TCF Financial Corporation SUPPLEMENTAL EMPLOYEE RETIREMENTPLAN FOR TCF CASH BALANCE PENSION PLAN (Restated as of July 19,2004)
Exhibit 10(u)
| 07-14-04 |
TCF Financial Corporation
SUPPLEMENTAL EMPLOYEE RETIREMENT PLAN
FOR TCF CASH BALANCE PENSION PLAN
(Restated as of July 19, 2004)
I. Purpose of Plan; Effect of Restatement; Status of Plan.
The purpose of this Plan is to provide Eligible Employees with supplemental retirement benefits as set forth herein to remedy certain limitations or reductions in benefits under the IRC, as set forth herein, to such Employees under the TCF Cash Balance Pension Plan ( the TCF Pension Plan) This Plan was originally effective as of October 1, 1988. From October 1, 1988 through the date of this restatement, the supplemental benefits provided by this Plan relating to the TCF Pension Plan and the TCF Employees Stock Purchase Plan (ESPP Plan) were provided under one plan document. Effective with this restatement, the supplemental benefits provided by this Plan relative to the TCF Pension Plan are set forth in this document and the supplemental benefits provided by this Plan relative to the ESPP Plan are set forth in a separate document.
This Plan is also intended to be a plan, program, or arrangement under 4 U.S.C. section 114 (the State Taxation of Pension Income Act of 1995) maintained solely for the purpose of providing retirement benefits for employees in excess of the limitations imposed by one or more of IRC sections 401(a)(17), 401(k), 401(m), 402(g), or 415 or any other limitation on contributions or benefits in the IRC on qualified plans such as the TCF Pension Plan.
II. Definitions
(a) Committee. The Compensation Committee of the Board of Directors of TCF Financial Corporation (TCF Financial).
(b) Eligible Employee. Employees of TCF Financial, or any of its direct or indirect subsidiaries, are eligible for this Plan if they are eligible to participate in either the TCF Financial Executive Deferred Compensation Plan or the TCF Financial Senior Officer Deferred Compensation Plan. Notwithstanding the foregoing, no Employee shall be eligible for benefits under this Plan unless the Employee is also a Participant and Qualified Employee in the TCF Pension Plan and individuals who become employees of an Employer as a result of a merger or acquisition shall not be Eligible Employees under this Plan unless and until TCF Financial has adopted a resolution identifying them as Eligible Employees.
(c) ESPP Plan. The ESPP Plan is the TCF Employees Stock Purchase Plan, as amended from time to time.
(d) TCF Pension Plan. The TCF Pension Plan is the TCF Cash Balance Pension Plan as amended from time to time.
(e) IRC. The IRC is the Internal Revenue Code of 1986, as amended.
(f) [Reserved.]
(g) Covered Compensation. Covered Compensation is any Certified Earnings as defined in the TCF Pension Plan paid to an Eligible Employee by the Employer in any calendar year (disregarding any limit on Certified Earnings under IRC § 401(a)(17)), plus any amounts which would have been Certified Earnings (disregarding any limit on Certified Earnings under IRC § 401(a)(17)) in such calendar year except that such Employee elected to defer such amounts under this Plan or any other tax-qualified or non-tax qualified plan of deferred compensation maintained by an Employer.
(h) TCF Financial. TCF Financial is TCF Financial Corporation, a Delaware Corporation.
(i) Employer. Employer is TCF Financial, or any of its direct or indirect subsidiary companies which is the employer of an Eligible Employee under this Plan.
III. [Reserved.]
IV. Supplemental Benefits related to the TCF Pension Plan.
(a) Benefits.
(i) The supplemental pension benefit provided under paragraph (a)(i) this section relative to benefits accrued under the TCF Pension Plan prior to August 31, 1990 was terminated effective as of May 30, 2003, and all then-remaining accrued benefits under the supplemental pension benefit were paid out to participants in a lump sum no later than June 30, 2003.
(ii) With respect to benefits accrued under the TCF Cash Balance Pension Plan on and after September 1, 1990, the supplemental pension benefit under this Plan shall be equal to an Account Balance which is 0 on September 1, 1990, and thereafter is increased each month by the difference between the pay credit provided to the Eligible Employee for such month under the TCF Pension Plan and the amount such Employee would have received as a pay credit for such month in the absence of the Restrictions defined in subsection (b) below. The eligible Employees Account Balance shall also be increased each month by the interest factor applicable to account balances under Section 4.6 of the
TCF Pension Plan as of said month.
Effective July 1, 2004, the Pension Plan was amended to prohibit any employees hired on or after that date from becoming Participants in that Plan and to prohibit employees rehired on or after that date from accruing any additional Pay Credits under that Plan. Accordingly: (I) an employee first hired by a TCF Participating Employer or Affiliate on or after July 1, 2004 shall not be entitled to any supplemental benefits from this SERP relating to the TCF Pension Plan; (II) an employee rehired by a TCF Participating Employer or an Affiliate on or after July 1, 2004 shall not accrue any additional supplemental Pay Credits from this SERP relating to the TCF Pension Plan based on employment service after such rehiring; and (III) an employee employed by a Participating Employer on June 30, 2004 shall continue to receive supplemental Pay Credits under this SERP relating to the Pension Plan under the provisions of this sub-paragraph (ii), which shall be and remain in full force and effect.
(b) Restrictions means:
(i) limitations on benefits provided in Internal Revenue Code §415 (currently generally $165,000 in annual benefits);
(ii) limitations of Covered Compensation under the TCF Pension Plan to the dollar limits provided in Internal Revenue Code § 401(a)(17) (currently $205,000); and
(iii) limitations on Covered Compensation occurring as a result of other provisions of the IRC. For purposes of this sub-paragraph (iii), a limitation on Covered Compensation shall be deemed to occur with respect to any amounts which are deferred under the TCF Financial Executive Deferred Compensation Plan or the TCF Financial Senior Officer Deferred Compensation Plan, and which are excluded from Covered Compensation under the TCF Pension Plan as a result of the Internal Revenue Code. This Plan provision is deemed to be substantially similar to the TCF Pension Plan provision which treats Employees elective deposits to the ESPP Plan as Covered Compensation under that Plan.
(c) Payment of Benefits. Unless an Eligible Employee has made an election described in the following paragraph, the Eligible Employees supplemental pension benefit under this Section IV shall be paid in a lump sum no later than 30 days after the Eligible Employees termination of employment. For purposes of this paragraph (c), a termination of employment shall not be deemed to occur upon a transfer of employment between two or more Employers.
An Eligible Employee may elect to have benefits from this Article IV distributed in one of the following forms, provided that such election is in writing and is executed and delivered to TCF Financial, or to its Corporate Secretary (or designee) on behalf of TCF Financial, no later than one year (365 days) before such Eligible Employees termination of employment: (i) distribution in five annual installments, (ii) distribution in ten annual installments, or (iii) distribution of
$10,000.00 annually until all of the Eligible Employees benefits from this Article IV have been distributed. Installment payments shall commence no later than the 15th day of the first calendar quarter immediately following the Eligible Employees termination of employment, with succeeding installments paid on or about each February 15th thereafter. The amount of each installment under (i) and (ii) shall be determined by dividing the undistributed portion of the Eligible Employees benefit under this Article IV by the number of installments remaining to be paid, including the current installment. For the purposes of determining the amount of each installment under (i) and (ii) and for the purpose of determining when an Eligible Employees benefit has been fully distributed, the undistributed portion of an Eligible Employees benefit under this Article IV shall include interest thereon at the rate determined under Section IV(a)(ii), commencing on the date such benefit would otherwise have been distributed in a lump sum.
If the Eligible Employee is deceased, the distribution shall be payable to the beneficiary or survivor of the Eligible Employee in the form payable to the Eligible Employee hereunder.
Notwithstanding the foregoing, if the lump sum value of an Eligible Employees benefit under this Article IV is less than $15,000.00 at the time of the Eligible Employees termination of employment, then such amount shall be distributed to the Eligible Employee in a lump sum payment no later than 30 days after the Eligible Employees termination of employment.
V. Committee.
The Committee shall have full power to construe, interpret and administer this Plan, including to make any determination required under this Plan and to make such rules and regulations as it deems advisable for the operation of this Plan. The Committee shall have sole and absolute discretion in the performance of their powers and duties under this Plan. A majority of the Committee shall constitute a quorum. Actions of the Committee shall be by a majority of persons constituting a quorum and eligible to vote on an issue. Meetings may be held in person or by telephone. Action by the Committee may be taken in writing without a meeting provided such action is executed by all members of the Committee. To the extent it is feasible to do so, determinations, rules and regulations of the Committee under this Plan shall be consistent with similar determinations, rules and regulations of the TCF Pension Plan. All determinations of the Committee shall be final, conclusive and binding unless found by a court of competent jurisdiction to have been arbitrary and capricious. The Committee shall have authority to designate officers of TCF Financial and to delegate authority to such officers to receive documents which are required to be filed with the Committee, to execute and provide directions to the Trustee and other administrators, and to do such other actions as the Committee may specify on its behalf, and any such actions undertaken by such officers shall be deemed to have the same authority and effect as if done by the Committee itself.
VI. Benefits Unfunded.
The rights of beneficiaries, survivors and participants to benefits from this Plan are solely as unsecured creditors of the Employer. Benefits payable under this Plan shall be payable from the general assets of the Employer and there shall be no trust fund or other assets secured for the
payment of such benefits. In its discretion, the Employer may purchase or set aside assets, including annuity policies or through use of a grantor trust, to provide for the payment of benefits hereunder but such assets shall in all cases remain assets of the Employer and subject to the claims of the Employers creditors. This Plan constitutes a mere promise by the Employers to make benefit payments in the future, and it is intended to be unfunded for tax purposes and for purposes of Title I of ERISA.
VII. Beneficiaries and Survivors.
An Eligible Employees beneficiary or survivor under Article IV of this Plan shall be the same as the person(s) designated as such pursuant to or under the provisions of the TCF Pension Plan, unless the Employee has designated in writing and filed with the Committee a different beneficiary for this Plan.
VIII. Plan Administrator, Amendments, Claims Procedure
The Plan Administrator of this Plan is the Committee, which shall have full power to amend this Plan from time to time, or to terminate this Plan, except that no such amendment or termination shall deprive an Eligible Employee or beneficiary or survivor thereof of any benefits accrued under this Plan prior to such amendment or termination without the written consent of such Eligible Employee, or if deceased, the beneficiary or survivor thereof.
If an Eligible Employee, or beneficiary or survivor thereof, wishes to make a claim for benefits or disagrees with a determination of the Committee, such person may file a claim and make such appeals as are permitted under the TCF Pension Plan. The claims shall then be processed as provided for claims under the TCF Pension Plan, except that all determinations which would be made by the Company under such Plans shall be made by the Committee instead.
IX. Miscellaneous.
(a) Notices under this Plan to the Employer, TCF Financial or the Committee shall be sent by Certified Mail, Return Receipt Requested to: Compensation Committee, TCF Financial Corporation, c/o General Counsel for Corporate Affairs, TCF Financial Corporation, 200 Lake Street East, Wayzata, MN 55391. Notices under this Plan to Eligible Employees or their beneficiaries or survivors shall be sent by Certified Mail to the last known address for such person(s) on the books and records of the Employer, by Certified Mail.
(b) Nothing in this Plan shall change an Eligible Employees status to anything other than an employee at will or otherwise enlarge or modify such Employees employment rights or benefits other than as provided herein.
(c) Nothing in this Plan shall abridge an Eligible Employees rights, or such Employees beneficiarys or survivors rights, of participation in the TCF Pension Plan.
(d) Expenses of administering the Plan shall be borne by the Employers in proportion to their share of Eligible Employees in this Plan.
(e) An Eligible Employees benefits under this Plan may not be assigned, transferred, pledged or otherwise hypothecated by said Employee or the beneficiary or survivor thereof.
APPENDIX A
(Reserved)
APPENDIX B
(Reserved)