ex10-1.htm


    
 

    AMENDMENT

    To
The

    Valley
Business Bank

    “Executive
Supplemental Compensation Agreement”

    


    


    THIS AMENDMENT is executed on
this 31st day of
December, 2008, by Valley Business Bank (formerly known as the Bank of Visalia),
the “Service Recipient,” a California banking corporation, hereinafter referred
to as the “Plan Sponsor,” and the “Service Provider,” hereinafter referred to as
the Participant, and represents an effort by both parties to comply with the
requirements of Internal Revenue Code Section 409A. The Plan Sponsor has
operated this Plan since 2005 in good faith compliance with the provisions of
Section 409A and all Applicable Guidance.

    


    WHEREAS the Agreement may be
amended at any time by the mutual written consent of the parties to the
Agreement; and

    


    WHEREAS it is both anticipated
and expected that the terms and provisions of this Plan Agreement may need to be
amended again in the future to assure continued compliance. The Plan Sponsor and
the Participant acknowledge that fact and agree to take any and all steps
necessary to operate the plan in “good faith” based on their current
understanding of the regulations;

     

    NOW, THEREFORE, the Plan is
hereby amended (without specific numerical reference) by adding and/or replacing
certain definitions and adding or replacing certain Articles.  Nothing
contained herein is considered by the Plan Sponsor to constitute a material
modification of the original Plan:

    


    


    The
following definitions if specifically identified in the original Agreement are
hereby replaced in their entirety, and if not found in the original Agreement
are hereby added:

    


               “Aggregated Plans” shall mean
this Plan and any other like-type plan or arrangement (nonaccount balance plan)
of the Plan Sponsor in which the Participant participates and to which the Plan
or Applicable Guidance requires the aggregation of all such nonqualified
Deferred Compensation Plans in applying Code § 409A and associated
regulations.

    


    “Applicable Guidance” shall
mean, as the context requires, Code § 409A, Final Treasury Regulations §1.409A,
or other written Treasury or IRS guidance regarding or affecting Code §
409A.

    


    “Change in Control” shall mean
the occurrence of a Change in Control event, within the meaning of Treasury
Regulations §1.409A-3(i)(5) and described in any of subparagraph (a), (b), or
(c), (collectively referred to as “Change in Control Events”), or any
combination of the Change in Control Events. To constitute a Change in Control
Event with respect to the Participant or Beneficiary, the Change in Control
Event must relate to: (i) the Plan Sponsor for whom the Participant is
performing services at the time of the Change in Control Event; (ii) the Plan
Sponsor that is liable for the payment of the Accrued Benefit (or all Plan
Sponsors liable for the payment if more than one Plan Sponsor is liable); or
(iii) a Plan Sponsor that is a majority shareholder of a Plan Sponsor identified
in clause (i) or (ii), or any Plan Sponsor in a chain of Plan Sponsors in which
each Plan Sponsor is a majority shareholder of another Plan Sponsor in the
chain, ending in a Plan Sponsor identified in clause (i) or (ii).

    


    (a)           Change in
Ownership.  A Change in Ownership occurs if a person, or a
group of persons acting together, acquires more than fifty percent (50%) of the
stock of the Plan Sponsor, measured by voting power or value. Incremental
increases in


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    ownership
by a person or group that already owns fifty percent (50%) of the Plan Sponsor
do not result in a Change of Ownership, as defined in Treasury Regulations
§1.409A-3(i)(5)(v).

    


    (b)           Change in Effective Control. A
Change in Effective Control occurs if, over a twelve (12) month period: (i) a
person or group acquires stock representing thirty percent (30%) of the voting
power of the Plan Sponsor; or (ii) a majority of the members of the Board of the
ultimate parent Plan Sponsor is replaced by directors not endorsed by the
persons who were members of the Board before the new directors’ appointment, as
defined in Treasury Regulations §1.409A-3(i)(5)(vi).

    


    (c)           Change in Ownership of a Substantial
Portion of Corporate Assets. A Change in Control based on the sale of
assets occurs if a person or group acquires forty percent (40%) or more of the
gross fair market value of the assets of a Plan Sponsor over a twelve (12) month
period. No change in control results pursuant to this Article (c) if the assets
are transferred to certain entities controlled directly or indirectly by the
shareholders of the transferring corporation, as defined in Treasury Regulations
§1.409A-3(i)(5)(vii).

    


    


    “Disability” shall be defined
as a condition of the Participant whereby he or she either: (i) is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that 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 that 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 three months under an accident and health
plan covering employees of the Plan Sponsor. The Plan Administrator will
determine whether the Participant has incurred a Disability based on its own
good faith determination and may require the Participant to submit to reasonable
physical and mental examinations for this purpose. The Participant will also be
deemed to have incurred a Disability if determined to be totally disabled by the
Social Security Administration, Railroad Retirement Board, or in accordance with
a disability insurance program, provided that the definition of disability
applied under such disability insurance program complies with the requirements
of Treasury Regulation §1.409A-3(i)(4) and authoritative guidance.

    


    “Normal Retirement Date” shall
mean the later of: (a) the date the Participant attains age 65 and/or has
completed fifteen years of service; or (b) the date the Participant incurs a
Separation from Service.

    


    “Plan” shall mean this
Executive Supplemental Compensation Agreement, the Election Forms (if any), the
Trust (if any), and any other written documents relevant to the Plan. For
purposes of applying Code § 409A requirements, this Plan is a nonaccount balance
plan under Treasury Regulation §1.409-1(c)(2)(i)(A.

    


    “Plan Sponsor” shall mean the
person or entity: (i) receiving the services of the Participant; (ii) with
respect to whom the Legally Binding Right to compensation arises; and (iii) all
persons with whom such person or entity would be considered a single employer
under Code §414(b) or §414(c).

    


    “Section 409A” shall mean
Section 409A of the Code and the Treasury Regulations and other Applicable
Guidance issued under that Section.

    


    “Separation from Service”
shall mean:

    


    (a)           Employee
Participants. The occurrence of a Participant’s death, retirement, or
“other termination of employment” (as defined in Treasury Regulations
§1.409A-1(h)(1)) with the Plan Sponsor (as defined in Treasury Regulations
§1.409A-1(h)(3)).

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (i)           Effect of
Leave. A Participant does not incur a Separation from Service if the
Participant is on military leave, sick leave, or other bona fide leave of
absence if the period of such leave does not exceed six (6) months or, if
longer, the period for which a statute or contract provides the Participant with
the right to reemployment with the Plan Sponsor. If a Participant’s leave
exceeds six (6) months but the Participant is not entitled to reemployment under
a statute or contract, the Participant incurs a Separation from Service on the
next day following the expiration of such six (6) month period.

    


    (ii)           Termination
of Employment. A Participant will have incurred a Separation from Service
where the Plan Sponsor and the Participant reasonably anticipated that no
further services would be performed after a certain date. Notwithstanding the
above, a Participant is presumed to have Separated from Service (whether as an
Employee or an Independent Contractor), when the level of bona fide services
performed decreases to a level equal to or less than twenty percent (20%) of the
services performed by the Participant during the immediately preceding 36-month
period (or the full period of services to the employer if the Participant has
been providing services to the Plan Sponsor for less than 36 months). A
Participant will be presumed not to have Separated from Service where the level
of bona fide services performed continues at a level that is fifty percent (50%)
or more of the average level of service performed by the Participant during the
immediately preceding 36-month period (or the full period of services to the
employer if the Participant has been providing services to the Plan Sponsor for
less than 36 months).

    


    (b)           Independent
Contractor Participants. A Separation from Service will occur upon the
expiration of the contract (or in the case of more than one contract, all
contracts) under which services are performed for the Plan Sponsor (as defined
in Treasury Regulations §1.409A-1(h)(3)), if the expiration constitutes a
good-faith and complete termination of the contractual relationship. The Plan is
considered to satisfy the requirement with respect to an amount payable to an
Independent Contractor upon a Separation from Service if: (i) no amount will be
paid to the Participant before a date at least twelve (12) months after the day
on which the contract expires under which the Participant performs services for
the Plan Sponsor (or, in the case of more than one contract, all such contracts
expire); and (ii) no amount payable to the Participant on that date will be paid
to the Participant if, after the expiration of the contract (or contracts) and
before that date, the Participant performs services for the Service Recipient as
an Independent Contractor or an Employee.

    


    “Specified Employee” shall
mean that the Participant also satisfies the definition of a “key employee” as
such term is defined in Code §416(i) (without regard to Section 416(i)(5)).
However, the Participant is not a Specified Employee unless any stock of the
Plan Sponsor is publicly traded on an established securities market or
otherwise, as defined in Code §1.897-1(m). If the Participant is a key employee
at any time during the twelve (12) months ending on the identification date, the
Participant is a Specified Employee for the twelve (12) month period commencing
on the first day of the fourth (4th) month
following the identification date. For purposes of this Article, the
identification date is December 31 unless a different date is specified in
writing by the Plan Sponsor.  The determination of the Participant as
a Specified Employee shall be made by the Administrator in accordance with IRC
Section 416(i), the “specified employee” requirements of Section 409A, and
Treasury Regulations.   If installment payments are called for,
suspended payments will be paid at the end of the six-month period.

    


    “Treasury Regulations” shall
mean regulations promulgated by the Internal Revenue Service for the United
States Department of the Treasury, as they may be amended from time to
time.

    


    


    The
following Articles if specifically identified in the original Agreement are
hereby replaced in their entirety, and if not found in the original Agreement
are hereby added:


    
      
         


      

      
         


        
          

        

      

      
         


      

    


               Prohibition on Acceleration of
Payments. Notwithstanding anything in this Plan to the contrary, neither
the Plan Sponsor nor a Participant may accelerate the time or schedule of any
payment or amount scheduled to be paid under this Plan, except as otherwise
permitted by Treasury Regulations §1.409A-3(j)(4). The Plan Sponsor shall deny
any change made to an election if the Plan Sponsor determines that the change
violates the requirements of authoritative guidance.  However, the
Plan Sponsor shall permit the acceleration of the time or schedule of payment to
pay the Participant at any time the arrangement fails to meet the requirements
of Code Section 409A and the Treasury Regulations and other guidance promulgated
thereunder. Such payment shall not exceed the amount required to be included in
income as the result of the failure to comply with the requirements of Code
Section 409A.

    


    Subsequent Changes in the Time or
Form of Payment. If permitted by the Plan Sponsor in the original
Agreement (see Articles 3.1, 3.2, 5.1, 5.2 and 5.4 all of which refer to a
change in time of payment based on the written request of the Participant or a
new mutually agreed to date by the Plan Sponsor and the Participant), a
Participant may elect to change the time or form of payments (collectively,
“payment elections”), provided the following conditions are met:

    


    (i)           Such
change will not take effect until at least twelve (12) months after the date on
which the new payment election is made and approved by the Plan
Administrator;

    


    (ii)           If
the change of payment election relates to a payment based on Separation from
Service or on a Change in Control, or if the payment is at a Specified Time or
pursuant to a Fixed Schedule, the change of payment election must result in
payment being deferred for a period of not less than five (5) years from the
date such payment would otherwise have been paid (or in the case of a life
annuity or installment payments treated as a single payment, five (5) years from
the date the first amount was scheduled to be paid);

    


    (iii)           If
the change of payment election relates to a payment at a Specified Time or
pursuant to a Fixed Schedule, the Participant or Plan Sponsor must make the
change of payment election not less than twelve (12) months before the date the
payment is scheduled to be paid (or in the case of a life annuity or installment
payments treated as a single payment, twelve (12) months before the date the
first amount was scheduled to be paid).

    


                  
 Delay in Payment by Plan
Sponsor.

    


    (a)           A
payment may be delayed to a date after the designated payment date under any of
the circumstances described below, and the provision will not fail to meet the
requirements of establishing a permissible payment event. The delay in the
payment will not constitute a subsequent deferral election, so long as the Plan
Sponsor treats all payments to similarly situated Participants on a reasonably
consistent basis.

    


    (i)           Payments subject to Section
162(m). A payment may be delayed to the extent that the Plan Sponsor
reasonably anticipates that if the payment were made as scheduled, the Plan
Sponsor’s deduction with respect to such payment would not be permitted due to
the application of Code §162(m). If a payment is delayed, such payment must be
made either:

    


               (1)
during the Participant’s first taxable year in which the Plan Sponsor reasonably
anticipates, or should reasonably anticipate, that if the payment is made during
such year, the deduction of such payment will not be barred by application of
Code §162(m), or

    


               (2)  during
the period beginning with the date of the Participant’s Separation from Service
and ending on the later of the last day of the Taxable Year of the Plan Sponsor
in which the Participant separates from service or the fifteenth (15th) day of
the third (3rd) month
following the


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Participant’s
Separation from Service.  Where any scheduled payment to a specific
Participant in the Plan Sponsor’s Taxable Year is delayed in accordance with
this Article, the delay in payment will be treated as a subsequent deferral
election unless all scheduled payments to the Participant that could be delayed
in accordance with this Article are also delayed. Where the payment is delayed
to a date on or after the Participant’s Separation from Service, the payment
will be considered a payment upon a Separation from Service for purposes of the
rules under Treasury Regulations §1.409A-3(i)(2) (payments to specified
employees upon a separation from service), and the six (6) month delay rule will
apply for Specified Employees.

    


    (ii)           Payments that would violate Federal
securities laws or other applicable law. A payment may be delayed where
the Plan Sponsor reasonably anticipates that the making of the payment will
violate Federal securities laws or other applicable law provided that the
payment is made at the earliest date at which the Plan Sponsor reasonably
anticipates that the making of the payment will not cause such violation. The
making of a payment that would cause inclusion in gross income or the
application of any penalty provision or other provision of the Internal Revenue
Code is not treated as a violation of applicable law.

    


    (iii)           Other events and conditions.
The Plan Sponsor may delay a payment upon such other events and conditions as
the Commissioner of the Internal RS may prescribe.

    


    (iv)           Notwithstanding
the above, a payment may be delayed where the payment would jeopardize the
ability of the Plan Sponsor to continue as a going concern.

    


    (b)           Treatment of Payment as Made on
Designated Payment Date. Each payment under this Plan is deemed made on
the required payment date even if the payment is made after such date, provided
the payment is made by the latest of: (i) the end of the calendar year in which
the payment is due; (ii) the 15th day of the third calendar month following the
payment due date; (iii) in case the Plan Sponsor cannot calculate the payment
amount on account of administrative impracticality which is beyond the
Participant's control (or the control of the Participant's estate), in the first
calendar year in which payment is practicable; (iv) in case the Plan Sponsor
does not have sufficient funds to make the payment without jeopardizing the Plan
Sponsor’s solvency, in the first calendar year in which the Plan Sponsor’s funds
are sufficient to make the payment.

    


    Amendment. The Plan Sponsor
reserves the right to amend this Plan at any time to comply with Section 409A
and other Applicable Guidance or for any other purpose, provided that such
amendment will not cause the Plan to violate the provisions of Section 409A.
Except to the extent necessary to bring this Plan into compliance with Section
409A, no amendment or modification shall be effective to decrease the value or
vested percentage of a Participant’s Accrued Benefit in existence at the time an
amendment or modification is made to the Plan.

    


    Plan
Termination.  The Plan Sponsor reserves the right to terminate
this Plan in accordance with one of the following, subject to the restrictions
imposed by Section 409A and authoritative guidance:

    


    (a)           Corporate Dissolution or
Bankruptcy. This Plan may be terminated within twelve (12) months of a
corporate dissolution taxed under Code § 331, or with the approval of a Plan
Sponsor bankruptcy court pursuant to 11 U.S.C. Section 503(b)(1)(A), and
distributions may then be made to the Participant provided that the amounts
payable under this Plan are included in the Participants’ gross income in the
latest of:


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (i)           The
calendar year in which the Plan termination occurs;

    


    (ii)           The
calendar year in which the amount is no longer subject to a substantial risk of
forfeiture; or

    


    (iii)           The
first calendar year in which the payment is administratively
practicable.

    


    (b)           Change in
Control.  This Plan may be terminated within the thirty (30)
days preceding or the twelve (12) months following a Change in Control as
defined in Treasury Regulation 1.409A-3(i)(5). This Plan will then be treated as
terminated only if all substantially similar arrangements sponsored by the Plan
Sponsor are terminated so that all participants in all similar arrangements are
required to receive all amounts of compensation deferred under the terminated
arrangements within twelve (12) months of the date of termination of the
arrangements.

    


    (c)           Discretionary Termination. The
Plan Sponsor may also terminate this Plan and make distributions provided
that:

    


    (i)           All
plans sponsored by the Plan Sponsor that would be aggregated with any terminated
arrangements under Treasury Regulations §1.409A-1(c) are
terminated;

     

    (ii)           No
payments, other than payments that would be payable under the terms of this plan
if the termination had not occurred, are made within twelve (12) months of this
plan termination;

     

    (iii)           All
payments are made within twenty-four (24) months of this plan termination;
and

     

    (iv)           Neither
the Plan Sponsor nor any of its affiliates adopts a new plan that would be
aggregated with any terminated plan if the same Participant participated in both
arrangements at any time within three (3) years following the date of
termination of this Plan.

    


    (v)           The
termination does not occur proximate to a downturn in the financial health of
the Plan Sponsor.

    


    Claims Procedure. This Article
is based on final regulations issued by the Department of Labor and published in
the Federal Register on November 21, 2000 and codified in Section 2560.503-1 of
the Department of Labor Regulations. If any provision of this Article conflicts
with the requirements of those regulations, the requirements of those
regulations will prevail.

     

    (a)           Claim. A Participant or
Beneficiary (hereinafter referred to as a “Claimant”) who believes he or she is
entitled to any Plan benefit under this Plan may file a claim with the Plan
Sponsor. The Plan Sponsor shall review the claim itself or appoint an individual
or entity to review the claim.

     

    (b)           Claim Decision. The Claimant
shall be notified within ninety (90) days after the claim is filed (forty-five
(45) days for a Disability Claim), whether the claim is allowed or denied,
unless the claimant receives written notice from the Plan Sponsor or appointee
of the Plan Sponsor prior to the end of the ninety (90) day period (forty-five
(45) days for a Disability Claim) stating that special circumstances require an
extension of the time for decision. For a claim other than for Disability, such
extension is not to extend beyond the day which is one-hundred eighty (180) days
after the day the claim is filed as long as the Plan Sponsor notifies the
claimant of the circumstances requiring the extension, and the date as of which
a decision is expected to be rendered.    For a Disability
Claim, a thirty (30) day extension is permitted, with an additional thirty (30)
days permitted, provided that the Plan Sponsor notifies the claimant prior to
expiration of the first 30 day extension, of the circumstances requiring the
extension, and the date

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    as of
which a decision is expected to be rendered.  If the Plan Sponsor
denies the claim, it must provide to the Claimant, in writing or by electronic
communication:

     

    (i)           The
specific reasons for such denial;

     

    (ii)           Specific
reference to pertinent provisions of this Plan on which such denial is
based;

     

    (iii)           A
description of any additional material or information necessary for the Claimant
to perfect his or her claim, by providing such material to the Plan Sponsor
within forty-five (45) days, and an explanation why such material or such
information is necessary; and

     

    (iv)           A
description of the Plan’s appeal procedures and the time limits applicable to
such procedures, including a statement of the Claimant’s right to bring a civil
action under Section 502(a) of ERISA following a denial of the appeal of the
denial of the benefits claim.

     

    (c)           Review
Procedures.  A request for review of a denied claim must be
made in writing to the Plan Sponsor within sixty (60) days after receiving
notice of denial. The decision upon review will be made within sixty (60) days
(forty-five (45) days for a Disability claim) after the Plan Sponsor’s receipt
of a request for review.  If the Plan Sponsor determines that an
extension of time for processing is required, written notice of the extension
shall be furnished to the claimant (which will include the expected date of
rendering a decision) prior to the termination of the initial period, but in no
event will the extension exceed sixty (60) days (forty-five (45) days for a
Disability claim).

     

    The
reviewer shall afford the Claimant an opportunity to review and receive, without
charge, all relevant documents, information, and records and to submit issues
and comments in writing to the Plan Sponsor. The reviewer shall take into
account all comments, documents, records, and other information submitted by the
Claimant relating to the claim regardless of whether the information was
submitted or considered in the benefit determination.  Upon completion
of its review of an adverse initial claim determination, the Plan Sponsor will
give the Claimant, in writing or by electronic notification, a notice
containing:

     

    (i)           its
decision;

     

    (ii)           the
specific reasons for the decision;

     

    (iii)           the
relevant Plan provisions on which its decision is based;

     

    (iv)           a
statement that the Claimant is entitled to receive, upon request and without
charge, reasonable access to, and copies of, all documents, records and other
information in the Plan’s files which is relevant to the Claimant’s claim for
benefit;

     

    (v)           a
statement describing the Claimant’s right to bring an action for judicial review
under ERISA Section 502(a); and

     

    (vi)           If
an internal rule, guideline, protocol, or other similar criterion was relied
upon in making the adverse determination on review, a statement that a copy of
the rule, guideline, protocol, or other similar criterion will be provided
without charge to the Claimant upon request.

     

    (d)           Calculation of Time
Periods.  For purposes of the time periods specified in this
Article, the period of time during which a benefit determination is required to
be made begins at the time a claim is filed in accordance with this Plan’s
procedures without regard to whether all the information necessary to make a
decision accompanies the claim. If a period of time is extended due to a
Claimant’s failure to

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    submit
all information necessary, the period for making the determination shall be
tolled from the date the notification is sent to the Claimant until the date the
Claimant responds.

     

    (e)           Failure of Plan to Follow
Procedures.  If the Plan Sponsor fails to follow the claims
procedure required by this Article, a Claimant shall be deemed to have exhausted
the administrative remedies available under this Plan and shall be entitled to
pursue any available remedy under Section 502(a) of ERISA on the basis that this
Plan has failed to provide a reasonable claims procedure that would yield a
decision on the merits of the claim.

     

    (f)           Failure of Claimant to Follow
Procedures. A Claimant’s compliance with the foregoing provisions of this
Article is a mandatory prerequisite to the Claimant’s right to commence any
legal action with respect to any claim for benefits under the Plan.

     

    Compliance with Section 409A and
Authoritative Guidance. Notwithstanding anything in this Plan to the
contrary, all provisions of this Plan, including but not limited to the
definitions of terms, elections to defer, and distributions, shall be made in
accordance with and shall comply with Section 409A and any authoritative
guidance.  The Plan Sponsor will amend the terms of this Plan
retroactively, if necessary, to the extent required to comply with Section 409A
and any authoritative guidance.  No provision of this Plan shall be
followed to the extent that following such provision would result in a violation
of Section 409A or the authoritative guidance, and no election made by a
Participant hereunder, and no change made by a Participant to a previous
election, shall be accepted by the Plan Sponsor if the Plan Sponsor determines
that acceptance of such election or change could violate any of the requirements
of Section 409A or the authoritative guidance.  This Plan and any
accompanying forms shall be interpreted in accordance with, and incorporate the
terms and conditions required by, Section 409A and the authoritative guidance,
including, without limitation, any such Treasury Regulations or other guidance
that may be issued after the date hereof.

    


    Status of Plan.  The
Plan is intended to be a plan that: (i) is not qualified within the meaning of
Code Section 401(a); and (ii) “is unfunded and is maintained by the Plan Sponsor
primarily for the purpose of providing deferred compensation for a select group
of management or highly compensated employees” within the meaning of ERISA
Sections 201(2), 301(a)(3), and 401(a)(1). Furthermore, the provisions of this
Plan, both in form and in operation, are intended to comply with the
requirements of Section 409A(a)(2), (3), and (4) of the Code. This Plan shall be
administered and interpreted to the extent possible in a manner consistent with
these intentions. If the Plan Sponsor or Plan Administrator determines in good
faith that a Participant who has not experienced a Separation from Service no
longer qualifies as a member of a select group of management or highly
compensated employees, as membership in such group is determined in accordance
with Sections 201(2), 301(a)(3), and 401(a)(1) of ERISA, or that such a
Participant’s participation in the Plan could jeopardize the status of this Plan
as a plan intended to be “unfunded” and “maintained primarily for the purpose of
providing deferred compensation for a select group of management or highly
compensated  employees” within the meaning of ERISA Sections 201(2),
301(a)(3), and 401(a)(1), or causes the Plan to fail to comply with any
requirements of Sections 409A(a)(2), (3), or (4) of the Code, the Plan Sponsor
may take reasonable steps necessary to maintain the status of the Plan as such
or to prevent or cure any failure, as the case may be.

    


    


    The
following Article is hereby deleted:

    


    
      	
               
      

            	
              9.

            	
              Discretion
      of Board to Accelerate Payout

            


    

    


    The
following Articles are hereby amended by specific reference:

    


    Definition of Early Retirement Date
should include “and prior to Normal retirement date.”


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Delete any reference in any Article of
the Agreement which gives the Participant the option of electing a payment
commencement date after the occurrence of the event giving rise to the payment
other than as may be subject to the following limitations under IRC
409A:

    Subsequent Changes in the Time or
Form of Payment. A Participant may elect to change the time or form of
payments (collectively, “payment elections”), provided the following conditions
are met:

    


    (ii)           Such
change will not take effect until at least twelve (12) months after the date on
which the new payment election is made and approved by the Plan
Administrator;

    


    (ii)           If
the change of payment election relates to a payment based on Separation from
Service or on a Change in Control, or if the payment is at a Specified Time or
pursuant to a Fixed Schedule, the change of payment election must result in
payment being deferred for a period of not less than five (5) years from the
date such payment would otherwise have been paid (or in the case of a life
annuity or installment payments treated as a single payment, five (5) years from
the date the first amount was scheduled to be paid);

    


    (iii)           If
the change of payment election relates to a payment at a Specified Time or
pursuant to a Fixed Schedule, the Participant or Plan Sponsor must make the
change of payment election not less than twelve (12) months before the date the
payment is scheduled to be paid (or in the case of a life annuity or installment
payments treated as a single payment, twelve (12) months before the date the
first amount was scheduled to be paid).

    


    


    


    


    


    IN WITNESS OF THE ABOVE, the
Plan Sponsor and Participant have executed this  Amendment to the
Agreement.

    


    


    
      	
              WITNESS:

            	 
      	 
      	 
      	
              FOR THE PLAN
      SPONSOR:

            	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              Carolyn
      M. Cross

            	 
      	
              Valley
      Business Bank

            
	
              (name)

            	 
      	 
      	 
      	 
      	
              (name)

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              /s/
      Carolyn M. Cross

            	 
      	
              /s/
      Allan W. Stone

            
	
              (signature
      of witness)

            	 
      	 
      	 
      	
              (signature
      of witness)

            	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              Vice
      President / Human Resource

            	 
      	
              Executive
      Vice President / Chief Credit Officer

            
	
              (title
      if any)

            	 
      	 
      	 
      	 
      	
              (title
      if any)

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	
              THE
      PARTICIPANT:

            	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	
              Donald
      A. Gilles

            
	 
      	 
      	 
      	 
      	 
      	
              (name)

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	
              /s/
      Donald A. Gilles

            
	 
      	 
      	 
      	 
      	 
      	
              (signature
      of witness)

            	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	
              Executive
      Vice President / President

            
	 
      	 
      	 
      	 
      	 
      	
              (title
      if any)