EXHIBIT 10.(d)
EMPLOYMENT AGREEMENT
AGREEMENT between First Security Bank of Missoula, ("Bank"), and Xxxxxxx
X. Xxxxxxx, ("Executive"), and ratified by Glacier Bancorp, Inc. ("Bancorp"),
RECITALS
A. First Security Bank of Missoula, ("Bank"), is a wholly owned subsidiary
of Glacier Bancorp, Inc., ("Bancorp").
B. Executive is the President and Chief Executive Officer of the Bank, a
director of the Bank, and a director of Bancorp.
C. The Bank desires Executive to continue his employment at the Bank under
the terms and conditions of this Agreement.
D. Executive desires to continue his employment at the Bank under the terms
and conditions of this Agreement.
AGREEMENT
1. EMPLOYMENT. The Bank agrees to employ Executive and Executive accepts
employment by the Bank on the terms and conditions set forth in this
Agreement. Executive's title will be President and Chief Executive
Officer of the Bank. During the term of this Agreement, Executive will
serve as a director of the Bank.
2. TERM. The term of this Agreement is for one year beginning January 1,
2002.
3. DUTIES. The Bank will employ Executive as its President and Chief
Executive Officer. Executive will faithfully and diligently perform his
assigned duties, which are as follows:
(a) Bank Performance. Executive will be responsible for all aspects
of the Bank's performance, including without limitation,
directing that daily operational and managerial matters are
performed in a manner consistent with the Bank's and Bancorp's
policies.
(b) Development and Preservation of Business. Executive will be
responsible for the development and preservation of banking
relationships and other business development efforts (including
appropriate civic and community activities) in Missoula County.
(c) Report to Board. Executive will report directly to the Bank's
board of directors and to the Chief Executive Officer of Bancorp.
The Bank's board of directors may, from time to time, modify
Executive's title or add, delete, or modify Executive's
performance responsibilities to accommodate management
succession, as well as any other management objectives of the
Bank or of Bancorp. Executive will assume any additional
positions, duties and responsibilities as may reasonably be
requested of him with or without additional compensation, as
appropriate and consistent with Sections 3(a) and 3(b) of this
Agreement.
4. EXTENT OF SERVICES. Executive will devote all of his working time,
attention and skill to the duties and responsibilities set forth in
Section 3. To the extent that such activities do not interfere with his
duties under Section 3, Executive may participate in other businesses as
a passive investor, but (a) Executive may not actively participate in
the operation or management of those businesses, and (b) Executive may
not, without the Bank's prior written consent, make or maintain any
investment in a business with which the Bank or Bancorp has an existing
competitive or commercial relationship.
5. SALARY. Executive will receive an annual salary of $168,000.00 to be
paid in accordance with the Bank's regular payroll schedule.
6. INCENTIVE COMPENSATION. During the Term, the Bank's board of directors,
subject to ratification by Bancorp's board of directors, will determine
the amount of bonus to be paid by the Bank to Executive for that year.
In making this determination, the Bank's board of directors will
consider factors such as Executive's performance of his duties and the
safety, soundness and profitability of the Bank. Executive's bonus will
reflect Executive's contribution to the performance of the Bank during
the year. This bonus will be paid to Executive no later than January 31
of the year following the year in which the bonus is earned by
Executive.
7. INCOME DEFERRAL. Executive will be eligible to participate in any
program available to the Bank's and Bancorp's senior management for
income deferral, for the purpose of deferring receipt of any or all of
the compensation he may become entitled to under this Agreement.
8. VACATION AND BENEFITS.
(a) Vacation and Holidays. Executive will receive four weeks of paid
vacation each year in addition to all holidays observed by the
Bank. Executive may carry over, in the aggregate, up to four
weeks of unused vacation to a subsequent year. Any unused
vacation time in excess of four weeks will not accumulate or
carry over from one calendar year to the next. Each calendar year
Executive shall take not less than one (1) week vacation.
(b) Benefits. Executive will be entitled to participate in any group
life insurance, disability, health and accident insurance plans,
profit sharing and pension plans and in other employee fringe
benefit programs the Bank or Bancorp may have in effect from time
to time for its similarly situated employees, in accordance with
and subject to any policies adopted by the Bank's board of
directors with respect to the plans or programs, including
without limitation, any incentive or employee stock option plan,
deferred compensation plan, 40 1(k) plan, and Supplemental
Executive Retirement Plan (SERP). Neither the Bank nor Bancorp,
through this Agreement, obligate itself to make any particular
benefits available to its employees.
(c) Business Expenses. The Bank will reimburse Executive for ordinary
and necessary expenses which are consistent with past practice at
the Bank (including, without limitation, travel, entertainment,
and similar expenses) and which are incurred in performing and
promoting the Bank's business. Executive will present from time
to time itemized accounts of these expenses, subject to any
limits of the Bank policy or the rules and regulations of the
Internal Revenue Service.
9. TERMINATION OF EMPLOYMENT.
(a) Termination by the Bank for Cause. If the Bank terminates
Executive's employment for Cause (defined below) before this
Agreement terminates, the Bank will pay Executive the salary
earned and expenses reimbursable under this Agreement incurred
through the date of his termination. Executive will have no right
to receive compensation or other benefits for any period after
termination under this Section 9(a).
(b) Other Termination by the Bank. If the Bank terminates Executive's
employment without Cause before this Agreement terminates, or
Executive terminates his employment for Good Reason (defined
below), the Bank will pay Executive for the remainder of the Term
the compensation and other benefits he would have been entitled
to if his employment had not terminated.
(c) Death or Disability. This Agreement terminates (1) if Executive
dies or (2) if Executive is unable to perform his duties and
obligations under this Agreement for a period of 90 consecutive
days as a result of a physical or mental disability arising at
any time during the term of this Agreement, unless with
reasonable accommodation Executive could continue to perform his
duties under this Agreement and making these accommodations would
not pose an undue hardship on the Bank. If termination occurs
under this Section 9(c), Executive or his estate will be entitled
to receive all compensation and benefits earned and expenses
reimbursable through the date Executive's employment terminated.
(d) Termination Related to a Change in Control.
(1) Termination by Bank. If the Bank, or its successor in
interest by merger, or its transferee in the event of a
purchase in an assumption transaction (for reasons other
than Executive's death, disability, or Cause) (1)
terminates Executive's employment within one year
following a Change in Control (as defined below), or (2)
terminates Executive's employment before the Change in
Control but on or after the date that any party either
announces or is required by law to announce any
prospective Change in Control transaction and a Change in
Control occurs within six months after the termination,
the Bank will provide Executive with the payment and
benefits described in Section 9(d)(3) below.
(2) Termination by Executive. If Executive terminates
Executive's employment, with or without Good Reason,
within one year following a Change in Control, the Bank
will provide Executive with the payment and benefits
described in Section 9(d)(3).
(3) Payments. If Section 9(d)(1) or (2) is triggered in
accordance with its terms, the Bank will: (i) pay
Executive in 12 monthly installments in an amount equal to
the Executive's annual salary (determined as of the day
before the date Executive's employment was terminated) and
(ii) maintain and provide for 1 year following Executive's
termination, at no cost to Executive, the benefits
described in Section 9(b) to which Executive is entitled
(determined as of the day before the date of such
termination); but if Executive's participation in any such
benefit is thereafter barred or not feasible, or
discontinued or materially reduced, the Bank will arrange
to provide Executive with either benefits substantially
similar to those benefits or a cash payment of
substantially similar value in lieu of the benefits.
(e) Limitations on Payments Related to Change in Control. The
following apply notwithstanding any other provision of this
Agreement:
(1) the total of the payments and benefits described in
Section 9(d)(3) will be less than the amount that would
cause them to be a "parachute payment" within the meaning
of Section 280G(b)(2)(A) of the Internal Revenue Code;
(2) the payment and benefits described in Section 9(d)(3) will
be reduced by any compensation (in the form of cash or
other benefits) received by Executive from the Bank or its
successor after the Change in Control; and
(3) Executive's right to receive the payments and benefits
described in Section 9(d)(3) terminates (i) immediately if
before the Change in Control transaction closes, Executive
terminates his employment without Good Reason, or the Bank
terminates Executive's employment for Cause, or (ii) one
year after a Change of Control occurs.
(f) Return of Bank Property. If and when Executive ceases, for any
reason, to be employed by the Bank, Executive must return to the
Bank all keys, pass cards, identification cards and any other
property of the Bank. At the same time, Executive also must
return to the Bank all originals and copies (whether in
memoranda, designs, devices, diskettes, tapes, manuals, and
specifications) which constitute proprietary information or
material of the Bank. The obligations in this paragraph include
the return of documents and other materials which may be in his
desk at work, in his car, in place of residence, or in any other
location under his control.
(g) Cause. "Cause" means any one or more of the following:
(1) Willful misfeasance or gross negligence in the performance
of Executive's duties;
(2) Conviction of a crime in connection with his duties;
(3) Conduct demonstrably and significantly harmful to the
Bank, as reasonably determined on the advice of legal
counsel by the Bank's board of directors; or
(4) Permanent disability, meaning a physical or mental
impairment which renders Executive incapable of
substantially performing the duties required under this
Agreement, and which is expected to continue rendering
Executive so incapable for the reasonably foreseeable
future.
(h) Good Reason. "Good Reason" means only any one or more of the
following:
(1) Reduction of Executive's salary or reduction or
elimination of any compensation or benefit plan benefiting
Executive, unless the reduction or elimination is
generally applicable to other executive officers within
Bancorp (or executive officers of a successor or
controlling entity of the Bank) formerly benefitted;
(2) The assignment to Executive without his consent of any
authority or duties materially inconsistent with
Executive's position as of the date of this Agreement;
(3) The material breach of this Agreement by the Bank, or
(4) A relocation or transfer of Executive's principal place of
employment outside Missoula County, Montana.
(i) Change in Control. "Change in Control" means a change "in the
ownership or effective control" or "in the ownership of a
substantial portion of the assets" of the Bank, within the
meaning of Section 280G of the Internal Revenue Code.
10. CONFIDENTIALITY. Executive will not, after the date this Agreement was
signed, including during and after its Term, use for his own purposes or
disclose to any other person or entity any confidential business
information concerning the Bank or its business operations, unless (1)
the Bank consents to the use or disclosure of confidential information;
(2) the use or disclosure is consistent with Executive's duties under
this Agreement, or (3) disclosure is required by law or court order. For
purposes of this Agreement, confidential business information includes,
without limitation, trade secrets (as defined under the Montana Uniform
Trade Secrets Act, Montana Code Section 30-14-402), various confidential
information on investment management practices, marketing plans, pricing
structure and technology of either the Bank or Bancorp. Executive will
also treat the terms of this Agreement as confidential business
information.
11. NONCOMPETITION. During the Term and the terms of any extensions or
renewals of this Agreement and for a period equal to one year after
Executive's employment with the Bank and Bancorp has terminated,
Executive will not, directly or indirectly, as a shareholder, director,
officer, employee, partner, agent, consultant, lessor, creditor or
otherwise:
(a) provide management, supervisory or other similar services to any
person or entity engaged in any business in counties in which the
Bank or Bancorp may have a presence which is competitive with the
business of the Bank or Bancorp or a
subsidiary as conducted during the term of this Agreement or as
conducted as of the date of termination of employment, including
any preliminary steps associated with the formation of a new
bank.
(b) persuade or entice, or attempt to persuade or entice any employee
of the Bank or Bancorp or a subsidiary to terminate his/her
employment with the Bank or a subsidiary.
(c) persuade or entice or attempt to persuade or entice any person or
entity to terminate, cancel, rescind or revoke its business or
contractual relationships with the Bank or Bancorp.
12. ENFORCEMENT.
(a) The Bank and Executive stipulate that, in light of all of the
facts and circumstances of the relationship between Executive and
the Bank, the agreements referred to in Sections 10 and 11
(including without limitation their scope, duration and
geographic extent) are fair and reasonably necessary for the
protection of the Bank's and Bancorp's confidential information,
goodwill and other protectable interests. If a court of competent
jurisdiction should decline to enforce any of those covenants and
agreements, Executive and the Bank request the court to reform
these provisions to restrict Executive's use of confidential
information and Executive's ability to compete with the Bank and
Bancorp to the maximum extent, in time, scope of activities and
geography, the court finds enforceable.
(b) Executive acknowledges the Bank and Bancorp will suffer immediate
and irreparable harm that will not be compensable by damages
alone if Executive repudiates or breaches any of the provisions
of Sections 10 or 11 or threatens or attempts to do so. For this
reason, under these circumstances, the Bank, in addition to and
without limitation of any other rights, remedies or damages
available to it at law or in equity, will be entitled to obtain
temporary, preliminary and permanent injunctions in order to
prevent or restrain the breach, and the Bank will not be required
to post a bond as a condition for the granting of this relief.
13. COVENANTS. Executive specifically acknowledges the receipt of adequate
consideration for the covenants contained in Sections 10 or 11 and that
the Bank is entitled to require him to comply with these Sections. These
Sections will survive termination of this Agreement. Executive
represents that if his employment is terminated, whether voluntarily or
involuntarily, Executive has experience and capabilities sufficient to
enable Executive to obtain employment in areas which do not violate this
Agreement and that the Bank's enforcement of a remedy by way of
injunction will not prevent Executive from earning a livelihood.
14. ARBITRATION.
(a) Arbitration. At either party's request, the parties must submit
any dispute, controversy or claim arising out of or in connection
with, or relating to, this Agreement or any breach or alleged
breach of this Agreement, to arbitration under the American
Arbitration Association's rules then in effect (or under any
other form of arbitration mutually acceptable to the parties). A
single arbitrator
agreed on by the parties will conduct the arbitration. if the
parties cannot agree on a single arbitrator, each party must
select one arbitrator and those two arbitrators will select a
third arbitrator. This third arbitrator will hear the dispute.
The arbitrator's decision is final (except as otherwise
specifically provided by law) and binds the parties, and either
party may request any court having jurisdiction to enter a
judgment and to enforce the arbitrator's decision. The arbitrator
will provide the parties with a written decision naming the
substantially prevailing party in the action. This prevailing
party is entitled to reimbursement from the other party for its
costs and expenses, including reasonable attorneys' fees.
(b) Governing Law. All proceedings will be held at a place designated
by the arbitrator in Missoula County, Montana. The arbitrator, in
rendering a decision as to any state law claims, will apply
Montana law.
(c) Exception to Arbitration. Notwithstanding the above, if Executive
violates Section 10 or 11, the Bank will have the right to
initiate the court proceedings described in Section 12(b), in
lieu of an arbitration proceeding under this Section 14.
15. MISCELLANEOUS PROVISIONS.
(a) Entire Agreement. This Agreement constitutes the entire
understanding and agreement between the parties concerning its
subject matter and supersedes all prior agreements,
correspondence, representations, or understandings between the
parties relating to its subject matter.
(b) Binding Effect. This Agreement will bind and inure to the benefit
of the Bank's and Executive's heirs, legal representatives,
successors and assigns.
(c) Litigation Expenses. If either party successfully seeks to
enforce any provision of this Agreement or to collect any amount
claimed to be due under it, this party will be entitled to
reimbursement from the other party for any and all of its
out-of-pocket expenses and costs including, without limitation,
reasonable attorneys' fees and costs incurred in connection with
the enforcement or collection.
(d) Waiver. Any waiver by a party of its rights under this Agreement
must be written and signed by the party waiving its rights. A
party's waiver of the other party's breach of any provision of
this Agreement will not operate as a waiver of any other breach
by the breaching party.
(e) Assignment. The services to be rendered by Executive under this
Agreement are unique and personal. Accordingly, Executive may not
assign any of his rights or duties under this Agreement.
(f) Amendment. This Agreement may be modified only through a written
instrument signed by both parties and ratified by Bancorp.
(g) Severability. The provisions of this Agreement are severable. The
invalidity of any provision will not affect the validity of other
provisions of this Agreement.
(h) Governing Law and Venue. This Agreement will be governed by and
construed in accordance with Montana law, except to the extent
that certain regulatory matters may be governed by federal law.
The parties must bring any legal proceeding arising out of this
Agreement in Missoula County, Montana.
(i) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original,
but all of which taken together will constitute one and the same
instrument.
Signed this 14 day of January, 2002.
FIRST SECURITY BANK OF MISSOULA
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Attest: By:
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Secretary
EXECUTIVE
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Ratified December 27, 2001
GLACIER BANCORP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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President/CEO
