Exhibit 10.83


 


SECOND AMENDMENT TO THE


DIRECTOR DEFERRED COMPENSATION
AGREEMENT


 


This Second Amendment to the Director Deferred Compensation Agreement
(the “Amendment”) is made effective as of January
1, 2009, and is entered into by and between Central Valley Community Bank (the “Bank”) and                                  (the “Director”),
each a “Party” and together the “Parties,” on the date identified on the
signature page below.


 


RECITALS


 


A.                                   The Parties
entered into that certain Second Amended and Restated Director Deferred
Compensation Agreement dated February 13, 2003, which was amended by that
certain First Amendment dated June 16, 2003 (as amended, the “Agreement”).


 


B.                                     The Parties wish to amend the Agreement, as provided
herein, to make certain clarifications
consistent with the Agreement and with Internal Revenue Code Section 409A,
together with regulations and guidance promulgated thereunder, as amended from
time to time (collectively referred to as “Section 409A”).


 


AMENDMENT


 


In
consideration of the mutual promises, covenants, and agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:


 


1.                                       Change of
Control.  Section 1.1 entitled “Change
of Control” is deleted in its entirety and replaced with the following:


 


“Change of Control” means that any of the following events
occur:


 


(a)                                  Merger/
Acquisition of Significant Share Ownership:  Any one person, or more than one person
acting as a group, acquires ownership of Central Valley Community Bancorp that,
together with stock held by such person or group, constitutes more than fifty
percent (50%) of the total fair market value or total voting power of the stock
of Central Valley Community Bancorp. 
However, if any one person or more than one person acting as a group, is
considered to own more than fifty percent (50%) of the total fair market value
or total voting power of the stock of Central Valley Community Bancorp, the
acquisition of additional stock by the same person or persons will not be
considered to cause a Change of Control. 
Further, an increase in the percentage of stock owned by any one person,
or persons acting as a group, as a result of a transaction in which Central
Valley Community Bancorp acquires its stock in exchange for property will not
be considered to cause a Change of Control; or


 


(b)                                 Change
in Board Composition: During any 12-month period, a majority of the
members of the Board of Directors of Central Valley Community Bancorp are
replaced by directors whose appointment or election is not endorsed by at least
two-thirds of the members of the Board of Directors of Central Valley Community
Bancorp before the date of the appointment or election.


 


Notwithstanding
anything to the contrary, the term “ Change of Control”
shall be interpreted in accordance with Section 409A.


 

















 


2.                                       Termination of
Employment. The following provision is hereby added to Section
1.5 of the Agreement, entitled “Termination of Service”:


 


A
“Termination of Service” shall only have occurred if the termination of the
Director’s membership on the Board of Directors constitutes a good-faith and
complete termination of the Director’s board membership, as described in
Treasury Regulations §1.409A-1(h)(2)(i).


 


3.                                       Disability. The following
provision is hereby added to Section 1.6 of the Agreement, entitled “Disability”:


 


A
Director shall only be considered to have a “Disability” if he or she (i) 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 12
months; or (ii) 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 12 months, receiving income
replacement benefits for a period of not less than 3 months under an accident
and health plan covering Bank employees. 
Notwithstanding anything to the contrary, the terms “Disability” or “Disabled”
shall be interpreted in accordance with Section 409A.


 


4.                                       Elections. The following
provision is hereby added to Section 2.2.1 of the Agreement, entitled “Generally”:


 


Notwithstanding
anything to the contrary, in no event shall such written approval be provided
by the Board of Directors of the Bank unless explicitly permitted by applicable
law, including but not limited to, Section 409A.


 


5.                                       Hardships.  Section 2.2.2 entitled “Hardship” is deleted
in its entirety.  Section 4.5 entitled “Hardship
Distribution” is deleted in its entirety and is hereby replaced with the
following:


 


Upon
the Bank’s determination (following petition by the Director) that the Director
has suffered an Unforeseeable Emergency (defined below), the Bank may, in its
sole discretion, make distributions from the Director’s Deferral Account.  Any distribution made pursuant to this
provision must be made in accordance with Section 409A, and must not exceed the
amount reasonably necessary (including
anticipated taxes on the distribution) to meet the emergency financial need and
not reasonably available from other resources of the Director (including
reimbursement or compensation by insurance, 


 

















 


liquidation
of the Director’s assets to the extent such liquidation itself would not cause
severe financial hardship, or by
cessation of deferrals under this Agreement).  In
making this determination, the Bank will take into account any such additional
compensation that is available to the Director.  Any
distribution under this provision shall be paid to the Director in a single
lump sum as soon as administratively practicable following receipt of the
appropriate forms and information required by and acceptable to the Bank.  Notwithstanding anything to the contrary, in
the event a Director receives a distribution from the Agreement on account of
an Unforeseeable Emergency, future deferrals under the Agreement will be
cancelled for the remainder of the calendar year.  An “Unforeseeable Emergency” shall mean a
severe financial hardship to the Director due to (a) uninsured medical expenses
resulting from an illness or accident of the Director, the Director’s spouse,
or a dependent of the Director (as defined in Code section 152(a) without
regard to Code sections 152(b)(1), 152(b)(2) and 152(d)(1)(B)) of the Director;
(b) an uninsured casualty loss pertaining to property owned by the Director;
or, (c) other similar extraordinary and unforeseeable circumstances involving
an uninsured loss arising as a result of an event beyond the control of the
Director, provided however that any such event qualifies as an “unforeseeable
emergency” within the meaning of Section 409A.


 


6.                                       Termination For
Cause.  Section 7.5 entitled “Termination
For Cause” is deleted in its entirety and is hereby replaced with the
following:


 


Notwithstanding
any provision of the Agreement to the contrary, the Company shall not pay any
benefit under the Agreement that is in excess of the Director’s Deferrals (i.e., the interest earned on the Deferred Account) if the
Director’s Termination of Services results from Termination for Cause.  The Director’s Deferrals shall be paid to the
Director in the manner otherwise provided in the Agreement.  No interest shall be credited on the
Deferrals during any applicable installment period.


 


7.                                       Amendments and
Termination. The following provision is hereby added to Article
9 of the Agreement, entitled “Amendments and Termination”:


 


Notwithstanding
the foregoing, the Bank’s discretionary termination of this Agreement shall not
result in the acceleration of the time and form of payment to Director, except
where the right to payment arises in connection with the Bank’s discretionary
termination of the Agreement under one of the circumstances identified in
Treasury Regulations §1.409A-3(j)(4)(ix).


 


8.                                       Specified
Employee Requirements.  The
following provisions are hereby added as Section 7.6 of the agreement:


 


Specified Employee Requirements


 


a.                                       Six-Month
Delay.  In the event that Director is
also a Specified Employee (defined below) as of the date of Termination of
Service, payments under the Agreement upon Termination of Service may not be
made before the date that is six months after Termination of Service (or, if
earlier than the end of the six-month period, the date of death of the
Director).  Payments to which the
Director would otherwise be entitled during the first six months following
Termination of Service, but for this Six-Month Delay provision, shall be
accumulated and paid on the first day of the seventh month following
Termination of Service.


 

















 


b.                                      Specified
Employee.  Director
shall be deemed to be a “Specified Employee” if, as of the date of Director’s
Termination of Service, Director is a Key Employee (defined below) of the Bank
and the Bank has stock which is publicly traded on an established securities
market or otherwise.


 


c.                                       Key
Employee.  If Director
meets each of the requirements of Internal Revenue Code 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 a twelve month period ending
on December 31 (the “Specified Employee Identification Date”), then Director
shall be treated as a Key Employee for the entire twelve month period beginning
on the following April 1.  Such April 1
date shall be the “Specified Employee Effective Date” for purposes of Section 409A.


 


9.                                       Scope of
Amendment.  This
Amendment shall not apply to amounts that were deferred and vested under the
Agreement prior to December 31, 2004, and such amounts shall be treated as
being grandfathered for purposes of Section 409A.


 


10.                                 No Other
Amendments or Changes. Except as expressly amended or modified by
this Amendment, all of the terms and conditions of the Agreement shall remain
unchanged and in full force and effect.


 


Executed
and adopted on September 16, 2009, to be effective on January 1, 2009.


 


	
  BANK:

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
  CENTRAL VALLEY COMMUNITY
  BANK

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name: Daniel Doyle

  	
   

  
	
  Title: President and Chief
  Executive Officer