**Exhibit 10.2**

 

GUARANTY BANCORP

DEFERRED COMPENSATION PLAN

 

Amended and Restated, Effective January 1, 2009

 

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Guaranty Bancorp Deferred Compensation Plan

 
| **ARTICLE I**                              |   |
|--------------------------------------------|--------|
| Establishment and Purpose                  | 3      |
|                                       |   |
| **ARTICLE II**                             |   |
| Definitions                                | 3      |
|                                       |   |
| **ARTICLE III**                            |   |
| Eligibility and Participation              | 9      |
|                                       |   |
| **ARTICLE IV**                             |   |
| Deferrals                                  | 10     |
|                                       |   |
| **ARTICLE V**                              |   |
| Company Contributions                      | 13     |
|                                       |   |
| **ARTICLE VI**                             |   |
| Benefits                                   | 14     |
|                                       |   |
| **ARTICLE VII**                            |   |
| Modifications to Payment Schedules         | 17     |
|                                       |   |
| **ARTICLE VIII**                           |   |
| Valuation of Account Balances; Investments | 17     |
|                                       |   |
| **ARTICLE IX**                             |   |
| Administration                             | 19     |
|                                       |   |
| **ARTICLE X**                              |   |
| Amendment and Termination                  | 20     |
|                                       |   |
| **ARTICLE XI**                             |   |
| Informal Funding                           | 21     |
|                                       |   |
| **ARTICLE XII**                            |   |
| Claims                                     | 21     |
|                                       |   |
| **ARTICLE XIII**                           |   |
| General Provisions                         | 26     |

 

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**ARTICLEI**

 

*Establishment and Purpose*

 

Guaranty Bancorp (the “Company”) hereby amends and restates theCentennial Bank Holdings, Inc. Deferred Compensation Plan (the “Plan”),effective January 1, 2009. This amendment and restatement applies to allamounts previously or hereafter deferred under the Plan.

 

The purpose of the Plan is to attract and retain key employees orDirectors by providing each Participant with an opportunity to defer receipt ofa portion of their salary, bonus, and other specified compensation. The Plan isnot intended to meet the qualification requirements of Code Section 401(a),but is intended to meet the requirements of Code Section 409A, and shallbe operated and interpreted consistent with that intent.

 

The Plan constitutes an unsecured promise by a Participating Employerto pay benefits in the future. Participants in the Plan shall have the statusof general unsecured creditors of the Company or the Adopting Employer, asapplicable. Each Participating Employer shall be solely responsible for paymentof the benefits of its employees and their beneficiaries. The Plan is unfundedfor Federal tax purposes and is intended to be an unfunded arrangement foreligible employees who are part of a select group of management or highlycompensated employees of the Employer within the meaning of Sections 201(2),301(a)(3) and 401(a)(1) of ERISA. Any amounts set aside to defray theliabilities assumed by the Company or an Adopting Employer will remain thegeneral assets of the Company or the Adopting Employer and shall remain subjectto the claims of the Company’s or the Adopting Employer’s creditors until suchamounts are distributed to the Participants.

 

**ARTICLEII**

 

*Definitions*

 

2.1                                Account.Account means a bookkeeping account maintained by the Committee to record thepayment obligation of a Participating Employer to a Participant as determinedunder the terms of the Plan. The Committee may maintain an Account to recordthe total obligation to a Participant and component Accounts to reflect amountspayable at different times and in different forms. Reference to an Account meansany such Account established by the Committee, as the context requires.Accounts are intended to constitute unfunded obligations within the meaning ofSections 201(2), 301(a)(3) and 401(a)(1) of ERISA.

 

2.2                                AccountBalance. Account Balance means, with respect to any Account, the totalpayment obligation owed to a Participant from such Account as of the mostrecent Valuation Date.

 

2.3                                AdoptingEmployer. Adopting Employer means an Affiliate who, with the consent of theCompany, has adopted the Plan for the benefit of its eligible employees.

 

2.4                                Affiliate.Affiliate means a corporation, trade or business that, together with theCompany, is treated as a single employer under Code Section 414(b) or(c).

 

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2.5                                Beneficiary.Beneficiary means a natural person, estate, or trust designated by aParticipant to receive payments to which a Beneficiary is entitled inaccordance with provisions of the Plan. The Participant’s spouse, if living,otherwise the Participant’s estate, shall be the Beneficiary if: (i) the Participant has failed to properlydesignate a Beneficiary, or (ii) all designated Beneficiaries havepredeceased the Participant.

 

A former spouse shall have no interest underthe Plan, as Beneficiary or otherwise, unless the Participant designates suchperson as a Beneficiary after dissolution of the marriage, except to the extentprovided under the terms of a domestic relations order as described in Code Section 414(p)(1)(B).

 

2.6                                BusinessDay***.*** A Business Day is each dayon which the New York Stock Exchange is open for business.

 

2.7                                Changein Control***.*** Change in Control means,with respect to a Participating Employer that is organized as a corporation,any of the following events: (i) a change in the ownership of theParticipating Employer; (ii) a change in the effective control of theParticipating Employer; (iii) a change in the ownership of a substantialportion of the assets of the Participating Employer.

 

For purposes of this Section, a change in theownership of the Participating Employer occurs on the date on which any oneperson, or more than one person acting as a group, acquires ownership of stockof the Participating Employer that, together with stock held by such person orgroup constitutes more than 50% of the total fair market value or total votingpower of the stock of the Participating Employer. A change in the effectivecontrol of the Participating Employer occurs on the date on which either (i) aperson, or more than one person acting as a group, acquires ownership of stockof the Participating Employer possessing 30% or more of the total voting powerof the stock of the Participating Employer, taking into account all such stockacquired during the twelve-month period ending on the date of the most recentacquisition, or (ii) a majority of the members of the ParticipatingEmployer’s Board of Directors is replaced during any twelve-month period bydirectors whose appointment or election is not endorsed by a majority of themembers of such Board of Directors prior to the date of the appointment orelection, but only if no other corporation is a majority shareholder of theParticipating Employer. A change in the ownership of a substantial portion ofassets occurs on the date on which any one person, or more than one personacting as a group, other than a person or group of persons that is related tothe Participating Employer, acquires assets from the Participating Employerthat have a total gross fair market value equal to or more than 40% of the totalgross fair market value of all of the assets of the Participating Employerimmediately prior to such acquisition or acquisitions, taking into account allsuch assets acquired during the twelve-month period ending on the date of themost recent acquisition.

 

An event constitutes a Change in Control withrespect to a Participant only if the Participant performs services for theParticipating Employer that has experienced the 

 

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Change in Control, or the Participant’srelationship to the affected Participating Employer otherwise satisfies therequirements of Treasury Regulation Section 1.409A-3(i)(5)(ii).

 

The determination as to the occurrence of aChange in Control shall be based on objective facts and in accordance with therequirements of Code Section 409A.

 

2.8                                Claimant.Claimant means a Participant or Beneficiary filing a claim under Article XIIof this Plan.

 

2.9           Code. Code meansthe Internal Revenue Code of 1986, as amended from time to time.

 

2.10         Code Section 409A.Code Section 409A means section 409A of the Code, and regulations andother guidance issued by the Treasury Department and Internal Revenue Servicethereunder.

 

2.11         Committee.Committee means the Compensation, Nominating, and Governance Committee of theBoard of Directors of the Company.

 

2.12         Company. Companymeans Guaranty Bancorp.

 

2.13         Company Contribution.Company Contribution means a credit by a Participating Employer to aParticipant’s Account(s) in accordance with the provisions of Article Vof the Plan. Company Contributions are credited at the sole discretion of theParticipating Employer and the fact that a Company Contribution is credited inone year shall not obligate the Participating Employer to continue to make suchCompany Contribution in subsequent years. Unless the context clearly indicatesotherwise, a reference to Company Contribution shall include Earningsattributable to such contribution.

 

2.14         Company Stock.Company Stock means phantom shares of common stock issued by Guaranty Bancorp.

 

2.15         Compensation.Compensation means a Participant’s base salary, bonus, commission, Directorsfees, and such other cash or equity-based compensation (if any) approved by theCommittee as Compensation that may be deferred under this Plan. Compensationshall not include any compensation that has been previously deferred under thisPlan or any other arrangement subject to Code Section 409A.

 

2.16         Compensation DeferralAgreement. Compensation Deferral Agreement means an agreement between aParticipant and a Participating Employer that specifies (i) the amount ofeach component of Compensation that the Participant has elected to defer to thePlan in accordance with the provisions of Article IV, and (ii) thePayment Schedule applicable to one or more Accounts. The Committee may permitdifferent deferral amounts for each component of Compensation and may establisha minimum or maximum deferral amount for each such component. Unless otherwisespecified by the Committee in the Compensation Deferral Agreement, Participantsmay defer up to 80% of their base salary and up to 100% of other types ofCompensation for a Plan Year. A 

 

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Compensation Deferral Agreement may alsospecify the investment allocation described in Section 8.4.

 

2.17                          DeathBenefit. Death Benefit means the benefit payable under the Plan to aParticipant’s Beneficiary(ies) upon the Participant’s death as provided in Section 6.1of the Plan.

 

2.18         Deferral. Deferralmeans a credit to a Participant’s Account(s) that records that portion ofthe Participant’s Compensation that the Participant has elected to defer to thePlan in accordance with the provisions of Article IV. Unless the contextof the Plan clearly indicates otherwise, a reference to Deferrals includesEarnings attributable to such Deferrals.

 

Deferrals shall be calculated with respect tothe gross cash Compensation payable to the Participant prior to any deductionsor withholdings, but shall be reduced by the Committee as necessary so that itdoes not exceed 100% of the cash Compensation of the Participant remainingafter deduction of all required income and employment taxes, 401(k) andother employee benefit deductions, and other deductions required by law.Changes to payroll withholdings that affect the amount of Compensation beingdeferred to the Plan shall be allowed only to the extent permissible under CodeSection 409A.

 

2.19         Director.  Director means a non-Employee member of theBoard of Directors of the Company.

 

2.20         Earnings. Earningsmean an adjustment to the value of an Account in accordance with Article VIII.

 

2.21         Effective Date.Effective Date means January 1, 2009. Prior to the Effective Date, theprior Plan document will control, subject to the requirement that the Plan beadministered in accordance with Code Section 409A.

 

2.22         Eligible Employee.Eligible Employee means a member of a “select group of management or highlycompensated employees” of a Participating Employer within the meaning ofSections 201(2), 301(a)(3) and 401(a)(1) of ERISA, as determined bythe Committee from time to time in its sole discretion.

 

2.23         Employee. Employeemeans a common-law employee of an Employer.

 

2.24         Employer. Employermeans, with respect to Employees it employs, the Company and each Affiliate.

 

2.25         ERISA. ERISA meansthe Employee Retirement Income Security Act of 1974, as amended from time totime.

 

2.26         Fiscal YearCompensation. Fiscal Year Compensation means Compensation earned during oneor more consecutive fiscal years of a Participating Employer, all of which ispaid after the last day of such fiscal year or years.

 

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2.27         Participant.Participant means an Eligible Employee or a Director who has receivednotification of his or her eligibility to defer Compensation under the Planunder Section 3.1 and any other person with an Account Balance greaterthan zero, regardless of whether such individual continues to be an EligibleEmployee or a Director. A Participant’s continued participation in the Planshall be governed by Section 3.2 of the Plan.

 

2.28         ParticipatingEmployer. Participating Employer means the Company and each AdoptingEmployer.

 

2.29         Payment Schedule.Payment Schedule means the date as of which payment of an Account under thePlan will commence and the form in which payment of such Account will be made.

 

2.30         Performance-BasedCompensation. Performance-Based Compensation means Compensation where theamount of, or entitlement to, the Compensation is contingent on thesatisfaction of pre-established organizational or individual performancecriteria relating to a performance period of at least twelve consecutivemonths. Organizational or individual performance criteria are consideredpre-established if established in writing by not later than ninety (90) daysafter the commencement of the period of service to which the criteria relate,provided that the outcome is substantially uncertain at the time the criteriaare established. The determination of whether Compensation qualifies as “Performance-BasedCompensation” will be made in accordance with Treas. Reg. Section 1.409A-1(e) andsubsequent guidance.

 

2.31         Plan. Generally,the term Plan means the “Guaranty Bancorp Deferred Compensation Plan” asdocumented herein and as may be amended from time to time hereafter. However,to the extent permitted or required under Code Section 409A, the term Planmay in the appropriate context also mean a portion of the Plan that is treatedas a single plan under Treas. Reg. Section 1.409A-1(c), or the Plan orportion of the Plan and any other nonqualified deferred compensation plan orportion thereof that is treated as a single plan under such section.

 

2.32         Plan Year. PlanYear means January 1 through December 31.

 

2.33         Retirement. Retirementmeans a voluntary Separation from Service on or after attaining age 55.

 

2.34         Retirement Benefit.Retirement Benefit means the benefit payable to a Participant under the Planfollowing the Retirement of the Participant.

 

2.35         Retirement/TerminationAccount. Retirement/Termination Account means an Account established by theCommittee to record the amounts payable to a Participant upon Separation fromService. Unless the Participant has established a Specified Date 

 

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Account, all Deferrals and CompanyContributions shall be allocated to a Retirement/Termination Account on behalfof the Participant.

 

2.36         Separation fromService. An Employee incurs a Separation from Service upon termination ofemployment with the Employer. A Director incurs a Separation from Service upontermination of his or her service as a Director.  Whether a Separation from Service hasoccurred shall be determined by the Committee in accordance with Code Section 409A.

 

Except in the case of an Employee on a bonafide leave of absence as provided below, an Employee is deemed to have incurreda Separation from Service if the Employer and the Employee reasonablyanticipated that the level of services to be performed by the Employee after adate certain would be reduced to 20% or less of the average services renderedby the Employee during the immediately preceding 36-month period (or the totalperiod of employment, if less than 36 months), disregarding periods duringwhich the Employee was on a bona fide leave of absence.

 

An Employee who is absent from work due tomilitary leave, sick leave, or other bona fide leave of absence shall incur aSeparation from Service on the first date immediately following the later of (i) thesix-month anniversary of the commencement of the leave or (ii) theexpiration of the Employee’s right, if any, to reemployment under statute orcontract. Notwithstanding the preceding, however, an Employee who is absentfrom work due to a physical or mental impairment that is expected to result indeath or last for a continuous period of at least six months and that preventsthe Employee from performing the duties of his position of employment or asimilar position shall incur a Separation from Service on the first dateimmediately following the 29-month anniversary of the commencement of theleave.

 

For purposes of determining whether aSeparation from Service has occurred, the Employer means the Employer asdefined in Section 2.24 of the Plan, except that for purposes ofdetermining whether another organization is an Affiliate of the Company, commonownership of at least 50% shall be determinative.

 

The Committee specifically reserves the rightto determine whether a sale or other disposition of substantial assets to anunrelated party constitutes a Separation from Service with respect to aParticipant providing services to the seller immediately prior to thetransaction and providing services to the buyer after the transaction. Suchdetermination shall be made in accordance with the requirements of Code Section 409A.

 

2.37         SpecifiedDate Account. A Specified Date Account means an Account establishedpursuant to Section 4.3 that will be paid (or that will commence to bepaid) at a future date as specified in the Participant’s Compensation DeferralAgreement. Unless otherwise determined by the Committee, a Participant maymaintain no more than five Specified Date Accounts. A Specified Date Accountmay be identified in enrollment materials as an “In-Service Account”.

 

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2.38         SpecifiedDate Benefit. Specified Date Benefit means the benefit payable to aParticipant under the Plan in accordance with Section 6.1(c).

 

2.39         SubstantialRiskofForfeiture.SubstantialRiskofForfeitureshallhavethemeaningspecifiedinTreas.Reg.Section1.409A-1(d).

 

2.40         Termination Benefit.Termination Benefit means the benefit payable to a Participant under the Planfollowing the Participant’s Separation from Service prior to Retirement.

 

2.41         UnforeseeableEmergency. An Unforeseeable Emergency means a severe financial hardship tothe Participant resulting from an illness or accident of the Participant, theParticipant’s spouse, the Participant’s dependent (as defined in Code section152, without regard to section 152(b)(1), (b)(2), and (d)(1)(B)), or aBeneficiary; loss of the Participant’s property due to casualty (including theneed to rebuild a home following damage to a home not otherwise covered byinsurance, for example, as a result of a natural disaster); or other similarextraordinary and unforeseeable circumstances arising as a result of eventsbeyond the control of the Participant. The types of events which may qualify asan Unforeseeable Emergency may be limited by the Committee.

 

2.42         Valuation Date.Valuation Date shall mean each Business Day.

 

**ARTICLE III**

 

*Eligibility and Participation*

 

3.1           Eligibility andParticipation. An Eligible Employee or a Director becomes a Participantupon the earlier to occur of (i) a credit of Company Contributions under Article Vor (ii) receipt of notification of eligibility to participate.

 

3.2           Duration. AParticipant shall be eligible to defer Compensation and receive allocations ofCompany Contributions, subject to the terms of the Plan, for as long as suchParticipant remains an Eligible Employee or a Director. A Participant who is nolonger an Eligible Employee or a Director but has not Separated from Servicemay not defer Compensation under the Plan beyond the Plan Year in which he orshe became ineligible but may otherwise exercise all of the rights of aParticipant under the Plan with respect to his or her Account(s). On and aftera Separation from Service, a Participant shall remain a Participant as long ashis or her Account Balance is greater than zero (0) and during such time maycontinue to make allocation elections as provided in Section 8.4. Anindividual shall cease being a Participant in the Plan when all benefits underthe Plan to which he or she is entitled have been paid.

 

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**Article IV**

** **

*Deferrals*

* *

4.1           Deferral Elections,Generally.

 

(a)           A Participant may electto defer Compensation by submitting a Compensation Deferral Agreement duringthe enrollment periods established by the Committee and in the manner specifiedby the Committee, but in any event, in accordance with Section 4.2. ACompensation Deferral Agreement that is not timely filed with respect to aservice period or component of Compensation shall be considered void and shallhave no effect with respect to such service period or Compensation. TheCommittee may modify any Compensation Deferral Agreement prior to the date theelection becomes irrevocable under the rules of Section 4.2.

 

(b)           The Participant shallspecify on his or her Compensation Deferral Agreement the amount of Deferralsand whether to allocate Deferrals to a Retirement/Termination Account or to aSpecified Date Account. If no designation is made, Deferrals shall be allocatedto the Retirement/Termination Account. A Participant may also specify in his orher Compensation Deferral Agreement the Payment Schedule applicable to his orher Plan Accounts. If the Payment Schedule is not specified in a CompensationDeferral Agreement, the Payment Schedule shall be the Payment Schedulespecified in Section 6.2.

 

4.2           Timing Requirementsfor Compensation Deferral Agreements.

 

(a)*           First Year ofEligibility.* In the case of the first year in which an Eligible Employee ora Director becomes eligible to participate in the Plan, he has up to 30 daysfollowing his initial eligibility to submit a Compensation Deferral Agreementwith respect to Compensation to be earned during such year. The CompensationDeferral Agreement described in this paragraph becomes irrevocable upon the endof such 30-day period. The determination of whether an Eligible Employee or aDirector may file a Compensation Deferral Agreement under this paragraph shallbe determined in accordance with the rules of Code Section 409A,including the provisions of Treas. Reg. Section 1.409A-2(a)(7).

 

A CompensationDeferral Agreement filed under this paragraph applies to Compensation earned onand after the date the Compensation Deferral Agreement becomes irrevocable.

 

(b)           *Prior YearElection.* Except as otherwise provided in this Section 4.2,Participants may defer Compensation by filing a Compensation Deferral Agreementno later than December 31 of the year prior to the year in which theCompensation to be deferred is earned. A Compensation Deferral Agreementdescribed in this paragraph shall become irrevocable with respect to suchCompensation as of January 1 of the year in which such Compensation isearned.

 

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(c)           *Performance-BasedCompensation.* Participants may file a Compensation DeferralAgreement with respect to Performance-Based Compensation no later than the datethat is six months before the end of the performance period, provided that:

 

(i)            the Participantperforms services continuously from the later of the beginning of theperformance period or the date the criteria are established through the datethe Compensation Deferral Agreement is submitted; and

 

(ii)           the Compensation is notreadily ascertainable as of the date the Compensation Deferral Agreement isfiled.

 

A CompensationDeferral Agreement becomes irrevocable with respect to Performance-BasedCompensation as of the day immediately following the latest date for filingsuch election. Any election to defer Performance-Based Compensation that ismade in accordance with this paragraph and that becomes payable as a result ofthe Participant’s death or disability (as defined in Treas. Reg. Section 1.409A-1(e))or upon a Change in Control (as defined in Treas. Reg. Section 1.409A-3(i)(5))prior to the satisfaction of the performance criteria, will be void.

 

(d)           *SalesCommissions.* Sales commissions (as defined in Treas. Reg. Section 1.409A-2(a)(12)(i))are considered to be earned in the taxable year of the Participant in which thesale occurs. The Compensation Deferral Agreement must be filed before the last dayof the year preceding the year in which the sales commissions are earned andbecomes irrevocable after that date.

 

(e)           *Fiscal YearCompensation.* A Participant may defer Fiscal Year Compensation byfiling a Compensation Deferral Agreement prior to the first day of the fiscalyear or years in which such Fiscal Year Compensation is earned. TheCompensation Deferral Agreement described in this paragraph becomes irrevocableon the first day of the fiscal year or years to which it applies.

 

(f)            *Short-TermDeferrals.* Compensation that meets the definition of a “short-termdeferral” described in Treas. Reg. Section 1.409A-1(b)(4) may bedeferred in accordance with the rules of Article VII, applied as ifthe date the Substantial Risk of Forfeiture lapses is the date payments wereoriginally scheduled to commence, provided, however, that the provisions of Section 7.3shall not apply to payments attributable to a Change in Control (as defined inTreas. Reg. Section 1.409A-3(i)(5)).

 

(g)           *CertainForfeitable Rights.* With respect to a legally binding right to apayment in a subsequent year that is subject to a forfeiture conditionrequiring the Participant’s continued services for a period of at least twelvemonths from the date the Participant obtains the legally binding right, anelection to defer such Compensation may be made on or before the 30th day afterthe Participant obtains 

 

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the legallybinding right to the Compensation, provided that the election is made at leasttwelve months in advance of the earliest date at which the forfeiture conditioncould lapse. The Compensation Deferral Agreement described in this paragraphbecomes irrevocable after such 30th day. If the forfeiture condition applicableto the payment lapses before the end of the required service period as a resultof the Participant’s death or disability (as defined in Treas. Reg. Section 1.409A-3(i)(4))or upon a Change in Control (as defined in Treas. Reg. Section 1.409A-3(i)(5)),the Compensation Deferral Agreement will be void unless it would be consideredtimely under another rule described in this Section.

 

(h)           *CompanyAwards.* Participating Employers may unilaterally provide fordeferrals of Company awards prior to the date of such awards. Deferrals ofCompany awards (such as sign-on, retention, or severance pay) may be negotiatedwith a Participant or prospective Employee prior to the date such individualhas a legally binding right to such Compensation.

 

(i)            *“Evergreen”Deferral Elections.* The Committee, in its discretion, may provide inthe Compensation Deferral Agreement that such Compensation Deferral Agreementwill continue in effect for each subsequent year or performance period. Such “evergreen”Compensation Deferral Agreements will become effective with respect to an itemof Compensation on the date such election becomes irrevocable under this Section 4.2.An evergreen Compensation Deferral Agreement may be terminated or modifiedprospectively with respect to Compensation for which such election remainsrevocable under this Section 4.2. A Participant whose CompensationDeferral Agreement is cancelled in accordance with Section 4.6 will berequired to file a new Compensation Deferral Agreement under this Article IVin order to recommence Deferrals under the Plan.

 

4.3           Allocation ofDeferrals. A Compensation Deferral Agreement may allocate Deferrals to oneor more Specified Date Accounts and/or to the Retirement/Termination Account.The Committee may, in its discretion, establish a minimum deferral period forSpecified Date Accounts (for example, the third Plan Year following the yearCompensation subject to the Compensation Deferral Agreement is earned).

 

4.4           Deductions from Pay.The Committee has the authority to determine the payroll practices under whichany component of Compensation subject to a Compensation Deferral Agreement willbe deducted from a Participant’s Compensation.

 

4.5           Vesting.Participant Deferrals shall be 100% vested at all times.

 

4.6           Cancellation ofDeferrals. The Committee may cancel a Participant’s Deferrals (i) forthe balance of the Plan Year in which an Unforeseeable Emergency occurs, (ii) ifthe Participant receives a hardship distribution under the Employer’s qualified401(k) plan, through the end of the Plan Year in which the six-monthanniversary of the hardship distribution falls, and (iii) during periodsin which the Participant is unable to perform the 

 

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duties of hisor her position or any substantially similar position due to a mental orphysical impairment that can be expected to result in death or last for acontinuous period of at least six months, provided cancellation occurs by thelater of the end of the taxable year of the Participant or the 15thday of the third month following the date the Participant incurs the disability(as defined in this paragraph (iii)).

 

**ARTICLE V**

** **

*CompanyContributions*

* *

5.1           401(k) PlanExcess and/or Make-Up Contribution. The Company may, in its solediscretion, make a Company Contribution at the end of each Plan Year in anamount (if any) to restore lost company matching contributions to the Company’s401(k) plan that would have been made by the Company during the 401(k) planyear that corresponds to this Plan Year because of deferrals into this Plan (a “Make-Up”Company Contribution) or because of limitations imposed by Code Section 401(a)(17)on the amount of Compensation that can be considered to determine 401(k) planmatching company contributions (an “Excess” Company Contribution), orboth.  The amount of such CompanyContribution shall equal the difference between the amount of company matchingcontribution that would have been made to the Participant’s account in theCompany 401(k) plan had Deferrals into this Plan not occurred and/or had Code Section 401(a)(17)limits applied; and (ii) the actual amount of the Company matchingcontribution to the 401(k) plan for such Participant during such planyear.  Make-Up Company Contributions willbe credited to a Participant’s Retirement/Termination Account.

 

5.2           DiscretionaryCompany Contributions. The Participating Employer may, from time to time inits sole and absolute discretion, credit Company Contributions to anyParticipant in any amount determined by the Participating Employer. Suchcontributions will be credited to a Participant’s Retirement/TerminationAccount.

 

5.3           Vesting.  The “Make-Up” and/or “Excess” CompanyContribution described in Section 5.1 above, and the Earnings thereon,shall vest in accordance with the same vesting schedule as is utilized in the401(k) plan for Company matching contributions to that plan.  Company Contributions described in Section 5.2,above, and the Earnings thereon, shall vest in accordance with the vestingschedule(s) established by the Committee at the time that the CompanyContribution is made.  The foregoingprovisions concerning vesting of Company Contributions notwithstanding, andsubject to the requirements of Treasury Department regulations promulgatedunder Code Section 409A, all Company Contributions shall become 100%vested upon the occurrence of the earliest of: (i) the death of theParticipant; (ii) the disability of the Participant, (iii) Participant’sattaining age sixty-five (65) or age fifty-five (55) with five (5) yearsof service with an Employer, (iv) a Change in Control, or (v) a “Changeof Control”, as defined in the Company’s 2005 Stock Incentive Plan.  The Company may, at any time, in its solediscretion, increase a Participant’s vested interest in a Company Contribution.  The portion of a Participant’s 

 

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Accounts thatremains unvested upon his or her Separation from Service after the applicationof the terms of this Section 5.3 shall be forfeited.

 

**ARTICLE VI**

** **

*Benefits*

* *

6.1           Benefits, Generally.A Participant shall be entitled to the following benefits under the Plan:

 

(a)           *RetirementBenefit.* Upon the Participant’s Separation from Service due toRetirement, he or she shall be entitled to a Retirement Benefit. The RetirementBenefit shall be equal to the vested portion of the Retirement/TerminationAccount and the vested portion of any Specified Date Accounts that are not yetin pay status. 

The RetirementBenefit shall be valued as of the end of the sixth month after the month inwhich Separation from Service occurs. Payment of the Retirement Benefit will bemade or begin on the first day of the seventh month following the month inwhich Separation from Service occurs.

 

(b)           *TerminationBenefit.* Upon the Participant’s Separation from Service for reasonsother than death or Retirement, he or she shall be entitled to a TerminationBenefit. The Termination Benefit shall be equal to the vested portion of theRetirement/Termination Account and the vested portion of any unpaid balances inany Specified Date Accounts. 

TheTermination Benefit shall be valued as of the end of the sixth month after themonth in which Separation from Service occurs. Payment of the TerminationBenefit will be made or begin on the first day of the seventh month followingthe month in which Separation from Service occurs.

 

(c)           *SpecifiedDate Benefit.* If the Participant has established one or moreSpecified Date Accounts, he or she shall be entitled to a Specified DateBenefit with respect to each such Specified Date Account. The Specified DateBenefit shall be equal to the vested portion of the Specified Date Account,based on the value of that Account as of the end of the month designated by theParticipant at the time the Account was established. Payment of the SpecifiedDate Benefit will be made or begin on the first day of the month following thedesignated month.

 

(d)           *DeathBenefit.* In the event of the Participant’s death, his or herdesignated Beneficiary(ies) shall be entitled to a Death Benefit. The DeathBenefit shall be equal to the vested portion of the Retirement/TerminationAccount and the vested portion of any unpaid balances in any Specified DateAccounts. The Death Benefit shall be based on the value of the Accounts as ofthe end of the month in 

 

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which deathoccurred, with payment made on the first day of the following month.

 

(e)           *UnforeseeableEmergency Payments.* A Participant who experiences an UnforeseeableEmergency may submit a written request to the Committee to receive payment ofall or any portion of his or her vested Accounts. Whether a Participant orBeneficiary is faced with an Unforeseeable Emergency permitting an emergencypayment shall be determined by the Committee based on the relevant facts andcircumstances of each case, but, in any case, a distribution on account ofUnforeseeable Emergency may not be made to the extent that such emergency is ormay be reimbursed through insurance or otherwise, by liquidation of theParticipant’s assets, to the extent the liquidation of such assets would notcause severe financial hardship, or by cessation of Deferrals under this Plan.If an emergency payment is approved by the Committee, the amount of the paymentshall not exceed the amount reasonably necessary to satisfy the need, takinginto account the additional compensation that is available to the Participantas the result of cancellation of deferrals to the Plan, including amountsnecessary to pay any taxes or penalties that the Participant reasonablyanticipates will result from the payment. The amount of the emergency paymentshall be subtracted first from the vested portion of the Participant’sRetirement/Termination Account until depleted and then from the vestedSpecified Date Accounts, beginning with the Specified Date Account with thelatest payment commencement date. Emergency payments shall be paid in a singlelump sum within the 90-day period following the date the payment is approved bythe Committee.

 

6.2           Form ofPayment.

 

(a)           *RetirementBenefit.* A Participant who is entitled to receive a RetirementBenefit shall receive payment of such benefit in a single lump sum, unless theParticipant elects on his or her initial Compensation Deferral Agreement tohave such benefit paid in one of the following alternative forms of payment (i) substantiallyequal annual installments over a period of two to fifteen years, as elected bythe Participant; or (ii) a lump sum payment of a percentage of the balancein the Retirement/Termination Account, with the balance paid in substantiallyequal annual installments over a period of two to fifteen years, as elected bythe Participant.

 

(b)           *TerminationBenefit.* A Participant who is entitled to receive a TerminationBenefit shall receive payment of such benefit in a single lump sum.

 

(c)           *SpecifiedDate Benefit.* The Specified Date Benefit shall be paid in a singlelump sum, unless the Participant elects on the Compensation Deferral Agreementwith which the account was established to have the Specified Date Account paidin substantially equal annual installments over a period of two to five years,as elected by the Participant.

 

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Notwithstandingthe foregoing, unpaid vested Specified Date Accounts will be payable in asingle lump sum under Section 6.2(b) upon a Participant’s Separationfrom Service prior to Retirement.

Notwithstandingany provision of this Plan to the contrary, a Specified Date Account notincluded as a part of the Retirement Benefit will be payable in a single lumpsum upon a Participant’s Separation from Service if the applicable RetirementBenefit is payable in a lump sum.

 

(d)           *DeathBenefit.* A designated Beneficiary who is entitled to receive a DeathBenefit shall receive payment of such benefit in a single lump sum.

 

(e)           *Change inControl.* A Participant will receive his or her Retirement orTermination Benefit in a single lump sum upon a Separation from Service within24 months following a Change in Control. In addition to the foregoing, upon aChange in Control, a Participant who has incurred a Separation from Serviceprior to the Change in Control will receive the balance of all unpaid Accountsin a single lump sum.  Accounts will bevalued as of the last day of the month following the Change in Control and willbe paid within 90 days of said Change in Control or, if later, the date forpayment of such Participant’s Retirement or Termination Benefit.

 

(f)            *SmallAccount Balances.* The Committee may, in its sole discretion whichshall be evidenced in writing no later than the date of payment, elect to paythe value of the Participant’s Accounts upon a Separation from Service in asingle lump sum if the balance of such Accounts is not greater than theapplicable dollar amount under Code Section 402(g)(1)(B), provided the paymentrepresents the complete liquidation of the Participant’s interest in the Plan.

 

(g)           *Rules Applicableto Installment Payments.* If a Payment Schedule specifies installmentpayments, annual payments will be made beginning as of the payment commencementdate for such installments and shall continue on each anniversary thereof untilthe number of installment payments specified in the Payment Schedule has beenpaid. The amount of each installment payment shall be determined by dividing (a) by(b), where (a) equals the Account Balance as of the Valuation Date and (b) equalsthe remaining number of installment payments.

 

For purposesof Article VII, installment payments will be treated as a single form ofpayment. If a lump sum equal to less than 100% of the Retirement/TerminationAccount is paid, the payment commencement date for the installment form ofpayment will be the first anniversary of the payment of the lump sum.

 

6.3           Acceleration of orDelay in Payments. The Committee, in its sole and absolute discretion, mayelect to accelerate the time or form of payment of a benefit owed to theParticipant hereunder, provided such acceleration is permitted under Treas.Reg. Section 1.409A-3(j)(4).

 

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The Committeemay also, in its sole and absolute discretion, delay the time for payment of abenefit owed to the Participant hereunder, to the extent permitted under Treas.Reg. Section 1.409A-2(b)(7). If the Plan receives a domestic relationsorder (within the meaning of Code Section 414(p)(1)(B)) directing that allor a portion of a Participant’s Accounts be paid to an “alternate payee,” anyamounts to be paid to the alternate payee(s) shall be paid in a singlelump sum.

 

**ARTICLE VII**

** **

*Modificationsto Payment Schedules*

* *

7.1           Participant’s Rightto Modify.  A Participant may modifyany or all of the alternative Payment Schedules with respect to an Account,consistent with the permissible Payment Schedules available under the Plan,provided such modification complies with the requirements of this Article VII.

 

7.2           Time of Election.The date on which a modification election is submitted to the Committee must beat least twelve months prior to the date on which payment is scheduled tocommence under the Payment Schedule in effect prior to the modification.

 

7.3           Date of Paymentunder Modified Payment Schedule. Except with respect to modifications thatrelate to the payment of a Death Benefit, the date payments are to commenceunder the modified Payment Schedule must be no earlier than five years afterthe date payment would have commenced under the original Payment Schedule.Under no circumstances may a modification election result in an acceleration ofpayments in violation of Code Section 409A.

7.4           Effective Date.A modification election submitted in accordance with this Article VII isirrevocable upon receipt by the Committee and becomes effective twelve monthsafter such date.

 

7.5           Effect on Accounts.An election to modify a Payment Schedule is specific to the Account or paymentevent to which it applies, and shall not be construed to affect the PaymentSchedules of any other Accounts.

 

**ARTICLE VIII**

** **

*Valuationof Account Balances; Investments*

* *

8.1           Valuation.Deferrals shall be credited to appropriate Accounts on the date suchCompensation would have been paid to the Participant absent the CompensationDeferral Agreement. Company Contributions shall be credited to theRetirement/Termination Account at the times determined by the Committee. Valuationof Accounts shall be performed under procedures approved by the Committee.

 

8.2           Earnings Credit.Each Account will be credited with Earnings on each Business Day, based uponthe Participant’s investment allocation among a menu of investment options 

 

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selected inadvance by the Committee, in accordance with the provisions of this Article VIII(“investment allocation”).

 

8.3           Investment Options.Investment options will be determined by the Committee. The Committee, in itssole discretion, shall be permitted to add or remove investment options fromthe Plan menu from time to time, provided that any such additions or removalsof investment options shall not be effective with respect to any period priorto the effective date of such change.

 

8.4           InvestmentAllocations. A Participant’s investment allocation constitutes a deemed,not actual, investment among the investment options comprising the investmentmenu. At no time shall a Participant have any real or beneficial ownership inany investment option included in the investment menu, nor shall theParticipating Employer or any trustee acting on its behalf have any obligationto purchase actual securities as a result of a Participant’s investmentallocation. A Participant’s investment allocation shall be used solely forpurposes of adjusting the value of a Participant’s Account Balances.

A Participantshall specify an investment allocation for each of his Accounts in accordancewith procedures established by the Committee. Allocation among the investment options must be designated in incrementsof 1%. The Participant’s investment allocation will become effective on thesame Business Day or, in the case of investment allocations received after atime specified by the Committee, the next Business Day.

 

A Participantmay change an investment allocation on any Business Day, both with respect tofuture credits to the Plan and with respect to existing Account Balances, inaccordance with procedures adopted by the Committee. Changes shall becomeeffective on the same Business Day or, in the case of investment allocationsreceived after a time specified by the Committee, the next Business Day, andshall be applied prospectively.

 

8.5           UnallocatedDeferrals and Accounts. If the Participant fails to make an investmentallocation with respect to an Account, such Account shall be invested in aninvestment option, the primary objective of which is the preservation ofcapital, as determined by the Committee.

 

8.6           Company Stock. TheCommittee may include Company Stock as one of the investment options describedin Section 8.3. The Committee may, in its sole discretion, limit theinvestment allocation of Company Contributions to Company Stock. The Committeemay also require Deferrals consisting of equity-based Compensation to beallocated to Company Stock.

 

8.7           Diversification.A Participant may not re-allocate an investment in Company Stock into anotherinvestment option. The portion of an Account that is invested in Company Stockwill be paid under Article VI in the form of whole shares of CompanyStock.

 

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8.8           Effecton Installment Payments. If an Account is to be paid in installments, theCommittee will determine the portion of each payment that will be paid in theform of Company Stock.

 

8.9           DividendEquivalents. Dividend equivalents with respect to Company Stock will becredited to the applicable Accounts in the form of additional shares or unitsof Company Stock.

 

**ARTICLE IX**

** **

*Administration*

* *

9.1           Plan Administration.This Plan shall be administered by the Committee which shall have discretionaryauthority to make, amend, interpret and enforce all appropriate rules andregulations for the administration of this Plan and to utilize its discretionto decide or resolve any and all questions, including but not limited toeligibility for benefits and interpretations of this Plan and its terms, as mayarise in connection with the Plan. Claims for benefits shall be filed with theCommittee and resolved in accordance with the claims procedures in Article XII.

 

9.2           Administration UponChange in Control. Upon a Change in Control, the Committee, as constitutedimmediately prior to such Change in Control, shall continue to act as theCommittee. The individual who was the Chief Executive Officer of the Company(or if such person is unable or unwilling to act, the next highest rankingofficer) prior to the Change in Control shall have the authority (but shall notbe obligated) to appoint an independent third party to act as the Committee.

 

Upon suchChange in Control, the Company may not remove the Committee, unless 2/3rds ofthe members of the Board of Directors of the Company and a majority ofParticipants and Beneficiaries with Account Balances consent to the removal andreplacement Committee. Notwithstanding the foregoing, neither the Committee northe officer described above shall have authority to direct investment of trustassets under any rabbi trust described in Section 11.2.

 

TheParticipating Employer shall, with respect to the Committee identified underthis Section, (i) pay all reasonable expenses and fees of the Committee, (ii) indemnifythe Committee (including individuals serving as Committee members) against anycosts, expenses and liabilities including, without limitation, attorneys’ feesand expenses arising in connection with the performance of the Committeehereunder, except with respect to matters resulting from the Committee’s grossnegligence or willful misconduct and (iii) supply full and timelyinformation to the Committee on all matters related to the Plan, any rabbitrust, Participants, Beneficiaries and Accounts as the Committee may reasonablyrequire.

 

9.3           Withholding. TheParticipating Employer shall have the right to withhold from any payment dueunder the Plan (or with respect to any amounts credited to the Plan) any 

 

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taxes required by law to be withheld inrespect of such payment (or credit). Withholdings with respect to amountscredited to the Plan shall be deducted from Compensation that has not beendeferred to the Plan.

 

9.4           Indemnification.The Participating Employers shall indemnify and hold harmless each employee,officer, director, agent or organization, to whom or to which are delegatedduties, responsibilities, and authority under the Plan or otherwise withrespect to administration of the Plan, including, without limitation, theCommittee and its agents, against all claims, liabilities, fines and penalties,and all expenses reasonably incurred by or imposed upon him or it (includingbut not limited to reasonable attorney fees) which arise as a result of his orits actions or failure to act in connection with the operation andadministration of the Plan to the extent lawfully allowable and to the extentthat such claim, liability, fine, penalty, or expense is not paid for byliability insurance purchased or paid for by the Participating Employer.Notwithstanding the foregoing, the Participating Employer shall not indemnifyany person or organization if his or its actions or failure to act are due togross negligence or willful misconduct or for any such amount incurred throughany settlement or compromise of any action unless the Participating Employerconsents in writing to such settlement or compromise.

 

9.5           Delegation ofAuthority. In the administration of this Plan, the Committee may, from timeto time, employ agents and delegate to them such administrative duties as itsees fit, and may from time to time consult with legal counsel who shall belegal counsel to the Company.

 

9.6           Binding Decisions orActions. The decision or action of the Committee in respect of any questionarising out of or in connection with the administration, interpretation andapplication of the Plan and the rules and regulations thereunder shall befinal and conclusive and binding upon all persons having any interest in thePlan.

 

**ARTICLE X**

** **

*Amendmentand Termination*

* *

10.1         Amendment andTermination. The Company may at any time and from time to time amend thePlan or may terminate the Plan as provided in this Article X. EachParticipating Employer may also terminate its participation in the Plan.

10.2         Amendments. TheCompany, by action taken by its Board of Directors, may amend the Plan at anytime and for any reason, provided that any such amendment shall not reduce thevested Account Balances of any Participant accrued as of the date of any suchamendment or restatement (as if the Participant had incurred a voluntarySeparation from Service on such date) or reduce any rights of a Participantunder the Plan or other Plan features with respect to Deferrals made prior tothe date of any such amendment or restatement without the consent of theParticipant. The Board of Directors of the Company may delegate to theCommittee the authority to amend the Plan without the consent of the Board ofDirectors for the purpose of (i) conforming the Plan to the 

 

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requirementsof law, (ii) facilitating the administration of the Plan, (iii) clarifyingprovisions based on the Committee’s interpretation of the document and (iv) makingsuch other amendments as the Board of Directors may authorize.

10.3         Termination. TheCompany, by action taken by its Board of Directors, may terminate the Plan andpay Participants and Beneficiaries their Account Balances in a single lump sumat any time, to the extent and in accordance with Treas. Reg. Section 1.409A-3(j)(4)(ix).If a Participating Employer terminates its participation in the Plan, thebenefits of affected Employees shall be paid at the time provided in Article VI.

 

10.4         Accounts Taxable UnderCode Section 409A. The Plan is intended to constitute a plan ofdeferred compensation that meets the requirements for deferral of incometaxation under Code Section 409A. The Committee, pursuant to its authorityto interpret the Plan, may sever from the Plan or any Compensation DeferralAgreement any provision or exercise of a right that otherwise would result in aviolation of Code Section 409A.

 

**ARTICLE XI**

** **

*InformalFunding*

* *

11.1         General Assets.Obligations established under the terms of the Plan may be satisfied from thegeneral funds of the Participating Employers, or a trust described in this Article XI.No Participant, spouse or Beneficiary shall have any right, title or interestwhatever in assets of the Participating Employers. Nothing contained in thisPlan, and no action taken pursuant to its provisions, shall create or beconstrued to create a trust of any kind, or a fiduciary relationship, betweenthe Participating Employers and any Employee, spouse, or Beneficiary. To theextent that any person acquires a right to receive payments hereunder, suchrights are no greater than the right of an unsecured general creditor of theParticipating Employer.

 

11.2         Rabbi Trust. AParticipating Employer may, in its sole discretion, establish a grantor trust,commonly known as a rabbi trust, as a vehicle for accumulating assets to paybenefits under the Plan. Payments under the Plan may be paid from the generalassets of the Participating Employer or from the assets of any such rabbitrust. Payment from any such source shall reduce the obligation owed to theParticipant or Beneficiary under the Plan.

 

**ARTICLE XII**

** **

*Claims*

* *

12.1         Filing a Claim.Any controversy or claim arising out of or relating to the Plan shall be filedin writing with the Committee which shall make all determinations concerningsuch claim. Any claim filed with the Committee and any decision by theCommittee denying such claim shall be in writing and shall be delivered to theParticipant or Beneficiary filing the claim (the “Claimant”).

 

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(a)           *In General.*Notice of a denial of benefits will be provided within ninety (90) days of theCommittee’s receipt of the Claimant’s claim for benefits. If the Committeedetermines that it needs additional time to review the claim, the Committeewill provide the Claimant with a notice of the extension before the end of theinitial ninety (90) day period. The extension will not be more than ninety (90)days from the end of the initial ninety (90) day period and the notice ofextension will explain the special circumstances that require the extension andthe date by which the Committee expects to make a decision.

 

(b)           *Contents ofNotice.* If a claim for benefits is completely or partially denied,notice of such denial shall be in writing and shall set forth the reasons fordenial in plain language. The notice shall (i) cite the pertinentprovisions of the Plan document and (ii) explain, where appropriate, howthe Claimant can perfect the claim, including a description of any additionalmaterial or information necessary to complete the claim and why such materialor information is necessary. The claim denial also shall include an explanationof the claims review procedures and the time limits applicabletosuchprocedures,includingastatementoftheClaimant’srighttobringacivilactionunder Section 502(a) of ERISA followingan adverse decision on review.

 

12.2         Appeal of DeniedClaims. A Claimant whose claim has been completely or partially deniedshall be entitled to appeal the claim denial by filing a written appeal with acommittee designated to hear such appeals (the “Appeals Committee”). A Claimantwho timely requests a review of the denied claim (or his or her authorizedrepresentative) may review, upon request and free of charge, copies of alldocuments, records and other information relevant to the denial and may submitwritten comments, documents, records and other information relevant to theclaim to the Appeals Committee. All written comments, documents, records, andother information shall be considered “relevant” if the information (i) wasrelied upon in making a benefits determination,(ii) was submitted,considered or generated in the course of making a benefits decision regardlessof whether it was relied upon to make the decision, or (iii) demonstratescompliance with administrative processes and safeguards established for makingbenefit decisions. The Appeals Committee may, in its sole discretion and if itdeems appropriate or necessary, decide to hold a hearing with respect to theclaim appeal.

 

(a)           *In General.*Appeal of a denied benefits claim must be filed in writing with the AppealsCommittee no later than sixty (60) days after receipt of the writtennotification of such claim denial. The Appeals Committee shall make itsdecision regarding the merits of the denied claim within sixty (60) daysfollowing receipt of the appeal (or within one hundred and twenty (120) daysafter such receipt, in a case where there are special circumstances requiringextension of time for reviewing the appealed claim). If an extension of timefor reviewing the appeal is required because of special circumstances, writtennotice of the extension shall be furnished to the Claimant prior to thecommencement of the extension. The notice will indicate the special circumstancesrequiring the extension of time and the date by which the Appeals Committeeexpects to render the determination on 

 

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review. Thereview will take into account comments, documents, records and otherinformation submitted by the Claimant relating to the claim without regard towhether such information was submitted or considered in the initial benefitdetermination.

 

(b)           *Contents ofNotice.* If a benefits claim is completely or partially denied on review,notice of such denial shall be in writing and shall set forth the reasons fordenial in plain language.

 

The decisionon review shall set forth (i) the specific reason or reasons for thedenial, (ii) specific references to the pertinent Plan provisions on whichthe denial is based, (iii) a statement that the Claimant is entitled toreceive, upon request and free of charge, reasonable access to and copies ofall documents, records, or other information relevant (as defined above) to theClaimant’s claim, and (iv) a statement describing any voluntary appealprocedures offered by the plan and a statement of the Claimant’s right to bringan action under Section 502(a) of ERISA.

 

12.3         Claims Appeals UponChange in Control. Upon a Change in Control, the Appeals Committee, asconstituted immediately prior to such Change in Control, shall continue to actas the Appeals Committee. Upon such Change in Control, the Company may notremove any member of the Appeals Committee, but may replace resigning membersif 2/3rds of the members of the Board of Directors of the Company and amajority of Participants and Beneficiaries with Account Balances consent to thereplacement.

 

The AppealsCommittee shall have the exclusive authority at the appeals stage to interpretthe terms of the Plan and resolve appeals under the Claims Procedure.

 

EachParticipating Employer shall, with respect to the Committee identified underthis Section, (i) pay its proportionate share of all reasonable expensesand fees of the Appeals Committee, (ii) indemnify the Appeals Committee(including individual committee members) against any costs, expenses andliabilities including, without limitation, attorneys’ fees and expenses arisingin connection with the performance of the Appeals Committee hereunder, exceptwith respect to matters resulting from the Appeals Committee’s gross negligenceor willful misconduct and (iii) supply full and timely information to theAppeals Committee on all matters related to the Plan, any rabbi trust,Participants, Beneficiaries and Accounts as the Appeals Committee mayreasonably require.

 

12.4         Legal Action. AClaimant may not bring any legal action, including commencement of anyarbitration, relating to a claim for benefits under the Plan unless and untilthe Claimant has followed the claims procedures under the Plan and exhaustedhis or her administrative remedies under such claims procedures.

 

If aParticipant or Beneficiary prevails in a legal proceeding brought under thePlan to enforce the rights of such Participant or any other similarly situatedParticipant or 

 

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Beneficiary,in whole or in part, the Participating Employer shall reimburse suchParticipant or Beneficiary for all legal costs, expenses, attorneys’ fees andsuch other liabilities incurred as a result of such proceedings. If the legalproceeding is brought in connection with a Change in Control, or a “change incontrol” as defined in a rabbi trust described in Section 11.2, theParticipant or Beneficiary may file a claim directly with the trustee forreimbursement of such costs, expenses and fees. For purposes of the precedingsentence, the amount of the claim shall be treated as if it were an addition tothe Participant’s or Beneficiary’s Account Balance and will be included indetermining the Participating Employer’s trust funding obligation under Section 11.2.

 

12.5         Discretion of AppealsCommittee. All interpretations, determinations and decisions of the AppealsCommittee with respect to any claim shall be made in its sole discretion, andshall be final and conclusive.

 

12.6         Arbitration.

 

(a)           *Prior toChange in Control.* If, prior to a Change in Control, any claim orcontroversy between a Participating Employer and a Participant or Beneficiaryis not resolved through the claims procedure set forth in Article XII,such claim shall be submitted to and resolved exclusively by expedited bindingarbitration by a single arbitrator. Arbitration shall be conducted in accordance with the followingprocedures:

 

Thecomplaining party shall promptly send written notice to the other partyidentifying the matter in dispute and the proposed remedy. Following the givingof such notice, the parties shall meet and attempt in good faith to resolve thematter. In the event the parties are unable to resolve the matter within twentyone (21) days, the parties shall meet and attempt in good faith to select asingle arbitrator acceptable to both parties. If a single arbitrator is notselected by mutual consent within ten (10) Business Days following thegiving of the written notice of dispute, an arbitrator shall be selected from alist of nine persons each of whom shall be an attorney who is either engaged inthe active practice of law or recognized arbitrator and who, in either event,is experienced in serving as an arbitrator in disputes between employers andemployees, which list shall be provided by the main office of either JAMS, theAmerican Arbitration Association (“AAA”) or the Federal Mediation andConciliation Service. If, within three Business Days of the parties’ receipt ofsuch list, the parties are unable to agree on an arbitrator from the list, thenthe parties shall each strike names alternatively from the list, with the firstto strike being determined by the flip of a coin. After each party has had fourstrikes, the remaining name on the list shall be the arbitrator. If such personis unable to serve for any reason, the parties shall repeat this process untilan arbitrator is selected.

 

Unless theparties agree otherwise, within sixty (60) days of the selection of thearbitrator, a hearing shall be conducted before such arbitrator at a time and aplace agreed upon by the parties. In the event the parties are unable to agreeupon the 

 

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time or placeof the arbitration, the time and place shall be designated by the arbitratorafter consultation with the parties. Within thirty (30) days of the conclusionof the arbitration hearing, the arbitrator shall issue an award, accompanied bya written decision explaining the basis for the arbitrator’s award.

 

In anyarbitration hereunder, the Participating Employer shall pay all administrativefees of the arbitration and all fees of the arbitrator, except that theParticipant or Beneficiary may, if he/she/it wishes, pay up to one-half ofthose amounts. Each party shall pay its own attorneys’ fees, costs, andexpenses, unless the arbitrator orders otherwise. The prevailing party in sucharbitration, as determined by the arbitrator, and in any enforcement or othercourt proceedings, shall be entitled, to the extent permitted by law, toreimbursement from the other party for all of the prevailing party’s costs(including but not limited to the arbitrator’s compensation), expenses, andattorneys’ fees. The arbitrator shall have no authority to add to or to modifythis Plan, shall apply all applicable law, and shall have no lesser and nogreater remedial authority than would a court of law resolving the same claimor controversy. The arbitrator shall have no authority to add to or to modifythis Plan, shall apply all applicable law, and shall have no lesser and nogreater remedial authority than would a court of law resolving the same claimor controversy. The arbitrator shall, upon an appropriate motion, dismiss anyclaim without an evidentiary hearing if the party bringing the motionestablishes that it would be entitled to summary judgment if the matter hadbeen pursued in court litigation.

 

The partiesshall be entitled to discovery as follows: Each party may take no more thanthree depositions. The Participating Employer may depose the Participant orBeneficiary plus two other witnesses, and the Participant or Beneficiary maydepose the Participating Employer, pursuant to Rule 30(b)(6) of theFederal Rules of Civil Procedure, plus two other witnesses. Each party maymake such reasonable document discovery requests as are allowed in thediscretion of the arbitrator.

 

The decisionof the arbitrator shall be final, binding, and non-appealable, and may beenforced as a final judgment in any court of competent jurisdiction.

 

Thisarbitration provision of the Plan shall extend to claims against any parent,subsidiary, or affiliate of each party, and, when acting within such capacity,any officer, director, shareholder, Participant, Beneficiary, or agent of anyparty, or of any of the above, and shall apply as well to claims arising out ofstate and federal statutes and local ordinances as well as to claims arisingunder the common law or under this Plan.

 

Notwithstandingthe foregoing, and unless otherwise agreed between the parties, either partymay apply to a court for provisional relief, including a temporary restrainingorder or preliminary injunction, on the ground that the arbitration 

 

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award to whichthe applicant may be entitled may be rendered ineffectual without provisionalrelief.

 

Anyarbitration hereunder shall be conducted in accordance with the FederalArbitration Act: provided, however, that, in the event of any inconsistencybetween the rules and procedures of the Act and the terms of this Plan,the terms of this Plan shall prevail.

 

If any of theprovisions of this Section 12.6(a) are determined to be unlawful orotherwise unenforceable, in the whole part, such determination shall not affectthe validity of the remainder of this section and this section shall bereformed to the extent necessary to carry out its provisions to the greatestextent possible and to insure that the resolution of all conflicts between theparties, including those arising out of statutory claims, shall be resolved byneutral, binding arbitration. If a court should find that the provisions ofthis Section 12.6(a) are not absolutely binding, then the partiesintend any arbitration decision and award to be fully admissible in evidence inany subsequent action, given great weight by any finder of fact and treated asdeterminative to the maximum extent permitted by law.

 

The parties donot agree to arbitrate any putative class action or any other representativeaction. The parties agree to arbitrate only the claims(s) of a singleParticipant or Beneficiary.

 

(b)           *Upon Changein Control.* If, upon the occurrence of a Change in Control, anydispute, controversy or claim arises between a Participant or Beneficiary andthe Participating Employer out of or relating to or concerning the provisionsof the Plan, such dispute, controversy or claim shall be finally settled by acourt of competent jurisdiction which, notwithstanding any other provision ofthe Plan, shall apply a de novo standard of review to any determination made bythe Company or its Board of Directors, a Participating Employer, the Committee,or the Appeals Committee.

 

**ARTICLE XIII**

 

*GeneralProvisions*

 

13.1         Assignment. Nointerest of any Participant, spouse or Beneficiary under this Plan and nobenefit payable hereunder shall be assigned as security for a loan, and anysuch purported assignment shall be null, void and of no effect, nor shall anysuch interest or any such benefit be subject in any manner, either voluntarilyor involuntarily, to anticipation, sale, transfer, assignment or encumbrance byor through any Participant, spouse or Beneficiary. Notwithstanding anything tothe contrary herein, however, the Committee has the discretion to make paymentsto an alternate payee in accordance with the terms of a domestic relationsorder (as defined in Code Section 414(p)(1)(B)).

 

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The Companymay assign any or all of its liabilities under this Plan in connection with anyorganizational restructuring, recapitalization, sale of assets (including asale with respect to which an agreement under Treas. Reg. Section 1.409A-1(h)(4)has been entered into) or other similar transaction affecting a ParticipatingEmployer without the consent of the Participants.

 

13.2         No Legal or EquitableRights or Interest. No Participant or other person shall have any legal orequitable rights or interest in this Plan that are not expressly granted inthis Plan. Participation in this Plan does not give any person any right to beretained in the service of the Participating Employer. The right and power of aParticipating Employer to dismiss or discharge an Employee is expresslyreserved. The Participating Employers make no representations or warranties asto the tax consequences to a Participant or a Participant’s beneficiariesresulting from a deferral of income pursuant to the Plan.

 

13.3         No EmploymentContract. Nothing contained herein shall be construed to constitute acontract of employment between an Employee and a Participating Employer.

 

13.4         Notice. Any noticeor filing required or permitted to be delivered to the Committee under thisPlan shall be delivered in writing, in person, or through such electronic meansas is established by the Committee. Notice shall be deemed given as of the dateof delivery or, if delivery is made by mail, as of the date shown on thepostmark on the receipt for registration or certification. Written transmissionshall be sent by certified mail to:

 

**GUARANTYBANCORP**

**ATTN:DIRECTOR OF HUMAN RESOURCES**

**1331 17THSTREET, SUITE 300**

**DENVER, CO80202**

 

Any notice orfiling required or permitted to be given to a Participant under this Plan shallbe sufficient if in writing or hand-delivered, or sent by mail to the lastknown address of the Participant.

 

13.5         Headings. Theheadings of Sections are included solely for convenience of reference, and ifthere is any conflict between such headings and the text of this Plan, the textshall control.

 

13.6         Invalid orUnenforceable Provisions. If any provision of this Plan shall be heldinvalid or unenforceable, such invalidity or unenforceability shall not affectany other provisions hereof and the Committee may elect in its sole discretionto construe such invalid or unenforceable provisions in a manner that conformsto applicable law or as if such provisions, to the extent invalid orunenforceable, had not been included.

 

13.7         Lost Participants orBeneficiaries. Any Participant or Beneficiary who is entitled to a benefitfrom the Plan has the duty to keep the Committee advised of his or her currentmailing address. If benefit payments are returned to the Plan or are notpresented for payment after a reasonable amount of time, the Committee shallpresume that the payee 

 

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is missing.The Committee, after making such efforts as in its discretion it deemsreasonable and appropriate to locate the payee, shall stop payment on any uncashedchecks and may discontinue making future payments until contact with the payeeis restored.

 

13.8         Facility of Payment toa Minor.  If a distribution is to bemade to a minor, or to a person who is otherwise incompetent, then theCommittee may, in its discretion, make such distribution (i) to the legalguardian, or if none, to a parent of a minor payee with whom the payeemaintains his or her residence, or (ii) to the conservator or committeeor, if none, to the person having custody of an incompetent payee. Any suchdistribution shall fully discharge the Committee, the Company, and the Planfrom further liability on account thereof.

 

13.9         Governing Law. Tothe extent not preempted by ERISA, the laws of the State of New York shallgovern the construction and administration of the Plan.

 

**IN WITNESSWHEREOF, the undersigned executed this Plan as of the 4th day ofAugust, 2008, to be effective as of the Effective Date.**

 

**GuarantyBancorp (f/k/a Centennial Bank Holdings, Inc.)**

 

 
| By:    | /s/ Zsolt K.  Besskó                  |   |
|--------|--------------------------------------------|--------|
|   | Zsolt K.  Besskó                      |
|   | EVP, General  Counsel & Secretary |

 

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