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Exhibit 10.9
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 HOPE
HOLDING CONNELL ("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 THREE HUNDRED TWENTY-EIGHT and 97/100 Dollars ($1,328.97)
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
THREE THOUSAND NINE HUNDRED EIGHTY-SIX and 91/100 Dollars
($3,986.91) 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 FIVE
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THOUSAND THREE HUNDRED FIFTEEN and 88/100 Dollars
($5,315.88) 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 FIVE
THOUSAND THREE HUNDRED FIFTEEN and 88/100 Dollars ($5,315.88) per
month for a period of ten (10) years, 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. The first payment shall be made not later than
two months following Employee’s death. Payments under
this Paragraph 4 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 law, said
payments shall be subject to the required withholdings.
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5. Forfeiture of Benefits
. This Agreement is subject to termination by Employer at any
time and without stated cause. In the event Employer shall
terminate this Agreement, Employee shall forfeit all rights to
receive any payment provided for herein. Likewise, in the event
Employee’s employment is terminated, either voluntarily or
inv
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