Exhibit 10(vi)(d)
ADDENDUM A
BANK OF NORTH CAROLINA
SPLIT DOLLAR AGREEMENT AND ENDORSEMENT
This SPLIT DOLLAR AGREEMENT AND ENDORSEMENT (this "Agreement") is
entered into as of this 21st day of July, 2006 by and between Bank of North
Carolina, a North Carolina-chartered commercial bank (the "Bank"), and Xxxxx X.
Xxxxxxxxx III, an executive of the Bank (the "Executive"). This Agreement shall
append the Split Dollar Policy Endorsement entered into on even date herewith or
as subsequently amended, by and between the aforementioned parties.
WHEREAS, to encourage the Executive to remain an employee of the Bank,
the Bank is willing to divide the death proceeds of a life insurance policy on
the Executive's life, and
WHEREAS, the Bank will pay life insurance premiums from its general
assets.
NOW THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows.
ARTICLE 1
GENERAL DEFINITIONS
Capitalized terms not otherwise defined in this Agreement are used
herein as defined in the Salary Continuation Agreement dated as of the date of
this Agreement between the Bank and the Executive. The following terms shall
have the meanings specified.
1.1 Administrator means the administrator described in Article 7.
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1.2 Executive's Interest means the benefit set forth in section
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2.2(a).
1.3 Insured means the Executive.
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1.4 Insurer means each life insurance carrier for which there is a
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Split Dollar Policy Endorsement attached to this Agreement.
1.5 Net Death Proceeds means the total death proceeds of the
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Policy minus the cash surrender value.
1.6 Policy means the specific life insurance policy or policies
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issued by the Insurer.
1.7 Split Dollar Policy Endorsement means the form required by the
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Administrator or the Insurer to indicate the Executive's interest, if any, in a
Policy on such Executive's life.
ARTICLE 2
POLICY OWNERSHIP/INTERESTS
2.1 Bank Ownership. The Bank is the sole owner of the Policy and
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shall have the right to exercise all incidents of ownership. The Bank shall be
the beneficiary of the remaining death proceeds of the Policy after the
Executive's interest is paid according to section 2.2 below.
2.2 Death Benefit. (a) Executive's Interest If the Policy Is Not
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Cancelled. Provided the Policy is not cancelled, surrendered, terminated, or
allowed to lapse, at the Executive's death the Executive's beneficiary
designated in accordance with the Split Dollar Policy Endorsement shall be
entitled to an amount equal to the lesser of (1) 90% of the Net Death Proceeds
or (2) $2,000,000 (in either case, the "Executive's Interest"). The Executive
shall have the right to designate the beneficiary of the Executive's Interest.
The Executive or the Executive's transferee shall also have the right to elect
and change settlement options that may be permitted for the Executive's
Interest.
(b) If the Policy Is Cancelled. If the Policy is cancelled,
surrendered, terminated, or allowed to lapse, in any such case without
replacement, at the Executive's death the Executive's beneficiary designated in
accordance with the Split Dollar Policy Endorsement shall be entitled to death
proceeds payable by the Bank in an amount in cash equal to the sum of (1) the
amount specified in paragraph (a) of this section 2.2, measured at the time the
Policy is cancelled, surrendered, terminated, or allowed to lapse, plus (2) a
tax gross-up payment to compensate for federal and state income taxes imposed on
the benefit specified in clause (1) of this section 2.2(b). The tax gross-up
payment required under this clause (2) of section 2.2(b) shall be calculated in
two steps, first by dividing the total death benefit specified in clause (1) of
this section 2.2(b) by one minus the sum of (x) the highest marginal individual
federal income tax rate under the Internal Revenue Code at the time of the
Executive's death (offset or reduced to account for the deductibility at the
federal level of state income taxes), plus (y) the highest marginal individual
state income tax rate under North Carolina law at the time of the Executive's
death. Second, the death benefit specified in clause (1) of this section 2.2(b)
shall then be subtracted from the amount calculated in that first step. The
difference shall be the additional tax gross-up payment to be made to compensate
for taxes, regardless of whether it exceeds or is less than taxes imposed on the
Executive's estate for "income in respect of a decedent." To illustrate with a
simple hypothetical based on an assumed death benefit amount of $100,000 paid
directly by the Bank under clause (1) of this section 2.2(b), the additional tax
gross-up payment would be calculated as follows if the highest marginal
individual income tax rates are 34% (federal) and 7.5% (North Carolina), taking
into account the deductibility at the federal level of state income taxes:
First Step: $ 100,000 / divided by (1 - ((34% + 7.5%) - (34% x 7.5%))
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= $ 100,000 / divided by (1 minus 38.95%)
= $ 100,000 / divided by 61.05%, or .6105
= $ 163,800
Second Step: $ 163,800 minus $ 100,000
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= $ 63,800, the amount of the additional tax gross-up
payment
2.3 Option to Purchase. Upon termination of this Agreement, the
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Bank shall not sell, surrender, or transfer ownership of the Policy without
first giving the Executive or the Executive's transferee the option to purchase
the Policy for a period of 60 days from written notice of such intention. The
purchase price shall be an amount equal to the cash surrender value of the
Policy.
2.4 Comparable Coverage. The Bank may replace the Policy with a
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comparable insurance policy to cover the benefit provided under this Agreement,
in which case the Bank and the Executive shall execute a new Split-Dollar Policy
Endorsement for the comparable insurance policy.
2.5 Internal Revenue Code Section 1035 Exchanges. The Executive
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recognizes and agrees that the Bank may after this Agreement is adopted wish to
exchange the Policy of life insurance on the Executive's life for another
contract of life insurance insuring the Executive's life. Provided that the
Policy is replaced (or intended to be replaced) with a comparable policy of life
insurance, the Executive agrees to provide medical information and cooperate
with medical insurance-related testing required by a prospective insurer for
implementing the Policy or, if necessary, for modifying or updating to a
comparable insurer.
ARTICLE 3
PREMIUMS
3.1 Premium Payment. The Bank shall pay any premiums due on the
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Policy.
3.2 Economic Benefit. The Administrator shall annually determine
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the economic benefit attributable to the Executive based on the life insurance
premium factor for the Executive's age multiplied by the aggregate death benefit
payable to the Executive's beneficiary. The "life insurance premium factor" is
the minimum factor applicable under guidance published pursuant to Treasury Reg.
section 1.61-22(d)(3)(ii) or any subsequent authority.
3.3 Imputed Income. The Bank shall impute the economic benefit to
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the Executive on an annual basis, by adding the economic benefit to the
Executive's W-2, or if applicable, Form 1099.
ARTICLE 4
ASSIGNMENT
The Executive may irrevocably assign without consideration all of the
Executive's interest in the Policy and in this Agreement to any person, entity,
or trust established by the Executive or the Executive's spouse. If the
Executive transfers all of the Executive's interest in the Policy, then all of
the Executive's interest in the Policy and in the Agreement shall be vested in
the Executive's transferee, who shall be substituted as a party hereunder and
the Executive shall have no further interest in this Agreement.
ARTICLE 5
INSURER
The Insurer shall be bound by the terms of the Policy only. Any
payments the Insurer makes or actions it takes in accordance with the Policy
shall fully discharge it from all claims, suits, and demands of all entities or
persons. The Insurer shall not be bound by or be deemed to have notice of the
provisions of this Agreement.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 CLAIMS PROCEDURE. Any person or entity who has not received
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benefits under this Agreement that he or she believes should be paid (the
"claimant") shall make a claim for benefits as follows:
6.1.1 Initiation - Written Claim. The claimant initiates a
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claim by submitting to the Administrator a written claim for the
benefits. If the claim relates to the contents of a notice received by
the claimant, the claim must be made within 60 days after the notice
was received by the claimant. All other claims must be made within 180
days after the date of the event that caused the claim to arise. The
claim must state with particularity the determination desired by the
claimant.
6.1.2 Timing of Administrator Response. The Administrator
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shall respond to the claimant within 90 days after receiving the claim.
If the Administrator determines that special circumstances require
additional time for processing the claim, the Administrator can extend
the response period by an additional 90 days by notifying the claimant
in writing, before the end of the initial 90-day period, that an
additional period is required. The notice of extension must set forth
the special circumstances and the date by which the Administrator
expects to render its decision.
6.1.3 Notice of Decision. If the Administrator denies part
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or all of the claim, the Administrator shall notify the claimant in
writing of the denial. The Administrator shall write the notification
in a manner calculated to be understood by the claimant. The
notification shall set forth:
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of this Agreement
on which the denial is based,
(c) A description of any additional information or material
necessary for the claimant to perfect the claim and an
explanation of why it is needed,
(d) An explanation of the Agreement's review procedures and the
time limits applicable to such procedures, and
(e) A statement of the claimant's right to bring a civil action
under ERISA section 502(a) after an adverse benefit
determination on review.
6.2 Review Procedure. If the Administrator denies part or all of
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the claim, the claimant shall have the opportunity for a full and fair review by
the Administrator of the denial, as follows:
6.2.1 Initiation - Written Request. To initiate the review,
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the claimant must file with the Administrator a written request for
review within 60 days after receiving the Administrator's notice of
denial.
6.2.2 Additional Submissions - Information Access. The
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claimant shall then have the opportunity to submit written comments,
documents, records, and other information relating to the claim. Upon
request and free of charge, the Administrator shall also provide the
claimant reasonable access to and copies of all documents, records, and
other information relevant (as defined in applicable ERISA regulations)
to the claimant's claim for benefits.
6.2.3 Considerations on Review. In considering the review,
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the Administrator shall take into account all materials and information
the claimant submits relating to the claim, without regard to whether
the information was submitted or considered in the initial benefit
determination.
6.2.4 Timing of Administrator Response. The Administrator
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shall respond in writing to the claimant within 60 days after receiving
the request for review. If the Administrator determines that special
circumstances require additional time for processing the claim, the
Administrator can extend the response period by an additional 60 days
by notifying the claimant in writing before the end of the initial
60-day period that an additional period is required. The notice of
extension must set forth the special circumstances and the date by
which the Administrator expects to render its decision.
6.2.5 Notice of Decision. The Administrator shall notify
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the claimant in writing of its decision on review. The Administrator
shall write the notification in a manner calculated to be understood by
the claimant. The notification shall set forth:
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of the Agreement on
which the denial is based,
(c) A statement that the claimant is entitled to receive, upon
request and free of charge, reasonable access to and copies of
all documents, records, and other information relevant (as
defined in applicable ERISA regulations) to the claimant's
claim for benefits, and
(d) A statement of the claimant's right to bring a civil action
under ERISA section 502(a).
ARTICLE 7
ADMINISTRATION OF AGREEMENT
7.1 Administrator Duties. This Agreement shall be administered by
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an Administrator, which shall consist of the Board or such committee as the
Board shall appoint. The Executive may be a member of the Administrator. The
Administrator shall also have the discretion and authority to (a) make, amend,
interpret, and enforce all appropriate rules and regulations for the
administration of this Agreement and (b) decide or resolve any and all
questions, including interpretations of this Agreement, as may arise in
connection with the Agreement.
7.2 Agents. In the administration of this Agreement, the
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Administrator may employ agents and delegate to them such administrative duties
as it sees fit (including acting through a duly appointed representative), and
may from time to time consult with counsel who may be counsel to the Bank.
7.3 Binding Effect of Decisions. The decision or action of the
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Administrator with respect to any question arising out of or in connection with
the administration, interpretation, and application of this Agreement and the
rules and regulations promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Agreement.
7.4 Indemnity of Administrator. The Bank shall indemnify and hold
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harmless the members of the Administrator against any and all claims, losses,
damages, expenses, or liabilities arising from any action or failure to act with
respect to this Agreement, except in the case of willful misconduct by the
Administrator or any of its members.
7.5 Information. To enable the Administrator to perform its
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functions, the Bank shall supply full and timely information to the
Administrator on all matters relating to the date and circumstances of the
retirement, death, or Separation From Service of the Executive, and such other
pertinent information as the Administrator may reasonably require.
ARTICLE 8
MISCELLANEOUS
8.1 Amendment and Termination of Agreement. This Agreement may be
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amended or terminated solely by a written agreement signed by the Bank and the
Executive. However, this Agreement shall terminate upon the first to occur of
any of the following -
(a) distribution of the death benefit proceeds in accordance
with section 2.2 above,
(b) the Executive's Separation from Service before Normal
Retirement Age,
(c) termination of the Salary Continuation Agreement or
termination of the Executive's entitlement to death benefits
under the Salary Continuation Agreement under Articles 3 and
5 of the Salary Continuation Agreement.
8.2 Binding Effect. This Agreement shall bind the Executive and
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the Bank and their beneficiaries, survivors, executors, administrators, and
transferees, and any Policy beneficiary.
8.3 No Guarantee of Employment. This Agreement is not an
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employment policy or contract. It does not give the Executive the right to
remain an employee of the Bank nor does it interfere with the Bank's right to
discharge the Executive. It also does not require the Executive to remain an
employee nor interfere with the Executive's right to terminate employment at any
time.
8.4 Successors; Binding Agreement. By an assumption agreement in
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form and substance satisfactory to the Executive, the Bank shall require any
successor (whether direct or indirect, by purchase, merger, consolidation, or
otherwise) to all or substantially all of the business or assets of the Bank to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Bank would be required to perform this Agreement if no
succession had occurred.
8.5 Applicable Law. This Agreement and all rights hereunder shall
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be governed by and construed according to the laws of the State of North
Carolina, except to the extent preempted by the laws of the United States of
America.
8.6 Entire Agreement. This Agreement and the Salary Continuation
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Agreement constitute the entire agreement between the Bank and the Executive
concerning the subject matter. No rights are granted to the Executive under this
Agreement other than those specifically set forth.
8.7 Severability. If any provision of this Agreement is held
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invalid, such invalidity shall not affect any other provision of this Agreement
not held invalid, and each such other provision shall continue in full force and
effect to the full extent consistent with law. If any provision of this
Agreement is held invalid in part, such invalidity shall not affect the
remainder of the provision not held invalid, and the remainder of the provision
together with all other provisions of this Agreement shall continue in full
force and effect to the full extent consistent with law.
8.8 Headings. Headings and subheadings herein are included solely
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for convenience of reference and shall not affect the meaning or interpretation
of any provision of this Agreement.
8.9 Notices. All notices, requests, demands and other
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communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand or mailed, certified or registered mail, return
receipt requested, with postage prepaid, to the following addresses or to such
other address as either party may designate by like notice. 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 the Bank
if addressed to the board of directors, Bank of North Carolina, 000 Xxxxxx
Xxxxxx, X.X. Xxx 0000, Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000.
IN WITNESS WHEREOF, the Executive and a duly authorized representative
of the Bank have executed this Agreement as of the date first written above.
EXECUTIVE: BANK:
Bank of North Carolina
/s/ Xxxxx X. Xxxxxxxxx III
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Xxxxx X. Xxxxxxxxx III By: /s/ X. Xxxxx Xxxxxxxxxx, Jr.
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X. Xxxxx Xxxxxxxxxx, Jr.
Its: President and
Chief Executive Officer
AGREEMENT TO COOPERATE WITH INSURANCE UNDERWRITING INCIDENT TO
INTERNAL REVENUE CODE SECTION 1035 EXCHANGE
I acknowledge that I have read the Split Dollar Agreement and
Endorsement and agree to be bound by its terms, particularly the covenant on my
part set forth in section 2.5 of the Split Dollar Agreement and Endorsement to
provide medical information and cooperate with medical insurance-related testing
required by an insurer to issue a comparable insurance policy to cover the
benefit provided under this Split Dollar Agreement and Endorsement.
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxxxx III
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Witness Xxxxx X. Xxxxxxxxx III
SPLIT DOLLAR POLICY ENDORSEMENT
Insured: Xxxxx X. Xxxxxxxxx III
Insurer:
Policy No.
Pursuant to the terms of the Bank of North Carolina Split Dollar
Agreement and Endorsement dated as of July 21, 2006, the undersigned Owner
requests that the above-referenced policy issued by the Insurer provides for the
following beneficiary designation and limited contract ownership rights to the
Insured:
1. Upon the death of the Insured, proceeds shall be paid in one sum to
the Owner, its successors or assigns, to the extent of its interest in the
policy. It is hereby provided that the Insurer may rely solely upon a statement
from the Owner as to the amount of proceeds it is entitled to receive under this
paragraph.
2. Any proceeds at the death of the Insured in excess of the amount
paid under the provisions of the preceding paragraph shall be paid in one sum
to:
PRIMARY BENEFICIARY, RELATIONSHIP/SOCIAL SECURITY NUMBER
CONTINGENT BENEFICIARY, RELATIONSHIP/SOCIAL SECURITY NUMBER
The exclusive rights to change the beneficiary for the proceeds payable under
this paragraph, to elect any optional method of settlement for the proceeds paid
under this paragraph that is available under the terms of the policy, and to
assign all rights and interests granted under this paragraph are hereby granted
to the Insured. The sole signature of the Insured shall be sufficient to
exercise the rights. The Owner retains all contract rights not granted to the
Insured under this paragraph.
3. It is agreed by the undersigned that this designation and limited
assignment of rights shall be subject in all respects to the contractual terms
of the policy.
4. Any payment directed by the Owner under this endorsement shall be a
full discharge of the Insurer, and such discharge shall be binding on all
parties claiming any interest under the policy.
The undersigned for the Owner is signing in a representative capacity
and warrants that he or she has the authority to bind the entity on whose behalf
this document is executed.
Signed at Greensboro, North Carolina the 21st day of July, 2006.
INSURED: OWNER:
Bank of North Carolina
/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx III
By: /s/ Xxxxx X. Xxxxxxx
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Its: Executive Vice President and
Chief Financial Officer
