ex99-109.htm


    Exhibit
10.9

     

     

    TIERONE CORPORATION
EMPLOYEE
STOCK
OWNERSHIP
PLAN

    AMENDED AND RESTATED SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

    


    


    This Amended and Restated Supplemental
Executive Retirement Plan (“Plan”) of TierOne Corporation (the “Corporation”)
and TierOne Bank (the “Bank”) is adopted effective as of December 17, 2008 (the
“Effective Date”).  The Plan as amended and restated shall in all
respects be subject to the provisions set forth herein. The Plan was originally
established by the Corporation and the Bank effective as of October 1, 2002 and
amended and restated effective as of July 27, 2006 for the purpose of permitting
the officers listed in Appendix A attached hereto who participate in the TierOne
Corporation Employee Stock Ownership Plan (the “ESOP”) to receive allocations
representing shares of common stock of the Corporation pursuant to this Plan in
excess of the number of shares of common stock of the Corporation which are
allocable to their accounts within the ESOP under the limitations imposed by
Sections 401(a)(17) and 415 of the Internal Revenue Code of 1986, as amended,
and any regulations relating thereto (the “Code”).

    


    This Plan is being amended and restated
to comply with the requirements of Section 409A of the Code, including the
guidance issued to date by the Internal Revenue Service (the “IRS”) and the
final regulations issued by the IRS in April 2007.  No benefits
payable under this Plan shall be deemed to be grandfathered for purposes of
Section 409A of the Code.

    


    The Plan shall at all times be
characterized as a “top hat” plan of deferred compensation maintained for a
select group of management or highly compensated employees, as described under
Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income
Security Act of 1974, as amended, and any regulations relating thereto
(“ERISA”).  The Plan has been and shall continue to be operated in
compliance with Section 409A of the Code.  The Plan is an unfunded
plan for tax purposes.  The provisions of the Plan shall be construed
to effectuate such intentions.

    


    Accordingly, the Corporation and the
Bank hereby adopt this amended and restated Plan pursuant to the terms and
provisions set forth below:

    


    


    ARTICLE
I

    


    DEFINITIONS

    


    In addition to those terms defined
above, the following terms shall have the meanings hereinafter set forth
whenever used herein:

    


    1.1. “Board” means the Board of
Directors of the Corporation and the Bank.

    


    1.2. “Change of Control” means a change
in the ownership of the Corporation or the Bank, a change in the effective
control of the Corporation or the Bank or a change in the


    
      
         


      

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

    


    1.3. “Corporation Common Stock” means
shares of common stock of the Corporation.

    


    1.4. “Disability” means in the case of
any Participant that the 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 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 or the Corporation.

    


    1.5. “ESOP Allocation” means the number
of shares allocable to the individual account of a Participant in the ESOP
pursuant to Article IV of the ESOP.

    


    1.6. “Participant” means a salaried
employee of the Corporation and/or the Bank who is a participant in the ESOP,
who is a member of a select group of management or highly compensated employees
within the meaning of Section 201(2) of ERISA and who is selected by the Board
to participate in the Plan in accordance with Article II hereof.

    


    1.7. “Plan Year” means the
12-consecutive-month period ending December 31 of each year, except that the
initial Plan Year commenced on October 1, 2002 and ended on December 31,
2002.

    


    1.8. “Retirement” means the voluntary
termination of the Participant’s employment with the Bank on or after the date
the Participant reaches age 65 in a manner which constitutes a Separation from
Service.

    


    1.9.
“Separation from Service” means a termination of a
Participant’s services (whether as an employee or as an independent contractor)
to the Corporation and the Bank (including companies which are deemed to be part
of a controlled group of corporations with the Corporation and the Bank for
purposes of Treasury Regulation §1.409A-1(h)) for any reason. Whether a
Separation from Service has occurred shall be determined in accordance with the
requirements of Section 409A of the Code based on whether the facts and circumstances indicate
that the Corporation, the Bank and the Participant reasonably anticipated that
no further services would be performed after a certain date or that the level of
bona fide services the Participant would perform after such date (whether as an
employee or as an independent contractor) would permanently decrease to no more
than twenty percent (20%) of the average level of bona fide services performed
(whether as an employee or an independent contractor) over the immediately
preceding thirty-six (36) month period.

    


    1.10. “Stock Unit” means a bookkeeping
unit used for the purpose of crediting amounts to the account of a Participant,
with each such Stock Unit being equivalent to one share of Corporation Common
Stock.


    
      
        
           

           

        

         


      

      
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    1.11. “Supplemental ESOP Allocation”
shall mean the number of Stock Units allocated to a Participant's account
pursuant to Section 3.1 of the Plan.

    


    1.12. Words in the masculine gender
shall include the feminine and the singular shall include the plural, and vice
versa, unless qualified by the context. Any headings used herein are included
for ease of reference only, and are not to be construed so as to alter the terms
hereof.

    


    


    ARTICLE
II

    


    ELIGIBILITY

    


    A salaried employee of the Corporation
and/or the Bank who is eligible to receive the benefit of an ESOP Allocation,
the total amount of which is reduced by reason of the limitation on compensation
or annual additions for the purpose of calculating allocations pursuant to
Sections 401(a)(17) and 415 of the Code, shall be eligible to be selected by the
Board of Directors of the Corporation and the Bank to participate in the
Plan.

    


    


    ARTICLE
III

    


    SUPPLEMENTAL
CONTRIBUTIONS

    


    3.1. Supplemental
ESOP Allocation.

    


    A Participant in the Plan shall have a
Supplemental ESOP Allocation of Stock Units credited to his Deferral Account (as
defined below) each year effective as of the last day of the Plan Year. The
number of Stock Units allocable to a Participant with respect to a given Plan
Year shall be calculated as set forth below:

    


     (a) The Corporation Common Stock
which would have been allocated to the Participant for the Plan Year, as
determined by Article IV of the ESOP but without giving effect to the
limitations imposed by Sections 401(a)(17) and 415 of the Code for the Plan
Year;

    


    LESS

    


     (b)  The Corporation
Common Stock actually allocated to the account of the Participant in the ESOP
for the Plan Year.

    


    Supplemental
ESOP Allocations made for the benefit of a Participant for any Plan Year shall
be credited to an account maintained under the Plan in the name of each
Participant (the “Deferral Account”).

    



    
      
        
           

           

        

         


      

      
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    ARTICLE
IV

    


    INVESTMENT
OF SUPPLEMENTAL ESOP ALLOCATIONS

    


    A Participant may submit at any time to
the Corporation a completed investment direction form, as such form may be
amended from time to time (the “Investment Direction Form”), which shall direct
the investment of the Supplemental ESOP Allocations made to a Participant’s
Deferral Account, except as set forth below.  The Corporation shall,
as soon as reasonably possible, implement the investments as directed by the
Participant.  “As soon as reasonably possible” shall mean at least (2)
business days following the day on which the Investment Direction Form is
received by the Corporation and may, under the then current circumstances,
constitute an additional period of time.  Notwithstanding the
foregoing, amounts deemed to be credited in Corporation Common Stock under this
Plan to a Participant’s Deferral Account (i) may not be diversified, (ii) must
remain at all times credited with units that represent Corporation Common Stock;
and (iii) must be distributed solely in the form of Corporation Common Stock;
provided, however, that in the event of any change in the outstanding shares of
Corporation Common Stock by reason of any stock dividend or split,
recapitalization, merger, consolidation, spin-off, reorganization, combination
or exchange of shares or other similar corporate change, then the account of
each Participant shall be adjusted by the Bank in a reasonable manner to reflect
the change, and any such adjustment by the Bank shall be conclusive and binding
for all purposes of the Plan.

    


    A Participant may elect one or more
investment choices set forth on the Investment Direction Form for the purpose of
crediting or debiting additional amounts to his Deferral Account.  The
Corporation may, in its sole discretion, discontinue, substitute or add an
investment choice.  If a Participant does not submit an Investment
Direction Form to the Corporation, the Participant shall be deemed to have
invested his Deferral Account (excluding the Stock Units in such account) in a
money market, fixed income or similar type of investment as periodically
specified by the Bank.  Each Participant, as a condition to his
participation hereunder, agrees to indemnify and hold harmless the Corporation,
and its agents and representatives, from any losses or damages of any kind
relating to (i) the investments made available hereunder and (ii) any
discrepancy between the credits and debits to a Participant’s Deferral Account
based on the performance of the investments and what the credits and debits
otherwise might be in the case of an actual investment in the
investments.

    


    The performance of each investment
(either positive or negative) will be determined by the Corporation, in its sole
discretion, based on the performance of the investments themselves.  A
Participant’s Deferral Account shall be credited or debited on a daily basis
based on the performance of the investment(s) selected by the Participant, or as
otherwise determined by the Corporation in its sole discretion, as though the
Participant’s Deferral Account was (i) invested in the investment(s) selected by
the Participant, (ii) in the percentages elected by the Participant as of such
date, and (iii) at the closing price on such date.

    


    Notwithstanding any other provision of
this Plan that may be interpreted to the contrary, the investments are to be
used for measurement purposes only, and a Participant’s election of any such
investment(s), the allocation to his Deferral Account thereto, the calculation
of additional


    
      
        
           

           

        

         


      

      
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    amounts
and the crediting or debiting of such amounts to a Participant’s Deferral
Account shall not be considered, construed or deemed to be in any manner an
actual investment of his Deferral Account in any such
investment(s).  Without limiting the foregoing, a Participant’s
Deferral Account shall at all times be a bookkeeping entry only and shall not
represent any actual investment made on his behalf by the Corporation or the
Plan’s trust, if any, and the Participant shall at all times remain an unsecured
general creditor of the Corporation.

    


    


    ARTICLE
V

    


    VESTING;
DISTRIBUTIONS

    


    5.1. Vesting.  The
vested  portion of a  Participant's  account shall
be a percentage of the total amount credited to the account determined on the
basis of the Participant's number of “Years of Service” (as defined in Section
1.55 (or any successor thereto) of the ESOP) according to the following
schedule:

    


    Years of
Service                                                                Vested
Percentage

    


       Less than
5                                                                             0%

       5 or
more                                                                           
  100%

    


    In determining Years of Service for
purposes of vesting under the Plan, Years of Service with the Bank prior to
January 1, 2002 shall be included.

    


    Notwithstanding the above vesting
schedule, a Participant shall be 100% vested in his account upon (1) attainment
of “Early or Normal Retirement Age” (as defined in Sections 1.13 and 1.36 (or
any successor thereto) of the ESOP); (2) Disability; (3) termination or partial
termination of this Plan; or (4) a Change of Control.

    


    
      	
              5.2  

            	
              Distribution of
      Account Balances.

            


    

    


    (a)           General.  The vested
portion of amounts credited to a Participant's account may not be distributed
prior to (1) the Participant’s Disability or death, (2) the first day of the
month following the lapse of six months after the Participant’s Separation from
Service for reasons other than Disability or death, (3) the specific
post-Retirement date set forth in the Participant’s payment election form, or
(4) a Change of Control.  The vested portion of amounts credited to a
Participant’s account shall be distributed to a Participant at the time and in
the manner indicated on the Participant’s payment election form (a copy of which
is attached as Appendix B).  The form of benefit payment may be in a
single lump sum payment or in annual installment payments for up to ten years,
as specified on a Participant’s payment election form.  If the
benefits are to be paid in annual installments, the first annual installment
shall be paid on or as soon as practicable following the payment event selected
by the Participant (subject to the six-month delay required above if the payment
event is a Separation from Service for any reason other than Disability or
death), and all subsequent annual payments shall be paid on the annual
anniversary date of the first payment.


    
      
        
           

           

        

         


      

      
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    (b)           Amount of
Each Annual Installment.  The dollar amount
of each annual installment paid to a Participant or his or her Beneficiaries
shall be determined by multiplying the value of the Participant’s 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 annual installments
remaining to be paid to the Participant or his or her Beneficiaries, including
the annual installment for which the calculation is being made. For example, if
a Participant elected to receive 10 annual installments, the amount of the first
annual installment shall be 1/10th of the
Participant’s Deferral Account, the second annual installment shall be 1/9th of the
then remaining Deferral Account, and so on.

    


    (c)           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 5.2(d) 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 a lump sum payment as of the first day of
the month following the lapse of six months after a Separation from Service,
except as set forth in the last sentence of Section 5.2(f) below.

    


    (d)           Transitional
Elections Prior to 2009.  On or before
December 31, 2008, if a Participant wishes to change his payment election, the
Participant may do so by completing a payment election form approved by the
Bank, provided that any such election (1) must be made at least 12 months before
the date on which benefit payments due to a Separation from Service or upon a
fixed date are scheduled to commence, (2) must be made before the Participant
has a Separation from Service, (3) shall not take effect before the date that is
12 months after the date the election is made and accepted by the Bank, (4)
does not cause a payment that would otherwise be made in the year of election to
be delayed to a later year, and (5) does not accelerate into the year in which
the election is made a payment that is otherwise scheduled to be made in a later
year.

    


    (e)           Changes
in Payment Elections after 2008.  On or after
January 1, 2009, if a Participant wishes to change his payment election, the
Participant may do so by completing a payment election form approved by the
Bank, provided that any such election (1) must be made at least 12 months before
the date on which benefit payments due to a Separation from Service or upon a
fixed date are scheduled to commence, (2) must be made before the Participant
has a Separation from Service, (3) shall not take effect before the date that is
12 months after the date the election is made and accepted by the Bank, and
(4) for payments to be made other than upon death or Disability, must provide an
additional deferral period of at least five years from the date such payment
would otherwise have been made (or in the case of any installment payments
treated as a single payment, five years from the date the first amount was
scheduled to be paid).  For purposes of this Plan and clause (4)
above, all installment payments under this Plan shall be treated as a single
payment.

    


    (f)           Payments
Following the Participant’s Death.  If a Participant
should die before distribution of the entire vested portion of his account
pursuant to the Plan has been made to him, any remaining vested amounts shall be
distributed to his beneficiary in the method


    
      
        
           

           

        

         


      

      
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    designated
by the Participant in writing delivered to the Bank prior to his
death.  If a Participant has not designated a beneficiary, or if no
designated beneficiary is living on the date of distribution, such vested
amounts shall be distributed to those persons entitled to receive distributions
of the Participant's account under the ESOP.  If a Participant has not
designated a method of distribution, then the vested portion of his account
shall be paid in a lump sum as soon as practicable following the date of his
death.

    


    


    ARTICLE
VI

    


    ADMINISTRATION
OF THE PLAN

    


    6.1. Administration
by the Corporation and the Bank. The Corporation and the Bank shall be
responsible for the general operation and administration of the Plan and for
carrying out the provisions thereof.

    


    6.2. General
Powers of Administration. All provisions set forth in the ESOP with
respect to the administrative powers and duties of the Corporation and the Bank
and expenses of administration shall also be applicable with respect to the
Plan.

    


    


    ARTICLE
VII

    


    CLAIMS
PROCEDURES

    


    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 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, with such extension not to extend beyond the day which is one hundred
eighty (180) days after the day the claim 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;

            


    


    
      
        
           

           

        

         


      

      
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(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

            


    

    


    
      	
              (vii)  

            	
              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 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 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

            


    


    
      
        
           

           

        

         


      

      
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              and
      other information in the Bank’s files which are 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 Bank 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 Bank.  Notwithstanding
anything in this Plan 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.

    


    


    ARTICLE
VIII

    


    AMENDMENT
OR TERMINATION

    


    8.1.           Amendment
or Termination. The Corporation and the Bank intend the Plan to be
permanent but reserve the right to amend or terminate the Plan when, in the sole
opinion of the Corporation and the Bank, such amendment or termination is
advisable. Any such amendment or termination shall be made pursuant to a
resolution of the Board.  In addition, in the event that the Bank
determines, after a review of Section 409A of the Code and all applicable
Internal Revenue Service guidance, that the Plan or payment election form needs
to be further amended to comply with Section 409A of the Code, the Bank may
amend the Plan or the payment election form to make any changes required for it
to comply with Section 409A of the Code.


    
      
        
           

           

        

         


      

      
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    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 credits with respect to Supplemental ESOP
Allocations shall be made to the account of a Participant and no additional
Years of Service (within the meaning of Section 5.1) shall be credited after
termination of the Plan, but the Corporation or Bank shall continue to credit
gains and losses pursuant to Article IV until the vested 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 Corporation or the Bank may, in
their 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, provided that in each case the action taken complies
with the applicable requirements set forth in Treasury Regulation §1.409A-3(j)(4)(ix):

    


    
      	
              (i)  

            	
              the
      Plan is irrevocably terminated within
      the 30 days preceding a Change of Control and (1) all arrangements
      sponsored by the Bank and/or the Corporation and any successors immediately following the
      Change of Control that would be aggregated with the Plan under Treasury
      Regulation §1.409A-1(c)(2) are terminated with respect to each participant
      that experienced the Change of Control event, and (2) all Participants in the Plan and all participants under the other aggregated arrangements receive all
      of their benefits under the terminated arrangements within 12 months of
      the date that all necessary action to
      irrevocably terminate the Plan and the other aggregated
      arrangements is
  taken;

            


    

    


    
      	
              (ii)  

            	
              the
      Plan is irrevocably terminated at a time that is not proximate to a downturn in
      the financial health of the Bank and/or the Corporation and (1) all
      arrangements sponsored by the Bank and/or the Corporation that would be
      aggregated with the Plan under Treasury Regulation §1.409A-1(c) if a
      Participant participated in such
      arrangements are terminated, (2) no payments are made within 12 months of the date the
      Bank and/or the Corporation take all
      necessary action to irrevocably terminate the arrangements, other
      than payments that would be payable under the terms of the arrangements if
      the termination had not occurred; (3) all payments are made within 24
      months of the date the Bank and/or
      the Corporation takes all necessary action
      to irrevocably terminate the arrangements; and (4) the Bank and/or
      the Corporation does not adopt a new arrangement that would be aggregated
      with the Plan under Treasury Regulation §1.409A-1(c) if a Participant
      participated in both

            


    


    
      
        
           

           

        

         


      

      
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              arrangements,
      at any time within three years
      following the date the Bank and/or
      the Corporation takes all necessary action
      to irrevocably terminate 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 by
      each 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.

            


    

    


    


    ARTICLE
IX

    


    GENERAL
PROVISIONS

    


    9.1.           Participant's
Rights Unsecured. To fund their obligations under the Plan, the
Corporation and the Bank may elect to form a trust, or to utilize a pre-existing
trust, to purchase and hold the alternative forms of assets which are permitted
under the ESOP, including shares of Corporation Common Stock, subject to
compliance with all applicable securities laws. If the Corporation and the Bank
elect to use a trust to fund their obligations under the Plan, a Participant
shall have no right to demand the transfer to him of stock or other assets from
the Corporation and the Bank, or from such a trust formed or utilized by the
Corporation and the Bank. Any assets held in a trust, including shares of
Corporation Common Stock, may be distributed to a Participant in payment of part
or all of the Corporation's and the Bank's obligations under the Plan. The right
of a Participant or his designated beneficiary to receive a distribution
hereunder shall be an unsecured claim against the general assets of the
Corporation and the Bank, and neither the Participant nor a designated
beneficiary shall have any rights in or against any specific assets of the
Corporation and the Bank.

    


    9.2.           General
Conditions. Nothing in this Plan shall operate or be construed in any way
to modify, amend or affect the terms and provisions of the ESOP.

    


    9.3.           No
Guarantee of Benefits. Nothing contained in the Plan shall constitute a
guarantee by the Corporation and the Bank or any other person or entity that the
assets of the Corporation and the Bank will be sufficient to pay any benefit
hereunder.

    


    9.4.           No
Enlargement of Employee Rights. No Participant shall have any right to
receive a distribution of contributions made under the Plan except in accordance
with the terms of the Plan. Establishment of the Plan shall not be construed to
give any Participant the right to be retained in the service of the Corporation
and the Bank.

    


    9.5.           Spendthrift
Provision. No interest of any person or entity in, or right to receive a
distribution under, the Plan shall be subject in any manner to sale, transfer,
assignment, pledge, attachment, garnishment, or other alienation or encumbrance
of any kind; nor may such interest


    
      
        
           

           

        

         


      

      
        11

        
          

        

      

      
         


      

    


    or right
to receive a distribution be taken, either voluntarily or involuntarily for the
satisfaction of the debts of, or other obligations or claims against, such
person or entity, including claims for alimony, support, separate maintenance
and claims in bankruptcy proceedings.

    


    9.6.           Applicable
Law. The Plan shall be construed and administered under the laws of the
State of Nebraska to the extent such laws are not superseded by federal
law.

    


    9.7.           Incapacity
of Recipient. If any person entitled to a distribution under the Plan is
deemed by the Corporation and the Bank to be incapable of personally receiving
and giving a valid receipt for such payment, then, unless and until claim
therefor shall have been made by a duly appointed guardian or other legal
representative of such person, the Corporation and the Bank may provide for such
payment or any part thereof to be made to any other person or institution then
contributing toward or providing for the care and maintenance of such person.
Any such payment shall be a payment for the account of such person and a
complete discharge of any liability of the Corporation and the Bank and the Plan
therefor.

    


    9.8.           Corporate
Successors. The Plan shall not be automatically terminated by a transfer
or sale of assets of the Corporation and the Bank or by the merger or
consolidation of the Corporation and the Bank into or with any other corporation
or other entity, but the Plan shall be continued after such sale, merger or
consolidation only if and to the extent that the transferee, purchaser or
successor entity agrees to continue the Plan. In the event that the Plan is not
continued by the transferee, purchaser or successor entity (including a
continuation by means of a merger into a successor plan), then the Plan shall
terminate subject to the provisions of Section 8.2(a). Any termination of the
ESOP shall not in and of itself result in a termination of this
Plan.

    


    9.9.           Unclaimed
Benefit. Each Participant shall keep the Corporation and the Bank
informed of his current address and the current address of his designated
beneficiary. The Corporation and the Bank shall not be obligated to search for
the whereabouts of any person. If the location of a Participant is not made
known to the Corporation and the Bank within three (3) years after the date on
which payment of the Participant's account may first be made, payment may be
made as though the Participant had died at the end of the three-year period. If,
within one additional year after such three-year period has elapsed, or, within
three years after the actual death of a Participant, the Corporation and the
Bank is unable to locate any designated beneficiary of the Participant, then the
Corporation and the Bank shall have no further obligation to pay any benefit
hereunder to such Participant or designated beneficiary and such benefit shall
be irrevocably forfeited.

    


    9.10.  
     Limitations
on Liability. Notwithstanding any of the preceding provisions of the
Plan, neither the Corporation and the Bank nor any individual acting as employee
or agent of the Corporation and the Bank shall be liable to any Participant,
former Participant or other person for any claim, loss, liability or expense
incurred in connection with the Plan.


    
      
        
           

           

        

         


      

      
        12

        
          

        

      

      
         


      

    


    IN WITNESS WHEREOF, TierOne
Corporation and TierOne Bank have caused the Plan to be duly executed on this
17th day of December 2008.

    


                    
TierOne Corporation

    


    Attest:

    


    /s/ Judith A.
Klinkman                                                                         
By:_/s/ Gilbert G.
Lundstrom

    Judith A.
Klinkman                                                                                Gilbert
G. Lundstrom

    Assistant
Secretary                                                                                Chairman
and Chief Executive Officer

    


    


                    
TierOne Bank

    


    Attest:

    


    /s/ Judith A.
Klinkman                                                                         
By:_/s/ Gilbert G.
Lundstrom

    Judith A.
Klinkman                                                                                Gilbert
G. Lundstrom

    Assistant
Secretary                                                                                Chairman
and Chief Executive Officer

    



    
      
        
           

           

        

         


      

      
        13

        
          

        

      

      
         


      

    


    APPENDIX
A

    


    


    The Corporation and the Bank have
designated the following persons as Participants in its Amended and Restated
Supplemental Executive Retirement Plan with respect to its ESOP:

    


    


    


    1.   Gilbert
G. Lundstrom, Chairman and Chief Executive Officer, effective October 1,
2002.

    


    2.   James
A. Laphen, President and Chief Operating Officer, effective October 1,
2002.


    
      
        
           

        

         


      

      
        A-1

        
          

        

      

      
         


      

    


    APPENDIX
B

    


    


    2008 PAYMENT ELECTION
FORM

    


    TierOne
CORPORATION EMPLOYEE STOCK
OWNERSHIP PLAN

    AMENDED
AND RESTATED SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

    


    


    _____________________________

    Date

    


    I acknowledge receipt of a copy of the
TierOne Corporation (the “Corporation”) Amended and Restated Supplemental
Executive Retirement Plan (the “Plan”) with respect to the Corporation’s ESOP
and understand that the Plan and this Payment Election Form constitute a binding
agreement between myself, the Corporation and the Bank.  I further
acknowledge that I have no rights to any amounts deferred pursuant to the Plan
until the time of distribution pursuant to the provisions of Section 5.2 of the
Plan.

    


    This Payment Election Form sets forth
below my election as to the timing of payment of the vested portion of my
account balances under the Plan. All payments under the Plan will be subject to
the terms and conditions of the Plan which are incorporated herein by
reference.

    


    I acknowledge that my election will
apply to all amounts deferred on my behalf under the Plan and can only be
changed in a manner which complies with the Plan and Section 409A of the
Internal Revenue Code.

    


    My period of deferral, with respect to
amounts deferred under the Plan, shall expire upon the earliest event or date
specified below (check as many as you wish to have applied to you):

    


    
      
        	
                o       
         1.

              	
                Upon
      my Separation from Service, excluding termination due to death or
      Disability, I elect to receive settlement of my account by (check
      one):

              


      

    

    


    
      	
               
      

            	
              ____

            	
              Lump
      sum distribution on the first day of the month following the lapse of six
      months after the occurrence of such event;
or

            


    

    


    
      	
               
      

            	
              ____

            	
              Commencement
      of ____ annual installment payments on the first day of the month
      following the lapse of six months after the occurrence of such event (up
      to 10 annual installment payments
permitted).

            


    

     

    and/or

    


    
      
        	
                o          
      2. 

              	
                Upon
      my death or Disability, I elect to receive settlement of my account by
      (check one):

              


      

    

    


    
      	
               
      

            	
              ____

            	
              Lump
      sum distribution as soon as administratively feasible after the occurrence
      of such event; or

            


    


    
      
        
           

        

         


      

      
        B-1

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              ____

            	
              Commencement
      of ____ annual installment payments as soon as administratively feasible
      after the occurrence of such event (up to 10 annual installment payments
      permitted).

            


    

     

    and/or

    


    
      
        	
                o        
        3.

              	
                Upon
      the occurrence of a Change of Control, I elect to receive settlement of my
      account by (check one):

              


      

    

    


    
      	
               
      

            	
              ____

            	
              Lump
      sum distribution as soon as administratively feasible after the occurrence
      of such event; or

            


    

    


    
      	
               
      

            	
              ____

            	
              Commencement
      of ____ annual installment payments as soon as administratively feasible
      after the occurrence of such event (up to 10 annual installment payments
      permitted).

            


    

     

    and/or

     

    
      
        	
                o          
      4.

              	
                On
      ________ ___, 20__ (NOTE:  needs to be a date after you retire,
      and if you wish to have this option apply, you should not check box No. 1
      above), I elect to receive my account by (check
  one):

              


      

    

    


    
      	
               
      

            	
              _____

            	
              Lump
      sum settlement; or

            


    

    


    
      	
               
      

            	
              _____

            	
              Commencement
      of ____ annual installment payments (up to 10 annual installment payments
      permitted).

            


    

    


    I understand that any balance remaining
in my account, as of the date of the last distribution to be made to me pursuant
to my elections above, will be added to and distributed in said last
distribution.

    


    PARTICIPANT

    


    


    
      	
               
      

            	
              Signature:

            	
              _____________________________

            


    

    


    


    Printed
Name:_____________________________

    


    The Bank
hereby acknowledges the receipt of this

    Payment
Election Form.

    


    
      	
              Name:

            	
              __________________________________

            


    

    


    Date
Received:_____________________________

     

     

    B-2