided in Sections 7.a. and b., all payments to persons entitled to
benefits hereunder shall be made to such persons in person or upon their
personal receipt or endorsement, and shall not be grantable, transferable, or
otherwise assignable in anticipation of payment thereof, in whole or in part,
by the voluntary or involuntary acts of any such persons, or by operation of law,
and shall not be pledged, encumbered, or otherwise liable or taken for any
obligation of such person.
d.
All payments to
persons entitled to benefits hereunder shall be made out of the general assets,
and shall be the sole obligations, of the Company(ies) by which the Eligible
Employee was employed, except to the extent that such payments are made out of
the trust described in Section 4.
e.
Unless
commenced earlier at the direction of the Committee or suspended due to a
Company’s Insolvency, payments from the trust described in Section 4 shall
be commenced by the Trustee (without the need for further instructions from the
Committee) in accordance with the most recent payment instructions provided by
the Committee after the Trustee (i) acquires actual knowledge of the occurrence
of an event that requires payment to commence (a “payment event”), (ii) is
notified by the Committee that a payment event has occurred, (iii) determines
(in the absence of actual knowledge and any notice from the Committee) that a
Change in Control has occurred as defined in Section 5.j. of this Plan, or
(iv) in the case of a participant’s termination of employment, is notified in
writing by the participant that the participant’s termination of employment has
occurred. The Trustee shall make a
determination with respect to whether a Change in Control has occurred if the
Trustee receives notice that a Change in Control may have occurred from any
source other than the Committee . Promptly after
12
receiving such notice of a
possible Change in Control, the Trustee shall request from the Committee all
information relevant to the Trustee’s determination. If the Committee fails to provide information
sufficient to demonstrate the absence of a Change in Control within 30 days
after the Trustee’s request, and the other information received by the Trustee
indicates that a Change in Control has occurred, the Trustee shall commence
payment of accounts (that are not payable earlier) in the manner required upon
the occurrence of a Change in Control.
f.
Payments made
by the Trustee from an account established for a participant shall be debited
against such account and shall cease when the balance credited to the account
has been reduced to zero or if earlier, when the Trustee determines, based upon
its review of the records of the Plan, that payment of any additional amounts
from the participant’s account will result in the payment of benefits in excess
of those required under the Plan. The
Trustee shall have no obligation to perform such a review and consider such a
determination until after (i) the Committee notifies the Trustee and the
participant (or, if the participant has died, the participant’s beneficiary) of
the potential excess payment, (ii) the Trustee has been provided with all Plan
records that may be reasonably required by the Trustee to make its
determination, and (iii) the participant (or beneficiary) has had a reasonable
time (not less than 30 days) to respond.
Pending its determination, the Trustee shall continue payment of the
affected account(s) in accordance with the applicable payment instructions.
8.
Claims Procedures
.
a.
If a claim for
benefits made by any person (the “Applicant”) is denied, the Committee shall
furnish to the Applicant within 90 days after its receipt of such claim (or
within 180 days after such receipt if special circumstances require an
extension of time) a written notice which: (i) specifies the reasons for the
denial, (ii) refers to the pertinent provisions of the Plan on which the denial
is based, (iii) describes any additional material or information necessary for
the perfection of the claim and explains why such material or information is
necessary, and (iv) explains the claim review procedures.
b.
Upon the
written request of the Applicant submitted within 60 days after his receipt of
such written notice, the Committee shall afford the Applicant a full and fair
review of the decision denying the claim and, if so requested: (i) permit the
Applicant to review any documents which are pertinent to the claim, (ii) permit
the Applicant to submit to the Committee issues and comments in writing, and
(iii) afford the Applicant an opportunity to meet with a quorum of the
Committee as a part of the review procedure.
c.
Within 60 days
after its receipt of a request for review (or within 120 days after such
receipt if special circumstances, such as the need to hold a hearing, require
an extension of time) the Committee shall notify the Applicant in writing of
its decision and the reasons for its decision and shall refer the Applicant to
the provisions of the Plan which form the basis for its decision.
13
9.
Miscellaneous
.
a.
Except as
limited by Section 7.c. and except that an Employee shall have a
continuing power to designate a new recipient in the event of Employee’s death
at any time prior to such death without the consent or approval of any person
theretofore named as Employee’s recipient by an instrument meeting the
requirements of Section 7.a., this document shall be binding upon and
inure to the benefit of each Company, the Employees, their legal
representatives, successors and assigns, and all persons entitled to benefits
hereunder.
b.
Any notice
given in connection with this document shall be in writing and shall be
delivered in person or by registered mail or overnight delivery service, return
receipt requested. Any notice given by
registered mail or overnight delivery service shall be deemed to have been
given upon the date of delivery indicated on the return receipt, if correctly
addressed.
c.
Nothing in this
document shall interfere with the rights of any Employee to participate or
share in any profit sharing or pension plan which is now in force or which may
at some future time become a recognized plan of any Company.
d.
Nothing in this
document shall be construed as an employment agreement nor as in any way
impairing the right of any Company to terminate an Employee’s employment at
will.
e.
This Plan
constitutes a mere promise by the Companies to make benefit payments in the
future, and it is intended to be unfunded for tax purposes and for the purposes
of Title I of ERISA. The rights of an
Employee or beneficiary to receive benefit payments hereunder are solely those
of an unsecured general creditor.
f.
Amounts that
are paid more than 30 days after the later of the date on which they are due
according to the terms of this Plan or the date on which a written claim for
such amounts is received by the Committee shall incur interest at the rate of
fifteen percent per annum (eighteen percent per annum if the payment occurs
after a Change in Control) from the date as of which payment was due. In addition, if all or any portion of the
distribution is payable in the form of TCF Financial stock, and the value of
such stock at the time of distribution is less than its value on the date as of
which payment was due, the payee shall be entitled to liquidated damages equal
to 100% (120% if the payment occurs after a Change in Control) of the aggregate
difference in value between the value of the distributed shares on the date
their distribution was due (without regard to the 30-day grace period or the
requirement of a claim) and the value of the distributed shares on the actual
date of distribution.
g.
Any costs or
attorneys’ fees incurred by a participant or beneficiary in connection with the
collection of benefits that were not timely paid under this Plan shall be
reimbursed by the Companies.
h.
Notwithstanding
anything in this Plan to the contrary, effective January 1, 2003, if the
beneficiary of a participant is not the participant’s spouse, the payment to
that beneficiary shall be made in the form of an immediate lump sum
distribution of the entire
14
portion of the participant’s
account payable to that beneficiary, without regard to any outstanding
installment payment election.
10.
Investment Elections by
Employees
; Deferred TCF Stock Awards; Purchase Procedures for
Purposes of Rule 16b-3
.
a.
Employees may
elect to have investments that have been deemed to have been made in their
Deferred Compensation Accounts under Section 3 or 4 deemed to have been
liquidated and reinvested as directed,
provided
that any investment
election shall be exercised in writing by the Employee and approved by the
Committee or its approved representative under such terms and conditions as the
Committee deems appropriate (Exhibit A to this Plan), and
further provided
that on and after September 30, 1998 any deemed investments in TCF Stock
shall be subject to paragraph b. of this Section 10.
b.
If an Employee
directs or retains any deemed investment in shares of TCF Stock on or after September 30,
1998, or defers an award of TCF Stock, the Employee’s Account shall include a
TCF Stock Account which shall operate as follows:
i.
All shares of
TCF Stock that were deemed to have been held in the Employee’s Account on September 30,
1998 (excluding any shares held in suspense or unvested pursuant to paragraph
c. of this section) shall be allocated on that date to the Employee’s TCF Stock
Account and the fixed number of shares so allocated shall be the beginning
balance of the TCF Stock Account.
ii.
Thereafter, the
TCF Stock Account shall be increased by the number of shares, if any, of TCF
Stock deemed to be purchased from Deferred Amounts or from dividends (other
than nondeferred dividends) and/or interest pursuant to the Employee’s
directions under Section 3 of this Plan and by any shares of TCF Stock
released from pledge or becoming vested, as provided in paragraph c. of this
section.
iii.
The balance of
shares of the TCF Stock Account shall in no event be decreased.
iv.
Shares
allocated to the Employee’s TCF Stock Account shall be subject to all of the
restrictions and other provisions of this Committee’s action dated 8-24-98
establishing separate accounts for TCF Stock as compared to non-TCF Stock
assets.
v.
Effective
January 1, 2005 no further elections shall be allowed under this section 10.b.v
of this Plan as provided in Appendix C. An employee’s last election
before December 31, 2004 shall remain in effect until
the employee’s entire account is distributed.
c.
Deferred
Amounts consisting of TCF Stock awards shall be held unallocated until such
time as the shares vest in accordance with the terms of the award
agreement. As of the date any such
shares become vested, the number of shares vesting
15
shall be allocated to the
Employee’s Account and shall thereafter become subject to distribution the same
as any other shares of TCF Stock in which the TCF Stock Account is deemed
invested. Any cash dividends paid on
unvested shares of TCF Stock, if such dividends have been deferred by the Employee,
shall be allocated to the Employee’s account and deemed invested as directed by
the Employee. Any stock dividends paid
on unvested shares of TCF Stock, if such dividends have been deferred by the
Employee, shall be allocated to the Employee’s TCF Stock account and increase
the TCF Stock account balance unless such dividends are in the nature of a
stock split, in which case they shall be held unallocated until such time as
the award vests.
d.
Any election of
Deferred Amounts of salary or incentive compensation under Section 1.b.
shall be exercised in writing by the Employee and filed with the Committee no
later than the date prior to the date the first salary or incentive
compensation, part or all of which is to become a Deferred Amount, is earned.
e.
Any investment
election under Section 3 or 4 relating to initial or periodic deemed
investments of Deferred Amounts in TCF Stock, whether as a result of an initial
or yearly election to participate in the Plan or a change in the level of
participation in the Plan, shall be exercised in writing by the Employee and
filed with the Committee no later than the date prior to the date the first
salary or incentive compensation, part or all of which is to become a Deferred
Amount, is earned. Investments of Deferred
Amounts in equity securities of TCF Financial shall be deemed to occur as soon
as practicable after the payroll date for which the Deferred Amount is
received, and in the case of deemed investments consisting of TCF Stock, no
later than two weeks after such payroll date, with the exact date and purchase
terms to be determined by the Committee on such basis as it reasonably
determines.
f.
Any investment
election under Section 3 or 4 relating to the deemed liquidation of
existing investments and the deemed reinvestment or reapplication of proceeds
within the Plan shall be consistent with Exhibit A hereto, shall be exercised
in writing and filed with the Committee by the Employee on any date,
provided
that any such election which is a discretionary purchase of TCF Stock is at
least six months after the date of the Employee’s last such discretionary
election (as defined in Rule 16b-3) of a sale of TCF Stock under any other
benefit plan of a Company. Liquidation
and/or reinvestment of funds within the Plan under Section 3 or 4 shall be
deemed to have occurred as soon as practicable after the Employee’s election is
filed with the Committee, provided that the Committee determines it is a valid
election and, in the case of a deemed investment or reinvestment in TCF Stock,
no later than two weeks after the date such election is filed with the
Committee and determined to be valid, with the exact date(s) and terms of any
such transaction involving TCF Stock to be determined by the Committee on such
basis as it reasonably determines.
g.
For purposes of
this Section 10, filing with the corporate secretary of TCF Financial
shall be deemed to be a filing with the Committee.
11.
Termination or Amendment
.
This Plan may be amended at any time and from
time to time upon the approval of the Board of Directors of TCF Financial;
provided, however,
16
that no amendment shall be effective unless it has the written consent
of all participants, all participants who are former employees but who are
entitled to benefits under the Plan, and all beneficiaries of deceased
participants who are entitled to benefits under the Plan. In the event that all of the Plan’s
participants and beneficiaries do not consent to a proposed amendment, such
amendment shall not take effect but the Plan Accounts of the consenting
participants and beneficiaries shall be transferred to a separate plan that is
identical to this Plan in all respects except that it may include the proposed
amendment. The Board of Directors may
terminate this Plan in its discretion, except that any such termination shall
require the written consent of all participants, all participants who are
former employees but who are entitled to benefits under the Plan, and all
beneficiaries of deceased participants who are entitled to benefits under the
Plan, unless it is an automatic termination of the Plan under Section 5.k.
hereof. In the event that all of the
Plan’s participants and beneficiaries do not consent to a proposed termination
of the Plan, the Plan shall terminate as to the consenting participants and
beneficiaries and shall continue in effect for the participants and
beneficiaries who do not consent.
17
EXHIBIT A
(Action of 16b-3 Sub-Committee of the
Personnel Committee Establishing TCF Stock Accounts and Diversified Accounts
effective as of September 30, 1998 and as amended effective as of January 1,
2000)
1.
Effective as of September 30,
1998 (the “Effective Date”), each participant’s Account in the Plan shall be
divided into two sub-accounts: a “TCF Stock Account” and a “Diversified
Account.” All shares of common stock of
TCF Financial (“TCF Stock”) that are deemed to be held in a participant’s
Account on the Effective Date shall be allocated as of that Date to the
Participant’s TCF Stock Account. All
other investments that are deemed to be held in a participant’s Account on the
Effective Date shall be allocated as of that date to the participant’s
Diversified Account. Thereafter, the
Sub-Accounts shall operate as follows:
a.
The TCF Stock
Account shall be deemed to be invested solely in shares of TCF Stock (and in
cash or cash equivalent money market funds for fractional shares or for funds
held temporarily prior to investment).
The Diversified Account shall not at any time be deemed to be invested
in any shares of TCF Stock. Except as
permitted by paragraph e, below, no transfer of assets will be permitted from
the TCF Stock Account to the Diversified Account or from the Diversified
Account to the TCF Stock Account.
b.
A participant’s
TCF Stock Account shall be deemed to be invested in all shares of TCF Stock
allocated to it on or after the Effective Date and such shares shall not be
subject to any deemed sale, transfer, assignment, pledge or other hypothecation
in any manner. Upon the occurrence of a
Distribution Event (as defined in the Plans) the distributions from the Plan to
the participant with respect to such shares will be made in an in-kind
distribution pursuant to the terms of the Plan.
c.
The Diversified
Account shall not at any time be deemed to purchase or invest in any shares of
TCF Stock, but shall be deemed to invest in such investments as the participant
directs and as the Committee permits from time to time.
d.
Any new
Deferred Amounts for a participant after the Effective Date shall be allocated
to either the participant’s TCF Stock Account or to such participant’s
Diversified Account, as the participant shall direct in an irrevocable election
filed before the beginning of each calendar year and applicable throughout the
calendar year. The Deferred Amounts
shall be credited to the applicable sub-Account as of the same date that they
are otherwise credited to the participant’s Account under Section 3.a. of
the Plan.
e.
Dividends
deemed to have been generated by a participant’s TCF Stock Account and which
are deferred shall be deemed to have been reinvested in the TCF Stock Account,
or in the Diversified Account, as the participant directs in an irrevocable
election filed before the beginning of each calendar year and applicable
throughout the calendar year. Any
interest or dividends deemed to have been generated by a participant’s
Diversified Account shall be deemed to have been reinvested in the Diversified
Account, or in the participant’s TCF Stock Account, as the participant directs
18
in an irrevocable election
filed before the beginning of each calendar year and applicable throughout the
calendar year, unless management determines that the deemed reinvestment of
interest and dividends within or from the Diversified Account is not
administratively feasible. If the
participant does not file an election with respect to the investment of
interest and/or dividends, all interest and dividends shall be deemed to have
been reinvested in the asset that generated them.
19
APPENDIX A
RE: IRS NOTICE 2000-56
Notwithstanding
anything to the contrary in the Plan or Trust, effective on and after
May 16, 2001, TCF Financial stock or other assets contributed to the
Trust by TCF Financial or any other Company for the benefit of employees or
service providers of TCF Financial or such Company are subject to the claims of
creditors (in the event of insolvency) of both TCF Financial and such
Company. In addition, such stock and
assets are subject to the claims of creditors (in the event of insolvency) of
any Company from which benefits are due to a participant or beneficiary under
the terms of the Plan. Nothing in this
Appendix, however, shall relieve any Company of its obligation to pay any
benefits due from the Company to a participant or beneficiary under the terms
of the Plan.
Notwithstanding
anything to the contrary in the Plan or Trust, effective on and after May 16,
2001, any TCF Financial stock or other assets not transferred to a Company’s
employees or their beneficiaries will revert to TCF Financial upon termination
of the Trust.
20
APPENDIX B
DISTRIBUTION
PROCEDURES
(10/03/01)
Covered Plans
. These
Procedures have been adopted as Appendices to the following plans: Executive,
Senior Officer, and Winthrop Deferred Compensation Plans and Supplemental
Employees Retirement Plan (“SERP”) - 401-k Plan Portion.
Timing of Distribution
(Lump Sum vs. Installment)
. As elected by the Employee at the
time of joining the Plan. Superseding
elections may be made at any time up to one year prior to distribution.
•
Lump Sum - 30 days after “distribution event” (usually,
termination of employment).
•
Installments - First installment is 30 days after
distribution event. Subsequent
installments on February 15th of each succeeding year. Each installment amount is determined by multiplying
the account balance on 12/31 of previous year by a fraction of 1/number of
remaining installments.
Form of Distribution -
Stock or Cash
|
If Your Account
is 100% TCF
Stock.
|
If Your Account
Contains both
TCF Stock and Diversified
Account.
|
If your Account
is 100%
Diversified Account.
|
|
The distribution will be settled
entirely in whole shares of TCF Stock (plus cash for any fractional share).
|
Automatic Method – Cash first,
then pro rata
: The
distribution will be deducted first from any cash/money market balances in
your plan account, then pro rata from TCF Stock and Diversified Plan Account
balances. TCF Stock portion will be made in whole shares of TCF Stock (with
cash for any fractional share). Diversified Account portion will be paid in
cash equal to its value on February 15th.
|
Automatic Method – Cash first,
then pro rata
: The
distribution will be deducted first from any cash/money market balances in
your plan account then pro rata from the deemed investments in your
Diversified Account. The distribution will be paid in cash equal to the value
on February 15th of the deemed investments from which it was deducted.
|
|
|
Alternative Elections: 1. You may direct
the deemed sale of non-TCF stock assets to provide cash for the distribution.
2. You may specifically designate the assets to apply to the distribution.
(Example: You specify 100% of the distribution
|
Alternative Elections: 1. You may direct
the deemed sale of assets to provide cash for the distribution. 2. You may
specifically designate the assets to apply to the distribution. (Example: You
specify 100% of the distribution will come from one
|
21
|
|
will come from the Diversified Account).
|
particular investment in the Diversified
Account).
|
|
|
Election Deadline: December 31 of the
previous year.
|
Election Deadline: December 31 of the
previous year.
|
Tax Withholding
|
Automatic Method of Withholding –
Net Pro rata Against the Distribution:
The minimum required withholding
(28% federal plus applicable state percentage) will be deducted from each
part of the distribution on a pro rata basis by type of asset. Valuation for both the income reported and
the withholding will be based on deemed sale price of the investment on February 15th.
|
Alternative Election – Pay by
Check
: You may elect to pay the withholding by
check. TCF Legal will calculate the
amount due on February 15th based on average market values on that
date. TCF Legal must receive check
before the distribution will be forwarded to you.
|
Alternative Election – Specify
Netting
: You may elect to net the withholding
against the distribution on some basis other than pro rata. (Example:
You specify that 100% of withholding will come from the Diversified
Account portion of the distribution.)
|
|
|
Election Deadline – December 31 of the
previous year.
|
Election Deadline – December 31 of the
previous year.
|
•
Distributions will be sent by US. Mail to your home
address on file with the TCF Legal Department unless you have provided other
delivery instructions in writing. If you
have a stock brokerage account, distributions can be sent to it on a same day
basis.
•
These procedures are subject to interpretation and
application by the Company, whose interpretation is final.
22
APPENDIX
C
FREEZING OF
PLAN AND OTHER AMENDMENTS
UNDER INTERNAL
REVENUE CODE § 409A
(01-05-05)
Effective January 1, 2005, no further deferral elections shall be
allowed under section 1 of this Executive Deferred Compensation Plan and no
further elections shall be allowed under section 10.b.v of the Plan.
The Company may offer elections to Plan participants during the
calendar year 2005 under terms authorized by IRC § 409A to revoke or
cancel their previous elections on amounts previously deferred that were not “earned
and vested” on December 31, 2004 (as defined under IRC § 409A or
regulations issued thereunder) as provided in new Plan section 1 and may
allow participants to elect whether or not to pay tax withholding on any shares
distributed to them by netting the tax withholding due against the shares,
provided any such election is made no less than 6 days before the shares are
distributed (it being the intention that such election will be exempt from
matching under Rule 16b-3).
Any amounts not earned and vested on December 31, 2004 (as defined
in the previous paragraph) and for which deferral is not revoked or cancelled
under the new Plan section 1 shall be subject to the new Plan section 5.m.
This Appendix is not intended to add any options or enhancements to the
Plan nor to in any other way constitute a “material modification” (as defined
in IRC § 409A and in regulations issued thereunder) to the Plan. Any and all interpretations of this Appendix
(and the sections added by this Appendix to the Plan) shall be construed
consistent with this intent. The Plan continues in effect with respect to
amounts deferred under the Plan for the years 2004 and before which were earned
and vested on or before December 31, 2004.
The Plan is not subject to IRC § 409A or regulations issued
thereunder except with respect to any amounts that were not earned and vested,
as defined pursuant to IRC § 409A, by December 31, 2004
23
Exhibit 10(e)-1
AGREEMENT
01-18-05
THIS AGREEMENT is made
and entered into as of January 25, 2005 between TCF FINANCIAL CORPORATION,
a Delaware corporation (“TCF Financial”), TCF NATIONAL BANK, a national banking
association and successor to TCF Savings Bank fsb (“TCF Bank” and collectively,
jointly and severally TCF Bank and TCF Financial are referred to as the “Company”)
and WILLIAM A. COOPER (“Cooper”).
R
E
C
I
T
A
L
S
:
WHEREAS, TCF Financial is
a bank holding company and owns all the outstanding stock of TCF Bank;
WHEREAS, Cooper is now
and has been Chairman of the Board and Chief Executive Officer of TCF Financial
and TCF Bank;
WHEREAS, Cooper and the
Company are parties to the employment agreement dated as of July 1, 1996
(the “Employment Agreement”);
WHEREAS, Cooper and TCF
Financial are parties to the change in control agreement dated as of July 1,
1996 (the “CIC Agreement”);
WHEREAS, Cooper and the
Company wish to enter into this Agreement to provide for the termination of the
Employment Agreement and the CIC Agreement effective December 31, 2005
and, subject to his election as a director, for Cooper to serve as the
non-executive Chairman of the Board of TCF Financial; and
WHEREAS, Cooper and the
Company are willing to enter into this Agreement upon the terms and conditions
set forth herein;
NOW, THEREFORE, in
consideration of the mutual premises and agreements set forth herein, the
parties hereby agree as follows:
1.
Termination
of Employment
. The parties hereby
agree that the term of the Employment Agreement shall expire on December 31,
2005 and that the employment of Cooper by the Company shall terminate as of December 31,
2005, in each case subject to earlier termination as provided in the Employment
Agreement. In addition, the CIC Agreement
shall terminate on December 31, 2005, subject to earlier termination as
provided in the CIC Agreement, and from and after January 1, 2006 Cooper
shall have no rights or benefits under the CIC Agreement. In connection with termination of the Employment
Agreement and the CIC Agreement as provided in this paragraph 1, the Company
will, at its expense, transfer effective December 31, 2005 to Cooper such
club and other memberships as Cooper currently enjoys under the Employment
Agreement as listed on Exhibit A hereto; provided that Cooper shall be
responsible for the income recognized as a result of such transfer.
2.
Non-Executive
Chairman
. Cooper agrees to stand for
re-election to the Board when he is up for re-election in 2005 and 2008, and to
serve as Chairman of the Board if so elected in a non-executive, non-employee
capacity from January 1, 2006 through January 1, 2009. Cooper may, in his discretion, resign from
his position as Chairman and from the Board of Directors after January 1,
2009.
3.
Compensation
and Benefits
. Commencing January 1,
2006 and for serving as Chairman of the Board of Directors of TCF Financial,
Cooper shall receive (a) the fees paid to other non-employee directors on the
Board of Directors of TCF Financial and an additional annual fee for serving as
Chairman payable at the same rate as any fee paid to other directors who serve
as committee chairs, (b) such stock grants as are provided to other
non-employee directors on the Board of Directors of TCF Financial and (c) such
other benefits as from time to time provided to other non-employee directors on
the Board of Directors of TCF Financial. Cooper shall also receive upon
execution of this Agreement a special one-time stock grant upon the terms of
Exhibit B attached hereto in consideration of his serving as Chairman of the
Board of Directors of TCF Financial as provided in paragraph 2 above. It is understood that the pension plan for
directors requires a minimum of five years of service on the Board (and
excludes service as an employee director) and therefore if Cooper resigns from
the Board before completing five years of service (as defined) he will not
receive a pension from the Directors’ pension program. The Company will make available a suitable
office and support at its headquarters offices for Cooper while he serves as
Chairman of the Board of TCF Financial but Cooper shall not be required to
maintain any hours or time in such office other than as Cooper may determine is
necessary for him to serve as non-executive, non-employee Chairman of the Board
of Directors of TCF Financial. Cooper
shall also receive reimbursement for any business expenses incurred in
accordance with TCF Financial’s normal policies. Cooper will be entitled to use of any TCF
corporate aircraft for business-related travel only, subject to availability
and scheduling in accordance with TCF policies and practices.
4.
Other
Agreements and Benefits
. This
Agreement and the termination of Cooper’s employment with the Company effective
December 31, 2005 shall not affect or modify any other benefits or rights
that Cooper has under any other agreement of his with the Company or under any
plan or program of the Company.
Effective December 31, 2005, Cooper shall retire as an employee for
all purposes, including the Company’s benefit plans.
5.
Covenant
Not to Compete; Non-Solicitation Covenant
.
(a)
Covenant
Not to Compete
. While Cooper is
serves as Chairman of the Board of Directors of TCF Financial under this
Agreement, Cooper agrees that he will not directly or indirectly substantially
compete with TCF Financial, TCF Bank or their respective subsidiaries in the
Relevant Market. The “Relevant Market”
is financial businesses located in the States of Michigan, Minnesota, Iowa,
North Dakota, South Dakota, Colorado and Wisconsin, and the Chicago
metropolitan area. It is understood and
acknowledged that Cooper has been instrumental in the formation and development
of another financial institution outside the Relevant Market and that this is
not a violation of the covenant.
(b)
Non-Solicitation
Covenant
. While Cooper serves as
Chairman of the Board
2
of Directors of TCF
Financial under 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 Bank or any of their subsidiaries to
discontinue his or her relationship with TCF Financial, TCF Bank 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)
Remedies
. If Cooper commits a breach, or threatens to
commit a breach, of any of the provisions of this paragraph 5, the Company
shall have the right of specific performance in addition to any rights and
remedies otherwise available at law or equity.
6.
Reinstatement
of Employment Agreement.
In the
event that Cooper is not elected a director in 2005 this Agreement shall
terminate and the Employment Agreement and the CIC Agreement shall be
reinstated.
7.
Attorney’s
Fees
. In the event of a dispute
between the Company and Cooper relating to the Cooper’s services hereunder or
the terms or performance of this Agreement, the Company shall promptly pay
Cooper’s reasonable expenses of attorney’s fees and expenses in connection with
such dispute upon delivery of periodic billings for same, provided that (i)
Cooper shall promptly repay all amounts paid under this paragraph 6 at the
conclusion of such dispute if the resolution thereof includes a finding that
Cooper did not act in good faith in the matter in dispute or in the dispute
proceeding itself, and (ii) no claim for expenses of attorney’s fees and
expenses shall be submitted by Cooper unless made in writing to the Board of
Directors within one year of the performance of the services for which such
claim is made.
8.
Governing
Law
. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Minnesota.
[CONTINUED ON NEXT
PAGE.]
3
IN WITNESS WHEREOF, the
parties have duly executed this Agreement as of the day and year first written
above.
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TCF FINANCIAL
CORPORATION
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ATTEST:
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By:
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/s/ Lynn A. Nagorske
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/s/
Gregory J. Pulles
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Its:
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President
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General Counsel and
Secretary
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TCF NATIONAL BANK
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ATTEST:
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By:
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/s/ Lynn A. Nagorske
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/s/
Joseph T. Green
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Its:
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President
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General Counsel and
Secretary
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WITNESS:
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/s/
Gregory J. Pulles
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/s/ William A. Cooper
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William A. Cooper
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4
Exhibit A
Club and
Other Memberships
Spring Hill Golf Club
Wayzata Country Club
Minneapolis Club
Exhibit B
Restricted
Stock Agreement Terms
# Shares: 300,000
Grant Date: January 25,
2005
Grant is subject to
performance-based vesting
•
Vesting
date is January 1, 2009
•
Vesting
percentage on January 1, 2009 is 1/3 for each of the years 2006, 2007 and
2008 that TCF Financial achieves greater than 20% ROTE
•
100%
of grant is forfeited if Cooper resigns from Board or Chairman’s position
before January 1, 2009 (including refusal to stand for re-election in 2005
or 2008) or if he is not re-nominated or re-elected to the Board in 2005.
•
If
Cooper is unable to serve as Chairman because he is not re-nominated or
re-elected in 2008, the shares vest on January 1, 2009 in accordance with
the ROTE goals set forth above based on TCF Financial’s achievement of the
goals in 2006, 2007 and 2008.
Change in control – 100%
vesting
Disability, Death:
pro-rata vesting based on ROTE achieved to date.
Exhibit 10(e)-2
TCF FINANCIAL
INCENTIVE STOCK PROGRAM
RESTRICTED STOCK
AGREEMENT
RS NO.
(Non-deferred) (Performance-Based)
Shares of Restricted
Stock are hereby awarded effective as of January 25, 2005 by TCF Financial
Corporation (“TCF Financial”) to William A. Cooper (the “Grantee”), in
accordance with the following terms and conditions:
1.
Share
Award
. TCF Financial hereby awards
the Grantee 300,000 shares (the “Shares”) of Common Stock, par value $.01 per
share (“Common Stock”) of TCF Financial pursuant to the TCF Financial Incentive
Stock Program (the “Program”), upon the terms and conditions therein and
hereinafter set forth. The Shares are
intended to qualify as “performance stock” under the terms of the Program. A copy of the Program as currently in effect
is incorporated herein by reference and is attached hereto. Dividends shall be paid on the Shares at the
same rate and at the same time as dividends paid on Common Stock generally.
2.
Restrictions
on Transfer and Restricted Periods
.
a.
During the period (the “Restricted Period”)
hereinafter described, until shares vest as provided in subparagraph 2.b,
shares may not be sold, assigned, transferred, pledged, or otherwise encumbered
by the Grantee except as provided in paragraph 3 or 8 of this Agreement. “Vest”
means that the Shares may be sold, transferred, assigned or pledged or
otherwise encumbered by the Grantee.
b.
Performance Goal
The Shares will be
subject to a Restricted Period beginning on the date of this Agreement (the “Commencement
Date”) and terminating on January 1, 2009 with respect to the sum of the
following percentages of Shares:
1.
33
1/3% of the Shares if TCF Financial achieves in excess of 20% ROTE for its
fiscal year 2006 or, if not, then 0% of the Shares; plus
2.
33
1/3% of the Shares if TCF Financial achieves in excess of 20% ROTE for its
fiscal year 2007 or, if not, then 0% of the Shares; plus
3.
33
1/3% of the Shares if TCF Financial achieves in excess of 20% ROTE for its
fiscal year 2008 or, if not, then 0% of the Shares.
c.
The Committee referred to in section 2 of the
Program or its successor (the “Committee”) shall not have any authority to
accelerate the time at which any or all of the restrictions in subparagraph (a)
shall lapse with respect to any Shares, or to remove any or all such
restrictions.
d.
“ROTE”
. “ROTE” means, as defined in the Program, the
Net Income of the
1
Corporation, plus the after-tax
effects of amortization or other adjustments to intangible assets other than
mortgage servicing rights acquired in business combinations, less dividends on
preferred stock held by an unaffiliated third party, divided by the Corporation’s
“average total common equity” (as defined in the Program) (adjusted to
eliminate net unrealized gains or losses on assets available for sale resulting
from SFAS 115) for the fiscal year. The
Committee shall have the authority to make the final determination as to ROTE
for a fiscal year. The Committee shall
have the authority in its reasonable discretion, to make adjustments in the
calculation of ROTE from time to time to take into account extraordinary
circumstances such as mergers or acquisitions however the Committee’s
discretion is limited to making only such adjustments as are permitted or
required by the Program for performance stock.
No adjustment is permitted which would disqualify the grant as
performance-based under the Program and Internal Revenue Code section 162(m).
3.
Termination
of Service as Chairman, Death or Disability
. If the Grantee is not elected to the Board of
Directors in 2005, refuses to stand for re-election to the Board of Directors
in 2008, as reasonably determined by the Committee, or resigns from the
position of Chairman of the Board of Directors of TCF Financial before January 1,
2009, 100% of the Shares shall be forfeited and returned to TCF Financial. In the event that Grantee stands for
re-election in 2008 but is not nominated or re-elected as a Director and
consequently is unable to serve as Chairman of the Board thereafter, the Shares
shall vest or be forfeited on January 1, 2009 in accordance with
Subparagraph 2.b based on TCF Financial’s ROTE during the years 2006, 2007 and
2008. In the event of Grantee’s death,
or disability as determined in the sole discretion of the Committee, a pro-
rata portion of the Shares shall vest and not be subject to the restrictions of
subparagraph 2..a and shall be redelivered as provided in paragraph 6 to
Grantee, or, in the case of death, to his legal representative, beneficiary, or
heir. For purposes of the foregoing
sentence, the pro-rata portion of the Shares for years already completed prior
to death or disability shall be equal to the percentage determined under
paragraph 2.b for that year. For any partial year in which the death or
disability occurs, if the year-to-date ROTE (annualized) for the most recent
monthly reporting period preceding the date of such death or disability exceeds
20% then the calculation under paragraph 2.b for such year shall be based upon
the number of days in that calendar year expired to the date of death or
disability.
4.
Certificates
for Shares
. TCF Financial shall
issue one or more certificates in respect of the Shares in the name of the
Grantee, and shall hold such certificate(s) on deposit for the account of the
Grantee until the expiration of the Restricted Period with respect to the
Shares represented thereby.
Certificate(s) for Shares subject to a Restricted Period shall bear the
following legend:
“The transferability of
this certificate and the Shares of stock represented hereby are subject to the
terms and conditions (including forfeiture) contained in the TCF Financial 1995
Incentive Stock Program and an Agreement entered into between the registered owner
and TCF Financial Corporation. Copies of
such Plan and Agreement are on file in the offices of
2
the Secretary of TCF
Financial Corporation, 801 Marquette Avenue, Suite 302, Minneapolis, MN 55402.”
The Grantee further
agrees that simultaneously with the execution of this Agreement a stock power
shall be executed, endorsed in blank and promptly delivered to TCF Financial.
5.
Grantee’s
Rights
. Except as otherwise provided
herein, Grantee, as owner of the Shares, shall have all rights of a
stockholder, including, but not limited to, the right to receive all dividends
paid on Shares and the right to vote the Shares. Dividends payable on Shares
that are subject to restrictions imposed by subparagraph 2.a. shall be paid to
the Grantee at the same time as such dividends are paid to other shareholders;
provided, that shares of Common Stock dividends in the nature of a stock split
shall be subject to all of the restrictions that apply to the Shares with respect
to which such dividends are paid until all of the restrictions applicable to
such Shares have terminated or otherwise have been removed.
6.
Vesting:
Expiration of Restricted Period
. On January 1,
2009, or such earlier date as provided in paragraph 3 of this Agreement, all
shares vested under the provisions of subparagraph 2.b shall vest and the
restrictions of subparagraph 2.a shall expire and TCF Financial shall redeliver
to the Grantee (or, if the Grantee is deceased, to his legal representative, beneficiary
or heir) the certificate(s) in respect of such Shares, without the restrictive
legend provided for in paragraph 4 above.
The Shares as to which the Restricted Period shall have lapsed or
expired shall be free of the restrictions referred to in subparagraph 2.a.
above and such certificates shall not bear the legend provided for in paragraph
4 above.
7.
Adjustments
for Changes in Capitalization of TCF Financial
. In the event of any change in the outstanding
Common Stock of TCF Financial by reason of any reorganization,
recapitalization, stock split, combination or exchange of shares, merger,
consolidation or any change in the corporate structure of TCF Financial or in
the shares of Common Stock, or in the event of any issuance of preferred stock or
other change in the capital structure of TCF Financial which the Committee
deems significant for purposes of this Agreement, the number and class of
Shares covered by this Agreement as well as the ROTE goals, and the pro rata
vesting provisions of paragraph 3, shall be appropriately adjusted by the
Committee, whose determination of the appropriate adjustment, or whose
determination that there shall be no adjustment, shall be conclusive. Any
Shares of Common Stock or other securities received as a result of the
foregoing by the Grantee subject to the restrictions contained in subparagraph
2.a above also shall be subject to such restrictions and the certificate or
other instruments representing or evidencing such Shares or securities shall be
legended and deposited with TCF Financial in the manner provided in paragraph 4
above.
8.
Effect
of Change in Control
. Each of the
events specified in the following clauses (a) through (d) of this paragraph 8
shall be deemed a “change of control”; (a) 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
3
Act, directly or
indirectly, of securities of the Company representing thirty percent (30%) or
more of the combined voting power of the Company’s then outstanding
securities. For purposes of this clause
(a), the term “beneficial owner” does not include any employee benefit plan
maintained by the Company that invests in the Company’s voting securities; or
(b) during any period of two (2) consecutive years there shall cease to be a
majority of the Board comprised as follows: individuals who at the beginning of
such period constitute the Board of new directors whose nomination for election
by the Company’s shareholders 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 (c) the shareholders of the Company approve a merger
or consolidation of the Company with any other corporation, other than a merger
or consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 70% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation, or the shareholders of the Company approve
a plan of complete liquidation of the Company or an agreement for the sale of
disposition by the Company of all or substantially all the Company’s assets;
provided, however, that no change in control will be deemed to have occurred if
such merger, consolidation, sale or disposition or assets, or liquidation is
not subsequently consummated. Subject to the six month holding requirement, if
any, of Rule 16b-3 of the Securities and Exchange Commission, notwithstanding
any other provision in this Program (including, but not limited to, paragraphs
2.b and 3 of this Agreement) or the previous Stock Option and Incentive Plan of
TCF Financial, in the event of a Change in Control all terms and conditions of
this Restricted Stock Award shall be deemed satisfied, all the Shares shall
vest as of the date of the Change in Control and shall thereafter be dealt with
as provided in paragraph 6 of this Agreement.
9.
Delivery
and Registration of Shares of Common Stock
.
TCF Financial’s obligation to deliver Shares of Common Stock hereunder
shall, if the Committee so requests, be conditioned upon the receipt of a
representation as to the investment intention of the Grantee or any other
person to whom such Shares are to be delivered, in such form as the Committee
shall determine to be necessary or advisable to comply with the provisions of
the Securities Act of 1933, as amended, or any other federal, state, or local
securities law or regulation. It may be
provided that any representation requirement shall become inoperative upon a
registration of such Shares or other action eliminating the necessity of such
representation under such Securities Act or other securities law or
regulation. TCF Financial shall not be
required to deliver any Shares under the Plan prior to (i) the admission of
such Shares to listing on any stock exchange on which the Common Stock may be
listed, and (ii) the completion of such registration or other qualification of
such Shares under state or federal law, rule, or regulation, as the Committee
shall determine to be necessary or advisable.
10.
Plan
and Plan Interpretations as Controlling
.
The Shares hereby awarded and the terms and conditions herein set forth
are subject in all respects to the terms and conditions of the
4
Program, and in
particular the terms relating to Performance Stock, which are controlling. All determinations and interpretations of the
Committee shall be binding and conclusive upon the Grantee or his legal
representatives with regard to any question arising hereunder or under the
Plan.
11.
Grantee
Service
. Nothing in this Agreement
shall limit the right of TCF Financial or any of its affiliates to terminate
the Grantee’s service as a director, or Chairman of the Board. However, any
such termination other than voluntary resignation by the Grantee shall result
in vesting (or forfeiture) of the Shares on January 1, 2009 the same as
provided in paragraph 3 of this Agreement in the event Grantee is not
re-nominated or re-elected to the Board in 2008.
12.
Grantee
Acceptance
. The Grantee shall
signify acceptance of the terms and conditions of this Agreement by signing in
the space provided below and signing the attached stock powers and returning a
signed copy hereof and of the attached stock powers to TCF Financial.
IN WITNESS WHEREOF, the
parties hereto have caused this RESTRICTED STOCK AGREEMENT to be executed as of
the date first above written.
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TCF FINANCIAL
CORPORATION
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By
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/s/ Gregory
J. Pulles
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Secretary
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ACCEPTED:
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/s/ William Cooper
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Signature
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(Street Address)
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(City, State and Zip
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5
Exhibit
10(j)
01-24-05
TCF Financial Corporation
SUPPLEMENTAL EMPLOYEE RETIREMENT PLAN – ESPP PLAN
(As Amended and Restated through January 24, 2005)
I.
Purpose
of Plan; Effect of Restatement; Status of Plan.
The
purpose of this Plan is to provide Eligible Employees with supplemental
retirement benefits as set forth herein to remedy certain limitations or
reductions in benefits under the IRC, as set forth herein, to such Employees
under the TCF Employees Stock Purchase Plan (“ESPP Plan”). This Plan was originally effective as of October 1,
1988. From October 1, 1988 through July 19, 2004, the supplemental
benefits provided by this Plan relating to the ESPP Plan and the TCF Cash
Balance Pension Plan (the “TCF Pension Plan”) were provided under one plan
document. Effective July 19, 2004,
the supplemental benefits provided by this Plan relative to the ESPP Plan are
set forth in this document and the supplemental benefits provided by this Plan
relative to the TCF Pension Plan are set forth in a separate document.
Notwithstanding
any other provision of this Plan, as a result of the enactment of IRC § 409A
in October 2004 benefits under this Plan were limited by amendments
adopted in January 2005 to those due on Covered Compensation earned in the
years 2004 or earlier. New employer or
employee contributions to this Plan ceased starting with compensation earned in
the calendar year 2005. Contributions
made to this Plan with respect to Covered Compensation earned in 2004 but not
earned and vested as of December 31, 2004 are subject to Article X of
this Plan.
This
Plan is intended to be a “parallel excess plan” as defined in Rule 303A.08 of
the listing standards of the New York Stock Exchange (“NYSE”). It is designed to work in parallel with the
ESPP Plan, which is intended to be qualified under IRC section 401(a), by
providing benefits that exceed the limits set forth in IRC section 402(g)
(the section that limits the amount of an employee’s annual pre-tax
contributions to a 401-(k) plan such as the ESPP Plan), IRC section 401(a)(17)
(the section that limits the amount of an employee’s compensation that can
be taken into account for ESPP Plan purposes), and/or IRC section 415 (the
section that limits the total annual contributions under qualified plans
such as the ESPP Plan) and/or any successor or similar limitations that may
hereafter be enacted. The Eligible Employees under the Plan are intended to
include substantially all employees of the Employer who are participants in the
ESPP Plan whose annual compensation is in excess of the limit of IRC section 401(a))17)
(or any successor or similar limits that may hereafter be enacted). The terms of the Plan are intended to be
substantially the same as the ESPP Plan except for the elimination of the IRC
limits set forth above and the limit in the following sentence. No participant in the Plan will receive
employer equity contributions (Employer Matching Contributions) under the Plan
in excess of 25% of the participant’s cash compensation.
1
This
Plan is also intended to be a plan, program, or arrangement under 4 U.S.C. section 114
(the “State Taxation of Pension Income Act of 1995”) maintained solely for the
purpose of providing retirement benefits for employees in excess of the
limitations imposed by one or more of IRC sections referenced in such Act on
contributions or benefits in the IRC on qualified plans such as the ESPP Plan.
II.
Definitions
(a)
Committee
.
The Compensation Committee of the Board
of Directors of TCF Financial Corporation (“TCF Financial”), or a special
sub-committee thereof, which shall consist only of individuals who qualify as
independent directors under Rule 303A of the listing standards of the NYSE as
applicable to compensation committee members, as non-employee directors under
Rule 16b-3 of the Securities and Exchange Commission and as outside directors
for purposes of IRC section 162(m) (“million dollar cap”).
(b)
Eligible Employee
.
Employees of TCF Financial, or any of its
direct or indirect subsidiaries, are eligible for this Plan if they are
eligible to participate in either the TCF Financial Executive Deferred
Compensation Plan or the TCF Financial Senior Officer Deferred Compensation
Plan. Notwithstanding the foregoing, no employee shall be eligible for benefits
under this Plan unless the employee is also an Active Participant in the ESPP
Plan. Individuals who become employees of an Employer as a result of a merger
or acquisition shall not be Eligible Employees under this Plan unless and until
TCF Financial has adopted a resolution identifying them as Eligible Employees.
(c)
ESPP Plan
.
The “ESPP Plan” is the TCF Employees’ Stock
Purchase Plan as amended from time to time.
(d)
TCF Pension Plan
.
The “TCF Pension Plan” is the TCF Cash
Balance Pension Plan as amended from time to time.
(e)
IRC
.
The “IRC” is the Internal Revenue Code of
1986, as amended.
(f)
SERP Employee
Contributions
.
“SERP
Employee Contributions” is any portion of an Eligible Employee’s Covered
Compensation which such Employee has elected to have treated as SERP Employee
Contributions under Article III of this Plan.
(g)
Covered Compensation
.
“Covered Compensation” is any “Basic
Compensation” as defined in the ESPP Plan (disregarding any limit on Basic
Compensation under IRC § 401(a)(17)) paid to an Eligible Employee by the
Employer in any calendar year, plus any amounts which would have been Basic
Compensation (disregarding any limit on Basic Compensation under IRC § 401(a)(17))
in such calendar year except that such Employee elected to defer such amounts
under this Plan or any other tax-qualified or non-tax qualified plan of
deferred compensation maintained by an Employer. Notwithstanding
2
the
foregoing, compensation earned in the calendar year 2005 and after is not
eligible to be treated as Covered Compensation under this Plan.
(h)
TCF Financial
.
“TCF Financial” is TCF Financial Corporation,
a Delaware Corporation.
(i)
Employer
.
“Employer” is TCF Financial, or any of its
direct or indirect subsidiary companies which is the employer of an Eligible
Employee under this Plan.
III.
Supplemental
Benefits Related to the ESPP Plan
.
(a)
Contributions of SERP
Employee Contributions and Employer Matching Contributions
.
Notwithstanding
any other provision of this Article III or of the Plan, effective starting
with compensation earned in the calendar year 2005 no additional employee or
employer contributions are allowed to this Plan. Employee or employer contributions
due under this section III (a) (as in effect on December 31, 2004)
with respect to Covered Compensation earned in 2004 but paid in 2005 shall be
credited under this Plan and shall be subject to Article X to the extent
they were not earned and vested as of December 31, 2004.
(b)
Establishing Accounts and
Valuation of Accounts
.
Each Employee’s account as of December 31,
2004 shall be increased to reflect any contributions due under section III(a)
(as in effect on December 31, 2004)
with respect to Covered Compensation earned in 2004 by the number of
shares of TCF Financial stock deemed to be purchased as of each such
contribution date (including any fractional shares), and shall be further
adjusted to reflect any stock splits or other similar events involving a change
in the number or form of outstanding shares of TCF Financial stock. Effective for all dividends declared and paid
on TCF Financial stock after January 1, 2000, if any dividends are paid
with respect to TCF Financial stock, then in lieu of any adjustments to the
Eligible Employees’ accounts under the Plan, an amount shall be paid in cash
(or in stock, if the dividend is in stock) directly to the Employee whose
account would otherwise be deemed to be due the deemed dividend and the Employee’s
account shall not be credited with the deemed dividend.
Adjustments shall be determined in each case
by the Committee and the Committee’s determination shall be final.
(c)
Distributions from
Accounts
.
Unless an
Eligible Employee has made an election described in the following paragraph of
this subsection (c), the Eligible Employee shall receive a lump sum
distribution in the form of TCF Financial stock equal to the then-current value
of the number of shares in such Employee’s account in this Plan no later than
30 days after the Employee’s termination of employment with the Employer or
termination of the ESPP Plan, whichever occurs first. For purposes of the foregoing sentence, a
termination of employment shall not be deemed to occur upon a transfer of
employment between two or more Employers.
3
An
Eligible Employee may elect to have benefits from this Article III
distributed in one of the following forms, provided that such election is in
writing and is executed and delivered to the Committee or the Secretary, on
behalf of the Committee, no later than one year before such Employee’s
termination of employment: (i)
distribution in five equal annual installments, (ii) distribution in ten equal
annual installments, or (iii) distribution of shares of TCF Stock equal to
$10,000.00 annually until the account is depleted. Installment payments shall commence no later
than the 15
th
day of the first calendar quarter immediately
following the Employee’s termination of employment with succeeding amounts paid
on or about each February 15
th
thereafter. The amount of each installment under (i) and
(ii) shall be determined each year by dividing the total of whole and
fractional shares in the account by the number of installments remaining to be
paid, including the current installment.
If the
Eligible Employee is deceased, the distribution shall be payable to the
beneficiary or survivor of the Eligible Employee in the form payable to the
Eligible Employee hereunder.
All
distributions to an Eligible Employee, beneficiary or survivor under this Article III
shall be in the form of shares of TCF Financial stock except for cash for a
fractional share.
Notwithstanding the foregoing, if an Eligible Employee’s
account balance under the Plan is less than $15,000 at the time of the Employee’s
termination of employment, then such account shall be distributed to the
Employee in a lump sum payment (in the form of TCF Financial stock except for
cash for a fractional share) no later than 30 days after the Employee’s
termination of employment.
IV.
Reserved.
V.
Committee
.
The
Committee shall have full power to construe, interpret and administer this
Plan, including to make any determination required under this Plan and to make
such rules and regulations as it deems advisable for the operation of this
Plan. The Committee shall have sole and
absolute discretion in the performance of their powers and duties under this
Plan. A majority of the Committee shall constitute a quorum. Actions of the
Committee shall be by a majority of persons constituting a quorum and eligible
to vote on an issue. Meetings may be
held in person or by telephone. Action
by the Committee may be taken in writing without a meeting provided such action
is executed by all members of the Committee.
To the extent it is feasible to do so, determinations, rules and
regulations of the Committee under this Plan shall be consistent with similar
determinations, rules and regulations of the ESPP Plan. All determinations of
the Committee shall be final, conclusive and binding unless found by a court of
competent jurisdiction to have been arbitrary and capricious. The Committee
shall have authority to designate officers of TCF Financial and to delegate
authority to such officers to receive documents which are required to be filed
with the Committee, to execute and provide directions
4
to the Trustee and other
administrators, and to do such other actions as the Committee may specify on
its behalf, and any such actions undertaken by such officers shall be deemed to
have the same authority and effect as if done by the Committee itself.
VI
Benefits
Unfunded
.
The
rights of beneficiaries, survivors and participants to benefits from this Plan
are solely as unsecured creditors of the Employer. Benefits payable under this Plan shall be
payable from the general assets of the
Employer and there shall be no trust fund or other assets secured for the
payment of such benefits. In its
discretion, the Employer may purchase or set aside assets, including annuity
policies or through use of a grantor trust, to provide for the payment of
benefits hereunder but such assets shall in all cases remain assets of the
Employer and subject to the claims of the Employer’s creditors. This Plan
constitutes a mere promise by the Employers to make benefit payments in the
future, and it is intended to be unfunded for tax purposes and for purposes of
Title I of ERISA.
VII.
Beneficiaries
and Survivors
.
An
Eligible Employee’s beneficiary or survivor under Article III of this Plan
shall be the same as the person(s) designated as such pursuant to or under the
provisions of the ESPP Plan, unless the employee has designated in writing and
filed with the Committee a different beneficiary for this Plan.
VIII.
Plan
Administrator, Amendments, Claims Procedure
The
Plan Administrator of this Plan is the Committee, which shall have full power
to amend this Plan from time to time, or to terminate this Plan, except that no
such amendment or termination shall deprive an Eligible Employee or beneficiary
or survivor thereof of any benefits accrued under this Plan prior to such
amendment or termination without the written consent of such Eligible Employee,
or if deceased, the beneficiary or survivor thereof.
If an Eligible Employee,
or beneficiary or survivor thereof, wishes to make a claim for benefits or
disagrees with a determination of the Committee, such person may file a claim
and make such appeals as are permitted under the ESPP Plan. The claims shall then be processed as
provided for claims under the ESPP Plan, except that all determinations which
would be made by the “Company” under such Plans shall be made by the Committee
instead.
IX.
Miscellaneous
.
(a) Notices under this Plan to the Employer, TCF
Financial or the Committee shall be sent by Certified Mail, Return Receipt
Requested to: Compensation Committee, TCF Financial Corporation, c/o General
Counsel for Corporate Affairs, TCF Financial Corporation, 200 Lake Street East,
Wayzata, MN 55391. Notices under this Plan to Eligible Employees
or their beneficiaries or survivors shall be sent by Certified Mail to
5
the
last known address for such person(s) on the books and records of the Employer,
by Certified Mail.
(b) Nothing in this Plan shall change an Eligible
Employee’s status to anything other than an employee “at will” or otherwise
enlarge or modify such Employee’s employment rights or benefits other than as
provided herein.
(c) Nothing in this Plan shall abridge an
Eligible Employee’s rights, or such Employee’s beneficiary’s or survivor’s
rights, of participation in the ESPP Plan.
(d) Expenses of administering the Plan shall be
borne by the Employers in proportion to their share of Eligible Employees in
this Plan.
(e) An Eligible Employee’s benefits under this
Plan may not be assigned, transferred, pledged or otherwise hypothecated by
said Employee or the beneficiary or survivor thereof.
X.
Special
Rules for Amounts Not Earned and Vested as of December 31, 2004
Notwithstanding anything in the Plan to the contrary, during the
calendar year 2005 TCF Financial may offer some or all Employees one or more
elections, as TCF Financial may determine in its discretion, to cancel or
revoke an election previously made under this Plan to treat any amounts as SERP
Employee Contributions for the year 2004 which were not earned and vested as of
December 31, 2004 (as determined under section 409A of the IRC as added
by the American Jobs Creation Act of 2004), and to have such amounts treated as
current income in 2005, under such rules and procedures as the Company may
determine for the elections which are consistent with the requirements of IRC § 409A.
Notwithstanding anything
in the Plan to the contrary, with respect to any amounts treated as SERP
Employee Contributions under the Plan on or before December 31, 2004, but
which were not earned and vested (as defined under IRC § 409A) on that
date, such amounts shall be separately accounted for under the Plan and shall
be distributed to the Participant in a lump sum form of distribution no sooner
than six months after the earliest to occur of the following: such Participant’s
termination of employment, the termination of the Plan (to the extent IRC § 409A
permits distributions on Plan termination), or any other distribution event
under the Plan which is a permitted distribution event under IRC § 409A.
This Article X is
not intended to add any options or enhancements to the Plan nor to in any other
way constitute a “material modification” (as defined in IRC § 409A and in
regulations issued thereunder) to the Plan.
Any and all interpretations of this Article X shall be construed
consistent with this intent. The Plan continues in effect with respect to
amounts deferred under the Plan for the years 2004 and before. The Plan is not subject to IRC § 409A or
regulations issued thereunder except with respect to any amounts that were not
earned and vested, as defined pursuant to IRC § 409A, by December 31,
2004.
6
APPENDIX A RE: IRS NOTICE 2000-56
Notwithstanding anything to the contrary in the Plan or any trust
agreement for any related grantor trust established by the Employer (the “Trust”),
effective on and after May 16, 2001, TCF Financial stock or other assets
contributed to the Trust by TCF Financial or any other Employer for the benefit
of employees or service providers of TCF Financial or such Employer are subject
to the claims of creditors (in the event of insolvency) of both TCF Financial
and such Employer. In addition, such
stock and assets are subject to the claims of creditors (in the event of
insolvency) of any Employer from which benefits are due to a participant or
beneficiary under the terms of the Plan. Nothing in this Appendix, however,
shall relieve any Employer of its obligation to pay any benefits due from the
Employer to a participant or beneficiary under the terms of the Plan.
Notwithstanding anything to the contrary in the Plan or Trust,
effective on and after May 16, 2001, any TCF Financial stock or other assets
not transferred to an Employer’s employees or their beneficiaries will revert
to TCF Financial upon termination of the Trust.
APPENDIX B
DISTRIBUTION PROCEDURES
Covered
Plans.
These
Procedures have been adopted as Appendices to the following plans: Executive,
Senior Officer, and Winthrop Deferred Compensation Plans and Supplemental
Employees Retirement Plan – ESPP Plan
(“SERP
- ESPP Plan).
Timing of
Distribution (Lump Sum vs. Installment).
As elected by the employee at the time of
joining the plan. Superceding elections
may be made at any time up to one year prior to distribution.
•
Lump Sum — 30 days after “distribution
event” (usually, termination of employment).
•
Installments — First installment is
30 days after distribution event.
Subsequent installments on February 15
th
of each
succeeding year. Each installment amount
is determined by multiplying the account balance on 12/31 of previous year by a
fraction of 1/number of remaining installments.
Form of
Distribution — Stock or Cash
|
If Your Account
is 100% TCF
Stock.
|
If Your Account Contains both
TCF
Stock and Diversified Account.
|
If Your Account is 100%
Diversified Account.
|
|
The distribution will
be settled
|
Automatic
Method — Cash first, then pro rata
:
The distribution
will be
|
Automatic
Method — Cash first, then pro rata
:
The distribution
will
|
7
|
entirely in whole
shares of TCF Stock (plus cash for any fractional share).
|
deducted first from any
cash/money market balances in your plan account, then
pro
rata
from TCF Stock and
Diversified Plan Account balances. TCF Stock portion will be made in whole
shares of TCF Stock (with cash for any fractional share). Diversified Account portion will be paid in
cash equal to its value on February 15
th
.
|
be deducted first from
any cash/money market balances in your plan account, then
pro rata
from the deemed investments in your Diversified
Account. The distribution will be paid in cash equal to the value on February 15
th
of the deemed investments from which it was deducted.
|
|
|
Alternative
Elections:
1
.
You may
direct the deemed sale of non-TCF stock assets to provide cash for the
distribution. 2. You may specifically
designate the assets to apply to the distribution. (Example: You specify 100% of the distribution will
come from the Diversified Account).
|
Alternative
Elections:
1
.
You may
direct the deemed sale of assets to provide cash for the distribution. 2. You may specifically designate the
assets to apply to the distribution. (Example: You specify 100% of the distribution will
come from one particular investment in the Diversified Account).
|
|
|
Election
Deadline:
December 31 of the previous year.
|
Election
Deadline:
December 31 of the previous year.
|
Tax
Withholding
|
Automatic
Method of Withholding — Net Pro rata Against the Distribution:
The minimum required withholding (28% federal plus applicable state
percentage) will be deducted from each part of the distribution on a pro rata
basis by type of asset. Valuation for
both the income reported and the withholding will be based on deemed sale
price of the investment on February 15
th
.
|
Alternative
Election —
Pay by Check
:
You may elect to pay the withholding by check. TCF Legal will calculate the amount due on February 15
th
based on average market values on that date. TCF Legal must receive check
before the distribution will be forwarded to you.
|
Alternative
Election —
Specify Netting:
You may elect to net the withholding against the distribution on some
basis other than pro rata.
(Example: You specify that 100%
of withholding will come from the Diversified Account portion of the
distribution.)
|
|
|
Election
Deadline –
December 31 of the previous year.
|
Election
Deadline –
December 31 of the previous year.
|
8
•
Distributions will be sent by U.S.
Mail to your home address on file with the TCF Legal Department unless you have
provided other delivery instructions in writing. If you have a stock brokerage account,
distributions can be sent to it on a same day basis.
These procedures are subject to interpretation and application by the
Committee, whose interpretation is final.
9
Exhibit
10(j)-1
01-24-05
TCF Financial Corporation
2005 ESPP SERP
(As amended and restated through January 24, 2005)
I.
Purpose
of Plan; Effective Date of Plan; Effect of Previous SERP Plan.
The
purpose of this Plan is to provide Eligible Employees with supplemental
retirement benefits as set forth herein to remedy certain limitations or
reductions in benefits under the IRC, as set forth herein, to such Employees
under the TCF Employees Stock Purchase Plan (“ESPP Plan”). This Plan is effective for benefits based on
Covered Compensation earned in calendar year 2005 and thereafter. A previous plan, the Supplemental Employee
Retirement Plan – ESPP Plan (the “Previous SERP Plan”) was in effect for
benefits based on Covered Compensation earned in calendar year 2004 and before
and it is not terminated or superseded by this Plan, but remains in effect for
benefits accrued under it before the adoption of this Plan. In no event shall any benefits be due under
both this Plan and the Previous SERP Plan with respect to the same Covered
Compensation and there shall be no duplication of benefits between this Plan
and the Previous SERP Plan.
This
Plan is intended to be a “parallel excess plan” as defined in Rule 303A.08 of
the listing standards of the New York Stock Exchange (“NYSE”). It is designed to work in parallel with the
ESPP Plan, which is intended to be qualified under IRC section 401(a), by
providing benefits that exceed the limits set forth in IRC section 402(g)
(the section that limits the amount of an employee’s annual pre-tax
contributions to a 401-(k) plan such as the ESPP Plan), IRC section 401(a)(17)
(the section that limits the amount of an employee’s compensation that can
be taken into account for ESPP Plan purposes), and/or IRC section 415 (the
section that limits the total annual contributions under qualified plans
such as the ESPP Plan) and/or any successor or similar limitations that may
hereafter be enacted. The Eligible Employees under the Plan are intended to
include substantially all employees of the Employer who are participants in the
ESPP Plan whose annual compensation is in excess of the limit of IRC section 401(a))17)
(or any successor or similar limits that may hereafter be enacted). The terms of the Plan are intended to be
substantially the same as the ESPP Plan except for the elimination of the IRC
limits set forth above and the limit in the following sentence. No participant in the Plan will receive
employer equity contributions (Employer Matching Contributions) under the Plan
in excess of 25% of the participant’s cash compensation.
This
Plan is also intended to be a plan, program, or arrangement under 4 U.S.C. section 114
(the “State Taxation of Pension Income Act of 1995”) maintained solely for the
purpose of providing retirement benefits for employees in excess of the
limitations imposed by one or more of IRC sections referenced in such Act on
contributions or benefits in the IRC on qualified plans such as the ESPP Plan.
1
II.
Definitions
(a)
Committee
.
The Compensation Committee of the Board
of Directors of TCF Financial Corporation (“TCF Financial”), or a special
sub-committee thereof, which shall consist only of individuals who qualify as
independent directors under Rule 303A of the listing standards of the NYSE as
applicable to compensation committee members, as non-employee directors under
Rule 16b-3 of the Securities and Exchange Commission and as outside directors
for purposes of IRC section 162(m) (“million dollar cap”).
(b)
Eligible Employee
.
Employees of TCF Financial, or any of its
direct or indirect subsidiaries, are eligible for this Plan if they are
eligible to participate in either the TCF Financial Executive Deferred
Compensation Plan or the TCF Financial Senior Officer Deferred Compensation
Plan. Notwithstanding the foregoing, no employee shall be eligible for benefits
under this Plan with respect to a particular calendar year if the employee is
not also an Active Participant in the ESPP Plan for that year or if the
employee has been determined to be a “non-highly compensated employee” under
the IRC for that year. With respect to the 2005 calendar year only, any
employee who was determined to be a non-highly compensated employee (as so
defined) shall be entitled to elect after the beginning of the calendar year
not to participate in this Plan for the year 2005. Individuals who become
employees of an Employer as a result of a merger or acquisition shall not be
Eligible Employees under this Plan unless and until TCF Financial has adopted a
resolution identifying them as Eligible Employees.
(c)
ESPP Plan
.
The “ESPP Plan” is the TCF Employees’ Stock
Purchase Plan as amended from time to time.
(d)
TCF Pension Plan
.
The “TCF Pension Plan” is the TCF Cash
Balance Pension Plan as amended from time to time.
(e)
IRC
.
The “IRC” is the Internal Revenue Code of
1986, as amended.
(f)
SERP Employee
Contributions
.
“SERP
Employee Contributions” is any portion of an Eligible Employee’s Covered
Compensation which such Employee has elected to have treated as SERP Employee
Contributions under Article III of this Plan.
(g)
Covered Compensation
.
“Covered Compensation” is any “Basic
Compensation” as defined in the ESPP Plan in excess of the limit on Basic
Compensation under IRC § 401(a)(17) paid to an Eligible Employee by the
Employer in any calendar year, plus any amounts which would have been Basic
Compensation (disregarding any limit on Basic Compensation under IRC § 401(a)(17))
in such calendar year except that such Employee elected before the beginning of
the calendar year in which such Compensation was earned to defer such amounts
under this Plan or any other tax-qualified or non-tax qualified plan of
deferred compensation maintained by an Employer.
2
(h)
TCF Financial
.
“TCF Financial” or “Company” is TCF Financial
Corporation, a Delaware Corporation.
(i)
Employer
.
“Employer” is TCF Financial, or any of its
direct or indirect subsidiary companies which is the employer of an Eligible
Employee under this Plan.
(j)
Retirement.
“Retirement” is a termination of employment
with an Employer on or after the Employee has attained age 55 and has completed
ten years of vesting service as defined in the ESPP Plan.
III.
Supplemental
Benefits Related to the ESPP Plan
.
(a)
SERP Employee Contributions.
For
each Eligible Employee who elects to participate in this Plan for a calendar
year, the Employer shall deduct 6% of such Employee’s Covered Compensation for
the calendar year from such Compensation as the Employee’s SERP Employee
Contributions to this Plan for that year.
For each calendar year an Eligible Employee elects to participate in
this Plan and as a condition to receiving benefits from this Plan for that
year, the Employee shall make pre-tax contributions to the ESPP Plan equal to
6% of his or her covered compensation under the ESPP Plan during that calendar
year. Notwithstanding the foregoing, if
the Company exercises its right under the ESPP Plan to reduce the rate of ESPP
contributions for employees defined as highly compensated under the IRC in
order to cause such Plan to meet nondiscrimination requirements under IRC
sections 401(k) or 401 (m), then the Employee’s SERP Employee contributions to
this Plan for the year shall be correspondingly adjusted.
Any
election by an Eligible Employee of SERP Employee Contributions pursuant to
this section (a) shall be in writing, shall be made prior to the beginning
of the calendar year in which the services are performed leading to such
Covered Compensation, (or, if later, within thirty (30) days after the employee
first becomes an Eligible Employee, provided such election only applies to
compensation earned after the election is received by the Company), shall be
applicable to all compensation earned for such calendar year, and shall be
irrevocable when received by the Employer.
(b)
Additional SERP Contributions.
An Eligible Employee who elects under
paragraph (a) to participate in this Plan for a calendar year shall also receive
the following benefits (if any) under this Plan for such year:
(i) the amount by which such Employee’s elective
deposits to the ESPP Plan exceed the limitation in Section 402(g) of the
IRC; any such amounts shall be additional SERP Employee Contributions under
this Plan; and
(ii)
the amount by which such Employee’s and Employer’s contributions are limited
under the ESPP to the dollar limitation under IRC § 415, which shall be
deemed SERP Employee Contributions and SERP Employer Contributions, respectively.
3
(c)
Employer Matching Contributions.
At the same time as an amount of SERP
Employee Contributions is deferred under paragraph (a) or (b), the Employer
shall be deemed to contribute to this Plan the amount of Employer Matching
Contribution due under the ESPP Plan with respect to such SERP Employee
Contributions if they had been contributed as pre-tax elective deferrals under
the ESPP Plan.
(d)
Establishing Accounts and Valuation of Accounts
.
On the date that a Contribution under
paragraph (a), (b) or (c) would be paid to the ESPP Plan if it were a
contribution to that Plan (the “contribution date”), the amount of such
Contribution shall be credited to an account on the books of the Employer and
shall be deemed as of such date to be invested in whole or fractional shares of
common stock of TCF Financial.
Thereafter, such account shall be increased to reflect the number of
shares of TCF Financial stock deemed to be purchased as of each future
contribution date (including any fractional shares), and shall be further
adjusted to reflect any stock splits or other similar events involving a change
in the number or form of outstanding shares of TCF Financial stock. If any dividends are paid with respect to TCF
Financial stock, then in lieu of any adjustments to the Eligible Employees’
accounts under the Plan, an amount shall be paid in cash (or in stock, if the
dividend is in stock, provided that stock splits in the nature of a stock
dividend shall not be distributed) directly to the Employee whose account would
otherwise be deemed to be due the deemed dividend and the Employee’s account
shall not be credited with the deemed dividend.
Adjustments shall be determined in each case
by the Committee and the Committee’s determination shall be final.
(e)
Distributions from Accounts
.
An Eligible Employee shall receive a lump sum
distribution in the form of TCF Financial stock equal to the then-current
deemed number of shares in such Employee’s account in this Plan (less
applicable withholding) six months after the Employee’s termination of
employment (including termination of employment as a result of death while
actively employed) with the Employer.
For purposes of the foregoing sentence, a termination of employment
shall not be deemed to occur upon a transfer of employment between two or more
Employers.
All
distributions to an Eligible Employee, beneficiary or survivor under this Article III
shall be in the form of shares of TCF Financial stock except for cash for a
fractional share and amounts deducted and transmitted to the Employer for
income tax withholding.
IV.
Reserved.
V.
Committee
.
The Committee shall have
full power to construe, interpret and administer this Plan, including to make
any determination required under this Plan and to make such rules and
regulations as it deems advisable for the operation of this Plan. The Committee shall have sole and absolute
4
discretion in the
performance of their powers and duties under this Plan. A majority of the
Committee shall constitute a quorum. Actions of the Committee shall be by a
majority of persons constituting a quorum and eligible to vote on an
issue. Meetings may be held in person or
by telephone. Action by the Committee
may be taken in writing without a meeting provided such action is executed by
all members of the Committee. To the
extent it is feasible to do so, determinations, rules and regulations of the Committee
under this Plan shall be consistent with similar determinations, rules and
regulations of the ESPP Plan. All determinations of the Committee shall be
final, conclusive and binding unless found by a court of competent jurisdiction
to have been arbitrary and capricious. The Committee shall have authority to
designate officers of TCF Financial and to delegate authority to such officers
to receive documents which are required to be filed with the Committee, to
execute and provide directions to the Trustee and other administrators, and to
do such other actions as the Committee may specify on its behalf, and any such
actions undertaken by such officers shall be deemed to have the same authority
and effect as if done by the Committee itself.
VI
Benefits
Unfunded
.
The rights of
beneficiaries, survivors and participants to benefits from this Plan are solely
as unsecured creditors of the Employer.
Benefits payable under this Plan shall be payable from the general
assets of the Employer and there shall be no trust fund or other assets secured
for the payment of such benefits. In its
discretion, the Employer may purchase or set aside assets, including annuity
policies or through use of a grantor trust, to provide for the payment of
benefits hereunder but such assets shall in all cases remain assets of the
Employer and subject to the claims of the Employer’s creditors. This Plan
constitutes a mere promise by the Employers to make benefit payments in the
future, and it is intended to be unfunded for tax purposes and for purposes of
Title I of ERISA.
VII.
Beneficiaries
and Survivors
.
An Eligible Employee’s
beneficiary or survivor under Article III of this Plan shall be the same
as the person(s) designated as such pursuant to or under the provisions of the
ESPP Plan, unless the employee has designated in writing and filed with the
Committee a different beneficiary for this Plan.
VIII.
Plan
Administrator, Amendments, Claims Procedure
The Plan Administrator of
this Plan is the Committee, which shall have full power to amend this Plan from
time to time, or to terminate this Plan, except that no such amendment or
termination shall deprive an Eligible Employee or beneficiary or survivor
thereof of any benefits accrued under this Plan prior to such amendment or
termination without the written consent of such Eligible Employee, or if
deceased, the beneficiary or survivor thereof.
If an Eligible Employee,
or beneficiary or survivor thereof, wishes to make a claim for benefits or
disagrees with a determination of the Committee, such person may file a claim
and make such appeals as are permitted under the ESPP Plan. The claims shall then be processed as
provided
5
for claims under the ESPP
Plan, except that all determinations which would be made by the “Company” under
such Plans shall be made by the Committee instead.
IX.
Miscellaneous
.
(a) Notices under this Plan to the Employer, TCF
Financial or the Committee shall be sent by Certified Mail, Return Receipt
Requested to: Compensation Committee, TCF Financial Corporation, c/o General
Counsel for Corporate Affairs, TCF Financial Corporation, 200 Lake Street East,
Wayzata, MN 55391. Notices under this Plan to Eligible Employees
or their beneficiaries or survivors shall be sent by Certified Mail to the last
known address for such person(s) on the books and records of the Employer, by
Certified Mail.
(b) Nothing in this Plan shall change an Eligible
Employee’s status to anything other than an employee “at will” or otherwise
enlarge or modify such Employee’s employment rights or benefits other than as
provided herein.
(c) Nothing in this Plan shall abridge an
Eligible Employee’s rights, or such Employee’s beneficiary’s or survivor’s
rights, of participation in the ESPP Plan except to the extent the Eligible Employee
agrees to such restrictions.
(d) Expenses of administering the Plan shall be
borne by the Employers in proportion to their share of Eligible Employees in
this Plan, provided that an Employees’ Accounts may reflect deemed transaction
costs of acquiring or selling TCF Financial stock.
(e) An Eligible Employee’s benefits under this
Plan may not be assigned, transferred, pledged or otherwise hypothecated by
said Employee or the beneficiary or survivor thereof.
6
APPENDIX A RE: IRS NOTICE 2000-56
Notwithstanding anything to the contrary in the Plan or any trust
agreement for any related grantor trust established by the Employer (the “Trust”),
TCF Financial stock or other assets contributed to the Trust by TCF Financial
or any other Employer for the benefit of employees or service providers of TCF
Financial or such Employer are subject to the claims of creditors (in the event
of insolvency) of both TCF Financial and such Employer. In addition, such stock and assets are
subject to the claims of creditors (in the event of insolvency) of any Employer
from which benefits are due to a participant or beneficiary under the terms of
the Plan. Nothing in this Appendix, however, shall relieve any Employer of its obligation
to pay any benefits due from the Employer to a participant or beneficiary under
the terms of the Plan.
Notwithstanding anything to the contrary in the Plan or Trust, any TCF
Financial stock or other assets not transferred to an Employer’s employees or
their beneficiaries will revert to TCF Financial upon termination of the Trust.
7
APPENDIX B
DISTRIBUTION PROCEDURES
Timing of
Distribution (Lump Sum).
•
Lump Sum – payable as soon as
practicable after the first January 1 or July 1 that is at least six
months after the employee’s termination of employment.
Form of
Distribution — Stock or Cash
All distributions are in
the form of TCF Financial Stock plus cash for any fractional share, less tax
withholding.
Tax
Withholding
The minimum required
withholding (currently generally 25% federal plus applicable state percentage)
will be deducted from each distribution.
Distributions will be
sent by U.S. Mail to your home address on file with the TCF Legal Department
unless you have provided other delivery instructions in writing. If you have a stock brokerage account,
distributions can be sent to it on a same day basis.
These procedures are
subject to interpretation and application by the Committee, whose
interpretation is final.
8
Exhibit 10(l)
01-24-05
TCF
FINANCIAL CORPORATION
TCF
FINANCIAL SENIOR OFFICER DEFERRED COMPENSATION PLAN
(As Amended and
Restated through January 24, 2005)
(Applicable only
to deferrals elected
for the calendar
years 2004 and earlier)
TCF
FINANCIAL SENIOR OFFICERS DEFERRED COMPENSATION PLAN
(As
Amended and Restated through January 24, 2005)
(Applicable
only to amounts deferred in calendar years before 2005)
1.
Deferral of Incentive Compensation, Sala
ries and Stock Awards.
As provided in Appendix
C, effective for salaries and incentive compensation earned on or after January
1, 2005 and stock grants awarded after that date, no deferral elections shall
be allowed under section 1 of this Plan as a result of Internal Revenue Code §
409A (“IRC § 409A”). Incentive
compensation earned in 2004 (but paid in 2005) and stock awards made and
deferred under this Plan prior to January 1, 2005 but which were not “earned
and vested” (as defined in regulations issued pursuant to IRC § 409A) on or
before December 31, 2004 shall remain under this Plan but subject to IRC §
409A, the election provisions of the next paragraph and section 5.m of this
Plan as added by Appendix C. All amounts
which were earned and vested under this Plan as of December 31, 2004 are not
subject to IRC § 409A and instead remain subject to the Plan as in effect on
December 31, 2004 and as continued in this Plan restatement.
Notwithstanding
the foregoing, during the calendar year 2005 the Company may offer some or all
plan participants one or more elections, as the Company may determine in its
discretion, to cancel or revoke a deferral election previously made under this
section 1 and to have treated as current income in 2005 any amounts that were
not earned and vested as of December 31, 2004 as determined under IRC § 409A,
under such rules and procedures as the Company may determine for the elections
which are consistent with the requirements of IRC § 409A and regulations issued
thereunder.
2.
Committee
. The Committee (the “Committee”) shall
consist of such members of the Compensation/Nominating/Corporate Governance
Committee of the Board of Directors of TCF Financial Corporation who qualify as
non-employee directors from time to time under Rule 16b-3 of the Securities and
Exchange Commission. Full power and
authority to construe, interpret, and administer this Plan document shall be
vested in the Committee. The Committee
shall have full power and authority to make each determination provided for in
this Plan document, and in this connection, to promulgate such rules and regulations
as the Committee considers necessary or appropriate for the implementation and
management of this Plan as are consistent with the terms of this Plan. The Committee shall have authority to
designate officers of TCF Financial and to delegate authority to such officers
to receive documents which are required to be filed with the Committee, to
execute and provide directions to the Trustee and other administrators, and to
do such other actions as the Committee may specify on its behalf, and any such
actions undertaken by such officers shall be deemed to have the same authority
and effect as if done by the Committee itself.
Notwithstanding anything in this Section 2 to the contrary, no action or
determination made or taken by any officer of TCF Financial on behalf of the
Committee, and no action or determination by the Committee affecting the amount
payable under this Plan to a participant or beneficiary, shall be entitled to
any deference by a reviewing court (i.e., judicial review of any such actions
or determinations shall be de novo).
1
3.
Deferred Compensation Accounts
. Each Company shall establish on its books a
separate account (“Account”), including sub-accounts pursuant to Exhibit A
hereto and Section 10 hereof, for each of its Employees who becomes a
participant in this Plan, and each such Account shall be maintained as follows:
a.
Each
Account shall be credited with the Deferred Amounts elected by the Employee for
whom such Account is established as of the date on which such Deferred Amount
would otherwise have been paid to the Employee.
Separate Accounts will be maintained for any Deferred Amounts that are
payable at different times or in different forms than other Deferred Amounts.
b.
Within
30 days after the date on which Deferred Amounts are credited to an Employee’s
Account, they shall have been deemed to have been invested in such investments
as shall be permitted by the Committee and as the Employee shall direct, except
that Deferred Amounts pertaining to TCF Stock awards shall always be deemed to
be invested in TCF Stock unless they are deemed to have been sold pursuant to a
Change in Control Diversification Election.
Any investment direction by an Employee shall be consistent with Section
10 and Exhibit A and shall be irrevocable with respect to the calendar year to
which it applies, unless the Committee allows additional elections. While an Employee’s Account is deemed to be
so invested, it shall be credited with all interest, dividends (whether in
stock, cash, or other property), stock splits, or other property that would
have been received if the Deferred Amounts had actually been so invested,
except if an Employee has elected not to defer dividends. All cash deemed to have been received with
respect to investments deemed to have been made for an Employee’s Account shall
be deemed to be reinvested in such investments as the Employee shall direct as
of a date selected by the Committee, which date shall be not more than 30 days
after receipt of such direction, and the balance credited to an Employee’s
Account as of any date shall be equal to the fair market value of the
investments deemed to have been made for such Account as of such date. Starting with Deferred Amounts elected for
the year 2000 and after Accounts for each Employee shall be separately
maintained on a calendar year basis, with each year’s account (the “Class Year
Account”) reflecting only the Deferred Amounts of compensation earned in that
year and the investments in which the Deferred Amounts are deemed to be
invested. All Deferred Amounts elected
before the year 2000, including deferrals of TCF Stock awards made before that
date, and the investments in which they are deemed to be invested from time to
time, shall be aggregated and maintained as a “Pre-2000 Account.”
c.
Although
the value of an Employee’s Account is to be measured by the value of and income
from certain deemed investments, the Companies need not actually make such
investments. The value of and income
from such investments are merely a measuring device to determine the payments
to be made to each Employee hereunder.
Each Employee, and each other recipient of an Employee’s Deferred
Amounts pursuant to Section 7, shall be and remain an unsecured general
creditor of the Company by which he is employed with respect to any payments
due and owing to such Employee hereunder.
If a Company should from time to time, in its discretion, actually
purchase the investments deemed to have been made for an Employee’s Account,
either directly or through the trust described in Section 4, such investments
shall be solely for the
2
Company’s or such trust’s own account, and the
Employees shall have no right, title or interest therein.
d.
Sub-accounts
shall be maintained as provided in Exhibit A hereto and in Section 10 hereof.
e.
Notwithstanding
the provisions of Exhibit A and Section 10, in the event of a Change in Control
in which TCF Stock is exchanged for shares of a successor company, or for cash,
securities or other property, such that TCF Stock is no longer outstanding,
each Employee may make a one-time diversification election prior to the closing
of the Change in Control to have the assets then deemed to be held in the
Employee’s TCF Stock Account deemed to have been sold in an orderly liquidation
after the closing and the proceeds deemed to have been reinvested in such
investments as the Employee shall elect.
If the Employee does not make such a diversification election, the
shares of TCF Stock that were deemed to have been allocated to the Employee’s
account upon the closing shall be deemed to have been exchanged for the same
consideration in the Change in Control as shares of TCF Stock generally receive
in the Change in Control. Any portion of
such consideration consisting of securities of a successor company will be
allocated to the TCF Stock Account and thereafter will be subject to the same restrictions on deemed
sales as applied to TCF Stock prior to the Change in Control. Any portion of such consideration consisting
of assets other than securities of a successor company will be allocated to the
Employee’s Diversified Account.
f.
An
Employee’s right to direct the deemed investments of the Employee’s Account
shall continue during any period of distribution subsequent to the Employee’s
termination of employment in the same manner as if the Employee had continued
as an active Employee, although the Committee may, in its discretion, add
additional registered mutual funds or collective or common trust funds as
permissible deemed investments only for the Accounts of terminated Employees if
the Committee deems such funds to be particularly appropriate or suitable for
such Accounts.
g.
Sub-Accounts
shall be maintained as provided in Exhibit A hereto and in Section 10 hereof.
4.
Trust
.
TCF Financial has established a trust (of the
type commonly known as a “rabbi trust”) to aid in the accumulation of assets
for payment of Deferred Amounts. The
trust provides for separate accounts in the name of each Employee who has
elected a Deferred Amount. Each Company
shall contribute to the trust such amounts as are necessary to keep the
separate accounts maintained for that Company’s Employees sufficient at all
times to pay in full all benefits payable under the Plan with respect to such
Company’s Employees, including, without limitation, any liquidated damages
payable to such Company’s Employees
pursuant to Section 9.f. In
addition:
a.
TCF
Financial may, in its sole discretion, require the Companies to contribute
additional amounts, which TCF Financial may direct the Trustee not to credit to
an account for any Employee, but instead to a general account for the payment
of Plan expenses; and
3
b.
within
ten (10) business days following the occurrence of a Change in Control, the
Companies shall contribute an amount equal to 300% of the aggregate expenses
incurred by the Companies and the Trustee in administering the Plan and the
trust described in this Section 4 during the last full calendar year
immediately preceding the occurrence of the Change in Control, which amount
shall also be credited to a general account for the payment of Plan
expenses. If the aggregate expenses that
were incurred by the Companies and the Trustee in administering the Plan and
the trust during the last full calendar year immediately preceding the
occurrence of the Change in Control cannot be determined with reasonable
certainty prior to the date on which this contribution is due, the amount of
the contribution shall be $150,000.
The assets of the
trust shall be invested in accordance with the provisions of the agreement or
agreements pursuant to which the trust is maintained, which agreement(s) shall
be consistent with the terms of this Plan.
The trustee of the trust (“Trustee”) shall be a corporate trustee
independent of the Companies. The trust
assets shall remain subject to the claims of the Companies’ general creditors.
5.
Payment of Deferred Amounts
.
a.
Deferrals
On or After January 1, 2000 (“Class Year Accounts”)
. For Deferred Amounts of compensation earned
on or after January 1, 2000 and of TCF Stock awards made on or after that date,
at the same time as the Employee elects the Deferred Amounts for a calendar
year, or for a TCF Stock Award, the Employee shall also elect the timing and
form of distribution of such Deferred Amounts for that year, or for the TCF
Stock award, from among the following options:
(I)
Upon
a Date Certain
. As to Deferred
Amounts other than TCF Stock awards, the Employee may designate the
distribution to be either a lump sum or annual installments (but no fewer than
two and no more than 15) to be paid or to commence on a date in a year
designated by the Employee (“Date Certain”) either before or after employment
termination but in no event sooner than two calendar years after the calendar
year when the Deferred Amount was earned, subject to the Committee’s
designation of a uniform month and day for each year. For all Deferred Amounts, the Employee may
designate the distribution to be either a lump sum or annual installments (but
no fewer than two and no more than 15) to be paid on or to commence on such
Date Certain. Any distribution in annual
installments shall commence 30 days after the Date Certain with succeeding
installments paid thereafter on the date designated by the Committee in each
subsequent year. Each installment shall
consist of the balance of the Employee’s account at the end of the previous
calendar year, multiplied by a fraction, the numerator of which is 1 and the
denominator of which is the number of installments remaining to be paid. Distributions of amounts credited to the
Employee’s TCF Stock account shall be made in whole shares of TCF Stock
(disregarding any shares in suspense or unvested as of the end of the calendar
year). Distributions of amounts credited
to the Employee’s Diversified Account shall be made in cash. Distributions shall be charged first to any
available cash that is deemed to be held in the Employee’s Account and, to the
extent such cash
4
is not sufficient to cover the distribution, pro rata
to the TCF Stock Account and the Diversified Account (by liquidating pro rata
portions of each deemed investment in the Diversified Account).
(II)
Upon
Disability
. The Employee may
designate an alternative distribution in the event of Disability, as defined in
this Plan, in the form of either a lump sum or annual installments (but no
fewer than two and no more than 15) to be paid or to commence 30 days after
such Disability occurs. The
determination of payments and installments, including the distribution of only
whole shares of TCF Stock with respect to amounts credited to the TCF Stock account,
shall be the same as under the preceding paragraph (I).
(III)
Upon
Other Termination of Employment, Including Retirement and Death
. The Employee may designate an alternative
distribution in the event of a termination of employment, including retirement,
in the form of either a lump sum or annual installments (but no fewer than two
and no more than 15) to be paid or to commence 30 days after such termination
of employment occurs. The determination
of payments and installments, including the distribution of only whole shares
of TCF Stock with respect to amounts credited to the TCF Stock account, shall
be the same as under the preceding paragraph (I).
(IV)
Upon
a Change in Control
. The Employee
may designate an alternative distribution in the event of a Change in Control
(as defined in Section 5.j.) in the form of either a lump sum or annual
installments (but no fewer than two and no more than 15) to be paid or, in the
case of annual installments, to commence 30 days after the one year anniversary
of the closing of such Change in Control.
The determination of payments and installments, including the
distribution of only whole shares of TCF Stock from the TCF Stock account,
shall be the same as under the preceding paragraph (I).
b.
Pre-2000
Account
. Not later than 30 days
after an Employee’s “Distribution Event” (as defined herein), the Trustee shall
commence distribution of the amounts credited to such Employee’s Pre-2000
Account. Notwithstanding the foregoing
sentence, if an Employee’s distribution requires Committee action then the commencement
of distributions shall occur not later than 30 days after such Committee action
or, if later, after the Employee’s Distribution Event. Provided, that the Committee shall take any
action required of it no later than its next regularly scheduled meeting after
the Employee’s Distribution Event. An
Employee’s “Distribution Event” is the first to occur of the following: (i)
termination of employment; (ii) disability or (iii) the date one year after a
Change in Control (as defined herein).
Commencing within such 30 day period, the balance credited to the
Employee’s Account shall be paid as follows.
15-Year Payment Schedule
Subject to Acceleration by Committee
. For distributions not subject to Section
5.c., d., or k., payment of the Employee’s Pre-2000 Account shall be in fifteen
annual installments unless the Committee approves a different schedule or the
Employee’s account is subject to the last paragraph of this Section 5.b. The Committee may determine on a case by case
basis to approve a different payment
5
schedule for an Employee after taking into account
whether the Employee has executed or will execute a non-competition agreement
in form and scope reasonably acceptable to the Committee. The Committee may also consider such other
factors as the Committee considers appropriate in each case. Any alternative payment schedule the
Committee approves under this Section 5.b. may be in the form of installments over
such period as the Committee selects, in the form of a lump sum, or any
combination of installments and lump sum payments. For distributions from the Accounts of
Employees who did not consent to the terms of this Section 5.b., the balance in
the Account shall be paid as provided at the end of this section.
(I)
The
first payment under Section 5.b. shall be paid on a date the Committee selects
which is no later than 30 days after the Committee’s direction as to the form
and timing of distributions is made or, if later, 30 days after the Employee’s
Distribution Event. If no date is
selected, the first payment shall be on the date that is the later of 30 days
after the Committee’s action or 30 days after the Employee’s Distribution
Event. Succeeding installments (if any)
shall be paid on January 31 of each calendar year following the calendar year
in which the first payment was made.
(II)
Each
payment shall be made in cash or in kind as the Committee, in its discretion,
shall determine except that distributions of amounts credited to an Employee’s
TCF Stock Account shall be distributed in the form of TCF Stock. If the Committee makes no instruction,
distributions of amounts credited to an Employee’s Account that are deemed to
be invested in assets other than TCF Stock shall be distributed in the form of
cash. Annual installments are intended
to be substantially equal in value. To
that end, each annual distribution shall be determined as follows. The amount credited to Employee’s Account, as
reported on the latest available account statement, shall be multiplied by a
fraction, the numerator of which is one and the denominator of which is the
number if installments remaining to be paid, including the current
installment. The value of any portion of
the account distributed in cash shall be equal to the cash that would have been
received if the assets in which the Account was deemed to have been invested
had been liquidated on the latest practicable date prior to the distribution
date.
(III)
Notwithstanding
the foregoing subparagraph (I), an Employee who has terminated employment and
commenced receiving payments may elect each year to have the payment otherwise
due on January 31 of the next succeeding year paid as monthly installments
instead, with each payment made on the last day of each month. Any such election shall be made in writing
and delivered to the Committee on or before December 1 prior to any year for
which it is to be effective. Such
election may also indicate the assets to be deemed to have been liquidated in
connection with each monthly payment (subject to the requirement that
distributions of amounts credited to an Employee’s TCF Stock Account must be
distributed in the form of whole shares of TCF Stock). The amount of each monthly payment shall be
equal to the amount that would otherwise be paid in one payment in January,
divided by 12. Any assets that must be
deemed to have
6
been liquidated in order to pay monthly benefits shall
be deemed to have been liquidated on the last practicable date prior to the
installment’s payment date. In no event
shall this subparagraph be construed as allowing the executive to lengthen or
shorten the number of years over which his or her benefits will be paid; the
election herein pertains only to timing of payments within a year.
Pre-2000 Account: Lump
Sum Payment
. For an
Employee’s Pre-2000 Account, distributions to Employees who did not consent to
the foregoing terms of Section 5.b. at the time such provisions were added to
the Plan in 1996, shall occur on or about the 30th day after the Employee’s
Distribution Event. Distribution shall
consist of a single lump sum equal to the total value of the Employee’s
Pre-2000 Account, unless the termination of employment was due to retirement or
disability (as defined herein), in which case the distribution shall be in five
annual installments. However, the
Committee shall reduce the number of the installments if necessary to provide
for annual payments of at least $15,000.
In addition, if the value of the Employee’s Account is less than $15,000
as of any annual installment payment date, the Account shall be paid in full as
of such installment payment date.
Distributions shall be in the form of cash, except that any portion of
the Account that is deemed to be invested in TCF Stock shall be distributed in
the form of whole shares of TCF Stock.
The value of any portion of the account distributed in cash shall be
equal to the cash that would have been received if the assets in which such
portion of the Account was deemed to be invested had been liquidated by the
Trustee on the latest practicable date prior to the distribution date.
c.
Overriding
Lump Sum Distribution in Exchange for Non-Competition Covenant or Reduction in
Account Balance
. Effective on and
after September 30, 1998, each Employee who so elects in accordance with this
paragraph c. and who has had a Distribution Event shall be entitled to elect to
receive a lump sum form of distribution of either the Pre-2000 Account or any
Class Year Account. A lump sum
distribution shall consist of a single distribution of the entire value of the
Employee’s Pre-2000 or Class Year Account (unless the Employee elects to apply
the election to only the portion of the Account that is deemed to be invested
in TCF Stock or to only the portion of the Account that is deemed to be
invested in assets other than TCF Stock) on or about 30 days after the later of
the Employee’s Distribution Event or the date on which the Employee’s election
is filed with TCF Financial. The
distribution shall be in the form of cash, except that any portion of the
Employee’s Account that is deemed to be invested in TCF Stock shall be
distributed in the form of whole shares of TCF Stock. The value of any portion of the Account
distributed in cash shall be equal to the cash that would have been received if
the assets in which such portion of the Account was deemed to be invested had
been liquidated by the Trustee on the latest practicable date prior to the
distribution date. An Employee’s election
under this paragraph c. may occur at any time prior to or after the
commencement of distributions to such Employee.
If distributions have already commenced, such election shall apply only
to the balance of the Employee’s Account at the time of the election. The election shall be made on such form as
TCF Financial reasonably requires and shall be accompanied by whichever of the
following the Employee elects to provide: (a) a noncompetition agreement having
a value as of the Committee’s action date, equal to at least 10% of the
then-current value of the Employee’s Account; (b) the Employee’s written
acceptance of a reduction by 10% in the
7
Employee’s Account; or (c) the Employee’s written
acceptance of a reduction by less than 10% in the Employee’s Account and a
non-competition agreement having a value as of the Committee’s action date
equal to at least the difference between 10% of the then-current value of the
Employee’s Account and the reduction accepted in writing by the Employee.
d.
Change
in Control Distribution
. In the
event of a Change in Control (as defined in this Plan) all Pre-2000 Accounts in
the Plan will be distributed to all Employees.
If the Employee’s Pre-2000 Account is subject to Section 5.b.,
distribution will be in the form required by Section 5.b. If the Employee elects to have Section 5.c.
apply to the Pre-2000 Account, however,
then distribution will be in the form of a lump sum. Any election to apply Section 5.c. to an Account
in connection with a Change in Control shall meet the requirements of Section
5.c. The first payment, or the lump sum
payment, whichever applies, of a Pre-2000 Account shall occur on or about 30
days after the earlier of (i) the date one year after the Change in Control, or
(ii) the date of the Employee’s termination of employment or disability. Any shares of TCF Stock (or securities of a
successor company exchanged for TCF Stock) that are deemed to be held in the
TCF Stock Account shall be distributed in the form of investment in which they
are then deemed to be held. The value of
any distribution from the Diversified Account distributed in cash shall be
equal to the cash that would have been received if the assets in which the
Diversified Account was deemed to be invested had been liquidated by the
Trustee on the latest practicable date prior to the distribution date.
Notwithstanding anything in this Section 5.d. to the contrary, if at least
twelve months prior to the earlier of: (A) the date on which a Change in
Control occurs; or (B) the date on which a definitive agreement pursuant to
which a Change in Control occurs is signed by all parties, an Employee files a
written election with the Committee to have his or her Pre-2000 Account in the
Plan distributed on a Date Certain in accordance with rules substantially
similar to those described in Section 5.a.(I) or upon termination of employment
in accordance with rules substantially similar to those described in Section
5.a.(III), the Employee’s Pre-2000 Account shall be distributed in accordance
with the Employee’s last timely written election to that effect and not in
accordance with the default rules of this Section 5.d. Notwithstanding anything in this Section 5.d.
to the contrary, if at least twelve months prior to a Change in Control an
Employee files a written election with the Committee to have his or her
Pre-2000 Account in the Plan distributed on a Date Certain in accordance with
rules substantially similar to those described in Section 5.a.(I) or upon
termination of employment in accordance with rules substantially similar to
those described in Section 5.a(III), the Employee’s Pre-2000 Account shall be
distributed in accordance with the Employee’s last timely written election to
that effect and not in accordance with the default rules of this Section
5.d. In the event of a Change in
Control, all Class Year Accounts of an Employee shall be distributed to the
Employee if he or she so elected, at the time and in the manner elected under
Section 5.a. at the time the Class Year Account was deferred. If the Employee subsequently elects to have
Section 5.c. apply to the Class Year Account, however, then distribution shall
be in the form of a lump sum.
e.
For
purposes of this section, an Employee’s employment is considered to terminate
as of the date which is the later of (i) Employee’s last date of service for
the
8
Company, or (ii) the last date on which there is an
employment relationship between the Employee and a Company.
f.
For
purposes of this section, an Employee is disabled as of the date the Employee
is eligible for payments under the long term disability plan of a Company.
g.
In
the event installment payments commence and any installments are unpaid at the
time of Employee’s death, the payments shall be made at the times and in such
amounts as if Employee were living to the persons specified in Section 7.a.
h.
For
purposes of this section, an Employee’s termination of employment is a retirement
if so determined by the Committee under all the facts and circumstances.
i.
For
purposes of this Section 5, the value of a non-competition agreement shall be
determined in all cases on the basis of an independent appraisal, unless such
an appraisal is deemed unnecessary by both the Committee and the Employee.
j.
For
purposes of this Plan, a Change in Control shall be deemed to have occurred if
(i) 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 (for purposes of this clause (i), the term “beneficial
owner” does not include any employee benefit plan maintained by TCF Financial
that invests in TCF Financial’s voting securities); or (ii) during any period
of two (2) consecutive years there shall cease to be a majority of the Board
comprised as follows: individuals who at
the beginning of such period constitute the Board or new directors whose
nomination for election by the company’s shareholders 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 (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) at least 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 a Change in Control, for purposes
of this Plan, is the date on which the Change in Control is consummated.
k.
Notwithstanding
any other provision of this Section 5 or any payment schedule approved by the
Committee pursuant to this Section 5 and regardless of whether payments have
commenced under this Section 5, in the event that the Internal Revenue
9
Service should finally determine with respect to an
Employee who has terminated employment with a Company that part or all of the
value of the Employee’s Deferred Amounts or Plan Account which has not actually
been distributed to the Employee, or that part or all of a separate account
that has been established for the Employee under a trust described in Section
4, is nevertheless required to be included in the Employee’s gross income for
federal and/or State income tax purposes, then the Deferred Amounts or the
Account or the part thereof that was determined to be includible in gross
income shall be distributed to the Employee in a lump sum as soon as
practicable after such determination without any action or approval by the
Committee. A “final determination” of
the Internal Revenue Service for purposes of this Section 5.k. is a
determination in writing by said Service ordering the payment of additional
tax, reporting of additional gross income or otherwise requiring Plan amounts
to be included in gross income, which is not appealable or which the Employee
does not appeal within the time prescribed for appeals.
l.
Effective
for distributions commencing on or after May 16, 2001, an Eligible Employee may
elect to have benefits due under this Plan distributed in any one of the forms
allowed by the Plan, provided that the election is in writing and is executed
and delivered to TCF Financial or to its Corporate Secretary (or designee) on
behalf of TCF Financial, prior to the Employee’s termination of employment and
no later than one year (365 days) before such Employee’s distribution event.
m.
Notwithstanding
the foregoing, with respect to any amounts deferred by Participants under the
Plan on or before December 31, 2004, but which were not earned and vested (as
defined under IRC § 409A) on that date, such amounts shall be separately
accounted for under the Plan and shall be distributed to the Participant in a
lump sum form of distribution no sooner than six months after the earliest to
occur of the following: such Participant’s termination of employment, financial
emergency (as defined in IRC § 409A), disability or death, previously-elected
date certain, the termination of the Plan (to the extent IRC § 409A permits
distributions on Plan termination), change in control (to the extent IRC § 409A
permits distributions upon a change in control) or any other distribution event
under the Plan which is a permitted distribution event under IRC § 409A.
6.
Emergency Payments
.
In the event of an “unforeseeable emergency”
as determined hereafter, the Committee may determine the amounts payable under
Section 5 hereof and pay all or a part of such amounts without regard to the
payment dates provided in Section 5 to the extent the Committee determines that
such action is necessary in light of immediate and heavy needs of the Employee
(or his beneficiary) occasioned by severe financial hardship. For the purposes of this Section 6, an “unforeseeable
emergency” is a severe financial hardship to the Employee resulting from a
sudden and unexpected illness or accident of the Employee or beneficiary, or of
a dependent (as defined in Section 152(a) of the Internal Revenue Code of 1986,
as amended) of the Employee or beneficiary, loss of the Employee’s or
beneficiary’s property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the Employee or beneficiary. Payments
shall not be made pursuant to this Section 6 to the extent that such hardship
is or may be relieved: (a) through reimbursement or compensation by insurance
or otherwise, (b) by liquidation of the Employee’s
10
or beneficiary’s assets,
to the extent the liquidation of such assets would not itself cause severe
financial hardship, or (c) by cessation of the Employee’s deferrals under the
Plan. Such action shall be taken only if
Employee (or Employee’s legal representatives or successors) signs an
application describing fully the circumstances which are deemed to justify the
payment, together with an estimate of the amounts necessary to prevent such
hardship, which application shall be approved by the Committee after making
such inquiries as the Committee deems necessary or appropriate.
7.
Method of Payments
.
a.
In
the event of Employee’s death, payments shall be made to the persons (including
a trustee or trustees) named in the last written instrument signed by Employee
and received by the Committee prior to Employee’s death, or if Employee fails
to so name any person, the amounts shall be paid to Employee’s estate or the
appropriate distributee thereof. The
Committee, the Companies, and the Trustee shall be fully protected in making
any payments due hereunder in accordance with what the Committee believes to be
such last written instrument received by it.
b.
Payments
due to a legally incompetent person may be made in such of the following ways
as the Committee shall determine:
i.
directly
to such incompetent person,
ii.
to
the legal representative of such incompetent person, or
iii.
to
some near relative of the incompetent person to be used for the latter’s
benefit.
c.
Except
as otherwise provided in Sections 7.a. and b., all payments to persons entitled
to benefits hereunder shall be made to such persons in person or upon their
personal receipt or endorsement, and shall not be grantable, transferable, or
otherwise assignable in anticipation of payment thereof, in whole or in part,
by the voluntary or involuntary acts of any such persons, or by operation of
law, and shall not be pledged, encumbered, or otherwise liable or taken for any
obligation of such person.
d.
All
payments to persons entitled to benefits hereunder shall be made out of the
general assets, and shall be the sole obligations, of the Company(ies) by which
the Eligible Employee was employed, except to the extent that such payments are
made out of the trust described in Section 4.
e.
Unless
commenced earlier at the direction of the Committee or suspended due to a Company’s
Insolvency, payments from the trust described in Section 4 shall be commenced
by the Trustee (without the need for further instructions from the Committee)
in accordance with the most recent payment instructions provided by the
Committee after the Trustee (i) acquires actual knowledge of the occurrence of
an event that requires payment to commence (a “payment event”), (ii) is
notified by the Committee that a payment event has occurred, (iii) determines
(in the absence of actual knowledge and any notice from the Committee) that a
Change in Control has occurred as
11
defined in Section 5.j. of this Plan, or (iv) in the
case of a participant’s termination of employment, is notified in writing by
the participant that the participant’s termination of employment has
occurred. The Trustee shall make a
determination with respect to whether a Change in Control has occurred if the
Trustee receives notice that a Change in Control may have occurred from any
source other than the Committee.
Promptly after receiving such notice of a possible Change in Control,
the Trustee shall request from the Committee all information relevant to the
Trustee’s determination. If the
Committee fails to provide information sufficient to demonstrate the absence of
a Change in Control within 30 days after the Trustee’s request, and the other
information received by the Trustee indicates that a Change in Control has
occurred, the Trustee shall commence payment of accounts (that are not payable
earlier) in the manner required upon the occurrence of a Change in Control.
f.
Payments
made by the Trustee from an account established for a participant shall be
debited against such account and shall cease when the balance credited to the
account has been reduced to zero or if earlier, when the Trustee determines,
based upon its review of the records of the Plan, that payment of any
additional amounts from the participant’s account will result in the payment of
benefits in excess of those required under the Plan. The Trustee shall have no obligation to
perform such a review and consider such a determination until after (i) the
Committee notifies the Trustee and the participant (or, if the participant has died,
the participant’s beneficiary) of the potential excess payment, (ii) the
Trustee has been provided with all Plan records that may be reasonably required
by the Trustee to make its determination, and (iii) the participant (or
beneficiary) has had a reasonable time (not less than 30 days) to respond. Pending its determination, the Trustee shall
continue payment of the affected account(s) in accordance with the applicable
payment instructions.
8.
Claims Procedures
.
a.
If
a claim for benefits made by any person (the “Applicant”) is denied, the
Committee shall furnish to the Applicant within 90 days after its receipt of
such claim (or within 180 days after such receipt if special circumstances
require an extension of time) a written notice which: (i) specifies the reasons
for the denial, (ii) refers to the pertinent provisions of the Plan on which
the denial is based, (iii) describes any additional material or information
necessary for the perfection of the claim and explains why such material or
information is necessary, and (iv) explains the claim review procedures.
b.
Upon
the written request of the Applicant submitted within 60 days after his receipt
of such written notice, the Committee shall afford the Applicant a full and
fair review of the decision denying the claim and, if so requested: (i) permit
the Applicant to review any documents which are pertinent to the claim, (ii)
permit the Applicant to submit to the Committee issues and comments in writing,
and (iii) afford the Applicant an opportunity to meet with a quorum of the
Committee as a part of the review procedure.
c.
Within
60 days after its receipt of a request for review (or within 120 days after
such receipt if special circumstances, such as the need to hold a hearing,
require an
12
extension of time) the Committee shall notify the
Applicant in writing of its decision and the reasons for its decision and shall
refer the Applicant to the provisions of the Plan which form the basis for its
decision.
9.
Miscellaneous
.
a.
Except
as limited by Section 7.c. and except that an Employee shall have a continuing
power to designate a new recipient in the event of Employee’s death at any time
prior to such death without the consent or approval of any person theretofore
named as Employee’s recipient by an instrument meeting the requirements of
Section 7.a., this document shall be binding upon and inure to the benefit of
each Company, the Employees, their legal representatives, successors and
assigns, and all persons entitled to benefits hereunder.
b.
Any
notice given in connection with this document shall be in writing and shall be
delivered in person or by registered mail or overnight delivery service, return
receipt requested. Any notice given by
registered mail or overnight delivery service shall be deemed to have been
given upon the date of delivery indicated on the return receipt, if correctly
addressed.
c.
Nothing
in this document shall interfere with the rights of any Employee to participate
or share in any profit sharing or pension plan which is now in force or which
may at some future time become a recognized plan of any Company.
d.
Nothing
in this document shall be construed as an employment agreement nor as in any
way impairing the right of any Company to terminate an Employee’s employment at
will.
e.
This
Plan constitutes a mere promise by the Companies to make benefit payments in
the future, and it is intended to be unfunded for tax purposes and for the
purposes of Title I of ERISA. The rights
of an Employee or beneficiary to receive benefit payments hereunder are solely
those of an unsecured general creditor.
f.
Amounts
that are paid more than 30 days after the later of the date on which they are
due according to the terms of this Plan or the date on which a written claim
for such amounts is received by the Committee shall incur interest at the rate
of fifteen percent per annum (eighteen percent per annum if the payment occurs
after a Change in Control) from date as of which payment was due. In addition, if all or any portion of the
distribution is payable in the form of TCF Financial stock, and the value of
such stock at the time of distribution is less than its value on the the date
as of which payment was due, the payee shall be entitled to liquidated damages
equal to 100% (120% if the payment occurs after a Change in Control) of the
aggregate difference in value between the value of the distributed shares on
the date their distribution was due (without regard to the 30-day grace period)
and the value of the distributed shares on the actual date of distribution.
13
g.
Any
costs or attorneys’ fees incurred by a participant or beneficiary in connection
with the collection of benefits that were not timely paid under this Plan shall
be reimbursed by the Companies.
h.
Notwithstanding
anything in this Plan to the contrary, effective January 1, 2003, if the
beneficiary of a participant is not the participant’s spouse, the payment to
that beneficiary shall be made in the form of an immediate lump sum
distribution of the entire portion of the participant’s account payable to that
beneficiary, without regard to any outstanding installment payment election.
10.
Investment Elections by
Employees; Defer
red TCF Stock Awards
.
a.
Employees
may elect to have investments that have been deemed to have been made in their
Deferred Compensation Accounts under Section 3 or 4 deemed to have been
liquidated and reinvested as directed,
provided
that any investment
election shall be exercised in writing by the Employee and approved by the
Committee or its approved representative under such terms and conditions as the
Committee deems appropriate (Exhibit A to this Plan), and
further provided
,
that on and after September 30, 1998 any deemed investments in TCF Stock shall
be subject to paragraph b of this Section 10.
b.
If
an Employee directs or retains any deemed investment in shares of TCF Stock on
or after September 30, 1998, or defers an award of TCF Stock, the Employee’s
Account shall include a TCF Stock Account which shall operate as follows:
i.
All
shares of TCF Stock that were deemed to have been held in the Employee’s
Account on September 30, 1998 (excluding any shares held unvested pursuant to
paragraph c of this section) shall be allocated on that date to the Employee’s
TCF Stock Account and the fixed number of shares so allocated shall be the
beginning balance of the TCF Stock Account.
ii.
Thereafter,
the TCF Stock Account shall be increased by the number of shares, if any, of
TCF Stock purchased (or deemed to be purchased) from Deferred Amounts or from
dividends (other than nondeferred dividends) and/or interest pursuant to the
Employee’s directions under Section 3 of this Plan and by any shares of TCF
Stock becoming vested, as provided in paragraph c of this section.
iii.
The
balance of shares of the TCF Stock Account shall in no event be decreased.
iv.
Shares
allocated to the Employee’s TCF Stock Account shall be subject to all of the
restrictions and other provisions of this Committee’s action dated 8-24-98
establishing separate accounts for TCF Stock as compared to non-TCF Stock
assets.
v.
Notwithstanding
the following, effective January 1, 2005 no further elections shall be allowed
under section 10.b.v of this Plan as provided in
14
Appendix
C. An employee’s last election
before
December 31, 2004 shall remain in effect until the employee’s entire account is
distributed.
c.
Deferred
Amounts consisting of TCF Stock awards shall be held unallocated until such
time as the shares vest in accordance with the terms of the award
agreement. As of the date any such
shares become vested, the number of shares vesting shall be allocated to the
Employee’s Account and shall thereafter become subject to distribution the same
as any other shares of TCF Stock in which the TCF Stock account is deemed
invested. Any cash dividends paid on
unvested shares of TCF Stock, if such dividends have been deferred by the
Employee, shall be allocated to the Employee’s account and deemed invested as
directed by the Employee. Any stock
dividends paid on unvested shares of TCF Stock, if such dividends have been
deferred by the Employee, shall be allocated to the Employees’ TCF Stock
account and increase the TCF Stock account balance unless such dividends are in
the nature of a stock split, in which case they shall be held unallocated until
such time as the award vests.
11.
Termination or Amendment
.
This Plan may be amended at any time and from
time to time upon the approval of the Board of Directors of TCF Financial;
provided, however, that no amendment shall be effective unless it has the
written consent of all participants, all participants who are former employees
but who are entitled to benefits under the Plan, and all beneficiaries of
deceased participants who are entitled to benefits under the Plan. In the event that all of the Plan’s
participants and beneficiaries do not consent to a proposed amendment, such
amendment shall not take effect but the Plan Accounts of the consenting
participants and beneficiaries shall be transferred to a separate plan that is
identical to this Plan in all respects except that it may include the proposed
amendment. The Board of Directors may
terminate this Plan in its discretion, except that any such termination shall
require the written consent of all participants, all participants who are
former employees but who are entitled to benefits under the Plan, and all
beneficiaries of deceased participants who are entitled to benefits under the Plan,
unless it is an automatic termination of the Plan under section 5.k.
hereof. In the event that all of the
Plan’s participants and beneficiaries do not consent to a proposed termination
of the Plan, the Plan shall terminate as to the consenting participants and
beneficiaries and shall continue in effect for the participants and
beneficiaries who do not consent.
15
EXHIBIT A
(Action of 16b-3
Sub-Committee of the Personnel Committee Establishing TCF Stock Accounts and
Diversified Accounts effective as of September 30, 1998 and as amended
effective as of January 1, 2000)
1.
Effective
as of September 30, 1998 (the “Effective Date”), each participant’s Account in
the Plan shall be divided into two sub-accounts: a “TCF Stock Account” and a “Diversified
Account.” All shares of common stock of
TCF Financial (“TCF Stock”) that are deemed to be held in a participant’s
Account on the Effective Date shall be allocated as of that Date to the
Participant’s TCF Stock Account. All
other investments that are deemed to be held in a participant’s Account on the
Effective Date shall be allocated as of that Date to the participant’s
Diversified Account. Thereafter, the
Sub-Accounts shall operate as follows:
a.
The
TCF Stock Account shall be deemed to be invested solely in shares of TCF Stock
(and in cash or cash equivalent money market funds for fractional shares or for
funds held temporarily prior to investment).
The Diversified Account shall not at any time be deemed to be invested
in any shares of TCF Stock. Except as
permitted by paragraph e, below, no transfer of assets will be permitted from
the TCF Stock Account to the Diversified Account or from the Diversified
Account to the TCF Stock Account.
b.
A
participant’s TCF Stock Account shall be deemed to be invested in all shares of
TCF Stock allocated to it on or after the Effective Date and such shares shall
not be subject to any deemed sale, transfer, assignment, pledge or other
hypothecation in any manner. Upon the
occurrence of a Distribution Event (as defined in the Plans) the distributions
from the Plan to the participant with respect to such shares will be made in an
in-kind distribution pursuant to the terms of the Plan.
c.
The
Diversified Account shall not at any time be deemed to purchase or invest in
any shares of TCF Stock, but shall be deemed to invest in such investments as
the participant directs and as the Committee permits from time to time.
d.
Any
new Deferred Amounts for a participant after the Effective Date shall be
allocated to either the participant’s TCF Stock Account or to such participant’s
Diversified Account, as the participant shall direct in an irrevocable election
filed before the beginning of each calendar year and applicable throughout the
calendar year. The Deferred Amounts
shall be credited to the applicable sub-Account as of the same date that they
are otherwise credited to the participant’s Account under Section 3.a. of the
Plan.
e.
Dividends
deemed to have been generated by a participant’s TCF Stock Account and which
are deferred shall be deemed to have been reinvested in the TCF Stock Account,
or in the Diversified Account, as the participant directs in an irrevocable
election filed before the beginning of each calendar year and applicable
throughout the calendar year. Any
interest or dividends deemed to have been generated by a participant’s
Diversified Account shall be deemed to have been reinvested in the Diversified
Account, or in the participant’s TCF Stock Account, as the participant directs
16
in an irrevocable election filed before the beginning
of each calendar year and applicable throughout the calendar year, unless
management determines that the deemed reinvestment of interest and dividends
within or from the Diversified Account is not administratively feasible. If the participant does not file an election
with respect to the investment of interest and/or dividends, all interest and
dividends shall be deemed to have been reinvested in the asset that generated
them.
17
APPENDIX A RE: IRS NOTICE 2000-56
Notwithstanding anything to the contrary in the Plan
or Trust, effective on and after May 16, 2001, TCF Financial stock or other
assets contributed to the Trust by TCF Financial or any other Company for the
benefit of employees or service providers of TCF Financial or such Company are
subject to the claims of creditors (in the event of insolvency) of both TCF
Financial and such Company. In addition,
such stock and assets are subject to the claims of creditors (in the event of
insolvency) of any Company from which benefits are due to a participant or
beneficiary under the terms of the Plan.
Nothing in this Appendix, however, shall relieve any Company of its
obligation to pay any benefits due from the Company to a participant or
beneficiary under the terms of the Plan.
Notwithstanding anything to the contrary in the Plan
or Trust, effective on and after May 16, 2001, any TCF Financial stock or other
assets not transferred to a Company’s employees or their beneficiaries will
revert to TCF Financial upon termination of the Trust.
18
APPENDIX B
DISTRIBUTION PROCEDURES
(10-03-01)
Covered
Plans
.
These
Procedures have been adopted as Appendices to the following plans: Executive,
Senior Officer, and Winthrop Deferred Compensation Plans and Supplemental
Employees Retirement Plan (“SERP”) - 401-k Plan Portion.
Timing of
Distribution (Lump Sum vs. Installment)
.
As elected by the employee at the time of
joining the plan. Superseding elections
may be made at any time up to one year prior to distribution.
•
Lump
Sum — 30 days after “distribution event” (usually, termination of employment).
•
Installments
— First installment is 30 days after distribution event. Subsequent installments on February 15
th
of each succeeding year. Each
installment amount is determined by multiplying the account balance on 12/31 of
previous year by a fraction of 1/number of remaining installments.
Form of
Distribution — Stock or Cash
|
If
Your Account
is 100% TCF
Stock.
|
If
Your Account Contains both TCF
Stock and Diversified Account.
|
If
Your Account is 100%
Diversified Account.
|
|
The distribution
will be settled entirely in whole shares of TCF Stock (plus cash for any
fractional share).
|
Automatic Method
— Cash first, then pro rata
: The distribution will be
deducted first from any cash/money market balances in your plan account, then
pro rata from TCF Stock and Diversified Plan Account balances. TCF Stock
portion will be made in whole shares of TCF Stock (with cash for any
fractional share). Diversified Account portion will be paid in cash equal to
its value on February 15
th
.
|
Automatic Method
— Cash first, then pro rata
: The distribution will be
deducted first from any cash/money market balances in your plan account, then
pro rata from the deemed investments in your Diversified Account. The
distribution will be paid in cash equal to the value on February 15
th
of the deemed investments from which it was deducted.
|
|
|
Alternative
Elections: 1. You may direct the deemed sale of non-TCF stock assets to
provide cash for the distribution. 2. You may specifically designate the
assets to apply to the distribution. (Example: You specify 100% of the
distribution will come
|
Alternative
Elections: 1. You may direct the deemed sale of assets to provide cash for
the distribution. 2. You may specifically designate the assets to apply to
the distribution. (Example: You specify 100% of the distribution will come
from one particular investment in the
|
19
|
|
from the
Diversified Account).
|
Diversified
Account).
|
|
|
Election
Deadline: December 31 of the previous year.
|
Election
Deadline: December 31 of the previous year.
|
Tax Withholding
|
Automatic Method
of Withholding — Net Pro rata Against the Distribution:
The minimum required withholding (28% federal plus applicable state
percentage) will be deducted from each part of the distribution on a pro rata
basis by type of asset. Valuation for both the income reported and the
withholding will be based on deemed sale price of the investment on February
15
th
.
|
Alternative
Election — Pay by Check:
You may elect to pay the
withholding by check. TCF Legal will calculate the amount due on February 15
th
based on average market values on that date. TCF Legal must receive check
before the distribution will be forwarded to you.
|
Alternative
Election — Specify Netting:
You may elect to net the
withholding against the distribution on some basis other than pro rata.
(Example: You specify that 100% of withholding will come from the Diversified
Account portion of the distribution.)
|
|
|
Election
Deadline — December 31 of the previous year.
|
Election
Deadline — December 31 of the previous year.
|
•
Distributions
will be sent by U.S. Mail to your home
address on file with the TCF Legal Department unless you have provided other
delivery instructions in writing. If you
have a stock brokerage account, distributions can be sent to it on a same day
basis.
•
These
procedures are subject to interpretation and application by the company, whose
interpretation is final.
20
APPENDIX C
FREEZING OF PLAN
AND OTHER AMENDMENTS
UNDER INTERNAL
REVENUE CODE § 409A
(01-05-05)
Effective January
1, 2005, no further deferral elections shall be allowed under section 1 of this
Senior Officer Deferred Compensation Plan and no further elections shall be
allowed under section 10.b.v of the Plan.
The Company may
offer elections to Plan participants during the calendar year 2005 under terms
authorized by IRC § 409A to revoke or cancel their previous elections on
amounts previously deferred that were not “earned and vested” on December 31,
2004 (as defined under IRC § 409A or regulations issued thereunder) as provided
in new Plan section 1 and may allow participants to elect whether or not to pay
tax withholding on any shares distributed to them by netting the tax
withholding due against the shares, provided any such election is made no less
than 6 days before the shares are distributed (it being the intention that such
election will be exempt from matching under Rule 16b-3).
Any amounts not
earned and vested on December 31, 2004 (as defined in the previous paragraph)
and for which deferral is not revoked or cancelled under the new Plan section 1
shall be subject to the new Plan section 5.m.
This Appendix is
not intended to add any options or enhancements to the Plan nor to in any other
way constitute a “material modification” (as defined in IRC § 409A and in
regulations issued thereunder) to the Plan.
Any and all interpretations of this Appendix (and the sections added by
this Appendix to the Plan) shall be construed consistent with this intent. The
Plan continues in effect with respect to amounts deferred under the Plan for
the years 2004 and before which were earned and vested on or before December
31, 2004. The Plan is not subject to IRC
§ 409A or regulations issued thereunder except with respect to any amounts that
were not earned and vested, as defined pursuant to IRC § 409A, by December 31,
2004
21
Exhibit 10(r)
01-24-05
TCF
FINANCIAL CORPORATION
TCF
DIRECTORS DEFERRED COMPENSATION PLAN
(As Amended and
Restated through January 24, 2005)
(As applicable to
stock or fees
deferred in years
2004 or earlier)
TCF DIRECTORS
DEFERRED COMPENSATION PLAN
(As Amended and
Restated through January 24, 2005)
This is an amendment and
restatement of the TCF Directors Deferred Compensation Plan (the “Plan”) as in
effect for directors of TCF Financial Corporation (“TCF Financial”) since January 1,
1995. As a result of the enactment of Internal Revenue Code § 409A (“IRC § 409A”)
as added by the American Jobs Protection Act of 2004 (the “Act”) all deferral
elections under this Plan ceased effective at the end of 2004. A new plan was adopted for fees earned on
and after January 6, 2005, and stock awards made or deferred after that
date, entitled the TCF Directors 2005 Deferred Compensation Plan (the “New Plan”). Amounts deferred under the New Plan are
subject to IRC § 409A whereas amounts deferred under this Plan are not
subject to IRC § 409A (except for amounts not “earned and vested” as of December 31,
2004 as determined under IRC § 409A). In no event shall there be any
duplication of benefits between the New Plan and this Plan.
1.
Deferral of Stock or Fees
. A
ll new deferrals to this Plan ceased
effective at the end of the calendar year 2004.
Amounts deferred prior to that
date remain in the Plan, including all directors fees earned in the year 2004
(even if paid in 2005) and all stock awards made and deferred before the end of
2004 (even if vesting in the year 2005 or a later year). Fees or stock awards deferred before the end
of 2004, but not “earned and vested” (as defined in regulations issued under
IRC § 409A) by December 31, 2004 are subject to the provisions of section 5.i.
of this Plan. All other amounts under
the Plan are not subject to IRC § 409A.
2.
Administrative Committee
.
Full power and authority to construe,
interpret, and administer this document, shall be vested in the Administrative
Committee (the “Committee”) of the Board of Directors of TCF Financial, which
shall consist of such members of the Compensation/Nominating/Corporate
Governance Committee of the Board of Directors who qualify from time to time as
non-employee or independent directors under Rule 16b-3 of the Securities and
Exchange Commission. The Committee shall
have full power and authority to make each determination provided for in this
document, and in this connection, to promulgate such rules and regulations as
the Committee considers necessary or appropriate for the implementation and
management of this Plan as are consistent with the terms of this Plan. Notwithstanding anything in this Section 2
to the contrary, no action or determination made or taken by the Committee, and
no action or determination by the Committee affecting the amount payable under
this Plan to a participant or beneficiary, shall be entitled to any deference
by a reviewing court (i.e., judicial review of any such actions or
determinations shall be de novo).
3.
Deferred Compensation Accounts
.
Each Company shall establish on its books a
separate account (“Account”) for each of its Directors who becomes a
participant in this Plan, and each such Account shall be maintained as follows:
a.
Each
Account shall be credited with the Deferred Amounts elected by the Director for
whom such Account is established as of the date on which such Deferred Amount
would otherwise have been paid to the Director.
1
b.
The
value of a Director’s Account is to be measured by the value of and income from
TCF Stock, in which all Deferred Amounts shall be deemed to be invested,
however such value is merely a measuring device to determine the payments to be
made to each Director hereunder. Each
Director, and each other recipient of a Director’s Deferred Amounts pursuant to
Section 7, shall be and remain an unsecured general creditor of the
Company on whose board the Director serves with respect to any payments due and
owing to such Director hereunder. If a
Company should from time to time, in its discretion, actually purchase the
investments deemed to have been made for a Director’s Account, either directly
or through the trust described in Section 4, such investments shall be
solely for the Company’s or such trust’s own account, and the Directors shall
have no right, title or interest therein.
4.
Trust
.
TCF Financial has established a trust (of the
type commonly known as a “rabbi trust”) to aid in the accumulation of assets
for payment of Deferred Amounts. The
trust provides for separate accounts in the name of each Director who has
elected a Deferred Amount. Each Company
shall contribute to the trust such amounts as are necessary to keep the separate
accounts maintained for that Company’s Directors sufficient at all times to pay
in full all benefits payable under the Plan with respect to such Company’s
Directors, including, without limitation, any liquidated damages payable to
such Company’s Directors pursuant to Section 9.f. In addition:
a.
TCF
Financial may, in its sole discretion, require the Companies to contribute
additional amounts, which TCF Financial may direct the Trustee not to credit to
an account for any Director, but instead to a general account for the payment
of Plan expenses; and
b.
within
ten (10) business days following the occurrence of a Change in Control, the
Companies shall contribute an amount equal to 300% of the aggregate expenses
incurred by the Companies and the Trustee in administering the Plan and the
trust described in this Section 4 during the last full calendar year
immediately preceding the occurrence of the Change in Control, which amount
shall also be credited to a general account for the payment of Plan expenses. If the aggregate expenses that were incurred
by the Companies and the Trustee in administering the Plan and the trust during
the last full calendar year immediately preceding the occurrence of the Change
in Control cannot be determined with reasonable certainty prior to the date on
which this contribution is due, the amount of the contribution shall be
$150,000.
The assets of the trust
shall be invested in accordance with the provisions of the agreement or
agreements pursuant to which the trust is maintained, which agreement(s) shall
be consistent with the terms of this Plan.
The trustee of the trust (“Trustee”) shall be a corporate trustee
independent of the Companies. The trust
assets shall remain subject to the claims of the Companies’ general creditors.
5.
Payment of Deferred Amounts
.
a.
On
or about the 30
th
day following a Director’s termination of service
on all boards of directors of the Companies, the balance credited to the
Director’s Account
2
shall be paid in one single distribution of TCF Stock
or in annual installment distributions of TCF Stock over the number of years
directed by the Director in an election made by the Director, provided that
such election is in writing and is executed and delivered to the Committee or
the Secretary, on behalf of the Committee, no later than one year before such
Director’s termination of service.
b.
The
first payment under Section 5.a. shall be paid on a date selected by the
Committee which is no later than 30 days after the date on which the Committee’s
direction as to the form and timing of distributions is made. Succeeding installments (if any) shall be
paid on January 31 of each calendar year following the calendar year in
which the first payment was made.
c.
Each
payment shall be made in the form of TCF Stock, and each annual installment
payment shall be equal to the number of shares credited to the Director’s
Account as of the first day of the calendar month in which the installment is
paid multiplied by a fraction, the numerator of which is one and the
denominator of which is the number of installments remaining to be paid,
including the current installment.
d.
For
purposes of this section, a Director’s service on the board is considered to
terminate as of the date which is the later of (i) Director’s last date of
service for the Company as a director, or (ii) the Director’s last date of
service on the board of directors of any Company.
e.
In
the event installment payments commence and any installments are unpaid at the
time of a Director’s death, the payments shall be made at the times and in such
amounts as if the Director were living to the persons specified in Section 7.a.
f.
For
purposes of this Plan, a Change in Control shall be deemed to have occurred if
(i) 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 (for
purposes of this clause (i), the term “beneficial owner” does not include any
employee benefit plan maintained by TCF Financial that invests in TCF Financial’s
voting securities); or (ii) during any period of two (2) consecutive years
there shall cease to be a majority of the Board comprised as follows:
individuals who at the beginning of such period constitute the Board or new
directors whose nomination for election by the company’s shareholders 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 (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) at least 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
3
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 a
Change in Control, for purposes of this Plan, is the date on which the Change
in Control is consummated.
g.
Notwithstanding
any other provision of this Section 5 or any payment schedule directed
by a Director pursuant to this Section 5 and regardless of whether
payments have commenced under this Section 5, in the event that the
Internal Revenue Service should finally determine that part or all of the value
of a Director’s Deferred Amounts or Plan Account which have not actually been
distributed to the Director, or that part or all of a separate account that has
been established for the Director under a trust described in Section 4, is
nevertheless required to be included in the Director’s gross income for federal
and/or State income tax purposes, then the Deferred Amounts or the Account or
the part thereof that was determined to be includible in gross income shall be
distributed to the Director in a lump sum distribution in the form of TCF Stock
as soon as practicable after such determination without any action or approval
by the Committee. A “final determination”
of the Internal Revenue Service for purposes of this Section 5.h. is a
determination in writing by said Service ordering the payment of additional tax,
reporting of additional gross income or otherwise requiring Plan amounts to be
included in gross income, which is not appealable or which the Director does
not appeal within the time prescribed for appeals.
h.
Notwithstanding
the foregoing, if a Director’s balance in the Plan is less than $15,000 at the
time of the Director’s termination of service, then such account shall be
distributed to the Director in a lump sum payment (in the form of TCF Stock
except for cash for a fractional share) no later than 30 days after the
Director’s termination of service.
i.
Notwithstanding
the foregoing, with respect to any amounts deferred by Directors under the Plan
on or before December 31, 2004, but which were not earned and vested (as
defined under the American Jobs Creation Act of 2004 (the “Act”)) on that date,
such amounts shall be separately accounted for under the Plan and shall be
distributed to the director in a lump sum form of distribution in whole shares
of TCF stock, with cash for any fractional share no later than 30 days after
the earliest to occur of the following: such director’s termination of service
from the Board of Directors, financial emergency (as defined in the Act), or
death, the termination of the Plan (to the extent the Act permits distributions
on Plan termination), or any other distribution event under the Plan which is a
permitted distribution event under the Act.
This section 5.i. is not intended to add any options or
enhancements to the Plan nor to in any other way constitute a “material
modification” (as defined in IRC § 409A and in regulations issued
thereunder) to the Plan. Any and all
interpretations of this paragraph shall be construed consistent with this
intent.
4
6.
Emergency Payments
.
In the event of an “unforeseeable emergency”
as determined hereafter, the Committee may determine the shares distributable
under Section 5 hereof and distribute all or a part of such shares without
regard to the distribution dates provided in Section 5 to the extent the
Committee determines that such action is necessary in light of immediate and
heavy needs of the Director (or his beneficiary) occasioned by severe financial
hardship. For the purposes of this Section 6,
an “unforeseeable emergency” is a severe financial hardship to the Director
resulting from a sudden and unexpected illness or accident of the Director or
beneficiary, or of a dependent (as defined in Section 152(a) of the
Internal Revenue Code of 1986, as amended) of the Director or beneficiary, loss
of the Director’s or beneficiary’s property due to casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result of events
beyond the control of the Director or beneficiary. Payments shall not be made pursuant to this Section 6
to the extent that such hardship is or may be relieved: (a) through reimbursement or compensation by
insurance or otherwise, (b) by liquidation of the Director’s or beneficiary’s
assets, to the extent the liquidation of such assets would not itself cause
severe financial hardship, or (c) by cessation of the Director’s deferrals
under the Plan. Such action shall be
taken only if the Director (or the Director’s legal representatives or
successors) signs an application describing fully the circumstances which are
deemed to justify the distribution, together with an estimate of the amounts
necessary to prevent such hardship, which application shall be approved by the
Committee after making such inquiries as the Committee deems necessary or
appropriate.
7.
Method of Payments
.
a.
In
the event of Director’s death, payments shall be made to the persons (including
a trustee or trustees) named in the last written instrument signed by Director
and received by the Committee prior to Director’s death, or if Director fails
to so name any person, the amounts shall be paid to Director’s estate or the
appropriate distributee thereof. The
Committee, the Company, and the Trustee shall be fully protected in making any
payments due hereunder in accordance with what the Committee believes to be
such last written instrument received by it.
b.
Payments
due to a legally incompetent person may be made in such of the following ways
as the Committee shall determine:
i.
directly
to such incompetent person,
ii.
to
the legal representative of such incompetent person, or
iii.
to
some near relative of the incompetent person to be used for the latter’s
benefit.
c.
Except
as otherwise provided in Sections 7.a.
and b., all payments to persons entitled to benefits hereunder shall be made to
such persons in person or upon their personal receipt or endorsement, and shall
not be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment or garnishment by creditors of the
participant or the participant’s beneficiary.
5
d.
All
payments to persons entitled to benefits hereunder shall be made out of the
general assets, and shall be the sole obligations, of the Companies, except to
the extent that such payments are made out of the trust described in Section 4. The Plan is a mere promise by the Companies
to pay benefits in the future and it is the intention of the parties that it be
“unfunded” for tax purposes (and for the purposes of Title I of the Employee
Retirement Income Security Act of 1974 (“ERISA”)).
e.
Unless
commenced earlier at the direction of the Committee or suspended due to a
Company’s Insolvency, payments from the trust described in Section 4 shall
be commenced by the Trustee (without the need for further instructions from the
Committee) in accordance with the most recent payment instructions provided by
the Committee after the Trustee (i) acquires actual knowledge of the occurrence
of an event that requires payment to commence (a “payment event”), (ii) is
notified by the Committee that a payment event has occurred, (iii) determines
(in the absence of actual knowledge and any notice from the Committee) that a
Change in Control has occurred as defined in Section 5.g. of this Plan, or
(iv) in the case of a participant’s termination of employment, is notified in
writing by the participant that the participant’s termination of employment has
occurred. The Trustee shall make a
determination with respect to whether a Change in Control has occurred if the
Trustee receives notice that a Change in Control may have occurred from any
source other than the Committee.
Promptly after receiving such notice of a possible Change in Control, the
Trustee shall request from the Committee all information relevant to the
Trustee’s determination. If the
Committee fails to provide information sufficient to demonstrate the absence of
a Change in Control within 30 days after the Trustee’s request, and the other
information received by the Trustee indicates that a Change in Control has
occurred, the Trustee shall commence payment of accounts (that are not payable
earlier) in the manner required upon the occurrence of a Change in Control.
f.
Payments
made by the Trustee from an account established for a participant shall be
debited against such account and shall cease when the balance credited to the
account has been reduced to zero or if earlier, when the Trustee determines,
based upon its review of the records of the Plan, that payment of any
additional amounts from the participant’s account will result in the payment of
benefits in excess of those required under the Plan. The Trustee shall have no obligation to
perform such a review and consider such a determination until after (i) the Committee
notifies the Trustee and the participant (or, if the participant has died, the
participant’s beneficiary) of the potential excess payment, (ii) the Trustee
has been provided with all Plan records that may be reasonably required by the
Trustee to make its determination, and (iii) the participant (or beneficiary)
has had a reasonable time (not less than 30 days) to respond. Pending its determination, the Trustee shall
continue payment of the affected account(s) in accordance with the applicable
payment instructions.
8.
Claims Procedures
.
a.
If
a claim for benefits made by any person (the “Applicant”) is denied, the
Committee shall furnish to the Applicant within 90 days after its receipt of
such claim (or within 180 days after such receipt if special circumstances require
an extension of time) a
6
written notice which:
(i) specifies the reasons for the denial, (ii) refers to the pertinent
provisions of the Plan on which the denial is based, (iii) describes any
additional material or information necessary for the perfection of the claim
and explains why such material or information is necessary, and (iv) explains
the claim review procedures.
b.
Upon
the written request of the Applicant submitted within 60 days after his receipt
of such written notice, the Committee shall afford the Applicant a full and
fair review of the decision denying the claim and, if so requested: (i) permit the Applicant to review any documents
which are pertinent to the claim, (ii) permit the Applicant to submit to the
Committee issues and comments in writing, and (iii) afford the Applicant an
opportunity to meet with a quorum of the Committee as a part of the review
procedure.
c.
Within
60 days after its receipt of a request for review (or within 120 days after
such receipt if special circumstances, such as the need to hold a hearing,
require an extension of time) the Committee shall notify the Applicant in
writing of its decision and the reasons for its decision and shall refer the
Applicant to the provisions of the Plan which form the basis for its decision.
9.
Miscellaneous
.
a.
Except
as limited by Section 7.c. and except that a Director shall have a
continuing power to designate a new recipient in the event of Director’s death
at any time prior to such death without the consent or approval of any person
theretofore named as Director’s recipient by an instrument meeting the
requirements of Section 7.a., this document shall be binding upon and
inure to the benefit of each Company, Director, their legal representatives,
successors and assigns, and all persons entitled to benefits hereunder.
b.
Any
notice given in connection with this document shall be in writing and shall be
delivered in person or by registered mail, return receipt requested. Any notice given by registered mail shall be
deemed to have been given upon the date of delivery indicated on the registered
mail return receipt, if correctly addressed.
c.
Nothing
in this document shall interfere with the rights of any Director to participate
or share in any profit sharing or pension plan which is now in force or which
may at some future time become a recognized plan of any Company.
d.
Nothing
in this document shall be construed as an employment agreement nor as in any way
impairing the right of any Company, its board, committees or shareholders, to
remove the Director from service as a director, to refuse to renominate or
reelect such person as a director, or to enforce the duly adopted retirement
policies of the board of directors of such Company.
e.
Amounts
that are paid more than 30 days after the later of the date on which they are
due according to the terms of this Plan or the date on which a written claim
for such amounts is received by the Committee shall incur interest at the rate
of fifteen percent per annum (eighteen percent per annum if the payment occurs
after a
7
Change in Control) from the date as of which payment
was due. In addition, if all or any
portion of the distribution is payable in the form of TCF Financial stock, and
the value of such stock at the time of distribution is less than its value on
the date as of which payment was due, the payee shall be entitled to liquidated
damages equal to 100% (120% if the payment occurs after a Change in Control) of
the aggregate difference in value between the value of the distributed shares
on the date their distribution was due (without regard to the 30-day grace
period) and the value of the distributed shares on the actual date of
distribution.
f.
Any
costs or attorneys’ fees incurred by a participant or beneficiary in connection
with the collection of benefits that were not timely paid under this Plan shall
be reimbursed by the Companies.
g.
Notwithstanding
anything in this Plan to the contrary, effective January 1, 2003, if the
beneficiary of a participant is not the participant’s spouse, the payment to
that beneficiary shall be made in the form of an immediate lump sum
distribution of the entire portion of the participant’s account payable to that
beneficiary, without regard to any outstanding installment payment election.
10.
Rule 16b-3
.
This Plan is intended to qualify for the
exemption from short swing profits liability under Section 16(b) of the
Securities Exchange Act of 1934 provided by Rule 16b-3 of the Securities and
Exchange Commission. Notwithstanding
anything in this Plan to the contrary, for a director who is subject to
liability under Section 16 of the Securities and Exchange Act of 1934, the
following special provisions apply:
a.
Any
election of Deferred Amounts of stock or fees under Section 1.b. shall be
exercised in writing by the Director and filed with the Committee no later than
the date prior to the date the stock grant is awarded or the first date on
which fees, part or all of which is to become a Deferred Amount, begin to be
earned. Deferred Amounts of fees, to the
extent they are forwarded to the Trustee, shall be so forwarded on or
immediately after the date on which the fees would otherwise be paid and shall
be deemed to be invested in TCF Stock on the same date and for the same
purchase price as the Trustee actually purchases such Stock. The Trustee shall purchase such Stock as soon
as practicable after the fees payment date for which the Deferred Amount is
received, and in any event no later than two weeks after such date, with the
exact date and purchase terms to be determined by a stock broker or other
investment professional on the basis of such person’s judgment as to the best available
purchase price for the Plan and Trust.
If Deferred Amounts are not forwarded to the Trustee, the deferred fees
shall be deemed to be invested in TCF Stock at the average of the high and low
sales prices for such Stock on the date the fees would otherwise be paid.
b.
In
the event of one or more distributions to a Director subject to this Section under
Section 5 of this Plan, all such distributions shall consist of whole
shares of TCF Stock, plus cash for any fractional share.
8
c.
In
the case of a Director subject to this Section, for purposes of an emergency
payout resulting in distribution of TCF Stock, the TCF Stock shall be
distributed in kind, plus cash for any fractional share.
11.
Registration; NYSE Listing
.
TCF Financial may, in its discretion,
register the shares of TCF Stock subject to this Plan under the Securities Act
of 1933 and any other applicable provisions of State or Federal law, and may
enter into a listing agreement for such shares with the New York Stock
Exchange, if such actions are deemed necessary or advisable by TCF Financial in
order to provide directors with freely marketable shares. However, nothing herein shall be deemed to
require any such registration or listing.
12.
Accounts in the Prior Plan
.
A Director with an account balance in the
Director Fee Deferral Plan (the “Prior Plan”) as of December 31, 1994 may
elect to have such balance invested in TCF Stock and may consent to
contributions to the Trust for such deemed investment in TCF Stock, provided
that the election is made no later than December 31, 1994 and that the
resulting investment in TCF Stock occurs no sooner than six months after such
election, if the Director is subject to reporting requirements under section 16(a)
of the Securities Exchange Act of 1934.
If a Director does not elect to transfer the Prior Plan account balance
into TCF Stock, such account balance shall continue to be deemed to be invested
in the “treasury bill rate” set forth in the Prior Plan.
13.
Termination or Amendment
.
This Plan may be amended at any time and from
time to time upon the approval of the Board of Directors of TCF Financial;
provided, however, that no amendment shall be effective unless it has the
written consent of all participants, all participants who are former Directors
but who are entitled to benefits under the Plan, and all beneficiaries of
deceased participants who are entitled to benefits under the Plan. In the event that all of the Plan’s
participants and beneficiaries do not consent to a proposed amendment, such
amendment shall not take effect but the Plan Accounts of the consenting
participants and beneficiaries shall be transferred to a separate plan that is
identical to this Plan in all respects except that it may include the proposed
amendment. The Board of Directors may
terminate this Plan in its discretion, except that any such termination shall
require the written consent of all participants, all participants who are
former Directors but who are entitled to benefits under the Plan, and all
beneficiaries of deceased participants who are entitled to benefits under the
Plan, unless it is an automatic termination of the Plan under Section 5.h.
hereof. In the event that all of the
Plan’s participants and beneficiaries do not consent to a proposed termination
of the Plan, the Plan shall terminate as to the consenting participants and
beneficiaries and shall continue in effect for the participants and
beneficiaries who do not consent.
9
APPENDIX
RE: IRS NOTICE 2000-56
Notwithstanding anything
to the contrary in the Plan or Trust, effective on and after May 16, 2001, TCF
Financial stock or other assets contributed to the Trust by TCF Financial or
any other Company for the benefit of Directors or service providers of TCF
Financial or such Company are subject to the claims of creditors (in the event
of insolvency) of both TCF Financial and such Company. In addition, such stock and assets are
subject to the claims of creditors (in the event of insolvency) of any Company
from which benefits are due to a participant or beneficiary under the terms of
the Plan. Nothing in this Appendix,
however, shall relieve any Company of its obligation to pay any benefits due
from the Company to a participant or beneficiary under the terms of the Plan.
Notwithstanding anything
to the contrary in the Plan or Trust, effective on and after May 16, 2001, any
TCF Financial stock or other assets not transferred to a Company’s Directors or
their beneficiaries will revert to TCF Financial upon termination of the Trust.
10
Exhibit 10(r)-1
01/24/05
TCF FINANCIAL CORPORATION
TCF DIRECTORS 2005 DEFERRED
COMPENSATION PLAN
(As Amended and Restated
effective as of January 24, 2005)
TCF
DIRECTORS 2005 DEFERRED COMPENSATION PLAN
(Adopted effective as of
January 6, 2005)
The TCF Directors 2005 Deferred Compensation Plan (the
“Plan”) is hereby adopted effective January 6, 2005. This Plan is intended to comply with the
requirements of Internal Revenue Code section 409A (“IRC§409A”) and regulations
issued thereunder with respect to deferrals permitted under the Plan for the
years 2005 and thereafter. A previous
plan of deferred compensation for TCF non-employee directors entitled the TCF
Directors Deferred Compensation Plan (the “Previous Plan”) was amended in
January 2005 to cease any future deferral elections. The Previous Plan
continues in effect with respect to amounts deferred under that Plan for the
years 2004 and before. The Previous Plan
is not subject to IRC §409A or regulations issued thereunder, except with
respect to any amounts that were not earned and vested, as defined under IRC
§409A, by December 31, 2004. There shall
be no duplication of benefits with respect to this Plan and the Previous Plan.
1.
Deferral of Stock or Fees
.
a.
From time to time eligible directors (“Directors”)
of TCF Financial Corporation (referred to hereinafter as “TCF Financial” or the
“Company”) may, by written notice, elect to have payment of all or a portion of
their directors’ fees for the next succeeding calendar year, and/or all or a
portion of any grant of shares of common stock of TCF Financial (“TCF Stock”)
to the Director made on or after such election deferred as hereinafter
provided. Each such deferral of fees or
TCF Stock shall be (and is hereinafter referred to as) a “Deferred Amount.” Notwithstanding the foregoing, however, a
Director may not elect to defer any portion of fees or TCF Stock unless such
Director’s deferrals with respect to such year are in round percentage
increments of 10%.
b.
Any elections with respect to Deferred Amounts of
fees or TCF Stock shall be exercised in writing by the Director prior to the
later to occur of the following:
(i) the last day before the
beginning of the calendar year in which the fees are to be earned or in which
the TCF stock award is made; or (ii) the thirtieth day following the date the
Director first becomes eligible to participate in the Plan or the Plan is first
adopted;
provided that
, an election made after the first day of a
calendar year shall only apply to fees earned after the date of the election of
TCF stock awarded after the election. An election of Deferred Amounts, once
made, is irrevocable, except as provided in Section 6 hereof. An election of
Deferred Amounts, once made, shall continue to be effective for succeeding
calendar years until revoked by the Director by written request to the
Secretary of TCF Financial prior to the
beginning of a calendar year for which fees would otherwise be deferred. Notwithstanding the foregoing, in the case
of fees or TCF stock awards which qualify as performance-based, as defined in
IRC §409A and regulations issued thereunder, a Director’s deferral election may
be made not later than six months before the end of the performance period for
such fees or award (provided the performance period is at least 12 months
long).
1
c.
Deferred Amounts shall be subject to the rules
set forth in this document, and each Director shall have the right to receive
cash payments on account of Deferred Amounts only in the amounts and under the
circumstances hereinafter set forth.
d.
Directors eligible to participate in this Plan
are non-employee Directors of TCF Financial.
Eligibility shall be determined annually as of the latest practicable
date prior to the commencement of each new calendar year. In the case of calendar year 2005,
eligibility shall be determined as of January 6, 2005. In the event a Director ceases to be eligible
for this Plan during the course of a calendar year, the Director’s eligibility
shall nevertheless continue through the end of that calendar year with respect
to fees earned prior to cessation of service.
2.
Administrative Committee
.
Full power and authority to construe,
interpret, and administer this document, shall be vested in the Administrative
Committee (the “Committee”) of the Board of Directors of TCF Financial, which
shall consist of such members of the Compensation/Nominating/Corporate
Governance Committee of the Board of Directors who qualify from time to time as
non-employee or independent directors under Rule 16b-3 of the Securities and
Exchange Commission. The Committee shall
have full power and authority to make each determination provided for in this
document, and in this connection, to promulgate such rules and regulations as
the Committee considers necessary or appropriate for the implementation and
management of this Plan as are consistent with the terms of this Plan. Notwithstanding anything in this Section 2 to
the contrary, no action or determination made or taken by the Committee, and no
action or determination by the Committee affecting the amount payable under
this Plan to a participant or beneficiary, shall be entitled to any deference
by a reviewing court (i.e., judicial review of any such actions or
determinations shall be de novo).
3.
Deferred Compensation Accounts
.
The Company shall establish on its books a
separate account (“Account”) for each of its Directors who becomes a
participant in this Plan, and each such Account shall be maintained as follows:
a.
Each Account shall be credited with the Deferred
Amounts elected by the Director for whom such Account is established as of the
date on which such Deferred Amount would otherwise have been paid to the
Director.
b.
The value of a Director’s Account is to be
measured by the value of and income from TCF Stock (included dividends, which
are deemed to be reinvested in TCF Stock), in which all Deferred Amounts shall
be deemed to be invested, however such value is merely a measuring device to
determine the payments to be made to each Director hereunder. Each Director, and each other recipient of a
Director’s Deferred Amounts pursuant to Section 7, shall be and remain an
unsecured general creditor of the Company with respect to any payments due and
owing to such Director hereunder. If a
Company should from time to time, in its discretion, IRC409Aually purchase the
investments deemed to have been made for a Director’s Account, either directly
or through the trust described in Section 4, such investments shall be solely
for the Company’s or such trust’s own account, and the Directors shall have no
right, title or interest therein.
2
4.
Trust
.
TCF Financial has established a trust (of the
type commonly known as a “rabbi trust”) to aid in the accumulation of assets
for payment of Deferred Amounts. This trust may also provide for the
accumulation of assets for payment of amounts deferred under the Previous Plan.
The trust provides for separate accounts in the name of each Director who has
elected a Deferred Amount under this Plan or under the Previous Plan. The
Company shall contribute to the trust such amounts as are necessary to keep the
separate accounts maintained for the Directors sufficient at all times to pay
in full all benefits payable under the Plan with respect to the Directors,
including, without limitation, any liquidated damages payable to the Directors
pursuant to Section 9.f. In addition:
a.
TCF Financial may, in its sole discretion,
contribute additional amounts, which TCF Financial may direct the Trustee not
to credit to an account for any Director, but instead to a general account for
the payment of Plan expenses; and
b.
within ten (10) business days following the
occurrence of a Change in Control, the Companies shall contribute an amount
equal to 300% of the aggregate expenses incurred by the Companies and the
Trustee in administering the Plan and the trust described in this Section 4
during the last full calendar year immediately preceding the occurrence of the
Change in Control, which amount shall also be credited to a general account for
the payment of Plan expenses. If the
aggregate expenses that were incurred by the Companies and the Trustee in
administering the Plan and the trust during the last full calendar year
immediately preceding the occurrence of the Change in Control cannot be
determined with reasonable certainty prior to the date on which this
contribution is due, the amount of the contribution shall be $150,000.
The assets of the trust shall be invested in accordance with the
provisions of the agreement or agreements pursuant to which the trust is
maintained, which agreement(s) shall be consistent with the terms of this
Plan. The trustee of the trust (“Trustee”)
shall be a corporate trustee independent of the Company. The trust assets shall remain subject to the
claims of the Companies’ general creditors.
5.
P
ayment
of Deferred Amounts
.
a.
On or about the 30
th
day following a
Director’s termination of service on the board of directors of the Company, the
balance credited to the Director’s Account shall be paid in one single
distribution.
b.
The payment under Section 5.a. shall be paid in
the form of TCF Stock, plus cash for any fractional shares.
c.
For purposes of this section, a Director’s service
on the board is considered to terminate as of the date which is the Director’s
last date of service for the Company as a director.
d.
In the event the payment under Secton 5.a is
unpaid at the time of a Director’s death, the payment shall be made as soon as
practicable to the persons specified in Section 7.a.
3
e.
For purposes of this Plan, a Change in Control
shall be deemed to have occurred if (i) 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 (for purposes of this clause (i), the term “beneficial
owner” does not include any employee benefit plan maintained by TCF Financial
that invests in TCF Financial’s voting securities); or (ii) during any period
of two (2) consecutive years there shall cease to be a majority of the Board
comprised as follows: individuals who at the beginning of such period
constitute the Board or new directors whose nomination for election by the
company’s shareholders 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 (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) at least 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 a Change in Control, for purposes
of this Plan, is the date on which the Change in Control is consummated. Notwithstanding the foregoing, however, a
Change in Control shall not be deemed to occur unless the event qualifies as a
change in control as defined in regulations issued pursuant to IRC § 409A.
f.
Subject to being permissible under IRC § 409A
and regulations issued thereunder, notwithstanding any other provision of this
Section 5, in the event that the Internal Revenue Service should finally
determine that part or all of the value of a Director’s Deferred Amounts or
Plan Account which have not actually been distributed to the Director, or that
part or all of a separate account that has been established for the Director
under a trust described in Section 4, is nevertheless required to be included
in the Director’s gross income for federal and/or State income tax purposes,
then the Deferred Amounts or the Account or the part thereof that was
determined to be includible in gross income shall be distributed to the
Director in a lump sum distribution in the form of TCF Stock as soon as
practicable after such determination without any action or approval by the
Committee. A “final determination” of
the Internal Revenue Service for purposes of this Section 5.f. is a
determination in writing by said Service ordering the payment of additional
tax, reporting of additional gross income or otherwise requiring Plan amounts
to be included in gross income, which is not appealable or which the Director
does not appeal within the time prescribed for appeals.
6.
Emergency Payments
.
In the event of an “unforeseeable emergency”
as determined pursuant to IRC § 409A and regulations issued thereunder, the
Committee may
4
determine the shares distributable under Section 5 hereof and
distribute all or a part of such shares without regard to the distribution
dates provided in Section 5 to the extent the Committee determines that such
action is necessary in light of immediate and heavy needs of the Director
occasioned by severe financial hardship and that such action is permissible
under IRC § 409A and regulations issued thereunder.
7.
Method of Payments
.
a.
In the event of Director’s death, payments shall
be made to the persons (including a trustee or trustees) named in the last
written instrument signed by Director and received by the Committee prior to
Director’s death, or if Director fails to so name any person, the amounts shall
be paid to Director’s estate or the appropriate distributee thereof. The Committee, the Company, and the Trustee
shall be fully protected in making any payments due hereunder in accordance
with what the Committee believes to be such last written instrument received by
it.
b.
Payments due to a legally incompetent person may
be made in such of the following ways as the Committee shall determine:
i.
directly to such incompetent person,
ii.
to the legal representative of such incompetent
person, or
iii.
to some near relative of the incompetent person to
be used for the latter’s benefit.
c.
Except as otherwise provided in Sections 7.a. and b., all payments to persons
entitled to benefits hereunder shall be made to such persons in person or upon
their personal receipt or endorsement, and shall not be subject in any manner
to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment by creditors of the participant or the participant’s
beneficiary.
d.
All payments to persons entitled to benefits
hereunder shall be made out of the general assets, and shall be the sole
obligations, of the Companies, except to the extent that such payments are made
out of the trust described in Section 4.
The Plan is a mere promise by the Companies to pay benefits in the
future and it is the intention of the parties that it be “unfunded” for tax
purposes (and for the purposes of Title I of the Employee Retirement Income
Security Act of 1974 (“ERISA”)).
e.
Unless commenced earlier at the direction of the
Committee or suspended due to a Company’s Insolvency, payments from the trust
described in Section 4 shall be commenced by the Trustee (without the need for
further instructions from the Committee) in accordance with the most recent
payment instructions provided by the Committee after the Trustee (i) acquires
actual knowledge of the occurrence of an event that requires payment to
commence (a “payment event”), (ii) is notified by the Committee that a payment
event has occurred, (iii) determines (in the absence of actual knowledge and
any notice from the Committee) that a Change in Control has occurred as defined
in Section 5.e of this Plan, or (iv) in the case of a participant’s termination
of
5
service,
is notified in writing by the participant that the participant’s termination of
service has occurred. The Trustee shall
make a determination with respect to whether a Change in Control has occurred
if the Trustee receives notice that a Change in Control may have occurred from
any source other than the Committee.
Promptly after receiving such notice of a possible Change in Control,
the Trustee shall request from the Committee all information relevant to the
Trustee’s determination. If the
Committee fails to provide information sufficient to demonstrate the absence of
a Change in Control within 30 days after the Trustee’s request, and the other
information received by the Trustee indicates that a Change in Control has
occurred, the Trustee shall make distribution of accounts (that are not payable
earlier) in a single distribution in the form of TCF stock as soon as
practicable within 30 days after a Change in Control.
f.
Payments made by the Trustee from an account
established for a participant shall be debited against such account and shall
cease when the balance credited to the account has been reduced to zero or if
earlier, when the Trustee determines, based upon its review of the records of
the Plan, that payment of any additional amounts from the participant’s account
will result in the payment of benefits in excess of those required under the
Plan. The Trustee shall have no
obligation to perform such a review and consider such a determination until
after (i) the Committee notifies the Trustee and the participant (or, if the
participant has died, the participant’s beneficiary) of the potential excess
payment, (ii) the Trustee has been provided with all Plan records that may be
reasonably required by the Trustee to make its determination, and (iii) the
participant (or beneficiary) has had a reasonable time (not less than 30 days)
to respond. Pending its determination,
the Trustee shall continue payment of the affected account(s) in accordance
with the applicable payment instructions.
8.
Claims Procedures.
a.
If a claim for benefits made by any person (the “Applicant”)
is denied, the Committee shall furnish to the Applicant within 90 days after
its receipt of such claim (or within 180 days after such receipt if special
circumstances require an extension of time) a written notice which: (i) specifies the reasons for the denial,
(ii) refers to the pertinent provisions of the Plan on which the denial is
based, (iii) describes any additional material or information necessary for the
perfection of the claim and explains why such material or information is
necessary, and (iv) explains the claim review procedures.
b.
Upon the written request of the Applicant
submitted within 60 days after his receipt of such written notice, the
Committee shall afford the Applicant a full and fair review of the decision
denying the claim and, if so requested:
(i) permit the Applicant to review any documents which are pertinent to
the claim, (ii) permit the Applicant to submit to the Committee issues and
comments in writing, and (iii) afford the Applicant an opportunity to meet with
a quorum of the Committee as a part of the review procedure.
c.
Within 60 days after its receipt of a request for
review (or within 120 days after such receipt if special circumstances, such as
the need to hold a hearing, require an extension of time) the Committee shall
notify the Applicant in writing of its decision and
6
the
reasons for its decision and shall refer the Applicant to the provisions of the
Plan which form the basis for its decision.
9.
Miscellaneous
.
a.
Except as limited by Section 7.c. and except that
a Director shall have a continuing power to designate a new recipient in the
event of Director’s death at any time prior to such death without the consent
or approval of any person theretofore named as Director’s recipient by an
instrument meeting the requirements of Section 7.a., this document shall be
binding upon and inure to the benefit of each Company, Director, their legal
representatives, successors and assigns, and all persons entitled to benefits
hereunder.
b.
Any notice given in connection with this document
shall be in writing and shall be delivered in person or by registered mail,
return receipt requested. Any notice
given by registered mail shall be deemed to have been given upon the date of delivery
indicated on the registered mail return receipt, if correctly addressed.
c.
Nothing in this document shall interfere with the
rights of any Director to participate or share in any profit sharing or pension
plan which is now in force or which may at some future time become a recognized
plan of any Company.
d.
Nothing in this document shall be construed as an
employment agreement nor as in any way impairing the right of any Company, its
board, committees or shareholders, to remove the Director from service as a
director, to refuse to renominate or reelect such person as a director, or to
enforce the duly adopted retirement policies of the board of directors of such
Company.
e.
Amounts that due to administrative error are paid
more than 30 days after the later of the date on which they are due according
to the terms of this Plan or the date on which the Participant notified the
Company in writing of the benefit due date shall incur interest at the rate of
fifteen percent per annum (eighteen percent per annum if the payment occurs
after a Change in Control) from the date as of which payment was due. In addition, if all or any portion of the
distribution is payable in the form of TCF Financial stock, and the value of
such stock at the time of distribution is less than its value on the date as of
which payment was due, the payee shall be entitled to liquidated damages equal
to 100% (120% if the payment occurs after a Change in Control) of the aggregate
difference in value between the value of the distributed shares on the date
their distribution was due (without regard to the 30-day grace period) and the
value of the distributed shares on the actual date of distribution.
f.
Any costs or attorneys’ fees incurred by a
participant or beneficiary in connection with the collection of benefits that were
not timely paid under this Plan shall be reimbursed by the Company.
10.
Rule 16b-3
.
This Plan is intended to qualify for the
exemption from short swing profits liability under Section 16(b) of the
Securities Exchange IRC409A of 1934 provided by Rule 16b-3 of the Securities
and Exchange Commission. Notwithstanding
anything in this Plan
7
to the contrary, for a director who is subject to liability under
Section 16 of the Securities and Exchange IRC409A of 1934, the following
special provisions apply:
a.
Deferred Amounts of fees, to the extent they are
forwarded to the Trustee, shall be so forwarded on or immediately after the
date on which the fees would otherwise be paid and shall be deemed to be invested
in TCF Stock on the same date and for the same purchase price as the Trustee
actually purchases such Stock. Dividends
deemed to be paid on accounts deemed to be invested in TCF stock shall be
deemed to be invested in TCF stock on the same date and for the same purchase
price as the Trustee actually reinvests such dividends. The Trustee shall
purchase such Stock as soon as practicable after the fees payment date for
which the Deferred Amount is received, and in any event no later than two weeks
after such date, with the exact date and purchase terms to be determined by a
stock broker or other investment professional on the basis of such person’s
judgment as to the best available purchase price for the Plan and Trust. If Deferred Amounts are not promptly invested
in TCF stock, the deferred fees shall be deemed to be invested in TCF Stock at
the average of the high and low sales prices for such Stock on the date the
fees would otherwise be paid or on the date the dividend is paid.
b.
In the event of a distribution to a Director
subject to this Section under Section 5 of this Plan, such distribution shall
consist of whole shares of TCF Stock, plus cash for any fractional share.
c.
In the case of a Director subject to this
Section, for purposes of an emergency payout resulting in distribution of TCF
Stock, the TCF Stock shall be distributed in kind, plus cash for any fractional
share.
11.
Registration; NYSE Listing
.
TCF Financial may, in its discretion,
register the shares of TCF Stock subject to this Plan under the Securities Act
of 1933 and any other applicable provisions of State or Federal law, and may
enter into a listing agreement for such shares with the New York Stock
Exchange, if such actions are deemed necessary or advisable by TCF Financial in
order to provide directors with freely marketable shares. However, nothing herein shall be deemed to
require any such registration or listing.
12.
Termination or Amendment
.
This Plan may be amended at any time and from
time to time upon the approval of the Board of Directors of TCF Financial or
the Committee; provided, however, that no amendment shall be effective unless
it has the written consent of all participants, all participants who are former
Directors but who are entitled to benefits under the Plan, and all
beneficiaries of deceased participants who are entitled to benefits under the
Plan. In the event that all of the Plan’s
participants and beneficiaries do not consent to a proposed amendment, such
amendment shall not take effect but the Plan Accounts of the consenting
participants and beneficiaries shall be transferred to a separate plan that is
identical to this Plan in all respects except that it may include the proposed
amendment. The Board of Directors or the
Administrative Committee may terminate this Plan in its discretion, except that
any such termination shall require the written consent of all participants, all
participants who are former Directors but who are entitled to benefits under
the Plan, and all beneficiaries of deceased participants who are entitled to
benefits under the Plan, unless it is an automatic distribution of a
8
Director’s account under Section 5.f. hereof. In the event that all of the Plan’s
participants and beneficiaries do not consent to a proposed termination of the
Plan, the Plan shall terminate as to the consenting participants and
beneficiaries and shall continue in effect for the participants and
beneficiaries who do not consent.
Distributions shall be made to participants and beneficiaries after such
termination if authorized and directed by the Administrative Committee, but
only to the extent permitted by IRC § 409A and regulations issued
thereunder. The Board of Directors or
the Administrative Committee may at any time discontinue future participation
in the Plan by any or all participants.
9
Exhibit
10(u)
01-24-05
TCF Financial Corporation
SUPPLEMENTAL EMPLOYEE RETIREMENT PLAN
FOR TCF CASH BALANCE PENSION PLAN
(As Amended and Restated through January 24, 2005)
I.
Purpose
of Plan; Effect of Restatement; Status of Plan.
The
purpose of this Plan is to provide Eligible Employees with supplemental
retirement benefits as set forth herein to remedy certain limitations or
reductions in benefits under the IRC, as set forth herein, to such Employees
under the TCF Cash Balance Pension Plan ( the “TCF Pension Plan”) This Plan was
originally effective as of October 1, 1988. From October 1, 1988
through July 19, 2004, the supplemental benefits provided by this Plan
relating to the TCF Pension Plan and the TCF Employees Stock Purchase Plan (“ESPP
Plan”) were provided under one plan document.
Effective starting July 19, 2004, the supplemental benefits
provided by this Plan relative to the TCF Pension Plan are set forth in this
document and the supplemental benefits provided by this Plan relative to the
ESPP Plan are set forth in a separate
document.
Notwithstanding
any other provision of this Plan, as a result of the enactment of IRC § 409A
in October 2004 benefits under this Plan were limited by amendments
adopted in January 2005 to those due on Covered Compensation earned in the
years 2004 or earlier. New employer or
employee contributions to this Plan ceased starting with compensation earned in
the calendar year 2005. Benefits due
under this Plan with respect to Covered Compensation earned in 2004 but not
earned and vested as of December 31, 2004 are subject to Article X of
this Plan.
This
Plan is also intended to be a plan, program, or arrangement under 4 U.S.C. section 114
(the “State Taxation of Pension Income Act of 1995”) maintained solely for the
purpose of providing retirement benefits for employees in excess of the
limitations imposed by one or more of IRC sections 401(a)(17), 401(k), 401(m),
402(g), or 415 or any other limitation on contributions or benefits in the IRC
on qualified plans such as the TCF Pension Plan.
II.
Definitions
(a)
Committee
.
The Compensation Committee of the Board
of Directors of TCF Financial Corporation (“TCF Financial”).
(b)
Eligible Employee
.
Employees of TCF Financial, or any of its
direct or indirect subsidiaries, are eligible for this Plan if they are
eligible to participate in either the TCF Financial Executive Deferred
Compensation Plan or the TCF Financial Senior Officer Deferred Compensation
Plan. Notwithstanding the foregoing, no Employee shall be eligible for benefits
under this Plan unless the Employee is also a Participant and Qualified
Employee in the TCF Pension Plan and individuals who become employees of
1
an
Employer as a result of a merger or acquisition shall not be Eligible Employees
under this Plan unless and until TCF Financial has adopted a resolution
identifying them as Eligible Employees.
(c)
ESPP Plan
.
The “ESPP Plan” is the TCF Employees’ Stock
Purchase Plan, as amended from time to time.
(d)
TCF Pension Plan
.
The “TCF Pension Plan” is the TCF Cash
Balance Pension Plan as amended from time to time.
(e)
IRC
.
The “IRC” is the Internal Revenue Code of
1986, as amended.
(f) [Reserved.]
(g)
Covered Compensation
.
“Covered Compensation” is any “Certified
Earnings” as defined in the TCF Pension Plan paid to an Eligible Employee by
the Employer in any calendar year (disregarding any limit on Certified Earnings
under IRC § 401(a)(17)), plus any amounts which would have been “Certified
Earnings” (disregarding any limit on Certified Earnings under IRC § 401(a)(17))
in such calendar year except that such Employee elected to defer such amounts
under this Plan or any other tax-qualified or non-tax qualified plan of
deferred compensation maintained by an Employer.
(h)
TCF Financial
.
“TCF Financial” is TCF Financial Corporation,
a Delaware Corporation.
(i)
Employer
.
“Employer” is TCF Financial, or any of its
direct or indirect subsidiary companies which is the employer of an Eligible
Employee under this Plan.
III.
[Reserved.]
IV.
Supplemental
Benefits related to the TCF Pension Plan
.
(a) Benefits.
With respect to
benefits accrued under the TCF Cash Balance Pension Plan on and after September 1,
1990, the supplemental pension benefit under this Plan shall be equal to an
Account Balance which is 0 on September 1, 1990, and thereafter is
increased each month by the difference between the pay credit provided to the
Eligible Employee for such month under the TCF Pension Plan and the amount such
Employee would have received as a pay credit for such month in the absence of
the Restrictions defined in subsection (b) below,
provided that no
credit shall be provided under this Plan for any Covered Compensation earned in
2005 or later
. The eligible Employee’s Account Balance shall also be
increased each month by the interest factor applicable to account balances
under Section 4.6 of the TCF Pension Plan as of said month.
2
Effective
July 1, 2004, the Pension Plan was amended to prohibit any employees hired
on or after that date from becoming Participants in that Plan and to prohibit
employees rehired on or after that date from accruing any additional Pay
Credits under that Plan. Accordingly:
(I) an employee first hired by a TCF Participating Employer or Affiliate on or
after July 1, 2004 shall not be entitled to any supplemental benefits from
this SERP relating to the TCF Pension Plan;
(II) an employee rehired by a TCF Participating Employer or an Affiliate
on or after July 1, 2004 shall not accrue any additional supplemental Pay
Credits from this SERP relating to the TCF Pension Plan based on employment
service after such rehiring; and (III) an employee employed by a Participating
Employer on June 30, 2004 shall
continue to receive supplemental Pay Credits under this SERP relating to
the Pension Plan under the provisions of this sub-paragraph (ii), which shall
be and remain in full force and effect.
(b)
“Restrictions”
means:
(i) limitations on benefits provided in Internal
Revenue Code §415 (currently generally $165,000 in annual benefits);
(ii) limitations of Covered Compensation under the
TCF Pension Plan to the dollar limits
provided in Internal Revenue Code § 401(a)(17) (currently $205,000);
and
(iii) limitations on Covered Compensation occurring
as a result of other provisions of the IRC.
For purposes of this sub-paragraph (iii), a limitation on Covered
Compensation shall be deemed to occur with respect to any amounts which are
deferred under the TCF Financial Executive Deferred Compensation Plan or the
TCF Financial Senior Officer Deferred Compensation Plan, and which are excluded
from Covered Compensation under the TCF Pension Plan as a result of the
Internal Revenue Code. This Plan provision is deemed to be substantially
similar to the TCF Pension Plan provision which treats Employee’s elective
deposits to the ESPP Plan as Covered Compensation under that Plan.
(c)
Payment of Benefits
. Unless an Eligible Employee has made an
election described in the following paragraph, the Eligible Employee’s
supplemental pension benefit under this Section IV shall be paid in a lump
sum no later than 30 days after the Eligible Employee’s termination of
employment. For purposes of this
paragraph (c), a termination of employment shall not be deemed to occur upon a
transfer of employment between two or more Employers.
An Eligible Employee may
elect to have benefits from this Article IV distributed in one of the
following forms, provided that such election is in writing and is executed and
delivered to TCF Financial, or to its Corporate Secretary (or designee) on
behalf of TCF Financial, no later than one year (365 days) before such Eligible
Employee’s termination of employment: (i) distribution in five annual
installments, (ii) distribution in ten annual installments, or (iii)
distribution of $10,000.00 annually until all of the Eligible Employee’s
benefits from this Article IV have been distributed. Installment payments shall commence no later
than the 15th day of the first calendar
3
quarter immediately
following the Eligible Employee’s termination of employment, with succeeding
installments paid on or about each February 15th thereafter. The amount of each installment under (i) and
(ii) shall be determined by dividing the undistributed portion of the Eligible
Employee’s benefit under this Article IV by the number of installments
remaining to be paid, including the current installment. For the purposes of determining the amount of
each installment under (i) and (ii) and for the purpose of determining when an
Eligible Employee’s benefit has been fully distributed, the undistributed
portion of an Eligible
Employee’s
benefit under this Article IV shall include interest thereon at the rate
determined under Section IV(a)(ii), commencing on the date such benefit
would otherwise have been distributed in a lump sum.
If the Eligible Employee
is deceased, the distribution shall be payable to the beneficiary or survivor
of the Eligible Employee in the form payable to the Eligible Employee
hereunder.
Notwithstanding the
foregoing, if the lump sum value of an Eligible Employee’s benefit under this Article IV
is less than $15,000.00 at the time of the Eligible Employee’s termination of
employment, then such amount shall be distributed to the Eligible Employee in a
lump sum payment no later than 30 days after the Eligible Employee’s
termination of employment.
Also
notwithstanding the foregoing, benefits due under this Plan with respect to
Covered Compensation earned in 2004 but not earned and vested as of December 31,
2004 are subject to Article X of this Plan.
V.
Committee
.
The
Committee shall have full power to construe, interpret and administer this
Plan, including to make any determination required under this Plan and to make
such rules and regulations as it deems advisable for the operation of this
Plan. The Committee shall have sole and
absolute discretion in the performance of their powers and duties under this
Plan. A majority of the Committee shall constitute a quorum. Actions of the
Committee shall be by a majority of persons constituting a quorum and eligible
to vote on an issue. Meetings may be
held in person or by telephone. Action
by the Committee may be taken in writing without a meeting provided such action
is executed by all members of the Committee.
To the extent it is feasible to do so, determinations, rules and
regulations of the Committee under this Plan shall be consistent with similar
determinations, rules and regulations of the TCF Pension Plan. All
determinations of the Committee shall be final, conclusive and binding unless
found by a court of competent jurisdiction to have been arbitrary and
capricious. The Committee shall have authority to designate officers of TCF
Financial and to delegate authority to such officers to receive documents which
are required to be filed with the Committee, to execute and provide directions
to the Trustee and other administrators, and to do such other actions as the
Committee may specify on its behalf, and any such actions undertaken by such
officers shall be deemed to have the same authority and effect as if done by
the Committee itself.
4
VI
Benefits
Unfunded
.
The
rights of beneficiaries, survivors and participants to benefits from this Plan
are solely as unsecured creditors of the Employer. Benefits payable under this Plan shall be
payable from the general assets of the
Employer and there shall be no trust fund or other assets secured for the
payment of such benefits. In its
discretion, the Employer may purchase or set aside assets, including annuity
policies or through use of a grantor trust, to provide for the payment of
benefits hereunder but such assets shall in all cases remain assets of the
Employer and subject to the claims of the Employer’s creditors. This Plan
constitutes a mere promise by the Employers to make benefit payments in the
future, and it is intended to be unfunded for tax purposes and for purposes of
Title I of ERISA.
VII.
Beneficiaries
and Survivors
.
An
Eligible Employee’s beneficiary or survivor under Article IV of this Plan
shall be the same as the person(s) designated as such pursuant to or under the
provisions of the TCF Pension Plan, unless the Employee has designated in
writing and filed with the Committee a different beneficiary for this Plan.
VIII.
Plan
Administrator, Amendments, Claims Procedure
The
Plan Administrator of this Plan is the Committee, which shall have full power
to amend this Plan from time to time, or to terminate this Plan, except that no
such amendment or termination shall deprive an Eligible Employee or beneficiary
or survivor thereof of any benefits accrued under this Plan prior to such
amendment or termination without the written consent of such Eligible Employee,
or if deceased, the beneficiary or survivor thereof.
If an Eligible Employee,
or beneficiary or survivor thereof, wishes to make a claim for benefits or
disagrees with a determination of the Committee, such person may file a claim
and make such appeals as are permitted under the TCF Pension Plan. The claims
shall then be processed as provided for claims under the TCF Pension Plan,
except that all determinations which would be made by the “Company” under such
Plans shall be made by the Committee instead.
IX.
Miscellaneous
.
(a) Notices under this Plan to the Employer, TCF
Financial or the Committee shall be sent by Certified Mail, Return Receipt
Requested to: Compensation Committee,
TCF Financial Corporation, c/o General Counsel for Corporate Affairs, TCF
Financial Corporation, 200 Lake Street East, Wayzata, MN 55391.
Notices under this Plan to Eligible Employees or their beneficiaries or
survivors shall be sent by Certified Mail to the last known address for such
person(s) on the books and records of the Employer, by Certified Mail.
(b) Nothing in this Plan shall change an Eligible
Employee’s status to anything other than an employee “at will” or otherwise
enlarge or modify such Employee’s employment rights or benefits other than as
provided herein.
5
(c) Nothing in this Plan shall abridge an
Eligible Employee’s rights, or such Employee’s beneficiary’s or survivor’s
rights, of participation in the TCF Pension Plan.
(d) Expenses of administering the Plan shall be
borne by the Employers in proportion to their share of Eligible Employees in
this Plan.
(e) An Eligible Employee’s benefits under this
Plan may not be assigned, transferred, pledged or otherwise hypothecated by
said Employee or the beneficiary or survivor thereof.
X.
Special
Rules for Amounts Not Earned and Vested as of December 31, 2004
Notwithstanding anything in the Plan to the contrary, during the
calendar year 2005 TCF Financial may offer some or all Employees one or more
elections, as TCF Financial may determine in its discretion, to cancel or
revoke an election previously made under this Plan to treat any amounts as SERP
Employee Contributions for the year 2004 which were not earned and vested as of
December 31, 2004 (as determined under section 409A of the IRC as
added by the American Jobs Creation Act of 2004), and to have such amounts
treated as current income in 2005, under such rules and procedures as the
Company may determine for the elections which are consistent with the
requirements of IRC § 409A.
Notwithstanding anything
in the Plan to the contrary, with respect to any amounts treated as SERP
Employee Contributions under the Plan on or before December 31, 2004, but
which were not earned and vested (as defined under IRC § 409A) on that
date, such amounts shall be separately accounted for under the Plan and shall
be distributed to the Participant in a lump sum form of distribution no sooner
than six months after the earliest to occur of the following: such Participant’s
termination of employment, the termination of the Plan (to the extent IRC § 409A
permits distributions on Plan termination), or any other distribution event
under the Plan which is a permitted distribution event under IRC § 409A.
This Article X is
not intended to add any options or enhancements to the Plan nor to in any other
way constitute a “material modification” (as defined in IRC § 409A and in
regulations issued thereunder) to the Plan.
Any and all interpretations of this Article X shall be construed
consistent with this intent. The Plan continues in effect with respect to
amounts deferred under the Plan for the years 2004 and before. The Plan is not subject to IRC § 409A or
regulations issued thereunder except with respect to any amounts that were not
earned and vested, as defined pursuant to IRC § 409A, by December 31,
2004.
APPENDIX A
(Reserved)
APPENDIX B
(Reserved)
6
Exhibit
10(u)-1
01-24-05
TCF Financial Corporation
2005 CASH BALANCE PENSION PLAN SERP
(As Adopted effective January 1, 2005)
I.
Purpose of Plan; Effective Date of Plan; Effect of
Previous SERP Plan.
The purpose of this Plan
is to provide Eligible Employees with supplemental retirement benefits as set
forth herein to remedy certain limitations or reductions in benefits under the
IRC, as set forth herein, to such Employees under the TCF Cash Balance Pension
Plan (“Cash Balance Plan”). This Plan is
effective for benefits based on Covered Compensation earned in calendar year
2005 and thereafter. A previous plan,
the Supplemental Employee Retirement Plan – Cash Balance Plan (the “Previous
SERP Plan”) was in effect for benefits based on Covered Compensation earned in
calendar year 2004 and before and it is not terminated or superseded by this
Plan, but remains in effect for benefits accrued under it before the adoption
of this Plan. In no event shall any
benefits be due under both this Plan and the Previous SERP Plan with respect to
the same Covered Compensation and there shall be no duplication of benefits
between this Plan and the Previous SERP Plan.
This Plan is also
intended to be a plan, program, or arrangement under 4 U.S.C. section 114
(the “State Taxation of Pension Income Act of 1995”) maintained solely for the
purpose of providing retirement benefits for employees in excess of the
limitations imposed by one or more of IRC sections 401(a)(17), 401(k), 401(m),
402(g), or 415 or any other limitation on contributions or benefits in the IRC
on qualified plans such as the TCF Pension Plan.
II.
Definitions
(a)
Committee
.
The Compensation Committee of the Board
of Directors of TCF Financial Corporation (“TCF Financial”).
(b)
Eligible Employee
.
Employees of TCF Financial, or any of its
direct or indirect subsidiaries, are eligible for this Plan if they are
eligible to participate in either the TCF Financial Executive Deferred
Compensation Plan or the TCF Financial Senior Officer Deferred Compensation
Plan. Notwithstanding the foregoing, no Employee shall be eligible for benefits
under this Plan unless the Employee is also a Participant and Qualified
Employee in the TCF Pension Plan and individuals who become employees of an
Employer as a result of a merger or acquisition shall not be Eligible Employees
under this Plan unless and until TCF Financial has adopted a resolution
identifying them as Eligible Employees.
(c)
ESPP Plan
.
The “ESPP Plan” is the TCF Employees’ Stock
Purchase Plan, as amended from time to time.
1
(d)
TCF Pension Plan
.
The “TCF Pension Plan” is the TCF Cash
Balance Pension Plan as amended from time to time.
(e)
IRC
.
The “IRC” is the Internal Revenue Code of
1986, as amended.
(f) [Reserved.]
(g)
Covered Compensation
.
“Covered Compensation” is any “Certified
Earnings” as defined in the TCF Pension Plan paid to an Eligible Employee by
the Employer in any calendar year (disregarding any limit on Certified Earnings
under IRC § 401(a)(17)), plus any amounts which would have been “Certified
Earnings” (disregarding any limit on Certified Earnings under IRC § 401(a)(17))
in such calendar year except that such Employee elected to defer such amounts
under this Plan or any other tax-qualified or non-tax qualified plan of
deferred compensation maintained by an Employer.
(h)
TCF Financial
.
“TCF Financial” is TCF Financial Corporation,
a Delaware Corporation.
(i)
Employer
.
“Employer” is TCF Financial, or any of its
direct or indirect subsidiary companies which is the employer of an Eligible
Employee under this Plan.
(j)
Retirement.
“Retirement” is a termination of employment
with an Employer on or after the Employee has attained age 55 and has completed
ten years of vesting service as defined in the TCF Pension Plan.
III.
[Reserved.]
IV.
Supplemental
Benefits related to the TCF Pension Plan
.
(a)
Benefits.
The supplemental pension benefit under this Plan shall be
equal to an Account Balance which is 0 on January 1, 2005, and thereafter
is increased each month by the difference between the pay credit provided to
the Eligible Employee for such month under the TCF Pension Plan and the amount
such Employee would have received as a pay credit for such month in the absence
of the Restrictions defined in subsection (b) below. The eligible Employee’s Account Balance shall
also be increased each month by the interest factor applicable to account
balances under Section 4.6 of the TCF Pension Plan as of said month.
Effective
July 1, 2004, the Pension Plan was amended to prohibit any employees hired
on or after that date from becoming Participants in that Plan and to prohibit
employees rehired on or after that date from accruing any additional Pay
Credits under that Plan. Accordingly:
(I) an employee first hired by a TCF Participating Employer or Affiliate on
2
or
after July 1, 2004 shall not be entitled to any supplemental benefits from
this SERP Plan (II) an employee rehired by a TCF Participating Employer or an
Affiliate on or after July 1, 2004 shall not accrue any additional
supplemental Pay Credits from this SERP relating to the TCF Pension Plan based
on employment service after such rehiring; and (III) an employee employed by a
Participating Employer on June 30, 2004 shall receive supplemental Pay
Credits under this SERP Plan provided as the beginning of this section (a).
(b) “Restrictions”
means:
(i) limitations on benefits provided in Internal
Revenue Code §415 (currently generally $165,000 in annual benefits);
(ii) limitations of Covered Compensation under the
TCF Pension Plan to the dollar limits
provided in Internal Revenue Code § 401(a)(17) (currently
$205,000); and
(iii) limitations on Covered Compensation occurring
as a result of other provisions of the IRC.
For purposes of this sub-paragraph (iii), a limitation on Covered
Compensation shall be deemed to occur with respect to any amounts which are
deferred under the TCF Financial Executive Deferred Compensation Plan or the
TCF Financial Senior Officer Deferred Compensation Plan, and which are excluded
from Covered Compensation under the TCF Pension Plan as a result of the
Internal Revenue Code. This Plan provision is deemed to be substantially
similar to the TCF Pension Plan provision which treats Employee’s elective
deposits to the ESPP Plan as Covered Compensation under that Plan.
(c)
Payment of Benefits
. An Eligible Employee shall receive a lump sum
distribution in the form of cash equal to the then-current value of such
Employee’s account in this Plan (less applicable withholding) six months after
the Employee’s termination of employment (including termination of employment
as a result of death while actively employed) with the Employer. For purposes of the foregoing sentence, a
termination of employment shall not be deemed to occur upon a transfer of
employment between two or more Employers.
All
distributions to an Eligible Employee, beneficiary or survivor under this Article III
shall be in the form of cash.
V.
Committee
.
The
Committee shall have full power to construe, interpret and administer this
Plan, including to make any determination required under this Plan and to make
such rules and regulations as it deems advisable for the operation of this
Plan. The Committee shall have sole and
absolute discretion in the performance of their powers and duties under this
Plan. A majority
3
of the Committee shall
constitute a quorum. Actions of the Committee shall be by a majority of persons
constituting a quorum and eligible to vote on an issue. Meetings may be held in person or by
telephone. Action by the Committee may
be taken in writing without a meeting provided such action is executed by all
members of the Committee. To the extent
it is feasible to do so, determinations, rules and regulations of the Committee
under this Plan shall be consistent with similar determinations, rules and
regulations of the TCF Pension Plan. All determinations of the Committee shall
be final, conclusive and binding unless found by a court of competent
jurisdiction to have been arbitrary and capricious. The Committee shall have
authority to designate officers of TCF Financial and to delegate authority to
such officers to receive documents which are required to be filed with the
Committee, to execute and provide directions to the Trustee and other
administrators, and to do such other actions as the Committee may specify on
its behalf, and any such actions undertaken by such officers shall be deemed to
have the same authority and effect as if done by the Committee itself.
VI
Benefits
Unfunded
.
The
rights of beneficiaries, survivors and participants to benefits from this Plan
are solely as unsecured creditors of the Employer. Benefits payable under this Plan shall be
payable from the general assets of the
Employer and there shall be no trust fund or other assets secured for the
payment of such benefits. In its discretion,
the Employer may purchase or set aside assets, including annuity policies or
through use of a grantor trust, to provide for the payment of benefits
hereunder but such assets shall in all cases remain assets of the Employer and
subject to the claims of the Employer’s creditors. This Plan constitutes a mere
promise by the Employers to make benefit payments in the future, and it is
intended to be unfunded for tax purposes and for purposes of Title I of ERISA.
VII.
Beneficiaries
and Survivors
.
An
Eligible Employee’s beneficiary or survivor under Article IV of this Plan
shall be the same as the person(s) designated as such pursuant to or under the
provisions of the TCF Pension Plan, unless the Employee has designated in
writing and filed with the Committee a different beneficiary for this Plan.
VIII.
Plan
Administrator, Amendments, Claims Procedure
The
Plan Administrator of this Plan is the Committee, which shall have full power
to amend this Plan from time to time, or to terminate this Plan, except that no
such amendment or termination shall deprive an Eligible Employee or beneficiary
or survivor thereof of any benefits accrued under this Plan prior to such
amendment or termination without the written consent of such Eligible Employee,
or if deceased, the beneficiary or survivor thereof.
If an Eligible Employee,
or beneficiary or survivor thereof, wishes to make a claim for benefits or
disagrees with a determination of the Committee, such person may file a claim
and make such appeals as are permitted under the TCF Pension Plan. The claims
shall then be processed as
4
provided for claims under
the TCF Pension Plan, except that all determinations which would be made by the
“Company” under such Plans shall be made by the Committee instead.
IX.
Miscellaneous
.
(a) Notices under this Plan to the Employer, TCF
Financial or the Committee shall be sent by Certified Mail, Return Receipt
Requested to: Compensation Committee,
TCF Financial Corporation, c/o General Counsel for Corporate Affairs, TCF Financial
Corporation, 200 Lake Street East, Wayzata, MN
55391. Notices under this Plan to
Eligible Employees or their beneficiaries or survivors shall be sent by
Certified Mail to the last known address for such person(s) on the books and
records of the Employer, by Certified Mail.
(b) Nothing in this Plan shall change an Eligible
Employee’s status to anything other than an employee “at will” or otherwise
enlarge or modify such Employee’s employment rights or benefits other than as
provided herein.
(c) Nothing in this Plan shall abridge an
Eligible Employee’s rights, or such Employee’s beneficiary’s or survivor’s
rights, of participation in the TCF Pension Plan.
(d) Expenses of administering the Plan shall be
borne by the Employers in proportion to their share of Eligible Employees in this
Plan.
(e) An Eligible Employee’s benefits under this
Plan may not be assigned, transferred, pledged or otherwise hypothecated by
said Employee or the beneficiary or survivor thereof.
5
