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EXHIBIT 10.3
1999 EMPLOYMENT AGREEMENT
Columbia Bancorp - Xxxxx Xxxxxxxxxxx
This Employment Agreement (the "Agreement") is made and entered into
this 20th day of July, 1999 by and between Columbia Bancorp, an Oregon
corporation and bank holding company ("Bancorp") and Xxxxx Xxxxxxxxxxx
("Employee").
RECITALS
(1) Bancorp is an Oregon corporation and is the holding company of
Columbia River Bank and Valley Community Bank, which are both state-chartered
Oregon financial institutions. Bancorp's principal office is at 000 Xxxx Xxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxx 00000.
(2) Bancorp desires to employ Employee as an Executive Vice President
and Chief Operating Officer of Bancorp on the terms and conditions set forth
herein.
Now, therefore, it is agreed:
1. RELATIONSHIP AND DUTIES.
1.1 EMPLOYMENT AND TITLE. Bancorp shall employ Employee as an officer
of Bancorp with the title of Executive Vice President and Chief Operating
Officer to perform such services and duties as the Chief Executive Officer of
Bancorp may designate from time to time. Subject to the terms and conditions
hereof, employee shall perform such duties and exercise such authority as are
customarily performed and exercised by persons holding such office, subject to
the general direction of the Chief Executive Officer of Bancorp. Such services
and duties shall be exercised in good faith and in accordance with standards of
reasonable business judgment.
1.2 DUTIES; CONFLICTS. Employee shall devote his full time, attention
and efforts to the diligent performance of his duties as an officer of Bancorp.
Employee will not accept employment with any other individual, corporation,
partnership, governmental authority or any other entity, or engage in any other
venture for profit which Bancorp, or any subsidiary, parent, sister or
affiliated corporation of Bancorp, considers to be in conflict with their best
interests or to be in competition with their business, or which may interfere in
any way with Employee's performance of his duties hereunder.
1.3 SERVICE ON OTHER COMPANY BOARDS. Nothing in the Agreement shall
prohibit Employee from serving on the board of directors of any profit or
non-profit corporation not in direct competition with Bancorp or with any other
subsidiary, parent, sister or affiliated corporation of Bancorp. In addition,
Employee may own stock in any other corporation whether or not the stock is
publicly traded; provided, that if such corporation operates a business in
competition with Bancorp Employee may not own more than five percent (5%) of the
outstanding shares of such corporation.
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2. TERM OF EMPLOYMENT.
2.1 TERM. The term of employment under the Agreement shall begin on
May 13, 1999 and end on March 31, 2001.
2.2 EXTENSIONS. Employee's term of employment under the Agreement may
be extended for successive one-year terms beyond the initial term of the
Agreement specified in Section 2.1, subject to the mutual agreement of the
parties. The parties shall reach mutual agreement concerning such extensions on
or before a date which is no less than one year prior to the date of expiration
of Employee's term of employment under the Agreement, including any extensions
thereof.
3. TERMINATION.
3.1 DEFINITION. As used in the Agreement, "termination" shall mean the
termination of Employee's employment relation with Bancorp, whether initiated by
Bancorp or by Employee, and whether for cause or without cause.
3.2 TERMINATION EVENTS. Notwithstanding any other provisions of the
Agreement, the employment of Employee shall terminate immediately on the earlier
to occur of any of the following:
3.2.1 Employee's death;
3.2.2 Employee's complete disability. "Complete disability" as
used herein shall mean the inability of Employee, due to illness, accident, or
other physical or mental incapacity, to perform the services required under the
Agreement for an aggregate of ninety (90) days within any period of 180
consecutive days during the term hereof; provided, however, that disability
shall not constitute a basis for discharge for cause;
3.2.3 The discharge of Employee by Bancorp for cause. "Cause"
as used herein shall mean (i) Employee's negligence or misconduct as shall
constitute, as a matter of law, a breach of the covenants and obligations of
Employee hereunder; (ii) failure or refusal of Employee to comply with the
provisions of the Agreement; (iii) Employee's conviction by any duly constituted
court with competent jurisdiction of a crime (other than traffic offenses); (iv)
Employee's malfeasance or incompetence, provided that in applying this criteria
Bancorp shall not be unreasonable or arbitrary, and provided further that prior
to effecting a dismissal under this Section (iv) Bancorp shall afford Employee
with fair and reasonable warning and with a fair and reasonable opportunity to
cure any defects in Employee's performance.
3.3 TERMINATION BY EMPLOYEE. Employee may terminate his employment with
Bancorp with or without cause by giving thirty (30) days written notice of
termination. "Cause" as used herein shall include Bancorp's failure or refusal
to comply with the provisions of the Agreement.
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3.4 EFFECT OF TERMINATION. The termination of Employee's employment
shall constitute a tender by Employee of his resignation as an officer of
Bancorp, and as a member of any board of directors or board committees of
Bancorp or its affiliates if Employee is a member thereof at the time of
termination.
3.5 PAYMENT ON TERMINATION. If Employee's employment is terminated by
Employee with or without cause, or by Bancorp with or without cause, Employee
shall be paid all base salary and benefits accrued under the Agreement as of the
termination date.
3.6 SEVERANCE PAYMENT. If Employee's employment is terminated by
Employee with cause, or by Bancorp without cause, Employee shall be paid all
base salary and benefits accrued under the Agreement as of the termination date,
and in addition, shall be entitled to a severance payment equal to the greater
of (i) one month's base salary as of the date of termination multiplied by the
number of full calendar years Employee has been employed by Bancorp or any
predecessor thereof, or (ii) one month's base salary as of the date of
termination multiplied by twelve (12). For purposes of Section 3.6(i) a period
of continuous full-time employment for six months or more in a calendar year
shall count as a full calendar year. If for any period Employee has been
employed simultaneously by Bancorp and by one or more of its affiliates, such
period shall count only once in determined the severance payment under Section
3.6(i). The severance payment provided herein shall be paid in full within
thirty (30) days of the date of Employee's termination. Employee shall not be
entitled to such severance payment if Employee's employment is terminated by
Bancorp with cause, or by Employee without cause, and in either such case
Employee shall only be entitled to receive on termination a payment equal to
Employee's base salary and benefits accrued under the Agreement as of the
termination date, and no other payments.
3.7 PERFORMANCE BONUS. If Employee's employment is terminated by
Employee with cause, or by Bancorp without cause, Employee shall be paid, in
addition to the amounts payable under Sections 3.5 and 3.6 of the Agreement: (i)
all nonforfeitable deferred compensation, if any; and (ii) unpaid performance
bonus payments, if any, payable under Section 4.4 of the Agreement, which shall
be declared earned and payable based upon performance up to, and shall be
pro-rated as of, the date of termination. Employee shall not be entitled to such
unpaid performance bonus payments if Employee's employment is terminated by
Bancorp with cause, or by Employee without cause,
4. COMPENSATION.
4.1 BASE SALARY. For the period beginning May 13, 1999 and ending March
31, 2000, Employee shall be paid an annual base salary of $95,000.00, payable in
equal bimonthly installments and subject to any deductions required by law.
4.2 EXTENSIONS. On or before March 1, 2000, Bancorp shall determine
Employee's annual base salary for the period beginning April 1, 2000 through the
remaining term of employment under the Agreement. If Employee's term of
employment under the Agreement has
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been extended, Bancorp shall determine Employee's annual base salary for
subsequent periods of Employee's employment at least 30 (thirty) days prior to
the date of beginning of any such extended term.
4.4 PERFORMANCE BONUS. Employee shall be entitled to consideration for
annual performance bonus compensation for each calendar year, in an amount up to
35% of annual base salary earned from his employment by Bancorp during such
calendar year. Bonus compensation shall be subject to any deductions required by
law. The Chief Executive Officer of Bancorp shall timely, and at least once
yearly, determine the amount of and the formulas and methods for establishing
such bonus compensation. The amount of such bonus compensation shall at all
times be discretionary, and Bancorp may decline to award a performance bonus to
Employee in any year.
5. BENEFITS; PURCHASE OF SHARES.
5.1 ELIGIBILITY FOR GENERAL BENEFITS. Employee shall be eligible to
participate in any plan of Bancorp or its affiliates relating to stock options,
stock purchases, profit sharing, group life insurance, medical coverage,
education and other retirement or employee benefits that Bancorp or its
affiliates may adopt for the benefit of employees.
5.2 STOCK OPTIONS. Within 30 days of May 13, 1999 Employee shall be
granted an option to purchase 2,000 shares, adjusted for stock splits, if any,
of Bancorp common stock ("Bancorp Stock") in accordance with the terms of the
Columbia Bancorp 1999 Stock Incentive Plan.
5.3 ADDITIONAL BENEFITS. Employee shall be eligible to participate in
any other benefits which may be or become applicable to Bancorp's executive
employees of similar rank. In addition, Employee shall be entitled to: (i) a
reasonable expense account for use in connection with Bancorp business; and (ii)
any other benefits which in Bancorp's judgment are commensurate with the
responsibilities and functions to be performed by Employee under the Agreement,
including the payment of reasonable expenses for attendance by Employee and
Employee's spouse at annual meetings of the Oregon Bankers Association.
5.4 SHARE OWNERSHIP. During the term of the Agreement, including
extensions, Employee shall purchase shares of Bancorp Stock, including purchases
through the exercise of stock options, in accordance with the share ownership
policies and requirements established by Bancorp management in effect from time
to time for employees of comparable rank.
6. VACATIONS AND LEAVES.
6.1 PAID VACATION. During the term of the Agreement, Employee shall be
entitled to annual paid vacation benefits identical to those offered to
employees of Bancorp holding executive vice president positions. The timing of
vacations shall be scheduled in a reasonable manner by Employee. Employee shall
not be entitled to receive any additional compensation
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from Bancorp on account of his failure to take a vacation, and may not
accumulate unused vacation time from one calendar year to the next.
6.2 LEAVES WITH OR WITHOUT PAY. The Chief Executive Officer of Bancorp
may grant Employee a leave or leaves of absence, with or without pay, at such
time or times and upon such terms and conditions as such Chief Executive Officer
may determine.
6.3 MANDATORY ABSENCE. In each calendar year Employee shall be absent
from Bancorp for one period of two consecutive weeks. Such period may include
vacation, leave, sick leave, attendance at seminars or conventions, or any
combination thereof.
7. CHANGE OF CONTROL.
7.1 SURVIVAL OF RIGHTS. Employee's rights on termination of employment
under Section 3 of the Agreement, as well as all other rights of Employee under
the Agreement or applicable law, shall survive a change of control of Bancorp
whether or not Employee opposed or favored the change of control.
7.2 RIGHTS ON CHANGE OF CONTROL. If a change of control of Bancorp
occurs while the Agreement is in effect, Employee shall have ninety (90) days
following the date such change of control becomes effective to elect to
terminate Employee's employment with cause. If Employee so elects to terminate,
such termination shall constitute a termination by Employee with cause, and
Employee shall receive all payments and benefits due to Employee on termination
by Employee with cause under Section 3 of the Agreement.
7.3 BASE COMPENSATION. Following a change of control, Bancorp shall not
reduce Employee's base compensation in effect prior to the effective date of the
change of control for a period of time equal to the greater of (i) twelve (12)
months from the effective date of the change of control; (ii) one (1) month for
each full calendar year Employee has been employed by Bancorp; or (iii) the
remaining term of the Agreement, including any extensions thereof. For purposes
of this Subsection 7.3, a period of continuous full-time employment for six
months or more in a calendar year shall count as a full calendar year.
7.4 TERMINATION WITHOUT CAUSE. If following a change of control Bancorp
terminates Employee's employment within one (1) year of the effective date of
the change of control because of a reduction in force or for any other reason,
other than for cause pursuant to Section 3.3 of the Agreement, such termination
shall constitute a termination by Bancorp without cause, and Employee shall
receive all payments and benefits due to Employee on termination under Sections
3.5 and 3.6 of the Agreement, plus: (i) all nonforfeitable deferred
compensation, if any; and (ii) unpaid performance bonus payments, if any,
payable under Section 4.4 of the Agreement, which shall be declared earned and
payable based upon performance up to, and shall be pro-rated as of, the date of
termination.
7.5 OPTIONS AND STOCK. If Employee 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,
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all stock and options shall be declared fully vested and shall be paid, awarded
or otherwise 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.
7.6 DEFINITION. As used in this Section, "control" shall mean the
acquisition during Employee's employment of twenty-five percent (25%) or more of
the voting securities of the 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 Stock Ownership Plan established for the benefit of
employees of Bancorp or any of its subsidiaries or other affiliates.
8. POST TERMINATION COVENANTS.
8.1 NON-COMPETE COVENANTS. If Employee terminates his employment
without cause, or if Employee's employment is terminated by Bancorp for cause,
then for one year from the date of such termination Employee will not, without
the prior written consent of Bancorp:
8.1.1 Undertake full or part-time work, either as an employee
or as a consultant, for another financial institution if such work is to be
done, in whole or in part, in or from an office or other work site in Yamhill,
Wasco, Hood River, Jefferson, Deschutes, Xxxxxxx or Xxxxxxx Counties, Oregon, in
Klickitat County, Washington, or in any other county in Oregon or Washington in
which Bancorp or any of its affiliates has a place of business at the time of
termination; or
8.1.2 Hire for any financial institution or other employer
(including himself) any employee of Bancorp or any of its affiliates, or
directly or indirectly cause such an employee to leave his or her employment to
work for another employer, if such employee is to work in or from an office or
other work site in Yamhill, Wasco, Hood River, Jefferson, Deschutes, Xxxxxxx or
Xxxxxxx Counties, Oregon, in Klickitat County, Washington, or in any other
county in Oregon or Washington in which Bancorp or any of its affiliates has a
place of business at the time of termination.
8.2 LIQUIDATED DAMAGES FOR BREACH OF NON-COMPETE COVENANTS; OTHER
REMEDIES. If Employee breaches the covenants of Section 8.1, Employee shall be
liable to Bancorp for liquidated damages equal to the lesser of (i) $18,000, or
(ii) $1,500 multiplied by the number of months (including fractions thereof)
between the date of breach and one year from the date of Employee's termination
of employment. For example, if the date of breach occurs six months after the
date of Employee's termination, liquidated damages shall be $9,000 (6 x $1,500).
The parties agree that Bancorp's actual money damages upon Employee's breach
will be difficult to compute, and further agree that the liquidated damages
formula provided herein
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reasonably represents Bancorp's actual money damages. Employee shall pay the
liquidated damages required hereunder within ten (10) days of the date Bancorp
makes written demand for such payment. Nothing herein shall preclude Bancorp
from enforcing any other legal or equitable remedies it may have upon Employee's
breach, including injunctive relief. Such other remedies may be enforced in
addition to Bancorp's right to liquidated damages under this Section.
8.3 LIMITATION. The covenants in Sections 8.1 and 8.2 do not apply if
Employee terminates his employment for cause, if Employee terminates his
employment for any reason within ninety (90) days after the effective date of a
change of control within the meaning of Section 7 of the Agreement, or if
Employee's employment is terminated by Bancorp without cause.
8.4 ADDITIONAL COVENANTS. The following provisions shall apply and be
binding on Employee following Employee's termination of employment under all
circumstances, whether termination occurred with cause, without cause, following
illness or disability, because of a change of control, or for any other reason:
8.4.1 Employee shall fully cooperate in the defense or
prosecution of any litigation arising from or relating to matters about which
Employee has knowledge based on his employment or other work, paid or unpaid,
for Bancorp and its affiliates. To the extent allowed by law Employee shall
receive reasonable compensation in connection with his performance under this
Section 8.3.1;
8.4.2 Employee shall at all times keep all confidential and
proprietary information gained from his employment by Bancorp, or from other
previous, present or subsequent 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 employees of Bancorp or
its affiliates, except as may be required by law, regulation or subpoena; and
8.4.3 Employee shall not take or use for any purpose confidential
or proprietary information of Bancorp or its affiliates, including without
limitation customer or potential customer lists and trade secrets.
9. MISCELLANEOUS.
9.1 RECITALS; LAW; AMENDMENTS. 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.
9.2 ENTIRE AGREEMENT. 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
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negotiations, discussions or agreements not contained herein or in such
documents shall be binding or enforceable against the parties.
9.3 COUNTERPARTS. 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.
9.4 SUCCESSORS AND ASSIGNS. 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 in 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 Employee under the Agreement. Employee
may not assign or transfer Employee's rights or interests in or under the
Agreement other than by a will or by the laws of descent and distribution. The
Agreement shall inure to the benefit of and be enforceable by Employee's estate
or legal representative.
9.5 WAIVER. 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.
9.6 ARBITRATION. 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.
9.7 EMPLOYEE HANDBOOK. Employee agrees to be bound by the terms and
conditions of any employee handbook of Bancorp or its affiliates as may be in
effect from time to time, except that in the event of a conflict between such
employee handbook and the Agreement, the Agreement shall control.
9.8 CAPTIONS. All captions, titles and headings in the Agreement are
for convenience only, and shall not be construed to limit any term of the
Agreement.
9.9 DEFINITION. When used herein in reference to a corporation,
"affiliate" shall mean, without limitation, any parent or subsidiary of the
corporation and any entity controlled by the corporation.
9.10 EXCEPTIONS. The Bancorp Board or the management of Bancorp may, in
its discretion, make exceptions to one or more of the conditions contained in
the Agreement, provided that any such exceptions must be approved in writing.
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9.11 PRIOR CONTRACTS. This Agreement replaces and supersedes all prior
written employment agreements between the parties, specifically including the
Employment Agreement of May 13, 1999.
/s/
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Employee
COLUMBIA BANCORP
By: /s/
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Title:
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