EXHIBIT 10(d)
AMENDED EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into by and
between Columbia State Bank, a Washington banking corporation ("Columbia Bank")
together with Columbia Banking System, Inc., a Washington corporation ("CBSI")
(collectively, the "Employer"), and J. XXXXX XXXXXXXXX (the "Executive"). This
Agreement shall become effective as of July 1, 1998.
RECITALS
1. Executive has served as outside legal counsel to Employer and has
substantial knowledge of Employer's affairs and of the business of
financial institutions in general. Employer has incurred substantial
growth and is looking to continue expansion of its operations, with
the assistance of Executive. Executive and Employer entered into an
Employment Agreement effective as of July 1, 1998.
2. This Agreement was amended and restated in June 1999.
3. Effective January 1, 2000, Executive was appointed to serve as Chief
Executive Officer of CBSI, in addition to his position as Vice
Chairman of CBSI and Columbia Bank. Employer and Executive desire to
amend and restate this Agreement to reflect the change in position of
Executive.
In consideration of the mutual promises made in this Agreement, the parties
agree as follows:
AGREEMENT
1. Employment.
Employer employs Executive and Executive accepts employment with Employer
on the terms and conditions set forth in this Agreement.
2. Term.
The term of this Agreement will commence as of July 1, 1998, and will
continue until June 30, 2003, unless extended or sooner terminated as provided
in this Agreement.
3. Duties.
(a) Executive will be Vice-Chairman and Chief Executive Officer
of CBSI and Vice Chairman of Columbia Bank. In such capacities, and subject to
the authority of the Board of Directors of CBSI and Columbia Bank, as
appropriate, (i) Executive will have general management of the business of CBSI;
(ii) will be specifically responsible for strategic planning, merger and
acquisition activity, and legal and regulatory compliance of Columbia
Bank; and (iii) will perform such other tasks in connection with the affairs of
Columbia Bank that are normal and customary to the position he will hold.
(b) Executive will perform such other duties as may be
appropriate to his position and as may be prescribed from time to time by the
Board, or that are provided in the Bylaws of CBSI or Columbia Bank.
(c) Executive will devote his best efforts and all necessary
time, attention, and effort to the business and affairs of Employer and its
affiliates, as such business and affairs now exist or hereafter may be changed
or supplemented, in order to properly discharge his responsibilities under this
Agreement. He may delegate such of his duties as he sees fit to the other
officers of CBSI or its subsidiaries.
4. Salary, Bonus, and Other Compensation.
4.1 Salary.
(a) during the term of this Agreement, Employer will pay
Executive an annual (calendar year) base salary of not less than $175,000 per
year (payable at the rate of $14,583.33 per month) beginning July 1, 1998.
(b) Columbia Bank will guarantee payment of any portion of
Executive's compensation that may be allocated to a subsidiary of CBSI.
(c) If this Agreement terminates prior to June 30, 2003, then
Employer will pay Executive such greater or lesser amount of the agreed
compensation as provided in Section 5.
4.2 Bonus. Executive will be eligible to participate in the bonus
pools, if any, that the Board of Columbia Bank or CBSI may establish for senior
executives, either under an executive incentive plan or otherwise.
4.3 1998 Restricted Stock Award. In order to further incent Executive
in his employment as a senior executive officer, CBSI hereby grants and issues
to and in the name of the Executive as a Restricted Stock Award a total of
fifteen thousand (15,000) shares of the no par value common stock of CBSI (the
"1998 Shares"). The date of grant is July 1, 1998. The terms and conditions of
the Restricted Stock Award are as set forth in the Restricted Stock Award
Agreement with Executive effective as of July 1, 1998.
4.4 Benefits. In addition to the base salary and bonus payable or
potentially payable to Executive pursuant to this Section 4, Executive will be
entitled to receive benefits similar to those offered to other senior executives
of Employer.
2
5. Termination of Agreement.
5.1 Early Termination.
(a) This Agreement may be terminated at any time by the Board of
Employer or by Executive, and it shall terminate upon Executive's death or
disability. Any termination by the Board of Employer other than termination for
cause (as defined below) shall not prejudice Executive's right to compensation
or other benefits under this Agreement. Except as provided in Section 7, if
Executive voluntarily terminates his employment before June 30, 2003 he will be
entitled to such payments as he would have the right to receive upon termination
for cause under subsection 5.1(b).
(b) Except as provided in Section 7, if Employer terminates this
Agreement without cause, Employer shall pay Executive upon the effective date of
such termination all salary earned, benefits accrued and all reimbursable
expenses hereunder incurred through such termination date and, in addition,
liquidated damages in an amount equal to the greater of (i) two years' salary,
or (ii) salary for the then-remaining term of the Agreement payable hereunder;
in such event, all forfeiture provisions regarding the Restricted Stock Award
shall lapse. If Employer terminates this Agreement for cause, Employer shall pay
Executive upon the effective date of such termination only such salary earned,
benefits accrued and expenses reimbursable hereunder incurred through such
termination date. Executive shall have no right to receive compensation or other
benefits for any period after termination for cause.
(c) For purposes of this Agreement, the term "cause" shall mean
(i) willful misfeasance or gross negligence in the performance of his duties;
(ii) conduct demonstrably and significantly harmful to Employer (including
willful violation of any final cease and desist order applicable to Employer or
a financial institution subsidiary); or (iii) conviction of a felony. For
purposes of this Agreement, "disability" shall mean a medically reimbursable
physical or mental impairment that may be expected to result in death, or to be
of long, continued duration, and that renders Executive incapable of performing
the duties required under this Agreement. The Board or the Committee, acting in
good faith, shall make the final determination of whether Executive is suffering
under any disability as herein defined and, for purposes of making such
determination, may require Executive to submit himself to a physical examination
by a physician mutually agreed upon by Executive and the Board or the Committee
at Employer's expense.
(d) In the event of termination of this Agreement by reason of
Executive's death or disability, all forfeiture provisions regarding the
Restricted Stock Award shall lapse.
5.2 Obligations. Except as otherwise provided in Section 7 or in a
particular option grant, Executive's rights, if any, to vested but unexercised
stock options will continue for a period of one year after early termination,
other than termination for cause. In the case of termination for cause,
Executive's unvested stock options, if any, shall terminate immediately.
3
6. Restrictive Covenant.
6.1 Noncompetition.
(a) Executive agrees that except as otherwise set forth in this
Agreement, he will not, during the term of this Agreement and for a period of
two years after the later of (i) expiration of the term of this Agreement, or
(ii) completion of service as an active executive officer and/or Board member of
CBSI or Columbia Bank, directly or indirectly, become interested in, as
principal shareholder, director, or officer, any financial institution (other
than an institution controlled by, controlling, or under common control with
Employer and its affiliates) that competes within the State of Washington with
Employer or any of its affiliates, with respect to activities of the type
performed by such companies within such service area immediately prior to
Executive's termination.
(b) The restrictions concerning competition after termination as
contained in this Section 6.1 shall apply only in the event that Executive
voluntarily terminates his employment with Employer without good reason. For
purposes of this Agreement, termination for "good reason" shall mean termination
by Executive as a result of any material breach of this Agreement by Employer,
or any diminution of duties of Executive by the Board of either Columbia Bank or
CBSI. The provisions restricting competition by Executive may be waived by the
Employer.
6.2 Noninterference. During the noncompetition period described in
Section 6.1, Executive shall not solicit or attempt to solicit any other
employee of Employer or its affiliates to leave the employ of those companies,
or in any way interfere with the relationship between Employer and any other
employee of Employer or its affiliates.
6.3 Interpretation. If a court or any other administrative body with
jurisdiction over a dispute related to this Agreement should determine that the
restrictive covenants set forth above is unreasonably broad, the parties
authorize such court or administrative body to narrow the covenants so as to
make it reasonable, given all relevant circumstances, and to enforce such
revised covenants. The covenants in this paragraph shall survive termination of
this Agreement.
7. Change of Control.
7.1 Benefits. The parties recognize that a "change of control" of
Employer (as defined in Section 7.2) could be detrimental to Executive's
continued employment. Accordingly, in order to give further assurances to the
Executive to enter into this Agreement, if:
(a) There is a change of control of CBSI; and either
(b) Within 730 days of such change in control, Executive
terminates his employment with Employer; or
(c) At any time from and after sixty days prior to the public
announcement by Employer of a transaction that will result in the change of
control, Employer (or its successor) terminates Executive's employment without
cause, then Executive, as of the
4
date of termination of his employment, subject to the remaining provisions of
this Section 7.1, shall be paid or provided with: (i) continued payment of his
base salary and all benefits provided for in this Agreement until two years
following termination or June 30, 2003, whichever is longer; and (ii) vesting of
all stock options and lapse of all restrictions with respect to the Restricted
Stock Award shall occur. The provisions of this Section 7.1 shall survive
expiration of the term of the Agreement.
7.2 Definitions. For purposes of this Agreement, the term "change of
control" shall mean the occurrence of one or more of the following events:
(a) One person or entity acquiring or otherwise becoming the
owner of twenty-five percent or more of CBSI's outstanding common stock;
(b) Replacement of a majority of the incumbent directors of CBSI
or Columbia Bank by directors whose elections have not been supported by a
majority of the Board of either company, as appropriate; or
(c) Dissolution, or sale of fifty percent or more in value of
the assets, of either CBSI or Columbia Bank.
7.3 Reimbursement. In the event the provisions of this Section 7.3
result in imposition of a tax on Executive under the provisions of Internal
Revenue Code (S) 4999, Employer agrees to reimburse Executive for the same,
exclusive of any tax imposed by reason of receipt of reimbursement under this
Section 7.3.
8. Miscellaneous.
8.1 This Agreement contains the entire agreement between the parties
with respect to Executive's employment with Employer and his covenant not to
compete with Employer and its affiliates, and is subject to modification or
amendment only upon amendment in writing signed by both parties.
8.2 This Agreement shall bind and inure to the benefit of the heirs,
legal representatives, successors, and assigns of the parties, except that
Employer's rights and obligations may not be assigned. The provisions of Section
6.1 of this Agreement are intended to confer upon CBSI and its subsidiaries and
affiliates the benefits of Executive's covenant not to compete.
8.3 If any provision of this Agreement is invalid or otherwise
unenforceable, all other provisions shall remain unaffected and shall be
enforceable to the fullest extent permitted by law.
8.4 This Agreement is made with reference to and is intended to be
construed in accordance with the laws of the State of Washington. Venue for any
action arising out of or concerning this Agreement shall lie in Xxxxxx County,
Washington. In the event of a dispute under this Agreement not involving
injunctive relief, the dispute shall be arbitrated pursuant to the Superior
Court Mandatory Arbitration Rules ("MAR") adopted by the Washington State
Supreme Court, irrespective of the amount in controversy. This Agreement shall
be deemed as
5
stipulation to that effect pursuant to MAR 1.2 and 8.1. The arbitrator, in his
or her discretion, may award attorney's fees to the prevailing party or parties.
8.5 Any notice required to be given under this Agreement to either
party shall be given by personal service or by depositing a copy thereof in the
United States registered or certified mail, postage prepaid, addressed to the
following address, or such other address as addressee shall designate in
writing:
Employer: 0000 Xxxxxxxx Xxxxxxxxx: 00 Xxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000 Xxxxxxxx, XX 00000
XXXXXXXX XXXXX BANK
By: /s/ W.W. Philip
------------------------------
W.W. Philip
Its Chairman
COLUMBIA BANKING SYSTEM, INC.
By: /s/ W.W. Philip
------------------------------
W.W. Philip
Its Chairman
EXECUTIVE
/s/ J. Xxxxx Xxxxxxxxx
----------------------------------
J. XXXXX XXXXXXXXX
6
