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