TransCommunity Financial Corporation Change in Control Agreement
Exhibit 10.9
TransCommunity Financial Corporation
This
Change in Control Agreement (this “Agreement”) dated this 27th day of May,
2008, by and between Xxxxx X. Xxxxx (“Employee”) and TransCommunity Financial Corporation (the
“Company”), shall become effective May 27, 2008.
WHEREAS, it is the desire of the Company to have the benefit of Employee’s loyalty, service
and counsel; and
WHEREAS, the Employee wishes to remain an employee of the Company; and
WHEREAS, Employee possesses certain valuable knowledge, professional skills and expertise
which will contribute to the continued success of the business of the Company and its affiliates;
WHEREAS, the Company has entered into an Agreement and Plan of Merger, dated September 5,
2007, with Community Banker’s Acquisition Corp. (the “Merger Agreement”) pursuant to which the
Company would merge with and into Community Banker’s Acquisition Corp. (the “Merger”);
WHEREAS, Employee and Company are parties to a Change in Control Agreement, dated January 31,
2007; and
WHEREAS, the Company and Employee desire to terminate the January 31, 2007 Change in Control
Agreement and to set forth, in writing, the terms and conditions of their agreements and
understandings in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises herein contained, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending legally to be bound, agree as follows:
| 1. | Change in Control Payments |
x. Xxxxxxxxx Pay
In the event that (i) a Change in Control, as defined herein, occurs during Employee’s
employment as a full-time employee of the Company or any 100% owned subsidiary of the
Company and (ii) within the period beginning on the date of closing of the Change in
Control and ending one (1) year thereafter, Employee’s employment with the Company is
terminated by the Company without Cause or by Employee for Good Reason, the Company will
owe Employee the severance pay, benefits and vesting of stock awards described in this
subsection and subsections b and c below. If severance pay is owed to Employee, the Company
shall pay Employee, within thirty (30) days after his termination of employment or such
later date as may be required by Section 409A of
the Internal Revenue Code of 1986, as amended (the “Code”), an amount equal to two times the sum
of (i) the Employee’s annual base salary in effect on his termination of employment, or Change in
Control date, whichever is greater, plus (ii) the amount of bonus, if any, paid to Employee during
the calendar year preceding the calendar year in which the Change in Control occurs.
b. Benefits
The Company shall continue the payment of all premiums due under the long-term care
insurance policy purchased for Employee until all payments under such policy are satisfied.
c. Awards
To the extent that Employee has been granted options, stock awards or other equity
compensation under the Company’s equity compensation plan, Employee’s interest in such awards
shall be fully exercisable, vested and nonforfeitable as of the Change in Control date, to the
extent not already exercisable or vested as of such date.
d. Definitions
“Cause,” for purposes of this Agreement, means fraud, dishonesty, embezzlement, gross
negligence or willful misconduct in respect of Employee’s obligations to the Company and this
Agreement.
“Company” after the Merger is effective, shall mean and refer to Community Banker’s
Acquisition Corp.
“Good
Reason,” for purposes of this Agreement, means (i) Employee is removed as Chief
Executive Officer of the Company, (ii) Employee’s job responsibilities are materially changed and
restricted, (iii) Employee’s annual salary rate is decreased, or (iv) Employee’s office is based
outside of the Counties of Henrico or Essex, Virginia and is more than 25 miles from 0000 Xxxxxxxx
Xxxxx, Xxxx Xxxxx, Xxxxxxxx.
“Change in Control,” for purposes of this Agreement, means the occurrence, with respect to
the Company of any of an “Acquisition of Controlling Ownership” (as defined in clause (i) below),
a “Business Combination” (as defined in clause (ii) below), a “Liquidation or Dissolution” (as
defined in clause (iii) below) or a “Change in the Board of Directors” (as defined in clause (iv)
below). Notwithstanding the foregoing neither the Merger nor the proposed merger of Community
Banker’s Acquisition Corp. and BOE Financial Services of Virginia, Inc. shall be considered a
Change in Control.
(i) “Acquisition of Controlling Ownership” means the acquisition (excluding any registered
offerings of the Company’s stock) by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent (50%) of
either (x) the then outstanding shares of common stock of the Company (the “Outstanding Common
Stock”) or (y) the combined
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voting power of the then outstanding voting securities of the Company entitled to vote generally in
the election of directors (the “Outstanding Voting Securities”). Notwithstanding the foregoing, for
purposes of this clause (i), the following acquisitions shall not constitute a Change in Control:
(A) any acquisition directly from the Company;
(B) any acquisition by the Company;
(C) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company; or
(D)
any acquisition by any corporation pursuant to a transaction which complies with paragraphs (A), (B) and (C) of clause (ii) below.
(ii) “Business Combination” means the consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the assets of the
Company (a “Business Combination”) unless all of the following occur:
(A) all or substantially all of the individuals and entities who were the
beneficial owners respectively, of the Outstanding Common Stock and
Outstanding Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than fifty percent (50%) of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the corporation resulting from
such Business Combination (including, without limitation, a corporation which as
a result of such transaction owns the Company or all or substantially all of the
Company’s assets either directly or through one or more subsidiaries, in
substantially the same proportions as their ownership, immediately prior to such
Business Combination of the Outstanding Common Stock and Outstanding
Voting Securities, as the case may be;
(B) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the Company or
such corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, more than thirty percent (30%) of, respectively, the then
outstanding shares of common stock of the corporation resulting from such
Business Combination, or the combined voting power of the then outstanding
voting securities of such corporation except to the extent that such ownership
existed prior to the Business Combination; and
(C) at least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of the
Board of the Company immediately prior to the closing of such Business
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Combination or were elected by such majority at the time of the execution of the
initial agreement, or of the action of the Board, providing for such Business
Combination.
(iii) “Liquidation or Dissolution” means the approval by the shareholders of the
Company of a complete liquidation or dissolution of the Company.
(iv) “Change in the Board of Directors” means that a majority of the individuals who
are directors of the Company on the date hereof and who continue to serve as directors on
the date that a contested election of directors is announced thereafter cease to serve as
directors of the Company for any reason.
| 2. | Limitation on Change in Control Payments | |
| Anything in Section 1 above to the contrary notwithstanding, if, with respect to Employee, the payments that Employee has a right to receive under this Agreement plus any other payments from the Company including but not limited to the acceleration of the exercisability and/or vesting of any awards of Common Stock options to purchase Common Stock, together with any other payments which such Participant has the right to receive from the Company or any other affiliated entity, would constitute an “excess parachute payment” (as defined in Section 280G of the Code), then the payments under this Agreement shall be reduced to (but not below zero) to the largest amount that will result in no portion of such payments being subject to the excise tax imposed by Section 4999 of the Code. The determination of any reduction pursuant to this Section must be made by the Company in good faith, before any payments are due and payable to Employee. | ||
| 3. | Nonqualified Deferred Compensation Omnibus Provision | |
| It is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be nonqualified deferred compensation subject to Section 409A of the Code shall be paid and provided in a manner, and at such time and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance. In connection with effecting such compliance with Section 409A of the Code, the following shall apply: |
(i) Notwithstanding any other provision of this Agreement, the Company is authorized
to amend this Agreement, to delay the payment of any monies and/or provision of any
benefits in such manner as may be determined by it to be necessary or appropriate to
comply, or to evidence or further evidence required compliance, with Section 409A of the
Code (including any transition or grandfather rules thereunder).
(ii) Neither the Employee nor the Company shall take any action to accelerate or delay
the payment of any monies and/or provision of any benefits in any manner
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which would not be in compliance with Section 409A of the Code (including any transition
or grandfather rules thereunder). Notwithstanding the foregoing:
(A)
Payment may be delayed for a reasonable period in the event the payment is not administratively practical due to events beyond the recipient’s
control such as where the recipient is not competent to receive the payment,
there is
a dispute as to amount due or the proper recipient of such payment, additional
time
is needed to calculate the amount payable, or the payment would
jeopardize the solvency of the Company.
(B)
Payments shall be delayed in the following circumstances: (1) where the Company reasonably anticipates that the payment will violate the
terms of a loan agreement to which the Company is a party and that the
violation
would cause material harm to the Company; or (2) where the Company reasonably
anticipates that the payment will violate Federal securities laws or other
applicable
laws; provided that any payment delayed by operation of this clause (B) will be
made at the earliest date at which the Company reasonably anticipates that the
payment will not be limited or cause the violations described.
(iii) If the Employee is a specified employee of a publicly traded corporation as
required by Section 409A(a)(2)(B)(i) of the Code, and any payment or provision of any
benefit hereunder is subject to Section 409A any payment or provision of benefits in
connection with a separation from service payment event (as determined for purposes of
Section 409A of the Code), as opposed to another payment event permitted under Section
409A, shall not be made until six months after the Employee’s separation from service (the
“409A Deferral Period”). In the event such payments are otherwise due to be made in
installments or periodically during the 409A Deferral Period, the payments which would
otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a
lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be
made as otherwise scheduled. In the event benefits are required to be deferred, any such
benefit may be provided during the 409A Deferral Period at the Employee’s expense, with the
Employee having a right to reimbursement from the Company once the 409A Deferral Period
ends, and the balance of the benefits shall be provided as otherwise scheduled.
| 4. | Legal Fees and Expenses | |
| The Company must pay all reasonable legal fees and expenses, if any, incurred by Employee in obtaining, enforcing, or defending any right or benefit provided by this Agreement, unless the Company entirely prevails in an action brought by Employee or the Company under this Agreement. Payments under this Section are not severance and are not subject to reduction under any other section of this Agreement. |
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| 5. | No Obligation to Mitigate Damages; No Effect on Other Contractual Rights | |
| Employee shall not be required to mitigate damages or the amount of any payment provided for under this Agreement by seeking other employment or otherwise, nor shall the amount of payment provided for under this Agreement be reduced by any compensation earned by the Employee as the result of employment by another employer after his termination date, or otherwise. The amounts payable to Employee under Section 1 hereof shall not be treated as damages but as severance compensation to which the Employee is entitled by reason of termination of Employee’s employment in the circumstances contemplated by this Agreement. | ||
| 6. | Employment Generally | |
| Upon the effective date of this Agreement, Employee will be an “at will” employee of the Company and this Agreement shall confer no rights to continuing employment. | ||
| 7. | Notices | |
| All notices, consents, and other communications to, upon, and between the respective parties hereto shall be in writing and shall be deemed to have been given, delivered, or made when sent or mailed by registered or certified mail, postage prepaid, and return receipt requested and addressed to the Company at its principal office in Richmond, Virginia, and to the Employee at his residence as shown upon the employment records of the Company. | ||
| 8. | Modification | |
| No provision of this Agreement, including any provision of this Section, may be modified, deleted or amended in any manner except by an agreement in writing executed by the parties hereto. | ||
| 9. | Benefit | |
| All of the terms of this Agreement shall be binding upon, inure to the benefit of and be enforceable by the Company and its successors and assigns and by the Employee and his personal representatives. | ||
| 10. | Severability | |
| In the event that any part of this Agreement shall be held to be unenforceable or invalid, the remaining parts shall nevertheless continue to be valid and enforceable as though the unenforceable or invalid portions were not a part hereof. | ||
| 11. | Construction | |
| This Agreement is executed and delivered in the Commonwealth of Virginia, without reference to that jurisdiction’s conflict of law provisions. This Agreement supersedes all |
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| other agreements, whether oral or written, between the Employee and the Company, or any of its affiliated or parent companies, with respect to the terms of Employee’s employment by the Company or any of its affiliated or parent companies. All such prior agreements are null and void. | ||
| 12. | Headings | |
| The headings provided herein are for convenience only and shall not affect the interpretation of this Agreement. | ||
| 13. | Counterparts | |
| This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. | ||
| 14. | Effective Date | |
| This Agreement shall become effective as provided for in the first paragraph of this Agreement. | ||
| 15. | Prior Agreement | |
| The January 31, 2007 Change in Control Agreement Between Employee and Company is hereby terminated. | ||
| 16. | Assumption | |
| By its signature hereto, Community Banker’s Acquisition Corp. acknowledges that when the Merger is effective, it will succeed to all of the rights and obligations of the Company hereunder. Employee agrees that the Company’s rights hereunder shall be enforceable by Community Banker’s Acquisition Corp. after the Merger is effective. |
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the day and
year first above written.
TransCommunity Financial Corporation
|
Employee | |
/s/ Xxxx X. Xxxxx, Xx.
|
/s/ Xxxxx X. Xxxxx | |
Xxxx X. Xxxxx, Xx., Chairman
|
Xxxxx X. Xxxxx |
Community Banker’s Acquisition Corp. hereby executes this Agreement for the limited purpose
described in Section 16.
| COMMUNITY BANKER’S ACQUISITION CORP. |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
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