Exhibit 10.4
FIRST SECURITY BANK OF MISSOULA
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), signed as of July 14, 2005,
between FIRST SECURITY BANK OF MISSOULA ("FSB-Missoula") and Xxxxxxxxx Xxxxxxx
("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 XXXXXXXX FALLS HOLDING CO. ("TFHC") the parent company of
FIRST STATE BANK ("FSB-Xxxxxxxx Falls"), pursuant to which TFHC will merge
with and into Glacier, and FSB-Xxxxxxxx Falls will merge with and into
FSB-Missoula (collectively, the "Merger"). Upon consummation of the
Merger, the former FSB-Xxxxxxxx Falls offices will operate under the name
"First State Bank, a division of First Security Bank of Missoula."
B. Executive presently serves as Cashier and Corporate Secretary/Treasurer of
FSB-Xxxxxxxx Falls and will continue to do so until the Effective Date.
C. Glacier and FSB-Missoula desire Executive to be employed by FSB-Missoula
from and after the Effective Date, under the terms and conditions of this
Agreement.
D. Executive desires to be employed by FSB-Missoula 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. FSB-Missoula agrees to employ Executive, and Executive accepts
employment by FSB-Missoula on the terms and conditions set forth in this
Agreement. Executive's title will be "Assistant Vice President and
Operations Officer, First State Bank, a division of First Security Bank of
Missoula."
2. EFFECTIVE DATE AND TERM.
a. Term. The term of this Agreement ("Term") is five 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. FSB-Missoula will employ Executive as its Assistant Vice President
and Operations Officer of FSB-Xxxxxxxx Falls. Executive will be
responsible for the total operations of FSB-Xxxxxxxx Falls, and will
faithfully and diligently perform the duties assigned to her, which duties
will be consistent with her title and position. Executive will report
directly to FSB-Missoula's President and/or the Senior Vice President of
Operations. FSB-Missoula may, from time to time, modify Executive's
performance responsibilities to accommodate management objectives of
FSB-Missoula. 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 title and
position.
4. EXTENT OF SERVICES. Executive will devote all of her working time,
attention and skill to the duties and responsibilities referenced 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 FSB-Missoula's prior written consent, make or maintain any
investment in a business with which FSB-Missoula and/or Glacier has an
existing competitive or commercial relationship.
5. SALARY. Executive will receive an initial annual salary of $60,000, to be
paid in accordance with FSB-Missoula's regular payroll schedule.
Subsequent salary increases are subject to FSB-Missoula's annual review of
Executive's compensation and performance.
6. INCENTIVE COMPENSATION. For 2005, the amount of bonus to be paid to
Executive will be determined under FSB-Xxxxxxxx Fall's customary and usual
bonus criteria. For 2006 and each year thereafter, Executive will be
eligible to receive bonuses under FSB-Missoula's bonus plan(s), as in
effect at that time. In making such bonus determinations, FSB-Missoula's
board of directors will consider factors such as Executive's performance
of her duties and the safety, soundness and profitability of FSB-Missoula.
Executive's bonus will reflect Executive's contribution to the performance
of FSB-Missoula during the year.
7. VACATION AND BENEFITS.
a. Vacation and Holidays. Executive will receive three weeks of paid
vacation each year. Executive's ability to carry over or accumulate
vacation will be governed by FSB-Missoula'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
FSB-Missoula or Glacier may have in effect
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from time to time for its similarly situated employees, in
accordance with and subject to any policies adopted by
FSB-Missoula's or Glacier's board of directors with respect to the
plans or programs, including without limitation, any incentive or
employee stock incentive plan, deferred compensation plan and 401(k)
plan. Neither FSB-Missoula nor Glacier through this Agreement
obligates itself to make any particular benefits available to its
employees.
c. Business Expenses. FSB-Missoula will reimburse Executive for
ordinary and necessary expenses which are consistent with
then-current practice at FSB-Missoula (including, without
limitation, travel, entertainment, and similar expenses) and which
are incurred in performing and promoting FSB-Missoula's business.
Executive will present from time to time itemized accounts of these
expenses, subject to any limits of FSB-Missoula policy or the rules
and regulations of the Internal Revenue Service.
d. Automobile. For one year following the Effective Date, Executive
will continue to have exclusive use of the automobile she is
currently using at FSB-Xxxxxxxx Falls, and FSB-Missoula will pay for
all standard maintenance. No later than the first anniversary of the
Effective Date, Executive may purchase such automobile at the
then-current book value. After the first anniversary of the
Effective Date, Executive will be responsible for owning and
maintaining her own vehicle and will be eligible for mileage
reimbursement from FSB-Missoula.
8. TERMINATION OF EMPLOYMENT.
a. Termination By FSB-Missoula for Cause. If FSB-Missoula terminates
Executive's employment for Cause (defined below) before this
Agreement terminates, FSB-Missoula 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 FSB-Missoula. If FSB-Missoula terminates
Executive's employment without Cause before this Agreement
terminates, or Executive terminates her employment for Good Reason
(defined below), FSB-Missoula 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 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
FSB-Missoula. If termination occurs under this Section 8(c),
Executive or her
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estate will be entitled to receive all compensation and benefits
earned and expenses reimbursable through the date Executive's
employment terminated.
d. Return of FSB-Missoula Property. If and when Executive ceases, for
any reason, to be employed by FSB-Missoula, Executive must return to
FSB-Missoula all keys, pass cards, identification cards and any
other property of FSB-Missoula or Glacier (including the bank-owned
automobile referenced in Section 7(d), if still in use by
Executive). At the same time, Executive also must return to
FSB-Missoula 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 FSB-Missoula or Glacier. The obligations in this paragraph
include the return of documents and other materials that 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:
(1) Willful misfeasance or gross negligence in the performance of
Executive's duties;
(2) Conviction of a crime in connection with her duties; or
(3) Conduct demonstrably and significantly harmful to
FSB-Missoula, as reasonably determined on the advice of legal
counsel by FSB-Missoula'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 FSB-Missoula employees (or employees of a
successor or controlling entity of FSB-Missoula) 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) 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
FSB-Xxxxxxxx Falls'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 her own purposes or
disclose to any other person or entity any confidential business
information concerning FSB-Missoula or Glacier or their business
operations, unless (a) FSB-Missoula or Glacier consents to the use or
disclosure
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of their respective confidential information; (b) the use or disclosure is
consistent with Executive's duties under this Agreement; (c) disclosure is
required by law or court order; or (d) the information is made or
otherwise becomes public. For purposes of this Agreement, confidential
business information includes, without limitation, trade secrets, 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 FSB-Missoula
or Glacier. Executive will also treat the terms of this Agreement as
confidential business information.
10. RESTRICTIVE COVENANTS.
a. Competitive Activities. During the period of her employment and for
one (1) year after Executive's employment with FSB-Missoula and/or
Glacier has ended, 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 Xxxxxxx County, Montana, which is
competitive with the business of FSB-Missoula 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
FSB-Missoula 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 FSB-Missoula or Glacier to terminate his/her employment
with FSB-Missoula or Glacier, or (ii) any person or entity to
terminate, cancel, rescind or revoke its business or contractual
relationships with FSB-Missoula or Glacier.
11. ENFORCEMENT.
a. FSB-Missoula and Executive stipulate that, in light of all of the
facts and circumstances of the relationship between Executive and
FSB-Missoula, 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
FSB-Missoula'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 FSB-Missoula request the court to reform these
provisions to restrict Executive's use of confidential information
and Executive's ability to compete with FSB-Missoula and Glacier to
the maximum extent, in time, scope of activities, and geography, the
court finds enforceable.
b. Executive acknowledges FSB-Missoula 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
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attempts to do so. For this reason, under these circumstances,
FSB-Missoula, 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
FSB-Missoula 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
FSB-Missoula 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 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 FSB-Missoula'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. Venue and Governing Law. All proceedings will be held at a place
designated by the arbitrator in Missoula, 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 9 or 10, FSB-Missoula will have the right to
initiate the court proceedings described in Section 11(b), in lieu
of an arbitration proceeding under that 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
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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
FSB-Missoula'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, that 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 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 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, Montana.
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 she 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]
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This Employment Agreement is signed as of July 14, 2005:
FIRST SECURITY BANK OF MISSOULA:
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxx, Chief Executive Officer
EXECUTIVE:
/s/ Xxxxxxxxx Xxxxxxx
-------------------------------------------
Xxxxxxxxx Xxxxxxx
Ratified as of July 14, 2005:
GLACIER BANCORP, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxxx
President & Chief Executive Officer
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