EXHIBIT 10(g)
FIDELITY SOUTHERN CORPORATION
EXECUTIVE CONTINUITY AGREEMENT
This Executive Continuity Agreement (this "Agreement") is made as of
December 31, 2003, between Fidelity Southern Corporation ("Fidelity Southern")
and Bank (together with Fidelity Southern collectively referred to as
"Fidelity") and M. Xxxxxx Xxxxxxxx, Xx. (the "Executive").
The purpose of this Agreement is to encourage the Executive to
continue employment with Fidelity after a Change of Control of Fidelity
Southern or Bank by providing reasonable employment security to the Executive
and to recognize the prior service of the Executive in the event of termination
of employment under defined circumstances after any such Change of Control.
This Agreement supersedes and replaces all prior similar written and oral
agreements between the Executive and Fidelity and is in addition to any
employment agreement entered into between Fidelity and the Executive on or
after the date hereof.
Section 1. Definitions. For purposes of this Agreement:
(a) "Affiliate" means any entity that is, directly or
indirectly through one or more intermediaries,
controlled by Fidelity Southern or the Bank, as the
case may be.
(b) "Annual Base Salary" shall have the meaning set
forth in Section 3.
(c) "Bank" shall mean Fidelity Bank and the successors
of all or substantially all of its business.
(d) "Beneficiary" means the person or entity designated
by the Executive, by a written instrument delivered
to Fidelity Southern, to receive any benefits
payable under this Agreement in the event of the
Executive's death. If the Executive fails to
designate a Beneficiary, or if no beneficiary
survives the Executive, such benefits on the death
of the Executive will be paid to the Executive's
estate.
(e) "Board" means the Board of Directors of Fidelity
Southern.
(f) "Cause" means:
(1) The willful and continued failure by the
Executive to substantially perform the
material duties of the Executive with
Fidelity and/or any Affiliate (other than
any such failure resulting from the
disability of the Executive) for a
continuous period of three
months, after a written demand for such
performance is delivered to the Executive
at the direction of the Board by the Chief
Executive Officer of Fidelity Southern or
by any person designated by the board of
Fidelity Southern or the Bank, which
written demand specifically identifies the
material duties of which Fidelity believes
that the Executive has not substantially
performed; or
(2) The willful engaging by the Executive in
gross misconduct materially and
demonstrably injurious to Fidelity. No act,
or failure to act, on the Executive's part
shall be considered "willful" unless done,
or omitted to be done, by Executive in the
absence of good faith and without a
reasonable belief that the action or
failure to act of the Executive was in the
best interest of Fidelity or any
Affiliates.
(g) "Change of Control" means the occurrence hereafter
of any event described in (1), (2), (3), or (4)
below.
(1) Any "person" (as such term is used in
Sections 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as
amended, the "Act") acquires "beneficial
ownership" (as such term is defined in Rule
13d-3 promulgated under the Act), directly
or indirectly, of equity securities of
Fidelity Southern or the Bank representing
more than fifty percent (50%) of the
combined voting power represented by the
outstanding voting securities of Fidelity
Southern or the Bank, as the case may be
("Voting Power").
(2) Individuals who constitute the membership
of the Board or the board of the Bank on
the date of this Agreement (each being
hereinafter referred to as the "Incumbent
Board") cease at any time hereafter, to
constitute at least a majority of the Board
or the board of the Bank, provided that any
director whose nomination was approved by a
majority of the Incumbent Board will be
considered a member of the Incumbent Board,
excluding any such individual not otherwise
a member of the Incumbent Board whose
initial assumption of office is in
connection with an actual or threatened
election contest relating to the election
of the directors of Fidelity Southern or
the Bank.
(3) The effective date of a reorganization,
merger or consolidation, which includes
Fidelity Southern or the Bank, as the case
may be, in which the holders of the Voting
Power of Fidelity Southern or the Bank
immediately prior to such event, do not,
following such reorganization, merger or
consolidation, beneficially own, directly
2
or indirectly, more than 75% of the Voting
Power of the entity resulting from such
reorganization, merger or consolidation.
(4) The effective date of a complete
liquidation or dissolution of Fidelity
Southern or the Bank, or of the sale or
other disposition of all or substantially
all of the assets of Fidelity Southern or
the Bank, as approved by the shareholders
of Fidelity Southern or the Bank, as the
case may be, or the acquisition by a
person, other than Fidelity Southern, of
beneficial ownership, directly or
indirectly, of equity securities of the
Bank representing more than fifty percent
(50%) of the combined voting power
represented by the Bank's then outstanding
voting securities.
If a Change of Control occurs on account of
a series of transactions, the Change of
Control is deemed to have occurred on the
date of the last of such transactions which
results in the Change in Control.
(h) "Change in Control Period" shall have the meaning
set forth in Section 4(a).
(i) "Code" means the Internal Revenue Code of 1986, as
amended.
(j) "Commencement Date" shall have the meaning set forth
in Section 3(a).
(k) "Compensation" means the total compensation paid to
the Executive by Fidelity Southern, the Bank and/or
by any Affiliate which is or will be reportable as
income under the Code on Internal Revenue Service
Form W-2, (i) plus any amount contributed by the
Executive pursuant to a salary reduction agreement,
which is not includible in gross income under Code
Sections 125 or 402 (a)(8) or under any other
program that provides for pre-tax salary reductions
or compensation deferrals; (ii) plus any amount of
the Executive's compensation which is deferred under
any plan or program of Fidelity; and (iii) reduced
by any income reportable on Form W-2 that is
attributable to the exercise of any stock option.
(l) "Disability" means a complete inability of the
Executive substantially to perform the employment
duties of the Executive for Fidelity Southern or
Bank or any Affiliate for a period of at least one
hundred and eighty (180) consecutive days.
(m) "Employment Period" shall have the meaning set forth
in Section 3(a).
(n) "Final Compensation" means the highest of (i) the
Executive's Compensation for the 12 full calendar
months immediately preceding the
3
Change of Control; or (ii) the Executive's annual
base salary rate payable by Fidelity Southern, the
Bank and any Affiliate, in effect immediately
preceding the Change of Control; or (iii) the
Executive's aggregate annual base salary as set by
Fidelity Southern, the Bank and any Affiliate,
effective at any time during the Employment Period.
(o) "Good Reason" will exist with respect to the
Executive if, without the Executive's express
written consent, any of the following events occurs
after a Change of Control which is not corrected
within thirty (30) days after receipt of written
notice from Executive to Fidelity Southern:
(1) there is a material change in the
Executive's position or responsibilities
(including reporting responsibilities)
which, in the Executive's reasonable
judgment, represents an adverse change from
the Executive's status, title, position or
responsibilities immediately prior to the
Change of Control;
(2) the assignment to the Executive of any
duties or responsibilities which are
inconsistent with the position or
responsibilities of the Executive
immediately prior to the Change in Control;
(3) any removal of the Executive from or
failure to reappoint or reelect the
Executive to any of the positions the
Executive held immediately prior to the
Change in Control;
(4) there is a reduction in the Executive's
rate of annual base salary or a change in
the manner the incentive compensation of
the Executive is calculated and such change
will result in a reduction of the incentive
compensation of Executive;
(5) the requiring of the Executive to relocate
the principal business office of the
Executive to any place outside a fifteen
(15) mile radius from the Executive's
current place of employment in Atlanta,
Georgia, (reasonable required travel on
Fidelity's business which is materially
greater than such travel requirements prior
to the Change of Control shall constitute a
relocation of Executive's principal
business office);
(6) the failure of Fidelity to continue in
effect any Compensation or Welfare Plan in
which the Executive is participating
immediately prior to the Change of Control
without substituting plans providing the
Executive with substantially similar or
greater benefits, or the taking of any
action by Fidelity which would materially
and adversely affect the Executive's
participation in or materially reduce the
Executive's benefits under any of such
plans or deprive
4
the Executive of any material fringe
benefit enjoyed by the Executive
immediately prior to the Change of Control;
or
(7) the material breach of any provision of
this Agreement which is not timely
corrected by Fidelity upon thirty (30) days
prior written notice from Executive.
(p) "Salary Continuance Benefit" means the benefit
provided in Section 4(b).
(q) "Severance Benefit" means a Salary Continuance
Benefit and/or a Welfare Continuance Benefit.
(r) "Severance Period" means the period beginning on the
date the Executive's employment with Fidelity
terminates, other than for Cause or Disability or
death, and ending on the date one (1) year
thereafter.
(s) "Voting Power" shall have the meaning set forth in
Section 1(g)(1).
(t) "Welfare Continuance Benefit" means the benefit
provided in Section 4(c).
(u) "Welfare Plan" means any medical, prescription,
dental, disability, salary continuation, employee
life, accidental death, travel accident insurance or
any other welfare benefit plan, as defined in
Section 3(l) of ERISA made available by Fidelity
Southern, the Bank or any Affiliate in which the
Executive is eligible to participate.
Section 2. Employment After Change of Control
If the Executive is employed by Fidelity Southern, the Bank or an
Affiliate on the Commencement Date, such employer will continue to
employ the Executive for the Employment Period.
Section 3. Compensation During Employment Period
(a) During the period commencing six (6) months prior to
a Change in Control ("Commencement Date") and ending
upon the earlier of (i) one year after a Change in
Control or (ii) upon termination of employment of
Executive for any reason by Executive or by Fidelity
Southern or the Bank or any Affiliate ("Employment
Period"), the Executive will receive an annual base
salary ("Annual Base Salary') at least equal to the
greater of (i) the annual base salary payable to the
Executive by Fidelity Southern, the Bank and/or
Affiliates in respect of the twelve full calendar
month period immediately preceding the Commencement
Date or (ii) the annual base salary rate of the
Executive payable immediately prior to the Change in
Control. During the Employment Period, the Annual
Base Salary will be
5
increased at any time and from time to time so as to
be substantially consistent with increases in base
salaries generally awarded in the ordinary course of
business to other peer executives of Fidelity
Southern, the Bank and Affiliates. Any increase in
Annual Base Salary will not serve to limit or reduce
any other obligation of Fidelity to the Executive
under this Agreement. The Annual Base Salary in
effect on the Commencement Date will not be reduced
thereafter nor shall any increase during the
Employment Period be reduced thereafter.
(b) During the Employment Period, the Executive will be
entitled to participate in all incentive plans
(including, without limitation, stock option, stock
purchase, savings, supplemental medical and
retirement plans) and other programs and practices
applicable generally to other peer executives of
Fidelity Southern, the Bank or any Affiliate, but in
no event will such plans and other programs and
practices, including policies, provide the Executive
with incentive opportunities, savings opportunities
and retirement and other benefit opportunities, in
each case, less favorable, in the aggregate than
those provided by Fidelity Southern, the Bank or any
Affiliate for the Executive under such plans,
practices, policies and program as in effect at any
time on and after the Commencement Date and prior to
the Change of Control.
(c) In addition, the method of the calculation of the
Executive's total incentive compensation for each
fiscal year, or part thereof, during the Employment
Period will not be changed in any manner which will
result in less total incentive compensation being
paid or payable to Executive by Fidelity Southern,
the Bank and Affiliates in respect of the Employment
Period (or any portion thereof) from the maximum
amount that would have been paid using the method of
calculating incentive compensation under the
incentive compensation programs in effect
immediately prior to the Change in Control. The
parties agree that Executive shall be entitled to
incentive compensation for services rendered during
part of a fiscal year regardless of the reason for
the termination of employment of Executive.
(d) During the Employment Period, the Executive and the
eligible Members of the Executive's family
("Dependents") who participated (or otherwise
provided coverage) on the Commencement Date and
continue to be eligible for participation in any
Welfare Plan, will receive all such benefits under
the Welfare Plans to the extent applicable generally
to other peer executives of Fidelity Southern, the
Bank and Affiliates similarly situated, but in no
event will the Welfare Plans provide benefits for
the Executive and Beneficiaries that are less
favorable, in the aggregate, than the most favorable
benefits provided under the Welfare Plans in effect
at any time during the Employment Period.
6
(e) During the Employment Period, the Executive will be
entitled to fringe benefits in accordance with the
most favorable plans, practices, programs and
policies of Fidelity Southern, the Bank and any
Affiliate in effect for which the Executive
qualifies or qualified at any time during the
Employment Period including, if more favorable to
the Executive, as in effect at any time on or after
the Change of Control Date with respect to other
peer executives of Fidelity Southern, the Bank or
any Affiliate.
Section 4. Benefits Upon Termination of Employment.
(a) The Executive will be entitled to the Salary
Continuance Benefit and the Welfare Continuance
Benefit as hereafter set forth if (i) the employment
of the Executive with Fidelity Southern, the Bank or
any Affiliate is terminated by Fidelity Southern the
Bank or any Affiliate, other than for Cause,
Disability or death, during the period commencing
upon the Commencement Date and ending one year after
a Change in Control ("Change in Control Period"); or
(ii) the Executive terminates the employment with
Fidelity Southern, the Bank or any Affiliate for
Good Reason during the Change in Control Period. Any
termination by the Executive will be communicated by
Notice of Termination to Fidelity Southern given in
accordance with Section 20(b). For purposes of this
Agreement, a "Notice of Termination" means a written
notice which (i) indicates the specific termination
provision in this Section relied upon; (ii), to the
extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a
basis for termination of the Executive's employment
under the provision so indicated; and (iii), if
applicable, indicates the date of termination, which
shall not be less than 30 days and more than 60 days
after the giving of such notice.
(b) The Salary Continuance Benefit will be payments, in
the aggregate, equal to 100% of the Final
Compensation of the Executive. The Salary
Continuance Benefit will be paid by Fidelity
Southern or the Bank to the Executive in twenty-four
(24) equal semi-monthly installments without
interest, commencing on the 15th or last day of the
month immediately following the date of termination
of employment, which ever date occurs first, and on
the 15th and last day of each calendar month
thereafter. The Salary Continuance Benefit will be
made net of all required Federal and State
withholding taxes and other similar required
withholdings and authorized deductions. The Salary
Continuance Benefit shall be payable to the estate
of the Executive upon the death of the Executive.
(c) During the Severance Period, the Executive and,
subject to the eligibility requirements of the
Welfare Plan, Dependents will continue to be covered
by all Welfare Plans in which the Executive or
Dependents were participating immediately prior to
the date of the termination of employment of
Executive, subject to the other eligibility
requirements of such Welfare Plans on the date of
termination of
7
employment (the "Welfare Continuance Benefit"). Any
changes to any Welfare Plan during the Severance
Period will be applicable to the Executive and
Dependents as if the Executive continued to be an
employee of Fidelity Southern, the Bank or any
Affiliate. Fidelity Southern or the Bank will pay or
they shall cause an Affiliate to pay, all or a
portion of the cost of the Welfare Continuance
Benefit for the Executive and Dependents under the
Welfare Plans on the same basis as applicable, from
time to time, to active executives covered under the
Welfare Plans and the Executive will pay any
additional costs comparable to those costs paid by
active executives. If such participation in any one
or more of the Welfare Plans included in the Welfare
Continuance Benefit is not possible under the terms
of the Welfare Plan or any provision of law would
create any adverse tax effect for the Executive or
Fidelity Southern, the Bank or any Affiliate due to
such participation, Fidelity Southern or the Bank
will provide or will cause an Affiliate to provide
substantially identical benefits directly or through
another insurance arrangement or pay the Executive's
costs for such Welfare Plan if continued by
Executive, including as permitted under ERISA. The
Welfare Continuance Benefit as to any Welfare Plan
will cease if and when the Executive has obtained
coverage under one or more welfare benefit plans of
a subsequent employer that provide for equal or
greater benefits to the Executive and Dependents
with respect to the specific types of benefits
provided under the applicable Welfare Plan.
(d) Fidelity Southern shall engage the independent
accounting firm regularly utilized by Fidelity
Southern ("Accounting Firm") to provide to Fidelity
Southern and Executive, at Fidelity Southern's
expense, a determination of whether any compensation
payable to Executive pursuant to this Agreement
during the Severance Period constitutes a "parachute
payment" ("Parachute Payment") as defined in Section
280G of the Internal Revenue Code of 1986, as
amended (the "Code"). If the Accounting Firm
determines that any such compensation payable to
Executive constitutes a Parachute Payment, the
Accounting Firm shall also determine: (A) the amount
of the excise tax to be imposed under Section 4999
of the Code; (B) whether Executive would realize a
greater amount after Federal and Georgia income
taxes (assuming the highest marginal rates then in
effect apply) if such compensation payable to
Executive were reduced (assuming latest payments are
reduced first) so that no amount payable to
Executive hereunder constitutes a Parachute Payment
than Executive would realize after Federal and
Georgia income taxes (assuming the highest marginal
rates then in effect apply) and after imposition of
the excise tax under Section 4999 of the Code if the
amounts payable to Executive hereunder were not so
reduced; and (C), if the Accounting Firm determines
in (B) above that Executive would realize a higher
amount if the compensation
-----------
Executive
-----------
Fidelity Southern
-----------
Fidelity Bank
8
payable to Executive were so reduced, the amount of
the reduced benefit. All determinations shall be
made on a present value basis. The Accounting Firm
shall provide to Fidelity Southern and to Executive
a written report of its determinations hereunder as
soon as practicable. No later than fifteen (15) days
following receipt by Executive of the report from
the Accounting Firm, Executive will notify Fidelity
Southern in writing of any disagreement with said
report, and, in such case, Fidelity Southern shall
direct the Accounting Firm to promptly discuss its
determinations with an accountant or other counselor
designated by Executive in Executive's written
notice and seek to reach an agreement regarding same
no later than fifteen (15) days after receipt of the
Executive's notice, with Fidelity Southern and
Executive, each bearing the cost of their own
accountants, counsel and other advisers. If no
agreement can be reached, the matter shall be
promptly submitted to binding arbitration under the
rules of the American Arbitration Association before
a single arbitrator in Atlanta, Georgia. The
determinations so made shall be binding on the
parties. If it is determined hereunder that
Executive would realize a greater amount after
Federal and Georgia income taxes (assuming the
highest marginal rates then in effect apply) if the
compensation payable to Executive pursuant to this
Agreement were reduced (assuming latest payments are
reduced first) so that no amount payable to
Executive hereunder constitutes a Parachute Payment,
then the amounts payable to Executive pursuant to
this Agreement shall be so reduced.
Section 5. Outplacement Services.
If the Executive is entitled to a Severance Benefit under Section 4,
the Executive also will be entitled in addition to receive complete
outplacement services, including job search, interview skill services,
job retaining and education and resume preparation, paid by Fidelity
Southern up to a total cost of $20,000. The services will be provided
by a nationally or regionally recognized outplacement organization
selected by the Executive with the approval of Fidelity Southern
(which approval will not be unreasonable withheld). The services will
be provided for up to two (2) years after the Executive's termination
of employment or until Executive obtains full-time employment,
whichever occurs first.
Section 6. Death.
If the Executive dies while receiving a Welfare Continuation Benefit,
the Executive's Dependents will continue to be covered under all
applicable Welfare Plans during the remainder of the Severance Period.
9
Section 7. No Setoff.
(a) Payment of a Severance Benefit will be in addition
to any other amounts otherwise then currently
payable to the Executive, including any accrued but
unpaid vacation pay or deferred compensation. No
payments or benefits payable to or with respect to
the Executive pursuant to this Agreement will be
reduced by any amount the Executive may earn or
receive from employment with another employer or
from any other source. In no event will the
Executive be obligated to seek other employment or
take any other action by way of mitigation of the
amounts payable to the Executive under any of the
provisions of this Agreement and, except as provided
in the last sentence of Section 4(c) with respect to
the Welfare Continuation Benefit, such amounts will
not be reduced whether or not the Executive obtains
other employment.
(b) Nothing in this Agreement will limit or otherwise
affect such rights as the Executive may have under
any other contract or agreement with Fidelity
Southern, the Bank or Affiliates. Amounts which
constitute vested benefits or which the Executive is
otherwise entitled to receive under any plan,
policy, practice or program of or any contract or
agreement (collectively, "programs") with Fidelity
Southern, the Bank or Affiliates at or subsequent to
the Executive's termination of employment will be
payable in accordance with such program.
(c) No amounts payable pursuant to this Agreement shall
be subject to setoff or reduction except for
required withholdings and authorized deductions.
Section 8. No Interest in Benefit.
No interest of the Executive or any Beneficiary, or any right to
receive any payment or distribution hereunder, will be subject in any
manner to sale, transfer, assignment, pledge, attachment, garnishment,
or other alienation or encumbrance of any kind, nor may such interest
or right to receive a payment or distribution be taken, voluntarily or
involuntarily, for the satisfaction of the obligation or debts of, or
other claims against, the Executive or Beneficiary, including claims
for alimony, support, separate maintenance, and claims in bankruptcy
proceedings.
Section 9. Benefits Unfunded.
All rights under this Agreement of the Executive and Beneficiaries
will at all times be entirely unfunded, and no provision will at any
time be made with respect to segregating any assets of Fidelity or any
Affiliate for payment of any amounts due hereunder. The Executive and
Beneficiaries will have only the rights of general unsecured creditors
of Fidelity.
10
Section 10. Non-Solicitations of Customers.
Executive agrees that during the Employment Period of the Executive
and the period of twelve (12) months immediately following termination
of the Employment Period of Executive for any reason with Fidelity
Southern, the Bank or any Affiliate by Executive or by Fidelity or any
Affiliate, Executive, shall not, directly or indirectly, on the
Executive's own behalf or on behalf of any other person, including any
other business entity, solicit, contact, call upon, communicate with
or attempt to communicate (collectively "Solicitation") with any
customer or prospective customer of Fidelity or of any Affiliate or
any representative of any customer or prospective customer of Fidelity
or any Affiliate with a view to the Solicitation of the following
banking services: deposit, checking and lending (including mortgage
lending); provided that the restrictions set forth in this Section 10
shall apply only to customers or prospects of Fidelity and of any
Affiliate or representatives thereof with which Executive had contact
while in the employ of Fidelity or any Affiliate during the two year
period immediately preceding the Solicitation.
Section 11. Non-Solicitations of Employees.
Executive agrees that during the employment of Executive and the
period of twelve (12) months immediately following termination of the
employment of Executive with Fidelity or any Affiliate by Executive or
by Fidelity or any Affiliate for any reason, Executive shall not,
directly or indirectly, on the Executive's own behalf or on behalf of
any other person, including any other business entity, solicit, hire
or in any manner encourage employees of Fidelity or any Affiliate
thereof, to leave the employ of Fidelity or any Affiliate for an
engagement in any capacity by another person or to provide the name of
any such employee to any one who, to the knowledge of Executive, may
hire or be interested in hiring such employee.
Section 12. Confidentiality.
(a) During the term of Executive's employment with
Fidelity and any Affiliate, and at all times
thereafter, Executive shall not use or disclose to
others, without the prior written consent of
Fidelity Southern, the Bank or any Affiliate, any
Trade Secrets (as hereinafter defined) or
Confidential Information (as hereinafter defined) of
Fidelity Southern, the Bank or the Affiliate or any
of their customers, except for use or disclosure
thereof in the course of business of Fidelity
Southern, the Bank or any Affiliate, and such
disclosure shall be limited to those who have a need
to know.
(b) Upon termination of employment with Fidelity or any
Affiliate for any reason, Executive shall not take
any documents or data of Fidelity or any Affiliate
or of any customer or any reproduction thereof, in
whole or in part and agrees to return all such
documents and data in the possession of the
Executive at such time.
11
(c) Executive agrees to take reasonable precautions to
safeguard and maintain the confidentiality and
secrecy and limit the use of all Trade Secrets and
Confidential Information of Fidelity or any
Affiliate and of their customers.
(d) Trade Secrets shall include only such information
constituting a "Trade Secret" within the meaning of
subsection 10-1-761(4) of the Georgia Trade Secrets
Act of 1990, including as hereafter amended.
Confidential Information shall mean all information
and data which is protectable as a legal form of
property or non-public information of Fidelity
Southern, the Bank, or Affiliates or their
customers, excluding any information or data which
constitutes a Trade Secret.
(e) The parties agree that the limitations herein on
disclosure and use of Confidential Information of
Fidelity Southern, the Bank or any Affiliate and
their customers shall be for a period commencing on
the date of employment and ending three years after
termination of employment for any reason, by
Fidelity Southern, the Bank or any Affiliate or by
Executive.
(f) Trade Secrets and Confidential Information shall not
include any information (A) after it becomes
publicly known through no fault or act of Executive;
(B) after it is lawfully received by Executive from
a third party after termination of employment
without a similar restriction regarding
confidentiality and use and without a breach of this
Agreement; or (C) which is independently developed
by Executive before the commencement of or after
termination of Executive's employment with Fidelity
Southern, the Bank and Affiliates.
Section 13. Specific Performance.
Because of Executive's knowledge and experience, Executive agrees that
Fidelity Southern, the Bank and Affiliates shall be entitled to
specific performance, an injunction, temporary injunction or other
similar equitable relief in addition to all other rights and remedies
it might have for any violation of the undertakings set forth in
Sections 10, 11 and 12 of this Agreement. In any such court proceeding
or arbitration, Executive will not object thereto and claim that
monetary damages are an adequate remedy.
Section 14. Indemnification of Executive.
Fidelity Southern, the Bank or Affiliates shall indemnify Executive
and shall advance reasonable reimbursable expenses incurred by
Executive in any proceeding against Executive, including a proceeding
brought by or in the right of Fidelity Southern, the Bank or any
Affiliate, as a director or officer of Fidelity Southern, the Bank or
any
12
Affiliate thereof, except claims and proceedings brought by Fidelity
Southern, the Bank or any Affiliate against Executive, to the fullest
extent permitted under the Georgia Business Corporation Code, and the
Articles of Incorporation and By-Laws of Fidelity Southern, the Bank
or any applicable Affiliate, as such Code, Articles or By-Laws may be
amended from time to time hereafter.
Section 15. Applicable Law.
This Agreement will be construed and interpreted in accordance with
the laws of the State of Georgia without reference to its conflict of
laws rules.
Section 16. No Employment Contract.
Nothing contained in this Agreement shall be construed to be an
employment contract between the Executive and Fidelity.
Section 17. Severability.
In the event any provision of this Agreement is held illegal or
invalid, the remaining provisions of this Agreement will not be
affected thereby.
Section 18. Successors.
(a) The Agreement will be binding upon and inure to the
benefit of the Fidelity Southern,the Bank,
Affiliates, the Executive and their respective
heirs, representatives and successors.
(b) Fidelity Southern and Bank will require any
successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of
Fidelity Southern, the Bank or Affiliates, as the
case may be, to assume expressly and agree to
perform this Agreement in the same manner and to the
same extent that Fidelity Southern and Bank would be
required to perform it if no such succession had
taken place. As used in this Agreement, "Fidelity
Southern" will mean Fidelity Southern as herein
defined and any successor to its business and/or
assets which assumes this Agreement by operation of
law or otherwise.
Section 19. Litigation Expenses.
(a) Fidelity Southern and the Bank agree to pay or
reimburse Executive promptly as incurred, to the
full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as
a result of any contest (regardless of the outcome
thereof unless a court of competent jurisdiction
determines that the Executive acted in bad faith in
initiating
-----------
Executive
-----------
Fidelity Southern
-----------
Fidelity Bank
13
the contest) by Fidelity Southern, the Bank, any
Affiliate, the Executive or others, regarding the
validity or enforceability of, or liability under,
any provision of this Agreement (including as a
result of any contest by the Executive about the
amount of any payment pursuant to this Agreement),
plus in each case interest on any delayed payment at
the applicable Federal rate provided for in the
Internal Revenue Code Section 7872 (f)(2)(A);
provided however, that the reasonableness of the
fees and expenses must be determined by an
independent arbitrator, using standard legal
principles, mutually agreed upon by Fidelity
Southern or the Bank, as the case may be, and the
Executive in accordance with rules set forth by the
American Arbitration Association.
(b) If there is any dispute between Fidelity Southern,
the Bank or any Affiliate and the Executive, in the
event of any termination of the Executive's
employment by Fidelity Southern, the Bank or
Affiliate or by the Executive, then, unless and
until there is a final, nonappealable judgment by a
court of competent jurisdiction declaring that the
Executive is not entitled to benefits under this
Agreement, Fidelity will pay or cause to be paid all
amounts, and provide all benefits, to the Executive
and/or the Executive's family or other
Beneficiaries, as the case may be, that Fidelity or
any Affiliate would be required to pay or provide
pursuant to this Agreement. Fidelity Southern, the
Bank and Affiliates will not be required to pay any
disputed amounts pursuant to this subsection except
upon receipt of an undertaking (which may be
unsecured at the election of Executive) by or on
behalf of the Executive to repay all such amounts to
which the Executive is ultimately adjudge by such
court not to be entitled.
Section 20. Miscellaneous.
(a) Amendments/Waivers. No provision of this Agreement
may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in
writing and the writing is signed by the Executive
and Fidelity Southern and the Bank. A waiver of any
breach of or compliance with any provision or
condition of this Agreement is not a waiver of
similar or dissimilar provisions or conditions. This
Agreement may be executed in one or more
counterparts, all of which will be considered one
and the same agreement.
(b) Notices. All notices, requests, demands and other
communications required or permitted hereunder shall
be in writing and shall be deemed to have been given
upon receipt when delivered by hand or upon delivery
to the address of the party determined pursuant to
this Section 20 when delivered by express mail,
overnight courier or other similar method to such
address or by facsimile transmission (provided a
copy is also sent by registered or certified mail or
by overnight courier), or five (5) business
14
days after deposit of the notice in the US mail, if
mailed by certified or registered mail, with postage
prepaid addressed to the respective party as set
forth below, which address may be changed by written
notice to the other parties:
If to Fidelity Southern or Bank:
Fidelity Southern Corporation
0000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
If to Executive:
M. Xxxxxx Xxxxxxxx, Xx.
(c) Confidentiality. The Executive agrees that Executive
will not discuss the Executive's employment and
resignation or termination (including the terms of
this Agreement) with any representatives of the
media, either directly or indirectly, without the
prior written consent and approval of Fidelity
Southern and the Bank.
Section 21. Entire Agreement.
No agreement or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by a
party which is not expressly set forth in this Agreement. This
Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof.
[Signatures on following page.]
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
FIDELITY SOUTHERN CORPORATION
By: /s/ Xxxxx X. Xxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Chairman of the Board
FIDELITY BANK
By: /s/ Xxxxx X. Xxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Chairman of the Board
EXECUTIVE
/s/ M. Xxxxxx Xxxxxxxx, Xx.
-------------------------------------------
Name: M. Xxxxxx Xxxxxxxx, Xx.
16
