EXHIBIT 10.19
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT, effective April 30, 2002 between COLUMBIA BANCORP, a
Maryland corporation (the "Corporation"), THE COLUMBIA BANK, a Maryland trust
company and a principal subsidiary of the Corporation (the "Bank"), and ________
(the "Executive"), amends the Employment Agreement between the Corporation, the
Bank and the Executive, dated _____________________ .
W I T N E S S E T H:
The Corporation and the Bank (each, a "Company" and collectively, the
"Companies") recognized the Executive's contribution to the organization, growth
and success of the Companies and entered into the Employment Agreement with the
Executive to secure his services. The Companies and the Executive desire to
amend the Employment Agreement as set forth below in this Second Amendment to
provide for the extension of health benefits for a period of ten years upon a
change in control.
Accordingly, in consideration of the mutual covenants and representations
contained herein and the mutual benefits derived herefrom, the Companies and the
Executive agree to amend the Employment Agreement as follows:
1. Paragraph 5.2 shall be amended to read as follows:
"5.2. Amount of Payments. Except as provided in paragraph 5.2(e),
and in lieu of amounts payable under paragraph 4, the Companies will pay
the Executive the following amounts in the following circumstances:
(a) (i) If the Executive is terminated by either of the
Companies in the circumstances described under paragraph 4.3(a)(i), or
if the Executive resigns during a Change in Control Period in the
circumstances described under paragraph 4.3(a)(ii), or if during a
Change in Control Period the Executive resigns in circumstances other
than those described under paragraph 4.3(a)(ii) without having been
offered an employment agreement the terms of which are comparable to
those of this Agreement, the Companies will pay, or cause to be paid,
to the Executive: (a) if the Executive's termination or resignation
occurs before the Executive has attained the age of 63 years, an
amount equal to two times the sum of (i) the Executive's annual base
salary immediately before the Change in Control and (ii) the average
of the bonuses paid to the Executive over the past three years
(including years in which no bonus was awarded); or (b) if the
Executive's termination or resignation occurs on or after the
Executive has attained the age of 63 years, an amount equal to the
amount set forth in
paragraph 5.2(a)(i)(a) multiplied by a fraction, the numerator of
which shall be 730 minus the number of days which have passed since
the Executive's 63rd birthday, and the denominator of which shall be
730.
(ii) Such payment shall be made in one lump sum within 15
business days after the Executive's termination or resignation.
(b) (i) If the Executive resigns during a Change in Control
Period in circumstances other than those described under paragraph
4.3(a)(ii) after having been offered an employment agreement the terms
of which are comparable to those of this Agreement, the Companies will
pay, or cause to be paid, to the Executive: (a) if the Executive's
resignation occurs before the Executive has attained the age of 64
years, an amount equal to the sum of (i) the Executive's annual base
salary immediately before the Change in Control and (ii) the average
of the bonuses paid to the Executive over the past three years
(including years in which no bonus was awarded); or (b) if the
Executive's resignation occurs on or after the Executive has attained
the age of 64 years, an amount equal to the amount set forth in
paragraph 5.2(b)(i)(a) multiplied by a fraction, the numerator of
which shall be 365 minus the number of days which have passed since
the Executive's 64th birthday, and the denominator of which shall be
365.
(ii) Such payment shall be made in one lump sum within 15
business days after the Executive's resignation.
(c) Except as provided in paragraph 5.2(e), if the Executive is
terminated by the Companies or resigns as described in paragraph
5.2(a), or resigns as described in paragraph 5.2(b), the Executive
shall continue to receive all health, life, and disability insurance
benefits available to him pursuant to paragraph 1.2(b) of this
Agreement that he was receiving immediately before such termination or
resignation. The Executive shall pay the same percentage of the total
cost of such coverage as he was paying when his employment terminated.
The total cost of the Executive's continued coverage shall be
determined using the same rates for health, life and/or disability
coverage that apply from time to time to similarly situated active
employees. The Executive shall continue to receive such benefits until
the earliest of (i) such time as the Executive shall have been
receiving substantially similar insurance benefits for six months
under subsequent employment, (ii) in the case of life and disability
benefits, 24 months after the date of a termination or resignation
described in paragraph 5.2(a) or 12 months after the date of a
resignation described in paragraph 5.2(b), (iii) in the case of health
benefits, 10 years after the
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date of termination or resignation described in paragraph 5.2(a) or 12
months after the date of resignation described in paragraph 5.2(b), or
(iv) such date as the Executive shall have attained the age of 65
years.
(d) All options granted to the Executive under the Corporation's
stock option award arrangements providing for the granting of options
to acquire common stock to founders, directors and key employees shall
immediately become fully vested in the event of a Change in Control.
(e) The Executive is to receive no payments under paragraph
5.2(a) or (b) and no benefits under paragraph 5.2(c) if the Executive
is terminated during a Change in Control Period after having already
attained the age of 65 years, or if the Executive is terminated by
either of the Companies during a Change in Control Period upon the
death or total disability of the Executive or for cause. In an
instance of death or total disability of the Executive, however, the
Executive and his dependents, beneficiaries and estate shall receive
any benefits payable to them under paragraphs 4.2 (c) and 4.2 (d).
(f) (i) The Executive shall bear all expense of, and be
solely responsible for, all federal, state, or local taxes due with
respect to any payment received hereunder, including, without
limitation, any excise tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"); provided, however, that
any payment or benefit received or to be received by the Executive in
connection with a Change in Control or the termination of the
Executive's employment (whether payable pursuant to the terms of this
Agreement ("Contract Payments") or any other plan, arrangements or
agreement with the Companies or any affiliate (collectively with the
Contract Payments, the "Total Payments") shall be reduced to the
extent necessary so that no portion thereof shall be subject to the
excise tax imposed by Section 4999 of the Code but only if, by reason
of such reduction, the net after-tax benefit received by the Executive
shall exceed the net after-tax benefit received by the Executive if no
such reduction was made.
(ii) For purposes of this paragraph 5.2(f), "net after-tax
benefit" shall mean (i) the total of all payments and the value of all
benefits which the Executive receives or is then entitled to receive
from the Companies that would constitute "parachute payments" within
the meaning of Section 280G of the Code, less (ii) the amount of all
federal, state and local income taxes payable with respect to the
foregoing calculated at the maximum marginal income tax rate for each
year in which the foregoing shall be paid to the Executive (based
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on the rate in effect for such year as set forth in the Code as in
effect at the time of the first payment of the foregoing), less (iii)
the amount of excise taxes imposed with respect to the payments and
benefits described in (i) above by Section 4999 of the Code.
(iii) The foregoing determination shall be made by a
nationally recognized accounting firm (the "Accounting Firm") selected
by the Companies and reasonably acceptable to the Executive (which may
be, but will not be required to be, the Companies' independent
auditors). The Accounting Firm shall submit its determination and
detailed supporting calculations to both the Executive and the
Companies within fifteen (15) days after receipt of a notice from
either of the Companies or from the Executive that the Executive may
receive payments which may be "parachute payments." If the Accounting
Firm determines that such reduction is required by this paragraph
5.2(f), the Executive, in the Executive's sole and absolute
discretion, may determine which Total Payments shall be reduced or
forfeited to the extent necessary so that no portion thereof shall be
subject to the excise tax imposed by Section 4999 of the Code, and the
Companies shall pay such reduced amount to the Executive. If the
Accounting Firm determines that no reduction or forfeiture is
necessary under this paragraph 5.2(f), it will, at the same time as it
makes such determination, furnish the Executive and the Companies an
opinion that Executive shall not be liable for any excise tax under
Section 4999 of the Code. The Executive and the Companies shall each
provide the Accounting Firm access to and copies of any books,
records, and documents in the possession of the Executive or the
Companies, as the case may be, reasonably requested by the Accounting
Firm, and otherwise cooperate with the Accounting Firm in connection
with the preparation and issuance of the determinations and
calculations contemplated by this paragraph 5.2(f). The fees and
expenses of the Accounting Firm for its services in connection with
the determinations and calculations contemplated by this paragraph
5.2(f) shall be borne by the Companies.
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IN WITNESS WHEREOF, the parties have executed and delivered this Second
Amendment to the Employment Agreement on this ___ day of ______, 2002.
ATTEST: COLUMBIA BANCORP
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Xxxx X. Xxxx, Xx.
President and Chief Executive Officer
ATTEST: THE COLUMBIA BANK
------------------------- ----------------------------------------
Xxxx X. Xxxx, Xx.
President and Chief Executive Officer
WITNESS:
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Executive
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