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 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 as
“separation from service” as defined by Treasury Regulation § 1.409A-1(h).


 


(a)                                  The Officer’s
employment under this Agreement shall be terminated upon the death of the
Officer during the term of this Agreement, in which event, the Officer’s estate
shall be entitled to receive the compensation due the Officer through the last
day of the calendar month in which the Officer’s death shall have occurred and
for a period of one month thereafter.  All
such payments due under this Paragraph shall be paid to the estate within 30
days of the date of death of the Officer.


 


(b)                                 The Officer’s
employment under this Agreement may be terminated at any time by the Officer
upon 60 days’ written notice to the Directors. 
Upon such termination, the Officer shall be entitled to receive
compensation through the effective date of such termination.  All such payments due under this Paragraph shall
be paid to the Officer within 30 days of the date of written notice to the Directors.


 


(c)                                  The Directors may
terminate the Officer’s employment at any time, but any termination by the
Directors, other than termination for Cause, shall not prejudice the Officer’s
right to compensation or other benefits under this Agreement.  The Employer shall provide written notice
specifying the grounds for termination for Cause.  The Officer shall have no right to receive compensation
or other benefits for any period after termination for Cause.  Termination for Cause shall include
termination because of the Officer’s personal dishonesty or moral turpitude,
incompetence, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule, or regulation (other than traffic violations or similar offenses) or
final cease-and-desist order, or material breach of any provision of this
Agreement.  Subject to Paragraph 11(b) below,
any amount of compensation or other benefit that the Officer has a right to as
of the date of termination shall be paid within 30 days of such termination. Notwithstanding
such


 


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termination, the obligations under Paragraph 6(c) shall survive
any termination of employment.


 


(d)                                 Subject to the Employer’s
obligations and the Officer’s rights under (i) Title I of the Americans
with Disabilities Act, §504 of the Rehabilitation Act, and the Family and Medical Leave
Act, and to (ii) the vacation leave, disability leave, sick leave and any
other leave policies of the Employer, the Officer’s employment under this
Agreement automatically shall be terminated in the event that the Employer
determines that the Officer has become disabled (as defined by Treasury
Regulation § 1.409A-3(i)(4)) during the term of this Agreement.  Upon any such termination, the Officer shall
be entitled to receive any compensation the Officer shall have earned prior to
the date of termination but which remains unpaid, and all such amounts shall be
paid to the Officer within 30 days of such termination.  The Officer shall also be entitled to receive
any payments provided under any disability income plan of the Employer which is
applicable to the Officer.


 


In the event of any disagreement between the Officer and the Employer
as to whether the Officer is physically or mentally disabled such as will
result in the termination of the Officer’s employment pursuant to this
Paragraph 8(d), the question of such disability shall be submitted to an
impartial physician licensed to practice medicine in North Carolina for
determination and who will be selected by mutual agreement of the Officer and
the Employer, or failing such agreement, by two (2) physicians (one (1) of
whom shall be selected by the Employer and the other by the Officer), and such
determination of the question of such disability by such physician or physicians
shall be final and binding on the Officer and the Employer.  The Employer shall pay the reasonable fees
and expenses of such physician or physicians in making any determination
required under this Paragraph 8(d).


 


9.                                   Additional
Regulatory Requirements. 
Notwithstanding anything contained in this Agreement to the contrary, it
is understood and agreed that the Employer (or any of its successors in
interest) shall not be required to make any payment or take any action under
this Agreement if:


 


(a)                                  the Bank is declared
by any governmental agency having jurisdiction over the Bank (hereinafter
referred to as “Regulatory Authority”) to be insolvent, in default or operating
in an unsafe or unsound manner; or,


 


(b)                                 in the reasonable
opinion of counsel to the Employer, such payment or action (i) would be
prohibited by or would violate any provision of state or federal law applicable
to the Employer, including, without limitation, the Federal Deposit Insurance
Act as now in effect or hereafter amended, (ii) would be prohibited by or
would violate any applicable rules, regulations, orders or statements of
policy, whether now existing or hereafter promulgated, of any Regulatory
Authority, or (iii) otherwise would be prohibited by any Regulatory
Authority.


 


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10.                            Change
in Control.


 


(a)                                  In the event of a
termination of the Officer’s employment in connection with, or within
twenty-four (24) Months after, a “Change in Control” (as defined in
Subparagraph (d) below) of the Employer other than for Cause (as defined
in Paragraph 8), the Officer shall be entitled to receive liquidated damages as
set forth in Subparagraph (c) below. 
Such sum shall be payable as provided in Subparagraph (e) below.


 


(b)                                 In addition to any rights
the Officer might have to terminate this Agreement contained in Paragraph 8,
the Officer shall have the right to terminate this Agreement for “good reason”,
as such term is defined by Treasury Regulation § 1.409A-1(n)(2), within
twenty-four months following a Change in Control of the Bank.


 


(c)                                  In the event that the
Officer terminates this Agreement pursuant to this Paragraph 10, the Employer
will be obligated to pay or cause to be paid to Officer liquidated damages in
an amount equal to 2.99 times the Officer’s “base amount” as defined in Section 280G(b)(3) of
the Internal Revenue Code of 1986, as amended (the “Code”).


 


(d)                                 For the purposes of
this Agreement, the term Change in Control shall mean as defined by Treasury
Regulation § 1.409A-3(i)(5). Notwithstanding the other provisions of this
Paragraph 10, a transaction or event shall not he considered a Change in
Control if, prior to the consummation or occurrence of such transaction or
event, Officer and Bank agree in writing that the same shall not be treated as
a Change in Control for purposes of this Agreement.


 


(e)                                  Subject to Paragraph
11(b) below, such amounts payable pursuant to this Paragraph 10 shall be
paid in one lump sum payment within fifteen (15) days following termination of
this Agreement.


 


(f)                                    Following an event
constituting good reason for termination which gives rise to Officer’s rights
hereunder, the Officer shall have twelve (12) months from the date of
occurrence of such event to terminate this Agreement pursuant to this Paragraph
10.  Any such termination shall be deemed
to have occurred only upon delivery to the Employer (or to any successor
corporation) of written notice of termination which describes the Change in
Control and the event constituting good reason. 
If Officer does not so terminate this Agreement within such twelve-month
period, he shall thereafter have no further rights hereunder with respect to
the event constituting good reason, but shall retain rights, if any, hereunder
with respect to any other event constituting good reason as to which such
period has not expired.


 


(g)                                 It is the intent of
the parties hereto that all payments made pursuant to this Agreement be
deductible by the Employer 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 which are deemed
to be “parachute payments” as that term is defined in Section 280G of the
Code, shall be modified or reduced to the extent deemed to be necessary by the
Directors to avoid the imposition of excise taxes on the Officer under Section 4999
of the Code or the disallowance of a deduction to the Bank under Section 280(a) of
the Code.


 


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(h)                                 In the event any
dispute shall arise between the Officer and the Employer as to the terms or
interpretation of this Agreement, including this Paragraph 10, whether
instituted by formal legal proceedings or otherwise, including any action taken
by the Officer to enforce the terms of this Paragraph 10 or in defending
against any action taken by the Employer, the Employer shall reimburse the
Officer for all costs and expenses, proceedings or actions, in the event the Officer
prevails in any such action.


 


11.                            Conditions
to any Payment of Severance Amounts.


 


(a)                                  This Agreement shall
inure to the benefit of and be binding upon any corporate or other successor of
the Employer which shall acquire, directly or indirectly, by conversion,
merger, purchase or otherwise, all or substantially all of the assets of the
Employer.


 


(b)                                 If: (1) when the
Officer’s employment terminates under this Agreement he is a specified
employee, as defined in Section 409A of the Code or the regulations
promulgated thereunder; (2) the Officer’s employment did not terminate
because of his death; (3) any payments under this Agreement will result in
additional tax or interest to the Officer because of Section 409A or the
regulations promulgated thereunder; and (4) an exemption from the
six-month delay requirement of Section 409A(a)(2)(B)(i) is not
available, then despite any provision of this Agreement to the contrary the Officer
will not be entitled to such payments until the earlier of: (1) six months
and one day after termination of the Officer’s employment; or (2) his
death.  Payments that would have
otherwise been paid during such six month and one day period shall be
accumulated and paid on the earlier of: (1) the first day of the seventh
month after such termination of employment; or (2) death of the Officer;
and the remaining amount of any such payment due under this Agreement shall be
paid as set forth elsewhere in this Agreement without regard to this Paragraph.


 


12.                            Successors
and Assigns.


 


(a)                                  This Agreement shall
inure to the benefit of and be binding upon any corporate or other successor of
the Employer which shall acquire, directly or indirectly, by conversion,
merger, purchase or otherwise, all or substantially all of the assets of the Employer.


 


(b)                                 Since the Employer is
contracting for the unique, and personal skills of the Officer, the Officer
shall be precluded from assigning or delegating his rights or duties hereunder
without first obtaining the written consent of the Employer.


 


13.                            Modification;
Wavier; Amendments.  No provision
of this Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing, signed by the Officer and on
behalf of the Employer by such officer as may be specifically designated by the
Directors.  No waiver by either party
hereto, at any time, of any breach by the other party hereto of, or compliance
with, any condition or provision of this


 


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Agreement to be performed by such other party shall be deemed a waiver
of similar or dissimilar provisions or conditions at the same or at any prior
or subsequent time.  No amendment or
addition to this Agreement shall be binding unless in writing and signed by
both parties, except as herein otherwise provided.


 


14.                            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.


 


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


 


16.                            Compliance
with Internal Revenue Code Section 409A.  The Employer and the Officer intend that
their exercise of authority or discretion under this Agreement shall comply
with section 409A of the Internal Revenue Code of 1986.  If any provision of this Agreement does not
satisfy the requirements of section 409A, such provision shall nevertheless be
applied in a manner consistent with those requirements. If any provision of
this Agreement would subject the Officer to additional tax or interest under
section 409A, the Employer shall reform the provision.  However, the Employer shall maintain to the
maximum extent practicable the original intent of the applicable provision
without subjecting the Officer to additional tax or interest, and the Officer
shall not be required to incur any additional compensation expense as a result
of the reformed provision.  References in
this Agreement to section 409A of the Internal Revenue Code of 1986 include
rules, regulations, and guidance of general application issued by the
Department of the Treasury under Internal Revenue Code section 409A.


 


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


 


	
   

  	
   

  	
  YADKIN VALLEY FINANCIAL CORPORATION

  
	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Patricia Wooten

  	
   

  	
  By:

  	
  /s/ Edwin E. Laws

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Patricia Wooten

  	
   

  	
  Name:

  	
  Edwin E. Laws

  
	
   

  	
   

  	
  

  Title:

  	
  

  Chief Financial Officer

  



 


 


	
   

  	
   

  	
  YADKIN VALLEY BANK AND TRUST

  
	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Patricia Wooten

  	
   

  	
  By:

  	
  /s/ Edwin E. Laws

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Patricia Wooten

  	
   

  	
  Name:

  	
  Edwin E. Laws

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  



 


 


	
   

  	
  OFFICER

  
	
   

  	
   

  
	
   

  	
  /s/ William A. Long

  
	
   

  	
  William A. Long

  



 


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