STATE OF NORTH CAROLINA
COUNTY OF WAKE
SECOND AMENDMENT OF EMPLOYEE DEATH
BENEFIT AND POST-RETIREMENT
NONCOMPETITION AND CONSULTATION AGREEMENT
THIS SECOND AMENDMENT OF EMPLOYEE DEATH BENEFIT AND
POST-RETIREMENT NONCOMPETITION AND CONSULTATION AGREEMENT ("Second Amendment"),
made and entered into and effective as of the 1st day of January, 1999, 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, as amended by a First Amendment of Employee Death Benefit and
Post-Retirement Noncompetition and Consultation Agreement, dated as of January
29, 1996, both of which are incorporated herein by reference (hereinafter
referred to collectively 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 III of such
benefit plan, pursuant to 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 Second 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 One Hundred Four Thousand Eight Hundred Fifty
and No/100 Dollars ($104,850.00) per year, payable in monthly
installments of Eight Thousand Seven Hundred Thirty-Seven and
50/100 Dollars ($8,737.50) 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:
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"3. CONSULTATION PAYMENTS. In the event Employee retires from
employment on Employee's Retirement Date, Employee shall be
paid by Employer the sum of Two Thousand One Hundred
Eighty-Four and 37/100 Dollars ($2,184.37) 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:
"4. NONCOMPETITION PAYMENTS. In the event Employee retires
from employment on Employee's Retirement Date, Employee shall
be paid by Employer the sum of Six Thousand Five Hundred
Fifty-Three and 13/100 Dollars ($6,553.13) 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. Paragraph 5 of the Agreement hereby is deleted in its
entirety and the following replacement Paragraph 5 is inserted in lieu thereof:
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"5. CONTINUATION OF PAYMENTS. Upon Employee's death during
said ten (10) year period of payments hereunder, the sum of
Eight Thousand Seven Hundred Thirty-Seven and 50/100 Dollars
($8,737.50) 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."
5. All of the remaining terms and conditions of the Agreement
which are not expressly amended by this Second Amendment shall remain in full
force and effect.
IN TESTIMONY WHEREOF, Employer has caused this Second
Amendment to be executed in its corporate name by its President, attested by its
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.
---------------------------------
Xxxxxxx X. Xxxx, Xx., President
Attest:
/s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx, Secretary
/s/ Xxxxx X. Xxxxxxx (SEAL)
---------------------------------
Xxxxx X. Xxxxxxx
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