Exhibit 10(i)(d)
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is entered into effective as of this 21st day
of July, 2006, by and among Xxxxx X. Xxxxxxxxx III (the "Executive"), BNC
Bancorp, a North Carolina corporation, and Bank of North Carolina, a North
Carolina-chartered bank and wholly owned subsidiary of BNC Bancorp. BNC Bancorp
and Bank of North Carolina are hereinafter sometimes referred to together or
individually as "BNC."
WHEREAS, the Executive possesses unique skills, knowledge, and
experience relating to the banking business, and as Executive Vice President and
Chief Administrative Officer of BNC the Executive is expected to make
significant contributions to the profitability, growth, and financial strength
of BNC and affiliates,
WHEREAS, BNC desires to assure itself of the continuity of management
and desires to establish minimum severance benefits for certain of its officers
and other key employees if a change in control occurs, and BNC wishes to ensure
that officers and other key employees are not practically disabled from
discharging their duties if a proposed or actual transaction involving a change
in control arises,
WHEREAS, BNC desires to provide additional inducement for the Executive
to remain in the employ of BNC as Executive Vice President,
WHEREAS, BNC and the Executive desire to set forth in this Employment
Agreement the terms and conditions of the Executive's employment, and
WHEREAS, none of the conditions or events included in the definition of
the term "golden parachute payment" that is set forth in Section 18(k)(4)(A)(ii)
of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in
Federal Deposit Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR
359.1(f)(1)(ii)] exists or, to the best knowledge of BNC, is contemplated
insofar as BNC or any affiliates are concerned.
NOW THEREFORE, in consideration of these premises, the mutual covenants
contained herein, and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows.
ARTICLE 1
EMPLOYMENT
1.1 EMPLOYMENT. BNC Bancorp and Bank of North Carolina hereby
employ the Executive to serve as Executive Vice President according to the terms
and conditions of this Employment Agreement and for the period stated in section
1.3. The Executive hereby accepts employment according to the terms and
conditions of this Employment Agreement and for the period stated in section
1.3.
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1.2 DUTIES. As Executive Vice President, the Executive shall serve
under the direction of the President and Chief Executive Officer and in
accordance with BNC Bancorp's and Bank of North Carolina's Articles of
Incorporation and Bylaws, as each may be amended or restated from time to time.
He shall serve BNC faithfully, diligently, competently, and to the best of his
ability, and he shall exclusively devote his full time, energy, and attention to
the business of BNC and to the promotion of BNC's interests throughout the term
of this Employment Agreement. Without the written consent of BNC Bancorp's board
of directors, during the term of this Employment Agreement the Executive shall
not render services to or for any person, firm, corporation, or other entity or
organization in exchange for compensation, regardless of the form in which such
compensation is paid and regardless of whether it is paid directly or indirectly
to the Executive. Nothing in this section 1.2 shall prevent the Executive from
managing his personal investments and affairs, however, provided that doing so
does not interfere with the proper performance of his duties and
responsibilities.
1.3 TERM. The initial term of this Employment Agreement shall be
for a period of three years, commencing July 21, 2006. On the first anniversary
of the July 21, 2006 effective date of this Employment Agreement and on each
anniversary thereafter, this Employment Agreement shall be extended
automatically for one additional year unless BNC's board of directors determines
that the term shall not be extended. If the board of directors determines not to
extend the term, it shall promptly notify the Executive in writing. If the board
decides not to extend the term of this Employment Agreement, this Employment
Agreement shall nevertheless remain in force until its term expires. The board's
decision not to extend the term of this Employment Agreement shall not - by
itself - give the Executive any rights under this Employment Agreement to claim
an adverse change in his position, compensation, or circumstances or otherwise
to claim entitlement to severance benefits under Articles 4 or 5 of this
Employment Agreement. References herein to the term of this Employment Agreement
shall refer to the initial term, as the same may be extended. Unless sooner
terminated, the Executive's employment shall terminate when he reaches age 65.
1.4 SERVICE ON THE BOARD OF DIRECTORS. (a) Board of Directors of
BNC Bancorp. BNC Bancorp shall nominate the Executive for election as a director
at such times as necessary so that the Executive will, if elected by
stockholders, remain a director of BNC Bancorp throughout the term of this
Employment Agreement. The Executive hereby consents to serve as a director of
BNC Bancorp and the Executive hereby consents to being named as a director of
BNC Bancorp in documents filed by BNC Bancorp with the Securities and Exchange
Commission. The Executive shall be deemed to have resigned as a director of BNC
Bancorp effective immediately after termination of the Executive's employment
under Article 3 of this Employment Agreement, regardless of whether the
Executive submits a formal, written resignation as director.
(b) Board of Directors of Bank of North Carolina. The board of
directors of BNC Bancorp and the board of directors of Bank of North Carolina
shall undertake every lawful effort to ensure that the Executive continues
throughout the term of his employment to be elected or reelected as a director
of Bank of North Carolina. The Executive shall be deemed to have resigned as a
director of Bank of North Carolina effective immediately after termination of
the Executive's employment under Article 3 of this Employment Agreement,
regardless of whether the Executive submits a formal, written resignation as
director.
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ARTICLE 2
COMPENSATION AND OTHER BENEFITS
2.1 BASE SALARY. In consideration of the Executive's performance
of his obligations under this Employment Agreement, BNC Bancorp shall pay or
cause to be paid to the Executive a salary at the annual rate of not less than
$195,000, payable in monthly installments. The Executive's salary shall be
reviewed annually by the Compensation Committee of BNC's board of directors or
by such other board committee as has jurisdiction over executive compensation.
The Executive's salary shall be increased no more frequently than annually to
account for cost of living increases. The Executive's salary also may be
increased beyond the amount necessary to account for cost of living increases at
the discretion of the committee having jurisdiction over executive compensation.
However, the Executive's salary shall not be reduced. The Executive's salary, as
the same may be increased from time to time, is referred to in this Employment
Agreement as the "Base Salary."
2.2 BENEFIT PLANS AND PERQUISITES. The Executive shall be entitled
throughout the term of this Employment Agreement to participate in any and all
officer or employee compensation, bonus, incentive, and benefit plans in effect
from time to time, including without limitation plans providing pension,
medical, dental, disability, and group life benefits, including BNC's 401(k)
Plan, and to receive any and all other fringe benefits provided from time to
time, provided that the Executive satisfies the eligibility requirements for any
such plans or benefits. Without limiting the generality of the foregoing -
(a) Participation in Stock Plans. The Executive shall be eligible
to participate in BNC's stock option plans and other stock-based compensation,
incentive, bonus, or purchase plans existing on the date of this Employment
Agreement or adopted during the term of this Employment Agreement.
(b) Club Dues. During the term of this Employment Agreement, BNC
shall pay or cause to be paid the Executive's membership assessments and dues in
appropriate local civic clubs. BNC shall pay the initiation and entrance fees,
assessments, and monthly dues for the Executive's and his family's membership in
one country club. Upon termination of the Executive's employment, BNC's
obligation to pay initiation and entrance fees, assessments, and monthly
expenses shall terminate. If the Executive desires to retain the country club
membership, he shall be solely responsible for any unpaid initiation and
entrance fees, assessments, and ongoing monthly dues.
(c) Use of Automobile. The Executive shall have the use of an
automobile titled in BNC's name for use by the Executive in carrying out his
duties for BNC, the insurance and maintenance expenses of which shall be paid by
BNC. As additional compensation, the Executive may use such automobile for
personal purposes, provided that the Executive renders an accounting of his
business and personal use to BNC in accordance with regulations under the
Internal Revenue Code of 1986, as amended. The provisions of this paragraph
shall not be construed to permit the use of such vehicle by family members of
the Executive.
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(d) Reimbursement of Business Expenses. The Executive shall be
entitled to reimbursement for all reasonable business expenses incurred in
performing his obligations under this Employment Agreement, including but not
limited to all reasonable business travel and entertainment expenses incurred
while acting at the request of or in the service of BNC and reasonable expenses
for attendance at annual and other periodic meetings of trade associations.
(e) Continuing Legal Education and Bar Membership Expenses. BNC
shall pay the Executive's annual dues and membership fees to the North Carolina
State Bar, the North Carolina Bar Association, and one local bar association.
The Executive shall be responsible for complying with the rules of the North
Carolina State Bar relating to continuing legal education ("CLE"). Except as set
forth below, BNC shall reimburse the Executive for travel, lodging, and tuition
he reasonably incurs to attend CLE courses necessary for his compliance with the
North Carolina State Bar's rules. However, BNC shall not be required to
reimburse the Executive for any expenses incurred by him to attend CLE courses
held outside the State of North Carolina unless, before registering for the
out-of-state course, the Executive provides to BNC Bancorp's board of directors
a description of the out-of-state CLE course (including an estimate of expenses
associated with his attendance) and obtains the board of directors' approval to
attend the out-of-state CLE course. To receive reimbursement of expenses
associated with his attendance at any CLE course, the Executive must present to
BNC a completed expense report accompanied by appropriate documentation of the
expenses actually incurred by the Executive.
2.3 VACATION. The Executive shall be entitled to paid annual
vacation and sick leave in accordance with the policies established from time to
time by BNC. The Executive shall not be entitled to any additional compensation
for failure to use allotted vacation or sick leave, nor shall the Executive be
entitled to accumulate unused sick leave from one year to the next unless
authorized by BNC's board of directors to do so. Vacation days not used in a
given year may not be carried over from one calendar year to the next.
2.4 INDEMNIFICATION AND INSURANCE. (a) Indemnification. BNC
Bancorp shall indemnify the Executive or cause the Executive to be indemnified
with respect to his activities as a director, officer, employee, or agent of BNC
Bancorp or Bank of North Carolina or as a person who is serving or has served at
the request of BNC Bancorp (a "representative") as a director, officer,
employee, agent, or trustee of an affiliated corporation, joint venture trust or
other enterprise, domestic or foreign, in which BNC Bancorp has a direct or
indirect ownership interest against expenses (including without limitation
attorneys' fees, judgments, fines, and amounts paid in settlement) actually and
reasonably incurred by him ("Expenses") in connection with any claim against the
Executive that is the subject of any threatened, pending, or completed action,
suit, or other type of proceeding, whether civil, criminal, administrative,
investigative, or otherwise and whether formal or informal (a "Proceeding"), to
which the Executive was, is, or is threatened to be made a party by reason of
the Executive being or having been such a director, officer, employee, agent, or
representative.
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The indemnification provided herein shall not be exclusive of any other
indemnification or right to which the Executive may be entitled and shall
continue after the Executive has ceased to occupy a position as an officer,
director, employee, agent or representative with respect to Proceedings relating
to or arising out of the Executive's acts or omissions during his service in
such position. The benefits provided to the Executive under this Employment
Agreement for the Executive's service as a representative shall be payable if
and only if and only to the extent that reimbursement to the Executive by the
affiliated entity with which the Executive has served as a representative,
whether pursuant to agreement, applicable law, articles of incorporation or
association, by-laws or regulations of the entity, or insurance maintained by
such affiliated entity, is insufficient to compensate the Executive for Expenses
actually incurred and otherwise payable by BNC under this Employment Agreement.
Any payments in fact made to or on behalf of the Executive directly or
indirectly by the affiliated entity with which the Executive served as a
representative shall reduce the obligation of BNC hereunder.
(b) Exclusions. Anything herein to the contrary notwithstanding,
however, nothing in this section 2.4 requires indemnification, reimbursement, or
payment by BNC Bancorp or Bank of North Carolina, and the Executive shall not be
entitled to demand indemnification, reimbursement or payment hereunder -
(1) if and to the extent indemnification, reimbursement,
or payment constitutes a "prohibited indemnification payment" within
the meaning of Federal Deposit Insurance Corporation Rule 359.1(l)(1)
[12 CFR 359.1(l)(1)], or
(2) for any claim or any part thereof as to which the
Executive shall have been determined by a court of competent
jurisdiction, from which no appeal is or can be taken, by clear and
convincing evidence, to have acted with deliberate intent to cause
injury to BNC Bancorp or Bank of North Carolina or with reckless
disregard for the best interests of BNC Bancorp, or
(3) for any claim or any part thereof arising under
Section 16(b) of the Securities Exchange Act of 1934 as a result of
which the Executive is required to pay any penalty, fine, settlement,
or judgment, or
(4) for any obligation of the Executive based upon or
attributable to the Executive gaining in fact any personal gain,
profit, or advantage to which he was not entitled, or
(5) any proceeding initiated by the Executive without the
consent or authorization of BNC Bancorp's board of directors, but this
exclusion shall not apply with respect to any claims brought by the
Executive (a) to enforce his rights under this Employment Agreement, or
(b) in any Proceeding initiated by another person or entity whether or
not such claims were brought by the Executive against a person or
entity who was otherwise a party to such proceeding.
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(c) Insurance. BNC Bancorp shall maintain or cause to be
maintained liability insurance covering the Executive throughout the term of
this Employment Agreement.
2.5 SIGNING BONUS. Upon execution of this Employment Agreement,
the Executive shall be entitled to a signing bonus in the amount of $200,000,
payable in cash no later than five days after execution of this Employment
Agreement.
2.6 SALARY CONTINUATION AGREEMENT. BNC and the Executive shall use
their best efforts to finalize and enter into a Salary Continuation Agreement
providing an annual benefit to the Executive for retirement on or after
attaining age 65. Unless the Salary Continuation Agreement explicitly provides
otherwise, whether benefits are properly payable to the Executive under the
Salary Continuation Agreement shall be determined solely by reference to that
agreement.
ARTICLE 3
TERMINATION OF EMPLOYMENT
3.1 TERMINATION BY THE EMPLOYER. (a) Death or Disability. The
Executive's employment shall terminate automatically on the date of the
Executive's death. If the Executive dies in active service to BNC, for twelve
months after the Executive's death BNC shall assist the Executive's family with
continuing health care coverage under COBRA substantially identical to that
provided for the Executive before his death.
By delivery of written notice 30 days in advance to the Executive, BNC
may terminate the Executive's employment if the Executive is disabled. For
purposes of this Employment Agreement, the Executive shall be considered
"disabled" if an independent physician selected by BNC and reasonably acceptable
to the Executive or his legal representative determines that, because of illness
or accident, the Executive is unable to perform his duties and will be unable to
perform his duties for a period of 90 consecutive days. The Executive shall not
be considered disabled, however, if he returns to work on a full-time basis
within 30 days after BNC gives him notice of termination due to disability. If
the Executive is terminated by either of BNC Bancorp or Bank of North Carolina
because of disability, his employment with the other shall also terminate at the
same time.
(b) Termination Without Cause. With written notice to the
Executive 60 days in advance, BNC may terminate the Executive's employment
without Cause. If the Executive is terminated without Cause by either of BNC
Bancorp or Bank of North Carolina, he shall be deemed also to have been
terminated without Cause by the other. During the period ending 18 months after
the date of this Employment Agreement, the Executive's employment may be
terminated without Cause if and only if termination is approved by the
affirmative vote of at least 80% of the directors of BNC Bancorp then in office
or 80% of the directors of Bank of North Carolina then in office, in either case
excluding the Executive, at a meeting duly called and held for that purpose. If
the directors approve termination of the Executive's employment without Cause by
the necessary 80% vote, a copy of the resolution duly adopted at the board of
directors' meeting shall be provided to the Executive.
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(c) Termination with Cause. BNC may terminate the Executive's
employment with Cause. If the Executive is terminated for Cause by either of BNC
Bancorp or Bank of North Carolina, he shall be deemed also to have been
terminated for Cause by the other. The Executive shall not be deemed to have
been terminated for Cause under this Employment Agreement unless and until there
is delivered to the Executive a copy of a resolution duly adopted at a meeting
of the board of directors called and held for such purpose, which resolution
shall (1) contain findings that, in the good faith opinion of the board, the
Executive has committed an act constituting Cause, and (2) specify the
particulars thereof. The resolution of the board of directors shall be deemed to
have been duly adopted if and only if it is adopted by the affirmative vote of
at least 75% of the directors of BNC Bancorp then in office or 75% of the
directors of Bank of North Carolina then in office, in either case excluding the
Executive, at a meeting duly called and held for that purpose. Notice of the
meeting and the proposed termination for Cause shall be given to the Executive a
reasonable amount of time before the board's meeting. The Executive and his
counsel (if the Executive chooses to have counsel present) shall have a
reasonable opportunity to be heard by the board at the meeting. Nothing in this
Employment Agreement limits the Executive's or his beneficiaries' right to
contest the validity or propriety of the board's determination of Cause. For
purposes of this Employment Agreement, "Cause" means any of the following -
(1) an intentional act of fraud, embezzlement, or theft
by the Executive in the course of his employment. For purposes of this
Employment Agreement, no act or failure to act on the part of the
Executive shall be deemed to have been intentional if it was due
primarily to an error in judgment or negligence. An act or failure to
act on the Executive's part shall be considered intentional if it is
not in good faith and if it is without a reasonable belief that the
action or failure to act is in the best interests of BNC, or
(2) willful violation by the Executive of any applicable
law or significant policy of BNC that, in BNC's judgment, results in an
adverse effect on BNC, regardless of whether the violation leads to
criminal prosecution or conviction. For purposes of this Agreement,
applicable laws include any statute, rule, regulatory order, statement
of policy, or final cease-and-desist order of any governmental agency
or body having regulatory authority over BNC, or
(3) the Executive's gross negligence or gross neglect of
duties in the performance of his duties to BNC Bancorp or Bank of North
Carolina, or
(4) intentional wrongful damage by the Executive to the
business or property of BNC Bancorp or Bank of North Carolina,
including without limitation the reputation of BNC Bancorp or Bank of
North Carolina, which in BNC's sole judgment causes material harm to
BNC Bancorp or Bank of North Carolina, or
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(5) a breach by the Executive of his fiduciary duties to
BNC Bancorp and its stockholders or misconduct involving dishonesty, in
either case whether in his capacity as an officer or as a director of
BNC Bancorp or Bank of North Carolina, or
(6) a breach by the Executive of this Employment
Agreement that, in the sole judgment of BNC Bancorp or Bank of North
Carolina, is a material breach, which breach is not corrected by the
Executive within 10 days after receiving written notice of the breach,
or
(7) removal of the Executive from office or permanent
prohibition of the Executive from participating in Bank of North
Carolina's affairs by an order issued under section 8(e)(4) or (g)(1)
of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1),
or
(8) conviction of the Executive for or plea of nolo
contendere to a felony or conviction of or plea of nolo contendere to a
misdemeanor involving moral turpitude, or the actual incarceration of
the Executive for 45 consecutive days or more.
3.2 TERMINATION BY THE EXECUTIVE. The Executive may terminate his
employment with written notice to BNC Bancorp 60 days in advance, whether with
or without Good Reason. If the Executive terminates with Good Reason, the
termination will take effect at the conclusion of the 60-day period unless the
event or circumstance constituting Good Reason is cured by BNC or unless the
notice of termination for Good Reason is revoked by the Executive within the
60-day period. For purposes of this Employment Agreement, "Good Reason" means
any of the following events occur without the Executive's written consent -
(a) Reduced Base Salary: reduction of the Executive's Base
Salary,
(b) Participation in Benefit Plans Reduced or Terminated:
reduction of the Executive's bonus, incentive, and other compensation award
opportunities under BNC Bancorp's benefit plans or Bank of North Carolina's
benefit plans, unless in the case of either company a company-wide reduction of
all officers' award opportunities occurs simultaneously, or termination of the
Executive's participation in any officer or employee benefit plan maintained by
BNC Bancorp or by Bank of North Carolina, unless the plan is terminated because
of changes in law or loss of tax deductibility to BNC for contributions to the
plan, or unless the plan is terminated as a matter of BNC Bancorp policy or Bank
of North Carolina policy applied equally to all participants in the plan,
(c) Reduced Responsibilities or Status: assignment to the
Executive of duties that are materially inconsistent with the Executive's
position as Executive Vice President or that represent a reduction of his
authority, failure to appoint or reappoint the Executive as Executive Vice
President, failure to nominate the Executive as a director of BNC Bancorp, or
failure to elect or reelect the Executive or cause the Executive to be elected
or reelected to the board of directors of Bank of North Carolina in accordance
with section 1.4(b) of this Employment Agreement,
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(d) Failure to Obtain Assumption Agreement: failure to obtain an
assumption of BNC's obligations under this Employment Agreement by any successor
to BNC Bancorp, regardless of whether such entity becomes a successor to BNC
Bancorp as a result of a merger, consolidation, sale of assets, or other form of
reorganization,
(e) Material Breach: a material breach of this Employment
Agreement by BNC that is not corrected within a reasonable time, or
(f) Relocation of the Executive: relocation of BNC Bancorp's
principal executive offices, or requiring the Executive to change his principal
work location, to any location that is more than 15 miles from the location of
BNC Bancorp's principal executive offices on the date of this Employment
Agreement.
3.3 NOTICE. Any purported termination by BNC or by the Executive
shall be communicated by written notice of termination to the other. The notice
must state the specific termination provision of this Employment Agreement
relied upon. The notice must also state the date on which termination shall
become effective, which shall be a date not earlier than the date of the
termination notice. If termination is for Cause or with Good Reason, the notice
must state in reasonable detail the facts and circumstances forming the basis
for termination of the Executive's employment.
ARTICLE 4
COMPENSATION AND BENEFITS AFTER TERMINATION
4.1 CAUSE. If the Executive's employment terminates for Cause, the
Executive shall receive the salary to which he was entitled through the date on
which termination became effective and any other benefits to which he may be
entitled under BNC's benefit plans and policies in effect on the date of
termination.
4.2 DISABILITY. If the Executive's employment terminates because
of his disability, the Executive shall receive the salary earned through the
date on which termination became effective, any unpaid bonus or incentive
compensation due to the Executive for the calendar year preceding the calendar
year in which the termination became effective, any payments the Executive is
eligible to receive under any disability insurance program in which the
Executive participates, such other benefits to which he may be entitled under
BNC's benefit plans, policies, and agreements, and any benefits provided for
elsewhere in this Employment Agreement.
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4.3 TERMINATION WITHOUT CAUSE AND TERMINATION FOR GOOD REASON. (a)
Continued Salary. Subject to the Executive entering into an agreement not to
compete with BNC in accordance with section 4.5, if BNC terminates the
Executive's employment without Cause within 18 months after the date of this
Employment Agreement, the Executive shall be entitled to a lump-sum severance
payment in cash in the amount of two times his Base Salary, payable no later
than 30 days after termination of the Executive's employment. Subject to the
Executive entering into an agreement not to compete with BNC in accordance with
section 4.5, if the Executive terminates his employment voluntarily within 18
months after the date of this Employment Agreement he shall be entitled to a
lump-sum severance payment in cash in an amount equal to his Base Salary,
payable no later than 30 days after termination of the Executive's employment.
Subject to the Executive entering into an agreement not to compete with BNC in
accordance with section 4.5, if the Executive remains employed with BNC for 18
months after the date of this Employment Agreement but his employment thereafter
terminates involuntarily but without Cause or voluntarily but with Good Reason,
the Executive shall continue to receive the Base Salary for the unexpired term
of this Employment Agreement, but he shall not be entitled to continued
participation in BNC's or a subsidiary's 401(k) retirement plan(s) or any
stock-based plans. BNC and the Executive acknowledge and agree that the
compensation and benefits under this paragraph (a) shall not be payable if
compensation and benefits are payable or shall have been previously paid to the
Executive under Article 5 of this Agreement. That is, the parties acknowledge
and agree that the Executive shall not be entitled to duplicative compensation
and benefit payments under paragraph (a) and under Article 5 if the Executive's
employment is terminated without Cause or if the Executive voluntarily
terminates employment.
(b) Cash-out of Value of Unvested Stock Options. If BNC terminates
the Executive's employment without Cause or if the Executive terminates
employment with Good Reason before full vesting of stock options then held by
him, the Executive shall be entitled to receive from BNC an amount equal to the
value of the unvested stock options as of the effective date of termination.
Amounts payable under this paragraph (b) shall be paid in a single lump sum
within 90 days after termination of the Executive's employment.
(c) Cash-out of the Executive's 401(k) Retirement Plan Account.
If BNC terminates the Executive's employment without Cause or if the Executive
terminates employment with Good Reason before full vesting of the amounts
credited to his account as a result of matching or discretionary contributions
by BNC under the BNC's 401(k) Plan, the Executive shall be entitled to receive
from BNC an amount in cash equal to the value of any unvested contributions as
of the effective date of termination.
(d) Outplacement and Support. If BNC terminates the Executive's
employment without Cause or if the Executive terminates employment with Good
Reason, BNC shall pay or cause to be paid to the Executive reasonable
outplacement expenses in an amount up to $25,000, and for one year after
termination BNC shall provide the Executive with the use of office space and
reasonable office support facilities, including secretarial assistance.
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4.4 POST-TERMINATION LIFE AND MEDICAL COVERAGE. If the Executive's
employment terminates involuntarily but without Cause, voluntarily but with Good
Reason, or because of disability, BNC shall continue or cause to be continued at
BNC's expense life and medical insurance benefits in effect during the two years
preceding the date of the Executive's termination. The benefits provided by this
section 4.4 shall continue until the first to occur of (a) the Executive's
return to employment with BNC or another employer, (b) the Executive's
attainment of age 65, (c) the Executive's death, or (d) the end of the term
remaining under this Employment Agreement at the time of the Executive's
termination. If BNC cannot provide such benefits because the Executive is no
longer an employee, BNC shall pay or cause to be paid to the Executive an amount
in cash equal to the Executive's cost to obtain such benefits.
4.5 BENEFITS UNDER SECTIONS 4.2, 4.3, AND 4.4 ARE CONDITIONAL
UPON THE EXECUTIVE ENTERING INTO A NONCOMPETITION AGREEMENT IN THE FORM ATTACHED
AS APPENDIX A. The Executive shall be entitled to no benefits under sections
4.2, 4.3, and 4.4 of this Employment Agreement unless he executes and complies
with the terms of a noncompetition agreement in substantially the form attached
to this Employment Agreement as Appendix A. Execution of and compliance with the
terms of the noncompetition agreement is not required, however, if a Change in
Control shall have occurred within 12 months before termination of the
Executive's employment or if benefits are paid or payable to the Executive under
Article 5 of this Employment Agreement.
ARTICLE 5
CHANGE IN CONTROL BENEFITS
5.1 CHANGE IN CONTROL TERMINATION BENEFITS. If the Executive is
terminated involuntarily but without cause within 12 months after a Change in
Control, or if the Executive terminates employment voluntarily but with Good
Reason within 12 months after a Change in Control, the Executive shall be
entitled to a lump-sum payment in cash in an amount equal to 2.99 times the
Executive's annual compensation. For this purpose, annual compensation means (1)
the Executive's Base Salary at the time of the Change in Control or at the time
Executive's employment terminates, whichever is greater, plus (2) any bonuses or
incentive compensation earned for the calendar year ended immediately before the
year in which termination of employment occurs or the year in which the Change
in Control occurs, whichever is greater, in either case regardless of when the
bonus or incentive compensation earned for the preceding calendar year is paid
and regardless of whether all or part of the bonus or incentive compensation is
subject to elective deferral. The amount payable to the Executive hereunder
shall not be reduced to account for the time value of money or discounted to
present value. The payment required under this section 5.1 is payable no later
than five business days after the Executive's employment terminates. If the
Executive is removed from office or if his employment terminates before a Change
in Control occurs but after discussions with a third party regarding a Change in
Control commence, and if those discussions ultimately conclude with a Change in
Control, then for purposes of this Employment Agreement the removal of the
Executive or termination of his employment shall be deemed to have occurred
after the Change in Control.
If the Executive receives payment under section 5.1 he shall not be
entitled to any additional severance benefits under section 4.3(a) of this
Employment Agreement.
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5.2 GROSS-UP FOR TAXES. (a) Additional Payment to Account for
Excise Taxes. If the Executive receives the lump-sum payment under section 5.1
and acceleration of benefits under any other benefit, compensation, or incentive
plan or arrangement with BNC (collectively, the "Total Benefits"), and if any
part of the Total Benefits is subject to the Excise Tax under section 280G and
section 4999 of the Internal Revenue Code (the "Excise Tax"), BNC shall pay to
the Executive the following additional amounts, consisting of (x) a payment
equal to the Excise Tax payable by the Executive under section 4999 on the Total
Benefits (the "Excise Tax Payment") and (y) a payment equal to the amount
necessary to provide the Excise Tax Payment net of all income, payroll, and
excise taxes. Together, the additional amounts described in clauses (x) and (y)
are referred to in this Employment Agreement as the "Gross-Up Payment Amount."
Payment of the Gross-Up Payment Amount shall be made in addition to the amount
set forth in section 5.1.
Calculating the Excise Tax. For purposes of determining whether any
--------------------------
of the Total Benefits will be subject to the Excise Tax and for purposes of
determining the amount of the Excise Tax,
(1) Determination of "Parachute Payments" Subject to the Excise
Tax: any other payments or benefits received or to be received
by the Executive in connection with a Change in Control or the
Executive's termination of employment (whether under the terms
of this Employment Agreement or any other agreement or any
other benefit plan or arrangement with BNC, any person whose
actions result in a Change in Control, or any person
affiliated with BNC or such person) shall be treated as
"parachute payments" within the meaning of section 280G(b)(2)
of the Internal Revenue Code, and all "excess parachute
payments" within the meaning of section 280G(b)(1) shall be
treated as subject to the Excise Tax, unless in the opinion of
the certified public accounting firm that is retained by BNC
as of the date immediately before the Change in Control (the
"Accounting Firm") such other payments or benefits do not
constitute (in whole or in part) parachute payments, or such
excess parachute payments represent (in whole or in part)
reasonable compensation for services actually rendered within
the meaning of section 280G(b)(4) of the Internal Revenue Code
in excess of the "base amount" (as defined in section
280G(b)(3) of the Internal Revenue Code), or are otherwise not
subject to the Excise Tax,
(2) Calculation of Benefits Subject to Excise Tax: the amount of
the Total Benefits that shall be treated as subject to the
Excise Tax shall be equal to the lesser of (a) the total
amount of the Total Benefits reduced by the amount of such
Total Benefits that in the opinion of the Accounting Firm are
not parachute payments, or (b) the amount of excess parachute
payments within the meaning of section 280G(b)(1) (after
applying clause (1), above), and
(3) Value of Noncash Benefits and Deferred Payments: the value of
any noncash benefits or any deferred payment or benefit shall
be determined by the Accounting Firm in accordance with the
principles of sections 280G(d)(3) and (4) of the Internal
Revenue Code.
12
Assumed Marginal Income Tax Rate. For purposes of determining the
--------------------------------
Gross-Up Payment Amount, the Executive shall be deemed to pay federal income
taxes at the highest marginal rate of federal income taxation in the calendar
years in which the Gross-Up Payment Amount is to be made and state and local
income taxes at the highest marginal rate of taxation in the state and locality
of the Executive's residence on the date of termination of employment, net of
the reduction in federal income taxes that can be obtained from deduction of
such state and local taxes (calculated by assuming that any reduction under
section 68 of the Internal Revenue Code in the amount of itemized deductions
allowable to the Executive applies first to reduce the amount of such state and
local income taxes that would otherwise be deductible by the Executive, and
applicable federal FICA and Medicare withholding taxes).
Return of Reduced Excise Tax Payment or Payment of Additional Excise
--------------------------------------------------------------------
Tax. If the Excise Tax is later determined to be less than the amount taken into
---
account hereunder when the Executive's employment terminated, the Executive
shall repay to BNC - when the amount of the reduction in Excise Tax is finally
determined - the portion of the Gross-Up Payment Amount attributable to the
reduction (plus that portion of the Gross-Up Payment Amount attributable to the
Excise Tax, federal, state and local income taxes and FICA and Medicare
withholding taxes imposed on the Gross-Up Payment Amount being repaid by the
Executive to the extent that the repayment results in a reduction in Excise Tax,
FICA and Medicare withholding taxes and/or a federal, state or local income tax
deduction).
If the Excise Tax is later determined to be more than the amount taken
into account hereunder when the Executive's employment terminated (due, for
example, to a payment whose existence or amount cannot be determined at the time
of the Gross-Up Payment Amount), BNC shall make an additional payment to the
Executive for that excess (plus any interest, penalties or additions payable by
the Executive for the excess) when the amount of the excess is finally
determined.
(b) Responsibilities of the Accounting Firm and BNC.
Determinations Shall Be Made by the Accounting Firm. Subject to the provisions
---------------------------------------------------
of section 5.2(a), all determinations required to be made under this section
5.2(b) - including whether and when a Gross-Up Payment Amount is required, the
amount of the Gross-Up Payment Amount and the assumptions to be used to arrive
at the determination (collectively, the "Determination") - shall be made by the
Accounting Firm, which shall provide detailed supporting calculations both to
BNC and the Executive within 15 business days after receipt of notice from BNC
or the Executive that there has been a Gross-Up Payment Amount, or such earlier
time as is requested by BNC.
Fees and Expenses of the Accounting Firm and Agreement with the
---------------------------------------------------------------
Accounting Firm. All fees and expenses of the Accounting Firm shall be borne
---------------
solely by BNC. BNC shall enter into any agreement requested by the Accounting
Firm in connection with the performance of its services hereunder.
13
Accounting Firm's Opinion. If the Accounting Firm determines that no
-------------------------
Excise Tax is payable by the Executive, the Accounting Firm shall furnish the
Executive with a written opinion to that effect, and to the effect that failure
to report Excise Tax, if any, on the Executive's applicable federal income tax
return will not result in the imposition of a negligence or similar penalty.
Accounting Firm's Determination Is Binding; Underpayment and
------------------------------------------------------------
Overpayment. The Determination by the Accounting Firm shall be binding on BNC
-----------
and the Executive. Because of the uncertainty in determining whether any of the
Total Benefits will be subject to the Excise Tax at the time of the
Determination, it is possible that a Gross-Up Payment Amount that should have
been made will not have been made by BNC ("Underpayment"), or that a Gross-Up
Payment Amount will be made that should not have been made by BNC
("Overpayment"). If, after a Determination by the Accounting Firm, the Executive
is required to make a payment of additional Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred. The
Underpayment (together with interest at the rate provided in section
1274(d)(2)(B) of the Internal Revenue Code) shall be paid promptly by BNC to or
for the benefit of the Executive. If the Gross-Up Payment Amount exceeds the
amount necessary to reimburse the Executive for his Excise Tax according to
section 5.2(a), the Accounting Firm shall determine the amount of the
Overpayment that has been made. The Overpayment (together with interest at the
rate provided in section 1274(d)(2)(B) of the Internal Revenue Code) shall be
paid promptly by the Executive to or for the benefit of BNC. Provided that his
expenses are reimbursed by BNC, the Executive shall cooperate with any
reasonable requests by BNC in any contests or disputes with the Internal Revenue
Service relating to the Excise Tax.
Accounting Firm Conflict of Interest. If the Accounting Firm is serving
------------------------------------
as accountant or auditor for the individual, entity, or group effecting the
Change in Control, the Executive may appoint another nationally recognized
public accounting firm to make the Determinations required hereunder (in which
case the term "Accounting Firm" as used in this Employment Agreement shall be
deemed to refer to the accounting firm appointed by the Executive under this
paragraph).
5.3 DEFINITION OF CHANGE IN CONTROL. For purposes of this
Employment Agreement, "Change in Control" means any one of the following events
occurs -
(a) Merger. BNC Bancorp merges into or consolidates with another
corporation, or merges another corporation into BNC Bancorp, and as a result
less than a majority of the combined voting power of the resulting corporation
immediately after the merger or consolidation is held by persons who were
holders of BNC Bancorp's voting securities immediately before the merger or
consolidation. For purposes of this Agreement, the term "person" means an
individual, corporation, partnership, trust, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization or other entity,
14
(b) Acquisition of Significant Share Ownership. after the date of
this Agreement a report on Schedule 13D, Schedule TO, or another form or
schedule (other than Schedule 13G) is filed or is required to be filed under
sections 13(d) or 14(d) of the Securities Exchange Act of 1934, if the schedule
discloses that the filing person or persons acting in concert has or have become
the beneficial owner of 25% or more of the combined voting power of BNC
Bancorp's voting securities outstanding (but this paragraph (b) shall not apply
to beneficial ownership of voting shares held by Bank of North Carolina in a
fiduciary capacity or beneficial ownership of voting shares held by an employee
benefit plan of Bank of North Carolina),
(c) Change in Board Composition. during any period of two
consecutive years, individuals who constitute BNC Bancorp's board of directors
at the beginning of the two-year period cease for any reason to constitute at
least a majority thereof; provided, however, that - for purposes of this
paragraph (c) - each director who is first elected by the board (or first
nominated by the board for election by stockholders) by a vote of at least
two-thirds (b) of the directors who were directors at the beginning of the
period shall be deemed to have been a director at the beginning of the two-year
period, or
(d) Sale of Assets. BNC Bancorp sells to a third party all or
substantially all of BNC Bancorp's assets. For this purpose, sale of all or
substantially all of BNC Bancorp's assets includes sale of Bank of North
Carolina alone.
ARTICLE 6
CONFIDENTIALITY AND CREATIVE WORK
6.1 NON-DISCLOSURE. The Executive covenants and agrees that he
will not reveal to any person, firm, or corporation any confidential information
of any nature concerning BNC or its business, or anything connected therewith.
As used in this Article 6, the term "confidential information" means all of BNC
Bancorp's and its affiliates' confidential and proprietary information and trade
secrets in existence on the date hereof or existing at any time during the term
of this Employment Agreement, including but not limited to -
(a) the whole or any portion or phase of any business
plans, financial information, purchasing data, supplier data,
accounting data, or other financial information,
(b) the whole or any portion or phase of any research and
development information, design procedures, algorithms or processes, or
other technical information,
(c) the whole or any portion or phase of any marketing or
sales information, sales records, customer lists, prices, sales
projections, or other sales information, and
(d) trade secrets, as defined from time to time by the
laws of the State of North Carolina.
15
Notwithstanding the foregoing, confidential information excludes information
that - as of the date hereof or at any time after the date hereof - is published
or disseminated without obligation of confidence or that becomes a part of the
public domain by or through action of BNC or otherwise than by or at the
direction of the Executive. This section 6.1 does not prohibit disclosure
required by an order of a court having jurisdiction or a subpoena from an
appropriate governmental agency or disclosure made by the Executive in the
ordinary course of business and within the scope of his authority.
6.2 RETURN OF MATERIALS. The Executive agrees to deliver or return
to BNC upon termination, upon expiration of this Employment Agreement, or as
soon thereafter as possible, all written information and any other similar items
furnished by BNC or prepared by the Executive in connection with his services
hereunder. The Executive will retain no copies thereof after termination of this
Employment Agreement or termination of the Executive's employment with BNC.
6.3 INJUNCTIVE RELIEF. The Executive acknowledges that it is
impossible to measure in money the damages that will accrue to BNC if the
Executive fails to observe the obligations imposed on him by this Article 6.
Accordingly, if BNC institutes an action to enforce the provisions hereof, the
Executive hereby waives the claim or defense that an adequate remedy at law is
available to BNC, and the Executive agrees not to urge in any such action the
claim or defense that an adequate remedy at law exists.
6.4 AFFILIATES' CONFIDENTIAL INFORMATION IS COVERED;
CONFIDENTIALITY OBLIGATION SURVIVES TERMINATION. For purposes of this Employment
Agreement, the term "affiliate" of BNC Bancorp includes Bank of North Carolina
and any entity that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with Bank of North
Carolina. The rights and obligations set forth in this Article 6 shall survive
termination of this Employment Agreement.
6.5 CREATIVE WORK. The Executive agrees that all creative work and
work product, including but not limited to all technology, business management
tools, processes, software, patents, trademarks, and copyrights developed by the
Executive during the term of this Employment Agreement, regardless of when or
where such work or work product was produced, constitutes work made for hire,
all rights of which are owned by BNC. The Executive hereby assigns to BNC
Bancorp and to Bank of North Carolina all rights, title, and interest, whether
by way of copyrights, trade secret, trademark, patent, or otherwise, in all such
work or work product, regardless of whether the same is subject to protection by
patent, trademark, or copyright laws.
16
ARTICLE 7
MISCELLANEOUS
7.1 SUCCESSORS AND ASSIGNS. (a) This Employment Agreement Is
Binding on BNC's Successors. This Employment Agreement shall be binding upon BNC
Bancorp and any successor to BNC Bancorp, including any persons acquiring
directly or indirectly all or substantially all of the business or assets of BNC
Bancorp by purchase, merger, consolidation, reorganization, or otherwise. Any
such successor shall thereafter be deemed to be "BNC Bancorp" for purposes of
this Employment Agreement. But this Employment Agreement and BNC's obligations
under this Employment Agreement are not otherwise assignable, transferable, or
delegable by BNC. By agreement in form and substance satisfactory to the
Executive, BNC Bancorp shall require any successor to all or substantially all
of the business or assets of BNC Bancorp expressly to assume and agree to
perform this Employment Agreement in the same manner and to the same extent BNC
would be required to perform if no such succession had occurred.
(b) This Employment Agreement Is Enforceable by the Executive and
His Heirs. This Employment Agreement will inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, and legatees.
(c) This Employment Agreement Is Personal in Nature and Is Not
Assignable. This Employment Agreement is personal in nature. Without written
consent of the other parties, no party shall assign, transfer, or delegate this
Employment Agreement or any rights or obligations under this Employment
Agreement, except as expressly provided herein. Without limiting the generality
or effect of the foregoing, the Executive's right to receive payments hereunder
is not assignable or transferable, whether by pledge, creation of a security
interest, or otherwise, except for a transfer by the Executive's will or by the
laws of descent and distribution. If the Executive attempts an assignment or
transfer that is contrary to this section 7.1, BNC shall have no liability to
pay any amount to the assignee or transferee.
7.2 GOVERNING LAW, JURISDICTION AND FORUM. This Employment
Agreement shall be construed under and governed by the internal laws of the
State of North Carolina, without giving effect to any conflict of laws provision
or rule (whether of the State of North Carolina or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of North Carolina. By entering into this Employment Agreement, the Executive
acknowledges that he is subject to the jurisdiction of both the federal and
state courts in the State of North Carolina. Any actions or proceedings
instituted under this Employment Agreement shall be brought and tried solely in
courts located in Davidson County, North Carolina or in the federal court having
jurisdiction in Burlington, North Carolina. The Executive expressly waives his
rights to have any such actions or proceedings brought or tried elsewhere.
7.3 ENTIRE AGREEMENT. This Employment Agreement sets forth the
entire agreement of the parties concerning the employment of the Executive by
BNC, and any oral or written statements, representations, agreements, or
understandings made or entered into prior to or contemporaneously with the
execution of this Employment Agreement, are hereby rescinded, revoked, and
rendered null and void by the parties.
17
7.4 NOTICES. Any notice under this Employment Agreement shall be
deemed to have been effectively made or given if in writing and personally
delivered, delivered by mail properly addressed in a sealed envelope, postage
prepaid by certified or registered mail, delivered by a reputable overnight
delivery service, or sent by facsimile. Unless otherwise changed by notice,
notice shall be properly addressed to the Executive if addressed to the address
of the Executive on the books and records of BNC Bancorp at the time of the
delivery of such notice, and properly addressed to BNC Bancorp if addressed to
BNC Bancorp, 000 Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000,
Attention: Corporate Secretary.
7.5 SEVERABILITY. In the case of conflict between any provision
of this Employment Agreement and any statute, regulation, or judicial precedent,
the latter shall prevail, but the affected provisions of this Employment
Agreement shall be curtailed and limited solely to the extent necessary to bring
them within the requirements of law. If any provision of this Employment
Agreement is held by a court of competent jurisdiction to be indefinite,
invalid, void or voidable, or otherwise unenforceable, the remainder of this
Employment Agreement shall continue in full force and effect unless that would
clearly be contrary to the intentions of the parties or would result in an
injustice.
7.6 CAPTIONS AND COUNTERPARTS. The captions in this Employment
Agreement are solely for convenience. The captions in no way define, limit, or
describe the scope or intent of this Employment Agreement. This Employment
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together shall constitute one and the same
instrument.
7.7 NO DUTY TO MITIGATE. BNC hereby acknowledges that it will be
difficult and could be impossible (a) for the Executive to find reasonably
comparable employment after his employment terminates, and (b) to measure the
amount of damages the Executive may suffer as a result of termination.
Additionally, BNC acknowledges that its general severance pay plans do not
provide for mitigation, offset, or reduction of any severance payment received
thereunder. Accordingly, BNC further acknowledges that the payment of severance
benefits under this Employment Agreement is reasonable and shall be liquidated
damages. The Executive shall not be required to mitigate the amount of any
payment provided for in this Employment Agreement by seeking other employment.
Moreover, the amount of any payment provided for in this Employment Agreement
shall not be reduced by any compensation earned or benefits provided as the
result of employment of the Executive or as a result of the Executive being
self-employed after termination of his employment.
7.8 AMENDMENT AND WAIVER. This Employment Agreement may not be
amended, released, discharged, abandoned, changed, or modified in any manner,
except by an instrument in writing signed by each of the parties hereto. The
failure of any party hereto to enforce at any time any of the provisions of this
Employment Agreement shall not be construed to be a waiver of any such
provision, nor affect the validity of this Employment Agreement or any part
thereof or the right of any party thereafter to enforce each and every such
provision. No waiver or any breach of this Employment Agreement shall be held to
be a waiver of any other or subsequent breach.
18
7.9 PAYMENT OF LEGAL FEES. BNC is aware that after a Change in
Control management could cause or attempt to cause BNC to refuse to comply with
its obligations under this Employment Agreement, or could institute or cause or
attempt to cause BNC to institute litigation seeking to have this Employment
Agreement declared unenforceable, or could take or attempt to take other action
to deny Executive the benefits intended under this Employment Agreement. In
these circumstances, the purpose of this Employment Agreement would be
frustrated. It is BNC's intention that the Executive not be required to incur
the expenses associated with the enforcement of his rights under this Employment
Agreement, whether by litigation or other legal action, because the cost and
expense thereof would substantially detract from the benefits intended to be
granted to the Executive hereunder. It is BNC's intention that the Executive not
be forced to negotiate settlement of his rights under this Employment Agreement
under threat of incurring expenses. Accordingly, if after a Change in Control
occurs it appears to the Executive that (a) BNC has failed to comply with any of
its obligations under this Employment Agreement, or (b) BNC or any other person
has taken any action to declare this Employment Agreement void or unenforceable,
or instituted any litigation or other legal action designed to deny, diminish,
or to recover from the Executive the benefits intended to be provided to the
Executive hereunder, BNC irrevocably authorizes the Executive from time to time
to retain counsel of his choice, at BNC's expense as provided in this section
7.9, to represent the Executive in connection with the initiation or defense of
any litigation or other legal action, whether by or against BNC or any director,
officer, stockholder, or other person affiliated with BNC, in any jurisdiction.
Notwithstanding any existing or previous attorney-client relationship between
BNC and any counsel chosen by the Executive under this section 7.9, BNC
irrevocably consents to the Executive entering into an attorney-client
relationship with that counsel, and BNC and the Executive agree that a
confidential relationship shall exist between the Executive and that counsel.
The fees and expenses of counsel selected from time to time by the Executive as
provided in this section shall be paid or reimbursed to the Executive by BNC on
a regular, periodic basis upon presentation by the Executive of a statement or
statements prepared by such counsel in accordance with such counsel's customary
practices, up to a maximum aggregate amount of $500,000, whether suit be brought
or not, and whether or not incurred in trial, bankruptcy, or appellate
proceedings. BNC's obligation to pay the Executive's legal fees provided by this
section 7.9 operates separately from and in addition to any legal fee
reimbursement obligation BNC Bancorp or Bank of North Carolina may have with the
Executive under any separate severance or other agreement. Anything in this
section 7.9 to the contrary notwithstanding however, BNC shall not be required
to pay or reimburse Executive's legal expenses if doing so would violate section
18(k) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)] and Rule 359.3 of
the Federal Deposit Insurance Corporation [12 CFR 359.3].
7.10 CONSULTATION WITH COUNSEL AND INTERPRETATION OF THIS
EMPLOYMENT AGREEMENT. The Executive acknowledges and agrees that he has had the
assistance of counsel of his choosing in the negotiation of this Employment
Agreement, or he has chosen not to have the assistance of his own counsel. Both
parties hereto having participated in the negotiation and drafting of this
Employment Agreement, they hereby agree that there shall not be strict
interpretation against either party in connection with any review of this
Employment Agreement in which interpretation thereof is an issue.
19
7.11 COMPLIANCE WITH INTERNAL REVENUE CODE SECTION 409A. BNC and
the Executive intend that their exercise of authority or discretion under this
Employment Agreement shall comply with section 409A of the Internal Revenue Code
of 1986. If when the Executive's employment terminates the Executive is a
specified employee, as defined in section 409A of the Internal Revenue Code of
1986, and if any payments under this Employment Agreement, including Articles 4
or 5, will result in additional tax or interest to the Executive because of
section 409A, then despite any provision of this Employment Agreement to the
contrary the Executive will not be entitled to the payments until the earliest
of (a) the date that is at least six months after termination of the Executive's
employment for reasons other than the Executive's death, (b) the date of the
Executive's death, or (c) any earlier date that does not result in additional
tax or interest to the Executive under section 409A. As promptly as possible
after the end of the period during which payments are delayed under this
provision, the entire amount of the delayed payments shall be paid to the
Executive in a single lump sum. If any provision of this Employment Agreement
does not satisfy the requirements of section 409A, such provision shall
nevertheless be applied in a manner consistent with those requirements. If any
provision of this Employment Agreement would subject the Executive to additional
tax or interest under section 409A, BNC shall reform the provision. However, BNC
shall maintain to the maximum extent practicable the original intent of the
applicable provision without subjecting the Executive to additional tax or
interest, and BNC shall not be required to incur any additional compensation
expense as a result of the reformed provision. References in this Employment
Agreement to section 409A of the Internal Revenue Code of 1986 include rules,
regulations, and guidance of general application issued by the Department of the
Treasury under Internal Revenue Code section 409A.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the date first written above.
EXECUTIVE BNC BANCORP
/s/ Xxxxx X. Xxxxxxxxx III By: /s/ X. Xxxxx Xxxxxxxxxx, Jr.
--------------------------- ------------------------------
Xxxxx X. Xxxxxxxxx III Its: President and Chief Executive
Officer
BANK OF NORTH CAROLINA
By: /s/ X. Xxxxx Xxxxxxxxxx, Jr.
------------------------------
Its: President and Chief Executive
Officer
20
APPENDIX A
NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT (this "Agreement") is entered into as of
this 21st day of July, 2006 , by and among BNC Bancorp, a North Carolina
corporation, Bank of North Carolina, a North Carolina-chartered bank and wholly
owned subsidiary of BNC Bancorp (the "Bank"), and Xxxxx X. Xxxxxxxxx III (the
"Executive").
WHEREAS, the Executive has served as an officer of the Bank,
WHEREAS, the Executive possesses skills of a special, unique, and
unusual character, which therefore have distinctive value,
WHEREAS, the Executive is familiar with BNC Bancorp's and the Bank's
business, operations, and properties, and during the time the Executive has been
employed by the Bank he has accumulated extensive banking experience and he has
established valuable business and client contacts in the market areas served by
BNC Bancorp and the Bank,
WHEREAS, the Executive entered into an employment agreement with BNC
Bancorp and the Bank providing for payment of severance benefits after
termination of the Executive's employment, conditioned upon the Executive first
entering into this Agreement, and
WHEREAS, the Executive's employment has terminated or terminates
effective on July 21, 2006, and severance benefits therefore will become payable
under his employment agreement after execution of this Agreement.
NOW THEREFORE, in consideration of these premises, the mutual covenants
contained herein, and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows.
ARTICLE 1
AGREEMENT NOT TO COMPETE
1.1 Noncompetition. (a) The Executive hereby agrees that he
shall not directly or indirectly, whether for his own account or for the account
of any other person, firm, corporation, or other business organization -
(1) engage as an employee, officer, director, manager,
salesperson, consultant, independent contractor, representative, or
other agent in providing Banking Services (as defined below) on behalf
of any other person, firm, corporation, or other business organization
that is a competitor of the Bank or its Affiliates (as defined below)
in Davidson County, any counties contiguous thereto, any counties in
which the Bank or any of its Affiliates has an office, or any counties
from which the Bank or any of its affiliates derives revenue that, in
the sole judgment of the Bank, is significant,
(2) provide Banking Services to any Client (as defined below),
21
(3) make any statement or take any actions that, in the sole
judgment of the Bank, interfere with the Bank's or its Affiliates'
business relationships with any Client, including but not limited to
any statements that are harmful to the reputation of the Bank or any of
its Affiliates or their standing in the communities they serve,
(4) except on behalf of the Bank or its Affiliates as may be
requested by the Bank, make contact either directly or indirectly with
any Client, nor shall the Executive otherwise induce or encourage any
Client to enter into any business relationship with any person, firm,
corporation, or other business organization other than the Bank or its
Affiliates relating to Banking Services or banking business of any
type,
(5) entice or encourage any person employed by or associated
with the Bank or its Affiliates as an employee, officer, director,
manager, salesperson, consultant, independent contractor,
representative, or other agent to serve as an employee, officer,
director, manager, salesperson, consultant, independent contractor,
representative, or other agent of any person, firm, corporation, or
other business organization other than the Bank or its Affiliates, or
(6) take any actions interfering with the Bank's or its
Affiliates' property rights in lists of clients, or otherwise diminish
the value of such lists to the Bank or its Affiliates.
The obligations contained in this section 1.1(a) shall survive for a
period of 24 months after the date on which the Executive's termination from
active service with the Bank becomes effective.
(b) Definition of Affiliate. For purposes of this Agreement, the
term "Affiliate" means any entity, corporation, or other business organization
controlled by the Bank, controlling the Bank, or under common control with the
Bank, including but not limited to any subsidiaries of the Bank, any company
controlling the Bank, or any company under common control with the Bank.
(c) Definition of Banking Services. For purposes of this
Agreement, the term "Banking Services" means retail or commercial banking
business, asset and trust management, wealth management, investment services,
and all other services customarily provided by banks or otherwise provided by
the Bank or its Affiliates.
(d) Definition of Client. For purposes of this Agreement, the
term "Client" means all persons, firms, corporations, entities, or business
organizations who are or were customers or clients of the Bank or any of its
Affiliates -
(1) on the date of this Agreement,
(2) on the date the Executive's termination from active
service with the Bank becomes effective,
(3) at any time during the two-year period before the
Executive's termination from active service with the Bank becomes
effective, and
22
(4) any persons who become clients of the Bank or any of its
Affiliates hereafter who were identified by a representative of the
Bank or its Affiliates, but only if those persons are identified as
prospective clients in writing by the Bank to the Executive when the
Executive's termination from active service becomes effective.
1.2 Period of Time and Scope. The Executive acknowledges and
agrees that the duration and scope of the noncompetition provision set forth in
section 1.1 are reasonable and necessary to protect the legitimate business
interests of BNC Bancorp and the Bank, and that they do not interfere unduly
with the Executive's personal or economic freedoms. The Executive acknowledges
that his willingness to execute and comply with this Agreement was an essential
condition to BNC Bancorp's and the Bank's willingness to enter into the separate
employment agreement with the Executive. If a court of competent jurisdiction or
a dispute resolution proceeding authorized hereunder and to which BNC Bancorp
and the Bank have agreed to be subject nevertheless holds that the duration or
scope, including but not limited to geographic scope, of this Agreement is
unreasonable, invalid, or unenforceable, then the duration or scope shall be
reduced or reformed to the extent necessary so that section 1.1 may be enforced
by BNC Bancorp and the Bank during such period and for such scope as are held to
be reasonable, valid, and enforceable.
1.3 Understandings. It is understood by and between the parties
hereto that the Executive's covenants in section 1.1 are an essential element of
this Agreement and that, but for the agreement of the Executive to comply with
such covenants, BNC Bancorp and the Bank would not have entered into the
separate employment agreement. BNC Bancorp and the Bank and the Executive have
independently consulted with or have had the opportunity to independently
consult with their respective counsel concerning the reasonableness and validity
of such covenants.
ARTICLE 2
CONFIDENTIALITY
2.1 Nondisclosure. The Executive shall not reveal to any person,
firm, corporation, or other business organization any confidential information
of any nature concerning the Bank or its Affiliates, their business, or anything
connected therewith. As used in this Article 2, the term "confidential
information" means all of the Bank's and its Affiliates' confidential and
proprietary information and trade secrets in existence on the date hereof or at
any time during the term of this Agreement, including but not limited to -
(a) the whole or any portion or phase of any business plans,
financial information, purchasing data, supplier data, accounting data, or other
financial information,
(b) the whole or any portion or phase of any research and
development information, design procedures, algorithms, or processes, or other
technical information,
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(c) the whole or any portion or phase of any marketing or sales
information, sales records, customer lists or client lists, prices, sales
projections, or other sales information, and
(d) trade secrets, as defined from time to time by the laws of
the State of North Carolina.
Notwithstanding the foregoing, confidential information excludes
information that - as of the date hereof or at any time after the date hereof -
is published or disseminated without obligation of confidence or that becomes a
part of the public domain (1) by or through action of the Bank or its
Affiliates, and (2) otherwise than by or at the direction of the Executive. This
section 2.1 does not prohibit disclosure required by an order of a court having
jurisdiction or a subpoena from an appropriate governmental agency.
2.2 Return of Materials. The Executive agrees to deliver or return
to the Bank all written confidential information furnished by the Bank or its
Affiliates or prepared by the Executive in connection with his services to the
Bank. The Executive shall retain no copies thereof after termination of this
Agreement or termination of the Executive's employment with the Bank.
2.3 Injunctive Relief. The Executive acknowledges that it is
impossible to measure in money the damages that will accrue to BNC Bancorp and
the Bank if the Executive fails to observe the obligations imposed on him by
this Article 2. Accordingly, if BNC Bancorp or the Bank institutes an action to
enforce the provisions hereof, the Executive hereby waives the claim or defense
that an adequate remedy at law is available to BNC Bancorp or the Bank, and the
Executive agrees not to urge in any such action the claim or defense that an
adequate remedy at law exists.
2.4 Survival of Common Law Protection. During and after the term
of this Agreement, in addition to the protection thereof given by this
Agreement, the confidential information of the Bank and its Affiliates shall be
entitled to all such protections as may be available under applicable law, and
the Bank and its Affiliates may seek to enforce any of its rights with respect
thereto.
2.5 Creative Work. The Executive agrees that all creative work
and work product, including but not limited to all technology, business
management tools, processes, software, patents, trademarks, and copyrights
developed by the Executive during the term of the employment agreement,
regardless of when or where such work or work product was produced, constitutes
work made for hire, all rights of which are owned by BNC Bancorp and the Bank.
The Executive hereby assigns to BNC Bancorp and to the Bank all rights, title,
and interest, whether copyright, trade secret, trademark, patent, or otherwise,
in all such work or work product, regardless of whether the same is subject to
protection by patent, trademark, or copyright laws.
2.6 Rights and Obligations Survive Termination of This Agreement.
The rights and obligations set forth in this Article 2 shall survive termination
of this Agreement.
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ARTICLE 3
SPECIFIC PERFORMANCE
The Executive's covenants contained in Articles 1 and 2 shall survive
termination of the Executive's employment with the Bank for any reason, and
shall be enforceable after such termination. Without intending to limit the
remedies available to BNC Bancorp and the Bank, the Executive agrees that
damages at law are an insufficient remedy for violation by the Executive of his
covenants contained in this Agreement. Accordingly, the Executive hereby agrees
that BNC Bancorp or the Bank may apply for and is entitled to injunctive relief
in any court of competent jurisdiction to restrain the breach or threatened
breach of, or otherwise to specifically enforce, any of the covenants of such
Articles, in each case without proof of actual damages, in addition to any other
remedies that may be available under applicable law. The Executive hereby waives
the claim or defense that an adequate remedy at law is available to BNC Bancorp
or the Bank, and the Executive agrees not to urge in any action or proceeding
the claim or defense that an adequate remedy at law exists.
Without limiting the generality of the foregoing, without limiting the
remedies available to BNC Bancorp or the Bank for violation of this Agreement,
and without constituting an election of remedies, if the Executive violates any
of the terms of Articles 1 or 2 he shall forfeit on his own behalf and that of
his beneficiary(ies) any rights to and interest in any severance or other
benefits under the separate employment agreement between BNC Bancorp or the Bank
and the Executive, and the employment agreement shall thereafter be null, void,
and of no further force or effect.
ARTICLE 4
MISCELLANEOUS
4.1 Successors and Assigns. Without written consent of the other
party, neither BNC Bancorp and the Bank nor the Executive shall assign,
transfer, or delegate this Agreement or any rights or obligations under this
Agreement except as expressly provided herein. However, any merger or
consolidation of the Bank (or any direct or indirect parent thereof) or any sale
or transfer of all or substantially all of the stock or assets of the Bank (or
any direct or indirect parent thereof) shall be considered an assignment
expressly agreed to and consistent with the terms of this Agreement and shall
not be considered a violation of this Agreement.
This Agreement shall be binding upon the parties hereto and their
heirs, personal representatives, successors, and permitted assigns. This
Agreement will inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, and legatees.
4.2 Governing Law. This Agreement shall be construed under and
governed by the internal laws of the State of North Carolina, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of North Carolina or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of North
Carolina.
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4.3 Entire Agreement. This Agreement and the July 21, 2006
Employment Agreement, as the same may have been amended, by and among BNC
Bancorp, the Bank, and the Executive sets forth the entire agreement of the
parties with respect to the subject matter contained herein, and any oral or
written statements, representations, agreements, or understandings not set forth
in this Agreement or the Employment Agreement that were made or entered into
prior to or contemporaneously with the execution of this Agreement are hereby
rescinded, revoked, and rendered null and void by the parties.
4.4 Notices. Any notice required or permitted under this Agreement
shall be deemed to have been effectively made or given if in writing and
personally delivered, delivered by mail properly addressed in a sealed envelope,
postage prepaid by certified or registered mail, delivered by a reputable
overnight delivery service, or sent by facsimile. Unless otherwise changed by
notice, notice shall be properly addressed to the Executive if addressed to the
address of the Executive on the books and records of the Bank at the time of the
delivery of such notice, and properly addressed to BNC Bancorp or the Bank if
addressed to BNC Bancorp, 000 Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000, Attention: Corporate Secretary.
4.5 Severability. In the case of conflict between any provision of
this Agreement and any governing statute, law, regulation, or judicial
precedent, the latter shall prevail, but the affected provisions of this
Agreement shall be curtailed and limited solely to the extent necessary to bring
them within the requirements of law. If any provision of this Agreement is held
by a court of competent jurisdiction or in a dispute resolution proceeding to
which BNC Bancorp and the Bank have agreed to be subject to be indefinite,
invalid, void, voidable, or otherwise unenforceable, the remainder of this
Agreement shall continue in full force and effect unless that would clearly be
contrary to the intentions of the parties or would result in an injustice.
4.6 Captions and Counterparts. The captions in this Agreement
exist solely for convenience. The captions do not define, limit, or describe the
scope or intent of this Agreement. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
4.7 Amendment and Waiver. This Agreement may not be amended,
released, discharged, abandoned, changed, or modified except by an instrument in
writing signed by each of the parties hereto. The failure of any party hereto to
enforce at any time any of the provisions of this Agreement shall not be
construed to be a waiver of any such provision, nor affect the validity of this
Agreement or any part thereof or the right of any party to enforce each and
every provision. No waiver or any breach of this Agreement shall be held to be a
waiver of any other or subsequent breach.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
EXECUTIVE BNC BANCORP
/s/ Xxxxx X. Xxxxxxxxx III By: /s/ X. Xxxxx Xxxxxxxxxx, Jr.
--------------------------- ------------------------------
Xxxxx X. Xxxxxxxxx III Its: President and Chief Executive
Officer
BANK OF NORTH CAROLINA
By: /s/ X. Xxxxx Xxxxxxxxxx, Jr.
------------------------------
Its: President and Chief Executive
Officer
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