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EXHIBIT 10.2
DEFERRED COMPENSATION AGREEMENT
This Deferred Compensation 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 ("Xxxxxxx").
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) Xxxxxxx is now employed full-time by Bancorp as
President and Chief Executive Officer of Bancorp and of the Bank. Xxxxxxx has
served as President and Chief Executive Officer of Bancorp since its formation
in 1995, and has served in many positions at the Bank, including President and
Chief Executive Officer, since 1981.
(3) Bancorp recognizes the contributions that Xxxxxxx has
made to the success and profitability of the Bank and of Bancorp, and desires
to provide deferred compensation and other consideration to Xxxxxxx as
compensation for his services and for the confidentiality covenants set forth
in the Agreement.
Now, therefore, it is agreed:
1. Deferred Compensation.
1.1 Xxxxxxx shall become eligible for deferred
compensation under the Agreement upon his retirement as a full-time employee of
Bancorp; provided, that in no event shall Xxxxxxx be entitled to deferred
compensation payments under the Agreement prior to May 15, 1998 regardless of
the date of Xxxxxxx'x termination of employment by retirement or otherwise.
1.2 Beginning on the first 15th day of May immediately
following the date of Xxxxxxx'x retirement, and on the 15th day of May of each
year thereafter through and including May 15, 2004, Bancorp shall pay Xxxxxxx
deferred compensation consisting of (i) $26,000 per year, plus (ii) Accrued
Interest as provided in Section 1.3 herein.
1.3 Payment of the Accrued Interest described in Section
1.2(ii) has been provided for by the purchase of a $120,000 market rate
certificate of deposit (the "CD") on December 26, 1995. The CD, which matures
on May 15, 1997, was purchased to fund such payments. Upon the maturity of the
CD a new market rate certificate of deposit shall be purchased with a
comparable maturity for the same purpose as long as Xxxxxxx is entitled to
deferred compensation payments under the Agreement. Any interest earned (the
"Accrued Interest") on the CD and any subsequent certificates of deposit
purchased under the Agreement shall be paid to Xxxxxxx as follows: (i) on the
first May 15 on which Xxxxxxx is paid his first yearly deferred compensation
payment
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under the Agreement, Xxxxxxx shall also be paid all Accrued Interest
earned from the first date the CD and any subsequent certificates of deposit
began earning interest through the May 15 of the year in which Xxxxxxx is paid
such first yearly payment; (ii) on the 15th day of May of each year thereafter
through and including May 15, 2004, Xxxxxxx shall be paid all Accrued Interest
earned from the CD and any subsequent certificates of deposit from May 15 of
the previous calendar year through May 15 of the current payment year.
1.4 For the purposes of this Agreement, Xxxxxxx shall be
deemed "retired" on and as of the date of occurrence of one or more of the
following: (i) the date of expiration of Xxxxxxx'x term of employment under the
Employment Agreement of May 14, 1996 between the parties where such term has
not been extended; (ii) the effective date of termination of Xxxxxxx'x
employment by Bancorp or by Xxxxxxx, with or without cause; or (iii) such other
date on which the parties may mutually agree in writing.
1.5 If prior to retirement Xxxxxxx is terminated by
Bancorp with cause, Xxxxxxx shall not be entitled to any deferred compensation
payments or any benefits under Section 1.6 or elsewhere in the Agreement, and
the Agreement shall as of such termination date be null and void.
1.6 As additional consideration under the Agreement, from
and after the date of Xxxxxxx'x retirement through May 15, 2004, Bancorp shall
provide Xxxxxxx with all medical, dental, disability, vision and life insurance
which Bancorp or the Bank provides to full-time employees.
2. Change of Control.
2.1 If there is a change of control of Bancorp on or at
any time prior to May 15, 2004, Xxxxxxx shall continue to be entitled to
receive the deferred compensation provided in Section 1 of the Agreement.
2.2 If Xxxxxxx 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 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.
2.3 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
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Stock Ownership Plan established for the benefit of employees of Bancorp or any
of its subsidiaries.
3. Covenants.
3.1 Xxxxxxx shall at all times fully cooperate with
Bancorp and its affiliates in the defense or prosecution of any litigation
arising from or relating to matters about which Xxxxxxx has knowledge based on
his employment or other work, paid or unpaid, for Bancorp and its affiliates.
3.2 Xxxxxxx shall at all times keep all confidential and
proprietary information gained from his employment by Bancorp, or other
previous and present paid or unpaid work for Bancorp and its affiliates, in
strictest confidence, and will not disclose or otherwise disseminate such
information to anyone, other than to Board members or employees of Bancorp or
its affiliates, except as may be required by law, regulation or subpoena.
4. Miscellaneous.
4.1 Xxxxxxx'x retirement shall not be deemed a retirement
or general termination under Section 8 of the Bank's 1993 Stock Incentive Plan
or any successor plan, and shall therefore not limit the time within which
Xxxxxxx may exercise his stock option rights thereunder, except as otherwise
provided under the Plan or any successor plan or under applicable law.
4.2 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.
4.3 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.
4.4 The Agreement shall be effective and binding upon the
parties as of and from and after May 14, 1996 until its expiration or
termination as provided herein. Xxxxxxx'x rights under the Agreement are in
addition to Xxxxxxx'x rights under the Employment Agreement of May 14, 1996
between the parties.
4.5 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.
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4.6 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 person or entity which acquires a controlling interest
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 Xxxxxxx under the Agreement. Xxxxxxx may not
assign or transfer Xxxxxxx'x rights or interests in or under the Agreement
other than by a will or by the laws of descent and distribution.
4.7 The Agreement, including the payment rights provided
in the Agreement, shall inure to the benefit of and be enforceable by Xxxxxxx'x
estate or legal representative. Without limitation of the foregoing, it is
understood and agreed that if Xxxxxxx'x employment is terminated prior to the
first date on which Xxxxxxx becomes eligible for the deferred compensation
payments provided under the Agreement, and if such termination is due to death,
disability or any other reason, other than termination with cause as described
in Section 1.5 herein, Xxxxxxx or his estate shall be entitled to all deferred
compensation payments hereunder from and after the first such date of
eligibility.
4.8 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.
4.9 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.
[SIG]
______________________________________
Xxxxx X. Xxxxxxx
COLUMBIA BANCORP
[SIG]
By:____________________________________
Chairman of the Board
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