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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
December 31, 1998 0-16471
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For the fiscal year ended Commission File Number
FIRST CITIZENS BANCSHARES, INC.
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(Exact name of Registrant as specified in the charter)
Delaware 56-1528994
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
239 Fayetteville Street Mall
Raleigh, North Carolina 27601
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(Address of Principal Executive Offices, Zip Code)
Registrant's Telephone Number, including Area Code: (919) 716-7000
Securities registered pursuant to:
Section 12(b) of the Act: None
Section 12(g) of the Act: Class A Common Stock, Par Value $1
Class B Common Stock, Par Value $1
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(Title of Class)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding twelve months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past ninety days. Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ X ]
Based on last reported sales prices on March 22, 1999, the aggregate market
value of the Registrant's voting stock held by nonaffiliates of the Registrant
as of such date was $419,240,120.
On March 22, 1999, there were 8,900,114 outstanding shares of the Registrant's
Class A Common Stock and 1,720,460 outstanding shares of the Registrant's Class
B Common Stock.
Portions of the Registrant's definitive Proxy Statement dated March 22, 1999 are
incorporated in Part III of this report, as is information contained in the 1998
Annual Report.
PART I
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Item 1. Business
First Citizens BancShares, Inc. ("BancShares") was incorporated under the laws
of Delaware on August 7, 1986, to become the successor to First Citizens
Corporation ("FCC"), a North Carolina corporation that was the bank holding
company of First-Citizens Bank & Trust Company (the "Bank"), its banking
subsidiary. On October 21, 1986, FCC was merged into BancShares, and BancShares
became the sole shareholder of the Bank. The Bank was chartered on March 4,
1893, as the Bank of Smithfield, Smithfield, North Carolina and through a series
of mergers and name changes, it later became First-Citizens Bank & Trust
Company.
The Bank is the fifth largest commercial bank in North Carolina based upon total
deposits. Its growth has been generated principally by acquisitions and de novo
branching that have occurred under the leadership of the R.P. Holding family. As
of December 31, 1998, the Bank operated 354 offices in North Carolina, Virginia
and West Virginia.
On September 1, 1994, BancShares acquired Bank of Marlinton, a West
Virginia-chartered bank with headquarters in Marlinton, West Virginia. On June
1, 1995, BancShares acquired Bank of White Sulphur Spring ("WSS"), a West
Virginia-charted bank with headquarters in White Sulphur Springs, West Virginia.
On August 1, 1997, BancShares merged Marlinton into WSS to form First-Citizens
Bank & Trust Company, a West Virginia chartered bank. On October 16, 1999,
BancShares merged First-Citizens Bank & Trust Company, a West Virginia chartered
bank, with First-Citizens Bank & Trust Company, a North Carolina chartered bank.
On April 28, 1997, BancShares opened Atlantic States Bank ("ASB"), a
federally-chartered thrift institution, which has continued to open new branches
in the suburban Atlanta, Georgia area, and also opened its first office in Fort
Myers, Florida. ASB plans to expand its presence in southwestern Florida,
specifically in the Fort Myers area. At December 31, 1998, ASB had 20 offices
with total assets of $283.1 million.
BancShares' executive offices are located at 239 Fayetteville Street, Raleigh,
North Carolina, 27601, and its telephone number is (919) 716-7000. At December
31, 1998, BancShares and its subsidiaries employed a full-time staff of 4,046
and a part-time staff of 875 for a total of 4,921 employees.
BancShares' principal assets are its investment in and receivables from its
banking subsidiaries and its investment securities portfolio. Its primary
sources of income are dividends from the Bank and interest income on its
investment securities portfolio. Certain legal restrictions exist regarding the
ability of the Bank to transfer funds to BancShares in the form of cash
dividends or loans. For information regarding these restrictions, see Note P of
BancShares' consolidated financial statements, contained in this report.
The subsidiary banks seek to meet the needs of both consumers and commercial
entities in their respective market areas. These services, offered at most
offices, include normal taking of deposits, cashing of checks, and providing for
individual and commercial cash needs; numerous checking and savings plans;
commercial, small business and consumer lending; a full-service trust
department; and other activities incidental to commercial banking. Bank
subsidiaries American Guaranty Insurance Company and Triangle Life Insurance
Company underwrite and sell various forms of credit-related insurance products.
Neuse, Incorporated ("Neuse"), owns many of the facilities in which the Bank
operates branches. First Citizens Investor Services, Inc., provides various
investment products, including annuities, discount brokerage services and
third-party mutual funds to customers. First-Citizens Bank, A Virginia
Corporation ("FCB-AVC") is the issuing and processing bank for BancShares'
retail credit cards. Various other subsidiaries are either inactive or not
material to BancShares' consolidated financial position or to consolidated net
income.
As of December 31, 1998, BancShares had consolidated assets of $9.61 billion,
consolidated deposits of $8.11 billion and shareholders' equity of $660.7
million. Table 6 includes information such as average assets, deposits,
shareholders' equity and interest-earning assets of BancShares for the five
years ended December 31, 1998. Rates of return on average assets and average
equity and the ratio of shareholders' equity to total assets for the last five
years are presented in Table 1 of this report.
PART I (CONTINUED)
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During 1994, Congress approved legislation that will allow adequately
capitalized and managed bank holding companies to acquire control of banks in
any state ("the Interstate Banking Law"). Acquisitions will be subject to
anti-trust provisions that limit the state and national deposits that may be
controlled by a single bank holding company. Under the Interstate Banking Law,
banks were permitted, beginning June 1, 1997, to merge across state lines,
subject to concentration, capital and Community Reinvestment Act requirements
and regulatory approval. Some states authorized mergers earlier than June 1,
1997, and states could enact restrictions on mergers prior to that date. The
Interstate Banking Law also allows states to permit out-of-state banks to open
new branches within their borders. The banks operate under the jurisdiction of
the Federal Deposit Insurance Corporation and the respective state or Federal
banking authorities and are subject to the laws administered by those
authorities and the rules and regulations thereunder.
As a registered bank holding company, BancShares is subject to the jurisdiction
of the Board of Governors of the Federal Reserve System. BancShares also is
registered as a bank holding company with the North Carolina Commissioner of
Banks and is subject to the regulations promulgated by the Commissioner. The
internal affairs of BancShares, including the rights of its shareholders, are
governed by Delaware law and by its Certificate of Incorporation and Bylaws.
BancShares files periodic reports under the Securities Exchange Act of 1934 and
is subject to the jurisdiction of the Securities and Exchange Commission.
Item 2. Properties
As of December 31, 1998, BancShares owned land and/or office buildings in which
it operates offices at 238 locations. BancShares leases from Neuse 15 locations
that have office buildings located thereon in which the BancShares maintains
offices. In addition, BancShares leases 150 other locations. Additional
information relating to premises, equipment and lease commitments is set forth
in Note E of BancShares' consolidated financial statements.
Item 3. Legal Proceedings
BancShares, the banks and various Bank subsidiaries have been named as
defendants in various legal actions arising from their normal business
activities in which damages in various amounts are claimed. Although the amount
of any ultimate liability with respect to such matters cannot be determined, in
the opinion of management, any such liability will not have a material effect on
BancShares' consolidated financial position.
Item 4. Submission of Matters to a Vote of Security Holders
None
PART II
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Item 5. Market for Registrant's Common Equity and Related Stockholder Matters
BancShares' Class A and Class B common stock is traded in the over-the-counter
market, and the Class A common stock is listed on the National Association of
Securities Dealers Automated Quotation National Market System under the symbol
FCNCA.
The per share cash dividends paid by BancShares during each quarterly period
during 1998 and 1997 are set forth in Table 17 of this report. A cash dividend
of 25 cents per share was declared by the Board of Directors on January 25,
1999, payable April 5, 1999, to holders of record as of March 15, 1999. Payment
of dividends is made at the discretion of the Board of Directors and is
contingent upon satisfactory earnings as well as projected future capital needs.
Subject to the foregoing, it is currently management's expectation that
comparable cash dividends will continue to be paid in the future.
Item 6. Selected Financial Data
Information is included in Table 1 on page 18 of Registrant's 1998 Annual Report
in the table 'Financial Summary and Selected Average Balances and Ratios'.
Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Information is included on pages 18 through 37 of Registrant's 1998 Annual
Report
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Information is included on pages 27 and 28 of Registrant's 1998 Annual Report
Item 8. Financial Statements and Supplementary Data
Information is included on the indicated pages of Registrant's 1998 Annual
Report:
Independent Auditors' Report 38
Consolidated Balance Sheets at December 31, 1998 and 1997 39
Consolidated Statements of Income for each of the years
in the three-year period ended December 31, 1998 40
Consolidated Statements of Changes in Shareholders' Equity for each
of the years in the three-year period ended December 31, 1998 41
Consolidated Statements of Cash Flows for each of the years in the
three-year period ended December 31, 1998 42
Notes to Consolidated Financial Statements 43-59
Quarterly Financial Summary for 1998 and 1997 34
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
Not applicable
PART III
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Information required by Part III of this Report on Form 10-K is incorporated
herein by reference from the indicated pages of Registrant's definitive Proxy
Statement dated March 22, 1999, as follows:
Item 10. Directors and Executive Officers of the Registrant
Information found on pages 6-9 under the captions "Proposal 1: Election of
Directors" and "Section 16(a) Beneficial Ownership Reporting Compliance," and 11
under the caption "Executive Officers."
Item 11. Executive Compensation
Information found on pages 8-9 under the caption "Directors' Fees and
Compensation;" 9 under the caption "Compensation Committee Interlocks and
Insider Participation;" 12-13 under the captions "Executive Compensation" and
"Pension Plan and Other Post-Retirement Benefits."
Item 12. Security Ownership of Certain Beneficial Owners and Management
Information found on pages 2-5 under the captions "Principal Holders of Voting
Securities" and "Ownership of Securities by Management."
Item 13. Certain Relationships and Related Transactions
Information found on page 7 under footnote (4) to the table under the caption
"Proposal 1: Election of Directors" and page 14 under the caption "Transactions
with Management."
PART IV
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Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K
(a) 1. Financial Statements. See Item 8
2. Financial Statement Schedules. All schedules are omitted as the
required information is either inapplicable or is presented in the consolidated
financial statements of the Registrant.
3. Exhibits. The following documents are attached hereto or incorporated
herein by reference as exhibits:
3.1 Certificate of Incorporation of the Registrant, as amended (incorporated
herein by reference to Exhibit 3.1 of the 1992 Annual Report to the SEC on Form
10-K)
3.2 Bylaws of the Registrant, as amended (incorporated herein by reference to
Exhibit 3.2 of the September 30, 1997 Report to the SEC on Form 10-Q)
4.1 Specimen of Registrant's Class A Common Stock certificate (incorporated
herein by reference to Exhibit 4.1 of the 1993 Annual Report to the SEC on Form
10-K)
4.2 Specimen of Registrant's Class B Common Stock certificate (incorporated
herein by reference to Exhibit 4.2 of the 1993 Annual Report to the SEC on Form
10-K)
*10.1 Employee Death Benefit and Post-Retirement Non-Competition and
Consultation Agreement, dated January 1, 1986 (incorporated herein by reference
to Exhibit 10.1 of the 1987 Annual Report to the SEC on Form 10-K), as amended
by the Fourth Amendment of Employee Death Benefit and Post-Retirement
Non-Competition and Consultation Agreement, dated October 26, 1998, between
Registrant's subsidiary, First-Citizens Bank & Trust Company, and Lewis R.
Holding (filed herewith)
*10.2 Employee Death Benefit and Post-Retirement Non-Competition and
Consultation Agreement, dated January 1, 1986 (incorporated herein by reference
to exhibit 10.2 of the 1987 Annual Report to the SEC on Form 10-K), as amended
by the Fourth Amendment of Employee Death Benefit and Post-Retirement
Non-Competition and Consultation Agreement, dated October 26, 1998, between
Registrant's subsidiary, First-Citizens Bank & Trust Company, and Frank B.
Holding (filed herewith)
*10.3 Employee Death Benefit and Post-Retirement Non-Competition and
Consultation Agreement, dated January 1, 1986 (incorporated herein by reference
to Exhibit 10.3 of the 1988 Annual Report to the SEC on Form 10-K), as amended
by the Fourth Amendment of Employee Death Benefit and Post-Retirement
Non-Competition and Consultation Agreement, dated October 26, 1998, between
Registrant's subsidiary, First-Citizens Bank & Trust Company, and James B.
Hyler, Jr. (filed herewith)
*10.4 Employee Death Benefit and Post-Retirement Non-Competition and
Consultation Agreement, dated January 23, 1995 (incorporated herein by reference
to Exhibit 10.4 of the 1994 Annual Report to the SEC on Form 10-K), as amended
by the First Amendment of Employee Death Benefit and Post-Retirement
Non-Competition and Consultation Agreement, dated October 26, 1998, between
Registrant's subsidiary, First-Citizens Bank & Trust Company, and Frank B.
Holding, Jr.(filed herewith)
*10.5 Employee Death Benefit and Post-Retirement Non-Competition and
Consultation Agreement dated August 23, 1989 (incorporated herein by reference
to Exhibit 10.8 of the 1992 Annual Report to the SEC on Form 10-K), as amended
by the Third Amendment of Employee Death Benefit and Post-Retirement
Noncompetition and Consultation Agreement, dated October 26, 1998, between
Registrant's subsidiary, First-Citizens Bank & Trust Company, and James M.
Parker (filed herewith)
*10.6 Second Death Benefit and Post-Retirement Non-Competition and Consultation
Agreement dated April 28, 1997, between Registrant's subsidiary, First-Citizens
Bank & Trust Company, and George H. Broadrick (incorporated herein by reference
to Exhibit 10.6 of Registrant's 1997 Annual Report to the SEC on Form 10-K)
PART IV (CONTINUED)
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*10.7 Consulting Agreement dated February 17, 1988, between Registrant's
subsidiary, First-Citizens Bank & Trust Company, and George H. Broadrick
(incorporated herein by reference to Exhibit 10.7 of the 1987 Annual Report to
the SEC on Form 10-K)
*10.9 Retirement Payment Agreement dated May 1, 1985, between First Federal
Savings and Loan Association, Hendersonville, North Carolina ("First Federal"),
and William McKay, which agreement was ratified by Registrant upon its
acquisition of First Federal (incorporated herein by reference to Exhibit 10.9
of the 1991 Annual Report to the SEC on Form 10-K)
*10.10 Retirement Payment Agreement dated August 1, 1987, between First Federal
and William McKay, which agreement was ratified by Registrant upon its
acquisition of First Federal (incorporated herein by reference to Exhibit 10.10
of the 1991 Annual Report to the SEC on Form 10-K)
*10.11 Employment Agreement dated August 4, 1995, between Registrant's
subsidiary, First-Citizens Bank & Trust Company, and Brent D. Nash (incorporated
herein by reference to Exhibit 10.11 of the 1994 Annual Report to the SEC on
Form 10-K)
*10.12 Retirement Payment Agreement dated August 8, 1991, between Edgecombe
Homestead and Loan Assn., Inc. ("Edgecombe"), and Brent D. Nash, which agreement
was ratified by Registrant upon its acquisition of Edgecombe (incorporated
herein by reference to Exhibit 10.12 of the 1994 Annual Report to the SEC on
Form 10-K)
*10.13 Article IV Section 4.1.d of the Agreement and Plan of Reorganization and
Merger by and among First Investors Savings Bank, Inc., SSB, First-Citizens Bank
& Trust Company and First Citizens BancShares, Inc., dated October 25, 1995,
located at page II-38 of Registrant's S-4 Registration Statement filed with the
SEC on December 19, 1994 (Registration No. 33-84514)
*10.14 Article IV Section 4.1.e of the Agreement and Plan of Reorganization and
Merger by and among State Bank and First-Citizens Bank & Trust Company and First
Citizens BancShares, Inc., dated October 25, 1995, located at page I-36 of
Registrant's S-4 Registration Statement filed with the SEC on November
16, 1994 (Registration No.
33-86286)
*10.15 Article V Section 5.4.a of the Agreement and Plan of Reorganization and
Merger By and Between Allied Bank Capital, Inc. and First Citizens BancShares,
Inc., dated August 7, 1996, located at page I-47 of Registrant's S-4
Registration Statement filed with the SEC on September 28, 1995
(Registration No. 33-63009)
10.16 Amended and Restated Trust Agreement of FCB/NC Capital Trust I
(incorporated herein by reference to Exhibit 4.1 of Registrant's Registration
Statement No. 333-59039 filed with the SEC on July 14, 1998)
10.17 Form of Guarantee Agreement (incorporated herein by reference to Exhibit
4.2 of Registrant's Registration Statement No. 333-59039 filed with the SEC on
July 14, 1998)
10.18 Junior Subordinated Indenture between Registrant and Bankers Trust
Company, as Debenture Trustee (incorporated herein by reference to Exhibit 4.3
of Registrant's Registration Statement No. 333-59039 filed with the SEC on July
14, 1998)
13 Registrant's Annual Report to Shareholders for the year ended
December 31, 1998 (filed herewith)
22 Subsidiaries of the Registrant (filed herewith)
27 Financial Data Schedule (filed herewith)
99 Registrant's definitive Proxy Statement dated March 22, 1999 (filed
pursuant to Rule 14a-6(c))
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* Denotes a management contract or compensation plan or arrangement in
which an executive officer or director of Registrant participates.
(b) Reports on Form 8-K. During the fourth quarter of 1998 the
Registrant filed no Form 8-K Current Reports.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this Annual Report to be signed on
its behalf by the undersigned, thereunto duly authorized.
Dated: MARCH 22, 1999 FIRST CITIZENS BANCSHARES, INC. (Registrant)
--------------
/s/ James B. Hyler, Jr.
--------------------------------------------
James B. Hyler, Jr.
Vice Chairman and Director
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons, on behalf of the Registrant and
in the capacities indicated on March 22, 1999.
Signature Title Date
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/s/Lewis R. Holding Chairman and Chief March 22, 1999
- ------------------------------------ Executive Officer
Lewis R. Holding (principal executive
officer)
/s/Frank B. Holding Executive Vice Chairman March 22, 1999
- ------------------------------------
Frank B. Holding
/s/James B. Hyler, Jr. Vice Chairman March 22, 1999
- ------------------------------------
James B. Hyler, Jr.
/s/Frank B. Holding, Jr. President March 22, 1999
- ------------------------------------
Frank B. Holding, Jr.
/s/Kenneth A. Black Vice President, March 22, 1999
- ------------------------------------ Treasurer, and Chief
Kenneth A. Black Financial Officer
(principal financial
and accounting officer)
Signature Title Date
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/s/John M. Alexander, Jr. Director March 22, 1999
- ------------------------------------
John M. Alexander, Jr.
/s/ Ted L. Bissett Director March 22, 1999
- ------------------------------------
Ted L. Bissett
/s/ B. Irvin Boyle Director March 22, 1999
- ------------------------------------
B. Irvin Boyle
/s/George H. Broadrick Director March 22, 1999
- ------------------------------------
George H. Broadrick
/s/Betty M. Farnsworth Director March 22, 1999
- ------------------------------------
Betty M. Farnsworth
/s/Lewis M. Fetterman Director March 22, 1999
- ------------------------------------
Lewis M. Fetterman
/s/Carmen P. Holding Director March 22, 1999
- ------------------------------------
Carmen P. Holding
Signature Title Date
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Director
- ------------------------------------
Charles B.C. Holt
/s/Edwin A. Hubbard Director March 22, 1999
- ------------------------------------
Edwin A. Hubbard
/s/Gale D. Johnson Director March 22, 1999
- ------------------------------------
Gale D. Johnson
/s/Freeman R. Jones Director March 22, 1999
- ------------------------------------
Freeman R. Jones
/s/Lucius S. Jones Director March 22, 1999
- ------------------------------------
Lucius S. Jones
/s/Joseph T. Maloney, Jr. Director March 22, 1999
- ------------------------------------
Joseph T. Maloney, Jr.
/s/J. Claude Mayo, Jr. Director March 22, 1999
- ------------------------------------
J. Claude Mayo, Jr.
Signature Title Date
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/s/William McKay Director March 22, 1999
- ------------------------------------
William McKay
/s/Brent D. Nash Director March 22, 1999
- ------------------------------------
Brent D. Nash
/s/Lewis T. Nunnelee, II Director March 22, 1999
- ------------------------------------
Lewis T. Nunnelee, II
/s/Talbert O. Shaw Director March 22, 1999
- ------------------------------------
Talbert O. Shaw
/s/R. C. Soles, Jr. Director March 22, 1999
- ------------------------------------
R. C. Soles, Jr.
/s/David L. Ward, Jr. Director March 22, 1999
- ------------------------------------
David L. Ward, Jr.
EXHIBIT INDEX
Exhibit
Sequential
Number Description of Exhibit Page Number
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3.1 Certificate of Incorporation of the Registrant, as amended
(incorporated herein by reference to Exhibit 3.1 of the 1992
Annual Report to the SEC on Form 10-K) -
3.2 Bylaws of the Registrant, as amended (incorporated herein by reference
to Exhibit 3.2 of the September 30, 1997 Report to the SEC on Form 10-Q) -
4.1 Specimen of Registrant's Class A Common Stock certificate
(incorporated herein by reference to Exhibit 4.1 of the 1993 Annual
Report to the SEC on Form 10-K) -
4.2 Specimen of Registrant's Class B Common Stock certificate
(incorporated herein by reference to Exhibit 4.2 of the 1993 Annual
Report to the SEC on Form 10-K) -
10.1 Employee Death Benefit and Post-Retirement Non-Competition and
Consultation Agreement, dated January 1, 1986 (incorporated herein by
reference to Exhibit 10.1 of the 1987 Annual Report to the SEC on Form
10-K), as amended by the Fourth Amendment of Employee Death Benefit
and Post-Retirement Non-Competition and Consultation Agreement, dated
October 26, 1998, between Registrant's subsidiary, First-Citizens Bank &
Trust Company, and Lewis R. Holding (filed herewith)
10.2 Employee Death Benefit and Post-Retirement Non-Competition and
Consultation Agreement, dated January 1, 1986 (incorporated herein
by reference to Exhibit 10.2 of the 1987 Annual Report to the SEC on
Form 10-K), as amended by the Fourth Amendment of Employee Death
Benefit and Post-Retirement Non-Competition and Consultation
Agreement, dated October 26, 1998, between Registrant's subsidiary,
First-Citizens Bank & Trust Company, and Frank B. Holding (filed
herewith)
10.3 Employee Death Benefit and Post-Retirement Non-Competition and
Consultation Agreement, dated January 1, 1986 (incorporated herein by
reference to Exhibit 10.3 of the 1988 Annual Report to the SEC on Form
10-K), as amended by the Fourth Amendment of Employee Death Benefit
and Post-Retirement Non-Competition and Consultation Agreement, dated
October 26, 1998, between Registrant's subsidiary, First-Citizens Bank &
Trust Company, and James B. Hyler, Jr. (filed herewith)
10.4 Employee Death Benefit and Post-Retirement Non-Competition and
Consultation Agreement, dated January 23, 1995 (incorporated herein
by by reference to Exhibit 10.4 of the 1994 Annual Report to the SEC
on Form 10-K), as amended by the First Amendment of Employee Death
Benefit and Post-Retirement Non-Competition and Consultation
Agreement, dated October 26, 1998, between Registrant's subsidiary,
First-Citizens Bank & Trust Company, and Frank B. Holding, Jr.
(filed herewith)
EXHIBIT INDEX (CONTINUED)
Exhibit
Number Description of Exhibit
- --------------------------------------------------------------------------------------------------------------------
10.5 Employee Death Benefit and Post-Retirement Non-Competition and
Consultation Agreement, dated August 23, 1989 (incorporated herein
by reference to Exhibit 10.8 of the 1992 Annual Report to the SEC on
Form 10-K), as amended by the Third Amendment of Employee Death
Benefit and Post-Retirement Non-Competition and Consultation
Agreement, dated October 26, 1998, between Registrant's subsidiary,
First-Citizens Bank & Trust Company, and James M. Parker (filed herewith)
10.6 Second Death Benefit and Post-Retirement Non-Competition and
Consultation Agreement dated April 28, 1997, between Registrant's
subsidiary, First-Citizens Bank & Trust Company, and George H.
Broadrick (incorporated herein by reference to Exhibit 10.6 of the 1997
Annual Report to the SEC on Form 10-K)
10.7 Consulting Agreement dated February 17, 1988, between Registrant's
subsidiary, First-Citizens Bank & Trust Company, and George H.
Broadrick (incorporated herein by reference to Exhibit 10.7 of the
1987 Annual Report to the SEC on Form 10-K)
10.9 Retirement Payment Agreement dated May 1, 1985, between First
Federal Savings and Loan Association, Hendersonville, North Carolina
("First Federal"), and William McKay, which agreement was ratified by
Registrant upon its acquisition of First Federal Savings Bank
(incorporated herein by reference to Exhibit 10.9 of the 1991 Annual
Report to the SEC on Form 10-K)
10.10 Retirement Payment Agreement dated August 1, 1987, between First
Federal and William McKay, which agreement was ratified by
Registrant upon its acquisition of First Federal (incorporated
herein by reference to Exhibit 10.10 of the 1991 Annual Report to
the SEC on Form 10-K)
10.11 Employment Agreement dated August 4, 1995, between Registrant's
subsidiary, First-Citizens Bank & Trust Company, and Brent D. Nash
(incorporated herein by reference to Exhibit 10.10 of the 1994
Annual Report to the SEC on Form 10-K)
10.12 Retirement Payment Agreement dated August 8, 1991, between Edgecombe
Homestead Savings Bank ("Edgecombe"), and Brent D. Nash, which
agreement was ratified by Registrant upon its acquisition of
Edgecombe (incorporated herein by reference to Exhibit 10.10 of the
1994 Annual Report to the SEC on Form 10-K)
10.13 Article IV Section 4.1.d of the Agreement and Plan of Reorganization
and Merger by and among First Investors Savings Bank, Inc., SSB,
First-Citizens Bank & Trust Company and First Citizens BancShares,
Inc., dated October 25, 1994, located at page II-38 of Registrant's
S-4 Registration Statement filed with the SEC on December 19, 1994
(Registration No. 33-84514)
EXHIBIT INDEX (CONTINUED)
Exhibit
Number Description of Exhibit
- --------------------------------------------------------------------------------------------------------------------
10.14 Article IV Section 4.1.e of the Agreement and Plan of Reorganization
and Merger by and among State Bank and First-Citizens Bank & Trust
Company and First Citizens BancShares, Inc., dated October 25, 1994,
located at page I-36 of Registrant's S-4 Registration Statement
filed with the SEC on November 16, 1994 (Registration No. 33-86286)
10.15 Article V Section 5.4.a of the Agreement and Plan of Reorganization
and Merger By and Between Allied Bank Capital, Inc. and First
Citizens BancShares, Inc., dated August 7, 1995, located at page
I-47 of Registrant's S-4 Registration Statement filed with the
SEC on September 28, 1995 (Registration No. 33-63009)
10.16 Amended and Restated Agreement of FCB/NC Capital Trust I
(incorporated herein by reference to Exhibit 4.1 of Registrant's
Registration Statement No. 333-59039 filed with the SEC on July 14,
1998).
10.17 Form of Guarantee Agreement (incorporated herein by reference to
Exhibit 4.2 of Registrant's Registration Statement No. 333-59039
filed with the SEC on July 14, 1998).
10.18 Junior Subordinated Indenture between Registrant and Bankers Trust
Company, as Debenture Trustee (incorporated herein by reference to
Exhibit 4.3 of Registrant's Registration Statement No. 333-59039
filed with the SEC on July 14, 1998).
13 Registrant's 1998 Annual Report for the year ended December 31, 1998
(filed herewith)
22 Subsidiaries of the Registrant (filed herewith)
27 Financial Data Schedule (filed herewith)
99 Registrant's definitive Proxy Statement dated March 22, 1999 (filed
pursuant to Rule 14a-6(c))
EXHIBIT 10.1
STATE OF NORTH CAROLINA
COUNTY OF WAKE
FOURTH AMENDMENT OF EMPLOYEE DEATH
BENEFIT AND POST-RETIREMENT
NONCOMPETITION AND CONSULTATION AGREEMENT
THIS FOURTH AMENDMENT OF EMPLOYEE DEATH BENEFIT AND
POST-RETIREMENT NONCOMPETITION AND CONSULTATION AGREEMENT ("Fourth Amendment"),
made and entered into and effective as of the 26th day of October, 1998, 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 LEWIS R. HOLDING
(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 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, and a Third Amendment of
Employee Death Benefit and Post-Retirement Noncompetition and Consultation
Agreement, dated as of January 24, 1994, 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 enter into Phase V of such
benefit plan, as part of which Employer 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 Fourth 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 Employee's Retirement Date, Employer will pay
the sum of Two Hundred Sixty-Seven Thousand Nine Hundred Three
and No/100 Dollars ($267,903.00) per year, payable in monthly
installments of Twenty-Two Thousand Three Hundred Twenty-Five and
25/100 Dollars ($22,325.25) 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
employment on Employee's Retirement Date, Employee shall be paid
by Employer the sum of Five Thousand Five Hundred Eighty-One and
31/100 Dollars ($5,581.31) 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
2
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
employment on Employee's Retirement Date, Employee shall be paid
by Employer the sum of Sixteen Thousand Seven Hundred Forty-Three
and 94/100 Dollars ($16,743.94) 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
ten (10) year period of payments hereunder, the sum of Twenty-Two
Thousand Three Hundred Twenty-Five and 25/100 Dollars
($22,325.25) 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
3
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 Fourth Amendment shall remain in full
force and effect.
IN TESTIMONY WHEREOF, Employer has caused this Fourth 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: /s/ James B. Hyler, Jr.
-----------------------
James B. Hyler, Jr., Vice Chairman
Attest:
/s/ Alexander G. MacFadyen, Jr.
- -------------------------------
Secretary
/s/ Lewis R. Holding (SEAL)
--------------------------------
Lewis R. Holding
EXHIBIT 10.2
STATE OF NORTH CAROLINA
COUNTY OF WAKE
FOURTH AMENDMENT OF EMPLOYEE DEATH
BENEFIT AND POST-RETIREMENT
NONCOMPETITION AND CONSULTATION AGREEMENT
THIS FOURTH AMENDMENT OF EMPLOYEE DEATH BENEFIT AND
POST-RETIREMENT NONCOMPETITION AND CONSULTATION AGREEMENT ("Fourth Amendment"),
made and entered into and effective as of the 26th day of October, 1998, 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 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 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, and a Third Amendment of
Employee Death Benefit and Post-Retirement Noncompetition and Consultation
Agreement, dated as of January 24, 1994, 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 enter into Phase V of such
benefit plan, as part of which Employer 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 Fourth 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 Employee's Retirement Date,
Employer will pay the sum of Two Hundred Sixty-Seven Thousand
Nine Hundred Three and No/100 Dollars ($267,903.00) per year,
payable in monthly installments of Twenty-Two Thousand Three
Hundred Twenty-Five and 25/100 Dollars ($22,325.25) 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
employment on Employee's Retirement Date, Employee shall be paid
by Employer the sum of Five Thousand Five Hundred Eighty-One and
31/100 Dollars ($5,581.31) 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
2
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 Employee's Retirement Date, Employee shall be paid
by Employer the sum of Sixteen Thousand Seven Hundred Forty-Three
and 94/100 Dollars ($16,743.94) 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
ten (10) year period of payments hereunder, the sum of Twenty-Two
Thousand Three Hundred Twenty-Five and 25/100 Dollars
($22,325.25) 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."
3
5. All of the remaining terms and conditions of the Agreement
which are not expressly amended by this Fourth Amendment shall remain in full
force and effect.
IN TESTIMONY WHEREOF, Employer has caused this Fourth 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: /s/ James B. Hyler, Jr.
----------------------------------
James B. Hyler, Jr., Vice Chairman
Attest:
/s/ Alexander G. MacFadyen, Jr.
- -------------------------------
Secretary
/s/ Frank B. Holding (SEAL)
---------------------------------
Frank B. Holding
4
EXHIBIT 10.3
STATE OF NORTH CAROLINA
COUNTY OF WAKE
FOURTH AMENDMENT OF EMPLOYEE DEATH
BENEFIT AND POST-RETIREMENT
NONCOMPETITION AND CONSULTATION AGREEMENT
THIS FOURTH AMENDMENT OF EMPLOYEE DEATH BENEFIT AND
POST-RETIREMENT NONCOMPETITION AND CONSULTATION AGREEMENT ("Fourth Amendment"),
made and entered into and effective as of the 26th day of October, 1998, 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 JAMES B. HYLER, JR.
(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 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, and a Third Amendment of
Employee Death Benefit and Post-Retirement Noncompetition and Consultation
Agreement, dated as of January 24, 1994, 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 enter into Phase V of such
benefit plan, as part of which Employer 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 Fourth 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 Employee's Retirement Date, Employer will pay
the sum of Two Hundred Three Thousand Nine Hundred Ninety-Three
and No/100 Dollars ($203,993.00) per year, payable in monthly
installments of Sixteen Thousand Nine Hundred Ninety-Nine and
42/100 Dollars ($16,999.42) 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
employment on Employee's Retirement Date, Employee shall be paid
by Employer the sum of Four Thousand Two Hundred Forty-Nine and
85/100 Dollars ($4,249.85) 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
2
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 Employee's Retirement Date, Employee shall be paid
by Employer the sum of Twelve Thousand Seven Hundred Forty-Nine
and 57/100 Dollars ($12,749.57) 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
ten (10) year period of payments hereunder, the sum of Sixteen
Thousand Nine Hundred Ninety-Nine and 42/100 Dollars ($16,999.42)
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."
3
5. All of the remaining terms and conditions of the Agreement
which are not expressly amended by this Fourth Amendment shall remain in full
force and effect.
IN TESTIMONY WHEREOF, Employer has caused this Fourth Amendment
to be executed in its corporate name by its Group Vice President, 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: /s/ Kenneth A. Black
------------------------
Kenneth A. Black
Group Vice President
Attest:
/s/ Alexander G. MacFadyen, Jr.
- -------------------------------
Secretary
/s/ James B. Hyler, Jr. (SEAL)
---------------------------------
James B. Hyler, Jr.
4
EXHIBIT 10.4
STATE OF NORTH CAROLINA
COUNTY OF WAKE
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 26th day of October, 1998, 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, JR.
(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 January 23, 1995, 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 January 1, 1986, for a class of senior management employees of
Employer; and,
WHEREAS, Employer now desires to enter into Phase V of such
benefit plan, as part of which Employer 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
Employer prior to Employee's Retirement Date, Employer will pay
the sum of One Hundred Eighteen Thousand Seven Hundred Nine and
No/100 Dollars ($118,709.00) per year, payable in monthly
installments of Nine Thousand Eight Hundred Ninety-Two and 42/100
Dollars ($9,892.42) 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
employment on Employee's Retirement Date, Employee shall be paid
by Employer the sum of Two Thousand Four Hundred Seventy-Three
and 10/100 Dollars ($2,473.10) 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."
2
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 Employee's Retirement Date, Employee shall be paid
by Employer the sum of Seven Thousand Four Hundred Nineteen and
32/100 Dollars ($7,419.32) 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
ten (10) year period of payments hereunder, the sum of Nine
Thousand Eight Hundred Ninety-Two and 42/100 Dollars ($9,892.42)
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.
3
IN TESTIMONY WHEREOF, Employer has caused this First 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: /s/ James B. Hyler, Jr.
----------------------------------
James B. Hyler, Jr., Vice Chairman
Attest:
/s/ Alexander G. MacFadyen, Jr.
- -------------------------------
Secretary
/s/ Frank B. Holding, Jr. (SEAL)
---------------------------------
Frank B. Holding, Jr.
4
EXHIBIT 10.5
STATE OF NORTH CAROLINA
COUNTY OF WAKE
THIRD AMENDMENT OF EMPLOYEE DEATH
BENEFIT AND POST-RETIREMENT
NONCOMPETITION AND CONSULTATION AGREEMENT
THIS THIRD AMENDMENT OF EMPLOYEE DEATH BENEFIT AND
POST-RETIREMENT NONCOMPETITION AND CONSULTATION AGREEMENT ("Third Amendment"),
made and entered into and effective as of the 26th day of October, 1998, 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 JAMES M. PARKER
(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 August 23, 1989, as
amended by a First Amendment of Employee Death Benefit and Post-Retirement
Noncompetition and Consultation Agreement, dated as of April 27, 1992, and a
Second Amendment of Employee Death Benefit and Post-Retirement Noncompetition
Agreement, dated as of January 24, 1994, 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 enter into Phase V of such
benefit plan, as part of which Employer 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 Third 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 Employee's Retirement Date, Employer will pay
the sum of Sixty-Three Thousand Five Hundred Ninety-Five and
No/100 Dollars ($63,595.00) per year, payable in monthly
installments of Five Thousand Two Hundred Ninety-Nine and 59/100
Dollars ($5,299.59) 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
employment on Employee's Retirement Date, Employee shall be paid
by Employer the sum of One Thousand Three Hundred Twenty-Four and
90/100 Dollars ($1,324.90) 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
2
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 Employee's Retirement Date, Employee shall be paid
by Employer the sum of Three Thousand Nine Hundred Seventy-Four
and 69/100 Dollars ($3,974.69) 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
ten (10) year period of payments hereunder, the sum of Five
Thousand Two Hundred Ninety-Nine and 59/100 Dollars ($5,299.59)
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."
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5. All of the remaining terms and conditions of the Agreement
which are not expressly amended by this Third Amendment shall remain in full
force and effect.
IN TESTIMONY WHEREOF, Employer has caused this Third 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: /s/ James B. Hyler, Jr.
-----------------------------------
James B. Hyler, Jr., Vice Chairman
Attest:
/s/ Alexander G. MacFadyen, Jr.
- -------------------------------
Secretary
/s/ James M. Parker (SEAL)
---------------------------------
James M. Parker
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