Exhibit 10(g)-5


 


CHANGE IN
CONTROL AGREEMENT


 


THIS
AGREEMENT made and entered into as of January 1, 2008 between TCF FINANCIAL
CORPORATION, a Delaware Corporation (“TCF Financial” or the “Company”) and Neil
Brown, President and Chief Operating Officer, (the “Executive”) as an amendment
and restatement of the prior agreement dated January 1, 2006.


 


R
E  C  I  T  A  L  S:


 


WHEREAS,
the Company and Executive have previously executed an agreement (the “Prior
Agreement”);


 


WHEREAS,
the Board of Directors of the Company believes it is imperative to diminish the
inevitable distraction of the Executive by virtue of the personal uncertainties
and risks created by any pending or threatened Change in Control (as defined
below) of the Company;


 


WHEREAS, as a result of
the enactment of Internal Revenue Code (“IRC”) § 409A, the Company and the
Executive desire to amend the Agreement in order to insure that payments under
this Agreement qualify for the Short Term Deferral and/or the Separation Pay
Plan exception outlined in Treas. Reg. § 1.409A-1(b)(4) and § 1.409A-1(b)(9),
respectively, or are “permissible payments” under Treas. Reg. § 1.409A-3, and


 


NOW,
THEREFORE, in consideration of the mutual promises and agreements set forth
herein, the parties hereby agree as follows:


 


1.             Definitions.  As used in this Agreement, the following terms
shall have the following meanings:


 


(a)           Change in Control.
 A “Change in Control” shall be deemed to
have occurred if, prior to the expiration of this Agreement:


 


(i)            during any period of
two (2) consecutive years individuals who at the beginning of such period
constitute the Board of Directors of TCF Financial cease for any reason to
constitute a majority thereof, unless the election or nomination for election
of each new director was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of
the period or whose election or nomination for election was previously so
approved; or


 


(ii)           any “person”, as defined in sections 13(d) and
14(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) is or becomes
the “beneficial owner” as defined in Rule 13d-3 under the Exchange Act,
directly or indirectly, of securities of TCF Financial representing fifty
percent (50%) or more of the combined voting power of TCF Financial’s then
outstanding securities, except for any securities purchased by a TCF employee
benefit plan or trust and any person who becomes a fifty percent (50%)
beneficial owner solely as a result of stock repurchases by TCF Financial; or


 


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(iii)          the shareholders of TCF Financial approve a
merger or consolidation of TCF Financial with any other corporation, other than
a merger or consolidation which would result in the voting securities of TCF
Financial outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the combined voting power of
the voting securities of TCF Financial or such surviving entity outstanding
immediately after such merger or consolidation, or the shareholders of TCF
Financial approve a plan of complete liquidation of TCF Financial or an
agreement for the sale or disposition by TCF Financial of all or substantially
all TCF Financial’s assets; provided, however, that no Change in Control will
be deemed to have occurred if such merger, consolidation, sale or disposition
of assets, or liquidation is not subsequently consummated.


 


The date of any Change in Control shall be deemed
to be the date on which it is consummated.


 


(b)           Good Reason.  By following the procedure set forth in this
paragraph, the Executive shall have the right to terminate the Executive’s
employment with the Company for “Good Reason” in the event there is (i) any
material diminution in the scope of the Executive’s authority and
responsibility (provided, however, in the event of any illness or injury which
disables the Executive from performing the Executive’s duties, the Company may
reassign the Executive’s duties to one or more other employees until the
Executive is able to perform such duties); (ii) a material diminution in the
Executive’s base compensation (salary, bonus opportunity, benefits or perquisites
as in effect before the Change in Control); (iii) a material diminution in the
authority, duties, responsibilities of the supervisor to whom the Executive is
required to report; (iv) a material diminution in the budget over which the
Executive  retains authority; (v) a
material change in geographic location at which the Executive must perform the
services; or (vi) any other action or inaction that constitutes a material
breach by the Company of the Executive’s 
employment agreement under which the Executive provides services. In the
event the Executive proposes to terminate his employment for Good Reason under
this paragraph, the Executive shall first provide written notice to the Company
of the existence of the condition described as Good Reason not less than 90
days after the initial existence of the condition. The Company will have an
opportunity to correct any curable situation to the reasonable satisfaction of
the Executive within the period of time specified in the notice which shall not
be less than thirty (30) days. If such correction is not so made or the
circumstances or situation is such that it is not curable, the Executive may,
within thirty (30) days after the expiration of the time so fixed within which
to correct such situation (but not more than two years after the initial
existence of the Good Reason), give written notice to the Company that his
employment is terminated for Good Reason effective forthwith.


 


(c)           Termination Date.
 “Termination Date” means the date on
which the Executive’s employment with the Company is terminated.


 


2.             Termination of
this Agreement for “Cause” by the Company.


 


(a)           Termination of this
Agreement for “Cause” applies in the event the Executive:  (i) has engaged in willful and recurring
misconduct in not following the legitimate directions of the Board of Directors
of the Company after fair warning or breached any non-competition or non-


 


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solicitation covenant to
which Executive is subject; (ii) has been convicted of a felony and all appeals
from such conviction have been exhausted; (iii) has engaged in habitual
drunkenness; (iv) has been excessively absent from work which absence is not
related to disability, illness, sick leave or vacations; or (v) has engaged in continuous
conflicts of interest between his personal interests and the interests of the
Company after fair warning.


 


(b)           Notice of Right to
Cure.  If the Company proposes to
terminate its obligations hereunder for Cause under paragraph 2(a), the Company
shall give written notice to the Executive specifying the reasons for such
proposed determination with particularity and specifying a cure the Company
deems appropriate, and, in the case of a termination for Cause under paragraphs
2(a)(i), (iii), (iv), or (v) the Executive shall have a reasonable opportunity
to correct any curable situation to the reasonable satisfaction of the Board of
Directors of the Company, which period shall be no less than fifteen (15) days
from the Executive’s receipt of the notice of proposed termination. Notwithstanding
the foregoing, this Agreement shall not be terminated for Cause unless and
until there shall be delivered to the Executive a copy of the resolution duly
adopted by the affirmative vote of not less than the majority of the members of
the Board of Directors of the Company at a meeting called and held for the
purpose (after reasonable notice to the Executive and an opportunity for the
Executive, together with his legal counsel, to be heard before the Board of
Directors) finding that, in the opinion of the Company’s Board of Directors,
the Executive has engaged in conduct justifying a termination of this Agreement
for Cause.


 


3.             Termination of
Employment Upon Change in Control – Severance Payments.  In the event of a Change in Control, if: (1)
the Executive terminates his or her employment for any reason by giving the
Company notice within the 30-day period immediately preceding the first
anniversary of the closing date of the Change in Control; or (2) within the six
(6) months before or twenty-four (24) months after the occurrence of such
Change in Control (i) the Executive terminates employment for Good Reason, or
(ii) the Executive’s employment is terminated by the Company  without Cause (as defined herein), provided
that the Executive’s termination results in a complete cessation of services
for the Company and that no payment is due in the event of termination of
employment by reason of death or disability; then the Executive shall be
entitled to the following severance benefits (which benefits in either case are
referred to as the “Termination Payments”):


 


(a)           Base Salary and
Annual Bonus.  The Company shall pay
the Executive, no later than 30 days after Executive’s termination of
employment, in a single sum, an amount equal to two times the sum of (x) the
Executive’s annual salary at the time of termination; and (y) the average
Annual Bonus paid or payable to Executive in respect of the three calendar
years immediately preceding the year in which termination occurs. In the event
Executive’s termination from employment occurs after the end of a calendar
year, but before a bonus earned in that calendar year has been paid, the
Company shall pay such bonus to Executive in addition to the amount otherwise
payable under this paragraph (a) promptly but no later than 2 1⁄2 months after
the end of the calendar year in which bonus was earned.


 


(b)           Medical and Other
Benefits Continuation.  Executive
shall be entitled to continuation of Company medical coverage for the full
period provided under the Consolidated Omnibus Budget Reconciliation Act of
1985 (“COBRA”) at Company expense. If eligible,


 


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Executive shall
participate in retiree medical coverage of the Company on the same terms and conditions
as apply to TCF employees generally. Executive shall also be entitled to
continuation of all other benefits after employment termination as provided by
the benefit plans or by law; provided that, if Executive obtains new employment
with comparable benefits during the applicable continuation period, all
entitlements under this paragraph shall cease. Nothing in this paragraph shall
be construed as providing Executive with coverage under any plan of Employer to
which Executive would not otherwise be entitled and in the event any coverage
is unavailable, e.g. if Executive is uninsurable, Employer’s obligations under
this paragraph may be satisfied by paying to the Executive the cost of such
coverage if it were available, as determined in good faith by the Company.


 


(c)           Stock Incentives.
 Executive shall be entitled to such
vesting or other benefits as are provided by the award agreement pertaining
thereto.


 


(d)           Section 409A of the
Internal Revenue Code and the Regulations Thereunder.  The arrangements described in this Agreement,
are intended to be either exempt from, or permissible payments under, IRC §
409A, and the regulations thereunder.


 


4.             Certain Additional
Payments by the Company.


 


(a)           Gross-Up Payment.
 Anything to the contrary
notwithstanding, in the event it shall be determined that any payment,
distribution or benefit made or provided by the Company (or any successor
thereto) to or for the benefit of the Executive (whether pursuant to this
Agreement or otherwise) (a “Payment”), would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, (the “Code”)
or any interest or penalties with respect to such excise tax (such excise tax,
together with any such interest and penalties, are collectively referred to as
the “Excise Tax”), then the Company shall pay the Executive in cash an amount
(the “Gross-Up Payment”) such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including but not limited to income taxes (and any interest and penalties
imposed with respect thereto) and any additional Excise Tax, imposed upon the
Gross-Up Payment, the Executive retains (after payment of such taxes, interest
and penalties) an amount of the Gross-Up Payment equal to the Excise Tax
imposed on the Payments. Any such Gross-Up Payments shall be made promptly, and
in no event later than the end of the calendar year following the year in which
the right to Gross-Up Payment arises.


 


(b)           Determination of Gross-Up
Payment.  Subject to paragraph 4(c)
below, all determinations required to be made under this paragraph 4, including
whether a Gross-Up Payment is required and the amount of the Gross-Up Payment,
shall be made by the firm of independent public accountants selected by the
Company to audit its financial statements for the year immediately preceding
the Change in Control (the “Accounting Firm”) which shall provide detailed
supporting calculations to the Company and the Executive within thirty (30)
days after the Termination Date. In the event that the Accounting Firm is
serving as accountant or auditor for the individual, entity or group effecting
the Change in Control, the Executive shall appoint another nationally
recognized accounting firm to make the determinations required under this
paragraph 4 (which accounting firm shall then be referred to as the “Accounting
Firm”). All fees and expenses of the Accounting Firm in connection with the
work it performs pursuant to this paragraph 4 shall


 


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be promptly paid by the
Company. A Gross-Up Payment (as determined pursuant to this paragraph 4) shall
be paid by the Company to the Executive within five (5) days of the receipt of
the Accounting Firm’s determination. If the Accounting Firm determines that no
Excise Tax is payable by the Executive, it shall furnish the Executive with a
written opinion that failure to report the Excise Tax on the Executive’s
applicable federal income tax return would not result in the imposition of a
negligence or a similar penalty. Any determination by the Accounting Firm shall
be binding upon the Company and the Executive. As a result of the uncertainty
in the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm, it is possible that Gross-Up Payments
which will not have been made by the Company should have been made (“Underpayment”).
In the event that the Company exhausts its remedies pursuant to paragraph 4(c)
below, and the Executive is thereafter required to make a payment of Excise
Tax, the Accounting Firm shall promptly determine the amount of the
Underpayment that has occurred and any such Underpayment shall be paid by the
Company to the Executive within five (5) days after such determination.


 


(c)           Contest.  The Executive shall notify the Company in
writing of any claim made by the Internal Revenue Service that, if successful,
would require the Company to pay a Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than ten (10) business days after the
Executive knows of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the thirty (30)
day period following the date on which it gives such notice to the Company (or
such shorter period ending on the date that any payment of taxes with respect
to such claim is due). If the Company notifies the Executive in writing prior
to the expiration of such period that it desires to contest such claim, the
Employee shall:


 


(i)            give the Company any
information reasonably requested by the Company relating to such claim;


 


(ii)           take such
action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, without limitation, accepting legal
representation with respect to such claim by an attorney selected by the
Company and reasonably acceptable to the Executive;


 


(iii)          cooperate
with the Company in good faith in order effectively to contest such claim;


 


(iv)          permit the
Company to participate in any proceedings relating to such claim; provided,
however, that the Company shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such
contest and shall indemnify and hold the Executive harmless, on an after-tax
basis, for any Excise Tax or income tax, including interest and penalties with
respect thereto, imposed as a result of such representation and payment of
costs and expenses. Without limitation on the foregoing provisions of this
paragraph 4(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax,


 


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interest
and penalties claimed and sue for a refund or contest the claim in any
permissible manner, and the Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and sue for a refund, the Company shall advance, on an interest-free
basis, the amount of such payment to the Executive together with any Excise Tax
and income taxes imposed with respect to such advance or with respect to any
imputed income with respect to such advance; and further provided that any
extension of the statute of limitations relating to payment of taxes for the
taxable year of the Executive with respect to which such contested amount is
claimed to be due is limited solely to such contested amount. Furthermore, the
Company’s control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and the Executive shall be
entitled to settle or contest, as the case may be, any other issue raised by
the Internal Revenue Service or any other taxing authority.


 


(d)           If, after the receipt
by the Executive of an amount advanced by the Company pursuant to paragraph
4(c), the Executive becomes entitled to receive any refund with respect to such
claim, the Executive shall (subject to the Company’s complying with the
requirements of paragraph 4(c)) promptly pay to the Company the amount of such
refund (together with any interest paid or credited thereon after any income or
other taxes applicable thereto and assessed on the Executive have been paid by
the Executive from such refund). If, after the receipt by the Executive of an
amount advanced by the Company pursuant to paragraph 4(c), a determination is
made that the Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify the Executive in writing of its
intent to contest such denial of refund prior to the expiration of thirty (30)
days after such determination, then such advance shall be forgiven and shall
not be required to be repaid and the amount of such advance shall offset, to
the extent thereof, the amount of Gross-Up Payment required to be paid.


 


5.             Covenant Not to
Compete; Non-Solicitation Covenant.


 


(a)           Covenant Not to
Compete.  While Executive is actively
employed by the Company and, in the event of a termination of employment for
any reason after a Change in Control, for a period of one year after such
termination of the Executive’s employment, the Executive agrees that he will
not directly or indirectly substantially compete with the Company or the TCF
Subsidiaries; provided, that this covenant shall in no event be enforceable for
any time period that Executive did not receive severance benefits hereunder. The
Executive shall be deemed to be substantially competing with the Company and
the TCF Subsidiaries if, without the prior written approval of the Board of
Directors of the Company, he becomes an officer, employee, agent, partner,
director or owner of a ten (10) percent or greater equity interest of any
company (or its affiliated companies) which engages in any types of business in
which the Company or the TCF Subsidiaries are engaged at the time of employment
termination and such competing entity operates within a 50 mile radius of any
location operated by the Company or any TCF Subsidiary.


 


(b)           Non-Solicitation
Covenant.  While the Executive is
actively employed with the Company and, in the event of a termination of
employment for any reason after a Change in


 


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Control, for a period of
one year after the Executive’s termination of employment, the Executive agrees
that, except with the prior written permission of the Board of Directors of the
Company, he will not offer to hire, entice away, or in any manner attempt to
persuade any officer, employee, or agent of the Company or any of the TCF
subsidiaries to discontinue his or her relationship with the Company or any of
the TCF 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 Executive has acquired any knowledge during the term of
his employment with the Company; provided, that this covenant shall in no event
be enforceable for any time period that Executive did not receive severance
benefits hereunder.


 


(c)           Remedies.  If the Executive commits a breach, or
threatens to commit a breach, of any of the provisions of this paragraph 5, the
Company shall have the following rights and remedies, in addition to any rights
and remedies otherwise available at law or equity after the Company has
notified the Executive of the specific conduct or threatened conflict which it
deems in violation of this paragraph 5 and given the Executive a reasonable
opportunity to cease and desist:


 


(i)            The right and remedy
to have the provisions of this paragraph 5 specifically enforced by any court
having equity jurisdiction, it being acknowledged and agreed by the Executive
that any such breach or threatened breach will cause irreparable injury to the
Company and the TCF Subsidiaries and that money damages will not provide an
adequate remedy to the Company and the TCF Subsidiaries; and


 


(ii)           The right and remedy to
require the Executive to account for and pay over to the Company all
compensation, profits, monies, accruals, increments, or other benefits, other
than those payable under this Agreement, derived or received by the Executive
or the enterprise in competition with the Company or any of the TCF
Subsidiaries as the result of any transactions constituting a breach of any
part of this paragraph 5, and Executive agrees to account for and pay over to
the Company such amounts promptly upon demand therefore.


 


6.             Benefits in Lieu
of Severance Pay Policy.  The
severance benefits provided for in paragraph 3 are in lieu of any benefits that
would otherwise be provided to the Executive under the Company’s severance pay
policy and the Executive shall not be entitled to any benefits under the
Company’s severance pay policy.


 


7.             Rights in the
Event of Dispute.  In the event of a
dispute between the Company and the Executive regarding this Agreement, it is
the intention of this Agreement that the dispute shall be resolved as
expeditiously as possible, consistent with fairness to both sides, and that
during pendency of the dispute the Executive and the Company shall be on equal
footing, as follows:


 


(a)           Arbitration.  Any claim or dispute relating to the terms and
performance of this Agreement, shall be resolved by binding private arbitration
before three arbitrators and any award rendered by any arbitration panel, or a
majority thereof, may be filed and a judgment obtained in any court having
jurisdiction over the parties unless the relief granted in the award is
delivered within ten (10) days of the award. Either party may request
arbitration by written notice to the other


 


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party. Within thirty (30)
days of receipt of such notice by the opposing party, each party shall appoint
a disinterested arbitrator and the two arbitrators selected thereby shall
appoint a third neutral arbitrator; in the event the two arbitrators cannot
agree upon the third arbitrator within ten (10) days after their appointment,
then the neutral arbitrator shall be appointed by the Chief Judge of Hennepin
County (Minnesota) District Court. Any arbitration proceeding conducted
hereunder shall be in the City of Minneapolis and shall follow the procedures
set forth in the Rules of Commercial Arbitration of the American Arbitration
Association, and both sides shall cooperate in as expeditious a resolution of
the proceeding as is reasonable under the circumstances. The arbitration panel
shall have the power to enter any relief it deems fair and just on any claim,
including interim and final equitable relief, along with any procedural order
that is reasonable under the circumstances.


 


(b)           Expenses of
Prosecution/Defense of Claim.  During
the pendency of a dispute between the Company and the Executive relating to the
terms or performance of this Agreement, the Company shall promptly pay the
Executive’s reasonable expenses of representation upon delivery of periodic billings
for same, provided that (i) Executive (or a person claiming on his behalf)
shall promptly repay all amounts paid hereunder at the conclusion of the
dispute if the resolution thereof includes a finding that the Executive did not
act in good faith in the matter in dispute or in the dispute proceeding itself,
and (ii) no claim for expenses of representation shall be submitted by the
Executive or any person acting on his behalf unless made in writing to the
Board of Directors within 90 days after receipt of billing for such
representation. Any such payment shall be made promptly, and in any event no
later than the end of the calendar year following the year in which the expense
was incurred.


 


8.             Other Benefits.
 The benefits provided under this
Agreement shall, except to the extent otherwise specifically provided herein,
be in addition to, and not in derogation or diminution of, any benefits that
Executive or his beneficiary may be entitled to receive under any other plan or
program now or hereafter maintained by the Company, or its subsidiaries, except
that there shall be no double payment under this Agreement and any employment
agreement between Company and Executive.


 


9.             Successors.  The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
to all or substantially all of the business and/or assets of the Company, to
expressly assume and agree to perform its obligations under this Agreement in
the same manner and to the same extent that the Company would be required to
perform them if no succession had taken place unless, in the opinion of legal
counsel mutually acceptable to the Company and the Executive, such obligations
have been assumed by the successor as a matter of law. The Executive’s rights
under this Agreement shall inure to the benefit of, and shall be enforceable
by, the Executive’s legal representative or other successors in interest, but
shall not otherwise be assignable or transferable.


 


10.           Severability.  If any provision of this Agreement or the
application thereof is held invalid or unenforceable, the invalidity or
unenforceability thereof shall not affect any other provisions or applications
of this Agreement which can be given effect without the invalid or
unenforceable provision or application.


 


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11.           Survival.  The rights and obligations of the parties
pursuant to this Agreement shall survive the termination of the Executive’s
employment with the Company to the extent that any performance is required
hereunder after such termination.


 


12.           Notices.  All notices under this Agreement shall be in
writing and shall be deemed effective when delivered in person (in the Company’s
case, to its Secretary) or 48 hours after deposit thereof in the U.S. mails,
postage prepaid, addressed, in the case of the Executive, to his last known
address as carried on the personnel records of the Company and, in the case of
the Company, to the corporate headquarters, attention of the Secretary, or to
such other address as the party to be notified may specify by written notice to
the other party.


 


13.           Term.  The term of this Agreement shall commence on
the date it is signed and shall continue in effect for as long as Executive is
employed by the Company (or any successor thereof).


 


14.           Amendments and
Construction.  This Agreement may
only be amended in a writing signed by the parties hereto. This Agreement shall
be construed under the laws of the State of Minnesota. Paragraph headings are
for convenience only and shall not be considered a part of the terms and
provisions of the Agreement.


 


15.           No Guarantee of
Employment; Prior Severance Contract Superseded.  This Agreement shall not be construed as any
guarantee or obligation of continuing employment on the part of the Company or
Executive. This Agreement supersedes and replaces any prior Change in Control
contract or severance contract between Company and Executive.


 


IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the day
and year first written above.


 


	
   

  	
  TCF FINANCIAL CORPORATION

  
	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lynn A. Nagorske

  	
   

  
	
   

  	
   

  	
  Lynn A. Nagorske

  
	
   

  	
   

  	
   

  
	
  /s/ Gregory J. Pulles

  	
   

  	
  Its:

  	
  Chief Executive Officer

  
	
  Vice Chairman, General Counsel

  	
   

  	
   

  
	
  and Secretary

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Joseph T. Green

  	
   

  	
  /s/ Neil W. Brown

  	
   

  
	
   

  	
  Neil W. Brown

  
						



 


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