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EXHIBIT 10.9
TransCommunity Financial Corporation
Change in Control Agreement
This Change in Control Agreement (this
“Agreement”) dated this 24th day of April, 2007, by and
between Richard C. Stonbraker (“Employee”) and
TransCommunity Financial Corporation (the “Company”),
shall become effective April 24, 2007.
1.
Change in Control Payments
a.
Severance 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 one(1) 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.
Benefit Continuation
The Company shall continue to provide, on the
same basis as executive officers generally, the health and life
insurance benefits (but excluding disability benefits) provided
to Employee and his spouse and eligible dependants immediately
prior to his date of termination for a period of one (1) years
following the date of termination (provided, that Employee
continues to make all required employee contributions) and as
modified for any changes to such benefits made with respect to
executive officers of the Company. In the event that
Employee’s participation in any such plan or program is
barred by the terms thereof, the Company shall pay to Employee
an amount equal to the annual contribution, payments, credits or
allocation made by the Company to him, to his account or on his
behalf under such plans and programs from which his continued
participation is barred.
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.
“ Good Reason ,” for
purposes of this Agreement, means (i) Employee is removed as
Chief Credit 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 more than twenty-five (25)
miles from the facility where Employee was located ninety (90)
days prior to the announcement of the possible Change in
Control.
“ 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).
(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 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:
2
(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 Ou
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