EXHIBIT 10.16
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of this ___ day of
______, ____, by and between _________, 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, Executive is presently employed by Employer in the capacity of
__________ of the Employer and the Bank;
WHEREAS, Executive possesses considerable experience and significant
knowledge and information with respect to Employer, which knowledge and
information includes trade secrets of Employer, which will be increased,
developed and enhanced through Executive's continued employment by Employer;
and
WHEREAS, the parties hereto desire to enter into an agreement for Employer's
continued employment of Executive 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
___________ of the Employer and the Bank or in such other executive capacity
as the President of Employer may recommend to the Board of Directors 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 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. Employee's primary place of
employment shall initially be in Moultrie, Georgia.
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
(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
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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.
(b) "Competitor." A Competitor is any Person, other than the Employer or
its affiliates or subsidiaries, engaged, wholly or partly, in Employer
Activities.
(c) "Competitive Position." Competitive Position means (i) the direct or
indirect ownership or control of all or any portion of a Competitor; or (ii)
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 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.
(e) "Customer." Customer means actual customers or actively sought
prospective customers of Employer during the Term.
(f) "Effective Time." The Effective Time shall as of the date hereof.
(g) "Employer Activities." Employer Activities means the business of
providing banking insurance, trust, investment or securities services 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 50 miles from 000
0xx Xxxxxx, Xxxxxxxx, 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.
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(k) "Term." Term shall have the meaning ascribed to it in Section 3.1.
(l) "Termination Date." The effective date of Executive's termination.
(m) "Territory." Territory means any county in Georgia in which Employer
does business as of the date hereof and any county contiguous thereto.
(n) "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.
(o) "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 of Employer (the "Board of Directors").
(d) The termination of Executive's employment by Executive.
(e) 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:
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(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
President of Employer on at least an annual basis who shall then make a
recommendation of a change to such salary to the Board of Directors for
their approval.
(b) Bonus. Executive will be entitled to an annual bonus (the "Bonus") as
determined by the President of Employer based upon the financial success of
the Employer and Executive's contribution to such success. The Bonus shall
be paid promptly upon the availability of annual financial results (which is
expected to occur in January of each year).
(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) 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 pursuant to Section
3.2(e) 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.
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(c) If Executive's employment is terminated pursuant to Section 3.2(a), (b)
or (e) 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(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(e) 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 (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.
(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.
(e) Unless Executive's employment hereunder is terminated pursuant to
Section 3.2(a) or 3.2(e), 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.
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.
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
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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.
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 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
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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. Miscellaneous.
6.1 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.
6.2 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.
6.3 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 a lump sum payment on such
effective date of the amount of one (1) year of Executive's 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.
(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.
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6.4 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: _______________
_______________
_______________
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.
6.5 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.
6.6 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.
6.7 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.
6.8 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.
6.9 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
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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 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.
6.10 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.
6.11 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SOUTHWEST GEORGIA FINANCIAL CORPORATION
By: /s/ XxXxxx Xxxx
Name: XxXxxx Xxxx
Title: President & CEO
SOUTHWEST GEORGIA BANK
By: /s/ XxXxxx Xxxx
Name: XxXxxx Xxxx
Title: President & CEO
EMPLOYEE
_________________________
