EXHIBIT 10(d)
EMPLOYMENT AGREEMENT
AGREEMENT between First Security Bank of Missoula, ("Bank"),
and Xxxxxxx X. Xxxxxxx, ("Executive"), and ratified by Glacier
Bancorp, Inc. ("Company"),
RECITALS
A. First Security Bank of Missoula, ("Bank"), is a wholly owned subsidiary of
Glacier Bancorp, Inc., ("Company").
B. Executive is the Chief Executive Officer of the Bank and a director of the
Bank.
C. The Bank desires Executive to continue his employment at the Bank under
the terms and conditions of this Agreement.
D. Executive desires to continue his employment at the Bank under the terms
and conditions of this Agreement.
AGREEMENT
1. EMPLOYMENT. The Bank agrees to employ Executive and Executive accepts
employment by the Bank on the terms and conditions set forth in this
Agreement. Executive's title will be the Chief Executive Officer of the
Bank. During the term of this Agreement, Executive will serve as a
director of the Bank.
2. TERM. The term of this Agreement is for one year beginning January 1,
2005.
3. DUTIES. The Bank will employ Executive as its Chief Executive Officer.
Executive will faithfully and diligently perform his assigned duties,
which are as follows:
(a) Bank Performance. Executive will be responsible for all aspects of
the Bank's performance, including without limitation, directing that
daily operational and managerial matters are performed in a manner
consistent with the Bank's and Company's policies.
(b) Development and Preservation of Business. Executive will be
responsible for the development and preservation of banking
relationships and other business development efforts (including
appropriate civic and community activities) in Missoula County.
(c) Report to Board. Executive will report directly to the Bank's board
of directors and to the Chief Executive Officer of the Company. The
Bank'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 Bank or 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 Bank's prior written consent, make or maintain any investment
in a business with which the Bank or Company has an existing competitive
or commercial relationship.
5. SALARY. Executive will receive an annual salary of $138,000.00 to be paid
in accordance with the Bank's regular payroll schedule.
6. INCENTIVE COMPENSATION. During the Term, the Bank's board of directors,
subject to ratification by Company's board of directors, will determine
the amount of bonus to be paid by the Bank to Executive for that year. In
making this determination, the Bank's board of directors will consider
factors such as Executive's performance of his duties and the safety,
soundness and profitability of the Bank. Executive's bonus will reflect
Executive's contribution to the performance of the Bank 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 Bank's and 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 Bank.
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 Bank or 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 Bank'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). Neither the Bank nor Company, through this Agreement,
obligate itself to make any particular benefits available to its
employees.
(c) Business Expenses. The Bank will reimburse Executive for ordinary
and necessary expenses which are consistent with past practice at
the Bank (including, without limitation, travel, entertainment, and
similar expenses) and which are incurred in performing and promoting
the Bank's business. Executive will present from time to time
itemized accounts of these expenses, subject to any limits of the
Bank policy or the rules and regulations of the Internal Revenue
Service.
9. TERMINATION OF EMPLOYMENT.
(a) Termination by the Bank for Cause. If the Bank terminates
Executive's employment for Cause (defined below) before this
Agreement terminates, the Bank 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 Bank. If the Bank terminates Executive's
employment without Cause before this Agreement terminates, or
Executive terminates his employment for Good Reason (defined below),
the Bank 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 Bank. 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 Bank. If the Bank, 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 one year 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 one year
following a Change in Control, the Bank 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 Bank will: (i) pay Executive in 12 monthly
installments in an amount equal to the Executive's annual
salary (determined as of the day before the date Executive's
employment was terminated) and (ii) maintain and provide for
one year 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 Bank 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 Bank 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 Bank
terminates Executive's employment for Cause, or (ii) one year
after a Change of Control occurs.
(f) Return of Bank Property. If and when Executive ceases, for any
reason, to be employed by the Bank, Executive must return to the
Bank all keys, pass cards, identification cards and any other
property of the Bank. At the same time, Executive also must return
to the Bank all originals and copies (whether in memoranda, designs,
devices, diskettes, tapes, manuals, and specifications) which
constitute proprietary information or material of the Bank. 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 Bank, as
reasonably determined on the advice of legal counsel by the
Bank'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 other
executive officers within the Company (or executive officers
of a successor or controlling entity of the Bank) 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 Bank, or
(4) A relocation or transfer of Executive's principal place of
employment outside Missoula 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 Bank, 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 Bank or its business operations, unless (1) the
Bank 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 Bank or Company. Executive will
also treat the terms of this Agreement as confidential business
information.
11. NONCOMPETITION. During the Term and the terms of any extensions or
renewals of this Agreement and for a period equal to one year after
Executive's employment with the Bank and 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
Bank or Company may have a presence which is competitive with the
business of the Bank or 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 Bank or Company or a subsidiary to terminate his/her employment
with the Bank 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 Bank or Company.
12. ENFORCEMENT.
(a) The Bank and Executive stipulate that, in light of all of the facts
and circumstances of the relationship between Executive and the
Bank, 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 Bank's and
Company'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 the
Bank request the court to reform these provisions to restrict
Executive's use of confidential information and Executive's ability
to compete with the Bank and Company to the maximum extent, in time,
scope of activities and geography, the court finds enforceable.
(b) Executive acknowledges the Bank and 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 Bank, 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 Bank 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 or 11 and that
the Bank 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 Bank'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 Bank 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 Bank'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, 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 and ratified by the Company.
(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 17th day of February, 2005.
FIRST SECURITY BANK OF MISSOULA
/s/ Xxxxx X. Xxxxxxxx
-----------------------
Xxxxx X. Xxxxxxxx, Chairman
Attest By:
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, Secretary
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxx
Ratified
GLACIER BANCORP, INC.
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
President/CEO
