TierOne bank AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.1
TierOne bank
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of
July 27, 2006, by and between TierOne Bank, a federally chartered savings bank with its principal
office in Lincoln, Nebraska (the “Association”), and Xxxxxxx X. Xxxxxxxxx (the “Executive”).
RECITALS
WHEREAS, the Executive is currently employed as the Chairman of the Board and Chief Executive
Officer of the Association pursuant to an amended and restated employment agreement between the
Association and the Executive entered into as of February 23, 1995, as subsequently amended
effective December 18, 1996 and November 17, 2004 or by subsequent resolutions of the Board of
Directors (the “Association Employment Agreement”);
WHEREAS, the Executive is currently employed as the Chairman of the Board and Chief Executive
Officer of TierOne Corporation, the parent company of the Association (the “Company”) pursuant to
an employment agreement between the Company and the Executive entered into as of October 1, 2002,
which is being amended and restated as of the date hereof (the “Company Employment Agreement”);
WHEREAS, the Association desires to amend and restate the Association Employment Agreement in
order to make changes to comply with Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), as well as certain other changes;
WHEREAS, the Association desires to assure itself of the continued availability of the
Executive’s services as provided in this Agreement; and
WHEREAS, the Executive is willing to serve the Association on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual promises herein contained,
the parties agree as follows:
1. Employment. The Executive is hereby employed as the Chairman of the Board and
Chief Executive Officer of the Association, and shall be accountable to the Board of Directors of
the Association, and, subject to the authority and direction of the Board of Directors, shall have
the duties and responsibilities customary to the office, including those specifically set out
below. As Chairman of the Board and Chief Executive Officer, the Executive shall render management
services to the Association and its subsidiaries of the type customarily performed by persons
situated in a similar management position. These services shall include, but not be limited to:
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(a) conducting day-to-day management of the Association;
(b) hiring, making job assignments, compensating and discharging of the Association’s
employees;
(c) recommending to the Association’s Board of Directors policies for pricing deposits of the
Association and then implementing such pricing policies as the Association’s Board of Directors
approves;
(d) recommending loan policies to the Association’s Board of Directors concerning compliance
with all of the normal and necessary operating needs of an insured savings and loan association;
(e) providing advice to the Association’s Board of Directors concerning compliance with all
of the normal and necessary operating needs of an insured savings and loan association;
(f) performing such other duties and making such other recommendations to the Association’s
Board of Directors as the Association’s Board of Directors may request; provided, that such duties
are consistent with his present duties and with the Executive’s position as a senior executive
officer in charge of the general management of the Association.
The Executive will be elected as a member of the Board of Directors. If at any time during
the term of employment the Executive shall fail to be reelected to the Board or the Board shall
fail to reelect the Executive to the office of Chief Executive Officer or shall remove him from
such office, the Executive shall have “Good Reason” (as further defined in Section 6(d) hereof) to
terminate his services hereunder and the Executive shall have no further obligation under this
Agreement. The Executive hereby accepts the employment described herein and agrees to perform
such duties as are commensurate with the position and to abide by the terms and conditions of this
Agreement.
2. Compensation.
(a) Base Salary. The Executive shall receive an annual base salary (“Base Salary”)
at the rate of $550,000 per annum as of the Commencement Date (as defined in Section 4 hereof),
which Base Salary shall be reviewed and adjusted by the Board of Directors at least annually. The
Board of Directors shall consider the recommendations of Mercer or some other mutually acceptable
consulting firm concerning changes in the salary grade structure, which recommendations will be
based on compensation data developed from its financial industry peer group data base (“Data
Base”) then in effect and other relevant sources of statistical information pertaining to
compensation practices for positions comparable to the Executive’s. The Association agrees to
continue to employ Mercer or some other mutually acceptable consulting firm which can provide
comparable compensation data for the entire term of this Agreement, including any extension
thereof.
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Any increase in Base Salary or other compensation shall in no way limit or reduce any other
obligation of the Association hereunder and, once established at an increased specified rate, the
Executive’s Base Salary hereunder shall not thereafter be reduced. The Executive’s salary shall be
payable not less frequently than monthly and not later than the tenth day following the expiration
of the month in question.
(b) Discretionary Bonuses. The Executive shall be entitled to participate in an
equitable manner with all other executive officers of the Association in discretionary bonuses as
authorized and declared by the Board of Directors of the Association to its executive employees.
No other compensation provided for in this Agreement shall be deemed a substitute for the
Executive’s right to participate in such bonuses when and as declared by the Board of Directors.
(c) Expenses. During the term of employment hereunder, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred (in accordance with
policies and procedures at least as favorable to the Executive as those presently applicable to
the senior executive officers of the Association) in performing services hereunder, provided that
the Executive properly accounts therefor in accordance with Association policy.
(d) Supplemental Benefit. In addition, the Executive shall receive certain deferred
compensation and insurance benefits pursuant to the terms of a Supplemental Retirement Plan and
Split Dollar Agreement, as such plan or agreement are amended from time to time.
3. Benefits.
(a) Participation in Retirement and Executive Benefit Plans. The Executive shall be
entitled while employed hereunder to participate in, and receive benefits under, all plans
relating to stock options, stock purchases, pension, thrift, profit-sharing, group life insurance,
medical coverage, education, cash or stock bonuses, and other retirement or employee benefits or
combinations thereof, that are now or hereafter maintained for the benefit of the Association’s
executive employees or for its employees generally.
(b) Fringe Benefits. The Executive shall be eligible while employed hereunder to
participate in, and receive benefits under, any other fringe benefits which are or may become
applicable to the Association’s executive employees or to its employees generally. Nothing paid to
the Executive under any plan or arrangement presently in effect or made available in the future
shall be deemed to be in lieu of the Base Salary or other compensation to the Executive hereunder.
4. Term. The term of employment under this Agreement shall be for an initial period
of three years commencing on January 1, 2006 (the “Commencement Date”). Beginning on the first
anniversary of the Commencement Date, and on each anniversary thereafter, the term of employment
under this Agreement shall be extended for a period of
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one year in addition to the then-remaining term of employment under this Agreement, it being
the intent of the parties hereto that the Executive be assured of a continuous three (3) year term
of employment, unless either the Board of Directors or the Executive gives contrary written notice
to the other not less than 90 days in advance of the date on which the term of employment under
this Agreement would otherwise be extended. The Board of Directors of the Association shall, at
the regularly scheduled Board of Directors meeting immediately prior to the beginning of the
90-day notice period referred to above, explicitly review this Agreement and the Executive’s
performance hereunder and take specific action with respect to the extension of this Agreement
pursuant to the terms hereof. Reference herein to the term of employment under this Agreement
shall refer to both such initial term and such extended terms.
5. Vacations. The Executive shall be entitled, without loss of pay, to absent
himself voluntarily from the performance of his employment under this Agreement, all such
voluntary absences to count as vacation time, as follows:
(a) The Executive shall be entitled to an annual vacation in accordance with the most
favorable plans, policies, programs or practices of the Association and its affiliated companies
as in effect generally at any time with respect to other senior executives of the Association but
in no event less than three weeks per year, one week of which may be carried over one (1) year.
(b) The timing of vacations shall be scheduled in a reasonable manner by the Executive. The
Executive shall not be entitled to receive any additional compensation on account of any failure
to take a vacation; nor shall more than one (1) week of unused vacation time be allowed to
accumulate for more than one calendar year.
6. Termination.
(a) Death. The Executive’s employment hereunder shall terminate upon his death.
(b) Action by Board of Directors. The Association’s Board of Directors may terminate
the Executive’s employment at any time, but any termination by the Board of Directors, other than
termination for Cause, shall not prejudice the Executive’s right to compensation or other benefits
under this Agreement. The Executive shall have no right to receive compensation or other benefits,
excepting only Vested Benefits described in Section 9(a) hereof, for any period after termination
for Cause. For the purposes of this Agreement, “Cause” shall mean (i) the willful failure by the
Executive to perform his duties hereunder, other than any such failure resulting from the
Executive’s incapacity due to physical or mental impairment; (ii) the commission by the Executive
of an act involving moral turpitude in the course of his employment with the Association; (iii)
any act of personal dishonesty by the Executive; (iv) incompetence; (v) willful misconduct; (vi)
breach of fiduciary duty involving personal profit; (vii) willful violation of any law, rule, or
regulation (other than traffic violations or similar offenses) or final cease-and-desist order, or
(viii) any material breach of the provisions of this contract. For purposes of this paragraph, no
act, or failure to
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act, on the Executive’s part shall be considered “willful” unless the Association’s Board of
Directors shall determine in good faith, based upon all available facts, that such was done, or
omitted to be done, by the Executive not in good faith and without reasonable belief that his
action or omission was in the best interest of the Association.
(c) Termination by Regulatory Action.
(i) If the Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the Association’s affairs by a notice served under Section 8(e)(3)
or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C. §1818(e)(3) and (g)(1)) (the “FDIA”),
the Association’s obligations under this Agreement shall be suspended as of the date of service,
unless stayed by appropriate proceedings. If the charges in the notice are dismissed, the
Association may in its discretion (A) pay the Executive all or part of the compensation withheld
while its obligations under this Agreement were suspended and (B) reinstate in whole or in part
any of its obligations which were suspended.
(ii) If the Executive is removed from office and/or permanently prohibited from participating
in the conduct of the Association’s affairs by an order issued under Section 8(e)(4) or (g)(1) of
the FDIA (12 U.S.C. §1818(e)(4) or (g)(1)), all obligations of the Association under this
Agreement shall terminate as of the effective date of the order, but vested rights of the parties
hereto shall not be affected.
(iii) If the Association becomes in default (as defined in Section 3(x)(1) of the FDIA, 12
U.S.C. §1813(x)(i)), all obligations under this Agreement shall terminate as of the date of
default, but this provision shall not affect any vested rights of the parties hereto.
(iv) All obligations under this Agreement shall be terminated, except to the extent
determined that continuation of this Agreement is necessary for the continued operation of the
Association: (i) by the Director of the Office of Thrift Supervision (the “Director”) or his or
her designee, at the time the Federal Deposit Insurance Corporation or Resolution Trust
Corporation enters into an agreement to provide assistance to or on behalf of the Association
under the authority contained in 13(c) of the Federal Deposit Insurance Act; or (ii) by the
Director or his or her designee, at the time the Director or his or her designee approves a
supervisory merger to resolve problems related to operation of the Association or when the
Association is determined by the Director to be in an unsafe or unsound condition. Any rights of
the parties that have already vested, however, shall not be affected by any such action.
(d) Termination by the Executive. The Executive may terminate his employment
hereunder (i) for Good Reason, or (ii) if his health should become impaired to an extent that
makes the continued performance of his duties hereunder hazardous to his physical or mental health
or his life, but any vested rights of the parties hereto shall not be affected by such action. For
purposes of this Agreement, “Good Reason” shall mean (A) a change in control of the Association
(as defined below) having occurred not more than 12 months prior to delivery of notice of
termination, (B) any assignment to the Executive of any
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duties significantly different than those contemplated by Section 1 hereof, (C) any limitation of
the powers of the Executive in any respect not contemplated by Section 1 hereof, (D) any removal
of the Executive from or any failure to reelect the Executive to any of the positions indicated in
Section 1 hereof, except in connection with termination of the Executive’s employment for Cause,
(E) a reduction in the Executive’s Base Salary, or a material reduction in the Executive’s fringe
benefits (including termination by the Association of the Split Dollar Agreement) or any other
material failure by the Association to comply with Section 2 hereof.
(e) Notice. Any termination by the Association pursuant to Subsections (b) or (c)
above or by the Executive pursuant to Subsection (d) above shall be communicated by written Notice
of Termination to the other party hereto. For purposes of this Agreement, a “Notice of
Termination” shall mean a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive’s employment under the provision so indicated.
(f) Date of Termination. “Date of Termination” shall mean (i) if the Executive’s
employment is terminated by his death, the date of his death, or (ii) if the Executive’s
employment is terminated for any other reason, the date specified in the Notice of Termination.
7. Disability.
(a) If, as a result of the Executive’s Disability as defined below, the Executive shall have
been absent from his duties hereunder on a full-time basis for six consecutive months, and within
30 days after the Association notifies the Executive in writing that it intends to replace him,
the Executive shall not have returned to the performance of his duties hereunder on a full-time
basis, the Association may replace the Executive without breaching this Agreement. Such disability
will not act to terminate the Executive’s employment under this Agreement. For purposes of this
Agreement, “Disability” shall be deemed to have occurred if the Executive: (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 Company
and its subsidiaries. Any Disability of the Executive shall be certified to the Association and
the Executive by a physician selected by the Chief Medical Officer at the University of Nebraska
Medical Center at Omaha, Nebraska. For purposes of this Agreement, the Executive shall be deemed
to have been absent from his duties hereunder on a full-time basis for six consecutive months if
he has not, within any six-month period, attended to his duties on a full-time basis for 15
consecutive business days within such six-month period. Prior to replacement of the Executive
pursuant to this section, and during any period of physical disability or mental impairment, the
Association may, without breaching
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this Agreement, appoint another person or persons to act as interim Chairman of the Board and
interim Chief Executive Officer pending the Executive’s return to his duties on a full-time basis
hereunder or his termination as a result of such disability.
(b) If disabled within the meaning of this Section 7, the Association shall maintain in full
force and effect, for the continued benefit of the Executive for the full term of this Agreement,
including any extension thereof, all employee benefit plans and programs in which the Executive
was entitled to participate immediately prior to the replacement date, provided that the
Executive’s continued participation is possible under the general terms and provisions of such
plans and programs. In the event the Executive’s participation in any such plan or program is
barred as a result of such disability, the Executive shall be entitled to receive an amount equal
to the annual contributions, payments, credits or allocations which would have been made by the
Association to his account or on his behalf under such plans and programs from which his continued
participation is barred.
(c) During any period that the Executive fails to perform his duties hereunder as a result of
incapacity due to Disability, the Executive shall continue to receive his full Base Salary and
Bonuses until the Executive is replaced in accordance with Section 7(a) hereof, or until the
Executive terminates his employment pursuant to Section 6(d)(ii) hereof, whichever first occurs.
After the Executive is replaced, he shall be paid such Disability payments as are provided in the
Supplemental Retirement Plan Agreement.
8. Beneficiary. If the Executive dies before receiving all the payments to which he
is entitled, the remainder thereof shall be paid to such person (“Beneficiary”) as may be
designated by an instrument in writing, and in a form acceptable to the Board, executed by the
Executive and delivered to the Board in care of the Secretary of the Association during the
Executive’s lifetime, which designation may be changed from time to time by similar action. If no
such designation is delivered to the Board, or if no such designated Beneficiary is then living,
then the remaining distributions shall be paid to the surviving spouse of the Executive, or in the
event there is no such surviving spouse, to the estate of the Executive.
9. Termination Benefits.
(a) General. If the Executive’s employment is terminated by the Association or by
the Executive for any reason, the Executive shall be entitled to all Vested Benefits. For purposes
of this Agreement, the Executive’s “Vested Benefits” shall include the following amounts, payable
as described herein: (i) all Base Salary for the time period ending on the Termination Date; (ii)
reimbursement for any and all monies advanced in connection with the Executive’s employment for
reasonable and necessary expenses incurred by the Executive on behalf of the Association for the
time period ending on the Termination Date; (iii) any and all other cash earned through the
Termination Date and deferred at the election of the Executive or pursuant to any deferred
compensation plan then in effect; (iv) a lump sum payment of the ratable bonus or ratable
incentive compensation otherwise payable to the Executive with respect to the year in which
termination occurs to the extent provided by all bonus or incentive compensation plans in which
the Executive is a participant; and (v) all
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other payments and benefits to which the Executive (or in the event of the Executive’s death,
the Executive’s surviving spouse or other beneficiary) may be entitled as compensatory fringe
benefits or under the terms of any benefit plan of the Association, including but not limited to
his Supplemental Retirement Plan Agreement with the Bank dated October 27, 1993, as amended
(“SERP”) and his Split Dollar Plan Agreement with the Bank dated January 2, 1994, as amended
(“Split Dollar Agreement”), which was in effect on the Termination Date (in the event that any
compensatory fringe benefits or other benefits were reduced or eliminated by the Association
during the 180-day period prior to the Termination Date, the Executive will also be entitled to
payment of benefits under such plans as they existed prior to termination or reduction to the
extent such plans are reinstated in whole or in part during the period ending 180 days after the
Termination Date). Payment of Accrued Benefits shall be made promptly in accordance with the
Association’s prevailing practice with respect to Subsections (i) and (ii) or, with respect to
Subsections (iii), (iv) and (v), pursuant to the terms of the benefit plan or practice
establishing such benefits.
(b) Termination by the Association. If the Executive’s employment is terminated by
the Association (other than for Cause pursuant to Section 6(b) or by regulatory action pursuant to
Section 6(c)), the Executive shall be entitled to the benefits provided below:
(i) The Association shall pay to the Executive in a lump sum in cash within 25 business days
after the Date of Termination (as hereinbefore defined) of employment an amount equal to the
Executive’s “base amount” of compensation, as defined in Section 280G(b)(3) of the Code, times the
number of years or fractional portion thereof remaining in the term of this Agreement as of the
Termination Date; plus
(ii) The Association shall cause any split dollar life insurance policy on the life of the
Executive to be funded to point of “N pay” (as defined in the Supplemental Retirement Plan
Agreement) and cause the ownership of the policy to be transferred if the policy is purchased in
accordance with the terms of Xx. Xxxxxxxxx’x Split Dollar Agreement, as amended.
(c) Termination by the Executive. If the Executive shall terminate his employment
for Good Reason or otherwise pursuant to Section 6(d) hereof, the Executive shall be entitled to
receive the compensation described in Section 9(b) on the same basis as is set forth in Section
9(b).
(d) Definitions. For purposes of Sections 9 and 14 of this Agreement, “Date of
Termination” means the earlier of (i) the date upon which the Association gives notice to the
Executive of the termination of his employment with the Association or (ii) the date upon which
the Executive ceases to serve as an Executive of the Association, and “Change in Control of the
Association” is defined as a change in the ownership of the Association or the Company, a change
in the effective control of the Association or the Company or a change in the ownership of a
substantial portion of the assets of the Association or the Company as provided under Section 409A
of the Code and the regulations thereunder.
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(e) Limitation.
(i) Any payments made to the Executive pursuant to this Agreement, or otherwise, are subject
to and conditioned upon their compliance with 12 U.S.C. §1828(k) and the regulations promulgated
thereunder in 12 C.F.R. Part 359.
(ii) Notwithstanding any other provision of this Agreement, if any portion of the termination
benefits or any other payment under this Agreement, or under any other agreement with or plan of
the Association (in the aggregate “Total Payments”), would constitute an “excess parachute
payment,” then the Total Payments to be made to the Executive shall be reduced such that the value
of the aggregate Total Payments that the Executive is entitled to receive shall be One Dollar ($1)
less than the maximum amount which the Executive may receive without becoming subject to the tax
imposed by Section 4999 of the Code (or any successor provision) or which the Association may pay
without loss of deduction under Section 280G(a) of the Code (or any successor provision). For
purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall
have the meanings assigned to them in Section 280G of the Code (or any successor provision), and
such “parachute payments” shall be valued as provided therein. Present value for purposes of this
Agreement shall be calculated in accordance with Sections 280G and 1274(d) of the Code (or any
successor provision). Within sixty days following delivery of the Notice of Termination or notice
by the Association to the Executive of its belief that there is a payment or benefit due the
Executive which will result in an excess parachute payment as defined in Section 280G of the Code
(or any successor provision), the Executive and the Association, at the Association’s expense,
shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel
selected by the Association and acceptable to the Executive in his sole discretion, which sets
forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments
and (C) the amount and present value of any excess parachute payments without regard to the
limitations of this Subsection 9(e). As used in this Subsection 9(e), the term “Base Period
Income” means an amount equal to the Executive’s “annualized includible compensation for the base
period” as defined in Section 280G(d)(1) of the Code (or any successor provision). For purposes of
such opinion, the value of any noncash benefits or any deferred payment or benefit shall be
determined in accordance with the principles of Sections 280G(d)(3) and (4) of the Code (or any
successor provisions), which determination shall be provided to the Association and the Executive.
Such opinion shall be dated as of the Termination Date and addressed to the Association and the
Executive and shall be binding upon the Association and the Executive. If such opinion determines
that there would be an excess parachute payment, then the lump sum cash payment pursuant to
Section 9(b)(i) hereof shall be first reduced or eliminated, with any additional required
reductions in the Total Payments to be determined by the Association, so that under the bases of
calculations set forth in such opinion there will be no excess parachute payment. The provisions
of this Subsection 9(e), including the calculations, notices and opinions provided for herein,
shall be based upon the conclusive presumption that the following are reasonable: (1) the
compensation and benefits provided for in Sections 2 and 3 hereof and (2) any other compensation,
including but not limited to the Accrued Benefits, earned prior to the Termination Date by the
Executive pursuant to the Association’s
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compensation programs if such payments would have been made in the future in any event, even
though the timing of such payment is triggered by the Change in Control of the Association or the
Termination Date.
10. No Duplication of Payments. Notwithstanding any provision herein to the
contrary, to the extent that payments and benefits, as provided by this Agreement, are paid to or
received by the Executive under the Company Employment Agreement, such compensation payments and
benefits paid by the Company will be subtracted from any amount due simultaneously to the
Executive under similar provisions of this Agreement. Payments pursuant to this Agreement and the
Company Employment Agreement (other than severance and change in control payments and benefits
pursuant to Section 9 hereof) shall be allocated in proportion to the level of activity and the
time expended on such activities by the Executive as determined by the Company and the Bank on a
quarterly basis.
11. Other Activities. The Executive shall be entitled, with or without remuneration:
(i) to serve on the Board of Directors of other profit and non-profit corporations; and (ii) to
continue to perform duties as a Trustee or Personal Representative, or any other fiduciary
capacity, so long as all of such duties do not unreasonably detract from the performance of duties
under this Agreement.
12. Indemnification. In accordance with the provisions of 12 C.F.R. 545.121, the
Association shall save harmless and indemnify the Executive, against any financial losses, claims,
damages or liabilities arising out of any alleged negligence or other act of the Executive during
the term of this Agreement, provided that at the time of such loss, claim, damage or liability was
sustained, the Executive was acting in the discharge of duties hereunder and within the scope of
his employment and such loss, claim, damage or liability did not result from the willful and
wrongful act or gross negligence of the Executive.
13. Mitigation. The Executive shall not be required to mitigate the amount of any
severance benefits provided for in Sections 9(a), or described in Sections 9(b)(i) or 9(b)(ii), of
this Agreement by seeking other employment or otherwise, nor shall the amount of any payment or
benefit provided for in Section 9(a) of this Agreement be reduced by any compensation earned by
the Executive as a result of employment by another employer or by retirement benefits after the
date of termination or otherwise.
14. No Assignments.
(a) This Agreement is personal to each of the parties hereto, and neither party may assign or
delegate any of its rights or obligations hereunder without first obtaining the written consent of
the other party; provided, however, that the Association will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Association, by an assumption agreement in
form and substance satisfactory to the Executive, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Association would be required to
perform it if no such succession or assignment had taken place. Failure of the Association to
obtain such an assumption
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agreement prior to the effectiveness of any such succession or assignment shall be a breach
of this Agreement and shall entitle the Executive to compensation from the Association in the same
amount and on the same terms as the compensation pursuant to Section 9(a) hereof. For purposes of
implementing the provisions of this Section 14(a), the date on which any such succession becomes
effective shall be deemed the Date of Termination.
(b) This Agreement and all rights of the Executive hereunder shall inure to the benefit of
and be enforceable by the Executive’s personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amounts would still be payable to the Executive hereunder if the Executive had
continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the Executive’s Beneficiary.
15. Notice. For the purposes of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or sent by certified mail, return receipt requested, postage prepaid,
addressed to the address of the Association’s executive offices or to the Executive’s last address
appearing on the Association’s personnel records, as the case may be (provided that all notices to
the Association shall be directed to the attention of the Board of Directors of the Association
with a copy to the Secretary of the Association), or to such other address as either party may
have furnished to the other in writing in accordance herewith.
16. Amendments, No amendments or additions to this Agreement shall be binding unless
in writing and signed by both parties hereto; provided, however, that if the Association
determines, after a review of the final regulations issued under Section 409A of the Code and all
applicable IRS guidance, that this Agreement should be further amended to avoid triggering the tax
and interest penalties imposed by Section 409A of the Code, the Association may amend this
Agreement to the extent necessary to avoid triggering the tax and interest penalties imposed by
Section 409A of the Code.
17. Section Headings. The section headings used in this Agreement are included
solely for convenience and shall not affect, or be used in connection with, the interpretation of
this Agreement.
18. Severability. The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or enforceability of
the other provisions hereof.
19. Governing Law. This Agreement shall be governed by the laws of the United States
to the extent applicable and otherwise by the laws of the State of Nebraska.
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20. Dispute Resolution.
(a) In the event of any dispute, claim, question or disagreement arising out of or relating
to this Agreement or the breach hereof, the parties hereto shall use their best efforts to settle
such dispute, claim, question or disagreement. To this effect, they shall consult and negotiate
with each other, in good faith, and, recognizing their mutual interests, attempt to reach a just
and equitable solution satisfactory to both parties.
(b) If they do not reach such a solution within a period of thirty (30) days, then the
parties agree first to endeavor in good faith to amicably settle their dispute by mediation under
the Commercial Mediation Rules of the American Arbitration Association (the “AAA”), before
resorting to arbitration.
(c) Thereafter, any unresolved controversy or claim arising out of or relating to this
Agreement or the breach thereof, upon notice by any party to the other, shall be submitted to and
finally settled by arbitration in accordance with the Commercial Arbitration Rules (the “Rules”)
of the AAA in effect at the time demand for arbitration is made by any such party. The parties
shall mutually agree upon a single arbitrator within thirty (30) days of such demand. In the event
that the parties are unable to so agree within such thirty (30) day period, then within the
following thirty (30) day period, one arbitrator shall be named by each party. A third arbitrator
shall be named by the two arbitrators so chosen within ten (10) days after the appointment of the
first two arbitrators. In the event that the third arbitrator is not agreed upon, he or she shall
be named by the AAA. Arbitration shall occur in Lincoln, Nebraska.
(d) The award made by all or a majority of the panel of arbitrators shall be final and
binding, and judgment may be entered based upon such award in any court of law having competent
jurisdiction. The award is subject to confirmation, modification, correction or vacation only as
explicitly provided in Title 9 of the United States Code. The prevailing party shall be entitled
to receive an award of pre- and post-award interest as well as attorney’s fees incurred in
connection with the arbitration and any judicial proceedings relate thereto. The parties
acknowledge that this Agreement evidences a transaction involving interstate commerce. The United
States Arbitration Act and the Rules shall govern the interpretation, enforcement, and proceedings
pursuant to this Section. Any provisional remedy which would be available from a court of law
shall be available from the arbitrators to the parties to this Agreement pending arbitration.
Either party may make an application to the arbitrators seeking injunctive relief to maintain the
status quo, or may seek from a court of competent jurisdiction any interim or provisional relief
that may be necessary to protect the rights and property of that party, until such times as the
arbitration award is rendered or the controversy otherwise resolved.
21. Trade Secrets. The Executive agrees not to disclose to any person or entity,
other than an employee of the Association or a person to whom disclosure is reasonably necessary
or appropriate, any confidential information of a material nature obtained while in the employ of
the Association regarding the business of the Association, including its customers, products,
prices, manner of operation, without first obtaining the
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Association’s written consent. In the event the Executive breaches this Section, the
Association shall be entitled, among other remedies, to injunctive relief prohibiting the
Executive from disclosing such information. This Section shall survive termination of this
Agreement.
22. Other Agreements. The parties hereto acknowledge that the terms and provisions
of this Agreement shall not impact any of the rights and obligations of the parties pursuant to
the Company Employment Agreement or the Executive’s Supplemental Retirement Plan Agreement and
Split Dollar Agreement with the Bank, each as amended from time to time.
IN WITNESS WHEREOF, the Association has caused this amended and restated Agreement to be
signed and its corporate seal affixed hereto, and the Executive has executed this Agreement, in
duplicate, as of the date first above written.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE
PARTIES.
ATTEST:
|
TIERONE BANK | |||
/s/ Xxxxxx X. Xxxxxxxx |
/s/ Xxxxx X. Xxxxxx | |||
Secretary
|
President and Chief Operating Officer | |||
| /s/ /Xxxxxxx X. Xxxxxxxxx | ||||
| Xxxxxxx X. Xxxxxxxxx, Executive |
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