Exhibit
10(s)


 


05/06/03


THIRD AMENDMENT


OF


TCF DIRECTORS DEFERRED
COMPENSATION TRUST


 


THIS
AGREEMENT is made this 30th day of June, 2003 by and between
TCF Financial Corporation, a Delaware corporation, (the “Company”) and The
First National Bank in Sioux Falls (the “Trustee”).


 


WITNESSETH:


 


WHEREAS,
the Company and the Trustee have heretofore entered into a trust agreement,
dated as of October 1, 2000, (the “Agreement”) creating the TCF
Directors Deferred Compensation Trust, which Agreement, as amended, is now in
full force and effect;


 


WHEREAS,
the Company has reserved the power to amend the Agreement pursuant to Section
12(a) thereof; and


 


WHEREAS,
the Company and the Trustee wish to amend the Agreement in certain respects;


 


NOW,
THEREFORE, the parties agree that the Agreement is hereby
amended as follows:


 


1.             FUNDING OBLIGATION.  Effective January 1, 2003, Section 1(e) of
the Agreement is amended to read in full as follows:


 


(e)           From
time to time the Company shall make contributions of cash, the Company’s common
stock, and such other property as may be acceptable to the Trustee.


 


(1)           Each contribution
shall be accompanied by either (A) a statement designating the Plan participant
on behalf of whom such contribution is being made and, if more than one account
has been established for such participant, the account to which such
contribution will be credited, or (B) a statement that the contribution is not
designated for any participant’s account, but instead is to be applied to the
payment of future Trust expenses.


 


(2)           The amounts
contributed with respect to each Plan participant shall be such amounts as are
necessary to keep the accounts for such Plan participant sufficient at all
times to pay in full all benefits payable with respect to such Plan participant.


 


(3)           In addition, within
ten (10) business days following the occurrence of a Change in Control, the
Company shall contribute an amount equal to 300% of the aggregate expenses
incurred by the Company 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.  This contribution will not be
designated for any participant’s account, but will instead be applied to the
payment of future trust expenses.  If
the aggregate expenses that were incurred by the Company 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 Trustee shall be under no obligation to collect any such
contributions, and all responsibility for determining the amount, timing, and
types of contributions made to the Trustee shall be upon the Company or its
designees.


 


2.             PAYMENT OF BENEFITS.  Effective January 1, 2003, Section 2 of the
Agreement is amended to read in full as follows:


 


Section 2.               Payments
to Plan Participants and their Beneficiaries.


 


(a)           The
committee appointed to administer the Plan (the “Committee”) shall provide the
Trustee with complete instructions regarding the form and time of payment of
each account maintained under this Agreement for each Plan participant as soon
as administratively feasible after a contribution is first credited to that
account.  If a participant’s payment
instructions with respect to an account change, the Committee shall provide the
Trustee with revised instructions as soon as administratively feasible after
any such change.  Any such revised
instructions that are not immediately effective shall indicate the date on
which they become effective.


 


(b)           If
payment of a participant’s account has not already commenced and the Trustee
(1) has actual knowledge of the occurrence of an event that requires payment of
the account to commence (a “payment event”), (2) is notified by the Committee
that a payment event has occurred, (3) 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 the Plan, or (4) in the case of a
participant’s termination of service as a director, is notified in writing by
the participant that the participant’s termination of service has occurred, the
Trustee shall commence payment of the participant’s account in accordance with
the most recent applicable payment instruction unless payment must be suspended
due to the Company’s Insolvency as otherwise provided in this Agreement.  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.


 


(c)           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


 


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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 (!) the Committee notifies the Trustee and the
participant (or, if the participant has died, the participant’s beneficiary) of
the potential excess payment, (2) the Trustee has been provided with all Plan
records that may be reasonably required by the Trustee to make its
determination, and (3) 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.


 


(d)           The
Trustee shall make provision for the reporting and withholding of any federal,
state or local taxes that may be required to be withheld with respect to
payments from the Trust Fund, and shall pay amounts withheld to the appropriate
taxing authorities or determine that such amounts have been reported, withheld
and paid by the Company.


 


(e)           Distributions
pursuant to this Section 2 shall be deemed to have been sufficiently made if
they are sent by first class mail to the participant or beneficiary at the
address last provided to the Trustee by the Committee, the participant or the
beneficiary.  If any such distribution
is returned to the Trustee unclaimed, the Trustee shall notify the Committee
and shall not make any further distributions to such payee until a current
address for such payee is determined. 
If the payee cannot be located within twelve months after the Trustee’s
notice to the Committee is given, the Trustee shall solicit payment directions
from the Committee.


 


(f)            The
Trustee shall be held harmless and shall not be liable for its acts with
respect to distributions from the Trust Fund if it has acted in good faith in
accordance with the most recent payment instructions provided by the Committee
and the provisions of this Section 2.


 


3.             BORROWING.  Effective January 1, 2003, Section 5(b) of
the Agreement is amended to read in full as follows.


 


(b)           At
the direction of the Committee, to borrow money from any person and to pledge
assets of the Trust Fund as security for repayment of any such loan.


 


4.             INDEMNIFICATION.  Effective January 1, 2003, a new paragraph
(g) is added to Section 8 of the Agreement to read in full as follows:


 


(g)           The
Trustee shall be held harmless and shall be fully indemnified by the Company,
its successors and assigns from any liability, including reasonable legal and
professional services expenses, for any actions directed pursuant to this
Agreement by the Company, the Committee, or any Plan participant or
beneficiary.


 


5.             PAYMENT OF EXPENSES.  Effective January 1, 2003, Section 9 of the
Agreement is amended to read in full as follows:


 


Section 9.  Compensation
and Expenses of Trustee.  The
Company shall pay: (a) all broker fees and other expenses incurred in
connection with the sale or purchase of investments; (b) all personal property
taxes, income taxes, and other taxes of any kind at any time levied and
assessed under any present or future law upon, or with respect to, the Trust
Fund or any property


 


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included in the Trust Fund (other than income tax amounts that are
reasonably required to be withheld from payments by the Trust to participants
and beneficiaries); and (c) the Trustee’s own compensation and all other
reasonable expenses of administering the Plan and Trust; provided, however,
that payment of legal and/or professional fees reasonably incurred by the
Trustee and/or the Trust in making determinations regarding Insolvency pursuant
to Section 3 of this Agreement shall be made only if the Company is notified in
advance of the Trustee’s retention of legal counsel and the Company consents to
such retention, which consent shall not be unreasonably withheld.  Amounts due and payable to the Trustee that
remain unpaid more than thirty days after the Trustee gives the Company notice
of such amounts shall incur interest at the highest rate of interest assessable
by the Trustee for overdue payments of any kind from any other customer.  In the event the Trustee files suit to
collect amounts due and unpaid under this Section 9, the Company shall
reimburse the Trustee for the full amount of the Trustee’s reasonable costs and
attorneys’ fees incurred in connection with the initiation, maintenance and
resolution of such suit.  In any dispute
regarding amounts payable to the Trustee by the Company pursuant to this
Section 9, the Company shall have no right to any reduction in the amounts
payable to the Trustee based on the Trustee’s performance of its duties under
the Agreement (or any alleged failure to perform those duties), unless the
Trustee’s actions are shown by the Company to have been arbitrary and
capricious.  Trust assets that are
attributable to contributions designated for the payment of plan expenses may
be used to pay the amounts payable pursuant to this Section 9.  None of the amounts payable pursuant to this
Section 9 shall be payable from Trust assets that have been designated for a
participant’s account unless and until the Trustee has exhausted all of its
other legal and equitable remedies.  In
the event all such remedies are exhausted, expenses shall be charged to the
Trust Fund without allocation among the accounts established for participants,
unless an expense is directly attributable to one or more accounts, in which
case such expense shall be charged directly to such accounts.  The Trustee may dispose of Trust
investments, if necessary, to provide cash assets for the payment of
expenses.  The Trustee shall not delay
or withhold payment to any participant or beneficiary on account of any dispute
regarding payments due under this Section 9.


 


6.             APPOINTMENT AND REMOVAL OF
TRUSTEES.  Effective January 1, 2003,
Section 10 of the Agreement shall be amended to read in full as follows:


 


Section 10.  Resignation
and Removal of Trustee.


 


(a)           The
Trustee acting hereunder shall be one or more qualified corporations appointed
by the Company to serve in such capacity. 
The number of Trustees shall not be increased or decreased except with
the written consent of at least two-thirds of the aggregate of (1) the Plan’s
participants who are active directors, (2) the participants who are former
directors but who are entitled to benefits under the Plan and (3) the
beneficiaries of deceased participants who are entitled to benefits under the
Plan (counting the multiple beneficiaries of a single participant as one
beneficiary, whose consent is given only if a majority of such beneficiaries
give their consent).  Upon any
determination to increase the number of Trustees, or upon the removal or
resignation of any Trustee, the vacancy or vacancies so created shall be filled
by such qualified corporations as may be appointed by the Board of Directors of
the Company and approved in writing by at least two-thirds of the aggregate of
(1) the Plan’s participants who are active directors, (2) the participants who
are former directors but who are entitled to benefits under the Plan and (3)
the beneficiaries of deceased participants who are entitled to benefits


 


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under the Plan (counting the multiple beneficiaries of a single
participant as one beneficiary, whose consent is given only if a majority of
such beneficiaries give their consent). 
If the Board of Directors of the Company fails to make such an
appointment or the appointed corporation fails to receive the required written
consent, and if there is no other Trustee then acting, a successor Trustee or
Trustees shall be appointed by a court of competent jurisdiction.  Any such appointment shall be effective upon
the acceptance thereof in writing by the qualified corporation so appointed and
delivery of a signed copy of such acceptance to the Trustee then in office.


 


(b)           The
Trustee, and any successor to any Trustee, may be removed by the Board of
Directors of the Company at any time upon the receipt by the Board of Directors
of the Company of the consent of at least two-thirds of the aggregate of (1)
the Plan’s participants who are active directors, (2) the participants who are
former directors but who are entitled to benefits under the Plan and (3) the
beneficiaries of deceased participants who are entitled to benefits under the
Plan (counting the multiple beneficiaries of a single participant as one
beneficiary, whose consent is given only if a majority of such beneficiaries
give their consent) to such removal and upon the giving of 30 days’ prior
written notice to such Trustee and to any other Trustee then acting.  Such removal shall be effective on the date
specified in such written notice; provided, that notice shall theretofore have
been given to the Trustee of the appointment of a successor Trustee or Trustees
in the manner hereinafter set forth.


 


(c)           The
Trustee, and any successor to any Trustee, may resign as Trustee hereunder by
filing with the Committee a written resignation which shall take effect 30 days
after the date of such filing, unless prior thereto a successor Trustee or
Trustees shall have been appointed.


 


(d)           All
of the provisions set forth herein with respect to the Trustee shall relate to
each successor Trustee so appointed with the same force and effect as if such
successor Trustee originally had been named herein as a Trustee.


 


(e)           Upon
the appointment of a successor Trustee, the removed or resigning Trustee shall
transfer and deliver those assets of the Trust Fund in its possession or under
its control to the remaining Trustee or Trustees, if any, or otherwise to the
successor Trustee or Trustees, together with all such instruments of transfer,
conveyance, assignment, and further assurance as the remaining or successor
Trustee may reasonably require.  Any
removed or resigning Trustee shall, at the request of the Committee, or may, in
its own discretion, file with the Committee an account of its actions as
Trustee.  The receipt and approval by
the Committee of the final account of the removed or resigning Trustee shall be
a full and complete acquittal and discharge from liability of such removed or
resigning Trustee, and any successor Trustee shall have no liability whatsoever
for the acts or omissions of any prior Trustee in which it did not
participate.  If the Committee shall
fail to express in writing its objections to any account delivered by any
removed or resigning Trustee within six months from the date of receipt by the
Committee of such account, such account shall be considered as approved by the
Committee.


 


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7.             AMENDMENT OF TRUST.  Effective January 1, 2003, Section 12 of the
Agreement is amended to read in full as follows:


 


Section 12.  Amendment
or Termination.


 


(a)           This
Agreement may be amended at any time and from time to time upon the approval of
the Board of Directors of the Company; 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.  (If a single
participant has multiple beneficiaries, all of such beneficiaries shall be
deemed to have consented if a majority of such beneficiaries consent, and none
of such beneficiaries shall be deemed to have consented if less than a majority
of such beneficiaries consent.)  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 Trust assets
credited to the accounts of the consenting participants and beneficiaries shall
be transferred to a separate trust established pursuant to an agreement that is
identical to this Agreement in all respects except that it may include the
proposed amendment.


 


(b)           The
Trust shall not be terminated until such time as all of the Company’
obligations to make distributions pursuant to the Plan have been fully
discharged unless all of the participants and beneficiaries who are entitled to
benefits under the Plan consent in writing to an earlier termination.  (If a single participant has multiple
beneficiaries, all of such beneficiaries shall be deemed to have consented if a
majority of such beneficiaries consent, and none of such beneficiaries shall be
deemed to have consented if less than a majority of such beneficiaries consent.)  If all of such participants and
beneficiaries do not consent to an early termination, the Trust shall terminate
only with respect to the consenting participants and beneficiaries but shall
continue in effect with respect to the nonconsenting participants and
beneficiaries.  Upon a termination or
partial termination of the Trust, the Trust assets, if any, that remain in the
accounts established for the consenting participants and beneficiaries shall be
paid or distributed to the Company or its successors in interest.


 


*  *  *  *  *


 


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IN
WITNESS WHEREOF, TCF Financial and the Trustee have executed
this instrument as of the date first written above.


 


	
   

  	
  TCF
  FINANCIAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Gregory J. Pulles

  	
   

  
	
   

  	
  Title:

  	
  Vice Chairman, General Counsel and

  	
   

  
	
   

  	
  Secretary

  	
   

  
	
   

  	
   

  
	
  [NO SEAL]

  	
   

  
	
   

  	
   

  
	
  Attest:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Diane O. Stockman

  	
   

  	
   

  
	
  As its:

  	
  General Counsel for Corporate Affairs

  	
   

  	
   

  
													



 


 


	
   

  	
  THE
  FIRST NATIONAL BANK IN SIOUX

  FALLS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dick J. Corcoran

  	
   

  
	
   

  	
  Title:

  	
  Executive Vice President

  	
   

  
	
   

  	
   

  
	
  [NO SEAL]

  	
   

  
	
   

  	
   

  
	
  Attest:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   /s/ Tom Mark

  	
   

  	
   

  
	
  As its:

  	
  Vice President and Trust Officer

  	
   

  	
   

  
												



 


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