Exhibit 10.6
STATE OF NORTH
CAROLINA
COUNTY OF WAKE
EMPLOYEE
CONSULTATION,
POST-RETIREMENT
NON-COMPETITION
AND DEATH BENEFIT
AGREEMENT
THIS EMPLOYEE CONSULTATION,
POST-RETIREMENT NON-COMPETITION AND DEATH BENEFIT AGREEMENT
(“Agreement”) is made and entered into effective as of the 1st
day of July, 2005 (“Effective Date”), by and between
FIRST-CITIZENS BANK & TRUST COMPANY , a North
Carolina banking corporation with its principal office in Raleigh,
Wake County, North Carolina (“Employer”) and KENNETH
A. BLACK (“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 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. Consultation
Payments . Following Employee’s
“Retirement” (as defined below) from Employee’s
employment with Employer on the Retirement Date (as defined below),
Employer shall pay to Employee the sum of ONE THOUSAND NINE HUNDRED
SEVENTY-FOUR and 43/100 Dollars ($1,974.43) per month, beginning
six months and one week after Employee’s Retirement for
a period of ten (10) years following Employee’s
Retirement or until
Employee’s death, whichever first occurs
(“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 are
utilized in said month by Employer. Except as set forth below,
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 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, which willingness
will not be unreasonably withheld. 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 Employee’s rights and privileges and
obligations are only as provided in this Agreement as to matters
covered herein.
Notwithstanding the foregoing, if
Employer determines that the Consultation Payments are compensation
for other than payments for Consultation Services, and such
payments shall be subject to any and all applicable withholding,
Social Security, employment, income and other taxes or assessments,
if any, under applicable tax law, the said payments shall be
subject to the required withholdings.
If Employee should die during the
ten-year period during which Consultation Payments are being made
under this Paragraph 1, then those payments shall terminate
and future
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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 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 the Retirement Date, Employer
shall pay to Employee the sum of FIVE THOUSAND NINE HUNDRED
TWENTY-THREE and 29/100 Dollars ($5,923.29) per month, beginning
six months and one week after Employee’s Retirement for
a period of ten (10) years following Employee’s
Retirement or until Employee’s death, whichever first occurs.
Such monthly payments shall be paid for and in consideration of
Employee’s agreement in this Paragraph 2 (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
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Employee is limited to the geographic area
consisting of each county or like jurisdictional entity in which
either Employer or any banking or investment entity owned directly
or indirectly by the parent of 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
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.
Notwithstanding the foregoing, if
Employer determines that the Non-Competition Payments are
compensation for other than payments for Non-competition, and such
payments shall be subject to any and all applicable withholding,
Social Security, employment, income and other taxes or assessments,
if any, under the applicable tax law, the said payments shall be
subject to the required withholdings.
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 SEVEN
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THOUSAND EIGHT HUNDRED NINETY-SEVEN and 73/100
Dollars ($7,897.73) 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 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 (10) years. 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, if any, applicable on those
payments.
Notwithstanding the foregoing, if
Employer determines that the Consultation Payments and/or
Non-competition Payments are compensation such that the payments
are subject to any and all applicable withholding, Social Security,
employment, income and other taxes or assessments, if any, under
the applicable tax law, said payment shall be subject to the
required withholdings.
4. Death
Benefits . In
the event Employee dies while employed by Employer prior to
Employee’s Retirement Date or dies within six months and one
week after Employee’s Retirement Date, Employer will pay the
sum of SEVEN TH
