EXHIBIT 99.1(c)
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
WHEREAS, an Employment Agreement was entered into on the
23rd day of April, 1990, as amended on the 15th day of April, 1991
("Initial Agreement" and"Amended Agreement", respectively, and
collectively hereinafter, the "Employment Agreement"), which are
incorporated herein by reference thereto, by and between FIRST
NATIONAL BANK IN ST. XXXX XXXXXX ("Bank"), a national banking
association, with its registered office in St. Xxxx Xxxxxx,
Louisiana, herein represented by and appearing through XXXXXXX X.
XXXXXXX, the duly authorized Chairman of the Board of Directors of
the Bank pursuant to the authority granted him in the attached
resolution of the said Board of Directors, and XXXXXXX X. XXXX, XX.
("Xx. Xxxx"), a person of the full age of majority and a resident
of Xxxxxx City, St. Xxxx Xxxxxx, Louisiana;
WHEREAS, in accordance with the Employment Agreement, the
Bank employed Xx. Xxxx under the terms and conditions stated
therein; and
WHEREAS, it is the desire of the parties to amend and/or
supplement the Employment Agreement only in the following
particulars and specifics (and only amends or supplements the
Initial Agreement unless the context hereof provides specifically
otherwise):
NOW THEREFORE, for the considerations stated in the
Employment Agreement and herein, the parties hereto do hereby agree
to amend and/or supplement the Employment Agreement only in the
following respects:
I. To amend Section 3-(f)-LIFE INSURANCE-SPLIT ENDORSEMENT
so that the same shall henceforth read in its entirety as follows:
"The Bank shall provide a life insurance policy on the life of Xx.
Xxxx in the total face amount of TWO HUNDRED FIFTY THOUSAND AND
NO/100 ($250,000.00) DOLLARS with such insurance carrier as Bank
deems appropriate ("life insurance policy") as long as Xx. Xxxx is
employed by the Bank hereunder; the life insurance policy
shall be owned by the Bank who shall pay the premiums for same and
who shall be the owner of the cash value thereof. If Xx. Xxxx'x
employment hereunder is terminated (a) then no death benefit shall
become due and payable to Xx. Xxxx'x named beneficiary except if
such employment is terminated by Xx. Xxxx'x death while the
Employment Agreement is in force and effect, or (b) other than by
Xx. Xxxx'x death, then Xx. Xxxx shall have the option, exercisable
by written notice to the Bank within thirty (30) days of his
termination, to have the life insurance policy assigned to him by
the Bank; however prior to such assignment, the Bank shall withdraw
from the life insurance policy, either in the form of a loan or any
other manner permitted under the life insurance policy (except one
which causes the cancellation thereof), the entire cash value
thereof. Xx. Xxxx shall then receive the life insurance policy by
the assignment (but including the assumption by Xx. Xxxx of any
loan balance) with such cash value removed therefrom. However, in
the further event of a "change in control" (the term "change in
control" as used anywhere herein shall be as hereinbelow defined)
occurring within nine (9) months after Xx. Xxxx'x employment has
been terminated by the Bank pursuant to Section 6-(e) hereof, and
further provided that Xx. Xxxx has had the life insurance policy
assigned to him as provided above, then upon the occurrence of such
"change in control" a sum equivalent to the amount received by the
Bank from the cash value of the life insurance policy shall be paid
to Xx. Xxxx.
Notwithstanding anything to the contrary in this Agreement,
including Section 6(e) hereof, in the further event of a "change in
control", and Xx. Xxxx is employed by the Bank at the time of the
"change in control", the Bank shall assign the ownership, including
the cash value thereof, of the life insurance policy to Xx. Xxxx
(and in the event of any assignment of the life insurance policy by
the Bank provided for in this Agreement, Xx. Xxxx, as assignee,
shall receive and accept the policy
with no warranties from the Bank and shall assume the payment of
all premiums thereafter due thereon). Neither Xx. Xxxx nor any
beneficiary of the life insurance policy shall have the right to
sell, assign, transfer or otherwise convey any of his/her rights
hereunder including the rights to receive any payments hereunder or
in and to the said life insurance policy, all of which interest,
including the payment and the rights thereto, are expressly
declared to be non-assignable and non-transferrable unless the life
insurance policy is assigned to Xx. Xxxx under the provisions of
this Agreement.
In furtherance of the above, the parties hereto agree to
execute a "Split-Dollar Endorsement" in the form attached hereto
and made a part hereof for all purposes. The said "Split-Dollar
Endorsement" describes, and the Bank has caused to be taken out,
Policy No. 2,459,106 with Phoenix Mutual Life Insurance Company on
the life of Xx. Xxxx; anything to the contrary in this Agreement or
the said "Split-Dollar Endorsement" notwithstanding, the Bank
reserves the right at any time to cancel this said policy or
discontinue the payment of premiums thereon and substitute for said
life insurance policy another life policy in the total face amount
of $250,000.00."
II. To supplement and amend "e" of Section 6, as amended,
which shall henceforth read in its entirety as follows:
"(e) Without cause by the Bank (i) upon payment to Xx. Xxxx of
the sum of NINETY-TWO THOUSAND FIVE HUNDRED AND NO/100 ($92,500.00)
DOLLARS plus a sum equivalent to only the "pro rata portion" (as
such "pro rata portion" is hereinbelow described) of the bonus
described in Section 3-(b) above for the year in which the
termination occurs; such "pro rata portion" shall man the fraction,
the numerator of which shall be the number of days which have
elapsed since the beginning of the calendar year in which the
termination occurs to the date of the termination and the
denominator of which shall be 365. As a hypothetical example, if
the date of Xx. Xxxx'x
termination is June 12 of a calendar year, the "pro rata portion"
shall be .449315 (being 164 divided by 365) multiplied by the bonus
determined in accordance with the said Section 3-(b) and paid in
the manner provided therein, or
(ii) in the event of a "change in control" upon the payment to
Xx. Xxxx of the sums provided for in Section 10 below at which time
this Agreement shall be terminated (including the termination of
any obligation to make payment of the sums otherwise due in e (i)
above) except with respect to any obligation regarding the life
insurance policy as provided above.
Anything to the contrary in this Agreement notwithstanding:
1. If Xx. Xxxx is indicted for a felony, then his employment
under this Agreement may be terminated by the Bank at any time and
the Bank's only obligation in such instance to Xx. Xxxx shall be to
pay to him the sum of NINETY TWO THOUSAND FIVE HUNDRED AND NO/100
($92,500.00) DOLLARS when and if he is acquitted of such felony
charge; if Xx. Xxxx is convicted (through trial, plea or otherwise)
of such felony charge, then the Bank shall owe him no payment
whatsoever;
2. If Xx. Xxxx terminates his employment hereunder pursuant
to Sub-section "d" hereof, then he shall not engage or be employed
in, and shall refrain from and be prohibited from engaging,
carrying on, or being employed in, the banking business and
soliciting the Bank's customers for banking business in St. Xxxx
Xxxxxx, Louisiana for a period of one (1) year from the date of
such termination, so long as the Bank is so engaged in the banking
business in St. Xxxx Xxxxxx, Louisiana during such one (1) year
period. Further, during such one (1) year period, Xx. Xxxx shall
not be employed by, or be a stockholder or director of, any
financial institution which has its principal office located in, or
is domiciled in, St. Xxxx Xxxxxx, Louisiana at the time of his
termination; and
3. Xx. Xxxx shall not be entitled to receive (a) the life
insurance policy under the provisions of Section 3(f) hereof nor
(b) the payment as provided in Section e(ii) and including
Section 10 hereof in the event that the "change in control" that
triggers or results in such payment results from a transaction
effected by a "group" (within the meaning of the Securities
Exchange Act of 1934, as amended) of which Xx. Xxxx is a member or
a participant, and such transaction by Xx. Xxxx or the "group" has
not been approved by the Board of Directors (excluding Xx. Xxxx) of
First Citizens BancStock, Inc. (the "Company")."
III. To add a new Section 10 entitled "change in control"
which shall read as follows:
"SECTION 10. CHANGE IN CONTROL.
As used anywhere in this Agreement, a "change in control"
shall be conclusively deemed to have occurred if (and only if) any
of the following shall have taken place:
(1) a Change in Control is reported by First Citizens
BancStock, Inc. (the "Company") in response to either
Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or Item 1 of Form 8-K promulgated
under the Exchange Ace;
(2) any person (as such term is used in Sections 13(d) and
14(d)(2) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of
the Company representing 40% or more of the combined
voting power of the Company's then outstanding
securities; or
(3) following the election or removal of directors, a
majority of the Company's Board of Directors (the
"Board") consists of individuals who were not members of
the Board two years before such election or removal,
unless the election of each director who was not a
director at the beginning of such two-year period has
been approved in advance by directors representing at
least a majority of the directors then in office who were
directors at the beginning of the two-year period.
In the event, and upon the occurrence, of a "change in
control" (unless Xx. Xxxx, without the Board's approval, was a
member or participant in a transaction resulting in the "change in
control" as provided in Section II (e) (ii) (3) above), the Bank
shall pay to Xx. Xxxx a sum equivalent to two times the gross
income (as hereinafter determined) he received from the Bank under
this Agreement for the calendar year immediately preceding the year
in which the "change in control" occurs; such gross income shall be
the total gross income earned by Xx. Xxxx from the Bank as
conclusively determined by Form W-2 filed with the IRS by the Bank
for Xx. Xxxx for the calendar year upon which the payment to be
made under this Agreement is to be based. As a hypothetical
example, if a "change in control" occurs in 1996, and Xx. Xxxx'x
1995 IRS W-2 form filed by the Bank reflects a total income of ONE
HUNDRED EIGHTY-TWO THOUSAND FIVE
HUNDRED AND NO/100 ($182,500.00) DOLLARS, then, upon the
occurrence of a "change in control", the Bank shall pay to Xx. Xxxx
the sum of THREE HUNDRED SIXTY-FIVE THOUSAND AND NO/100
($365,000.00) DOLLARS less deductions required by law."
With all other respects the Employment Agreement as written is
not amended, supplemented or altered hereby and together with the
above Agreement, are in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Second Amendment on this 16th day of March, 1995, in the presence
of the undersigned two competent witnesses after reading of the
whole.
WITNESSES: THE FIRST NATIONAL BANK
IN ST. XXXX XXXXXX
/s/ [Illegible] BY: /s/ Xxxxxxx X. Xxxxxxx
________________________ __________________________
XXXXXXX X. XXXXXXX
Chairman of the Board of
Directors
/s/ Xxxxx Xxxxxxx
________________________
WITNESSES:
/s/ [Illegible] /s/ Xxxxxxx X. Xxxx, Xx.
________________________ __________________________
XXXXXXX X. XXXX, XX.
/s/ Xxxxx Xxxxxxx
________________________
