Exhibit 10(a)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is effective as of the 31st day of December, 2001,
between XXXXX XXXXXX BANCORP, INC. (the "Corporation"), a corporation organized
and existing under the laws of the Commonwealth of Virginia, with principal
offices at 0000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, XXXXX XXXXXX BANK
(the "Bank"), a Virginia commercial bank wholly owned by the Corporation, and
Xxxx X. Xxxxxxx ("Xxxxxxx"), also referred to below, collectively as the
"parties" and, individually, as a "party."
WITNESSETH THAT, in consideration of the mutual covenants and
obligations hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT.
(a) Commencing December 31, 2001, and continuing through December 31,
2004, and from year to year thereafter until terminated under the provisions of
paragraph 5 below, Xxxxxxx shall be employed by the Bank as its President and
Chief Executive Officer. As President and Chief Executive Officer, there shall
be no more senior officer of the Bank and Xxxxxxx shall report exclusively to,
and Xxxxxxx shall be managed exclusively by, its Board of Directors consistently
with the terms of this Agreement. The Board of Directors of the Bank shall not,
without Xxxxxxx'x approval or without cause, elect any person to a corporate
position superior to any of the positions held by Xxxxxxx on June 8, 1998, or
remove him from the offices of President and Chief Executive Officer of the
Bank, or in any other way fail to maintain Xxxxxxx in the then highest executive
position in the Bank's organization. Xxxxxxx'x duties as President and Chief
Executive Officer shall be those normally undertaken by Presidents and Chief
Executive Officers of banks similar to the Bank in nature and size at the time
he exercises such duties. Additionally, in exercising his said duties, Xxxxxxx
shall have such authority and discretion to make decisions binding upon the Bank
as are reasonable and consistent with the good faith discharge of said duties.
(b) During the term of this Agreement, Xxxxxxx shall also serve as the
President and Chief Executive Officer of the Corporation. As President and Chief
Executive Officer, there shall be no more senior officer of the Corporation, and
Xxxxxxx shall report exclusively to, and Xxxxxxx shall be managed exclusively
by, its Board of Directors. The Board of Directors of the Corporation shall not
remove him from the offices of President and Chief Executive Officer of the
Corporation, or in any other way fail to maintain Xxxxxxx in the then highest
executive position in the Corporation's organization.
2. COMMITMENT OF EXECUTIVE. During the term of this Agreement, Xxxxxxx
shall faithfully and diligently discharge his duties and responsibilities, shall
use his best efforts consistent with the terms of this Agreement, and shall
devote all of his business time and attention to the affairs of the Bank, except
for any period(s) of time during which Xxxxxxx'x ability to discharge any of
such duties and responsibilities and devote such time and attention are impaired
as a result of a mental or physical disability of his, or he is on vacation,
holiday or other leave, or as otherwise agreed by the Board of Directors. The
obligations of this paragraph shall not be construed to mean that Xxxxxxx shall
not be a director of any other corporation, or be associated in any way
whatsoever with any educational, charitable, civic, social, recreational, youth,
sports or other organization or endeavor. Provided, however, during the time of
his employment under this Agreement, Xxxxxxx shall not be employed by any
organization licensed as a bank by the Commonwealth of Virginia or the United
States of America anywhere except by the Bank or a subsidiary or affiliate of
the Bank.
3. COMPENSATION.
(a) During the period commencing January 1, 2002 and concluding
December 31, 2002, the Bank shall pay to Xxxxxxx a base salary of One Hundred
Seventy Thousand Dollars ($170.000.00). As of January 1, 2003, and again as of
January 1 of each succeeding year during the term of this Agreement, Xxxxxxx'x
annual base salary for the twelve (12) month period commencing on each such date
shall be an amount of money as determined by the Board of Directors with due
consideration of, among other things believed relevant thereto by the Board of
Directors, (1) Xxxxxxx'x duties, responsibilities and performance during the
immediate preceding twelve (12) month period and those expected of
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him during the then commencing twelve (12) month period, as President and Chief
Executive Officer of the Bank, and (2) salaries of persons serving as chief
executive officers of other banks having an asset size or other characteristics
similar to the Bank as may be reported in salary surveys or otherwise concerning
chief executive officers in the banking industry (including, but not limited to,
the Virginia Bankers Association's Annual Salary Survey Results publication).
(b) Salary as provided above will be payable less appropriate
deductions as required by law, or otherwise permitted by Xxxxxxx, and shall be
paid in appropriate installments to conform with the Bank's regular payroll
dates.
(c) Beginning with and for calendar year 2002 and thereafter, the Bank
shall pay to Xxxxxxx a bonus with respect to his performance for the Bank during
such calendar year; provided, however, that at least seventy-five percent (75%)
of such bonus shall be dependent upon objectively measurable criteria, and the
balance dependent upon subjectively measurable criteria, established in the
discretion of the Board of Directors after consultation with and due
consideration of Xxxxxxx'x views thereon. Xxxxxxx shall be paid no less than 28%
of the entire bonus pool available for distribution to officers and employees of
the Bank at the end of the calendar year 2002. The total bonus as to which
Xxxxxxx shall be eligible to receive for any calendar year after 2002 shall be
established in the discretion of the Board of Directors after consultation with
and due consideration of Xxxxxxx'x views thereon, and Xxxxxxx shall be apprized
of such eligible bonus amount and the aforesaid objective criteria, in writing,
during the first calendar quarter of each of such year.
4. OTHER BENEFITS.
(a) During the term of this Agreement, the Bank shall pay the premiums
on a term life insurance policy(ies) on the life of Xxxxxxx, which policy(ies)
shall be owned by Xxxxxxx, in the face amount of One Million Seven Hundred
Thousand Dollars ($1,700,000.00), and for years beginning January 1, 2002 and on
each succeeding January 1, the face amount of such policy shall be increased in
the same proportion as Xxxxxxx'x base salary is increased under this Agreement
for the year commencing on that January 1. Further, the said term life insurance
policy shall be obtained from an insurance company selected by Xxxxxxx, and the
beneficiary(ies) thereon shall be determined by Xxxxxxx and there shall be no
restraint against Xxxxxxx retaining such policy after the expiration of the term
of this Agreement, at his own expense, should he choose to do so.
(b) During the term of this Agreement, the Bank shall furnish an
automobile owned or leased by the Bank for Xxxxxxx'x use for any purpose
whatsoever, and the Bank shall pay an automobile expense allowance agreed to by
Xxxxxxx and the Board of Directors for fuel, maintenance and replacement parts
and consumables, repairs and all other costs incidental to the use or operation
of the car. The Bank shall maintain reasonable insurance coverages on said
vehicle at its expense for the benefit of Xxxxxxx. The make and type of
automobile shall be consistent with the positions of Xxxxxxx with the Bank based
on the discretion of the Board of Directors.
(c) The Corporation has granted Xxxxxxx the option to acquire up to
Thirty-Six Thousand, Eight Hundred and Eighty (36,880) shares of the
Corporation's common stock at the price of Ten Dollars ($10.00) per share. This
grant is exercisable, in whole or in part, during the period it is outstanding,
subject to the terms of the Xxxxx Xxxxxx Bank 1998 Stock Option Plan, as adopted
by the Corporation. It is intended that such options be "non-qualified stock
options" within the terms of such Plan and the Internal Revenue Code and, on
exercise, the Corporation shall reimburse Xxxxxxx for any income taxes payable
by him as an incident of such exercise up to the amount of the tax benefit to be
received by the Corporation as a result of the exercise by Xxxxxxx of any of
said options. Additionally, if the Corporation seeks or is required to register
any of its securities under the Securities Act of 1933, as amended, or file
reports under the Securities Exchange Act of 1934, as amended, with the U.S.
Securities and Exchange Commission, it shall, at its expense, cause to be
registered, without restrictions thereon (except as may be required by law), all
shares of stock acquired by Xxxxxxx, upon his exercise of the said non-qualified
options with respect thereto.
(d) Xxxxxxx shall be reimbursed for reasonable travel and all other
expenses incurred or paid by Xxxxxxx and which he considers in accordance with
the Bank's policies and in his discretion to be reasonable and proper in
connection with the performance of his services under this Agreement, upon
presentation of expense statements or vouchers or such other supporting
information as may from time to time be requested by the Board of Directors.
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(e) In the event of Xxxxxxx'x inability to perform his duties due to
illness or incapacity, the Bank shall continue his full base salary for a period
of three (3) months from the commencement of said disability. Additionally, for
the subsequent three (3) month period, the Bank shall pay to Xxxxxxx that
portion of his base salary such that the total amount received by Xxxxxxx
pursuant to this sentence plus the amount, if any, received by Xxxxxxx pursuant
to the Bank's income disability policy (if such policy exists) equals his full
base salary for said subsequent three (3) month period. Thereafter, Xxxxxxx
shall only be entitled to receive payments pursuant to the Bank's income
disability policy, if such policy exists, except without regard to the
$5,000.00/month ceiling limitation.
(f) Xxxxxxx shall be entitled to participate in and enjoy according to
Bank policy any and all pension, retirement, profit-sharing, stock purchase,
stock option, life insurance, accident insurance, medical reimbursement, health
insurance or hospitalization plan, cafeteria plan, deferred compensation plan,
vacations, holidays and other leave and any other fringe benefits in which any
other employee or executive of the Bank is eligible to participate and entitled
by Bank policy to enjoy.
5. TERM AND TERMINATION.
(a) This Agreement shall be effective as of December 31, 2001, and
shall remain in effect through December 31, 2004, and from year to year
thereafter, unless terminated as provided herein.
(b) Either party may terminate the Agreement as of December 31, 2004,
or as of the end of any subsequent one (1) year period, by giving written notice
of termination to the other party not less than ninety (90) days prior to the
intended date of termination.
(c) This Agreement shall terminate upon the death of Xxxxxxx.
(d) This Agreement shall terminate in the event of the permanent
disability of Xxxxxxx, which shall mean a disability due to physical or mental
illness or incapacity resulting in Xxxxxxx'x inability to perform each and every
one of his duties as President and Chief Executive Officer of the Bank for a
period of six (6) consecutive months, or for an aggregate period of nine (9)
months, or more, in any twelve (12) month period during the term of this
Agreement, as determined by a physician selected by Xxxxxxx and the Board of
Directors of the Bank (who shall cooperate in good faith with each other to
choose), it being understood and agreed that if Xxxxxxx can perform any of his
said duties, then he shall not be considered permanently disabled for purposes
of this paragraph 5(d).
(e) This Agreement shall terminate in the event of Xxxxxxx'x "Dismissal
for Just Cause" as next defined, unless cured by Xxxxxxx as provided in
subparagraph 5(e)(2) below.
(1) "Dismissal for Just Cause" shall exclusively mean a termination of
Xxxxxxx'x employment because of Xxxxxxx'x personal dishonesty, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform his duties as President and Chief Executive Officer, willful
violation of any law, rule or regulation of any governmental agency having
jurisdiction over Xxxxxxx, other than traffic violations or similar offenses,
but including Xxxxxxx'x willfully causing the Bank to violate any final cease or
desist order issued against the Bank by a bank regulator having authority and
jurisdiction to issue such final order. In no event shall failure to perform his
said duties as a result of, or in connection with, any physical or mental
disability constitute just cause.
(2) Prior to Xxxxxxx'x Dismissal for Just Cause, the Bank shall provide
written notice of its reasons as to why it believes such cause exists and
Xxxxxxx shall have thirty (30) days from receipt of such notice to effect a cure
of same.
(f) This Agreement shall terminate at the option of Xxxxxxx upon or
within twelve (12) months after a Change of Control of the Bank as defined in
subparagraph 5(f)(1), upon Xxxxxxx'x good faith determination that the Bank has
engaged in any of the activities set forth below in paragraphs 5(f)(2)(i)
through (iv) below.
(1) For the purposes of this Agreement, the term "Change in Control"
means anyone of the following events occurring during the term of this Agreement
and subsequent to December 31, 2001: (I) the acquisition by any person or by
persons acting as a "Group" (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934) of ownership of,
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holding or power to vote more than 51% of the voting stock of the Bank; (ii) the
acquisition by any person or by persons acting as a Group of the power to
control the election of a majority of the members of the Bank's Board of
Directors; (iii) the exercise of a controlling influence over the management or
policies of the Bank by any person or by persons acting as a Group; or (iv) the
failure of Continuing Directors (as next defined) to constitute at least
two-thirds of the Board of Directors of the Bank during any period of
twenty-four (24) consecutive months. For purposes of this Agreement, "Continuing
Directors" shall mean only those individuals who were members of the Board of
Directors on December 31, 2001, and those other individuals whose election or
nomination for election as a member of said Board was approved by a vote of at
least two-thirds of the Continuing Directors then in office on said Board. For
purposes of this subparagraph 5(f)(1) only, the term "person" refers to a human
being or a corporation, partnership, trust, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization, or any other form
of entity not specifically listed herein.
(2) Upon and after a Change of Control, the Bank shall not without
Xxxxxxx' s prior written agreement thereto:
(i) Make any material change in Xxxxxxx'x status or positions with
the Bank or a material change in Xxxxxxx'x duties or
responsibilities inconsistent with his status or positions, or
remove Xxxxxxx from or fail to reappoint or reelect Xxxxxxx to
such positions, except in connection with a termination of
Xxxxxxx'x employment by the Bank under the provisions of paragraph
5(b), 5(c), 5(d) or 5(e);
(ii) Fail to continue in effect each Plan (as hereinafter defined)
in which Xxxxxxx is participating immediately before the Change in
Control of the Bank, or place into effect Plans providing at least
substantially similar benefits, other than as a result of the
normal expiration of any such Plan in accordance with its terms as
in effect at the time of the Change in Control, or take any action
or fail to take action which would adversely affect Xxxxxxx'x
continued participation in each such Plan on at least as favorable
a basis to Xxxxxxx as is the case before the date of the Change in
Control. For purposes of this subparagraph, "Plan" shall mean any
compensation plan, such as an incentive or stock option plan, or
any employee benefit plan, such as a thrift, pension, profit
sharing, medical disability, accident, life insurance plan or
policy, or any other plan, program or policy of the Bank intended
to benefit employees.
(iii) Refuse to continue to allow Xxxxxxx to attend to any matter
or engage in any activity not directly related to the business of
the Bank, which, immediately prior to the date the Change in
Control occurs, Xxxxxxx was permitted by the Board of Directors to
attend or in which, prior to the Change in Control, Xxxxxxx was
permitted by the Board of Directors to engage.
(iv) Assign this Agreement or delegate any obligations of the Bank
under this Agreement.
6. SEVERANCE UPON TERMINATION AND RESTRICTIVE COVENANT.
(a)(1) If Xxxxxxx'x employment under this Agreement, or this Agreement
itself is terminated as a result of the Bank's or the Corporation's breach of
this Agreement, or if Xxxxxxx chooses to terminate his employment under this
Agreement as a result of the Bank's or the Corporation's breach of any one or
more of the Bank's or the Corporation's obligations under this, Agreement, then,
as liquidated damages, and in lieu of any other further payments which Xxxxxxx
would be otherwise entitled to receive under paragraphs 3 and 4 (other than
4(c)) of this Agreement), the Bank shall (1) pay Xxxxxxx for a period equal to
twelve (12) months, at the full amount of base salary, bonus and other benefits
to which he was entitled immediately before such termination, as provided in
this Agreement (said sum to be paid, at the option of Xxxxxxx, in either one
lump sum within thirty (30) days of such termination, or in periodic equal
monthly payments over the following twelve (12) month period), and (2) provide
Xxxxxxx executive outplacement assistance from an organization of Xxxxxxx'x
choice and the cost therefor, up to an amount equal to eighteen percent ( 18% )
of the annual base salary to which he was entitled under this Agreement
immediately before such termination, shall be borne by the Bank. In the event
the monies payable to or for Xxxxxxx pursuant to the foregoing provisions of
this paragraph 6(a)(l) result in a Federal excise tax obligation on Xxxxxxx with
respect to such payments, then, at Xxxxxxx'x discretion, the total amount of
such payments shall be reduced to the maximum amount that may be paid to or for
Xxxxxxx without causing him to incur any such Federal excise tax obligation
thereon.
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(a)(2) If Xxxxxxx'x employment under this Agreement or this Agreement
itself is terminated as a result of the Bank's or the Corporation's breach of
this Agreement, or Xxxxxxx terminates this Agreement as a result of the Bank's
or the Corporation's breach of this Agreement, Xxxxxxx shall be under no
restriction whatsoever as to the nature of the business or employment activities
in which he may engage after termination of his employment.
(b)(l) In the event Xxxxxxx'x employment is terminated by the Bank,
pursuant to the provisions of paragraph 5(b) above, for a period of eighteen
(18) months after said employment termination, Xxxxxxx shall not Compete with
the Bank, unless the Bank otherwise agrees in writing to waive application of
this noncompetition provision or to reduce the period of its duration. For
purposes of this Agreement, the term "Compete" shall mean Xxxxxxx being employed
by, or consulting with, or providing services for, any organization licensed as
a bank by the Commonwealth of Virginia or the United States of America, if in
connection with such employment, consultation or provision of services, the
majority of Xxxxxxx'x working hours are consumed at an office of such bank in
the Counties of Arlington, Virginia, Fairfax, Virginia, Loudoun, Virginia, or
such other county in which the Bank may have a branch or loan production office
where Bank employees are regularly present at such branch or loan production
office as of the date Xxxxxxx'x employment under this Agreement is terminated.
(b)(2) For the duration, up to eighteen (18) months of the
applicability of this noncompetition provision to Xxxxxxx, the Bank shall
continue to pay Xxxxxxx the full amount of base salary, bonus and other benefits
to which he was entitled immediately before such termination, as provided in
this Agreement, in equal monthly payments.
(c)(l) In the event Xxxxxxx'x employment is terminated by Xxxxxxx
pursuant to the provisions of paragraph 5(f) above, for a period of twenty-four
(24) months after such employment termination, Xxxxxxx shall not Compete with
the Bank.
(c)(2) In the event Xxxxxxx shall terminate his employment under this
Agreement pursuant to the provisions of paragraph 5(f) above, the Bank shall pay
Xxxxxxx for a period equal to twenty-four (24) months at the full amount of base
salary, bonus and other benefits which he was receiving immediately prior to
such termination. Such sum shall be paid, at the option of Xxxxxxx, in either
one lump sum within thirty (30) days of said termination, or in periodic equal
monthly payments over the following twenty-four (24) month period, and such
payments shall be in lieu of any other future payments which Xxxxxxx would be
otherwise entitled to receive under paragraphs 3 and 4 (other than 4(c)) of this
Agreement).
(d) In the event Xxxxxxx'x employment is terminated by Xxxxxxx pursuant
to the provisions of paragraph 5(b) above, or by the Bank pursuant to the
provisions of paragraph 5(e) above, Xxxxxxx shall not Compete with the Bank for
a period of twenty-four (24) months after said employment termination. In such
event, no severance shall be payable to Xxxxxxx after the termination of his
employment.
(e) The options granted to Xxxxxxx under the provisions of paragraph
4(c) above and all other obligations of the Bank to Xxxxxxx accrued but
unsatisfied prior to a termination of this Agreement shall remain in full force
and effect until satisfied.
7. CONFIDENTIALITY. Xxxxxxx agrees that, except as may be in his good
faith judgment required to be disclosed to a third party in the discharge of
Xxxxxxx'x duties under this Agreement, he will regard as confidential, and not
intentionally and knowingly disclose to a third party without written authority
from the Bank, information pertaining to the business of the Bank, its
customers, subsidiaries and affiliates that is obtained by him during the course
of his employment with the Bank, which is indeed confidential and proprietary to
the Bank. For purposes of this Section 7, any information which (I) was known by
Xxxxxxx, or became known by him, by way of his own discovery independently of
his employment with the Bank or by way of a communication Xxxxxxx received from
a third party which has no obligation of confidentiality to the bank regarding
such information; (ii) was disclosed by the Bank to a third party free of any
obligation of confidentiality to the Bank, (iii) was, without violating any
obligation of confidentiality it had to the Bank, communicated by a third party
to any other person or entity; or (iv) is or comes into the public domain
through no fault of Xxxxxxx, shall not be considered confidential or proprietary
to the Bank. This Section 7 shall not be construed as restricting Xxxxxxx from
disclosing information which is confidential and proprietary to the Bank to
employees of the
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Bank or others engaged by the Bank who reasonably require access to such
information in order to discharge their duties to the Bank.
8. ELECTION TO BOARD OF DIRECTORS. Xxxxxxx shall stand for and be
endorsed and recommended by the Bank for election to its Board of Directors for
annual terms coinciding as, closely as possible with those specified in this
Agreement.
9. GOOD FAITH AND REASONABLENESS. Any matters which, in connection with
or pursuant to this Agreement, are to be determined by the Board of Directors,
shall be determined in good faith and reasonably in light of the circumstances
of those matters. In the event Xxxxxxx disagrees with the determination by the
Board of Directors on any such matter, he shall bring that disagreement to the
attention of the Board of Directors and, whereupon, the parties shall attempt,
in good faith, to resolve their said differences through a mediator of mutual
selection, or in the event such selection is not made within thirty (30) days of
the said notice from Xxxxxxx, or if the results of the said good faith effort
with a mediator are not satisfactory to either party, the dispute shall be
subject to arbitration under paragraph 14 hereof.
10. ASSIGNMENT; BINDING EFFECT. This Agreement is personal in nature as
to each of the parties hereto. Except by amending this Agreement, neither party
may assign or transfer this Agreement, assign or transfer rights under this
Agreement, or delegate obligations under this Agreement. This Agreement shall be
binding upon the successors and assigns of the Bank and the Corporation. This
Agreement shall be binding upon and shall inure to the benefit of the heirs,
executors, administrators, guardians, and other personal representatives of
Xxxxxxx.
11. ENTIRE AGREEMENT. This instrument contains the entire agreement of
the parties relating to the subject matter hereof and supersedes and cancels all
prior written and oral agreements and understandings between the parties
relating to the subject matter of this Agreement, which are not set forth
herein. No amendment or modification of this Agreement shall be valid unless
made in writing and signed by the parties hereto. No term or condition of this
Agreement shall be deemed to have been waived except by written instrument of
the party charged with such waiver.
12. SEVERABILITY. In the event anyone or more of the provisions of this
Agreement shall for any reason be held invalid, illegal or unenforceable in any
particular circumstance by any tribunal of competent jurisdiction, such
provision shall be valid in other circumstances and for the particular
circumstance the remaining provisions of this Agreement shall be read and
construed as though the said invalid, illegal or unenforceable provision had
never been a part hereof.
13. GOVERNING LAW. This Agreement will be construed in accordance with
the laws of' the Commonwealth of Virginia, excluding the choice of law
provisions thereof.
14. NOTICES. All notices to be sent to either party by the other party
hereto pursuant to this Agreement shall be sent by registered or certified mail
to the following respective addresses:
(a) Bank. If to the Bank, addressed to it at:
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
With a required copy to:
Chairman of the Board
Xxxxx X. Xxxxx, Esquire
00000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
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(b) Xxxxxxx. If to Xxxxxxx. addressed to him at:
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
With a required copy to:
Xxxxx X. Xxxxxxx, Esquire
The Xxxxxxx Law Firm
A Professional Corporation
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
15. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by binding
arbitration in Arlington County, Virginia, in accordance with the commercial
arbitration rules of the American Arbitration Association then in effect.
Judgment may be entered on the arbitrator's award in any court having
jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
______________________________ _____________________________________
Witness Xxxx X. Xxxxxxx
XXXXX XXXXXX BANK
a Virginia Corporation
______________________________ By:__________________________________
Attest Xxxxx X. Xxxxx, Chairman
XXXXX XXXXXX BANCORP .INC.
a Virginia Corporation
____________________________ By:_______________________________
Attest Xxxxx X. Xxxxx, Chairman
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