STATE OF NORTH CAROLINA COUNTY OF WAKE
Exhibit
10
STATE OF
NORTH CAROLINA
COUNTY OF
WAKE
RETIREMENT
AGREEMENT AND RELEASE
THIS
RETIREMENT AGREEMENT AND RELEASE (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. (“BancShares”) and XXXXX
X. XXXXX, XX. ("Associate") (individually referred to as a “Party” and
collectively referred to as the “Parties”);
W I T N E S S
E T H:
WHEREAS, Associate has been employed by the
Bank for a number of years in various capacities; and,
WHEREAS, the Bank is a wholly-owned subsidiary
of First Citizens BancShares, Inc. ("BancShares") and BancShares has additional
subsidiaries including IronStone Bank ("IronStone") and the two principal
subsidiaries have subsidiaries all of which entities are within the BancShares
Group ("BancShares Group"); and,
WHEREAS, Associate has been paid and benefits
have been provided for Associate by the Bank and Associate 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 Vice Chairman of
the Board and Chief Operating Officer of the Bank and BancShares in addition to
his other positions; and,
WHEREAS, Associate and the Bank and the
BancShares Group have mutually agreed that Associate will retire from his
employment with the BancShares Group and resign from his position as Vice
Chairman of the Board and Chief Operating Officer of the Bank and BancShares 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 Bank and Associate agree as follows:
1. RETIREMENT. Associate
retired from his employment with the Bank and resigned from all of his positions
within the BancShares Group and particularly as Vice Chairman of the Board and
Chief Operating Officer and all other officer and director positions held within
the BancShares Group effective as of January 25, 2008 (the "Retirement
Date"). The Bank and BancShares on behalf of the BancShares Group has
expressly agreed to Associate's retirement from employment on such Retirement
Date. Associate 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. Associate further
specifically recognizes and agrees that this Agreement is a full and complete
resolution, settlement, and termination of any rights or claims that Associate
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 Associate his normal salary, less
normal deductions and withholdings, through January 31, 2008, and agrees to
provide further Special Payments and consideration to Associate as set forth
below. The Bank also shall pay to Associate any accrued but unused
paid time off, less normal deductions and withholdings, calculated as of the
Retirement Date. In addition, Bank shall pay Associate the equivalent
of one month's pay on or about Effective 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. Associate is a Key Employee for purposes of Section
409A. In the event a payment due Associate under this Agreement is
subject to Section 409A, such payment shall be paid no earlier than six months
and one week after Associate's termination of employment.
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
Associate the amount of One Hundred Fifty Thousand and No/100 Dollars
($150,000.00), gross, for and in consideration of the provisions of Paragraph 7
(Covenant of Good Faith and Confidentiality) and Paragraph 10
(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"). Bank agrees to pay to Associate's attorney her reasonable
fees on the basis of her normal hourly rate for the time devoted to representing
Associate in connection with this Agreement with a cap of Ten Thousand and
No/100 Dollars ($10,000). Services will be billed to Bank c/o
Xxxxx X. Xxxx, Xx., Xxxx and Xxxxx, P.A., XX Xxx 0000,
Xxxxxxx, XX 00000-0000.
The Bank and
Associate agree that Associate has received the equipment (security system in
his home, laptop utilized by him, Blackberry, cell phone, printer, router, and
related equipment, all in his home or personally with him) requested by him and
upon the Effective Date, said electronic equipment shall become the property of
Associate. All future services after January 31, 2008, will be the
responsibility and at the cost of Associate.
5. INSURANCE
CONTINUATION. Beginning on the Retirement Date, the Bank shall
extend the group medical and dental insurance coverage provided by the Bank to
Associate and his qualified beneficiaries, as applicable, for the period from
the Retirement Date through January 31, 2008 (the "Continuation Period"),
subject to the terms and conditions (including eligibility requirements) of the
applicable insurance plan and Associate's election to continue his coverage
under the provisions of the applicable insurance plan. During this
insurance continuation period, Associate shall be responsible for payment of all
premiums, if any, for the medical and dental insurance coverage elected by
Associate for himself and his qualified beneficiaries, as applicable, at the
same premiums as then are paid by actively employed employees of the
Bank. Following the insurance continuation period, Associate 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 additional
consideration, the Bank agrees to pay to Associate on or about the Effective
Date (as defined in Paragraph 12), 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 this Agreement, whichever coverage is elected by Associate, to keep
the Associate in a like and similar insurance cost for the seven (7) month
period following January 31, 2008; provided that such amount shall be grossed-up
to cover all additional taxes incurred by Associate as a result of this
reimbursement.
6. SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN. Associate is a current Participant in a
Supplemental Executive Retirement Plan ("SERP" or "Plan") executed by the Bank
and Associate as of September 17, 2007. In accordance with the
provisions of Paragraph 16 of the Plan, the Bank and Associate 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 (as defined in Paragraph
12), under this Agreement, whichever is later, and Associate’s right to receive
benefits under the SERP shall not thereafter by subject to forfeiture or
termination by the Bank, except under the provisions of Section 5 of the SERP or
under Section 9 of this Agreement.
b. The
payment of the benefits under the SERP shall commence on March 1, 2013 unless
required to be delayed pursuant to the provisions of 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.
7. TERMINATION/CONTINUATION OF
CERTAIN RIGHTS AND BENEFITS. Associate recognizes and agrees
that payment of Associate'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, 3, 4, and 5 above, are in full settlement of any wages and
benefits owed to Associate through the Retirement Date and that, except for
Associate's rights and benefits under this Agreement, Associate's vested rights
in the Bank's benefit or retirement plans (if any), Associate’s rights to
participate in the Bank’s retiree health benefits in accordance with the terms
of the plan, and Associate's eligibility to continue certain group insurance
coverage pursuant to Associate's rights under the provisions of state law and/or
the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), to the
extent
permitted by
law, all of Associate's employment rights, wages, and benefits with the Bank,
and all entities of BancShares, shall terminate and be forfeited as of the
Retirement Date, including, without limitation, Associate's eligibility for
further payment of any salary, paid time off, sick leave, severance pay,
incentive awards, bonuses, or any other amounts. Associate further
recognizes and agrees that payment of Associate'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 of BancShares, and that the Bank
and all entities in the BancShares Group has denied and do deny any violation of
any law and any liability, and intends by such payments simply to recognize
Associate's length of service and Associate'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 Associate acknowledge and agree
that the Bank and all entities in 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 Associate has a significant interest in protecting
Associate's personal and professional reputation; and that it is in the Bank's
and the entities of the BancShares Group's and Associate's mutual best interests
to characterize their employment relationship in a positive light, and to
characterize the expiration of Associate's employment and the related payments
to be paid to Associate hereunder as having resulted from an agreement made in
good faith between Associate and the Bank. In this connection,
Associate shall not downgrade, speak adversely about, or comment derogatorily
about or in any other way make any adverse or negative indications, actions, or
comments about the Bank nor any entity in 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 of 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, or comment derogatorily about or in any other
way make any adverse or negative indications, actions, or comments about
Associate; provided, however, that the
Bank and any entity of the BancShares Group may disclose information regarding
Associate as required by applicable federal or state law or regulation and
Associate may disclose any information regarding Bank or any entity of 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 of the BancShares Group and Associate and shall not be
disclosed by either party to any third party without the prior written consent
of the other party, except to Associate'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 need to know basis for the
information required for a particular purpose only.
9. COVENANT NOT TO
COMPETE. For and in consideration of Associate's Covenant Not
to Compete as set forth in this Paragraph 9 and as consideration for the
provisions of Paragraph 10 (Covenant Not to Solicit), the Bank shall pay to
Associate the amount of Four Hundred Thousand and No/100 Dollars ($400,000.00),
gross, payable on or after the Retirement Date or the Effective Date (as defined
in Paragraph 12), whichever is later, and four (4) additional payments in the
amount of Six Hundred Thousand and No/100 Dollars ($600,000.00), gross, to be
paid on an annual basis, with the first such payment to be made on March 1,
2009, and each successive payment to be made on the first day of March
thereafter, until either (i) a material breach of this Agreement by Associate,
(ii) Associate's death, or (iii) March 1, 2012, whichever first occurs;
provided, however, that if the Bank elects to terminate payments pursuant to
subsection 9(i) of this Agreement, the Bank may only do so after first complying
with the notice and mediation provisions of paragraph 14 of this
Agreement.
Associate
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 of the
BancShares
Group is
performing at the time of Associate's separation from service with the Bank, nor
will Associate 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 of the BancShares
Group, whether done directly or indirectly, in ownership, consultation,
employment or otherwise. This Covenant Not to Compete by Associate 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 Associate's separation from service, shall exist for and during the term
of all payments to be made under Paragraphs 9 and 10, whether made directly by
the Bank or as otherwise provided herein, and shall not prevent Associate 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 Associate recognize that during the
course of Associate's employment with the Bank, Associate 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 Associate further acknowledge that
Associate 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 Associate's solicitation of business from such customers during the
term of the Covenant Not to Compete set forth in this Agreement, Associate 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 Associate's separation from
service, which is a customer or recognized prospective customer of the Bank or
any entity within the BancShares Group, on the Retirement
Date. Further, Associate shall not employ, or seek to employ, any
employee of the Bank or any entity of the BancShares Group, or induce any such
person to leave his or her employment for the period of the Covenant Not to
Compete as specified in Paragraph 9.
11. COVENANT OF
NONDISCLOSURE. During the course of Associate's employment
with the Bank, Associate has been given and has obtained various confidential
information concerning the Bank, and 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 Associate 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 Associate 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 Associate's use,
disclosure, or exploitation of customer contacts and the Information, Associate
agrees that Associate 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 Associate from the Bank or any one or more of the entities of the
BancShares Group, developed or received by Associate during employment with the
Bank or the BancShares Group entities, or developed or received by Associate
during the course of Associate's association with the Bank or any of the
entities of the BancShares Group, relating to the business affairs of the Bank
or any of the entities of the BancShares Group, or the business or personal
affairs of the shareholders, directors, officers, associates, 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. Associate 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 Associate's specific contractual rights and benefits under this Agreement,
and any rights Associate has for indemnity for any actions arising prior to his
resignation under any director and officer indemnity provided pursuant to the
North Carolina law or under the Bank’s charter or bylaws existing on the
Retirement Date, and except as prohibited by law, Associate 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 successors and assigns (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., on account of,
or in any way arising from the employment or any other relationship between
Associate 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, Associate agrees that, to the extent permitted by law and except
as otherwise required by law, neither Associate nor any of Associate'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 Associate may have or may
have had against any Releasee in connection with Associate'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 Associate's
employment with the Bank. Associate further agrees that, except as
prohibited by law, Associate 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 Associate's employment or any
other relationship with the Bank or any of the entities within the BancShares
Group.
Associate
understands and agrees that with respect to any rights or claims of Associate
under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the
"Act"): (a) no rights or claims are waived by Associate that may
arise from an event or transaction that occurs after the date this
Agreement is executed by Associate; (b) Associate has been advised in writing to
consult with an attorney prior to executing this Agreement; (c) Associate has
been advised that Associate has twenty-one (21) days from Associate's receipt of
this Agreement, unless extended in writing by the Bank, to consider the release
provisions of this Agreement; (d) Associate has been advised that Associate has
seven (7) days following Associate'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 Associate's execution hereof has
expired (the "Effective Date").
13. ENFORCEMENT.
(a) The
Parties acknowledge and agree that the mutual covenants and agreements of
Associate, the Bank and BancShares Group contained in this Agreement are a
material part of this Agreement. Payment of the Special Payments
referenced in Paragraph 4 and payment of the
amounts referenced in Paragraph 9 of this Agreement are conditioned upon
Associate's adherence to these covenants and agreements. Associate’s
agreement under Paragraphs 1, 8, 9, 10, 11, and 12 is conditioned upon the
Bank’s and BancShares Group’s adherence to their covenants and agreements
herein. Associate acknowledges and agrees that should Associate
materially breach any of the covenants and agreements contained in this
Agreement, Associate shall be required to return to the Bank the entire amount
of the payments paid to Associate for Associate's execution of this
Agreement. Further, Associate 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 Associate's breach of the terms of this Agreement, or
both. Return of any such amounts pursuant to this Paragraph 13
shall not entitle Associate to renew any claim Associate 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 Associate
from any and all losses, costs, or expenses, including reasonable attorneys'
fees, which Associate may incur in recovering funds due or damages incurred as a
result of the Bank's or BancShares Group’s breach of the terms of this
Agreement.
(b) In
the event of Associate's breach of any covenant or agreement of Associate
contained in this Agreement, and in the event of the Bank’s or 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 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 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 Associate's breach of any covenant or
agreement of Associate contained in this Agreement, the Bank will provide to
Associate notice of facts sufficient to make out a prima facie case for
violation of the Agreement and Associate will have sixty (60) days from receipt
of the Bank's notice to cure the breach. If a dispute arises between
the Bank and Associate over whether Associate breached any covenant or agreement
contained in this Agreement, the Bank and Associate 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. Associate 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 and the amounts paid to
Associate pursuant to Paragraphs 9 and 10. Associate 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 Associate'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
Associate 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 Associate.
17. BINDING
EFFECT. The Bank and Associate recognize and agree that this
Agreement is binding upon the Bank and Associate and its/Associate's respective
heirs, representatives, successors, and assigns, as
applicable. Associate further acknowledges that Associate has
carefully read this Agreement, which contains a release, and knows and
understands the contents hereof and voluntarily executes the same as Associate's
free act and deed, and that the provisions contained herein constitute the
entire agreement between the parties hereto, and that the terms of this
Agreement are contractual and not a mere recital.
18. GOVERNING LAW AND
VENUE. The Bank and Associate 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 Associate agree that any
action 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 Associate 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 Associate,
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 Internal Revenue Code (the “Code”) and all regulations, guidance,
or other interpretative authority thereunder (the “Section 409A Requirements”),
the Bank and Associate 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 Code Section 409A purposes, the Bank shall maintain, to the maximum extent
practicable, the original intent and economic benefit of this Agreement without
subjecting Associate 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 Associate.
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 Associate, to him at the last home
address listed in the Bank’s records, with a copy to his
attorney, Xxxxxxxx Xxxx Kenyon, Smith, Anderson, Blount, Xxxxxxx,
Xxxxxxxx & Xxxxxxxx, X.X. Xxx 0000, Xxxxxxx, XX 00000-0000; and
(b) If to the Bank or to BancShares Group, to: Xxxxx X.
Holding, Attention: Xxxxx Xxxxx, X.X. Xxx 000, Xxxxxxx, XX
00000, with a copy to their attorney, Xxxxx X. Xxxx, Xx., Xxxx and
Xxxxx, P.A., XX Xxx 0000, 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.
[Remainder
of page intentionally left blank. Signatures follow.]
IN TESTIMONY WHEREOF, the Bank has caused this
instrument to be executed in its corporate name by the Chairman of the Board,
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 Associate has hereunto set Associate's hand and adopted as Associate's seal
the typewritten word "SEAL" appearing beside Associate's name, all effective as
of the Effective Date.
FIRST-CITIZENS BANK & TRUST
COMPANY
By: /s/ XXXXX X.
HOLDING
Xxxxx
X. Holding
Chairman of the Board
FIRST-CITIZENS BANCSHARES, INC.
By: /s/ XXXXX X.
HOLDING
Xxxxx
X. Holding
Chairman
of the Board
ASSOCIATE:
/s/ XXXXX X. XXXXX,
XX. (SEAL)
Xxxxx
X. Xxxxx, Xx.
February 1,
2008
Date of Execution by
Associate
