Exhibit
10.2(a)
EMPLOYEE DEATH BENEFIT AND POST-RETIREMENT
NON-COMPETITION AND
CONSULTATION AGREEMENT
THIS AGREEMENT, made as of the 1st
day of January, 1986, by and between FIRST-CITIZENS BANK &
TRUST COMPANY, a North Carolina banking corporation with its
principal office in Raleigh, Wake County, North Carolina
(hereinafter referred to as “Employer”); and FRANK B.
HOLDING (hereinafter referred to as
“Employee”);
W I T N E S S E T H :
WHEREAS, Employee has provided
long-time guidance, leadership and direction in the growth,
management and development of Employer, during which time Employee
has learned trade secrets, confidential procedures and information,
and technical and sensitive plans of Employer; and,
WHEREAS, Employer values the
efforts, abilities and accomplishments of Employee as an important
member of management and desires to continue to have
Employee’s experience and knowledge available to it following
Employee’s retirement from employment with 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, as part of a plan
adopted for a class of employees of Employer, has offered to
Employee a noncompetition arrangement together with a limited,
when-called, independent contractor consultation service
arrangement and a death benefit arrangement for Employee’s
designated beneficiary or Estate, as applicable, and the parties
hereto have reached an agreement concerning the independent
contractor consulting relationship, the noncompetition arrangement,
the death benefit arrangement 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, the parties hereto do agree as follows:
1. RETIREMENT DATE . The term
“Retirement Date”, as used herein, shall be defined for
purposes of this Agreement, as the last day of the calendar month
in which Employee attains the age of sixty-five (65) or as such
date prior or subsequent thereto as shall be agreed upon between
Employer and Employee.
Employer and Employee hereby
acknowledge that compulsory retirement before attaining age seventy
(70) 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 before attaining age
seventy (70) except as may now or hereafter be permitted by law;
however, Employee acknowledges Employer’s continuing policy,
in an effort to provide opportunities and continuity, to encourage
retirement at age sixty-five (65) and to require retirement at age
sixty-five (65) where permissible by law.
2. DEATH BENEFITS . In the
event Employee dies while employed by Employer prior to
Employee’s Retirement Date, Employer will pay the sum of
Fifty-Seven Thousand Three Hundred Forty-One and No/100 Dollars
($57,341.00) per year, payable in monthly installments of Four
Thousand Seven Hundred Seventy-Eight and 41/100 Dollars ($4,778.41)
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.
3. CONSULTATION PAYMENTS . In
the event Employee retires from employment on Employee’s
Retirement Date, Employee shall be paid by Employer the sum of One
Thousand One Hundred Ninety-Four and 58/100 Dollars ($1,194.58) 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
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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 Payment to Employee, Employee will provide
support, sponsorship, advisory and 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.
If Employee should die during said
ten (10) year period, payments under this Paragraph shall
terminate. Future payments, if any, to Employee’s designated
beneficiary or Employee’s Estate shall be made in accordance
with the provisions of Paragraph 5 of this Agreement.
4. NON-COMPETITION PAYMENTS .
In the event Employee retires from employment on Employee’s
Retirement Date, Employee shall be paid by Employer the sum of
Three Thousand Five Hundred Eighty-Three and 83/100 ($3,583.83) 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. Non-Competition payments hereunder shall be
payable each month without deductions and Employee agrees to be
solely responsible for the payment of all on income or other taxes
or assessments, if any, applicable on said payment.
For and in consideration of said
monthly Non-Competition Payment to Employee, Employee agrees that
he will not become an officer or employee of, provide any
consultation to
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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 Employee’s
Retirement Date nor w
