Exhibit 10.3
AGREEMENT effective January 1, 2010 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 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 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, 2010. |
| 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 include the following: |
| |
(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 $201,571.00, 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, if any. 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) |
2
| |
|
|
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. 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. The following provisions shall survive
the expiration of the Term of this Agreement and the termination of Executive’s employment. |
| |
(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 or confidential information or material
of the Company or 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
| |
(5) |
|
Any other legitimate business reason as determined by the
Company’s board of directors. |
| |
(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 |
6
| |
|
|
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. |
| 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, proprietor, partner, member, 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. |
7
| |
(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 |
8
| |
|
|
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. In the event of any dispute or legal or
equitable action arising from this Agreement, the prevailing party shall be entitled
to all of its out-of-pocket expenses and costs including, without
limitation, reasonable attorneys’ fees and costs. |
| |
| |
(d) |
|
Waiver. The failure of any party to insist upon strict performance of
any of the terms and provisions of this Agreement shall not be construed as a waiver
or relinquishment of any such terms or conditions or of any other term or condition
and the same shall be and remain in full force and effect. 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. |
9
| |
(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 29th day of December, 2009.
| |
|
|
|
|
| |
GLACIER BANCORP, INC.
|
|
| |
| |
By: |
/s/ Xxxxxxx X. Xxxxxxxx
|
|
| |
|
Xxxxxxx X. Xxxxxxxx |
|
| |
|
President/CEO |
|
| |
| |
|
|
|
|
Attest:
|
|
| |
| By: |
/s/ XxxXxx Xxxxxxxxx
|
|
| |
XxxXxx Xxxxxxxxx |
|
| |
Secretary |
|
| |
| |
|
|
|
|
| |
EXECUTIVE
|
|
| |
| |
By: |
/s/ Xxx X. Xxxxx
|
|
| |
|
Xxx X. Xxxxx |
|
| |
|
|
|
| |
10
