Exhibit 10(f)


 


CHIEF EXECUTIVE
OFFICER


CHANGE IN CONTROL
AGREEMENT


 


THIS AGREEMENT, made and
entered into as of January 1, 2006 between TCF FINANCIAL CORPORATION, a
Delaware corporation (“TCF Financial” or the “Company”) and Lynn A. Nagorske
(the “Executive”).


 


R
E  C  I  T  A  L  S:


 


WHEREAS, the Executive is
now and has been President and Chief Operating Officer of the Company and has
been elected to the position of Chief Executive Officer of the Company
effective as of the date first set forth above;


 


WHEREAS, the Executive
and the Company are contemporaneous with the execution and delivery of this
Agreement entering into an employment agreement (the “Employment 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; and


 


WHEREAS, as a partial
inducement for the Executive to enter into the Employment Agreement with the
Company, the Company desires to provide the Executive with certain compensation
and benefits in the event a Change in Control of the Company occurs,


 


NOW, THEREFORE, in
consideration of the mutual premises 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


 


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(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


 


(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 


 


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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 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, no later than 30 days 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).


 


(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 Severance
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 Section 409A
of the Internal Revenue Code to the extent 


 


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such arrangements are
subject to that law.  The parties agree
that they will negotiate in good faith regarding amendments necessary to bring
this Agreement into compliance with the terms of that Section or an
exemption therefrom as interpreted by guidance issued by the Internal Revenue
Service.  The parties further agree that
to the extent any part of this Agreement fails to qualify for exemption from or
satisfy the requirements of Section 409A, the affected arrangement may be
operated in compliance with Section 409A pending amendment to the extent
authorized by the Internal Revenue Service. 
In such circumstances Company will administer this Agreement in a manner
which adheres as closely as possible to the existing terms and intent of the
Agreement while complying with Section 409A.  This paragraph does not restrict Company’s
rights (including, without limitation, the right to amend or terminate) with
respect to this Agreement to the extent such rights are reserved under the
terms of this Agreement.


 


4.                                       Certain
Additional Payments by the Company.


 


(a)                                  Gross-Up
Payment.  Anything to the contrary
notwithstanding, in the event it shall be determined that any payment,
distribution or benefit made or provided by the Company (or any successor
thereto) to or for the benefit of the Executive (whether pursuant to this
Agreement or otherwise) (a “Payment”), would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended,
(the “Code”) or any interest or penalties with respect to such excise tax (such
excise tax, together with any such interest and penalties, are collectively
referred to as the “Excise Tax”), then the Company shall pay the Executive in
cash an amount (the “Gross-Up Payment”) such that after payment by the
Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including but not limited to income taxes (and any
interest and penalties imposed with respect thereto) and any additional Excise
Tax, imposed upon the Gross-Up Payment, the Executive retains (after payment of
such taxes, interest and penalties) an amount of the Gross-Up Payment equal to
the Excise Tax imposed on the Payments.


 


(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 


 


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Section 4999 of the
Code at the time of the initial determination by the Accounting Firm, it is
possible that Gross-Up Payments which will not have been made by the Company
should have been made (“Underpayment”). 
In the event that the Company exhausts its remedies pursuant to
paragraph 4(c) below, and the Executive is thereafter required to make a
payment of Excise Tax, the Accounting Firm shall promptly determine the amount
of the Underpayment that has occurred and any such Underpayment shall be paid
by the Company to the Executive within five (5) days after such
determination.


 


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


 


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


 


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


 


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


 


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


 


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Tax and income taxes
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; and further provided that any extension of the statute
of limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. 
Furthermore, the Company’s control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.


 


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


 


(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 


 


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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 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 one year of the
performance of the services for which such claim is made.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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/ William A. Cooper

  	
   

  
	
   

  	
   

  	
  William A. Cooper

  	
   

  
	
   

  	
   

  
	
  /s/ Gregory J. Pulles

  	
   

  	
  Its: Chairman of the
  Board

  
	
  Vice Chairman, General
  Counsel

  	
                  and
  Chief Executive Officer

  
	
   and Secretary

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESS:

  	
   

  
	
   

  	
   

  
	
  /s/ Diane O. Stockman

  	
   

  	
  /s/ Lynn A. Nagorske

  	
   

  
	
   

  	
  Lynn A. Nagorske

  
							



 


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