exv10w11



 







Exhibit 10.11




TIERONE BANK

AMENDED AND RESTATED DEFERRED COMPENSATION PLAN




ARTICLE 1.

ESTABLISHMENT AND PURPOSE OF PLAN




     1.1 Establishment of the Plan. Effective as of July 27, 2006, the Deferred
Compensation Plan (the “Prior Plan”) was amended and restated in its entirety. The Prior Plan was
adopted as of August 15, 2002. This amended and restated plan shall be known as the Deferred
Compensation Plan (the “Plan”) and shall in all respects be subject to the provisions set forth
herein.



     1.2 Purpose of the Plan. The purpose of the Plan is to provide a deferred
compensation arrangement and deferred bonus arrangement to a select group of management, highly
compensated employees or members of the Board of Directors of the Employer. The Plan 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 Plan 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 Plan shall be deemed to be grandfathered for purposes of
Section 409A of the Code.



     1.3 TierOne Bank Supplemental Deferred Compensation Plan. The TierOne Bank (the
“Bank”) Supplemental Deferred Compensation Plan (the “Supplemental Plan”) that was effective as of
January 1, 1997 shall be merged into this Plan effective as of July 27, 2006. Accordingly, all
deferrals and benefits under the Supplemental Plan subsequent to such date shall in all respects be
subject to and governed by the provisions set forth herein. All benefits earned under the
Supplemental Plan immediately prior to July 27, 2006 shall be credited to a Participant’s Deferred
Compensation Account (as defined herein).



ARTICLE 2.

DEFINITIONS




     2.1 Beneficiary. “Beneficiary” means the person, persons or entity designated by the
Participant, as provided in Article 5, to receive any benefits payable under the Plan.



     2.2 Board. “Board” means the Board of Directors of the Sponsoring Employer.



     2.3 Change in Control. “Change in Control” means a change in the ownership of the
Bank or the Company, a change in the effective control of the Bank or the Company or a change in
the ownership of a substantial portion of the assets of the Bank or the Company as provided under
Section 409A of the Code and the regulations thereunder.



     2.4 Committee. “Committee” means the Compensation Committee of the Board or such
other committee as may be appointed by the Board to administer the Plan pursuant to Article 3.



 









 





     2.5 Company. “Company” means TierOne Corporation, the owner of 100% of the issued and
outstanding common stock of the Bank.



     2.6 Company Stock. “Company Stock” shall mean shares of common stock of the Company.



     2.7 Compensation. “Compensation” or “Total Compensation” means the Base Salary,
Incentive Compensation, Stock Denominated Awards and Director Fees payable to a Participant during
a Plan Year.




     (a) Base Salary. “Base Salary” means all cash payable to a Participant by the
Employer as remuneration for services rendered during a Plan Year, and shall be determined
prior to any reduction for amounts deferred by a Participant under the Employer-sponsored
401(k) plan. Base Salary shall also be calculated so as to exclude any employer-matching
contributions or other contributions to the Participant’s 401(k) plan account, as well as
any other nontaxable and/or noncash compensation payable to the Participant by his/her
Employer.




     (b) Incentive Compensation. “Incentive Compensation” means any cash bonus paid
to a Participant by the Employer during a Plan Year.




     (c) Stock Denominated Award. “Stock Denominated Award” means a restricted
stock award granted pursuant to the Company’s amended and restated 2003 Recognition and
Retention Plan.




     (d) Director Fees. “Director Fees” means any annual retainer fees, monthly
Board fees, attendance fees or emeritus fees paid to current Directors or retired former
Directors for their services as a Director of the Employer.



     2.8 Contribution Date. “Contribution Date” means the date a Participant would have
received the Compensation or, if applicable, a Participant’s 401(k) account or ESOP account would
have been credited, but for the Deferral Election.



     2.9 Declared Rate. “Declared Rate” means an interest rate determined from time to
time by the Committee in its discretion which is based on the Employer’s three (3) or five (5) year
certificate of deposit rate.



     2.10 Deferral Election. “Deferral Election” means a Participant’s written election to
the Committee to defer any or all of his/her Base Salary, Incentive Compensation, Stock Denominated
Award or Director Fees.



     2.11 Deferred Compensation. “Deferred Compensation” means the amount of Base Salary,
Incentive Compensation, Stock Denominated Award or Director Fees deferred by a Participant pursuant
to the Deferral Election in effect at the time of deferral.



     2.12 Deferred Compensation Account. “Deferred Compensation Account” means the account
maintained on the books of the Employer with respect to the Plan. Each Deferred Compensation
Account shall consist of the following sub-accounts: (i) Fixed Income Fund



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Account, (ii) Investment Fund Account, (iii) Stock Units Account; (iv) Director Fees Account
and (v) such other sub-accounts as may be necessary to reflect such Plan Year’s allocation and such
further sub-Accounts as the Committee may deem necessary. The Stock Units Account (i) may not be
diversified; (ii) must remain at all times credited with units that represent Company Stock; and
(iii) must be distributed solely in the form of Company Stock. A Participant’s Deferred
Compensation Account shall be utilized solely as a device for the measurement and determination of
any benefits payable to the Participant pursuant to this Plan. A Participant shall have no
interest in his Deferred Compensation Account, nor shall it constitute or be treated as a trust
fund of any kind.



     2.13 Determination Date. “Determination Date” means any date on which a debit or a
credit is made to a Participant’s Deferred Compensation Account.



     2.14 Director. “Director” means any active member of the Board and any retired former
Director who is servicing as a director emeritus.



     2.15 Disability. “Disability” means a Participant (i) is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a continuous period of not
less than twelve months; or (ii) is, by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last for a continuous
period of not less than twelve months, receiving income replacement benefits for a period of not
less than three months under an accident and health plan covering employees of the Employer (or
would have received such benefits for at least three months if the Participant had been eligible to
participate in such plan). The determination of the Board as to Disability shall be binding on a
Participant.



     2.16 Employee. “Employee” means any person who performs services for the Employer and
to whom the Employer pays Compensation on a regular basis.



     2.17 Employer. “Employer” means TierOne Bank or TierOne Corporation, as applicable,
and any successor to the business thereof and any subsidiary whose board of directors adopts this
Plan.



     2.18 Fixed Income Fund. “Fixed Income Fund” means an investment fund for Deferred
Compensation (which shall include any deferral of Director Fees) which provides interest on the
Deferred Compensation Account as set forth in Section 4.7(a) below.



     2.19 Investment Direction. “Investment Direction” means a Participant’s written
direction to the Committee to invest the Participant’s Deferred Compensation Account in the Fixed
Income Fund and/or the Investment Fund.



     2.20 Investment Fund. “Investment Fund” means an investment fund for Deferred
Compensation (which shall include any deferral of Director Fees) consisting of investment in mutual
funds and/or other marketable securities by a Participant; provided, however, said investment must
be reported to the Employer from the broker on a consolidated statement.



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     2.21 Participant. “Participant” means any Employee or Director of the Employer
identified and selected for participation in the Plan by the Committee and who elects to defer
compensation.



     2.22 Participation Agreement. “Participation Agreement” means the agreement in such
form as may be determined by the Committee from time to time between the Employer and a Participant
with respect to the Participant’s participation in the Plan.



     2.23 Payment Event. “Payment Event” shall have the meaning set forth in Section 5.1
below.



     2.24 Phantom 401(k) Contribution. “Phantom 401(k) Contribution” shall have the
meaning set forth in Section 6.1 of this Plan.



     2.25 Phantom ESOP Contribution. “Phantom ESOP Contribution” shall have the meaning
set forth in Section 6.2 of this Plan.



     2.26 Plan. “Plan” means the Deferred Compensation Plan, as amended and restated.



     2.27 Plan Year. “Plan Year” means a twelve (12) month period commencing each January
1 and ending each December 31, or such other Plan Year as determined by the Committee.



     2.28 Separation from Service. “Separation from Service” means separation from service
within the meaning of Section 409A of the Code and the regulations thereunder.



     2.29 Service Period. “Service Period” means any period of time during which a
Participant performs services for which he/she earns Compensation during a Plan Year.



     2.30 Specified Employee. “Specified Employee” means a key employee as defined in
Section 416(i) of the Code (without regard to Section 416(i)(5) of the Code) and as otherwise
defined in Section 409A of the Code and the regulations thereunder.



     2.31 Sponsoring Employer. “Sponsoring Employer” means TierOne Bank.



     2.32 Spouse. “Spouse” means a Participant’s wife or husband who was lawfully married
to the Participant prior to and at the time of the Participant’s retirement, disability, death or
Separation from Service.



     2.33 Stock Units. “Stock Units” shall represent shares of Company Stock, with each
Stock Unit representing one share of Company Stock.



     2.34 Unforeseeable Emergency. “Unforeseeable Emergency” means a severe financial
hardship to the Participant resulting from (1) an illness or accident of the Participant, the
Participant’s spouse, or a dependent of the Participant (within the meaning of Section 152(a) of
the Code), (2) loss of the Participant’s property due to casualty, or (3) other extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of the Participant.
The amount of such distribution may not exceed the amounts necessary to satisfy the emergency.



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The circumstances that will constitute an “Unforeseeable Emergency” will depend on the facts
of each case, but, in any case, payment may not be made in the event that such hardship is or may
be relieved:





     (a) through reimbursement or compensation by insurance or otherwise;




     (b) by liquidation of the Participant’s assets, to the extent that liquidation of such
assets would not itself cause severe financial hardship; or




     (c) by cessation of deferrals under the Plan.



ARTICLE 3.

ADMINISTRATION




     3.1 Committee; Duties.



     (a) Generally. The Plan shall be administered by the Committee or any successor
committee thereto appointed by the Board. Members of the Committee may be Participants under the
Plan. The Committee shall also have the authority to make, amend, interpret and enforce all
appropriate rules and regulations for the administration of the Plan and to decide or resolve any
and all questions, including interpretations of the Plan, as may arise in connection with the Plan.



     (b) Selection and Termination of Participants. The Committee shall identify and
select Employees or Directors of the Employer or the Company who shall be eligible to participate
in the Plan. The Committee may terminate participation of any Participant upon written notice to
the Participant; provided, however that the effective date of such termination may be no earlier
than January 1 following the date such written notice is provided.



     3.2 Agents. In the administration of the Plan, the Committee may, from time to time,
employ an agent and delegate to it such administrative duties as it sees fit and may, from time to
time, consult with counsel who may be counsel to the Employer.



     3.3 Binding Effect of Decisions. The decision or action of the Committee with respect
to any question arising out of or in connection with the administration, interpretation and
application of the Plan and the rules and regulations promulgated hereunder shall be final and
conclusive and binding upon all persons having any interest in the Plan.



     3.4 Indemnity of Committee. The Employer shall indemnify and hold harmless the
members of the Committee against any and all claims, loss, damage, expense or liability arising
from any action or failure to act with respect to the Plan, except in the case of gross negligence
or willful misconduct by the Committee or any of its members.



ARTICLE 4.

DEFERRED COMPENSATION ACCOUNT




     4.1 Enrollment Requirements; Deferred Compensation Account. Each Participant shall
complete, execute and return to the Committee a Participation Agreement, Deferral



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Election and beneficiary designation form prior to the election deadlines set forth in Section
4.2 below. The Employer shall establish a Deferred Compensation Account for each Participant which
shall be administered pursuant to the terms and provisions of this Plan. If the Sponsoring
Employer serves as a common pay master, the Participation Agreements may be entered into by the
Sponsoring Employer on behalf of the Employer.




     4.2 Timing of Initial Deferral Election.



     (a) Generally. An election to defer Compensation must be received by the Committee
prior to the date specified in this Section 4.2 of the Plan. Any elections to defer (i) Base
Salary, Incentive Compensation or Director Fees must be made on or prior to the December
31st preceding the calendar year in which such income shall be earned, subject to the
exceptions provided in Sections 4.2(b) and 4.2(c) of the Plan, and (ii) Stock Denominated Awards
must be made on or prior to the December 31 preceding the calendar year in which the restricted
stock awards vest; provided that an election to defer a Stock Denominated Award may not be made
after December 31, 2004 and no Stock Denominated Award may be deferred after December 31, 2005.
Under no circumstances may a Participant defer Compensation to which the Participant has already
attained, at the time of the deferral, a legally enforceable right to receive such Compensation.



     (b) New Participant. Notwithstanding anything in the Plan to the contrary, in the
case of the first year in which a Participant becomes eligible to participate in the Plan,
elections to defer Compensation may be made for services to be performed subsequent to the election
within thirty (30) days of the date a Participant first becomes eligible to participate in this
Plan, with such elections in each case to be effective as of the immediately following payroll
period of the Employer.



     (c) Performance-Based Compensation Deferral. Notwithstanding anything in the Plan to
the contrary, a Participant may make a performance-based compensation deferral election with
respect to Incentive Compensation that otherwise qualifies as “performance-based compensation”
under Section 409A of the Code. Such election must be made during such period as shall be
established by the Committee which ends no later than six (6) months prior to the last day of the
period over which the services giving rise to the Incentive Compensation are performed, provided
that the Incentive Compensation is based on the performance by the Participant of services for the
Employer over a period of at least twelve (12) months (whether or not paid in such performance
period) and which qualifies as “performance-based compensation” under Section 409A of the Code. If
the performance period is less than twelve (12) months, then any election to defer the Incentive
Compensation for such period must be made on or prior to the December 31st preceding the calendar
year in which such income shall be earned, subject to the exception in Section 4.2(b) above.



     (d) A Participant may not elect to change his or her Deferral Election that is in effect for a
Plan Year. The Committee, at its discretion, may permit a Participant to change his or her
Deferral Election for a subsequent Plan Year, provided that the subsequent Deferral Election is
made on or prior to the December 31st preceding the calendar year in which such income
shall be earned.



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     4.3 Prior Elections. Any payment elections made by a Participant before January 1,
2005 shall continue in effect until such time as the Participant makes a subsequent payment
election pursuant to Section 4.4 below and such payment election becomes effective as set forth
below. If no payment election was previously made, then the current payment election shall be
deemed to be 120 monthly cash payments (240 monthly cash payments if the Participant is a Director)
commencing as of the first day of the month following the lapse of six months after the
Participant’s employment or service is terminated due to a Separation from Service, death or
Disability.



     4.4 Transitional Elections in 2006. On or before December 31, 2006, if a Participant
wishes to change his payment election, the Participant may do so by completing a payment election
form approved by the Employer, provided that any such election (1) must be made at least 12 months
before the date on which benefit payments are scheduled to commence, (2) must be made while the
Participant is an active employee of the Employer or one of its subsidiaries, (3) shall not take
effect before the date that is 12 months after the date the election is made and accepted by the
Employer, (4) does not cause a payment that would otherwise be made in 2006 to be delayed to a
later year, and (5) does not accelerate into 2006 a payment that is otherwise scheduled to be made
in a later year.



     4.5 Subsequent Payment Elections. A Participant may not change his payment election
on or after January 1, 2007.



     4.6 Termination of Deferral Election. The Deferral Election of any Participant whose
future participation in the Plan is terminated by the Committee shall be deemed terminated as of
the first day of the Plan Year following such determination.



     4.7 Vesting. A Participant shall be one hundred percent (100%) vested in his/her
Deferred Compensation Account at all times.



     4.8 Withholding. Any amounts required to be withheld from the Participant’s Deferred
Compensation pursuant to federal, state or local law shall be withheld first from the non-deferred
portion of the Participant’s Compensation and, to the extent necessary, from the Deferred
Compensation. Upon the occurrence of a Payment Event, to the extent required by law in effect at
the time payments are made, the Employer shall withhold from payments made hereunder any taxes
required to be withheld pursuant to federal, state or local law.



     4.9 Investment Direction. At any time, a Participant may submit to the Committee a
completed Investment Direction directing investment contributions in his/her Deferred Compensation
Account in either the Fixed Income Fund or the Investment Fund. The Committee shall, as soon as
reasonably possible, implement the investments as directed by the Participant. Neither the
Committee nor the Employer shall be liable for any damages resulting from any loss in the value to
a Participant’s Deferred Compensation Account for implementing the Investment Direction as soon as
reasonably possible. “As soon as reasonably possible” shall mean at least two (2) business days
following the day on which the Investment Direction is received by the Employer and, may, under the
then current circumstances, constitute an additional period of time. Participants are not
permitted to transfer amounts out of or into the Stock Units Account.



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     4.10 Determination of Deferred Compensation Account. A Participant’s Deferred
Compensation Account shall consist of an investment in the Fixed Income Fund, if applicable, the
Investment Fund, if applicable, and Stock Units, if applicable. A Participant’s investment in
either the Fixed Income Fund, the Investment Fund or Stock Units shall be maintained and
administered as provided in Sections 4.10(a), (b) and (c) below.



     (a) Fixed Income Fund. A Participant’s investment in the Fixed Income Fund shall be
calculated as of each Determination Date and shall consist of the balance of the Fixed Income Fund
as of the most recent Determination Date credited by an amount equal to the Deferred Compensation
directed by the Participant to be invested in the Fixed Income Fund or otherwise required pursuant
to this Plan to be invested in the Fixed Income Fund since the most recent Determination Date.
Said Account shall be debited by the amount of any distributions from said Account since the most
recent Determination Date. After adjustment as provided above, interest shall be credited to the
Account at the Declared Rate.



     (b) Investment Fund. At each Determination Date, a Participant’s investment in the
Investment Fund shall be credited with the amount of Deferred Compensation directed by the
Participant to be invested in the Investment Fund. In addition, a Participant’s investment in the
Investment Fund shall be debited for all costs, fees or commissions assessed in connection with the
purchase and sale of securities as directed by Participant.



     (c) Stock Units. Subject to any terms and conditions imposed by the Committee,
Participants may elect to defer, under the Plan, amounts which would otherwise be taxable income of
a Participant as a result of the earning, vesting or such similar event with respect to
Stock-Denominated Awards. In connection with such deferral of a Stock-Denominated Award, a Stock
Units Account shall be established for such Participant. On terms determined by the Committee, the
Stock Unit Account will, as of the date that taxable income from a Stock-Denominated Award would
otherwise be recognized by a Participant, be credited with a number of share units corresponding
to the number of shares of Company Stock represented in the amount of the Stock-Denominated Award
being deferred hereunder. With respect to any fractional shares, the Committee may credit the
Participant’s Fixed Income Fund Account or Investment Fund Account with such amount in lieu of
depositing such fractional shares into the Stock Units Account.




     (i) Investment Return. Appreciation and depreciation in value of the Stock
Units Account shall be equal to the actual appreciation and depreciation of the Company
Stock.




     (ii) Allocation of Hypothetical Investment. Stock-Denominated Awards deferred
pursuant to this Plan shall continuously be deemed invested in Stock Units until settlement
of the Stock Units Account pursuant to Article V hereof, and the Participant shall not be
entitled to reallocate Stock Units into any other investments.




     (iii) Voting. Participants shall not be entitled to vote any Company Stock
underlying either the Stock-Denominated Awards deferred under the Plan or the Stock Units
held in their Stock Units Accounts.



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     (iv) Dividends. If the Company pays cash dividends or any other cash
distributions with respect to the Company Stock, then an equivalent amount with respect to
the Stock Units in a Participant’s Stock Units Account shall be credited to the
Participant’s Fixed Income Fund Account. If there are any stock dividends or stock splits
with respect to the Company Stock, then an equivalent amount with respect to the Stock Units
in a Participant’s Stock Units Account shall be credited to the Participant’s Stock Units
Account in the form of additional Stock Units.



     4.11 Annual Reporting. Within one hundred twenty (120) days following the end of each
Plan Year, the Committee shall provide to each Participant a statement setting forth the value as
of the last day of the preceding Plan Year in the Participant’s Deferred Compensation Account,
including the contributions, withdrawals, earnings and losses.



     4.12 Rabbi Trust. The Employer may, at any time, in its sole and absolute discretion,
transfer a Participant’s Deferred Compensation Account into a Rabbi Trust then in existence for the
Plan; provided, however, said Trust shall substantially comply with (i) the terms and provisions of
the model Rabbi Trust as set forth in Rev. Proc. 92-64, 1992-2 CB 422 as now existing or as
subsequently modified, and (ii) the requirements of Section 409A of the Code.



ARTICLE 5.

PAYMENT OF DEFERRED COMPENSATION




     5.1 Payment Events. Each Participant shall be entitled to payment of deferred
compensation equal to the amount of the vested balance of such Participant’s Deferred Compensation
Account as of the earliest to occur of the following events selected by a Participant on his
Deferral Election form (hereinafter “Payment Event”):




	 	(a)	 	Separation from Service (as defined in Section 2.26 above),
	 
	 	(b)	 	Death,
	 
	 	(c)	 	Disability (as defined in Section 2.13 above),
	 
	 	(d)	 	Change in Control (as defined in Section 2.3 above), or
	 
	 	(e)	 	In-service distribution as specified on a Deferral Election form.





     In addition to the above Payment Events, the Committee may, in its sole and absolute
discretion, allow a Participant to withdraw amounts from his/her Deferred Compensation Account upon
the happening of an Unforeseeable Emergency. A Participant may request a distribution due to an
Unforeseeable Emergency by submitting a written request to the Committee accompanied by evidence to
demonstrate that the circumstances being experienced qualify as an Unforeseeable Emergency. Any
withdrawal approved by the Committee shall not exceed the amount necessary to meet the
Unforeseeable Emergency.



     5.2 Form of Payment. Upon initially electing to participate in the Plan, a
Participant shall also select, on the Deferral Election form, the form in which deferred
compensation is to be paid to him/her following a Payment Event. A Participant who is not a
Director may elect to



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receive payment in a lump sum or in monthly cash (except amounts held in the Stock Units
Account must be distributed in the form of Company Stock) payments over a period not to exceed one
hundred twenty (120) months. A Participant who is a Director may elect to receive payment in the
following forms of payment: (i) a lump sum payment, (ii) a life annuity, (iii) a joint survivor
annuity, or (iv) a monthly payment of a fixed amount which shall amortize the applicable amount in
equal monthly payments of principal and interest over a period from two (2) to two hundred forty
(240) months. The election may not be altered by the Participant after he/she commences
participation in the Plan, except as set forth in Section 4.4 above. If a Participant fails to
elect a form of payment, the Deferred Compensation shall be paid to him/her in monthly cash
payments over a period of one hundred twenty (120) months if the Participant is not a Director and
over two hundred forty (240) months if the Participant is a Director.



     5.3 Timing of Payment Event. Within sixty (60) days after the occurrence of a Payment
Event, the Employer shall commence payment to the Participant or the Participant’s designated
Beneficiary or legal representative, as the case may be, of the Participant’s Deferred Compensation
Account, except as set forth below. The Deferred Compensation Account balance shall be paid
pursuant to Section 5.2 above. Notwithstanding anything in the Plan to the contrary, if a
Participant is deemed to be a Specified Employee at the time of Separation from Service, then any
payments made on account of Separation from Service will be made or will commence on the first day
of the month following the lapse of six (6) months after the date of the Separation from Service
(or, if earlier, upon the death of a Participant). If payments are to made in monthly installments
or in the form of an annuity and are delayed as set forth in the preceding sentence, then (a) the
number of monthly installments shall remain the same, (b) the amount of the annuity payments shall
be calculated based on the commencement date being the first day of the month following the lapse
of six months after the date of the Separation from Service, and (c) the installments or annuity
payments shall be paid each month, commencing as of the date set forth in the preceding sentence.



     5.4 Amount of Each Monthly Installment. The dollar amount of each monthly installment
paid to a Participant or his or her Beneficiaries shall be determined by multiplying the value of
the Participant’s vested Deferral Account as of the close of business on the day preceding such
payment by a fraction. The numerator of the fraction shall in all cases be one, and the
denominator of the fraction shall be the number of monthly installments remaining to be paid to the
Participant or his or her Beneficiaries, including the monthly installment for which the
calculation is being made. For example, if a Participant elected to receive 12 annual installments,
the amount of the first annual installment shall be 1/12th of the Participant’s vested
Deferral Account, the second annual installment shall be 1/11th of the then remaining
vested Deferral Account, and so on.



     5.5 Beneficiary Designation. Each Participant shall have the right to designate
primary and contingent Beneficiaries to receive any payment which may be payable hereunder
following the Participant’s death. Such beneficiary designation shall be delivered in writing to
the Committee, and may be changed at any time by a subsequent written notice to the Committee. The
last written designation delivered to the Committee prior to the Participant’s death shall control.
Such beneficiary designation shall become effective only when received by the Committee. If a
Participant fails to designate a Beneficiary, or if his/her Beneficiary designation is revoked by
operation of law and he/she does not designate a new Beneficiary, or if



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all designated Beneficiaries predecease the Participant or die prior to complete distribution
of the Participant’s Deferred Compensation Account, remaining payments shall be made to the legal
representative of the Participant’s estate. Any payment of a Participant’s Deferred Compensation
Account in accordance with this Section 5.5 shall release the Employer from all future liability
hereunder.



ARTICLE 6.

EMPLOYER CONTRIBUTIONS




     6.1 Phantom 401(k) Contributions. The Employer shall conditionally contribute into a
Participant’s Deferred Compensation Account on the Contribution Date or at such other date pursuant
to the Employer’s 401(k) plan an amount equal to the sum which the Employer would otherwise
contribute into the Participant’s 401(k) account with respect to said Deferred Compensation
assuming the Participant had not deferred any Compensation (“Phantom 401(k) Contribution”). The
amount of a Phantom 401(k) Contribution shall be in accordance with the Employer’s 401(k) plan as
of the date of the deferral, including any applicable vesting schedule with respect to said 401(k)
contribution.



     6.2 Phantom ESOP Contribution. The Employer shall conditionally contribute into a
Participant’s Deferred Compensation Account on the Contribution Date or at such other date in
accordance with the Employer’s Employee Stock Ownership Plan (the “ESOP”) an amount equal to the
sum which the Employer would otherwise contribute into the ESOP with respect to said Deferred
Compensation assuming the Participant had not deferred any Compensation (“Phantom ESOP
Contribution”). The amount of the Phantom ESOP Contribution and any vesting with respect to said
contribution shall be in accordance with the terms and provisions of the Employer’s ESOP as of the
time of said contribution.



     6.3 Investment of Phantom 401(k) Contribution and Phantom ESOP Contribution. Any
Phantom 401(k) Contribution and/or Phantom ESOP Contribution made to a Participant’s Deferred
Compensation Account shall be invested as directed by a Participant pursuant to this Plan.



ARTICLE 7.

CLAIM PROCEDURE




     7.1 Scope of Claims Procedures. This Article 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 Article conflicts with the requirements of
those regulations, the requirements of those regulations will prevail.



     7.2 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 Employer. The
Employer 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 Employer or appointee of the Employer prior to the end of the ninety (90)

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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 Employer 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 Plan 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
	 
	 	(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.





     7.3 Review Procedures.



          (a) Request For Review. A request for review of a denied claim must be made in
writing to the Employer within sixty (60) days after receiving notice of denial. The decision upon
review will be made within sixty (60) days after the Employer’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
Employer. 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 Employer will give the Claimant, in writing or by electronic
notification, a notice containing:




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	 	(i)	 	its decision;
	 
	 	(ii)	 	the specific reasons for the decision;
	 
	 	(iii)	 	the relevant provisions of the Plan 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 Employer’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.





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



     7.5 Legal Action. If the Employer fails to follow the claims procedures required by
this Article, a Claimant shall be deemed to have exhausted the administrative remedies available
under the Plan and shall be entitled to pursue any available remedy under Section 502(a) of ERISA
on the basis that the Plan 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
Article is a mandatory requisite to a Claimant’s right to commence any legal action with respect to
any claims for benefits under the Plan.



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



ARTICLE 8.

MISCELLANEOUS




     8.1 Amendment and Termination of the Plan. The Board of Directors of the Employer may
at any time amend the Plan, provided that no such action shall deprive any Participant, former
Participant or Beneficiary of any payment of Deferred Compensation to which the Participant, former
Participant or Beneficiary may have been entitled under the Plan prior to the effective date of such action. Any Employer may terminate its participation in
the



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Plan at any time following termination of the Plan, and payment of the Deferred Compensation
shall be made in accordance with the provisions of Article 5, except as set forth in Section 8.2(b)
below. Notwithstanding anything in the Plan to the contrary, the Board of Directors of the
Employer may amend in good faith any terms of the Plan or the Deferral Election form, including
retroactively, in order to comply with Section 409A of the Code.




     8.2 Effect of Amendment or Termination.



          (a) General. No amendment or termination of the Plan shall directly or indirectly
reduce the vested portion of any account held hereunder as of the effective date of such amendment
or termination. A termination of the Plan will not be a distributable event, except in the three
circumstances set forth in Section 8.2(b) below. No additional deferrals shall be made to the
account of a Participant, but the Employer shall continue to credit gains and losses pursuant to
Section 4.10 until the balance of the Participant’s account has been fully distributed to the
Participant or his beneficiary.




          (b) Termination. Under no circumstances may the Plan permit the acceleration of the
time or form of any payment under the Plan prior to the payment events specified herein, except as
provided in this Section 8.2(b). The Employer may, in its discretion, elect to terminate the Plan
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 Plan is terminated within the 30 days preceding a Change of
Control and (1) all substantially similar arrangements sponsored by the
Employer and/or the Corporation are terminated, and (2) the Participant 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 Plan is terminated and (1) all arrangements sponsored by
the Employer and/or the Corporation that would be aggregated with the Plan
under Treasury Regulation §1.409A-1(c) if the Participant 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 Employer nor the Corporation adopts a new arrangement that
would be aggregated with the Plan under Treasury Regulation §1.409A-1(c) if the
Participant participated in both arrangements, at any time within five years
following the date of termination of the Plan, or
	 
	 	(iii)	 	the Plan 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




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	 	 	 	by the Participant under the Plan are included in the Participant’s gross
income in the later of (1) the calendar year in which the termination of the
Plan occurs, or (2) the first calendar year in which the payment is
administratively practicable.





     8.3 Status of Participants. The Plan constitutes a mere promise by the Employer to pay
Deferred Compensation to Participants, former Participants or Beneficiaries in the future. The
right of a Participant, former Participant or Beneficiary to receive a payment of Deferred
Compensation hereunder shall be an unsecured claim against the general assets of the applicable
Employer, and neither the Participant, former Participant nor any Beneficiary shall have any rights
in or against any specific assets of the Employer. Neither the Plan nor any action taken under the
Plan shall be construed as giving any employee any right to be retained in the employ of the
Employer or any affiliate of the Employer.



     8.4 Limitation on Alienation. A Participant’s right to receive payments under this
Plan is not subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment or garnishment by creditors of the Participant or the Participant’s
Beneficiary.



     8.5 Pronouns. Whenever used in this Plan, the singular form shall mean or include the
plural form, where applicable, and vice versa.



     8.6 Applicable Law. This Plan shall be construed in accordance with applicable
federal law and, to the extent otherwise applicable, the laws of the State of Nebraska.



     8.7 Severability. If any provisions of this Plan shall be held invalid or
unenforceable, the remaining provisions of the Plan shall continue to be fully effective.



     8.8 Successors. The provisions of this Plan shall bind and inure to the benefit of
the Employer and its respective successors and assigns. The term successors as used herein shall
include any corporate or other business entity which shall, whether by merger, consolidation,
purchase or otherwise, acquire all or substantially all of the business and assets of the Employer,
and successors of any such corporation or other business entity.



[The remainder of this page has been left intentionally blank.]




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     IN WITNESS WHEREOF, TierOne Bank has adopted this amended and restated Plan as of the
27th day of July 2006, pursuant to the authority granted by the Board on July 27, 2006.



	 	 	 	 	 	 	 
	 	 	TIERONE BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Gilbert G. Lundstrom	 	 
	 

	 	 	 	 

Gilbert G. Lundstrom
	 
	 
	 	 	 	 
	 

	 	Its:	 	Chairman and Chief Executive Officer	 	 
	 

	 	 	 	 

	 	 







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