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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and
entered into this 14th day of May, 1996 by and between Columbia Bancorp, an
Oregon corporation ("Bancorp") and Xxxxx X. Xxxxxxx ("Employee").
RECITALS
(1) Bancorp is an Oregon corporation and is the holding
company of Columbia River Banking Company (the "Bank"), a state-chartered
Oregon financial institution with its principal office in The Dalles, Oregon.
(2) Bancorp desires to employ Employee as President and
Chief Executive Officer of Bancorp and of the Bank.
Now, therefore, it is agreed:
1. Relationship and Duties.
1.1 Bancorp shall employ Employee as an officer of
Bancorp with the title of President and Chief Executive Officer to perform such
services and duties as the Board of Directors of Bancorp (the "Bancorp Board")
may designate from time to time. Subject to the terms and conditions hereof,
employee shall perform such duties and exercise such authority as are
customarily performed and exercised by persons holding such office, subject to
the general direction of the Bancorp Board. Such services and duties shall be
exercised in good faith and in accordance with standards of reasonable business
judgment.
1.2 Employee shall serve on the Bancorp Board and on such
committees established by the Bancorp Board to which Employee may be appointed.
1.3 Subject to Section 1.7 of the Agreement, Employee
shall also be employed to serve as an officer of the Bank with the title of
President and Chief Executive Officer to perform such services and duties as
the Board of Directors of the Bank (the "Bank Board") may designate from time
to time. Subject to the terms and conditions hereof, employee shall perform
such duties and exercise such authority as are customarily performed and
exercised by persons holding such office, subject to the general direction of
the Bank Board. Such services and duties shall be exercised in good faith and
in accordance with standards of reasonable business judgment.
1.4 Employee shall serve on the Bank Board and on such
committees established by the Bank Board to which Employee may be appointed.
1.5 Employee shall devote his full time, attention and
efforts to the diligent performance of his duties as an officer and director of
Bancorp and of the Bank. Employee will not accept employment with any other
individual, corporation, partnership, governmental authority or any other
entity, or engage in any other venture for profit which Bancorp may consider to
be in conflict with Bancorp's or the Bank's best
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interests or to be in competition with Bancorp's or the Bank's business, or
which may interfere in any way with Employee's performance of his duties
hereunder. Any exceptions to the above conditions must be approved by the
Bancorp Board in writing.
1.6 Nothing in the Agreement shall prohibit Employee from
serving on the board of directors of any profit or non-profit corporation not
in direct competition with Bancorp or the Bank or with any other subsidiary,
sister or affiliated corporation of Bancorp. In addition, Employee may own
stock in any other corporation whether or not the stock is publicly traded;
provided, that if such corporation operates a business in competition with
Bancorp Employee may not own more than five percent (5%) of the outstanding
shares of such corporation.
1.7 Nothing in the Agreement shall prohibit Bancorp from
modifying, adding to or otherwise changing Employee's duties as a full-time
employee during the term of the Agreement. In particular, and without
limitation, Bancorp may in its discretion direct Employee to (i) cease work as
President and Chief Executive Officer of the Bank and devote 100% of his
efforts to serving as President and Chief Executive Officer of Bancorp, (ii)
allocate his efforts on behalf of Bancorp and of the Bank in a manner
determined by the Bancorp Board, or (iii) undertake special projects on behalf
of Bancorp, the Bank or both. Any such modifications, additions to or changes
in Employee's duties shall not be deemed a termination of Employee's employment
under the Agreement. Notwithstanding the foregoing, Employee shall retain the
title of President and Chief Executive Officer of Bancorp during the term of
the Agreement.
2. Term of Employment.
2.1 The initial term of employment under the Agreement
shall be two years beginning May 15, 1996 and ending May 14, 1998.
2.2 Employee's term of employment under the Agreement may
be extended for successive one-year terms after May 14, 1998 subject to the
mutual agreement of the parties. The parties shall reach mutual agreement
concerning such extensions on or before a date which is no less than one year
prior to the date of expiration of Employee's term of employment under the
Agreement, including any extensions thereof. Each extended term shall begin on
the fifteenth day of May in the year the extension becomes effective.
3. Termination.
3.1 As used in the Agreement, "termination" shall mean
the termination of Employee's employment relation with Bancorp, whether
initiated by Bancorp or by Employee, and whether for cause or without cause;
provided, that Employee's retirement from full-time employment under Section 7
herein shall not constitute a "termination" of employment under the terms of
the Agreement.
3.2 Notwithstanding any other provisions of the
Agreement, the employment of Employee shall terminate immediately on the
earlier to occur of any of the following:
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3.2.1 Employee's death;
3.2.2 Employee's complete disability. "Complete
disability" as used herein shall mean the inability of Employee, due to
illness, accident, or other physical or mental incapacity, to perform the
services required under the Agreement for an aggregate of sixty (60) days
within any period of 120 consecutive days during the term hereof; provided,
however, that disability shall not constitute a basis for discharge for cause;
3.2.3 The discharge of Employee by Bancorp for
cause. "Cause" as used herein shall mean (i) Employee's negligence or
misconduct as shall constitute, as a matter of law, a breach of the covenants
and obligations of Employee hereunder; (ii) failure or refusal of Employee to
comply with the provisions of the Agreement; (iii) Employee's conviction by any
duly constituted court with competent jurisdiction of a crime (other than
traffic offenses); (iv) Employee's malfeasance or incompetence, provided that
in applying this criteria the Bancorp Board shall not be unreasonable or
arbitrary, and provided further that prior to effecting a dismissal under this
Section (iv) the Bancorp Board shall afford Employee with fair and reasonable
warning and with a fair and reasonable opportunity to cure any defects in
Employee's performance.
3.3 Employee may terminate his employment with Bancorp
with or without cause by giving thirty (30) days written notice of termination.
"Cause" as used herein shall include Bancorp's failure or refusal to comply
with the provisions of the Agreement.
3.4 The termination of Employee's employment prior to the
Retirement Date as defined in Section 7.1 herein shall constitute a tender by
Employee of his resignation as an officer of Bancorp and of the Bank, as a
member of the Bancorp Board, the Bank Board and any committees thereof, and as
an officer and Board member of any other subsidiaries of Bancorp.
3.5 If prior to the Retirement Date Employee's employment
is terminated by Employee with or without cause, or by Bancorp without cause,
Employee shall be paid all base salary and benefits accrued under the Agreement
as of the termination date, and in addition, shall be entitled to the deferred
compensation payments provided under Section 1 of the Deferred Compensation
Agreement of May 14, 1996 between the parties (the "DC Agreement").
3.6 If prior to the Retirement Date, as defined in
Section 7.1 herein, Employee's employment is terminated by Bancorp with cause,
Employee shall be paid all base salary and benefits accrued under the Agreement
as of the termination date, but shall not be entitled to the deferred
compensation payments provided under Section 1 of the DC Agreement.
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4. Compensation.
4.1 Employee shall be paid (i) an annual base salary of
$100,000 in equal bimonthly installments, subject to any deductions required by
law, for the period beginning May 15, 1996 and ending December 31, 1996, and
(ii) an annual base salary of $105,000 in equal bimonthly installments, subject
to any deductions required by law, for the period beginning January 1, 1997 and
ending December 30, 1997.
4.2 On or before the 30th day of April, 1997, Bancorp
shall determine Employee's annual base salary for the calendar year beginning
January 1, 1998. If Employee's term of employment under the Agreement has been
extended, on the 30th day of April, 1998, and for each successive April 30th
prior to the date of beginning of any further extended term, Bancorp shall
determine Employee's annual base salary for the immediately following calendar
year.
4.3 In December, 1996 and in the month of December of
each successive year for as long as Employee is employed under the Agreement,
the Bancorp Board shall determine the amount of and the formulas and methods
for establishing Employee's performance bonus for the following calendar year,
subject to any deductions required by law. The amount of such bonus shall be
set in the Bancorp Board's sole discretion, and the Bancorp Board may decline
to award a performance bonus in any year.
4.4 Effective as of June 13, 1996, the effective date of
Bancorp's acquisition of Klickitat Valley Bank, Employee shall receive no fees
for serving as a member of the Bancorp Board or the Bank Board as long as
Employee is also employed by Bancorp. If after the Retirement Date Employee
continues to serve as a member of the Bancorp Board or any the Board of any of
Bancorp's subsidiaries, Employee shall be entitled to receive the fees and
other amounts payable to any other such member.
5. Benefits.
5.1 Employee shall be eligible to participate in any plan
of the Bank or of Bancorp relating to stock options, stock purchases, profit
sharing, group life insurance, medical coverage, education and other retirement
or employee benefits that the Bank or Bancorp may adopt for the benefit of
employees.
5.2 Employee shall be eligible to participate in any
other benefits which may be or become applicable to Bancorp's or the Bank's
executive employees. In addition, Employee shall be entitled to (i) a
reasonable car allowance or, at the Bancorp Board's discretion, in lieu of an
allowance an automobile and all expenses of maintenance to cover its use, (ii)
a reasonable expense account for use in connection with Bancorp and Bank
business, (iii) membership fees and dues for membership in one golf club
mutually agreeable between Employee and the Bancorp Board, and (iv) any other
benefits which in the Bancorp Board's judgment are commensurate with the
responsibilities and functions to be performed by Employee under the Agreement,
including the payment of reasonable expenses for attendance by Employee and
Employee's spouse at annual and periodic meetings of trade associations.
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6. Vacations and Leaves.
6.1 Employee shall be entitled to an annual paid vacation
of five (5) weeks per year. The timing of vacations shall be scheduled in a
reasonable manner by Employee. Employee shall not be entitled to receive any
additional compensation from Bancorp on account of his failure to take a
vacation, and may not accumulate unused vacation time from one calendar year to
the next.
6.2 In addition to paid vacations, Employee shall be
entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment with Bancorp and the Bank for such additional
periods of time and for such valid and legitimate reasons as the Bancorp Board
in its discretion may determine.
6.3 The Bancorp Board may grant Employee a leave or
leaves of absence, with or without pay, at such time or times and upon such
terms and conditions as the Bancorp Board, in its discretion, may determine.
6.4 In each calendar year Employee shall be absent from
Bancorp and the Bank for one period of two consecutive weeks. Such period may
include vacation, leave, sick leave, attendance at seminars or conventions, or
any combination thereof.
7. Retirement From Full-Time Employment.
7.1 If Employee's employment is not otherwise terminated
prior thereto, Employee's last day of employment under the Agreement or any
extensions thereof shall be deemed Employee's date of retirement (the
"Retirement Date"), after which Employee shall be deemed retired from
employment by Bancorp. From and after the Retirement Date, the Agreement shall
be of no further force and effect, and the relationship between Employee and
Bancorp shall be governed exclusively by the DC Agreement.
7.2 If Employee's employment is terminated hereunder
prior to the Retirement Date, Employee's right to payment and benefits under
the Agreement and under the DC Agreement shall be determined in accordance with
Section 3 and Section 8 of the Agreement and under the DC Agreement. Such
termination of employment shall not invalidate the DC Agreement.
7.3 Employee's retirement shall not constitute Employee's
tender of resignation as a Board member or Board committee member of the Board
of Directors of Bancorp or any of its subsidiaries. From and after the
Retirement Date Employee may serve in such positions on the same terms and
conditions as other such members and in accordance with applicable bylaws.
8. Change of Control.
8.1 Employee's rights on termination of employment under
Section 3 of the Agreement, as well as all other rights of Employee under the
Agreement and the DC Agreement or otherwise, shall survive a change of control
of Bancorp.
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8.2 If a change of control of Bancorp occurs prior to the
Retirement Date, Employee shall have ninety (90) days following the date such
change of control becomes effective to elect to terminate Employee's employment
without cause. If Employee so elects to terminate, Employee shall receive all
payments and benefits due to Employee on termination under the Agreement and
under the DC Agreement. Such payments and benefits shall include, without
limitation, the deferred compensation payments provided under Section 1 of the
DC Agreement.
8.3 Employee shall be entitled to the payments and
benefits provided under this Section 8 whether or not Employee opposed or
favored the change in control. Employee's rights under this Section are in
addition to, and not in lieu of, Employee's rights under Section 7 of the
Agreement and under the DC Agreement.
8.4 The following items shall be due and payable
immediately at Employee's election in the event that a change of control
occurs:
8.4.1 Nonforfeitable deferred compensation;
8.4.2 Long-term performance plan objective
payments, if any, shall be declared accomplished and earned based upon
performance up to the date of the change of control.
8.5 If Employee is a participant in a restricted stock
plan or share option plan, and such plan is terminated involuntarily as a
result of the change of control, all stock and options shall be declared fully
vested and shall be paid, awarded or otherwise distributed. With respect to
any unexercised options under any stock option plan, such options may be
exercised within the period provided in such plan. Effective as of the date of
the change of control, any holding period established for stock paid as bonus
or other compensation shall be deemed terminated, except as otherwise provided
by law.
8.6 As used in this Section, "control" shall mean the
acquisition of twenty-five percent (25%) or more of the voting securities of
Bancorp by any person, or persons acting as a group within the meaning of
Section 13(d) of the Securities Exchange Act of 1934, or to such acquisition of
a percentage between ten percent (10%) and twenty-five percent (25%) if the
Board or the Comptroller of the Currency, the FDIC, or the Federal Reserve Bank
have made a determination that such acquisition constitutes or will constitute
control of Bancorp. The term "person" refers to an individual, corporation,
Bank, bank holding company, or other entity, but excludes any Employee Stock
Ownership Plan established for the benefit of employees of Bancorp or any of
its subsidiaries.
9. Post Termination Covenants.
9.1 If Employee terminates his employment without cause,
or if Employee's employment is terminated by Bancorp for cause, then for one
year from the date of such termination Employee will not, without the prior
written consent of Bancorp:
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9.1.1 Undertake full or part-time work, either as
an employee or as a consultant, for another financial institution if such work
is to be done, in whole or in part, in or from an office or other work site in
Wasco, Hood River, Jefferson, Deschutes, Xxxxxxx or Xxxxxxx Counties, Oregon or
in Klickitat County, Washington; or
9.1.2 Hire for any financial institution or other
employer (including himself) any employee of Bancorp, the Bank or any other
subsidiary of Bancorp, or directly or indirectly cause such an employee to
leave his or her employment to work for another employer, if such employee is
to work in or from an office or other work site in Wasco, Hood River,
Jefferson, Deschutes, Xxxxxxx or Xxxxxxx Counties, Oregon or in Klickitat
County, Washington.
9.2 The covenants in this Section do not apply if
Employee terminates his employment for cause, or if Employee's employment is
terminated by Bancorp without cause.
10. Miscellaneous.
10.1 Employee's retirement from employment under the
Agreement on the Retirement Date shall not be deemed a retirement or general
termination under Section 8 of the Bank's 1993 Stock Incentive Plan, except as
otherwise provided therein or as provided under law, and shall therefore not
limit the time within which Employee may exercise Employee's stock option
rights under the Plan unless the Plan or applicable law provides to the
contrary.
10.2 Each and every portion of the Agreement is
contractual and not a mere recital, and all recitals shall be deemed
incorporated into the Agreement. The Agreement shall be governed by and
interpreted according to Oregon law and any applicable federal law. The
Agreement may not be amended except by a subsequent written agreement signed by
all parties hereto.
10.3 The Agreement contains the entire understanding and
agreement of the parties with respect to the parties' relationship, and all
prior negotiations, discussions or understandings, oral or written, are hereby
integrated herein. No prior negotiations, discussions or agreements not
contained herein or in such documents shall be binding or enforceable against
the parties.
10.4 The Agreement may be signed in several counterparts.
The signature of one party on any counterpart shall bind such party just as if
all parties had signed that counterpart. Each counterpart shall be considered
an original. All counterparts of the Agreement shall together constitute one
original document.
10.5 Employee's rights under the Agreement are in addition
to Employee's rights under the Deferred Compensation Agreement of May 14, 1996
between the parties.
10.6 All rights and duties of Bancorp under the Agreement
shall be binding on and inure to the benefit of Bancorp's successors and
assigns, including any
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person or entity which acquires a controlling interest in Bancorp and any
person or entity which acquires all or substantially all of Bancorp's assets.
Bancorp and any such successor or assign shall be and remain jointly and
severally liable to Employee under the Agreement. Employee may not assign or
transfer Employee's rights or interests in or under the Agreement other than by
a will or by the laws of descent and distribution. The Agreement shall inure
to the benefit of and be enforceable by Employee's estate or legal
representative.
10.7 Any waiver by any party hereto of any provision of
the Agreement, or of any breach thereof, shall not constitute a waiver of any
other provision or of any other breach. If any provision, paragraph or
subparagraph herein shall be deemed invalid, illegal or unenforceable in any
respect, the validity and enforceability of the remaining provisions,
paragraphs and subparagraphs shall not be affected.
10.8 Any dispute, controversy, claim or difference
concerning or arising from the Agreement or the rights or performance of either
party under the Agreement, including disputes about the interpretation or
construction of the Agreement, shall be settled through binding arbitration in
the State of Oregon and in accordance with the rules of the American
Arbitration Association. A judgment upon the award rendered in such
arbitration may be entered in any court of competent jurisdiction.
10.9 The Agreement supersedes and replaces the Employment
Agreement between Employee and the Bank of October 1, 1995, and the latter
agreement shall be deemed null and void as of May 14, 1996.
[SIG]
______________________________________
Employee
COLUMBIA BANCORP
[SIG]
By:____________________________________
Chairman of the Board
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