EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made
and entered into as of this 8
day of January, 2007, by and between Charlie Lemons, 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 121 Executive Parkway, Milledgeville, Georgia;
(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.
