EXHIBIT 10.4
2000 EMPLOYMENT AGREEMENT
Columbia River Bank - Xxxxx X. Xxxxxx
This Employment Agreement (the "Agreement") is made and entered into
this 1st day of April, 2000 by and between Columbia River Bank (the "Bank") and
Xxxxx X. Xxxxxx ("Employee").
RECITALS
(1) The Bank is a state-chartered Oregon financial institution and is
the wholly-owned subsidiary of Columbia Bancorp ("Bancorp"), an Oregon
corporation and bank holding company. The Bank's principal administrative office
is at 000 Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxx 00000.
(2) The Bank desires to employ Employee as an officer of the Bank on the
terms and conditions set forth herein.
Now, therefore, it is agreed:
1. RELATIONSHIP AND DUTIES.
1.1 EMPLOYMENT AND TITLE. The Bank shall employ Employee as an officer
of the Bank with such title and to perform such services and duties as the Board
of Directors of the Bank (the "Bank Board") or the management of Bancorp 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 and the management of Bancorp. Such
services and duties shall be exercised in good faith and in accordance with
standards of reasonable business judgment.
1.2 SERVICE ON BOARD. Employee shall serve on the Bank Board and on such
committees established by the Bank Board to which Employee may be appointed.
1.3 DUTIES; CONFLICTS. Employee shall devote his full time, attention
and efforts to the diligent performance of his duties as an officer of the Bank
and as a member of the Bank Board. 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 the Bank, or any
subsidiary, parent, sister or affiliated corporation of the Bank, considers to
be in conflict with their best interests or to be in competition with their
business, or which may interfere in any way with Employee's performance of his
duties hereunder.
1.4 SERVICE ON OTHER COMPANY BOARDS. Nothing in the Agreement shall
prohibit Employee from serving on the board of directors of any profit or
non-profit
Page 1
corporation not in direct competition with the Bank or with any subsidiary,
parent, sister or affiliated corporation of the Bank. 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 the
Bank or with any subsidiary, parent, sister or affiliated corporation of the
Bank, Employee may not own more than five percent (5%) of the outstanding shares
of such corporation.
2. TERM OF EMPLOYMENT.
2.1 TERM. The term of employment under the Agreement shall begin on
April 1, 2000 and end on March 31, 2002.
2.2 EXTENSIONS. Employee's term of employment under the Agreement may be
extended for successive one-year terms beyond the initial term of the Agreement
specified in Section 2.1, 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.
3. TERMINATION.
3.1 DEFINITION. As used in the Agreement, "termination" shall mean the
termination of Employee's employment relation with the Bank, whether initiated
by the Bank or by Employee, and whether for cause or without cause.
3.2 TERMINATION EVENTS. Notwithstanding any other provisions of the
Agreement, the employment of Employee shall terminate immediately on the earlier
to occur of any of the following:
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 ninety (90) days within any period of 180
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 the Bank 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 Bank shall not be unreasonable or arbitrary, and provided further that prior
to effecting a dismissal under this Section (iv) the Bank shall
Page 2
afford Employee with fair and reasonable warning and with a fair and reasonable
opportunity to cure any defects in Employee's performance.
3.3 TERMINATION BY EMPLOYEE. Employee may terminate his employment with
the Bank with or without cause by giving thirty (30) days written notice of
termination. "Cause" as used herein shall include the Bank's failure or refusal
to comply with the provisions of the Agreement.
3.4 EFFECT OF TERMINATION. The termination of Employee's employment
shall constitute a tender by Employee of his resignation as an officer of the
Bank, as a member of the Bank Board and any committees of the Bank Board on
which Employee serves at the time of termination, and as a member of any board
of directors or board committees of any subsidiary, parent, sister or affiliated
corporation of the Bank if Employee is a member thereof at the time of
termination.
3.5 PAYMENT ON TERMINATION. If Employee's employment is terminated by
Employee with or without cause, or by the Bank with or without cause, Employee
shall be paid all base salary and benefits accrued under the Agreement as of the
termination date.
3.6 SEVERANCE PAYMENT. If Employee's employment is terminated by
Employee with cause, or by the Bank 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 a severance payment equal to the greater
of (i) one month's base salary as of the date of termination multiplied by the
number of full calendar years Employee has been employed by the Bank, Bancorp or
any predecessor thereof, or (ii) one month's base salary as of the date of
termination multiplied by twelve (12). For purposes of Section 3.6(i) a period
of continuous full-time employment for six months or more in a calendar year
shall count as a full calendar year. If for any period Employee has been
employed simultaneously by the Bank and by one or more of its affiliates,
including Bancorp, such period shall count only once in determined the severance
payment under Section 3.6(i). The severance payment provided herein shall be
paid in full within thirty (30) days of the date of Employee's termination.
Employee shall not be entitled to such severance payment if Employee's
employment is terminated by the Bank with cause, or by Employee without cause,
and in either such case Employee shall only be entitled to receive on
termination a payment equal to Employee's base salary and benefits accrued under
the Agreement as of the termination date, and no other payments.
3.7 PERFORMANCE BONUS. If Employee's employment is terminated by
Employee with cause, or by the Bank without cause, Employee shall be paid, in
addition to the amounts payable under Sections 3.5 and 3.6 of the Agreement: (i)
all nonforfeitable deferred compensation, if any; and (ii) unpaid performance
bonus payments, if any, payable under Section 4.3 of the Agreement, which shall
be declared earned and payable based upon performance up to, and shall be
pro-rated as of, the date of termination. Employee shall not be entitled to such
unpaid performance bonus payments if Employee's employment is terminated by the
Bank with cause, or by Employee without cause.
Page 3
4. COMPENSATION.
4.1 BASE SALARY. For the period beginning April 1, 2000 and ending March
31, 2001, Employee shall be paid an annual base salary of $100,000.00, payable
in equal bimonthly installments and subject to any deductions required by law.
4.2 EXTENSIONS. On or before March 1, 2001, the Bank shall determine
Employee's annual base salary for the period beginning April 1, 2001 through the
remaining term of employment under the Agreement. If Employee's term of
employment under the Agreement has been extended, the Bank shall determine
Employee's annual base salary for subsequent periods of Employee's employment at
least 30 (thirty) days prior to the date of beginning of any such extended term.
4.3 PERFORMANCE BONUS. Employee shall be entitled to consideration for
annual performance bonus compensation for each calendar year constituting a
percentage of annual base salary earned from his employment by the Bank during
such calendar year. Bonus compensation shall be subject to any deductions
required by law. The Chief Executive Officer of Bancorp shall timely, and at
least once yearly, determine the amount of and the formulas and methods for
establishing such bonus compensation. The amount of such bonus compensation
shall at all times be discretionary, and the Bank may decline to award a
performance bonus to Employee in any year.
4.3.1 Employee shall be entitled to a pro-rata performance bonus for
less than a full year of performance if Employee's employment is terminated by
Employee with cause, or by the Bank without cause (including termination
following a change of control as described in Section 7.4 of the Agreement),
prior to the date on which Employee would otherwise be entitled to consideration
for Employee's annual performance bonus. In such circumstances, such pro-rata
performance bonus shall be declared earned and payable as of the date of
termination.
5. BENEFITS; PURCHASE OF SHARES.
5.1 ELIGIBILITY FOR GENERAL BENEFITS. Employee shall be eligible to
participate in any plan of the Bank or its affiliates relating to stock options,
stock purchases, profit sharing, group life insurance, medical coverage,
education and other retirement or employee benefits that the Bank or its
affiliates may adopt for the benefit of employees.
5.2 CAR ALLOWANCE. Employee shall receive a monthly car allowance of
$600.00.
5.3 ADDITIONAL BENEFITS. Employee shall be eligible to participate in
any other benefits which may be or become applicable to the Bank's executive
employees of similar rank. In addition, Employee shall be entitled to: (i) a
reasonable expense account for use in connection with the Bank business; and
(ii) any other benefits which in the judgment of the Bank Board or of Bancorp's
management are commensurate with the
Page 4
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 meetings of the Oregon Bankers Association and of
the Washington Bankers Association.
5.4 SHARE OWNERSHIP. During the term of the Agreement, including
extensions, Employee shall purchase shares of Bancorp Stock, including purchases
through the exercise of stock options, in accordance with the share ownership
policies and requirements established by Bancorp management in effect from time
to time for employees of comparable rank.
6. VACATIONS AND LEAVES.
6.1 PAID VACATION. During the term of the Agreement, Employee shall be
entitled to annual paid vacation benefits identical to those offered to
employees of the Bank holding executive positions. The timing of vacations shall
be scheduled in a reasonable manner by Employee. Employee shall not be entitled
to receive any additional compensation from the Bank 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 LEAVES WITH OR WITHOUT PAY. The Bank Board or the Chief Executive
Officer of Bancorp 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
Bank Board or the Chief Executive Officer of Bancorp may determine.
6.3 MANDATORY ABSENCE. In each calendar year Employee shall be absent
from 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. CHANGE OF CONTROL.
7.1 SURVIVAL OF RIGHTS. Employee's rights on termination of employment
under Section 3 of the Agreement, as well as all other rights of Employee under
the Agreement or applicable law, shall survive a change of control of Bancorp or
the Bank whether or not Employee opposed or favored the change of control.
7.2 RIGHTS ON CHANGE OF CONTROL. If a change of control of Bancorp or
the Bank occurs while the Agreement is in effect, Employee shall have ninety
(90) days following the date such change of control becomes effective to elect
to terminate Employee's employment with cause. If Employee so elects to
terminate, such termination shall constitute a termination by Employee with
cause, and Employee shall receive all payments and benefits due to Employee on
termination by Employee with cause under Section 3 of the Agreement.
Page 5
7.3 BASE COMPENSATION. Following a change of control, there shall be no
reduction in Employee's base compensation in effect prior to the effective date
of the change of control for a period of time equal to the greater of (i) twelve
(12) months from the effective date of the change of control; (ii) one (1) month
for each full calendar year Employee has been employed by the Bank; or (iii) the
remaining term of the Agreement, including any extensions thereof. For purposes
of this Subsection 7.3, a period of continuous full-time employment for six
months or more in a calendar year shall count as a full calendar year.
7.4 TERMINATION WITHOUT CAUSE. If following a change of control the Bank
terminates Employee's employment within one (1) year of the effective date of
the change of control because of a reduction in force or for any other reason,
other than for cause pursuant to Section 3.3 of the Agreement, such termination
shall constitute a termination by the Bank without cause, and Employee shall
receive all payments and benefits due to Employee on termination under Sections
3.5 and 3.6 of the Agreement, plus: (i) all nonforfeitable deferred
compensation, if any; and (ii) unpaid performance bonus payments, if any,
payable under Section 4.3 of the Agreement, which shall be declared earned and
payable based upon performance up to, and shall be pro-rated as of, the date of
termination.
7.5 OPTIONS AND STOCK. 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.
7.6 DEFINITION. As used in this Section, "control" shall mean the
acquisition during Employee's employment of twenty-five percent (25%) or more of
the voting securities of Bancorp or the Bank 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 or the Bank. 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 or other
affiliates.
8. POST TERMINATION COVENANTS.
8.1 GENERAL NON-COMPETE COVENANTS. If Employee terminates his employment
without cause, or if Employee's employment is terminated by the Bank for
Page 6
cause, then for one year from the date of such termination Employee shall not,
without the prior written consent of the Bank:
8.1.1 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 Yamhill, Wasco,
Hood River, Jefferson, Deschutes, Xxxxxxx or Xxxxxxx Counties, Oregon, in
Klickitat County, Washington, or in any other county in Oregon or Washington in
which the Bank or any subsidiary, parent, sister or affiliated corporation of
the Bank has a place of business at the time of termination; or
8.1.2 Hire for any financial institution or other employer
(including himself) any employee of the Bank or any subsidiary, parent, sister
or affiliated corporation of the Bank, 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 Yamhill, Wasco,
Hood River, Jefferson, Deschutes, Xxxxxxx or Xxxxxxx Counties, Oregon, in
Klickitat County, Washington, or in any other county in Oregon or Washington in
which the Bank or any subsidiary, parent, sister or affiliated corporation of
the Bank has a place of business at the time of termination.
8.2 LIQUIDATED DAMAGES FOR BREACH OF NON-COMPETE COVENANTS; OTHER
REMEDIES. If Employee breaches the covenants of Section 8.1, Employee shall be
liable to the Bank for liquidated damages equal to the lesser of (i) $18,000, or
(ii) $1,500 multiplied by the number of months (including fractions thereof)
between the date of breach and one year from the date of Employee's termination
of employment. For example, if the date of breach occurs six months after the
date of Employee's termination, liquidated damages shall be $9,000 (6 x $1,500).
The parties agree that the Bank's actual money damages upon Employee's breach
will be difficult to compute, and further agree that the liquidated damages
formula provided herein reasonably represents the Bank's actual money damages.
Employee shall pay the liquidated damages required hereunder within ten (10)
days of the date the Bank makes written demand for such payment. Nothing herein
shall preclude the Bank from enforcing any other legal or equitable remedies it
may have upon Employee's breach, including injunctive relief. Such other
remedies may be enforced in addition to the Bank's right to liquidated damages
under this Section.
8.3 LIMITATION. The covenants in Section 8.1 do not apply if Employee
terminates his employment for cause, if Employee terminates his employment for
any reason within ninety (90) days after the effective date of a change of
control within the meaning of Section 7 of the Agreement, or if Employee's
employment is terminated by the Bank without cause.
8.4 ADDITIONAL COVENANTS. The following provisions shall apply and be
binding on Employee following Employee's termination of employment under all
circumstances, whether termination occurred with cause, without cause, following
illness or disability, because of a change of control, or for any other reason:
Page 7
8.4.1 Employee shall fully cooperate in the defense or prosecution
of any litigation arising from or relating to matters about which Employee has
knowledge based on his employment or other work, paid or unpaid, for the Bank
and its affiliates. To the extent allowed by law Employee shall receive
reasonable compensation in connection with his performance under this Section
8.4.1;
8.4.2 Employee shall at all times keep all confidential and
proprietary information gained from his employment by the Bank, or from other
previous, present or subsequent paid or unpaid work for the Bank and its
affiliates, in strictest confidence, and will not disclose or otherwise
disseminate such information to anyone, other than to employees of the Bank or
its affiliates, except as may be required by law, regulation or subpoena; and
8.4.3 Employee shall not take or use for any purpose confidential or
proprietary information of the Bank or its affiliates, including without
limitation customer or potential customer lists and trade secrets.
9. MISCELLANEOUS.
9.1 RECITALS; LAW; AMENDMENTS. 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.
9.2 ENTIRE AGREEMENT. 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.
9.3 COUNTERPARTS. 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.
9.4 SUCCESSORS AND ASSIGNS. All rights and duties of the Bank under the
Agreement shall be binding on and inure to the benefit of the Bank's successors
and assigns, including any person or entity which acquires a controlling
interest in the Bank and any person or entity which acquires all or
substantially all of the Bank's assets. The Bank 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
Page 8
distribution. The Agreement shall inure to the benefit of and be enforceable by
Employee's estate or legal representative.
9.5 WAIVER. 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.
9.6 ARBITRATION. 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.
9.7 EMPLOYEE HANDBOOK. Employee agrees to be bound by the terms and
conditions of any employee handbook of the Bank or its affiliates as may be in
effect from time to time, except that in the event of a conflict between such
employee handbook and the Agreement, the Agreement shall control.
9.8 CAPTIONS. All captions, titles and headings in the Agreement are for
convenience only, and shall not be construed to limit any term of the Agreement.
9.9 DEFINITION. When used herein in reference to a corporation,
"affiliate" shall mean, without limitation, any parent or subsidiary of the
corporation and any entity controlled by the corporation.
9.10 EXCEPTIONS. The Bank Board or the management of Bancorp may, in its
discretion, make exceptions to one or more of the conditions contained in the
Agreement, provided that any such exceptions must be approved in writing.
9.11 PRIOR CONTRACTS. This Agreement replaces and supersedes all prior
written employment agreements between the parties, specifically including the
Employment Agreement of May 15, 1999.
_____________________________________
Employee
COLUMBIA RIVER BANK
By: _________________________________
Chairman
Page 9
