AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
This Amended and Restated Executive Employment Agreement is
entered into this 20th day of March, 1995, between FirsTier
Financial, Inc., a Nebraska corporation (the "Company") and David
A. Rismiller, an individual of Omaha, Nebraska ("Rismiller").
This Agreement supercedes three separate letter agreements dated
April 5, April 18 and June 6, 1988; an Executive Employment
Agreement dated September 1, 1988 (herein the "Original Executive
Employment Agreement") and certain amendments to the Original
Executive Employment Agreement dated January 18, 1991, and
February 1, 1993.
1. POSITION AND TITLES.
The Company hereby employs Rismiller as the president and
chief operating officer of the Company and as president and
chief executive officer of FirsTier Bank, National
Association, Omaha. The Company may promote Rismiller to
other positions at the Company and its operating
subsidiaries. At all times while this Agreement is in
effect, Rismiller will maintain the positions and titles and
shall have such responsibility and authority as is
consistent with the dignities of those positions and titles.
2. DIRECTORSHIPS.
The Company agrees to cause Rismiller to be elected a
director of FirsTier Bank, National Association, Omaha, and
FirsTier Bank, National Association, Lincoln, and to
continue to propose Rismiller as a nominee for election to
the Board of Directors of the Company, for as long as
Rismiller is an employee of the Company.
3. REMUNERATION.
The Company agrees that for the fiscal year ending December
31, 1988, Rismiller will be paid a base salary at the annual
rate of not less than $200,000, plus a bonus of not less
than $50,000. After such fiscal year, Rismiller's salary
shall be subject to review and adjustment but shall never be
at an annual rate of less than $200,000 and shall be payable
in accordance with the Company's regular payroll periods.
Further, effective for the fiscal year ending December 31,
1989 and thereafter, Rismiller will have an opportunity for
an incentive bonus under the Company's Annual Performance
Incentive Plan. A copy of the Plan and related bonus
agreement is attached hereto as Exhibit 1.
4. HOUSING AND RELOCATION EXPENSES.
Rismiller agrees that the Company's obligations to Rismiller
under Paragraph 4 of the Original Executive Employment
Agreement have been satisfied in full.
5. OTHER BENEFITS.
Rismiller shall be entitled to receive all employment
benefits available to other employees of the Company.
Further, the Company will provide and pay for initiation
fees, dues, assessments and other club fees and charges at
the Omaha Country Club and will provide Rismiller a
Cadillac, Lincoln Continental or comparable automobile for
his use. The Company hereby confirms that the Compensation
Committee of the Board of Directors of the Company has
designated Rismiller as a participant in the Company's
Executive Death Benefit Plan and in the Supplemental
Retirement Plan. Further, the Company agrees that during
the term of this Agreement Rismiller will be covered by a
mutually satisfactory disability plan. Rismiller is hereby
granted the option to assume any such disability plan.
The Company and Rismiller agree that if Rismiller's
employment is terminated by the Company, for any reason, at
any time or within 180 days after a Change in Control
(defined below) of the Company, and if Rismiller is not 100%
vested in both the FirsTier Financial, Inc. Profit Sharing
Investment Plan and the FirsTier Financial, Inc. Retirement
Plan, Rismiller, upon termination, shall receive a payment
equal to the present value of the accrued benefits he
forfeits under such plans.
The Company and Rismiller further agree that if Rismiller's
employment is terminated by the Company at any time or
within 180 days after a Change in Control (defined below) of
the Company, or if Rismiller voluntarily resigns within such
180 day period (provided, however, that Rismiller's
voluntary resignation shall not be deemed to be a
termination with consent under this Agreement); Rismiller
may elect no later than the earlier of his termination of
employment or ten days before the effective date of such
Change in Control of the Company, to receive a payment equal
to the present value of his Supplemental Retirement benefit
under the FirsTier Financial, Inc. Omnibus Executive Benefit
Plan in the event of his termination of employment. Such
present value shall be calculated as of the date of
Rismiller's termination of employment and as if he elected
to commence his Supplemental Retirement benefit as of such
date. The payment pursuant to this paragraph shall be in
lieu of Rismiller's Supplemental Retirement benefit under
the FirsTier Financial, Inc. Omnibus Executive Benefit Plan.
Unless payment is made to Rismiller pursuant to this
paragraph, Rismiller shall, at his option, retain all
Supplemental Retirement rights and options available under
the FirsTier Financial, Inc. Omnibus Executive Plan.
The Company and Rismiller further agree that if Rismiller's
employment with the Company is terminated (other than with
Rismiller's written consent or as a result of his
malfeasance; provided, however, that Rismiller's voluntary
resignation shall not be deemed to be a termination with
consent under this Agreement), Rismiller and his spouse may
continue to participate in any group health plan(s)
maintained by the Company as he shall elect. The Company
and Rismiller will pay for Rismiller's and
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his spouse's participation in such health plan(s) as if he were
still employed. In the event that Rismiller's or his spouse's
coverage under a group health plan maintained by the Company
shall cause him to realize taxable income, the Company
agrees to annually pay Rismiller an amount equal to the tax
Rismiller incurs for any fiscal year with respect to such
taxable income. The amount paid shall be multiplied by the
Gross-Up Fraction (defined below). In the event that the
Company is prohibited from including Rismiller in its group
health plan(s), the Company shall pay Rismiller the amount
necessary for him to purchase comparable medical coverage
for himself and his spouse. Such amount shall be multiplied
by the Gross-Up Fraction (defined below) to reimburse him
for taxes. Rismiller's right to continue participation in
the Company's group health plan(s) shall terminate on
Rismiller becoming covered under another group health plan
which does not exclude coverage on account of a pre-existing
condition. In the event of Rismiller's death, this
paragraph shall apply to Rismiller's surviving spouse only.
In the event that Rismiller ceases to be covered by another
group health plan, as described in the immediately preceding
paragraph of this Section 5, Rismiller and his spouse may
participate in any group health plan(s) maintained by the
Company as he shall elect (or in the event of Rismiller's
death, as Rismiller's surviving spouse shall elect) pursuant
to the same provisions of the immediately preceding
paragraph of this Section 5 as if Rismiller's right to
continue participation in the Company's group health plan(s)
had not terminated. The Company and Rismiller further agree
that Rismiller and his spouse may participate in any group
health plan(s) maintained by the Company for the benefit of
retirees of the Company, as he shall elect. The provisions
of the immediately preceding paragraph of this Section 5 to
this paragraph of Section 5 shall be applied to Rismiller
and/or his spouse as if Rismiller had retired from the
Company as opposed to being treated as if he were still
employed by the Company. The application of the immediately
preceding paragraph of this Section 5 shall include, but not
be limited to, reimbursement for taxes and reimbursement for
purchase of comparable coverage.
6. EMPLOYMENT COMPENSATION PROTECTION.
The Company and Rismiller agree that if Rismiller's
employment is terminated by the Company as a result of a
Change in Control of the Company (the term "Change in
Control" shall apply if Rismiller terminates employment with
the Company or its successor within one hundred eighty (180)
days of the Change in Control, defined below, or the Company
or its successor terminates or constructively terminates his
employment, within three hundred sixty (360) days of the
Change in Control, other than with Rismiller's written
consent or as a result of his malfeasance; provided,
however, that Rismiller's voluntary resignation shall not be
deemed to be a termination with consent under this
Agreement; as used herein, constructive termination of
employment by the Company or its successor shall occur if
Rismiller terminates his employment due to a material breach
of any obligation to him by the
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Company or its successor, such as a material adverse change in
his remuneration, benefits, responsibilities, authority, title or
positions), Rismiller shall receive a termination benefit equal to the
sum of:
(i) 2.99 X the sum of his then base salary and bonus
awarded by FirsTier's Board of Directors (or any
committee thereof) under FirsTier's Annual Performance
Incentive Plan during the fiscal year preceding the
fiscal year in which such Change in Control occurs
notwithstanding whether such bonus was paid, in whole
or in part, to Executive during the fiscal year
preceding the fiscal year in which such Change in
Control occurs or is paid or is payable to Executive,
in whole or in part, in the fiscal year in which such
Change in Control occurs; plus,
(ii) an amount equal to the average of the annual incentive
bonuses paid to Rismiller under FirsTier's Annual
Performance Incentive Plan for the three (3) fiscal
years immediately preceding the fiscal year in which
the Change in Control of FirsTier occurs.
A Change in Control shall mean (i) a merger or consolidation
of the Company with or into, (ii) the sale or lease of all
or substantially all of the Company's assets to, or (iii) an
acquisition of more than 50% of the Company's outstanding
voting securities by, any other person or entity.
Further, where no Change in Control is involved, and
Rismiller's employment is terminated by the Company (other
than with Rismiller's written consent or as a result of his
malfeasance), Rismiller (or his estate) shall receive a
termination payment equal to 2 times his then base salary
multiplied by the Gross-Up Fraction (described in this
Section 6, as previously amended) as applied to income
taxes, payable over a period of twenty-four (24) months (if
Rismiller terminates due to a breach of any obligations to
him by the Company such as a material adverse change in his
remuneration, benefits, responsibilities, authority, title
or positions, then that termination shall be treated as a
termination by the Company).
The above payments shall be in addition to any other
severance or termination benefits to which Rismiller may be
entitled at the time, and such payments are not to be
reduced by any other compensation or income which Rismiller
may receive from subsequent employment.
In the event Rismiller's employment is terminated as
described herein where Rismiller is entitled to receive
termination benefits, Rismiller shall also be paid a pension
amount of $3,000 per month for life with a survivor benefit
for Rismiller's spouse unless total benefits receivable by
Rismiller under other of the Company's pension or retirement
plan equals or exceeds $3,000 per month, in which case no
additional benefits under this Section shall be payable to
Rismiller.
In addition, the Company and Rismiller agree that the
Company shall reimburse Rismiller for any excise taxes he
incurs on account of payment(s) by the Company to
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Rismiller under any plan, program, agreement or arrangement (except
a plan described in Section 401(a) of the Internal Revenue
Code of 1986, as amended) on account of or occasioned by a
Change in Control of the Company; and, in addition, the
Company agrees to reimburse Rismiller for income taxes
incurred on account of such reimbursement for excise taxes.
The amount that the Company shall reimburse Rismiller shall
be the amount of such excise taxes (and in the case of the
reimbursement for taxes described in Section 5, income
and/or excise taxes) multiplied by a fraction (the "Gross-Up
Fraction") the numerator of which is 1.0 and the denominator
of which is (1.0 minus the combined rate of all applicable
taxes (including federal, state and local income and excise
taxes) incurred by Rismiller with respect to a reimbursement
which is taxable to him).
7. STOCK OPTION, PHANTOM UNITS AND RESTRICTED STOCK BENEFITS.
The Company and Rismiller acknowledge that Rismiller has
been awarded Bonus Shares pursuant to the Company's
Restricted Stock Bonus Plan, stock options pursuant to the
Company's Discounted Nonqualified Stock Option Plan and
Phantom Stock Units under the Company's Phantom Stock Unit
Plan, all in accordance with the agreement contained as
Exhibit 2. In the event of a change of control of the
Company (defined as (i) a merger or consolidation of the
Company with or into, (ii) the sale or lease of all or
substantially all of the Company's assets to, or (iii) an
acquisition of more than 50% of the Company's outstanding
voting securities by, any other entity or person), or where
no Change in Control is involved, and Rismiller's employment
is terminated by the Company (other than with Rismiller's
written consent or as a result of his malfeasance), all
rights and benefits under the Plans shall be fully vested
and exercisable upon the effectiveness of such change of
control (that is, (i) the Company shall then forthwith make
payment to Rismiller of any Appreciation Amount and other
amounts described under paragraph 6(c) of the Phantom Stock
Unit Plan with respect to any Phantom Stock Units granted to
Rismiller under such Plan, (ii) any Bonus Shares granted to
Rismiller shall then forthwith become free of any and all
restrictions imposed on them under the Restricted Stock
Bonus Plan, except for the provisions of paragraphs 6(e) and
10 of such Plan, and (iii) any Options granted to Rismiller
under the Discounted Nonqualified Stock Option Plan shall
then forthwith become exercisable in whole or in part for a
period of 90 days after such change in control). In the
event of a Change in Control Rismiller shall have the option
of exercising such rights and benefits regarding stock
options contained in any merger agreement as he may in his
sole discretion determine to be more favorable.
In the event the shareholders of the Company do not approve
the Discounted Nonqualified Stock Option Plan at the 1989
annual meeting, Rismiller shall be entitled to receive an
additional amount of Bonus Shares or Phantom Stock Units, or
both, sufficient to compensate him for the loss of the stock
options (taking into account insofar as practical any income
tax consequences to Rismiller as a result of the loss of
such stock options and their replacement with Bonus Shares
or Phantom Stock Units).
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8. DISPUTES.
In the event that a dispute arises concerning this
Agreement, the Company, through its Executive Committee, and
Rismiller agree that they shall, in good faith, use their
best efforts to promptly and fairly proceed to resolve such
dispute.
9. AMENDMENTS.
Any amendments or modification to this Agreement shall be
done in written form and executed by both parties.
FIRSTIER FINANCIAL, INC. and
FIRSTIER FINANCIAL, INC. BOARD
OF DIRECTORS
By: /s/ WALTER SCOTT, JR.
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Walter Scott, Jr.
Chairman, Executive Committee
/s/ DAVID A. RISMILLER
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David A. Rismiller
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