exv10w11






Exhibit 10.11




TransCommunity Financial Corporation




Change in Control Agreement




     This
Change in Control Agreement (this “Agreement”) dated this 27th day of May, 2008, by and between M. Andrew McLean (“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 June 1,
2006; and



     WHEREAS, the Company and Employee desire to terminate the June 1, 2006 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






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 two (2) 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) year 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.




     “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”).




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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
Combination or were elected by such majority at the time of the execution of the



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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.




     “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 President of
TransCommunity Bank, (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.




	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).



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     (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 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 legal fees and expenses, if any, incurred by Employee in
obtaining, enforcing, or defending any right or benefit provided by this Agreement, whether
successful or not. 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.




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	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 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 June 1, 2006 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/ Bruce B. Nolte
 

Bruce B. Nolte, President & CEO

	 	/s/ M. Andrew McLean
 

M. Andrew McLean
	 	 






     Community Banker’s Acquisition Corp. hereby executes this Agreement for the limited purpose
described in Section 16.



	 	 	 	 	 
	 	 	COMMUNITY BANKER’S ACQUISITION CORP.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Gary A. Simanson
	 

	 	 	 	 






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