ex99-108.htm


    Exhibit 10.8

     

     

    TIERONE BANK

    AMENDED AND RESTATED EMPLOYEE SEVERANCE PLAN

     

     

    ARTICLE I

    ESTABLISHMENT OF THE PLAN

     

    TierOne Bank (the “Bank” or the “Employer”) hereby amends and restates
its Employee Severance Plan, which was originally adopted in 2002 and previously
amended and restated effective as of July 27, 2006, effective as of December 17,
2008 (as amended and restated, the “Plan”).

     

    This Plan is being amended and restated in order to comply with the
requirements of Section 409A of the Code (as defined below), including the
guidance issued to date by the Internal Revenue Service (the “IRS”) and the
final regulations issued by the IRS in April 2007.

     

    ARTICLE II

    PURPOSE OF THE PLAN

     

    The purpose of this Plan is to provide certain specified benefits to
eligible employees as provided herein whose employment is terminated in
connection with or subsequent to a Change in Control of either the Bank or the
Bank’s parent corporation, TierOne Corporation (the “Company”). The Bank and the
Company are hereinafter collectively referred to as the
“Employers”.

     

    ARTICLE III

    DEFINITIONS

     

    3.01     Annual
Compensation. An Employee’s “Annual Compensation” for purposes of this
Plan shall be deemed to mean the aggregate base salary and cash incentive
compensation earned by or paid to the Employee by the Employers or any
subsidiary thereof during the calendar year immediately preceding the calendar
year in which the Date of Termination occurs; provided, however, for
purposes of this Plan the Employee’s Annual Compensation does not include
deferred compensation earned by the Employee in a prior year but received in the
calendar year immediately preceding the calendar year in which the Date of
Termination occurs.

     

    3.02    
Cause. Termination of an Employee’s employment for “Cause” shall mean
termination because of personal dishonesty, incompetence, willful misconduct,
breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties, willful violation of any law, rule or regulation (other
than traffic violations or similar offenses) or final cease-and-desist order.
For purposes of this paragraph, no act or failure to act on the Employee’s part
shall be considered “willful” unless done, or omitted to be done, by the
Employee not in good faith and without reasonable belief that the Employee’s
action or omission was in the best interests of the Employers.

     

    3.03     Change
in Control. “Change in Control” shall mean 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


     

    
      
         


      

      
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    change in
the ownership of a substantial portion of the assets of the Bank or the Company,
in each case as provided under Section 409A of the Code and the regulations
thereunder.

     

    3.04    
Code. “Code” shall mean the Internal Revenue Code of 1986, as amended.


     

    3.05    
Committee. “Committee” means a committee of two or more directors
appointed by the Board of Directors of the Bank pursuant to Article VII
hereof.

     

    3.06     Date of
Termination. “Date of Termination” shall mean (i) if an Employee’s
employment is terminated for Cause, the date on which the Notice of Termination
is given, and (ii) if an Employee’s employment is terminated for any other
reason, the date specified in the Notice of Termination.

     

    3.07    
Disability. Disability” shall mean the Employee (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 12 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 12 months, receiving income replacement benefits for a
period of not less than three months under an accident and health plan covering
employees of the Bank.

     

    3.08    
Employee. “Employee” shall mean any person who at the time has been
employed by the Bank for at least 12 continuous months, excluding any Employee
who has an employment or change in control agreement with either of the
Employers.

     

    3.09     Good
Reason. Termination by an Employee of the Employee’s employment for “Good
Reason” shall mean termination by the Employee following a Change in Control
based on the occurrence of any of the following events:

     

    (i) (A) a material diminution in the Employee’s base compensation as in
effect immediately prior to the date of the Change in Control or as the same may
be increased from time to time thereafter, (B) a material diminution in the
Employee’s authority, duties or responsibilities as in effect immediately prior
to the Change in Control, or (C) a material diminution in the authority, duties
or responsibilities of the officer (as in effect immediately prior to the date
of the Change in Control) to whom the Employee is required to report immediately
prior to the Change in Control, 

     

    (ii) any material breach of this Plan by the Employers, or

     

    (iii) any material change in the geographic location at which the
Employee must perform his services immediately prior to the Change in
Control;

     

    provided,
however, that prior to any termination of employment for Good Reason, the
Employee must first provide written notice to the Employers within ninety (90)
days of the initial existence of the condition, describing the existence of such
condition, and the Employers shall thereafter have the right to remedy the
condition within thirty (30) days of the date the Employers received the written
notice from the Employee.  If the Employers remedy the condition within
such thirty

     

    
      
        
        

      

      
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    (30) day cure period, then no Good Reason shall be deemed to
exist with respect to such condition.  If the Employers do not remedy the
condition within such thirty (30) day cure period, then the Employee may deliver
a Notice of Termination for Good Reason at any time within sixty (60) days
following the expiration of such cure period.

     

    3.10    
IRS.  “IRS” shall mean the Internal Revenue Service.

     

    3.11     Notice
of Termination. Following a Change in Control, any purported termination
of an Employee’s employment by the Employers for any reason or by an Employee
for any reason, including without limitation for Good Reason, shall be
communicated by a written “Notice of Termination” to the Employee (if from the
Employers) or to the Employers (if from the Employee). For purposes of this
Plan, a “Notice of Termination” shall mean a dated notice which (i) indicates
the specific termination provision in this Plan relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Employee’s employment under the provision so indicated, (iii)
specifies a Date of Termination, which shall be not less than thirty (30) nor
more than ninety (90) days after such Notice of Termination is given, except in
the case of the Employers’ termination of the Employee’s employment for Cause,
which shall be effective immediately, and (iv) is given in the manner specified
in Article VIII hereof.

     

    3.12    
Retirement. “Retirement” shall mean voluntary termination by the Employee
in accordance with the Employers’ retirement policies, including early
retirement, generally applicable to their salaried Employees. 

     

    ARTICLE IV

    BENEFITS

     

    4.01     Payments and Benefits Upon Termination.


     

    (a)        If an Employee’s employment
is terminated within one year subsequent to a Change in Control by (i) the
Employers for other than Cause, Disability, Retirement or the Employee’s death
or (ii) the Employee for Good Reason, then the Employers shall pay to the
Employee a lump sum cash severance amount equal to one twelfth (1/12th) of the
Employee’s Annual Compensation for each year of service with the Employers,
subject to a minimum of one twelfth (1/12th) of Annual Compensation and a
maximum of 100% of Annual Compensation, plus any accrued but unused vacation
leave. 

     

    (b)        If the payments pursuant to
Section 4.01(a) hereof, either alone or together with other payments and
benefits which the Employee has the right to receive from the Employers, would
constitute a “parachute payment” under Section 280G of the Code, then the
payments payable by the Employers pursuant to Section 4.01(a) hereof shall be
reduced by the minimum amount necessary to result in no portion of the payments
payable by the Employers under Section 4.01(a) being non-deductible to the
Employers pursuant to Section 280G of the Code and subject to the excise tax
imposed under Section 4999 of the Code. The determination of any reduction in
the payments to be made pursuant to Section 4.01(a) shall be based upon the
opinion of independent counsel selected by the Bank and paid by the Bank. Such
counsel shall promptly prepare the foregoing opinion, but in no event later than
thirty (30) days from the Date of 

     

    
      
         


      

      
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    c, and
may use such actuaries as such counsel deems necessary or advisable for the
purpose. 

     

    (c)        Nothing
contained in this Section 4.01 shall result in a reduction of any payments or
benefits to which the Employee may be entitled upon termination of employment
under any circumstances other than as specified in Section 4.01(b) set
forth above, or a reduction in the payments and benefits
specified in Section 4.01(a) below zero.

     

    4.02     Mitigation; Exclusivity of
Benefits.

     

    (a)        An Employee shall not be
required to mitigate the amount of any benefits hereunder by seeking other
employment or otherwise, nor shall the amount of any such benefits be reduced by
any compensation earned by the Employee as a result of employment by another
employer after the Date of Termination or otherwise.

     

    (b)        The specific arrangements
referred to herein are not intended to exclude any other benefits which may be
available to an Employee upon a termination of employment with the Employers
pursuant to employee benefit plans of the Employers or otherwise.

     

    4.03    
Withholding. All payments required to be made by the Employers hereunder
to an Employee shall be subject to the withholding of such amounts, if any,
relating to tax and other payroll deductions as the Employers may reasonably
determine should be withheld pursuant to any applicable law or
regulation.

     

    4.04.   
Source of Payments. It is intended by the parties hereto that all
payments provided in this Plan shall be paid in cash or check from the general
funds of the Bank. Further, the Company guarantees such payment and provision of
all amounts and benefits due hereunder to the Executive and, if such amounts and
benefits due from the Bank are not timely paid or provided by the Bank, such
amounts and benefits shall be paid or provided by the Company. 

     

    4.05.   
No Attachment. Except as required by law, no right to receive payments
under this Plan shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null,
void, and of no effect.

     

    ARTICLE V

    ASSIGNMENT

     

    The Employers may assign this Plan and their rights and obligations
hereunder in whole, but not in part, to any corporation, bank or other entity
with or into which the Bank or the Company may hereafter merge or consolidate or
to which the Bank or the Company may transfer all or substantially all of its
respective assets, if in any such case said corporation, bank or other entity
shall by operation of law or expressly in writing assume all obligations of the
Employers hereunder as fully as if it had been originally made a party hereto,
but may not otherwise assign this Plan or their rights and obligations
hereunder. An Employee may not assign or transfer any rights or benefits due
hereunder.

     

    
      
        
        

      

      
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    ARTICLE VI

    DURATION AND EFFECTIVE DATE OF PLAN

     

    6.01    
Duration. Except in the event of a Change in Control, this Plan is
subject to change or termination, in whole or in part, at any time without
notice, in the Board’s sole discretion. In the event of a Change in Control,
this Plan may not be terminated or amended to reduce the benefits provided
hereunder for a period of 13 months following the date of the Change in Control.
 In addition, notwithstanding anything in this Plan to the contrary, the
Employers may amend in good faith any terms of this Plan, including
retroactively, in order to comply with Section 409A of the Code.

     

    6.02    
Effective Date. This Plan was originally effective as of October 1, 2002
and was previously amended and restated as of July 27, 2006.  This
amendment and restatement of the Plan is effective as of December 17,
2008.

     

    ARTICLE VII

    ADMINISTRATION

     

    7.01     Duties
of the Committee. This Plan shall be administered and interpreted by the
Committee, as appointed from time to time by the Board of Directors of the Bank
pursuant to Section 7.02. The Committee shall have the authority to adopt, amend
and rescind such rules, regulations and procedures as, in its opinion, may be
advisable in the administration of this Plan, including, without limitation,
rules, regulations and procedures with respect to the operation of this Plan.
The interpretation and construction by the Committee of any provisions of this
Plan or any rule, regulation or procedure adopted by it pursuant thereto shall
be final and binding in the absence of action by the Board of Directors of the
Bank.

     

    7.02    
Appointment and Operation of the Committee. The members of the Committee
shall be appointed by, and will serve at the pleasure of, the Board of Directors
of the Bank. The Board from time to time may remove members from, or add members
to, the Committee, provided the Committee shall continue to consist of two or
more members of the Board. The Committee shall act by vote or written consent of
a majority of its members. Subject to the express provisions and limitations of
this Plan, the Committee may adopt such rules, regulations and procedures as it
deems appropriate for the conduct of its affairs. It may appoint one of its
members to be chairman and any person, whether or not a member, to be its
secretary or agent. The Committee shall report its actions and decisions to the
Board at appropriate times but in no event less than one time per calendar
year.

     

    7.03    
Limitation on Liability. Neither the members of the Board of Directors of
the Bank nor any member of the Committee shall be liable for any action or
determination made in good faith with respect to this Plan or any rule,
regulation or procedure adopted by it pursuant thereto. If a member of the Board
or the Committee is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of anything done or not
done by him in such capacity under or with respect to this Plan, the Bank shall,
subject to the requirements of applicable laws and regulations, indemnify such member against all liabilities and
expenses (including attorneys’

     

    
      
         


      

      
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    fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in the best interests of the Bank and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful.

     

     

    ARTICLE VIII

    MISCELLANEOUS

     

    8.01    
Notice. For the purposes of this Plan, notices and all other
communications provided for in this Plan shall be in writing and shall be deemed
to have been duly given when delivered or mailed by certified or registered
mail, return receipt requested, postage prepaid, addressed, with respect to the
Bank, Secretary, TierOne Bank, 1235 N Street, Lincoln, Nebraska 68508, and with
respect to an Employee, to the home address thereof set forth in the records of
the Bank at the date of any such notice.

     

    8.02    
Governing Law. The validity, interpretation, construction and performance
of this Plan shall be governed by the laws of the United States where applicable
and otherwise by the substantive laws of the State of Nebraska. 

     

    8.03     Nature of Employment and
Obligations.

     

    (a)        Nothing contained herein
shall be deemed to create other than a terminable at will employment
relationship between the Employers and an Employee, and the Employers may
terminate an Employee’s employment at any time, subject to providing any
payments specified herein in accordance with the terms hereof.

     

    (b)        Nothing contained herein
shall create or require the Employers to create a trust of any kind to fund any
benefits which may be payable hereunder, and to the extent that an Employee
acquires a right to receive benefits from the Employers hereunder, such right
shall be no greater than the right of any unsecured general creditor of the
Employers.

     

    8.04    
Headings. The section headings contained in this Plan are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Plan.

     

    8.05    
Validity. The invalidity or unenforceability of any provision of this
Plan shall not affect the validity or enforceability of any other provisions of
this Plan, which shall remain in full force and effect. 

     

    8.06    
Regulatory Provisions. Notwithstanding any other provision of this Plan
to the contrary, any payments made to an Employee pursuant to this Plan, or
otherwise, are subject to and conditioned upon their compliance with (a) Section
18(k) of the Federal Deposit Insurance Act (12 U.S.C. §1828(k)) and the
regulations promulgated thereunder, including 12 C.F.R. Part 359, and (b) 12
C.F.R. §563.39.  

     

     

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