Exhibit 10(ii)(d)
BANK OF NORTH CAROLINA
SALARY CONTINUATION AGREEMENT
This SALARY CONTINUATION AGREEMENT (this "Agreement") is made and
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, of the Bank (the "Executive").
WHEREAS, the Executive is expected to contribute substantially to the
success of the Bank and its parent company, BNC Bancorp, a North Carolina
corporation, and the Bank desires that the Executive continue in its employ,
WHEREAS, to encourage the Executive to remain an employee of the Bank,
the Bank is willing to provide salary continuation benefits to the Executive,
payable out of the Bank's general assets, 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 the Bank, is contemplated
insofar as the Bank is concerned.
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
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified.
1.1 "Accrual Balance" means the liability that should be accrued
by the Bank under generally accepted accounting principles ("GAAP") for the
Bank's obligation to the Executive under this Agreement, by applying Accounting
Principles Board Opinion No. 12, as amended by Statement of Financial Accounting
Standards No. 106, and the calculation method and discount rate specified
hereinafter. The Accrual Balance shall be calculated assuming a level principal
amount and interest as the discount rate is accrued each period. The principal
accrual is determined such that when it is credited with interest each month,
the Accrual Balance at Normal Retirement Age equals the present value of the
normal retirement benefits. The discount rate means the rate used by the Plan
Administrator for determining the Accrual Balance. The rate is based on the
yield on a 20-year corporate bond rated Aa by Moody's, rounded to the nearest
1/4%. The initial discount rate is 6.50%. However, the Plan Administrator, in
its sole discretion, may adjust the discount rate to maintain the rate within
reasonable standards according to GAAP.
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1.2 "Beneficiary" means each designated person, or the estate of
the deceased Executive, entitled to benefits, if any, upon the death of the
Executive determined according to Article 4.
1.3 "Beneficiary Designation Form" means the form established from
time to time by the Plan Administrator that the Executive completes, signs, and
returns to the Plan Administrator to designate one or more Beneficiaries.
1.4 "Change in Control" shall mean any one of the following events
occurs, provided the event constitutes a change in control within the meaning of
Internal Revenue Code section 409A and rules, regulations, and guidance of
general application thereunder issued by the Department of the Treasury, and
provided the occurrence of the event is objectively determinable and does not
require the exercise of judgment or discretion on the part of the Plan
Administrator or any other person -
(a) Change in Ownership: a change in ownership of BNC
Bancorp occurs on the date any one person or group accumulates
ownership of BNC Bancorp's stock constituting more than 50% of the
total fair market value or total voting power of BNC Bancorp's stock,
(b) Change in Effective Control: (1) any one person, or
more than one person acting as a group, acquires within a 12-month
period ownership of stock of BNC Bancorp possessing 35% or more of the
total voting power of BNC Bancorp's stock, or (2) a majority of BNC
Bancorp's board of directors is replaced during any 12-month period by
directors whose appointment or election is not endorsed in advance by a
majority of BNC Bancorp's board of directors, or
(c) Change in Ownership of a Substantial Portion of
Assets: a change in the ownership of a substantial portion of BNC
Bancorp's assets occurs on the date any one person, or more than one
person acting as a group, acquires assets from BNC Bancorp having a
total gross fair market value equal to or exceeding 40% of the total
gross fair market value of all of the assets of BNC Bancorp immediately
before the acquisition or acquisitions. For this purpose, gross fair
market value means the value of BNC Bancorp's assets, or the value of
the assets being disposed of, determined without regard to any
liabilities associated with the assets.
For purposes of paragraphs (a) through (c) of this Section 1.4, persons
shall be considered to be acting as a group if they would be considered to be
acting as a group under Internal Revenue Code section 409A and rules,
regulations, and guidance of general application issued thereunder by the
Department of the Treasury.
1.5 "Code" means the Internal Revenue Code of 1986, as amended.
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1.6 "Disability" means, because of a medically determinable
physical or mental impairment that can be expected to result in death or that
can be expected to last for a continuous period of at least 12 months, (a) the
Executive is unable to engage in any substantial gainful activity, or (b) the
Executive is receiving income replacement benefits for a period of at least
three months under an accident and health plan of the employer. Medical
determination of disability may be made either by the Social Security
Administration or by the provider of an accident or health plan covering
employees of the Bank. Upon request of the Plan Administrator, the Executive
must submit proof to the Plan Administrator of the Social Security
Administration's or provider's determination.
1.7 "Early Termination" means Separation from Service before
Normal Retirement Age for reasons other than death, Disability, or Termination
for Cause.
1.8 "Effective Date" means July 21, 2006.
1.9 "Intentional," for purposes of this 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 the Bank.
1.10 "Normal Retirement Age" means the Executive's 65th birthday.
1.11 "Plan Administrator" or "Administrator" means the plan
administrator described in Article 7.
1.12 "Plan Year" means a twelve-month period commencing on
January 1 and ending on the last day of December of each year. The initial Plan
Year shall commence on the Effective Date of this Agreement.
1.13 "Separation from Service" means the Executive's service as an
executive and independent contractor to the Bank and any member of a controlled
group, as defined in Code section 414, terminates for any reason, other than
because of a leave of absence approved by the Bank or the Executive's death. For
purposes of this Agreement, if there is a dispute about the employment status of
the Executive or the date of the Executive's Separation from Service, the Bank
shall have the sole and absolute right to decide the dispute unless a Change in
Control shall have occurred.
1.14 "Termination for Cause" and "Cause" shall have the same
definition specified in any effective severance or employment agreement existing
on the date hereof or hereafter entered into between the Executive and the Bank.
If the Executive is not a party to a severance or employment agreement
containing a definition of termination for cause, Termination for Cause means
the Bank terminates the Executive's employment because of -
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(a) the Executive's gross negligence or gross neglect of
duties or intentional and material failure to perform stated duties
after written notice thereof, or
(b) disloyalty or dishonesty by the Executive in the
performance of his duties, or a breach of the Executive's fiduciary
duties for personal profit, in any case whether in his capacity as a
director or officer, or
(c) intentional wrongful damage by the Executive to the
business or property of the Bank or its affiliates, including without
limitation the reputation of the Bank, which in the judgment of the
Bank causes material harm to the Bank or affiliates, or
(d) a willful violation by the Executive of any
applicable law or significant policy of the Bank or an affiliate that,
in the Bank's judgment, results in an adverse effect on the Bank or the
affiliate, 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 the Bank, or
(e) the occurrence of any event that results in the
Executive being excluded from coverage, or having coverage limited for
the Executive as compared to other executives of the Bank, under the
Bank's blanket bond or other fidelity or insurance policy covering its
directors, officers, or employees, or
(f) the Executive is removed from office or permanently
prohibited from participating in the Bank's affairs by an order issued
under section 8(e)(4) or section 8(g)(1) of the Federal Deposit
Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), or
(g) 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.
ARTICLE 2
LIFETIME BENEFITS
2.1 Normal Retirement Benefit. Unless Separation from Service
occurs before Normal Retirement Age or unless the Change-in-Control benefit
shall have previously been paid under Section 2.4, when the Executive attains
Normal Retirement Age the Bank shall pay to the Executive the benefit described
in this Section 2.1 instead of any other benefit under this Agreement. If the
Executive's Separation from Service thereafter is a Termination for Cause or if
this Agreement terminates under Article 5, no further benefits shall be paid.
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2.1.1 Amount of Benefit. The annual benefit under this Section 2.1
is $110,000.
2.1.2 Payment of Benefit. The Bank shall pay the annual benefit to
the Executive in 12 equal monthly installments payable on the
first day of each month, beginning with the month immediately
after the month in which the Executive attains Normal
Retirement Age. The annual benefit shall be paid to the
Executive for his lifetime.
2.2 Early Termination Benefit. Unless the Change-in-Control
benefit shall have previously been paid under Section 2.4, after Early
Termination the Bank shall pay to the Executive the benefit described in this
Section 2.2 instead of any other benefit under this Agreement.
2.2.1 Amount of Benefit. Subject to Section 2.2.3, the benefit under
this Section 2.2 is the vested Early Termination annual
benefit amount set forth in Schedule A for the Plan Year
ending immediately before the date on which Separation from
Service occurs (except during the first Plan Year, the benefit
is the amount set forth for Plan Year 1).
2.2.2 Payment of Benefit. Subject to Section 2.2.3, beginning with
the later of (a) the seventh month after the Executive's
Separation from Service, or (b) the month immediately after
the month in which the Executive attains the Normal Retirement
Age, the Bank shall pay the Early Termination benefit to the
Executive in 12 equal monthly installments on the first day of
each month for his lifetime.
2.2.3 Lump-sum Payment If the Accrual Balance Is $150,000 or Less.
If the vested Accrual Balance on the date of the Executive's
Separation from Service is $150,000 or less, the benefit under
Section 2.2 shall consist of the vested Accrual Balance, which
shall be paid by the Bank in a single lump sum on the first
day of the seventh month after the Executive's Separation from
Service.
2.2.4 Vesting. The Executive shall be considered 40% vested in the
Early Termination benefit on the Effective Date of this
Agreement. If the Executive remains in the full-time
employment of the Bank, the Executive shall be considered 60%
vested on the first anniversary of the Effective Date of this
Agreement, 80% vested on the second anniversary, and 100%
vested on the third anniversary.
2.3 Disability Benefit. Unless the Change-in-Control benefit shall
have previously been paid under Section 2.4, for Separation from Service because
of Disability before the Normal Retirement Age the Bank shall pay to the
Executive the benefit described in this Section 2.3 instead of any other benefit
under this Agreement.
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2.3.1 Amount of Benefit. Subject to Section 2.3.3, the benefit under
this Section 2.3 is the Disability annual benefit amount set
forth in Schedule A for the Plan Year ending immediately
before the date on which Separation from Service occurs
(except during the first Plan Year, the benefit is the amount
set forth for Plan Year 1).
2.3.2 Payment of Benefit. Subject to Section 2.3.3, beginning with
the later of (a) the seventh month after the Executive's
Separation from Service, or (b) the month immediately after
the month in which the Executive attains the Normal Retirement
Age, the Bank shall pay the Disability benefit to the
Executive in 12 equal monthly installments on the first day of
each month for his lifetime.
2.3.3 Lump-sum Payment If the Accrual Balance Is $150,000 or Less.
If the Accrual Balance on the date of the Executive's
Separation from Service is $150,000 or less, the benefit under
Section 2.3 shall consist of the Accrual Balance, which shall
be paid by the Bank in a single lump sum on the first day of
the seventh month after the Executive's Separation from
Service.
2.4 Change-in-Control Benefit. If a Change in Control occurs after
the date of this Agreement but before Normal Retirement Age and before
Separation from Service, the Bank shall pay to the Executive the benefit
described in this Section 2.4 instead of any other benefit under this Agreement
and the Bank shall exercise its discretion to terminate this Agreement.
2.4.1 Amount of Benefit: The benefit under this Section 2.4 is the
greater of (a) the vested Accrual Balance when the Change in
Control occurs or (b) $600,000, in either case without
discount for the time value of money.
2.4.2 Payment of Benefit: The Bank shall pay the Change-in-Control
benefit under Section 2.4 of this Agreement to the Executive
in one lump sum within three days after the Change in Control.
Payment of the Change-in-Control benefit shall fully discharge
the Bank from all obligations under this Agreement, except the
legal fee reimbursement obligation under Section 8.13.
2.5 Contradiction in Terms of Agreement and Schedule A. If there
is a contradiction in the terms of this Agreement and Schedule A attached hereto
concerning the actual amount of a particular benefit amount due the Executive
under Section 2.2, 2.3, or 2.4 hereof, then the actual amount of the benefit set
forth in the Agreement shall control. If the Plan Administrator changes the
discount rate employed for purposes of calculating the Accrual Balance, the Plan
Administrator shall prepare or cause to be prepared a revised Schedule A, which
shall supersede and replace any and all Schedules A previously prepared under or
attached to this Agreement.
2.6 One Benefit Only. Despite any contrary provision of this
Agreement, the Executive and Beneficiary are entitled to one benefit only under
Article 2 of this Agreement, which shall be determined by the first event to
occur that is dealt with by Article 2 of this Agreement. Subsequent occurrence
of events dealt with by this Article 2 shall not entitle the Executive or the
Executive's Beneficiary to other or additional benefits under Article 2.
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2.7 Savings Clause Relating to Compliance with Code Section 409A.
Despite any contrary provision of this Agreement, if when the Executive's
employment terminates the Executive is a specified employee, as defined in Code
section 409A, and if any payments under Article 2 of this Agreement will result
in additional tax or interest to the Executive because of section 409A, the
Executive will not be entitled to the payments under Article 2 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. If any provision
of this Agreement would subject the Executive to additional tax or interest
under section 409A, the Bank shall reform the provision. However, the Bank shall
maintain to the maximum extent practicable the original intent of the applicable
provision without subjecting the Executive to additional tax or interest, and
the Bank shall not be required to incur any additional compensation expense as a
result of the reformed provision. References in this Agreement to Code section
409A include rules, regulations, and guidance of general application issued by
the Department of the Treasury under Code section 409A.
ARTICLE 3
DEATH BENEFITS
3.1 Death Before Separation from Service. If the Executive dies
before Separation from Service, the Executive's Beneficiary shall be entitled to
(a) an amount in cash equal to the vested Accrual Balance existing at the time
of the Executive's death, unless the Change-in-Control benefit shall have
previously been paid to the Executive under Section 2.4, and (b) the benefit
described in the Split Dollar Agreement and Endorsement attached to this
Agreement as Addendum A. No benefit shall be paid under clause (a) if the
Change-in-Control benefit shall have previously been paid to the Executive under
Section 2.4. If a benefit is payable to the Executive's Beneficiary under clause
(a), the benefit shall be paid in a single lump sum no later than 90 days after
the date of the Executive's death. However, no benefits under this Agreement or
under the Split Dollar Agreement and Endorsement shall be paid or payable to the
Executive, the Executive's Beneficiary, or the Executive's estate if this
Agreement is terminated according to Article 5.
3.2 Death after Separation from Service. If the Executive dies
after Separation from Service and if Separation from Service was not a
Termination for Cause, the Executive's Beneficiary shall be entitled to an
amount in cash equal to the vested Accrual Balance remaining at the time of the
Executive's death, which shall be paid in a single lump sum no later than 90
days after the date of the Executive's death. If Separation from Service
occurred after Normal Retirement Age and Separation from Service was not a
Termination for Cause, the Executive's Beneficiary shall also be entitled to the
benefit described in the Split Dollar Agreement and Endorsement. However, no
benefits under this Agreement or under the Split Dollar Agreement shall be paid
or payable to the Executive, the Executive's Beneficiary, or the Executive's
estate if this Agreement is terminated according to Article 5.
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ARTICLE 4
BENEFICIARIES
4.1 Beneficiary Designations. The Executive shall have the right
to designate at any time a Beneficiary to receive any benefits payable under
this Agreement upon the death of the Executive. The Beneficiary designated under
this Agreement may be the same as or different from the beneficiary designation
under any other benefit plan of the Bank in which the Executive participates.
4.2 Beneficiary Designation: Change. The Executive shall designate
a Beneficiary by completing and signing the Beneficiary Designation Form and
delivering it to the Plan Administrator or its designated agent. The Executive's
Beneficiary designation shall be deemed automatically revoked if the Beneficiary
predeceases the Executive or if the Executive names a spouse as Beneficiary and
the marriage is subsequently dissolved. The Executive shall have the right to
change a Beneficiary by completing, signing, and otherwise complying with the
terms of the Beneficiary Designation Form and the Plan Administrator's rules and
procedures, as in effect from time to time. Upon the acceptance by the Plan
Administrator of a new Beneficiary Designation Form, all Beneficiary
designations previously filed shall be cancelled. The Plan Administrator shall
be entitled to rely on the last Beneficiary Designation Form filed by the
Executive and accepted by the Plan Administrator before the Executive's death.
4.3 Acknowledgment. No designation or change in designation of a
Beneficiary shall be effective until received, accepted, and acknowledged in
writing by the Plan Administrator or its designated agent.
4.4 No Beneficiary Designation. If the Executive dies without a
valid beneficiary designation, or if all designated Beneficiaries predecease the
Executive, then the Executive's spouse shall be the designated Beneficiary. If
the Executive has no surviving spouse, the benefits shall be made to the
personal representative of the Executive's estate.
4.5 Facility of Payment. If a benefit is payable to a minor, to a
person declared incapacitated, or to a person incapable of handling the
disposition of his or her property, the Bank may pay such benefit to the
guardian, legal representative, or person having the care or custody of the
minor, incapacitated person, or incapable person. The Bank may require proof of
incapacity, minority, or guardianship as it may deem appropriate before
distribution of the benefit. Distribution shall completely discharge the Bank
from all liability for the benefit.
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ARTICLE 5
GENERAL LIMITATIONS
5.1 Termination for Cause. Despite any provision of this Agreement
to the contrary, the Executive and the Executive's Beneficiary shall be entitled
to no benefit under this Agreement and this Agreement shall terminate if
Separation from Service is a result of Termination for Cause. Likewise, no
benefit shall be payable to the Executive's Beneficiary under the Split Dollar
Agreement and Endorsement attached to this Agreement as Addendum A, and the
Split Dollar Agreement and Endorsement also shall terminate, if Separation from
Service is a result of Termination for Cause.
5.2 Suicide or Misstatement. No benefits shall be paid under this
Agreement or under the Split Dollar Agreement and Endorsement if the Executive
commits suicide within two years after the Effective Date of this Agreement or
if the Executive makes any material misstatement of fact on any application or
resume provided to the Bank, on any application for life insurance purchased by
the Bank, or on any application for benefits provided by the Bank.
5.3 Removal. Despite any contrary provision of this Agreement, if
the Executive is removed from office or permanently prohibited from
participating in the Bank'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), all
obligations of the Bank under this Agreement shall terminate as of the effective
date of the order.
5.4 Default. Despite any contrary provision of this Agreement, if
the Bank is in "default" or "in danger of default", as those terms are defined
in of section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all
obligations under this Agreement shall terminate.
5.5 FDIC Open-Bank Assistance. All obligations under this
Agreement shall be terminated, except to the extent determined that continuation
of the contract is necessary for the continued operation of the Bank, at the
time the Federal Deposit Insurance Corporation enters into an agreement to
provide assistance to or on behalf of the Bank under the authority contained in
section 13(c) of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c). Rights of
the parties that have already vested shall not be affected by such action,
however.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. Any person who has not received 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 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.
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6.1.2 Timing of Administrator Response. The Administrator 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 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
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, 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 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.
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6.2.3 Considerations on Review. In considering the review, 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 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 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 Plan Administrator Duties. This Agreement shall be
administered by a Plan Administrator consisting of the Board or such committee
or person(s) as the Board shall appoint. The Executive may be a member of the
Plan Administrator. The Plan 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 Plan
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.
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7.3 Binding Effect of Decisions. The decision or action of the
Plan Administrator with respect to any question arising out of or in connection
with the administration, interpretation, and application of the Agreement and
the rules and regulations promulgated hereunder shall be final and conclusive
and binding upon all persons having any interest in the Agreement. No Executive
or Beneficiary shall be deemed to have any right, vested or nonvested, regarding
the continued use of any previously adopted assumptions, including but not
limited to the discount rate and calculation method employed in the
determination of the Accrual Balance.
7.4 Indemnity of Plan Administrator. The Bank shall indemnify and
hold harmless the members of the Plan 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 Plan Administrator or any of its members.
7.5 Bank Information. To enable the Plan Administrator to perform
its functions, the Bank shall supply full and timely information to the Plan
Administrator on all matters relating to the date and circumstances of the
retirement, Disability, death, or Separation from Service of the Executive, and
such other pertinent information as the Plan Administrator may reasonably
require.
ARTICLE 8
MISCELLANEOUS
8.1 Amendments and Termination. Subject to Section 8.15 of this
Agreement, this Agreement may be amended solely by a written agreement signed by
the Bank and by the Executive, and except for termination occurring under
Article 5 or Section 2.4 this Agreement may be terminated solely by a written
agreement signed by the Bank and by the Executive.
8.2 Binding Effect. This Agreement shall bind the Executive and
the Bank, and their beneficiaries, survivors, executors, successors,
administrators, and transferees.
8.3 No Guarantee of Employment. This Agreement is not an
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 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached, or encumbered in any manner.
8.5 Successors; Binding Agreement. By an assumption agreement in
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 Bank's business or assets to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent the Bank would be required to perform this Agreement if no such
succession had occurred.
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8.6 Tax Withholding. The Bank shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
8.7 Applicable Law. The Agreement and all rights hereunder shall
be governed by the laws of the State of North Carolina, except to the extent
preempted by the laws of the United States of America.
8.8 Unfunded Arrangement. The Executive and beneficiary are
general unsecured creditors of the Bank for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Bank to pay such
benefits. The rights to benefits are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by creditors. Any insurance on the Executive's life is a general
asset of the Bank to which the Executive and beneficiary have no preferred or
secured claim.
8.9 Entire Agreement. This Agreement and the Split Dollar
Agreement and Endorsement attached to this Agreement as Addendum A constitute
the entire agreement between the Bank and the Executive concerning the subject
matter hereof. No rights are granted to the Executive under this Agreement other
than those specifically set forth.
8.10 Severability. If any provision of this Agreement is held
invalid, such invalidity shall not affect any other provision of this Agreement
not held invalid, and to the full extent consistent with law each such other
provision shall continue in full force and effect. If any provision of this
Agreement is held invalid in part, such invalidity shall not affect the
remainder of such provision not held invalid, and to the full extent consistent
with law the remainder of such provision, together with all other provisions of
this Agreement, shall continue in full force and effect.
8.11 Headings. Headings are included herein solely for convenience
of reference and shall not affect the meaning or interpretation of any provision
of this Agreement.
8.12 Notices. All notices, requests, demands and other
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.
13
8.13 Payment of Legal Fees. The Bank is aware that upon the
occurrence of a Change in Control, management of the Bank may cause or attempt
to cause the Bank to refuse to comply with its obligations under this Agreement,
or may cause or attempt to cause the Bank to institute, or may institute,
litigation seeking to have this Agreement declared unenforceable, or may take,
or attempt to take, other action to deny Executive the benefits intended under
this Agreement. In these circumstances, the purpose of this Agreement could be
frustrated. It is the intent of the Bank that the Executive not be required to
incur the expenses associated with the enforcement of his rights under this
Agreement by litigation or other legal action because the cost and expense
thereof would substantially detract from the benefits intended to be extended to
Executive hereunder, nor be bound to negotiate any settlement of his rights
hereunder under threat of incurring such expenses. Accordingly, if after a
Change in Control it appears to Executive that (a) the Bank has failed to comply
with any of its obligations under this Agreement, or (b) the Bank or any other
person has taken any action to declare this Agreement void or unenforceable or
instituted any litigation or other legal action designed to deny, diminish or to
recover from, Executive the benefits intended to be provided to Executive
hereunder, the Bank irrevocably authorizes Executive from time to time to retain
counsel of his choice at the Bank's expense as provided in this Section 8.13, to
represent Executive in connection with the initiation or defense of any
litigation or other legal action, whether by or against the Bank or any
director, officer, stockholder or other person affiliated with the Bank, in any
jurisdiction. The fees and expenses of counsel selected from time to time by
Executive as herein above provided shall be paid or reimbursed to Executive by
the Bank on a regular, periodic basis upon presentation by 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. The Bank's obligation to pay the
Executive's legal fees provided by this Section 8.13 operates separately from,
and in addition to, any legal fee reimbursement obligation the Bank or the
Bank's parent BNC Bancorp may have with the Executive under a severance or
employment agreement by and among the Executive, the Bank, and BNC Bancorp.
Anything in this Section 8.13 to the contrary notwithstanding however, the Bank
shall not be required to pay or reimburse the 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].
8.14 Internal Revenue Code Section 280G Gross Up. (a) Additional
Payment to Account for Excise Taxes. If as a result of a Change in Control the
Executive becomes entitled to acceleration of benefits under this Agreement or
under any other plan or agreement of or with the Bank or its affiliates
(together, the "Total Benefits"), and if any of the Total Benefits will be
subject to the Excise Tax as set forth in sections 280G and 4999 of the Internal
Revenue Code of 1986 (the "Excise Tax"), the Bank shall pay to the Executive the
following additional amounts, consisting of (1) a payment equal to the Excise
Tax payable by the Executive on the Total Benefits under section 4999 of the
Internal Revenue Code (the "Excise Tax Payment"), and (2) 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 (1) and
(2) are referred to in this Agreement as the "Gross-Up Payment Amount."
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,
14
(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 Agreement or any other agreement or any other benefit
plan or arrangement with the Bank, any person whose actions
result in a Change in Control, or any person affiliated with
the Bank 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 the Bank
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.
Assumed Marginal Income Tax Rate. For purposes of determining the
--------------------------------
amount of 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 the Bank - 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).
15
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), the Bank shall make an additional Gross-Up
Payment Amount 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 the Bank.
Determinations Shall Be Made by the Accounting Firm. Subject to the provisions
---------------------------------------------------
of Section 8.14(a), all determinations required to be made under this Section
8.14(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
the Bank and the Executive within 15 business days after receipt of notice from
the Bank or the Executive that there has been a Gross-Up Payment Amount, or such
earlier time as is requested by the Bank.
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 the Bank. The Bank shall enter into any agreement requested by the
Accounting Firm in connection with the performance of its services hereunder.
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 the
-----------
Bank 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 the Bank ("Underpayment"), or that a
Gross-Up Payment Amount will be made that should not have been made by the Bank
("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 the Bank
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 8.14(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 the Bank. Provided that
his expenses are reimbursed by the Bank, the Executive shall cooperate with any
reasonable requests by the Bank in any contests or disputes with the Internal
Revenue Service relating to the Excise Tax.
16
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 Agreement shall be deemed to
refer to the accounting firm appointed by the Executive under this paragraph).
8.15 Termination or Modification of Agreement Because of Changes in
Law, Rules or Regulations. The Bank is entering into this Agreement on the
assumption that certain existing tax laws, rules, and regulations will continue
in effect in their current form. If that assumption materially changes and the
change has a material detrimental effect on this Agreement, then the Bank
reserves the right to terminate or modify this Agreement accordingly, subject to
the written consent of the Executive, which shall not be unreasonably withheld.
This Section 8.15 shall become null and void effective immediately upon a Change
in Control.
IN WITNESS WHEREOF, the Executive and a duly authorized Bank officer
have executed this Salary Continuation Agreement as of the date first written
above.
EXECUTIVE: BANK:
BANK OF NORTH CAROLINA
/s/ Xxxxx X. Xxxxxxxxx III
----------------------------------
Xxxxx X. Xxxxxxxxx III
By: /s/ X. Xxxxx Xxxxxxxxxx, Jr.
----------------------------
X. Xxxxx Xxxxxxxxxx, Jr.
Title: President and
Chief Executive Officer
17
BENEFICIARY DESIGNATION
BANK OF NORTH CAROLINA
SALARY CONTINUATION AGREEMENT
XXXXX X. XXXXXXXXX III
I designate the following as beneficiary of any death benefits under
this Salary Continuation Agreement:
Primary:
------------------------------------------------------------------------
--------------------------------------------------------------------------------
Contingent:
---------------------------------------------------------------------
--------------------------------------------------------------------------------
Note: To name a trust as beneficiary, please provide the name of the
trustee(s) and the exact name and date of the trust agreement.
I understand that I may change these beneficiary designations by filing
a new written designation with the Bank. I further understand that the
designations will be automatically revoked if the beneficiary predeceases me,
or, if I have named my spouse as beneficiary and our marriage is subsequently
dissolved.
Signature:
--------------------------------
Xxxxx X. Xxxxxxxxx III
Date: , 2006
-------------------
Accepted by the Bank this day of , 2006.
---------- -------------
By:
--------------------------------
Title:
--------------------------------
18
SCHEDULE A
BANK OF NORTH CAROLINA
SALARY CONTINUATION AGREEMENT
XXXXX X. XXXXXXXXX III
EARLY
TERMINATION
ANNUAL DISABILITY
BENEFIT ANNUAL BENEFIT
PLAN YEAR AGE AT PAYABLE AT PAYABLE AT CHANGE-IN-CONTOL
ENDING PLAN ACCRUAL NORMAL NORMAL BENEFIT
DECEMBER YEAR BALANCE @ PERCENT RETIREMENT RETIREMENT AGE PAYABLE IN A
PLAN YEAR 31, END 6.50% (1) VESTED AGE (2) (2) LUMP SUM (3)
---------- ------------ -------- ------------ --------- -------------- ---------------- ----------------
1 2006 52 40%
2 2007 53 60%
3 2008 54 80%
4 2009 55 100%
5 2010 56
6 2011 57
7 2012 58
8 2013 59
9 2014 60
10 2015 61
11 2016 62
12 2017 63
13 2018 64
14 November 65
2019
(1) Calculations are approximations. Benefit calculations are
based on prior year-end accrual balances. The accrual balance reflects payment
at the end of each month.
(2) Early Termination and Disability benefits are shown for
illustrative purposes only, based on the present value of the current payment
stream of the accrual balance using a standard discount rate (6.50%). The Early
Termination and Disability benefits shown assume the Executive's Separation from
Service occurs more than six months before the Executive's Normal Retirement Age
and that the benefit therefore becomes payable beginning in the month after the
Executive attains the Normal Retirement Age. If the vested Accrual Balance is
$150,000 or less when Early Termination occurs or if the Accrual Balance is
$150,000 or less when Separation from Service because of Disability occurs, the
Early Termination or Disability benefit will consist of the vested Accrual
Balance or the Accrual Balance, payable in a single lump sum in the seventh
month after Separation from Service.
(3) The Change-in-Control benefit is the greater of (a) the vested
Accrual Balance when the Change in Control occurs or (b) $600,000, in either
case without discount for the time value of money.
19
(4) The Executive attains Normal Retirement Age on November 24,
2019. The first monthly normal retirement benefit payment will be made on
December 1, 2019.
If there is a contradiction between the terms of the Agreement and
Schedule A concerning the actual amount of a particular benefit amount due the
Executive under Section 2.2, 2.3, or 2.4 of the Agreement, then the actual
amount of the benefit set forth in the Agreement shall control. If the Plan
Administrator changes the discount rate employed for purposes of calculating the
Accrual Balance, the Plan Administrator shall prepare or cause to be prepared a
revised Schedule A, which shall supersede and replace any and all Schedules A
previously prepared under or attached to the Agreement.
20
