EXHIBIT 10.1
2006 EMPLOYMENT AGREEMENT
Columbia River Bank - Xxxxx X. XxXxxx
This Employment Agreement (the "Agreement") is made and entered into
effective the 1st day of April 2006 by and between Columbia River Bank, an
Oregon corporation ("Bank") and Xxxxx X. XxXxxx ("Employee").
RECITALS
(1) Bank is a state-chartered Oregon financial institution, and is the
wholly owned subsidiary of Columbia Bancorp ("Bancorp"). Bancorp's principal
office is at 000 Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxx 00000.
(2) Bank desires to employ Employee as an officer of Bank on the terms and
conditions set forth herein.
Now, therefore, it is agreed:
1. RELATIONSHIP AND DUTIES.
1.1 EMPLOYMENT AND TITLE. Bank shall employ Employee as an officer of Bank
with the title of Executive Emeritus. Subject to the terms and conditions
hereof, employee shall perform such duties and exercise such authority subject
to the general direction of the President and Chief Executive Officer of the
Bank and of the Boards of Directors of Bancorp and the Bank. Such services and
duties shall be exercised in good faith and in accordance with standards of
reasonable business judgment. As used herein, references to "Bank" shall be
deemed to also refer to and include Bancorp where the context requires.
1.2 DUTIES; CONFLICTS. Employee shall devote his time, attention and
efforts to the diligent performance of his duties while performing as an officer
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, or any subsidiary, parent, sister
or affiliated corporation of Bancorp, considers to be in conflict with their
best interests or to be in competition with their business, or which may
interfere in any substantial way with Employee's performance of his duties
hereunder.
1.3 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 corporation not in direct competition with Bancorp or with any
subsidiary, parent, 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.
2. TERM OF EMPLOYMENT.
2.1 THREE-YEAR TERM. The term of employment under the Agreement shall
begin on April 1, 2006 and end on March 31, 2009.
3. TERMINATION.
3.1 DEFINITION. As used in the Agreement, "termination" shall mean the
termination of Employee's employment relation with Bank, whether initiated by
Bank or by Employee, and whether for cause or without cause.
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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 The discharge of Employee by Bank for cause. "Cause" as used
herein shall mean (i) Employee's gross negligence or willful 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
Bank shall not be unreasonable or arbitrary, and provided further that prior to
effecting a dismissal under this Section (iv) Bank shall afford Employee with
fair and reasonable written 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
Bank with or without cause by giving thirty (30) days written notice of
termination. "Cause" as used herein shall include 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 Bank, and as
a member of any board of directors or board committees of Bancorp or its
affiliates 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 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 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 (based on an annual salary figure equal to $119,000
rather than Employee's actual annual salary) multiplied by the number of full
calendar years Employee has been employed by Bank or any predecessor thereof, or
(ii) one month's base salary (based on an annual salary figure equal to $119,000
rather than Employee's actual annual salary) 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 Bank and by one or more
of its affiliates, such period shall count only once in determining 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 Bank with cause, in which 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 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 4.2 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 Bank with
cause, or by Employee without cause.
3.8 EFFECT OF DISABILITY. Notwithstanding any other provision of the
Agreement, Employee's inability to perform the services required of Employee
under the Agreement because of disability shall not constitute cause for
termination; provided, that Employee shall receive no base salary under the
Agreement for hours not worked as a result of such disability. Nothing herein
shall preclude Employee from utilizing earned and available sick leave during
any period of disability. "Disability" as used herein shall mean the
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inability of Employee, due to illness, accident, or other physical or mental
incapacity, to perform the services required under the Agreement.
3.9 EARLY TERMINATION OPTION. Notwithstanding any other provision in the
Agreement or any retirement arrangement contract between the parties, Employee
may terminate his employment with the Bank without cause at any time on or after
April 1, 2006 and if Employee does so, Bank shall pay Employee the sum of $6,000
per month (with a pro-rata payment for any partial month) for the period
beginning on the date of such termination by Employee through and including
March, 2008.
4. COMPENSATION.
4.1 BASE SALARY AND HOURS. For the period beginning April 1, 2006 and
ending March 31, 2009 Employee shall be paid an annual base salary of $72,000,
payable in equal bimonthly installments and subject to any deductions required
by law. Employee shall devote no less than one hundred twenty (120) hours per
four-week period to his duties under the Agreement; provided, that Employee's
failure or refusal to work in excess of 120 hours per such for-week period shall
not constitute cause for termination.
4.2 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 Bank during such
calendar year. Bonus compensation shall be subject to any deductions required by
law. The Bank or Bancorp Board 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 Bank may decline to award a performance bonus to Employee in
any year.
4.2.1 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 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 Bank or its affiliates
may adopt for the benefit of employees.
5.2 CAR ALLOWANCE. Employee shall receive no car allowance.
5.3 ADDITIONAL BENEFITS. Employee shall be eligible to participate in any
other benefits which may be or become applicable to Bank's employees of similar
rank. In addition, Employee shall be entitled to: (i) a reasonable expense
account for use in connection with Bank business; and (ii) any other benefits
which in Bank'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 meetings of the Oregon 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 or Bank management in effect
from time to time for employees of comparable rank.
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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 Bank holding executive vice president or higher positions, subject
to adjustment based on Employee's part-time status pursuant to the mutual
agreement of the parties. The timing of vacations shall be scheduled in a
reasonable manner by Employee. Employee shall not be entitled to receive any
additional compensation from 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 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 Board may determine.
6.3 MANDATORY ABSENCE. In each calendar year Employee shall be absent from
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
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 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.
7.3 BASE COMPENSATION. Following a change of control, Bank shall not
reduce 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 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.
7.4.1 If following a change of control which is effective on or
before December 31, 2006 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 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 4.2 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.
7.4.2 If following a change of control which is effective on or
after April 1, 2006 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 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 4.2 of the Agreement, which shall be
declared earned and payable
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based upon performance up to, and shall be pro-rated as of, the date of
termination; provided, that the severance payment under Section 3.6 shall be
determined based on Employee's actual base salary at the time of termination
rather than on an annual base salary equal to $119,000.
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 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 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 NON-COMPETE COVENANTS. If Employee terminates his employment without
cause, or if Employee's employment is terminated by Bank for cause, then for one
year from the date of such termination Employee will not, without the prior
written consent of 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 Bancorp or any of its affiliates 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 Bancorp or any of its affiliates, 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 Bancorp or any of its affiliates 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 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 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 Bank's actual money damages. Employee
shall pay the liquidated damages required hereunder within ten (10) days of the
date Bank makes written demand for such payment. Nothing herein shall preclude
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 Bank's right to liquidated damages under this Section.
8.3 LIMITATION. The covenants in Sections 8.1 and 8.2 do not apply if
Employee terminates his employment for cause, if Employee terminates his
employment for any reason within ninety (90) days
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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 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:
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 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 Bank, or from other
previous, present or subsequent paid or unpaid work for Bank and its affiliates,
in strictest confidence, and will not disclose or otherwise disseminate such
information to anyone, other than to employees of 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 Bank or its affiliates, including without limitation
customer or potential customer lists and trade secrets.
8.5 ADVANCEMENT OF EMPLOYEE. Employee acknowledges and agrees that the
Agreement constitutes either an initial employment of Employee, insofar as
Employee's previous contract with Employer has expired, or constitutes a bona
fide advancement of Employee with the Employer under ORS 653.295 in several
respects.
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 Bank under the
Agreement shall be binding on and inure to the benefit of Bank's successors and
assigns, including any person or entity which acquires a controlling interest in
Bank and any person or entity which acquires all or substantially all of Bank's
assets. 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 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,
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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 National Rules For The Resolution of
Employment Disputes. 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 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 Bank may, in its
discretion, make exceptions to one or more of the conditions imposed upon
Employee contained in the Agreement, provided that any such exceptions must be
approved in writing.
9.11 PRIOR CONTRACTS. The Agreement replaces and supersedes all prior
written employment agreements and amendments thereof between the parties.
________________________________________
Employee
COLUMBIA RIVER BANK
By:
_____________________________________
Title:
__________________________________
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FIRST AMENDMENT TO 2002 SPLIT DOLLAR AGREEMENT
COLUMBIA RIVER BANK - XXXXX X. XxXXXX
This Amendment (the "Amendment") is made and entered into effective the
1st day of April, 2006 by and between COLUMBIA RIVER BANK, a state-chartered
commercial bank located in The Dalles, Oregon (the "Bank"), and XXXXX X. XxXXXX
(the "Executive").
RECITALS
WHEREAS, the Executive and the Bank made and entered into a 2002 Split
Dollar Agreement (the "Agreement") on the 18th day of January, 2002; and
WHEREAS, the Executive and the Bank wish to specify in writing certain
amendments to the Agreement;
NOW, THEREFORE, in consideration of the services to be performed by the
Executive in the future, as well as the mutual promises and covenants contained
herein, the Executive and the Bank agree as follows:
1. Increase in Benefit Coverage. Effective April 1, 2006, the coverage
afforded to Insured under the Agreement shall be increased to $215,000.00, and
Insured's transferee or beneficiary shall have rights in and to the designated
proceeds whether or not Insured is terminated from employment, and regardless of
whether any such termination occurs prior to Insured's Normal Retirement Age.
2. Ratification. Executive and the Bank hereby reaffirm and ratify all
remaining terms of the Agreement not specifically amended
herein.
_______________________________________
Executive
COLUMBIA RIVER BANK
By:
____________________________________
Title:
_________________________________
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FIRST AMENDMENT TO EXECUTIVE SALARY CONTINUATION AGREEMENT
COLUMBIA RIVER BANK - XXXXX X. XxXXXX
This Amendment (the "Amendment") is made and entered into effective the
1st day of April, 2006 by and between COLUMBIA RIVER BANK, a state-chartered
commercial bank located in The Dalles, Oregon (the "Bank"), and XXXXX X. XxXXXX
(the "Executive").
RECITALS
WHEREAS, the Executive and the Bank made and entered into an Executive
Salary Continuation Agreement (the "Agreement") on the 3rd day of June, 2002;
and
WHEREAS, the Executive and the Bank wish to specify in writing certain
amendments to the Agreement;
NOW, THEREFORE, in consideration of the services to be performed by the
Executive in the future, as well as the mutual promises and covenants contained
herein, the Executive and the Bank agree as follows:
1. Amendment of Section 2.1(1). Section 2.1(1) of the Agreement is amended
to provide:
"2.1(1) Amount of Benefit. The annual benefit under this Section 2.1
is $ 23,000. Commencing at the end of the first Payment Year, and each Payment
Year thereafter, the annual benefit shall be increased 3% percent from the
previous Payment Year."
2. Ratification. Executive and the Bank hereby reaffirm and ratify all
remaining terms of the Agreement not specifically amended herein.
_______________________________________
Executive
COLUMBIA RIVER BANK
By:
____________________________________
Title:
_________________________________
Page 9 - 2006 EMPLOYMENT AGREEMENT (CRB - XxXxxx)
