Exhibit 10.5
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 William A.
Long of Statesville, North Carolina (the
“Officer”). This Agreement amends and restates
that certain employment agreement dated April 1,
2000.
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.
Employment
. 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 President and
Chief Executive Officer 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 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
$324,046 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.
The rate of such salary shall be reviewed by the Directors not less
often than annually and if increased, shall not be decreased during
the term of this Agreement. Such rate of salary, or increased
rate of salary, as the case may be, may be further increased from
time to time in such amounts as the Directors, in their discretion,
may decide. In determining salary increases, the Directors
shall compensate the Officer for increases in the cost of living
and may also provide for performance or merit increases.
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 Employer and the
Officer.
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3.
Discretionary
Bonuses . During the term of this Agreement, the
Officer shall be entitled 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 and dental coverage and disability insurance 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,
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 provide the
Officer with the use of a late model automobile suitable to the
status of the chief executive officer of the Employer of a type and
for lease terms to be approved the Executive Committee of the
Employer. The Employer shall pay for all reasonable expenses,
including, but not limited to, insurance coverage and gasoline, by
the Officer in connection with the operation and maintenance of
such automobile. Replacement of the automobile shall be made
only with the approval of the Directors and in accordance with the
policies of the Bank in effect from time to time relating to the
replacement of automobiles.
(c)
The Officer shall be insured by the
Employer under a term insurance policy providing a death benefit of
up to $250,000 with such members of the Officer’s family
named as beneficiaries as the Officer may determine.
(d)
The Employer shall pay the expenses
of the Officer for membership and dues in the Statesville Country
Club and The Point Country Club, in one civic club, and for a
family membership in a health facility.
(e)
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 attending annual
and periodic meetings of trade associations, 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
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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 three 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 the
Officer’s duties and responsibilities under this
Agreement.
(b)
During the term of this Agreement,
or any renewals thereof, and for a period of one year after
termination, the Officer agrees he will not, within Iredell County,
North Carolina, or within 30 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 Bank. 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.
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(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 prov
