EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of this 8
day of January, 2007, by and between Xxxxxxx Xxxxxx, an individual
resident of the State of North Carolina ("Executive"), and EMPIRE FINANCIAL
SERVICES, INC., a Georgia corporation (the "Employer").
WHEREAS, the parties hereto desire to enter into an agreement for
Employer's employment of Executive in the capacity of Executive Vice
President of the Employer on the terms and conditions contained herein;
WHEREAS, Executive is expected to assume the responsibilities of
President and Chief Executive Officer of Employer within six months; and
WHEREAS, Executive will develop significant knowledge and information
with respect to Employer through Executive's employment by Employer, which
knowledge and information includes trade secrets of Employer;
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, the parties hereto, intending to
be legally bound, hereby agree as follows:
Section 1. Employment.
Subject to the terms hereof, the Employer hereby employs Executive, and
Executive hereby accepts such employment. Executive will serve as Executive
Vice President of the Employer or in such other executive capacity as the
President of the ultimate parent company of Employer, Southwest Georgia
Financial Corporation (the "Company"), may recommend to the Board of
Directors of the Company and the Board may hereafter from time to time
determine. Executive agrees to devote his full business time and best
efforts to the performance of the duties that Company may assign Executive
from time to time; provided that the Executive may serve on boards of
directors or trustees of other companies and organizations, as long as such
service does not materially interfere with the performance of his duties
hereunder. Executive shall be based and shall perform Executive's duties at
the offices of the Employer in Milledgeville, Georgia except for reasonable
travel as the performance of Executive's duties may require.
Section 2. Definitions. For purposes of this Agreement, the following
terms shall have the meanings specified below:
(a) "Cause." Cause for termination of Executive's employment shall
exist (1) if Executive is convicted of, pleads guilty to, or confesses to
any felony or any act of fraud, misappropriation or embezzlement, (2) if
Executive fails to comply with the terms of this Agreement, and, within
ten (10) days after written notice from Employer of such failure,
Executive has not corrected such failure or, having once received such
notice of failure and having so corrected such failure, Executive at any
time thereafter again so fails, or (3) if Executive violates any of the
provisions contained in Section 5 of this Agreement.
(b) "Competitor." A Competitor is any Person, other than the Employer
or its affiliates or subsidiaries, engaged, wholly or partly, in Employer
Activities.
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(c) "Competitive Position." Competitive Position means (1) the direct
or indirect ownership or control of all or any portion of a Competitor;
or (2) any employment or independent contractor arrangement with any
Competitor whereby Executive will serve such Competitor in any managerial
capacity.
(d) "Confidential Information." Confidential Information means any
confidential, proprietary business information or data belonging to or
pertaining to the Employer, the Company or Employer's immediate parent
company, Southwest Georgia Bank (the "Bank"), that does not constitute a
Trade Secret and that is not generally known by or available through
legal means to the public, including, but not limited to, information
regarding the Employer's, the Company's and the Bank's customers or
actively sought prospective customers, suppliers, manufacturers and
distributors gained by Executive as a result of his employment with
the Employer.
(e) "Customer." Customer means actual customers or actively sought
prospective customers of Employer during the Term.
(f) "Effective Time." The Effective Time shall be the date hereof.
(g) "Employer Activities." Employer Activities means the business of
providing mortgage loans to individuals and businesses.
(h) "Good Reason" means the occurrence (without Executive's express
written consent) during the Term of any one of the following acts by the
Employer:
(1) the required relocation of Executive to a location fifty
(50) miles from 000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxxx, Xxxxxxx;
(2) a reduction in Executive's base salary or the failure by the
Employer to continue to provide Executive with benefits
substantially similar to those provided to similarly situated
employees of Employer.
(i) "Noncompete Period" or "Nonsolicitation Period" means the period
beginning the Effective Time and ending on the second anniversary of the
Termination Date.
(j) "Person." A Person is any individual, corporation, bank,
partnership, joint venture, association, joint-stock company, trust,
bank, firm, unincorporated organization or other entity.
(k) "Termination Date." The effective date of Executive's
termination.
(l) "Territory." Territory means any county in Georgia in which
Employer, the Company or the Bank does business as of the date hereof and
any county contiguous thereto.
(m) "Total Disability." Total Disability means the failure by
Executive to fully perform his normal required services hereunder for a
period of three (3) months during any consecutive twelve (12) month period
during the Term hereof, as determined by the Board of Directors, by
reason of mental or physical disability.
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(n) "Trade Secrets." Trade Secrets means information or data of or
about Employer, including but not limited to technical or non-technical
data, compilations, programs, methods, techniques, processes, financial
data, financial plans, products plans, or lists of actual or potential
customers, clients, information concerning the Employer's finances,
services, staff, contemplated acquisitions, marketing investigations and
surveys, that (1) derive economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from their
disclosure or use; and (2) are the subject of efforts that are reasonable
under the circumstances to maintain their secrecy.
Section 3. Term of Employment.
3.1 Unless earlier terminated pursuant to Section 3.2, Executive's
employment under this Agreement shall be for a three (3) year term (the
"Initial Term") commencing on the Effective Time and ending on the third
anniversary thereof. Upon the expiration of the Initial Term, or any
Renewal Term (as defined below), this Agreement shall automatically renew
for an additional term of three (3) years (each a "Renewal Term" and
together with the Initial Term, the "Term").
3.2 Executive's employment under this Agreement shall terminate upon
the occurrence of any of the following events:
(a) Executive reaches the age of sixty-five (65).
(b) The death of Executive.
(c) The Total Disability of Executive.
(d) The termination by Employer of Executive's employment
hereunder, upon written notice to Executive, for Cause, as
determined by the Board of Directors of Employer (the "Board
of Directors").
(e) The termination of Executive's employment by Executive.
(f) The termination of Executive's employment by Employer without
Cause or by Executive for Good Reason upon at least ninety (90)
days prior written notice.
Section 4. Compensation.
4.1 During Term of Employment. Employer will provide Executive with
the following salary, expense reimbursement and additional employee benefits
during the Term hereunder:
(a) Salary. Executive will be paid a salary of no less than One
Hundred Forty Thousand Dollars ($140,000) per annum, less deductions and
withholdings required by applicable law. The salary shall be paid to
Executive in equal monthly installments (or on such more frequent basis as
other employees of Employer are compensated from time to time). The salary
shall be reviewed by the President of the Company on at least an annual
basis who shall then make a recommendation of a change to such salary to
the Board of Directors of the Company for their approval.
(b) Bonus. Executive will be entitled to an annual bonus (the "Bonus")
as determined by the personnel committee of the Company upon the
recommendation of the President of the Company. The Bonus shall be
determined annually and paid quarterly.
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(c) Vacation and Sick Leave. Employee shall receive the same number of
vacation days and paid days of sick leave per calendar year as the Employer
gives other Employer employees from time to time. Any unused sick leave
days in any calendar year may be carried over to subsequent years in
accordance with Employer policy. Any unused vacation days in any calendar
year may not be carried over to subsequent years.
(d) Expenses. Employer shall reimburse Employee for all reasonable and
necessary expenses incurred by Employee on the same basis as other
employees.
(e) Company Car. Employer shall provide Executive with an automobile
during the Term for use in the course of Executive's employment with
Employer.
(f) Benefit Plans. Executive may participate in such medical,
disability, life insurance and other benefit plans (such as the [Southwest
Georgia Financial Corporation Pension Retirement Plan], the Employee Stock
Ownership Plan and Trust of Southwest Georgia Financial Corporation, and
any successor to such plans) as the Company maintains from time to time for
the benefit of employees, on the terms and subject to the conditions set
forth in such plans.
4.2 Effect of Termination.
(a) If Executive's employment hereunder is terminated by Employer
pursuant to Section 3.2(c) hereof but Executive is not determined to be
"disabled" under the Employer's disability insurance, then Employer shall
continue to pay Executive his normal, current salary pursuant to Section
4.1(a) (on the same basis as if Executive continued to serve as an
employee hereunder for such applicable period) and offer paid insurance
continuation rights under the Consolidated Omnibus Reconciliation Act
("COBRA") until the earlier of (1) the first anniversary of the effective
date of such termination or (2) Executive is determined to be "disabled"
under the Employer's disability insurance.
(b) If Executive's employment hereunder is terminated pursuant to
Section 3.2(f) hereof, then, in addition to any other amount payable
hereunder, Employer shall continue to pay Executive his normal, current
salary pursuant to Section 4.1(a) for one (1) year (on the same basis as if
Executive continued to serve as an employee hereunder for such applicable
period) and offer paid insurance continuation rights under COBRA for the
one (1) year following the effective date of such termination.
(c) Except as provided above, upon the termination of the employment of
Executive hereunder for any reason, Executive shall be entitled to all
compensation and benefits earned or accrued under Section 4.1 as of
Termination Date, but from and after the Termination Date no additional
compensation or benefits shall be earned by Executive hereunder.
(d) If Executive's employment is terminated pursuant to Section 3.2(b),
(c) or (f) hereof, all options to purchase stock of the Employer or an
affiliate of the Employer granted to Executive shall immediately become
exercisable upon such termination. In the case of a termination pursuant
to Section 3.2(b) or (c) hereof, the options will expire in accordance with
their respective scheduled expiration dates. In the case of a termination
by Employer pursuant to Section 3.2(f) hereof, the options will expire on
the first anniversary after the effective date of the termination of
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Executive's employment hereunder. Upon the death of Executive, any options
that Executive would otherwise be entitled to exercise hereunder may be
exercised by his personal representatives or heirs, as applicable. If
Executive's employment is terminated by Employer pursuant to Section 3.2(d)
or (e), those options which are exercisable as of the date of such
termination shall be exercisable for a period of ninety (90) days after
such termination (and all other options not then exercisable shall be
forfeited as of such date), and after such ninety (90) day period, all
unexercised options will expire. To the extent necessary, this provision
shall be deemed an amendment of any option agreement between the Executive
and the Employer or an affiliate of the Employer.
(e) Unless Executive's employment hereunder is terminated pursuant to
Section 3.2(b) or 3.2(f), the covenants in Section 5 of this Agreement
shall survive termination of Executive's employment, for the full
Noncompete Period and Nonsolicitation Period as though the engagement
lasted for the full Term described in Section 3.1.
Section 5. Partial Restraints on Competition.
5.1 Trade Name. Executive shall not, directly or by assisting others,
own, manage, operate, join, control or participate in the ownership,
management, operation or control of, or be connected in any manner with, any
business conducted under any corporate or trade name of the Employer, the
Company, the Bank or any of its or their affiliates or name similar thereto,
without the prior written consent of the Employer.
5.2 Confidential Information.
(a) Executive hereby agrees that (1) with regard to each item
constituting all or any portion of the Trade Secrets, at all times during
the Term and all times during which such item continues to constitute a
Trade Secret under applicable law; and (2) with regard to any Confidential
Information, during the Noncompete Period:
(i) Executive shall hold in confidence all Trade Secrets and all
Confidential Information and will not, either directly or indirectly,
use, sell, lend, lease, distribute, license, give, transfer, assign,
show, disclose, disseminate, reproduce, copy, appropriate or
otherwise communicate any Trade Secrets or Confidential Information,
without the prior written consent of the Employer; and
(ii) Executive shall immediately notify the Employer of any
unauthorized disclosure or use of any Trade Secrets or Confidential
Information of which Executive becomes aware. Executive shall assist
the Employer, to the extent necessary, in the procurement or any
protection of the Employer's rights to or in any of the Trade Secrets
or Confidential Information.
5.3 Noncompetition.
(a) The parties hereto acknowledge that Executive is conducting
Employer Activities throughout the Territory. Executive acknowledges that
to adequately protect the interest of the Employer in the business of the
Employer it is essential that any noncompete covenant with respect thereto
cover all Employer Activities and the entire Territory.
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(b) Executive hereby agrees that, during the Noncompete Period,
Executive will not, in the Territory, either directly or indirectly, alone
or in conjunction with any other party, accept, enter into or take any
action in conjunction with or in furtherance of a Competitive Position.
Executive shall notify the Employer promptly in writing if Executive
receives an offer of a Competitive Position during the Noncompete Term, and
such notice shall describe all material terms of such offer.
(c) Nothing contained in this Section 5 shall prohibit Executive from
acquiring not more than two percent (2%) of any company or bank whose
common stock is publicly traded on a national securities exchange or in the
over-the-counter market.
5.4 Nonsolicitation During Nonsolicitation Period. Executive hereby
agrees that Executive will not, during the Nonsolicitation Period, either
directly or indirectly, alone or in conjunction with any other party
solicit, divert or appropriate or attempt to solicit, divert or appropriate,
any (1) employee of the Employer, the Company or the Bank, or (2) Customer
for the purpose of providing the Customer with services or products
competitive with those offered by Employer or Bank during the Term;
provided, however, that the covenant in this clause shall limit Executive's
conduct following termination of employment, only with respect to those
Customers with whom Executive had substantial contact (through direct or
supervisory interaction with the Customer or the Customer's account) during
a period of time up to but no greater than two (2) years prior to the last
day of the Term.
5.5 Nondispargement. Executive hereby agrees that Executive will not,
during the Term and Nonsolicitation Period hereof, either directly or
indirectly, alone or in conjunction with any other party, make statements to
Customers or suppliers of Employer or to other members of the public that
are in any way disparaging or negative towards Employer, the Company or the
Bank or the Employer's, the Company's or the Bank's products, services or
representatives (including their respective Boards of Directors) or
employees.
Section 6. Miscellaneous.
6.1 Contract Non-Assignable. The parties acknowledge that this
Agreement has been entered into due to, among other things, the special skills
and knowledge of Executive, and agree that this Agreement may not be assigned
or transferred by Executive.
6.2 Successors; Binding Agreement.
(a) In addition to any obligations imposed by law upon any successor to
the Employer, the Employer will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Employer or that
acquires a controlling stock interest in the Employer to expressly assume
and agree to perform this Agreement, in the same manner and to the same
extent that the Employer would be required to perform it if no such
succession had taken place. Failure of the Employer to obtain such
assumption and agreement prior to the effective date of such succession
shall be a breach of this Agreement.
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(b) This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representative, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive shall
die while any amount is still payable to Executive hereunder (other than
amounts which, by their terms, terminate upon the death of Executive), all
such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the executors, personal representatives
or administrators of Executive's estate.
6.3 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 when delivered or seven (7) days after mailing if
mailed first class, certified mail, postage prepaid, addressed as follows:
If to the Employer: Southwest Georgia Financial Corporation
Attention: XxXxxx Xxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000
If to Executive: Xxxxxxx Xxxxxx
_______________
_______________
Any party may change the address to which 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.
6.4 Provisions Severable. If any provision or covenant, or any part
thereof, of this Agreement should be held by any court 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, of this Agreement, all of which shall remain in full force and
effect.
6.5 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 right granted in this Agreement or 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.
6.6 Amendments and Modifications. This Agreement may be amended or
modified only by a writing signed by both parties hereto, which makes
specific reference to this Agreement.
6.7 Governing Law. The validity and effect of this Agreement shall be
governed by and be construed and enforced in accordance with the laws of the
State of Georgia.
6.8 Disputes. All claims by Executive for compensation and benefits
under this Agreement shall be in writing and shall be directed to and be
determined by the Board of Directors of the Company. Any denial by the
Board of Directors of the Company of a claim for benefits under this
Agreement shall be provided in writing to Executive within thirty (30) days
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of such decision and shall set forth the specific reasons for the denial and
the specific provisions of this Agreement relied upon. The Board of
Directors shall afford a reasonable opportunity to Executive for a review of
its decision denying a claim and shall further allow Executive to appeal in
writing to the Board of Directors a decision of the Board of Directors
within sixty (60) days after notification by the Board of Directors that
Executive's claim has been denied. To the extent permitted by applicable
law, any further dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration in Atlanta,
Georgia, in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's
award in any court having jurisdiction.
6.9 Entire Agreement. This Agreement is intended by the parties hereto
to be the final expression of their agreement with respect to the subject
matter hereof and is the complete and exclusive statement of the terms
thereof, notwithstanding any representations, statements or agreements to
the contrary. Executive affirms that the only consideration for him signing
this Agreement is that set forth in Section 4, that no other promise or
agreement of any kind has been made to or with him by any person to cause
him to execute this Agreement, and that he fully understands the meaning and
intent of this Agreement, including but not limited to, its final and
binding effect.
6.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EMPIRE FINANCIAL SERVICES, INC
By: /s/J. Xxxxx Xxxx, Xx.
Title: President
EXECUTIVE
/s/Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
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