Exhibit 10.1
RELEASE OF ALL CLAIMS AND HOLD HARMLESS AGREEMENT
For the consideration of Fifty Thousand and no/100 Dollars ($50,000.00)
and the promises and covenants set forth herein, Xxxxx X. Xxxxxxx ("Xxxxxxx")
agrees to release all of his claims against Columbia Bancorp, an Oregon
corporation ("Columbia") and others as set forth in detail in this Release of
All Claims and Hold Harmless Agreement ("Agreement"). The Agreement has an
effective date of December 4, 2006, except to the extent specifically set forth
in Section 3 below.
RECITALS
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X. Xxxxxxx is the former President and Chief Executive Officer
("CEO") of Columbia and is also the former President and CEO of
Columbia River Bank. In 2001, Xxxxxxx voluntarily resigned as
Chief Executive Officer of Columbia. As of the effective date of
the Agreement, Xxxxxxx continues to serve on Columbia's Board of
Directors.
B. Columbia is an Oregon corporation and is the holding company of
Columbia River Bank. Columbia is based in The Dalles, Oregon.
X. Xxxxxxx, in his capacity as CEO of Columbia, received from time
to time "incentive stock options," some of which he exercised
before resigning, some of which he did not exercise before
resigning. For tax purposes, the exercise of incentive stock
options is treated differently if a person exercises the options
while an employee or within ninety (90) days of leaving
employment as opposed to exercising the stock options more than
ninety (90) days after leaving employment.
D. As of the effective date of the Agreement, Xxxxxxx continues to
hold certain unexercised stock options, incentive stock grants
and/or other equity based compensation benefits. Xxxxxxx is not
entitled to any additional stock options except as granted by
the compensation committee of Columbia's board of directors in
compliance with applicable securities laws and with the Nasdaq
Marketplace Rules.
X. Xxxxxxx now contends that Columbia represented to him at
retirement, and continued to represent to him within the twelve
months preceding the date of this Agreement, that he could
extend and maintain the tax treatment of certain incentive stock
options (as that term is defined for purposes of Section 422(a)
of the Internal Revenue Code of 1986, as amended, and the
treasury regulations thereunder). Xxxxxxx further contends that
he relied upon such representations and that, based upon such
reliance, he failed to exercise such incentive stock options
within 90 days of his retirement. Xxxxxxx contends that Columbia
derived or will derive substantial financial benefit, that
Columbia is liable to him for the additional tax burden he has
incurred as a result of relying upon such alleged
representations, and that Columbia is responsible for any future
additional tax burden he is likely to incur in connection with
his previous exercise of incentive stock options and with any
potential exercise of currently unexercised incentive stock
options.
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F. Columbia denies (i) that, directly or indirectly through one or
more employees, officers, directors or agents, it made the
representations to Xxxxxxx set forth in Recital E, or any other
representations in connection with the terms of his relationship
to Columbia other than as expressly set forth in a binding
agreement between Xxxxxxx and Columbia, (ii) that it owed
Xxxxxxx a duty to advise him in connection with the tax
consequences of exercising the incentive stock options, (iii)
that Xxxxxxx had a reasonable basis for relying at any time upon
any such alleged representations or advice, (iv) that Xxxxxxx
was harmed by any such reliance, (v) that any such claims, even
if otherwise supportable, are not fully and completely barred by
the applicable statutes of limitation, and (vi) that it is
liable to Xxxxxxx for any additional tax burden he has incurred,
or will incur, as the result of executing his stock options.
G. In light of the foregoing the parties have agreed as set forth
below, whereby Columbia has agreed to pay Xxxxxxx Fifty Thousand
and no/100 Dollars ($50,000.00) on the terms and subject to the
conditions set forth herein, in exchange for a full and final
discharge of all claims Xxxxxxx might raise in respect of claims
that might have arisen or might hereafter arise by Xxxxxxx
against Columbia based upon acts or omissions occurring on or
prior to the date of this Agreement. Without limiting the
generality of the foregoing, the parties expressly intend to
release all past, present and future claims based on an
allegation that Columbia owes compensation to Xxxxxxx for
additional tax liability he has incurred or may incur as a
result of exercising his stock options, including options held
by Xxxxxxx as of the date hereof, options previously exercised,
and options, if any, that may be granted in the future.
NOW, THEREFORE, in consideration of the terms, conditions, promises and
covenants set forth below, Xxxxxxx agrees as follows:
TERMS OF RELEASE
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1. Consideration. Pending the satisfaction of the conditions set
forth in Section 3 below, the consideration payable to Xxxxxxx shall be an
amount, in cash, equal to Fifty Thousand and no/100 Dollars ($50,000.00),
payable in two equal annual installments. The first such installment shall be
paid on January 5, 2007 and the second installment shall be paid on January 5,
2008. Each payment shall be made by deposit in the United States Mail of a check
in the full amount of such installment, made payable to "Xxxxx X. Xxxxxxx."
Xxxxxxx is responsible for identifying and paying any taxes that may be due on
this amount, and hereby agrees to defend, indemnify and hold harmless Columbia
from and against any and all liabilities incurred by Columbia in connection with
Xxxxxxx'x failure to make such payments, including without limitation any
investigation, inquiry, response or other communication with any taxing
authority in connection therewith, and specifically including the fees of any
and all accountants, attorneys and consultants engaged by Columbia or any other
person as a result of any such event.
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2. Complete Release. In consideration of the promises as set forth
herein, Xxxxxxx, and for his heirs, agents, representatives, successors,
assigns, partners, and attorneys, hereby releases, acquits and forever
discharges Columbia and its current and former employees, agents,
representatives, successors, assigns, partners, parents, subsidiaries,
divisions, affiliates, owners, stockholders, officers, directors, accountants,
tax advisors, tax preparers and attorneys, from any and all actions, causes of
action, obligations, costs, expenses, damages, losses, claims, liabilities,
suits, debts, and demands (including attorneys' fees and costs actually
incurred), of whatever character in law or in equity known or unknown, suspected
or unsuspected, in any way connected to Columbia (included, but not limited to,
Xxxxxxx'x employment by Columbia, claims of discrimination arising out of the
employment, Xxxxxxx'x deferred compensation agreement, and the exercise of stock
options) up until the day Xxxxxxx signs this Agreement. Without limiting the
generality of the foregoing, Xxxxxxx specifically releases Columbia (including
the parties indemnified above) from any and all future claims related to
Xxxxxxx'x future exercise of the stock options described above, and any other
options hereafter granted to Xxxxxxx, including in each instance claims related
to Xxxxxxx'x tax liability as a result of exercising any stock options. This
release shall not be construed to inhibit the exercise, in accordance with the
express written terms and conditions thereof, of any stock options currently
outstanding or hereafter granted; provided, however, that in connection with any
such exercise, and any future acquisition or disposition of stock options or
other securities, neither Xxxxxxx nor any of his heirs, beneficiaries,
successors or assigns, shall be entitled to rely, and no such person shall rely,
upon Columbia or its directors, officers, agents or affiliates for advice as to
the investment, tax or other consequences or as to the advisability, financial
or otherwise, of acquiring, holding, exercising or disposing of such securities.
3. Time to Consider and Return Agreement. Xxxxxxx acknowledges and
agrees that he or his attorney first received the original of this Agreement on
or before December 4, 2006. Xxxxxxx also understands and agrees that he was
given at least twenty-one (21) calendar days from the date he first received
this Agreement to obtain the advice and counsel of the legal representative of
his choice and to decide whether to sign it. Xxxxxxx further agrees that any
changes to the terms or form of this Agreement, whether material or immaterial,
do not restart the running of this consideration period, and that he may sign
the Agreement at any time on or before the expiration of this consideration
period. Xxxxxxx also understands that for seven (7) calendar days after he signs
this Agreement, he has the right to revoke it, and that this Agreement will not
become effective and enforceable until after the expiration of this seven-day
revocation period (the "Effective Date"). However, Xxxxxxx specifically
understands and agrees that any attempt by him to revoke this Agreement after
this revocation period has expired is, or will be, ineffective. Xxxxxxx also
understands and agrees that to receive the benefits provided by this Agreement,
he must properly complete, sign and return the Agreement to Xxxxxx X. Xxxxxxxx
at Xxxxx Xxxxxx Xxxxxxxx, LLP, 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxxxx, 00000, by no later than close of business on December 26, 2006 and
that Attachment A must similarly be signed and returned, more than seven (7)
calendar days after Xxxxxxx signs the Agreement, before any benefits promised to
Xxxxxxx by this Agreement will be due.
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4. Covenant Not To Xxx. Xxxxxxx, and for his heirs, agents,
representatives, successors, assigns, partners, and attorneys, hereby forever
covenants not to pursue against Columbia, and its current and former employees,
agents, representatives, successors, assigns, partners, parents, subsidiaries,
divisions, affiliates, owners, stockholders, officers, directors, accountants,
tax advisors, tax preparers and attorneys, any lawsuit, arbitration or any other
legal action arising out of his employment with Columbia, his resignation from
Columbia or the exercise of stock options and the resulting tax liability
therefrom, whether any such claim that might otherwise give rise to a lawsuit,
arbitration or other legal action is known or unknown.
5. Indemnification. Xxxxxxx hereby agrees on his own behalf and on
behalf of his heirs, legal representatives, successors, beneficiaries and
assigns, to indemnify and hold harmless Columbia and its current and former
employees, agents, representatives, successors, assigns, partners, parents,
subsidiaries, divisions, affiliates, owners, stockholders, officers, directors,
accountants, tax advisors, tax preparers and attorneys (collectively the
"Indemnified Persons"), from and against any and all actions, causes of action,
obligations, costs, expenses, damages, losses, claims, liabilities, suits,
debts, and demands (including attorneys' fees and costs actually incurred),
whether matured or contingent and whether known or unknown (collectively
"Losses"), arising out of or connected directly or indirectly with any demands,
actions, suits, arbitrations or any other legal actions brought by any person
against any Indemnified Person and arising or alleged to have arisen out of, any
relationship between Xxxxxxx and Columbia and existing on or before the date of
this Agreement.
6. Unknown or Mistake in Facts. It is acknowledged and understood
by Xxxxxxx that there may be relevant facts not known to him or of which he has
incomplete or mistaken knowledge regarding the events forming the basis for his
claims, settlement thereof, the release of claims and the indemnification
against Losses. Xxxxxxx expressly assumes the risk of the facts being different
and agrees that this Agreement shall be in all respects effective and not
subject to termination, revocation or rescission by any such difference in
facts.
7. Tax Consequences; No Advice. Xxxxxxx acknowledges that neither
Columbia nor its agents have directly or indirectly provided to Xxxxxxx, and
that no such person has any duty to provide to Xxxxxxx, any advice, nor is he
relying on any advice from Columbia or its agents regarding, the tax
consequences of this settlement, the matters released pursuant to this
Agreement, the payment of any consideration hereunder, the exercise of any
derivative securities by Xxxxxxx or any other person, the transfer of any
securities held directly or indirectly by Xxxxxxx, or any other matter
whatsoever.
8. Covenant of Confidentiality. Xxxxxxx covenants and agrees that
the terms of this Agreement are strictly confidential and that he will neither
disclose nor authorize others to disclose the terms hereof to any third party,
except to his attorney, any tax consulting person or service ("Authorized Third
Parties") or as required under compulsion of valid subpoena or court order.
Disclosure to an Authorized Third Party shall be made only if the Authorized
Third Party agrees not to disclose the information to any other persons or
entities. Furthermore, Xxxxxxx shall not solicit, invite or encourage such
subpoena, court order or other legal process. The parties agree that this
Agreement may be disclosed by Columbia or its affiliates to the extent required
by law, and Xxxxxxx hereby consents to the filing of this Agreement with any
filing deemed by Columbia, in its absolute discretion, to be required to be
filed with the Securities and Exchange Commission pursuant to the Securities Act
of 1933, as amended, the Securities Exchange Act of 1934, as amended, or the
regulations promulgated under either or both such statutes. Xx. Xxxxxxx'x
obligations under this Section 8 shall terminate as to the content of this
Agreement immediately upon the filing or furnishing of this Agreement with the
Securities and Exchange Commission.
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9. Non-disparagement. Xxxxxxx agrees that he will not disparage or
make derogatory comments to anyone concerning Columbia with respect to the
matters related to this Agreement.
10. No Attorney's Fees or Costs. Xxxxxxx acknowledges and agrees
that he shall be required to pay his own attorney's fees and costs of any kind
incurred in connection with the disputes that gave rise to this Agreement and
that Columbia has no obligation or responsibility to pay Xxxxxxx'x attorney's
fees.
11. Full and Independent Knowledge/No Representations. This
Agreement is made by Xxxxxxx with full knowledge of the situation, under advice
of counsel, without any representation of any kind being made by Columbia or any
of its representatives, other than those contained herein. Without limiting the
generality of the foregoing, Xxxxxxx acknowledges and agrees that he has been
advised to have this Agreement reviewed by counsel of his choosing and, having
had an opportunity to consult with such counsel, that he fully understands the
legal, financial and other consequences of entering herein.
12. Ownership of Claims. Xxxxxxx represents that he has not assigned
or transferred, or purported to assign or transfer, to any person or entity, any
claim or any portion thereof or interest therein related in any way to Columbia.
13. Agreement Binding on Successors and Assigns. The provisions of
this Agreement shall be binding upon and inure to the benefit of Xxxxxxx and
Columbia and their respective successors and assigns.
14. Non-admission of Liability. This Agreement is to be entered into
on a non-precedential basis and shall not be construed in any way as an
admission by Columbia of any liability whatsoever against Xxxxxxx. Columbia
specifically disclaims any liability to, or any acts of wrongdoing against,
Xxxxxxx.
15. Modification of Agreement. This Agreement may not be modified
except by a writing signed by Columbia and Xxxxxxx.
16. Construing Agreement. Both Columbia and Xxxxxxx have cooperated
and participated in the drafting and preparation of this Agreement. Accordingly,
Xxxxxxx hereby acknowledges and agrees that this Agreement shall not be
construed or interpreted in favor of or against either Xxxxxxx or Columbia by
virtue of the identity of the preparer.
17. Miscellaneous.
A. Choice of Law. This Agreement is made and entered into
in the State of Oregon and shall in all respects be interpreted, enforced and
governed under the laws of that state. The language of all parts of this
Agreement shall in all cases be construed as a whole, according to its fair
meaning, and not strictly for or against either Xxxxxxx or Columbia.
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B. Venue. Exclusive jurisdiction for any dispute related to
this Agreement shall be in the state or federal courts located in Wasco County,
Oregon.
C. Severability. Should any provision of this Agreement be
declared or determined to be illegal or invalid, the validity of the remaining
parts, terms or provisions shall not be affected thereby and shall be
enforceable to the fullest extent permitted by law.
D. Attorney's Fees. The prevailing party in any action, in
any forum, arising from this Agreement, including an action to interpret,
construe, enforce, rescind or revoke this Agreement, shall be entitled to
reimbursement of all attorney's fees, costs and disbursements incurred in such
action, including the investigation of, and the preparation and response to,
such action, and including any and all appeals or reviews thereof regardless of
the party initiating such appeal or review.
E. Originals. For the purposes of the Agreement, a
facsimile copy or PDF of the Agreement signed by Xxxxxxx shall be construed to
be an original.
F. Fully Integrated Agreement. This Agreement sets forth
the entire Agreement between the parties and fully supersedes any and all prior
agreements and understandings between the parties pertaining to the subject
matter of this Agreement.
G. Captions. The title or captions contained in this
Agreement are for convenience only and shall neither restrict nor amplify the
provisions herein.
[SIGNATURE PAGE FOLLOWS]
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PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF CERTAIN KNOWN OR
UNKNOWN CLAIMS, INCLUDING CLAIMS OF AGE DISCRIMINATION UNDER THE FEDERAL AGE
DISCRIMINATION IN EMPLOYMENT ACT, AS AMENDED, AND OTHER FEDERAL, STATE AND LOCAL
LAWS PROHIBITING DISCRIMINATION IN EMPLOYMENT. YOU ARE ENCOURAGED TO CONTACT AN
ATTORNEY OF YOUR CHOICE FOR ADVICE CONCERNING THE MEANING AND LEGAL SIGNIFICANCE
OF ITS TERMS BEFORE SIGNING IT. IF YOU AGREE TO ITS TERMS, SIGN BELOW
By:
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XXXXX X. XXXXXXX
Date:
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REVIEWED AND APPROVED AS TO FORM:
--------------------------------
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Attorney for Xxxxx X. Xxxxxxx
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ATTACHMENT A
STATEMENT OF NON-REVOCATION AND CONFIRMATION OF
RELEASE OF ALL CLAIMS AND HOLD HARMLESS AGREEMENT
AS OF THE DATE SHOWN ON THIS FORM
By signing below, I hereby verify that seven (7) calendar days have
passed since I signed the Release of All Claims and Hold Harmless Agreement
("Agreement") and that I have chosen not to revoke my agreement to execute that
Agreement. My signature confirms my renewed agreement to the terms of that
Agreement. I also agree, that as of the date I sign this document, to the extent
permitted by law, my release and waiver of any and all claims I may have
relating to my employment with Columbia and/or the termination of that
relationship and/or release of other claims arising before execution of the
Agreement as set forth in the Agreement, shall apply with the same force and
effect as if set forth fully herein to the period of time between the time I
signed the Agreement and the date I sign this document.
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Xxxxx X. Xxxxxxx
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Signature* Date*
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