EXHIBIT 10.4
[CITIZENS BANK]
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("AGREEMENT"), signed as of April 20, 2006,
between _____________ ("CDC Bank") and __________ ("EXECUTIVE") and ratified by
GLACIER BANCORP, INC. ("GLACIER"), takes effect on the effective date of the
Holding Company Merger ("EFFECTIVE DATE") referenced below.
RECITALS
A. Glacier has entered into a Plan and Agreement of Merger ("MERGER
AGREEMENT") with CITIZENS DEVELOPMENT COMPANY ("CDC"), the parent company
of [CDC Bank] pursuant to which CDC will merge with and into a Montana
corporation to be formed by Glacier ("HOLDINGS"), and [CDC Bank] will
become a subsidiary of Holdings (the "HOLDING COMPANY MERGER"). The
parties hereto anticipate that for an initial transition period following
the Holding Company Merger (the "TRANSITION PERIOD"), [CDC Bank] will
operate as a subsidiary of Holdings and, following the Transition Period,
will merge with and into _________ ["GBCI Bank"] (the "BANK MERGER"). Upon
consummation of the Bank Merger, the former [CDC Bank] offices will
operate under the name ["CDC Bank"], a division of [GBCI Bank"].
B. Executive presently serves as President of [CDC Bank] and will continue to
do so until the Effective Date.
C. The parties hereto desire Executive to be employed under the terms and
conditions of this Agreement. For purposes of this Agreement, the term
"EMPLOYER" means [CDC Bank] with respect to the Transition Period and
First Security with respect to the remainder of the Term (defined below)
following the Transition Period.
D. This Agreement supersedes 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; TITLE. Employer agrees to employ Executive, and Executive
accepts employment by Employer on the terms and conditions set forth in
this Agreement. During the Transition Period, Executive's title will be
"President" of [CDC Bank]. After the Transition Period, Executive will
have such title(s) as determined by [GBCI Bank's] board of directors,
taking into consideration the duties set forth in Section 3.
2. TERM.
(a) Term. The term of this Agreement ("Term") is three years, beginning
on the Effective Date.
1
EXHIBIT 10.4
(b) Abandonment or Termination of the Merger. This Agreement is void if
the Merger Agreement is terminated for any reason.
3. DUTIES.
(a) Transition Period. While employed as President of [CDC Bank],
Executive will be responsible for total management and performance
of [CDC Bank] and will faithfully and diligently perform the duties
assigned to him, which duties will be consistent with his title and
position. Executive will also be responsible for the integration of
[CDC Bank's] operations with those of [GBCI Bank] in anticipation of
the Bank Merger. While employed as President of [CDC Bank],
Executive will report to [GBCI Bank's] Board of Directors.
(b) Post-Transition Period. Following the Bank Merger, [GBCI Bank] may,
from time to time, modify Executive's performance responsibilities
to accommodate management objectives of [GBCI Bank]. Following the
Bank Merger, Executive will report to GBCI Bank's] President.
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
his title and position.
4. EXTENT OF SERVICES. Executive will devote all of his working time,
attention and skill to the duties and responsibilities referenced in
Section 3. Executive may participate in other businesses as a passive
investor if such participation does not interfere with his duties under
Section 3, but (a) Executive may not actively participate in the operation
or management of those businesses, and (b) Executive may not, without
Employer's prior written consent, make or maintain any investment in a
business with which Employer and/or Glacier has an existing competitive or
commercial relationship.
5. SALARY. Executive will receive an initial annual salary of $_________, to
be paid in accordance with Employer's regular payroll schedule. Subsequent
salary increases are subject to Employer's annual review of Executive's
compensation and performance.
6. INCENTIVE COMPENSATION. Executive will be eligible to receive bonuses
under Glacier's bonus plan(s). In making bonus determinations, factors
such as Executive's performance of his duties and the safety, soundness
and profitability of Employer will be considered. Executive's bonus will
reflect Executive's contribution to the performance of Employer during the
year.
7. VACATION AND BENEFITS.
(a) Vacation and Holidays. Executive will receive ____ weeks of paid
vacation each year. Executive's ability to carry over or accumulate
vacation will be governed by Employer'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
that Employer or Glacier may have in effect
2
EXHIBIT 10.4
from time to time for its similarly situated employees, in
accordance with and subject to any policies adopted by Employer or
Glacier's board of directors with respect to the plans or programs.
Neither Employer nor Glacier through this Agreement obligates itself
to make any particular benefits available to its employees.
(c) Business Expenses. Employer will reimburse Executive for ordinary
and necessary expenses that are consistent with Employer's
then-current practice (including, without limitation, travel,
entertainment, and similar expenses) and that are incurred in
performing and promoting Employer's business. Executive will present
from time to time itemized accounts of these expenses, subject to
any limits of Employer's policy or the rules and regulations of the
Internal Revenue Service.
8. TERMINATION OF EMPLOYMENT.
(a) Termination By Employer for Cause; Resignation without Good Reason.
If, before this Agreement terminates, Employer terminates
Executive's employment for Cause (defined below) or if Executive
resigns without Good Reason (defined below), Employer will pay
Executive the salary earned and expenses reimbursable under this
Agreement incurred through the date of such termination or
resignation. Executive will have no right to receive compensation or
other benefits for any period thereafter under this Section 8(a).
(b) Termination By Employer without Cause; Resignation for Good Reason.
If, before this Agreement terminates, Employer terminates
Executive's employment without Cause, or Executive terminates his
employment for Good Reason, then contingent upon Executive's
execution of a release of any and all claims arising out of such
termination or his employment, Employer will pay Executive a lump
sum payment equal to _______ times Executive's monthly 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 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
Employer. If termination occurs under this Section 8(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) Return of Employer Property. If and when Executive ceases, for any
reason, to be employed by Employer, Executive must return to
Employer all keys, pass cards, identification cards and any other
property of Employer or Glacier. At the same time, Executive also
must return to Employer all originals and copies (whether in hard
copy, electronic or other form) of any documents, drawings, notes,
3
EXHIBIT 10.4
memoranda, designs, devices, diskettes, tapes, manuals, and
specifications which constitute proprietary information or material
of Employer or Glacier. The obligations in this paragraph include
the return of documents and other materials that may be in his desk
at work, in his car, in place of residence, or in any other location
under his 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 his duties; or
(3) Conduct demonstrably and significantly harmful to Employer, as
reasonably determined on the advice of legal counsel by
Employer's board of directors.
(f) Good Reason. "Good Reason" means either 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 of Employer's employees (or employees of a
successor or controlling entity of Employer) formerly
benefited;
(2) A relocation or transfer of Executive's principal place of
employment that would require Executive to commute on a
regular basis more than ninety (90) miles each way from
CSB-Xxxxxxxx'x present main office location.
9. CONFIDENTIALITY. Executive will not, after the date this Agreement is
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 Employer or Glacier or their business operations,
unless (a) Employer or Glacier consents to the use or disclosure of its
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 Employer 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 his employment and for
one year after Executive's employment with Employer 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
4
EXHIBIT 10.4
other similar services to any person or entity engaged in any
business within _________ County, Montana, that is competitive with
the business of Employer 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 Employer
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
Employer or Glacier to terminate his/her employment with Employer or
Glacier, or (ii) any person or entity to terminate, cancel, rescind
or revoke its business or contractual relationships with Employer or
Glacier.
11. ENFORCEMENT.
(a) Employer and Executive stipulate that, in light of all of the facts
and circumstances of the relationship between Executive and
Employer, 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 Employer'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
Employer request the court to reform these provisions to restrict
Executive's use of confidential information and Executive's ability
to compete with Employer and Glacier to the maximum extent, in time,
scope of activities, and geography, the court finds enforceable.
(b) Executive acknowledges that Employer 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 attempts to do so.
For this reason, under these circumstances, Employer, 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 Employer 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
Employer 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 Employer's enforcement of a remedy by way of injunction
will not prevent Executive from earning a livelihood.
5
EXHIBIT 10.4
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 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 9 or 10, Employer will have the right to initiate
the court proceedings described in Section 11(b), in lieu of an
arbitration proceeding under this 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 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
[CDC Bank's],[GBCI Bank'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.
6
EXHIBIT 10.4
(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. Employer or
Glacier may assign this Agreement to a wholly owned subsidiary of
Glacier.
(f) Amendment. This Agreement may be modified only through a written
instrument signed by all 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 County, Montana.
(i) Counterparts. This Agreement may be executed in one or more
counterparts, including by facsimile, 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 he 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]
7
EXHIBIT 10.4
This Employment Agreement is signed as of April 20, 2006:
[CDC BANK]:
By
-----------------------------------------
EXECUTIVE:
---------------------------------------------
Ratified as of April 20, 2006:
GLACIER BANCORP, INC.
By
------------------------------------------
Xxxxxxx X. Xxxxxxxx
President & Chief Executive Officer
8
