EXHIBIT 10.26
COLUMBIA RIVER BANK
EXECUTIVE SALARY CONTINUATION AGREEMENT
THIS AGREEMENT is adopted effective October 1, 2003 by and between
COLUMBIA RIVER BANK, a state-chartered commercial bank with headquarters in The
Dalles, Oregon (the "Bank") and R. XXXXX XXXXXX (the "Executive").
RECITALS
WHEREAS, the Executive is an employee of the Bank;
WHEREAS, the Executive's experience and knowledge of the affairs of the
Bank and the banking industry are extensive and valuable;
WHEREAS, the Bank desires to establish a compensation benefit program
consisting of salary continuation benefits for the Executive, to be paid from
the Bank's general assets.
WHEREAS, it is deemed to be in the best interests of the Bank to provide
the Executive with such benefits, on the terms and conditions set forth herein,
in order to reasonably induce the Executive to remain in the Bank's employment;
and
WHEREAS, the Executive and the Bank wish to specify in writing the terms
and conditions upon which this additional compensatory incentive will be
provided to the Executive;
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:
SECTION 1 - Definitions
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
"Accrual Balance" means the liability that should be accrued by the Bank,
under Generally Accepted Accounting Principles ("GAAP"), for the Bank's
obligation to the Executive under this Agreement, by applying Accounting
Principles Board Opinion Number 12 ("APB 12") as amended by Statement of
Financial Accounting Standards Number 106 ("FAS 106") and the Discount Rate. Any
one of a variety of amortization methods may be used to determine the Accrual
Balance. However, once chosen, the method must be consistently applied. The
Accrual Balance shall be reported by the Bank to the Executive on Schedule A.
"Change of Control" means the transfer of shares of the Bank's voting
common stock, within twelve (12) months by the Executive's Termination of
Employment for reasons
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other than death, Disability or retirement, such that one entity or one person
acquires (or is deemed to acquire when applying Section 318 of the Code)
"control" of the Bank's common stock. As used herein, "control" shall mean the
acquisition of twenty-five percent (25%) or more of the voting securities of the
Bank or its holding company 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 the Bank or its holding company. 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 the Bank, its holding company, or any of its affiliates.
"Code" means the Internal Revenue Code of 1986, as amended.
"Demotion" means (1) a material reduction in the Executive's duties
coupled with the Executive's loss of his or her existing executive officer
title; or (2) a material reduction in the Executive's base salary, incentive
compensation or benefits.
"Disability" means the Executive's suffering a sickness, accident or
injury which has been determined by the carrier of any individual or group
disability insurance policy covering the Executive, or by the Social Security
Administration, to be a disability rendering the Executive totally and
permanently disabled. The Executive must submit proof to the Bank of the
carrier's or Social Security Administration's determination upon the request of
the Bank.
"Discount Rate" means the rate used by the Bank for determining the
Accrual Balance. The initial Discount Rate is eight percent (8%). However, the
Bank, in its sole discretion, may adjust the Discount Rate to maintain the rate
within reasonable standards according to GAAP.
"Early Termination" means Termination of Employment prior to Normal
Retirement Age for reasons other than death, Disability, Termination for Cause
or following a Change of Control.
"Early Termination Date" means the month, day and year in which Early
Termination occurs.
"Effective Date" means 10/01/03.
"Holding Company" shall mean Columbia Bancorp, the parent corporation of
the Bank.
"Normal Retirement Age" means the Executive's sixty-second (62nd)
birthday.
"Normal Retirement Date" means the later of the Normal Retirement Age or
Termination of Employment.
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"Plan Year" means a twelve-month period commencing on October 1 and ending
on September 30 of each calendar year.
"Schedule A" means the benefit description form attached to this
Agreement, which is updated by the Bank on an annual basis. If there is a
conflict in any terms or provisions between the Schedule A and this Agreement,
the terms and provisions of this Agreement shall prevail.
"Termination for Cause" shall have the meaning set forth in Section 5
herein.
"Termination of Employment" means that the Executive ceases to be employed
by the Bank for any reason, voluntary or involuntary, other than by reason of a
leave of absence approved by the Bank.
SECTION 2 -Benefits During Lifetime
2.1 Normal Retirement Benefit. Upon Termination of Employment on or after
the Normal Retirement Age for reasons other than death, the Bank shall pay to
the Executive the benefit described in this Section 2.1 in lieu of any other
benefit under this Agreement.
(1) Amount of Benefit. The. annual benefit under this Section 2.1 is
$72,000 (Seventy-Two Thousand Dollars). Commencing on the first
anniversary of the first benefit payment following Termination of
Employment, and continuing on each subsequent anniversary, the Bank shall
increase this benefit by three percent (3%) from the previous anniversary
date.
(2) Payment of Benefit. The Bank shall pay the annual benefit to the
Executive in twelve (12) equal monthly installments commencing with the
first of the month following the Executive's Normal Retirement Date,
paying the annual benefit to the Executive for a period of twenty (20)
years.
2.2 Early Termination Benefit. Upon Early Termination, the Bank shall pay
to the Executive the benefit described in this Section 2.2 in lieu of any other
benefit under this Agreement.
(1) Amount of Benefit. The benefit under this Section 2.2is
the one hundred percent (100%) of the Accrual Balance at Termination
of Employment.
(2) Payment of Benefit. The Bank shall pay the annual benefit
to the Executive in twelve (12) equal monthly installments
commencing with the first of the month following the Executive
attaining Normal Retirement Age, paying the annual benefit to the
Executive for a period of twenty (20) years.
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2.3 Disability Benefit. Upon Termination of Employment due to Disability
prior to Normal Retirement Age, the Bank shall pay to the Executive the benefit
described in this Section 2.3 in lieu of any other benefit under this Agreement.
(1) Amount of Benefit. The benefit under this Section 2.3 is
one hundred percent (100%) of the Accrual Balance at Termination of
Employment.
(2) Payment of Benefit. The Bank shall pay the annual benefit
to the Executive in twelve (12) equal monthly installments
commencing with the first of the month following the Termination of
Employment, paying the annual benefit to the Executive for a period
of twenty (20) years.
2.4 Change of Control Benefit. Upon a Change of Control, followed within
the time periods described below by the Executive's Demotion, or Termination of
Employment for reasons other than death, Disability or retirement, the Bank
shall pay to the Executive the benefit described in this Section 2.4 in lieu of
any other benefit under this Agreement.
(1) Amount of Benefit. The benefit under this Section 2.4 is
the Change of Control Annual Benefit. The amount of this benefit is
determined at the time of Termination of Employment or Demotion as
follows:
(i) if the Termination of Employment or Demotion occurs
within twelve (12) months of the Change of Control, by (a)
vesting the Executive one hundred percent (100%) in the
Accrual Balance, and (b) adding to the Accrual Balance the
next scheduled three (3) plan year accrual account increases.
(ii) if the Termination of Employment or Demotion occurs
within twenty-four (24) months of the Change of Control, by
(a) vesting the Executive one hundred percent (100%) in the
Accrual Balance, and (b) adding to the Accrual Balance the
next scheduled two (2) plan year accrual account increases.
(iii) if the Termination of Employment or Demotion
occurs within thirty-six (36) months of the Change of Control,
by (a) vesting the Executive one hundred percent (100%) in the
Accrual Balance, and (b) adding to the Accrual Balance the
next scheduled one (1) plan year accrual account increase.
(2) Payment of Benefit. The Bank shall pay the annual benefit
to the Executive in twelve (12) equal monthly installments commencing
with the first of the month following the Executive attaining Normal
Retirement Age, paying the annual benefit to the Executive for a
period of twenty (20) years.
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2.5 Early Retirement. Notwithstanding an Early Retirement as defined
herein, the benefits payable to the Executive shall not commence until the
Executive reaches Normal Retirement Age.
(1) Definition. "Early Retirement" shall mean retirement by the
Executive on the later of: (i) the date on which the Executive reaches the
age of fifty-five (55), if on such date the Executive has been
continuously employed by the Bank for at least ten (10) years; or (ii) the
date on which the Executive has been continuously employed by the Bank for
ten (10) years if the Executive is over the age of fifty-five (55) on such
date. Commencing on the first anniversary of the first benefit payment
following Normal Retirement Age, continuing on each subsequent
anniversary, the Bank shall increase this benefit by three percent
(3%)from the previous anniversary date
2.6 Excess Parachute Payment. Notwithstanding any provision of this
Agreement to the contrary, the Bank shall not pay any benefit under this
Agreement to the extent the benefit would create an excise tax under the excess
parachute rules of Section 280G of the Code.
SECTION 3 - Death Benefits
3.1 Death During Active Service. If the Executive dies while in the active
service of the Bank, the Bank shall pay to the Executive's beneficiary the
benefit described in this Section 3.1. This benefit shall be paid in lieu of the
benefits under Article 2.
(1) Amount of Benefit. The annual benefit under this Section 3.1 is
the Normal Retirement Benefit amount described in Section 2.1.1.
(2) Payment of Benefit. The Bank shall pay the annual benefit to the
Executive's beneficiary in twelve (12) equal monthly installments
commencing with the first of the month following the Executive's death,
paying the annual benefit to the Executive's beneficiary for a period of
twenty (20) years.
3.2 Death During Payment Period. If the Executive dies after any Benefit
payments have commenced under this Agreement but before receiving all such
payments, the Bank shall pay the remaining benefits to the Executive's
beneficiary at the same time and in the same amounts they would have been paid
to the Executive had the Executive survived.
3.3 Death After Termination of Employment But Before Payment Commences. If
the Executive is entitled to a Benefit under this Agreement, but dies prior to
the commencement of said benefit payments, the Bank shall pay the same benefit
payments to the Executive's beneficiary that the Executive was entitled to prior
to death except that the benefit payments shall commence on the first day of the
month following the date of the Executive's death.
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SECTION 4 - Beneficiaries
4.1 Beneficiary Designations, The Executive shall designate a beneficiary
by filing a written designation with the Bank. The Executive may revoke or
modify the designation at any time by filing a new designation. However,
designations will only be effective if signed by the Executive and received by
the Bank during the Executive's lifetime. The Executive's beneficiary
designation shall be deemed automatically revoked if the beneficiary predeceases
the Executive, or if the Executive names a spouse as beneficiary and the
marriage is subsequently dissolved. If the Executive dies without a valid
beneficiary designation, all payments shall be made to the Executive's estate.
4.2 Facility of Payment. If a benefit is payable to a minor, to a person
declared incompetent, or to a person incapable of handling the disposition of
his or her property, the Bank may pay such benefit to the guardian, legal
representative or person having the care or custody of such minor, incompetent
person or incapable person. The Bank may require proof of incompetence, minority
or guardianship as it may deem appropriate prior to distribution of the benefit.
Such distribution shall completely discharge the Bank from all liability with
respect to such benefit.
SECTION 5 - Certain Limitations
5.1 Termination for Cause. Notwithstanding any provision of this Agreement
to the contrary, the Bank shall not pay any benefit under this Agreement if the
Bank terminates the Executive's employment for: (i) gross negligence or gross
neglect of duties; (ii) commission of a felony or of a gross misdemeanor
involving moral turpitude; or (iii) fraud, disloyalty, dishonesty or willful
violation of any law or significant Bank policy committed in connection with the
Executive's employment and resulting in an adverse effect on the Bank or the
Holding Company.
5.2 Suicide or Misstatement. The Bank shall not pay any benefit under this
Agreement if the Executive commits suicide within three years after the date of
this Agreement. In addition, the Bank shall not pay any benefit under this
Agreement if the Executive has made any material misstatement of fact on an
employment application or resume provided to the Bank, or on any application for
any benefits provided by the Bank to the Executive.
SECTION 6 - Claims and Review Procedures
6.1 Claims Procedure. An Executive or beneficiary ("claimant") who has not
received benefits under the Plan that he or she believes should be paid shall
make a claim for such benefits as follows:
(1) Initiation - Written Claim. The claimant initiates a claim by
submitting to the Bank a written claim for the benefits.
(2) Timing of Bank Response. The Bank shall respond to such
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claimant within 90 days after receiving the claim. If the Bank determines
that special circumstances require additional time for processing the
claim, the Bank can extend the response period by an additional 90 days by
notifying the claimant in writing, prior to the end of the initial 90-day
period, that an additional period is required. The notice of extension
must set forth the special circumstances and the date by which the Bank
expects to render its decision.
(3) Notice of Decision. If the Bank denies part or all of the claim,
the Bank shall notify the claimant in writing of such denial. The Bank
shall write the notification in a manner calculated to be understood by
the claimant. The notification shall set forth:
(i) the specific reasons for the denial; (ii) a reference to
the specific provisions of the Plan on which the denial is based;
(iii) a description of any additional information or material
necessary for the claimant to perfect the claim and an explanation
of why it is needed; (iv) an explanation of the Plan's review
procedures and the time limits applicable to such procedures, and
(v) a statement of the claimant's right to bring a civil action
under ERISA Section 502(a) following an adverse benefit
determination on review.
6.2 Review Procedure. If the Bank denies part or all of the claim, the
claimant shall have the opportunity for a full and fair review by the Bank of
the denial, as follows:
(1) Initiation - Written Request. To initiate the review, the
claimant, within 60 days after receiving the Bank's notice of denial, must
file with the Bank a written request for review.
(2) Additional Submissions - Information Access. The claimant shall
then have the opportunity to submit written comments, documents, records
and other information relating to the claim. The Bank shall also provide
the claimant, upon request and free of charge, reasonable access to, and
copies of, all documents, records and other information relevant (as
defined in applicable ERISA regulations) to the claimant's claim for
benefits.
(3) Considerations on Review. In considering the review, the Bank
shall take into account all materials and information the claimant submits
relating to the claim, without regard to whether such information was
submitted or considered in the initial benefit determination.
(4) Timing of Bank Response. The Bank shall respond in writing to
such claimant within 60 days after receiving the request for review. If
the Bank determines that special circumstances require additional time for
processing the claim, the Bank can extend the response period by an
additional 60 days by notifying the claimant in writing, prior to the end
of the initial 60-
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day period, that an additional period is required. The notice of extension
must set forth the special circumstances and the date by which the Bank
expects to render its decision.
(5) Notice of Decision. The Bank shall notify the claimant in
writing of its decision on review. The Bank shall write the notification
in a manner calculated to be understood by the claimant. The notification
shall set forth: (i) the specific reasons for the denial; (ii) a reference
to the specific provisions of the Plan on which the denial is based; (iii)
a statement that the claimant is entitled to receive, upon request and
free of charge, reasonable access to, and copies of, all documents,
records and other information relevant (as defined in applicable ERISA
regulations) to the claimant's claim for benefits, and (iv) a statement of
the claimant's right to bring a civil action under ERISA Section 502(a).
SECTION 7 - Amendments and Termination
7.1 This Agreement may be amended or terminated only by a written
agreement signed by the Bank and the Executive.
7.2 Notwithstanding Section 7.1, the Bank may amend or terminate this
Agreement at any time if, pursuant to legislative, judicial or regulatory
action, continuation of the Agreement would (i) cause benefits to be taxable to
the Executive prior to actual receipt, or (ii), result in significant financial
penalties or other significantly detrimental ramifications to the Bank or the
Holding Company, other than the financial impact of paying the benefits.
SECTION 8 - Status as an Unsecured General Creditor.
8.1 Notwithstanding anything contained herein to the contrary: (i) the
Executive shall have no legal or equitable rights, interests or claims in or to
any specific property or assets of the Bank as a result of this Agreement; (ii)
none of the Bank's assets shall be held in or under any trust for the benefit of
the Executive or held in any way as security for the fulfillment of the
obligations of the Bank under this Agreement; (iii) all of the Bank's assets
shall be and remain the general unpledged and unrestricted assets of the Bank;
(iv) the Bank's obligation under this Agreement shall be that of an unfunded and
unsecured promise by the Bank to pay money in the future; and (v) the Executive
shall be an unsecured general creditor with respect to any benefits which may be
payable under the terms of this Agreement. Notwithstanding subparagraphs (i)
through (v) above, the Bank and the Executive acknowledge and agree that, in the
event of a Change in Control, upon request of the Executive, or in the Bank's
discretion if the Executive does not so request and the Bank nonetheless deems
it appropriate, the Bank shall establish, concurrent with this agreement, a
Rabbi Trust or multiple Rabbi Trusts (the "Trust" or "Trusts") upon such terms
and conditions as the Bank, in its sole discretion, deems appropriate and in
compliance with applicable provisions of the Code, in order to permit the Bank
to make contributions and/or transfer assets to the Trust or Trusts to discharge
its obligations
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pursuant to this Agreement. The principal of the Trust or Trusts and any
earnings thereon shall be held separate and apart from other funds of the Bank
to be used exclusively for discharge of the Bank's obligations pursuant to this
Agreement and shall continue to be subject to the claims of the Bank's general
creditors until paid to the Executive in such manner and at such times as
specified in this Agreement.
8.2 Bank reserves the right to determine, in its sole and absolute
discretion, whether, to what extent and by what method, if any, to provide for
the payment of the amounts which may be payable to the Executive, under the
terms of this Agreement. In the event that the Bank elects to fund this
Agreement, in whole or in part, through the use of life insurance or annuities,
or both, the Bank shall determine the ownership and beneficial interests of any
such policy of life insurance or annuity. The Bank further reserves the right,
in its sole and absolute discretion, to terminate any such policy, and any other
devise used to fund its obligations under this Agreement, at any time, in
wholeor in part. Consistent with Section 8.1 above, the Executive shall have no
right, title or interest in or to any funding source or amount utilized by the
Bank pursuant to this Agreement, and any such funding source or amount shall not
constitute security for the performance of the Bank's obligations pursuant to
this Agreement. In connection with the foregoing, the Executive agrees to
execute such documents and undergo such medical examinations or tests which the
Bank may request and which may be reasonably necessary to facilitate any funding
for this Agreement including, without limitation, the Bank's acquisition of any
policy of insurance or annuity.
8.3 Notwithstanding any other provision of the Agreement, the Board of
Directors of the Bank or the Holding Company may, its sole and absolute
discretion: (i) accelerate the payment of the amounts due under the terms of
this Agreement, provided that the Executive consents to the revised payout terms
determined appropriate by the Board of Directors; (ii) modify other terms or
conditions of the Agreement, as the Board of Directors deems necessary or
appropriate, in response to changes in legislation, to rules, regulations or
rulings issued under the Internal Revenue Code, or to other similar events
having a substantial impact on the costs and benefits to the Bank of its
obligations under the Agreement, provided that the Executive shall receive a
substantially equivalent benefit in the event that a benefit existing under the
Agreement is canceled as a result of such modification.
SECTION 9 - Miscellaneous
9.1 Binding Effect. This Agreement shall bind the Executive and the Bank,
and their beneficiaries, survivors, executors, successors, administrators and
transferees.
9.2 No Guarantee of Employment. This Agreement is not an employment policy
or contract. It does not give the Executive the right to remain an employee of
the Bank, nor does it interfere with the Bank's right to discharge the
Executive. It also does not require the Executive to remain an employee nor
interfere with the Executive's right to terminate employment at any time.
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9.3 Non-Transfer ability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner. In
particular, the Executive shall have no power or right to transfer, assign,
anticipate, hypothecate, modify or otherwise encumber any part or all of the
amounts payable hereunder, nor, prior to payment in accordance with the terms of
this Agreement, shall any portion of such amounts be: (i) subject to seizure by
any creditor of the Executive, by a proceeding at law or in equity, for the
payment of any debts, judgments, alimony or separate maintenance obligations
which may be owed by the Executive; or (ii) transferable by operation of law in
the event of bankruptcy, insolvency or otherwise. Any such attempted assignment
or transfer shall be void.
9.4 Reorganization. This Agreement shall be binding upon and, inure to the
benefit of the Executive and the Bank. Accordingly, the Bank shall not merge or
consolidate into or with another corporation, or reorganize or sell
substantially all of its assets to another corporation, firm or person, unless
and until such succeeding or continuing corporation, firm or person agrees to
assume and discharge the obligations of the Bank under this Agreement. In the
alternative, the Holding Company may agree to assume and discharge the
obligation of the Bank under this Agreement. Upon the occurrence of such event,
the term "Bank" as used in this Agreement shall be deemed to refer to such
surviving or successor firm, person, entity or corporation, or the Holding
Company, as the case may be.
9.5 Tax Withholding. The Bank shall withhold any taxes that are required
to be withheld from the benefits provided under this Agreement.
9.6 Applicable Law. The laws of the State of Oregon, other than those laws
denominated choice of law rules, federal law in the case of preemption, and
where applicable, the rules and regulations of any regulatory agency or
governmental authority having jurisdiction over the Bank or the Holding Company,
shall govern the validity, interpretation, construction and effect of this
Agreement.
9.7 Unfunded Arrangement. The Executive and beneficiary are general
unsecured creditors of the Bank for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Bank to pay such
benefits. The rights to benefits are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by creditors. Any insurance on the Executive's life is a general
asset of the Bank to which the Executive and beneficiary have no preferred or
secured claim.
9.8 Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties with respect to the
subject matter of this Agreement and contains all of the covenants and
agreements between the parties with respect thereto. Each party to this
Agreement acknowledges that no other representations, inducements, promises, or
agreements, oral or otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not set forth herein, and that no other
agreement, statement, or promise not
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contained in this Agreement shall be valid or binding on either party. No rights
are granted to the Executive by virtue of this Agreement other than those
specifically set forth herein.
9.9 Administration. The Bank shall have powers which are necessary to
administer this Agreement, including but not limited to; (i) establishing and
revising the method of accounting for the Agreement; (ii) maintaining a record
of benefit payments; (iii) establishing rules and prescribing any forms
necessary or desirable to administer the Agreement; and (iv) interpreting the
provisions of the Agreement.
9.10 Named Fiduciary. The Bank shall be the named fiduciary and plan
administrator under this Agreement. It may delegate to others certain aspects of
the management and operational responsibilities including the employment of
advisors and the delegation of ministerial duties to qualified individuals.
9.11 Paragraph Headings. The paragraph headings used in this Agreement are
for convenience only, and shall not affect or be used in connection with the
interpretation of this Agreement.
9.12 No Strict Construction. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any person.
9.13 Opportunity To Consult With Independent Advisors. The Executive
acknowledges that he or she has been afforded the opportunity to consult with
independent advisors of his choosing including, without limitation, accountants
or tax advisors and counsel regarding both the benefits granted to him under the
terms of this Agreement and the (i) terms and conditions which may affect the
Executive's right to these benefits and (ii) personal tax effects of such
benefits including, without limitation, the effects of any federal or state
taxes, Section 280G of the Code, and any other taxes, costs, expenses or
liabilities whatsoever related to such benefits, which in any of the foregoing
instances the Executive acknowledges and agrees shall be the sole responsibility
of the Executive notwithstanding any other term or provision of this Agreement.
The Executive further acknowledges and agrees that the Bank shall have no
liability whatsoever related to any such personal tax effects or other personal
costs, expenses, or liabilities applicable to the Executive and further
specifically waives any right for himself or herself, and his or her heirs,
beneficiaries, legal representatives, agents, successor and assign to claim or
assert liability on the part of the Bank related to the matters described above
in this Section 9.13. The Executive further acknowledges that he or she has
read, understands and consents to all of the terms and conditions of this
Agreement, and that he or she enters into this Agreement with a full
understanding of its terms and conditions.
9.14 Arbitration of Disputes. All claims, disputes and other matters in
question arising out of or relating to this Agreement or the breach or
interpretation thereof, other than those matters which are to be determined by
the Bank in its sole and absolute discretion, shall be resolved by binding
arbitration before a
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representative member, selected by the mutual agreement of the parties, of the
Judicial Arbitration and Mediation Services, Inc. ("JAMS"), located in Portland,
Oregon. In the event JAMS is unable or unwilling to conduct the arbitration
provided for under the terms of this Paragraph, or has discontinued its
business, the parties agree that a representative member, selected by the mutual
agreement of the parties of the American Arbitration Association ("AAA") located
in Portland, Oregon, shall conduct the binding arbitration referred to in this
Paragraph. Notice of the demand for arbitration shall be filed in writing with
the other party to this Agreement and with JAMS (or AAA, if necessary). In no
event shall the demand for arbitration be made after the date when institution
of legal or equitable proceedings based on such claim, dispute or other matter
in question would be barred by the applicable statute of limitations. The
arbitration shall be subject to such rules of procedure used or established by
JAMS, or if there are none, the rules of procedure used or established by AAA.
Any award rendered by JAMS or AAA shall be final and binding upon the parties,
and as applicable, their respective heirs, beneficiaries, legal representatives,
agents, successors and assigns, and may be entered in any court having
jurisdiction thereof. Any arbitration hereunder shall be conducted in The
Dalles, Oregon, unless otherwise agreed to by the parties.
9.15 Attorneys' Fees. In the event of any arbitration or litigation
concerning any controversy, claim or dispute between the parties hereto, arising
out of or relating to this Agreement or the breach hereof, or the interpretation
hereof, the prevailing party shall be entitled to recover from the losing party
reasonable expenses, attorneys' fees and costs incurred in connection therewith
or in the enforcement or collection of any judgment or award rendered therein.
The "prevailing party" means the party determined by the arbitrators) or court,
as the case may be, to have most nearly prevailed, even if such party did not
prevail in all matters, not necessarily the one in whose favor a judgment is
rendered.
9.16 Notice. Any notice required or permitted of either the Executive or
the Bank under this Agreement shall be deemed to have been duly given, if by
personal delivery, upon the date received by the party or its authorized
representative; if by facsimile, upon transmission to a telephone number
previously provided by the party to whom the facsimile is transmitted as
reflected in the records of the party transmitting the facsimile and upon
reasonable confirmation of such transmission; and if by mail, on the third day
after mailing via U.S. first class mail, registered or certified, postage
prepaid and return receipt requested, and addressed to the party at the address
given below for the receipt of notices, or such changed address as may be
requested in writing by a party.
If to the Bank: Columbia River Bank
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxxxx 00000
If to the Executive: c/o Columbia River Bank
XX Xxx 0000
Xxx Xxxxxx, Xxxxxx 00000
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9.17. Nonwaiver. The failure of either party to enforce at any time or for
any period of time any one or more of the terms or conditions of this Agreement
shall not be a waiver of such term(s) or condition(s) or of that party's right
thereafter to enforce each and every term and condition of this Agreement.
9.18 Partial Invalidity. If any terms, provision, covenant, or condition
of this Agreement is determined by an arbitrator or a court, as the case may be,
to be invalid, void, or unenforceable, such determination shall not render any
other term, provision, covenant or condition invalid, void or unenforceable, and
the Agreement shall remain in full force and effect notwithstanding such partial
invalidity.
9.19 Modifications. Any modification of this Agreement shall be
effective only if it is in writing and signed by each party or such party's
authorized representative.
IN WITNESS WHEREOF, the Executive and the Bank have signed this Agreement.
EXECUTIVE: COLUMBIA RIVER BANK:
_________________________ By:____________________
R. Xxxxx Xxxxxx
Its:___________________
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