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 $100,000 paid directly by the
Bank under clause (1) of this Section 2.2(b), the additional tax
gross-up payment would be calculated as follows if the highest
marginal individual income tax rates are 34% (federal) and 7.5%
(North Carolina), taking into account the deductibility at the
federal level of state income taxes:
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First Step :
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$ 100,000 /
divided by (1 - ((34% + 7.5%) - (34% x 7.5%))
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=
$ 100,000 / divided
by (1 minus 38.95%)
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=
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$ 100,000 /
divided by 61.05%, or .6105
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=
$
163,800
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Second Step :
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$ 163,800 minus
$ 100,000
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=
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$ 63,800, the
amount of the additional tax gross-up payment
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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.