Exhibit 10(g)-4


 


CHIEF EXECUTIVE
OFFICER


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 Lynn
A. Nagorske, Chief Executive 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 comply with IRC § 409A and the regulations thereunder, 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)           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-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: (i)
the Executive terminates his employment for any reason


 


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within 24 months after
such Change in Control; or (ii) the Executive’s employment ends for any other
reason (x) including the Company’s failure to continue to employ Executive
after expiration of Executive’s employment agreement but (y) not including such
an end of employment by reason of death, disability or after this Agreement has
been terminated for Cause (as defined herein), during the six months before a
Change in Control or within twenty-four (24) months after a Change in
Control,  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, as soon as administratively practicable six (6) months after
Executive’s termination of employment, in a single sum, an amount equal to
three 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 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)
as soon as administratively practicable six (6) months after Executive’s
termination of employment.


 


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


 


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


 


(d)           Section 409A of the
Internal Revenue Code.  The
arrangements described in this Agreement are intended to comply with IRC § 409A
to the extent such arrangements are subject to that law.


 


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


 


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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 the
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 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:


 


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(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, 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


 


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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.


 


(e)           Notwithstanding the
foregoing provisions of this section 4, in the event that a reduction in
Payments to Executive by $10,000.00 or less would result in no Excise Tax being
due from Executive, the Company shall reduce the Payments to Executive by the
amount necessary to avoid any Excise Tax liability for the Executive.


 


5.             No Non-Competition
or Non-Solicitation Covenants.  In
the event Executive’s employment ends during any period beginning six (6)
months before a Change in Control and ending 24 months after a Change in
Control, the Executive shall not be subject to any Non-competition or Non-solicitation
covenants that would otherwise apply to him.


 


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 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


 


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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.


 


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.


 


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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/ Gregory J. Pulles

  	
   

  
	
   

  	
   

  	
  Gregory J. Pulles

  
	
   

  	
   

  	
   

  
	
  /s/ Neil W. Brown

  	
   

  	
  Its:

  	
  Vice Chairman, General Counsel and

  
	
  President and Chief Operating Officer

  	
   

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Joseph T. Green

  	
   

  	
  /s/ Lynn A. Nagorske

  	
   

  
	
   

  	
  Lynn A. Nagorske

  
						



 


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