Common use of Litigation Expenses Clause in Contracts

Litigation Expenses. (a) Fidelity Southern and the Bank agree to pay or reimburse the 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 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. Such payments and reimbursements shall be paid to the Executive or on the Executive’s behalf on or by the next normal payroll payment date after the Executive’s rights to such amounts are no longer in dispute; provided, however, that if the Executive is a Specified Employee such payments shall not be made before the date that is six months after the date of the Executive’s Termination of Employment. (b) If there is any dispute between Fidelity Southern, the Bank or any Affiliate and the Executive, in the event of any Termination of 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) 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.

Litigation Expenses. (a) Fidelity Southern and the Bank agree to pay or reimburse the 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 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. Such payments and reimbursements shall be paid to the Executive or on the Executive’s 's behalf on or by the next normal payroll payment date after the Executive’s 's rights to such amounts are no longer in dispute; provided, however, that if the Executive is a Specified Employee such payments shall not be made before the date that is six months after the date of the Executive’s 's Termination of Employment. (b) If there is any dispute between Fidelity Southern, the Bank or any Affiliate and the Executive, in the event of any Termination of 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 '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) 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.

Litigation Expenses. (a) Fidelity Southern and the Bank agree agrees to pay or reimburse the 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 the contest) by Fidelity Southern, the BankFidelity, 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 BankFidelity, as the case may be, and the Executive in accordance with rules set forth by the American Arbitration Association. Such payments and reimbursements shall be paid to the Executive or on the Executive’s behalf on or by the next normal payroll payment date after the Executive’s rights to such amounts are no longer in dispute; provided, however, that if the Executive is a Specified Employee such payments shall not be made before the date that is six months after the date of the Executive’s Termination of Employment. (b) If there is any dispute between Fidelity Southern, the Bank or any Affiliate and the Executive, in the event of any Termination of 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) 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.

Litigation Expenses. (a) Fidelity Southern and the Bank agree Ameris agrees to pay or reimburse the Executive promptly as incurred, to the full fullest 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 or the Arbitrator determines that the Executive acted in bad faith in initiating the contest) by Fidelity Southern, the BankAmeris, 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 Section 7872(f)(2)(A) of the Internal Revenue Code Section 7872 (f)(2)(A)Code; provided provided, however, that the reasonableness of the fees and expenses must be determined by an independent arbitratorthe Arbitrator, using standard legal principles, mutually agreed upon by Fidelity Southern or the Bank, as the case may be, Ameris and the Executive in accordance with rules set forth by the American Arbitration AssociationAAA. Such payments and reimbursements shall be paid to the Executive or on the Executive’s behalf on or by the next normal payroll payment date after the Executive’s rights to such amounts are no longer in dispute; provided, howeverfurther, that if the Executive is a Specified Employee Employee, then, to the extent necessary to avoid taxation under Section 409A of the Code, such payments shall not be made before the date that is six (6) months after the date of the Executive’s Termination of Employment. (b) If there is any dispute between Fidelity Southern, the Bank or any Affiliate Ameris and the Executive, in the event of any Termination of Employment by Fidelity Southern, the Bank or Affiliate Ameris or by the Executive, then, unless and until there is a final, nonappealable judgment by a court of competent jurisdiction the Arbitrator declaring that the Executive is not entitled to benefits under this Agreement, Fidelity will Ameris shall pay or cause to be paid all amounts, and provide all benefits, to the Executive and/or the or Executive’s family or other Beneficiaries, as Beneficiaries in the case may beevent of Executive’s death, that Fidelity or any Affiliate Ameris would be required to pay or provide pursuant to this Agreement. Fidelity Southern, the Bank and Affiliates will Ameris shall not be required to pay any disputed amounts pursuant to this subsection Section 16(b) except upon receipt of an undertaking (which may be unsecured) by or on behalf of the Executive to repay all such amounts to which the Executive is ultimately adjudge adjudged by such court not to be entitled.

Litigation Expenses. (a) Fidelity Southern and the Bank agree to pay or reimburse the 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 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 ____________ Executive _________________ Fidelity Southern ____________ Bank case may be, and the Executive in accordance with rules set forth by the American Arbitration Association. Such payments and reimbursements shall be paid to the Executive or on the Executive’s behalf on or by the next normal payroll payment date after the Executive’s rights to such amounts are no longer in dispute; provided, however, that if the Executive is a Specified Employee such payments shall not be made before the date that is six months after the date of the Executive’s Termination of Employment. (b) If there is any dispute between Fidelity Southern, the Bank or any Affiliate and the Executive, in the event of any Termination termination of Employment 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 '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) 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.

Litigation Expenses. (a) Fidelity Southern and the Bank agree to pay or reimburse the 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 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); _____________ Executive ___________________ Fidelity Southern _____________ Bank 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. Such payments and reimbursements shall be paid to the Executive or on the Executive’s behalf on or by the next normal payroll payment date after the Executive’s rights to such amounts are no longer in dispute; provided, however, that if the Executive is a Specified Employee such payments shall not be made before the date that is six months after the date of the Executive’s Termination of Employment. (b) If there is any dispute between Fidelity Southern, the Bank or any Affiliate and the Executive, in the event of any Termination termination of Employment 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 '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) 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.

Litigation Expenses. (a) Fidelity Southern and the Bank agree to pay or reimburse the 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 the contest) by Fidelity Southern, the Bank, any Affiliate, the Executive or others 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. Such payments and reimbursements shall be paid to the Executive or on the Executive’s behalf on or by the next normal payroll payment date after the Executive’s rights to such amounts are no longer in dispute; provided, however, that if the Executive is a Specified Employee such payments shall not be made before the date that is six months after the date of the Executive’s Termination of Employment. (b) If there is any dispute between Fidelity Southern, the Bank or any Affiliate and the Executive, in the event of any Termination termination of Employment 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 '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 unsecuredunsecured 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.

Litigation Expenses. (a) Fidelity Southern and the Bank agree agrees to pay or reimburse the Executive Xxxxxxx promptly as incurred, to the full extent permitted by law, all legal fees and expenses which the Executive Xxxxxxx may reasonably incur as a result of any contest (regardless of the outcome thereof unless a court of competent jurisdiction determines that the Executive Xxxxxxx acted in bad faith in initiating the contest) by Fidelity Southern, the BankFidelity, any Affiliate, the Executive Xxxxxxx 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 Xxxxxxx 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)) of the Code; 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 Xxxxxxx in accordance with rules set forth by the American Arbitration Association. Such payments and reimbursements shall be paid to the Executive Xxxxxxx or on the Executive’s Xxxxxxx’x behalf on or by the next normal payroll payment date after the Executive’s Xxxxxxx’x rights to such amounts are no longer in dispute; provided, however, that if the Executive Xxxxxxx is a Specified Employee such payments shall not be made before the date that is six months after the date of the Executive’s Xxxxxxx’x Termination of Employment. (b) If there is any dispute between Fidelity Southern, the Bank or any Affiliate and the ExecutiveXxxxxxx, in the event of any Termination of Employment by Fidelity Southern, the Bank or Affiliate or by the ExecutiveXxxxxxx, then, unless and until there is a final, nonappealable judgment by a court of competent jurisdiction declaring that the Executive Xxxxxxx is not entitled to benefits under this Agreement, Fidelity will pay or cause to be paid all amounts, and provide all benefits, to Xxxxxxx or Xxxxxxx’x Beneficiaries in the Executive and/or the Executive’s family or other Beneficiaries, as the case may beevent of Xxxxxxx’x death, 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) by or on behalf of the Executive Xxxxxxx to repay all such amounts to which the Executive Xxxxxxx is ultimately adjudge by such court not to be entitled.

Litigation Expenses. (a) Fidelity Southern and the Bank agree to pay or reimburse the 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 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 _________ Executive _________________ Fidelity Southern _________ Bank case may be, and the Executive in accordance with rules set forth by the American Arbitration Association. Such payments and reimbursements shall be paid to the Executive or on the Executive’s behalf on or by the next normal payroll payment date after the Executive’s rights to such amounts are no longer in dispute; provided, however, that if the Executive is a Specified Employee such payments shall not be made before the date that is six months after the date of the Executive’s Termination of Employment. (b) If there is any dispute between Fidelity Southern, the Bank or any Affiliate and the Executive, in the event of any Termination termination of Employment 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 '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) 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.

Litigation Expenses. (a) Fidelity Southern and the Bank agree agrees to pay or reimburse the Executive Xxxxxxx promptly as incurred, to the full extent permitted by law, all legal fees and expenses which the Executive Xxxxxxx may reasonably incur as a result of any contest (regardless of the outcome thereof unless a court of competent jurisdiction determines that the Executive Xxxxxxx acted in bad faith in initiating the contest) by Fidelity Southern, the BankFidelity, any Affiliate, the Executive Xxxxxxx 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 Xxxxxxx 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)) of the Code; 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 Xxxxxxx in accordance with rules set forth by the American Arbitration Association. Such payments and reimbursements shall be paid to the Executive Xxxxxxx or on the Executive’s Xxxxxxx'x behalf on or by the next normal payroll payment date after the Executive’s Xxxxxxx'x rights to such amounts are no longer in dispute; provided, however, that if the Executive Xxxxxxx is a Specified Employee such payments shall not be made before the date that is six months after the date of the Executive’s Xxxxxxx'x Termination of Employment. (b) If there is any dispute between Fidelity Southern, the Bank or any Affiliate and the ExecutiveXxxxxxx, in the event of any Termination of Employment by Fidelity Southern, the Bank or Affiliate or by the ExecutiveXxxxxxx, then, unless and until there is a final, nonappealable judgment by a court of competent jurisdiction declaring that the Executive Xxxxxxx is not entitled to benefits under this Agreement, Fidelity will pay or cause to be paid all amounts, and provide all benefits, to Xxxxxxx or Xxxxxxx'x Beneficiaries in the Executive and/or the Executive’s family or other Beneficiaries, as the case may beevent of Xxxxxxx'x death, 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) by or on behalf of the Executive Xxxxxxx to repay all such amounts to which the Executive Xxxxxxx is ultimately adjudge by such court not to be entitled.

Litigation Expenses. (a) Fidelity Southern and the Bank agree agrees to pay or reimburse the Executive Xxxxxx promptly as incurred, to the full extent permitted by law, all legal fees and expenses which the Executive Xxxxxx may reasonably incur as a result of any contest (regardless of the outcome thereof unless a court of competent jurisdiction determines that the Executive Xxxxxx acted in bad faith in initiating the contest) by Fidelity Southern, the BankFidelity, any Affiliate, the Executive Xxxxxx 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 Xxxxxx 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)) of the Code; 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 Xxxxxx in accordance with rules set forth by the American Arbitration Association. Such payments and reimbursements shall be paid to the Executive Xxxxxx or on the Executive’s Xxxxxx’x behalf on or by the next normal payroll payment date after the Executive’s Xxxxxx’x rights to such amounts are no longer in dispute; provided, however, that if the Executive Xxxxxx is a Specified Employee such payments shall not be made before the date that is six months after the date of the Executive’s Xxxxxx’x Termination of Employment. (b) If there is any dispute between Fidelity Southern, the Bank or any Affiliate and the ExecutiveXxxxxx, in the event of any Termination of Employment by Fidelity Southern, the Bank or Affiliate or by the ExecutiveXxxxxx, then, unless and until there is a final, nonappealable judgment by a court of competent jurisdiction declaring that the Executive Xxxxxx is not entitled to benefits under this Agreement, Fidelity will pay or cause to be paid all amounts, and provide all benefits, to Xxxxxx or Xxxxxx’x Beneficiaries in the Executive and/or the Executive’s family or other Beneficiaries, as the case may beevent of Xxxxxx’x death, 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) by or on behalf of the Executive Xxxxxx to repay all such amounts to which the Executive Xxxxxx is ultimately adjudge by such court not to be entitled.

Litigation Expenses. (a) Fidelity Southern and the Bank agree agrees to pay or reimburse the Executive Xxxxxx promptly as incurred, to the full extent permitted by law, all legal fees and expenses which the Executive Xxxxxx may reasonably incur as a result of any contest (regardless of the outcome thereof unless a court of competent jurisdiction determines that the Executive Xxxxxx acted in bad faith in initiating the contest) by Fidelity Southern, the BankFidelity, any Affiliate, the Executive Xxxxxx 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 Xxxxxx 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)) of the Code; 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 Xxxxxx in accordance with rules set forth by the American Arbitration Association. Such payments and reimbursements shall be paid to the Executive Xxxxxx or on the Executive’s Xxxxxx'x behalf on or by the next normal payroll payment date after the Executive’s Xxxxxx'x rights to such amounts are no longer in dispute; provided, however, that if the Executive Xxxxxx is a Specified Employee such payments shall not be made before the date that is six months after the date of the Executive’s Xxxxxx'x Termination of Employment. (b) If there is any dispute between Fidelity Southern, the Bank or any Affiliate and the ExecutiveXxxxxx, in the event of any Termination of Employment by Fidelity Southern, the Bank or Affiliate or by the ExecutiveXxxxxx, then, unless and until there is a final, nonappealable judgment by a court of competent jurisdiction declaring that the Executive Xxxxxx is not entitled to benefits under this Agreement, Fidelity will pay or cause to be paid all amounts, and provide all benefits, to Xxxxxx or Xxxxxx'x Beneficiaries in the Executive and/or the Executive’s family or other Beneficiaries, as the case may beevent of Xxxxxx'x death, 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) by or on behalf of the Executive Xxxxxx to repay all such amounts to which the Executive Xxxxxx is ultimately adjudge by such court not to be entitled.