EXHIBIT 10.19
2002 SPLIT DOLLAR AGREEMENT
COLUMBIA RIVER BANK - XXXXX X. XXXXXX
This Agreement (the "Agreement") is made and entered into effective the
18th day of January, 2002, by and between COLUMBIA RIVER BANK, a state-chartered
commercial bank located in The Dalles, Oregon, (the "Bank"), and XXXXX X. XXXXXX
(the "Executive"). This Agreement shall append the Split Dollar Endorsement
entered into on even date herewith or as subsequently amended, by and between
the aforementioned parties.
RECITALS
WHEREAS, the Executive is an employee of the Bank, and the Executive's
experience and knowledge of the affairs of the Bank and the banking industry are
extensive and valuable;
WHEREAS, to encourage the Executive to remain an employee of the Bank,
the Bank is willing to divide the death proceeds of a life insurance policy on
the Executive's life, and to pay such life insurance premiums from its general
assets;
WHEREAS, it is deemed to be in the best interests of the Bank to
provide the Executive with a benefit, 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 benefit 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:
Now, therefore, it is agreed:
SECTION 1 - Definitions
1.1 The following terms use in the Agreement shall have the
meanings specified:
(i) "Holding Company" shall mean Columbia Bancorp, the parent
corporation of the Bank.
(ii) "Insured" means the Executive.
(iii) "Insurer" means each life insurance carrier in which there is a
Split Dollar Policy Endorsement attached to this Agreement.
(iv) "Death Proceeds" means the total death proceeds of the Policy.
(v) "Normal Retirement Age" means the Executive's 55th birthday.
(vi) "Policy" means the specific life insurance policy issued by
the Insurer.
(vii) "Termination of Employment" means the Executive ceasing to be
employed by the Bank for any reason whatsoever, other than by reason of an
approved leave of absence.
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SECTION 2 - Policy Ownership/Interests
2.1 Bank Ownership. The Bank is and at all times shall be the sole
owner of the Policy and shall have the right to exercise all incidents of
ownership. The Bank shall be the beneficiary of the remaining death proceeds of
the Policy after the Interest of the Executive or the Executive's transferee has
been paid according to Section 2.2 below.
2.2 Executive's Interest. The Executive shall have the right to
designate the beneficiary of $82,500 of the Death Proceeds. The Executive shall
also have the right to elect and change settlement options that may be
permitted. However, the Executive, the Executive's transferee or the Executive's
beneficiary shall have no rights or interests in the Policy with respect to that
portion of the death proceeds designated in this section 2.2 upon the
Executive's Termination of Employment prior to Normal Retirement Age.
2.3 Option to Purchase. The Bank shall not sell, surrender or
transfer ownership of the Policy while this Agreement is in effect without first
giving the Executive or the Executive's transferee the option to purchase the
Policy for a period of 60 days from written notice of such intention. The
purchase price shall be an amount equal to the cash surrender value of the
Policy. This provision shall not impair the right of the Bank to terminate this
Agreement.
2.4 Comparable Coverage. Upon execution of this Agreement, the
Bank shall maintain the Policy in full force and effect and in no event shall
the Bank amend, terminate or otherwise abrogate the Executive's interest in the
Policy, unless the Bank replaces the Policy with a comparable insurance policy
to cover the benefit provided under this Agreement and executes a new Split
Dollar Policy Endorsement for said comparable insurance policy. The Policy or
any comparable policy shall be subject to the claims of the Bank's creditors.
SECTION 3 - Premiums
3.1 Premium Payment. The Bank shall pay any premiums due on the
Policy.
3.2 Economic Benefit. The Bank shall determine the economic
benefit attributable to the Executive based on the amount of the current term
rate for the Executive's age multiplied by the aggregate death benefit payable
to the Executive's beneficiary. The "current term rate" is the minimum amount
required to be imputed under Revenue Rulings 64-328 and 66-110, or any
subsequent applicable authority.
3.3 Imputed Income. The Bank shall impute the economic benefit to
the Executive on an annual basis.
SECTION 4 - Assignment
The Executive may assign without consideration all of the Executive's
interests in the Policy and in this Agreement to any person, entity or trust. In
the event the Executive transfers all of the Executive's interest in the Policy,
then all of the Executive's interest in the Policy and in the Agreement shall be
vested in the Executive's transferee, who shall be substituted as a party
hereunder and the Executive shall have no further interest in the Policy or in
this Agreement.
SECTION 5 - Insurer
The Insurer shall be bound only by the terms of the Policy. Any
payments the Insurer makes or actions it takes in accordance with the Policy
shall fully discharge it from all claims, suits and demands of all entities or
persons. The Insurer shall not be bound by or be deemed to have notice of the
provisions of this Agreement.
SECTION 6 - Claims and Review Procedures
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6.1 Claims Procedure. A Participant or beneficiary ("claimant")
who has not received benefits under the Agreement 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
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 Agreement 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 Agreement'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-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 Agreement 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
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This Agreement may be amended or terminated only by a written agreement
signed by the Bank and the Executive. However, unless otherwise agreed to by the
Bank and the Executive, this Agreement will automatically terminate upon the
Executive's Termination of Employment prior to Normal Retirement Age.
Section 8 - Miscellaneous
8.1 Binding Effect. This Agreement shall bind the Executive and
the Bank and their respective beneficiaries, survivors, executors,
administrators and transferees, and any Policy beneficiary.
8.2 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.
8.3 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.
8.4 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.
8.5 Tax Withholding. The Bank shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
8.6 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 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.
8.7 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.
8.8 Named Fiduciary. The Bank shall be the named fiduciary and
plan administrator under the Agreement. The named fiduciary may delegate to
others certain aspects of the management and operation responsibilities of the
plan including the employment of advisors and the delegation of ministerial
duties to qualified individuals.
8.9 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.
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8.10 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.
8.10 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.
8.11 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 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.
8.12 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
arbitrator(s) 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.
8.13 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.
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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
8.14. 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.
8.15 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.
8.16 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 parties have executed this Agreement the day
and year first above written.
EXECUTIVE: COLUMBIA RIVER BANK
__________________________________ By_________________________
Title______________________
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