FIRST AMENDMENT TO NON-COMPETE, NON-SOLICITATION
AGREEMENT
This First Amendment to the Non-Compete,
Non-Solicitation Agreement (the “First Amendment”) is
made and is effective as of August 26, 2009, by and between Joanne
Funari (“Funari”) and Heritage Oaks Bancorp
(“Bancorp”), a California corporation and registered
bank holding company of its wholly-owned subsidiary, Heritage Oaks
Bank (“Bank”). Bancorp, Bank and any other
division of either Bancorp or the Bank shall be referred to herein
as the “Company.”
RECITALS
This First Amendment is made with regard to the
following facts:
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Funari is
currently employed by the Bank as the Executive Vice President of
the Bank and the President of Business First Bank, a division of
the Bank, pursuant to that certain Employment Agreement dated as of
May 29, 2007 by and between the Bank and the Funari (the
“Employment Agreement”).
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Bancorp and
Funari are parties to that certain Non-Compete, Non-Solicitation
Agreement dated as of May 29, 2007 (the
“Agreement”).
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Funari has
requested certain changes to the Agreement that the Company is
willing to make on the terms and conditions set forth
herein.
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The Parties
desire to amend the terms of the Agreement in the manner as set
forth herein.
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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 1(g)
will be added to the Agreement and shall read as
follows:
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(g) Termination Other Than For Cause
. Funari shall be released from
the covenant in Section 1(a), above, and such covenant shall be of
no further force or effect, if the Company terminates
Funari’s employment other than for
“Cause.” For this purpose, the term
“Cause” means (i) Funari’s failing to perform her
duties and obligations as an employee of the Company and failing to
cure such breach within 15 days following delivery to Funari of
written notice specifying in reasonable detail the failures to
perform; (ii) Funari’s engaging in either grossly negligent
conduct or willful misconduct in connection with the performance of
her duties as an employee of the Company; (iii) the conviction of
Funari for any crime which constitutes a felony (other than a
vehicular violation not involving theft or fraud) in the
jurisdiction in which committed and which involves an act of theft
or fraud, or the entry by Funari of a plea of guilty or nolo
contendre to such a felony in any jurisdiction; (iv) any violation
by Funari of her fiduciary duty to the Company which has the effect
of unlawfully converting for Funari’s own personal benefit,
any material property or prospect of the Company; (v)
the repeated consumption of alcohol or drugs in a manner that
materially impairs Funari’s abilities to perform her duties
under this Agreement; (vi) Executive’s personal dishonesty;
(vii) Executive engages, or is alleged to have engaged, in activity
which, in the opinion of the Board or the Bank’s Chief
Executive Officer, could materially adversely affect the
Bank’s reputation in the community or which evidences the
lack of Funari’s fitness or ability to perform Funari’s
duties as determined by the Board or the Bank’s Chief
Executive Officer, as the case may be, in good faith, after Funari
has been given written warning specifically advis
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