Exhibit 10.17


 


AMENDMENT NO. 1 TO THE 

DIRECTOR INDEXED COMPENSATION BENEFITS AGREEMENT


 


This Amendment No. 1 to the Director Indexed
Compensation Benefits Agreement (hereinafter “Amendment”) is made and entered
into effective as of December 29, 2008 by and between HERITAGE
BANK OF COMMERCE, a bank organized and existing under the laws of
the state of California (hereinafter the “Bark”) and William J.
De1 Biaggia Jr., a former Director of the Bank (hereinafter “Director”
or “Participant”);


 


WHEREAS Director Separated From Service during the
409A transition period and the parties have been in operational compliance with
Internal Revenue Code Section 409A, it is the parties’ intent to comply
with the documentary compliance requirements of Internal Revenue Code Section 409A;


 


WHEREFORE, the Bank and Director hereby agree to amend
the Director Indexed Compensation Benefits Agreement, effective as of June 19,
1997 (“Original Agreement”) as follows;


 


Paragraph 1.12 of the Original Agreement shall be
amended so as to replace the definition of “Retirement” with the following:


 


As used in this Agreement the term “Retirement” shall be read and
interpreted consistent with the terms “separation from service” and “termination”,
as such terms are defined in Internal Revenue Code Section 409A and any
future notices or guidance related thereto. 
As the term applies herein to individuals who are serving on the board
of directors, but who are not also acting as employees of the Bank, the term “Separation
from Service” shall means the expiration of all contracts or terms of service
under which the Director is performing services as a member of the board of
directors, and where expiration constitutes a good faith and complete
termination of the service relationship. 
If an individual provides services both as an employee of a service
recipient and a member of the board of directors of a corporate service
recipient (or an analogous position with respect to a non-corporate service
recipient), the services provided as an employee are not taken into account in
determining whether the service provider has a separation from service as a
director for purposes of a nonqualified deferred compensation plan in which the
service provider participates as a director that is not aggregated with any
plan in which the service provider participates as an employee under paragraph
(c)(2)(ii) of Code section 409A.


 


Whereas Director retired pursuant to the provisions
relating to Normal Retirement (Paragraph 3.2), then, upon such separation from
service, Director became entitled to be paid annual Director Benefit of fifteen
thousand dollars ($15,000) per year (in monthly installments on the first day
of each month, with a 2% annual increase). 
In accordance with the terms of the Original Agreement, payment of this
annual amount commenced on the first day of the month following the month in
which Director Retired and shall continue until Director’s death.


 


As Director separated from service pursuant to the
Normal Retirement Provisions of this Agreement and during the 409A transition
period, all irrelevant provisions shall be deleted.


 


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To the extent that any paragraph, term, or provision
of the Original Agreement is not specifically amended herein, or in any other
amendment thereto, said paragraph, term, or provision shall remain in full
force and effect as set forth in said Original Agreement.  Furthermore, this Agreement shall be
administered in compliance with IRC Section 409A and the related rules,
regulations and notices.  Any section of
this Agreement which violates IRC Section 409A and the related rules,
regulations and notices shall be void and without effect.


 


IN WITNESS WHEREOF, the Director and a duly authorized
Bank officer have signed this Agreement as of the written date.


 


HERITAGE COMMERCE CORPORATION


 


 


	
  /s/ Lawrence D.
  McGovern

  	
   

  	
  Date:

  	
  December 29, 2008

  
	
  By Lawrence D. McGovern

  	
   

  	
   

  	
   

  
	
  Executive Vice
  President & CFO

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ William J. De1
  Biaggia Jr.

  	
   

  	
  Date:

  	
  December 29, 2008

  
	
  Director

  	
   

  	
   

  



 


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