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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:
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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”).
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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:
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Section 14 of
the Agreement is hereby removed in its entirety and amended to read
as follows:
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14.
REDUCTION OF PAYMENT; COMPLIANCE WITH LAWS; IRC SECTION 409A
COMPLIANCE .
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(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.
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(ii)
This Agreement, and any payments or benefits
he
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