CONSULTATION AGREEMENT
Exhibit 10.10
THIS CONSULTATION AGREEMENT (“Agreement”), made and entered into as of the 24th day of July, 2006, by and between FIRST-CITIZENS BANK & TRUST COMPANY, a North Carolina banking corporation with its principal office in Raleigh, Wake County, North Carolina (hereinafter referred to as “Bank”); and XXXXXX X. XXXXXXXXX (hereinafter referred to as “Xxxxxxxxx”);
W I T N E S S E T H:
WHEREAS, Xxxxxxxxx and Bank previously entered into an Employee Death Benefit and Post-Retirement Noncompetition and Consultation Agreement, dated as of the 1st day of January, 1986 (the “1986 Agreement”), which became effective with Xxxxxxxxx’x retirement on June 15, 1987; a consultation agreement in February 1988 which expired on December 31, 1999; and a Second Death Benefit and Post-Retirement Noncompetition and Consultation Agreement dated April 28, 1997 (the “Second Agreement”); and,
WHEREAS, Xxxxxxxxx has provided outstanding guidance, leadership and direction in the growth, management and development of Bank, and has continued to serve on the Board of Directors of Bank and its parent, First Citizens BancShares, Inc. (“BancShares”), and served for a number of years as Chairman of the Executive Committees of the Boards of Directors of Bank and BancShares until his retirement from the Executive Committee at the end of 2005; and,
WHEREAS, Bank desires to continue to have Xxxxxxxxx’x experience and knowledge available to it; and,
WHEREAS, Xxxxxxxxx has served very faithfully under the 1986 Agreement, and the Second Agreement which is due to expire on June 30, 2007, and Bank has offered to Xxxxxxxxx a Consultation Agreement which requires a limited, when called, independent contractor consultation service arrangement and a death benefit arrangement for Xxxxxxxxx’x designated beneficiary or estate, as applicable, and the parties hereto have reached an agreement concerning the independent contractor consulting relationship, the death benefit arrangement, and other matters contained herein, and desire to set forth the terms and conditions thereof by entering into this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises and undertakings herein set forth, the parties hereto do agree as follows:
1. TERMINATION OF PREVIOUS AGREEMENTS. Xxxxxxxxx and Bank agree that as of July 31, 2006 (subject to the Death Benefits; Continuation of Payments provisions of this Agreement, Paragraph 4) the Second Agreement shall terminate and Xxxxxxxxx acknowledges that the 1986 Agreement has expired as has the Consultation Agreement dated February 1988, and neither are of any further effect.
2. EFFECTIVE DATE. The term "Effective Date," as used herein, shall be defined for purposes of this Agreement as the first day of the calendar month following the month for which Xxxxxxxxx receives the final payment due under the Second Agreement (August 1, 2006).
3. CONSULTATION PAYMENTS. Xxxxxxxxx shall be paid by Bank the sum of Seven Thousand Five Hundred and No/100 ($7,500.00) per month, beginning August 2006, for a period of five (5) consecutive years following the Effective Date or until death, whichever first occurs. Such monthly payments shall be paid for and in consideration of Xxxxxxxxx’x consultation services, as provided herein; such sum to be payable to Xxxxxxxxx whether or not Xxxxxxxxx’x consultation services have been utilized by Bank. Consultation payments hereunder shall be payable each month without deductions and Xxxxxxxxx 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.
For and in consideration of said monthly Consultation Payments to Xxxxxxxxx, Xxxxxxxxx will provide support, sponsorship, advisory and consultation services as an independent contractor to Bank, as and when Bank may request, which services may be provided with respect to all phases of Bank’s business and particularly those phases in which Xxxxxxxxx has particular expertise and knowledge. Xxxxxxxxx’x services shall be limited to those of an independent consultant, shall not be on a day-to-day regularly scheduled operational basis and shall be provided only when Xxxxxxxxx is reasonably available and willing. Bank shall make available to Xxxxxxxxx such office space and equipment as are reasonably necessary for Xxxxxxxxx to carry out the obligations under this Agreement and shall reimburse Xxxxxxxxx for any extraordinary expenses incurred in carrying out the obligations hereunder.
As of the Effective Date, Xxxxxxxxx and Bank agree that Xxxxxxxxx shall be, under the terms of this Agreement, an independent contractor, and Xxxxxxxxx agrees that his rights and privileges and his obligations are as provided in this Agreement as to matters covered herein.
If Xxxxxxxxx should die during the period set forth in Paragraph 4, payments under this Paragraph shall terminate. Future payments, if any, to Xxxxxxxxx’x designated beneficiary or
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Xxxxxxxxx’x estate shall be made in accordance with the provisions of Paragraph 4 of this Agreement.
4. DEATH BENEFITS; CONTINUATION OF PAYMENTS. Upon Xxxxxxxxx’x death during the period between the date of this Agreement and the Effective Date, or during the five (5) year period of payments hereunder following the Effective Date, the sum of Seven Thousand Five Hundred and No/100 Dollars ($7,500.00) per month shall be paid to Xxxxxxxxx’x designated beneficiary or Xxxxxxxxx’x estate, as applicable, as Death Benefits, beginning the first calendar month following the date of Xxxxxxxxx’x death and continuing thereafter until the expiration of said five (5) year period. Once the Death Benefits and/or Consultation Payments are begun, whether paid by Bank or as otherwise provided herein, the maximum payment period under this Agreement is five (5) 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.
5. FORFEITURE OF BENEFITS. This Agreement is subject to termination by Bank at any time and without stated cause. In the event Bank shall terminate this Agreement, Xxxxxxxxx shall forfeit all rights to receive any payment provided for herein. Xxxxxxxxx acknowledges and agrees that any benefit provided for herein is merely a contractual benefit and that nothing contained herein shall be construed as conferring upon Xxxxxxxxx any vested benefits or any vested rights to receive any payment provided for herein and that any and all payments provided for herein shall be subject to a substantial risk of forfeiture until such time as said payments are actually made by Bank.
6. CLAIMS PROCEDURE. If any benefits become payable under the Agreement, Xxxxxxxxx (or Xxxxxxxxx’x beneficiary or estate, as applicable, in the case of Xxxxxxxxx’x death) shall file a claim for benefits by notifying Bank orally or in writing. If the claim is wholly or partially denied, Bank shall provide a written notice within ninety (90) days specifying the reasons for the denial, any additional material or information necessary to receive benefits, and the steps to be taken if a review of the denial is desired.
If a claim is denied and a review is desired, Xxxxxxxxx (or Xxxxxxxxx’x beneficiary or estate, in the case of Xxxxxxxxx’x death) shall notify Bank in writing within sixty (60) days. In requesting a review, Xxxxxxxxx or Xxxxxxxxx’x beneficiary or estate, as applicable, may submit any written issues and comments he or she feels are appropriate. Bank shall then review the claim and provide a written decision within sixty (60) days. This decision shall state the specific reasons for the decision and shall include references to specific provisions on which the decision is based and shall be binding.
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7. ASSIGNMENT OF RIGHTS. Neither Xxxxxxxxx nor any designated beneficiary shall have any right to sell, assign, transfer or otherwise convey the right to receive any payment hereunder.
8. PAYMENTS AND FUNDING. Any payments under this Agreement shall be independent of, and in addition to, those under any other Plan, program or agreement which may be in effect between the parties hereto, or any other compensation payable to Xxxxxxxxx or Xxxxxxxxx’x designee by Bank. This Agreement shall not restrict payment to Xxxxxxxxx for service to Bank as a director or in any other capacity. This Agreement shall not be construed as a contract of employment.
Bank has purchased an insurance policy on the life of Xxxxxxxxx to fund, or assist in the funding, of the 1986 Agreement. A previously purchased life insurance policy may be used to fund, or assist in the funding of, this Agreement. Xxxxxxxxx agrees to promptly supply to Bank and its selected or prospective insurance carrier, upon request, any and all information requested in order to enable the insurance carrier to evaluate the risks involved in providing any insurance requested by Bank, or the continuation of the outstanding policy. Any and all rights to any and all benefits under such insurance policy on the life of Xxxxxxxxx shall be solely the property of Bank and all proceeds of such policy shall be payable by the insurer solely to Bank, as owner of such policy. Xxxxxxxxx specifically waives any rights in any insurance policy on Xxxxxxxxx’x life owned by Bank pursuant to the 1986 Agreement, the Second Agreement or this Agreement. Such policy shall not serve in any way as security to Xxxxxxxxx for Bank’s performance under this Agreement. The rights accruing to Xxxxxxxxx or any designee hereunder shall be solely those of an unsecured creditor of Bank and shall be subordinate to the rights of the depositors of Bank.
Bank may, in its sole discretion, discharge its liabilities under this Agreement to Xxxxxxxxx, Xxxxxxxxx’x designated beneficiary or Xxxxxxxxx’x estate at any time by the purchase of an annuity from a reputable insurance or similar company authorized to do, and doing, business in North Carolina and the assignment of the rights under said annuity to the benefit of Xxxxxxxxx, Xxxxxxxxx’x designated beneficiary or Xxxxxxxxx’x estate, as the correct beneficiary. If this option is exercised by Bank, all rights accruing to Xxxxxxxxx, Xxxxxxxxx’x designated beneficiary or Xxxxxxxxx’x estate hereunder shall be governed solely by the annuity contract and any election made under said annuity contract; and, Bank shall be fully discharged from any further liabilities to Xxxxxxxxx, Xxxxxxxxx’x designated beneficiary or Xxxxxxxxx’x estate under this Agreement.
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Bank may, in its sole discretion, discharge its liabilities under this Agreement to Xxxxxxxxx, Xxxxxxxxx’x designated beneficiary or Xxxxxxxxx’x estate at any time by determining the present value of the payments due hereunder, said amount to be determined by the use of the U.S. Government bond rate for the nearest year applicable to the time of the payments due hereunder for the present value computation and once determined, by payment of said amount in a lump sum to Xxxxxxxxx, Xxxxxxxxx’x designated beneficiary or Xxxxxxxxx’x estate, as applicable.
9. BINDING EFFECT. This Agreement, subject to its terms, shall be binding upon Xxxxxxxxx, his heirs, personal representatives and assigns and upon Bank, its successors and assigns.
10. SATISFACTION OF 1986 AGREEMENT AND SECOND AGREEMENT. Xxxxxxxxx acknowledges that the Bank has made all payments due to date under the 1986 Agreement and that, with the payments made through July 2006, Bank shall have fully performed its obligations under the Second Agreement. Upon such payments, Xxxxxxxxx agrees that he shall have no further rights under the 1986 Agreement nor the Second Agreement. Further, Xxxxxxxxx’x designated beneficiary under the 1986 Agreement and the Second Agreement shall have no further claims under either the 1986 Agreement or the Second Agreement.
11. AMENDMENT OF AGREEMENT. This Agreement may not be altered, amended or revoked except by a written agreement signed by Bank and Xxxxxxxxx.
12. INTERPRETATION. Where appropriate in this Agreement, words used in the singular shall include the plural and words used in the masculine shall include the feminine and neuter genders.
13. INVALID PROVISION. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Second Agreement shall be construed in all respects as if such invalid or unenforceable provision were not contained herein.
14. GOVERNING LAW. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of North Carolina.
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IN TESTIMONY WHEREOF, Bank has caused this Agreement to be executed in its corporate name by its Chairman, attested by its Secretary and its corporate seal to be hereto affixed, all by the authority of its Board of Directors duly given, and Xxxxxxxxx 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.
| FIRST-CITIZENS BANK & TRUST COMPANY | ||
| By: | /S/ XXXXX X. HOLDING | |
| Xxxxx X. Holding, Chairman | ||
| ATTEST: |
| /S/ XXXXXXXXX X. XXXXXXXXX, XX. |
| Xxxxxxxxx X. XxxXxxxxx, Xx., Secretary |
| /S/ XXXXXX X. XXXXXXXXX | (SEAL) | |
| Xxxxxx X. Xxxxxxxxx | ||
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DESIGNATION OF BENEFICIARY
Pursuant to the terms of the Consultation Agreement dated as of July 24, 2006 ("Agreement"), between me and Bank, I hereby designate the following beneficiary(ies) to receive any payments which may be due under such Agreement after my death.
| Primary Beneficiary |
| Secondary Beneficiary |
| Secondary Beneficiary |
| Secondary Beneficiary |
This designation hereby revokes any prior designation which may have been in effect.
| Date: ______________________________________ | ||
| (SEAL) | ||
| Xxxxxx X. Xxxxxxxxx | ||
| Witness |
| Acknowledged by: |
| Title: ____________________________________ |
| Date: ____________________________________ |
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