Moss v. Towell

Moss v. Towell, 

.


STATE OF NORTH CAROLINA                IN THE GENERAL COURT OF JUSTICE
                                           SUPERIOR COURT DIVISION
COUNTY OF WAKE                                   16 CVS 11038

JOHN MOSS, on Behalf of Himself and
All Others Similarly Situated,

                 Plaintiff,

       v.

JOSEPH H. TOWELL; SCOTT M.
CUSTER; J. ADAM ABRAM;
MICHAEL S. ALBERT; DAVID S.
BRODY; HARRY M. DAVIS; BARRY Z.
DODSON; THOMAS J. HALL;
THIERRY F. HO; STEVEN J.
LERNER; MICHAEL S. PATTERSON;             ORDER & OPINION APPROVING
MARY E. RITTLING; HARRY C.                       SETTLEMENT
SPELL; RICHARD A. URQUHART III;
NICOLAS D. ZERBIB; and F.N.B.
CORPORATION,

                 Defendants,

       and

YADKIN FINANCIAL
CORPORATION,

                 Nominal Defendant.


      1.     THIS MATTER is before the Court on Plaintiff’s Motion for Final

Approval of Settlement (“Motion for Settlement Approval”).      For the reasons

discussed below, the Court RESERVES and retains jurisdiction to rule on a pending

request for a fee award, CERTIFIES a Settlement Class as defined below,

APPROVES the Settlement, and DISMISSES all class claims with prejudice.
      Rigrodsky & Long, P.A., by Seth D. Rigrodsky (pro hac vice), Brian D.
      Long (pro hac vice), and Jeremy J. Riley (pro hac vice), and the Law
      Offices of James Scott Farrin, by Gary W. Jackson for Plaintiff John E.
      Moss.

      Reed Smith LLP, by Roy W. Arnold (pro hac vice), and Smith Moore
      Leatherwood LLP, by Robert R. Marcus for Defendant F.N.B.
      Corporation.

      Skadden, Arps, Slate, Meagher & Flom LLP, by Paul J. Lockwood (pro
      hac vice), Joseph O. Larkin (pro hac vice), and Alyssa S. O’Connell (pro
      hac vice), Moore & Van Allen PLLC, by Mark A. Nebrig, and
      Cadwalader, Wickersham & Taft LLP, by Jonathan M. Watkins for
      Defendants Yadkin Financial Corporation, Joseph H. Towell, Scott M.
      Custer, J. Adam Abram, Michael S. Albert, David S. Brody, Harry M.
      Davis, Barry Z. Dodson, Thomas J. Hall, Thierry F. Ho, Steven J. Lerner,
      Michael S. Patterson, Mary E. Rittling, Harry C. Spell, Richard A.
      Urquhart III, and Nicolas D. Zerbib.

Gale, Chief Judge.

       I.    NATURE OF THE DISPUTE AND PROCEDURAL HISTORY

      2.    John E. Moss (“Plaintiff”) is a former owner of Yadkin Financial

Corporation (“Yadkin”) stock.

      3.    On July 20, 2016, Yadkin entered into a merger agreement (“Merger”),

whereby F.N.B. Corporation (“FNB”) agreed to acquire all outstanding Yadkin stock,

and Yadkin shareholders agreed to receive 2.16 shares of FNB stock for each Yadkin

share they owned (“Transaction”).

      4.    On September 1, 2016, Plaintiff filed a putative class action and

shareholder derivative complaint (“Complaint”) against Yadkin directors Joseph H.

Towell, Scott M. Custer, J. Adam Abram, Michael S. Albert, David S. Brody, Harry

M. Davis, Barry Z. Dodson, Thomas J. Hall, Thierry F. Ho, Steven J. Lerner, Michael

S. Patterson, Mary E. Rittling, Harry C. Spell, Richard A. Urquhart III, Nicolas D.
Zerbib (collectively, the “Individual Defendants”), FNB, and Yadkin (collectively with

the Individual Defendants, “Defendants”).

      5.     The Complaint asserted direct and derivative claims that (1) the

Individual Defendants breached their fiduciary duties when they agreed to the

Merger with allegedly unfavorable terms that undervalued Yadkin’s shares, and (2)

FNB aided and abetted the Individual Defendants in breaching their fiduciary duties.

(Compl. ¶¶ 56–84, ECF No. 1).

      6.     On October 5, 2016, the action (“Action”) was designated as a complex

business case by order of the Chief Justice of the Supreme Court of North Carolina

and then assigned to the undersigned the following day.

      7.     On October 17, 2016, Yadkin filed its definitive proxy statement (“Initial

Proxy”) with the SEC, which disclosed information about the Merger.

      8.     On October 18, 2016, Plaintiff filed an amended complaint (“Amended

Complaint”), which further alleged that the Individual Defendants breached their

fiduciary duties by failing to disclose allegedly material information about the

Merger. (Am. Compl. ¶¶ 89–90 ECF No. 7.)

      9.     On October 20, 2016, Plaintiff filed a Motion for Expedited Proceedings,

and Yadkin agreed to provide discovery to Plaintiff on an expedited basis in advance

of a motion and hearing for a preliminary injunction to enjoin the Merger. The parties

conducted expedited discovery.

      10.    On November 22, 2016, Plaintiff filed a Motion for a Preliminary

Injunction, seeking to enjoin a potential shareholder vote on the Merger until Yadkin
disclosed additional information regarding Yadkin’s financial projections and

valuation.

        11.   On November 29, 2016, the parties entered into a Memorandum of

Understanding (“MOU”) to settle the action so long as Defendants made additional,

agreed-upon disclosures (“Supplemental Disclosures”) before a shareholder vote on

the Merger (“Settlement”).

        12.   On November 29, 2016, Yadkin filed the Supplemental Disclosures with

the SEC.

        13.   On December 9, 2016, Yadkin’s shareholders approved the Merger

(“Shareholder Vote”) and, on March 11, 2017, the Merger closed.

        14.   Plaintiff conducted confirmatory discovery following the Shareholder

Vote.

        15.   On October 20, 2017, Plaintiff submitted a Stipulation and Agreement

of Compromise, Settlement, and Release (together with exhibits, “Stipulation”), and

filed a Motion for Preliminary Approval of Settlement, Certification of Class,

Approval of Class Notice, and Final Approval Hearing Scheduling.

        16.   On November 16, 2017, the Court entered its Order Preliminarily

Approving Settlement and Certifying Class and Scheduling Order (“Order

Preliminarily Approving Settlement”), which: (1) preliminarily certified a class action

pursuant to Rule 23 of the North Carolina Rules of Civil Procedure, solely for the

purpose of effectuating the Settlement and subject to a hearing to further address the

fairness, reasonableness, and adequacy of the Settlement (“Settlement Hearing”);
(2) set the Settlement Hearing for February 28, 2018; and (3) approved the form and

method of notice (“Notice”) described in the Order Preliminarily Approving

Settlement.

      17.     On February 7, 2018, Plaintiff filed the Motion for Settlement Approval.

      18.     The Court received an affidavit certifying that, as of February 13, 2018,

19,881 copies of the Notice approved by the Court in its Order Preliminarily

Approving Settlement were mailed to class members and nominees. (Aff. Service

Notice Pendency Class Action, Class Action Determination, Proposed Settlement

Class Action, Settlement Hearing, Right to Appear 4, ECF No. 45.)

      19.     On February 28, 2018, the Court conducted the Settlement Hearing, at

which class counsel and counsel for Defendants appeared and responded to the

Court’s questions.     Prior to that hearing, the Court had advised the parties of

questions on which the Court must be satisfied prior to its consideration of any award

of attorneys’ fees, costs, or expenses, including whether the fee agreement between

class counsel and Plaintiff complied with Rules 1.5 and 1.8 of the North Carolina

Rules of Professional Conduct. See N.C. Rules Prof’l Conduct Rs. 1.5, 1.8. Because

the Settlement does not depend upon the Court’s award of any attorneys’ fees, the

Court, in its discretion, elected to separately consider the Motion for Settlement

Approval while reserving its consideration of counsel’s request for attorneys’ fees,

costs, and expenses.
      20.      The Court was further advised at the Settlement Hearing that no

member of the proposed class had filed an objection to the Settlement. One class

member attended the hearing but lodged no objection and did not request to be heard.

        II.     CLASS CERTIFICATION AND SETTLEMENT APPROVAL

A.    The Court Certifies a Settlement Class.

      21.      The Motion for Settlement Approval requests, and the Settlement

contemplates, that the Court will certify a settlement class for purposes of the

Settlement only, pursuant to Rule 23 of the North Carolina Rules of Civil Procedure

(“Rule 23”).

      22.      Rule 23 allows North Carolina trial courts to certify a class action if it

finds that each of the following requirements are met:

      (1) the existence of a class, (2) . . . the named representative will fairly
      and adequately represent the interests of all class members, (3) . . . there
      is no conflict of interest between the representative and class members,
      (4) . . . class members outside the jurisdiction will be adequately
      represented, (5) . . . the named party has a genuine personal interest in
      the outcome of the litigation, (6) . . . class members are so numerous that
      it is impractical to bring them all before the court, [and] (7) . . . adequate
      notice of the class action is given to class members.

In re PokerTek Merger Litig., No. 14 CVS 10579, 

, at *9 (N.C.

Super. Ct. Jan. 22, 2015) (quoting Ehrenhaus v. Baker, Order No. 08 CVS 22632 ¶ 39

(N.C. Super. Ct. Feb 5, 2010)) (alterations in original); see also N.C. Gen. Stat. § 1A-

1, Rule 23 (2015).

      23.      “[A] ‘class’ exists . . . when the named and unnamed members each have

an interest in either the same issue of law or of fact, and that issue predominates over

issues affecting only individual class members.” Crow v. Citicorp Acceptance Co., 

, 

 (1987).          When a class meets the above

requirements, “this Court has regularly acknowledged its broad discretion in

considering class certification.” In re Krispy Kreme Doughnuts S’holder Litig., No. 16

CVS 3669, 

, at *8 (N.C. Super. Ct. Jan. 2, 2018) (“Krispy Kreme”);

see also, In re Newbridge Bancorp S’holder Litig., No. 15 CVS 9251, 

, at *15 (N.C. Super. Ct. Nov. 22, 2016); In re Harris Teeter Merger Litig.,

No. 13 CVS 12579, 

, at *8 (N.C. Super. Ct. Sept. 24, 2014).

      24.    Having thoroughly considered the matters of record, the Court finds and

concludes that the requirements of Rule 23 have been met and that it should, in its

discretion, certify a settlement class (“Settlement Class”). Specifically, the Court

finds and concludes that: the named and unnamed members of the Settlement Class

have a common interest in the same issues of law and fact; Plaintiff’s claims are

typical of the members of the proposed class; Plaintiff has a genuine personal interest

in the Action; there is no apparent conflict of interest between Plaintiff and any

unnamed member of the proposed class; Plaintiff can adequately represent and has

adequately represented unnamed members of the proposed class, both within and

without North Carolina; the common issues presented in the Action predominate over

any issues that might only affect members individually; the number of members of

the proposed class are so numerous that joining them individually is impractical; the

Action seeks relief, including injunctive relief, that is common to all members of the

proposed class; the Notice provided to putative class members afforded adequate due

process to putative class members and was appropriate, the best notice practicable
under the circumstances, and otherwise in full accord with all substantive and

procedural requirements imposed by law; and a class action is the efficient, practical,

and superior method for proceeding.

      25.      Accordingly, in its discretion, the Court, solely for purposes of

effectuating the Settlement, certifies the following non-opt out Settlement Class,

defined as:

      any and all record holders and beneficial owners of common stock of
      Yadkin who held or owned such stock at any time during the period
      beginning on and including July 21, 2016 through and including March
      11, 2017, the date of consummation of the Yadkin/FNB merger (the
      “Class Period”), and including any and all of their respective successors-in-interest,    successors,     predecessors-in-interest,      predecessors,
      representatives, trustees, executors, administrators, estates, heirs,
      assigns and transferees, immediate and remote, and any person or
      entity acting for or on behalf of, or claiming under, any of them, and each
      of them, together with their predecessors-in-interest, predecessors,
      successors-in-interest, successors, and assigns. Excluded from the
      Settlement Class are Defendants and their immediate family members,
      any entity in which any Defendant has a controlling interest, and any
      successors-in-interest of such entity.

      26.      The Court appoints Plaintiff as Class Representative and Rigrodsky &

Long, P.A. as lead counsel for the Settlement Class (“Class Counsel”).

B.    The Court Defers Ruling on Class Counsel’s Request for the Award of
      Attorneys’ Fees, Costs, and Expenses.

      27.      Neither the Settlement nor Court approval of the Settlement depends

upon the Court’s approval of attorneys’ fees, costs, or expenses to Class Counsel.

(Stipulation    and   Agreement    of   Compromise,       Settlement   and   Release   13

(“Stipulation”), ECF No. 35 (“[T]he Settlement is expressly not conditioned on[ ] Court

approval of attorneys’ fees, costs[,] and expenses.”).)
        28.   The Court, in its discretion, reserves determination of Class Counsel’s

request for fees, costs, and expenses and proceeds to consider the fairness,

reasonableness, and adequacy of the Settlement independent of the Court’s review of

any such award.

        29.   The parties have requested an opportunity to submit additional

authorities or supporting materials regarding Class Counsel’s request for fees, costs,

and expenses. Any such supplemental filings shall be made on or before March 30,

2018.

C.      The Settlement is Fair, Reasonable, and Adequate.

        (1)   The Court has examined the balance between the “give” and the
              “get” of the Settlement terms.

        30.   “Rule 23 requires court approval of any class settlement, recognizing

that class settlements present particular due process considerations because they

bind individuals not before the court.” Krispy Kreme, 

, at * 12

(citing Ehrenhaus v. Baker, 

, 

 (2011) (“Ehrenhaus

I”)).   However, North Carolina courts “have favored settlement of class actions

provided that a court determines that there has been fair notice, an opportunity for

class members to object, and that the settlement terms are fair, reasonable, and

adequate.” Krispy Kreme, 

, at *12, (citing Ehrenhaus I, 

, 

).

        31.   The Court considers various factors when determining whether a

proposed class settlement is fair, reasonable, and adequate, including:
            (a) the strength of the plaintiff’s case, (b) the defendant’s ability to
            pay, (c) the complexity and cost of further litigation, (d) the amount
            of opposition to the settlement, (e) class members’ reaction to the
            proposed settlement, (f) counsel’s opinion, and (g) the stage of the
            proceedings and how much discovery has been completed.

In re Newbridge Bancorp S’holder Litig., 

, at *21–22 (citing

Ehrenhaus I, 216 N.C. App. at 73–75, 717 S.E.2d at 19–20).

      32.      As this Court recently noted, “[a] court may be particularly vigilant in

its inquiry where a proposed settlement yields substantial rewards for class counsel

without any corresponding monetary benefit to class members.” Krispy Kreme, 

, at *12. In a disclosure-based settlement, courts maintain such

vigilance by carefully examining the “give” and the “get” of the settlement. 

 at *17

(citing In re Newbridge S’holder Litig., 

, at *22). In such

settlements, “the ‘get’ is the value of the supplemental disclosures and the ‘give’ is

the scope of the release encompassed by the settlement.” Krispy Kreme, 

, at *18. While the Court must “be careful not to simply substitute its own

judgment for that of competent litigation counsel that negotiated the settlement

terms at arm’s length[,]” it must also “guard against settlements based on inadequate

class representation and settlements reached through collusion that benefit only non-

class members.” Id. at *19.

      33.      However, “[a]s the scope of the release narrows, . . . the Court’s inquiry

as to the materiality of supplemental disclosures and their adequacy to support the

release tends to a more traditional settlement inquiry where the judgment of

competent counsel is accorded significant weight.” Id. at *19 (citing Ehrenhaus I, 

, 717 S.E.2d at 19–20). Accordingly, “[t]he Court must still engage

in its fairness inquiry and satisfy itself that the supplemental disclosures are

‘material’ as that term has been defined by North Carolina’s appellate courts, while

at the same time resisting a reflexive rejection of a class settlement on grounds of

immateriality or insufficient consideration.” Id. at *20. As this Court summarized

in Krispy Kreme,

      the Court must examine the materiality of any supplemental disclosures
      and find that they provide reasonable consideration for the class release.
      But where there is little or no opposition by class members, the Court is
      reluctant to set aside a fair arm’s length settlement negotiated between
      competent counsel if the disclosures are not plainly immaterial and the
      release is reasonable.

, at *21.

      (2)    The Supplemental Disclosures are sufficiently material to serve
             as reasonable consideration for the narrow release granted.

      34.    North Carolina uses the standard of materiality set out by the Supreme

Court of the United States in TSC Industries, Inc. v. Northway, Inc., 

(1976). See Ehrenhaus I, 

, 717 S.E.2d at 28–29 (adopting TSC

Industries’ materiality standard); Krispy Kreme, 

, at *21–22

(same). In TSC Industries, the Supreme Court held that:

      [a]n omitted fact is material if there is a substantial likelihood that a
      reasonable shareholder would consider it important in deciding how to
      vote. . . . It does not require proof of a substantial likelihood that
      disclosure of the omitted fact would have caused the reasonable investor
      to change his vote. What the standard does contemplate is a showing of
      a substantial likelihood that, under all the circumstances, the omitted
      fact would have assumed actual significance in the deliberations of the
      reasonable shareholder. Put another way, there must be a substantial
      likelihood that the disclosure of the omitted fact would have been viewed
      by the reasonable investor as having significantly altered the “total mix”
      of information made available.

; see also Krispy Kreme, 

, at *21–22.

      35.    The Supplemental Disclosures on which the Settlement is based fall into

two areas: (1) disclosures relating to the background of the Merger and (2) disclosures

relating to Yadkin’s financial projections.

      36.    The Initial Proxy stated that four parties—that is, FNB and parties A,

B, and C—were interested in acquiring Yadkin. (Pl’s. Mem. L. Supp. Mot. Final

Approval Settlement 13, ECF No. 43.) The Supplemental Disclosures, however,

informed shareholders that another party—party D—was interested in acquiring

Yadkin. Further, the Supplemental Disclosures stated that each of the parties,

including FNB, had signed a non-disclosure agreement (“NDA”) with Yadkin, which,

Plaintiff asserts, corrected “a misleading impression that . . . parties [A through D]

were not seriously interested in acquiring Yadkin.” (Pl’s. Mem. L. Supp. Mot. Final

Approval Settlement 13–14.)         The Supplemental Disclosures also informed

shareholders that the NDAs Yadkin entered into with parties A, C, and D contained

“don’t ask, don’t waive” (“DADW”) standstill provisions, which precluded interested

parties from offering to acquire Yadkin without a written invitation from Yadkin’s

board. (Pl’s. Mem. L. Supp. Mot. Final Approval Settlement 14.)

      37.    The Supplemental Disclosures regarding Yadkin’s financial projections

included Yadkin’s projected earnings per share, net income, dividends per share, and

tangible book value for the years 2018, 2019 and 2020. The Initial Proxy contained

only Yadkin’s projections for 2016 and 2017. Yadkin’s financial advisor used the
2018, 2019, and 2020 projections to calculate Yadkin’s “critical 2020 terminal value.”

(Pl’s. Mem. L. Supp. Mot. Final Approval Settlement 15–16.)

       38.   The release contained in the Stipulation (“Release”) releases claims

based on “ownership of Yadkin common stock during the Class Period that relate in

any way” to: (1) the Merger; (2) any deliberations in connection with the Merger; (3)

consideration received by class members in connection with the Merger;

(4) consideration received by non-class members in relation to the Merger; (5) the

Shareholder Vote; (6) the statutory fiduciary obligations of the released parties in

connection with the Merger; or (7) any of the allegations filed in the Action.

(Stipulation 9–10.) The Release does not include “claims under federal or state law

that do not in any respect arise out of, or do not relate to” the Merger or the

Shareholder Vote. (Stipulation 10.) The Release, as this Court noted regarding a

substantially similar release in a disclosure-only settlement, “is not significantly

broader than the effect of the Shareholder Vote.” Krispy Kreme, 

, at *25.

       39.   As to the Supplemental Disclosures regarding the NDAs and the DADW

provisions, this Court has found similar disclosures adequate to support a settlement.

In re Harris Teeter Merger Litig., 

, at *18–19 (citing In re

Ancestry.com Inc. S’holder Litig., C.A. No. 7988-CS, 

 (Del.

Ch. Dec. 17, 2012) (transcript)). As to the Supplemental Disclosures regarding the

projections relied on by Yadkin’s financial advisor to form a fairness opinion, this
Court has found similar disclosures adequate to support a settlement. See, e.g.,

Krispy Kreme, 

, at *25–27.

      40.     Regarding the financial metrics disclosures, Class Counsel explained at

the Settlement Hearing that Yadkin’s financial advisor used the data for 2018, 2019,

and 2020 to generate the Net Present Value Analysis of Yadkin. While Class Counsel

conceded that some metrics, including earnings per share, could arguably have been

calculated without those Supplemental Disclosures, other metrics, including tangible

book value, could not have been. Defendants, without conceding that they breached

their fiduciary duties when issuing the Initial Proxy, do not challenge that Class

Counsel “presents a reasoned argument that some shareholders might have found

the Supplemental Disclosures to be material.” Id. at *27. Further, while Class

Counsel forthrightly acknowledged that it may have been possible to reasonably

approximate underlying assumptions made in the fairness opinion without the

Supplemental Disclosures, Class Counsel maintained that, regardless, the

Supplemental Disclosures regarding the DADW standstill agreements were plainly

material and essential to any class member’s full consideration of whether to approve

the Merger.

      41.     In response, Defendants’ counsel candidly admitted the potential

relevance of the disclosures regarding the DADW standstill agreements in light of

the uncertainty of developed precedents regarding such agreements.              While

Defendants remain confident that they would have successfully defended against any

effort to enjoin either the Merger or the shareholder meeting to consider it, there is
developed precedent that would have made any such injunction request at least

colorable. See In re Complete Genomics S’holder Litig., C.A. No. 7888-VCL 14–18

(Del. Ch. Nov. 27, 2012) (transcript) (enjoining the effects of DADW clauses and

holding that the clauses resulted in a board willfully blinding itself to the possibility

of a competing offer); see also Koehler v. NetSpend Holdings Inc., No. CIV. A. 8373-

VCG, 

, at *68–73 (Del. Ch. May 21, 2013) (discussing

Complete Genomics and concluding that a sale process was unreasonable).

Defendants thus join Class Counsel in asserting that the Supplemental Disclosures,

at least as to the DADW agreements, were adequate consideration for the tailored

Release included in the Settlement.

      42.    The Court finds and concludes that the Supplemental Disclosures are

“reasonable consideration” for the Settlement. Krispy Kreme, 

,

at *21. Further, the Court finds that the value of the Supplemental Disclosures is

not “plainly disproportionate” to the scope of the Release, which is narrow, and that

the Release is “reasonable.” Id. at *20, 21.

      43.    The Court has further considered the Ehrenhaus factors and concludes

that they support Settlement approval.          Defendants’ ability to pay is not a

consideration in this case. The Shareholder Vote and the opinion of counsel weigh

heavily in favor of court approval. In light of the Supplemental Disclosures and the

Shareholder Vote, the record does not suggest that the shareholders have a

meritorious process-based claim. Class Counsel advises, and the Court finds no
reasoned basis to disagree, that there is no reasonable likelihood of any finding that

the Merger was based on an unfair price.

      44.    There is also no basis to suspect that the parties colluded to reach the

Settlement, and, instead, it appears that they reached the Settlement through arm’s-

length negotiations. That counsel for parties on both sides include some of the most

prominent national firms well-experienced in litigation of a similar nature further

supports court approval.

                                  III.   CONCLUSION

      45.    Based on the above findings and conclusions, the Court finds the

Settlement to be fair, reasonable, adequate, and in the best interests of the

Settlement Class, and it is hereby APPROVED. The parties are hereby authorized

and directed to comply with and to consummate the Settlement in accordance with

its terms and provisions, and the Clerk is directed to enter and docket this Order and

Final Judgment in the Action.

      46.    This Order and Final Judgment shall not constitute any evidence or

admission by any of the parties herein that any acts of wrongdoing have been

committed by any of the parties to the Action and should not be deemed to create any

inference that there is any liability therefor.

      47.    The Action is hereby DISMISSED WITH PREJUDICE in its entirety on

the merits and, except as provided in the Stipulation, without fees, costs, and

expenses beyond those approved herein and with the understanding that this
dismissal shall not affect or preclude the Court’s further consideration of Class

Counsel’s request for a fee award.

      48.    This Order and Final Judgment provides for the full and complete

discharge, dismissal with prejudice, settlement and release of, and a permanent

injunction barring, any and all manner of claims, demands, rights, liabilities, losses,

obligations, duties, costs, debts, expenses, interest, penalties, sanctions, fees,

attorneys’ fees, actions, potential actions, causes of action, suits, agreements,

judgments, decrees, matters, issues and controversies of any kind, nature or

description whatsoever, disclosed or undisclosed, accrued or unaccrued, apparent or

not apparent, foreseen or unforeseen, matured or not matured, suspected or

unsuspected, liquidated or not liquidated, fixed or contingent, that Plaintiff or any or

all other members of the Settlement Class ever had, now have, or may have, whether

direct, derivative, individual, class, representative, legal, equitable or of any other

type, or in any other capacity, based on his, her, or its ownership of Yadkin common

stock during the Class Period, against any of the Released Parties (as defined below),

whether based on state, local, foreign, federal, statutory, regulatory, common or other

law or rule (including, but not limited to, any claims under federal or state securities

laws or state disclosure law or any claims that could be asserted derivatively on

behalf of Yadkin), which, now or hereafter, are based upon, arise out of, relate in any

way to, or involve, directly or indirectly, any of the actions, transactions, occurrences,

statements, representations, misrepresentations, omissions, allegations, facts,

practices, events, claims or any other matters, things or causes whatsoever, or any
series thereof, that were or could have been alleged, asserted, set forth, claimed,

embraced, involved, or referred to in, or related to, directly or indirectly, the Action,

or the subject matter thereof in any court, tribunal, forum or proceeding, including,

without limitation, any and all claims that are based upon, arise out of, relate to, or

involve, directly or indirectly, (i) the Transaction or the Merger (or any amendment

thereto), (ii) any deliberations or negotiations in connection with the Transaction or

the Merger (or any amendments thereto), including the process of deliberation or

negotiation by Defendants, and any of their respective officers, directors, principals,

partners or advisors, (iii) the consideration received by Settlement Class members in

connection with the Transaction or the Merger, (iv) the consideration received by any

other person in connection with the Transaction or the Merger (including, but not

limited to, any Yadkin or FNB agreement), (v) the Shareholder Vote, including any

disclosures or statements relating to the Transaction or the Merger in the Initial

Proxy (including any amendments) or other public disclosures, including, without

limitation, claims under the federal securities laws within the exclusive jurisdiction

of the federal courts, (vi) the statutory or fiduciary obligations, if any, of the Released

Parties (as defined below) in connection with the Transaction or the Merger, or (vii)

any of the allegations in any complaint or amendment(s) thereto filed in the Action

(collectively, the “Released Claims”); provided, however, for the avoidance of doubt,

nothing in this release intends for Released Claims to include (x) the right to enforce

the Stipulation or the Settlement, or (y) claims under federal or state law that do not
in any respect arise out of, or do not relate to, the Transaction, the Merger, or the

Shareholder Vote.

      49.    Defendants release Plaintiff and Plaintiff’s counsel from all claims,

complaints, petitions, liabilities, or sanctions arising out of the investigation,

commencement, prosecution, settlement, or resolution of the Action, and shall be

barred from asserting the same; provided, however, that such releases will not

include a release of the right to enforce the Stipulation or the Settlement.

      50.    Whether or not each or all of the following persons or entities were

named, served with process, or appeared in the Action, “Released Parties” means

FNB, Yadkin, Joseph H. Towell, Scott M. Custer, J. Adam Abram, Michael S. Albert,

David S. Brody, Harry M. Davis, Barry Z. Dodson, Thomas J. Hall, Thierry F. Ho,

Steven J. Lerner, Michael S. Patterson, Mary E. Rittling, Harry C. Spell, Richard A.

Urquhart III, and Nicolas D. Zerbib, and each of their respective past or present

family members, spouses, heirs, trusts, trustees, executors, estates, administrators,

beneficiaries, distributees, foundations, agents, employees, fiduciaries, partners,

control persons, partnerships, general or limited partners or partnerships, joint

ventures, member firms, limited liability companies, corporations, parents,

subsidiaries, divisions, affiliates, associated entities, shareholders, principals,

officers, managers, directors, managing directors, members, managing members,

managing agents, predecessors, predecessors-in-interest, successors, successors-in-

interest, assigns, financial or investment advisors, advisors, consultants, investment

bankers, entities providing any fairness opinion, underwriters, brokers, dealers,
lenders, commercial bankers, attorneys, personal or legal representatives,

accountants, insurers, co-insurers, reinsurers, and associates, of each and all of the

foregoing.

      51.    Any party providing a release (a “Releasing Person”) shall waive and

relinquish, to the fullest extent permitted by law, the provisions, rights and benefits

of any state, federal, or foreign law or principle of common law, which may have the

effect of limiting the release set forth above.      Plaintiff acknowledges, and the

members of the Settlement Class shall be deemed by operation of the entry of a final

order and judgment approving the Settlement to have acknowledged, that the

foregoing waiver was separately bargained for, is an integral element of the

Settlement, and was relied upon by each and all of the Defendants in entering into

the Settlement.

      52.    The fact of and provisions contained in the Stipulation, and all

negotiations, discussions, actions, and proceedings in connection with the

Stipulation, shall not be deemed or constitute a presumption, concession or an

admission by any party in the Action, any signatory thereof or any Released Parties

of any fault, liability, or wrongdoing or lack of any fault, liability, or wrongdoing, as

to any facts or claims alleged or asserted in the Action, or any other actions or

proceedings, and shall not be interpreted, construed, deemed, involved, invoked,

offered, or received in evidence or otherwise be used by any person in the Action or

any other action or proceeding, whether civil, criminal, or administrative, except in

connection with any proceeding to enforce the terms of the Stipulation. The Released
Parties may file the Stipulation and/or this Order and Final Judgment in any action

that may be brought against them in order to support a defense or counterclaim based

on principles of res judicata, collateral estoppel, release, good-faith settlement,

judgment bar or reduction, or any theory of claim preclusion or issue preclusion or

similar defense or counterclaim.

      53.    The Court retains jurisdiction for the purposes of its further

consideration of Class Counsel’s request for an award of fees, costs, and expenses and,

as necessary, to enforce this Order or the Stipulation. Any supplemental filings in

regard to Class Counsel’s request for an award of fees, costs, and expenses shall be

filed on or before March 30, 2018.


      SO ORDERED, this the 6th day of March, 2018.


                                         /s/ James L. Gale
                                        James L. Gale
                                        Chief Business Court Judge