Exhibit 10.4
July 24, 2009
[Executive]
Yadkin Valley Financial Corporation
209 North Bridge Street
Elkin, North Carolina 28621
Dear [Executive],
Yadkin Valley Financial Corporation
(the “Company”) anticipates entering into a Securities
Purchase Agreement (the “Participation Agreement”) with
the United States Department of Treasury (the
“Treasury”) that provides, among other things, for the
purchase by the Treasury of securities issued by the Company. This
purchase is anticipated to occur as part of the Company’s
participation in the Treasury’s Troubled Asset Relief Program
- Capital Purchase Program (the “CPP”).
As a condition to the closing of the
investment contemplated by the Participation Agreement, the Company
is required to take certain actions with respect to compensation
arrangements of its senior executive officers, including senior
executive officers of its wholly owned subsidiary, Yadkin Valley
Bank and Trust Company. The Company has determined that you are or
may be a senior executive officer for purposes of the CPP. To
comply with the requirements of the CPP, and in consideration of
the benefits that you will receive as a result of the
Company’s participation in the CPP and for other good and
valuable consideration, the sufficiency of which you hereby
acknowledge, you agree as follows:
(1)
No Golden Parachute Payments. You
will not be entitled to receive from the Company any golden
parachute payment (as defined below) during any period in which the
Treasury holds an equity or debt position acquired from the Company
in the CPP, as defined by Section 111(a)(5) of EESA (as
defined below) (the “CPP Covered Period”) (or during
the year following any acquisition of the Company, to the extent
required by the CPP Limitations (as defined below)).
(2)
No Bonus, Retention Award, or
Incentive Compensation. You will not be entitled to receive
from the Company any bonus, retention award, or incentive
compensation during the CPP Covered Period, except for certain long
term restricted stock payments and previously determined bonus
payments to the extent permitted by
Section 111(b)(3)(D) of EESA (as defined
below).
(3)
No Tax Gross-Up Payments. You
will not be entitled to receive from the Company any tax gross-up
(as defined below), including a right to a payment of such gross-up
at a date following the CPP Covered Period, or other reimbursements
for the payment of taxes during the CPP Covered Period.
(4)
Recovery of Bonus and Incentive
Compensation. You will be required to and shall return to the
Company any bonus or incentive compensation paid to you by the
Company during the CPP Covered Period if such bonus or incentive
compensation is paid to you based on materially inaccurate
financial statements or any other materially inaccurate performance
metric criteria.
UST Sequence No. 701
