STATE OF NORTH CAROLINA
COUNTY OF WAKE
FIRST AMENDMENT OF EMPLOYEE DEATH
BENEFIT AND POST-RETIREMENT
NONCOMPETITION AND CONSULTATION AGREEMENT
THIS FIRST AMENDMENT OF EMPLOYEE DEATH BENEFIT AND POST-RETIREMENT
NONCOMPETITION AND CONSULTATION AGREEMENT ("First Amendment"), made and entered
into and effective as of the 29th day of January, 1996, by and between THE
FIDELITY BANK, a North Carolina banking corporation with its principal place of
business in Fuquay-Varina, Wake County, North Carolina (hereinafter referred to
as "Employer"); and XXXXX X. XXXXXXX (hereinafter referred to as "Employee");
W I T N E S S E T H:
WHEREAS, in recognition of Employee's contribution to the growth,
management and development of Employer and in order to limit Employee's
availability to other employers or entities in competition with Employer
following Employee's retirement from employment with Employer, Employer and
Employee entered into that certain Employee Death Benefit and Post-Retirement
Noncompetition and Consultation Agreement, dated as of the 10th day of November,
1986, which is incorporated herein by reference (hereinafter referred to as the
"Agreement"), which Agreement was executed pursuant to a benefit plan adopted by
Employer as of November 10, 1986, for the senior executive officers of Employer;
and,
WHEREAS, Employer now desires to enter into Phase II of such benefit
plan, as part of which Employer desires to increase the benefits payable to
Employee, as set forth in the Agreement, by amending said Agreement pursuant to
Paragraph 12 thereof, such increased benefits to be effective as of the date of
this First Amendment.
NOW, THEREFORE, for and in consideration of the mutual promises and
undertakings herein set forth, the parties hereto do agree as follows:
1. Paragraph 2 of the Agreement hereby is deleted in its entirety
and the following replacement Paragraph 2 is inserted in lieu thereof:
"2. DEATH BENEFITS. In the event Employee dies while employed by
Employer prior to Employee's Retirement Date, Employer will pay the
sum of Sixty-Six Thousand Nine Hundred Ninety-Seven and 44/100
Dollars ($66,997.44) per year, payable in monthly installments of
Five Thousand Five Hundred Eighty-Three and 12/100 Dollars
($5,583.12) for a period of ten (10) years, to such individual or
individuals as Employee shall have designated in writing filed with
Employer or, in the absence of such designation, to the Estate of
Employee. The first payment shall be made not later than two (2)
months following Employee's death. Payments hereunder shall be
payable each month without deductions and the recipient shall be
solely responsible for the payment of all income and other taxes
and assessments applicable on said payments."
2. The first paragraph of Paragraph 3 of the Agreement hereby is
deleted in its entirety and the following replacement first paragraph of
Paragraph 3 is inserted in lieu thereof:
"3. CONSULTATION PAYMENTS. In the event Employee retires from
employment on Employee's Retirement Date, Employee shall be paid by
Employer the sum of One Thousand Three Hundred Ninety-Five and
78/100 Dollars ($1,395.78) per month, beginning not later than two
(2) months after Employee's Retirement Date, for a period of ten
(10) years following Employee's Retirement Date or until death,
whichever first occurs. Such monthly payments shall be paid for and
in consideration of Employee's Consultation Services, as provided
herein; such sum to be payable to Employee whether or not Employee's
Consultation Services have been utilized by Employer. Consultation
Payments hereunder shall be payable each month without deductions
and Employee agrees to be solely responsible for the payment of all
income and other taxes out of said funds and all Social Security,
self-employment and any other taxes or assessments, if any,
applicable on said compensation."
3. The first paragraph of Paragraph 4 of the Agreement hereby is
deleted in its entirety and the following replacement first paragraph of
Paragraph 4 is inserted in lieu thereof:
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"4. NONCOMPETITION PAYMENTS. In the event Employee retires from
employment on Employee's Retirement Date, Employee shall be paid by
Employer the sum of Four Thousand One Hundred Eighty-Seven and
34/100 Dollars ($4,187.34) per month, beginning not later than two
(2) months after Employee's Retirement Date, for a period of ten
(10) years following Employee's Retirement Date or until death,
whichever first occurs. Such monthly payments shall be paid for and
in consideration of Employee's Covenant Not To Compete as provided
herein. Noncompetition Payments hereunder shall be payable each
month without deductions and Employee agrees to be solely
responsible for the payment of all income or other taxes or
assessments, if any, applicable on said payments.
" 4. The nineteenth line of the second paragraph of Paragraph 4 of
the Agreement hereby is amended to delete the following phrase: "...plus a term
of twelve months thereafter,..."
5. Paragraph 5 of the Agreement hereby is deleted in its
entirety and the following replacement Paragraph 5 is inserted in lieu
thereof:
"5. CONTINUATION OF PAYMENTS. Upon Employee's death during said ten
(10) year period of payments hereunder, the sum of Five Thousand
Five Hundred Eighty-Three and 12/100 Dollars ($5,583.12) per month
shall be paid to Employee's designated beneficiary or Employee's
Estate, as applicable, beginning the first calendar month following
the date of Employee's death and continuing thereafter until the
expiration of said ten (10) year period. Once the Consultation
and/or Noncompetition Payments are begun, whether paid by Employer
or as otherwise provided herein, the maximum payment period under
this Agreement is ten (10) years. Payments hereunder shall be
payable each month without deductions and the recipient shall be
solely responsible for all income and other taxes and assessments
applicable on said payments."
6. All of the remaining terms and conditions of the Agreement which
are not expressly amended by this First Amendment shall remain in full force and
effect.
IN TESTIMONY WHEREOF, Employer has caused this First Amendment to be
executed in its corporate name by its Executive
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Vice President, attested by its Secretary/Assistant Secretary and its corporate
seal to be affixed hereto, all within the authority duly given by its Board of
Directors, and Employee has hereunto set his hand and adopted as his seal the
typewritten word "SEAL" appearing beside his name, as of the day and year first
above written.
THE FIDELITY BANK
By: /s/ Xxxxxxx X. Xxxx, Xx.
------------------------
Executive Vice President
Attest:
/s/ Xxxxx X. Pore
-----------------------------
Secretary
/s/ Xxxxx X. Xxxxxxx (SEAL)
---------------------------------
Xxxxx X. Xxxxxxx
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DESIGNATION OF BENEFICIARY
Pursuant to the terms of the Employee Death Benefit and
Post-Retirement Noncompetition and Consultation Agreement, dated as of November
10, 1986, as amended effective January 29, 1996, between myself and Employer, I
hereby designate the following beneficiary(ies) to receive any payments which
may be due under such Agreement after my death.
Xxxx Xxxxxxx Xxxxxxx
-----------------------------
Primary Beneficiary
------------------------------
Secondary Beneficiary
------------------------------
Secondary Beneficiary
------------------------------
Secondary Beneficiary
This designation hereby revokes any prior designation which may have
been in effect.
Date: January 29, 1996
----------------------------
/s/ Xxxxx X. Xxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxxxx
-----------------------
Witness
Acknowledged by:
/s/ Xxx X. Xxxxxxx
------------------------------
Title: Asst. Vice President
------------------------
Date: January 29, 1996
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