Exhibit
10.4
STATE OF NORTH CAROLINA
COUNTY OF WAKE
AMENDED AND RESTATED EMPLOYEE
DEFERRED COMPENSATION,
CONSULTATION,
POST-RETIREMENT NON-COMPETITION
AND DEATH BENEFIT AGREEMENT
THIS AGREEMENT is made, entered into and effective as of the
1 st day of March, 2004, by and between
FIRST-CITIZENS BANK & TRUST COMPANY , a North Carolina
banking corporation with its principal office in Raleigh, North
Carolina (“Employer”) and FRANK B. HOLDING, JR.
(“Employee”);
W I T N E S S E T
H
WHEREAS , Employee is an employee of Employer who has
provided guidance, leadership and direction in the growth,
management and development of Employer and has learned trade
secrets, confidential procedures and information, and technical and
sensitive plans of Employer; and,
WHEREAS , Employer desires to limit Employee’s
availability to other employers or entities which are in
competition with Employer following Employee’s retirement
from employment with Employer; and,
WHEREAS , Employer has offered to Employee a
non-competition arrangement and a deferred
compensation/consultation arrangement together with a death benefit
arrangement for Employee’s designated beneficiary or estate,
as applicable, and the parties hereto have reached an agreement
concerning those arrangements and other matters contained herein
and desire to set forth the terms and conditions
thereof.
NOW, THEREFORE
, for and in consideration of the
mutual promises and undertakings herein set forth, Employee and
Employer hereby agree as follows:
1. Deferred
Compensation/Consultation Payments . Following Employee’s
“Retirement” (as defined below) from his employment
with Employer on or before the Retirement Date (as defined below),
Employer shall pay to Employee the sum of Three Thousand Ninety-One
and 52/100 Dollars ($3,091.52) per month, beginning not later than
two months after Employee’s Retirement, for a period of ten
years following Employee’s Retirement or until his death,
whichever first occurs (“Deferred Compensation/Consultation
Payments”). Such monthly payments shall be paid for and in
consideration of Employee’s support, sponsorship, advisory
and other services provided to Employer (“Consultation
Services”); such sum to be payable to Employee whether or not
Employee’s Consultation
Services have been utilized by Employer. Except
as set forth below, Deferred Compensation/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.
For and in consideration of said
monthly Deferred Compensation/Consultation Payments to Employee,
Employee will provide Consultation Services as an independent
contractor to Employer, as and when Employer may request, which
services may be provided with respect to all phases of
Employer’s business and particularly those phases in which
Employee has particular expertise and knowledge. Employee’s
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 Employee is reasonably available
and willing. Employer shall make available to Employee such office
space and equipment as are reasonably necessary for Employee to
carry out the obligations under this Agreement and shall reimburse
Employee for any extraordinary expenses incurred in carrying out
the obligations hereunder.
Effective as of Employee’s
Retirement date, Employee and Employer agree that Employee shall
be, under the terms of this Agreement, an independent contractor,
and Employee agrees that his rights and privileges and his
obligations are as provided in this Agreement as to matters covered
herein.
Notwithstanding the foregoing, if
Employer determines that the Deferred Compensation/Consulting
Payments will constitute deferred compensation rather than payments
for Consultation Services, such payments shall be subject to any
and all applicable withholding, Social Security, employment, income
and other taxes or assessments, if any, which apply to deferred
compensation under the applicable tax law.
If Employee should die during the
ten-year period during which Deferred Compensation/Consultation
Payments are being made under this Paragraph 1, then those payments
shall terminate and future payments, if any, shall be made to
Employee’s designated beneficiary(ies) or Employee’s
estate in accordance with the provisions of Paragraph 3 of this
Agreement.
As used in this Agreement, the term
“Retirement” shall mean a termination of
Employee’s employment with Employer which is treated as a
“retirement” under the terms of Employer’s
defined benefit pension plan, and which occurs no later than the
last day of the calendar month in which Employee attains the age of
sixty-five (65) (the “Retirement Date”), or such other
termination of Employee’s employment as Employer and Employee
shall agree in writing to treat as “Retirement” for
purposes of this Agreement. Employer and Employee hereby
acknowledge that compulsory retirement is not enforceable except as
provided
2
by law. Employer and Employee further agree that
no provision herein shall be construed as requiring
Employee’s retirement except as may now or hereafter be
permitted by law.
2. Non-competition
Payments . Following
Employee’s Retirement from his employment with Employer on or
before the Retirement Date, Employer shall pay to Employee the sum
of Nine Thousand Two Hundred Seventy-Four and 56/100 Dollars
($9,274.56) per month, beginning not later than two months after
Employee’s Retirement, for a period of ten years following
Employee’s Retirement or until his death, whichever first
occurs. Such monthly payments shall be paid for and in
consideration of Employee’s agreement in this Paragraph 2
below (Employee’s “Covenant Not To Compete”).
Payments hereunder (“Non-competition Payments”) 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 those payments.
For and in consideration of monthly
Non-competition Payments to Employee, Employee 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
Employer is performing at the time of Employee’s Retirement,
nor will Employee 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 Employer, whether done directly or indirectly, in ownership,
consultation, employment or otherwise. Employee agrees not to
reveal to outside sources, without the consent of Employer, any
matters, the revealing of which could, in any manner, adversely
affect or disclose Employer’s business or any part thereof,
unless required by law to do so. This Covenant Not To Compete by
Employee is limited to the geographic area consisting of the
counties in which Employer shall maintain a banking or other
business office at the time of Employee’s Retirement, shall
exist for and during the term of all payments to be made under this
Paragraph 2, whether made directly by Employer or as otherwise
provided herein, and shall not prevent Employee 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
Employer.
Employee acknowledges that the
remedy at law for breach of Employee’s Covenant Not To
Compete will be inadequate and that Employer shall be entitled to
injunctive relief as to any violation thereof; however, nothing
herein shall be construed as prohibiting Employer from pursuing any
other remedies available to it, in addition to injunctive relief,
whether at law or in equity, including the recovery of damages. In
the event Employee shall breach any condition of Employee’s
Covenant Not To Compete, then Employee’s right to any of the
payments becoming due under Paragraphs 1 and 2 of this Agreement
after the date of such breach shall be forever forfeited and the
right of Employee’s designated beneficiary(ies) or
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Employee’s estate to any payments under
this Agreement shall likewise be forever forfeited. This forfeiture
is in addition to and not in lieu of any of the above-described
remedies of Employer and shall be in addition to any injunctive or
other relief as described herein. Employee further acknowledges
that any breach of Employee’s Covenant Not To Compete shall
be deemed a material breach of this Agreement.
If Employee should die during the
ten-year period during which Non-competition Payments are being
made under this Paragraph 2, then those payments shall terminate
and future payments, if any, shall be made to Employee’s
designated beneficiary(ies) or Employee’s estate in
accordance with the provisions of Paragraph 3 of this
Agreement.
3. Continuation of
Payments . Following
Employee’s death during the original ten-year period of
payments under Paragraphs 1 and 2 above, the sum of Twelve Thousand
Three Hundred Sixty-Six and 08/100 Dollars ($12,366.08) per month
shall be paid to such individual or individuals as Employee shall
have designated in writing as his beneficiary(ies) as provided in
Paragraph 11 below or, in the absence of such designation, to
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 original
ten-year period. Once the Deferred Compensation/Consultation
Payments and Non-competition Payments have begun, whether paid by
Employer or as otherwise provided herein, the maximum payment
period under this Agreement shall be ten years. Payments hereunder
shall be payable each month without
