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
