UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 16, 2011
NEW CENTURY BANCORP, INC.
(Exact name of registrant as specified in its charter)
North Carolina | 000-50400 | 20-0218264 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
700 W. Cumberland Street, Dunn, North Carolina | 28334 | |||
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code (910) 892-7080
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
ITEM 1.01 | ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT |
The New Century Bank Directors Deferral Plan was amended and restated on November 16, 2011 to ensure compliance with applicable regulations and to provide that the eventual payment of compensation deferred under the plan will now be made only in the form of the Registrants common stock.
ITEM 9.01 | FINANCIAL STATEMENTS AND EXHIBITS. |
(d) | Exhibits |
Exhibit |
Description of Exhibit | |
10.1 | Amended and Restated Directors Deferral Plan |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
NEW CENTURY BANCORP, INC. | ||
By: | /s/ Lisa F. Campbell | |
Lisa F. Campbell | ||
Executive Vice President, Chief Financial Officer and Chief Operating Officer |
Dated: November 22, 2011
EXHIBIT INDEX
Exhibit |
Description of Exhibit | |
10.1 | Amended and Restated Directors Deferral Plan |
Exhibit 10.1
NEW CENTURY BANK
DIRECTORS DEFERRAL PLAN
By a vote of the New Century Bank (the Bank) Board of Directors, on the 19 day of October, 2011, the Bank has amended and restated the New Century Bank Directors Deferral Plan (hereinafter referred to as the Benefit Plan), effective as of the date executed with respect to all funds deferred under the Benefit Plan as of such date and all future deferrals until such time as the Benefit Plan may be subsequently amended as permitted herein;
It is the intent of the Bank that this Benefit Plan be considered an unfunded arrangement maintained primarily to provide supplemental retirement benefits and to be considered a non-qualified benefit plan for purposes of the Employee Retirement Income Security Act of 1974, as amended (ERISA).
ELIGIBILITY
Those individuals selected by the Board of Directors and designated in resolutions of the Board and members of the Board of Directors shall be eligible to become a participant in this Benefit Plan (hereinafter referred to as the Participant).
FEES AND COMPENSATION
The fees covered under this Benefit Plan shall be any and all amounts paid to the Participant for the Participants services, including but not limited to annual fees, meeting fees, and committee fees. Participants may elect to defer up to one hundred percent (100%) of fees and compensation (hereinafter referred to as fees). The deferred fees covered under this Benefit Plan shall be credited to the Participant subject to the election requirement of Subparagraph III (A) below.
DEFERRED COMPENSATION
Election of Participants Deferred Compensation:
The Participant shall file a written statement with the Bank notifying the Bank as to the percentage or dollar amount of fees to be deferred and specifying the distribution form (lump sum or installments) (the Election Form). A copy of the Election Form is attached hereto and marked as Exhibit A-1. Signed Election Forms filed under this paragraph, unless modified or revoked, shall be valid for all succeeding years.
Except as otherwise provided below, a Participant shall make an election to defer fees for services to be performed in a future calendar year no later than the last day of the immediately preceding calendar year. However, if an eligible individual is not and has not previously been eligible to participate in another Bank elective account balance plan when he or she becomes first eligible to participate in this Benefit Plan, the Plan Administrator may allow the individual to make a deferral election hereunder within thirty (30) days after the date the individual first becomes eligible to participate in this Benefit Plan. A mid-year election made in accordance with this paragraph shall apply only with respect to fees for services performed after the election is made.
A deferral election submitted for a particular year shall continue to be valid for succeeding years until changed or modified. Deferral elections, once made, however, are irrevocable as of the last permissible date on which such deferral elections may be made.
Subsequent Changes to Time and Form of Payment:
The Participant may permit a subsequent change to form and timing of payments (a subsequent deferral election). Any such change shall be considered made only when it becomes irrevocable under the terms of the Agreement. Any subsequent deferral election will be considered irrevocable not later than thirty (30) days following acceptance of the change by the Plan Administrator, subject to the following rules:
the subsequent deferral election may not take effect until at least twelve (12) months after the date on which the election is made;
the payment (except in the case of death, disability, or unforeseeable emergency) upon which the subsequent deferral election is made is deferred for a period of not less than five years from the date such payment would otherwise have been paid; and
in the case of a payment made at a specified time, the election must be made not less than twelve (12) months before the date the payment is scheduled to be paid.
Payment of Participants Deferred Compensation:
At all times, the Participant shall be one hundred percent (100%) vested in the Participants deferred compensation Account [as defined in Subparagraph IV (A) (i)]. Payment of the Participants deferred Account balance shall be in the form of Bank holding company stock, shall commence in the distribution form elected on the Participants Election Form for those deferred fees and shall commence on the first day of the calendar month following the Participants Separation from Service (as that term is defined in Internal Revenue Code Section 409A(a)(2)(A)(i) and applicable regulations and other guidance thereunder).
Early Withdrawal due to an Unforeseeable Emergency:
The Bank shall permit early withdrawals for an unforeseeable emergency under certain circumstances. The Participant may submit an application for an in-service early withdrawal due to unforeseeable emergency to the Board of Directors. If, in the discretion of the Board, the Participant is permitted to take an early withdrawal due to an unforeseeable emergency, the Board shall make a distribution to such Director from the Directors Account. Such distribution shall be paid in one (1) lump sum payment within thirty (30) days after the Board determines that the Director is permitted to take an early withdrawal due to an unforeseeable emergency. The amount of such lump sum payment shall be limited to the amount reasonably necessary to meet the Participants requirements resulting from any reason for an early withdrawal due to an unforeseeable emergency. For purposes of this paragraph the term unforeseeable emergency means a severe financial hardship to the Participant resulting from an illness or accident of the Participant, the Participants spouse, the Participants dependent, or the Participants beneficiary, loss of the Participants property due to casualty, other similar
extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant. The imminent foreclosure of or eviction from the service providers primary residence may constitute an unforeseeable emergency. In addition, the need to pay for medical expenses, including non-refundable deductibles, as well as for the costs or prescription drug medication, may constitute an unforeseeable emergency. Finally, the need to pay for the funeral expenses of a spouse, a beneficiary, or a dependent may also constitute an unforeseeable emergency. At all times this definition shall be construed in accordance with the definition under Internal Revenue Code Section 409A (Code Section 409A). Upon receipt of payment under the terms of this provision, Participant may be entitled to terminate any current deferral elections.
Hypothetical Investment of Participants Deferred Compensation:
A Participants deferrals shall be deemed to be invested only in Bank holding company stock.
Bank Contributions:
The Bank may make matching or other contributions to this Benefit Plan for the benefit of the Participant from time to time at the discretion of the Bank. The Participant shall be one hundred percent (100%) vested in the Banks contributions hereunder.
Payment of Banks Contributions:
The vested amounts in the Participants deferred compensation Account attributed to Bank contributions shall be paid under the same terms and conditions as payment of the Participants deferred fees [Subparagraph III (C)].
Hypothetical Investment of Banks Contribution to the Participants Deferred Compensation Account:
The Banks contribution to the Participants deferred compensation Account, if any, shall be deemed invested under the same terms and conditions as the investment of the Participants deferred fees [Subparagraph III (E)].
PARTICIPANTS DEFERRED COMPENSATION ACCOUNT AND RABBI TRUST
Rabbi Trust:
The Bank shall establish a Rabbi Trust for the Benefit Plan. The Bank shall pay all deferral amounts and matching contributions, if any, to the Rabbi Trust. The Trustee shall make actual payments in accordance with this Benefit Plan.
Participants Deferred Compensation Account:
The Trustee shall establish and maintain an account on behalf of each Participant (the Account). A Participants Account shall be credited with (i) the amount of fees the Participant elects to defer under the Election Form, (ii) other Bank contributions, if any, and (iii) earnings or losses attributable to the Account. Each Account of a Participant shall be maintained until the value
thereof has been distributed to or on behalf of such Participant or the Participants beneficiary(ies). The value of the Account shall be calculated quarterly.
DEATH OF PARTICIPANT
Prior to Commencement of Payments:
In the event of the death of the Participant prior to commencement of payments, within thirty (30) days after the Participants death, the Participants Account balance as of the date of death shall be paid as set forth in the Election Form, to such individual or individuals as the Participant may have designated in writing and filed with the Bank. In the event no designation is made, the Participants Account balance shall be paid as set forth herein to the duly qualified executor or administrator of the Participants estate.
Subsequent to Commencement of Payments:
In the event of the death of the Participant after commencement of payments but prior to the Participant receiving all payments due the Participant under this Benefit Plan, within thirty (30) days after the Participants death, the remaining Account balance as of the date of death shall be paid as set forth in the Election Form, to such individual or individuals as the Participant may have designated in writing and filed with the Bank. In the event no designation is made, the Participants account balance shall be paid as set forth herein to the duly qualified executor or administrator of the Participants estate.
MISCELLANEOUS
Amendment or Revocation:
The Board of Directors of the Bank shall have the power to amend or terminate this Benefit Plan at any time for any reason, provided that no such action shall have the effect of (i) reducing any Participants Account balance as of the date of such amendment or termination, or (ii) changing the provisions of this Benefit Plan applicable to any Participant or beneficiary in a manner that would trigger the additional taxes provided under Code Section 409A(a)(1)(B).
Gender:
Whenever in this Benefit Plan words are used in the masculine or neuter gender, they shall be read and construed as in the masculine, feminine or neuter gender, whenever they should so apply.
Effect on Other Bank Benefit Plans:
Nothing contained in this Benefit Plan shall affect the right of the Participant to participate in or be covered by any qualified or non-qualified pension, profit-sharing, group, bonus or other supplemental compensation or fringe benefit plan constituting a part of the Banks existing or future compensation structure.
Headings:
Headings and subheadings in this Benefit Plan are inserted for reference and convenience only and shall not be deemed a part of this Benefit Plan.
Partial Invalidity:
If any term, provision, covenant, or condition of this Benefit Plan is determined by an arbitrator or a court, as the case may be, to be invalid, void, or unenforceable, such determination shall not render any other term, provision, covenant, or condition invalid, void, or unenforceable, and this Benefit Plan shall remain in full force and effect notwithstanding such partial invalidity, but shall be interpreted and administered consistently with the requirements of Code Section 409A.
Continuation as Participant:
Neither this Benefit Plan nor the payments of any benefits thereunder shall be construed as giving to the Participant any right to be retained as a member of the Board of Directors of the Bank.
Assignment:
Other than by will or the laws of descent and distribution, no right, title or interest of any kind in this Benefit Plan shall be transferable or assignable by a Participant or his or her beneficiary or be subject to alienation, anticipation, encumbrance, garnishment, attachment, levy, execution, setoff, offset or other legal or equitable process, nor subject to the debts, contracts, liabilities, engagements or torts of any Participant or his or her beneficiary. Any attempt to alienate, sell, transfer, assign, pledge, garnish, attach or take any other action subject to legal or equitable process or encumber or dispose of any interest in this Benefit Plan shall be void.
Funding:
This Benefit Plan is unfunded. All benefits will be paid from the general assets of the Bank. Any Account established under this Benefit Plan shall be hypothetical in nature and shall be maintained for bookkeeping purposes only so that gains, losses and earnings relating to the hypothetical investment of each Participants deferred fees can be credited (or charged, as the case may be). Neither this Benefit Plan nor any of the Accounts (or subaccounts) established hereunder shall represent the ownership of or beneficial interest in any actual funds or assets. The right of any person to receive one or more payments under this Benefit Plan shall be an unsecured claim against the general assets of the Bank and no Participant or beneficiary shall have an interest in, or lien or prior claim upon, any property of the Bank by reason of any rights of such party, or obligations owed to such party, under this Benefit Plan. Any liability of the Bank to any Participant or beneficiary with respect to a right to payment shall be based solely upon contractual obligations created by this Benefit Plan. The assets of the Rabbi Trust will be subject to the claims of creditors of the Bank in the event the Bank becomes insolvent. The Rabbi Trust established in connection with this Benefit Plan shall be designed and administered in a manner that will not cause amounts to become taxable under Code Section 409A(b).
Deferred Compensation:
The Bank intends that amounts payable to a Participant or beneficiary pursuant to this Benefit Plan shall not be included in income for federal, state or local income tax purposes until the benefits are actually paid or delivered to such Participant or beneficiary. Accordingly, this Benefit Plan shall be interpreted consistently with the requirements of Code Section 409A, as amended or supplanted from time to time, and current and future guidance thereunder.
No Tax Representations:
The Bank and the Plan Administrator do not represent or guarantee to any Participant or beneficiary that any particular federal or state income, payroll or other tax treatment will result from the Participants participation in this Benefit Plan. The Participant or beneficiary is solely responsible for the proper tax reporting and timely payment of any income tax or interest for which the Participant or beneficiary is liable as a result of the Participants participation in this Benefit Plan.
Binding Effect:
This Benefit Plan shall be binding upon and inure to the benefit of the Bank, its successors and assigns, and on Participants and beneficiaries and their respective heirs, executors and legal representatives.
Restriction on Timing of Distribution:
Notwithstanding any provision of this Benefit Plan to the contrary, if the Participant is a specified employee within the meaning of Code Section 409A(a)(2)(B)(i) and the Participants Account (or any portion thereof) becomes payable on account of his or her Separation from Service, distributions may not be made before the date which is six (6) months after the Participants Separation from Service. In the event a distribution is delayed pursuant to this paragraph, the originally scheduled distribution shall be delayed for six (6) months, and shall commence instead on the first day of the seventh month following Separation from Service. If payments are scheduled to be made in installments, the first six (6) months of installment payments shall be delayed, aggregated, and paid instead on the first day of the seventh month, after which all installment payments shall be made on their regular schedule. If payment is scheduled to be made in a lump sum, the lump sum payment shall be delayed for six (6) months and instead be made on the first day of the seventh month.
Certain Accelerated Payments:
The Bank may make any accelerated distribution permissible under Treasury Regulation 1.409A-3(j)(4) to the Participant of deferred amounts, provided that such distribution(s) meets the requirements of Section 1.409A-3(j)(4).
CHANGE IN CONTROL
Notwithstanding Subparagraph XIII (D) of the Rabbi Trust for New Century Bank Directors Deferral Plan, a Change in Control shall be defined as a change in ownership
or control of the Bank as defined in Treasury Regulation §1.409A-3(i)(5) or any subsequently applicable Treasury Regulation. Upon a Change in Control, the Participant shall be paid the benefits under this Benefit Plan according to the Election Form, commencing thirty (30) days following the Change in Control.
ADMINISTRATION AND CLAIMS
Plan Administrator:
The Plan Administrator of this Benefit Plan shall be the Bank until its resignation or removal by the Board. As Plan Administrator, the Bank shall be responsible for the management and administration of this Benefit Plan. The Plan Administrator shall have the discretionary powers and authority as are necessary for the proper administration of this Benefit Plan, including, but not limited to, the discretionary power and authority to:
Interpret this Benefit Plan and other documents, decide questions and disputes, supply omissions, and resolve inconsistencies and ambiguities arising under this Benefit Plan and other documents, which interpretations and decisions shall be final and binding on all Participants and beneficiaries;
Make any other determinations that it believes necessary or advisable for the administration of this Benefit Plan;
Establish rules, regulations and forms of agreements and other instruments relating to the administration of this Benefit Plan not inconsistent with this Benefit Plan;
Maintain any records necessary in connection with the operation of this Benefit Plan;
Retain counsel, employ agents, and provide for such clerical, accounting, actuarial, and consulting services as it deems necessary or desirable to assist it in the administration of this Benefit Plan;
Make benefit payments and determine benefit decisions upon claims and appeal to the extent it has the authority to make such claim and appeal determinations under this Benefit Plan; and
Otherwise administer this Benefit Plan in accordance with its terms.
In its absolute discretion, the Plan Administrator may delegate all or any part of its authority hereunder and other administrative duties of the Plan Administrator to a Bank employee or a committee composed of employees of the Bank and/or members of the Board of Directors and all reference to the Plan Administrator in this Benefit Plan shall be deemed to include any such delegate to the extent authorized by such delegation. Decisions and determinations made by the Plan Administrator or a director or employee or committee of directors or employees acting within the scope of authority delegated by the Plan Administrator shall be final and binding upon all persons. No determination of the Plan Administrator in one case shall create a bias or retroactive adjustment in any other case.
Claims Procedure and Arbitration:
In the event a dispute arises over benefits under this Benefit Plan and benefits are not paid to the Participant (or to the Participants beneficiary(ies) in the case of the Participants death) and such claimants feel they are entitled to receive such benefits, then a written claim must be made to the Plan Administrator named above within sixty (60) days from the date payments are refused. The Plan Administrator shall review the written claim and if the claim is denied, in whole or in part, they shall provide in writing within sixty (60) days of receipt of such claim the specific reasons for such denial, reference to the provisions of this Benefit Plan upon which the denial is based and any additional material or information necessary to perfect the claim. Such written notice shall further indicate the additional steps to be taken by claimants if a further review of the claim denial is desired. A claim shall be deemed denied if the Plan Administrator fails to take any action within the aforesaid sixty-day period.
If claimants desire a second review they shall notify the Plan Administrator in writing within sixty (60) days of the first claim denial. Claimants may review this Benefit Plan or any documents relating thereto and submit any written issues and comments it may feel appropriate. In their sole discretion, the Plan Administrator shall then review the second claim and provide a written decision within sixty (60) days of receipt of such claim. This decision shall likewise state the specific reasons for the decision and shall include reference to specific provisions of this Benefit Plan upon which the decision is based.
If claimants continue to dispute the benefit denial, then claimants may submit the dispute to an Arbitrator for final arbitration. The Arbitrator shall be selected by mutual agreement of the Bank and the claimants. The Arbitrator shall operate under any generally recognized set of arbitration rules. The parties hereto agree that they and their heirs, personal representatives, successors and assigns shall be bound by the decision of such Arbitrator with respect to any controversy properly submitted to it for determination.
NEW CENTURY BANK | ||
Dunn, North Carolina | ||
By: | /s/ Brenda B. Bonner | |
Corporate Secretary |
I hereby approve the amendment and restatement of the New Century Bank Directors Deferral Plan that was approved by the Board of Directors of New Century Bank on October 19, 2011.
/s/ Charles P. Nelson, Jr. |
Charles P. Nelson, Jr., VP |
Eastern Bank, TTEE |
For the Trustee |
November 16, 2011. |