Exhibit 10(b)-13


 


TCF FINANCIAL INCENTIVE STOCK
PROGRAM


 


AMENDED AND RESTATED RESTRICTED
STOCK AGREEMENT


 


RS NO. 923-A (Amended and Restated) 
(Non-deferred) (Non-Performance-Based Executive Stock Award)


 


WHEREAS,
effective July 31, 2008, TCF
Financial Corporation (“TCF Financial” or “Company”) awarded to William A.
Cooper (the “Grantee”) 450,000 shares (the “Shares”) of common stock, par value
$.01 per share (“Common Stock”) pursuant to the terms and conditions set forth
in restricted stock award agreement RS No. 923 (the “Agreement”), subject
to the vesting requirements and other terms and conditions set forth in RS No.
923, intending that such Shares would qualify as “performance-based” under
section 162(m) of the Internal Revenue Code (“IRC”) in order that any
vesting of such Shares would be a deductible compensation expense for purposes
of TCF Financial’s corporate income tax; and


 


WHEREAS,  subsequent to the award of the Shares, TCF
Financial commenced participation in the U.S. Treasury Department’s Troubled
Assets Relief Program (“TARP”) Capital Purchase Program as authorized by the Emergency
Economic Stabilization Act of 2008 (“EESA”), which requires the following
during the time the Treasury Department holds an equity or debt position in TCF
Financial: (i) compensation to Grantee in excess of $500,000 annually will
not be tax deductible by TCF Financial under the IRC regardless of whether such
compensation qualifies as performance-based under IRC section 162(m), (ii) the Compensation Committee of the Board of Directors must
ensure that senior executive officer incentive compensation arrangements do not
encourage such officers to take unnecessary and excessive risks that threaten
the value of TCF Financial; (iii) any bonus or incentive compensation paid
to senior executive officers must be subject to recovery if the bonus or
incentive compensation payments were based on materially inaccurate financial
statements or any other materially inaccurate performance metric criteria; and (iv) no
golden parachute payments will be made to senior executive officers in excess
of those permitted under U.S. Treasury Department regulations; and


 


WHEREAS,
Grantee is or may become a “senior executive officer” of TCF Financial as that
term is defined under EESA and U.S. Treasury Department regulations during the
time TCF Financial is a participant in the TARP Capital Purchase Program; and


 


WHEREAS,
in light of the foregoing TARP Capital Purchase Program requirements, TCF
Financial and Grantee wish to amend the award of Shares to make their vesting
subject to continued service of Grantee as set forth herein but without the
requirement that TCF Financial attain specific performance targets.


 


NOW,
THEREFORE, in consideration of the terms and conditions herein, effective as of
January 20, 2009, TCF Financial and Grantee hereby amend RS No. 923 to 


 


 


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provide
that the Shares are
subject to the terms and conditions set forth in this Amended and Restated
Restricted Stock Agreement RS No. 923-A (the “Amended and Restated
Agreement”), which fully supersedes and replaces the previous Agreement with
respect to the Shares.


 


1                                          Share Award. 
This Amended and Restated Agreement shall constitute an amended award to
Grantee of the 450,000 Shares previously awarded pursuant to the TCF Financial
Incentive Stock Program (the “Program”), upon the terms and conditions therein
and hereinafter set forth.  A copy of the Program as currently in effect
is incorporated herein by reference and is attached hereto.


 


2.                                       Restrictions on Transfer and Restricted Period.


 


(a)                                  During the period (the “Restricted Period”) described in
paragraph 2(b), the Shares may not be sold, assigned, transferred, pledged, or
otherwise encumbered by the Grantee.


 


(b)                                 The Shares will be subject to the restrictions in paragraph
2(a) during the Restricted Period commencing on the date of the Amended
and Restated Agreement (the “Commencement Date”) and (subject to the forfeiture
provisions herein) continuing until the date specified in clauses (i), (ii) and
(iii) below, on which date such restrictions will expire with respect to
such Shares which shall then vest as follows:


 


(i)            150,000
Shares will vest and will no longer be subject to the restrictions of the Restricted
Period on January 1, 2010;


 


(ii)           150,000
Shares will vest and will no longer be subject to the restrictions of the
Restricted Period on January 1, 2011;


 


(iii)          150,000 Shares will vest and will no longer be subject to
the restrictions of the Restricted Period on January 1, 2012.


 


 (c)                               The Committee referred to in section 2 of the Program or its
successor (the “Committee”) shall have the authority, in its discretion, to
accelerate the time at which any or all of the restrictions in subparagraph (a) shall
lapse with respect to any Shares, or to remove any or all such restrictions,
whenever the Committee may determine that such action is appropriate by reason
of changes in applicable tax or other laws, or other changes in circumstances
occurring after the commencement of the Restricted Periods.


 


The total Shares that can vest under
this Amended and Restated Agreement shall not exceed 450,000 Shares, subject to
the adjustments referred to in paragraph 7.


 


 


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3.                                       Termination of Service.  Except as provided in paragraph 8 below and
in this paragraph 3, in the event of Grantee’s termination of employment for
any reason (other than death, total or partial disability, or normal or early
retirement), all Shares which at the time of such termination of employment are
subject to the restrictions imposed by paragraph 2(a) above shall upon
termination of employment be forfeited and returned to TCF Financial unless the
Committee, pursuant to its discretion under paragraph 2(c), shall determine to
remove any or all of the restrictions on such Shares prior to such forfeiture;
provided, however, that notwithstanding the foregoing, if the Grantee ceases
employment by reason of death, total or partial disability, or normal or early
retirement (as determined in the discretion of the Committee) a prorated
portion of the Shares will vest based on the number of months from July 31,
2008 to the termination date, divided by 41.


 


4.                                       Certificates for Shares. 
TCF Financial may issue one or more certificates in respect of the Shares in
the name of the Grantee, and shall hold such certificate(s) on deposit for
the account of the Grantee until the expiration of the Restricted Period with
respect to the Shares represented thereby.  Certificate(s) for Shares
subject to a Restricted Period shall bear the following legend:


 


“The transferability of this
certificate and the shares of stock represented hereby are subject to the terms
and conditions (including forfeiture) contained in the TCF Financial Incentive
Stock Program (the “Program”) and an agreement entered into between the
registered owner and TCF Financial Corporation.  Copies of such Program
and agreement are on file in the offices of the Secretary of TCF Financial
Corporation, 200 Lake Street East, Wayzata, MN 55391.”


 


The Grantee further agrees that, if
certificates are issued, simultaneously with the execution of this Amended and
Restated Agreement one or more stock powers shall be executed, endorsed in
blank and promptly delivered to TCF Financial.


 


If certificates are not issued, TCF
Financial shall direct the transfer agent to issue and hold the Shares during
the Restricted Period in an account where their transferability is subject to
the restrictions set forth in paragraph 2(a) of this Amended and Restated
Agreement.


 


5.                                       Grantee’s Rights. 
Except as otherwise provided herein, Grantee, as owner of the Shares, shall
have all rights of a stockholder, including the right to vote the Shares. 
The Grantee hereby irrevocably and unconditionally assigns to TCF Financial any
and all cash and non-cash dividends and other distributions paid with respect
to the Shares during the Restricted Period.


 


6.                                       Expiration of Restricted Period.  Upon the expiration of the applicable Restricted
Period with respect to the Shares, TCF Financial shall redeliver or deliver to
the Grantee (or, if the Grantee is deceased, to his legal representative,
beneficiary or heir) the certificate(s) in respect of the number of such
Shares, without the 


 


 


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restrictive legend provided for in
paragraph 4 above, or re-register with the transfer agent the number of Shares
which is not subject to the restrictions set forth in paragraph 2(a) of
this Amended and Restated Agreement.


 


7.                                       Adjustments for Changes in Capitalization of TCF Financial.  In the event of any change in the outstanding Common
Stock of TCF Financial by reason of any reorganization, recapitalization, stock
split, combination or exchange of shares, merger, consolidation or any change
in the corporate structure of TCF Financial or in the shares of Common Stock,
or in the event of any issuance of preferred stock or other change in the
capital structure of TCF Financial which the Committee deems significant for
purposes of this Amended and Restated Agreement, the number and class of Shares
covered by this Amended and Restated Agreement as well as the vesting and
forfeiture provisions in paragraphs 2, shall be appropriately adjusted by the
Committee, whose determination of the appropriate adjustment, or whose
determination that there shall be no adjustment, shall be conclusive. Any
Shares of Common Stock or other securities received, as a result of the
foregoing, by the Grantee subject to the restrictions contained in paragraph 2(a) above
also shall be subject to such restrictions and the certificate or other
instruments representing or evidencing such Shares or securities shall be
legended and deposited with TCF Financial or otherwise restricted by the
transfer agent in the manner provided in paragraph 4 above.


 


8.                                       Effect of Merger. 
In the case of any merger, consolidation, or combination of TCF Financial with
or into another corporation or other business organization (other than a
merger, consolidation, or combination in which TCF Financial is the continuing
entity and which does not result in the outstanding shares of Common Stock
being converted into or exchanged for different securities, cash or other
property, or any combination thereof), the Committee may authorize the issuance
or assumption of Benefits (as defined in the Program) as it may deem
appropriate.


 


9.                                       Effect of Change in Control. 
Each of the events specified in the following clauses (a) through (c) of
this paragraph 9 shall be deemed a “change in control” of TCF Financial (herein
referred to as the “Company”):


 


(a)                                  Any “person”, as defined in sections 13(d) and 14(d) of
the Securities Exchange Act of 1934 (the “Exchange Act”) is or becomes the “beneficial
owner” as defined in Rule 13d-3 under the Exchange Act, directly or
indirectly, of securities of the Company representing fifty percent (50%) or
more of the combined voting power of the Company’s then outstanding securities
(for purposes of this clause (a), the term “beneficial owner” does not include
any employee benefit plan maintained by the Company that invests in the Company’s
voting securities); or


 


(b)                                 During any period of two (2) consecutive years there
shall cease to be a majority of the Company’s Board of Directors (the “Board”)
comprised as follows: individuals who at the beginning of such period
constitute the 


 


 


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Board of new directors whose
nomination for election by the Company’s stockholders was approved by a vote of
at least two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved; or


 


(c)                                  The stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation, or the stockholders of the Company approve
a plan of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all the Company’s assets;
provided, however, that no change in control will be deemed to have occurred
until such merger, consolidation, sale or disposition of assets, or liquidation
is subsequently consummated.


 


Subject to the six month holding
requirement, if any, of Rule 16b-3 of the Securities and Exchange
Commission but notwithstanding any other provision in this Program (including,
but not limited to, paragraphs 2(b) and 4 of this Amended and Restated
Agreement) in the event of a change in control of TCF Financial, all terms and
conditions of this Amended and Restated Agreement shall be deemed satisfied,
all the Shares awarded hereunder shall vest as of the date of such change in
control and shall thereafter be administered as provided in paragraph 6 of this
Amended and Restated Agreement.


 


10.                                 Delivery and Registration of Shares of Common Stock.  TCF Financial’s obligation to deliver Shares of
Common Stock hereunder shall, if the Committee so requests, be conditioned upon
the receipt of a representation as to the investment intention of the Grantee
or any other person to whom such Shares are to be delivered, in such form as
the Committee shall determine to be necessary or advisable to comply with the
provisions of the Securities Act of 1933, as amended, or any other federal,
state, or local securities law or regulation.  It may be provided that any
representation requirement shall become inoperative upon a registration of such
Shares or other action eliminating the necessity of such representation under
such Securities Act or other securities law or regulation.  TCF Financial
shall not be required to deliver any Shares under the Program prior to (i) the
admission of such Shares to listing on any stock exchange on which the Common
Stock may be listed, and (ii) the completion of such registration or other
qualification of such Shares under state or federal law, rule, or regulation,
as the Committee shall determine to be necessary or advisable.


 


 


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11.                                 Program and Program Interpretations as Controlling.   The Shares hereby awarded and the terms and
conditions herein set forth are subject in all respects to the terms and
conditions of the Program, which are controlling.  All determinations and
interpretations of the Committee shall be binding and conclusive upon the
Grantee or Grantee’s legal representatives with regard to any question arising
hereunder or under the Program.


 


12.                                 Grantee Service. 
Nothing in this Amended and Restated Agreement shall limit the right of TCF
Financial or any of its affiliates to terminate the Grantee’s service as a
director, officer, or employee, or otherwise impose upon TCF Financial or any
of its affiliates any obligation to employ or accept the services of the
Grantee.


 


13.                                 Grantee Acceptance. 
The Grantee shall signify acceptance of the terms and conditions of this Amended
and Restated Agreement by signing in the space provided below and signing the
stock powers, as required under paragraph 4 above, and returning a signed copy
hereof and of the stock powers to TCF Financial.


 


14.                                 Section 409A of the Internal Revenue Code.  The arrangements described in this Amended and
Restated Agreement are intended to comply with Section 409A of the
Internal Revenue Code to the extent (if any) such arrangements are subject to
that law.


 


15.                                 Non-Competition and Non-Solicitation Obligations.  The Grantee acknowledges that Grantee is subject to
certain non-competition, non-solicitation and other obligations (the “Obligations”)
under separate contractual agreement(s) with TCF Financial or TCF National
Bank.  Grantee affirms that this Amended and Restated Agreement and the
Shares awarded hereunder constitute additional consideration for the
Obligations, which Grantee hereby re-affirms as binding and enforceable
obligations of the Grantee.


 


16.                                 TARP Capital Purchase Program.  This Amended and Restated Agreement is
intended to, and shall be interpreted, administered and construed to comply
with the Emergency Economic Stabilization Act of 2008 and all U.S. Treasury
Department regulations under its Troubled Assets Relief Program (“TARP”)
Capital Purchase Program.  Grantee
therefore agrees that, during the period the Treasury Department holds an
equity or debt position in TCF Financial acquired under the TARP Capital
Purchase Program : (i) any bonus or incentive compensation paid to Grantee
is subject to recovery by TCF Financial, and Grantee will promptly repay any
such amounts to TCF Financial, if the bonus or incentive compensation payments
were based on materially inaccurate financial statements or any other
materially inaccurate performance metric criteria, (ii) no golden
parachute payments (as defined in U.S. Treasury Department regulations) in
excess of those permitted under U.S. Treasury Department regulations will be
made to Grantee, (iii) to the extent that TCF Financial or the
Compensation 


 


 


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Committee of TCF Financial’s Board
of Directors determines that any incentive compensation arrangements with
Grantee must be revised so as to not encourage unnecessary or excessive risks
to TCF Financial, Grantee and TCF Financial agree to negotiate and effect such
changes promptly and in good faith, and (iv) Grantee agrees to the
foregoing provisions of this section notwithstanding any contrary terms of any
employment agreement, change in control agreement, bonus agreement, stock or
option award agreement, or any other incentive or benefit plan, arrangement,
policy or agreement of any nature whatsoever between Grantee and TCF Financial,
and all such agreements, plans, arrangements and policies are hereby amended as
necessary to give effect to the foregoing provisions of this section.  The foregoing provisions of this section
shall cease to apply and will be of no force and effect if TCF Financial
determines that Grantee is not, or is no longer, a senior executive officer of
TCF Financial for purposes of the TARP Capital Purchase Program.


 


 


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IN WITNESS WHEREOF, the parties
hereto have caused this RESTRICTED STOCK AMENDED AND RESTATED AGREEMENT to be
executed as of the date first above written.


 


	
   

  	
  TCF FINANCIAL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
     /s/
  Gregory J. Pulles

  
	
   

  	
   

  	
  Secretary 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ACCEPTED:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  William A. Cooper

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Street Address)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (City, State and Zip Code)

  



 


 


 


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