SUPPLEMENTAL COMPENSATION AGREEMENT
EXHIBIT
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THIS
AGREEMENT is made and entered into effective as of _______, 200_ by and between
COLUMBIA STATE BANK
(hereinafter “Bank” or “Employer”), a bank organized and existing under the laws
of the state of Washington, and ________________, an individual residing in
the State of Washington (hereinafter “Executive”).
R E C I T
A L S
WHEREAS,
the Executive’s experience, knowledge of the affairs of the Bank, reputation,
and contacts in the industry are extremely valuable and that the assurance of
the Executive’s continued employment is desired for aiding in the future growth
and profits of the Bank, and whereas it is in the best interests of the Bank to
arrange terms of continued employment for the Executive so as to reasonably
assure the Executive remains in the Bank’s employment during the Executive’s
lifetime or until the age of retirement;
WHEREAS, the Executive is willing to be
employed by the Bank provided the Bank agrees to pay certain benefits in
accordance with the terms and conditions hereinafter set forth;
WHEREAS, the Executive and the Employer
wish to specify in writing the terms and conditions upon which this additional
compensatory incentive will be provided to the Executive;
WHEREAS,
it is the intent of the parties hereto that this agreement be considered an
un-funded arrangement maintained primarily to provide supplemental retirement
benefits for the Executive, and be considered a non-qualified benefit plan for
purposes of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”);
WHEREAS,
the Executive is fully advised of the Bank’s financial status;
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 Employer agree as
follows:
A G R E E
M E N T
1.0 Terms and
Definitions.
1.1 Accrued
Liability Balance. For the purposes
of this Agreement, the “Accrued Liability Balance” means the liability that is
accrued by the Bank, under
Generally
Accepted Accounting Principles (“GAAP”) to fund the Bank’s obligation to the
Executive under this Agreement. The discount rate employed shall be determined
by an actuary appointed by the Bank, and such rate shall be within reasonable
standards according to GAAP. Furthermore, any one of a variety of
amortization methods may be used to determine the Accrued Liability Balance;
however, once chosen, the method must be consistently applied.
1.2 Administrator. The
Employer shall be the "Administrator" and, solely for the purposes of ERISA, the
"fiduciary" of this Agreement where a fiduciary is required by
ERISA.
1.3 Beneficiary(ies). The individual(s) or
entities designated to receive any Executive Benefit due or outstanding to the
Executive upon the death of the Executive. The Beneficiary(ies) shall be
designated in accordance with the provisions of Paragraph 7.0 (and the
subsequent subparagraphs).
1.4 The
Code. The "Code" shall
mean the Internal Revenue Code of 1986, as amended (the “Code").
1.5 Disability/Disabled. For the purpose of this
Agreement, the Executive will be considered disabled if:
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A.
He is unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous
period of not less than Twelve (12) months,
or
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B. He
is, by reason of any medically determinable physical or mental impairment which
can be expected to result in death or can be expected to last for a continuous
period of not less than Twelve (12) months, receiving income replacement
benefits for a period of not less than Three (3) months under an accident and
health plan covering employees of the Executive’s employer.
1.6 Effective
Date. The term
"Effective Date" shall mean the date identified as such in the opening paragraph
of this Agreement.
1.7 ERISA. The term "ERISA"
shall mean the Employee Retirement Income Security Act of 1974, as
amended.
1.8 Executive
Benefit. The term
"Executive Benefit" shall mean the benefit amounts determined pursuant to
Paragraphs 3 through 5 (including sub-paragraphs, as applicable), reduced or
adjusted to the extent: (a) required under the other provisions of
this Agreement; or (b) required by reason of the lawful order of any
regulatory agency or body having jurisdiction over the Employer; or (c) required
in order
for the
Employer to comply with any and all applicable state and federal laws,
including, but not limited to, income, employment and disability income tax laws
(e.g. FICA, FUTA, SDI).
1.9 Involuntary
Separation From Service. In accordance with IRC 409A, the term
“Involuntary Separation from Service” shall mean a Separation from Service due
to the independent exercise of the unilateral authority of the Bank to terminate
the Executive’s services, other than due to the Executive’s implicit or explicit
request, where the Executive was willing and able to continue performing
services.
1.10 Net
Present
Value. The
term “Net Present Value” shall mean the value, as of a specified date, of future
cash payments due, calculated using a discount rate determined by an actuary
selected by the Bank and determined in accordance with GAAP.
1.11 Remains
Employed. The term “Remains Employed” shall mean that the
Executive has not experienced a Separation From Service with Employer (as
defined herein).
1.12 Service
Period. For
the purposes of this Agreement, the term “Service Period” shall refer to the
period of time between the effective date of this Agreement and ______ __, 20__,
during which time Executive must Remain Employed in order to receive the
Executive Benefit specified in Paragraph 3. The Service Period shall expire on
_____ __, 20__.
1.13 Service
Ratio.
For the purposes of this Agreement, the “Service Ratio” shall be a fraction, the
numerator of which shall be the number of full months the Executive has been
employed by the Bank since the Effective Date of this Agreement, and the
denominator of which shall be Sixty (60).
1.14 Specified
Employee. The term “Specified Employee” means an employee who, as of the
date of his Separation from Service, is a key employee of an employer of which
any stock is publicly traded on an established securities market or otherwise.
An employee is a key employee if the employee meets the requirements of section
416(i)(1)(A)(i), (ii), or (iii) (applied in accordance with the regulations
thereunder and disregarding section 416(i)(5)) at any time during the twelve
(12) month period ending on a specified employee identification date. If
Executive is a key employee as of a specified employee identification date, then
Executive shall be treated as a key employee for the entire twelve (12) month
period beginning on the specified employee effective date.
1.15 Termination
for Cause. The term “Termination for Cause” shall mean a
Termination of Employment of the Executive by the Employer by reason of any of
the following:
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A.
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Willful
misfeasance or gross negligence in the performance of Executive’s duties
as an employee of the Employer; or
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B.
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Conduct
demonstrably and significantly harmful to the Employer or a financial
institution subsidiary; or
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C.
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Conviction
of a felony.
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1.16 Termination
of Employment and Separation From Service. The
terms “Termination of Employment” (or “Terminate” or “Terminates”) as
used in this Agreement shall be used interchangeably with the term “Separation
From Service”, and shall be interpreted in accordance with the provisions of IRC
409A and any related notices, guidance or regulations. Whether a
Separation From Service (or a Termination of Employment) has occurred is
determined based on whether the facts and circumstances indicate that the Bank
and the Executive reasonably anticipate that no further services will be
performed after a certain date or that the level of bona fide services the
employee will perform after such date (whether as an employee or as an
independent contractor) will permanently decrease to no more than twenty (20%)
percent of the average level of bona fide services performed (as an employee or
an independent contractor) over the immediately preceding 36-month period (or
the full period of services to the employer if the employee has been
providing services to the employer less than 36 months). There shall
be no Separation From Service while the participant is on military leave, sick
leave or other bona fide leave of absence, as long as such leave does not exceed
six (6) months, or if longer, so long as the individual retains a right to
reemployment with the service recipient under an applicable statute or by
contract.
1.17 Voluntary
Termination. The
term “Voluntary Termination” shall mean a Separation From Service elected by the
Executive, and not as a result of a Termination for Good Reason.
2.0 Scope,
Purpose and Effect.
2.1 Contract
of Employment. Although this
Agreement is intended to provide the Executive with additional incentive to
remain in the employ of the Employer, the Agreement shall not be deemed to
constitute a contract of employment between the Executive and the Employer, nor
shall any provision of the Agreement be applied to restrict or expand the right
of the Employer to terminate the Executive's Employment with or without cause.
This Agreement shall have no impact or effect upon any separate
written employment agreement which the Executive may have with the Employer, it
being the parties' intention and agreement that unless this Agreement is
specifically referenced in such employment agreement, then this
Agreement (and the Employer's obligations hereunder) shall stand separate and
apart and shall have no effect on, or be affected by, the terms and provisions
of any employment agreement. Events of Termination of Employment shall be
characterized, for purposes of interpreting this Agreement, in accord
with the definitions herein.
2.2 Fringe
Benefit. The benefits
provided by this Agreement are granted by the Employer as a fringe benefit to
the Executive and are not a part of any salary reduction plan or any arrangement
deferring a bonus or a salary increase. The Executive has no option
to take any current payments or bonus in lieu of the benefits provided by this
Agreement.
3.0 Long Term
Compensation Benefit.
3.1 In the
Event Executive Remains Employed by the Bank Throughout the Service
Period. In the event that the
Executive Remains Employed throughout the Service Period, then he
shall be entitled to receive an annual Executive Benefit of Twenty-Five Thousand
Dollars ($25,000) for a period of five (5) years. Such annual Executive Benefit
shall be paid by the Employer in Twelve (12) substantially equal monthly
installments, commencing on the first day of the first month immediately
following the expiration of the Service Period, and continuing for a period of
Sixty (60) months thereafter.
4.0 Effect
of Death, Disability or Separation From Service Prior to the Expiration of the
Service Period.
In the
event that the Executive Separates From Service prior to the expiration of the
Service Period, then he (or his designated Beneficiary[ies]) shall be entitled
to receive one of the following benefit amounts, depending on the circumstances
of such Termination:
4.1 Involuntary
Termination or Disability. In the event the Executive is Involuntarily
Terminated by the Bank or becomes Disabled prior to the expiration of the
Service Period, then Executive shall receive an annual amount equal to the
Service Ratio multiplied by the annual Executive Benefit amount specified in
Paragraph 3.1. This annual Executive Benefit shall be paid by the Employer in
Twelve (12) substantially equal monthly installments, commencing on the first
day of the first month following the expiration of the Service Period, and
continuing for a period of Sixty (60) months thereafter.
4.2 Termination
for Cause or Voluntary Termination. In the event the Executive
Voluntarily Terminates or is Terminated for Cause by the Bank at any time prior
to the expiration of the Service Period, then he shall forfeit any claim to
benefits under this Agreement, and neither Executive nor his Beneficiary(ies)
shall be entitled to receive any benefit pursuant to the terms of this
Agreement.
4.3 Death. In the event of the
Executive’s death prior to the expiration of the Service Period and prior to
Executive’s Separation From Service with Employer, then Executive’s designated
Beneficiary(ies) shall receive an annual amount equal to the Service Ratio
multiplied by the annual Executive Benefit amount specified in Paragraph 3.1.
This annual Executive Benefit shall be paid by the Employer in Twelve (12)
substantially equal monthly installments, commencing within Forty-Five (45) days
of Executive’s death and continuing for a period of Sixty (60) months
thereafter. The Designated Beneficiary(ies) is not permitted, directly or
indirectly, to designate the taxable year of any payment hereunder.
5.0 Death
After Becoming Entitled to Receive Payment, but Prior to Receiving Any or All
Such Payments.
In
the event Executive should die after becoming entitled to the benefits specified
under the provisions of Paragraphs 3 and 4 herein (including subparagraphs), but
prior to receiving any or all such payments, then Executive’s designated
Beneficiary(ies) shall receive the remainder of such payments, in the same
amount and on the same schedule as Executive would have received such payment,
had he survived.
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6.0
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Intent to Comply With
IRC Section 409A.
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It is the
intent of the parties to comply with all applicable Internal Revenue Code
Sections, including, but not limited to, IRC 409A. Thus, for any benefits
payable pursuant to this Agreement and as a result of a Separation from Service
(if such payout trigger exists in this Agreement), if the Executive is a
Specified Employee, as defined herein and/or by the Internal Revenue Service,
and the Employer is publicly traded at the time of Separation from Service (as
defined by IRC 409A), any such benefit payment described hereinabove shall be
withheld for Six (6) months following such separation from service in order to
comply with IRC 409A. In addition, for any individual affected by this Six (6)
month delay in payment imposed by IRC 409A, and when applicable, the
aggregate amount of the first Seven (7) months of installments shall be paid at
the beginning of the seventh month following the date of separation from
service. Monthly installment payments shall continue thereafter as called
for.
7.0 Beneficiary
Designation
7.1 Beneficiary
Designation.
Executive shall have the right, at any time, to designate any person or persons
as his Beneficiary or Beneficiaries (both primary as well as secondary) to whom
benefits under this Agreement shall be paid in the event of his death prior to
complete distribution to the Executive of the benefits due under this Agreement.
Each Beneficiary designation shall be in a written form and will be effective
only when filed with the Bank during the Executive’s lifetime.
7.2 Amendments
to Beneficiary Designation. Any beneficiary designation may be changed by
the Executive without the consent of any designated Beneficiary by the filing of
a new Beneficiary designation with the Bank. The filing of a new Beneficiary
designation form will cancel all Beneficiary designations previously filed. If
an Executive’s compensation is community property, any Beneficiary designation
shall be valid or effective only as permitted under applicable law.
7.3 No
Beneficiary Designation. In the absence of an
effective beneficiary designation, or if all stated Beneficiaries predecease the
Executive or die prior to complete distribution of the Executive’s Benefit, then
the Executive’s designated Beneficiary shall be deemed to be the Executive’s
estate.
7.4 Doubt as
to Beneficiary.
If there is a doubt as to the proper Beneficiary to receive payments pursuant to
this Agreement, then the Bank shall have the right to withhold such payments
until this matter is resolved.
7.5 Effect of
Payment to the Beneficiary. The payment to the deemed
Beneficiary shall fully and completely discharge the Bank from all further
obligations under this Agreement.
8.0 IRS
Section 280G Issues. If all or any
portion of the amounts payable to the Executive under this Agreement, either
alone or together with other payments which the Executive has the right to
receive from the Employer, constitute "excess parachute payments" within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code"), that are subject to the excise tax imposed by Section 4999 of the Code
(or similar tax and/or assessment), Executive shall be responsible for the
payment of such excise tax and Employer (and its successor) shall be responsible
for any loss of deductibility related thereto; provided, however, that Employer
and Executive shall cooperate with each other and use all reasonable efforts to
minimize to the fullest extent possible the amount of excise tax imposed by
Section 4999 of the Code. If, at a later date, it is determined
(pursuant to final regulations or published rulings of the Internal Revenue
Service, final judgment of a court of competent jurisdiction, or otherwise) that
the amount of excise taxes payable by the Executive is greater than the amount
initially so determined, then the Executive shall pay an amount equal to the sum
of such additional excise taxes and any interest, fines and penalties resulting
from such underpayment. The determination of the amount of any such
excise taxes shall be made by the independent accounting firm employed by the
Employer immediately prior to the change in control or such other independent
accounting firm or advisor as may be mutually agreeable to Employer and
Executive in the exercise of their reasonable good faith
judgment.
9.0 Right To
Determine Funding Methods. The Employer 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 Employer elects to fund this Agreement, in whole or in part,
through the use of life insurance or annuities, or both, the Employer shall
determine the ownership and beneficial interests of any such policy of life
insurance or annuity. The Employer further reserves the right, in its
sole and absolute discretion, to terminate any such policy, and any other device
used to fund its obligations under this Agreement, at any time, in whole or in
part. Consistent with Paragraph 11 below, the Executive shall have no
right, title or interest in or to any funding source or amount utilized by the
Employer pursuant to this Agreement, and any such funding source or amount shall
not constitute security for the performance of the Employer’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 Employer may request and which may be reasonably necessary to
facilitate any funding for this Agreement including, without limitation, the
Employer’s acquisition of any policy of insurance or annuity.
10.0 Status as
an Unsecured General Creditor. Except as
provided below in this Paragraph, Executive agrees that: (i)
Executive shall have no legal or equitable rights, interests or claims in or to
any specific property or assets of the Employer as a result of this Agreement;
(ii) none of the Employer’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 Employer under this Agreement; (iii) all of the
Employer’s assets shall be and remain the general unpledged and unrestricted
assets of the Employer; (iv) the Employer’s obligation under this Agreement
shall be that of an unfunded and unsecured promise by the Employer to pay money
in the future; and (v) Executive shall be an unsecured general creditor with
respect to any benefits which may be payable under the terms of this
Agreement.
Notwithstanding
provisions (i) through (v) above, the Employer and Executive acknowledge and
agree that, in the event that the Employer signs a definitive agreement calling
for a transaction that would result in a Change in Control, upon request of the
Executive, or in the Employer’s discretion if the Executive does not so request
and the Employer nonetheless deems it appropriate, the Employer shall establish,
not later than the effective date of the Change in Control, a Rabbi Trust or
multiple Rabbi Trusts (the "Trust" or "Trusts") upon such terms and conditions
as the Employer, in its sole discretion, deems appropriate, in compliance with
applicable provisions of the Code, and, pursuant to the Trusts, the
Employer shall promptly make contributions and/or transfer assets to the Trusts
which facilitate and are appropriate to the discharge of the Trusts’ obligations
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
Employer to be used for discharge of the Employer’s obligations pursuant to this
Agreement and shall continue to be subject to the claims of the Employer’s
general creditors until paid to the Executive in such manner and at such times
as specified in this Agreement.
11.0 Opportunity
To Consult With Independent Advisors. The Executive acknowledges
that he 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
Employer 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 Employer related to the
matters described herein. The Executive further acknowledges that he
has read, understands and consents to all of the terms and conditions of this
Agreement, and that he enters into this Agreement with a full understanding of
its terms and conditions.
12.0 Claims
Procedure.
12.1 Named
Fiduciary and Plan Administrator. The "Named Fiduciary and Plan
Administrator" of this plan shall be the Bank until its removal by the board of
directors. As Named Fiduciary and Administrator, the Bank shall be
responsible for the management, control and administration of the Executive Long
Term Compensation Agreement as established herein. 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.
12.2 Claims
Procedure. In the event a dispute arises over the benefits
under this executive plan and benefits are not paid to the Executive (or to the
Executive’s beneficiary[ies], if applicable) and such claimants feel they are
entitled to receive such benefits, then a written claim must be made to the
Named Fiduciary and Plan Administrator named above in accordance with
the following procedures:
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A.
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Written
Claim. The claimant may file a written request for such
benefit to the Plan
Administrator.
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B.
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Claim
Decision. Upon receipt of such claim, the Plan
Administrator shall respond to such claimant within ninety (90) days after
receiving the claim. If the Plan Administrator determines that
special circumstances require additional time for processing the claim,
the Plan Administrator can extend the response period by an additional
ninety (90) days for reasonable cause by notifying the claimant in
writing, prior to the end of the initial ninety (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 Plan Administrator expects
to render its decision.
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If
the claim is denied in whole or in part, the Plan Administrator shall
notify the claimant in writing of such denial. The Plan Administrator
shall write the notification in a manner calculated to be understood by
the claimant. The notification shall set
forth:
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(i)
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The
specific reasons for the denial;
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(ii)
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The
specific reference to pertinent provisions of the Agreement on which the
denial is based;
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(iii)
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A
description of any additional information or material necessary for the
claimant to perfect the claim and an explanation of why such material or
information is necessary;
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(iv)
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Appropriate
information as to the steps to be taken if the claimant wishes to submit
the claim for review and the time limits applicable to such procedures;
and
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(v)
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A
statement of the claimant’s right to bring a civil action under ERISA
Section 502(a) following an adverse benefit determination on
review.
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C.
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Request for
Review. Within sixty (60) days after receiving notice
from the Plan Administrator that a claim has been denied (in part or all
of the claim), then claimant (or their duly authorized
representative) may file with the Plan Administrator, a written request
for a review of the denial of the
claim.
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The
claimant (or his duly authorized representative) shall then have the opportunity
to submit written comments, documents, records and other information relating to
the claim. The Plan Administrator 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.
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D.
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Decision on
Review. The Plan Administrator shall respond in writing
to such claimant within sixty (60) days after receiving the request for
review. If the Plan Administrator determines that special
circumstances require an extension of time for processing the claim,
written notice of the extension shall be furnished to the claimant prior
to the termination of the initial sixty (60) day period. In no event shall
such extension exceed a period of sixty (60) days from the end of the
initial period. The notice of extension must set forth the special
circumstances requiring an extension of time and the date by which the
Plan Administrator expects to render its
decision.
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In
considering the review, the Plan Administrator 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.
The Plan
Administrator shall notify the claimant in writing of its decision on
review. The Plan Administrator shall write the notification in a
manner calculated to be understood by the claimant. The notification
shall set forth:
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(i)
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The
specific reasons for the denial;
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(ii)
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A
reference to the specific provisions of the Agreement on which the denial
is based;
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(iii)
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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
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(iv)
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A
statement of the claimant’s right to bring a civil action under ERISA
Section 502(a).
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12.3 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 Employer 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"). 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") 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. The obligation of the parties to arbitrate pursuant to this
clause shall be specifically enforceable in accordance with, and shall be
conducted consistently with, the provisions of the Washington Code of Civil
Procedure. Any arbitration hereunder shall be conducted in Yakima,
Washington, unless otherwise agreed to by the parties. The parties hereto agree
that they and their heirs, personal representatives, successors and assigns
shall be bound by such arbitration with respect to any controversy properly
submitted to it for determination.
12.4 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, (a) each party shall pay his own
attorneys’ arbitration Fees incurred pursuant to 12.3 hereof; (b) if the
Executive prevails, he shall be entitled to recover from the other party
reasonable expenses, attorneys' Fees and costs incurred in the enforcement or
collection of any judgment or award rendered. The term
"prevails" applies if the arbitrator(s) or court finds that the Executives
entitled to contested money payments from the other, but does not necessarily
imply a judgment rendered in favor of the Executive.
12.5 Notice. Any
notice required or permitted of either the Executive or the Employer 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 Employer:
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Columbia
State Bank
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▇▇▇▇
▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Attention
Corporate Secretary
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If to the
Executive:
13.0 Confidentiality and
Non-Competition Provisions
13.1 Confidentiality. Executive shall
keep the existence of this Agreement and all terms hereof (including,
without limitation, the amount of any benefits received hereunder) strictly
confidential. Executive shall keep this Agreement in a secure,
private location and shall use his best efforts to prevent this Agreement from
being seen by others, including, without limitation, co-workers.
13.2 Non-Competition. Notwithstanding
any contrary provisions of this Agreement, in the event any of the following
events occur, whether before or after Executive begins to receive benefits under
this Agreement, then Executive’s right to receive such benefits, and the Bank’s
obligation to provide such benefits, shall immediately terminate: Executive is
employed by, performs services for, or engages in any business or activities
that competes with the Bank (or any entity or business owned by
Bank). In the event of a breach by Executive of this Paragraph 13.2,
Bank shall have the right to seek injunctive relief, in addition to, and not in
lieu of, any other legal or equitable rights and remedies available to it. If a
court of competent jurisdiction shall find the foregoing provisions illegal or
unenforceable in any way or for any other reason whatsoever, the court may
reform such provisions to the minimum extent necessary to make such provisions
legal and enforceable, so as to permit maximum restrictions that are legal and
enforceable to be applied to the Executive’s ability to compete with Bank (or
any entity or business owned by Bank).
14.0 Miscellaneous
14.1 Assignment. 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.
14.2 Binding
Effect/Merger or Reorganization. This Agreement shall be
binding upon and inure to the benefit of the Executive and the
Employer. Accordingly, the Employer 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 Employer under this Agreement.
14.3 Non-waiver. 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.
14.4 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.
14.5 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.
14.6 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.
14.7 Paragraph
Headings. The paragraph headings used in this Agreement are
included solely for the convenience of the parties and shall not affect or be
used in connection with the interpretation of this Agreement.
14.8 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.
14.9 Governing
Law. The laws of the State of Washington, other than those
laws denominated choice of law rules, and where applicable, the rules and
regulations of the Board of Governors of the Federal Reserve System, Federal
Deposit Insurance Corporation, Office of the Comptroller of the Currency, or any
other regulatory agency or governmental authority having jurisdiction over the
Employer, shall govern the validity, interpretation, construction and effect of
this Agreement.
14.10 Gender. Whenever in this
Executive Agreement words are used in the masculine or neuter gender, they shall
be read and construed as in the masculine, feminine or neuter gender, whenever
they should so apply.
14.11 Effect on
Other Bank Benefit Plans. Nothing
contained in this Agreement shall affect the right of the Executive to
participate in or be covered by any qualified or non-qualified pension,
profit-sharing, group, bonus or other supplemental compensation or fringe
benefit plan constituting a part of the Bank’s existing or future compensation
structure.
14.12 12 U.S.C.
§ 1828(k). Any payments made to the Executive pursuant to this
Executive Agreement, or otherwise, are subject to and conditioned upon his
compliance with 12 U.S.C. § 1828(k) or any regulations promulgated
thereunder.
IN
WITNESS WHEREOF, the Employer and the Executive have executed this Agreement as
of the following date, in the City of Tacoma, Washington.
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EMPLOYER:
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EXECUTIVE:
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COLUMBIA
STATE BANK
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By
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By
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Signature
& Date
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Signature
& Date
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Its
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Title
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Witness
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Witness
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BENEFICIARY DESIGNATION
FORM
FOR THE EXECUTIVE LONG TERM
COMPENSATION AGREEMENT
I. PRIMARY
DESIGNATION
(You
may refer to the beneficiary designation information prior to completion of this
form.)
A. Person(s)
as a Primary Designation:
(Please indicate the percentage for
each beneficiary.)
Name___________________________________ Relationship___________________ /
_______%
Address:_________________________________________________________________________
(Street) (City) (State)(Zip)
Name___________________________________ Relationship___________________ /
_______%
Address:_________________________________________________________________________
(Street) (City) (State)(Zip)
Name___________________________________ Relationship___________________ /
_______%
Address:_________________________________________________________________________
(Street) (City) (State)(Zip)
Name___________________________________ Relationship___________________ /
_______%
Address:_________________________________________________________________________
(Street) (City) (State)(Zip)
B. Estate as a Primary
Designation:
My
Primary Beneficiary is The Estate of ______________________________________ as
set forth in the last
will and
testament dated the _____ day of _____________, _____ and any codicils
thereto.
C. Trust as a Primary
Designation:
Name of the
Trust: ____________________________________________________________
Execution Date of the Trust:
_____ / _____ / _________
Name of the Trustee:
__________________________________________________________
Beneficiary(ies)
of the Trust (please indicate the percentage for each beneficiary):
___________________________________________________________________________
Is this
an Irrevocable Life Insurance Trust? ________
Yes
________ No
(If yes
and this designation is for a Split Dollar agreement, an Assignment of Rights
form should be completed.)
II. SECONDARY (CONTINGENT)
DESIGNATION
A. Person(s) as a Secondary
(Contingent) Designation:
(Please indicate the percentage for
each beneficiary.)
Name___________________________________ Relationship___________________ /
_______%
Address:_________________________________________________________________________
(Street) (City) (State)(Zip)
Name___________________________________ Relationship___________________ /
_______%
Address:_________________________________________________________________________
(Street) (City) (State)(Zip)
Name___________________________________ Relationship___________________ /
_______%
Address:_________________________________________________________________________
(Street) (City) (State)(Zip)
Name___________________________________ Relationship___________________ /
_______%
Address:_________________________________________________________________________
(Street) (City) (State)(Zip)
B. Estate as a Secondary
(Contingent) Designation:
My
Secondary Beneficiary is The Estate of _____________________________________ as
set forth in my last will and testament dated the _____ day of ___________,
_____ and any codicils thereto.
C. Trust as a Secondary
(Contingent) Designation:
Name of the
Trust: ____________________________________________________________
Execution Date of the Trust:
_____ / _____ / _________
Name of the Trustee:
__________________________________________________________
Beneficiary(ies)
of the Trust (please indicate the percentage for each beneficiary):
___________________________________________________________________________
___________________________________________________________________________
All sums
payable under the Executive Supplemental Compensation Agreement by
reason of my death shall be paid to the Primary Beneficiary(ies), if he or she
survives me, and if no Primary Beneficiary(ies) shall survive me, then to the
Secondary (Contingent) Beneficiary(ies). This beneficiary designation
is valid until the participant notifies the bank in writing.
Insured Date
NOTE***
IF YOU RESIDE IN A COMMUNITY PROPERTY STATE (WASHINGTON, CALIFORNIA, IDAHO,
LOUISIANA, NEVADA, NEW MEXICO, TEXAS, WASHINGTON OR WISCONSIN), AND YOU ARE
DESIGNATING A BENEFICIARY OTHER THAN YOUR SPOUSE, THEN YOUR SPOUSE MUST ALSO
SIGN THE BENEFICIARY DESIGNATION FORM.
I am
aware that my spouse, the above named Insured has designated someone other than
me to be the beneficiary and waive any rights I may have to the proceeds of such
insurance under applicable community property laws. I understand that this
consent and waiver supersedes any prior spousal consent or waiver under this
plan.
Spouse
Signature:______________________________ Date:_________________
Witness
(other than insured) : ___________________________