EXHIBIT 10(h)
GLACIER BANCORP, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
(AMENDED AND RESTATED AS OF JANUARY 1, 2005)
This Agreement entered into as of this _____day of ____________, 20____ by
and between Glacier Bancorp, Inc. (the "Company")
and _____________________________________________________________________ (the
"Executive"), shall constitute the entire agreement between the parties
identified hereto, and shall supersede and nullify the Supplemental Executive
Retirement Agreement dated _________ ___, 19__ between the Company and the
Executive.
WHEREAS, the Executive currently is employed as a senior executive
officer of the Company, is expected to continue in this capacity, and is
subject to having his or her annual allocations under the Company's tax
qualified retirement plans reduced due to (i) applicable federal tax laws,
and/or (ii) his participation in the Company's 2005 Deferred Compensation
Plan; and
WHEREAS, the Company desires to retain the services of the
Executive to the Company and its subsidiaries ("Glacier"), and as such
wishes to provide the Executive with supplemental retirement income as a
means to restore lost accruals under Glacier's tax-qualified retirement
plans.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements hereinafter contained, and other good and
valuable consideration, receipt of which is hereby acknowledged, the
parties hereto agree to this Agreement as follows:
ARTICLE I
DEFINITIONS
"Account" shall mean the bookkeeping account maintained by the
Company to which annual contributions by the Company will be credited
according to the terms of this Agreement.
"Agreement" shall mean this agreement between the Executive
and the Company.
"Annual Addition" shall have the meaning set forth in Section
415 of the Code and any regulations thereunder.
"Beneficiary" shall mean the person or persons designated by
the Executive to receive any benefits payable under the Agreement in the
event of the Executive's death. Such person or persons shall be designated
in writing on an Election Form provided for this purpose by the Company's
Board of Directors, and may be changed from time to time by similar
written notice. In the absence of a written designation, the Beneficiary
shall be the Participant's surviving spouse, if any or if none, his
estate.
"Benefits" shall mean, collectively, the benefits payable
under Articles II
and III of the Agreement.
"Change in Control" is defined in the Employment Agreement,
and shall be defined in the same manner for purposes of this Agreement.
Any amendment to said Employment Agreement that modifies this definition
shall be deemed to apply with equal force, effect, and timing to the
definition of Change in Control for purposes of this Agreement, except
that a modification that may adversely affect a Participant shall be
ineffectual as to the Executive unless he consents in writing to be bound
by the modification.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Company" shall mean Glacier Bancorp, Inc.
"Compensation" shall mean the amount of W-2 earnings paid to
the Executive by the Company (plus any amounts withheld from the Executive
under a 401(k) Plan or cafeteria plan sponsored by the Company) within a
Plan Year
"Deferred Compensation Plan" shall mean the Company's 2005
Deferred Compensation Plan, as such plan may be amended from time to time.
"Disability" shall have the meaning set forth in, and be
determined in accordance with, Section 9(b) of the Employment Agreement.
"Election Form" shall mean the Supplemental Executive Retirement Agreement
Election Form (substantially in the form attached hereto as Exhibit A). by which
the Executive identifies a Beneficiary and method of distribution of the balance
of the Executive's Account described herein. In the absence, at any time, of a
duly executed Election Form, the distribution election form applicable to the
Executive's account under the Deferred Compensation Plan shall apply to the
Executive's Account under this Agreement (to the extent such election is
reasonably applicable).
"Employment Agreement" shall mean the Executive's employment
agreement with the Company, as such agreement may be amended from time to
time.
"Executive" shall mean _______________________________.
"Just Cause" shall have the meaning set forth in, and be
determined in accordance with the Employment Agreement.
"Plan Year" shall mean the calendar year, with the first Plan Year of the
restated Plan being calendar year 2005.
"Tax-qualified Plan" shall mean any plan that is both
maintained by the Company or a member of its controlled group and intended
to qualify under Section 401 of the Code (whether or not the plan so
qualifies).
ARTICLE II
RETIREMENT BENEFITS FOR THE EXECUTIVE
As of the close of each Plan Year, the Company will credit to
the Executive's Account an amount equal to the difference between -
(i) the employer contributions that would have been allocated to the
Executive's accounts under the Tax-qualified Plans if not for either
the limitations imposed by Section 401 of the Code or the
Executive's participation in the Deferred Compensation Plan, and
(ii) the Annual Additions actually credited to the Executive under the
Tax-qualified Plans.
For each Plan Year ending before 2005, the amount credited to
the Executive's Account shall appreciate or depreciate in accordance with
the investment measure selected by the Executive in an Election Form,
executed in a Plan Year ending before 2005.
As of the end of each Plan Year ending after 2004, the
Executive's Account shall be credited with a rate of return (which may be
positive or negative) equal to fifty percent (50%) of the
return-on-average-equity of common stock issued by Glacier Bancorp, Inc.,
as of December 31 of the Company's most recently-completed fiscal year.
The Executive's Account balance shall be paid to the Executive
in five substantially equal annual installments, with the first
installment due on the first day of the second month after he leaves
employment, unless during 2005 and before the Executive leaves employment
with the Company for any reason, the Executive has elected an alternative
form for distribution pursuant to an Election Form executed and accepted
by the Company, in which case the Executive shall be paid in cash or in
the form of a check as follows:
1. in a lump sum; or
2. in substantially equal annual payments over a period of ___years
(not to exceed 10 years from the date the Executive ceases service
with the Company).
Notwithstanding the foregoing, but only to the extent required
under federal banking law, the amount payable hereunder shall be reduced
to the extent that on the date of the Executive's termination of
employment such reduction is necessary to avoid subjecting the Company to
liability under Section 280G of the Code. In addition, any payments made
to the Executive pursuant to this Agreement, or otherwise, are subject to
and conditioned upon their compliance with 12 U.S.C. Section 1828(k) and
any regulations promulgated thereunder.
ARTICLE III
DEATH BENEFITS
Unless otherwise elected by the Executive in an Election Form
filed in 2005 and before the Executive terminates employment with the
Company for any reason, in the event that the Executive dies before
receiving all benefit payments provided under Article II hereof, the
Company shall pay to the Executive's Beneficiary a lump sum payment,
within 60 days following the Executive's death, in an amount equal to the
balance of the Executive's Account.
ARTICLE IV
SOURCE OF BENEFITS
The primary source of Benefits shall be the general assets of
the Company. However, the Company may establish and fund an irrevocable
trust (subject to Article VIII and having terms consistent therewith),
whereby assets of the Company will be held by such trust pursuant to such
Trust Agreement, subject to claims by general creditors of the Company by
appropriate judicial action as provided by such Trust. Any insurance
policy or any other asset acquired or held by the Company in connection
with the liabilities assumed by it hereunder, shall not be deemed to be
held under any trust for the benefit of the Executive or his surviving of
the Company, but shall be, and remain, a general, unpledged, unrestricted
asset of the Company. Neither Executive nor his Beneficiary shall be named
as owner of any insurance policy, if any, held in connection with the
liabilities hereunder.
The trustee of the trust established hereunder shall inform
the Board annually prior to the commencement of each fiscal year as to the
manner in which trust assets shall be invested. In the event that funds
from the trust are at any time insufficient to pay Benefits, the
obligation to pay Benefits shall constitute an unfunded, unsecured promise
by the Company to provide such payments as and to the extent such Benefits
become payable. In such case, Benefits shall be paid from the general
assets of the Company, and no person shall, by virtue of this Agreement,
have any interest in such assets (other than as an unsecured creditor of
the Company).
ARTICLE V
ASSIGNMENT
Except as otherwise is provided by this Agreement, it is
agreed that neither the Executive nor any Beneficiary of the Executive
shall have any right to commute, sell, assign, transfer, encumber and
pledge or otherwise convey the right to receive any Benefits hereunder,
which Benefits and the rights thereto are expressly declared to be
nonassignable and nontransferable.
ARTICLE VI
NO RETENTION OF SERVICES
The Benefits payable under this Agreement shall be independent of, and in
addition to, any other employment agreement that may exist from time to time
between the parties hereto, or any other compensation payable by the Company to
the Executive, whether salary, bonus, retirement income under employee benefit
plans sponsored or maintained by the Company, or otherwise. This Agreement shall
not restrict the right of the Company to terminate the Executive's employment,
or restrict the right of the Executive to terminate employment.
ARTICLE VII
UNSECURED RIGHTS OF THE EXECUTIVE
The rights of the Executive and of his Beneficiary under this Agreement
shall be solely those of an
unsecured creditor of the Company.
ARTICLE VIII
CHANGE IN CONTROL;
OR TERMINATION FOR JUST CAUSE
The provisions of this Article shall supersede any provisions of this
Agreement to the contrary. At any time before but not more than five business
days after a Change in Control, the Company shall contribute to Trust associated
with the Agreement (the "Trust") an amount equivalent to the aggregate amount
payable to the Executive pursuant to this Agreement, which amount would then be
used to assist the Company in making eventual payment to the Executive under the
terms and conditions of the Agreement. The Trust and any assets held therein to
assist the Company in meeting its obligations under the Agreement will conform
to the provisions of the model trust, as described in Revenue Procedure 92-64
(or any successor thereto). It is the intention of the parties that the
Agreement be unfunded for tax purposes and for purposes of Title I of the
Employee Retirement Income Security Act of 1974, as amended. Subsequent to the
Change in Control, the Company shall continue to be obligated to provide for
Benefits pursuant to Article II hereof, which additional Benefits shall be
payable pursuant to Articles II and III hereof.
In the event of the Executive's termination of employment for Just Cause,
no Benefits shall be payable hereunder, and the Company shall have no further
obligations hereunder, unless and to the extent that the Company determines, in
its sole and absolute discretion, to the contrary.
ARTICLE IX
REORGANIZATION
The Company agrees that it will not merge or consolidate with any other
corporation organization, or permit its business activities to be taken over by
any other organization, unless and until the succeeding or continuing
corporation or other organization shall expressly assume the rights and
obligations of the Company herein set forth. The Company further agrees that it
will not cease its business activities or terminate its existence, other than as
heretofore set forth in this paragraph, without having made adequate provision
for the fulfillment of its obligation hereunder.
ARTICLE X
AMENDMENTS
This Agreement may be revoked or be amended in whole or in part only by a
writing signed by all of the parties hereto.
ARTICLE XI
STATE LAW
This Agreement shall be construed and governed in all respects under and by the
laws of the State of Montana, except to the extent preempted by federal law. If
any provision of this Agreement shall be held by a court of competent
jurisdiction to be invalid or unenforceable, the remaining provisions hereof
shall
continue to be fully effective.
ARTICLE XII
HEADINGS
Heading and subheadings in this Agreement are inserted for convenience and
reference only and constitute no part of this Agreement.
ARTICLE XIII
COUNTERPARTS
This Agreement may be executed in an original and any number of counterparts,
each of which shall constitute an original of one and the same instrument.
ARTICLE XIV EFFECTIVE DATE
This Agreement shall become effective on the date identified in the Preamble
hereto, subject to such changes as the Company's Board of Directors may in its
discretion deem to be necessary or proper. Unless terminated earlier in
accordance with Article XVII, this Agreement shall remain in effect during the
term of employment of the Executive and until all benefits payable hereunder
have been made.
ARTICLE XV
INTERPRETATION OF THE AGREEMENT
The Board of Directors of the Company shall have sole and absolute discretion to
administer, construe, and interpret the Agreement, and the decisions of the
Board shall be conclusive and binding on all affected parties (unless such
decisions are arbitrary and capricious).
ARTICLE XVI
ARBITRATION OF DISPUTES
In the event that any dispute arises between the Executive and the Company as to
the terms or interpretation of this Agreement, said dispute shall be referred to
the American Arbitration Company, and the parties expressly consent to submit
said dispute to be so arbitrated. The decision of the American Arbitration
Company shall be final and binding on all the parties, and there shall be no
appeal therefrom.
ARTICLE XVII
TERMINATION OF AGREEMENT
The Company and the Executive (or his Beneficiary, if the Executive is deceased)
may terminate this Agreement at any time in a writing executed by the parties.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be signed in its corporate name by its duly authorized officer, impressed
with its corporate seal, and properly attested to, and the Executive has
hereto set his hand, all on the day and year first above written.
Witnessed by: EXECUTIVE
__________________________________ _________________________
Witnessed by: GLACIER BANCORP, INC.
________________________________ By____________________________________
A member of the Board of Directors
GLACIER BANCORP, INC.
2005 SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
-------------
ELECTION FORM
-------------
ELECTION, executed this __ day of ________, ____, by and between me,
(_______________), in my individual capacity as an Executive, and Glacier
Bancorp, Inc. (the "Company"), in its capacity as an Employer. This Election is
made pursuant to, and accordance with the provisions of the Supplemental
Executive Retirement Agreement, as amended and restated as of January 1, 2005,
(the "Agreement") that I executed with an authorized representative of the
Company on _______________ ___, 2005. The parties to this Election agree that
any term that begins herein with initial capital letters shall have the special
meaning defined in the Agreement, unless the context clearly requires otherwise.
NOW THEREFORE, it is mutually agreed as follows:
3. Timing of Payment. Subject to Section 7 below, I direct that the
Company commence distribute from my Account to me --
[ ] on the January 1st that next follows the date that is ___
years (not more than 5) after I cease service service with the
Company.
[ ] on the ____ (not more than 5th) anniversary after I cease
service with the Company.
[ ] on the first date of the month next following my 72nd
birthday.
[ ] the later of (I) the calendar year immediately following the
year in which I cease service with the Company, and (II) the
following date: ___________ ___, _____ (not later than the
date on which the Participant will attain age 72).
[ ] On the date of a Change in Control.
2. Form of Payment Generally. By the execution hereof and in accordance
with the provisions of the Agreement, I elect to have my Account distributed in
cash or in the form of a check as follows:
[ ] in a lump sum.
[ ] in substantially equal annual payments over a period of ___
years (not to exceed 10 years from the date I cease service
with the Company).
3. Form of Payment to Beneficiary. In the event of my death, my Account
shall be distributed as follows --
[ ] in one lump sum payment within sixty (60) days following my
death.
[ ] in accordance with the payment schedule selected in Sections 1
and 2 hereof (with payments made as though I survived to
collect all benefits, and as though I terminated service on
the date of my death, if payments had not already begun).
4. Designation of Beneficiary. In the event of my death before I have
collected all of the benefits payable under the Agreement, I hereby direct that
any remaining benefits payable under the Agreement be distributed to the
beneficiary or beneficiaries designated under subparagraphs a and b of this
Section 4 in the manner elected pursuant to Section 3 above:
c. Primary Beneficiary. I hereby designate the person(s) named below to be
my primary beneficiary and to receive the balance of any unpaid benefits under
the Agreement.
Name of Social Security Percentage of
Primary Beneficiary Number Mailing Address Death Benefit
- ------------------- --------------- --------------- -------------
%
%
d. Contingent Beneficiary. In the event that the primary beneficiary or
beneficiaries named above are not living at the time of my death, I hereby
designate the following person(s) to be my contingent beneficiary for purposes
of the Agreement.
Name of Social Security Percentage of
Contingent Beneficiary Number Mailing Address Death Benefit
- ---------------------- --------------- --------------- -------------
%
%
5. Effect of Election. The elections made in paragraphs 1 and 2 hereof
shall apply -
[ ] only to any amounts included in my Account to which the
Agreement relates.
[ ] to the entire value of my Account, provided that these
elections may only be changed at least one year in advance of
the earliest date on which payments would otherwise commence
pursuant to paragraph 2 hereof, and may only be changed
pursuant to an election that conforms with the requirements
set forth in Article IV(a) of the Plan.
With respect to the elections in paragraphs 3 and 4 hereof, I recognize
that I may, by submitting an effective superseding Election Form at any time and
from time to time, prospectively change the beneficiary designation and the
manner of payment to a Beneficiary. Such elections shall, however, become
irrevocable upon my death.
6. Mutual Commitments. The Company agrees to make payment of all amounts
due to me in accordance with the terms of the and the elections I make herein. I
agree to be bound by the terms of the Agreement, as in effect on the date
therein or properly amended hereafter.
7. Tax Responsibility. I recognize and agree that notwithstanding my
elections above, the Board shall have the discretion to administer any
distribution pursuant to this Election, and to unilaterally modify any such
Election, in a manner that the Board reasonably determines to be necessary in
order to conform my distribution election with the requirements of Section 409A
of the Code. I recognize
and agree, however, that I am solely responsible for the satisfaction of any
federal, state, or local taxes of any kind that may arise under the Agreement,
(including any taxes arising under Sections 409A or 4999 of the Code), and that
neither the Company nor any of its employees, officers, directors, or service
providers has any right or obligation to provide me with tax planning advice, or
to structure the terms of the Agreement or any payments to me in a manner that
mitigates my tax liability. It being understood that I should seek and rely on
personal, professional tax advice with respect to the Agreement and its tax
consequences to me, I agree to hold each and every one of them harmless against
all loss of any kind (including attorneys fees they incur) with respect to any
claim that I make with respect to the Agreement, my elections herein, and my
collection of benefits pursuant to the Agreement.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands the
day and year first above-written.
Witnessed by: EXECUTIVE
_______________________________ ________________________________
Witnessed by: GLACIER BANCORP, INC.
________________________________ By__________________________________
A member of the Board of Directors