**EXHIBIT 10.49**

 

**CHANGE IN CONTROL AGREEMENT**

 

THIS CHANGE IN CONTROL AGREEMENT (this “Agreement”), dated this      day of November, 2005, by and betweenCommunity Bancshares, Inc. a Delaware corporation (the “Company”), and John W. Brothers (the “Executive”). 

 

**WITNESSETH:**

 

WHEREAS, the Company wishes to assure itself and its key employees of continuity of management and objective judgment in the event of any actual orcontemplated Change in Control of the Company, and the Executive is a key employee of the Company or one of its subsidiaries and is an integral part of management of the Company (for purposes hereof employment with any present or future parent orsubsidiary corporation of the Company shall be considered employment by the Company); and 

 

WHEREAS, this Agreement is not intended to materially alter the compensation and benefits that the Executive could reasonably expect to receive in the absence of a Change in Control of the Company, and this Agreementaccordingly will be operative only upon circumstances relating to an actual or anticipated change in control of the Company. 

 

NOW, THEREFORE, for and in consideration of the premises and the mutual covenants herein contained, the parties hereby agree as follows: 

 

**I. OPERATION OF AGREEMENT**

 

This Agreement shall be effective immediately upon its execution by theparties hereto, but anything in this Agreement to the contrary notwithstanding, neither the Agreement nor any provision hereof shall be operative unless, during the term of this Agreement, there has been a Change in Control of the Company during theterm of this Agreement, all of the provisions hereof shall become operative immediately. 

 

**II. TERM OF AGREEMENT**

 

The term of this Agreement shall be for an initial three (3) year period commencing on the date hereof; provided however that this Agreement shall be extended automatically for one (1) additional year at the end of this initialterm and at the end of each additional year thereafter, unless the Compensation Committee delivers written notice twelve (12) months prior to the end of such term, or extended term, to the Executive, that the Agreement will not be extended. Insuch case, the Agreement will terminate at the end of the term, or extended term, then in progress. 

 

However, in the event a Change in Control occurs during the original or any extended term, this Agreement will remain in effect until all obligations ofthe Company hereunder have been fulfilled, and until all benefits required hereunder have been paid to the Executive. 

 

**III. DEFINITIONS**

 

1. “**Board**” or “**Board of Directors**” - the Board of Directors of the Company. 

 

2. “**Cause**” - either 

 

(I) any act that constitutes, on the part of the Executive,(A) fraud, dishonesty, a felony or gross malfeasance of duty, and (B) that directly results in material injury to the Company; or 

 

(ii) conduct by the Executive in his office with the Company that is grossly inappropriate and demonstrably likely to lead to materialinjury to the Company, as determined by the Board acting reasonably and in good faith; 

 

provided, however, that in the case of (ii) above, such conduct shall not constitute Cause unless the Board shall have delivered to the Executive notice setting forth with specificity (A) the conduct deemed to qualify as Cause,(B) reasonable action that would remedy such objection, and (c) a reasonable time (not less than thirty (30) days) within which the Executive may take such remedial action, and the Executive shall not have taken such specifiedremedial action within such specified reasonable time. 

3. “**Change in Control**” - Either 

 

(i) the acquisition, directly or indirectly, by any“person” (as such term is used in Section 13(d) and 14(d) of the Securities Exchange Act of 1937, as amended), other than those persons in control of the Company as of the effective date of this Agreement, within any twelve(12) month period of securities of the Company representing an aggregate of twenty percent (20%) or more of the combined voting power of the Company’s then outstanding securities; or 

 

(ii) during any period of two consecutive years, individualswho at the beginning of such period constitute the Board, cease for any reason to constitute at least a majority thereof, unless the election of each new director was approved in advance by a vote of at least a majority of the directors then stillin office who were directors at the beginning of the period; or 

 

iii) consummation of (a) a merger, consolidation or other business combination of the Company with any other “person” (as such term is used in Section 13(d) and 14(d) of the Securities Exchange Actof 1934, as amended) or affiliate thereof, other than a merger, consolidation or business combination which would result in the outstanding common stock of the Company immediately prior thereto continuing to represent (either by remainingoutstanding or by being converted into common stock of the surviving entity or a parent or affiliate thereof) at least sixty (60)% of the outstanding common stock of the Company or such surviving entity or parent or affiliate thereof outstandingimmediately after such merger, consolidation or business combination, or (b) a plan of complete liquidation of the Company or an agreement for the sale of disposition by the Company of all or substantially all of the Company’s assets; or

 

(iv) the occurrence of any other event or circumstance whichis not covered by (i) through (iii) above which the Board determines affects control of the Company and, in order to implement the purposes of this Agreement as set forth above, adopts a resolution that such event or circumstanceconstitutes a Change in Control of the purposes of this Agreement. 

 

4. “**Code**” - the Internal Revenue Code of 1986, as amended. 

 

5. “**Compensation Committee**” - the Executive Compensation Committee of the Board of Directors of the Company, or any successor committee. 

 

6. “**Disability**” - total and permanent disability under the Corporation’s long-term disability plan.

 

7. “**Excess Severance Payment**” - the term“Excess Severance Payment” shall have the same meaning as the term “excess parachute payment” defined in Section 280G(b)(1) of the Code. 

 

8. “**Involuntary Termination**” - termination of the Executive’s employment by the Executive following aChange in Control which, in the reasonable judgment of the Executive, is due to (i) a change of the Executive’s responsibilities, position (including status, office, title, reporting relationships or working conditions), authority orduties (including changes resulting from the assignment to the Executive of any duties inconsistent with his positions, duties or responsibilities as in effect immediately prior to the Change in Control); or (ii) a reduction in theExecutive’s compensation or benefits as in effect immediately prior to the Change in Control, or (iii) a forced relocation of the Executive’s primary place of employment to a place more than fifty (50) miles from theExecutive’s primary place of employment immediately prior to the Change in Control. Involuntary Termination does not include Retirement, death or Disability of the Executive. 

 

9. “**Present Value**” - The term “Present Value” shall have the same meaning as provided inSection 280G(d)(4) of the Code. 

 

10. “**SeverancePayment**” - The term “Severance Payment” shall have the same meaning as the term “parachute payment” defined in Section 280G(b)(2) of the Code. 

 

11. “**Reasonable Compensation**” - The term “Reasonable Compensation” shall have the same meaning asprovided in Section 280G(b)(4) of the Code. 

 

12.“**Retirement**”- termination of employment at or after the Executive’s 65th birthday. 

 

**IV. BENEFITS UPON TERMINATION FOLLOWING A CHANGE IN CONTROL**

 

1. **Termination** - The Executive shall be entitledto, and the Company shall pay or provide to the Executive, the benefits described in Section 2 below if (a) a Change in Control occurs during the term of this Agreement, and (b) the Executive’s employment is terminated withinthirty (30) months following the Change in Control either (i) by the Company (other than for Cause 

 

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or by reason of the Executive’s Retirement, death or Disability) or (ii) by the Executive pursuant toInvoluntary Termination; provided, however, that if: 

 

(a)during the term of this Agreement there is a public announcement of a proposal for a transaction that, if consummated, would constitute a Change in Control or the Board receives and decides to explore an expression of interest with respect to atransaction which, if consummated, would lead to a Change in Control (either transaction being referred to herein as the “Proposed Transaction”); and 

 

(b) the Executive’s employment is thereafter terminated by the Company other than for Cause or by reason of the Executive’s Retirement, deathor Disability; and 

 

(c) the Proposed Transaction is consummatedwithin one (1) year after the date of termination of the Executive’s employment. 

 

then, for the purposes of this Agreement, a Change in Control shall be deemed to have occurred during the term of this Agreement and the termination of the Executive’s employment shall be deemed to have occurredwithin thirty (30) months following a Change in Control. 

 

An executive shall also be entitled to receive the benefits described in Section 2 below if he terminates employment for any reason during a 30-day period beginning twelve months after the occurrence of a Change in Control. 

 

2. **Benefits to be Provided** - If the Executive becomes eligible forbenefits under Section 1 above, the Company shall pay or provide to the Executive the benefits set forth in this Section 2. 

 

(a) **Salary** - The Executive will continue to receive his current salary (subject to withholding of all applicable taxes and any amounts referred toin Section 2(c) below) for a period of thirty (30) months from his date of termination in the same manner as it was being paid as of the date of termination; provided, however, that the salary payments provided for hereundershall be paid in a single lump sum payment, to be paid not later than thirty (30) days after his termination of employment; provided further, that the amount of such lump sum payment shall be determined by taking the salary payments tobe made and discounting them to their Present Value. For purposes hereof, the Executive’s “current salary” shall be the highest rate in effect during the six-month period prior to the Executive’s termination. 

 

(b) **Bonuses** - The Executive shall receive payments from the Companyfor the thirty (30) months following the month in which this employment is terminated in an amount for each such month equal to one-twelfth of the average of the bonuses earned by him for the two calendar years immediately preceding the year inwhich such termination occurs. Any bonus amounts that the Executive had previously earned from the Company but which may not yet have been paid as of the date of termination shall not be affected by this provision, other than to serve as ameasurement for this portion of the severance benefit. The bonus amounts determined herein shall be paid in a single lump sum payment, to be paid not later than 30 days after termination of employment; provided, further, that theamount of such lump sum payment shall be determined by taking the bonus payments (as of the payment date) to be made and discounting them to their Present Value. 

 

(c) **Health and Life Insurance Coverage** - The health and life insurance benefits coverage provided to the Executive athis date of termination shall be continued at the same level and in the same manner as if his employment had not terminated (subject to the customary changes in such coverages if the Executive retires or reaches age 65 or similar events), beginningon the date of such termination and ending on the date thirty (30) months from the date of such termination. Any additional coverages the Executive had at termination, including dependent coverage, will also be continued for such period at thesame level and on the same terms as provided to the Executive immediately prior to his termination, to the extent permitted by the applicable policies or contract. Any costs Executive was paying for such coverages at the time of termination shall bepaid by the Executive by separate check payable to the Company each month in advance. If the terms of any benefit plan referred to in this Section do not permit continued participation by the Executive, then the Company will arrange for othercoverage at its expense providing substantially similar benefits as it can find for other officers in similar positions. 

 

(d) **Employee Retirement Plans** - To the extent permitted by the applicable plan, the Executive will be fully vested in and will be entitled tocontinue to participate, consistent with past practices, in all employee retirement plans maintained by the Company in effect as of his date of termination. The Executive’s participation in such retirement plans shall continue for a period ofthirty (30) months from the date of termination of his employment (at which point he will be considered to have terminated employment within the meaning of the plans) and the compensation payable to the executive under (a) and(b) above shall be treated (unless otherwise excluded) as compensation under the plan. If full vesting and continued participation in any plan is not permitted, the Company shall pay to the executive and, if applicable, his beneficiary, asupplemental benefit equal to the Present Value on the 

 

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date of termination of employment of the excess of (i) the benefit the Executive would have been paid under suchplan if he had been fully vested and had continued to be covered for the 30-month period as if the Executive had earned compensation described under (a) and (b) above and had made contributions sufficient to earn the maximum matchingcontribution, if any, under such plan (less any amounts he would have been required to contribute), over (ii) the benefit actually payable to or on behalf of the Executive under such plan. For purposes of determining the benefit under(i) in the preceding sentence, contributions deemed to be made under a defined contribution plan will be deemed to be invested in the same manner as the Executive’s account under such plan at the time of termination of employment. TheCompany shall pay such supplemental benefits (if any) in a lump sum. 

 

(e) **Career Counseling** - The Company will provide career counseling and out placement services on an individual basis to the Executive as the Company deems appropriate and for a reasonable period following the Executive’stermination of employment; provided, however, that the Company’s obligation to provide such services shall terminate at such time, if any, as the cost of such services exceeds $5,000. 

 

(f) **Effect of Lump Sum Payment** - The lump sum payment under(a) or (b) above shall not alter the amounts the Executive is entitled to receive under the benefit plans described in (c) and (d) above. Benefits under such plans shall be determined as if the Executive had remained employed andreceived such payments over a period of thirty (30) months. 

 

(g) **Effect of Death or Retirement** - The benefits payable or to be provided under this Agreement shall continue in the event of the Executive’s death and shall be payable to his estate or named beneficiary. The benefits payableor to be provided under this Agreement shall cease in the event of the Executive’s election to commence Retirement benefits under the Company’s retirement plan. 

 

(h) **Total Benefit** - Notwithstanding anything in this Agreement to the contrary, the Total Benefit payable or to beprovided to the Executive by the Company or an affiliate, whether pursuant to this Agreement or otherwise, shall be calculated so as to provide the greatest total benefit after taxes. The Company shall calculate, or authorize an independent thirdparty to calculate, the Executive’s Total Benefit under three different methods and make payment to the Executive according to the method that provides the Executive with the greatest total benefit after taxes. 

 

(i) **Total Benefit Calculation** - The three methods of benefitcalculation shall include the Limited Benefit Method, the Unlimited Benefit Method and the Grossed Up Unlimited Benefit Method, as each is defined herein. Under the Limited Benefit Method, the Executive’s Total Benefit shall be determined asdefined in this Section IV and then modified or reduced to the extent necessary so that the benefits payable or to be provided to the Executive under this Agreement that are treated as Severance Payments, as well as any payments or benefits providedoutside of this Agreement that are so treated, shall not cause the Company to have paid an Excess Severance Payment. In computing such amount, the parties shall take into account all provisions of Internal Revenue Code Section 280G, includingmaking appropriate adjustments to such calculation for amounts established to be Reasonable Compensation. In the event that the amount of any Severance Payments that would be payable to or for the benefit of the Executive under this Agreement mustbe modified or reduced, the Executive shall direct which Severance Payments are to be modified or reduced; provided, however, that no increase in the amount of any payment or change in the timing of the payment shall be made withoutthe consent of the Company. The Limited Benefit Method shall be interpreted so as to avoid the imposition of excise taxes on the Executive under Section 4999 of the Code or the disallowance of a deduction to the Company pursuant toSection 280G(a) of the Code with respect to amounts payable under this Agreement or otherwise. The Executive shall be responsible for any and all federal and state income taxes associated with the Limited Benefit Method. Under the UnlimitedBenefit Method, the Total Benefit payable to the Executive shall be determined as defined in this Section IV and shall not be reduced or modified in any manner. The Executive shall be responsible for any and all income, excise and/or other taxesassociated with the Unlimited Benefit Method. Under the Grossed Up Unlimited Benefit Method, the Executive’s Total Benefit shall be determined as defined in this Section IV with no reduction, and an additional payment shall be made to theExecutive by the Company with such additional payment equal to the amount of any excise tax on the Total Benefit plus the estimated federal and state income taxes and any excise tax associated with the additional payment. 

 

(j) **No Obligation to Fund** - The agreement of the Company (or itssuccessor) to make payments to the Executive hereunder shall represent solely the unsecured obligation of the Company (and its successor), except to the extent the Company (or its successors) in its sole discretion elects in whole or in part to fundits obligations under this Agreement pursuant to a trust arrangement or otherwise. 

 

**V. MISCELLANEOUS**

 

1.**Contract Non-Assignable** - The parties acknowledge that this Agreement has been entered into due to, among other things, the special skills of the Executive, and agree that this Agreement may not be assigned or transferred by the Executive, inwhole or in part, without 

 

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the prior written consent of the Company. Any business entity succeeding to all or substantially all of the business ofthe Company by purchase, merger, consolidation, sale of assets or otherwise, shall be bound by this Agreement. 

 

2. **Other Agents** - Nothing in this Agreement is to be interpreted as limiting the Company from employing other personnel on such terms andconditions as may be satisfactory to the Company. 

 

3.**Notices** - All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given if delivered or seven days after mailing if mailed, first class, certified mail,postage prepaid: 

 
To the Company:  Community Bancshares, Inc.               P. O. Box 1000               Blountsville, Alabama 35031To the Executive:  John W. Brothers               30 Bellerive Drive               Oneonta, Alabama 35121
 

Any party may change the address towhich notices, requests, demands and other communications shall be delivered or mailed by giving notice thereof to the other party in the same manner provided herein. 

 

4. **Provisions Severable** - If any provision or covenant, or any part thereof, of this Agreement should be held by anycourt to be invalid, illegal or unenforceable, either in whole or in part, such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of the remaining provisions or covenants, or any part thereof, ofthis Agreement, all of which shall remain in full force and effect. 

 

5. **Waiver** - Failure of either party to insist, in one or more instances, on performance by the other in strict accordance with the terms and conditions of this Agreement shall not be deemed a waiver or relinquishment of any rightgranted in this Agreement or of the future performance of any such term or condition or of any other term or condition of this Agreement, unless such waiver is contained in a writing signed by the party making the waiver. 

 

6. **Amendments and Modifications** - This Agreement may be amended ormodified only by a writing signed by both parties hereto, which makes specific reference to this Agreement. 

 

7. **Governing Law** - The validity and effect of this Agreement shall be governed by and construed and enforced in accordance with the laws of theState of Alabama. 

 

8. **Arbitration of Disputes; Expenses**- The parties agree that all disputes that may arise between them relating to the interpretation or performance of this Agreement, including matters relating to any funding arrangements for the benefits provided under this Agreement, shall bedetermined by binding arbitration through an arbitrator approved by the American Arbitration Association or other arbitrator mutually acceptable to the parties. The award of the arbitrator shall be final and binding upon the parties and judgmentupon the award rendered may be entered in any court having jurisdiction. In the event the Executive incurs legal fees and other expenses in seeking to obtain or to enforce any such rights or benefits through settlement, arbitration or otherwise, theCompany shall promptly pay the Executive’s reasonable legal fees and expenses incurred in enforcing this Agreement. Except to the extent provided in the preceding sentence, each party shall pay its own legal fees and other expenses associatedwith the arbitration, provided that the fee for the arbitrator shall be shared equally. 

 

9. **Indemnity** - The Executive shall be entitled to the benefits of the indemnity currently applicable to the Executive, if any, as provided by the Company’s articles of incorporation or bylaws. Any changesto the articles of incorporation or bylaws reducing the indemnity granted to officers shall not affect the rights granted hereunder. The Company may not reduce these indemnity benefits confirmed to the Executive hereunder without the written consentof the Executive. 

 

10. **Termination of Prior Agreements** -The Executive hereby agrees to a mutual termination, effective as of the effective date of this Agreement, of any prior existing change in control agreements (by whatever name), providing benefits to the Executive upon a termination of employmentfollowing a Change in Control of the Company, to which he and the Company are parties, and as to such prior agreements, if any, the Executive releases all claims, rights and entitlements. 

 

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11. **Regulatory Approvals** - The Agreement, and the rights and obligations of the parties hereto,shall be subject to approval of the same by any and all regulatory authorities having jurisdiction over the Company, to the extent such approval is required by law, regulation, or order. 

 

12. **Regulator Intervention** - Notwithstanding any term of this Agreement to the contrary, this Agreement is subject tothe following terms and conditions: 

 

(a) The Company’sobligations to provide compensation or other benefits to Executive under this Agreement may be suspended if the Company has been served with a notice of charges by the appropriate federal banking agency under provisions of Section 8 of theFederal Deposit Insurance Act (12 U.S.C. 1818) directing the Company to cease making payments required hereunder; provided, however, that 

 

(I) The Company shall seek in good faith with its best efforts to oppose such notice of charges as to which there are reasonable defenses;

 

(ii) In the event the notice of charges isdismissed or otherwise resolved in a manner that will permit the Company to resume its obligations to provide compensation or other benefits hereunder, the Company shall immediately resume such payments and shall also pay Executive the compensationwithheld while the contract obligations were suspended, except to the extent precluded by such notice; and 

 

(iii) During the period of suspension, the vested rights of the contracting parties shall not be affected, except to the extent precludedby such notice. 

 

(b) The Company’s obligations to providecompensation or other benefits to Executive under this Agreement shall be terminated to the extent a final order has been entered by the appropriate federal banking agency under provisions of Section 8 of the Federal Deposit Insurance Act (12U.S.C. 1818) directing the Company not to make the payments required hereunder; provided, however, that the vested rights of the contracting parties shall not be affected by such order, except to the extent precluded by such order. 

 

(c) The Company’s obligations to provide compensation or other benefitsto Executive under this Agreement shall be terminated or limited to the extent required by the provisions of any final regulation or order of the Federal Deposit Insurance Company promulgated under Section 18(k) of the Federal Deposit InsuranceAct (12 U.S.C. 1828(k)) limiting or prohibiting any “golden parachute payment” as defined therein, but only to the extent that the compensation or payments to be provided under this Agreement are so prohibited or limited. 

 

(d) Notwithstanding the foregoing, the Company shall not be required to makeany payments under this Agreement prohibited by law. 

 

INWITNESS WHEREOF, the Company has caused this Agreement to be executed on its behalf by its duly authorized officers and the Executive has hereunto set his hand, as of the date and year first above written. 

 
COMMUNITY BANCSHARES, INC.By: 
/s/ Patrick M. Frawley
  Chairman, President and  Chief Executive Officer
 

Attest:

 

 

/s/ William H. Caughran
Secretary
 

(CORPORATE SEAL) 

 

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EXECUTIVE  
/s/ John W. Brothers
 **(SEAL)**
John W. Brothers
  
 

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