ITEM 6. (a)
EXHIBIT 10.1
FIRST AMENDMENT OF EMPLOYEE DEATH
BENEFIT AND POST-RETIREMENT
NONCOMPETITION AND CONSULTATION AGREEMENT
THIS FIRST AMENDMENT OF EMPLOYEE DEATH BENEFIT AND POST-RETIREMENT
NONCOMPETITION AND CONSULTATION AGREEMENT ("First Amendment"), made and entered
into and effective as of the 16th day of February, 2002, by and between
FIRST-CITIZENS BANK AND TRUST COMPANY OF SOUTH CAROLINA, a South Carolina
banking corporation with its principal place of business in Columbia, Richland
County, South Carolina (hereinafter referred to as "Employer"); and XXX X. CASE
(hereinafter referred to as "Employee");
W I T N E S S E T H:
WHEREAS, in recognition of Employee's contribution to the growth,
management and development of Employer and in order to limit Employee's
availability to other employers or entities in competition with Employer
following Employee's 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 December 31, 1998, which
is incorporated herein by reference (hereinafter referred to as the
"Agreement"), which Agreement was executed pursuant to a benefit plan adopted by
Employer as of December 31, 1998, 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 amending said Agreement pursuant to
Paragraph 12 thereof, such increased benefits to be effective as of the date of
this First 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
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Employer prior to Employee's Retirement Date, Employer will pay the
sum of Fifty-Six Thousand Two Hundred Fifty and No/100 Dollars
($56,250.00) per year, payable in monthly installments of Four
Thousand Six Hundred Eighty-Seven and 50/100 Dollars ($4,687.50) 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."
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
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employment on Employee's Retirement Date, Employee shall be paid by
Employer the sum of One Thousand One Hundred Seventy-One and 87/100
Dollars ($1,171.87) 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 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
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employment on Employee's Retirement Date, Employee shall be paid by
Employer the sum of Three Thousand Five Hundred Fifteen and 63/100
Dollars ($3,515.63) 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.
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."
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 Employee's death during said
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ten (10) year period of payments hereunder, the sum of Four Thousand
Six Hundred Eighty-Seven and 50/100 Dollars ($4,687.50) per month
shall be paid to Employee's designated beneficiary or 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 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 First Amendment shall remain in full
force and effect.
IN TESTIMONY WHEREOF, Employer has caused this First Amendment to be
executed in its corporate name by its Chairman of the Board, 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 AND TRUST
COMPANY OF SOUTH CAROLINA
By: /s/ Xxx X. Apple
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Xxx X. Apple
Chairman of the Board
Attest:
/s/ Xxxxxxxx X. Xxxxxxx
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Secretary/Assistant Secretary
/s/ Xxx X. Case (SEAL)
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Xxx X. Case
