EXHIBIT 10.1
STATE OF NORTH
CAROLINA
COUNTY OF
WAKE
RESIGNATION, RETIREMENT AND RELEASE
AGREEMENT
THIS RESIGNATION, RETIREMENT AND RELEASE
AGREEMENT (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., a Delaware corporation with its principal place of business
in Raleigh, Wake County, North Carolina ("BancShares") and
IRONSTONE BANK, an OTS savings bank with its principal place of
business in Raleigh, Wake County, North Carolina ("IronStone"); and
LEWIS R. HOLDING, a resident of Nassau, Bahamas ("Holding")
(individually referred to as "Holding") and (Bank, BancShares,
IronStone and Holding collectively referred to as the "Parties") on
this, the 25th day of February, 2009;
W I T N E S S E T H:
WHEREAS, Holding has been employed by the Bank
for a number of years in various capacities; and,
WHEREAS, the Bank is a wholly-owned subsidiary
of BancShares, and BancShares has additional subsidiaries,
including IronStone, and the two principal subsidiaries have
subsidiaries, all of which entities are within the BancShares Group
("BancShares Group"); and,
WHEREAS, Holding has been paid and benefits have
been provided for by the Bank, and Holding 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 Chairman of the Board of the Bank, BancShares and
IronStone, in addition to his other positions; and,
WHEREAS, Holding has expressed his desire to
resign and retire from the BancShares Group, and Holding and the
BancShares Group have mutually agreed that Holding will retire from
his employment with the BancShares Group and resign from all of his
positions with the BancShares Group 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 BancShares Group
and Holding agree as follows:
1. RESIGNATION AND
RETIREMENT . Holding resigns and retires from his
employment with the Bank and resigns from all of his positions
within the BancShares Group and particularly as Chairman of the
Board and all other officer and director positions held within the
BancShares Group effective as of February 25, 2009 (the "Retirement
Date"). The Bank and BancShares, on behalf of the
BancShares Group, have expressly agreed to Holding's retirement
from employment on such Retirement Date. Holding
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. Holding
further specifically recognizes and agrees that, subject to the
terms and conditions of this Agreement, this Agreement is a full
and complete resolution, settlement and termination of any rights
or claims that Holding 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 Holding his
normal salary, less normal deductions and withholdings, through
February 28, 2009, and the Bank agrees to provide further
Special Payments (as hereinafter defined) and consideration to
Holding as set forth below. The Bank also shall pay to
Holding any accrued but unused paid time off, less normal
deductions and withholdings, calculated as of the Retirement
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 . Holding is a Key Employee for
purposes of Section 409A. In the event a payment due
Holding under this Agreement is subject to Section 409A, such
payment shall be paid no earlier than six months and one week after
Holding's Retirement Date.
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 Holding the amount of One Hundred
Thousand and No/100 Dollars ($100,000.00), gross, for and in
consideration of the provisions of Paragraph 8 (Covenant of Good
Faith and Confidentiality), Paragraph 9 (Covenant Not to
Compete), Paragraph 10 (Covenant Not to Solicit)
and Paragraph 11 (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").
In addition, Bank shall provide for Holding, on
a continuing basis, during the term of his natural life or until
he, or someone acting with legal authority for him, terminates this
Agreement, whichever is sooner, each of the following:
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security
systems and continuation of the security service currently provided
to him at [address redacted] and at [address redacted], provided
that such services provided with respect to each individual
residence shall automatically terminate upon the sale of such
residence;
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personal
security, including driver assistance, for Holding as it has in the
past;
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storage space
that Holding is currently utilizing under the current lease
arrangements; and
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current office
space on the 9th floor of the First Citizens Center at
4300 Six Forks Road, Raleigh, North Carolina 27609,
together with reasonable secretarial assistance.
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These items and services in
subparagraphs a, b, c and d shall be provided at no cost to
Holding.
The Bank and Holding agree that Holding has
received and has in his possession the electronic equipment
utilized by him in his home or on his person, including, but not
limited to, a Blackberry, cell phone, printer/copiers, and related
equipment and all other electronic equipment which has been
provided to him and which he now has in his
possession. Upon the Effective Date of this Agreement,
said electronic equipment shall become the property of Holding, and
all future services with regard to said electronic equipment will
be the responsibility of and paid for by Holding.
5. INSURANCE
CONTINUATION . Beginning on the Retirement Date, the
Bank shall extend the group medical and dental insurance coverage
provided by the Bank to Holding and his qualified beneficiaries, as
applicable, for the period from the Retirement Date through the
Effective Date (the "Continuation Period"), subject to the terms
and conditions (including eligibility requirements) of the
applicable insurance plan and Holding's election to continue his
coverage under the provisions of the applicable insurance
plan. During this Continuation Period, Holding shall be
responsible for payment of all premiums, if any, for the medical
and dental insurance coverage elected by Holding for himself and
his qualified beneficiaries, as applicable, at the same premiums as
then are paid by actively employed employees of the
Bank. Following said Continuation Period, Holding 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
hereinafter defined).
As additional consideration, the Bank agrees to
pay to Holding on or about the Effective Date 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
execution of this Agreement, whichever coverage is elected by
Holding, to keep Holding in a like and similar insurance cost for
the seven (7) month period following the Effective Date; provided
that such amount shall be grossed-up to cover all additional taxes
incurred by Holding as a result of this reimbursement.
6. SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN . Holding is a current
participant in an Executive Consultation, Separation From Service
and Death Benefit Agreement ("SERP" or "Plan") executed by the Bank
and Holding as of February 5, 2009. In accordance with
the provisions of Paragraph 16 of the Plan, the Bank and Holding
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 under this Agreement,
whichever is later, and Holding’s right to receive benefits
under the SERP shall not thereafter be subject to forfeiture or
termination by the Bank, except under the provisions of
Paragraph 5 of the SERP or under Paragraph 9 of this
Agreement.
b. The payment of the
benefits under the SERP shall commence on or about August 17,
2009, unless required to be delayed, or may be started earlier
pursuant to the provisions of the SERP or 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.
d. Nothing herein
shall be, nor be construed to be, a payment or benefit in lieu of
any payment or benefit due to Holding under the SERP, and Holding
shall be entitled to any and all payments or benefits due under
this Agreement and the SERP.
7.
TERMINATION/CONTINUATION OF CERTAIN RIGHTS AND BENEFITS
. Holding recognizes and agrees that payment of
Holding'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, 4 and 5 above, are in full
settlement of any wages and benefits owed to Holding through the
Retirement Date and that, except for Holding's rights and benefits
under this Agreement, Holding's vested rights in the Bank's benefit
and retirement plans (if any), Holding's rights under the SERP,
Holding’s rights to participate in the Bank’s retiree
health benefits in accordance with the terms of the plan and
Holding's eligibility to continue certain group insurance coverage
pursuant to Holding's rights under the provisions of state law
and/or COBRA, to the extent permitted by law, all of Holding's
employment rights, wages and benefits with the Bank and the
entities within the BancShares Group, shall terminate and be
forfeited as of the Retirement Date, including, without limitation,
Holding's eligibility for further payment of any salary, paid time
off, sick leave, severance pay, incentive awards, bonuses or any
other amounts. Holding further recognizes and agrees
that payment of Holding'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
within the BancShares Group, and that the Bank and all entities
within the BancShares Group have denied, and do deny, any violation
of any law and any liability, and intends by such payments simply
to recognize Holding's length of service and Holding'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
Holding acknowledge and agree that the Bank and all entities within
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 Holding has a significant
interest in protecting Holding's personal and professional
reputation; and that it is in the Bank's and the entities within
the BancShares Group's and Holding's mutual best interests to
characterize their employment relationship in a positive light, and
to characterize the expiration of Holding's employment and the
related payments to be paid to Holding hereunder as having resulted
from an agreement made in good faith between Holding and the
Bank. In this regard, Holding shall not downgrade, speak
adversely about, comment derogatorily about or in any other way
make any adverse or negative indications, actions or comments about
the Bank, nor any entity within 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 within 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, comment derogatorily about or in
any other way make any adverse or negative indications, actions or
comments about Holding; provided , however , that the
Bank and any entity within the BancShares Group may disclose
information regarding Holding as required by applicable federal or
state law or regulation, and Holding may disclose any information
regarding Bank or any entity within 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 within the BancShares Group
and Holding and shall not be disclosed by either party to any third
party without the pri
