Exhibit 10.7


 


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 BANK AND TRUST COMPANY, a
North Carolina banking corporation (hereinafter referred to as the “Bank”) and STEPHEN S.  ROBINSON,
an individual resident of North Carolina (hereinafter referred to as the “Officer”).  This Agreement amends and restates that
certain employment agreement dated January 1, 2008.


 


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 Bank agrees to continue
to employ the Officer and the Officer agrees to continue to accept employment
upon the terms and conditions stated herein as an Executive Vice President of
the Bank.  The Officer shall render such
administrative and management services to the Bank as are customarily performed
by persons situated in a similar executive capacity.  The Officer shall promote the business of the
Bank, including being active in at least one civic organization in Iredell
County, and perform such other duties as shall, from time to time, be
reasonably assigned by the President of the Bank.  Upon the request of the President, the
Officer shall disclose all business activities or commercial pursuits in which
Officer is engaged, other than Bank duties.


 


2.             Compensation.  The Bank shall pay the Officer during the
term of this Agreement, as compensation for all services rendered by the
Officer to the Bank, a base salary at the rate of $192,551 per annum, payable
in cash not less frequently than monthly. 
The rate of such salary shall be reviewed by the Bank not less often
than annually and the Bank may increase, but shall not decrease, such rate
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 Bank, in its discretion, may
decide.  In determining salary increases,
the Bank shall compensate the Officer for increases in the cost of living and
may also provide for performance or merit increases.  Participation in the Bank’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 Bank and the Officer.


 


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 Bank to
the Bank’s key management employees.  All
such bonuses authorized and declared by the


 


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Bank 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 Bank.


 


4.             Participation
in Retirement and Employee Benefit Plans; Fringe Benefits.


 


(a)           The
Bank shall provide family medical 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 Bank 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
Officer shall also be entitled to participate in any other fringe benefits
which are now or may be or become applicable to the Bank’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 Bank.  The Bank shall reimburse the
Officer 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 Bank. The Bank shall reimburse the Officer for such expenses described in
this Paragraph 4(b) within 60 days of Officer’s incurring such expense.


 


(c)           The Bank shall provide the Officer with the
use of a late model automobile suitable to the status of the Officer of a type
and for lease terms to be approved by
the Bank.  The Bank shall pay the dues of
the Officer for membership in a country club of the Officer’s choice located
within the market area of the Bank; provided that the Officer shall be responsible for personal use of such
club.


 


(d)           After Officer’s employment with the Bank is
terminated for any reason other than Cause (as defined in Paragraph 8), the
Bank shall continue to provide medical insurance coverage to the Officer and
Officer’s spouse until each has
attained sixty-five (65)  years of age, either, in the Bank’s
discretion, as part of the Bank’s group medical insurance plan or through
individual medical insurance policies. 
The Bank shall be responsible for paying directly all of the premiums
required to meet its obligations under this Paragraph 4(d).


 


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


 


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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 Bank 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 Bank 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; Confidentiality.


 


(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)           For and in consideration of the benefit
provided by Paragraph 4(d) of this Agreement, which the Officer agrees is adequate
consideration, 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 the “Restricted Area,” directly or indirectly, engage in any business
that competes with the Bank or any of
its subsidiaries without the prior written consent of the Bank; provided,
however, that the provisions of this Paragraph shall not apply in the event the
Officer’s employment is unilaterally terminated by the Bank for Cause (as such term
is defined in Paragraph 8(c) hereof),
or in the event the Officer terminates his employment with the Bank 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). 
The Restricted Area covers the following divisible list of territories:
Iredell and Elkin Counties, North Carolina and within 25 miles of any Bank
office operated during the term of this Agreement.  The one-year restricted period, however, does
not include any period of violation or period of time required for litigation
to enforce the Officer’s agreement not to compete against the Bank.  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 Bank 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 Bank 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 Bank or any subsidiary in his
possession or under his control which relate to the activities of the Bank or
any subsidiary.


 


(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


 


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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 Bank.  The Bank 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 a “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 8(a) 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 Bank.  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 8(b) shall be paid to the Officer
within 30 days of the date of written notice to the Bank.


 


(c)           The Bank may
terminate the Officer’s employment at any time, but any termination by the Bank, other than
termination for Cause, shall not prejudice the Officer’s right to compensation
or other benefits under this Agreement. 
The Bank 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,
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
termination, the obligations under Paragraph 6(c) shall survive any
termination of employment.


 


(d)           Subject to
the Bank’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 Bank, the Officer’s
employment under this Agreement automatically shall


 


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be terminated in the event that the Bank 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 Bank which is applicable to the Officer.


 


In
the event of any disagreement between the Officer and the Bank 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 Bank, or failing such
agreement, by two (2) physicians (one (1) of whom shall be selected by the Bank 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 Bank.  The Bank 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 Bank (or any of its successors
in interest) shall not he required to
make any payment or take any action under this Agreement if:


 


(a)           such payment or action is prohibited by any
governmental agency having jurisdiction over the Bank (hereinafter
referred to as “Regulatory Authority”) because the Bank is declared by such
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 Bank, such payment or action (i) would
be prohibited by
or would violate any provision of state or federal law applicable to the Bank,
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.


 


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 Yadkin Valley Financial Corporation other than for Cause (as defined in
Paragraph 8), the Officer shall be entitled to receive the amount set forth in
Subparagraph (c) below.  Such sum
shall be payable as provided in Subparagraph (e) below.


 


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(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 Yadkin
Valley Financial Corporation.


 


(c)           In the event that
the Officer’s employment is terminated pursuant to this Paragraph 10, the Bank
will be obligated to pay or cause to be paid to Officer 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 be
considered a Change in Control if, prior
to the consummation or occurrence of such transaction or event, the Officer and
the 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 thirty-six (36) equal monthly payments on the first day of
each month beginning with the month 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 Bank (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)           In the event any
dispute shall arise between the Officer and the Bank 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 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.


 


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 Bank
which shall acquire, directly or indirectly, by conversion, merger, purchase or
otherwise, all or substantially all of the assets of the Bank.


 


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(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
Bank which shall acquire, directly or indirectly, by conversion, merger,
purchase or otherwise, all or substantially all of the assets of the Bank.


 


(b)           Since the Bank 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 Bank.


 


13.          Modification; Wavier;
Amendments.  This Agreement
represents, constitutes, and incorporates
the entire, exclusive, and complete understanding of the parties hereto and
replaces all previous agreements.  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 Bank by such officer as may be specifically
designated by the Board of 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 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.


 


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16.          Compliance
with Internal Revenue Code Section 409A.  The Bank 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 Bank shall reform the provision.  However, the Bank 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.


 


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


 


	
   

  	
   

  	
  YADKIN VALLEY BANK AND TRUST COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ William A. Long

  
	
   

  	
   

  	
   

  	
  William A. Long

  
	
   

  	
   

  	
   

  	
  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Patricia Wooten

  	
   

  	
   

  
	
  Corporate Secretary

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  OFFICER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/Stephen S. Robinson

  	
  (SEAL)

  
	
   

  	
   

  	
  Stephen S. Robinson

  
					



 


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