Exhibit 10.6
Employment
AGREEMENT
This
EMPLOYMENT Agreement (this “Agreement”) is made and entered into this 23rd day of June, 2017 by and between
Southern National Bancorp of Virginia, Inc., and Xxxxxx X. Xxxxx (“Executive”), to be effective as of the Effective
Date (as defined below).
BACKGROUND
WHEREAS, Executive
is currently employed by Southern National Bancorp of Virginia, Inc. as its Senior Vice President and Chief Credit Officer;
WHEREAS, following,
and contingent upon the closing of, the merger of Eastern Virginia Bankshares, Inc. with and into Southern National Bancorp of
Virginia, Inc. (the “Merger”), Executive shall serve as the Chief Credit Officer of Southern National Bancorp
of Virginia, Inc., the surviving corporation in the Merger (the “Company”); and
WHEREAS, the Company
desires to employ Executive and Executive desires to accept employment subject to the agreements and covenants of this Agreement.
NOW, THEREFORE, in
consideration of the payments, consents and acknowledgements described below, in consideration of Executive’s employment
with the Company, and in consideration of other good and valuable consideration, the receipt and sufficiency of all of which is
hereby acknowledged, the parties agree as follows:
1. Effective
Date; Term; Prior Agreement.
(a) Effective
Date. This Agreement shall be effective as of the effective date (the “Effective Date”) of the Merger, as
defined in the Agreement and Plan of Merger between the Company and Eastern Virginia Bankshares, Inc. (the “Merger Agreement”).
If the Effective Date shall not occur as contemplated under the Merger Agreement, this Agreement shall be deemed void and of no
force and effect.
(b) Term.
Upon the terms and subject to the conditions set forth in this Agreement, the Company hereby employs Executive, and Executive hereby
accepts such employment, for the term commencing on the Effective Date and, unless otherwise earlier terminated pursuant to Section
4 hereof, expiring on the close of business on the second (2nd) anniversary of the Effective Date (the “Term”).
If the Term expires and the parties agree that Executive will remain employed by the Company but do not enter into a new employment
agreement, then such employment shall be at-will and this Agreement will be of no further force and effect, except that Section
6 hereof, as well as any other provisions of this Agreement necessary to interpret or enforce Section 6 hereof, shall survive and
continue to be in full force and effect in accordance with their terms.
(c) Prior
Agreement. The Company and Executive agree that, as of the Effective Date, the Change in Control Agreement (the “Prior
CIC Agreement”) by and between Executive, the Company and Sonabank (the “Bank”) dated as of August
1, 2006 shall be terminated and be null and void pursuant to an agreement to terminate employment agreement, by and between Executive
and the Company (the “Termination Agreement”), which Termination Agreement will provide for payment to Executive
of $335,040, less normal withholdings, representing the cash severance that would have been due to Executive under the Prior CIC
Agreement, determined as if Executive had been terminated in a Qualifying Termination (as defined in the Prior CIC Agreement) provided
that Executive shall have executed a general release (the “General Release”) in favor of the Company and its
related entities in a
form provided by the Company and effective
on the Effective Date and the General Release shall not have been revoked within the revocation period specified in the General
Release.
2. Employment.
Executive is hereby employed on the Effective Date as the Chief Credit Officer. In his capacity as Chief Credit Officer, Executive
shall have the duties, responsibilities and authority commensurate with such position. During his employment with the Company,
and excluding any periods of vacation or sick leave to which Executive is entitled, Executive agrees to (i) devote all of his business
effort, time, energy, and skill to fulfill his employment duties; and (ii) faithfully, loyally and diligently perform such duties.
During his employment with the Company, Executive shall not be engaged in or provide services to any other business or enterprise
(whether engaged in for profit or not) which interferes with his obligations to the Company. In his capacity as Chief Credit Officer,
Executive will report directly to the Chief Executive Officer.
3. Compensation
and Benefits.
(a) Base
Salary. During the Term, the Company shall pay to Executive base salary at the rate equal to $217,360 (“Base Salary”),
less normal withholdings, payable in approximately equal bi-weekly or other installments as are or become customary under the Company’s
payroll practices for its Executives from time to time. The Compensation Committee of the Board (the “Compensation Committee”)
shall review Executive’s Base Salary at its first meeting immediately following the Effective Date and may increase, but
not decrease, such Base Salary in connection with such review.
(b) Benefit
Plans. During the Term, Executive shall be entitled to participate in or become a participant in any employee benefit plan
maintained by the Company for which Executive is or will become eligible on such terms as the Board, or committee thereof, may,
in its discretion, establish, modify or otherwise change; provided, however, that Executive shall not be eligible to participate
in the Eastern Virginia Bankshares, Inc. Supplemental Executive Retirement Plan; and provided further that nothing herein shall
limit the ability of the Company to amend, modify or terminate any such plans at any time and from time to time.
(c) Incentive
Compensation. Executive shall receive such incentive awards, including but not limited to equity awards, in such manner and
subject to such terms and conditions as the Board, or a committee thereof, in its sole discretion, may determine.
(d) Clawback.
Executive agrees that any incentive compensation (including both equity and cash incentive compensation) that Executive receives
from the Company or a related entity is subject to repayment (i.e., clawback) to the Company or such related entity as determined
by the Board or its Compensation Committee in the event (i) of a restatement of the Company’s financial results (other than
a restatement caused by a change in applicable accounting rules or interpretations) the result of which is that the financial statements
were materially inaccurate and any incentive compensation paid would have been a materially lower amount had it been calculated
based on such restated results or (ii) the repayment is otherwise required by applicable state or federal law or regulation or
stock exchange requirement, or by a separate “clawback” policy, as may be adopted from time to time by the Board. Except
where offset of, or recoupment from, incentive compensation covered by Section 409A of the Code (as defined below) is prohibited
by Section 409A of the Code, to the extent allowed by law and as determined by the Compensation Committee, Executive agrees that
such repayment may, in the discretion of the Compensation Committee, be accomplished by withholding of future compensation to be
paid to Executive by the Company. Any recovery of incentive compensation covered by Section 409A of the Code shall be implemented
in a manner which complies with Section 409A of the Code.
(e) Expenses.
During the Term, and subject to Section 10 hereof, Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by Executive in the course of performing his duties and responsibilities under this Agreement, in accordance
with the policies, practices and procedures of the Company to the extent available to other Peer Executives with respect to travel
and other business expenses.
(f) Automobile
Allowance. During the Term, the Company shall pay Executive a monthly automobile allowance in an amount equal to the monthly
automobile allowance in effect for Executive immediately prior to the Effective Date.
4. Termination
of Employment.
(a) Death.
Executive’s employment shall terminate automatically upon his death.
(b) Termination
by the Company. The Company may terminate Executive’s employment during the Term with or without Cause (as defined herein),
in each case immediately on written notice to Executive. For purposes of this Agreement, a termination shall be considered to be
for “Cause” if the Company determines that any of the following has occurred: (i) Executive’s willful
violation of any laws, rules or regulations applicable to banks or the banking industry generally; (ii) Executive’s material
failure to comply with the Company’s policies or guidelines of employment or corporate governance policies or guidelines,
including, without limitation, any business code of ethics adopted by the Company, that, if capable of being cured, is not cured
by Executive within ten (10) days of written notice by the Company of the failure; (iii) any act of fraud, misappropriation or
embezzlement by Executive; (iv) a material breach of this Agreement that, if such breach is capable of being cured, is not cured
by Executive within ten (10) days of written notice by the Company of the breach; or (v) Executive’s conviction of, or Executive’s
pleading guilty or nolo contendere to, a felony or a crime involving moral turpitude (including pleading guilty or nolo contendere
to a felony or lesser charge which results from plea bargaining).
(c) Termination
by Executive. Executive’s employment may be terminated by Executive for any reason or no reason by delivering a notice
of termination to the Company thirty (30) days prior to the desired date of termination.
5. Obligations
of the Company upon Termination.
(a) Termination
by the Company Other Than for Cause. During the Term, if the Company terminates Executive’s employment other than for
Cause, then: (i) the Company shall pay to Executive in a lump sum in cash within thirty (30) days after the date of termination,
with the exact payment date to be determined by the Company, Executive’s Base Salary through the date of termination to the
extent not theretofore paid (the “Accrued Salary”); and (ii) subject to Section 10 hereof, the Company shall
pay to Executive an amount equal to the Base Salary that would have been payable to him through the remainder of the Term had his
employment not terminated (the “Severance Amount”), payable in a single lump sum on the first payroll date to
occur after the sixtieth (60th) day after the date of termination. Notwithstanding the foregoing, the Company shall
be obligated to provide the Severance Amount only if (A) within forty-five (45) days after the date of termination Executive shall
have executed a separation and full release of claims/covenant not to xxx agreement in the form provided by the Company (the “Release
Agreement”) and such Release Agreement shall not have been revoked within the revocation period specified in the Release
Agreement, and (B) Executive fully complies with the obligations set forth in Section 6 hereof. For
the avoidance of doubt, if Executive does not comply with the obligations set forth in Section 6 hereof, then any obligation of
the Company to pay the Severance Amount shall cease immediately upon Executive’s breach thereof.
(b) Termination
by the Company for Cause or Resignation by Executive; Death. If during the Term Executive’s employment is terminated
by the Company for Cause or by Executive for any reason, or in the event of Executive’s death, then the Company shall have
no further obligations to Executive or Executive’s legal representatives under this Agreement, other than for payment of
Accrued Salary, which shall be paid to Executive or Executive’s estate or beneficiary, as applicable, in a lump sum in cash
within thirty (30) days after the date of termination.
(c) Expiration
of Term. If Executive’s employment terminates due to the expiration of the Term, then the Company shall have no further
obligations to Executive or Executive’s legal representatives under this Agreement, other than for payment of Accrued Salary,
which shall be paid to Executive in a lump sum in cash within thirty (30) days after the date of termination.
6. Restrictions
on Competition and Disclosure and Use of Confidential Information.
(a) Confidential
Information. Executive agrees that Executive shall not, directly or indirectly, use any Confidential Information (as defined
herein) on Executive’s own behalf or on behalf of any Person (as defined herein) other than the Company, or reveal, divulge,
or disclose any Confidential Information to any Person not expressly authorized by the Company to receive such Confidential Information.
This obligation shall remain in effect for as long as the information or materials in question retain their status as Confidential
Information. Executive further agrees that he shall fully cooperate with the Company in maintaining the Confidential Information
to the extent permitted by law. The parties acknowledge and agree that this Agreement is not intended to, and does not, alter either
the Company’s rights or Executive’s obligations under any state or federal statutory or common law regarding trade
secrets and unfair trade practices. Anything herein to the contrary notwithstanding, Executive shall not be restricted from disclosing
information that is required to be disclosed by law, court order or other valid and appropriate legal process; provided, however,
that in the event such disclosure is required by law, Executive shall provide the Company with prompt notice of such requirement
so that the Company may seek an appropriate protective order prior to any such required disclosure by Executive.
Executive understands
and acknowledges that nothing in this section limits his ability to initiate communications directly with, respond to any inquiry
from, volunteer information to, or provide testimony before any government agency or otherwise participate in any reporting of,
investigation into, or proceeding regarding suspected violations of law, or from making other disclosures that are protected under,
or from receiving an award for information provided under, the whistleblower provisions of state or federal law or regulation.
Executive does not need the prior authorization of the Company to engage in such communications with any government agency, respond
to such inquiries from any government agency, provide Confidential Information or documents containing Confidential Information
to any government agency, or make any such reports or disclosures to any government agency. Executive is not required to
notify the Company that Executive has engaged in such communications with a government agency. Executive recognizes and agrees
that, in connection with any such activity outlined above, Executive must inform the government agency that the information Executive
is providing is confidential.
Federal law provides
certain protections to individuals who disclose a trade secret to their attorney, a court, or a government official in certain,
confidential circumstances. Specifically, federal law provides that an individual shall not be held criminally or civilly
liable under any state or federal trade secret law for the disclosure of a trade secret under either of the following conditions:
| · | Where the disclosure is made (A) in confidence to a federal, state or local government official,
either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected violation
of law; or |
| · | Where the disclosure is made in a complaint or other document filed in a lawsuit or other proceeding,
if such filing is made under seal. |
Federal law also provides that an individual
who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to
the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document
containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
For purposes of this
Section 6, “Confidential Information” means any and all data and information relating to the Company or the Bank, their
activities, business, or clients that (i) is disclosed to Executive or of which Executive becomes aware as a consequence of his
employment with the Company; (ii) has value to the Company; and (iii) is not generally known outside of the Company or the Bank.
“Confidential Information” shall include, but is not limited to the following types of information regarding, related
to, or concerning the Company or the Bank: trade secrets (as defined by Virginia Uniform Trade Secrets Act); financial plans and
data; management planning information; business plans; operational methods; market studies; marketing plans or strategies; pricing
information; product development techniques or plans; customer lists; customer files, data and financial information; details of
customer contracts; current and anticipated customer requirements; identifying and other information pertaining to business referral
sources; past, current and planned research and development; computer aided systems, software, strategies and programs; business
acquisition plans; management organization and related information (including, without limitation, data and other information concerning
the compensation and benefits paid to officers, directors, employees and management); personnel and compensation policies; new
personnel acquisition plans; and other similar information. “Confidential Information” also includes combinations of
information or materials which individually may be generally known outside of the Company or the Bank, but for which the nature,
method, or procedure for combining such information or materials is not generally known outside of the Company or the Bank. In
addition to data and information relating to the Company or the Bank, “Confidential Information” also includes any
and all data and information relating to or concerning a third party that otherwise meets the definition set forth above, that
was provided or made available to the Company or the Bank by such third party, and that the Company or the Bank has a duty or obligation
to keep confidential. This definition shall not limit any definition of “confidential information” or any equivalent
term under state or federal law. “Confidential Information” shall not include information that has become generally
available to the public by the act of one who has the right to disclose such information without violating any right or privilege
of the Company or the Bank. For purposes of this Section 6, “Person” means any individual or any corporation, partnership,
joint venture, limited liability company, association or other entity or enterprise.
(b) Non-competition.
Beginning on the Effective Date and for a period continuing through the twelve (12) months following cessation of Executive’s
employment with the Company (the “Restricted Period”), Executive shall not, directly or indirectly, within any
State in the United States where the Company or the Bank has a retail bank branch at the time Executive’s employment ceases,
own any interest in, control or participate in the ownership or control of, or perform services that are the same as or substantially
similar to the services Executive performed for the Company pursuant to this Agreement for any company, person or entity engaged
in a Competitive Business (as defined herein). A “Competitive Business” shall mean any person or entity that is providing
deposits, money market accounts, certificates of deposit or other typical retail banking deposit-type services or loans on a retail
level, to individuals, businesses or non-profit entities in any State in the United States in which the Company or the Bank has
a retail bank branch at the time Executive’s employment ceases. Notwithstanding the foregoing, nothing in this Agreement
shall prevent Executive from owning for passive investment purposes not intended to circumvent this Agreement, less than five percent
(5%) of the
publicly-traded voting securities of any
company engaged in the banking, financial services, insurance, brokerage or other business similar to or competitive with the Company
or the Bank (so long as Executive has no power to manage, operate or control the competing enterprise and no power, alone or in
conjunction with other affiliated parties, to select a director, manager, general partner, or similar governing official of the
competing enterprise other than in connection with the normal and customary voting powers afforded Executive in connection with
any permissible equity ownership).
(c) Non-solicitation
of Employees. During the Restricted Period, Executive shall not, directly or indirectly solicit, induce or hire, or attempt
to solicit, induce or hire, any person who is an employee of the Company or the Bank at the time Executive’s employment ceases
or within six (6) months prior thereto, to leave his or her employment with the Company or the Bank or join or become affiliated
with any Competitive Business.
(d) Non-solicitation
of Customers. During the Restricted Period, Executive shall not, directly or indirectly solicit or induce or attempt to solicit
or induce, any customer, lender, supplier, licensee, licensor or other business relation of the Company or the Bank to terminate
its relationship or contracts with the Company or the Bank, to cease doing business with the Company or the Bank, or in any way
interfere with the relationship between any such customer, lender, supplier, licensee, licensor or business relation and the Company
or the Bank.
(e) Rights
and Remedies Upon Breach. The parties specifically acknowledge and agree that the remedy at law for any breach of the covenants
in Section 6 will be inadequate, and that in the event Executive breaches any such covenant, the Company shall have the right and
remedy, without the necessity of proving actual damage or posting any bond, to enjoin, preliminarily and permanently, Executive
from violating the covenant and to have the covenant specifically enforced by any court of competent jurisdiction, it being agreed
that any breach would cause irreparable injury to the Company and that money damages would not provide an adequate remedy to the
Company. Such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to the Company
at law or in equity. The Company and Executive understand and agree that, if the parties become involved in legal action regarding
the enforcement of the covenants in Section 6, the prevailing party in such legal action will be entitled, in addition to any other
remedy, to recover its reasonable costs and attorneys’ fees incurred in enforcing or defending action with respect to such
covenants. The Company’s ability to enforce its rights under the covenants in Section 6 or applicable law against Executive
shall not be impaired in any way by the existence of a claim or cause of action on the part of Executive based on, or arising out
of, this Agreement or any other event or transaction.
7. Non-exclusivity
of Rights. Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any employee
benefit plan, program, policy or practice provided by the Company or its affiliated companies and for which Executive may qualify.
Amounts that are vested benefits or which Executive is otherwise entitled to receive under any plan, policy, practice or program
of the Company or any of its affiliated companies at or subsequent to the date of termination shall be payable in accordance with
such plan, policy, practice or program.
8. Full
Settlement; No Mitigation. The Company’s obligation to make the payments provided for in this Agreement and otherwise
to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against Executive or others. In no event shall Executive be obligated to seek other employment
or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement
and such amounts shall not be reduced whether or not Executive obtains other employment.
9. Successors.
This Agreement is personal to Executive and shall not be assignable by Executive otherwise than by will or the laws of descent
and distribution. This Agreement shall inure to the benefit of and be enforceable by Executive’s legal representatives. This
Agreement can be assigned by the Company and shall be binding and inure to the benefit of the Company, and their successors and
assigns.
10. Code
Section 409A.
(a) General.
This Agreement shall be interpreted and administered in a manner so that any amount or benefit payable hereunder shall be paid
or provided in a manner that is either exempt from or compliant with the requirements of Section 409A of the Internal Revenue Code
of 1986, as amended, and applicable Internal Revenue Service guidance and Treasury Regulations issued thereunder (and any applicable
transition relief under Section 409A of the Code) (“Section 409A of the Code”). Nevertheless, the tax treatment
of the benefits provided under the Agreement is not warranted or guaranteed. Neither the Company nor its directors, officers, employees
or advisers, shall be held liable for any taxes, interest, penalties or other monetary amounts owed by Executive as a result of
the application of Section 409A of the Code.
(b) Definitional
Restrictions. Notwithstanding anything in this Agreement to the contrary, to the extent that any amount or benefit that would
constitute non-exempt “deferred compensation” for purposes of Section 409A of the Code (“Non-Exempt Deferred
Compensation”) would otherwise be payable or distributable hereunder by reason of Executive’s termination of employment,
such Non-Exempt Deferred Compensation will not be payable or distributable to Executive by reason of such circumstance unless the
circumstances giving rise to such termination of employment meet any description or definition of “separation from service,”
in Section 409A of the Code and applicable regulations (without giving effect to any elective provisions that may be available
under such definition). If this provision prevents the payment or distribution of any Non-Exempt Deferred Compensation, then, subject
to subsection (c) below, such payment or distribution shall be made at the time and in the form that would have applied absent
the non-409A-conforming event.
(c) Six-Month
Delay in Certain Circumstances. Notwithstanding anything in this Agreement to the contrary, if any amount or benefit that would
constitute Non-Exempt Deferred Compensation would otherwise be payable or distributable under this Agreement by reason of Executive’s
separation from service during a period in which he is a Specified Employee (as defined below), then, subject to any permissible
acceleration of payment by the Company under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic relations order), (j)(4)(iii) (conflicts
of interest), or (j)(4)(vi) (payment of employment taxes): (i) the amount of such Non-Exempt Deferred Compensation that would otherwise
be payable during the six-month period immediately following Executive’s separation from service will be accumulated through
and paid or provided on the first day of the seventh month following Executive’s separation from service (or, if Executive
dies during such period, within 30 days after Executive’s death) (in either case, the “Required Delay Period”);
and (ii) the normal payment or distribution schedule for any remaining payments or distributions will resume at the end of the
Required Delay Period.
(d) Timing
of Release of Claims. Whenever in this Agreement a payment or benefit is conditioned on Executive’s execution of a release
of claims, such release must be executed and all revocation periods shall have expired within 60 days after the date of termination;
failing which such payment or benefit shall be forfeited. If such payment or benefit constitutes Non-Exempt Deferred Compensation,
then such payment or benefit (including any installment payments) that would have otherwise been payable during such 60-day period
shall be accumulated and paid on the 60th day after the date of termination provided such release shall have been executed
and such revocation periods shall have
expired. If such payment or benefit is
exempt from Section 409A of the Code, the Company may elect to make or commence payment at any time during such period.
(e) Timing
of Reimbursements and In-kind Benefits. If Executive is entitled to be paid or reimbursed for any taxable expenses under this
Agreement, and such payments or reimbursements are includible in Executive’s federal gross taxable income, the amount of
such expenses reimbursable in any one calendar year shall not affect the amount reimbursable in any other calendar year, and the
reimbursement of an eligible expense must be made no later than December 31 of the year after the year in which the expense was
incurred. No right of Executive to reimbursement of expenses under this Agreement shall be subject to liquidation or exchange for
another benefit.
11. Modified
Cutback of Compensation Deemed to be Contingent on a Change of Control. If any benefits or payments are to be made under the
terms of this Agreement or any other agreement between Executive and the Company or the Bank following a transaction that constitutes
a change in the ownership or effective control of the Company or the Bank or in the ownership of a substantial portion of the assets
of the Company or the Bank such that the provisions of Section 280G of the Internal Revenue Code of 1986, as amended, and any regulations
thereunder (“Code Section 280G”) or Section 4999 of the Internal Revenue Code and any regulations thereunder could
potentially apply to such compensation, then the following provisions shall be applicable:
(a) In
the event the independent accountants serving as auditors for the Company on the date of a change of control within the meaning
of Code Section 280G (or any other accounting firm designated by the Company) determine that some or all of the payments or benefits
scheduled under this Agreement, as well as any other payments or benefits on such change of control, would be nondeductible by
the Company or the Bank under Code Section 280G, then the payments scheduled under this Agreement and all other agreements between
Executive and the Company will be reduced to one dollar less than the maximum amount which may be paid without causing any such
payment or benefit to be nondeductible. Any reduction of benefits or payments required to be made under this Section 11(a) shall
be taken in the following order: first from cash compensation and then from payments or benefits not payable in cash, in each case
in reverse order beginning with payments or benefits which are to be paid the farthest in time from the date of determination.
(b) Notwithstanding
the foregoing Section 11(a), in the event the independent accountants serving as auditors for the Company on the date of a change
of control within the meaning of Code Section 280G (or any other accounting firm designated by the Company) determine that the
net economic benefit to Executive after payment of all income and excise taxes is greater without giving effect to Section 11(a)
than Executive’s net economic benefit after a reduction by reason of the application of Section 11(a), then Section 11(a)
shall be a nullity and without any force or effect. Any decisions regarding the requirement or implementation of the reductions
to compensation described in Section 11(a) shall be made by the independent accountants serving as auditors for the Company on
the date of a change of control within the meaning of Code Section 280G (or any other accounting firm designated by the Company),
shall be made at the Company’s expense and shall be binding on the parties.
12. Regulatory
Action.
(a) If
Executive is removed and/or permanently prohibited from participating in the conduct of the Company’s affairs by an order
issued under Section 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act (“FDIA”) (12 U.S.C. 1818(e)(4)
and (g)(1)), all obligations of the Company under this Agreement shall terminate, as of the effective date of such order.
(b) If
Executive is suspended and/or temporarily prohibited from participating in the conduct of the Company’s affairs by a notice
served under Section 8(e)(3) or 8(g)(1) of the FDIA (12 U.S.C. 1818(e)(3) and (g)(1)), all obligations of the Company under this
Agreement shall be suspended as of the date of service, unless stayed by appropriate proceedings. If the charges in the notice
are dismissed, the Company shall reinstate (in whole or in part) any of its obligations which were suspended.
(c) If
the Company is in default (as defined in Section 3(x)(1) of the FDIA), all obligations under this Agreement shall terminate as
of the date of default.
(d) All
obligations under this Agreement shall be terminated, except to the extent a determination is made that continuation of the Agreement
is necessary for the continued operation of the Company (1) by the director of the FDIC or his or her designee (the “Director”),
at the time the FDIC enters into an agreement to provide assistance to or on behalf of the Company under the authority contained
in 13(c) of the FDIA; or (2) by the Director, at the time the Director approves a supervisory merger to resolve problems related
to operation of the Company when the Company is determined by the Director to be in an unsafe and unsound condition.
(e) Notwithstanding
anything contained in this Agreement to the contrary, no payments shall be made pursuant to any provision herein in contravention
of the requirements of Section 2[18(k)] of the FDIA (12 U.S.C. 1828(k)). In particular, the provisions pertaining to the potential
for payments shall have no force or effect as long as either the agreement concerning the potential for payments or the actual
payment of such amounts would be considered a “golden parachute payment,” with the meaning of 12 C.F.R. Section 359.1(f).
13. Miscellaneous.
(a) Applicable
Law; Forum Selection; Consent to Jurisdiction. The Company and Executive agree that this Agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of Virginia without giving effect to its conflicts of law principles.
Executive agrees that the exclusive forum for any action to enforce this Agreement, as well as any action relating to or arising
out of this Agreement, shall be the Circuit Court of Fairfax County or the federal court encompassing that jurisdiction, at the
option of the Company. With respect to any such court action, Executive hereby irrevocably submits to the personal jurisdiction
of such courts. The parties hereto further agree that the courts listed above are convenient forums for any dispute that may arise
herefrom and that neither party shall raise as a defense that such courts are not convenient forums.
(b) Non-Duplication.
Notwithstanding anything to the contrary in this Agreement, and except as specifically provided below, any severance payments or
benefits received by Executive pursuant to this Agreement shall be in lieu of any general severance policy or other severance plan
maintained by the Company (other than a stock option, restricted stock, share or unit, performance share or unit, supplemental
retirement, deferred compensation or similar plan or agreement which may contain provisions operative on a termination of Executive’s
employment or may incidentally refer to accelerated vesting or accelerated payment upon a termination of employment).
(c) Captions.
The captions of this Agreement are not part of the provisions hereof and shall have no force or effect.
(d) Amendments.
This Agreement may not be amended or modified otherwise than-by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
(e) Notices.
All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid, addressed as follows:
|
If to Executive:
On file with the Company |
If to the Company:
0000 Xxx Xxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: CEO |
or to such other address as either party
shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective when actually
received by the addressee.
(f) Severability.
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(g) Withholding.
The Company may withhold from any amounts payable under this Agreement such federal, state, local or foreign taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
(h) Waivers.
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 right granted 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.
(i) Entire
Agreement. This Agreement contains the entire agreement between the Company and Executive with respect to the subject matter
hereof and, from and after the date hereof, this Agreement shall supersede any other agreement, written or oral, between the parties
relating to the subject matter of this Agreement, including but not limited to any prior discussions, understandings, and/or agreements
between the parties, written or oral, at any time.
(j) Construction.
The parties understand and agree that because they both have been given the opportunity to have counsel review and revise this
Agreement, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement. Instead, the language of all parts of this Agreement shall be construed
as a whole, and according to its fair meaning, and not strictly for or against either of the parties.
(k) Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together
shall constitute one and the same instrument.
(Signatures on following page)
IN WITNESS WHEREOF, Executive has hereunto
set Executive’s hand and the Company has caused these presents to be executed in its name on its behalf, all as of the day
and year first above written.
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/s/ Xxxxxx X. Xxxxx |
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xxxxxx x. xxxxx |
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/s/ Xxx X. Xxxxxxx |
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SOUTHERN NATIONAL |
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BANCORP OF VIRGINIA, INC. |
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By: Xxx X. Xxxxxxx |
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Its: President and Chief Executive Officer |
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[Xxxxx Employment
Agreement]
