Unassociated Document


    Exhibit
10.29

     

    DIRECTOR
INDEXED COMPENSATION BENEFITS AGREEMENT

     

    This
Agreement is made and entered into effective as of June 19, 1997 by and
between Heritage Bank of Commerce, a bank chartered under the laws of the State
of California (the “Bank”), and Humphrey P. Polanen, an individual residing in
the State of California (the “Director”).

     

    RECITALS

     

    WHEREAS,
the Director is a member of the Board of Directors of the Bank and has served in
such capacity since June 8, 1994, the approximate date of the Bank’s
organization;

     

    WHEREAS,
the Bank desires to establish a compensation benefit for directors who are not
also officers or employees of the Bank in order to attract and retain
individuals with extensive and valuable experience as directors;

     

    WHEREAS,
the Director and the Bank wish to specify m writing the terms and conditions
upon which this additional compensatory incentive will be provided to the
Director, or to the Director’s spouse or designated beneficiaries, as the case
may be;

     

    NOW,
THEREFORE, in consideration of the services to be performed by the Director in
the figure, as well as the mutual promises and covenants contained herein, the
Director and the Bank agree as follows:

     

    AGREEMENT

     

    1. Terms and
Definitions.

     

    1.1 Administrator.  The
Bank shall be the “Administrator” and, solely for the purposes of ERISA as
defined in subparagraph 1.9 below, the “fiduciary” of this Agreement where
a fiduciary is required by ERISA.

     

    1.2 Applicable
Percentage.  The term “Applicable Percentage” shall mean that
percentage listed on Schedule “A” attached hereto which is adjacent to the
number of calendar years which have elapsed from the date of the Director’s
commencement of service as a member of the Board of Directors of the Bank and
ending on the date payments are to first begin under the terms of this
Agreement.  Notwithstanding the foregoing or the percentages set forth
on Schedule “A,” but subject to all other terms and conditions set forth herein,
the “Applicable Percentage” shall be: (i) provided payments have not yet
begun hereunder, one hundred percent (100%) upon the occurrence of a “Change in
Control” as defined in subparagraph 1.4 below, or the Director’s death, or
Disability as defined in subparagraph 1.6 below; and (ii) notwithstanding
subclause (i) of this subparagraph 1.2, zero percent (0%) in the event
the Director takes any intentional action which prevents the Bank from
collecting the proceeds of any life insurance policy which the Bank may happen
to own at the time of the Director’s death and of which the Bank is the
designated beneficiary.  Furthermore, notwithstanding the foregoing,
or anything contained in this Agreement to the contrary, in the event the
Director takes any intentional action which prevents the Bank from collecting
the proceeds of any life insurance policy which the Bank may happen to own at
the time of the Director’s death and of which the Bank is the designated
beneficiary (1) the Director’s estate or designated beneficiary shall no
longer be entitled to receive any of the amounts payable under the terms of this
Agreement and (2) the Bank shall have the right to recover from Director’s
estate all of the amounts paid to the Director’s estate (with respect to amounts
paid prior to Director’s death or paid to Director’s estate) or designated
beneficiary (with respect to amounts paid to the designated beneficiary)
pursuant to the terms of this Agreement prior to and after Director’s
death.

     

    1.3 Beneficiary.  The
term “beneficiary” or “designated beneficiary” shall mean the person or persons
whom the Director shall designate in a valid Beneficiary Designation, a copy of
which is attached hereto as Exhibit “C” to receive the benefits provided
hereunder.  A Beneficiary Designation shall be valid only if it is in
the form attached hereto and made a part hereof and is received by the
Administrator prior to the Director’s death.

     

    1.4 Change in
Control.  The term “Change in Control” shall mean the
occurrence of any of the following events with respect to the Bank (with the
term “Bank” being defined for purposes of determining whether a “Change in
Control” has occurred to include any parent bank holding company organized at
the direction of the Bank to own 100% of the Bank’s outstanding common stock)
(i) a change in control of a nature that would be required to be reported
in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), or in response to any other form or report to the regulatory agencies or
governmental authorities having jurisdiction over the Bank or any stock exchange
on winch the Bank’s shares are listed which requires the reporting of a change
in control, (ii) any merger, consolidation or reorganization of the Bank in
which the Bank does not survive, (iii) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one transaction or a series of
transactions) of any assets of the Bank having an aggregate fair market value of
fifty percent (50%) of the total value of the assets of the Bank, reflected in
the most recent balance sheet of the Bank, (iv) a transaction whereby any
“person” (as such term is used in the Exchange Act) or any individual,
corporation, partnership, trust or any other entity becomes the beneficial
owner, directly or indirectly, of securities of the Bank representing
twenty-five percent (25%) or more of the combined voting power of the Bank’s
then outstanding securities, or (v) a situation where, in any one-year
period, individuals who at the beginning of such period constitute the Board of
Directors of the Bank cease for any reason to constitute at least a majority
thereof, unless the election, or the nomination for election by the Bank’s
shareholders, of each new director is approved by a vote of at least
three-quarters (3/4) of the directors then still in office who were directors at
the beginning of the period.  Notwithstanding the foregoing or
anything else contained herein to the contrary, there shall not be a “Change of
Control” for purposes of this Agreement if the event which would otherwise come
within the meaning of the term “Change of Control” involves (i) a
reorganization at the direction of the Bank solely to form a parent bank holding
company which owns 100% of the Bank’s common stock following the reorganization,
or (ii) an Employee Stock Ownership Plan sponsored by the Bank or its
parent holding company which is the party that acquires “control” or is the
principal participant in the transaction constituting a “Change in Control,” as
described above.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    1.5 The
Code.  The “Code” shall mean the Internal Revenue Code of 1986,
as amended (the “Code”).

     

    1.6 Disability/Disabled.  The
term “Disability” or “Disabled” shall mean bodily injury or disease (mental or
physical) which wholly and continuously prevents the performance of duty for at
least three months including without limitation, the total irrecoverable loss of
the sight in both eyes or the loss by severance of both hands at or above the
wrist or of both feet at or above the ankle or of one hand at or above the wrist
and one foot at or above the ankle.

     

    1.7 Early
Retirement Date.  The term “Early Retirement Date” shall mean
the Retirement, as defined below, of the Director on a date which occurs prior
to the Director attaining sixty-two (62) years of age, but after the Director
has attained fifty-five (55) years of age.

     

    1.8 Effective
Date.  The term “Effective Date” shall mean the date first
written above.

     

    1.9 ERISA.  The
term “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as
amended.

     

    1.10 Director
Benefits.  The term “Director Benefits” shall mean the benefits
determined in accordance with Schedule “B”, and reduced to the extent
(i) required under the other provisions of this Agreement, including, but
not limited to, Paragraphs 5, 6 and 7 hereof; (ii) required by reason of
the lawful order of any regulatory agency or body having jurisdiction over the
Bank; or (iii) required in order for the Bank to properly 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).

     

    1.11 Plan
Year.  The term “Plan Year” shall mean the Bank’s fiscal
year.

     

    1.12 Retirement.  The
term “Retirement” or “Retires” shall refer to the date which the Director
acknowledges in writing to the Bank to be the last day of service as a member of
the Board of Directors of the Bank.

     

    1.13 Surviving
Spouse.  The term “Surviving Spouse” shall mean the person, if
any, who shall be legally married to the Director on the date of the Director’s
death.

     

    1.14 Removal
for Cause.  The term “removal for cause” shall mean termination
of a Director’s service as a member of the Board of Directors of the Bank by
reason of any of the following:

     

    (a) The
willful breach or habitual neglect by the Director of his responsibilities and
duties;

     

    (b) The
Director’s deliberate violation of (i) any state a federal banking or
securities laws, or of the Bylaws, rules, policies or resolutions of the Bank,
or (ii) the rules or regulations of the California Commissioner of
Financial Institutions, the Federal Deposit Insurance Corporation or any other
regulatory agency or governmental authority having jurisdiction over the Bank,
which has a material adverse effect upon the Bank,

     

    (c) The
determination by a state or federal court, banking agency or other governmental
authority having jurisdiction over the Bank, that the Director (i) is of
unsound mind, or (ii) has committed a gross abuse of authority or
discretion with reference to the Bank, or (iii) otherwise is not suitable
to continue to serve as a member of the Board of Directors of the
Bank;

     

    (d) The
Director’s conviction of any felony or a crime involving moral turpitude or a
fraudulent or dishonest act; or

     

    (e) The
Director’s disclosure without authority of any secret or confidential
information not otherwise publicly available concerning the Bank or taking any
action which the Bank’s Board of Directors determines, in its sole discretion
and subject to good faith, fair dealing and reasonableness, constitutes unfair
competition with or inducement of any customer to breach any contract with the
Bank.

     

    2. Scope, Purpose and
Effect.

     

    2.1 Contract
of Employment.  Although this Agreement is intended to provide
the Director with an additional incentive to continue to serve as a member of
the Board of Directors of the Bank, this Agreement shall not be deemed to
constitute a contract of employment between the Director and the Bank nor shall
any provision of this Agreement restrict the right of the Bank to remove or
cause the removal of the Director including, without limitation, by
(i) refusal to nominate the Director for election for any successive term
of office as a member of the Board of Directors of the Bank, or
(ii) complying with an order or other directive from a court of competent
jurisdiction or any regulatory authority having jurisdiction over the Bank which
requires the Bank to take action to remove the Director.

     

    2.2 Fringe
Benefit.  The benefits provided by this Agreement are granted
by the Bank as a fringe benefit to the Director and are not a part of any salary
reduction plan or any arrangement deferring a bonus or a salary
increase.  The Director has no option to take any current payments or
bonus in lieu of the benefits provided by this Agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    3. Payments
Upon Early Retirement or Retirement and After Retirement.

     

    3.1 Payments
Upon Early Retirement.  The Director shall have the right to
Retire from the Board of Directors on a date which constitutes an Early
Retirement Date as defined in subparagraph 1.7 above.  In the
event the Director elects to Retire on a date which constitutes an Early
Retirement Date, the Director shall be entitled to be paid the Applicable
Percentage of the Director Benefits, as defined above in substantially equal
monthly installments on the first day of each month, beginning with the month
following the month in which the Early Retirement Date occurs, payable
(i) for the period designated in Schedule “D in the case of the balance in
the Benefit Account and (ii) until death in the case of the Index Benefit
defined in Schedule “B”.

     

    3.2 Payments
Union Retirement.  If the Director shall continue to serve as a
member of the Board of Directors until attaining sixty-two (62) years of age,
the Director shall be entitled to be paid the Applicable Percentage of the
Director Benefits, as defined above, in substantially equal monthly installments
on the first day of each month, beginning with the month following the month in
which the Director Retires or upon such later date as may be mutually agreed
upon by the Director and the Employer in advance of said Retirement date,
payable (i) for the period designated in Schedule “D” in the case of the
balance in the Benefit Account and (ii) until death in the case of the
Index Benefit defined in Schedule “B”.  At the Bank’s sole and
absolute discretion, the Bank may increase the Director Benefits as and when the
Bank determines the same to be appropriate.

     

    3.3 Payments
in the Event of Death After Retirement.  The Bank agrees that
if the Director Retires, but shall die before receiving all of the Director
Benefits Payments specified in Schedule “B”, the Bank will make such payments to
which the Director may be entitled, to the Director’s designated
beneficiary.  If a valid Beneficiary Designation is not in effect,
then the remaining amounts due to the Director under the terms of this Agreement
shall be paid to the Director’s Surviving Spouse.  If the Director
leaves no Surviving Spouse, the remaining amounts due to the Director under the
terms of this Agreement shall be paid to the duly qualified personal
representative, executor or administrator of the Director’s estate.

     

    4. Payments in the Event Death
or Disability Occurs Prior to Retirement

     

    4.1 Payments
in the Event of Death Prior to Retirement.  If the Director
dies while serving as a member of the Board of Directors of the Bank at any time
after the Effective Date of this Agreement, but prior to Retirement, the Bank
agrees to pay the Applicable Percentage of the Director Benefits to the
Director’s designated beneficiary in lump sum.  If a valid Beneficiary
Designation is not in effect, then the remaining amounts due to the Director
under the terms of this Agreement shall be paid to the Director’s Surviving
Spouse.  If the Director leaves no Surviving Spouse, the remaining
amounts due to the Director under the terms of this Agreement shall be paid to
the duly qualified personal representative, executor or administrator of the
Director’s estate.

     

    4.2 Payments
in the Event of Disability Prior to Retirement.  In the event
the Director becomes Disabled while serving as a member of the Board of
Directors of the Bank at any tune after the Effective Date of this Agreement,
but prior to Retirement, the Director shall be entitled to the Applicable
Percentage of the Director Benefits, as defined above, in substantially equal
monthly installments on the first day of each month, beginning with the month
following the month in which the Director becomes Disabled, payable (i) for
the period designated in Schedule “D” in the case of the balance in the Benefit
Account and (ii) until death in the case of the Index Benefit defined in
Schedule “B”.

     

    5. Payments
in the Event Employment is Terminated Prior to Retirement.  As
indicated in subparagraph 2.1 above, the Bank reserves the right to remove
or cause the removal of the Director under certain circumstances, at any time
prior to the Director’s Retirement.  In the event that the service of
the Director shall be terminated, other than by reason of death, Disability or
Retirement, prior to the Director’s attaining sixty-two (62) years of age, then
this Agreement shall terminate upon the date of such termination, provided,
however, that the Director shall be entitled to the following benefits as may be
applicable depending upon the circumstances surrounding the Director’s
termination:

     

    5.1 Termination
Without Cause.  If the Director’s service as a member of the
Board of Directors of the Bank is terminated for reasons other than as specified
in paragraph 5.3 below, and such termination is not subject to the
provisions of subparagraph 5.4 below, the Director shall be entitled to be
paid the Applicable Percentage of the Director Benefits, as defined above, in
substantially equal monthly installments on the first day of each month,
beginning with the month following the month in which the Director attains
fifty-five (55) years of age or any month thereafter, as requested in writing by
the Director and delivered to the Employer or its successor thirty (30) days
prior to the commencement of installment payments; provided, however, that in
the event the Director does not request a commencement date as specified, such
installments shall be paid on the first day of each month, beginning with the
month following the month in which the Director attains sixty-two (62) years of
age.  The installments shall be payable (i) for the period
designated in Schedule “D” in the case of the balance in the Benefit
Account and (ii) until death in the case of the Index Benefit defined in
Schedule “B”.

     

    5.2 Voluntary
Termination by the Directors.  If the Director’s service as a
member of the Board of Directors of the Bank is terminated by voluntary
resignation, and such resignation is not subject to the provisions of
subparagraphs 5.3 or 5.4 below, the Director shaft be entitled to be paid
the Applicable Percentage of the Director Benefits, as defined above in
substantially equal monthly installments on the first day of each month,
beginning with the month following the month in which the Director attains
fifty-five (55) years of age or any month thereafter, as requested in writing by
the Director and delivered to the Employer or its successor thirty (30) days
prior to the commencement of installment payments, provided, however, that in
the event the Director does not request a commencement date as specified, such
installments shall be paid on the first day of each month, beginning with the
month following the month in which the Director attains sixty-two (62) years of
age.  The installments shall be payable (i) for the period
designated in Schedule “D” in the case of the balance in the Benefit
Account and (ii) until death in the case of the Index Benefit defined in
Schedule “B”.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    5.3 Termination
by Removal for Cause.  The Director agrees that if his service
as a member of the Board of Directors of the Bank is terminated by “removal for
cause” as defined in subparagraph 1.14 of this Agreement he shall forfeit
any and all rights and benefits he may have under the terms of this Agreement
and shall have no right to be paid any of the amounts which would otherwise be
due or paid to the Director by the Bank pursuant to the terms of this
Agreement.

     

    5.4 Termination
by the Bank on Account of or After a Change in Control.  In the
event that the Director’s service as a member of the Board of Directors of the
Bank is terminated in conjunction with, or by reason of a “Change in Control”
(as defined in subparagraph 1.4 above), the Director shall be entitled to
be paid the Applicable Percentage of the Director Benefits, as defined above, in
substantially equal monthly installments on the first day of each month,
beginning with the month following the month in which the Director attains
fifty-five (55) years of age or any month thereafter, as requested in writing by
the Director and delivered to the Employer or its successor thirty (30) days
prior to the commencement of installment payments; provided, however, that in
the event the Director does not request a commencement date as specified, such
installments shall be paid on the first day of each month, beginning with the
month following the month in which the Director attains sixty-two (62) years of
age.  The installments shall be payable (i) for the period
designated in Schedule “D” in the case of the balance in the Benefit
Account and (ii) until death in the case of the Index Benefit defined in
Schedule “B”.

     

    6. Section
280G Benefits Reduction.  The Director acknowledges and agrees
that the parties have entered into this Agreement based upon certain financial
and tax accounting assumptions.  Accordingly, with full knowledge of
the potential consequences the Director agrees that, notwithstanding anything
contained herein to the contrary, in the event that any payment or benefit
received or to be received by the Director, whether payable pursuant to the
terms of this Agreement or any other plan, arrangement or agreement with the
Bank (together with the Director Benefits, the “Total Payments”), will not be
deductible (in whole or in part) as a result of Code Section 280G or other
applicable provisions of the Code, the Total Payments shall be reduced until no
portion of the Total Payments is nondeductible as a result of Section 280G
or such other applicable provisions of the Code.  For purposes of this
limitation:

     

    (a) No
portion of the Total Payments, the receipt or enjoyment of which the Director
shall have effectively waived in writing prior to the date of payment of any
future Director Benefits payments, shall be taken into account;

     

    (b) No
portion f the Total Payments shall be taken into account, which in the opinion
of the tax counsel selected by the Bank and acceptable to the Director, does not
constitute a “parachute payment” within the meaning of Section 280G of the
Code;

     

    (c) Any
reduction of the Total Payments shall be applied to reduce any payment or
benefit received or to be received by the Director pursuant to the terms of this
Agreement and any other plan, arrangement or agreement with the Bank in the
order determined by mutual agreement of the Bank and the Director;

     

    (d) Future
payments shall be reduced only to the extent necessary so that the Total
Payments (other than those referred to in clauses (a) or (b) above an their
entirety) constitute reasonable compensation for services actually rendered
within the meaning of Section 280G of the Code, in the opinion of tax
counsel referred to in clause (b) above; and

     

    (e) The value
of any non-cash benefit or any deferred payment or benefit included in the Total
Payments shall be determined by independent auditors selected by the Bank and
acceptable to the Director in accordance with the principles of
Section 280G of the Code.

     

    7. Right To
Determine Funding Methods.  The Bank 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 Director, the Director’s spouse or the Director’s beneficiaries
under the terms of this Agreement.  In the event that the Bank elects
to fund this Agreement in whole or in part, through the use of life insurance or
annuities, or both, the Bank shall determine the ownership and beneficial
interests of any such policy of life insurance or annuity.  The Bank
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 9
below, neither the Director, the Director’s spouse nor the Director’s
beneficiaries shall have any right, title or interest in or to any funding
source or amount utilized by the Bank pursuant to this Agreement and any such
funding source or amount shall not constitute security for the performance of
the Bank’s obligations pursuant to this Agreement.  In connection with
the foregoing, the Director agrees to execute such documents and undergo such
medical examinations or tests which the Bank may request and which may be
reasonably necessary to facilitate any funding for this Agreement including,
without limitation, the Bank’s acquisition of any policy of insurance or
annuity.  Furthermore, a refusal by the Director to consent to
participate in and undergo any such medical examinations or tests shall result
in the immediate termination of this Agreement and the immediate forfeiture by
the Director, the Director’s spouse and the Director’s beneficiaries of any and
all rights to payment hereunder.

     

    8. Claims
Procedure.  The Bank shall, but only to the extent necessary to
comply with ERISA, be designated as the named fiduciary under this Agreement and
shall have authority to control and manage the operation and administration of
this Agreement Consistent therewith, the Bank shell make all determinations as
to the rights to benefits under this Agreement Any decision by the Bank denying
a claim by the Director, the Director’s spouse, or the director’s beneficiary
for benefits under this Agreement shall be stated in writing and delivered or
mailed, via registered or certified mail, to the Director, the Director’s spouse
or the Director’s beneficiary, as the case may be.  Such decision
shall set forth the specific reasons for the denial of a claim.  In
addition, the Bank shall provide the Director, the Director’s spouse or the
Director’s beneficiary with a reasonable opportunity for a full and fair review
of the decision denying such claim.

     

    9. Status as
an Unsecured General Creditor.  Notwithstanding anything
contained herein to the contrary (i) neither the Director, the Director’s
spouse or the Director’s designated beneficiaries shall have any legal or
equitable rights, interests or claims in or to any specific property or assets
of the Bank as a result of this Agreement; (ii) none of the Bank’s assets
shall be held in or under any trust for the benefit of the Director, the
Director’s spouse or the Director’s designated beneficiaries or held in any way
as security for the fulfillment of the obligations of the Bank under this
Agreement; (iii) all of the Bank’s assets shall be and remain the general
unpledged and unrestricted assets of the Bank; (iv) the Bank’s obligation
under this Agreement shall be that of an unfunded and unsecured promise by the
Bank to pay money in the future; and (v) the Director, the Director’s
spouse and the Director’s designated beneficiaries shall be unsecured general
creditors with respect to any benefits which may be payable under the terms of
this Agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Notwithstanding
subparagraphs (i) through (v) above, the Bank and the Director acknowledge
and agree that upon request of the Director at any time during the term of this
Agreement, a Rabbi Trust (the “Trust”) shall be established upon such terms and
conditions as may be mutually agreeable between the Bank and the Director and
that it is the intention of the Bank to make contributions and/or transfer
assets to the Trust an order to discharge its obligations pursuant to this
Agreement.  The principal of the Trust and any earnings thereon shall
be held separate and apart from other funds of the Bank to be used exclusively
for discharge of the Bank’s obligations pursuant to this Agreement and shall
continue to be subject to the claims of the Bank’s general creditors until paid
to the Director or its beneficiaries in such manner and at such times as
specified in this Agreement.

     

    10. Discretion
of Board to Accelerate Payout.  Notwithstanding any of the
other provisions of this Agreement, the Board of Directors of the Bank may, if
determined in its sole and absolute discretion to be appropriate, accelerate the
payment of the amounts due under the terms of this Agreement, provided that
Director (or Director’s spouse or designated beneficiaries): (i) consents
to the revised payout terms determined appropriate by the Bank’s Board of
Directors, and (ii) does not negotiate or in any way influence the terms of
proposed altered/accelerated payout (said decision to be made solely by the
Bank’s Board of Directors and offered to the Director [or Director’s spouse or
designated beneficiaries] on a “take it or leave it basis”).

     

    11. Miscellaneous

     

    11.1 Opportunity
to Consult with Independent Advisors.  The Director
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 wider the
terms of this Agreement and the (i) terms and conditions which may affect
the Director’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 Director acknowledges and agrees shall be the sole responsibility
of the Director notwithstanding any other term or provision of this
Agreement.  The Director further acknowledges and agrees that the Bank
shall have no liability whatsoever related to any such personal tax effects or
other personal costs, expenses, or liabilities applicable to the Director and
further specifically gives any right for himself or herself, and his or her
heirs, beneficiaries, legal representatives, agents, successors and assigns to
claim or assert liability on the part of the Bank related to the matters
described above in this subparagraph 11.1.  The Director 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.

     

    11.2 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 Bank 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”),
presently located at 111 Pine Street, Suite 710, in San Francisco,
California.  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”), presently located at 417 Montgomery Street in San Francisco,
California, 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 Title 9 of Part 3 of
the California Code of Civil Procedure.  Any arbitration hereunder
shall be conducted in San Jose, California, unless otherwise agreed to by
the parties.

     

    11.3 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,
the prevailing party shall be entitled to recover from the losing party
reasonable expenses, attorneys’ fees and costs incurred in connection therewith
or in the enforcement or collection of any judgment or award rendered
therein.  The “prevailing party” means the party determined by the
arbitrator(s) or court; as the case may be, to have most nearly prevailed, even
if such party did not prevail in all matters, not necessarily the one in whose
favor a judgment is rendered.

     

    11.4 Notice.  Any
notice required or permitted of either the Director or the Bank 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.

     

    
      If to the
Bank:                                           Heritage
Commerce Corp

       

          150 Almaden
Boulevard

       

          San Jose,
California 95113

       

         Attn:  Chairman
of the Board

       

      If to the
Director:                                    ____________________


         

           
___________________

         

           
___________________     

         

      

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    11.5 Assignment.  Neither
the Director, the Director’s spouse, nor any other beneficiary under this
Agreement shall have any 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 any such beneficiary, 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 Director, the Director’s spouse, or any designated
beneficiary; or (ii) transferable by operation of law in the event of
bankruptcy, insolvency or otherwise.  Any such attempted assignment or
transfer shall be void and shall terminate this Agreement and the Bank shall
thereupon have no further liability hereunder.

     

    11.6 Binding
Effect/Merger or Reorganization.  This Agreement shall be
binding upon and inure to the benefit of the Director and the Bank and, as
applicable, their respective heirs, beneficiaries, legal representatives,
agents, successors and assigns.  Accordingly, the Bank 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 obligation of the Bank under this
Agreement.  Upon the occurrence of such event the term “Bank” as used
in this Agreement shall be deemed to refer to such surviving or successor firm,
person, entity or corporation.

     

    11.7 Nonwaiver.  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.

     

    11.8 Partial
Invalidity.  If any term, 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.

     

    11.9 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.

     

    11.10 Modification.  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.

     

    11.11 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.

     

    11.12 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.

     

    11.13 Governing
Law.  The laws of the State of California, other than those
laws denominated choice of law rules, and, where applicable, the rules and
regulations of the California Commissioner of Financial Institutions and the
Federal Deposit Insurance Corporation, shall govern the validity,
interpretation, construction and effect of this Agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    IN
WITNESS WHEREOF, the Bank and the Director have executed this Agreement on the
date first above-written in the City of San Jose, Santa Clara County,
California.

     

    
      
        BANK                                                      DIRECTOR

         

        Heritage Bank of Commerce

         

         

         

      

      
        By:____________________________                                                                                                    
____________________________

                 William J. Del
Biaggio                                                                                                                               Humphrey
P. Polanen

                 Chairman
of the Board of Directors    

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

      

    


    
      
        SCHEDULE
A

         

        
          	
                  CALENDAR
      YEAR

                	
                  APPLICABLE
      PERCENTAGE

                
	 
      	 
      
	
                  June
      8, 1994 to June 8, 1997 

                	
                  36.00%

                
	 
      	 
      
	
                  June
      8, 1998 

                	
                  48.00%

                
	 
      	 
      
	
                  June
      8, 1999 

                	
                  60.00%

                
	 
      	 
      
	
                  June
      8, 2000 

                	
                  72.00%

                
	 
      	 
      
	
                  June
      8, 2001 

                	
                  84.00%

                
	 
      	 
      
	
                  June
      8, 2002 

                	
                  100.00%

                


        

         

      

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    SCHEDULE
B

     

    DIRECTOR
BENEFITS

     

    1.           Director Benefits
Determination.

     

    The
Director Benefits shall be determined based upon the following:

     

    a.           Benefit
Account:

     

    A Benefit
Account shall be established as a liability reserve account on the books of the
Bank for the benefit of the Director.  Prior to the Director’s
Retirement or other termination of service under the Agreement such Benefit
Account shall be increased or decreased each Plan Year (including the Plan Year
in which the director ceases to serve as a member of the Board of Directors of
the Bank) by an amount equal to the annual earnings or loss for that Plan Year
determined by the Index (described in subparagraph c below), less the
Opportunity Cost (described in subparagraph d below) for that Plan
Year.

     

    b.           Index
Benefit:

     

    The Index
Benefit for the Director for any year shall be equal to the excess of the annual
earnings (if any) determined by the Index for that Plan Year over the
Opportunity Cost for that Plan Year.

     

    c.           Index:

     

    The Index
for any Plan Year shall be the aggregate annual after-tax income from the life
insurance contracts described hereinafter as defined by FASB Technical Bulletin
85-4. This Index shall be applied as if such insurance contracts were purchased
on the Effective Date.

     

             Insurance
Company:                                                    Canada
Life Assurance Company

    
      Policy
Form:                                                           Whole Life

      Policy
Name:                                                          CL/I

      Insured’s
Age and
Sex:                                                Male,
48

      Riders:                                                             None

      Ratings:                                            
          None

      Option:                                                    Level

      Face
Amount:                                                        $221,872

      Premiums
Paid:                                                      $75,000

      No. of
Premium
Payments:                                          Single
Premium

      Assumed
Purchase
Date:                           
                September
16, 1997

       

      Insurance
Company:                                                   American
General Life Insurance Co.

      Policy
Form:                                                                  Flexible
Premium Adjustable Life

      Policy
Name:                                                                 Corporate
America Bank

      Insured’s
Age and
Sex:                                                Male,
48

      Riders:                                                                            
None

      Ratings:                                                                          
None

      Option:                                                                           
Level

      Face
Amount:                                                         
      $200,821

      Premiums
Paid:                                                              $75,000

      No. of
Premium
Payments:                                         
Single Premium

      Assumed
Purchase
Date:                                           
September 16, l997

    

     

    If such
contracts of life insurance are actually purchased by the Bank, then the actual
policies as of the dates purchased shall be used in calculations to determine
the Index and Opportunity Cost.  If such contracts of life insurance
are not purchased or are subsequently surrendered or lapsed, then the Bank shall
receive and use annual policy illustrations that assume the above described
policies were purchased from the above named insurance company(ies) on the
Effective Date to calculate the amount of the Index and Opportunity
Cost.

     

    d.           Opportunity
Cost:

     

    The
Opportunity Cost for any Plan Year shall be calculated by multiplying (a) the
sum of (i) the total amount of premiums set forth in the insurance policies
described above, (ii) the amount of any Index Benefit (described at subparagraph
b above), and (iii) the amount of all previous years after-tax Opportunity
Costs; by (b) the average annualized after-tax cost of funds calculated using a
one-year U.S. Treasury Bill as published in the Wall Street Journal.
The applicable tax rate used to calculate the Opportunity Cost shall be the
Bank’s marginal tax rate until the Director’s Retirement, or other termination
of service (including a Change in Control), Thereafter, the Opportunity Cost
shall be calculated with the assumption of a marginal forty-two percent (42%)
corporate tax rate each year regardless of whether the actual marginal tax rate
of the Bank is higher or lower.

     

    2.           Director Benefits
Payments.

     

    The
Director shall be entitled to payment of the Applicable Percentage of (i)
 the balance in the Benefit Account in installments upon the terms as
specified in the Agreement, and (ii) the Index Benefit for each Plan Year
payable in installments until the Director’s death.

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    SCHEDULE
C


     

    BENEFICIARY
DESIGNATION

     

    To the
Administrator of the Heritage Bank of Commerce Director Indexed Compensation
Benefits Agreement:

     

    Pursuant
to the Provisions of my Director Indexed Compensation Benefits Agreement with
Heritage Bank of Commerce, permitting the designation of a beneficiary or
beneficiaries by a participant, I hereby designate the following persons and
entities as primary and secondary beneficiaries of any benefit under said
Agreement payable by reason of my death:

     

     

    
      
        Primary
Beneficiary:

         

        
           

          _________________________                                          _____________________________                                                          
____________________

          Name                                                                                           Address                                                                                                   
Relationship

           

           

           

          Secondary
(Contingent) Beneficiary:

           

           

          _________________________                                         ______________________________                                                       
______________________

          Name                                                                                                                 
Address                                                                            
Relationship

           

           

           

        

      

    

    THE
RIGHT TO REVOKE OR CHANGE ANY BENEFICIARY DESIGNATION IS HEREBY RESERVED. ALL
PRIOR DESIGNATIONS, IF ANY, OF PRIMARY BENEFICIARIES AND SECONDARY BENEFICIARIES
ARE HEREBY REVOKED.

     

    The
Administrator shall pay all sums payable under the Agreement by reason of my
death to the Primary Beneficiary, if he or she survives me, and if no Primary
Beneficiary shall survive me, then to the Secondary Beneficiary, and if no named
beneficiary survives me, then the Administrator shall pay all amounts in
accordance with the terms of my Director Indexed Compensation Benefits
Agreement. In the event that a named beneficiary survives me and dies prior to
receiving the entire benefit payable under said Agreement, then and in that
event, the remaining unpaid benefit payable according to the terms of my
Director Indexed Compensation Benefits Agreement shall be payable to the
personal representatives of the estate of said beneficiary who survived me but
died prior to receiving the total benefit provided by my Director Indexed
Compensation Benefits Agreement.

     

    
      Dated:  June ___,
1997                                                                              
______________________________

                                                                                                                             
Humphrey P. Polanen


    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    CONSENT
OF THE DIRECTOR’S SPOUSE

    TO THE ABOVE BENEFICIARY
DESIGNATION:

     

    I,
____________________, being the spouse of Humphrey P. Polanen, after being
afforded the opportunity to consult with independent counsel of my choosing, do
hereby acknowledge that I have read, agree and consent to the foregoing
Beneficiary Designation which relates to the Director Indexed Compensation
Benefits Agreement entered into by my spouse effective as of June 19, 1997.
I understand that the above Beneficiary Designation may affect certain rights
which I may have in the benefits provided for under the terms of the Director
Indexed Compensation Benefits Agreement and in which I may have a marital
property interest.

     

    Dated:  June __,
1997.

    


    


    


    
       

      
        	 
      
	 
      
	 
      
	 
      
	____________________________ 
      
	 
      
	____________________________ 
      
	
                Type/Print
      Name

              




      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    SCHEDULE
D


     

    DISTRIBUTION
ELECTION

     

    Pursuant
to the Provisions of my Director Indexed Compensation Benefits Agreement with
Heritage Bank of Commerce, I hereby elect to have any distribution of the
balance in my Benefit Account paid to me in installments as designated
below:

     

    
      	
              _____

            	
              thirty-six
      (36) monthly installments with the amount of each installment determined
      as of each installment date by dividing the entire amount in my Benefit
      Account by the number of installments then remaining to be paid, with the
      final installment to be the entire remaining balance in the Benefit
      Account.

            


    

     

    
      	
              _____

            	
              sixty
      (60) monthly installments with the amount of each installment determined
      as of each installment date by dividing the entire amount in my Benefit
      Account by the number of installments then remaining to be paid, with the
      final installment to be the entire remaining balance in the Benefit
      Account.

            


    

     

    
      	
              _____

            	
              one
      hundred twenty (120) monthly installments with the amount of each
      installment determined as of each installment date by dividing the entire
      amount in my Benefit Account by the number of installments then remaining
      to be paid, with the final installment to be the entire remaining balance
      in the Benefit Account.

            


    

     

    
      	
              _____

            	
              one
      hundred eighty (180) monthly installments with the amount of each
      installment determined as of each installment date by dividing the entire
      amount in my Benefit Account by the number of installments then remaining
      to be paid, with the final installment to be the entire remaining balance
      in the Benefit Account.

            


    

     

    Dated:  June __,
1997

    


    


    Signed:  __________________________                                                              

    Humphrey P. Polanen