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EXHIBIT 10.2
1999 DEFERRED COMPENSATION AGREEMENT
Columbia Bancorp - Terry L. Cochran
This 1999 Deferred Compensation Agreement (the "Agreement") is made and
entered into this 1st day of April, 1999 by and between Columbia Bancorp, an
Oregon corporation ("Bancorp") and Terry L. Cochran ("Employee").
RECITALS
(1) Bancorp is an Oregon corporation and is the holding company of
Columbia River Bank and of Valley Community Bank (collectively, the "Banks"),
both of which are state-chartered Oregon financial institutions. Bancorp's
principal office is at 420 East Third Street, Suite 200, The Dalles, Oregon
97058.
(2) Employee is now employed full-time by Bancorp as President and
Chief Executive Officer of Bancorp, and also serves as President and Chief
Executive Officer of Columbia River Bank. Employee has served as President and
Chief Executive Officer of Bancorp since its formation in 1995, and has served
in many positions at Columbia River Bank, including President and Chief
Executive Officer, since 1981.
(3) Bancorp recognizes the contributions that Employee has made to the
success and profitability of Bancorp, and desires to provide deferred
compensation and other consideration to Employee as compensation for his
services and for the confidentiality covenants set forth in the Agreement.
Now, therefore, it is agreed:
1. DEFERRED COMPENSATION.
1.1 ELIGIBILITY. Employee shall become eligible for deferred
compensation under the Agreement upon his retirement as a full-time employee of
Bancorp; provided, that in no event shall Employee be entitled to deferred
compensation payments under the Agreement prior to May 15, 2001 regardless of
the date of Employee's termination of employment by retirement or otherwise.
1.2 COMPENSATION. Beginning on the first 15th day of May immediately
following the date of Employee's retirement, and on the 15th day of May of each
year thereafter through and including May 15, 2007, Bancorp shall pay Employee
deferred compensation consisting of (i) $48,000 per year, plus (ii) Accrued
Interest as provided in Section 1.3 herein.
1.3 ACCRUED INTEREST. Payment of the Accrued Interest described in
Section 1.2(ii) has been provided for by the purchase of a $120,000 market rate
certificate of deposit (the "CD") on December 26, 1995. The CD, which has been
or shall be replaced upon maturity as required
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from time to time to fulfill the terms of the Agreement, was purchased to fund
such payments. Upon the maturity of the CD a new market rate certificate of
deposit shall be purchased with a comparable maturity for the same purpose as
long as Employee is entitled to deferred compensation payments under the
Agreement. Any interest earned (the "Accrued Interest") on the CD and any
subsequent certificates of deposit purchased under the Agreement shall be paid
to Employee as follows: (i) on the first May 15 on which Employee is paid his
first yearly deferred compensation payment under the Agreement, Employee shall
also be paid all Accrued Interest earned from the first date the CD and any
subsequent certificates of deposit began earning interest through the May 15 of
the year in which Employee is paid such first yearly payment; (ii) on the 15th
day of May of each year thereafter through and including May 15, 2007, Employee
shall be paid all Accrued Interest earned from the CD and any subsequent
certificates of deposit from May 15 of the previous calendar year through May 15
of the current payment year.
1.4 OWNERSHIP OF CD. Bancorp is and shall be the exclusive owner and
beneficiary of the CD, and has and shall have all right, title and interest in
and to the Policy. Neither the Employee nor Employee's heirs, beneficiaries,
creditors, successors, assigns, probate estate or legal representatives shall
have any right, title or interest in the CD or in the values, benefits or
proceeds of the CD. The CD and all values, benefits and proceeds of the CD shall
be and remain part of the general assets of Bancorp, and all sums of any kind
payable under the Policy shall be payable to Bancorp, not to Employee. Nothing
in the Agreement shall create or be construed to create a trust of any kind, or
a fiduciary relationship between Bancorp and Employee, Employee's beneficiaries
or any other person. Nothing in the Agreement shall give rise to a duty or
obligation on the part of the entity issuing the CD toward Employee or
Employee's heirs, beneficiaries, creditors, successors, assigns, probate estate
or legal representatives.
1.5 GENERAL CREDITOR STATUS. All payments to be made to Employee under
the Agreement shall be made solely from Bancorp's general funds and assets. All
references in the Agreement to the CD and to the amounts payable to Employee are
made solely for the purpose of determining and measuring the amounts Bancorp is
obligated to pay to Employee under the Agreement from its own funds and assets.
No person claiming the right to payment under the Agreement, including Employee
and Employee's heirs, beneficiaries, creditors or assigns, shall have a creditor
status greater or other than that of a general unsecured creditor of Bancorp.
Payments received by or payable to Bancorp under the CD shall not be deemed to
be held by or payable to Bancorp under a trust for the benefit of Employee or
anyone, nor shall such payments be deemed to be security for the performance of
Bancorp's obligations under the Agreement.
1.6 ERISA. It is the understanding and intent of the parties that the
Agreement, in form, substance and operation, shall constitute and be interpreted
as an "unfunded" deferred compensation plan (the "Plan") within the meaning of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
Bancorp shall be the Named Fiduciary under ERISA, and the Agreement shall
constitute the written plan instrument. Bancorp shall also serve as the Plan
Administrator of the Plan. The procedure for filing claims under the Plan is set
forth in Section 4 of the Agreement.
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1.7 DISPOSITION OF CD. Bancorp may cancel, replace or otherwise dispose
of the CD at any time during the term of the Agreement; provided, that such
disposition shall not relieve Bancorp of its obligations to Employee under the
Agreement. If at any time during the term of the Agreement the CD is no longer
in existence for any reason, Employee's benefits under the Agreement shall be
determined using appropriate and reasonable methods, calculations and
assumptions, such that Employee shall receive benefits in an amount no less than
what he would have received had the CD been in existence.
1.8 DEFINITION. For the purposes of this Agreement, Employee shall be
deemed "retired" on and as of the date of occurrence of one or more of the
following: (i) the date of expiration of Employee's term of employment under the
Employment Agreement between the parties of April 1, 1999 where such term has
not been extended; (ii) the effective date of termination of Employee's
employment by Bancorp or by Employee, with or without cause; or (iii) such other
date on which the parties may mutually agree in writing.
1.9 TERMINATION WITH CAUSE. If prior to retirement Employee is
terminated by Bancorp with cause, Employee shall not be entitled to any deferred
compensation payments or any benefits under Section 1.6 or elsewhere in the
Agreement, and the Agreement shall as of such termination date be null and void.
1.10 VESTING. Employee's right to benefits and payments under the
Agreement shall become 100% vested on the date of the Agreement, April 1, 1999,
(the "Vesting Date"), provided that on the Vesting Date Employee is a full-time
employee of Bancorp. No vesting with respect to any benefits or payments under
the Agreement shall occur prior to the Vesting Date.
1.11 BENEFITS. As additional consideration under the Agreement, from
and after the date of Employee's retirement through May 15, 2007, Bancorp shall
provide Employee with all medical, dental, disability, vision and life insurance
which Bancorp or the Banks provide to full-time employees.
2. CHANGE OF CONTROL.
2.1 SURVIVAL OF RIGHTS. If there is a change of control of Bancorp on
or at any time prior to May 15, 2007, Employee shall continue to be entitled to
receive the deferred compensation provided in Section 1 of the Agreement.
2.2 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, all stock and options shall be declared fully
vested and shall be 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.
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2.3 DEFINITION. As used in this Section, "control" shall mean the
acquisition of twenty-five percent (25%) or more of the voting securities of
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.
3. COVENANTS.
3.1 COOPERATION. Employee shall at all times fully cooperate with
Bancorp and its affiliates 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.
3.2 CONFIDENTIALITY. Employee shall at all times keep all confidential
and proprietary information gained from his employment by Bancorp, or other
previous and present 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 Board members or employees of Bancorp or
its affiliates, except as may be required by law, regulation or subpoena.
3.3 NON-COMPETE COVENANTS. After the date of Employee's retirement or
other termination of employment with Bancorp, and as long as Employee is
eligible to receive deferred compensation under the Agreement but in no event
for a period less than one year from such date, Employee shall not, without the
prior written consent of Bancorp:
3.3.1 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, Sherman or Gilliam Counties, Oregon, in
Klickitat County, Washington, or in any other county in Oregon or Washington in
which Bancorp or any subsidiary, parent, sister or other affiliated corporation
of Bancorp has a place of business at the time of termination; or
3.3.2 Hire for any financial institution or other employer
(including himself) any employee of Bancorp, or any subsidiary or other
affiliate of Bancorp, 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, Sherman or Gilliam Counties, Oregon, in Klickitat County,
Washington, or in any other county in Oregon or Washington in which Bancorp or
any subsidiary, parent, sister or other affiliated corporation of Bancorp has a
place of business at the time of termination.
4. CLAIMS PROCEDURE; REVIEW.
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4.1 CLAIMS. A claim for benefits under the Plan shall be made in
writing and delivered to Bancorp as Plan Administrator. Within a reasonable time
after receipt of the claim, the Plan Administrator shall provide a written
notice of decision to the claimant. If a claim is wholly or partially denied,
the following shall apply:
4.1.1 The written notice shall be provided to each claimant,
shall state in plain language the specific reason or reasons for the denial,
shall make specific reference to the pertinent provisions of the Plan on which
the denial is based, and shall describe any additional material or information
necessary to perfect the claim and an explanation of why such information is
necessary.
4.1.2 The written notice shall also contain an explanation of
the review procedure established under the Plan.
4.2 REVIEW. The review procedure set forth in this Section is for the
purpose of allowing a claimant under the Plan to have a reasonable opportunity
to appeal a denial of a claim and to receive a full and fair review.
4.2.1 Within sixty (60) days of the denial, in whole or in
part, of a claim for benefits under the Plan, the claimant may file a written
request with Bancorp as Named Fiduciary under the Plan for a review of the
denial. The request may contain issues and comments, and may include any other
materials or information that may be pertinent to the review. The claimant may
also request and review any pertinent Plan documents.
4.2.2 Within sixty (60) days of the receipt of a written
request for review, the Named Fiduciary shall make a decision on the request.
The Named Fiduciary may in its discretion (i) extend the time for decision to no
more than one hundred and twenty (120) days of the receipt of a written request
for review, (ii) hold a hearing on the denied claim, and (iii) request
additional information from the claimant.
4.2.3 The decision of the Named Fiduciary on the request for
review shall be provided to each claimant, shall state in plain language the
specific reason or reasons for the decision, and shall make specific reference
to the pertinent provisions of the Plan on which the decision is based.
5. MISCELLANEOUS.
5.1 STOCK INCENTIVE PLAN. Employee's retirement shall not be deemed a
retirement or general termination under any provision of the Columbia Bancorp
1999 Stock Incentive Plan or under any provision of any successor Plan, and
shall therefore not limit the time within which Employee may exercise his stock
option rights thereunder, except as otherwise provided under the Plan or any
successor plan or under applicable law.
5.2 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
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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.
5.3 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 negotiations, discussions or agreements not
contained herein or in such documents shall be binding or enforceable against
the parties.
5.4 ADDITIONAL AGREEMENT. The Agreement shall be effective and binding
upon the parties as of and from and after April 1, 1999 until its expiration or
termination as provided herein. Employee's rights under the Agreement are in
addition to Employee's rights under the Employment Agreement of April 1, 1999
between the parties.
5.5 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.
5.6 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 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.
5.7 BENEFICIARIES. The Agreement, including the payment rights provided
in the Agreement, shall inure to the benefit of and be enforceable by Employee's
estate or legal representative. Without limitation of the foregoing, it is
understood and agreed that if Employee's employment is terminated prior to the
first date on which Employee becomes eligible for the deferred compensation
payments provided under the Agreement, and if such termination is due to death,
disability or any other reason, other than termination with cause as described
in Section 1.5 herein, the Employee or his estate shall be entitled to all
deferred compensation payments hereunder from and after the first such date of
eligibility. As used in the Agreement, "beneficiary" shall mean any person or
entity, including a trust, which has been designated by Employee as Employee's
beneficiary in writing. Such designation shall be made on a form of Nomination
of Beneficiary in substantially the form attached hereto as Exhibit 1, the
original of which shall by delivered to and acknowledged by Bancorp. Employee
may revoke or change a designation of beneficiary at any time and at Employee's
sole discretion, and may name more than one beneficiary. On the date of
Employee's death, Employee's beneficiary under the Agreement shall be the
beneficiary named on the most current form of Nomination of Beneficiary on file
with Bancorp. If no Nomination of Beneficiary form is on file with Bancorp
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on the date of Employee's death, Employee's estate shall be Employee's
beneficiary under the Agreement.
5.8 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.
5.9 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.
5.10 PRIOR AGREEMENT. The Agreement supersedes and replaces the
Deferred Compensation Agreement between Employee and Bancorp of May 1, 1998, and
the latter agreement shall be deemed null and void as of April 1, 1999.
5.11 ERISA FILING. Within one hundred and twenty (120) days of
Bancorp's adoption of the Plan, the Plan Administrator shall file a notice and
disclosure under ERISA in the form attached hereto as Exhibit 2. The adoption
date of the Plan shall be the date of the Agreement, April 1, 1999.
5.12 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.
/s/
- --------------------------------------
Terry L. Cochran
COLUMBIA BANCORP
By: /s/
----------------------------------
Chairman
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Exhibit 1
NOMINATION OF BENEFICIARY
In accordance with the rights granted to me under the Deferred
Compensation Agreement (the "Agreement") between me and Columbia Bancorp (the
"Company") of April 1, 1999, I do hereby nominate the following as Beneficiary
thereunder to receive payments thereunder in the event of my death:
First Nominee:___________________________________
Second Nominee:__________________________________
The following terms and conditions shall apply.
1. I reserve the right and privilege of changing the Beneficiary herein
named at any time or times without the consent of any such Beneficiary.
2. As used herein, "Beneficiary" shall include the plural,
"Beneficiaries," wherever the Agreement so permits.
3. If any sole Beneficiary who is then receiving monthly payments
hereunder and under the Agreement shall not be living on any monthly payment
date provided for in the Agreement, any and all remaining monthly payments shall
be payable to the next Beneficiary in the order named above unless the executors
or administrators of such sole Beneficiary are named as Beneficiaries
hereinabove.
4. If more than one Beneficiary is named either individually or as a
class, monthly payments shall lie made equally to such Beneficiaries unless
otherwise provided hereinabove. If any such Beneficiaries die while receiving
monthly payments hereunder under the Agreement, any and all remaining payments
shall be made equally to the surviving Beneficiaries of such designation or
class or all to the sole survivor of them unless otherwise provided herein. If
all of such Beneficiaries shall die, any and all remaining payments shall he
made to the next Beneficiary in the order named hereinabove.
5. If none of the Beneficiaries named herein are living on any monthly
payment date, any and all remaining payments shall be made to my executors or
administrators, or upon their written request, to any person or persons so
designated by them.
6. If any such monthly payments shall be payable upon any trust, the
Company shall not be liable to see to the application by the trustee of any
payment hereunder at any time, and may rely upon the sole signature of the
trustee to any receipt, release, or waiver, or to any
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transfer or other instrument to whomsoever made purporting to affect this
nomination or any right hereunder.
7. This Nomination of Beneficiary shall be executed in duplicate, but
it shall not be valid unless one copy of it is filed with and receipt thereof is
acknowledged thereon by the Company during my lifetime. Any revocation or change
of this Nomination of Beneficiary shall not be valid unless it is filed with and
receipt thereof is acknowledged thereon by the Company during my lifetime, and
any loss or destruction of any copy retained by me shall not constitute a
revocation or change of this Nomination of Beneficiary.
This nomination cancels and supersedes any Nomination of Beneficiary
heretofore made by me with respect to the Agreement and the right to receive
payments thereunder.
Date:_________________.
_____________________________
ACKNOWLEDGMENT
Columbia Bancorp hereby acknowledges receipt of the foregoing
Nomination of Beneficiary as of the date shown below.
Columbia Bancorp
By:____________________________
Title:_________________________
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Exhibit 2
[DATE]
To: The Secretary of Labor
Top Hat Exemption, Pension and Welfare Benefits Administration
U. S. Department of Labor
Washington, D. C. 20210
Re: Reporting and Disclosure Statement
In compliance with the alternative reporting and disclosure method
under the Employee Retirement Income Security Act of 1974, as amended, and as
provided for an unfunded deferred compensation plan for a select group of
management or highly compensated employees under D. O. L. Regulation Section
2520.104-23, the following information is provided by Columbia Bancorp, the Plan
Administrator.
1. The name of the employer is Columbia Bancorp.
2. The mailing address of the employer is P. O. Box 1050, The
Dalles, Oregon 97058.
3. The Federal Identification Number (EIN) of the employer
is ________________.
4. The employer maintains one (1) unfunded deferred compensation
plan (the "Plan") for one (1) employee.
5. The employer maintains the Plan exclusively for the purpose of
providing deferred compensation to employer's President and Chief Executive
Officer, one of a select group of employer's management and a highly compensated
employee.
A copy of the Plan, which is set forth in a form of deferred
compensation agreement between the employer and the employee, shall be provided
to the Secretary of Labor upon request.
Columbia Bancorp, Employer and Plan
Administrator
By:_____________________________