EMPLOYMENT AGREEMENT
AGREEMENT
effective January 1, 2008 between Glacier Bancorp, Inc., hereinafter called
“Company” and Xxx X. Xxxxx, hereinafter called “Executive”
RECITALS
| A. |
Executive
has served as Executive Vice President and Chief Administrative Officer
of
the Company.
|
| B. |
The
Company desires Executive to be retained by the Company under the
terms
and conditions of this Agreement.
|
| C. |
Executive
desires to be retained by 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 and Chief
Administrative Officer of the Company. During the term of this Agreement,
Executive will serve as a director of subsidiary
banks.
|
| 2. |
Term.
The term of this Agreement (“Term”) is one year, beginning January 1,
2008.
|
| 3. |
Duties.
The Company will employ Executive as its Executive Vice President
and
Chief Administrative Officer. Executive will faithfully and diligently
perform his assigned duties, which are as
follows:
|
| (a) |
Chief
Administrative Officer.
The Executive shall have such duties and responsibilities as assigned
by
the Company's President and Chief Executive Officer, which shall
be
customary for Chief Administrative Officers of comparable publicly
reporting companies.
|
| (b) |
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 $195,700.00, 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.
|
2
| (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. Reimbursement will
be
made as soon as practicable but no later than the last day of the
calendar
year following the calendar year in which the expenses were incurred.
The
amount of expenses eligible for reimbursement in one calendar year
will
not affect the amount of expenses eligible for reimbursement in any
other
calendar year.
|
| 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, within 10 business days following his
termination of employment, 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) before
this
Agreement terminates, the Company will pay Executive a payment having
a
present value equal to the compensation and other benefits he would
have
been entitled to for the remainder of the term if his employment
had not
terminated. All payments made pursuant to this Section 9(b) shall
be
completed no later than March 15 of the calendar year following the
calendar year in which Executive’s employment
terminates.
|
| (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), the Company shall pay Executive or his estate, within
10
business days following his termination of employment, all compensation
and benefits earned and expenses reimbursable through the date Executive’s
employment terminated.
|
3
| (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) (A)
terminates Executive’s employment within 2 years following a Change in
Control (as defined below), or (B) 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)(A) or Section 9(d)(2) is triggered in accordance
with
its terms, the Company will: (i) subject to Sections 9(e) and 9(j)
below,
beginning within 30 days after Executive’s separation from service as
defined by Treasury Regulation § 1.409A-1(h) (“Separation from Service”),
pay Executive in 24 substantially equal monthly installments in an
overall
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 benefits substantially
similar to those benefits or reimburse Executive’s out-of-pocket expenses
of substantially similar type and value. Subject to Sections 9(e)
and 9(j)
below, if Section 9(d)(1)(B) is triggered in accordance with its
terms,
beginning within 30 days after a Change in Control, the Company will
pay
Executive in 24 substantially equal monthly installments in an overall
amount equal to two times the Executive’s annual salary (determined on the
day before the date Executive’s employment was
terminated).
|
4
| (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/or
after
Executive’s termination of employment;
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.
|
5
| (h) |
Good
Reason.
Executive terminates employment for “Good Reason” if all four of the
following criteria are satisfied:
|
| (1) |
Any
one or more of the following conditions (each a “Condition”) arises
without Executive’s consent:
|
(A) The
material reduction of Executive’s salary, 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;
(B) The
material diminution in Executive’s authority or duties as of the date of this
Agreement;
(C) The
material breach of this Agreement by the Company, or
(D) A
material relocation or transfer of Executive’s principal place of employment to
a location outside Flathead County, Montana.
| (2) |
Executive
gives notice to the Company of the Condition within 90 days of the
initial
existence of the Condition.
|
| (3) |
The
Company fails to reasonably remedy the Condition within 30 days following
receipt of the notice described in paragraph (2)
above.
|
| (4) |
Executive
terminates employment within 180 days following the initial existence
of
the Condition.
|
| (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 Treas Reg. § 1.409A-3(i)(5).
|
| (j) |
Section
409A Compliance. Notwithstanding
anything in this Agreement to the contrary, if any amounts that become
due
under this Agreement on account of the termination of Executive’s
employment constitute “nonqualified deferred compensation” within the
meaning of Code Section 409A, payment of such amounts shall not commence
until Executive incurs a Separation from Service (as defined in Section
9(d)(3)). If, at the time of Executive’s Separation from Service under
this Agreement, Executive is a “specified employee” (under Internal
Revenue Code Section 409A), any amount that constitutes “nonqualified
deferred compensation” within the meaning of Code Section 409A that
becomes payable to Executive on account of Executive’s Separation from
Service (including any amounts payable pursuant to the preceding
sentence)
will not be paid until after the end of the sixth calendar month
beginning
after Executive’s Separation from Service (the “409A Suspension Period”).
Within 14 calendar days after the end of the 409A Suspension Period,
Executive shall be paid a lump sum payment in cash equal to any payments
delayed because of the preceding sentence, together with interest
on them
for the period of delay at a rate not less than the average prime
interest
rate published in the Wall Street Journal on any day chosen by the
Company
during that period. Thereafter, Executive shall receive any remaining
payments as if there had not been an earlier
delay.
|
6
| 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 §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.
|
7
| (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) |
8
| (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) |
| (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.
|
9
Signed
this 27th
day of
December, 2007.
| GLACIER BANCORP, INC. | ||
| |
|
|
| By: | ||
|
Xxxxxxx X. Xxxxxxxx |
||
| President/CEO | ||
| Attest: | |||
| By: | |||
|
XxxXxx Xxxxxxxxx |
|||
|
Secretary
|
| EXECUTIVE | ||
| |
|
|
| By: | ||
|
Xxx X. Xxxxx |
||
10
