EXHIBIT 10.4


 


Amendment
of the


Amended
Employment Agreement


 


This Amendment
of the Amended Employment Agreement (this “Amendment”) is entered into and shall be effective as of this
18th day of December, 2012, by and among BNC Bancorp, a North Carolina corporation (the “Corporation”),
Bank of North Carolina, a North Carolina-chartered bank and wholly owned subsidiary of the Corporation (the “Bank”),
and Richard D. Callicutt II (the “Executive”).


 


Whereas,
the Corporation and the Bank entered into an Amended Employment Agreement dated as of December 18, 2007 with the Executive,


 


Whereas,
the Corporation, the Bank, and the Executive desire now to amend the Amended Employment Agreement to ensure that it complies in
form and in operation with Internal Revenue Code section 409A and the rules and regulations of the Internal Revenue Service promulgated
thereunder, and


 


Whereas,
none of the conditions or events included in the definition of the term “golden parachute payment” that is set forth
in section 18(k)(4)(A)(ii) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance
Corporation Rule 359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists as of the date of this Amendment or, to the best knowledge of
the Corporation and the Bank, is contemplated insofar as the Corporation, the Bank, or any affiliates are concerned.


 


Now
Therefore, in consideration of these premises and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Corporation, the Bank, and the Executive hereby agree as follows.


 


1.          Amendment
of section 4.4. To impose a deadline for execution of the noncompetition agreement that under section 4.4 is a condition
to entitlement to severance benefits and to ensure that the terms for delivery of the noncompetition agreement are consistent with
Internal Revenue Code section 409A, the text of section 4.4 shall be deleted in its entirety and shall be replaced by the following
text, and as revised section 4.4 shall read in its entirety as follows –


 


4.4           Benefits
under Sections 4.1, 4.2, and 4.3 Are Conditional upon the Executive Entering into a Noncompetition Agreement in the Form Attached
as Appendix A. The Executive shall not be entitled to any benefits under sections 4.1, 4.2, or 4.3 of this Agreement unless
within 30 days after employment termination the Executive executes and complies with the terms of a noncompetition agreement in
substantially the form attached to this Agreement as Appendix A. The Executive shall forfeit all benefits under sections 4.1, 4.2,
and 4.3 if the Executive does not within 30 days after employment termination execute the noncompetition agreement in substantially
the form attached to this Agreement as Appendix A. Likewise, the Executive shall forfeit all benefits under sections 4.1, 4.2,
and 4.3 if the Executive does not comply with the terms of the noncompetition agreement in substantially the form attached to this
Agreement as Appendix A. Execution of and compliance with the terms of the noncompetition agreement is not required, however, if
a Change in Control shall have occurred within 12 months before termination of the Executive’s employment or if benefits
are paid or payable to the Executive under Article 5 of this Agreement.


 


2.          Clarification
of the Executive’s title. Executive Vice President and Chief Operating Officer of both the Corporation and the Bank
when the December 18, 2007 Amended Employment Agreement was entered into, the Executive has since become President of the Bank
effective October 1, 2009. Sections 1.1 and 1.2 shall be amended to account for the change in the Executive’s title, and
as revised sections 1.1 and 1.2 shall read in their entirety as follows –


 


1.1           Employment.
The Employer hereby employs the Executive to serve as Executive Vice President and Chief Operating Officer of the Corporation and
President and Chief Operating Officer of the Bank according to the terms and conditions of this Agreement and for the period stated
in section 1.3. The Executive hereby accepts employment according to the terms and conditions of this Agreement and for the period
stated in section 1.3.


 


1.2           Duties.
The Executive shall serve under the direction of the Chief Executive Officer and in accordance with the Employer’s Articles
of Incorporation and Bylaws, as each may be amended or restated from time to time. The Executive shall serve the Employer faithfully,
diligently, competently, and to the best of the Executive’s ability. The Executive shall exclusively devote full time, energy,
and attention to the business of the Employer and to the promotion of the Employer’s interests throughout the term of this
Agreement, except during periods of illness or periods of vacation and leaves of absence consistent with Employer policy. Without
the written consent of the Corporation and the Bank, the Executive shall not render services to or for any person, firm, corporation,
or other entity or organization in exchange for compensation, regardless of the form in which such compensation is paid and regardless
of whether it is paid directly or indirectly to the Executive. Nothing in this section 1.2 shall prevent the Executive from managing
personal investments and affairs, provided that doing so does not interfere with the proper performance of the Executive’s
duties and responsibilities.


 




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3.          The
Employment Agreement remains in full force and effect. As amended by this Amendment, the December 18, 2007 Amended Employment
Agreement shall remain in full force and effect.


 


4.          Use
of defined terms. All terms used but not defined in this Amendment are used as defined in the December 18, 2007 Amended
Employment Agreement.


 


In
Witness Whereof, the Executive and each of the Corporation and the Bank, by a duly authorized officer, have executed
this Amendment of the December 18, 2007 Amended Employment Agreement as of the date first written above.


 


	Executive:	Corporation:
	 	BNC Bancorp
	 	 
	/s/ Richard D. Callicutt II	 	By: 	/s/ W. Swope Montgomery, Jr.
	Richard D. Callicutt II	 	W. Swope Montgomery, Jr.
	 	 	President and Chief Executive Officer
	 	 
	 	Bank:
	 	Bank of North Carolina
	 	 
	 	By: 	/s/ W. Swope Montgomery, Jr.
	 	 	W. Swope Montgomery, Jr.
	 	Its:	Chief Executive Officer



 



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