EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of this ____ day
of __________, 2003, by and between XXXXXX X. XXXXXX, an individual resident of
the State of Georgia ("Executive"), SOUTHWEST GEORGIA FINANCIAL CORPORATION, a
Georgia corporation (the "Employer"), and SOUTHWEST GEORGIA BANK, a Georgia bank
and wholly-owned subsidiary of the Employer (the "Bank"). References herein to
the "Employer" shall refer to both the Employer and the Bank, as the context
requires, and the Employer and the Bank shall have the option to perform the
obligations provided herein, in their sole discretion, through either entity;
provided, however, that for purposes of such obligations and the rights of the
Employer under this Agreement, Employer and Bank shall be treated as one and the
same. Executive may enforce his rights against either the Employer, the Bank, or
both the Employer and the Bank.
WHEREAS, Employer has entered into that certain Agreement and Plan of
Reorganization (the "Acquisition Agreement"), dated December ___, 2003, with
First Bank Holding Company and Xxxxxxxxx Banking Company (together,
"Xxxxxxxxx"), for whom Executive serves as a key executive officer;
WHEREAS, Executive possesses significant knowledge and information with
respect to Xxxxxxxxx, which knowledge and information includes trade secrets of
Xxxxxxxxx, which will be increased, developed and enhanced through Executive's
continued employment by Employer following the acquisition of Xxxxxxxxx; and
WHEREAS, Employer desires to retain Executive following the acquisition
of Xxxxxxxxx by Employer pursuant to the Acquisition Agreement on the terms and
conditions contained herein;
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 Senior Vice
President of the Bank or in such other executive capacity as the Board of
Directors of Employer (the "Board of Directors") 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 Employer 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.
SECTION 2. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the meanings specified below:
(a) "BONUS." Bonus shall have the meaning ascribed to it in Section
4.1.
(b) "CAUSE." Cause for termination of Executive's employment shall
exist (i) if Executive is convicted of, pleads guilty to, or
confesses to any felony or any act of fraud, misappropriation or
embezzlement, (ii) 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 (iii) if Executive violates any of the provisions
contained in Section 5 of this Agreement.
(c) "CHANGE IN CONTROL." A Change in Control of the Employer means any
one of the following events:
(i) The acquisition (other than from the Employer) by
any Person of beneficial ownership of twenty percent
(20%) or more of the combined voting power of the
Employer's or Bank's then outstanding voting
securities; provided, however, that for purposes of
this definition, Person shall not include any Person
who on April 1, 2003 owns ten percent (10%) or more
of the Employer's or the Bank's outstanding
securities, and a Change in Control shall not be
deemed to occur solely because twenty percent (20%)
or more of the combined voting power of the
Employer's or Bank's then outstanding securities is
acquired by (1) a trustee or other fiduciary holding
securities under one or more employee benefit plans
maintained by the Employer or any of its
subsidiaries, or (2) any corporation or bank, which,
immediately prior to such acquisition, is owned
directly or indirectly by the shareholders of the
Employer or Bank, respectively, in the same or
similar proportion as their ownership of stock in
the Employer or Bank immediately prior to such
acquisition.
(ii) Approval by shareholders of the Employer or Bank,
respectively, of (1) a merger or consolidation
involving the Employer or Bank if the shareholders
of the Employer or Bank, immediately before such
merger or consolidation do not, as a result of such
merger or consolidation, own, directly or
indirectly, more than fifty percent (50%) of the
combined voting power of the then outstanding voting
securities of the corporation resulting from such
merger or consolidation in substantially the same
proportion as their ownership of the combined voting
power of the voting securities of the Employer or
Bank outstanding immediately before such merger or
consolidation, or (2) a complete liquidation or
dissolution of the Employer or Bank or an agreement
for the sale or other disposition of all or
substantially all of the assets of the Employer or
Bank.
(iii) A change in the composition of the Board of Directors such
that the individuals who, as of April 1, 2003, constitute
the Board of Directors (such Board of Directors shall be
hereinafter referred to as the "Incumbent Board") cease for
any reason to constitute at
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least a majority of the Board of Directors; provided,
however, for purposes of this definition that any
individual who becomes a member of the Board of Directors
subsequent to April 1, 2003 whose election, or nomination
for election by the Employer's shareholders, was approved
by a vote of at least a majority of those individuals who
are members of the Board of Directors and who were also
members of the Incumbent Board (or deemed to be such
pursuant to this proviso) shall be considered as though
such individual were a member of the Incumbent Board; but,
provided, further, that any such individual whose initial
assumption of office occurs as a result of either an actual
or threatened election contest or other actual or
threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board of Directors, shall
not be so considered as a member of the Incumbent Board.
(d) "CHANGE IN CONTROL DATE." The Change in Control Date is the date
six (6) months prior to the date of the Change in Control.
(e) "CODE." The Code is the Internal Revenue Code of 1986, as it may
be amended from time to time.
(f) "COMPETITOR." A Competitor is any Person, other than the Employer
or its affiliates or subsidiaries, engaged, wholly or partly, in
Employer Activities.
(g) "COMPETITIVE POSITION." Competitive Position means (i) the direct
or indirect ownership or control of more than two percent (2%) of
a Competitor; or (ii) any employment or independent contractor
arrangement with any Competitor whereby Executive will serve such
Competitor in any managerial capacity.
(h) "CONFIDENTIAL INFORMATION." Confidential Information means any
confidential, proprietary business information or data belonging
to or pertaining to the Employer 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 customers or actively sought
prospective customers, suppliers, manufacturers and distributors
gained by Executive as a result of his employment with the
Employer.
(i) "CUSTOMER." Customer means actual customers or actively sought
prospective customers of Employer during the Term.
(j) "EFFECTIVE TIME." The Effective Time shall be ____________, 2003.
(k) "EMPLOYER ACTIVITIES." Employer Activities means the business of
providing banking insurance, trust, investment or securities
services to individuals and businesses.
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(l) "EXCESS SEVERANCE PAYMENT." The term Excess Severance Payment
shall have the same meaning as the term "excess parachute payment"
defined in Section 280G(b)(1) of the Code.
(m) "GOOD REASON." A Good Reason for termination by Executive of
Executive's employment shall mean the occurrence (without the
Executive's express written consent) during the six (6) month
period prior to, or within the eighteen (18) month period
following, the date of a Change in Control of any one of the
following acts by the Employer, or failures by the Employer to
act, unless, in the case of any act or failure to act described in
paragraph (i) below, such act or failure to act is corrected prior
to the Termination Date:
(i) the substantial adverse change in Executive's
responsibilities at the Employer from those in
effect immediately prior to the Change in Control
Date; or
(ii) after the Change in Control Date, a reduction in
Executive's normal, current salary, a reduction in
his incentive compensation resulting from a change
in the incentive plan or the failure by the Employer
to continue to provide Executive with benefits
substantially similar to those enjoyed by Executive
under any of the Employer's pension, deferred
compensation, life insurance, medical, or disability
plans in which Executive was participating at the
Change in Control Date, the taking of any action by
the Employer which would directly or indirectly
reduce any of such benefits or deprive Executive of
any material fringe benefit enjoyed by Executive at
the Change in Control Date.
Executive's right to terminate the Executive's employment for Good
Reason shall not be affected by the Executive's incapacity due to
physical or mental illness, except for a Total Disability. Executive's
continued employment shall not constitute consent to, or a waiver of
rights with respect to, any act or failure to act constituting Good
Reason hereunder.
(n) "NONCOMPETE PERIOD" or "NONSOLICITATION PERIOD" means the period
beginning the Effective Time and ending on the second anniversary
of the Termination Date.
(o) "PERSON." A Person is any individual, corporation, bank,
partnership, joint venture, association, joint-stock company,
trust, bank, firm, unincorporated organization or other entity.
(p) "PRESENT VALUE." The term Present Value shall have the same
meaning as provided in Section 280G(d)(4) of the Code.
(q) "REASONABLE COMPENSATION." The term Reasonable Compensation shall
have the same meaning as provided in Section 280G(b)(4) of the
Code. The parties acknowledge and agree that, in the absence of a
change in existing legal authorities or the issuance of contrary
authorities, amounts received by Executive
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as damages under or as a result of a breach of this Agreement
shall be considered Reasonable Compensation.
(r) "SEVERANCE PAYMENT." The term Severance Payment shall have the
same meaning as the term "parachute payment" defined in Section
280G(b)(2) of the Code.
(s) "TERM." Term shall have the meaning ascribed to it in Section 3.1.
(t) "TERMINATION DATE." The effective date of Executive's termination.
(u) "TERRITORY." Territory means any county in Georgia in which
Employer does business following the acquisition of Xxxxxxxxx and
any county contiguous thereto.
(v) "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.
(w) "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 (i)
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 (ii) 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 five (5) year term (the "Term")
commencing on the Effective Time and ending on the fifth anniversary thereof.
3.2 Executive's employment under this Agreement shall terminate upon
the occurrence of any of the following events:
(a) The death of Executive.
(b) The Total Disability of Executive.
(c) The termination by Employer of Executive's employment
hereunder, upon written notice to Executive, for Cause, as determined by
the Board of Directors.
(d) The termination of Executive's employment by Executive or
by Employer without Cause upon at least ninety (90) days prior written
notice.
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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
______________ Dollars ($ ________) 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 Board of Directors of Employer on at
least an annual basis and may be increased from time to time in the Board
of Directors' discretion.
(b) VACATION AND SICK LEAVE. Employee shall also 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.
(c) EXPENSES. Employer shall reimburse Employee for all
reasonable and necessary expenses incurred by Employee on the same basis
as other employees.
(d) 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 Employer maintains from time to time for
the benefit of other 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(b) 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 (i) the end of the Term
or (ii) Executive is determined to be "disabled" under the Employer's
disability insurance.
(b) If Executive's employment hereunder is terminated by
Employer pursuant to Section 3.2(d) 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) (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 Term. If Executive's employment is terminated pursuant to
Section
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3.2(a) or (b) hereof or if Executive's employment is terminated by
Employer pursuant to Section 3.2(d), 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(a) or (b) 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(d) hereof,
the options will expire on the first anniversary after the effective date
of the termination of 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(c) or by Executive pursuant to Section 3.2(d),
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 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.
(c) If a Change in Control occurs during the Term and
Executive's employment is terminated within six (6) months prior to or
eighteen (18) months following the date of the Change in Control, and if
such termination is by Employer pursuant to Section 3.2(d) hereof or a
termination by Executive for Good Reason, 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) (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 one (1) year following the Termination Date.
(d) 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. Executive shall be deemed to have earned any Bonus payable
with respect to the calendar year in which the Termination Date occurs on
a prorated basis (based on the number of days in such calendar year
through and including the Termination Date divided by 365) based upon the
year to date financials and performance of the Employer and assuming
performance at the target level for any individual performance criteria.
Any such Bonus shall be payable upon termination.
(e) Unless Executive's employment hereunder is terminated by
Employer pursuant to Section 3.2(a) or 3.2(d), the covenants in Section 5
of this Agreement shall survive termination of Employee's employment, for
the full Noncompete Period and Nonsolicitation Period as though the
engagement lasted for the full Term described in Section 3.1.
4.4 LIMITATION ON BENEFITS UPON TERMINATION IN CONNECTION WITH A
CHANGE IN CONTROL.
(a) Notwithstanding anything in this Agreement to the contrary,
any benefits payable or to be provided to Executive by the Employer or
its affiliates, whether pursuant
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to this Agreement or otherwise, which are treated as Severance Payments
shall, but only to the extent necessary, be modified or reduced in the
manner provided in (b) below so that the benefits payable or to be
provided to Executive under this Agreement that are treated as Severance
Payments, as well as any payments or benefits provided outside of this
Agreement that are so treated, shall not cause the Employer to have paid
an Excess Severance Payment. In computing such amount, the parties shall
take into account all provisions of Section 280G of the Code, and the
regulations thereunder, including making appropriate adjustments to such
calculation for amounts established to be Reasonable Compensation.
(b) In the event that the amount of any Severance Payments
which would be payable to or for the benefit of Executive under this
Agreement must be modified or reduced to comply with this Section 4.4,
Executive shall direct which Severance Payments are to be modified or
reduced; provided, however, that no increase in the amount of any payment
or change in the timing of the payment shall be made without the consent
of the Employer.
(c) This Section 4.4 shall be interpreted so as to avoid the
imposition of excise taxes on Executive under Section 4999 of the Code or
the disallowance of a deduction to the Employer pursuant to Section
280G(a) of the Code with respect to amounts payable under this Agreement
or otherwise. Notwithstanding the foregoing, in no event will any of the
provisions of this Section 4.4 create, without the consent of Executive,
an obligation on the part of Executive to refund any amount to the
Employer following payment of such amount.
(d) In addition to the limits otherwise provided in this
Section 4.4, to the extent permitted by law, Executive may in his sole
discretion elect to reduce any payments he may be eligible to receive
under this Agreement to prevent the imposition of excise taxes on
Executive under Section 4999 of the Code.
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 or any of its
affiliates or name similar thereto, without the prior written consent of the
Employer.
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5.2 CONFIDENTIAL INFORMATION.
(a) Executive hereby agrees that (i) 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 (ii) with regard to any
Confidential Information, during the Term and the Noncompete Period:
(1) 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
(2) 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 protect adequately 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.
(b) Executive hereby agrees that, during the Term and 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 Employer
or bank whose common stock is publicly traded on a national securities
exchange or in the over-the-counter market.
5.4 NONSOLICITATION DURING TERM. Executive hereby agrees that
Executive will not, during the Term, either directly or indirectly, alone or in
conjunction with any other party solicit, divert or appropriate or attempt to
solicit, divert or appropriate, any Customer for the purpose of providing the
Customer with services or products competitive with those offered by the
Employer during the Term.
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5.5 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 (i)
employee of the Employer or the Bank, or (ii) 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 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.
5.6 NONDISPARGEMENT. Executive hereby agrees that Executive will not,
during the Term and Nonsolitication 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 Employer's products or
services, or Employee's representatives (including its Board of Directors) or
employees.
SECTION 6. TERMINATION OF EMPLOYMENT AGREEMENT.
In consideration for, and as a material inducement to enter into, this
Agreement, Executive agrees to terminate that certain Employment Agreement,
dated March 10, 1987, by and between Executive and Xxxxxxxxx Banking Company.
Neither Employer or Xxxxxxxxx shall owe Executive any further amounts or have
any obligations to Executive thereunder. Executive shall have no claims or
rights against Employer or Xxxxxxxxx thereunder.
SECTION 7. MISCELLANEOUS.
7.1 NO OBLIGATION TO MITIGATE. Executive shall not be required to
mitigate the amount of any payment provided for under this Agreement by seeking
other employment, nor shall the amount of any payment provided for under this
Agreement be reduced by any compensation earned by Executive as a result of
employment by another company after the Termination Date or otherwise.
7.2 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.
7.3 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 and shall entitle
Executive to compensation and benefits from the Employer under Section 4
in the
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amount and on the same terms as Executive would be entitled to hereunder
if Executive were to terminate Executive's employment for Good Reason.
(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.
7.4 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 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: Xxxxxx X. Xxxxxx
000 X. Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
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.
7.5 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.
7.6 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.
7.7 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.
7.8 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.
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7.9 DISPUTES; LEGAL FEES; INDEMNIFICATION.
(a) 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. Any denial by the Board
of Directors of a claim for benefits under this Agreement shall be
provided in writing to Executive within thirty (30) days 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.
(b) LEGAL FEES. If, in connection with a Change in Control,
Executive terminates his employment for Good Reason or if the Employer
involuntarily terminates Executive without Cause, then, in the event
Executive incurs legal fees and other expenses in seeking to obtain or to
enforce any rights or benefits provided by this Agreement and is
successful, in whole or in part, in obtaining or enforcing any such
rights or benefits through settlement, mediation, arbitration or
otherwise, the Employer shall promptly pay Executive's reasonable legal
fees and expenses and related costs incurred in enforcing this Agreement
including, without limitation, attorneys fees and expenses, experts fees
and expenses, investigative fees, and travel expenses. Except to the
extent provided in the preceding sentence, each party shall pay its own
legal fees and other expenses associated with any dispute under this
Agreement.
(c) INDEMNIFICATION. During the Term of this Agreement and
after Executive's termination, the Employer shall indemnify Executive and
hold Executive harmless from and against any claim, performance as an
officer, director or employee of the Employer or any of its subsidiaries
or other affiliates or in any other capacity, including any fiduciary
capacity, in which Executive serves at the Employer's request, in each
case to the maximum extent permitted by law and under the Employer's
Articles of Incorporation and Bylaws (the "Governing Documents"),
provided that in no event shall the protection afforded to Executive
hereunder be less than that afforded under the Governing Documents as in
effect on the date of this Agreement except from changes mandated by law.
7.10 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.
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7.11 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.
SOUTHWEST GEORGIA FINANCIAL CORPORATION
By:
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Name:
Title:
SOUTHWEST GEORGIA BANK
By:
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Name:
Title:
EMPLOYEE
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Xxxxxx X. Xxxxxx
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