Exhibit 10.2


 


GUARANTY BANCORP


DEFERRED COMPENSATION PLAN


 


Amended and Restated, Effective January 1, 2009


 

















 


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

  



 

















 


ARTICLE
I


 


Establishment and Purpose


 


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


 


The purpose of the Plan is to attract and retain key employees or
Directors by providing each Participant with an opportunity to defer receipt of
a portion of their salary, bonus, and other specified compensation. The Plan is
not intended to meet the qualification requirements of Code Section 401(a),
but is intended to meet the requirements of Code Section 409A, and shall
be operated and interpreted consistent with that intent.


 


The Plan constitutes an unsecured promise by a Participating Employer
to pay benefits in the future. Participants in the Plan shall have the status
of general unsecured creditors of the Company or the Adopting Employer, as
applicable. Each Participating Employer shall be solely responsible for payment
of the benefits of its employees and their beneficiaries. The Plan is unfunded
for Federal tax purposes and is intended to be an unfunded arrangement for
eligible employees who are part of a select group of management or highly
compensated 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 the
liabilities assumed by the Company or an Adopting Employer will remain the
general assets of the Company or the Adopting Employer and shall remain subject
to the claims of the Company’s or the Adopting Employer’s creditors until such
amounts are distributed to the Participants.


 


ARTICLE
II


 


Definitions


 


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


 


2.2                                Account
Balance. Account Balance means, with respect to any Account, the total
payment obligation owed to a Participant from such Account as of the most
recent Valuation Date.


 


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


 


2.4                                Affiliate.
Affiliate means a corporation, trade or business that, together with the
Company, 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 a
Participant to receive payments to which a Beneficiary is entitled in
accordance 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 properly
designate a Beneficiary, or (ii) all designated Beneficiaries have
predeceased the Participant.


 


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


 


2.6                                Business
Day. A Business Day is each day
on which the New York Stock Exchange is open for business.


 


2.7                                Change
in 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 the
Participating Employer; (ii) a change in the effective control of the
Participating Employer; (iii) a change in the ownership of a substantial
portion of the assets of the Participating Employer.


 


For purposes of this Section, a change in the
ownership of the Participating Employer occurs on the date on which any one
person, or more than one person acting as a group, acquires ownership of stock
of the Participating Employer that, together with stock held by such person or
group constitutes more than 50% of the total fair market value or total voting
power of the stock of the Participating Employer. A change in the effective
control of the Participating Employer occurs on the date on which either (i) a
person, or more than one person acting as a group, acquires ownership of stock
of the Participating Employer possessing 30% or more of the total voting power
of the stock of the Participating Employer, taking into account all such stock
acquired during the twelve-month period ending on the date of the most recent
acquisition, or (ii) a majority of the members of the Participating
Employer’s Board of Directors is replaced during any twelve-month period by
directors whose appointment or election is not endorsed by a majority of the
members of such Board of Directors prior to the date of the appointment or
election, but only if no other corporation is a majority shareholder of the
Participating Employer. A change in the ownership of a substantial portion of
assets occurs on the date on which any one person, or more than one person
acting as a group, other than a person or group of persons that is related to
the Participating Employer, acquires assets from the Participating Employer
that have a total gross fair market value equal to or more than 40% of the total
gross fair market value of all of the assets of the Participating Employer
immediately prior to such acquisition or acquisitions, taking into account all
such assets acquired during the twelve-month period ending on the date of the
most recent acquisition.


 


An event constitutes a Change in Control with
respect to a Participant only if the Participant performs services for the
Participating Employer that has experienced the 


 


4

















 


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


 


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


 


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


 


2.9           Code. Code means
the 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 and
other guidance issued by the Treasury Department and Internal Revenue Service
thereunder.


 


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


 


2.12         Company. Company
means Guaranty Bancorp.


 


2.13         Company Contribution.
Company Contribution means a credit by a Participating Employer to a
Participant’s Account(s) in accordance with the provisions of Article V
of the Plan. Company Contributions are credited at the sole discretion of the
Participating Employer and the fact that a Company Contribution is credited in
one year shall not obligate the Participating Employer to continue to make such
Company Contribution in subsequent years. Unless the context clearly indicates
otherwise, a reference to Company Contribution shall include Earnings
attributable 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, Directors
fees, and such other cash or equity-based compensation (if any) approved by the
Committee as Compensation that may be deferred under this Plan. Compensation
shall not include any compensation that has been previously deferred under this
Plan or any other arrangement subject to Code Section 409A.


 


2.16         Compensation Deferral
Agreement. Compensation Deferral Agreement means an agreement between a
Participant and a Participating Employer that specifies (i) the amount of
each component of Compensation that the Participant has elected to defer to the
Plan in accordance with the provisions of Article IV, and (ii) the
Payment Schedule applicable to one or more Accounts. The Committee may permit
different deferral amounts for each component of Compensation and may establish
a minimum or maximum deferral amount for each such component. Unless otherwise
specified by the Committee in the Compensation Deferral Agreement, Participants
may defer up to 80% of their base salary and up to 100% of other types of
Compensation for a Plan Year. A 


 


5

















 


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


 


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


 


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


 


Deferrals shall be calculated with respect to
the gross cash Compensation payable to the Participant prior to any deductions
or withholdings, but shall be reduced by the Committee as necessary so that it
does not exceed 100% of the cash Compensation of the Participant remaining
after deduction of all required income and employment taxes, 401(k) and
other employee benefit deductions, and other deductions required by law.
Changes to payroll withholdings that affect the amount of Compensation being
deferred to the Plan shall be allowed only to the extent permissible under Code
Section 409A.


 


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


 


2.20         Earnings. Earnings
mean 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, the
prior Plan document will control, subject to the requirement that the Plan be
administered in accordance with Code Section 409A.


 


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


 


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


 


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


 


2.25         ERISA. ERISA means
the Employee Retirement Income Security Act of 1974, as amended from time to
time.


 


2.26         Fiscal Year
Compensation. Fiscal Year Compensation means Compensation earned during one
or more consecutive fiscal years of a Participating Employer, all of which is
paid 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 received
notification of his or her eligibility to defer Compensation under the Plan
under Section 3.1 and any other person with an Account Balance greater
than zero, regardless of whether such individual continues to be an Eligible
Employee or a Director. A Participant’s continued participation in the Plan
shall be governed by Section 3.2 of the Plan.


 


2.28         Participating
Employer. Participating Employer means the Company and each Adopting
Employer.


 


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


 


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


 


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


 


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


 


2.33         Retirement. Retirement
means 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 Plan
following the Retirement of the Participant.


 


2.35         Retirement/Termination
Account. Retirement/Termination Account means an Account established by the
Committee to record the amounts payable to a Participant upon Separation from
Service. Unless the Participant has established a Specified Date 


 


7

















 


Account, all Deferrals and Company
Contributions shall be allocated to a Retirement/Termination Account on behalf
of the Participant.


 


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


 


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


 


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


 


For purposes of determining whether a
Separation from Service has occurred, the Employer means the Employer as
defined in Section 2.24 of the Plan, except that for purposes of
determining whether another organization is an Affiliate of the Company, common
ownership of at least 50% shall be determinative.


 


The Committee specifically reserves the right
to determine whether a sale or other disposition of substantial assets to an
unrelated party constitutes a Separation from Service with respect to a
Participant providing services to the seller immediately prior to the
transaction and providing services to the buyer after the transaction. Such
determination shall be made in accordance with the requirements of Code Section 409A.


 


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


 


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


 


2.39         Substantial  Risk  of  Forfeiture.  Substantial  Risk  of  Forfeiture  shall  have  the  meaning  specified  in  Treas.  Reg.  Section  1.409A-1(d).


 


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


 


2.41         Unforeseeable
Emergency. An Unforeseeable Emergency means a severe financial hardship to
the Participant resulting from an illness or accident of the Participant, the
Participant’s spouse, the Participant’s dependent (as defined in Code section
152, without regard to section 152(b)(1), (b)(2), and (d)(1)(B)), or a
Beneficiary; loss of the Participant’s property due to casualty (including the
need to rebuild a home following damage to a home not otherwise covered by
insurance, for example, as a result of a natural disaster); or other similar
extraordinary and unforeseeable circumstances arising as a result of events
beyond the control of the Participant. The types of events which may qualify as
an 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 and
Participation. An Eligible Employee or a Director becomes a Participant
upon the earlier to occur of (i) a credit of Company Contributions under Article V
or (ii) receipt of notification of eligibility to participate.


 


3.2           Duration. A
Participant shall be eligible to defer Compensation and receive allocations of
Company Contributions, subject to the terms of the Plan, for as long as such
Participant remains an Eligible Employee or a Director. A Participant who is no
longer an Eligible Employee or a Director but has not Separated from Service
may not defer Compensation under the Plan beyond the Plan Year in which he or
she became ineligible but may otherwise exercise all of the rights of a
Participant under the Plan with respect to his or her Account(s). On and after
a Separation from Service, a Participant shall remain a Participant as long as
his or her Account Balance is greater than zero (0) and during such time may
continue to make allocation elections as provided in Section 8.4. An
individual shall cease being a Participant in the Plan when all benefits under
the Plan to which he or she is entitled have been paid.


 


9
















 


Article IV


 


Deferrals


 


4.1           Deferral Elections,
Generally.


 


(a)           A Participant may elect
to defer Compensation by submitting a Compensation Deferral Agreement during
the enrollment periods established by the Committee and in the manner specified
by the Committee, but in any event, in accordance with Section 4.2. A
Compensation Deferral Agreement that is not timely filed with respect to a
service period or component of Compensation shall be considered void and shall
have no effect with respect to such service period or Compensation. The
Committee may modify any Compensation Deferral Agreement prior to the date the
election becomes irrevocable under the rules of Section 4.2.


 


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


 


4.2           Timing Requirements
for Compensation Deferral Agreements.


 


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


 


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


 


(b)           Prior Year
Election. Except as otherwise provided in this Section 4.2,
Participants may defer Compensation by filing a Compensation Deferral Agreement
no later than December 31 of the year prior to the year in which the
Compensation to be deferred is earned. A Compensation Deferral Agreement
described in this paragraph shall become irrevocable with respect to such
Compensation as of January 1 of the year in which such Compensation is
earned.


 


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


 


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


 


(ii)           the Compensation is not
readily ascertainable as of the date the Compensation Deferral Agreement is
filed.


 


A Compensation
Deferral Agreement becomes irrevocable with respect to Performance-Based
Compensation as of the day immediately following the latest date for filing
such election. Any election to defer Performance-Based Compensation that is
made in accordance with this paragraph and that becomes payable as a result of
the 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)           Sales
Commissions. 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 the
sale occurs. The Compensation Deferral Agreement must be filed before the last day
of the year preceding the year in which the sales commissions are earned and
becomes irrevocable after that date.


 


(e)           Fiscal Year
Compensation. A Participant may defer Fiscal Year Compensation by
filing a Compensation Deferral Agreement prior to the first day of the fiscal
year or years in which such Fiscal Year Compensation is earned. The
Compensation Deferral Agreement described in this paragraph becomes irrevocable
on the first day of the fiscal year or years to which it applies.


 


(f)            Short-Term
Deferrals. Compensation that meets the definition of a “short-term
deferral” described in Treas. Reg. Section 1.409A-1(b)(4) may be
deferred in accordance with the rules of Article VII, applied as if
the date the Substantial Risk of Forfeiture lapses is the date payments were
originally scheduled to commence, provided, however, that the provisions of Section 7.3
shall not apply to payments attributable to a Change in Control (as defined in
Treas. Reg. Section 1.409A-3(i)(5)).


 


(g)           Certain
Forfeitable Rights. With respect to a legally binding right to a
payment in a subsequent year that is subject to a forfeiture condition
requiring the Participant’s continued services for a period of at least twelve
months from the date the Participant obtains the legally binding right, an
election to defer such Compensation may be made on or before the 30th day after
the Participant obtains 


 


11

















 


the legally
binding right to the Compensation, provided that the election is made at least
twelve months in advance of the earliest date at which the forfeiture condition
could lapse. The Compensation Deferral Agreement described in this paragraph
becomes irrevocable after such 30th day. If the forfeiture condition applicable
to the payment lapses before the end of the required service period as a result
of 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 considered
timely under another rule described in this Section.


 


(h)           Company
Awards. Participating Employers may unilaterally provide for
deferrals of Company awards prior to the date of such awards. Deferrals of
Company awards (such as sign-on, retention, or severance pay) may be negotiated
with a Participant or prospective Employee prior to the date such individual
has a legally binding right to such Compensation.


 


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


 


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


 


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


 


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


 


4.6           Cancellation of
Deferrals. The Committee may cancel a Participant’s Deferrals (i) for
the balance of the Plan Year in which an Unforeseeable Emergency occurs, (ii) if
the Participant receives a hardship distribution under the Employer’s qualified
401(k) plan, through the end of the Plan Year in which the six-month
anniversary of the hardship distribution falls, and (iii) during periods
in which the Participant is unable to perform the 


 


12

















 


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


 


ARTICLE V


 


Company
Contributions


 


5.1           401(k) Plan
Excess and/or Make-Up Contribution. The Company may, in its sole
discretion, make a Company Contribution at the end of each Plan Year in an
amount (if any) to restore lost company matching contributions to the Company’s
401(k) plan that would have been made by the Company during the 401(k) plan
year 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) plan
matching company contributions (an “Excess” Company Contribution), or
both.  The amount of such Company
Contribution shall equal the difference between the amount of company matching
contribution that would have been made to the Participant’s account in the
Company 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 matching
contribution to the 401(k) plan for such Participant during such plan
year.  Make-Up Company Contributions will
be credited to a Participant’s Retirement/Termination Account.


 


5.2           Discretionary
Company Contributions. The Participating Employer may, from time to time in
its sole and absolute discretion, credit Company Contributions to any
Participant in any amount determined by the Participating Employer. Such
contributions will be credited to a Participant’s Retirement/Termination
Account.


 


5.3           Vesting.  The “Make-Up” and/or “Excess” Company
Contribution described in Section 5.1 above, and the Earnings thereon,
shall vest in accordance with the same vesting schedule as is utilized in the
401(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 vesting
schedule(s) established by the Committee at the time that the Company
Contribution is made.  The foregoing
provisions concerning vesting of Company Contributions notwithstanding, and
subject to the requirements of Treasury Department regulations promulgated
under Code Section 409A, all Company Contributions shall become 100%
vested upon the occurrence of the earliest of: (i) the death of the
Participant; (ii) the disability of the Participant, (iii) Participant’s
attaining age sixty-five (65) or age fifty-five (55) with five (5) years
of service with an Employer, (iv) a Change in Control, or (v) a “Change
of Control”, as defined in the Company’s 2005 Stock Incentive Plan.  The Company may, at any time, in its sole
discretion, increase a Participant’s vested interest in a Company Contribution.  The portion of a Participant’s 


 


13

















 


Accounts that
remains unvested upon his or her Separation from Service after the application
of 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)           Retirement
Benefit. Upon the Participant’s Separation from Service due to
Retirement, he or she shall be entitled to a Retirement Benefit. The Retirement
Benefit shall be equal to the vested portion of the Retirement/Termination
Account and the vested portion of any Specified Date Accounts that are not yet
in pay status. 




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


 


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




The
Termination Benefit shall be valued as of the end of the sixth month after the
month in which Separation from Service occurs. Payment of the Termination
Benefit will be made or begin on the first day of the seventh month following
the month in which Separation from Service occurs.


 


(c)           Specified
Date Benefit. If the Participant has established one or more
Specified Date Accounts, he or she shall be entitled to a Specified Date
Benefit with respect to each such Specified Date Account. The Specified Date
Benefit 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 the
Participant at the time the Account was established. Payment of the Specified
Date Benefit will be made or begin on the first day of the month following the
designated month.


 


(d)           Death
Benefit. In the event of the Participant’s death, his or her
designated Beneficiary(ies) shall be entitled to a Death Benefit. The Death
Benefit shall be equal to the vested portion of the Retirement/Termination
Account and the vested portion of any unpaid balances in any Specified Date
Accounts. The Death Benefit shall be based on the value of the Accounts as of
the end of the month in 


 


14

















 


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


 


(e)           Unforeseeable
Emergency Payments. A Participant who experiences an Unforeseeable
Emergency may submit a written request to the Committee to receive payment of
all or any portion of his or her vested Accounts. Whether a Participant or
Beneficiary is faced with an Unforeseeable Emergency permitting an emergency
payment shall be determined by the Committee based on the relevant facts and
circumstances of each case, but, in any case, a distribution on account of
Unforeseeable Emergency may not be made to the extent that such emergency is or
may be reimbursed through insurance or otherwise, by liquidation of the
Participant’s assets, to the extent the liquidation of such assets would not
cause severe financial hardship, or by cessation of Deferrals under this Plan.
If an emergency payment is approved by the Committee, the amount of the payment
shall not exceed the amount reasonably necessary to satisfy the need, taking
into account the additional compensation that is available to the Participant
as the result of cancellation of deferrals to the Plan, including amounts
necessary to pay any taxes or penalties that the Participant reasonably
anticipates will result from the payment. The amount of the emergency payment
shall be subtracted first from the vested portion of the Participant’s
Retirement/Termination Account until depleted and then from the vested
Specified Date Accounts, beginning with the Specified Date Account with the
latest payment commencement date. Emergency payments shall be paid in a single
lump sum within the 90-day period following the date the payment is approved by
the Committee.


 


6.2           Form of
Payment.


 


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


 


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


 


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


 


15

















 


Notwithstanding
the foregoing, unpaid vested Specified Date Accounts will be payable in a
single lump sum under Section 6.2(b) upon a Participant’s Separation
from Service prior to Retirement.




Notwithstanding
any provision of this Plan to the contrary, a Specified Date Account not
included as a part of the Retirement Benefit will be payable in a single lump
sum upon a Participant’s Separation from Service if the applicable Retirement
Benefit is payable in a lump sum.


 


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


 


(e)           Change in
Control. A Participant will receive his or her Retirement or
Termination Benefit in a single lump sum upon a Separation from Service within
24 months following a Change in Control. In addition to the foregoing, upon a
Change in Control, a Participant who has incurred a Separation from Service
prior to the Change in Control will receive the balance of all unpaid Accounts
in a single lump sum.  Accounts will be
valued as of the last day of the month following the Change in Control and will
be paid within 90 days of said Change in Control or, if later, the date for
payment of such Participant’s Retirement or Termination Benefit.


 


(f)            Small
Account Balances. The Committee may, in its sole discretion which
shall be evidenced in writing no later than the date of payment, elect to pay
the value of the Participant’s Accounts upon a Separation from Service in a
single lump sum if the balance of such Accounts is not greater than the
applicable dollar amount under Code Section 402(g)(1)(B), provided the payment
represents the complete liquidation of the Participant’s interest in the Plan.


 


(g)           Rules Applicable
to Installment Payments. If a Payment Schedule specifies installment
payments, annual payments will be made beginning as of the payment commencement
date for such installments and shall continue on each anniversary thereof until
the number of installment payments specified in the Payment Schedule has been
paid. 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) equals
the remaining number of installment payments.


 


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


 


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


 


16

















 


The Committee
may also, in its sole and absolute discretion, delay the time for payment of a
benefit owed to the Participant hereunder, to the extent permitted under Treas.
Reg. Section 1.409A-2(b)(7). If the Plan receives a domestic relations
order (within the meaning of Code Section 414(p)(1)(B)) directing that all
or a portion of a Participant’s Accounts be paid to an “alternate payee,” any
amounts to be paid to the alternate payee(s) shall be paid in a single
lump sum.


 


ARTICLE VII


 


Modifications
to Payment Schedules


 


7.1           Participant’s Right
to Modify.  A Participant may modify
any 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 be
at least twelve months prior to the date on which payment is scheduled to
commence under the Payment Schedule in effect prior to the modification.


 


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




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


 


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


 


ARTICLE VIII


 


Valuation
of Account Balances; Investments


 


8.1           Valuation.
Deferrals shall be credited to appropriate Accounts on the date such
Compensation would have been paid to the Participant absent the Compensation
Deferral Agreement. Company Contributions shall be credited to the
Retirement/Termination Account at the times determined by the Committee. Valuation
of 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 upon
the Participant’s investment allocation among a menu of investment options 


 


17

















 


selected in
advance 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 its
sole discretion, shall be permitted to add or remove investment options from
the Plan menu from time to time, provided that any such additions or removals
of investment options shall not be effective with respect to any period prior
to the effective date of such change.


 


8.4           Investment
Allocations. A Participant’s investment allocation constitutes a deemed,
not actual, investment among the investment options comprising the investment
menu. At no time shall a Participant have any real or beneficial ownership in
any investment option included in the investment menu, nor shall the
Participating Employer or any trustee acting on its behalf have any obligation
to purchase actual securities as a result of a Participant’s investment
allocation. A Participant’s investment allocation shall be used solely for
purposes of adjusting the value of a Participant’s Account Balances.




A Participant
shall specify an investment allocation for each of his Accounts in accordance
with procedures established by the Committee. 
Allocation among the investment options must be designated in increments
of 1%. The Participant’s investment allocation will become effective on the
same Business Day or, in the case of investment allocations received after a
time specified by the Committee, the next Business Day.


 


A Participant
may change an investment allocation on any Business Day, both with respect to
future credits to the Plan and with respect to existing Account Balances, in
accordance with procedures adopted by the Committee. Changes shall become
effective on the same Business Day or, in the case of investment allocations
received after a time specified by the Committee, the next Business Day, and
shall be applied prospectively.


 


8.5           Unallocated
Deferrals and Accounts. If the Participant fails to make an investment
allocation with respect to an Account, such Account shall be invested in an
investment option, the primary objective of which is the preservation of
capital, as determined by the Committee.


 


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


 


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


 


18

















 


8.8           Effect
on Installment Payments. If an Account is to be paid in installments, the
Committee will determine the portion of each payment that will be paid in the
form of Company Stock.


 


8.9           Dividend
Equivalents. Dividend equivalents with respect to Company Stock will be
credited to the applicable Accounts in the form of additional shares or units
of Company Stock.


 


ARTICLE IX


 


Administration


 


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


 


9.2           Administration Upon
Change in Control. Upon a Change in Control, the Committee, as constituted
immediately prior to such Change in Control, shall continue to act as the
Committee. The individual who was the Chief Executive Officer of the Company
(or if such person is unable or unwilling to act, the next highest ranking
officer) prior to the Change in Control shall have the authority (but shall not
be obligated) to appoint an independent third party to act as the Committee.


 


Upon such
Change in Control, the Company may not remove the Committee, unless 2/3rds of
the members of the Board of Directors of the Company and a majority of
Participants and Beneficiaries with Account Balances consent to the removal and
replacement Committee. Notwithstanding the foregoing, neither the Committee nor
the officer described above shall have authority to direct investment of trust
assets under any rabbi trust described in Section 11.2.


 


The
Participating Employer shall, with respect to the Committee identified under
this Section, (i) pay all reasonable expenses and fees of the Committee, (ii) indemnify
the Committee (including individuals serving as Committee members) against any
costs, expenses and liabilities including, without limitation, attorneys’ fees
and expenses arising in connection with the performance of the Committee
hereunder, except with respect to matters resulting from the Committee’s gross
negligence or willful misconduct and (iii) supply full and timely
information to the Committee on all matters related to the Plan, any rabbi
trust, Participants, Beneficiaries and Accounts as the Committee may reasonably
require.


 


9.3           Withholding. The
Participating Employer shall have the right to withhold from any payment due
under the Plan (or with respect to any amounts credited to the Plan) any 


 


19

















 


taxes required by law to be withheld in
respect of such payment (or credit). Withholdings with respect to amounts
credited to the Plan shall be deducted from Compensation that has not been
deferred 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 delegated
duties, responsibilities, and authority under the Plan or otherwise with
respect to administration of the Plan, including, without limitation, the
Committee and its agents, against all claims, liabilities, fines and penalties,
and all expenses reasonably incurred by or imposed upon him or it (including
but not limited to reasonable attorney fees) which arise as a result of his or
its actions or failure to act in connection with the operation and
administration of the Plan to the extent lawfully allowable and to the extent
that such claim, liability, fine, penalty, or expense is not paid for by
liability insurance purchased or paid for by the Participating Employer.
Notwithstanding the foregoing, the Participating Employer shall not indemnify
any person or organization if his or its actions or failure to act are due to
gross negligence or willful misconduct or for any such amount incurred through
any settlement or compromise of any action unless the Participating Employer
consents in writing to such settlement or compromise.


 


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


 


9.6           Binding Decisions or
Actions. The decision or action of the Committee in respect of any question
arising out of or in connection with the administration, interpretation and
application of the Plan and the rules and regulations thereunder shall be
final and conclusive and binding upon all persons having any interest in the
Plan.


 


ARTICLE X


 


Amendment
and Termination


 


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




10.2         Amendments. The
Company, by action taken by its Board of Directors, may amend the Plan at any
time and for any reason, provided that any such amendment shall not reduce the
vested Account Balances of any Participant accrued as of the date of any such
amendment or restatement (as if the Participant had incurred a voluntary
Separation from Service on such date) or reduce any rights of a Participant
under the Plan or other Plan features with respect to Deferrals made prior to
the date of any such amendment or restatement without the consent of the
Participant. The Board of Directors of the Company may delegate to the
Committee the authority to amend the Plan without the consent of the Board of
Directors for the purpose of (i) conforming the Plan to the 


 


20

















 


requirements
of law, (ii) facilitating the administration of the Plan, (iii) clarifying
provisions based on the Committee’s interpretation of the document and (iv) making
such other amendments as the Board of Directors may authorize.




10.3         Termination. The
Company, by action taken by its Board of Directors, may terminate the Plan and
pay Participants and Beneficiaries their Account Balances in a single lump sum
at 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, the
benefits of affected Employees shall be paid at the time provided in Article VI.


 


10.4         Accounts Taxable Under
Code Section 409A. The Plan is intended to constitute a plan of
deferred compensation that meets the requirements for deferral of income
taxation under Code Section 409A. The Committee, pursuant to its authority
to interpret the Plan, may sever from the Plan or any Compensation Deferral
Agreement any provision or exercise of a right that otherwise would result in a
violation of Code Section 409A.


 


ARTICLE XI


 


Informal
Funding


 


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


 


11.2         Rabbi Trust. A
Participating Employer may, in its sole discretion, establish a grantor trust,
commonly known as a rabbi trust, as a vehicle for accumulating assets to pay
benefits under the Plan. Payments under the Plan may be paid from the general
assets of the Participating Employer or from the assets of any such rabbi
trust. Payment from any such source shall reduce the obligation owed to the
Participant 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 filed
in writing with the Committee which shall make all determinations concerning
such claim. Any claim filed with the Committee and any decision by the
Committee denying such claim shall be in writing and shall be delivered to the
Participant or Beneficiary filing the claim (the “Claimant”).


 


21
















 


(a)           In General.
Notice of a denial of benefits will be provided within ninety (90) days of the
Committee’s receipt of the Claimant’s claim for benefits. If the Committee
determines that it needs additional time to review the claim, the Committee
will provide the Claimant with a notice of the extension before the end of the
initial 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 of
extension will explain the special circumstances that require the extension and
the date by which the Committee expects to make a decision.


 


(b)           Contents of
Notice. If a claim for benefits is completely or partially denied,
notice of such denial shall be in writing and shall set forth the reasons for
denial in plain language. The notice shall (i) cite the pertinent
provisions of the Plan document and (ii) explain, where appropriate, how
the Claimant can perfect the claim, including a description of any additional
material or information necessary to complete the claim and why such material
or information is necessary. The claim denial also shall include an explanation
of the claims review 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
an adverse decision on review.


 


12.2         Appeal of Denied
Claims. A Claimant whose claim has been completely or partially denied
shall be entitled to appeal the claim denial by filing a written appeal with a
committee designated to hear such appeals (the “Appeals Committee”). A Claimant
who timely requests a review of the denied claim (or his or her authorized
representative) may review, upon request and free of charge, copies of all
documents, records and other information relevant to the denial and may submit
written comments, documents, records and other information relevant to the
claim to the Appeals Committee. All written comments, documents, records, and
other information shall be considered “relevant” if the information (i) was
relied upon in making a benefits determination,(ii) was submitted,
considered or generated in the course of making a benefits decision regardless
of whether it was relied upon to make the decision, or (iii) demonstrates
compliance with administrative processes and safeguards established for making
benefit decisions. The Appeals Committee may, in its sole discretion and if it
deems appropriate or necessary, decide to hold a hearing with respect to the
claim appeal.


 


(a)           In General.
Appeal of a denied benefits claim must be filed in writing with the Appeals
Committee no later than sixty (60) days after receipt of the written
notification of such claim denial. The Appeals Committee shall make its
decision regarding the merits of the denied claim within sixty (60) days
following receipt of the appeal (or within one hundred and twenty (120) days
after such receipt, in a case where there are special circumstances requiring
extension of time for reviewing the appealed claim). If an extension of time
for reviewing the appeal is required because of special circumstances, written
notice of the extension shall be furnished to the Claimant prior to the
commencement of the extension. The notice will indicate the special circumstances
requiring the extension of time and the date by which the Appeals Committee
expects to render the determination on 


 


22

















 


review. The
review will take into account comments, documents, records and other
information submitted by the Claimant relating to the claim without regard to
whether such information was submitted or considered in the initial benefit
determination.


 


(b)           Contents of
Notice. 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 for
denial in plain language.


 


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


 


12.3         Claims Appeals Upon
Change in Control. Upon a Change in Control, the Appeals Committee, as
constituted immediately prior to such Change in Control, shall continue to act
as the Appeals Committee. Upon such Change in Control, the Company may not
remove any member of the Appeals Committee, but may replace resigning members
if 2/3rds of the members of the Board of Directors of the Company and a
majority of Participants and Beneficiaries with Account Balances consent to the
replacement.


 


The Appeals
Committee shall have the exclusive authority at the appeals stage to interpret
the terms of the Plan and resolve appeals under the Claims Procedure.


 


Each
Participating Employer shall, with respect to the Committee identified under
this Section, (i) pay its proportionate share of all reasonable expenses
and fees of the Appeals Committee, (ii) indemnify the Appeals Committee
(including individual committee members) against any costs, expenses and
liabilities including, without limitation, attorneys’ fees and expenses arising
in connection with the performance of the Appeals Committee hereunder, except
with respect to matters resulting from the Appeals Committee’s gross negligence
or willful misconduct and (iii) supply full and timely information to the
Appeals Committee on all matters related to the Plan, any rabbi trust,
Participants, Beneficiaries and Accounts as the Appeals Committee may
reasonably require.


 


12.4         Legal Action. A
Claimant may not bring any legal action, including commencement of any
arbitration, relating to a claim for benefits under the Plan unless and until
the Claimant has followed the claims procedures under the Plan and exhausted
his or her administrative remedies under such claims procedures.


 


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


 


23

















 


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


 


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


 


12.6         Arbitration.


 


(a)           Prior to
Change in Control. If, prior to a Change in Control, any claim or
controversy between a Participating Employer and a Participant or Beneficiary
is not resolved through the claims procedure set forth in Article XII,
such claim shall be submitted to and resolved exclusively by expedited binding
arbitration by a single arbitrator. 
Arbitration shall be conducted in accordance with the following
procedures:


 


The
complaining party shall promptly send written notice to the other party
identifying the matter in dispute and the proposed remedy. Following the giving
of such notice, the parties shall meet and attempt in good faith to resolve the
matter. In the event the parties are unable to resolve the matter within twenty
one (21) days, the parties shall meet and attempt in good faith to select a
single arbitrator acceptable to both parties. If a single arbitrator is not
selected by mutual consent within ten (10) Business Days following the
giving of the written notice of dispute, an arbitrator shall be selected from a
list of nine persons each of whom shall be an attorney who is either engaged in
the active practice of law or recognized arbitrator and who, in either event,
is experienced in serving as an arbitrator in disputes between employers and
employees, which list shall be provided by the main office of either JAMS, the
American Arbitration Association (“AAA”) or the Federal Mediation and
Conciliation Service. If, within three Business Days of the parties’ receipt of
such list, the parties are unable to agree on an arbitrator from the list, then
the parties shall each strike names alternatively from the list, with the first
to strike being determined by the flip of a coin. After each party has had four
strikes, the remaining name on the list shall be the arbitrator. If such person
is unable to serve for any reason, the parties shall repeat this process until
an arbitrator is selected.


 


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


 


24

















 


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


 


In any
arbitration hereunder, the Participating Employer shall pay all administrative
fees of the arbitration and all fees of the arbitrator, except that the
Participant or Beneficiary may, if he/she/it wishes, pay up to one-half of
those amounts. Each party shall pay its own attorneys’ fees, costs, and
expenses, unless the arbitrator orders otherwise. The prevailing party in such
arbitration, as determined by the arbitrator, and in any enforcement or other
court proceedings, shall be entitled, to the extent permitted by law, to
reimbursement from the other party for all of the prevailing party’s costs
(including but not limited to the arbitrator’s compensation), expenses, and
attorneys’ fees. The arbitrator shall have no authority to add to or to modify
this Plan, shall apply all applicable law, and shall have no lesser and no
greater remedial authority than would a court of law resolving the same claim
or controversy. The arbitrator shall have no authority to add to or to modify
this Plan, shall apply all applicable law, and shall have no lesser and no
greater remedial authority than would a court of law resolving the same claim
or controversy. The arbitrator shall, upon an appropriate motion, dismiss any
claim without an evidentiary hearing if the party bringing the motion
establishes that it would be entitled to summary judgment if the matter had
been pursued in court litigation.


 


The parties
shall be entitled to discovery as follows: Each party may take no more than
three depositions. The Participating Employer may depose the Participant or
Beneficiary plus two other witnesses, and the Participant or Beneficiary may
depose the Participating Employer, pursuant to Rule 30(b)(6) of the
Federal Rules of Civil Procedure, plus two other witnesses. Each party may
make such reasonable document discovery requests as are allowed in the
discretion of the arbitrator.


 


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


 


This
arbitration 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 any
party, or of any of the above, and shall apply as well to claims arising out of
state and federal statutes and local ordinances as well as to claims arising
under the common law or under this Plan.


 


Notwithstanding
the foregoing, and unless otherwise agreed between the parties, either party
may apply to a court for provisional relief, including a temporary restraining
order or preliminary injunction, on the ground that the arbitration 


 


25

















 


award to which
the applicant may be entitled may be rendered ineffectual without provisional
relief.


 


Any
arbitration hereunder shall be conducted in accordance with the Federal
Arbitration Act: provided, however, that, in the event of any inconsistency
between the rules and procedures of the Act and the terms of this Plan,
the terms of this Plan shall prevail.


 


If any of the
provisions of this Section 12.6(a) are determined to be unlawful or
otherwise unenforceable, in the whole part, such determination shall not affect
the validity of the remainder of this section and this section shall be
reformed to the extent necessary to carry out its provisions to the greatest
extent possible and to insure that the resolution of all conflicts between the
parties, including those arising out of statutory claims, shall be resolved by
neutral, binding arbitration. If a court should find that the provisions of
this Section 12.6(a) are not absolutely binding, then the parties
intend any arbitration decision and award to be fully admissible in evidence in
any subsequent action, given great weight by any finder of fact and treated as
determinative to the maximum extent permitted by law.


 


The parties do
not agree to arbitrate any putative class action or any other representative
action. The parties agree to arbitrate only the claims(s) of a single
Participant or Beneficiary.


 


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


 


ARTICLE XIII


 


General
Provisions


 


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


 


26

















 


The Company
may assign any or all of its liabilities under this Plan in connection with any
organizational restructuring, recapitalization, sale of assets (including a
sale 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 Participating
Employer without the consent of the Participants.


 


13.2         No Legal or Equitable
Rights or Interest. No Participant or other person shall have any legal or
equitable rights or interest in this Plan that are not expressly granted in
this Plan. Participation in this Plan does not give any person any right to be
retained in the service of the Participating Employer. The right and power of a
Participating Employer to dismiss or discharge an Employee is expressly
reserved. The Participating Employers make no representations or warranties as
to the tax consequences to a Participant or a Participant’s beneficiaries
resulting from a deferral of income pursuant to the Plan.


 


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


 


13.4         Notice. Any notice
or filing required or permitted to be delivered to the Committee under this
Plan shall be delivered in writing, in person, or through such electronic means
as is established by the Committee. Notice shall be deemed given as of the date
of delivery or, if delivery is made by mail, as of the date shown on the
postmark on the receipt for registration or certification. Written transmission
shall be sent by certified mail to:


 


GUARANTY
BANCORP


ATTN:
DIRECTOR OF HUMAN RESOURCES


1331 17TH
STREET, SUITE 300


DENVER, CO
80202


 


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


 


13.5         Headings. The
headings of Sections are included solely for convenience of reference, and if
there is any conflict between such headings and the text of this Plan, the text
shall control.


 


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


 


13.7         Lost Participants or
Beneficiaries. Any Participant or Beneficiary who is entitled to a benefit
from the Plan has the duty to keep the Committee advised of his or her current
mailing address. If benefit payments are returned to the Plan or are not
presented for payment after a reasonable amount of time, the Committee shall
presume that the payee 


 


27

















 


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


 


13.8         Facility of Payment to
a Minor.  If a distribution is to be
made to a minor, or to a person who is otherwise incompetent, then the
Committee may, in its discretion, make such distribution (i) to the legal
guardian, or if none, to a parent of a minor payee with whom the payee
maintains his or her residence, or (ii) to the conservator or committee
or, if none, to the person having custody of an incompetent payee. Any such
distribution shall fully discharge the Committee, the Company, and the Plan
from further liability on account thereof.


 


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


 


IN WITNESS
WHEREOF, the undersigned executed this Plan as of the 4th day of
August, 2008, to be effective as of the Effective Date.


 


Guaranty
Bancorp (f/k/a Centennial Bank Holdings, Inc.)


 


 


	
  By:

  	
  /s/ Zsolt K.
  Besskó

  	
   

  
	
   

  	
  Zsolt K.
  Besskó

  
	
   

  	
  EVP, General
  Counsel & Secretary

  



 


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