exv10w8



 







Exhibit 10.8




AMENDED AND RESTATED

1993 SUPPLEMENTAL RETIREMENT PLAN AGREEMENT




     THIS AMENDED AND RESTATED 1993 SUPPLEMENTAL RETIREMENT PLAN AGREEMENT (“Agreement”) was
originally made and entered into as of October 27, 1993 (the “Prior Agreement”) and is hereby
amended and restated as of July 27, 2006, by and between TierOne Bank, a federally chartered
savings bank with its principal office in Lincoln, Nebraska (the “Bank”), and Gilbert G.
Lundstrom, (the “Executive”).



     The Agreement is intended to be an unfunded plan qualifying as a “top hat” plan for purposes
of Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and for
purposes of the Internal Revenue Code of 1986, as amended (the “Code”). The Agreement is being
amended and restated in order to comply with the requirements of Section 409A of the Code and the
proposed regulations issued by the IRS. No benefits payable under this Agreement shall be deemed
to be grandfathered for purposes of Section 409A of the Code.



RECITALS




     A. The Executive is currently employed by the Bank pursuant to the terms of a separate amended
and restated Employment Agreement executed as of July 27, 2006 (the “Employment Agreement”).



     B. The Bank recognizes the value of the services to be performed by the Executive and wishes
to encourage his continued employment.



     C. The Executive wishes to be assured that he will be entitled to a certain minimum amount of
additional compensation (a) if he becomes Disabled (as defined in the Employment Agreement) while
in the employ of the Bank; (b) for some definite period of time from and after his Retirement (as
defined below) from active service with the Bank; or (c) that his family will be entitled to such
compensation from and after his death either while in the employ of the Bank or after his
Retirement.



     D. The parties hereto wish to provide the terms and conditions upon which the Bank shall pay
such additional compensation to the Executive after his Disability or Retirement or to his
designated beneficiary in event of his death.



     E. The Bank desires to amend and restate the Prior Agreement in order to make changes to
comply with Section 409A of the Code, as well as certain other changes;



     NOW, THEREFORE, in consideration of the premises and of the mutual promises herein contained,
the parties agree as follows:



     1. Retirement. In consideration of the Executive’s remaining in the employ of the
Bank until his Retirement, the Bank agrees that, from and after the Retirement of the Executive
from the active service of the Bank on or after age sixty-five (65), the Bank shall thereafter pay
to the Executive an annual Supplemental Benefit (as defined herein) for a period of fifteen (15)



 









 







years from and after his Retirement, with the annual benefit payable in twelve (12) equal
monthly installments. The first monthly installment shall be paid on the first day of the month
following the lapse of six months after the date of his Retirement (or, if earlier, upon the death
of the Executive), and shall be followed by 179 monthly payments. For purposes of this Agreement,
the term “Retirement” shall mean a voluntary termination by the Executive of his employment with
the Bank on or after the date he reaches age 65 in accordance with the Bank’s retirement policies
generally applicable to salaried employees, provided that such termination of employment also
constitutes a separation from service with the Bank within the meaning of Section 409A of the Code
and the regulations thereunder.



     2. Supplemental Benefit. For purposes of this Agreement, “Supplemental Benefit” means
an amount calculated as follows: (A) the average annual compensation (excluding bonuses and
incentive compensation) received by the Executive from the Bank during the three years of
employment affording the highest such average; as reduced by (B) the annual amount paid under the
Bank’s qualified defined benefit pension plan or any disability insurance benefits purchased by the
Bank; and (C) multiplying such amount by 50% to determine the benefit payable hereunder as a
Supplemental Benefit.



     3. Death After Retirement. The Bank further agrees that, in the event of the
Executive’s death after his Retirement but prior to completing fifteen (15) years of monthly
payments, the Bank will continue to make Supplemental Benefit payments during the remainder of said
fifteen (15) year period to the Executive’s Beneficiary (as defined in the Employment Agreement).



     4. Disability. The Bank agrees that, in the event of the Disability (as defined in
the Employment Agreement) of the Executive while in the employ of the Bank, it shall pay an annual
Supplemental Benefit for up to ten (10) years, payable in equal monthly installments commencing
with the first day of the month following the lapse of six months after the date the Executive is
replaced as provided in Section 7(a) of the Employment Agreement (i) until discontinuance of such
Disability and employment is fully restored to the Executive; (ii) until the Executive becomes
eligible for the benefits provided at Retirement hereunder, which Retirement benefits shall be
exclusive of and in addition to any Disability payments, or (iii) until the death of the Executive,
whichever shall first occur. For all purposes of this Agreement, the Executive shall be considered
to be in the employ of the Bank to receive customary fringe benefits (or service credits therefor,
as the case may be) during the continuance of such disability.



     5. Death Prior to Retirement. The Bank agrees that, in the event of the Executive’s
death prior to his Retirement, the Bank will make Supplemental Benefit payments for a fifteen (15)
year period to the Executive’s Beneficiary (as defined in the Employment Agreement), with the
monthly benefits determined as set forth in Sections 1 and 2 above and commencing as of the first
day of the month following his death.



     6. Noncompetition. In consideration of the foregoing agreements of the Bank and of
the payments to be made by the Bank pursuant hereto, the Executive hereby agrees that, so long as
he remains in the active employ of the Bank, he will devote substantially all of his time, skill,
diligence and attention to the business of the Bank, and will not actively engage, either directly



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or indirectly, in any business or other activity which is or may be deemed to be in any way
competitive with or adverse to the best interests of the business of the Bank.



     7. Termination. In the event that the employment of the Executive is terminated for
any reason other than Cause (as defined in the Employment Agreement), the Bank agrees to fund a
separate split dollar policy pursuant to the Executive’s Split Dollar Agreement with the Bank dated
January 2, 1994, as amended (the “Split Dollar Agreement”) to the point of “N-Pay” and cause
ownership of such policy to be transferred if the policy is purchased in accordance with the terms
of the Split Dollar Agreement. This payment is to be made in one lump sum on the first day of the
month following the lapse of six months after the date the Executive’s employment terminates. For
purposes hereof, “N-Pay” means that the cash value of dividend additions within the policy,
together with projected further dividends, are estimated to be sufficient to pay all remaining
additional premiums required by the terms of the policy; provided, however, that if the future
dividends actually paid are less than the assumed dividends, the Bank will not be required to pay
any deficiency.



     8. Other Benefits and Programs. It is expressly understood by the parties hereto that
this Agreement relates exclusively to additional compensation for the Executive’s services and any
benefits payable under this Agreement shall be independent of, and in addition to, any other
benefits or compensation payable under the Employment Agreement of even date herewith or as may
hereinafter be amended from time to time. This Agreement does not involve a reduction in salary or
foregoing of an increase in future salary by the Executive, nor does the Agreement in any way
affect or reduce the proposed or future compensation of the Executive.



     9. Benefits Not Funded. This Agreement represents a contractual promise to pay by the
Bank, assuming satisfaction by the Executive of the requirements herein, and that said promise to
pay is not represented by notes or secured or funded in any way. If the Bank, solely at its own
discretion, shall acquire a life insurance or annuity contract or any other asset in connection
with the liabilities assumed by it hereunder, it is expressly agreed that neither the Executive nor
any Beneficiary hereunder shall have any right with respect to, or claim against, such contract or
other asset. Such contract or other asset shall not be held in any way as collateral security for
the fulfilling of the obligations of the Bank under this Agreement. Such contract or other asset
shall be and remain a general, unpledged and unrestricted asset of the Bank. The Executive may
unilaterally change the person or persons who are to receive payments hereunder following his
death, including provisions for payment to a trust or trusts, notwithstanding any other provision
hereof, by written instrument executed by him and delivered to the Bank during the Executive’s
lifetime.



     10. Nonalienation of Benefits. Neither the Executive, his designated Beneficiary nor
any other beneficiary under this Agreement shall have any power or right to transfer, assign,
anticipate, hypothecate or otherwise encumber any part or all of the amounts payable by the Bank
hereunder, nor shall such amounts be subject to seizure by any creditor of any such beneficiary, by
a proceeding at law or in equity, and no such benefit shall be transferable by operation of law in
the event of bankruptcy, insolvency or death of the Executive, his spouse, his designated
beneficiary or any other beneficiary hereunder. Any such attempted assignment or



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transfer shall be void and shall terminate this Agreement, and the Bank shall thereupon have
no further liability hereunder.



     11. Binding Effect. This Agreement, and any amendment hereto, shall be binding upon
and inure to the benefit of the Bank, its successors and assigns, and the Executive, and his
beneficiaries, heirs, executors, administrators and legal representatives.



     12. Amendment and Termination of the Agreement. This Agreement may not be amended,
altered or modified, except by a written instrument signed by the parties hereto, or their
respective successors or assigns, and may not otherwise be amended or terminated except as provided
in Section 13. Notwithstanding anything in this Agreement to the contrary, the Board of Directors
of the Bank may amend in good faith any terms of this Agreement, including retroactively, in order
to comply with Section 409A of the Code.



13. Effect of Amendment or Termination.




          (a) General. No amendment or termination of the Agreement shall directly or indirectly
reduce the Executive’s benefit held hereunder as of the effective date of such amendment or
termination. A termination of the Agreement will not be a distributable event, except in the three
circumstances set forth in Section 13(b) below.



          (b) Termination. Under no circumstances may the Agreement permit the acceleration of
the time or form of any payment under the Agreement prior to the payment events specified herein,
except as provided in this Section 13(b). The Bank may, in its discretion, elect to terminate the
Agreement in any of the following three circumstances and accelerate the payment of the entire
unpaid balance of the Participant’s vested benefits as of the date of such payment in accordance
with Section 409A of the Code:




	 	(i)	 	the Agreement is terminated within the 30 days preceding a
Change in Control of the Association (as defined in the Employment Agreement)
and (1) all substantially similar arrangements sponsored by the Bank and/or
TierOne Corporation (the “Corporation”) are terminated, and (2) the Executive
and all participants under the substantially similar arrangements receive all
of their benefits under the terminated arrangements within 12 months of the
date of termination of the arrangements,
	 
	 	(ii)	 	the Agreement is terminated and (1) all arrangements sponsored
by the Bank and/or the Corporation that would be aggregated with the Agreement
under Treasury Regulation ' 1.409A-1(c) if the Executive participated in
all of the arrangements are terminated, (2) no payments other than payments
that would be payable under the terms of the arrangements if the termination
had not occurred are made within 12 months of the termination of the
arrangements; (3) all payments are made within 24 months of the termination of
the arrangements; and (4) neither the Bank nor the Corporation adopts a new
arrangement that would be aggregated with the Plan under Treasury Regulation
' 1.409A-1(c) if the Executive




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	 	 	 	participated in both arrangements, at any time within five years following
the date of termination of the Agreement, or
	 
	 	(iii)	 	the Agreement is terminated within 12 months of a corporate
dissolution taxed under Section 331 of the Code, or with the approval of a
bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided that the amounts
deferred by the Executive under the Agreement are included in the Executive’s
gross income in the later of (1) the calendar year in which the termination of
the Agreement occurs, or (2) the first calendar year in which the payment is
administratively practicable.





     14. Scope of Claims Procedures. This Section is based on final regulations issued by
the Department of Labor and published in the Federal Register on November 21, 2000 and codified at
29 C.F.R. Section 2560.503-1. If any provision of this Section conflicts with the requirements of
those regulations, the requirements of those regulations will prevail.



     14.1 Initial Claim. The Participant or any beneficiary who believes he or she is
entitled to any benefit under the Plan (a “Claimant”) may file a claim with the Bank. The Bank
shall review the claim itself or appoint an individual or an entity to review the claim.



          (a) Initial Decision. The Claimant shall be notified within ninety (90) days after
the claim is filed whether the claim is allowed or denied, unless the Claimant receives written
notice from the Bank or appointee of the Bank prior to the end of the ninety (90) day period
stating that special circumstances require an extension of the time for decision, such extension
not to extend beyond the day which is one hundred eighty (180) days after the day the claims is
filed.



          (b) Manner and Content of Denial of Initial Claims. If the Bank denies a claim, it
must provide to the Claimant, in writing or by electronic communication:




	 	(i)	 	The specific reasons for the denial;
	 
	 	(ii)	 	A reference to the provision of the Agreement upon which the
denial is based;
	 
	 	(iii)	 	A description of any additional information or material that
the Claimant must provide in order to perfect the claim;
	 
	 	(iv)	 	An explanation of why such additional material or information
is necessary;
	 
	 	(v)	 	Notice that the Claimant has a right to request a review of the
claim denial and information on the steps to be taken if the Claimant wishes to
request a review of the claim denial; and




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	 	(vi)	 	A statement of the Participant’s right to bring a civil action
under Section 502(a) of ERISA following a denial on review of the initial
denial.





     14.2 Review Procedures.



          (a) Request For Review. A request for review of a denied claim must be made in
writing to the Bank within sixty (60) days after receiving notice of denial. The decision upon
review will be made within sixty (60) days after the Bank’s receipt of a request for review, unless
special circumstances require an extension of time for processing, in which case a decision will be
rendered not later than one hundred twenty (120) days after receipt of a request for review. A
notice of such an extension must be provided to the Claimant within the initial sixty (60) day
period and must explain the special circumstances and provide an expected date of decision.



          The reviewer shall afford the Claimant an opportunity to review and receive, without charge,
all relevant documents, information and records and to submit issues and comments in writing to the
Bank. The reviewer shall take into account all comments, documents, records and other information
submitted by the Claimant relating to the claim regardless of whether the information was submitted
or considered in the initial benefit determination.



          (b) Manner and Content of Notice of Decision on Review. Upon completion of its review
of an adverse claim determination, the Bank will give the Claimant, in writing or by electronic
notification, a notice containing:




	 	(i)	 	its decision;
	 
	 	(ii)	 	the specific reasons for the decision;
	 
	 	(iii)	 	the relevant provisions of the Agreement on which its decision
is based;
	 
	 	(iv)	 	a statement that the Claimant is entitled to receive, upon
request and without charge, reasonable access to, and copies of, all documents,
records and other information in the Bank’s files which is relevant to the
Claimant’s claim for benefits;
	 
	 	(v)	 	a statement describing the Claimant’s right to bring an action
for judicial review under Section 502(a) of ERISA; and
	 
	 	(vi)	 	if an internal rule, guideline, protocol or other similar
criterion was relied upon in making the adverse determination on review, a
statement that a copy of the rule, guideline, protocol or other similar
criterion will be provided without charge to the Claimant upon request.





     14.3 Calculation of Time Periods. For purposes of the time periods specified in this
Section, the period of time during which a benefit determination is required to be made begins at



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the time a claim is filed in accordance with the procedures herein without regard to whether
all the information necessary to make a decision accompanies the claim. If a period of time is
extended due to a Claimant’s failure to submit all information necessary, the period for making the
determination shall be tolled from the date the notification is sent to the Claimant until the date
the Claimant responds.



     14.4 Legal Action. If the Bank fails to follow the claims procedures required by this
Section, a Claimant shall be deemed to have exhausted the administrative remedies available under
the Agreement and shall be entitled to pursue any available remedy under Section 502(a) of ERISA on
the basis that the Agreement has failed to provide a reasonable claims procedure that would yield a
decision on the merits of the claim. A Claimant’s compliance with the foregoing provisions of this
Section is a mandatory requisite to a Claimant’s right to commence any legal action with respect to
any claims for benefits under the Agreement.



     14.5 Review by the Bank. Notwithstanding anything in this Agreement to the contrary,
the Bank may determine, in its sole and absolute discretion, to review any claim for benefits
submitted by a Claimant under this Agreement.



     15. Notice. Any notice, consent or demand required or permitted to be given under the
provisions of this Agreement shall be in writing, and shall be signed by the party giving or making
the same. If such notice, consent or demand is mailed to a party hereto, it shall be sent by
United States mail, postage prepaid, addressed to such party’s last known address as shown on the
records of the Bank. The date of such mailing shall be deemed the date of notice, consent or
demand.



     16. Applicable Law. This Agreement, and the rights of the parties hereunder, shall be
governed by and construed in accordance with the laws of the State of Nebraska.



     IN WITNESS WHEREOF, the parties hereto have executed this Agreement, in duplicate, as of the
27th day of July 2006.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	ATTEST:	 	 	 	TIERONE BANK	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	/s/ Judith A. Klinkman	 	 	 	By:	 	/s/ James A. Laphen	 	 
	 

	 	 
Assistant
Secretary
	 	 	 	Title:	 	 
President
and Chief Operating Officer	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 	 	/s/ Gilbert G. Lundstrom
	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Gilbert G. Lundstrom, Executive
	 	 







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