Exhibit 10
STATE OF NORTH CAROLINA
COUNTY OF WAKE
SEPARATION AGREEMENT AND
RELEASE
THIS SEPARATION AGREEMENT AND
RELEASE (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”);
and Joseph A. Cooper, Jr., a resident of Wake County, North
Carolina (“Associate”);
W I T N E S S E T H:
WHEREAS, Associate is employed by
the Bank as a Technology/Operations Executive with the Bank’s
Technology and Operations Department in Raleigh, Wake County, North
Carolina; and
WHEREAS, Associate and the Bank have
agreed that Associate’s employment with the Bank will
terminate effective as of June 17, 2009 (the “Separation
Date”), and the parties have reached an arrangement as to
such separation from employment with the Bank, 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 Bank
and Associate agree as follows:
1. SEPARATION .
Associate’s employment with the Bank shall terminate on the
Separation Date, and Associate shall have no further authority as
an employee or agent of the Bank. Associate specifically recognizes
and agrees that this Agreement is a full and complete resolution,
settlement, and termination of any rights or claims that Associate
may have had, or alleges to have had, to any further employment
with the Bank, its subsidiaries, or affiliates, including but not
limited to its holding company, First Citizens BancShares, Inc.
(“BancShares”), and BancShares’ subsidiaries and
affiliates, following the Separation Date.
2. SALARY AND PAID TIME OFF
PAY . The Bank shall pay to Associate Associate’s normal
salary, less normal deductions and withholdings, through the
Separation Date, and agrees to provide further special payments and
consideration to Associate as set forth below. The Bank also shall
pay to Associate any accrued but unused paid time off, less normal
deductions and withholdings, calculated as of the Separation
Date.
3. SPECIAL SEPARATION
PAYMENTS . On or after the Separation Date or the Effective
Date (as defined in Paragraph 7), whichever occurs later, the Bank
shall pay to Associate the amount of Two Hundred Ninety-One
Thousand Four Hundred Nineteen and 80 / 100 Dollars
($291,419.80), less normal withholdings, for and in consideration
of the
provisions of Paragraph 5 (Covenant of Good
Faith and Confidentiality), Paragraph 6 (Covenant of
Nonsolicitation and Nondisclosure), and the other terms and
conditions of this Agreement, and the amount of One Hundred
Twenty-Four Thousand Eight Hundred Ninety-Four and
20
/ 100 Dollars
($124,894.20), less normal withholdings, for and in consideration
of the provisions of Paragraph 7 (Release) (collectively, the
“Special Separation Payments”).
4. TERMINATION/CONTINUATION OF
CERTAIN RIGHTS AND BENEFITS . Associate recognizes and agrees
that payment of Associate’s salary, payment of accrued but
unused paid time off, and payment of the Special Separation
Payments, as described in Paragraphs 2 and 3 above, are in
full settlement of any wages and benefits owed to Associate through
the Separation Date and that, except for Associate’s rights
and benefits under this Agreement, Associate’s vested rights
in the Bank’s benefit or retirement plans (if any), and
Associate’s eligibility to continue certain group insurance
coverage pursuant to Associate’s rights under the provisions
of state law and/or the Consolidated Omnibus Budget Reconciliation
Act (“COBRA”), to the extent permitted by law, all of
Associate’s employment rights, wages, and benefits with the
Bank, and all subsidiaries and affiliates of the Bank, shall
terminate and be forfeited as of the Separation Date, including,
without limitation, Associate’s eligibility for further
payment of any salary, paid time off, personal leave, sick leave,
severance pay, incentive awards, bonuses, or any other amounts.
Associate further recognizes and agrees that payment of
Associate’s salary, payment of accrued but unused paid time
off, and payment of the Special Separation Payments by the Bank are
not to be construed as an admission of liability on the part of the
Bank or its subsidiaries or affiliates, and that the Bank has
denied and denies any violation of any law and any liability, and
intends by such payments simply to recognize Associate’s
length of service and Associate’s separation from employment,
and to avoid the time and costs of any legal
proceedings.
5. COVENANT OF GOOD FAITH AND
CONFIDENTIALITY . The Bank and Associate acknowledge and agree
that the Bank and its subsidiaries and affiliates 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 Associate has a significant interest in protecting
Associate’s personal and professional reputation; and that it
is in the Bank’s and Associate’s mutual best interests
to characterize their employment relationship in a positive light,
and to characterize the expiration of Associate’s employment
and the related payments to be paid to Associate hereunder as
having resulted from an agreement made in good faith between
Associate and the Bank. In this connection, Associate shall not
downgrade, speak adversely about, or comment derogatorily about or
in any other way make any adverse or negative indications, actions,
or comments about the Bank, its subsidiaries or affiliates, its
and
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their successors and assigns, or the
shareholders, directors, officers, employees, associates, agents,
or attorneys of said entities, and the Bank shall instruct its
management employees to refrain from downgrading, speaking
adversely about, or commenting derogatorily about or in any other
way making any adverse or negative indications, actions, or
comments about Associate; provided , however , that
the Bank may disclose information regarding Associate’s
performance 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
and Associate and shall not be disclosed by either party to any
third party without the prior written consent of the other party,
except to Associate’s immediate family and/or to legal or
accounting professionals or financial or regulatory institutions or
as required by federal or state laws or regulations, on a need to
know basis for the information required for a particular purpose
only.
6. COVENANTS OF NONSOLICITATION
AND NONDISCLOSURE .
(a) During the course of
Associate’s employment with the Bank, Associate has been
given and has obtained various confidential information concerning
the Bank, BancShares, their subsidiaries and affiliates, the
shareholders, directors, officers, associates, employees, and
agents of said entities, and their customers, prospective
customers, services, trade secrets, proprietary information,
personnel information, and other information concerning their
business (collectively, the “Information”), all of
which constitute valuable assets and privileged information of the
Bank, which Information is particularly sensitive due to the
fiduciary responsibilities and public trust inherent in the
Bank’s business. The Bank and Associate acknowledge that the
Bank has invested, and shall continue to invest, considerable
amounts of time, effort, and resources in developing such valuable
assets and Information, and that disclosure by Associate of such
assets and Information to the public or to any other person or
entity, regardless of how insignificant such assets or Information
may seem, would cause irreparable harm, damage, and loss to the
Bank.
To protect the Bank from
Associate’s use, disclosure, or exploitation of customer
contacts and the Information, Associate agrees that Associate shall
not do any of the following without the Bank’s prior written
consent (which may be withheld in the Bank’s sole
discretion):
(i) Covenant of
Nonsolicitation . For a period of six (6) months following
the Separation Date, either directly, indirectly, or through any
person or entity:
(A) Solicit or accept any business
in any way related or similar to the Bank’s business from any
person or business entity within the Restricted Territory who or
which is or wa
