RESIGNATION AGREEMENT, GENERAL RELEASE,
AND COVENANT NOT TO XXX
THIS RESIGNATION AGREEMENT, GENERAL RELEASE, AND COVENANT NOT TO XXX
(hereinafter "this Agreement") is entered into by and between XXXXXXX X.
XXXXXXXX ("XXXXXXXX") and FIRST INTERSTATE BANCSYSTEM, INC. ("FIRST
INTERSTATE");
WHEREAS, RUEGAMER held the position of Executive Vice President and Chief
Operating Officer;
WHEREAS RUEGAMER intends to resign his position with FIRST INTERSTATE; and
WHEREAS, RUEGAMER and FIRST INTERSTATE desire to enter into an agreement
setting forth the terms and conditions of RUEGAMER's resignation from FIRST
INTERSTATE;
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, RUEGAMER and FIRST INTERSTATE hereby agree as follows:
1. SEPARATION FROM EMPLOYMENT. RUEGAMER and FIRST INTERSTATE agree that
RUEGAMER's employment with FIRST INTERSTATE ended by the resignation of
RUEGAMER effective as of October 31, 1997.
2. RELEASE IN FULL OF ALL CLAIMS. FIRST INTERSTATE shall provide to
RUEGAMER certain financial consideration, set forth in paragraph 5 of this
Agreement. In exchange for such consideration, RUEGAMER agrees that he (a)
has resigned and his employment with FIRST INTERSTATE is terminated effective
on October 31, 1997; (b) shall comply with the terms set forth in this
Agreement; and (c) hereby irrevocably and unconditionally releases, covenants
not to xxx, acquits, and forever discharges FIRST INTERSTATE and any of its
affiliated or related corporations, banks, businesses, its predecessors and
successors, and its past and present trustees, directors, officers, board
members, agents, representatives, employees, and attorneys (hereinafter
referred to collectively as "RELEASED PARTIES") from any and all charges,
complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts, attorneys' fees, and expenses, of any nature whatsoever
which RUEGAMER now has, owns, or holds, or claims to have, own, or hold
arising out of or otherwise related to any respect of RUEGAMER's employment
or his resignation therefrom and his association with the RELEASED PARTIES. In
particular, but solely by way of example and without limiting the generality
of the
immediately preceding release, RUEGAMER specifically waives and releases any
right to pursue and/or recover damages from or other legal or equitable
relief against the RELEASED PARTIES, and agrees that neither he nor any of
his heirs, executors, administrators, personal representatives, assigns,
agents or other representatives shall file or cause to be filed any lawsuit
or other claim for relief with any federal, state or local court or
administrative agency, including, without limitation, any claim for relief
under Title VII of the Civil Rights Act, the Age Discrimination in Employment
Act, the Older Workers Benefit Protection Act, Section 1981 of the Civil
Rights Act of 1986, the Equal Pay Act of 1963, the Rehabilitation Act of
1973, the Discharge from Employment Act, the Montana Human Rights Act, any
other federal or state employment law or statute, or any federal or state
statute or common law doctrine regarding the existence or breach of oral or
written contracts of employment, fraud, misrepresentation, wrongful
discharge, just cause dismissal, defamation, blacklisting, interference with
contract, negligent or intentional infliction of emotional distress, or
breach of an implied covenant of good faith and fair dealing.
3. RETURN OF PROPERTY. RUEGAMER has returned or will immediately return
to the RELEASED PARTIES all documents, correspondence, reports, files,
memoranda, manuals, ledgers, and records of any kind whatsoever; credit cards
and passes; door and file keys; equipment; computer hardware, software,
files, and disks; and other physical property which RUEGAMER received or
prepared or helped prepare in connection with his employment and which he has
in his possession. RUEGAMER represents that he has not retained and will not
retain any copies, duplicates, reproductions, or excerpts thereof.
4. CONFIDENTIAL INFORMATION. RUEGAMER shall not discuss with any other
persons any confidential or proprietary information relating to the business
of the RELEASED PARTIES, to which RUEGAMER may have become privy while
employed by FIRST INTERSTATE.
5. FINANCIAL CONSIDERATION. In consideration of RUEGAMER's promises to
set forth herein, the following shall be provided to RUEGAMER:
x. XXXXXXXX will receive on November 1, 1997, a performance bonus of
FIFTY-FIVE THOUSAND FIVE HUNDRED DOLLARS ($55,500.00) (less
applicable taxes) in recognition of his efforts through October 31,
1997.
x. XXXXXXXX will be paid TWO HUNDRED AND FIFTY THOUSAND DOLLARS
($250,000.00) in 24 equal monthly installments commencing on November
1, 1997, upon presentation to RELEASED PARTIES of an Acknowledgement,
Resignation and Release Agreement, and Certification of
Non-Revocation of Resignation and Release Agreement, properly signed
in accordance with the Older Workers Benefit Protection Act. In the
event of RUEGAMER's death, prior to any payment date, the subsequent
payment(s) will be made to XXX X. XXXXXXXX or to the estate as
directed by XXX X. XXXXXXXX.
x. XXXXXXXX and XXX X. XXXXXXXX will be provided their health and dental
insurance through FIRST INTERSTATE for four (4) years (unless
RUEGAMER obtains employment during that four year period) not to
extend beyond October 31, 2001. In the event of death of RUEGAMER
while this provision is still in effect, health and dental insurance
will be continued for XXX X. XXXXXXXX, not to extend beyond October
31, 2001.
x. XXXXXXXX will be provided with a term life insurance policy, payable
to XXX X. XXXXXXXX, in the amount of $500,000 for a period of ten
years. This life insurance shall be purchased and funded by FIRST
INTERSTATE from an insurance company with a satisfactory rating as
determined by Best. In the event RUEGAMER is uninsurable or otherwise
does not qualify for life insurance, FIRST INTERSTATE shall have no
further obligation to RUEGAMER under this paragraph 5d.
6. NO ADMISSION OF LIABILITY. This Agreement shall not in any way be
construed as an admission by the RELEASED PARTIES that they have acted
wrongfully with respect to RUEGAMER or any other person, or that RUEGAMER has
any claims whatsoever against the RELEASED PARTIES, and the RELEASED PARTIES
specifically disclaim any liability to or wrongful acts against RUEGAMER or
any other person. Similarly, this Agreement shall not be construed as an
admission by RUEGAMER that he has acted wrongfully in any respect or that the
RELEASED PARTIES have any claims against him.
7. INDEMNITY. RUEGAMER agrees to defend, indemnify, hold harmless and
pay attorney's fees and costs on behalf of RELEASED PARTIES and their
attorneys, agents and representatives from any claims for taxes and/or
penalties made against any of them by the Internal Revenue Service and/or the
Montana Department of Revenue arising out of or resulting from RUEGAMER's
employment or resignation therefrom. RELEASED PARTIES make no warranty or
representation concerning the treatment of the payments provided herein under
the Internal Revenue Code and the Administrative Regulations promulgated
thereunder, as well as any applicable state taxation provisions, and
RUEGAMER has not relied upon any such warranty or representation. To the
extent provided by and subject to the limitations specified in Sections
35-1-451 through 35-1-45x, RELEASED PARTIES agree to defend, indemnify, hold
harmless and pay attorney's fees and costs on behalf of RUEGAMER from any
claims made against him by any third parties for any action performed by him
as an agent of the RELEASED PARTIES.
8. FUTURE EMPLOYMENT. RUEGAMER acknowledges and warrants that in
exchange for the above-described sum of settlement, he has agreed that his
employment by RELEASED PARTIES has ended irrevocably and forever, and that it
will not be resumed at any time in the future. Accordingly, as additional
consideration for payment of the above-described sum of settlement, RUEGAMER
agrees that he shall not seek reinstatement or apply for future employment by
RELEASED PARTIES or their successors in interest. Furthermore, if RUEGAMER
should seek such reinstatement or apply for future employment in violation of
the terms of this paragraph, the entity to whom such application for
reinstatement or employment is made shall incur no liability by virtue of its
refusal to hire RUEGAMER or to consider RUEGAMER for employment.
9. NON-COMPETITION.
A. SCOPE AND DURATION. For a period of two years after RUEGAMER's
resignation, RUEGAMER shall not directly or indirectly own,
manage, operate, be employed by, be a director of, be an agent
of, participate in, consult for, or be connected with any state
or federally regulated banking or lending enterprise in Montana
or Wyoming, including, but not limited to, commercial banks,
savings banks, trust companies, investment companies, savings and
loans, mortgage or finance companies, credit unions or similar
enterprises. RUEGAMER agrees that the extent and duration of
RUEGAMER's agreement not to compete has been negotiated in
contemplation of the additional compensation set forth in
paragraph 98 and not as part of the consideration for the
resignation and release. RUEGAMER recognizes that this
non-competition agreement may limit his ability to obtain
employment during these two years.
B. CONSIDERATION. Provided RUEGAMER abides by this non-competition
clause, he will receive as additional consideration for this
non-competition clause the sum of TWO HUNDRED AND FIFTY THOUSAND
DOLLARS ($250,000.00) to be paid to RUEGAMER, or in the event of
his death, his spouse, on November 1, 1999.
10. CONFIDENTIALITY OF THIS AGREEMENT. It is understood and agreed by
RUEGAMER and RELEASED PARTIES that the financial terms of this Agreement are
confidential and shall not be disclosed except to immediate family, legal
counsel and accountants, and they hereby further agree to use their best
efforts to keep said information confidential and not disclose it to others,
except as such disclosure may be required by law.
11. EMPLOYEE ACKNOWLEDGMENT. RUEGAMER hereby acknowledges that he is
executing this Agreement voluntarily and of his own free will, and that he
fully understands the terms of this Agreement. Further, RUEGAMER hereby
acknowledges that he has had an opportunity to review this Agreement fully
and to discuss its terms with legal counsel prior to its execution.
12. RIGHT OF REVOCATION. RUEGAMER understands that he has the right to
revoke this Agreement for a period of seven (7) days following the execution
of this Agreement. This Agreement shall not become effective or enforceable
until the seven (7) day revocation period has expired.
PLEASE READ CAREFULLY.
THIS AGREEMENT AFFECTS AND TERMINATES LEGAL RIGHTS.
DATED: this 25th day of August, 1997.
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------------
XXXXXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxx
---------------------------------------------
XXXXXX X. XXXXX, President & CEO
First Interstate Bancsystem, Inc.
STATE OF MONTANA )
:ss.
County of Yellowstone )
This instrument was acknowledged before me on
Aug 25, 1997 by XXXXXXX X. XXXXXXXX.
/s/ [illegible]
---------------------------------------------
Notary Public for the State of Montana
Residing at Billings, Montana
My commission expires: 1-6-99
(SEAL)
STATE OF MONTANA )
:ss.
County of Yellowstone )
This instrument was acknowledged before me on
August 25, 1997 by XXXXXX X. XXXXX, President & CEO of
First Interstate Bancsystem, Inc.
/s/ [illegible]
---------------------------------------------
Notary Public for the State of Montana
Residing at Billings, Montana
My commission expires: 10-3-97
(SEAL)
[LETTERHEAD]
August 26, 1997
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Dear Xxxx:
As you are aware, you have acquired stock in First Interstate BancSystem,
Inc. ("First Interstate") during your tenure with First Interstate. You have
also acquired certain stock options and stock appreciation rights.
Pursuant to the terms of the applicable Shareholders Agreement, First
Interstate has the option to purchase your shares of stock in First
Interstate following your separation from employment. Also, pursuant to the
applicable Stock Option and Stock Appreciation Rights Agreements and Plan
referred to therein, the stock options and stock appreciation rights which
you hold at the time of your separation from employment expire three months
after the date of your separation. However, in consideration of your entering
into the non-competition agreement contained in paragraph 9 of your Resignation
Agreement, General Release, and Covenant Not to Xxx with First Interstate
dated August 25, 1997 (the "Agreement"), First Interstate is willing to
extend the period for exercise of the purchase option under the Shareholders
Agreement and your right to exercise the stock options and stock appreciation
rights under the Stock Option and Stock Appreciation Rights Agreement through
January 1, 2002.
The extension of those rights would automatically expire upon any breach
by you of paragraph 9 of the Agreement. In the event of a breach, you shall
be required to exercise the stock options and stock appreciation rights or,
if you elected not to exercise the options and rights, you shall be required
to forfeit them. A breach would also end the extension of First Interstate's
option to purchase your stock, and First Interstate shall have the option to
immediately acquire all stock owned by you at the time of the breach as well
as any stock then acquired by you pursuant to exercise of the stock options.
The purpose of this letter is to confirm the general framework within
which First Interstate is willing to extend the period of its option to
purchase your stock and your right to exercise your stock options and stock
appreciation rights. As you are aware, however, any extension of those
periods is subject to approval of First Interstate's board of directors and
any required regulatory or legal approvals. Assuming that such approvals are
obtained (and senior management will use their best efforts to obtain them),
formal amendment of the applicable agreements will be required in order to
properly document the extension of time, resolve any related issues and make
the agreements binding upon the parties.
Sincerely,
/s/ Xxxxxx X. Xxxxx
XXXXXX X. XXXXX
President & CEO
