EXHIBIT
10.35





AMENDED
AND RESTATED CHANGE OF CONTROL AGREEMENT





THIS
AMENDED AND RESTATED CHANGE OF CONTROL AGREEMENT (this "Agreement") is entered
into as of the 31st day of December, 2008, by and among FNB United Corp., a
North Carolina corporation and a registered bank holding company (the
"Corporation"), CommunityONEBank, National Association, a national banking association and a wholly
owned subsidiary of the Corporation (the "Bank") (hereinafter the Corporation
and the Bank, or their successors, are collectively referred to as the
"Company"), and R. Mark Hensley (the "Officer"), an individual residing in
Randolph County, North Carolina, and amends and restates and supersedes in its
entirety the Amended and Restated Change of Control Agreement dated as of April
7, 2006 by and among the Corporation, the Bank and the Officer.





WHEREAS,
the Officer has heretofore been employed by the Company with the title(s) of
Executive Vice President and Chief Banking Officer; and





WHEREAS,
the services of the Officer, the Officer's experience and knowledge of the
affairs of the Company and reputation and contacts in the industry are extremely
valuable to the Company; and





WHEREAS,
the Company wishes to attract and retain such well-qualified executives and it
is in the best interest of the Company and of the Officer to secure the
continued services of the Officer notwithstanding any change of control of the
Corporation or the Bank; and





WHEREAS,
the Company considers the establishment and maintenance of a sound and vital
management team to be part of their overall corporate strategy and to be
essential to protecting and enhancing the best interests of the Company and its
shareholders; and





WHEREAS,
the parties desire to enter into this Agreement to provide the Officer with
security in the event of a change of control of the Corporation or the Bank to
ensure the continued loyalty of the Officer during any change of control in
order to maximize shareholder value as well as the continued safe and sound
operation of the Company; and





WHEREAS,
the Officer and the Company acknowledge and agree that the Officer’s employment
with the Company is and will continue to be on an at-will basis and that this
Agreement is not an employment agreement but is limited to circumstances giving
rise to a change of control of the Corporation or the Bank as set forth
herein.





NOW,
THEREFORE, for and in consideration of the premises and mutual promises,
covenants, and conditions hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, the
parties hereby agree as follows:





1.           Term.  The
initial term of 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 date of this
Agreement, the term automatically shall be extended for an additional one-year
period so that the term shall again be three years unless either the Company or
the Officer notifies the other of its decision not to continue such annual
renewal by written notice given not less than 90 days prior to such anniversary
date.




2.           Change of
Control.




(a)           In
the event of a termination of the Officer's employment by the Company in
connection with, or within twenty-four (24) months after, a "Change of Control"
(as defined in subparagraph (f) below) of the Corporation or the Bank, for
reasons other than for "cause" (as defined in subparagraph (b) below), death or
“disability” (as defined in subparagraph (c) below), the Officer shall be
entitled to receive the sum set forth and defined in subparagraph (e)
below.   The termination of the Officer’s employment by the
Company shall be deemed a Termination Event for purposes of subparagraph (e)
below.




(b)           For
purposes of this Agreement, termination for “cause” shall mean termination by
reason of (i) an intentional, willful and continued failure by the Officer to
perform his duties as an employee of the Company (other than due to disability);
(ii) an intentional, willful and material breach by the Officer of his
fiduciary duties of loyalty and care to the Company; (iii) a conviction of,
or the entering of a plea of nolo contendere by the Officer for any felony or
any crime involving fraud or dishonesty, or (iv) a willful and knowing
violation of any material federal or state law or regulation applicable to the
Corporation or the Bank or the occurrence of any act or event as a result of
which the Officer becomes unacceptable to, or is removed, suspended or
prohibited from participating in the conduct of the Company’s affairs by any
regulatory authority having jurisdiction over the Corporation or the
Bank.




(c)           For
purposes of this Agreement, “disability” shall mean the inability, by reason of
bodily injury or physical or mental disease, or any combination thereof, of the
Officer to perform his customary or other comparable duties with the Company for
a period of 90 consecutive days.  In the event that the Officer and
the Company are unable to agree as to whether the Officer is suffering a
disability, the Officer and the Company shall each select a physician and the
two physicians so chosen shall make the determination or, if they are unable to
agree, they shall select a third physician, and the determination as to whether
the Officer is suffering a disability shall be based upon the determination of a
majority of the three physicians.  The Company




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shall pay
the reasonable fees and expenses of all physicians selected pursuant to this
subparagraph (c).




(d)           The
Officer shall have the right to resign his employment with the Company and
terminate this Agreement upon the occurrence of any of the following events (the
"Termination Events") within twenty-four (24) months following a Change of
Control of the Corporation or the Bank:




(i)           The
Officer is assigned any duties and/or responsibilities that constitute a
material diminution of the Officer’s authority, duties or responsibilities at
the time of the Change of Control;




(ii)           The
Officer's annual base salary rate is reduced below the annual amount in effect
as of the effective date of a Change of Control or as the same shall have been
increased from time to time following such effective date;




(iii)           The
Officer's life insurance, medical or hospitalization insurance, disability
insurance, stock option plans, stock purchase plans, deferred compensation
plans, management retention plans, retirement plans, or similar plans or
benefits being provided by the Company to the Officer as of the effective date
of the Change of Control are reduced in their level, scope, or coverage, or any
such insurance, plans, or benefits are eliminated, unless such reduction or
elimination applies proportionately to all salaried employees of the Company who
participated in such benefits prior to such Change of Control; or




(iv)           The
Officer is required to transfer performance of his day-to-day services required
hereunder to a location which is more than fifty (50) miles from the Officer's
current principal work location, without the Officer's express written
consent.




A
Termination Event shall be deemed to have occurred on the date such action or
event is implemented or takes effect.




(e)           In
the event that the Officer resigns his employment and terminates this Agreement
pursuant to subparagraph (d) above, the Company will be obligated to pay or
cause to be paid to the Officer an amount equal to two times the Officer’s total
cash compensation, including salary and bonus, paid during the calendar year
ended immediately prior to the Change of Control or the Termination Event,
whichever is higher.




(f)           For
the purposes of this Agreement, the term “Change of Control” shall mean a change
of control as defined in Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), and rules, regulations and guidance of general application
thereunder issued by the Department of the Treasury, including --




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(i)           Change in
ownership:  a change in ownership of the Bank occurs on the
date any one person, or more than one person acting as a group, acquires
ownership of stock of the Corporation or the Bank that, together with stock of
the Corporation or the Bank held by such person or group, constitutes more than
50% of the total fair market value or total voting power of the stock of the
Corporation or the Bank;




(ii)           Change in effective
control:  (x) any one person, or more
than one person acting as a group, acquires (or has acquired during the 12-month
period ending on the date of the most recent acquisition by such person or
persons) ownership of stock possessing 30% or more of the total voting power of
the stock of the Corporation or the Bank, or (y) a majority of the board of
directors of the Corporation is replaced during any 12-month period by directors
whose appointment or election is not endorsed by a majority of the board of
directors of the Corporation before the date of the appointment or election;
provided, however, for purposes of this Paragraph 2(f)(ii), the terms the
Corporation or the Bank shall refer to the relevant corporation identified in
Treasury Regulation 1.409A-3(i)(5)(ii) for which no other no other corporation
is a majority shareholder for purposes of that regulation; or




(iii)           Change in ownership of a substantial
portion of assets:  a change in ownership of a substantial
portion of the assets of the Corporation or the Bank occurs on the date that any
one person, or more than one person acting as a group, acquires (or has acquired
during the 12-month period ending on the date of the most recent acquisition by
such person or persons) assets of the Corporation or the Bank having a total
gross fair market value equal to or exceeding 40% of the total gross fair market
value of all of the assets of the Corporation or the Bank, as applicable,
immediately before the acquisition or acquisitions.  For this purpose,
gross fair market value means the value of the assets of the Corporation or the
Bank, as applicable, or the value of the assets being disposed of, determined
without regard to any liabilities associated with the assets.




Notwithstanding
the other provisions of this Paragraph 2, a transaction or event shall not be
considered a Change of Control if, prior to the consummation or occurrence of
such transaction or event, the Officer and the Company agree in writing that the
same shall not be treated as a Change of Control for purposes of this
Agreement.





(g)           Except
as otherwise provided in Paragraph 3, amounts payable pursuant to this Paragraph
2 shall be paid in one lump sum within five business days following the date of
the termination of the Officer’s employment.




(h)           Following
a Termination Event that gives rise to the Officer's rights hereunder, the
Officer shall have six months from the date of occurrence of the Termination
Event to resign his employment and terminate this Agreement pursuant
to




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subparagraph
2(d) above; provided, however, that no such resignation and termination of
employment shall give rise to any rights hereunder unless the effective date of
the resignation and termination is on or before the second anniversary of the
date of the Change of Control. Any such termination shall be deemed to have
occurred only upon delivery to the Corporation or Bank, or any successors
thereto, of written notice of termination, which describes the Change of Control
and Termination Event. If the Officer does not so resign his employment and
terminate this Agreement within such six-month period, the Officer shall
thereafter have no further rights hereunder with respect to that Termination
Event, but shall retain rights, if any, hereunder with respect to any other
Termination Event as to which the 24-month period following the Change of
Control has not expired; provided, however, that, no such resignation and
termination of employment shall give rise to any rights hereunder unless the
effective date of the resignation and termination is on or before the second
anniversary of the date of the Change of Control.




(i)           It
is the intent of the parties hereto that all payments made pursuant to this
Agreement be deductible by the Corporation or the Bank for federal income tax
purposes and not result in the imposition of an excise tax on the Officer.
Notwithstanding anything contained in this Agreement to the contrary, any
payments to be made to or for the benefit of the Officer that are deemed to be
"parachute payments," as that term is defined in Section 280G(b)(2) of the Code,
shall be modified or reduced to the extent deemed to be necessary by the
Company's Board of Directors to avoid the imposition of an excise tax on the
Officer under Section 4999 of the Code or the disallowance of a deduction to the
Company under Section 280G(a) of the Code.




(j)           In
the event any dispute shall arise between the Officer and the Company as to the
terms or interpretation of this Agreement, including this Paragraph 2, whether
instituted by formal legal proceedings or otherwise, including any action taken
by the Officer to enforce the terms of this Paragraph 2 or in defending against
any action taken by the Corporation or the Bank, the Bank shall reimburse the
Officer for all costs and expenses, proceedings or actions, in the event the
Officer prevails in any such action.




(k)           Notwithstanding
anything contained herein to the contrary, the Officer’s employment with the
Company shall not be considered to have terminated for purposes of the Officer’s
receiving any compensation otherwise provided under this Agreement unless (x)
the Officer would be considered to have incurred a “separation from service”
within the meaning of Section 409A from the Company or (y) the payment of such
compensation would not be subject to Section 409A.




3.           Code §
409A.   It is the intent of the parties that this
Agreement and all payments made hereunder shall be in compliance with the
requirements of Section 409A of the Code and the regulations promulgated
thereunder.  If any provision of this Agreement shall not be in
compliance with Section 409A of the Code and the regulations thereunder and
payment pursuant to such provision is not otherwise exempt from Section 409A,
then such provision shall be deemed automatically amended without further action
on the part of the Company or the Officer to the minimum extent necessary to
cause such provision to be in compliance and such provision will thereafter be
given effect as so amended.  If postponing payment of any amounts due
under this Agreement is necessary




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for
compliance with the requirements of Section 409A of the Code and the regulations
thereunder to avoid adverse tax consequences to the Officer, then payment of
such amounts shall be postponed to comply with Section 409A.  Any and
all payments that are postponed under this Paragraph 3 shall be paid to the
Officer in a lump sum at the earliest time that does not result in adverse tax
consequences to the Officer under Section 409A.




4.           Successors and
Assigns. This Agreement shall inure to the benefit of and be binding upon
any corporate or other successor of the Corporation or the Bank, which shall
acquire, directly or indirectly, by conversion, merger, consolidation, purchase,
or otherwise, all or substantially all of the assets of the Corporation or the
Bank.




5.           Modification; Waiver;
Amendments.  No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Officer, the Company, except as herein otherwise
provided. No waiver by any party hereto, at any time, of any breach by any party
hereto, or compliance with, any condition or provision of this Agreement to be
performed by such party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No
amendments or additions to this Agreement shall be binding unless in writing and
signed by the parties, except as herein otherwise provided.




6.           Applicable
Law.  This Agreement shall be governed in all respects whether
as to validity, construction, capacity, performance, or otherwise, by the laws
of North Carolina, except to the extent that federal law shall be deemed to
apply.




7.           Severability. The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision hereof shall not affect the validity or
enforceability of the other provision hereof.







IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first above written.





CORPORATION:
            
            BANK:FNB
      UNITED CORP.
            
            COMMUNITYONE
      BANK, NATIONALASSOCIATIONBy
            /s/
      Michael C. Miller
            
            By
            /s/
      Michael C. MillerName:  Michael
      C. Miller
            
            
            Name:  Michael
      C. MillerTitle:  Chairman
      and President
            
            
            Title:  Chairman
      and PresidentOFFICER:/s/
      R. Mark HensleyR.
      Mark Hensley







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