EXHIBIT 10.3
CITIZENS COMMUNITY BANK
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), signed as of December 15, 2004,
between CITIZENS COMMUNITY BANK (the "Bank") and Xxxxx X. Xxxxxx ("Executive")
and ratified by GLACIER BANCORP, INC. ("Glacier"), takes effect on the effective
date of the pending Merger ("Effective Date") referenced below.
RECITALS
A. Glacier has entered into an Agreement and Plan of Merger ("Merger
Agreement") with CITIZENS BANK HOLDING COMPANY (the "Company"), the parent
company of the Bank, pursuant to which the Company will merge into
Glacier, and the Bank will become a wholly owned subsidiary of Glacier
(the "Merger").
B. Executive presently serves as President and Chief Executive Officer of the
Bank and will continue to do so until the Effective Date.
C. Glacier and the Bank desire Executive to be employed by the Bank from and
after the Effective Date, under the terms and conditions of this
Agreement.
D. Executive desires to be employed by the Bank from and after the Effective
Date, under the terms and conditions of this Agreement.
E. This Agreement supercedes any and all other employment or similar
agreements that may currently be in effect for Executive.
AGREEMENT
In consideration of the promises set forth in this Agreement, the parties
agree as follows.
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.
2. EFFECTIVE DATE AND TERM.
a. Term. The term of this Agreement ("Term") is three years, beginning
on the Effective Date.
b. Abandonment or Termination of the Merger. This Agreement is void if
the Merger Agreement is terminated for any reason.
3. DUTIES. The Bank will employ Executive as its President and Chief
Executive Officer. Executive will faithfully and diligently perform the
duties assigned to him, which duties will be consistent with his title and
position. Executive will report directly to Glacier's President and Chief
Executive Officer. The Bank's or Glacier's board of directors may, from
time to time, modify Executive's performance responsibilities to
accommodate management objectives of the Bank or of Glacier. 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 his title and position.
4. EXTENT OF SERVICES. Executive will devote all of his working time,
attention and skill to the duties and responsibilities referenced 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 and/or Glacier has an existing
competitive or commercial relationship.
5. SALARY. Initially, Executive will continue to receive the annual salary
that he is receiving from the Bank on the Executive Date, to be paid in
accordance with the Bank's regular payroll schedule. Subsequent salary
increases are subject to the Bank's annual review of Executive's
compensation and performance.
6. INCENTIVE COMPENSATION. Each year during the Term, the Bank'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. VACATION AND BENEFITS.
a. Vacation and Holidays. Executive will receive four weeks of paid
vacation each year. Executive's ability to carry over or accumulate
vacation will be governed by the Bank's and/or Glacier's applicable
policies.
b. Benefits. Executive will be entitled to participate in any group
life insurance, disability, health and accident insurance plans,
profit sharing plan and in other employee fringe benefit programs
the Bank or Glacier 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 or Glacier's board of directors with
respect to the plans or programs, including without limitation, any
incentive or employee stock option plan, deferred compensation plan
and 401(k) plan. Neither the Bank nor Glacier through this Agreement
obligates itself to make any particular benefits available to its
employees.
2
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 Bank
policy or the rules and regulations of the Internal Revenue Service.
8. TERMINATION OF EMPLOYMENT.
a. Termination By 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 8(a).
b. Other Termination By 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 a lump sum payment equal to one times
Executive's annual base salary at the time of termination.
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 8(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. 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 or Glacier. At the same time, Executive also
must return to the Bank all originals and copies (whether in hard
copy, electronic or other form) of any documents, drawings, notes,
memoranda, designs, devices, diskettes, tapes, manuals, and
specifications which constitute proprietary information or material
of the Bank or Glacier. The obligations in this paragraph include
the return of documents and other materials that may be in his desk
at work, in his car, in place of residence, or in any other location
under his control.
3
e. 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; or
(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.
f. 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 Bank employees (or employees of a successor
or controlling entity of the Bank) 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) A relocation or transfer of Executive's principal place of
employment that would require Executive to commute on a
regular basis more than sixty (60) miles each way from the
Bank's present main office location.
9. 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 Glacier or their business operations,
unless (1) the Bank or Glacier consents to the use or disclosure of their
respective confidential information; (2) the use or disclosure is
consistent with Executive's duties under this Agreement; (3) disclosure is
required by law or court order; or (4) the information is made or
otherwise becomes public. For purposes of this Agreement, confidential
business information includes, without limitation, trade secrets (as
defined under the Idaho Trade Secrets Act, Idaho Statutes Section 48-801
et seq.), various confidential information concerning all aspects of
current and future operations, nonpublic information on investment
management practices, marketing plans, pricing structure and technology of
either the Bank or Glacier. Executive will also treat the terms of this
Agreement as confidential business information.
10. RESTRICTIVE COVENANTS.
a. Competitive Activities. During the Term and the terms of any
extensions or renewals of this Agreement and for a period equal to
the greater of (a) six months after Executive's employment with the
Bank and/or Glacier has terminated or (b) the remainder of the Term
(or the remainder of any extension or renewal term),
4
Executive will not, directly or indirectly, as a shareholder,
director, officer, employee, partner, agent, consultant, lessor,
creditor or otherwise, provide management, supervisory or other
similar services to any person or entity engaged in any business
within Pocatello, Idaho, which is competitive with the business of
the Bank or Glacier 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. Non-Interference. For so long as Executive is employed by the Bank
or Glacier and for one year following termination of Executive's
employment, Executive will not, directly or indirectly, persuade or
entice, or attempt to persuade or entice, (i) any employee of the
Bank or Glacier to terminate his/her employment with the Bank or
Glacier, or (ii) any person or entity to terminate, cancel, rescind
or revoke its business or contractual relationships with the Bank or
Glacier.
11. 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 9 and 10 (including
without limitation their scope, duration and geographic extent) are
fair and reasonably necessary for the protection of the Bank's and
Glacier'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 Glacier to the maximum extent, in time,
scope of activities, and geography, the court finds enforceable.
b. Executive acknowledges the Bank and Glacier 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 9 or 10 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.
12. COVENANTS. Executive specifically acknowledges the receipt of adequate
consideration for the covenants contained in Sections 9 and 10 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.
5
13. 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 Bannock County, Idaho. The arbitrator, in
rendering a decision as to any state law claims, will apply Idaho
law.
c. Exception to Arbitration. Notwithstanding the above, if Executive
violates Section 9 or 10, the Bank will have the right to initiate
the court proceedings described in Section 11(b), in lieu of an
arbitration proceeding under this Section 13.
14. 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, Glacier'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.
6
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 Idaho 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 Bannock County, Idaho.
i. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of
which taken together will constitute one and the same document.
j. Counsel Review. Executive acknowledges that he has had the
opportunity to consult with independent counsel with respect to the
negotiation, preparation, and execution of this Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
7
Signed: December 15, 2004:
CITIZENS COMMUNITY BANK:
By /s/ Xxxxx X. Xxx
-----------------------------------
Xxxxx X. Xxx
Its: Chairman
EXECUTIVE:
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx
Ratified: December 15, 2004:
GLACIER BANCORP, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx
Its: President & Chief Executive
Officer
8
