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SEPARATION AGREEMENT AND FULL AND FINAL RELEASE OF CLAIMS

Termination Agreement

SEPARATION AGREEMENT AND 

FULL AND FINAL RELEASE OF CLAIMS | Document Parties: Bank of North Carolina and Mr. Strayhorn | BNC Bancorp BNC Bancorp You are currently viewing:
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Bank of North Carolina and Mr. Strayhorn | BNC Bancorp BNC Bancorp

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Title: SEPARATION AGREEMENT AND FULL AND FINAL RELEASE OF CLAIMS
Governing Law: North Carolina     Date: 3/17/2009
Industry: Regional Banks     Sector: Financial

SEPARATION AGREEMENT AND 

FULL AND FINAL RELEASE OF CLAIMS, Parties: bank of north carolina and mr. strayhorn , bnc bancorp bnc bancorp
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Exhibit 10(x)

S EPARATION A GREEMENT AND

F ULL AND F INAL RELEASE OF C LAIMS

This S EPARATION A GREEMENT AND F ULL AND F INAL R ELEASE OF C LAIMS (this “ Agreement ”) is entered into effective as of this 16 th day of June, 2008 by and among Ralph N. Strayhorn III (“ Mr. Strayhorn ”), BNC Bancorp, a North Carolina corporation, and Bank of North Carolina, a North Carolina 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 ,” and Mr. Strayhorn and BNC are hereinafter sometimes referred to together as the “ Parties ” or each individually as a “ Party .”

W HEREAS , Mr. Strayhorn has been serving as the Chief Administrative Officer and Executive Vice President of BNC and as a director of BNC,

W HEREAS , the Parties entered into a December 18, 2007 Employment Agreement (the “ Employment Agreement ”), providing cash severance and other benefits for Mr. Strayhorn at employment termination, conditional upon Mr. Strayhorn entering into an agreement not to compete with BNC,

W HEREAS , Bank of North Carolina and Mr. Strayhorn also entered into a December 18, 2007 Amended Salary Continuation Agreement (the “ SERP ”), providing in section 2.2 for payment of a cash benefit to Mr. Strayhorn no earlier than the first day of the seventh month after his employment termination if his employment terminates before attaining age 65,

W HEREAS , Bank of North Carolina and Mr. Strayhorn also entered into a December 18, 2007 Amended Endorsement Split Dollar Agreement (the “ Split Dollar Agreement ”), granting to Mr. Strayhorn the right to designate the beneficiary of a portion of the death benefits payable at Mr. Strayhorn’s death under an insurance policy owned by Bank of North Carolina on Mr. Strayhorn’s life,

W HEREAS , the Parties have mutually agreed to terminate Mr. Strayhorn’s employment relationship and director service and desire to enter into this Agreement, superseding the Employment Agreement in its entirety, providing for certain payments and benefits to be made to Mr. Strayhorn upon termination of employment, and imposing restrictive covenants, confidentiality obligations, and other obligations on Mr. Strayhorn, and

W HEREAS , if Mr. Strayhorn executes and returns this Agreement to BNC within 21 days after the June 16, 2008 date on which he was given a copy of this Agreement and if Mr. Strayhorn does not revoke his acceptance of this Agreement under section 3.8, then this Agreement shall become effective at 5:30 p.m. on the seventh day after Mr. Strayhorn executes and returns this Agreement to BNC (the “ Effective Date ”).

N OW , T HEREFORE , in consideration of the covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows.

A RTICLE 1

T ERMINATION

1.1 Employment resignation . (a) The Parties have mutually agreed to end Mr. Strayhorn’s employment relationship with BNC and with all subsidiaries and affiliates of BNC effective June 16, 2008 (the “ Severance Date ”). Effective as of the Severance Date Mr. Strayhorn hereby resigns ( x ) as Chief Administrative Officer and Executive Vice President of BNC Bancorp and Bank of North Carolina and ( y ) any and all other positions he may hold with BNC Bancorp, Bank of North Carolina, or any of their subsidiaries or affiliates. Mr. Strayhorn shall have no authority to enter into agreements or otherwise bind BNC, Bank of North Carolina, or any of their subsidiaries or affiliates after the Severance Date. As part of the amicable resolution of the employment relationship between the Parties, Mr. Strayhorn acknowledges that he does not and will not seek reinstatement, future employment, or return to active employee status with BNC or its corporate affiliates, subsidiaries, successors, or assigns. Mr. Strayhorn further acknowledges that BNC shall not be under any obligation whatsoever to consider him for reinstatement, employment, re-employment or other similar status at any time. Mr. Strayhorn further agrees that no BNC Releasee (as defined in section 3.1) shall be liable for any damages now or in the future because it refuses for any reason whatsoever to employ Mr. Strayhorn. The provisions set forth in this section may be waived or modified solely by a writing that expressly references this section and that is signed by the Parties.


1.2 Director resignation . Effective on the Severance Date Mr. Strayhorn hereby resigns from BNC Bancorp’s board of directors, from Bank of North Carolina’s board of directors, and from any and all boards of directors of BNC’s subsidiaries, affiliates, or other business entities owned or controlled by BNC.

1.3 Return of property . Mr. Strayhorn acknowledges and agrees that within three business days after the Effective Date he must return all files, memoranda, records, company credit cards, company manuals, computer equipment, computer software, and any other equipment or documents (including all copies and excerpts), and all other physical or electronic property of similar type that he received from BNC or that he used in the course of employment with BNC.

1.4 Other Benefits . After the Severance Date, Mr. Strayhorn agrees that he shall no longer be entitled to reimbursement of bar association dues, state bar dues, or any country club dues incurred after the Severance Date.

A RTICLE 2

T ERMINATION B ENEFITS

In consideration of his decision to enter into this Agreement, and conditioned upon Mr. Strayhorn’s material compliance with his obligations under this Agreement (regardless of whether the covenants, obligations, or provisions set forth in such sections are otherwise deemed enforceable) and the Noncompetition and Confidentiality Agreement required under Article 6 of this Agreement, BNC agrees to provide Mr. Strayhorn the benefits set forth in this Article 2. Mr. Strayhorn acknowledges and agrees that the benefits set forth in this Article 2 represent good, valuable, and sufficient consideration for the mutual promises and duties set forth in this Agreement, that from and after the Effective Date Mr. Strayhorn shall have no further rights under or interest in the Employment Agreement, and that from and after the Effective Date the Employment Agreement shall be void and of no further force or effect.

2.1 Tax withholding; termination of participation in benefit plans; death or disability of Mr. Strayhorn . All tax and other amounts BNC is required to withhold or deduct shall be deducted from the payments to Mr. Strayhorn under this Agreement. Except as described in this Article 2, Mr. Strayhorn’s eligibility for, coverage under, and participation in all retirement, savings, welfare, fringe benefit, compensation, and bonus plans shall terminate on the Severance Date. Benefits specified in this Article 2 shall continue to be payable and enforceable regardless of Mr. Strayhorn’s death or disability, and the provisions of this Article 2 shall be enforceable by Mr. Strayhorn’s heirs and personal representatives. Upon Mr. Strayhorn’s disability, payments due hereunder shall be made to Mr. Strayhorn or, if a legal guardian is appointed for Mr. Strayhorn, to the legal guardian, and at Mr. Strayhorn’s death payments under this Agreement shall be made to Mr. Strayhorn’s estate (or to such beneficiary as shall be designated to BNC by Mr. Strayhorn in writing) in such manner and at such times as set forth in this Article 2.

2.2 Cash severance . (a) Mr. Strayhorn shall receive a lump sum cash payment in the gross amount of $547,764, subject to applicable tax and other withholdings, within seven days after the Effective Date.

(b) BNC shall reimburse Mr. Strayhorn for all business expenses incurred by Mr. Strayhorn in his employment with BNC before the Severance Date, provided that Mr. Strayhorn timely and properly submits the expenses in accordance with BNC’s normal business expense reimbursement policy.

2.3 Director and officer liability insurance . After the Severance Date Mr. Strayhorn shall continue to be covered under BNC’s director and officer liability insurance for the period that Mr. Strayhorn was an officer and director of BNC, its subsidiaries, and affiliates, but only to the extent coverage is provided by the terms of the director and officer liability insurance contract in effect on the Severance Date.

2.4 Outplacement assistance and use of office . BNC hereby promises to pay or cause to be paid to Mr. Strayhorn reasonable outplacement expenses in an amount up to $25,000, provided Mr. Strayhorn advises BNC in advance of the outplacement service provider Mr. Strayhorn intends to use and provided Mr. Strayhorn submits to BNC for payment the billing statements issued by the outplacement service provider. For one year after the Severance Date BNC shall provide to Mr. Strayhorn the use of office space and reasonable office support facilities, including secretarial assistance, for the sole purpose of assisting Mr. Strayhorn in his effort to obtain employment.


2.5 SERP and Split Dollar Agreement . (a) Mr. Strayhorn acknowledges and agrees that termination of his relationship with BNC as of the Severance Date constitutes a Separation from Service as defined in section 1.13 of Mr. Strayhorn’s SERP and an Early Termination as defined in section 1.7 of the SERP. Accordingly, Mr. Strayhorn shall be entitled to receive the Early Termination benefit provided by section 2.2 of the SERP, which according to section 2.2.3 shall be paid in a single lump sum on the first day of the seventh month after June 2008 if Mr. Strayhorn’s vested Accrual Balance, as that term is defined in section 1.1 of the SERP, is $150,000 or less. The SERP Accrual Balance on September 1, 2008 is expected to be $145,769, and according to SERP section 2.2.4 Mr. Strayhorn would be 80% vested in that Accrual Balance on September 1, 2008, yielding a vested Accrual Balance of $116,616. BNC hereby promises to pay to Mr. Strayhorn on January 1, 2009 cash in the amount of $116,616 under section 2.2 of the SERP. Upon receipt of that payment by Mr. Strayhorn BNC, its subsidiaries, and its affiliates shall have no further obligation under and Mr. Strayhorn and his Beneficiaries, as defined in SERP section 1.2, shall have no further interest in the SERP, and the SERP shall thereafter be void and of no further force or effect.

(b) Under the terms of Mr. Strayhorn’s Split Dollar Agreement his termination of employment and director service with BNC and Bank of North Carolina has no effect on his rights under the Split Dollar Agreement and the Split Dollar Agreement shall remain in place, subject to its terms, provided that Section 8.1(y) of the Split Dollar Agreement shall be of no effect, the parties hereby acknowledge that no such event has occurred. The parties acknowledge this obligations on BNC’s successors and assigns pursuant to Section 8.4 of the Split Dollar Agreement.

2.6 Life and medical insurance coverage . (a) Subject to section 2.6(b), BNC shall continue or cause to be continued at BNC’s expense life and medical insurance benefits in effect during and in accordance with the same scheduling prevailing in the two years preceding the Severance Date. The benefits provided under this section 2.6 shall continue until the first to occur of ( x ) the Executive’s death, ( y ) July 21, 2010, or ( z ) Mr. Strayhorn’s employment by another employer, provided he is eligible for comparable coverage from such employer.

(b) If ( x ) under the terms of the applicable policy or policies for the insurance benefits specified in section 2.6(a) it is not possible to continue Mr. Strayhorn’s coverage, or ( y ) when employment termination occurs Mr. Strayhorn is a specified employee within the meaning of section 409A of the Internal Revenue Code of 1986, if any of the continued insurance coverage benefits specified in section 2.6(a) would be considered deferred compensation under section 409A, and finally if an exemption from the six-month delay requirement of section 409A(a)(2)(B)(i) is not available for that particular insurance benefit, instead of continued insurance coverage under section 2.6(a) BNC shall pay to Mr. Strayhorn in a single lump sum an amount in cash equal to the present value of BNC’s projected cost to maintain that particular insurance benefit had Mr. Strayhorn’s employment not terminated, assuming continued coverage until July 21, 2010. The lump-sum payment shall be made 30 days after the Severance Date or, if a six-month payment delay is required by section 4.2 and by Internal Revenue Code section 409A, on the first day of the seventh month after the month in which Mr. Strayhorn’s employment terminated.

2.7 Contingent payment . Mr. Strayhorn acknowledges that he has no rights to any payment under Article 5 of the Employment Agreement.

2.8 Stock options . Mr. Strayhorn acknowledges and agrees that he holds no options or rights to acquire BNC stock under any of BNC’s stock option plans and is therefore entitled to no benefits or payments in exchange for vested or unvested stock options or stock rights of any kind.

2.9 Other Benefits . Nothing herein shall prevent Mr. Strayhorn from receiving and being entitled to all benefits due to him under the terms of BNC’s 401(k) plan.

A RTICLE 3

L IABILITIES

3.1 Release of BNC by Mr. Strayhorn . (a) In consideration of the benefits set forth in Article 2 and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, but subject to the provisions of section 3.1(b), Mr. Strayhorn, for himself and for his attorneys, heirs, executors, administrators, successors and assigns, fully, finally and forever releases and discharges BNC and all of their parent, subsidiary, and/or affiliated companies, as well as their successors, assigns, officers, directors, agents, representatives, attorneys, stockholders, insurers, employees and employee benefit plans or programs (and the trustees, administrators, fiduciaries, and insurers of such plans or programs), and any other person acting by, through, under, or in concert with any of the persons or entities listed in this section (collectively, the “BNC Releasees”), of and from any and all liability,


claims, demands, actions, obligations, causes of action, suits, grievances, damages, losses, and expenses of any and every nature whatsoever, known or unknown, at law or in equity, suspected or unsuspected, anticipated or unanticipated, which Mr. Strayhorn may have had, claims to have had, or now has or claims to have, which are or may be based on any facts, acts, conduct, documents, representations, omissions, contracts, deferred compensation plans, claims, events or other things occurring at any time on or before the date of this Agreement and arising out of or relating to Mr. Strayhorn’s employment or director service with or separation from BNC. It is understood that, subject to the provisions of section 3.1(b) below, this Release includes but is not limited to all claims, actions, or causes of action that were or could have been asserted during the negotiations over this Agreement, any claims, actions, or causes of action that were or could have been asserted before any administrative agency or in court, as well as any claims, actions, or causes of action for misrepresentation (but not intentional misrepresentation), defamation, discrimination, or harassment in any form, retaliation, any claims under any federal, state, local or other governmental statute or ordinance, including, without limitation, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans with Disabilities Act, the Family and Medical Leave Act of 1993, and any and all other federal, state or local statutes, rules, ordinances, or regulations, any and all claims for alleged wrongful discharge, retaliation, negligent or intentional infliction of emotional distress, and breach of contract, any and all claims for compensation, bonuses, commissions, lost wages, stock or stock options, or unused accrued vacation or sick pay, any and all claims for severance or similar benefits or to post-employment health or group insurance benefits, any and all claims for attorneys’ fees, costs, or indemnification, and any and all other claims resulting from any alleged unlawful behavior or conduct by any BNC Releasee, the existence of which is specifically denied by the BNC Releasees.

(b) Despite section 3.1(a), nothing in this Agreement is intended to waive or otherwise modify Mr. Strayhorn’s right (1) to enforce this Agreement or any agreement that remains in full force and effect under section 7.3(a), (2) to pursue claims that cannot by statute or otherwise be released by private agreement, (3) to seek indemnification from BNC or any subsidiary or other affiliate thereof for claims made as a result of his having served as an officer or director of BNC, to the extent indemnification is provided to Mr. Strayhorn under the Articles of Incorporation or Bylaws of BNC or by applicable law, or (4) to receive any vested benefits payable to Mr. Strayhorn under the terms of Bank of North Carolina’s 401(k) plan.

3.2 Release of Mr. Strayhorn by BNC . (a) In consideration of Mr. Strayhorn’s agreement to accept the terms and provisions of this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, but subject to the provisions of section 3.2(b), BNC, for itself, its subsidiaries, affiliates, successors and assigns, and all or their parent, subsidiary, and/or affiliated companies, as well as their successors, assigns, officers, directors, agents, representatives, attorneys, stockholders, insurers, employees and employee benefit plans or programs (and the trustees, administrators, fiduciaries, and insurers of such plans or programs), and any other person acting by, through, under, or in concert with any of the persons or entities listed in this section fully, finally and forever releases and discharges Mr. Strayhorn, his heirs, executors, administrators and assigns, and any other person acting by, through, under, or in concert with any of the persons or entities listed in this section (the “Strayhorn Releasees”), of and from any and all liability, claims, demands, actions, obligations, causes of action, suits, grievances, damages, losses, and expenses, of any and every nature whatsoever, known or unknown, at law or in equity, suspected or unsuspected, anticipated or unanticipated, which BNC may have had, claims to have had, or now has or claims to have, which are or may be based on any facts, acts, conduct, documents, representations, omissions, contracts, deferred compensation plans, claims, events or other things occurring at any time on or before the date of this Agreement and arising out of or relating to Mr. Strayhorn’s employment or director service with or separation from BNC. It is understood that, subject to 3.2(b), this Release includes but is not limited to all claims, actions, or causes of action that were or could have been asserted during the negotiations over this Agreement, any claims, actions, or causes of action that were or could have been asserted before any administrative agency or in court, as well as any claims, actions, or causes of action for misrepresentation (but not intentional misrepresentation), defamation, discrimination, or harassment in any form, retaliation, any claims under any federal, state, local or other governmental statute or ordinance, including, without limitation, any and all federal, state or local statutes, rules, ordinances, or regulations, any and all claims for alleged negligent or intentional infliction of emotional distress, and breach of contract, any and all claims for attorneys’ fees, costs, or indemnification, and any and all other claims resulting from any alleged unlawful behavior or conduct by any Strayhorn Releasee, the existence of which is specifically denied by the Strayhorn Releasees.

(b) Despite section 3.2(a), nothing in this Agreement is intended to waive or otherwise modify and BNC does not release (1) any claims to enforce this Agreement or any agreement that remains in full force and effect under section 7.3(a), or (2) any claims that cannot by statute or otherwise be released by private agreement.


3.3 The releases in sections 3.1 and 3.2 cover known and unknown claims . For the purpose of implementing full and complete releases and discharges as set forth in section 3.1 on Mr. Strayhorn’s part in favor of BNC and in section 3.2 on BNC’s part in favor of Mr. Strayhorn, the Parties expressly acknowledge that this Agreement is intended to include, without limitation, claims the Parties do not know or suspect to exist at the time they sign this Agreement and that this Agreement contemplates the extinguishment of any such claim or claims, except as expressly provided in sections 3.1(b) and 3.2(b).

3.4 No claims have been made or assigned to others . Mr. Strayhorn and BNC represent that neither they nor anyone on their behalf has filed or assigned to others the right to file, nor are there currently pending by Mr. Strayhorn or BNC or anyone on their behalf, any complaints, charges, or lawsuits against the BNC Releasees or the Strayhorn Releasees (as the case may be), or any of them, with any governmental agency, any court, or with or in any other forum, and that neither Mr. Strayhorn nor BNC nor anyone on their behalf will file, assign to others the right to file, or make any further claims against the BNC Releasees or the Strayhorn Releasees (as the case may be), or any of them, at any time for any alleged acts or omissions covered by the releases in this Article 3. Each of the Parties agrees that if it asserts or if anyone on its behalf asserts any claim or files any complaint, charge or lawsuit that is covered by the releases in this Article 3, the Party waives any monetary recovery or other individual relief in that action and shall pay all of the attorneys’ fees, expenses, and costs incurred by the defending party in responding to the claim, complaint, or action.

3.5 Neither Party knows of unlawful corporate conduct . The Parties each confirm that they are not aware of any activities engaged in or directed by BNC, by officers of BNC, or by directors of BNC, including Mr. Strayhorn, that either of the Parties believes to have been unlawful or an intentional or reckless violation of any federal, state, or local statute, rule, or regulation, including but not limited to financial reporting practices.

3.6 Nothing in this Agreement is an admission of liability or wrongful conduct . BNC and Mr. Strayhorn agree that the payments made and other consideration received under this Agreement are not and shall not be considered an admission by any BNC Releasee or by any Strayhorn Releasee of any legal liability or act of wrongdoing or discrimination on the part of BNC or of any legal liability, acts of wrongdoing, or poor performance on the part of Mr. Strayhorn, nor shall they be used as evidence or as an admission by any BNC Releasee or Strayhorn Releasee of liability, wrongdoing, poor performance, or discrimination.

3.7 Cooperation . (a) Mr. Strayhorn agrees that he shall make himself available as reasonably requested by BNC to assist BNC in any investigations, litigation, arbitration, administrative hearings, or other legal proceedings in which Mr. Strayhorn is named as a party or has knowledge relevant to the proceeding. Mr. Strayhorn acknowledges and agrees that his assistance may include but shall not be limited to providing information or documents, providing declarations or statements to BNC, meeting with attorneys or other representatives of BNC, preparing for and giving depositions or testimony, and otherwise reasonably cooperating in the investigation, defense, or prosecution of the proceedings. Mr. Strayhorn further acknowledges and agrees that the services and advice to be performed by him under this section 3.7 may require that he be available to appear at various locations to consult with BNC’s employees or attorneys and to appear at various hearings in which BNC or Mr. Strayhorn may be named as a party. Mr. Strayhorn hereby covenants that he will use his best efforts to make himself available to attend meetings or hearings as reasonably requested by BNC under this section 3.7. If Mr. Strayhorn voluntarily cooperates at BNC’s request under this section 3.7(a) after the Severance Date, BNC shall pay Mr. Strayhorn at a daily rate of $1,000, plus any reasonable lodging and travel expenses actually incurred.

(b) Unless compelled to do so by valid subpoena, court order, or other valid government action, each party also promises not to encourage, counsel, or assist any third party in the preparation or prosecution of any civil disputes, differences, grievances, claims, charges, or complaints against any of the Strayhorn Releasees or BNC Releasees. If any party receives notice that he is required to provide testimony or information in any context about Mr. Strayhorn or BNC to a third party, such party agrees to inform Mr. Strayhorn/W. Swope Montgomery Jr., President and Chief Executive Officer or such other person who is then President and Chief Executive Officer of BNC in writi


 
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