Exhibit
10.5


 


GUARANTY
BANCORP


CHANGE IN
CONTROL SEVERANCE PLAN


(As
Amended and Restated Effective January 1, 2009)


 


1.             Purpose.
The purpose of the Guaranty Bancorp Change in Control Severance Plan (as
Amended and Restated Effective January 1, 2009) (the “Plan”)
is to recruit and foster the continuous employment of key management personnel
of the Company and to reinforce and encourage their continued attention and
dedication to their duties in the event of any threat or occurrence of a Change
in Control (as defined in Section 2), although no such change is now
apparent or contemplated.


 


2.             Definitions.
As used in this Plan, the following terms shall have the respective meanings
set forth below:


 


(a)           “Annual Bonus” means the annual
bonus awarded under the Company’s Executive Cash Incentive Plan or Annual
Incentive Plan (or, in each case, any predecessor, substitute or successor plan
designated as such by the Board), as in effect from time to time, or any
discretionary annual bonus awarded by the Board.


 


(b)           “Base Salary” means the Participant’s
annual base salary in effect immediately before the occurrence of the
circumstance giving rise to the Participant’s termination, or, if greater, the
Participant’s annual base salary in effect immediately before the Change in
Control.


 


(c)           “Board” means the Board of Directors
of the Company and, after a Change in Control, the “board of directors” of the
surviving company.


 


(d)           
“Bonus Amount” means the average of
a Participant’s 2 Annual Bonuses for the 2 fiscal years ending before the
Participant’s Date of Termination; provided that (i) if a
Participant has been an employee of the Company through the end of only one
fiscal year before the Participant’s Date of Termination and was eligible for
an Annual Bonus for such fiscal year (including on a pro rata basis), the Bonus
Amount shall be the average of (x) the Annual Bonus for the fiscal year
ending before the Date of Termination (if such bonus was made on a pro rata
basis, such bonus shall be annualized for the purpose of calculating the Bonus
Amount) and (y) the Participant’s target Annual Bonus, expressed as a
percentage of base salary in the event the relevant goals are 100% achieved,
for the fiscal year in which the Date of Termination occurs and (ii) if a
Participant (x) has been an employee of the Company through the end of
only one fiscal year before the Participant’s Date of Termination and was not
eligible for an Annual Bonus for such fiscal year or (y) has not been an
employee of the Company through the end of one fiscal year with the Company
before the Participant’s Date of Termination, the Bonus Amount shall be the
Participant’s target Annual Bonus, expressed as a percentage of base salary in
the event the relevant goals are 100% achieved, for the year in which the Date
of Termination occurs.


 


(e)           
“Cause” means (i) an
intentional and continued failure of a Participant to perform duties with the
Company and its subsidiaries (for the avoidance of 


 





















 


doubt, excluding any failure due to physical or mental illness) and
such failure continues after a written demand for substantial performance is
delivered by the Company to the Participant that specifically identifies the
manner in which the Participant has failed to perform; (ii) an intentional
act of illegal conduct or gross misconduct that is demonstrably injurious
(other than to a de minimis extent) to the business, reputation or regulatory
relationships of the Company; (iii) an intentional act of fraud,
embezzlement or theft in connection with the business of the Company; (iv) intentional
disclosure of confidential information or trade secrets of the Company or
confidential information relating to customers of the Company or its parent, a
subsidiary or affiliate; (v) an act constituting a felony or a misdemeanor
involving moral turpitude for which the Participant is convicted by any
federal, state or local authority, or to which the Participant enters a plea of
guilty or nolo contendere; (vi) an act or omission that causes the
Participant to be disqualified or barred by any governmental or self-regulatory
authority from serving in his or her employment capacity or losing any
governmental or self- regulatory license that is reasonably necessary for the
Participant to perform his or her responsibilities to the Company; or (vii) intentional
breach of corporate fiduciary duty involving personal profit. For the purposes
of this Plan, no act, or failure to act, on the part of the Participant shall
be deemed “intentional” unless done, or omitted to be done, by the Participant
not in good faith and without reasonable belief that his or her action or
omission was in the best interest of the Company. Notwithstanding the
foregoing, the Participant shall not be deemed to have been terminated for
Cause hereunder unless and until there shall have been delivered to the
Participant a copy of a resolution duly adopted by the affirmative vote of not
less than two-thirds of the members of the Board then in office at a meeting of
the Board called and held for such purpose (after reasonable notice to the
Participant and an opportunity for the Participant, together with his or her
counsel to be heard before the Board), finding that, in the good faith opinion
of the Board, the Participant had committed an act set forth above in clauses (i) through
(vii) and specifying the particulars thereof in detail. Nothing herein
shall limit the right of the Participant or his or her beneficiaries to contest
the validity or propriety of any such determination.


 


(f)            “Change in Control” means the occurrence
of any one of the following events:


 


(i)            any “Person” or “Group”
(as such terms are defined in Section 13(d) of the Securities
Exchange Act of 1934 (the “Exchange Act”)
and the rules and regulations promulgated thereunder) is or becomes the “Beneficial
Owner” (within the meaning of Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company, or of any entity resulting from a
merger or consolidation involving the Company, representing more than 50% of
the combined voting power of the then outstanding securities of the Company or
such entity;


 


(ii)           the individuals who, as
of the date hereof, are members of the Board (the “Existing Directors”), cease, for any
reason, to constitute more than 50% of the number of authorized directors of the
Company as determined in the manner prescribed in the Company’s Certificate of
Incorporation and Bylaws;


 


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provided that if the election, or
nomination for election, by the Company’s stockholders of any new director was
approved by a vote of at least 50% of the Existing Directors, such a new
director shall be considered an Existing Director; provided  further,
that no individual shall be considered an Existing Director if such individual
initially assumed office as a result of either an actual or threatened election
contest (“Election Contest”)
or other actual or threatened solicitation of proxies by or on behalf of anyone
other than the Board (a “Proxy Contest”),
including by reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest; or


 


(iii)          the consummation of a
plan of reorganization, merger or consolidation involving the Company or the
sale of all or substantially all of the assets or deposits of the Company,
except for a reorganization, merger, consolidation or sale where (A) the
stockholders of the Company immediately before such reorganization, merger,
consolidation or sale own directly or indirectly at least 55% of the combined
voting power of the outstanding voting securities of the Company resulting from
such reorganization, merger or consolidation or purchasing the assets or
deposits (the “Surviving Company”)
in substantially the same proportion as their ownership of voting securities of
the Company immediately before such reorganization, merger, consolidation or
sale, and (B) the Existing Directors immediately before the execution of
the agreement providing for such reorganization, merger, consolidation or sale
constitute at least half of the members of the board of directors of the
Surviving Company, or of a company beneficially owning, directly or indirectly,
a majority of the voting securities of the Surviving Company (a “Resulting Parent”).


 


If there is a
reorganization, merger, consolidation or sale of the Company that does not
result in a Change in Control pursuant to clause (iii), references to “the
Company” in this definition will be deemed to have been replaced by references
to the Resulting Parent (or if there is no Resulting Parent, the Surviving
Company).


 


(g)           “Code” means the Internal Revenue Code
of 1986, as amended.


 


(h)           “Company” means Guaranty Bancorp and the
tax-controlled group of which it is a member.


 


(i)            “Date of Termination” means (i) if
a Participant’s employment is terminated for Disability, 30 days after notice
of termination is given by the Company (provided that the Participant shall not
have returned to the full-time performance of his or her duties during such 30
day period); (ii) if a Participant’s employment is terminated by the
Participant, the date specified in the notice of termination, which shall not
be less than 30 days after notice of termination is given (unless the Company
selects an earlier Date of Termination); or (iii) if a Participant’s
employment is terminated for any other reason, the date specified in the notice
of termination.


 


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(j)            “Disability” shall occur if a
Participant is incapacitated and absent from his or her duties on a full-time
basis for 4 consecutive months or for at least 180 days (which need not be
consecutive) during any 12 month period.


 


(k)           “Good Reason” means, without the
Participant’s express written consent, the occurrence of any of the following
events after a Change in Control:


 


(i)            the assignment to the
Participant of any duties inconsistent with his or her title, position, duties,
responsibilities and status with the Company as in effect immediately before
the Change in Control, or any other action by the Company that results in a
diminution of the Participant’s title, duties, position or reporting
relationships, or any removal of the Participant from, or any failures to
re-elect the Participant to, any of such positions, except in connection with
the termination of his or her employment for Cause or as a result of his or her
Disability or death, or termination by the Participant other than for Good
Reason; provided that insubstantial or inadvertent actions not taken in
bad faith which are remedied by the Company promptly after receipt of notice
thereof given by the Participant shall not constitute Good Reason;


 


(ii)           any reduction in the
Participant’s base salary, or a significant reduction in the aggregate employee
benefits provided to the Participant, unless such reduction applies equally to
other similarly situated employees of the Company, in each case, which is not
remedied within 10 calendar days after receipt by the Company of written notice
from the Participant of such change or reduction, as the case may be;


 


(iii)          the Company requiring
the Participant to be based more than 30 miles from the location of his or her
place of employment immediately before the Change in Control, except for normal
business travel in connection with his or her duties with the Company; or


 


(iv)          the failure by the
Company to require any successor (whether direct or indirect, by purchase,
merger consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume this Plan and all obligation
hereunder.


 


An
isolated, insubstantial and inadvertent action taken in good faith implicating
clauses (i), (ii) or (iii) of this definition which is fully
corrected by the Company before the Date of Termination specified in the notice
of termination shall not constitute Good Reason. A Participant must provide a
notice of termination for Good Reason within 90 days following the Participant’s
knowledge of existence of the event constituting Good Reason or such event
shall not constitute Good Reason under this Plan.


 


(l)            “Participant” means each of the
employees of the Company who are selected by the Board for coverage by this
Plan and identified on Schedule A.


 


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(m)          “Qualifying Termination” means a
termination of the Participant’s employment (i) by the Company other than
for Cause or (ii) by the Participant for Good Reason. Termination of the
Participant’s employment with the Company on account of death, Disability or
retirement (in accordance with the normal retirement policy of the Company as
in effect before the Change in Control) shall not be treated as a Qualifying
Termination. Notwithstanding the preceding sentence, the death or Disability of
the Participant after notice of termination for Good Reason or without Cause
has been validly provided shall be deemed to be a Qualifying Termination.


 


(n)           “Severance Multiple” means, for each
Participant, a number determined by the Board in its sole discretion and noted
on Schedule A.


 


(o)           “Termination Period” means the period of
time beginning with a Change in Control and ending 2 years following such
Change in Control. Notwithstanding anything in this Plan to the contrary, if a
Participant’s employment with the Company is terminated before the occurrence
of a Change in Control, the Participant’s employment will be deemed to have
been terminated by the Company without Cause on the day after the occurrence of
the Change in Control if (i) a Change in Control actually occurs, (ii) during
the Change in Control Period (as defined in Section 16(d)) ending on such
Change in Control, the Participant’s employment is terminated by the Company
other than for Cause or by the Participant for Good Reason or (iii) the
Participant reasonably demonstrates that the Company terminated the Participant’s
employment, or gave the Participant Good Reason, at the request of a Person
(other than the Company) who has indicated an intention or taken steps
reasonably calculated to effect a Change in Control, or otherwise in connection
with, or in anticipation of, the Change in Control. For purposes of determining
the timing of payments and benefits to the Participant under Section 4,
the date of the actual Change in Control shall be treated as the Participant’s
Date of Termination under Section 2(i), and for purposes of determining
the amount of payments and benefits owed to the Participant under Section 4,
the date the Participant’s employment is actually terminated shall be treated
as the Participant’s Date of Termination under Section 2(i).


 


3.            Eligibility. The Board shall determine
in its sole discretion which employees of the Company shall be Participants.
Once an employee becomes a Participant, the employee shall remain a Participant
until the earlier of (1) the expiration of the Participant’s “participation
period” noted on Schedule A and (2) the Board’s removal of the
employee as a Participant in this Plan. The Board may remove an employee as a
Participant in this Plan at any time in its sole discretion except that a
Participant may not be removed as a Participant without his or her prior
written consent either (i) during a Change in Control Period or
Termination Period or (ii) unless the Company provides Participant with at
least 6 months prior notice of such removal. For the avoidance of doubt, if a
Participant is removed as a Participant in this Plan pursuant to clause (ii) in
the immediately preceding sentence and during such 6 month notice period a
Change in Control Period is triggered pursuant to which an actual Change in
Control occurs, the Participant shall not be removed or be deemed to have been
removed from this Plan.


 


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4.             Payments Upon Termination of Employment.
If during the Termination Period the employment of the Participant is
terminated pursuant to a Qualifying Termination, then, subject to the
Participant’s execution of a Separation Agreement and Release in the form
attached to this Plan as Schedule C (the “Separation
Agreement and Release”), the Company shall provide to the
Participant:


 


(a)           his
or her full base salary through the Date of Termination at the rate in effect
at the time notice of termination is given, plus all other amounts to which he
or she is entitled under any compensation plan of the Company, as the case may
be, in effect immediately before the Change in Control, at the time such
payments are due;


 


(b)           on
the earlier of the fifty-fifth (55th) day following the Date of
Termination or the expiration of the revocation period for the executed
Separation Agreement and Release, provided the Participant has not revoked the
Separation Agreement and Release as of such date, a lump sum cash payment equal
to the result of multiplying (i) the Participant’s current target Annual
Bonus, expressed as a percentage of base salary in the event the relevant goals
are 100% achieved, for the year in which the Date of Termination occurs by (ii) a
fraction, (A) the numerator of which is the number of days elapsed from
the beginning of the relevant period for which performance is measured in
determining such Annual Bonus until the Date of Termination and (B) the
denominator of which is the number of days of such relevant period;


 


(c)           on
the earlier of the fifty-fifth (55th) day following the Date of
Termination or the expiration of the revocation period for the executed Separation
Agreement and Release, provided the Participant has not revoked the Separation
Agreement and Release as of such date, a lump sum cash payment equal to the
result of multiplying (i) the sum of (A) the Participant’s Base
Salary, plus (B) the Participant’s Bonus Amount by (ii) the
Participant’s Severance Multiple;


 


(d)           for
the number of years from the Date of Termination equal to the Severance
Multiple, continued provision of medical, dental, and vision benefits to the
Participant, his or her spouse and his or her eligible dependants on the same
basis as such benefits are then currently provided to such Participant (the “Medical Benefits”); provided
that such benefits shall be secondary to any other coverage obtained by the
Participant and shall be paid or provided in accordance with Section 8
below; provided  further that if the Company’s welfare plans do
not permit such coverage, the Company will provide the Participant the Medical
Benefits with the same tax effect; and


 


(e)           if
the Participant is subject to any excise tax imposed under Section 4999 of
the Code (the “Excise Tax”)
by reason of a Change in Control, then the Company shall pay to the Participant
an amount as specified in Schedule B.


 


Except as otherwise expressly provided pursuant to
this Plan, this Plan shall be construed and administered in a manner which
avoids duplication of compensation and benefits which may be provided under any
other plan, program, policy, or other arrangement or individual contract. In
the event a Participant is covered by any other plan, program, policy,
individually negotiated agreement or other arrangement, in effect as of 


 


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his or her Date of Termination, that may duplicate the
payments and benefits provided for in this Section 4, the Board is
specifically empowered to reduce or eliminate the duplicative benefits provided
for under the Plan, provided such elimination or reduction does not cause the
Participant to incur additional tax or interest under Section 409A of the
Code (“Section 409A”).


 


This Plan does not abrogate any of the usual
entitlements which a Participant has or will have, first, while a regular
employee, and subsequently, after termination, and thus a Participant shall be
entitled to receive all benefits payable to him or her under each and every
qualified plan, welfare plan and any other plan or program relating to benefits
and deriving from his or her employment with the Company, but solely in
accordance with the terms and provisions thereof.


 


5.             Withholding Taxes. The Company may
withhold from all payments due to the Participant (or his or her beneficiary or
estate) hereunder all taxes which, by applicable federal, state, local or other
law, the Company is required to withhold therefrom.


 


6.             Reimbursement of Expenses. If a Change
in Control actually occurs and any contest or dispute shall arise under this
Plan involving termination of a Participant’s employment with the Company or
involving the failure or refusal of the Company to perform fully in accordance
with the terms hereof, the Company shall reimburse the Participant on a current
basis (and in accordance with Section 8 below) for all reasonable legal
fees and related expenses, if any, incurred by the Participant in connection
with such contest or dispute, provided that the Participant shall be
required to repay immediately any such amounts to the Company to the extent
that a court or an arbitration panel issues a final and non- appealable order
setting forth the determination that the position taken by the Participant was
frivolous or advanced by the Participant in bad faith.


 


7.             Scope of Plan. Nothing in this Plan
shall be deemed to entitle the Participant to continued employment with the
Company, and if a Participant’s employment with the Company shall terminate
before a Change in Control, the Participant shall have no further rights under
this Plan (except as specifically provided herein); provided that any
termination of a Participant’s employment during the Termination Period shall
be subject to all of the provisions of this Plan.


 


8.             Certain Additional Agreements under Section 409A.


 


(a)           If
and to the extent that  (i) any
payment or benefit is determined by the Company to constitute “non-qualified
deferred compensation” subject to Section 409A, (ii) such payment or
benefit under this Plan or otherwise is provided to a Participant who is a “specified
employee” (within the meaning of Section 409A and as determined pursuant
to procedures established by the Company) and (iii) such payment or benefit
must be delayed for six months from the Participant’s Date of Termination (or
an earlier date) in order to comply with Section 409A(a)(2)(B)(i) of
the Code and not cause the Participant to incur any additional tax under Section 409A,
then the Company 


 


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will delay making any such payment or providing such benefit until the
expiration of such six month period.  Any
payment or benefit due upon a termination of the Participant’s employment that
represents a “deferral of compensation” within the meaning of Section 409A
shall only be paid or provided to the Executive upon a “separation from service”
(within the meaning of Treas. Reg. 1.409A-1(h)).  If a Participant dies
within 6 months following such separation from service, any such delayed
payments or benefits shall not be further delayed, and shall be immediately
payable to his or her estate in accordance with the applicable provisions of
this Plan.


 


(b)           Notwithstanding
anything to the contrary herein, any payment or benefit under Section 4 or
6 or otherwise that is exempt from Section 409A pursuant to Treas. Reg.
1.409A-1(b)(9)(v)(A) or (C) shall be paid or provided to the
Participant only to the extent that the expenses are not incurred, or the
benefits are not provided, beyond the last day of the second taxable year of
the Participant following the taxable year of the Participant in which the “separation
from service” occurs; and provided further that such expenses are reimbursed no
later than the last day of the third taxable year following the taxable year of
the Participant in which the “separation from service” occurs.


 


(c)           Except
as otherwise expressly provided herein, to the extent any expense reimbursement
or the provision of any in-kind benefit under this Plan is determined to be
subject to Section 409A, the amount of any such expenses eligible for
reimbursement, or the provision of any in-kind benefit, in one calendar year
shall not affect the expenses eligible for reimbursement in any other taxable
year (except for any life-time or other aggregate limitation applicable to
medical expenses), in no event shall
any expenses be reimbursed after the last day of the calendar year following
the calendar year in which the Participant incurred such expenses, and in no
event shall any right to reimbursement or the provision of any in-kind benefit
be subject to liquidation or exchange for another benefit.


 


(d)           For
the purposes of this Plan, each payment made pursuant to Section 4(b) or
(c) shall be deemed to be separate payments, and amounts payable under Section 4
of this Plan shall be deemed not to be a “deferral of compensation” subject to Section 409A
to the extent provided in the exceptions in Treas. Reg. Sections 1.409A-1(b)(4) (“short-term
deferrals”) and (b)(9) (“separation pay plans,” including the exception
under subparagraph (iii)) and other applicable provisions of Treas. Reg. Section 1.409A-1
through A-6.


 


9.             Participant Covenants.


 


(a)           In
the performance of the Participant’s duties, the Participant has previously
had, and may in the future have, access to confidential records and
information, including, but not limited to, development, marketing, purchasing,
organizational, strategic, financial, managerial, administrative,
manufacturing, production, distribution and sales information, data,
specifications and processes presently owned or at any time hereafter developed
by the Company or its agents or consultants or used presently or at any time
hereafter in the course of its business, that are not otherwise part of the
public domain (collectively, the “Confidential
Material”). All such Confidential 


 


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Material is considered secret and has been and/or will be disclosed to
the Participants in confidence. By executing a Separation Agreement and
Release, a Participant shall agree that:


 


(v)           the Confidential
Material constitutes propriety information of the Company which draws
independent economic value, actual or potential, from not being generally known
to the public or to other persons who could obtain economic value from its
disclosure or use, and that the Company has taken efforts reasonable under the
circumstances, of which this Section 9(a) is an example, to maintain
its secrecy;


 


(vi)          except in the performance
of a Participant’s duties to the Company, he or she shall not, directly or
indirectly for any reason whatsoever, disclose or use any such Confidential
Material that (x) has been publicly disclosed or was within the
Participant’s possession before its being furnished to him or her by the
Company or becomes available to him or her on a nonconfidential basis from a
third party (in any of such cases, not due to a breach by the Participant or
his or her obligations to the Company or by breach of any other person of a
confidential, fiduciary or confidential obligation, the breach of which the
Participant knows or reasonably should know), (y) is required to be
disclosed by the Participant pursuant to applicable law, and the Participant
provides notice to the Company of such requirement as promptly as possible, or (z) was
independently acquired or developed by the Participant without violating any of
the obligations under this Plan and without relying on Confidential Material of
the Company; and


 


(vii)         All records, files,
drawings, documents, equipment and other tangible items, wherever located,
relating in any way to the Confidential Material or otherwise to the Company’s
business, which a Participant has prepared, used or encountered shall be and
remain the Company’s sole and exclusive property and shall be included in the
Confidential Material, and, upon a Participant’s termination of employment with
the Company, or whenever requested by the Company, he or she shall promptly
deliver to the Company any and all of the Confidential Material and copies
thereof, not previously delivered to the Company, that may be, or at any
previous time has been, in his or her possession or under his or her control.


 


(b)           By
executing a Separation Agreement and Release, a Participant shall agree that,
for a number of years following his or her Date of Termination equal to the
Severance Multiple, he or she shall not, in any manner, directly or indirectly
(without the prior written consent of the Company):  (i) Solicit any Client to transact
business with a Competitive Enterprise or to reduce or refrain from doing any
business with the Company, (ii) interfere with or damage any relationship
between the Company and a Client or (iii) Solicit anyone who is then an
employee of the Company (or who was an employee of the Company within the prior
12 months) to resign from the Company or to apply for or accept employment with
any other business or enterprise. For purposes of this Plan: (i) “Competitive Enterprise” means any
business enterprise that either (A) 


 


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engages in any activity closely associated with commercial banking or
the operation of an institution, the deposits of which are insured by the
Federal Deposit Insurance Corporation, in a Restricted Territory (as defined
below), or (B) holds a 25% or greater equity, voting or profit
participation interest in any enterprise that engages in such a competitive
activity; (ii) “Client”
means any client or prospective client of the Company to whom the Participant
provided services, or for whom the Participant transacted business; and (iii) “Solicit” means any direct or indirect
communication of any kind, regardless of who initiates it, that in any way
invites, advises, encourages or requests any person to take or refrain from
taking any action. Nothing in this Section 9(b), however, shall prohibit a
Participant or any Person or entity in which he or she has an interest from
placing advertisements in periodicals of general circulation soliciting
applications for employment, or from employing any person who answers any such
advertisement. A Participant shall not be deemed to violate this Section 9(b) solely
by virtue of his or her interest in a Person whose stock is publicly traded if
he or she is the owner of not more than 2% of the outstanding shares of any
class of stock of such corporation, provided he or she has no active
participation in the business of such corporation (other than voting his or her
stock) and he or she does not provide services to such corporation in any
capacity (whether as an employee, an independent contractor or consultant, a
board member, or otherwise).


 


(c)           Solely
in the case of a Participant whose Severance Multiple is more than 2, by his or
her executing a Separation Agreement and Release, he or she agrees that, for 2
years following the Date of Termination, he or she shall not directly or
indirectly (without the prior written consent of the Company) associate
(including as a director, officer, employee, partner, consultant, agent or
advisor) with a Competitive Enterprise in a Restricted Territory and in
connection with such Participant’s association engage, or directly or
indirectly manage or supervise personnel engaged, in any activity:


 


(viii)        that is substantially related
to any activity that the Participant was engaged in with the Company during the
12 months before the date of termination of the Participant’s employment,


 


(ix)           that is substantially
related to any activity for which the Participant had direct or indirect
managerial or supervisory responsibility with the Company during the 12 months
before the Date of Termination, or


 


(x)            that calls for the
application of specialized knowledge or skills substantially related to those
used by the Participant in his or her activities with the Company during the 12
months before the Date of Termination.


 


For purposes of this Plan, “Restricted
Territory” means the geographic area of all counties in which
the Company (or its subsidiaries) has a branch. In addition, for the purposes
of this Plan, each Participant whose Severance Multiple is more than 2 is part
of “executive and management personnel” of the Company within the meaning of
C.R.S. § 8-2-113(2).


 


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(d)           By
a Participant’s acceptance of payments under this Plan, he or she shall be
deemed to have acknowledged that violation of Sections 9(a), 9(b) or 9(c) of
this Plan would cause the Company irreparable damage for which the Company
cannot be reasonably compensated in damages in an action at law, and that
therefore, in the event of any breach by him or her of such Sections, the
Company shall be entitled to make application to a court of competent
jurisdiction for equitable relief by way of injunction or otherwise (without
being required to post a bond). This provision shall not, however, be construed
as a waiver of any of the rights which the Company may have for damages under
this Plan or otherwise, and, except as limited in Section 13(b), all of
the Company’s rights and remedies shall be unrestricted.


 


10.           Successors;
Binding Agreement.


 


(a)           The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to unconditionally assume all of the obligations
of the Company hereunder. Failure of the Company to obtain such assumption
before the effectiveness of any such succession shall constitute Good Reason
hereunder and shall entitle the Participant to compensation and other benefits
from the Company in the same amount and on the same terms as the Participant
would be entitled hereunder if the Participant’s employment were terminated
following a Change in Control by reason of a Qualifying Termination, except
that for purposes of implementing the foregoing, the date on which any
succession becomes effective shall be deemed the Date of Termination.


 


(b)           The
benefits provided under this Plan shall inure to the benefit of and be
enforceable by the Participant’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Participant shall die while any amounts would be payable to the Participant
hereunder had the Participant continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Plan to such person or persons appointed in writing by the Participant to
receive such amounts or, if no person is so appointed, to the Participant’s
estate.


 


11.           Notice
of Termination. Any purported termination of a Participant’s
employment by the Company, or by a Participant, as the case may be, shall be
communicated by written notice of termination to the other party hereto in
accordance with Section 12 hereof. For purposes of this Plan, a “notice of
termination” shall mean a notice which shall indicate the specific termination
provision in this Plan relied upon and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the
Participant’s employment under the provision so indicated. The failure by the
Participant or the Company to set forth in such notice any fact or circumstance
which contributes to a showing of Good Reason or Cause shall not waive any
right of the Participant or the Company hereunder or preclude the Participant
or the Company from asserting such fact or circumstance in enforcing the
Participant’s or the Company’s rights hereunder.


 


11

















 


12.           Notice.
For purposes of this Plan, all notices and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given when delivered or 5 days after deposit in the United States mail, certified
and return receipt requested, postage prepaid, addressed as follows:


 


If to
the Participant:  the address listed as
the Participant’s address in the Company’s personnel files.


 


If to
the Company:


 


Guaranty Bancorp


1331 Seventeenth Street, Suite 300


Denver, Colorado  80202


Attention:  General Counsel


 


or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.


 


13.           Full
Settlement; Resolution of Disputes.


 


(a)           The
Company’s obligation to make any payments provided for in this Plan and
otherwise to perform its obligations hereunder shall be in lieu and in full
settlement of all other severance payments to the Participant under any other
severance or employment agreement between the Participant and the Company, and
any severance plan of the Company. In no event shall the Participant be
obligated to seek other employment or take other action by way of mitigation of
the amounts payable to the Participant under any of the provisions of this Plan
and, except as provided in the Separation Agreement and Release, such amounts
shall not be reduced whether or not the Participant obtains other employment.


 


(b)           Any
controversy or claim between the Participant and the Company arising out of or
relating to or concerning this Plan (including the covenants contained in Section 9)
and any dispute regarding the Participant’s employment or the termination of
Participant’s employment or any dispute regarding the application,
interpretation or validity of this Plan (each, an “Employment Matter”) will be finally
settled by arbitration in Denver County, Colorado and administered by the
American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules then
in effect. In the event of any conflict between this Plan and the rules of
the American Arbitration Association, the provisions of this Plan shall be
determinative. If the parties are unable to agree upon an arbitrator, they
shall select a single arbitrator from a list of 5 arbitrators designated by the
office of the American Arbitrator Association having responsibility for Denver
County, Colorado, all of whom shall be retired judges who are actively involved
in hearing private cases or members of the National Academy of Arbitrators, and
who, in either event, are residents of such forum. If the parties are unable to
agree upon an arbitrator from such list, they shall each strike names
alternatively from the list, with the first to strike being determined by lot.
After each party has used 2 strikes, 


 


12

















 


the remaining name on the list shall be the arbitrator. The AAA’s
Commercial Arbitration Rules will be modified in the following ways:  (i) each arbitrator will agree to treat
as confidential evidence and other information presented to them, (ii) there
will be no authority to award punitive damages, (iii) there will be no
authority to amend or modify the terms of the Plan and (iv) a decision must
be rendered within 10 business days of the parties’ closing statements or
submission of post-hearing briefs. A Participant or the Company may bring an
action or special proceeding in a state or federal court of competent
jurisdiction sitting in Denver County, Colorado to enforce any arbitration
award under this Section 13(b).


 


14.           Survival.
The respective obligations and benefits afforded to the Company and the
Participant as provided in Sections 4 (to the extent that payments or benefits
are owed as a result of a termination of employment that occurs during the term
of this Plan) 5, 6, 9, 10(b) and 13 shall survive the termination of this
Plan.


 


15.           GOVERNING
LAW; VALIDITY. THE INTERPRETATION, CONSTRUCTION AND PERFORMANCE
OF THIS PLAN SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF COLORADO, WITHOUT REGARD TO THE PRINCIPLE OF
CONFLICTS OF LAWS, AND APPLICABLE FEDERAL LAWS. THE INVALIDITY OR
UNENFORCEABILITY OF ANY PROVISION OF THIS PLAN SHALL NOT AFFECT THE VALIDITY OR
ENFORCEABILITY OF ANY OTHER PROVISION OF THIS PLAN, WHICH OTHER PROVISIONS
SHALL REMAIN IN FULL FORCE AND EFFECT.


 


16.           Term;
Amendment and Termination.


 


(a)           This
Plan shall continue in full force and effect until its terms and provisions are
completely carried out except that (i) the Board may terminate this Plan
at a time that is both before a Change in Control and not during a Change in
Control Period and (ii) the Board may terminate this Plan as to future
Changes in Control beginning on the second anniversary of the last Change in
Control then to occur.


 


(b)           This
Plan may be amended in any respect by the Board so long as the amendment is
made at a time that is both before a Change in Control and not during a Change
in Control Period and so long as any such amendment does not cause a
Participant to incur additional tax or penalties under Section 409A. In
addition, the Board may amend this Plan as to future Changes in Control
beginning on the second anniversary of the last Change in Control then to
occur.


 


(c)           For
the avoidance of doubt, during a Change in Control Period or Termination
Period, this Plan shall not be subject to amendment, change, substitution,
deletion, revocation or termination in any respect.


 


(d)           A “Change in Control Period” shall begin
on the occurrence of any of (i) the Company (or any Person acting on the
Company’s behalf) conducting negotiations to effect a Change in Control and (ii) the
Company (or any Person acting on 


 


13

















 


its behalf) executing a letter of intent (whether or not binding) or a
definitive agreement to effect a Change in Control and shall end on the earlier
of (A) the date of the occurrence of a Change in Control and (B) 90
days after both (x) the Company (or any Person acting on the Company’s
behalf) ceases conducting negotiations to effect a Change in Control and (y) any
letter of intent (whether or not binding) or a definitive agreement to effect a
Change in Control has terminated or expired (other than with respect to
provisions relating to confidentiality or other provisions reasonably
determined by the Board to be unrelated to effecting a future Change in
Control).


 


17.           Interpretation
and Administration. The Plan shall be administered by the Board.
The Board may delegate any of its powers under the Plan to a committee
thereof.  Unless otherwise provided in
this Plan, actions of the Board or such committee shall be taken by a majority
vote of its members. All references to the “Board” herein shall be deemed to be
references to such delegate, as appropriate. The Board shall have the authority
(i) to exercise all of the powers granted to it under the Plan, (ii) to
construe, interpret and implement the Plan, (iii) to prescribe, amend and
rescind rules and regulations relating to the Plan, (iv) to make all
determinations necessary or advisable in administration of the Plan and (v) to
correct any defect, supply any omission and reconcile any inconsistency in the
Plan.  Notwithstanding any other
provisions of the Plan to the contrary and to the extent applicable, it is
intended that the Plan comply with the requirements of Section 409A, and
the Plan shall be interpreted, construed and administered in accordance with
this intent, so as to avoid the imposition of taxes and penalties on the
Participant pursuant to Section 409A. 
However, the Company shall have no liability to any Participant,
beneficiary or otherwise if the Plan or any amounts paid or payable hereunder
are subject to the additional tax and penalties under Section 409A.


 


18.           Type
of Plan. This Plan is intended to be, and shall be interpreted
as an unfunded employee welfare plan under Section 3(1) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and Section 2520.104-24
of the Department of Labor Regulations, maintained primarily for the purpose of
providing employee welfare benefits, to the extent that it provides welfare
benefits, and under Sections 201, 301 and 401 of ERISA, as a plan that is
unfunded and maintained primarily for the purpose of providing deferred
compensation, to the extent that it provides such compensation, in each case
for a select group of management or highly compensated employees.


 


19.           Severability.
If a provision of this Plan shall be held illegal or invalid, the illegality or
invalidity shall not affect the remaining parts of this Plan and this Plan
shall be construed and enforced as if the illegal or invalid provision had not
been included.


 


20.           Nonassignability.
Except as otherwise provided in Section 10(b), benefits under the Plan may
not be sold, assigned, transferred, pledged, anticipated, mortgaged, or
otherwise encumbered, transferred, hypothecated, or conveyed in advance of
actual receipt the amounts, if any, payable hereunder, or any part thereof by
the Participant.


 


14

















 


21.           Effective
Date. The Plan was adopted and became effective as of December 11,
2006, was amended and restated as of May 7, 2007, and was further amended
and restated effective as of January 1, 2009.


 


15

















 


Schedule
A


 


 


	
  Employee

  	
   

  	
  Severance
  Multiple

  	
   

  	
  Participation
  Period

  
	
  Daniel M. Quinn

  	
   

  	
  3

  	
   

  	
  Until removed by the
  Board in accordance with Section 3.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Zsolt K. Besskó

  	
   

  	
  2

  	
   

  	
  Until removed by the
  Board in accordance with Section 3.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Suzanne R. Brennan

  	
   

  	
  2

  	
   

  	
  Until removed by the
  Board in accordance with Section 3.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sherri L. Heronema

  	
   

  	
  2

  	
   

  	
  Until removed by the
  Board in accordance with Section 3.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  James K. Simons

  	
   

  	
  2

  	
   

  	
  Until removed by the
  Board in accordance with Section 3.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Paul W. Taylor

  	
   

  	
  2

  	
   

  	
  Until removed by the
  Board in accordance with Section 3.

  



 





















 


Schedule B


 


Additional
Reimbursement Payments by the Company


 


(a)           Pursuant
to Section 4(e) of the Plan, in the event it shall be determined that
any payment, award, benefit or distribution (or any acceleration of any
payment, award, benefit or distribution) by the Company (or any of its
affiliated entities or any entity which effectuates a Change in Control (or any
of its affiliated entities) to or for the benefit of the Participant (whether
pursuant to the terms of this Plan or otherwise, but determined without regard
to any additional payments required under this Schedule B) (the “Payments”) would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986,
as amended (the “Code”), or
any interest or penalties are incurred by the Participant with respect to such
excise tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the
Participant an additional payment (a “Reimbursement
Payment”) in an amount such that after payment by the
Participant of all taxes (including any Excise Tax) imposed upon the
Reimbursement Payment, the Participant retains an amount of the Reimbursement
Payment equal to the Excise Tax imposed upon the Payments. For purposes of
determining the amount of the Reimbursement Payment, the Participant shall be
deemed to (i) pay federal income taxes at the highest marginal rates of
federal income taxation for the calendar year in which the Reimbursement
Payment is to be made and (ii) pay applicable state and local income taxes
at the highest marginal rate of taxation for the calendar year in which the
Reimbursement Payment is to be made, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state and local
taxes.  The Excise Reimbursement Payment shall
be paid to the Participant as soon as practicable following determination of
the amount thereof, but in event no later than by the end of the Participant’s
taxable year next following the taxable year in which the Excise Tax is
remitted.


 


(b)           Notwithstanding
the provisions of paragraph (a) above, if it shall be determined that the
Participant is entitled to a Reimbursement Payment, but that the Payments would
not be subject to the Excise Tax if the Payments were reduced by an amount that
is no more than 10% of the portion of the Payments that would be treated as “parachute
payments” under Section 280G of the Code, then the amounts payable to the
Participant under this Plan shall be reduced (but not below zero) to the
maximum amount that could be paid to the Participant without giving rise to the
Excise Tax (the “Safe Harbor Cap”),
and no Reimbursement Payment shall be made to the Participant.  The reduction of the amounts payable
hereunder, if applicable, shall be made by reducing first the benefits under Section 4(d),
followed by the payments under Section 4(c) and then the payment
under Section 4(b).


 


(c)           Subject
to the provisions of paragraphs (a) and (b) above, all determinations
required to be made under this Schedule B, including whether and when a
Reimbursement Payment is required, the amount of such Reimbursement Payment,
the amount of any Option Redetermination (as defined below), the reduction of
the Payments 


 

















 


to the Safe Harbor Cap and the assumptions to be utilized in arriving
at such determinations, shall be made by a public accounting firm that is
retained by the Company as of the date immediately before the Change in Control
(the “Accounting Firm”)
which shall provide detailed supporting calculations both to the Company and
the Participant within 15 business days of the receipt of notice from the
Company or the Participant that there has been a Payment, or such earlier time
as is requested by the Company (collectively, the “Determination”). For the avoidance of
doubt, the Accounting Firm may use the Option Redetermination amount in
determining the reduction of the Payments to the Safe Harbor Cap.
Notwithstanding the foregoing, in the event (i) the Board shall determine
before the Change in Control that the Accounting Firm is precluded from
performing such services under applicable auditor independence rules or (ii) the
Audit Committee of the Board determines that it does not want the Accounting
Firm to perform such services because of auditor independence concerns or (iii) the
Accounting Firm is serving as accountant or auditor for the person(s) effecting
the Change in Control, the Board shall appoint another nationally recognized
public accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the “Accounting Firm” for all purposes
of this Plan). All fees and expenses of the Accounting Firm shall be borne
solely by the Company, and the Company shall enter into any agreement
reasonably requested by the Accounting Film in connection with the performance
of the services hereunder.  If the
Accounting Firm determines that no Excise Tax is payable by a Participant, it
shall furnish the Participant with a written opinion to such effect, and to the
effect that failure to report the Excise Tax, if any, on the Participant’s
applicable federal income tax return will not result in the imposition of a
negligence or similar penalty. In the event the Accounting Firm determines that
the Payments shall be reduced to the Safe Harbor Cap, it shall furnish the
Participant with a written opinion to such effect. The Determination by the
Accounting Firm shall be binding upon the Company and the Participant.


 


(d)           As
a result of the uncertainty in the application of Section 4999 of the Code
at the time of the Determination, it is possible that Reimbursement Payments
which will not have been made by the Company should have been made (“Underpayment”) or Reimbursement
Payments are made by the Company which should not have been made (“Overpayment”), consistent with the
calculations required to be made hereunder. In the event the amount of the
Reimbursement Payment is determined by the Accounting Firm, the Company (which
includes the position taken by the Company on its federal income tax return),
the Internal Revenue Service or a court to be less than the amount necessary to
reimburse the Participant for the Excise Tax, the amount of the Underpayment
that has occurred and any such Underpayment (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid
(but in event no later than by the end of the Participant’s taxable year next
following the taxable year in which the Excise Tax is remitted) by the Company
to or for the benefit of the Participant. 
In the event the amount of the Reimbursement Payment is determined, by
final determination of a court or Internal Revenue Service proceeding (that is
final and conclusively resolved), to exceed the amount necessary to reimburse
the Participant for the Excise Tax, the Accounting Firm shall determine the
amount of the Overpayment that has been made and any such Overpayment (together
with interest at the rate provided in 


 


B-2

















 


Section 1274(b)(2) of the Code) shall be promptly paid by the
Participant (to the extent the Participant has received a refund if the
applicable Excise Tax has been paid to the Internal Revenue Service) to or for
the benefit of the Company. The Participant shall cooperate, to the extent his
or her expenses are reimbursed by the Company, with any reasonable requests by
the Company in connection with any contests or disputes with the Internal
Revenue Service in connection with the Excise Tax. In the event that the
Company makes a Reimbursement Payment to the Participant and subsequently the
Company determines that the value of any accelerated vesting of stock options
held by the Participant shall be redetermined within the context of Treasury
Regulation § 1.280G-1 Q/A 33 (the “Option Redetermination”), the Participant shall (i) file
with the Internal Revenue Service an amended federal income tax return that
claims a refund of the overpayment of the Excise Tax attributable to such
Option Redetermination and (ii) promptly pay the refunded Excise Tax to
the Company; provided that the Company shall pay all reasonable
professional fees incurred in the preparation of the Participant’s amended
federal income tax return. If the Option Redetermination occurs in the same
year that the Reimbursement Payment is included in the Participant’s taxable
income, then in addition to returning the refund to the Company, the
Participant will also promptly return to the Company any tax benefit realized
by the return of such refund and the return of the additional tax benefit
payment (all determinations pursuant to this sentence shall be made by the
Accounting Firm). In the event that amounts payable to the Participant under
this Plan were reduced pursuant to paragraph (b) above and subsequently
the Participant determines there has been an Option Redetermination that
reduces the value of the Payments attributable to such options, the Company
shall promptly pay to the Participant any amounts payable under this Plan that
were not previously paid solely as a result of the provisions of paragraph (b) above,
up to the Safe Harbor Cap.


 


B-3





















 


Schedule
C


 


FORM OF CIC SEPARATION AGREEMENT AND RELEASE
(HEREIN “AGREEMENT”)


 


In connection with the termination of your
employment by Guaranty Bancorp (the “Company”),
effective
                     , 200     
, and in accordance with the terms and conditions of the Guaranty Bancorp
Change In Control Severance Plan, as established December 11, 2006 (the “Plan”), the Company agrees to provide
you, contingent upon your execution of this Agreement, with the following
severance payment and benefits:


 


·      [description
of severance payment and benefits to be inserted]


 


In consideration of the payment and benefits set
forth above, you agree knowingly and voluntarily as follows:


 


1.                                       You knowingly and voluntarily waive and
release forever whatever claims you ever had, now have or hereafter may have
against the Company and any subsidiary or affiliate of the Company, any of
their successors or assigns and any of their present and former employees,
directors, officers and agents (collectively referred to as “Releasees”), based
upon any matter, occurrence or event existing or occurring before the execution
of this Agreement, including anything relating to your employment with the
Company and any of its subsidiaries or affiliates or to the termination of such
employment or to your status as a shareholder or creditor of the Company.


 


This release and waiver
includes but is not limited to any rights or claims under United States
federal, state or local law and the national or local law of any foreign
country (statutory or decisional), for wrongful or abusive discharge, for
breach of any contract, for misrepresentation, for breach of any securities
laws, or for discrimination based upon race, color, ethnicity, sex, age,
national origin, religion, disability, sexual orientation, or any other
unlawful criterion or circumstance, including rights or claims under the Age
Discrimination in Employment Act of 1967 (“ADEA”)(except that you do not waive
ADEA rights or claims that may arise after the date of this Agreement).


 


2.                                       You agree never to institute any claim, suit
or action at law or in equity against any Releasee in any way by reason of any
claim you ever had, now have or hereafter may have relating to the matters
described in the two preceding paragraphs.


 


3.                                       The payment and
benefits described herein shall be in lieu of any and all other amounts to
which you might be, are now or may become entitled from the Company, its
subsidiaries and affiliates and, without limiting the generality of the
foregoing, you hereby expressly waive any right or claim that you may have or assert to payment for
salary, bonuses, medical, dental or hospitalization benefits, life insurance
benefits or attorneys’ fees; provided that notwithstanding any other provision
of this Agreement, you do not waive any of your rights and the Company shall
comply with its obligations with respect to continuation coverage 


 

















 


requirements under Section 4980B of the Internal Revenue Code of
1986, as amended (commonly referred to as “COBRA”).


 


4.                                       You hereby expressly agree to comply with the
restrictions on your conduct set forth in Section 9 of the Plan for the
periods applicable to you (as if such Section 9 were directly incorporated
in this Agreement). You acknowledge that your compliance with Section 9 of
the Plan is a material condition to the Company providing you with the payment
and benefits described herein and that the Company would not have agreed to
provide such payment or benefits absent your agreement. You also acknowledge
that Section 9 of the Plan limits your ability to earn a livelihood in a
Competitive Enterprise (as defined in the Plan) and your relationships with
Clients (as defined in the Plan). You acknowledge, however, that complying with
Section 9 of the Plan will not result in severe economic hardship for you
or your family.


 


[Your signature below will also constitute
confirmation that (i) you have been given at least 21 days within which to
consider this release and its consequences, (ii) you have been advised
before signing this Agreement to consult, and have consulted, with an attorney
of your choice, and (iii) you have been advised that you may revoke this
Agreement at any time during the 7 day period immediately following the date
you signed this letter.] [Subject to revision
based on circumstances of participant, and in accordance with applicable law]


 


This Agreement shall be governed by the laws of
State of Colorado.


 


Please confirm by returning to                            
the enclosed copy of this Agreement, signed in the place provided, that you
have knowingly and voluntarily decided to accept and agree to the foregoing.


 


	
  GUARANTY BANCORP

  
	
   

  
	
   

  
	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 


	
  AGREED AND ACKNOWLEDGED:

  
	
   

  
	
   

  
	
   

  
	
  Name:

  	
   

  
	
  Date:

  	
   

  



 


C-2