EXHIBIT 10(s)
TRUST AGREEMENT FOR
TCF FINANCIAL SENIOR OFFICER DEFERRED COMPENSATION PLAN
THIS TRUST AGREEMENT, made effective as of the 1st day of October, 2000,
by and between TCF Financial Corporation, a Delaware corporation ("TCF
Financial") and The First National Bank in Sioux Falls (the "Trustee"),
W I T N E S S E T H:
WHEREAS, TCF Financial has established the TCF Financial Senior Officer
Deferred Compensation Plan (the "Plan"), which plan is now in full force and
effect; and
WHEREAS, the Plan is a nonqualified deferred compensation plan for select
management of TCF Financial and its subsidiaries (the "Companies" or,
individually, the "Company"), and TCF Financial wishes to establish a convenient
method for discharging its obligations to pay deferred compensation under said
Plan;
NOW, THEREFORE, the parties to this Agreement do hereby agree as follows:
ARTICLE 1
ESTABLISHMENT AND ACCEPTANCE OF TRUST
SECTION 1.1. This Trust shall be known as the "TRUST FOR TCF FINANCIAL
SENIOR OFFICER DEFERRED COMPENSATION PLAN." The Trustee hereby accepts the Trust
subject to all of the terms and conditions of this Agreement, and agrees to hold
and administer the assets of the Trust and to execute the Trust in accordance
with the provisions hereof. The assets deposited with the Trustee and held
pursuant to this Trust are referred to herein collectively as the "Trust Fund."
SECTION 1.2. TCF Financial has obtained a ruling from the Internal Revenue
Service that the amounts credited to the accounts of Plan participants pursuant
to Article 4 will not be included in their gross income for federal income tax
purposes until such time as they are actually paid or otherwise made available
to such participants.
ARTICLE 2
CONTRIBUTIONS TO THE TRUST
SECTION 2.1. The Trustee shall receive from time to time such amounts in
cash or other property acceptable to the Trustee as the Companies shall
contribute pursuant to the terms of the
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Plan. Each such contribution shall be accompanied by a statement designating the
Plan participant on behalf of whom such contribution is being made and, if more
than one account has been established for such participant pursuant to Section
4, the account to which such contribution will be credited. The Trustee shall be
under no obligation to collect any such contributions, and all responsibility
for determining the amount, timing, and types of contributions made to the
Trustee shall be upon the Companies or their designees. Nothing in this
Agreement shall be construed as requiring the Companies, or any of them, to make
any contributions to the Trust.
SECTION 2.2. All contributions so received and all proceeds, investments,
reinvestments, and income thereof in the Trustee's possession shall be held,
invested, and, with all disbursements therefrom, accounted for by the Trustee as
provided in this Agreement.
SECTION 2.3. No portion of the Trust Fund shall be diverted to or used for
any purpose other than the payment of benefits pursuant to the Plan, or for the
payment of expenses of administering the Plan and the Trust, or for the payment
of expenses incurred in the making and administering of Trust investments
pursuant to Sections 4 and 5, until such time as the Companies' obligations to
make payments pursuant to the Plan have been fully discharged; PROVIDED, and
notwithstanding anything in this Agreement to the contrary, at all times during
the continuance of this Trust, the principal and income of the Trust Fund shall
be subject to the claims of the general creditors of the Companies. At any time
that the Trustee has actual knowledge, or has determined, that a Company is
"Insolvent," it shall deliver any undistributed principal and income credited to
the accounts established for participants employed by such Company to satisfy
such claims as a court of competent jurisdiction may direct. The Board of
Directors and the Chief Executive Officer of each Company shall have the duty to
inform the Trustee of that Company's Insolvency. If a Company or any person
claiming to be a creditor of a Company alleges in writing to the Trustee that
such Company has become Insolvent, and if the Trustee determines such allegation
is made in good faith and upon reasonable grounds, the Trustee shall immediately
suspend payments from the accounts established for participants employed by such
Company and shall hold all assets of such accounts subject to claims of such
Company's creditors. The Trustee shall then request, within 10 days, from such
Company sufficient information to determine if the Company is Insolvent. If the
Company shall fail or refuse to supply sufficient information from which the
Trustee may determine if the Company is Insolvent within 30 days of the
Trustee's request, the Trustee shall promptly request such information from the
party which alleged that the Company is Insolvent. If, on the basis of the
information so provided, the Trustee determines that the Company is not
Insolvent, it shall immediately resume payments from the accounts established
for participants employed by such Company, together with payment of any amounts
held back by the Trustee while making a determination as to Insolvency. If the
Trustee determines the Company is Insolvent, or if it has not received
sufficient information to make a determination as to the Company's solvency, it
shall resume such payments only after the Trustee has determined that the
Company is no longer Insolvent. Unless the Trustee has actual knowledge of a
Company's Insolvency, it shall have no duty to inquire whether any Company is
Insolvent. The Trustee may in all events rely on such evidence concerning the
Companies' solvency as may be furnished to the Trustee which will give it a
reasonable basis for making a determination concerning the Companies' solvency,
and
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nothing in this Agreement shall in any way diminish any right of the Plan's
participants or their beneficiaries to pursue their rights as general creditors
of the Companies with respect to benefits payable to them pursuant to the Plan.
To assist the Trustee with its determinations required hereunder, the Trustee
may rely upon the advice of legal counsel and/or other professional counsel
retained by the Trustee and such counsel's reasonable fees and expenses shall be
payable from the assets of the Trust or, at TCF Financial's election, may be
directly paid by TCF Financial and/or one or more of the Companies, PROVIDED
that TCF Financial is notified in advance of the Trustee's retention of legal
counsel and TCF Financial or the Committee consents thereto, which consent shall
not be unreasonably withheld. A Company shall be considered "Insolvent" for the
purposes of this Agreement if it is unable to pay its debts as they mature, or
if it is a party as a debtor to a proceeding pending under the U.S. Bankruptcy
Code, or under any other applicable state or federal bankruptcy law.
ARTICLE 3
PAYMENTS FROM THE TRUST FUND
SECTION 3.1.
a. When a Plan participant or beneficiary becomes entitled to
benefits pursuant to the Plan, the committee appointed to administer the Plan
(the "Committee") shall notify and direct the Trustees in writing of:
i. the name, social security number, and mailing address of
such participant or beneficiary;
ii. the amount and form of the distributions to be made to such
participant or beneficiary under the Plan;
iii. the period for which such distributions are to be made;
and
iv. the date on which such distributions are to commence.
Upon receipt of such notice and direction, the Trustee shall commence payments
due to such participant or beneficiary out of the Trust assets. Such payments
shall be debited to the account or accounts established for such participant as
provided in Section 4 and shall continue until the earliest of: (A) the date on
which the last payment due to such participant or beneficiary has been made; (B)
the balance credited to the account or accounts from which such payments are to
be made has been reduced to zero; or (C) the Trustee receives written notice and
direction from the Committee to cease distributions because a Company will
continue such payments out of its general assets.
b. If the Trustee receives written notice and direction from the
Committee that a Company will continue any payments due pursuant to this section
3.1 out of its general assets, the Trustee shall discontinue the making of such
distributions out of the Trust Fund;
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PROVIDED, that the Trustee shall resume such distributions (and shall make any
payments then in arrears) if it receives written notice and direction from the
Committee that the Company will no longer make such payments from its general
assets.
c. Distributions due pursuant to this section 3.1 shall be made at
such times, and in such form, as may be provided for under the Plan.
d. A "Directing Party" for purposes of this Agreement shall include
TCF Financial, the Committee, or any participant or beneficiary authorized by
this Agreement to direct the Trustee, as applicable (collectively referred to
for purposes of this Agreement as the "Directing Party").
e. Notwithstanding paragraphs a, and b of this Section, the following
shall apply on and after a Change in Control (as defined in Section 5(j) of the
Plan). If the Trustee receives notification from any source that a distribution
may be due to a participant or beneficiary, the Trustee shall promptly request
from the Committee all relevant information and directions relative to such
distribution(s) and if the Committee shall fail to provide such information
and/or directions within 30 days, the Trustee shall accept and act upon any
information and/or directions received from the participant or beneficiary with
respect to commencement or re-commencement of the payment of distributions to
such participant or beneficiary. In connection with providing such information
and/or directions, the participant or beneficiary shall be deemed a "Directing
Party" for purposes of this Agreement.
f. The Trustee shall be held harmless and shall not be liable for its
acts with respect to distributions from the Trust Fund when following the
directions of the Committee, or for failure to act in the absence of such
directions, nor shall the Trustee be liable or responsible for any payment made
by it in good faith and in the exercise of reasonable care without knowledge of
the changed condition or status of any payee.
SECTION 3.2. Except to the extent that such amounts are promptly paid by
the Companies, the Trustee shall also pay out of the Trust Fund: (a) all broker
fees and other expenses incurred in connection with the sale or purchase of
investments; (b) all personal property taxes, income taxes, and other taxes of
any kind (including taxes payable by the Companies, net of any related tax
savings to the Companies) at any time levied or assessed under any present or
future law upon, or with respect to, the Trust Fund or any property included in
the trust Fund; and (c) its own compensation and all other reasonable expenses
of administering the Plan and the Trust, including legal and/or other
professional fees reasonably incurred by the Trustee and/or the Trust pursuant
to Section 2.3 of this Agreement. Expenses shall be charged to the Trust Fund
without allocation among the accounts established pursuant to Section 4, unless
an expense is directly attributable to one or more of such accounts, in which
case such expense shall be charged directly to such accounts. The Trustee may
dispose of Trust investments, if necessary to provide cash assets for the
payment of expenses.
SECTION 3.3. As directed by the Committee, the Trustee shall withhold all
or any part of any distribution required to be made hereunder as the Committee
reasonably deems necessary
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and proper to protect the Trustee or the Trust Fund against any liability or
claim on account of any estate, inheritance, income, or other tax, and the
Trustee may discharge any such liability with any part or all of any such
payment so withheld.
SECTION 3.4. Distributions pursuant to Section 3.1 shall be deemed to have
been sufficiently made if they are sent by first class mail to the participant
at the address provided to the Trustee by the Committee. If any such
distribution is returned to the Trustee unclaimed, the Trustee shall notify the
Committee and shall not make any further distributions to such payee until it
receives further directions from the Committee.
ARTICLE 4
INVESTMENTS OF THE TRUST FUND; PARTICIPANTS' ACCOUNTS
SECTION 4.1. Except as otherwise specifically provided herein, the Trustee
shall invest, reinvest, and hold the assets of the Trust Fund in such
investments as may be permitted by the Committee and as each Plan participant
shall direct in writing for his own account. Insofar as the Trustee has acquired
an investment for a Plan participant's Account pursuant to such directions, the
participant shall have the right to determine confidentially whether such
investment will be tendered in a tender or exchange offer, and to direct the
Trustee accordingly. The Trustee shall not be restricted to those investments
which are authorized by the laws of any State for the investment of trust funds.
In addition, the Trustee may, for reasonable periods of time, hold in its
banking department any part or all of the Trust Fund uninvested or in cash
without liability for interest thereon, pending the investment of such funds or
the payment of costs, expenses, or benefits payable under the Plan in the
banking department of any corporate Trustee serving hereunder or of any other
bank, trust company or other financial institution including those affiliated in
ownership with the Trustee. The Trustee shall not be liable for any action taken
or omitted by it pursuant to such written directions which shall be deemed to be
authorized by the Committee and to be directions of the Committee.
Notwithstanding the foregoing provisions of this Section 4.1, the rights of each
Plan participant to direct the investment of his account shall be subject to the
claims of the general creditors of the Company by which such participant is
employed. Any investment direction of a participant shall be made by each
December 31 as applicable to the next succeeding calendar year and shall be
irrevocable with respect to such calendar year, unless the Committee shall
direct otherwise.
SECTION 4.2. The Trustee shall establish one or more separate accounts for
each Plan participant, and each such account shall be designated by the name of
the participant for whom it has been established. The assets of the Trust Fund
initially deposited with the Trustee shall be allocated among these accounts in
accordance with the instructions of the Committee. All contributions received by
the Trustee on behalf of a participant, and all dividends or distributions made
with respect to property allocated to such participant's account, shall then be
credited to such account and invested as the participant shall direct.
Distributions made by the Trustee to a Plan participant shall only be made from
such Participant's account to the extent of the balance thereof.
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SECTION 4.3. Notwithstanding the foregoing, a Plan participant's right to
direct the investment of his account during any period of distribution
subsequent to his retirement or disability shall be the same as an active
participant's unless the Committee directs otherwise. Notwithstanding the
foregoing provisions of this Section 4.3, the rights of each Plan participant to
direct the investment of his Account (which directions shall be deemed to be
directions of the Committee) shall be subject to the claims of the general
creditors of the Company by which such participant is employed.
SECTION 4.4. In the event the Trustee is directed to engage in borrowing
on behalf of a Plan participant's Account as directed by the Committee pursuant
to Section 5.1(f) hereof, the Trustee shall pledge as security for any such loan
all shares of TCF Stock acquired with the proceeds of such loan and shall hold
such shares in suspense (unallocated), pursuant to the terms of section 10.c of
the Plan, until such time, if any, as the shares are released from pledge.
During any time when such shares are held in suspense, they shall not be deemed
to be part of the Plan participant's Account in the Trust under this Article 4,
except that dividends paid on such shares shall be subject to investment
direction of the participant to the extent they exceed principal and/or interest
payments on such loan. In the event any shares are released from pledge, the
shares shall thereafter be immediately allocated to the participant's Account
under this Article 4. In no event shall such shares be credited to or inure to
the benefit of the Account of another participant under this Article 4.
ARTICLE 5
POWERS AND DUTIES OF THE TRUSTEE
SECTION 5.1. In addition to the powers and discretions conferred upon the
Trustee by any other provision of this Agreement, but subject to the provisions
of Article 4 hereof, the Trustee shall have all the usual powers conferred by
law on trustees and shall also have the following express powers with respect to
the Trust Fund:
a. To retain, to exchange for any other property, to sell in any
manner and at any time, to divide, subdivide, partition, mortgage, improve,
alter, remodel, repair, and develop in any manner any property, real or
personal, to lease such property for any period of time, and to grant options to
sell or lease any such property, without regard to restrictions and without the
approval of any court.
b. As directed by the Committee, to vote stock held by the Trust Fund
personally or by proxy, and to delegate the Trustee's voting powers with respect
to such stock to such proxy.
c. To exercise subscription, conversion, and other rights and options
as directed by the Committee, and to make payments form the Trust Fund in
connection therewith.
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d. At the direction of the Committee, to take any action and to
abstain from taking any action with respect to any reorganization,
consolidation, merger, dissolution, recapitalization, refinancing, and any other
plan or change affecting any property constituting a part of the Trust Fund, and
in connection therewith to delegate its discretionary powers and to pay
assessments, subscriptions, and other charges from the Trust Fund.
e. In any manner, and to any extent, to waive, modify, reduce,
compromise, release, settle, and extend the time of payment of any claim of
whatsoever nature in favor of or against the Trustee or all or any part of the
Trust Fund.
f. At the direction of the Committee, to borrow money from any person
(including, but not limited to, TCF Financial, its successors, assigns or
affiliates) and to pledge assets of the Trust Fund as security for repayment of
any such loan. Any money which is borrowed by the Trustee at the direction of
the Committee for the purpose of purchasing investments directed by a
participant shall be repaid only from the assets of such participant's account
and the Trustee shall pledge only the assets of such participant's account as
collateral for the loan. For the purposes of Section 2.3, loan repayments shall
be deemed to be expenses incurred in connection with the making and
administering of Trust investments.
g. Notwithstanding any language in the Trust instrument, neither the
Committee nor the Trustee on behalf of the Trust shall have power to start, to
enter into or otherwise engage in any business enterprise, or to continue to
operate any business enterprise, that becomes part of the Trust estate, if such
activity constitutes "carrying on business" as referred to in Section 301.7701-2
of the procedure and administration regulations.
h. The Trustee is expressly authorized to the fullest extent
permitted by law to (i) retain the services of U.S. Bancorp Xxxxx Xxxxxxx Inc.
and/or U.S. Bancorp Investments, Inc., each being affiliates of U.S. Bank
National Association, and/or any other registered broker-dealer organization
hereafter affiliated with U.S. Bank National Association, and any future
successors in interest thereto (collectively for the purposes of this paragraph
referred to as the "Affiliated Entities"), to provide services to assist in or
facilitate the purchase or sale of investment securities in the Trust, (ii)
acquire as assets of the Trust shares of mutual funds to which Affiliated
Entities provides, for a fee, services in any capacity and (iii) acquire in the
Trust any other services or products of any kind or nature from the Affiliated
Entities regardless of whether the same or similar services or products are
available from other institutions. The Trust may directly or indirectly (through
mutual funds fees and charges for example) pay management fees, transaction fees
and other commissions to the Affiliated Entities for the services or products
provided to the Trust and/or such mutual funds at such Affiliated Entities'
standard or published rates without offset (unless required by law) from any
fees charged by the Trustee for its services as Trustee. The Trustee may also
deal directly with the Affiliated Entities regardless of the capacity in which
it is then acting, to purchase, sell, exchange or transfer assets of the Trust
even though the Affiliated Entities are receiving compensation or otherwise
profiting from such transaction or are acting as a principal in such
transaction. Each of the Affiliated Entities is authorized to (i) effect
transactions on national securities exchanges for the Trust as directed by
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the Trustee, and (ii) retain any transactional fees related thereto, consistent
with Section 11(a)(1) of the Securities Exchange Act of 1934, as amended, and
related Rule 11a2-2(T). Included specifically, but not by way of limitation, in
the transactions authorized by this provision are transactions in which any of
the Affiliated Entities are serving as an underwriter or member of an
underwriting syndicate for a security being purchased or are purchasing or
selling a security for its own account. In the event the Trustee is directed by
a Directing Party (as defined in Section 3.1(d) of this Agreement), the
Directing Party shall be authorized, and expressly retains the right hereunder,
to direct the Trustee to retain the services of, and conduct transactions with,
Affiliated Entities fully in the manner described above.
SECTION 5.2. The Trustee shall have no duties whatsoever except as are
specifically set forth as such in this Agreement, and no implied covenant or
obligation will be read into this Agreement against the Trustee.
SECTION 5.3. If there is more than one Trustee, the action of all of the
Trustees at the time acting hereunder, and any instrument executed by all of the
Trustees, shall be considered the action or instrument of the Trustee. Such
action may be taken at a meeting or in writing without a meeting, and the
Trustees may authorize any one or more of them to perform routine functions, to
sign routine papers, and to perform established or customary administrative and
ministerial functions.
ARTICLE 6
ACCOUNTS OF THE TRUSTEE; VALUATION OF TRUST FUND
SECTION 6.1. The Trustee shall keep accurate and detailed accounts of all
investments, receipts, disbursements, distributions, and other transactions.
Such accounts will be open to inspection and audit by the Companies or the
Committee, or by any authorized representative thereof, at all reasonable times
during business days.
SECTION 6.2. As of each December 31st, and at such other times as the
Committee may reasonably require, the Trustee shall determine the fair market
value of the Trust Fund, and of each participant's Account, and shall notify the
Committee in writing of the fair market value as so determined within 30 days
thereof. In addition, for purposes of determining the amount of any lump sum
distribution payable pursuant to the Plan, the Trustee shall determine the fair
market value of a Plan participant's Accounts as of the last day of the calendar
month coincident with or following such participant's termination of employment.
The fair market value of the Trust Fund, and of each participant's Account,
shall be the fair market value of all securities and other assets then held in
the Trust Fund or in such Account, including all income received since the last
valuation and income accrued and unpaid at the close of the valuation period. In
determining fair market value, the Trustee may rely upon any information that it
believes to be reliable, including reports of sales and of bid and asked prices
of issues listed on an exchange as disclosed in newspapers of general
circulation or in generally recognized financial services, quotations with
respect to unlisted issues as supplied by any reputable broker or investment
bank, or from any other source that the Trustee believes to be reliable, or the
Trustee may make any
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such determination based upon its own analysis of such records or reports of any
company issuing such stock or other securities as are made available to them.
ARTICLE 7
ADMINISTRATIVE PROVISIONS
SECTION 7.1. Except as otherwise specifically provided herein, the Trustee
may rely upon the authenticity, truth, and accuracy of, and will be fully
protected in acting upon:
a. Any copy of a resolution of the Board of Directors of TCF
Financial or any of the Companies, if certified by the Secretary or an Assistant
Secretary of the appropriate Company under its corporate seal.
b. Any notice, direction, certification, approval, or other writing
of the Committee, if evidenced by an instrument signed in the name of the
Committee by one or more of its members or by the Secretary of TCF Financial.
c. Any notice, direction, certification, or other writing, given by a
Plan participant pursuant to Section 4.1 which is believed by the Trustee to be
genuine and to have been sent by such participant.
SECTION 7.2. The Trustee shall receive such reasonable compensation as may
from time to time be agreed upon by TCF Financial and the Trustee. The Trustee
shall be held harmless and shall be fully indemnified by TCF Financial, its
successors and assigns from any liability, including reasonable legal and
professional services expenses, for any actions directed by a Directing Party
(as that term is defined in paragraph d. of Section 3.1).
SECTION 7.3. No person dealing with the Trustee shall be obligated to see
to the application of any property paid or delivered to the Trustee or to
inquire into the expediency or propriety of any transaction or the Trustee's
authority to consummate the same.
SECTION 7.4. Ownership of the assets comprising the Trust Fund shall be in
the Trustee, in its capacity as Trustee, and participants in the Plan and their
beneficiaries shall have no right or interest in or to such assets, except as
specifically provided herein. The rights of any participant or his beneficiaries
to any benefits or future payments hereunder or under the provisions of the Plan
shall be solely those of unsecured, general creditors of the Companies, and such
rights shall not be subject to attachment, garnishment or other legal process by
any creditor of any such participant or beneficiary. Except to the extent that a
Plan participant shall have a continuing right to designate a beneficiary of any
amount payable in the event of his death, no such participant or beneficiary
shall have any right to alienate, anticipate, commute, pledge, encumber,
transfer, or assign any of the benefits or payments which he may expect to
receive, contingently or otherwise, under the Plan or this Agreement.
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SECTION 7.5 Communications to the Trustee shall be deemed sufficiently
made if sent by mail addressed to the Trustee at its address on file with the
Committee. Communications to the Companies or the Committee will be deemed
sufficiently made if sent by mail addressed to the Committee, in care of TCF
Financial, at its principal place of business.
ARTICLE 8
SUCCESSION OF TRUSTEES
SECTION 8.1. The Trustee acting hereunder shall be one or more
individuals, or one or more qualified corporations, or any combination of
individuals and qualified corporations, appointed by TCF Financial to serve in
such capacity; PROVIDED, that an individual who is or has been eligible to
participate in the Plan shall not be eligible to serve as a Trustee. The number
of Trustees shall not be increased or decreased except with the written consent
of all of the Plan's participants (excluding any terminated participants and
beneficiaries then receiving distributions pursuant to the Plan, other than
terminated participants entitled to a lump sum distribution). Upon any
determination to increase the number of Trustees, or upon the death, disability,
removal, or resignation of any Trustee, the vacancy or vacancies so created
shall be filled by such individuals or qualified corporations as may be
appointed by the Board of Directors of TCF Financial and approved in writing by
all of the Plan's participants (excluding any terminated participants and
beneficiaries then receiving distributions pursuant to the Plan, other than
terminated participants entitled to a lump sum distribution). If the Board of
Directors of TCF Financial and all of the Plan's participants (excluding any
terminated participants and beneficiaries then receiving distributions pursuant
to the Plan, other than terminated participants entitled to a lump sum
distribution) shall fail to agree upon such appointment, and if there is no
other Trustee then acting, a successor Trustee or Trustees shall be appointed by
a court of competent jurisdiction. Any such appointment shall be effective upon
the acceptance thereof in writing by the person so appointed and the delivery of
a signed copy of such acceptance to the Trustee then in office.
SECTION 8.2. The Trustee, and any successor to any Trustee, may be removed
by the Board of Directors of TCF Financial at any time upon the receipt by Board
of Directors of TCF Financial of the consent of all of the Plan's participants
(excluding any terminated participants and beneficiaries then receiving
distributions pursuant to the Plan, other than terminated participants entitled
to a lump sum distribution) to such removal and upon the giving of 30 days'
prior written notice to such Trustee and to any other Trustees then acting. Such
removal shall be effective on the date specified in such written notice;
PROVIDED, that notice shall theretofore have been given to the Trustee of the
appointment of a successor Trustee or Trustees in the manner hereinafter set
forth. Notwithstanding the foregoing, a Trustee who dies or who becomes eligible
to be a participant in the Plan shall automatically cease to be a Trustee,
effective as of the date of death of the date such eligibility commences,
whichever is applicable.
SECTION 8.3. The Trustee, and any successor to any Trustee, may resign as
Trustee hereunder by filing with the Committee a written resignation which shall
take effect 30 days after
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the date of such filing, unless prior thereto a successor Trustee or Trustees
shall have been appointed.
SECTION 8.4. All of the provisions set forth herein with respect to the
Trustee shall relate to each successor Trustee so appointed with the same force
and effect as if such successor Trustee originally had been named herein as a
Trustee.
SECTION 8.5. Upon the appointment of a successor Trustee, the removed or
resigning Trustee shall transfer and deliver those assets of the Trust Fund in
its possession or under its control to the remaining Trustee or Trustees, if
any, or otherwise to the successor Trustee or Trustees, together with all such
instruments of transfer, conveyance, assignment, and further assurance as the
remaining or successor Trustee may reasonably require. Any removed or resigning
Trustee shall, at the request of the Committee, or may, in its own discretion,
file with the Committee an account of its actions as Trustee. The receipt and
approval by the Committee of the final account of the removed or resigning
Trustee shall be a full and complete acquittal and discharge from liability of
such removed or resigning Trustee, and any successor Trustee shall have no
liability whatsoever for the acts or omissions of any prior Trustee in which it
did not participate. If the Committee shall fail to express in writing its
objections to any account delivered by any removed or resigning Trustee within
six months from the date of receipt by the Committee of such account, such
account shall be considered as approved by the Committee
ARTICLE 9
AMENDMENT AND TERMINATION OF THE TRUST
SECTION 9.1. This Agreement may be amended at any time and from time to
time, upon the approval of the Board of Directors of TCF Financial; PROVIDED,
that, if the amendment is adopted prior to a change in control (as defined in
section 5(j) of the Plan), no such amendment shall (without the consent of the
participant, including any terminated participants and beneficiaries then
receiving distributions) alter any participant's or beneficiary's right to
payments of amounts previously credited to such participant's or beneficiary's
Account or delay the time or times at which a participant or beneficiary is
entitled to receive payments with respect to the participant's Deferred Amounts
under the Plan). If the amendment is adopted after a change in control, as
defined in section 5(j) of the Plan, the approval of the Board of Directors and
the consent of all participants, terminated participants and beneficiaries shall
be required for the amendment. In the event that all of the Plan's participants
and beneficiaries do not consent to a proposed amendment, such amendment shall
not take effect but the Trust assets credited to the accounts of the consenting
participants shall be transferred to a separate trust established pursuant to an
agreement that is identical to this Agreement in all respects, except that it
may include the proposed amendment.
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SECTION 9.2. This Trust shall not be terminated until such time as all of
the Companies' obligations to make distributions pursuant to the Plan have been
fully discharged unless all of the Plan's participants (excluding any terminated
participants and beneficiaries then receiving distributions pursuant to the Plan
other than terminated participants entitled to a lump sum distribution) shall
consent in writing to an earlier termination. If all of the Plan's participants,
terminated participants and beneficiaries do not consent to an early
termination, the Trust shall terminate with respect to such consenting
participants (and with respect to participants or beneficiaries whose consent is
not required) but shall continue in effect with respect to the nonconsenting
participants. Upon a termination or partial termination of the Trust, the Trust
assets, if any, that remain in the accounts established for participants in the
Plan (or for the consenting participants (and participants or beneficiaries
whose consent is not required), if fewer than all of the Plan's participants
have consented to a termination for which the participants' consent is required)
shall be paid or distributed to TCF Financial or its successor in interest.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1. Each Company making a contribution to the Trust Fund
pursuant to the provisions of the Plan shall, by virtue of its making such
contribution, become a party to this Agreement and shall have the same rights
and obligations as if it had executed this Agreement as one of the original
parties thereto.
SECTION 10.2. Nothing contained in this Agreement shall be deemed to
constitute a contract of employment between the Companies and any employee of
any of them.
SECTION 10.3. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original, and all of such
counterparts shall together constitute one and the same document.
SECTION 10.4. Except when otherwise indicated by the context, any
masculine terminology used in this Agreement shall also include the feminine and
neuter, and the definition of any term herein in the singular shall also include
the plural (and vice versa). The headings of Articles of this Agreement are for
convenience of reference only and shall have no substantive effect on the
provisions of this Agreement.
SECTION 10.5. Any notice required hereunder may be waived by the person
entitled thereto.
SECTION 10.6. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Minnesota, except to the extent
superseded by applicable federal laws.
SECTION 10.7. This Agreement shall constitute the entire agreement among
the parties hereto with respect to the subject matter hereof, and shall
supersede and replace all previous agreements relating to the same subject
matter, both written and oral.
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SECTION 10.8. The effective date of this restated Agreement shall be
September 1, 1998.
ARTICLE 11
SPECIAL PROCISIONS FOR EMPLOYEES SUBJECT TO SECTION 16 OF THE SECURITIES
AND EXCHANGE ACT OF 1934
SECTION 11.1 Notwithstanding anything in this Trust Agreement to the
contrary, for an Employee who is subject to liability under Section 16 of the
Securities and Exchange Act of 1934, the Committee shall administer
participation elections and investment elections pursuant to the provisions of
Paragraph 10 of the Plan.
ARTICLE 12
SPECIAL PROVISIONS REGARDING OSPIP AND DEFERRED STOCK
SECTION 12.1. Effective for deferrals of incentive compensation earned in
1992 and thereafter the Trustee shall accept as directed by the Committee
contributions of common stock of TCF Financial Corporation issued in the name of
the Trustee pursuant to the Deferred Stock award provisions of the Stock Option
and Incentive Plan of TCF Financial or any successor plan thereto. Each such
contribution of Deferred Stock shall be accompanied by a designation of the date
or dates on which such Stock shall become transferable by the Trustee as well as
any events which may cause acceleration of such dates. Deferred Stock shall not
be transferable by the Trustee prior to such date or dates. If a Plan
participant or beneficiary becomes entitled to benefits from the Plan, any
Deferred Stock which is not yet transferable shall be returned to TCF Financial
and cancelled. In all other respects, Deferred Stock held by the Trustee shall
be subject to the same terms and conditions as apply to other stock held by the
Trustee.
IN WITNESS WHEREOF, TCF Financial and the Trustee have caused this
Agreement to be executed effective as of the day and year first above written.
TCF Financial Corporation
[NO SEAL] By:
---------------------------------
Title:
------------------------------
Attest:
By
----------------------------------
As its
------------------------------
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The First National Bank in Sioux Falls
[NO SEAL] By:
---------------------------------
Title:
------------------------------
Attest: As Trustee as aforesaid.
By
----------------------------------
As its
----------------------------
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