WHEREAS, the Executive and the Company (previously known as First California Bancshares) entered into an Employment Agreement, dated January 1, 2003, as amended by amendments dated October 28, 2003, January 1, 2004 and October 26, 2004 (collectively, the Agreement); and
WHEREAS, Section 4 of the Agreement sets forth the Companys potential obligations upon the termination of the Executives employment with the Company; and
WHEREAS, the Executive and the Company have agreed to amend the Agreement as set forth in this Amendment in order to provide for payments to be made in compliance with Section 409A of the Internal Revenue Code of 1986, as amended (the Code) and guidance thereunder, which section was added to the Code by the American Jobs Creation Act of 2004; and
WHEREAS, Section 17(d) of the Agreement provides that the Agreement may be amended only by a writing signed by the parties.
NOW THEREFORE, the Executive and the Company agree as follows:
1. A new Subsection (f) entitled Timing of Payment is added to Section 4 of the Agreement, to read as set forth below:
(f) Timing of Payment. Notwithstanding anything to the contrary in this Agreement, if any amount payable hereunder is considered to be compensation deferred under a nonqualified deferred compensation plan as defined for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (Section 409A), and if Executive is deemed to be a specified employee as defined for purposes of Section 409A, then, to the extent necessary to comply with Section 409A, any such amount due under this Agreement in connection with a termination of Executives employment that otherwise would be payable at any time during the six-month period immediately following such termination of employment shall not be paid prior to, and shall instead be payable in a lump sum as soon as practicable following, the expiration of such six-month period. In light of the uncertainty surrounding the application of Section 409A, the Company makes no guarantee as to the income tax treatment under Section 409A of any payments made or benefits provided under this Agreement.
2. All other terms and conditions of the Agreement shall remain in full force and effect.
|PLACER SIERRA BANCSHARES|
By: /s/ Frank J. Mercardante
|/s/ David E. Hooston|
Chief Executive Officer
|DAVID E. HOOSTON|