Unassociated Document


     

    FIRST AMENDMENT TO CHANGE IN
CONTROL AGREEMENT

    


    


    This
First Amendment to the Change in Control Agreement (the “First
Amendment”)  is made and is effective as of August 26, 2009 , by and
between Heritage Oaks Bank, a California state chartered bank (the “Company”)
and ___ (“Executive”).

    


    


    RECITALS

    


    This
First Amendment is made with regard to the following facts:

    


    
      	
              A.  

            	
              Executive
      is a party to that certain Change in Control Agreement dated as of July
      23, 2007 and entered into by and between the Company and the Executive
      (the “Agreement”).

            


    

    


    TERMS

    


    In
consideration of the premises and the respective covenants and agreements of the
parties herein contained, and intending to be legally bound hereby, the parties
hereto agree as follows:

    


    
      	
              1.  

            	
              Section
      14 of the Agreement is hereby removed in its entirety and amended to read
      as follows:

            


    

    


    14.           REDUCTION OF PAYMENT;
COMPLIANCE WITH LAWS; IRC SECTION 409A COMPLIANCE.

    


    
      	
               
      

            	
               

            	
              

                (i)
          Notwithstanding
      anything in the foregoing to the contrary, if the severance payment or any
      of the other payments provided for in this Agreement, together with any
      other payments which Executive has the right to receive from the Company
      would constitute a "parachute payment" (as defined in Section 280G(b)(2)
      of the Internal Revenue Code of 1986, as amended, or such similar set of
      laws (the “Code”)), the payments pursuant to this Agreement shall be
      reduced (reducing first the payments under Section 3 to the largest amount
      as will result in no portion of such payments being subject to the excise
      tax imposed by Section 4999 of the Code, provided, however, that the
      determination as to whether any reduction in the payments under this
      Agreement pursuant to this proviso is necessary shall be made in good
      faith by the Company’s then current tax services provider / advisor, and
      such determination shall be conclusive and binding on the Company and
      Executive with respect to the treatment of the payment for tax reporting
      purposes.

              

            


    

    


    
      	
               
      

            	
               

            	
              (ii)    This
      Agreement, and any payments or benefits hereunder, are made expressly
      subject to and conditioned upon compliance with all federal and state law,
      regulations and policies relating to the subject matter of this Agreement,
      including but not limited to the provisions of law codified at 12 U.S.C.
      Section 1828(k), the regulations of the FDIC codified as 12 C.F.R. Part
      359, and any successor or similar federal or state law or regulation
      applicable to the Company.  Employee acknowledges that he
      understands the sections of law and regulations cited above and that the
      Company’s obligations to make payments hereunder are expressly relieved if
      such payments violate any federal or state law or regulation applicable to
      the Company.

            


    

    


    
      	
               
      

            	
               

            	
              (iii)    If the
      Company is subject to the executive compensation limitations under TARP at
      the time the Executive receives payment(s) under this Agreement and any
      such payment(s), together with any other payments which Executive has the
      right to receive from the Company, exceed the limits allowed for Executive
      established under TARP, then the aggregate payments pursuant to this
      Agreement, and any other agreement with Executive, shall be reduced to the
      largest amount as will result in no portion of such payments violating the
      executive compensation limitations under
TARP.

            


    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    
      	
               
      

            	
               

            	
              (iv)    Notwithstanding
      any provision existing in this Agreement or any amendment thereto, it is
      the intent of the Company and Executive that any payment or benefit
      provided pursuant to this Agreement shall be made and paid in a manner, at
      a time and in a form which complies with the applicable requirements of
      IRC Section 409A, in order to avoid any unfavorable tax consequences
      resulting from any such failure to comply. Furthermore, for the purposes
      of this Agreement, IRC Section 409A shall be read to include any related
      or relevant IRS Notices (including but not limited to Notice
      2007-86).  In the event of any ambiguity in terms, or in the
      event further clarification of any term or provision is necessary, all
      interpretations and payouts of benefits based thereon shall be in
      accordance with IRC 409A and any related notices or guidance
      thereon.

            


    

    


    
      	
              2.  

            	
              Capitalized
      terms used herein and not otherwise defined shall have the same meaning as
      set forth in the Agreement.

            


    

    


    
      	
              3.  

            	
              This
      First Amendment may be entered into in one or more counterparts, all of
      which shall be considered one and the same instrument, and it shall become
      effective when one or more counterparts have been signed by each of the
      Parties and delivered to the other Parties, it being understood that all
      Parties need not sign the same
counterpart.

            


    

    


    
      	
              4.  

            	
              Except
      as herein amended, the Agreement shall remain in full force and
      effect.

            


    

    


    
      	
              5.  

            	
              This
      First Amendment shall be governed by and construed in accordance with the
      laws of the State of California.

            


    

    


    IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.

     

    


    
      
        
          
            
              
                
                  
                    	ATTEST: 	 	 	HERITAGE
      OAKS BANK	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	
                             

                          	 	 	By:	
                             

                          	 
	
                             

                          	 	 	Its:	
                             

                          	 


                  

                

                
                  
                    	
                             

                          	 	 	Print
      name:	
                             

                          	 


                  

                

                 

                 

                
                  


                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          	 	 	 	THE
      EXECUTIVE	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	
                                                   

                                                	 	 	 	 
	
                                                  Witness

                                                	 	 	Executive