Exhibit 10.2
GUARANTY BANCORP
DEFERRED COMPENSATION PLAN
Amended and Restated, Effective January 1,
2009
Guaranty Bancorp Deferred Compensation
Plan
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ARTICLE I
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Establishment and Purpose
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3
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ARTICLE II
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Definitions
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3
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ARTICLE III
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Eligibility and
Participation
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9
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ARTICLE IV
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Deferrals
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10
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ARTICLE V
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Company Contributions
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13
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ARTICLE VI
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Benefits
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14
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ARTICLE VII
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Modifications to Payment
Schedules
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17
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ARTICLE VIII
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Valuation of Account Balances;
Investments
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17
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ARTICLE IX
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Administration
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19
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ARTICLE X
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Amendment and Termination
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20
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ARTICLE XI
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Informal Funding
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21
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ARTICLE XII
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Claims
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21
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ARTICLE XIII
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General Provisions
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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
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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
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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
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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.
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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
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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
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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 15 th 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
b
