W I T N E S S E T H:
Exhibit 10.2(b)
STATE OF NORTH CAROLINA
COUNTY OF WAKE
FIFTH AMENDMENT OF EMPLOYEE
DEATH BENEFIT AND POST-RETIREMENT
NONCOMPETITION AND CONSULTATION AGREEMENT
THIS FIFTH AMENDMENT OF EMPLOYEE DEATH BENEFIT AND POST-RETIREMENT NONCOMPETITION AND CONSULTATION AGREEMENT (Fifth Amendment), made and entered into and effective as of the 28th day of October, 2002 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 (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, in recognition of Employees contribution to the growth, management and development of Employer and in order to limit Employees availability to other employers or entities in competition with Employer following Employees retirement from employment with Employer, Employer and Employee entered into that certain Employee Death Benefit and Post-Retirement Noncompetition and Consultation Agreement, dated as of January 1, 1986, as amended by a First Amendment of Employee Death Benefit and Post-Retirement Noncompetition and Consultation Agreement, dated as of August 23, 1989, a Second Amendment of Employee Death Benefit and Post-Retirement Noncompetition and Consultation Agreement, dated as of April 27, 1992, a Third Amendment of Employee Death Benefit and Post-Retirement Noncompetition and Consultation Agreement, dated as of January 24, 1994, and a Fourth Amendment of Employee Death Benefit and Post-Retirement Noncompetition and Consulting Agreement, dated as of October 26, 1998, all of which are incorporated herein by reference (hereinafter referred to collectively as the Agreement), which Agreement was executed pursuant to a benefit plan adopted by Employer as of January 1, 1986, for a class of senior management employees of Employer; and,
WHEREAS, Employer now desires to increase the benefits payable to Employee as set forth in the Agreement by further amending said Agreement pursuant to Paragraph 12 thereof, such increased benefits to be effective as of the date of this Fifth Amendment.
NOW, THEREFORE, for and in consideration of the mutual promises and undertakings herein set forth, the parties hereto do agree as follows:
1. Paragraph 2 of the Agreement hereby is deleted in its entirety and the following replacement Paragraph 2 is inserted in lieu thereof:
2. DEATH BENEFITS. In the event Employee dies while employed by Employer prior to Employees Retirement Date, Employer will pay the sum of Three Hundred Thirty-Four Thousand Eight Hundred Forty Nine and No/100 Dollars ($334,849.00) per year, payable in monthly installments of Twenty-Seven Thousand Nine Hundred Four and 08/100 Dollars ($27,904.08) 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 Employees 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.
2. The first paragraph of Paragraph 3 of the Agreement hereby is deleted in its entirety and the following replacement first paragraph of Paragraph 3 is inserted in lieu thereof:
3. CONSULTATION PAYMENTS. In the event Employee retires from employment on Employees Retirement Date, Employee shall be paid by Employer the sum of Six Thousand Nine Hundred Seventy Six and 02/100 Dollars ($6,976.02) per month, beginning not later than two (2) months after Employees Retirement Date, for a period of ten (10) years following Employees Retirement Date or until death, whichever first occurs. Such monthly payments shall be paid for and in consideration of Employees Consultation Services, as provided herein; such sum to be payable to Employee whether or not Employees 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 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.
3. The first paragraph of Paragraph 4 of the Agreement hereby is deleted in its entirety and the following replacement first paragraph of Paragraph 4 is inserted in lieu thereof:
4. NONCOMPETITION PAYMENTS. In the event Employee retires from employment on Employees Retirement Date, Employee shall be paid by Employer the sum of Twenty Thousand Nine Hundred Twenty Eight and 06/100 Dollars ($20,928.06) per month, beginning not later than two (2) months after Employees Retirement Date, for a period of ten (10) years following Employees Retirement Date or until death, whichever first occurs. Such monthly payments shall be paid for and in consideration of Employees Covenant Not To Compete as provided herein. Noncompetition Payments hereunder 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 said payments.
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4. Paragraph 5 of the Agreement hereby is deleted in its entirety and the following replacement Paragraph 5 is inserted in lieu thereof:
5. CONTINUATION OF PAYMENTS. Upon Employees death during said ten (10) year period of payments hereunder, the sum of Twenty-Seven Thousand Nine Hundred Four and 08/100 Dollars ($27,904.08) per month shall be paid to Employees designated beneficiary or Employees Estate, as applicable, beginning the first calendar month following the date of Employees death and continuing thereafter until the expiration of said ten (10) year period. Once the Consultation and/or Noncompetition Payments are begun, whether paid by Employer or as otherwise provided herein, the maximum payment period under this Agreement is ten (10) years. Payments hereunder shall be payable each month without deductions and the recipient shall be solely responsible for all income and other taxes and assessments applicable on said payments.
5. All of the remaining terms and conditions of the Agreement which are not expressly amended by this Fifth Amendment shall remain in full force and effect.
IN TESTIMONY WHEREOF, Employer has caused this Fifth Amendment to be executed in its corporate name by its Vice Chairman, attested by its Secretary/Assistant Secretary and its corporate seal to be affixed hereto, all within the authority duly given by its Board of Directors, and Employee has hereunto set his hand and adopted as his seal the typewritten word SEAL appearing beside his name, as of the day and year first above written.
FIRST-CITIZENS BANK & TRUST COMPANY
By:
James B. Hyler, Jr., Vice Chairman
Attest:
Secretary/Assistant Secretary
(SEAL)
Frank B. Holding
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DESIGNATION OF BENEFICIARY
Pursuant to the terms of the Employee Death Benefit and Post-Retirement Noncompetition and Consultation Agreement, dated as of January 1, 1986, as amended, between myself and Employer, I hereby designate the following beneficiary(ies) to receive any payments which may be due under such Agreement after my death.
Primary Beneficiary
Secondary Beneficiary
Secondary Beneficiary
Secondary Beneficiary
This designation hereby revokes any prior designation which may have been in effect.
Date:
Frank B. Holding
Witness
Acknowledged by:
Title:
Date:
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