Attached files
file | filename |
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10-K - FORM 10-K - YADKIN FINANCIAL Corp | g26413e10vk.htm |
EX-23 - EX-23 - YADKIN FINANCIAL Corp | g26413exv23.htm |
EX-21 - EX-21 - YADKIN FINANCIAL Corp | g26413exv21.htm |
EX-32 - EX-32 - YADKIN FINANCIAL Corp | g26413exv32.htm |
EX-31.2 - EX-31.2 - YADKIN FINANCIAL Corp | g26413exv31w2.htm |
EX-99.1 - EX-99.1 - YADKIN FINANCIAL Corp | g26413exv99w1.htm |
EX-31.1 - EX-31.1 - YADKIN FINANCIAL Corp | g26413exv31w1.htm |
EX-99.2 - EX-99.2 - YADKIN FINANCIAL Corp | g26413exv99w2.htm |
Exhibit 10.6
RETIREMENT AND TRANSITION AGREEMENT
This RETIREMENT AND TRANSITION AGREEMENT (this Agreement) is made and entered into by and
between William A. Long, Sr. (Long) of Statesville, North Carolina, on the one hand, and Yadkin
Valley Financial Corporation, a North Carolina corporation (the Company) and Yadkin Valley Bank
and Trust (the Bank), a North Carolina state bank and wholly owned subsidiary of the Company (the
Company and the Bank collectively referred to herein as the Employer), on the other hand.
WHEREAS, Long is employed by Employer under the terms of an Amended and Restated Employment
Agreement dated December 31, 2008 (the Employment Agreement).
WHEREAS the Employment Agreement was amended by letter agreements dated January 16, 2009 and
July 24, 2009, which were executed by Long and the Company in connection with the Companys
participation in the United States Department of Treasurys Capital Purchase Program (CPP) as
part of the federal Troubled Asset Relief Program (TARP) established pursuant to the Emergency
Economic Stabilization Act of 2008, as amended (the TARP Waiver Agreements).
WHEREAS, Long desires to retire from his employment with Employer on July 31, 2011 (the
Retirement Date).
WHEREAS, Employer desires that Long remain engaged to assist with the transition of his duties
to his successor.
WHEREAS, Employer and Long have agreed to certain changes in his position and duties to be
effective from the date of this Agreement until the Retirement Date.
WHEREAS, Long and Employer wish to memorialize their agreement and to resolve any and all
claims, disputes and other matters that may exist between them, if any, whether they have been
raised or not.
NOW, THEREFORE, the parties, intending to be legally bound and for and in consideration of the
promises and agreements contained herein, hereby stipulate and agree as follows:
1. Retirement and Transition. In connection with Longs retirement and the transition of
his duties to his successor, the parties agree that:
(a) Long shall retire from his employment with Employer on the Retirement Date.
(b) Long hereby resigns as Chief Executive Officer of the Company, as a director of the
Bank, as a director of the Company and as an officer or director of any other subsidiary or
affiliate of the Company, all of which resignations are effective immediately.
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(c) Long shall continue to serve as Chief Executive Officer of the Bank until the
Retirement Date. From the date of this Agreement until the Retirement Date (the Transition
Period), Long shall serve as senior advisor to Joseph H. Towell, successor Chief Executive
Officer of the Bank and of the Company, and shall work to transition his knowledge, duties
and responsibility to Mr. Towell. Additionally, Long shall have such appropriate
transition, customer relations, investor relations and capital development duties as may be
assigned by the Board of Directors from time to time.
(d) During the Transition Period, Long shall continue to receive base salary at his current
rate and shall continue to receive his current benefits (subject to any generally applicable
changes the Company may make during the Transition Period); provided, however, (i) with
respect to Longs membership expenses associated with Statesville Country Club, The Point
Country Club, one civic club, and family membership in a health facility, Employer will
continue to pay for membership and dues only, but will not pay for associated
personal charges and expenses; and (ii) Long will have continued use of the current
automobile provided by Employer, the 2008 Lexus. During the Transition Period, Long will
not be eligible to receive any bonuses. Long will not be entitled to any severance or any
special separation pay upon or following his retirement. The Bank will continue to cover
Long under its directors and officers liability insurance policy during the Transition
Period. After Longs retirement, Long will have the same coverage under this policy (or
successor policies) and the same entitlement to corporate indemnification as other retired
officers and directors. The benefits and payments Long receives under this Agreement are
conditioned upon (A) his employment through the Retirement Date not being terminated by Long
for any reason or by the Bank for Cause (as such term is defined by the Employment
Agreement) and (B) Longs performance of and compliance with the terms of this Agreement and
any continued post-employment obligations under the Employment Agreement as provided in
Section 4 of this Agreement.
2. Release. In exchange for the Companys release of Long from his post-employment
noncompetition obligations as set forth in Section 4 below and the promises of continued
compensation and benefits by Employer set forth in Section 1 above, which release, promises,
compensation and benefits are beyond any to which Long is presently entitled, Long agrees to
release and forever discharge Employer, its shareholders, successors, predecessors, parents,
subsidiaries, affiliates, assigns, directors, officers, agents, attorneys, employees and former
employees, insurers, and all persons, corporations or other entities who might be claimed to be
jointly and severally liable with them (collectively, the Released Parties), from any and all
claims at law or in equity based upon, arising from, or relating to Longs employment relationship
with Employer or the conclusion of that relationship, whether or not Long knows of the potential
existence of the claim, from the beginning of time to the date of execution of this Agreement.
This release shall include, but is not limited to, claims under the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, the Employee Retirement Income Security
Act of 1974, the Americans With Disabilities Act, the Family and Medical Leave Act, claims of
wrongful discharge, constructive discharge, breach of contract, tortious interference with
contract, negligent misrepresentation, negligent or intentional infliction of emotional distress,
retaliatory discharge, and any other state or federal statutory or common law theories, including
any claim for attorneys fees and costs, which Long or anyone claiming by, through or under him in
any way might have or could claim against the Released Parties. This release by Long is
specifically intended to release Employer from any and all obligations under the
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Employment Agreement. In addition, Long knowingly and intentionally waives any rights to any
additional recovery that might be sought on his behalf against any one or more of the Released
Parties by any other person, entity, local, state or federal government or agency thereof. This
release is not intended to and shall not be construed to release any vested retirement/401(k)
benefits or rights to continuation of health coverage under COBRA.
3. Additional Representations. Long represents and warrants that as of the date of this
Agreement, he has been permitted by Employer to take all leave to which he has been entitled, that
he has been reimbursed for all allowances and expenses properly incurred on behalf of Employer,
that he has been properly paid for all time worked to date during his employment by Employer and
that he has received all benefits to which he was or is entitled. Long acknowledges, agrees and
hereby reaffirms that he is subject to the valid and enforceable noncompetition and confidentiality
obligations contained in the Employment Agreement that placed certain reasonable and necessary
restrictions on his actions following his employment with Employer and that, except as otherwise
provided in Section 4 below, such restrictions are currently and at all times have been fully
enforceable.
4. Release of Certain Post-Employment Obligations. Effective July 31, 2011, the Company
agrees that Long is released from his existing post-employment noncompetition obligation contained
in Section 6(b) of the Employment Agreement which restricts Long from certain competitive
activities for one year after termination of employment; provided, however, nothing contained in
this Section 4 will affect Longs noncompetition obligations during his continued employment with
the Bank, or the obligations or remedies contained in Section 6(a), (c) or (d) of the Employment
Agreement and such obligations and remedies shall be deemed continuing beyond the Retirement Date.
5. No Admission of Liability. Nothing contained in this Agreement shall be construed as an
admission of any liability or violation of any federal, state or local statute, regulation, common
law, or of any duty owed by Long, Employer or any of the Released Parties. As stated above, the
forbearance, promises and compensation provided in consideration of the above release and the
obligations contained herein are intended to resolve any and all claims, disputes and other matters
that may exist between the parties, whether they are known or unknown and whether they have been
raised or not.
6. Non-disparagement; No Encouragement of Claims. Long agrees to refrain from any
disparagement, criticism, defamation, slander or libel of Employer, any of the Released Parties or
products, services or businesses. In addition, Long agrees that he shall not initiate or
participate in any contact or communications with any person or entity, including but not limited
to current or former employees, vendors, investors and customers of Employer or any of the Released
Parties, which has the effect of disrupting the orderly operations of or damaging the reputation of
Employer or any of the Released Parties, employees, products, services or their businesses, unless
required by law. Similarly, Long shall not, directly or indirectly, encourage or assist any person
or entity who may file or who has filed a lawsuit, charge, claim or complaint against any Released
Party; provided, however, nothing herein shall prevent Long from responding to a lawful subpoena,
reporting to a government agency or complying with any other legal obligation. If Long receives
any subpoena or becomes subject to any legal obligation that implicates this Section 6, Long will
provide prompt written notice of that fact to the Employer
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(consistent with the notice provisions of this Agreement), and enclose a copy of the subpoena and
any other documents describing the legal obligation. Employer agrees to instruct the following
individuals, Jan H. Hollar, Joseph H. Towell, F. Spencer Cosby, Patricia H. Wooten, T. Michele
Russell, William Mark DeMarcus, Edwin H. Shuford, Kristi A. Eller, Laura Blalock, Rick Patterson,
Joe K. Johnson, Edward L. Marxen, Dan W. Hill III, J.T. Alexander, Jr., James L. Poindexter, Larry
S. Helms, James A. Harrell, Jr., Thomas J. Hall, James N. Smoak, Dr. Ralph L. Bentley, Harry C.
Spell, Nolan G. Brown, Alison J. Smith, Morris L. Shambley, Harry M. Davis, and C. Kenneth Wilcox,
that that they shall refrain from any disparagement, criticism, defamation, slander or libel of
Long; provided, however, nothing herein shall prevent such individuals from responding to a lawful
subpoena, reporting to a government agency or complying with any other legal obligation.
7. Remedies. It is stipulated that a breach by Long of the provisions of this Agreement or
Longs continuing obligations under the Employment Agreement, as described in Section 4 above,
would cause irreparable damage to Employer and/or the Released Parties. In the event Long breaches
any of the obligations, representations or warranties contained in this Agreement or in the
Employment Agreement, the Company, the Bank or any of the Released Parties, as applicable, shall be
entitled to all remedies at law or in equity. If the Company, the Bank or any of the Released
Parties are required to employ attorneys and/or pursue litigation against Long for the breach or
enforcement of this Agreement or Longs continuing obligations under the Employment Agreement, they
shall be entitled to recover from Long any attorneys fees and litigation expenses incurred in
connection with such efforts. In addition, Employer expressly reserves the right to seek
injunctive relief in the event of a breach or threatened breach of the obligations contained in
this Agreement or the Employment Agreement.
8. ADEA Waiver Acknowledgment. Long acknowledges that: (a) he has at least twenty-one (21)
days to consider this Agreement; (b) he has read and understands the terms of this Agreement and
its effect; (c) he has been advised to consult and has had the opportunity to consult with an
attorney prior to executing this Agreement; (d) he has signed this Agreement voluntarily and
knowingly in exchange for the consideration described herein, which he acknowledges as adequate and
more than he is otherwise entitled to receive; (e) this Agreement will become effective seven (7)
days after its signature by Long and will not be enforceable or effective until after that seven
(7) day period has expired (the Effective Date); (f) within seven (7) days of signature, Long may
revoke this Agreement by providing written notice of revocation to Laura Blalock at 204 S. Elm
Street, Statesville, NC 28687, before 12:01 a.m. Eastern Time of the Effective Date; and (g) no
attempted revocation after the expiration of the seven (7) day period shall have any effect on the
terms of this Agreement.
9. Cooperation. Long agrees that, on appropriate advance notice, he will, if so requested
by either Employer or any of the Released Parties, provide assistance or information related to any
claim, investigation, proceeding or litigation (threatened or pending) involving Employer or any of
the Released Parties and will freely cooperate and assist Employer or any of the Released Parties
in good faith and to the best of his ability. Further, Long agrees that, on appropriate advance
notice, he will, if so requested by either Employer or one of the Released Parties, provide
information and assistance as to any matter related to Longs duties and responsibilities under the
Employment Agreement. The Employer agrees to reimburse Long for all of his reasonable expenses
associated with such cooperation, including travel expenses.
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10. Return of Company Property. Long agrees to return to Employer, within five (5) days of
the Retirement Date, any and all documents, materials and information (whether in hard copy, on
electronic media or otherwise) and all keys, access cards, credit cards, computer hardware and
software, telephones and telephone-related equipment and all other property of Employer or the
Released Parties in his possession or control. Further, Long shall not retain any copy of
documents, materials or information (whether in hard copy, on electronic media or otherwise)
belonging to Employer or any of the Released Parties.
11. Acknowledgment of Reasonableness. Long has carefully read and considered the
provisions of this Agreement, has had the opportunity to consult with an attorney of Longs choice
and agrees that the restrictions set forth in this Agreement and in the Employment Agreement are
reasonably required for the protection of Employer and the Released Parties. In the event that any
provision relating to the scope of the restrictions contained in this Agreement or the Employment
Agreement shall be declared by a court of competent jurisdiction to exceed the maximum scope that
such court deems reasonable and enforceable under applicable law, such scope of restriction held
reasonable and enforceable by the court shall thereafter be the scope of the Employment Agreement
and/or this Agreement as may be applicable.
12. Tax Liability. Long understands and agrees that to the extent any tax liability may
now or hereafter become due because of this Agreement, such liability shall be his sole
responsibility. On behalf of himself, his heirs, executors, administrators, successors and
assigns, he agrees to pay any taxes, penalties or interest that may be determined to be due and
payable, other than such taxes as may be withheld from Longs compensation during the Transition
Period. In addition, on behalf of himself, his heirs, executors, administrators, successors and
assigns, Long agrees to indemnify and hold Employer harmless for any and all taxes, penalties,
interest or other costs and expenses that may be or become due as a result of this Agreement, other
than such taxes as may be withheld from Longs compensation during the Transition Period.
13. Notices. Any notice contemplated, required, or permitted under this Agreement shall be
sufficient if in writing and shall be deemed given when delivered personally or mailed by
registered or certified mail, return receipt requested, to the addresses listed below:
(a) To Long: | William A. Long, Sr. 125 Wickersham Dr. Statesville, NC 28265 |
|||
(b) To the Company: | Yadkin Valley Financial Corporation 204 South Elm Street Statesville, NC 28687 Attn: Laura Nelson Blalock |
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(c) To the Bank: | Yadkin Valley Bank and Trust 204 South Elm Street Statesville, NC 28687 Attn: Laura Nelson Blalock |
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14. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of North Carolina, without regard to its conflicts of laws provisions.
15. Severability. Each provision of this Agreement is intended to be severable. If any
term or provision other than Section 2 of this Agreement is held to be invalid, void or
unenforceable by a court of competent jurisdiction for any reason whatsoever, such ruling shall not
affect the remainder of this Agreement.
16. Voluntary Execution. The parties, intending to be legally bound, apply their
signatures voluntarily and with full understanding of the contents of this Agreement and after
having had ample time to review and study this Agreement.
17. Affirmation of TARP Waiver Agreements. For purposes of clarity, nothing in this
Agreement or in any other agreement, plan, program or arrangement will entitle Long to any
payments, rights or benefits to the extent they are prohibited as a result of the Companys
participation in the CPP under TARP. To that end, Long expressly reaffirms the TARP Waiver
Agreements executed by him on January 16, 2009 and July 24, 2009 as a condition of the Companys
participation in the CPP.
18. Entire Agreement. This Agreement constitutes the entire agreement between Long and
Employer as of the date hereof with respect to the subject matter hereof and supersedes any
previous understandings, representations, statements and agreements, whether oral or written,
between or among the parties with respect to the subject matter hereof; provided, however, the
provisions contained in this Agreement shall be in addition to and not in lieu of any obligations
of confidentiality or noncompetition contained in the Employment Agreement. This Agreement shall
not be modified or changed in any way except by a writing executed by both parties hereto or as
otherwise set forth herein this Agreement.
/s/ William A. Long, Sr. | (Seal) | |||
William A. Long, Sr. | ||||
Date: 2/14/2011 |
ATTEST: | YADKIN VALLEY FINANCIAL CORPORATION | |||||
By: | /s/ Patricia H. Wooten | By: | /s/ Ralph L. Bentley | |||
Name: | Patricia H. Wooten | Ralph L. Bentley, Chairman of the Board | ||||
Date: 2/14/2011 | ||||||
ATTEST: | YADKIN VALLEY BANK AND TRUST | |||||
By: | /s/ Patricia H. Wooten | By: | /s/ Ralph L. Bentley | |||
Name: | Patricia H. Wooten | Ralph L. Bentley, Chairman of the Board | ||||
Date: 2/14/2011 |
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