Exhibit 10(e)-7


 


TCF EXECUTIVE OFFICER


EMPLOYMENT AGREEMENT


 


THIS AGREEMENT, made and entered into as of
January 1, 2008 between TCF FINANCIAL CORPORATION, a Delaware corporation (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 Executive and the Company are
contemporaneously with the execution and delivery of this Agreement entering
into a new Change in Control Agreement (the “CIC Agreement”);


 


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 and in the CIC Agreement, the
parties hereby agree as follows:


 


1.             Employment and Duties.  The parties hereby agree that, during the term
of this Agreement as set forth in paragraph 2 below, the Executive shall be
employed and agrees to serve in an executive position with such executive
officer duties as are assigned by the Chief Executive Officer of the Company
from time to time. In discharging such duties and responsibilities, the
Executive may also serve as an executive officer and/or director of any direct
or indirect subsidiary of the Company (collectively the “TCF Subsidiaries”). During
the term of this Agreement, the Executive shall apply on a full-time basis
(allowing for usual vacations and sick leave) all of his skill and experience
to the performance of his duties in his positions with the Company and the TCF
Subsidiaries. It is understood that the Executive shall not have any other
business interests or investments that would interfere with or be inconsistent
with his duties under this Agreement. The Executive shall perform his duties at
the Company’s principal executive offices in Wayzata, Minnesota or at such
other location as may be mutually agreed upon by the Executive and the Company;
provided that the Executive shall travel to other locations at such times as
may be necessary for the performance of his duties under this Agreement.


 


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2.             Term of Employment.  Unless sooner terminated as provided in
paragraph 4 below, the term of this Agreement shall commence on the date hereof
and shall continue through December 31, 2008; provided that the term shall be
automatically extended for one year on each January 1st commencing January 1,
2009 unless either party gives written notice to the other six months prior to
the date on which the automatic extension would be effective.


 


3.             Compensation and Benefits.  During the term of this Agreement, the
Executive shall be entitled to the following compensation and benefits:


 


(a)           Base Salary.  As compensation for the Executive’s services,
the Executive shall be paid a base salary at a minimum annual rate of $460,000
payable in accordance with the Company’s customary payroll policy, which salary
may be increased (but not reduced) from time to time at the discretion of the
Board of Directors (the “Base Salary”).


 


(b)           Other.  The Executive shall, in addition to the Base
Salary, also be entitled to an annual bonus opportunity (the “Annual Bonus”),
stock options, restricted stock, stock appreciation rights and employee
benefits in accordance with company policy and as approved by the Compensation
Committee of the Company’s Board of Directors from time to time. Payment of
Annual Bonuses shall be made promptly but no later than 2 1⁄2 months after the
end of the calendar year in which the bonus was earned. In addition, Executive
shall be entitled to such perquisites as are approved by the Chief Executive
Officer and reported to the Compensation Committee of the Board from time to
time. Receipt of any restricted stock award may not be deferred or delayed for
any period beyond the vesting date of the restricted stock award. Any other
equity award shall comply with the requirements of Treas. Reg. § 1.409A-1(b)(5)
so as not to constitute “deferred compensation” under IRC § 409A. Payment of
perquisites shall be made no later than 2 1⁄2 months after the end of the
calendar year in which the Executive was first entitled to receive such
payment.


 


(c)           Return of Compensation under Section 304
of the Sarbanes-Oxley Act.  Notwithstanding
anything in this Agreement to the contrary, in the event of a restatement of
financial results by the Company, the Audit Committee of the Board of Directors
shall determine (after reasonable notice to the Executive and an opportunity
for the Executive, together with his legal counsel, to be heard before the
Audit Committee) whether or not repayment of any compensation is required under
Section 304 of the Sarbanes-Oxley Act. If the Audit Committee determines that
such repayment is required, the Committee shall make a demand for repayment by
Executive of any bonus or other incentive-based or equity-based compensation,
and any profits realized from the sale of TCF stock or other TCF securities,
which are required to be returned to the Company as a result of Section 304 of
the Sarbanes-Oxley Act. Executive shall promptly tender such repayment unless
he disputes the findings of the Audit Committee, in which case the parties
shall submit the dispute to arbitration as provided in paragraph 7 of this
Agreement


 


4.             Termination of Employment.


 


(a)           Death, Disability, Retirement or
Voluntary Resignation.  In the event
of the Executive’s death, disability as defined in the Company’s long term
disability plan then in effect,


 


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or retirement (termination by Executive which the Compensation
Committee determines is a retirement) the employment of the Executive hereunder
shall terminate and the Company’s obligation to make further Base Salary and
Annual Bonus (to the extent not yet earned) payments hereunder shall thereupon
terminate as of the end of the month in which such death, or disability or
retirement occurs. In the event of Executive’s termination of employment
without Good Reason other than a retirement (“Voluntary Resignation”) the
Company shall have no obligation to pay Base Salary (other than through
Executive’s last day of employment) and no obligation to pay any Annual Bonus
after the Executive’s employment termination date. The Executive’s (and his
beneficiaries’) rights to other compensation and benefits shall be determined
under the Company’s benefit plans and policies applicable to Company
executives.


 


(b)           Termination for Cause by the Company.
 By following the procedure set forth in
paragraph 4(e), the Company shall have the right to terminate the employment of
the Executive for “Cause” in the event the Executive:  (i) has engaged in willful and recurring
misconduct in not following the legitimate directions of the Board of Directors
of the Company after fair warning; (ii) has been convicted of a felony and all
appeals from such conviction have been exhausted; (iii) has engaged in habitual
drunkenness; (iv) has been excessively absent from work which absence is not
related to disability, illness, sick leave or vacations; or (v) has engaged in
continuous conflicts of interest between his personal interests and the
interests of the Company after fair warning. If the employment of the Executive
is terminated by the Company for Cause, the Company’s obligation to make
further Base Salary and Annual Bonus (to the extent not yet earned) payments
hereunder shall thereupon terminate, except the Executive shall receive the
Base Salary through the end of the month during which such a termination occurs.
The Executive’s rights to other compensation and benefits shall be determined
under the Company’s benefit plans and policies applicable to executives of the
Company then in effect.


 


(c)           Termination for Good Reason by the
Executive.  By following the
procedure set forth in paragraph 4(e), the Executive shall have the right to
terminate the Executive’s employment with the Company for “Good Reason” in the
event 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); (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; (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. If the employment of the Executive is terminated
by the Executive for Good Reason before a change in control as defined in the
CIC Agreement (“Change in Control”), the Executive shall be entitled to the
severance benefits set forth in paragraph 4(f) below, provided that termination
of employment shall mean a complete cessation of service for the Company.


 


(d)           Termination without Cause.  The Company may terminate the Executive’s
employment without Cause prior to the expiration of the term of this Agreement.
If the


 


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employment of the Executive is terminated by the Company without Cause
prior to the expiration of this Agreement, before a Change in Control, the
Executive shall be entitled to the severance benefits set forth in paragraph
4(f) below, provided that termination of employment shall mean a complete
cessation of service for the Company.


 


(e)           Notice and Right to Cure.


 


(i)  Termination by Company for Cause.  If the Company proposes to terminate the
employment of the Executive for Cause under paragraph 4(b), the Company shall give
written notice to the Executive specifying the reasons for such proposed
determination with particularity and specifying a cure the Company deems
appropriate, and, in the case of a termination for Cause under paragraphs
4(b)(i) (including any breach of the provisions of paragraph 5 below), (iii) or
(iv), or (v) the Executive shall have a reasonable opportunity to correct any
curable situation to the reasonable satisfaction of the Board of Directors of
the Company, which period shall be no less than fifteen (15) days from the
Executive’s receipt of the notice of proposed termination. Notwithstanding the
foregoing, the Executive’s employment shall not be terminated for Cause unless
and until there shall be delivered to the Executive a copy of the resolution
duly adopted by the affirmative vote of not less than the majority of the
members of the Board of Directors of the Company at a meeting called and held
for the purpose (after reasonable notice to the Executive and an opportunity
for the Executive, together with his legal counsel, to be heard before the
Board of Directors) finding that, in the opinion of the Company’s Board of
Directors, the Executive has engaged in conduct justifying a termination for
Cause.


 


(ii)  Termination by Executive for Good Reason.
 In the event the Executive proposes to
terminate his employment for Good Reason under paragraph (4)(c) above, the
Executive shall first provide written notice to the Company of the existence of
the condition described as Good Reason in paragraph 4(c) above 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.


 


(f)            Severance Benefits.  If the Executive is entitled to severance
benefits under this paragraph 4(f) pursuant to paragraph 4(c) or (d), the
Executive shall be provided with the following benefits:


 


(i)            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 of employment; and (y) the average
Annual Bonus paid or payable to Executive in respect of the three calendar
years immediately preceding the year in which


 


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termination of employment 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 (i) promptly but no later than 2 1⁄2 months after the end of the
calendar year in which the bonus was earned.


 


(ii)           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.


 


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


 


(g)           Benefits in Lieu of Severance Pay Policy.
 The severance benefits provided for in
this paragraph 4 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.


 


(h)           No Funding of Severance.  Nothing contained in this Agreement or
otherwise shall require the Company to segregate, earmark or otherwise set
aside any funds or other assets to provide for any payments required to be made
under this paragraph 4 and the rights of the Executive to the severance
benefits hereunder shall be solely those of a general, unsecured creditor of
the Company. However, the Company may, in its discretion, deposit cash or
property, or a combination of both, equal in value to all or a portion of the
amounts anticipated to be payable hereunder into a trust, the assets of which
are to be distributed at such times as determined by the trustee of such trust;
provided that such assets shall be subject at all times to the rights of the
Company’s general creditors.


 


(i)            Termination after Change in Control.
 Upon or within six months before or
twenty-four months after a Change in Control if the employment of the Executive
ends under circumstances entitling the Executive to benefits under the CIC
Agreement, the Executive shall be entitled to the greater of the benefits
provided under the CIC Agreement, if any, and the benefits provided by this
Agreement, if any, but in no event shall there be double payment under the CIC
Agreement and this Agreement.


 


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


 


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 other than (i) a
termination by the Company without Cause, or (ii) a termination by the
Executive for Good Reason, 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. 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 10 (ten) 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 by the Company or
the Executive for any reason prior to a Change in 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 its subsidiaries
as to which Executive has acquired any knowledge during the term of his
employment with the Company.


 


(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 


 


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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.             Beneficiaries.  In the event of the Executive’s death after
his termination of employment, any amount or benefit payable or distributable
to him pursuant to this Agreement shall be paid to the beneficiary designated
by the Executive for such purpose in the last written instrument received by
the Company prior to the Executive’s death, if any, or, if no beneficiary has
been designated, to the Executive’s estate, but such designation shall not be
deemed to supersede any beneficiary designation under any benefit plan of the
Company. Whenever this Agreement provides for the written designation of a
beneficiary or beneficiaries of the Executive, the Executive shall have the
right to revoke such designation and to redesignate a beneficiary or
beneficiaries by written notice to either the Company to such effect, except to
the extent, if any restricted by law.


 


7.             Rights in the Event of Dispute.  In the event of a dispute between the Company
and the Executive regarding his employment or 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 Executive’s
employment or 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 Executive’s employment or the
terms or performance under 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


 


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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.             No Obligation to Mitigate Damages.  In the event the Executive becomes eligible to
receive compensation or benefits subsequent to the termination of his
employment under this Agreement, the Executive shall have no obligation to seek
other employment in an effort to mitigate damages. To the extent the Executive
shall accept other employment after his termination of employment, the
compensation and benefits received from such employment shall not reduce the
compensation and benefits otherwise due under this Agreement, except as
provided in paragraph 4(f)(ii) above.


 


9.             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. The
parties expressly agree that in the event of a Change in Control the Executive
shall be entitled to the greater of the compensation and benefits as set forth
in the CIC Agreement (in lieu of and not in addition to this Agreement) and the
compensation and benefits payable under this Agreement, and in no event shall
there be double payment under the CIC Agreement and this Agreement.


 


10.           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.


 


11.           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.


 


12.           Survival.  The rights and obligations of the parties
pursuant to this Agreement shall survive the term of the employment to the
extent that any performance is required hereunder after the expiration or
termination of such term.


 


13.           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.


 


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14.           Other Agreements.  This Agreement supersedes and replaces all
prior agreements or understandings of terms of the Executive’s employment with
the Company, including the Prior Agreements. Except as specifically provided
herein, this Agreement does not supersede or replace the CIC Agreement or any
agreement between the Company and Executive pursuant to any plans or programs
of the Company, including any stock option agreement, restricted stock
agreement or supplemental retirement agreement.


 


15.           Amendments and Constructions.  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.


 


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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