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,
401(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
---------------------------
President/CEO
