EXHIBIT 10(g) 09-11-00
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT made and entered into as of September 12, 2000 between
TCF FINANCIAL CORPORATION, a Delaware Corporation (the "Company") and Xxxxxx X.
Xxxxxx (the "Executive").
R E C I T A L S:
WHEREAS, the Executive is now and has been Vice Chairman and Chief
Operating Officer of the Company;
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 contemporaneously
enter into a Nonsolicitation and Confidentiality 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) CAUSE. Termination of Executive's employment for "cause" shall be
deemed to have occurred if the Company follows the procedures set forth in this
paragraph and terminates Executive's employment on account of any one of the
following: (i) Executive has engaged in willful and recurring misconduct in not
following the legitimate directions of the Board of Directors of the Company;
(ii) Executive has been convicted of a felony and all appeals from such
conviction have been exhausted; (iii) Executive has engaged in habitual
drunkenness; (iv) Executive has been excessively absent from work which absence
is not related to disability, illness, sick leave or vacations; or (v) Executive
has engaged in continuous conflicts of interest between his personal interests
and the interests of the Company. If the Company proposes to terminate the
employment of the Executive for Cause, the Company shall give written notice to
the Executive specifying the reasons for such proposed determination with
particularity and, in the case of a termination for Cause under clause (i) of
this paragraph (including any breach of the provisions of paragraph 5 of this
Agreement), (iii) or (iv), 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 thirty (30) days
from the Executive's receipt of the notice of proposed termination.
Notwithstanding the foregoing, the Executive's employment shall not be
terminated
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for Cause unless and until there shall be delivered to the Executive a copy of
the resolution duly adopted by the affirmative vote of not less than the
majority of the members of the Board of Directors of the Company at a meeting
called and held for the purpose (after reasonable notice to the Executive and an
opportunity for the Executive, together with his legal counsel, to be heard
before the Board of Directors) finding that, in the opinion of the Company's
Board of Directors, the Executive has engaged in conduct justifying a
termination for Cause.
(b) CHANGE IN CONTROL. A "Change in Control" shall be deemed to have
occurred if, prior to the expiration of the term of this Agreement:
(i) 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
thirty percent (30%) or more of the combined voting power of the
Company's then outstanding securities;
(ii) during any period of two (2) consecutive years there
shall cease to be a majority of the Board comprised as follows:
individuals who at the beginning of such period constitute the Board of
new directors whose nomination for election by the Company's
shareholders 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
(iii) the shareholders 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 70% 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 shareholders 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 if
such merger, consolidation, sale or disposition of assets, or
liquidation is not subsequently consummated.
(c) GOOD REASON. By following the procedure set forth in this
paragraph, the executive shall have the right to terminate the Executive's
employment with the company for "Good Reason" in the event (i) the executive is
not at all times the same duly elected officer of the Company that Executive was
immediately prior to the change in control; (ii) there is any material reduction
in the scope of the Executive's authority and responsibility (provided, however,
in the event of any illness or injury which disables the Executive from
performing the Executive's duties, the Company may reassign the Executive's
duties to one or more other employees until the Executive is able to perform
such duties); (iii) there is a reduction in the Executive's Base Salary, an
amendment to any stock incentive plan, pension plan or supplemental employee
retirement plan applicable to the
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Executive which is materially adverse to the Executive, or a material reduction
in the other benefits to which the Executive was entitled prior to the Change in
Control; (iv) the Company requires the Executive's principal place of employment
to be anywhere other than where it was immediately prior to the change in
control, or there is a relocation of the Company's principal executive offices
from where the were immediately prior to the change in control; or (v) the
Company otherwise fails to perform its obligations under this Agreement. If the
Executive proposes to terminate his employment for Good Reason under this
paragraph, the Executive shall give written notice to the Company, specifying
the reason therefor with particularity. In the event the Executive proposes to
terminate his employment for Good Reason under clause (i), (ii), (iii) or (iv)
in this paragraph, the termination shall be effective on the date of such
notice. In the event the Executive proposes to terminate his employment for Good
Reason under clause (v) in this paragraph, the Company will have an opportunity
to correct any curable situation to the reasonable satisfaction of the Executive
within the period of time specified in the notice which shall not be less than
thirty (30) days. If such correction is not so made or the circumstances or
situation is such that it is not curable, the Executive may, within thirty (30)
days after the expiration of the time so fixed within which to correct such
situation, give written notice to the Company that his employment is terminated
for Good Reason effective forthwith.
(d) TERMINATION DATE. "Termination Date" means the date on which the
Executive's employment with the Company is terminated.
2. TERMINATION UPON CHANGE IN CONTROL. The Executive shall be entitled
to the following severance benefits (which benefits in each case are referred to
as the "Termination Payments") if a Change in Control occurs and (i) the
Executive terminates his employment for any reason by giving the Company notice
within the 30-day period immediately preceding the first anniversary of the
closing date of the Change in Control or (ii) within twenty-four (24) months
after the occurrence of such Change in Control (A) the Executive terminates
employment for Good Reason, or (B) the Executive's employment is terminated by
the Company without Cause:
(a) BASE SALARY. The Company shall pay the Executive a lump sum cash
payment, no later than thirty (30) days after the date on which his employment
terminates, in an amount equal to the Executive's base salary multiplied by two
(2). For this purpose, "base salary" means the Executive's annual salary rate at
the time of employment termination or just prior to the Change in Control,
whichever is higher.
(b) ANNUAL BONUS. If the Termination Date (as defined below) occurs
before the annual bonus for any preceding calendar year has been paid, the
Company shall pay to the Executive the amount of the Executive's annual bonus
for such preceding calendar year as soon as it is determinable. In addition, not
later than thirty (30) days after the date on which the Executive's employment
terminates, the Company shall pay the Executive a lump such cash payment equal
to the average of the annual bonus paid or payable to the Executive in respect
of the three calendar years immediately preceding the year in which the Change
in Control occurred multiplied by two (2).
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(c) [Reserved]
(d) STOCK INCENTIVES. Not later than thirty (30) days after the date on
which the Executive's employment terminates, the Company shall pay the Executive
a lump sum cash payment equal to the sum of:
(i) the amount by which the fair market value (determined as
of the Termination Date) of the number of shares of stock subject to
any stock option which is forfeited or which otherwise becomes
nonexercisable by the Executive by reason of his termination of
employment exceeds the option price for such shares;
(ii) such additional amounts (or the fair market value of such
additional property) in excess of the amount determined pursuant to
paragraph 1(d)(i) that would have been paid or distributed to the
Executive upon his exercise of any such forfeited stock options, had
such options been exercisable, and exercised, by the Executive as of
the Termination Date;
(iii) an amount equal to the fair market value (determined as
of the Termination Date) of any shares of restricted stock forfeited by
the Executive by reason of his termination of employment; and
(iv) an amount equal to the amount that the Executive would
have received if any stock appreciation right which is forfeited or
which otherwise becomes nonexercisable by the Executive by reason of
his termination of employment had been exercisable, and exercised, by
Executive as of the Termination Date.
It is understood and agreed that the payments under this paragraph 2(d)
are to occur only to the extent Executive is not entitled to exercise
his options or stock appreciation rights, or to retain or receive his
restricted stock, after the termination of his employment under the
provisions of Executive's stock option, restricted stock, or stock
appreciation rights agreements. The provisions of this paragraph 2(d)
shall not apply to any restricted stock grants under any agreement with
the Company in the event a "Change in Control" shall have occurred
within the meaning of any such agreement and as a result the
Executive's stock grant has vested under the terms of such agreement.
3. 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 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
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to such taxes), including but not limited to income taxes (and any interest and
penalties imposed with respect thereto) and the Excise Tax, imposed upon the
Gross-Up Payment, the Executive retains 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 3(c) below,
all determinations required to be made under this paragraph 2, 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 3 (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 3 shall be promptly paid by the Company. An Gross-Up Payment (as
determined pursuant to this paragraph 3) 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
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 3(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
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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 3(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 claimed
and xxx 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 xxx for a refund, the Company shall advance the amount
of such payment to the Executive, on an interest-free basis, from any
Excise Tax or income tax, including interest or penalties with respect
thereto, 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 3(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 3(c)) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by the Executive
of an amount advanced by the Company pursuant to paragraph 3(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.
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4. BENEFITS IN LIEU OF SEVERANCE PAY POLICY. The severance benefits
provided for in paragraph 2 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.
5. 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 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 then (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 xxxxxxxx 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.
6. 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.
7. 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
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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.
8. 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.
9. 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.
10. 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.
11. TERM. The term of this Agreement shall commence on the date it is
signed and shall continue through January 1, 2008, provided that in the event
Executive's Year 2000 Stock Grant becomes fully vested prior to January 1, 2008
(other than due to a change in control) this Agreement shall terminate on the
date on which such full vesting occurs.
12. 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.
13. NO GUARANTEE OF EMPLOYMENT; PRIOR SEVERANCE CONTRACT SUPERCEDED.
This Agreement shall not be construed as any guarantee or obligation of
continuing employment on the part of the Company or Executive. Executive's
employment remains at will. This Agreement supercedes and replaces any prior
Change in Control contract or severance contract between Company and Executive.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first written above.
TCF FINANCIAL CORPORATION
ATTEST:
By
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Its
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Vice Chairman, General Counsel
and Secretary
WITNESS:
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Xxxxxx X. Xxxxxx
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