EXHIBIT 10(F)
EMPLOYMENT AGREEMENT
AGREEMENT between Glacier Bancorp, Inc., hereinafter called "Company", and
Xxxxxxx X. Xxxxxxxx, hereinafter called "Executive",
RECITALS
A. Executive has served as President and Chief Executive Officer of the
Company.
B. The Company desires Executive to continue his employment at the Company
under the terms and conditions of this Agreement.
C. Executive desires to continue his employment at the Company under the terms
and conditions of this Agreement.
AGREEMENT
1. EMPLOYMENT. The Company agrees to employ Executive and Executive accepts
employment by the Company on the terms and conditions set forth in this
Agreement. Executive's title will be President and Chief Executive Officer
of the Company. During the term of this Agreement, Executive will serve as
a director of the Company and of the Banks.
2. TERM. The term of this Agreement ("Term") is one year, beginning on January
1, 2006.
3. DUTIES. The Company will employ Executive as its President and Chief
Executive Officer. Executive will faithfully and diligently perform his
assigned duties, which are as follows:
(a) Company Performance. Executive will be responsible for all aspects of
the Company's performance, including without limitation, directing
that daily operational and managerial matters are performed in a
manner consistent with the Company'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).
(c) Report to Board. Executive will report directly to the Company's board
of directors. The Company'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 Company. 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
Company's prior written consent, make or maintain any investment in a
business with which the Company or its
subsidiaries has an existing competitive or commercial relationship.
5. COMPANY BOARD. During the term, the Company will use its best efforts to
nominate and recommend Executive for election to the Company's board of
directors.
6. SALARY. Executive will receive an annual salary of $300,000.00, to be paid
in accordance with the Company's regular payroll schedule. Subsequent
salary increases are subject to the Company's annual review of Executive's
compensation and performance.
7. INCENTIVE COMPENSATION. During the Term, the Company's board of directors
will determine the amount of bonus to be paid by the Company to Executive
for that year. In making this determination, the Company's board of
directors will consider factors such as Executive's performance of his
duties and the safety, soundness and profitability of the Company.
Executive's bonus will reflect Executive's contribution to the performance
of the Company during the year, also taking into account the nature and
extent of incentive bonuses paid to comparable senior officers at the
Company. 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.
8. INCOME DEFERRAL. Executive will be eligible to participate in any program
available to the Company'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.
9. 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 Company
and its subsidiaries. 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 Company may have in effect from time to time for its
similarly situated employees, in accordance with and subject to any
policies adopted by the Company's board of directors with respect to
the plans or programs, including without limitation, any incentive or
employee stock option plan, deferred compensation plan, 401(k) plan,
and Supplemental Executive Retirement Plan (SERP). The Company through
this Agreement does not obligate itself to make any particular
benefits available to its employees.
(c) Business Expenses. The Company will reimburse Executive for ordinary
and necessary expenses which are consistent with past practice at the
Company (including, without limitation, travel, entertainment, and
similar expenses) and which are incurred in performing and promoting
the Company's business. Executive will present from time to time
itemized accounts of these expenses, subject to any limits of the
Company policy or the rules and regulations of the Internal Revenue
Service.
10. TERMINATION OF EMPLOYMENT.
(a) Termination by the Company for Cause. If the Company terminates
Executive's employment for Cause (defined below) before this Agreement
terminates, the Company 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 10(a).
(b) Other Termination by the Company. If the Company terminates
Executive's employment without Cause
before this Agreement terminates, or Executive terminates his
employment for Good Reason (defined below), the Company 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 Company.
If termination occurs under this Section 10(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 Company. If the Company, 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 3 years 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 10(d)(3) below.
(2) Termination by Executive. If Executive terminates Executive's
employment, with or without Good Reason, within three years
following a Change in Control, the Company will provide Executive
with the payment and benefits described in Section 10(d)(3)
below.
(3) Payments. If Section 10(d)(1) or (2) is triggered in accordance
with its terms, the Company will: (i) pay Executive in 36 monthly
installments in an amount equal to 2.99 times the Executive's
annual salary (determined as of the day before the date
Executive's employment was terminated) and (ii) maintain and
provide for 2.99 years 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 Company 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
10(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 10(d)(3) will be
reduced by any compensation (in the form of cash or other
benefits) received by Executive from the Company or its successor
after the Change in Control; and
(3) Executive's right to receive the payments and benefits described
in Section 10(d)(3) terminates (i) immediately if before the
Change in Control transaction closes, Executive terminates his
employment without Good Reason, or the Company terminates
Executive's employment for Cause, or (ii) three years after a
Change of Control occurs.
(f) Return of Bank Property. If and when Executive ceases, for any reason,
to be employed by the Company, Executive must return to the Company
all keys, pass cards, identification cards and any other property of
the Company. At the same time, Executive also must return to the
Company all originals and
copies (whether in memoranda, designs, devices, diskettes, tapes,
manuals, and specifications) which constitute proprietary information
or material of the Company and its subsidiaries. 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 Company, as
reasonably determined on the advice of legal counsel by the
Company'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 substantially
all Company employees (or employees of a successor or controlling
entity of the Company) formerly benefited;
(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 Company, or
(4) A relocation or transfer of Executive's principal place of
employment outside Flathead 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 Company, within the meaning of Section
280G of the Internal Revenue Code.
11. 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 Company or its business operations or that of
its subsidiaries, unless (1) the Company 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 Company or
its subsidiaries. Executive will also treat the terms of this Agreement as
confidential business information.
12. NONCOMPETITION. During the Term of this Agreement and for a period of three
years after Executive's employment with the Company 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
Company or its subsidiaries may have a presence which is competitive
with the business of the Company 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 Company or a subsidiary to terminate his/her employment with the
Company 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 Company or its subsidiaries.
13. ENFORCEMENT.
(a) The Company and Executive stipulate that, in light of all of the facts
and circumstances of the relationship between Executive and the
Company, the agreements referred to in Sections 11 and 12 (including
without limitation their scope, duration and geographic extent) are
fair and reasonably necessary for the protection of the Company and
its subsidiaries 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 Company request the court to reform these provisions to
restrict Executive's use of confidential information and Executive's
ability to compete with the Company to the maximum extent, in time,
scope of activities and geography, the court finds enforceable.
(b) Executive acknowledges the Company 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 11
or 12 or threatens or attempts to do so. For this reason, under these
circumstances, the Company, 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 Company will not be required to post a bond as a condition for the
granting of this relief.
14. COVENANTS. Executive specifically acknowledges the receipt of adequate
consideration for the covenants contained in Sections 11 and 12 and that
the Company 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
Company's enforcement of a remedy by way of injunction will not prevent
Executive from earning a livelihood.
15. 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 Flathead 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 11 or 12, the Company will have the right to initiate
the court proceedings described in Section 13(b), in lieu of an
arbitration proceeding under this Section 15.
16. 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 Company's, its subsidiaries' 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.
(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
Flathead 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 28th day of December, 2005.
GLACIER BANCORP, INC.
/s/ Xxxx X. XxxXxxxxx
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Xxxx X. XxxXxxxxx, Chairman
Attest:
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, Secretary
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
