EXHIBIT 10.(c)
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, 2002.
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 $175,000.00, 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 greater of (1) the payment and benefits
described in Section 9(d)(3) below, or (2) the
compensation and other benefits he would have been
entitled to for the remainder of the Term if his
employment had not been terminated.
(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 9(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 (U 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.
GLACIER BANCORP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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President/CEO
Attest: By:
By: /s/ XxxXxx Xxxxxxxxx
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Assistant Secretary
EXECUTIVE
By: /s/ Xxxxx X. Xxxxxxxx
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