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EXHIBIT 10.4
MOUNTAIN WEST BANK
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), signed as of ____________,
1999, between MOUNTAIN WEST BANK ("Bank") and ______________ ("Executive") and
ratified by GLACIER BANCORP, INC., takes effect on the effective date of the
Merger ("Effective Date").
RECITALS
A. Glacier Bancorp, Inc. ("Glacier") has entered into a Plan and Agreement
of Merger ("Merger Agreement") with the Bank, pursuant to which the Bank
will merge with a newly-formed subsidiary of Glacier (the "Merger"). As
a result of the Merger, the Bank will be a subsidiary of Glacier.
B. Before the Merger, Executive has served as ____________________ of the
Bank.
C. Glacier and the Bank desire Executive to continue her employment at the
Bank under the terms and conditions of this Agreement.
D. Executive desires to continue her employment at the Bank 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 ________________________ 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 in accordance with its
terms.
3. DUTIES. The Bank will employ Executive as its ____________________.
Executive will faithfully and diligently perform her assigned duties,
which are summarized on Schedule
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1 to this Agreement. Executive will report directly to the Bank's
President. 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 objectives of the Bank or of
Glacier. Executive will assume any additional positions, duties, and
responsibilities as may reasonably be requested of her with or without
additional compensation, as appropriate and consistent with her duties
as summarized on Schedule 1.
4. EXTENT OF SERVICES. Executive will devote all of her 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 her
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 receive an annual salary of
$____________, 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
her 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 the greater of (a)
four weeks of paid vacation each year or (b) the vacation
benefits set forth in Glacier's schedule for senior employees
with Executive's years of service with the Bank, in addition to
all holidays observed by the Bank. Executive will not be able to
carry over or accumulate 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 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.
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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 her 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 her employment for Good Reason (defined
below), the Bank will pay Executive for the remainder of the Term
the compensation and other benefits she would have been entitled
to if her employment had not terminated.
c. Death or Disability. This Agreement terminates (1) if Executive
dies or (2) if Executive is unable to perform her 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 her
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 her 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
which may be in her desk at work, in her car, in place of
residence, or in any other location under her control.
e. Cause. "Cause" means any one or more of the following:
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(1) Willful misfeasance or gross negligence in the performance
of Executive's duties;
(2) Conviction of a crime in connection with her 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.
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 her 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 Glacier; or
(4) A relocation or transfer of Executive's principal place of
employment that would require Executive to commute on a
regular basis more than 20 miles each way from Coeur
d'Alene, Idaho, with the exception of travel to and from
Boise, Idaho.
9. CONFIDENTIALITY. Executive will not, after the date this Agreement was
signed, including during and after its Term, use for her 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 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 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.
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10. NONCOMPETITION. During the Term and the terms of any extensions or
renewals of this Agreement and for a period equal to the lessor of (a)
two years after Executive's employment with the Bank and/or Glacier has
terminated or (b) three years from the Closing of the Merger, 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 Kootenai, Ada or
Canyon County, Idaho (or any other counties in which the Bank or
Glacier may have a presence) 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. persuade or entice, or attempt to persuade or entice, any
employee of the Bank or Glacier to terminate her/her employment
with the Bank or Glacier; or
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 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 her to comply with these Sections. These
Sections will survive termination of this Agreement. Executive
represents that if her employment is terminated, whether
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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.
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 Kootenai 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.
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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 her 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 Kootenai 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.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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Signed: ___________________, 1999:
MOUNTAIN WEST BANK:
By /s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx
Its: President and CEO
EXECUTIVE:
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Ratified: ______________________, 1999
GLACIER BANCORP, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Its: President and CEO
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