AMENDED AND RESTATED
Exhibit
10.5
AMENDED
AND RESTATED
THIS AMENDED AND RESTATED 1993
SUPPLEMENTAL RETIREMENT PLAN AGREEMENT (“Agreement”) was originally made and
entered into as of October 27, 1993 and previously amended and restated as
of July 27, 2006 (the “Prior Agreement”) and is hereby amended and restated as
of December 17, 2008, by and between TierOne Bank, a federally chartered savings
bank with its principal office in Lincoln, Nebraska (the “Bank”), and Xxxxxxx X.
Xxxxxxxxx, (the “Executive”).
The
Agreement is intended to be an unfunded plan qualifying as a “top hat” plan for
purposes of Title I of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”), and for purposes of the Internal Revenue Code of 1986, as
amended (the “Code”). The Agreement is being amended and restated in
order to comply with the requirements of Section 409A of the Code and the final
regulations issued by the IRS in April 2007. No benefits payable
under this Agreement shall be deemed to be grandfathered for purposes of Section
409A of the Code.
RECITALS
A. The
Executive is currently employed by the Bank pursuant to the terms of a separate
amended and restated Employment Agreement executed as of December 17, 2008 (the
“Employment Agreement”).
B. The
Bank recognizes the value of the services to be performed by the Executive and
wishes to encourage his continued employment.
C. The
Executive wishes to be assured that he will be entitled to a certain minimum
amount of additional compensation (a) if he becomes Disabled (as defined in the
Employment Agreement) while in the employ of the Bank; (b) for some definite
period of time from and after his Retirement (as defined below) from active
service with the Bank; or (c) that his family will be entitled to such
compensation from and after his death either while in the employ of the Bank or
after his Retirement.
D. The
parties hereto wish to provide the terms and conditions upon which the Bank
shall pay such additional compensation to the Executive after his Disability or
Retirement or to his designated beneficiary in event of his death.
E. The
Bank desires to amend and restate the Prior Agreement in order to make changes
to comply with Section 409A of the Code, as well as certain other
changes;
NOW,
THEREFORE, in consideration of the premises and of the mutual promises herein
contained, the parties agree as follows:
1. Separation from
Service. In consideration of the Executive's remaining in the
employ of the Bank until his retirement after age sixty-five (65), the Bank
agrees that, from and after the Executive’s Separation from Service, the Bank
shall thereafter pay to the Executive an
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annual
Supplemental Benefit (as defined herein) for a period of fifteen (15) years from
and after his Separation from Service, with the annual benefit payable in twelve
(12) equal monthly installments. The first monthly installment shall
be paid on the first day of the month following the lapse of six months after
the date of his Separation from Service (or, if earlier, upon the death of the
Executive), and shall be followed by 179 monthly payments. For
purposes of this Agreement, the term “Separation from Service” shall mean a
voluntary termination of the Executive’s services (whether as an employee or as
an independent contractor) to the Bank or TierOne Corporation (the
“Corporation”) (including companies which are deemed to be part of a controlled
group of corporations with the Bank and the Corporation for purposes of Treasury
Regulation §1.409A-1(h)) after age 65 for any reason other than
death. 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 Bank, the Corporation and
the Executive reasonably anticipated that no further services would be performed
after a certain date or that the level of bona fide services the Executive 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.
2. Supplemental Benefit.
For purposes of this Agreement, “Supplemental Benefit” means an amount
calculated as follows: (A) the average annual compensation (excluding bonuses
and incentive compensation) received by the Executive from the Bank during the
three years of employment affording the highest such average; as reduced by (B)
the annual amount paid under the Bank’s qualified defined benefit pension plan
or any disability insurance benefits purchased by the Bank; and (C) multiplying
such amount by 50% to determine the benefit payable hereunder as a Supplemental
Benefit.
3. Death After Separation from
Service. The Bank further agrees that, in the event of the
Executive’s death after his Separation from Service but prior to completing
fifteen (15) years of monthly payments, the Bank will continue to make
Supplemental Benefit payments during the remainder of said fifteen (15) year
period to the Executive’s Beneficiary (as defined in the Employment
Agreement).
4. Death Prior to Separation
from Service. The Bank agrees that, in the event of the
Executive’s death prior to his Separation from Service, the Bank will make
Supplemental Benefit payments for a fifteen (15) year period to the Executive’s
Beneficiary (as defined in the Employment Agreement), with the monthly benefits
determined as set forth in Sections 1 and 2 above and commencing as of the first
day of the month following his death.
5. Noncompetition. In
consideration of the foregoing agreements of the Bank and of the payments to be
made by the Bank pursuant hereto, the Executive hereby agrees that, so long as
he remains in the active employ of the Bank, he will devote substantially all of
his time, skill, diligence and attention to the business of the Bank, and will
not actively engage, either directly or indirectly, in any business or other
activity which is or may be deemed to be in any way competitive with or adverse
to the best interests of the business of the Bank.
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6. Termination. In
the event that the employment of the Executive is terminated for any reason
other than Cause (as defined in the Employment Agreement), the Bank agrees to
fund a separate split dollar policy pursuant to the Executive’s Split Dollar
Agreement with the Bank dated January 2, 1994, as amended (the “Split Dollar
Agreement”) to the point of “N-Pay” and cause ownership of such policy to be
transferred if the policy is purchased in accordance with the terms of the Split
Dollar Agreement. This payment is to be made in one lump sum on the
first day of the month following the lapse of six months after the date the
Executive’s employment terminates. For purposes hereof, “N-Pay” means
that the cash value of dividend additions within the policy, together with
projected further dividends, are estimated to be sufficient to pay all remaining
additional premiums required by the terms of the policy; provided, however, that
if the future dividends actually paid are less than the assumed dividends, the
Bank will not be required to pay any deficiency.
7. Other Benefits and
Programs. It is expressly understood by the parties hereto
that this Agreement relates exclusively to additional compensation for the
Executive’s services and any benefits payable under this Agreement shall be
independent of, and in addition to, any other benefits or compensation payable
under the Employment Agreement of even date herewith or as may hereinafter be
amended from time to time. This Agreement does not involve a
reduction in salary or foregoing of an increase in future salary by the
Executive, nor does the Agreement in any way affect or reduce the proposed or
future compensation of the Executive.
8. Benefits Not
Funded. This Agreement represents a contractual promise to pay
by the Bank, assuming satisfaction by the Executive of the requirements herein,
and that said promise to pay is not represented by notes or secured or funded in
any way. If the Bank, solely at its own discretion, shall acquire a
life insurance or annuity contract or any other asset in connection with the
liabilities assumed by it hereunder, it is expressly agreed that neither the
Executive nor any Beneficiary hereunder shall have any right with respect to, or
claim against, such contract or other asset. Such contract or other
asset shall not be held in any way as collateral security for the fulfilling of
the obligations of the Bank under this Agreement. Such contract or
other asset shall be and remain a general, unpledged and unrestricted asset of
the Bank. The Executive may unilaterally change the person or persons
who are to receive payments hereunder following his death, including provisions
for payment to a trust or trusts, notwithstanding any other provision hereof, by
written instrument executed by him and delivered to the Bank during the
Executive’s lifetime.
9. Nonalienation of
Benefits. Neither the Executive, his designated Beneficiary
nor any other beneficiary under this Agreement shall have any power or right to
transfer, assign, anticipate, hypothecate or otherwise encumber any part or all
of the amounts payable by the Bank hereunder, nor shall such amounts be subject
to seizure by any creditor of any such beneficiary, by a proceeding at law or in
equity, and no such benefit shall be transferable by operation of law in the
event of bankruptcy, insolvency or death of the Executive, his spouse, his
designated beneficiary or any other beneficiary hereunder. Any such
attempted assignment or transfer shall be void and shall terminate this
Agreement, and the Bank shall thereupon have no further liability
hereunder.
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10. Binding
Effect. This Agreement, and any amendment hereto, shall be
binding upon and inure to the benefit of the Bank, its successors and assigns,
and the Executive, and his beneficiaries, heirs, executors, administrators and
legal representatives.
11. Amendment and Termination of
the Agreement. This Agreement may not be amended,
altered or modified, except by a written instrument signed by the parties
hereto, or their respective successors or assigns, and may not otherwise be
amended or terminated except as provided in Section
12. Notwithstanding anything in this Agreement to the contrary, the
Board of Directors of the Bank may amend in good faith any terms of this
Agreement, including retroactively, in order to comply with Section 409A of the
Code.
12. Effect of Amendment or
Termination.
(a) General.
No amendment or termination of the Agreement shall directly or indirectly reduce
the Executive’s benefit held hereunder as of the effective date of such
amendment or termination. A termination of the Agreement will not be
a distributable event, except in the three circumstances set forth in Section
12(b) below.
(b) Termination. Under
no circumstances may the Agreement permit the acceleration of the time or form
of any payment under the Agreement prior to the payment events specified herein,
except as provided in this Section 12(b). The Bank may, in its
discretion, elect to terminate the Agreement in any of the following three
circumstances and accelerate the payment of the entire unpaid balance of the
Participant’s vested benefits as of the date of such payment in accordance with
Section 409A of the Code, provided that in each case the action taken complies
with the applicable requirements set forth in Treasury Regulation
§1.409A-3(j)(4)(ix):
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(i)
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the
Agreement is irrevocably terminated
within the 30 days preceding a Change in Control (as defined in the
Employment Agreement) and (1) all arrangements sponsored by the Bank
and/or the Corporation and any successors
immediately following the Change in Control that would be aggregated with
the Agreement under Treasury Regulation §1.409A-1(c)(2) are terminated
with respect to each participant that experienced the Change in Control
event, and (2) the Executive 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 Agreement and the other aggregated
arrangements is
taken,
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(ii)
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the
Agreement is irrevocably terminated at a time that is not prominate to a
downturn in the financial health of the Bank or the Corporation and
(1) all arrangements sponsored by the Bank and/or the Corporation
that would be aggregated with the Agreement under Treasury Regulation
§1.409A-1(c) if the Executive participated in such arrangements are
terminated, (2) no payments are made within 12 months of the date the Bank
or the Corporation take all necessary action to irrevocably
terminate
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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 the Corporation take all
necessary action to irrevocably terminate the arrangements, and (4)
neither the Bank nor the Corporation adopts a new arrangement that would
be aggregated with the Agreement under Treasury Regulation §1.409A-1(c) if
the Executive participated in both arrangements, at any time within three
years following the date the Bank takes all necessary action to
irrevocably terminate the Agreement,
or
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(iii)
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the
Agreement is terminated within 12 months of a corporate dissolution taxed
under Section 331 of the Code, or with the approval of a bankruptcy court
pursuant to 11 U.S.C. §503(b)(1)(A), provided that the amounts deferred by
the Executive under the Agreement are included in the Executive’s gross
income in the later of (1) the calendar year in which the termination of
the Agreement occurs, or (2) the first calendar year in which the payment
is administratively practicable.
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13. Scope of Claims
Procedures. This Section is
based on final regulations issued by the Department of Labor and published in
the Federal Register on November 21, 2000 and codified at 29 C.F.R. Section
2560.503-1. If any provision of this Section conflicts with the
requirements of those regulations, the requirements of those regulations will
prevail.
13.1 Initial
Claim. The Executive 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:
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(i)
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The
specific reasons for the
denial;
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(ii)
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A
reference to the provision of the Agreement upon which the denial is
based;
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(iii)
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A
description of any additional information or material that the Claimant
must provide in order to perfect the
claim;
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(iv)
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An
explanation of why such additional material or information is
necessary;
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(v)
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Notice
that the Claimant has a right to request a review of the claim denial and
information on the steps to be taken if the Claimant wishes to request a
review of the claim denial;
and
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(vi)
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A
statement of the Claimant’s right to bring a civil action under Section
502(a) of ERISA following a denial on review of the initial
denial.
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13.2 Review
Procedures.
(a)
Request For
Review. A request for review of a denied claim must be made in
writing to the Bank within sixty (60) days after receiving notice of
denial. The decision upon review will be made within sixty (60) days
after the Bank’s receipt of a request for review, unless special circumstances
require an extension of time for processing, in which case a decision will be
rendered not later than one hundred twenty (120) days after receipt of a request
for review. A notice of such an extension must be provided to the
Claimant within the initial sixty (60) day period and must explain the special
circumstances and provide an expected date of decision.
The reviewer shall afford the Claimant
an opportunity to review and receive, without charge, all relevant documents,
information and records and to submit issues and comments in writing to the
Bank. The reviewer shall take into account all comments, documents,
records and other information submitted by the Claimant relating to the claim
regardless of whether the information was submitted or considered in the initial
benefit determination.
(b)
Manner and Content of Notice
of Decision on Review. Upon completion of its review of an
adverse claim determination, the Bank will give the Claimant, in writing or by
electronic notification, a notice containing:
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(i)
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its
decision;
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(ii)
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the
specific reasons for the
decision;
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(iii)
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the
relevant provisions of the Agreement on which its decision is
based;
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(iv)
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a
statement that the Claimant is entitled to receive, upon request and
without charge, reasonable access to, and copies of, all documents,
records and other information in the Bank’s files which are relevant to
the Claimant’s claim for
benefits;
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(v)
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a
statement describing the Claimant’s right to bring an action for judicial
review under Section 502(a) of ERISA;
and
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(vi)
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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.
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13.3 Calculation of Time
Periods. For purposes of the time periods specified in this
Section, the period of time during which a benefit determination is required to
be made begins at 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.
13.4 Legal
Action. If the Bank fails to follow the claims procedures
required by this Section, a Claimant shall be deemed to have exhausted the
administrative remedies available under the Agreement and shall be entitled to
pursue any available remedy under Section 502(a) of ERISA on the basis that the
Agreement has failed to provide a reasonable claims procedure that would yield a
decision on the merits of the claim. A Claimant’s compliance with the
foregoing provisions of this Section is a mandatory requisite to a Claimant’s
right to commence any legal action with respect to any claims for benefits under
the Agreement.
13.5 Review by the
Bank. Notwithstanding anything in this Agreement to the
contrary, the Bank may determine, in its sole and absolute discretion, to review
any claim for benefits submitted by a Claimant under this
Agreement.
14. Notice. Any
notice, consent or demand required or permitted to be given under the provisions
of this Agreement shall be in writing, and shall be signed by the party giving
or making the same. If such notice, consent or demand is mailed to a
party hereto, it shall be sent by United States mail, postage prepaid, addressed
to such party’s last known address as shown on the records of the
Bank. The date of such mailing shall be deemed the date of notice,
consent or demand.
15. Applicable
Law. This Agreement, and the rights of the parties hereunder,
shall be governed by and construed in accordance with the laws of the State of
Nebraska.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement, in duplicate,
as of the 17th day of December 2008.
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ATTEST:
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TIERONE
BANK
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/s/ Xxxxxx X.
Xxxxxxxx
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By: /s/ Xxxxx. X. Xxxxxx
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Xxxxxx X.
Xxxxxxxx
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Name: Xxxxx
X. Xxxxxx
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Assistant
Secretary
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Title President & COO
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/s/ Xxxxxxx X.
Xxxxxxxxx
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Xxxxxxx X.
Xxxxxxxxx, Executive
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