AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Executive Employment Agreement is
entered into this 20th day of March, 1995, between FirsTier
Financial, Inc., ("FirsTier") and Jack R. McDonnell
("Executive"). This Agreement supercedes an Employment Agreement
dated June 20, 1989 (herein the "Original Employment Agreement")
and certain amendments to the Original Employment Agreement dated
November 18, 1991, and February 1, 1993. In consideration for
the mutual promises contained herein, the parties agree as
follows:
1. EMPLOYMENT.
FirsTier shall employ Executive and Executive shall serve
FirsTier as Executive Vice President and Chief Operating
Officer commencing July 5, 1989, under the conditions
hereinafter set forth. Executive agrees to perform such
services, not inconsistent with these positions, as shall be
assigned to him by the person holding the office of Chairman
of FirsTier as of such time ("Chairman"). FirsTier shall
cause Executive to be elected as a Director of FirsTier
Bank, N.A., Omaha and may cause Executive to be elected Vice
Chairman of FirsTier Bank, N.A., Omaha; and if so elected,
Executive shall so serve with no additional compensation.
2. DUTIES.
Executive agrees to devote all of his business time,
attention, skill and efforts to the business of FirsTier,
and its subsidiaries and affiliated companies and the
faithful, efficient performance of his duties under this
Agreement and shall not engage in any business activity or
consulting work for business organizations not affiliated
with FirsTier, without Chairman's consent in writing.
3. Compensation and Benefits.
In consideration of the services to be rendered by Executive
under this Agreement, Executive shall be entitled to the
following compensation and benefits:
(a) BASE SALARY. Executive shall receive a base salary at
the rate of $145,000 per year. This base salary will
be reviewed at the time of normal officer reviews for
performance and salary increases effective January 1,
1990, and each year thereafter so long as Executive is
employed.
(b) EMPLOYEE BENEFIT PROGRAMS. Executive shall be entitled
to all benefits available to employees of FirsTier, as
outlined in the Employee Benefits Handbook, and as may
be changed from time to time by FirsTier. In addition,
Executive shall be entitled to participation in the
FirsTier Supplemental Retirement Plan and FirsTier
Executive Death Benefit Plan or amended, substituted or
successor retirement plans or death benefit plans.
If Executive's employment is terminated by FirsTier
within 180 days after a Change in Control (defined in
paragraph 5) of FirsTier, or if Executive resigns
within such 180 day period and if Executive is not 100%
vested under the FirsTier Financial, Inc. Profit
Sharing Plan, Executive, upon termination, shall
receive a payment equal to the amount he forfeits under
such Plan.
(c) BONUS. Within sixty days following commencement of
employment with FirsTier, documents will be prepared by
which Executive shall participate in the FirsTier
Financial, Inc. Annual Performance Incentive Plan; for
calendar year 1989, Executive, as an officer who has
not completed a year of service, will be entitled to a
prorated amount from July 1, 1989, of any bonus payable
under said plan, which amount may be increased at the
discretion of the compensation committee of the Board
of Directors of FirsTier.
(d) STOCK. Within sixty days following commencement of his
employment with FirsTier, agreements shall be delivered
to Executive by which, upon execution, Executive shall
be granted the following:
(1) Phantom stock units totaling 6,000 units at fair
market value under the FirsTier Financial, Inc. Phantom
Stock Unit Plan. If FirsTier terminates Executive's
employment for other than cause, or if Executive
terminates his employment as the result of a change of
control, he shall be entitled to the appreciated amount
through the date of termination, in accordance with the
terms of the Plan.
(2) An option to purchase 12,000 shares under the
FirsTier Financial, Inc. Discounted Non-Qualified Stock
Option Plan. If FirsTier terminates Executive's
employment for other than cause, or if Executive
terminates his employment as the result of a change of
control, within the first sixty months of employment,
he shall be entitled to exercise the number of options
awarded to him multiplied by a fraction obtained by
dividing the number of whole months between the date of
the option and the date of termination by sixty months,
in accordance with the terms of the Plan.
(3) Eligibility for 2,000 shares, following completion
of two full years of service, under the FirsTier
Financial, Inc. Restricted Stock Bonus Plan. If
FirsTier terminates Executive's employment for other
than cause, or if Executive terminates his employment
as the result of a change of control, following
completion of two years of employment, he shall be
entitled to said number of shares multiplied by a
fraction obtained by dividing the number of whole
months employed following his second anniversary by
sixty months.
(4) An option to purchase shares, to the nearest fifty
shares increment, in an amount not to exceed $100,000
at the then current market value under the
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terms of the FirsTier Financial, Inc. 1985 Incentive Stock
Option Plan (dated February 13 1985), which option shall
continue for a period of ninety days following
Executive's last day of employment in accordance with
the terms of the Plan.
(e) HOME PURCHASE AND RELOCATION. Executive agrees that
the Company's obligations to Executive under Paragraph
3(e) of the Original Employment Agreement have been
satisfied in full.
(f) CLUB DUES. FirsTier will reimburse Executive during
his employment for the initiation fees, dues,
assessments, and other business-related fees and
charges in a country club mutually selected by the
parties in the Omaha, Nebraska area.
(g) AUTOMOBILE. FirsTier will provide to Executive during
his employment the use of a Buick LeSabre, or
comparable automobile, for business purposes, or at its
option, provide to Executive an annual payment for the
purchase or lease of an automobile for business use.
If FirsTier elects the payment option, Executive will
receive payment on the same basis as other officers of
FirsTier; the current annual payment is $5,333, which
amount would be prorated from July 1, 1989.
4. TERMINATION OF EMPLOYMENT.
Either party may terminate this Agreement, for reasons other
than cause, upon ninety days prior written notice. Notice
by Executive to FirsTier shall only be deemed to have been
duly given when delivered personally to the Chairman of
FirsTier. If FirsTier terminates Executive's employment for
other than cause, Executive shall receive, in addition to
base salary and benefits earned as of the date of
termination, stock benefits as described in paragraph 3(d)
of this Agreement, and a sum equal to one year of salary at
the then current base salary, which sum may be paid, at the
option of FirsTier, over a period of one year at the
established regular pay periods, in a lump sum, or in some
combination thereof; and, in addition, to the extent
permitted by the plan then in effect, FirsTier will pay for
Executive's and his dependents' participation in the
FirsTier group medical plan, on the same basis as if he were
still employed, until Executive becomes covered by other
health and accident insurance but in no event for a period
longer than one year from the date of termination.
5. CHANGE OF CONTROL.
In the event of a Change of Control of FirsTier (the term
"Change of Control" shall apply if Executive terminates
employment with FirsTier or its successor within one hundred
eighty (180) days of the Change of Control, defined below,
or FirsTier or its successor terminates or constructively
terminates his employment, within three
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hundred sixty (360) days of the Change of Control, other than with
Executive's written consent or as a result of his malfeasance, provided,
however, that Executive's voluntary resignation shall not be
deemed to be a termination with consent under this
Agreement; as used herein, constructive termination of
employment by FirsTier or its successor shall occur if
Executive terminates his employment due to a material breach
of any obligation to him by FirsTier or its successor, such
as a material adverse change in his remuneration, benefits,
responsibilities, authority, title or positions), Executive
may elect to terminate this Agreement and receive an amount
equal to:
(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 Executive under FirsTier's Annual
Performance Incentive Plan referred to in paragraph
3(c) hereof for the three (3) fiscal years immediately
preceding the fiscal year in which the Change in
Control of FirsTier occurs; and,
The Executive and his dependents may, at the Executive's
election, continue to participate in any group health
plan(s) maintained by FirsTier and/or its subsidiaries.
Unless prohibited by law or regulation, FirsTier will pay
for the Executive's and his dependents' participation in
such health plan(s) as if the Executive were still employed.
In the event that the Executive's or his dependents'
coverage under a group health plan maintained by FirsTier
shall cause him or her to realize taxable income, FirsTier
agrees to pay to Executive an amount equal to the tax the
Executive or his or her dependent incurs for the fiscal year
with respect to such taxable income. In the event that
FirsTier is prohibited by law from including the Executive
and/or his dependents in its group health plan(s), FirsTier
shall pay to Executive the amount necessary for him to
purchase comparable medical and dental coverage for himself
and/or his dependents. The Executive's right to continue
participation in FirsTier's group health plan(s) shall
terminate upon Executive becoming covered under another
group health plan which does not exclude coverage on account
of a pre-existing condition. Change of control shall be
defined as a single transaction, or a series of transactions
which effectively constitute a single transaction, including
a sale, merger, recapitalization or similar transaction, the
result by which either: (a) the direct or indirect
ownership of more than 50% of the stock of FirsTier is
transferred or otherwise changed; or (b) the total assets of
FirsTier, or collectively all of its subsidiaries, are
transferred to a person or entity other than FirsTier. Without
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limiting the generality of the foregoing, the parties agree
that a determination reasonably and lawfully made by the
Board of Directors of FirsTier that a Change of Control has
or has not occurred, and the effective date of such occurrence,
shall be conclusive. Executive shall have a period of not
to exceed 180 days following the effective date of such Change
in Control in which to exercise this election.
In addition, FirsTier and Executive agree that FirsTier
shall reimburse Executive for any excise taxes he incurs on
account of any payment(s) by FirsTier to Executive 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 FirsTier; and, in addition, FirsTier agrees to
reimburse the Executive for income taxes incurred on account
of the reimbursement for such excise taxes. The amount that
FirsTier shall reimburse Executive for such taxes shall be
the amount of such excise tax multiplied by a 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 Executive with respect to a reimbursement which
is taxable to him).
In the event of a Change of Control of FirsTier as described
in this paragraph 5, Executive shall have the right to
purchase 100% of the total number of shares described in
subparagraph 3(d)(2) of this Agreement at the price
specified in a certain letter dated July 29, 1989, addressed
to Executive, and shall also be entitled to receive 100% of
the total of shares described in subparagraph 3(d)(3) of
this Agreement, both determined without regard to any period
of employment by Executive with FirsTier. In the event of a
Change in Control McDonnell 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.
6. TERMINATION FOR CAUSE.
In the event that FirsTier shall terminate Executive's
employment for cause, FirsTier shall pay Executive his
earned but unpaid base salary to the date of such
termination. Except for such payment, and payment pursuant
to any other plan afforded to executive and his dependents
during his employment under this Agreement which by its
terms provides for income or medical payments or like
benefits following his termination of employment, FirsTier's
obligations under this Agreement shall cease on the date of
such termination and FirsTier shall have no further
obligations to Executive or any other person as a result of
this Agreement.
As used in this Agreement the term "cause" shall mean
Executive's serious willful misconduct with respect to his
obligations to FirsTier, including, but not limited to, the
commission by Executive of a felony; the perpetration of a
serious dishonest act or common law fraud against FirsTier;
any injury to FirsTier or any of its
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subsidiaries or affiliates resulting from Executive's gross
negligence or willful or intentional act or failure; failure,
after receipt of written notice, to carry out the reasonable and
lawful direct orders of the Chairman or the Board of
Directors of FirsTier or to perform any duties under this
Agreement; or any serious and continuing breach by the
Executive of any substantial duties under this Agreement.
Without limiting the generality of the foregoing, the
parties agree that a determination of cause reasonably and
lawfully made by the Chairman of FirsTier shall be
conclusive.
As used in this Agreement, and with respect to termination
for cause by Executive, the term "cause" shall mean a
material breach of the provisions of this Agreement on the
part of FirsTier, including, but not limited to, the
substantial reduction of Executive's duties or status
provided under this Agreement. Should Executive terminate
this Agreement for cause, as so defined, he shall receive,
and be limited to, in addition to base salary and benefits
earned as of the date of termination, a sum equal to one
year of salary at the then current base salary and
participation in the FirsTier group medical plan as provided
by federal law commonly referred to as COBRA.
7. ASSISTANCE IN LITIGATION.
During and following his employment, Executive shall, upon
reasonable notice, furnish such information and proper
assistance to FirsTier as may be reasonably required by
FirsTier in connection with any litigation in which it or
any of its subsidiaries is, or may become, a party.
FirsTier will indemnify and hold Executive harmless from any
claims or actions arising out of the performance of his
duties under this Agreement.
8. CONFIDENTIAL INFORMATION.
Executive shall not, directly or indirectly, use or permit
the use of any proprietary information, customer
information, product and service information, financial and
pricing information, data processing and communications
information, technical data, and other know-how and trade
secrets regarding this business of FirsTier and its
subsidiaries, all of which is valuable to FirsTier and
constitutes confidential information, except in the
performance of his duties hereunder or with the express
permission of the Chairman or the Board of Directors of
FirsTier. Executive confirms that all such information is
the exclusive property of FirsTier. All business records,
papers and documents kept or made by Executive relating to
the business of FirsTier or its subsidiaries shall be and
remain the property of FirsTier or subsidiary and shall
remain in the possession of FirsTier following termination
of this Agreement.
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9. DISPUTES.
In the event that a dispute arises concerning this
Agreement, the Company, through its Executive Committee, and
McDonnell agree that they shall, in good faith, use their
best efforts to promptly and fairly proceed to resolve such
dispute.
10. GENERAL PROVISIONS.
(a) BINDING AGREEMENT. This Agreement shall be binding
upon, and inure to the benefit of, FirsTier and
Executive and their respective successors and assigns;
provided, however, that this Agreement is personal as
to the services to be performed by Executive, and
Executive shall have no rights to assign or delegate
the performance of such duties to any other person.
(b) SEVERABILITY. If any provision of this Agreement shall
be determined by any court of competent jurisdiction to
be invalid or unenforceable, such invalidity or
unenforceability shall not affect the remainder of this
Agreement.
(c) HEADINGS. The headings of the sections herein are
included solely for convenience of reference and shall
not control the meaning or interpretation of any of the
provisions of this Agreement.
(d) GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of
Nebraska.
IN WITNESS WHEREOF, FirsTier and Executive have executed this
Agreement on the date first above written.
FIRSTIER FINANCIAL, INC.
By: /s/ WALTER SCOTT. JR.
-------------------------------
Walter Scott, Jr.
Chairman, Executive Committee
/s/ JACK R. MCDONNELL
-------------------------------
Jack R. McDonnell
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