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Exhibit 10(vi)(b)

 

B ANK OF N ORTH C AROLINA

E NDORSEMENT S PLIT D OLLAR A GREEMENT

 

T HIS E NDORSEMENT S PLIT D OLLAR A GREEMENT (this “Agreement”) is entered into as of this 31st day of December , 2004 by and between Bank of North Carolina, a North Carolina-chartered commercial bank (the “Bank”), and Richard D. Callicutt, II, its Executive Vice President (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.

 

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. The Bank will pay life insurance premiums from its general assets.

 

The Bank and the Executive agree as set forth herein.

 

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.

 

1.2 Executive’s Interest means the benefit set forth in Section 2.2(a).

 

1.3 Insured means the Executive.

 

1.4 Insurer means each life insurance carrier in which there is a Split Dollar Policy Endorsement attached to this Agreement.

 

1.5 Net Death Proceeds means the total death proceeds of the Policy minus the cash surrender value.

 

1.6 Policy means the specific life insurance policy or policies issued by the Insurers.

 

1.7 Split Dollar Policy Endorsement means the form required by the 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 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 has been paid according to Section 2.2 below.


2.2 Death Benefit . (a) Executive’s Interest If the Policy Is Not Cancelled . Provided the Policy is not cancelled, surrendered, terminated, or allowed to lapse, the Executive’s beneficiary designated in accordance with the Split Dollar Policy Endorsement shall be entitled to 100% of the Net Death Proceeds (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, 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 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%))

 

  

=         $ 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

=

  

$ 63,800, the amount of the additional tax gross-up payment

 

2.3 Comparable Coverage . The Bank may replace the Policy with a 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.



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