Exhibit 10(e)-6


 


AMENDED AND RESTATED AGREEMENT (2009)

WITH WILLIAM A. COOPER


 


THIS AGREEMENT is made and entered into as of July 31,
2009 between TCF FINANCIAL CORPORATION, a Delaware corporation (the “Company”)
and WILLIAM A. COOPER (“Cooper”).


 


R  E  C
I  T  A  L  S:


 


WHEREAS, the Company is a bank holding company and
Cooper is now and has been Chairman of the Board of the Company; and


 


WHEREAS, Cooper has been elected Chief Executive
Officer of the Company effective July 26, 2008; and


 


WHEREAS, Cooper and the Company are parties to an
agreement dated as of January 25, 2005 (the “Chairman’s Agreement”) and
the Supplement to Chairman’s Agreement dated as of January 25, 2005 (the “Supplement”)
and an Amended and Restated Agreement dated as of July 31, 2008 (the “Amended
Agreement”);


 


WHEREAS, Cooper and the Company wish to enter into
this Agreement effective as of the date hereof to provide for the amendment and
restatement of the Chairman’s Agreement and the Supplement as amended by the
Amended Agreement;


 


NOW, THEREFORE, in consideration of the mutual
promises and agreements set forth herein, the parties agree as follows:


 


1.       Employment  
and   Duties.      During  
the   term  of  this  Agreement  as 
set  forth  in  paragraph  2  below,  
Cooper shall  be  employed  as  Chief  Executive 
Officer  of  the Company  with  overall 
responsibility  for  the  business  and  affairs 
of  the  Company  and  Cooper’s powers and 
authority  shall  be  superior  to  those 
of  any  other  officer  or  employee of 
the  Company  or  its  subsidiaries.   
If  elected,  Cooper also  agrees  to  continue to
serve  as Chairman  of the  Board  of  Directors 
of  the  Company.    In  discharging 
such  duties  and  responsibilities, Cooper 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, Cooper shall apply on
a substantially 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 Cooper may have other business investments and participate in other
business ventures which shall not interfere or be inconsistent with his duties
under this Agreement.  Cooper 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 Cooper and the Company;


 


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provided
that Cooper shall travel to other locations at such times as may be necessary
for the performance of his duties under this Agreement.


 


2.       Term
of Employment.  This Agreement shall commence on the date hereof and shall
continue through December 31, 2014; provided that the term shall be
automatically extended for one year on each January 1st commencing January 1,
2015 unless either party gives written notice of non-renewal to the other three
months prior to the date on which the automatic extension would be effective.


 


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


 


(a)          Base Salary, Bonus.  Cooper shall receive:


 


(i)                                     Effective August 3,
2009, a base salary of Nine Hundred Fifty Thousand Dollars ($950,000.00)
payable in accordance with the Company’s customary payroll practices; and


 


(ii)                                  Such bonus as
may be awarded from time to time by the Board of Directors or Compensation
Committee of the Company.


 


(b)         Stock Incentives.  Cooper has received stock options and
restricted stock under the terms and conditions set forth in a Restricted Stock
Agreement dated July 31, 2008 between the Company and Cooper (the “Restricted
Stock Agreement”) and a Non-Qualified Stock Option Agreement dated July 31,
2008 between the Company and Cooper (the “Option Agreement”) (the Option
Agreement collectively with the Restricted Stock Agreement are referred to as
the “Award Agreements”) pursuant to the TCF Financial Incentive Stock Program,
as amended and restated October 20, 2008 (the “TCF Incentive Stock Program”). 
Additional awards, if any, of stock options, restricted stock and stock
appreciation rights would be made under any stock based plan from time to time
adopted by the Company (the “Stock Plans”) as from time to time determined by
the Board of Directors or Compensation Committee of the Company.  Cooper shall not receive director’s fees paid
to non-employee directors or an annual fee for serving as Chairman.


 


(c)          Reimbursement of Expenses.  The Company shall reimburse
Cooper for all business expenses properly documented, including without
limitation, Cooper’s legal fees incurred in the preparation of this
Agreement.  Any such payments shall be made no later than 2 1⁄2 months after
the end of the calendar year in which the expense was incurred.


 


(d)         Aircraft.  Cooper shall be entitled to use of the Company’s
corporate aircraft at the Company’s expense, provided that Cooper shall be
responsible for all individual income taxes resulting from his use of the
aircraft for non-business travel.


 


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(e)          Other Benefits.  Cooper shall be entitled to participate in and
shall be included in any employee benefit plan, pension plan, supplemental
employee retirement plan, fringe benefit programs or similar plan of the
Company now existing or established hereafter to the extent that he is eligible
under the general provisions thereof.


 


(f)            Perquisites.  Cooper shall be entitled to other perquisites
provided to executive officers, subject to annual review by the Compensation
Committee of the Board of Directors.  Payment of perquisites, if any,
shall be made no later than 2 1⁄2 months after the end of the calendar year in which
Cooper was entitled to such payments.


 


(g)         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 Cooper and an
opportunity for Cooper, 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 Cooper 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.  Cooper shall promptly tender such repayment
unless he disputes the findings of the Audit Committee.


 


4.                      Termination of
Employment.


 


(a)   Termination without Cause.  In the event Cooper’s employment with the
Company is terminated by the Company without Cause during the term of this
Agreement, Cooper shall be entitled to any remaining Base Salary (as set forth
in paragraph 3) determined from the date of termination through the end of the
applicable term of this Agreement. 
Company shall pay any remaining Base Salary in a single sum payment
promptly but not later than 2 1⁄2 months after the end of the calendar year in which
the termination occurs.


 


(b)   Termination for Good Reason by Cooper.   By following the procedure set forth in
paragraph 4(d), Cooper shall have the right to terminate his employment with
the Company for “Good Reason” in the event there is: (i) any material
diminution in the scope of Cooper’s authority and responsibility (provided,
however, in the event of any illness or injury which disables Cooper from
performing his duties, the Company may reassign Cooper’s duties to one or more
other employees until Cooper is able to perform such duties); (ii) a
material diminution in Cooper’s base compensation (salary, bonus opportunity,
benefits or perquisites); (iii) a material diminution in the authority,
duties, responsibilities of the supervisor to whom Cooper is required to
report; (iv) a material diminution in the budget over which Cooper retains
authority; (v) a material change in geographic location at which Cooper
must perform the services; (vi) any other action or inaction that
constitutes a material breach by the Company of this Agreement.  If the employment of Cooper is terminated by
him for Good Reason, Cooper shall be


 


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entitled
to any remaining Base Salary (as set forth in paragraph 3) determined from the
date of termination through the end of the applicable term of this
Agreement.  Company shall pay any
remaining Base Salary in a single sum payment promptly but not later than 2 1⁄2
months after the end of the calendar year in which the termination occurs.


 


(c)   Termination for Cause by the Company.  Termination for Cause shall include the
following:  (i) engaging in willful
and recurring misconduct in not following the legitimate directions of the
Board of Directors of the Company after fair warning; (ii) conviction of a
felony and all appeals from such conviction have been exhausted; (iii) engaging
in habitual drunkenness; (iv) excessive absence from work which absence is
not related to disability, illness, sick leave or vacations; or (v) engaging
in continuous conflicts of interest between his personal interests and the
interests of the Company after fair warning.


 


(d)   Notice and Right to Cure.  In the event Cooper proposes to terminate his
employment for Good Reason under paragraph (4)(b) above, Cooper shall
first provide written notice to the Company of the existence of the condition
described as Good Reason in paragraph 4(b) 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 Cooper 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, Cooper 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.


 


5.       Effect
of Termination of Service on July 31, 2008 Restricted Stock Grant.  Notwithstanding anything to the contrary in
the Amended and Restated Restricted Stock Agreement effective as of January 20,
2009 (the “Amended Restricted Stock Agreement”), it is agreed and understood
that the following provisions will apply to the restricted stock (the “Shares”)
granted to Cooper effective July 31, 2008:


 


(a)          Termination for Cause by the Company, Retirement or
Voluntary Resignation.  In
the event the employment of Cooper is terminated by the Company for Cause (as
defined in paragraph 4(c) above), or Cooper retires or voluntarily
terminates his employment with the Company without Good Reason (as defined in
paragraph 4(b) above), all Shares which have not vested and remain subject
to the Restricted Period (as defined in the Amended Restricted Stock Agreement)
at the time of such event shall be forfeited and returned to TCF Financial.


 


(b)         Termination of Service by Reason of Disability or
Death. In the event of Cooper’s disability (as determined by the Committee)
or death, Cooper shall be entitled to a prorated number of Shares that remain
subject to the Restricted Period (as defined in the Amended Restricted Stock
Agreement) at the time of such event; the determination of which shall be made
in accordance with the terms and conditions set forth in paragraph


 


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2(b) of the Amended Restricted Stock Agreement, including without
limitation the vesting schedule.  The prorated amount shall equal: the
number of Shares, if any, that vest under subparagraphs 2(b)(i), 2(b)(ii) and/or
2(b)(iii) of the Amended Restricted Stock Agreement, multiplied by a
fraction, the numerator of which
is the number of full calendar months Cooper was employed by TCF Financial from
August 1, 2008 through the date of such termination; and the denominator of which is 41.


 


(c)          Termination of Employment by Cooper for Good Reason
or by Company without Cause.  In the event Cooper terminates his employment
with the Company for Good Reason (as defined in paragraph 4(b) above) or
his employment with the Company is terminated by the Company without Cause,
Cooper shall be entitled to the Shares when, as and if they become vested in
accordance with the terms and conditions set forth in paragraph 2(b) of
the Amended Restricted Stock Agreement including without limitation the
vesting schedule, without the requirement that Cooper continue in the employ of
the Company.


 


6.                      Covenant Not to
Compete; Non-Solicitation Covenant.


 


(a)          Covenant Not to Compete.  During the term of this Agreement, Cooper
agrees that he will not directly or indirectly substantially compete with TCF
Financial, TCF National Bank, TCF National Bank Arizona or their respective
subsidiaries in the Relevant Market.  The “Relevant Market” is financial
businesses located in the States of Arizona, Michigan, Minnesota, Iowa, North
Dakota, South Dakota, Colorado and Wisconsin, and the Chicago metropolitan
area.


 


(b)   Non-Solicitation Covenant. 
During the term of this Agreement, Cooper agrees that, except with the prior
written permission of the Board of Directors of TCF Financial, he will not
offer to hire, entice away, or in any manner attempt to persuade any officer, employee,
or agent of TCF Financial, TCF National Bank or TCF National Bank Arizona or
any of their subsidiaries to discontinue his or her relationship with TCF
Financial, TCF National Bank, TCF National Bank Arizona or any of their
subsidiaries nor will he directly or indirectly solicit, divert, take away or
attempt to solicit any business of the Company or any of its subsidiaries as to
which Cooper has acquired any knowledge during the term of his employment with
the Company or his service as a director of TCF Financial.


 


(c)   Extension of Terms of Covenant Not to
Compete and Non-Solicitation Covenant.  In consideration for the
acceleration of benefits under the Award Agreements upon a Change in Control as
defined in the TCF Incentive Stock Program, Cooper’s obligations under
paragraphs 6(a) and 6(b) shall be extended for three (3) years
following any such Change in Control; provided, however, that during such
extended period Cooper may be permitted to engage in activities  otherwise
prohibited by paragraphs 6(a) and 6(b) with the prior written
permission of the Board of Directors of the Company, which shall not be
withheld if the nature and extent of such activity would be immaterial or
inconsequential to the Company.


 


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(d)   Remedies.  If Cooper commits a
breach, or threatens to commit a breach, of any of the provisions of this
paragraph 6, the Company shall have the right of specific performance in
addition to any rights and remedies otherwise available at law or in equity.


 


7.       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 Cooper (whether pursuant to this
Agreement, the Award Agreements 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
Cooper in cash an amount (the “Gross-Up Payment”) such that after payment by
Cooper 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, Cooper retains (after payment of such taxes,
interest and penalties) an amount of the Gross-Up Payment equal to the Excise
Tax imposed on the Payments.  Any such
Gross-Up Payments shall be made promptly, and in no event later than the end of
the calendar year following the year in which the right to Gross-Up Payment
arises.


 


(b)   Determination of Gross-Up Payment. 
Subject to paragraph (c) below, all determinations required to be made
under this Agreement or under the Award Agreements, 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 a Change in
Control (the “Accounting Firm”) which shall provide detailed supporting
calculations to the Company and Cooper within thirty (30) days after a Payment
is made.  In the event that the Accounting Firm is serving as accountant
or auditor for the individual, entity or group effecting the Change in Control,
Cooper shall appoint another nationally recognized accounting firm to make the
determinations required under this paragraph (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 shall be promptly paid by the Company.  A Gross-Up Payment (as
determined pursuant to this paragraph) shall be paid by the Company to Cooper 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 Cooper, it
shall furnish Cooper with a written opinion that failure to report the Excise
Tax on Cooper’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 Cooper.  As a result
of the uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm, it is possible that
Gross-Up Payments which will not have been made by the Company should have


 


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been
made (“Underpayment”).  In the event that the Company exhausts its
remedies pursuant to paragraph (c) below, and Cooper 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 Cooper within five (5) days after such
determination.


 


(c)   Contest.  Cooper 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 sixty
(60) business days after Cooper knows of such claim, but in no event later
than ten (10) business days prior to the Internal Revenue Service response
due date, at which time Cooper shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid.  Cooper
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 Cooper in writing prior to
the expiration of such period that it desires to contest such claim, Cooper
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 Cooper;


 


(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 Cooper 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 (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 Cooper to pay the tax, interest and penalties
claimed and sue for a refund or contest the claim in any permissible manner,
and Cooper 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 Cooper to pay such claim and sue for a refund, the Company
shall advance, on an interest-free basis, the amount of such payment to Cooper
together with any Excise Tax and income taxes imposed with respect to such
advance or with respect to


 


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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 Cooper 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 Cooper 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 Cooper of an amount
advanced by the Company pursuant to paragraph (c), Cooper becomes entitled to
receive any refund with respect to such claim, Cooper shall (subject to the
Company’s complying with the requirements of paragraph (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
Cooper have been paid by Cooper from such refund).  If, after the receipt
by Cooper of an amount advanced by the Company pursuant to paragraph (c), a
determination is made that Cooper shall not be entitled to any refund with
respect to such claim and the Company does not notify Cooper 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)   Section 409A of the Internal Revenue
Code.  The arrangements described in this Agreement and the Award
Agreements are intended to comply with Section 409A of the Internal
Revenue Code to the extent 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.


 


8.       Attorney’s
Fees.  In the event of a dispute between the Company and Cooper
relating to Cooper’s services hereunder or the terms or performance of this
Agreement, including, but not limited to, paragraphs 3(g) and 4(d) of
this Agreement, the Company shall promptly pay Cooper’s reasonable expenses of
attorney’s fees and expenses in connection with such dispute upon delivery of
periodic billings for same, provided that (i) Cooper shall promptly repay
all amounts paid under this paragraph 8 at the conclusion of such dispute if
the resolution thereof includes a finding that Cooper did not act in good faith
in the matter in dispute or in the dispute proceeding itself, and (ii) no


 


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claim
for expenses of representation shall be submitted by Cooper 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.


 


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 Cooper or his beneficiary may
be entitled to receive under any other plan or program now or hereafter
maintained by the Company or TCF Subsidiaries.


 


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 Cooper, such obligations have been assumed by the successor as a
matter of law.  Cooper’s rights under this Agreement shall inure to the
benefit of, and shall be enforceable by, Cooper’s legal representative or other
successors in interest, but shall not otherwise be assignable or transferable.


 


11.     Other
Agreements.  This Agreement supersedes and replaces effective the date
hereof all prior agreements or understandings relating to the terms of Cooper’s
service with the Company, including the Chairman’s Agreement and the
Supplement, and the Amended Agreement, except as set forth herein.  Except
as specifically provided herein, this Agreement does not supersede or replace
any agreement between the Company and Cooper pursuant to any plans or programs
of the Company, including any stock option agreement, restricted stock
agreement or supplemental retirement agreement.


 


12.     Governing
Law.  This Agreement shall be governed by and construed in accordance
with the laws of the State of Minnesota.


 


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IN WITNESS WHEREOF, the parties have duly executed
this Agreement as of the day and year first written above.


 


	
  WITNESS:

  	
   

  	
  TCF FINANCIAL
  CORPORATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  James Korstange

  	
   

  	
  By

  	
  /s/ Gregory J. Pulles

  	
   

  
	
   

  	
   

  	
  Its

  	
  Vice
  Chairman and Secretary

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Pamela J. Gordley

  	
   

  	
   

  	
  /s/ William A. Cooper

  	
   

  
	
   

  	
   

  	
   

  	
       William
  A. Cooper

  	
   

  



 


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