EXHIBIT 10(G)
EMPLOYMENT AGREEMENT
AGREEMENT between Glacier Bancorp, Inc., hereinafter called "Company", and
Xxxxx X. Xxxxxxxx, hereinafter called "Executive"
RECITALS
A. Executive has served as Chief Financial Officer and Secretary/Treasurer and
is willing also to serve as Executive Vice President 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 Executive Vice President, Chief
Financial Officer and Secretary/Treasurer of the Company.
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 Executive Vice President,
Chief Financial Officer and Secretary/Treasurer. Executive will faithfully
and diligently perform his assigned duties, which are as follows:
(a) Executive Vice President. Duties and responsibilities as set forth in
the document annexed, entitled "Executive Vice President".
(b) Chief Financial Officer - Secretary/Treasurer. Duties and
responsibilities as set forth in the documents annexed, entitled
"Chief Financial Officer" and "Secretary/Treasurer".
(c) Report to Board. Executive will report directly to the Company's
President and Chief Executive Officer. 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. SALARY. Executive will receive an annual salary of $237,000.00, 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.
6. 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. 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 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.
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 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.
9. 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 9(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 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 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 9(d)(3) below.
(2) Termination by Executive. If Executive terminates Executive's
employment, with or without Good Reason, within two years following a
Change in Control, the Company 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 Company will: (i) pay Executive in 24 monthly
installments in an amount equal to two 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 years
following Executive's termination, at no cost to Executive, the
benefits described in Section 8(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 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 Company 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 Company terminates Executive's employment
for Cause, or (ii) two 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 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 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.
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 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.
11. NONCOMPETITION. During the Term of this Agreement and for a period of two
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.
12. 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 10 and 11 (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 10
or 11 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.
13. COVENANTS. Executive specifically acknowledges the receipt of adequate
consideration for the covenants contained in Sections 10 and 11 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.
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 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 10 or 11, the Company 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 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/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
President/CEO
Attest:
/s/ XxxXxx Xxxxxxxxx
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XxxXxx Xxxxxxxxx
Assistant Secretary
EXECUTIVE
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
