STATE OF NORTH CAROLINA COUNTY OF WAKE
EXHIBIT
10.1
STATE OF
NORTH CAROLINA
COUNTY OF
WAKE
THIS
RESIGNATION, RETIREMENT AND RELEASE AGREEMENT (the "Agreement") is made and
entered into by and between FIRST-CITIZENS BANK & TRUST COMPANY, a North
Carolina banking corporation with its principal place of business in Raleigh,
Wake County, North Carolina (the "Bank"); FIRST CITIZENS BANCSHARES, INC., a
Delaware corporation with its principal place of business in Raleigh, Wake
County, North Carolina ("BancShares") and IRONSTONE BANK, an OTS savings bank
with its principal place of business in Raleigh, Wake County, North Carolina
("IronStone"); and XXXXX X. HOLDING, a resident of Nassau, Bahamas
("Holding") (individually referred to as "Holding") and (Bank, BancShares,
IronStone and Holding collectively referred to as the "Parties") on this, the
25th day of February, 2009;
W I T N E
S S E T H:
WHEREAS,
Holding has been employed by the Bank for a number of years in various
capacities; and,
WHEREAS,
the Bank is a wholly-owned subsidiary of BancShares, and BancShares has
additional subsidiaries, including IronStone, and the two principal subsidiaries
have subsidiaries, all of which entities are within the BancShares Group
("BancShares Group"); and,
WHEREAS,
Holding has been paid and benefits have been provided for by the Bank, and
Holding has exercised officer and managerial authority, served as a member of
the Board of Directors, and held other positions within the BancShares Group and
is currently Chairman of the Board of the Bank, BancShares and IronStone, in
addition to his other positions; and,
WHEREAS,
Holding has expressed his desire to resign and retire from the BancShares Group,
and Holding and the BancShares Group have mutually agreed that Holding will
retire from his employment with the BancShares Group and resign from all of his
positions with the BancShares Group and all other employment and fiduciary
positions with any entity within the BancShares Group, and the parties have
reached an arrangement as to such retirement from employment as evidenced in
this Agreement.
NOW,
THEREFORE, for and in consideration of the mutual covenants and agreements
herein contained, and for other good and valuable considerations, the receipt
and sufficiency of which hereby are acknowledged, the BancShares Group and
Holding agree as follows:
1. RESIGNATION AND
RETIREMENT. Holding resigns and retires from his employment
with the Bank and resigns from all of his positions within the BancShares Group
and particularly as Chairman of the Board and all other officer and director
positions held within the BancShares Group effective as of February 25, 2009
(the "Retirement Date"). The Bank and BancShares, on behalf of the
BancShares Group, have expressly agreed to Holding's retirement from employment
on such Retirement Date. Holding recognizes and agrees that he shall
have no further authority as an employee, agent, director or officer of any
entity within the BancShares Group following the Retirement
Date. Holding further specifically recognizes and agrees that,
subject to the terms and conditions of this Agreement, this Agreement is a full
and complete resolution, settlement and termination of any rights or claims that
Holding may have had, or alleges to have had, to any further employment with any
entity within the BancShares Group following the Retirement Date.
2. SALARY AND PAID TIME OFF
PAY. The Bank shall pay to Holding his normal salary, less
normal deductions and withholdings, through February 28, 2009, and the Bank
agrees to provide further Special Payments (as hereinafter defined) and
consideration to Holding as set forth below. The Bank also shall pay
to Holding any accrued but unused paid time off, less normal deductions and
withholdings, calculated as of the Retirement Date.
3. COMPLIANCE WITH SECTION 409A
OF THE INTERNAL REVENUE CODE. For purposes of Section 409A of
the Internal Revenue Code of 1986, as amended (the "Code") ("Section 409A"), as
applicable, any installment payment made hereunder shall be considered a
separate payment.
Key
Employee. Holding is a Key Employee for purposes of Section
409A. In the event a payment due Holding under this Agreement is
subject to Section 409A, such payment shall be paid no earlier than six months
and one week after Holding's Retirement Date.
4. SPECIAL
PAYMENTS. On or after the Retirement Date or the Effective
Date (as defined in Paragraph 12), whichever occurs later, the Bank shall pay to
Holding the amount of One Hundred Thousand and No/100 Dollars ($100,000.00),
gross, for and in consideration of the provisions of Paragraph 8 (Covenant of
Good Faith and Confidentiality), Paragraph 9 (Covenant Not to Compete),
Paragraph 10 (Covenant Not to Solicit) and Paragraph 11
(Covenant of Nondisclosure) and the other terms and conditions of this
Agreement, and the amount of Fifty Thousand and No/100 Dollars ($50,000.00),
gross, for and in consideration of the provisions of Paragraph 12 (Release) (the
"Special Payments").
In
addition, Bank shall provide for Holding, on a continuing basis, during the term
of his natural life or until he, or someone acting with legal authority for him,
terminates this Agreement, whichever is sooner, each of the
following:
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a.
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security
systems and continuation of the security service currently provided to him
at [address redacted] and at [address redacted], provided that such
services provided with respect to each individual residence shall
automatically terminate upon the sale of such
residence;
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b.
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personal
security, including driver assistance, for Holding as it has in the
past;
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c.
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storage
space that Holding is currently utilizing under the current lease
arrangements; and
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d.
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current
office space on the 9th floor of the First Citizens Center at
0000 Xxx Xxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000, together
with reasonable secretarial
assistance.
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These
items and services in subparagraphs a, b, c and d shall be provided at no
cost to Holding.
The Bank
and Holding agree that Holding has received and has in his possession the
electronic equipment utilized by him in his home or on his person, including,
but not limited to, a Blackberry, cell phone, printer/copiers, and related
equipment and all other electronic equipment which has been provided to him and
which he now has in his possession. Upon the Effective Date of this
Agreement, said electronic equipment shall become the property of Holding, and
all future services with regard to said electronic equipment will be the
responsibility of and paid for by Holding.
5. INSURANCE
CONTINUATION. Beginning on the Retirement Date, the Bank shall
extend the group medical and dental insurance coverage provided by the Bank to
Holding and his qualified beneficiaries, as applicable, for the period from the
Retirement Date through the Effective Date (the "Continuation Period"), subject
to the terms and conditions (including eligibility requirements) of the
applicable insurance plan and Holding's election to continue his coverage under
the provisions of the applicable insurance plan. During this
Continuation Period, Holding shall be responsible for payment of all premiums,
if any, for the medical and dental insurance coverage elected by Holding for
himself and his qualified beneficiaries, as applicable, at the same premiums as
then are paid by actively employed employees of the Bank. Following
said Continuation Period, Holding shall retain any rights he has under Bank's
benefit plan to continue any retiree insurance coverage that is available
pursuant to applicable provisions of Bank's benefit plans, state law and/or
COBRA (as hereinafter defined).
As
additional consideration, the Bank agrees to pay to Holding on or about the
Effective Date an amount equal to the cost of seven (7) months of retiree health
insurance benefits or of Comprehensive Omnibus Budget Reconciliation Act
("COBRA") group insurance continuation coverage in effect on the date of
execution of this Agreement, whichever coverage is elected by Holding, to keep
Holding in a like and similar insurance cost for the seven (7) month period
following the Effective Date; provided that such amount shall be grossed-up to
cover all additional taxes incurred by Holding as a result of this
reimbursement.
6. SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN. Holding is a current participant in an
Executive Consultation, Separation From Service and Death Benefit Agreement
("SERP" or "Plan") executed by the Bank and Holding as of February 5,
2009. In accordance with the provisions of Paragraph 16 of the Plan,
the Bank and Holding hereby agree and amend by mutual agreement the terms and
conditions of the SERP, subject to compliance with the SERP and this Agreement
being complete and not in default, as follows:
a. SERP
shall vest on the Retirement Date or the Effective Date under this Agreement,
whichever is later, and Holding’s right to receive benefits under the SERP shall
not thereafter be subject to forfeiture or termination by the Bank, except under
the provisions of Paragraph 5 of the SERP or under Paragraph 9 of this
Agreement.
b. The
payment of the benefits under the SERP shall commence on or about
August 17, 2009, unless required to be delayed, or may be started earlier
pursuant to the provisions of the SERP or Section 409A, as defined in Paragraph
3 above, and shall begin, if such delay is required, as specified in the said
Paragraph 3.
c. The
provisions in the SERP relating to consultation, specifically the amounts to be
paid for consultation, shall be combined with the amount to be paid for
noncompetition and treated as one payment.
d. Nothing
herein shall be, nor be construed to be, a payment or benefit in lieu of any
payment or benefit due to Holding under the SERP, and Holding shall be entitled
to any and all payments or benefits due under this Agreement and the
SERP.
7. TERMINATION/CONTINUATION OF
CERTAIN RIGHTS AND BENEFITS. Holding recognizes and agrees
that payment of Holding's salary, payment of accrued but unused paid time off,
payment of the Special Payments and the continuation of group insurance coverage
(subject to the terms and conditions, including eligibility requirements, of the
applicable insurance plan), as described in Paragraphs 2, 4 and 5 above,
are in full settlement of any wages and benefits owed to Holding through the
Retirement Date and that, except for Holding's rights and benefits under this
Agreement, Holding's vested rights in the Bank's benefit and retirement plans
(if any), Holding's rights under the SERP, Holding’s rights to participate in
the Bank’s retiree health benefits in accordance with the terms of the plan and
Holding's eligibility to continue certain group insurance coverage pursuant to
Holding's rights under the provisions of state law and/or COBRA, to the extent
permitted by law, all of Holding's employment rights, wages and benefits with
the Bank and the entities within the BancShares Group, shall terminate and be
forfeited as of the Retirement Date, including, without limitation, Holding's
eligibility for further payment of any salary, paid time off, sick leave,
severance pay, incentive awards, bonuses or any other
amounts. Holding further recognizes and agrees that payment of
Holding's salary, payment of accrued but unused paid time off, payment of the
Special Payments and the continuation of group insurance coverage by the Bank
are not to be construed as an admission of liability on the part of the Bank or
any entity within the BancShares Group, and that the Bank and all entities
within the BancShares Group have denied, and do deny, any violation of any law
and any liability, and intends by such payments simply to recognize Holding's
length of service and Holding's Retirement from employment, and to avoid the
time and costs of any legal proceedings.
8. COVENANT OF GOOD FAITH AND
CONFIDENTIALITY. The Bank and Holding acknowledge and agree
that the Bank and all entities within the BancShares Group have a significant
interest in protecting their reputation and public trust, maintaining good
public relations with their customers, prospective customers and others in their
market areas and maintaining good relationships with their current and
prospective employees; that Holding has a significant interest in protecting
Holding's personal and professional reputation; and that it is in the Bank's and
the entities within the BancShares Group's and Holding's mutual best interests
to characterize their employment relationship in a positive light, and to
characterize the expiration of Holding's employment and the related payments to
be paid to Holding hereunder as having resulted from an agreement made in good
faith between Holding and the Bank. In this regard, Holding shall not
downgrade, speak adversely about, comment derogatorily about or in any other way
make any adverse or negative indications, actions or comments about the Bank,
nor any entity within the BancShares Group, its and their successors and
assigns, or the shareholders, directors, officers, employees, associates, agents
or attorneys of said entities. The Bank and the entities within the
BancShares Group agree that they will not, and they shall use their best efforts
to ensure that their management employees will not, downgrade, speak adversely
about, comment derogatorily about or in any other way make any adverse or
negative indications, actions or comments about Holding; provided, however, that the
Bank and any entity within the BancShares Group may disclose information
regarding Holding as required by applicable federal or state law or regulation,
and Holding may disclose any information regarding Bank or any entity within the
BancShares Group as required by applicable federal or state law or
regulation.
All of
the terms and conditions of this Agreement shall be held in strictest confidence
by the Bank, the entities within the BancShares Group and Holding and shall not
be disclosed by either party to any third party without the prior written
consent of the other party, except to Holding's immediate family and/or to legal
or accounting professionals or financial or regulatory institutions or as
required by federal or state laws or regulations, on a strict need to know basis
for the information required for a particular purpose only.
9. COVENANT NOT TO
COMPETE. The Boards of Directors of BancShares and the Bank at
their meeting on February 25, 2009 modified the SERP provisions on
Covenants Not to Compete and approved the policy provision on director overlaps
to allow directorships and/or other advisory or employment status with an
"affiliate" of the BancShares Group, as "affiliate" is defined therein, not to
be prohibited by the SERP provisions nor any other noncompetition provisions
applicable to past, present and future officers, directors and employees of the
BancShares Group (the "Amendment"). The Amendment is incorporated
herein by this specific reference and is recognized and agreed to apply to this
Agreement in its entirety.
Subject
to the provisions set forth in the preceding paragraph and the referenced
resolution of the Boards of Directors of BancShares and the Bank, during the
ten (10) years immediately subsequent to the Retirement Date, and in
consideration for the Special Payments provided in Paragraph 4 of this
Agreement, Holding agrees not to become an officer or employee of, provide any
consultation to, nor participate in any manner with, any other entity of any
type or description involved in any major element of business which the Bank or
any entity within the BancShares Group is performing at the time of Holding's
separation from service with the Bank, nor will Holding perform or seek to
perform any consultation or other type of work or service with any other firm,
person or entity, directly or indirectly, in any such business which competes
with the Bank or any entity within the BancShares Group, whether done directly
or indirectly, in ownership, consultation, employment or
otherwise. This Covenant Not to Compete by Holding is limited to the
geographic area consisting of each county or like jurisdictional entity in which
either the Bank or any entity within the BancShares Group shall maintain a
banking or other business office at the time of Holding's separation from
service, and shall not prevent Holding from purchasing or acquiring, as an
investor only, a financial interest of less than 5% in a business or other
entity which is in competition with the Bank.
10. COVENANT NOT TO
SOLICIT. The Bank and Holding recognize that during the course
of Holding's employment with the Bank, Holding has contracted, solicited or
approached the Bank's and the BancShares Group's customers and prospective
customers on behalf of the Bank and/or the entities within the BancShares
Group. The Bank and Holding further acknowledge that Holding has
developed, and has had access to, the Bank's and the entities within the
BancShares Group's customer lists and other customer records. To
protect the Bank and the entities within the BancShares Group from Holding's
solicitation of business from such customers during the term of the Covenant Not
to Compete set forth in this Agreement, Holding shall not solicit business,
other than on behalf of the Bank or the entities within the BancShares Group,
from any person, corporation, firm or other entity in the geographic area
consisting of each county or like jurisdictional entity in which either the Bank
or any entity within the BancShares Group shall maintain a banking or other
business office at the time of Holding's separation from service that is a
customer or recognized prospective customer of the Bank or any entity within the
BancShares Group on the Retirement Date. Further, Holding shall not
employ, or seek to employ, any employee of the Bank or any entity within the
BancShares Group, or induce any such person to leave his or her employment for
the term of the Covenant Not to Compete as specified in Paragraph
9.
11. COVENANT OF
NONDISCLOSURE. During the course of Holding's employment with
the Bank, Holding has been given and has obtained various confidential
information concerning the Bank, the other entities within the BancShares Group,
the shareholders, directors, officers, associates, employees and agents of said
entities and their customers, prospective customers, services, trade secrets,
proprietary information, personnel information and other information concerning
their business (collectively, the "Information"), all of which constitute
valuable assets and privileged information of the Bank or the specific entity
within the BancShares Group, which Information is particularly sensitive due to
the fiduciary responsibilities and public trust inherent in the Bank's and
BancShares Group's business. The Bank and Holding acknowledge that
the Bank has invested, and shall continue to invest, considerable amounts of
time, effort and resources in developing such valuable assets and Information,
and that disclosure by Holding of such assets and Information to the public or
to any other person or entity, regardless of how insignificant such assets or
Information may seem, would cause irreparable harm, damage and loss to the Bank
or the particular entity of the BancShares Group.
To
protect the Bank and/or an entity within the BancShares Group from Holding's
use, disclosure or exploitation of customer contacts and the Information,
Holding agrees that Holding shall not, directly or indirectly, at any time after
the Retirement Date, for any reason, reveal, divulge, disclose or communicate to
any person, corporation, firm or other entity or to any shareholder, director,
officer, partner, member, manager, employee, agent or associate of any such
person, corporation, firm or other entity, any confidential, sensitive or
personal information, proprietary information, trade secret or other information
whatsoever, including, but not limited to, the Information, about or received by
Holding from the Bank or any one or more of the entities within the BancShares
Group, developed or received by Holding during employment with the Bank or the
entities within the BancShares Group, or developed or received by Holding during
the course of Holding's association with the Bank or any of the entities within
the BancShares Group, relating to the business affairs of the Bank or any of the
entities within the BancShares Group, or the business or personal affairs of the
shareholders, directors, officers, Holdings, employees, agents or attorneys of
said entities, including, without limitation, information concerning customer
and prospective customer records, personnel information, ideas, proprietary
information, methods, marketing investigations, surveys, research and other like
or similar information, unless required to do so by law or by a court of
competent jurisdiction. Holding shall not use the Information to the
detriment of the Bank or any of the entities within the BancShares Group, or the
principals, shareholders, directors, officers, associates or employees of said
entities, particularly in any manner competitive with the Bank or any entity
within the BancShares Group, in any unlawful manner, or to interfere with or
attempt to terminate or otherwise adversely affect any business relationship of
the Bank or any entity within the BancShares Group with a customer or
prospective customer.
12. RELEASE. Except
for Holding's specific contractual rights and benefits under this Agreement, and
any rights Holding has for indemnity for any actions arising prior to his
resignation under any director and officer indemnity provided pursuant to North
Carolina law or under the Bank’s charter or bylaws existing on the Retirement
Date, and except as prohibited by law, Holding hereby releases, acquits,
quitclaims and discharges the Bank and any entities within the BancShares Group,
and their respective successors and assigns, and the shareholders, directors,
officers, associates, employees, agents, attorneys, benefit plans and plan
administrators of all of said entities, and their respective heirs, successors
and assigns, as applicable, (collectively, the "Releasees"), of and from any and
all actions, causes of action, claims, demands, damages, costs (including
reasonable attorneys' fees), loss of services, expenses and compensation, and
for all consequential, compensatory, actual, punitive or liquidated damages,
known or unknown, including those under the Age Discrimination in Employment
Act, 29 U.S.C. § 621 et seq. (the "Act"), on
account of, or in any way arising from, the employment or any other relationship
between Holding and the Bank and any entity within the BancShares Group, and any
and all collateral matters pertaining thereto, whether directly, indirectly or
in any way connected with any Releasee. As part of the consideration
for this Agreement, Holding agrees that, to the extent permitted by law and
except as otherwise required by law, neither Holding nor any of Holding's heirs,
legal representatives or assigns will make or file any claim, charge or lawsuit,
or cooperate voluntarily in any investigation, lawsuit or legal or
administrative proceeding by any individual, entity or agency against or
involving any Releasee for or on account of any claim Holding may have, or may
have had, against any Releasee in connection with Holding's employment or any
other relationship with the Bank or any of the entities within the BancShares
Group, the matters referenced above, and/or the cessation of Holding's
employment with the Bank. Holding further agrees that, except as
prohibited by law, Holding will waive and release any and all personal damages
(including, but not limited to, damages relating to pain and suffering, back pay
and compensatory and/or punitive damages) resulting from any charge filed with,
or investigation conducted by, the Equal Employment Opportunity Commission or
any other administrative agency in connection with Holding's employment or any
other relationship with the Bank or any of the entities within the BancShares
Group.
Holding
understands and agrees that with respect to any rights or claims of Holding
under the Act: (a) no rights or claims are waived by Holding that may
arise from an event or transaction that occurs after the date this
Agreement is executed by Holding; (b) Holding has been advised in writing to
consult with an attorney prior to executing this Agreement; (c) Holding has been
advised that Holding has twenty-one (21) days from Holding's receipt of this
Agreement, unless extended in writing by the Bank, to consider the release
provisions of this Agreement; (d) Holding has been advised that Holding has
seven (7) days following Holding's execution of this Agreement to revoke the
release provisions of this Agreement pertaining to any right or claim under the
Act and (e) the release provisions of this Agreement pertaining to any right or
claim under the Act shall not become effective or enforceable until the
revocation period of seven (7) days following Holding's execution hereof has
expired (the "Effective Date").
13. ENFORCEMENT.
a. The
Parties acknowledge and agree that the mutual covenants and agreements of
Holding, the Bank and the BancShares Group contained in this Agreement are a
material part of this Agreement. Payment of the Special Payments
referenced in Paragraph 4 of this Agreement are
conditioned upon Holding's adherence to these covenants and agreements contained
herein. Holding’s agreement under Paragraphs 1, 8, 9, 10, 11 and
12 of this Agreement is conditioned upon the Bank’s and BancShares Group’s
adherence to their covenants and agreements contained herein. Holding
acknowledges and agrees that should Holding materially breach any of the
covenants and agreements contained in this Agreement, Holding shall be required
to return to the Bank the entire amount of the payments paid to Holding for
Holding's execution of this Agreement. Further, Holding shall
indemnify and hold harmless the Bank from any and all losses, costs or expenses,
including reasonable attorneys' fees, which the Bank may incur in recovering
this amount or as a result of Holding's breach of the terms of this Agreement,
or both. Return of any such amounts pursuant to this
Paragraph 13 shall not entitle Holding to renew any claim Holding may have
against the Bank that is waived or released under this Agreement, shall not
prohibit the Bank's enforcement of the breached covenant or agreement, shall not
terminate the remaining covenants and agreements set forth in this Agreement and
shall not impair any of the Bank's enforcement rights as described in this
Paragraph 13. Bank shall indemnify and hold harmless Holding
from any and all losses, costs or expenses, including reasonable attorneys'
fees, which Holding may incur in recovering funds due or damages incurred as a
result of the Bank's or the BancShares Group’s breach of the terms of this
Agreement.
b. Subject
to the provisions set forth in Paragraph 14 of this Agreement, in the event
of Holding's breach of any covenant or agreement of Holding contained in this
Agreement, and in the event of the Bank’s or the BancShares Group’s breach of
any covenant or agreement contained herein, the non-breaching Party shall be
entitled, in addition to any other rights and remedies available at law or in
equity, to an injunction enjoining and restraining the breaching Party from
doing or continuing to do any such act and/or any other violation or threatened
violation of such covenant or agreement. In the event that a Party
shall institute any action or proceeding to enforce the provisions of the
covenants or agreements contained herein, the Party against whom the action is
brought shall waive the claim or defense that the Party seeking enforcement has
an adequate remedy at law, and the Party against whom the action is brought
shall not urge in any such action or proceeding the claim or defense that such a
remedy at law exists, each Party recognizing that the other Party shall be
entitled to injunctive relief as to the violation or threatened violation of any
such covenant or agreement. However, nothing contained in this
Agreement shall be construed as prohibiting a Party from pursuing any other
remedies available, in addition to injunctive relief, whether at law or in
equity, including the recovery of damages.
14. MEDIATION. In
the event the Bank receives notice of Holding's breach of any covenant or
agreement of Holding contained in this Agreement, the Bank will provide to
Holding notice of facts sufficient to make out a prima facie case for violation
of the Agreement, and Holding will have sixty (60) days from receipt of the
Bank's notice to cure the breach. If a dispute arises between the
Bank and Holding over whether Holding breached any covenant or agreement
contained in this Agreement, the Bank and Holding mutually agree to submit the
dispute to mediation before filing any court action in North Carolina courts or
any other jurisdiction.
15. TAXES AND
INDEMNIFICATION. Holding agrees that he shall be solely
responsible for all taxes, insurance, penalties and other charges, if any, which
may be owed to, or assessed by, governmental agencies as a result of the Special
Payments made to him pursuant to Paragraph 4. Holding further agrees
to indemnify and hold harmless the Bank and its attorneys from any claims,
demands, deficiencies, levies, assessments, judgments or recoveries by any
governmental authority asserted against the Bank because of Holding's failure to
pay applicable taxes.
16. ENTIRE
UNDERSTANDING/AMENDMENTS. This Agreement contains the entire
understanding between the Bank and all entities within the BancShares Group and
Holding as to the matters contained herein, and no conditions precedent or
subsequent exist which are not contained herein. This Agreement may
not be altered, amended or revoked except by a written agreement signed by the
Bank and Holding.
17. BINDING
EFFECT. The Bank and Holding recognize and agree that this
Agreement is binding upon the Bank and Holding and its/Holding's respective
heirs, representatives, successors and assigns, as
applicable. Holding further acknowledges that Holding has carefully
read this Agreement, which contains a release, and knows and understands the
contents hereof and voluntarily executes the same as Holding's free act and
deed, and that the terms of this Agreement are contractual and not a mere
recital.
18. GOVERNING LAW AND
VENUE. The Bank and Holding agree that, without regard to
principles of conflicts of laws, the internal laws of the State of North
Carolina shall govern and control the validity, interpretation, performance and
enforcement of this Agreement. The Bank and Holding agree that any
action arising from or relating to this Agreement shall be instituted and
prosecuted only in the courts of Wake County, North Carolina or the federal
courts of the Eastern District of North Carolina, and the Bank and Holding
hereby consent to the jurisdiction of such courts and waive any right or defense
relating to venue and jurisdiction over the person.
19. SEVERABILITY. The
invalidity or unenforceability of any particular provision of this Agreement
shall not affect the other provisions hereof, and this Agreement shall be
construed in all respects as if such invalid or unenforceable provision were not
contained herein.
20. SECTION 409A SAVINGS
CLAUSE. To the extent any of the payments or benefits required
under this Agreement are, or in the opinion of counsel to the Bank or Holding
could be interpreted in the future to create, a nonqualified deferred
compensation plan that does not meet the requirements of Section 409A(a)(2), (3)
and (4) of the Code and all regulations, guidance or other interpretative
authority thereunder (the "Section 409A Requirements"), the Bank and Holding
hereby agree to execute any and all amendments to this Agreement or otherwise
reform this Agreement as deemed necessary by either of such counsel, and
prepared by counsel to the Bank, to either cause such payments or benefits not
to be a nonqualified deferred compensation plan or to meet the Section 409A
Requirements. In amending or reforming this Agreement for Section
409A purposes, the Bank shall maintain, to the maximum extent practicable, the
original intent and economic benefit of this Agreement without subjecting
Holding to additional tax or interest.
21. ASSIGNMENT. The
Bank shall assign this Agreement to any other corporation or entity acquiring
all or substantially all of the assets of the Bank, or to any other corporation
or entity into which or with which the Bank may be merged or
consolidated. Upon such assignment, merger or consolidation, the
rights of the Bank under this Agreement, as well as the obligations and
liabilities of the Bank herein, shall inure to the benefit of and be binding
upon any and all successors-in-interest or transferees of all or substantially
all of the assets of the Bank. This Agreement is not assignable in
any respect by Holding.
22. HEADINGS. The
headings appearing in this Agreement are for convenience only and are not to be
considered in interpreting this Agreement.
23. NOTICE. For purposes of
this Agreement, notices and all other communications provided for in the
Agreement shall be in writing and shall be deemed to have been duly given when
(i) delivered personally; (ii) sent by telecopy or similar electronic device and
confirmed; (iii) delivered by overnight express; or (iv) sent by registered or
certified mail, postage prepaid, addressed as
follows: (a) If to Holding, to him at the last home
address listed in the Bank’s records; and (b) If to the Bank or to
the BancShares Group, to: Xxxxx X. Holding, Jr.,
First-Citizens Bank & Trust Company, XX Xxx 00000, Xxxxxxx,
XX 00000-0000. Any Party may notify the other Party of another
address, except that notices of change of address shall be effective only upon
receipt.
IN
TESTIMONY WHEREOF, the Bank, BancShares and IronStone have each caused this
instrument to be executed in their corporate names by a duly authorized
corporate officer, attested by its Secretary/Assistant Secretary, and its
corporate seal to be hereto affixed, all within the authority duly given by its
Board of Directors, and Holding has hereunto set Holding's hand and adopted as
Holding's seal the typewritten word "SEAL" appearing beside Holding's name, all
effective as of the Effective Date.
FIRST-CITIZENS
BANK & TRUST COMPANY
By: /s/ XXXXXX X. XXXXXXXXXX,
XX.
Xxxxxx X. Xxxxxxxxxx, XX,
President
ATTEST:
/s/ XXXXX X.
XXXXXXXX
Secretary
FIRST CITIZENS BANCSHARES,
INC.
By: /s/ XXXXXX X. XXXXXXXXXX,
XX.
Xxxxxx X. Xxxxxxxxxx, XX,
President
ATTEST:
/s/ XXXXX X.
XXXXXXXX
Secretary
IRONSTONE BANK
By: /s/ HOPE HOLDING
CONNELL
Hope Holding Xxxxxxx,
President
ATTEST:
/s/ XXXXX X.
XXXXXXXX
Secretary
/s/ XXXXX X. HOLDING
_______________ (SEAL)
Xxxxx
X. Holding
811131-00001-001
ND:
4839-7323-2899, v. 3\3
