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EXHIBIT 10(D)
GLACIER BANCORP, INC.
AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
(EFFECTIVE AS OF JANUARY 1, 2008)
This Amended and Restated Supplemental
Executive Retirement Agreement
("Agreement"), effective as of January 1, 2008, is entered into by
and between
Glacier Bancorp, Inc. (the "Company") and __________________ (the
"Executive").
RECITALS
A. The Company and Executive previously
entered into a Supplemental
Executive Retirement Agreement, dated _____________[DATE OF PRIOR
AGREEMENT]
("Original Agreement"), pursuant to which the Company agreed to pay
Executive
certain amounts to make up for lost benefits caused by limitations
imposed under
the tax laws on contributions that can be made to tax-qualified
retirement plans
and by Executive's participation in the deferred compensation plan
sponsored by
the Company.
B. The Company and Executive wish to amend
and restate the Original
Agreement, as provided herein, to conform it to the requirements of
Section 409A
of the U.S. Internal Revenue Code of 1986, as amended, and to make
other changes
as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the
foregoing, the mutual covenants and
agreements hereinafter contained, and other good and valuable
consideration, the
receipt and legal sufficiency of which is hereby acknowledged, the
parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
"Account" means a bookkeeping account
maintained by the Company in the name
of Executive to which annual amounts shall be credited according to
the terms of
this Agreement.
"Affiliate" means an entity that is
considered a single employer with the
Company under Code Sections 414(b) or 414(c).
"Agreement" is defined in the first
paragraph hereof.
"Annual Addition" has the meaning set
forth in Code Section 415 and the
regulations thereunder.
"Benefits" means payments required to be
made to Executive or his
Designated Beneficiary under this Agreement.
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"Cause" has the meaning set forth in, and
shall be determined in accordance
with, the Employment Agreement.
"Change in Control" means the occurrence
of (i) a merger or consolidation
in which the Company is not the continuing or surviving entity or
pursuant to
which the issued and outstanding shares of common stock of the
Company are
converted into cash, securities or other property, other than a
merger of the
Company in which the holders of issued and outstanding shares of
the common
stock of the Company immediately prior to the merger own more than
fifty percent
(50%) of the combined voting power of the surviving corporation
immediately
after the merger, (ii) the acquisition of shares of the Company's
issued and
outstanding common stock in a single or a series of related
transactions, if
immediately thereafter persons who owned shares of such common
stock immediately
before such acquisition do not own more than fifty percent (50%) of
the combined
voting power of the Company immediately after such acquisition, or
(iii) the
sale, transfer or other disposition of all or substantially all of
the assets of
the Company.
"Code" means the Internal Revenue Code of
1986, as amended.
"Company" is defined in the first
paragraph of this Agreement.
"Deferred Compensation Plan" means the
Amended and Restated Deferred
Compensation Plan, effective as of January 1, 2008, sponsored by
the Company, as
such plan may be amended from time to time.
"Designated Beneficiary" means the person
or persons designated by
Executive to receive Benefits in the event of Executive's death
before all
amounts credited to his Account have been paid to him. Executive
shall designate
the Designated Beneficiary by delivering to the Company a Payment
Election Form
that names the Designated Beneficiary and may change the Designated
Beneficiary
from time to time by delivering to the Company a Designated
Beneficiary Change
Form. Any such change shall be effective immediately after the form
is delivered
to the Company.
"Designated Beneficiary Change Form" means
the Designated Beneficiary
Change Form (substantially in the form attached hereto as Exhibit
B) pursuant to
which Executive changes the Designated Beneficiary
"Employment Agreement" means Executive's
employment agreement with the
Company and/or an Affiliate, as such agreement may be amended from
time to time.
"Executive" is defined in the first
paragraph of this Agreement.
"409A Suspension Period" is defined in
paragraph d. of Article III.
"Payment Election Form" means the Payment
Election Form (substantially in
the form attached hereto as Exhibit A) pursuant to which Executive
identifies
the Payment Trigger Event, form of payment of Benefits and the
Designated
Beneficiary(ies). In the absence, at any time, of a valid Payment
Election Form,
the distribution election form applicable to Executive's account
under the
Deferred Compensation Plan shall apply to Executive's Account.
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"Payment Trigger Event" is defined in
paragraph a. of Article III.
"Plan Year" means the calendar year.
"Separation from Service" means
Executive's "separation from service,"
within the meaning of Treas. Reg. Section 1.409A-1(h), from the
Company and all
Affiliates for any reason. Whether an entity is an "Affiliate" for
purposes of
this definition of "Separation from Service" shall be determined by
substituting
the language "at least 50 percent" in place of "at least 80
percent" each place
that it appears in Code Section 1563(a)(1), (2) and (3) (to
determine if a
controlled group of corporations exists under Code Section 414(b))
and in Treas.
Reg. Section 1.414(c)-2 (to determine trades or businesses (whether
or not
incorporated) that are under common control under Code Section
414(c)). A
Separation from Service shall be deemed to occur if the Company and
Executive
reasonably anticipate that Executive will perform no further
services for the
Company or an Affiliate (whether an employee or an independent
contractor) or
that the level of bona fide services Executive will perform in the
future
(whether as an employee or an independent contractor) will
permanently decrease
to no more than twenty percent (20%) of the average level of bona
fide services
performed (whether as an employee or independent contractor) over
the
immediately preceding 36-month period. An Executive on an
authorized, bona fide
leave of absence shall experience a Separation from Service on the
first day of
the seventh (7th) month of such leave, unless Executive's right to
reemployment
with an Employer is provided by either statute or contract. A leave
of absence
constitutes a bona fide leave of absence only if there is a
reasonable
expectation that Executive will return to perform services for the
Company or an
Affiliates. For purposes of the 36-month period described above,
(i) if
Executive is on a paid bona fide leave of absence, Executive will
be treated as
providing bona fide services at a level of equal to the level of
services that
Executive would have been required to perform to receive the
compensation paid
during the leave of absence, and (ii) unpaid bona fide leaves of
absence are
disregarded.
"Tax-qualified Plan" means any plan
maintained by the Company or an
Affiliate that is intended to qualify under Code Section 401
(whether or not the
plan so qualifies).
ARTICLE II
CREDITING OF BENEFITS TO ACCOUNT
a. GENERAL. As of the close of each Plan
Year, the Company shall credit to
Executive's Account an amount equal to the difference between
(i) employer contributions that would have been
allocated to
Executive's accounts under Tax-qualified Plans if limitations
imposed by Code Section 401 and Executive's participation in
the
Deferred Compensation Plan are both disregarded, and
(ii)
Annual Additions actually credited to Executive under
Tax-qualified Plans.
The Company shall have the right to determine, in its sole
discretion, which
limitations imposed by Code Section 401 are taken into account for
purposes of
determining the amount under clause (i) above. In addition, as a
condition to
the Company crediting Executive's Account in a Plan Year,
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the Company may require Executive to make elective deferrals
(defined in Code
Section 402(g)(3)) to Tax-qualified Plans in an amount equal to the
maximum
elective deferrals that the Executive is permitted to make under
the Code for
such Plan Year.
b. ADJUSTMENTS TO ACCOUNT. As of the close
of each Plan Year ending after
2004, the Company shall adjust the Account as of the end of such
Plan Year to
reflect a rate of return (either positive or negative) equal to
fifty percent
(50%) of return on average equity of common stock issued by the
Company as of
December 31 of such calendar year (which return on average equity
shall be
determined by the Company using such rounding conventions as it
determines, in
its sole discretion, to be appropriate). The adjustment shall be
made by
multiplying the fifty percent (50%) of return on average equity by
the balance
in the Account on the first day of such Plan Year, and adding or
subtracting the
resulting product from the credit balance.
c. BALANCE OF ACCOUNT. The balance of the
Account, as of any time, shall be
the sum of amounts deferred by Executive and credited to his
Account on or
before such time, plus or minus adjustments to such Account under
the
immediately preceding sentence on or before such time, less any
amounts paid or
withdrawn from such Account on or before such time.
d. EFFECT OF PAYMENT TRIGGER EVENT. After
the occurrence of the Payment
Trigger Event elected by Executive, amounts that would otherwise be
credited to
his Account for services performed after such Payment Trigger Event
shall
instead be paid to him within sixty (60) days after the close of
the Plan Year
in which such Services are performed.
ARTICLE III
PAYMENT OF BENEFITS
a. PAYMENT TRIGGER EVENTS. Amounts
credited to Executive's Account shall be
paid to him on, or beginning on, the first day of the first month
immediately
following the month in which one of the following events ("Payment
Trigger
Event") occurs, as elected by Executive in a Payment Election
Form:
(i) Separation from Service (defined below);
(ii)
Attainment of age sixty-five (65);
(iii) Any of
the first five (5) anniversary dates following his
Separation from Service, as specified
by Executive in his
Payment Election Form; or
(iv)
Any of the first five (5) anniversary dates following his
attainment of age sixty-five (65), as specified by Executive in
his Payment Election Form.
b. FORM OF PAYMENT - LUMP-SUM OR
INSTALLMENT. Amounts credited to the
Account of Executive shall be paid to him in either a single
lump-sum or in
equal annual installments over a period of five (5) years, as
elected by
Executive in a Payment Election Form.
c. ELECTIONS IRREVOCABLE. Executive may
not change the Payment Trigger
Event or the form of payment after he elects the same.
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d. REQUIRED DELAY IN PAYMENT FOR SPECIFIED
EMPLOYEES. If Executive is a
specified employee, then notwithstanding any contrary provisions of
this
Agreement, any amounts payable to him under this Agreement on
account of a
Separation from Service that could cause him to be subject to the
gross income
inclusion, interest and additional tax provisions of Code Section
409A(a)(1)
shall not be paid until after the end of the sixth calendar month
beginning
after such Separation from Service (the "409A Suspension Period").
Within
fourteen (14) calendar days after the end of the 409A Suspension
Period, the
Company shall pay Executive a lump sum payment in cash equal to the
sum of all
payments delayed because of the preceding sentence, together with
interest
thereon for the 409 Suspension Period calculated on such basis as
the Company
determines to be appropriate. Thereafter, Executive shall receive
any remaining
payments under this Agreement as if this paragraph d. of Article
III were a not
a part of the Agreement. For purposes of this Agreement, Executive
is a
"specified employee" if, as of the date of his Separation from
Service, he is a
key employee of Company or its Affiliates, provided any of their
stock is
publicly traded on an established securities market or otherwise.
Executive is a
"key employee" if he meets the requirements of Code Section
416(i)(1)(A)(i),
(ii) or (iii) (applied in accordance with the regulations
thereunder and
disregarding Code Section 416(i)(5)) at any time during the twelve
(12) month
period ending on a December 31. If Executive is a key employee as
of such a
date, he is treated as a key employee for purposes of this
Agreement for the
entire twelve (12) month period beginning on the April 1 that
follows such
December 31. The foregoing provisions of this paragraph d. of
Article III are
intended to comply with Treas. Reg. Section 1.409A-1(i) and shall
be interpreted
and administered consistently therewith.
e. PAYMENTS ON DEATH OF EXECUTIVE. If
Executive dies before he is paid the
entire balance of his Account, then the Company shall pay the
unpaid balance of
the Account, within ninety (90) days following his death, in a
single lump-sum
to the primary or contingent Designated Beneficiary, as elected by
Executive. If
a primary Designated Beneficiary does not survive Executive, then
the share
otherwise payable to him shall be paid to the primary Designated
Beneficiary's
estate; provided, however, that if Executive has designated a
contingent
Designated Beneficiary, then such share shall be paid to the
contingent
Designated Beneficiary. If the contingent Designated Beneficiary
does not
survive Executive, then the share otherwise payable to him shall be
paid to the
contingent Designated Beneficiary's estate.
f. CERTAIN RESTRICTIONS ON PAYMENT.
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 Executive's
termination of
employment such reduction is necessary to avoid subjecting the
Company or its
Affiliates to the loss of a deduction under Code Section 280G. In
addition, any
payments made to 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.
g. VALID ELECTION. No election made by
Executive with respect to his
Account shall be valid or recognized by the Company unless the
election is made
on a Payment Election Form or Designated Beneficiary Change Form
that is
properly completed, duly signed and dated by the Executive, and
delivered to the
Company.
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ARTICLE IV
ASSIGNMENT
Except as otherwise is provided in this
Agreement, it is agreed that
neither Executive nor a Designated Beneficiary shall have a 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 V
NO RETENTION OF SERVICES
The Benefits payable under this Agreement
shall be independent of, and in
addition to, any other benefits that may be paid
