Exhibit 10.6
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (this “Agreement”) is entered into as of
December 31, 2008, by and between Yadkin Valley Financial
Corporation, a North Carolina corporation (the
“Company”), 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”) and Edwin E. Laws
of Statesville, North Carolina (the “Officer”).
This Agreement amends and restates that certain employment
agreement dated February 1, 1999.
For and in consideration of their
mutual promises, covenants and conditions hereinafter set forth,
and other good and valuable consideration, the receipt and
sufficiency of which hereby is acknowledged, the parties agree as
follows:
1.
Emp1oyment
. The Employer agrees to continue to employ the
Officer and the Officer agrees to continue to accept employment
upon the terms and conditions stated herein as the Chief Financial
Officer and Treasurer of the Company and the Bank. The
Officer shall render such administrative and management services to
the Employer as are customarily performed by persons situated in a
similar executive capacity. The Officer shall promote the
business of the Employer, including being active in at least one
civic organization in Iredell County, and perform such other duties
as shall, from time to time, be reasonably assigned by the Board of
Directors of the Company or the Bank (collectively, the
“Directors”). Upon the request of the Directors,
the Officer shall disclose all business activities or commercial
pursuits in which Officer is engaged, other than Employer
duties.
2.
Compensation
. The Employer shall pay the Officer during the
term of this Agreement, as compensation for all services rendered
by the Officer to the Employer, a base salary at the rate of
$144,213 per annum, payable in cash in accordance with the
Employer’s standard payroll practices, which for purposes of
this Agreement shall mean not less frequently than monthly.
Participation in the Employer’s incentive compensation,
deferred compensation, discretionary bonus, profit-sharing,
retirement and other employee benefit plans and participation in
any fringe benefits shall not reduce the salary payable to the
Officer under this Paragraph. In the event of a Change in
Control (as defined in Paragraph 10), the Officer’s rate of
salary shall be increased not less than five percent annually
during the term of this Agreement. Any payments made under
this Agreement shall be subject to such deductions as are required
by law or regulation or as may be agreed to by the Bank and the
Officer.
3.
Discretionary
Bonuses . During the term of this Agreement, the Officer
shall be entitled, in an equitable manner with all other key
management personnel of the Employer, to such discretionary bonuses
as may be authorized, declared and paid by the Directors to the
Employer’s key management employees. All such bonuses
authorized and declared by the Directors shall be paid in cash at
the latest within sixty days of the earlier of such authorization
or declaration. No other compensation provided for in this
Agreement shall be
deemed a substitute for the Officer’s
right to such discretionary bonuses when and as declared by the
Directors.
4.
Participation in Retirement
and Employee Benefit Plans; Fringe Benefits
.
(a)
The Employer shall provide family
medical coverage for the Officer and the Officer shall also be
entitled to participate in any plan relating to deferred
compensation, stock options, stock purchases, pension, thrift,
profit sharing, group life insurance, disability coverage,
education, or other retirement or employee benefits that the
Employer has adopted, or may, from time to time adopt, for the
benefit of its executive employees or for employees generally,
subject to the eligibility rules of such plans. Any
options or similar awards shall be issued to the Officer at an
exercise price of not less than the stock’s current fair
market value (as determined in compliance with Treasury Regulation
§ 1.409A-1(b)(5)(iv)) as of the date of grant, and the number
of shares subject to such grant shall be fixed on the date of
grant.
(b)
The Employer shall pay the expenses
of the Officer for membership and dues in one country club and in
one civic club in Statesville.
(c)
The Officer shall also be entitled
to participate in any other fringe benefits which are now or may be
or become applicable to the Employer’s executive employees,
including the payment of reasonable expenses for continuing
education to maintain professional designations, and any other
benefits which are commensurate with the duties and
responsibilities to be performed by the Officer under this
Agreement. Additionally, the Officer shall be entitled to
such vacation and sick leave as shall be established under uniform
employee policies promulgated by the Directors. The Employer
shall reimburse the Officer for all out-of-pocket reasonable and
necessary business expenses which the Officer may incur in
connection with the Officer’s services on behalf of the
Employer. The Employer shall reimburse the Officer for such
expenses described in this Paragraph 4 within 60 days of
Officer’s incurring such expense.
5.
Term
. The initial term of employment under this
Agreement shall be for the period commencing upon the effective
date of this Agreement and ending one calendar years from the
effective date of this Agreement. On each anniversary of the
effective date of this Agreement, the term of this Agreement shall
automatically be extended for an additional one year period beyond
the then effective expiration date unless written notice from the
Employer or the Officer is received 90 days prior to an anniversary
date advising the other that this Agreement shall not be further
extended; provided that the Directors shall review the
Officer’s performance annually and make a specific
determination pursuant to such review to renew this Agreement prior
to the 90 days’ notice.
6.
Loyalty;
Noncompetition .
(a)
The Officer shall devote his full
efforts and entire business time to the performance of his duties
and responsibilities under this Agreement.
(b)
During the term of this Agreement,
or any renewals thereof, and for a period of [two] years after
termination, the Officer agrees he will not, within Iredell County,
North Carolina, or within 15 miles of any Bank office opened during
the term of this Agreement, directly or indirectly, own, manage,
operate, join, control or participate in the management, operation
or control of, or be employed by or connected in any manner with
any business which competes with the Employer or any of its
subsidiaries without the prior written consent of the Employer;
provided, however, that the provisions of this Paragraph shall not
apply in the event the Officer’s employment is unilaterally
terminated by the Employer for Cause, (as such term is defined in
Paragraph 8(c) hereof) or in the event the Officer terminates
his employment with the Employer for “good reason” (as
such term is defined in Paragraph 10(b) hereof) following a
“Change in Control” (as such term is defined in
Paragraph 10(d) hereof). Notwithstanding the foregoing,
the Officer shall be free, without such consent, to purchase or
hold as an investment or otherwise, up to five percent of the
outstanding stock or other security of any corporation which has
its securities publicly traded on any recognized securities
exchange or in any over the counter market.
(c)
The Officer agrees he will hold in
confidence all knowledge or information of a confidential nature
with respect to the business of the Employer or any subsidiary
received by the Officer during the term of this Agreement and will
not disclose or make use of such information without the prior
written consent of the Employer. The Officer agrees that he
will be liable to the Employer for any damages caused by
unauthorized disclosure of such information. Upon termination
of his employment, the Officer agrees to, return all records or
copies thereof of the Employer or any subsidiary in his possession
or under his control which relate to the activities of the Employer
or any subsidiary.
(d)
The Officer acknowledges that it
would not be possible to ascertain the amount of monetary damages
in the event of a breach by the Officer under the provisions of
this Paragraph 6. The Officer agrees that, in the event of a
breach of this Paragraph 6, injunctive relief enforcing the terms
of this Paragraph 6 is an appropriate remedy. If the scope of
any restriction contained in this Paragraph 6 is determined to be
too broad by any court of competent jurisdiction, then such
restriction shall be enforced to the maximum extent permitted by
law and the Officer consents that the scope of this restriction may
be modified judicially.
7.
Standards
. The Officer shall perform his duties and
responsibilities under this Agreement in accordance with such
reasonable standards expected of employees with comparable
positions in comparable organizations and as may be established
from time to time by the Directors. The Employer will provide
the Officer with the working facilities and staff customary for
similar executives and necessary for the Officer to perform his
duties.
8.
Termination and Termination
Pay .
For purposes of this
Agreement, the term “terminate” or
“termination” shall mean a “separation from
service” as defined by Treasury Regulation §
1.409A-1(h).
