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EXHIBIT 10(d)
FIDELITY NATIONAL CORPORATION
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of
the 18th day of September, 1997, between FIDELITY NATIONAL CORPORATION
("Fidelity"), a Georgia Corporation, and Xxxxx X. Xxxxxx, Xx. ("Xxxxxx").
WHEREAS, Fidelity agrees to continue to employ Xxxxxx as an
executive to provide the services set forth herein; and
WHEREAS, Xxxxxx agrees to accept such engagement and to continue
to provide such services in accordance with the terms and conditions of this
Agreement;
NOW, THEREFORE, in consideration of the mutual promises herein
made and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
EMPLOYMENT/DUTIES.
(a) Fidelity shall employ Xxxxxx as the Chairman
of the Board of Directors, President and Chief Executive Officer of Fidelity
during the term of his employment as set forth in this Agreement and Xxxxxx
hereby accepts such employment.
(b) Xxxxxx shall be the senior executive officer
of Fidelity and shall be responsible for the day-to-day operations of the
business of Fidelity and shall have such authority consistent with such
positions and necessary for the conduct of such business under the general
direction of the Board of Directors of Fidelity ("Board").
(c) Xxxxxx agrees that he will at all times and
to the best of his ability and experience faithfully perform all of the duties
that may be required of him pursuant to the terms of this Agreement. Xxxxxx
shall devote his full business time to the performance of his obligations
hereunder.
(d) The term of employment of Xxxxxx shall be for
an initial term of three (3) years and may be extended upon written agreement
of the parties.
(e) Employment hereunder shall commence on
January 1, 1998.
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COMPENSATION.
(a) Salary. During the term of the employment of
Xxxxxx hereunder, Fidelity will pay to Xxxxxx a base salary ("Base Salary") at
the rate of $300,000 per year, payable in arrears in equal semi-monthly
payments. In the event of a disability, to the extent payments are received
under any employer sponsored disability program and/or under a policy the
premiums of which are paid by Fidelity, the payments hereunder are to be
reduced by an amount equal to such disability payments.
(b) Incentive Compensation. Fidelity shall pay to
Xxxxxx the incentive compensation as set forth in Attachment A attached hereto.
Xxxxxx shall be eligible to participate in incentive plans and programs
hereafter adopted as determined by the Board or committee thereof.
(c) Stock Options. The Compensation Committee of
Fidelity has granted to Xxxxxx a stock option to purchase 150,000 shares of
Common Stock, no par value, of Fidelity at its fair market value, as set forth
in Exhibit A attached hereto.
(d) Employee Benefit Program. Xxxxxx shall be
eligible to participate in all employee benefit programs, including medical and
hospitalization programs, now or hereafter made available by Fidelity to its
employees or executives thereof, subject to terms and conditions of such
programs, including eligibility. It is understood that Fidelity reserves the
right to modify and rescind any program or adopt new programs in its sole
discretion. Fidelity may, in its sole discretion, maintain key man life
insurance on the life of Xxxxxx and designate Fidelity as the beneficiary.
Xxxxxx agrees to execute any documents necessary to effect such policy.
(e) Additional Benefits. The Split Dollar
Insurance Plan ("Split Dollar Plan") dated October 3, 1984 shall continue in
effect and shall not be affected by any modification or termination of this
Agreement.
(f) Vacation. Xxxxxx is entitled to four (4)
weeks vacation each year. Vacation shall be taken at such times as not to
materially interfere with the business of Fidelity. The vacation time must be
taken prior to the end of each calendar year or as otherwise mutually agreed in
writing, otherwise it expires to the extent not used.
(g) Expenses. Fidelity shall pay all reasonable
expenses incurred by Xxxxxx in the performance of his responsibilities and
duties for Fidelity, including without limitation, dues payable to a country
club of Xxxxxx'x choice and to such reasonable civic organizations of Xxxxxx'x
choice. Xxxxxx shall submit to Fidelity periodic statements of all expenses so
incurred in accordance with the policies of Fidelity then in effect. Subject to
such reviews as Fidelity may deem reasonably necessary, Fidelity shall,
promptly in the ordinary course of business, reimburse Xxxxxx for the full
amount of any such expenses advanced by Xxxxxx.
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(h) Automobile. Fidelity will continue to provide
Xxxxxx with an appropriate automobile for his use and will maintain and insure
it at Fidelity's expense.
EARLY TERMINATION.
(a) For Cause. (1) Notwithstanding the foregoing,
the Board may terminate the employment of Xxxxxx "for cause" (as hereinafter
defined) at any time with 10 business days' prior written notice. The term "for
cause" shall mean (i) the commission of a felony or any other crime involving
moral turpitude or the pleading of nolo contendere to any such act, (ii) the
commission of any act or acts of dishonesty when such acts are intended to
result or result , directly or indirectly, in gain or personal enrichment of
Xxxxxx or any related person or affiliated company or are intended to cause
harm or damage to Fidelity or its subsidiaries, (iii) the illegal use of
controlled substances, (iv) the use of alcohol so as to have a material adverse
effect on the performance of Xxxxxx'x duties, (v), the misappropriation or
embezzlement of assets of Fidelity or its subsidiaries, or (vi) the breach of
any other material term or provision of this Agreement to be performed by
Xxxxxx which have not been cured within thirty (30) days of receipt of written
notice of such breach from the Board.
(2) Upon termination for cause, Fidelity shall
have no further obligation to pay any compensation to Xxxxxx for periods after
the effective date of the termination for cause. Base Salary which accrued to
the termination date shall be paid on the normal payment date.
(b) Other Termination by Fidelity. Fidelity may
terminate the employment of Xxxxxx for any reason (other than for cause) at any
time upon at least 90 days' prior written notice. Upon such termination,
Xxxxxx'x right to compensation after the effective date of termination shall
cease, except that the Base Salary and 1/24 of the Average Incentive
Compensation (as defined in Attachment A) shall continue to be paid
semi-monthly for thirty-six (36) months from the date of termination.
(c) Termination by Xxxxxx. Xxxxxx may terminate
his employment at any time upon at least 90 days' prior written notice to
Fidelity. Upon such termination of employment Xxxxxx'x right to compensation
after the effective date of termination shall cease. The Base Salary and
Average Incentive Compensation (determined for a period less than a full year
as set forth in Attachment A) which accrued as of the termination date will be
paid after the effective date of termination under this paragraph 3(c) on the
normal payment date. Notwithstanding the foregoing, if Fidelity fails to
perform any of its material obligations hereunder and such failure continues
for sixty (60) days after written notice thereof by Xxxxxx to the Board,
termination by Xxxxxx of this Agreement for such failure shall be deemed to
constitute a termination by Fidelity without cause under paragraph 3(b) of this
Agreement. A reduction in the responsibilities and authority of Xxxxxx as
provided in paragraph 1(b) shall constitute a breach of a material obligation
of Fidelity hereunder.
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(d) Termination Upon Death or Disability.
(1) The employment of Xxxxxx shall terminate
upon his death, or (10) business days after written notice by Fidelity of
termination, upon or during the continuance of the total disability (as
hereinafter defined) of Xxxxxx.
(2) Upon termination upon death or upon or
during total disability, Xxxxxx'x right to compensation after the effective
date of termination shall cease. Salary which accrued as of the termination
date and incentive compensation which accrued during the last full calendar
month of employment will be paid after the effective date of termination under
this paragraph 3(d) on the normal payment date(s). Fidelity shall have no
obligation to pay any compensation for periods after the effective date of such
termination.
(3) The term "total disability" means the inability of Xxxxxx to
substantially perform Xxxxxx his duties hereunder for a continuous period of
ninety (90) days unless extended in writing by Fidelity. Total disability shall
be deemed to commence upon the expiration of such continuous ninety (90) day
period. In the event of any dispute as to the "total disability" of Xxxxxx, the
matter shall be resolved by the decision of a single physician, serving as an
arbitrator, mutually selected or appointed in accordance with the rules of the
American Arbitration Association, Atlanta, Georgia. The decision of the
arbitrator shall be binding on all parties hereto. Xxxxxx agrees to submit
medical records requested and to submit to such examination and testing
reasonable requested by such physician.
COVENANT NOT TO COMPETE.
(a) Xxxxxx agrees that for the period commencing
on the date hereof and ending one (1) year after the expiration of the term of
his employment under this Agreement (and if employment is continued thereafter
"at will", then after termination of his employment with Fidelity or any
subsidiary for any reason), Xxxxxx will not, alone or with others, directly or
indirectly, own, manage, operate, join, control, participate in the ownership
of, management, operation, or control of, be employed by, consult with, advise
or be connected in any other manner with any Business (as hereinafter defined)
in the counties of Xxxxxx, DeKalb, Xxxx, Gwinnett and Clayton, Georgia
("Territory") other than with Fidelity and its subsidiaries. This covenant not
to be compete shall not prohibit engagements which do not involve, directly or
indirectly, the Business.
(b) The term "Business" means the business of
banking, including deposits, checking, lending (including mortgage lending) and
trust services, including such services provided by national and state banks
and savings and loan associations and other similar businesses, stock brokerage
and sale of insurance.
(c) Xxxxxx acknowledges that the products and
services provided by the Business are being and are intended to be marketed
throughout the Territory.
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5. NON-SOLICITATIONS OF CUSTOMERS. Xxxxxx agrees that during his
employment and the period of twelve months immediately following termination of
his employment for any reason with Fidelity by Xxxxxx or by Fidelity, Xxxxxx
shall not, directly or indirectly, on his own behalf or on behalf of any other
person, including any other business entity, solicit, contact, call upon,
communicate with or attempt to communicate with any customer or prospective
customer of Fidelity or of any subsidiary or any representative of any customer
or prospective customer of Fidelity or any subsidiary with a view to the
solicitation of the following banking services: deposit, checking, lending and
trust services; provided that the restrictions set forth in this paragraph 5
shall apply only to customers or prospects of Fidelity and of its subsidiaries
or representatives thereof with which Xxxxxx had contact while in the employ of
Fidelity or any subsidiary during the two year period preceding the termination
of employment.
6. NON-SOLICITATIONS OF EMPLOYEES. Xxxxxx agrees that during his
employment and the period of twelve months immediately following termination of
his employment with Fidelity by Xxxxxx or by Fidelity for any reason, Xxxxxx
shall not, directly or indirectly, on his 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 subsidiary thereof, to leave the employ
of Fidelity or any subsidiary 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 Xxxxxx, may hire or be interested in hiring such employee.
7. CONFIDENTIALITY.
(a) During the term of Xxxxxx'x employment with
Fidelity, and at all times thereafter, Xxxxxx shall not use or disclose to
others, without the prior written consent of Fidelity, any Trade Secrets (as
hereinafter defined) or Confidential Information (as hereinafter defined) of
Fidelity or any subsidiary or its customers, except for use or disclosure
thereof in the course of Fidelity's business, and such disclosure shall be
limited to those who have a need to know.
(b) Upon termination of employment with Fidelity
for any reason, Xxxxxx shall not take with him any documents or data of
Fidelity or any subsidiary or of any customer or any reproduction thereof.
(c) Xxxxxx 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 subsidiary
and of its 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. Confidential Information
shall mean all information and data which is protectable as a
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legal form of property or non-public information of Fidelity or its 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 the Company and 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 or by Xxxxxx.
(f) Trade Secrets and Confidential Information
shall not include any information (i) which becomes publicly known through no
fault or act of Xxxxxx; (ii) is lawfully received by Xxxxxx from a third party
after termination of employment without a similar restriction regarding
confidentiality and use and without a breach of this Agreement; or (iii) which
is independently developed by Xxxxxx before the commencement of or after
termination of Xxxxxx'x employment.
8. SPECIFIC PERFORMANCE. Because of Xxxxxx'x knowledge and
experience, Xxxxxx agrees that Fidelity shall be entitled to specific
performance, an injunction, temporary injunction or other similar relief in
addition to all other rights and remedies it might have for any violation of
the undertakings set forth in paragraphs 4, 5, 6 and 7 of this Agreement. In
any such court proceeding, Xxxxxx will not object thereto and claim that
monetary damages are an adequate remedy.
9. INDEMNIFICATION OF XXXXXX. Fidelity shall indemnify Xxxxxx
and shall advance reimbursable expenses incurred by Xxxxxx in any proceeding
against Xxxxxx, including a proceeding brought by or in the right of Fidelity,
as a director or officer of Fidelity or any subsidiary thereof, except claims
and proceedings brought by Fidelity against Xxxxxx, to the fullest extent
permitted under the Georgia Business Corporation Code, as amended from time to
time.
10. 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 paragraph 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) 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 party:
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If to Fidelity
Fidelity National Corporation
0000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Board of Directors
If to Xxxxxx:
Xxxxx X. Xxxxxx, Xx.
c/o Fidelity National Corporation
0000 Xxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
11. BINDING EFFECT. This Agreement shall inure to the benefit of
and be binding upon and enforceable by Xxxxxx and his estate, personal
representatives and heirs, and by Fidelity and its successors and assigns. This
Agreement and the payments hereunder may not be assigned, pledged or otherwise
hypothecated by Xxxxxx.
12. ENTIRE AGREEMENT. This Agreement, including the Attachment
hereto, and the Split Dollar Plan are intended by the parties hereto to
constitute the entire understanding of the parties with respect to the
employment of Xxxxxx as an employee and officer of Fidelity and supersedes all
prior agreements and understandings, oral or written.
13. BINDING ARBITRATION/ATTORNEY FEES. Except as otherwise
specifically provided Xxxxxx herein, including as provided in paragraph 8
hereof, all disputes arising under this Agreement shall be submitted to and
settled by arbitration. Arbitration shall be by one (1) arbitrator selected in
accordance with the rules of the American Arbitration Association, Atlanta,
Georgia ("AAA") by the AAA. The hearings before the arbitrator shall be held in
Atlanta, Georgia and shall be conducted in accordance with the rules existing
on the date thereof of the AAA to the extent not inconsistent with this
Agreement. All reasonable costs and expense incurred in connection with any
such arbitration proceedings and those incurred in any civil action to enforce
the same shall be borne by the party against which the decision is rendered.
14. AMENDMENTS. This Agreement may not be amended or modified
except in writing signed by both parties.
15. WAIVERS. The failure of either party to insist upon the
strict performance of any provision hereof shall not constitute a wavier of
such provision. All waivers must be in writing.
16. GOVERNING LAW. This Agreement shall be deemed to be made in
and in all respects shall be interpreted, construed and governed by and in
accordance with the laws of the State of Georgia.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
FIDELITY NATIONAL CORPORATION
By: /s/ R. Xxxxxxx Xxxxxxx, III
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Name: R. Xxxxxxx Xxxxxxx, III
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Title: Director
-----------------------
XXXXXX
/s/ Xxxxx X. Xxxxxx, Xx.
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Xxxxx X. Xxxxxx, Xx.
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ATTACHMENT A
INCENTIVE COMPENSATION
For each calendar year during the term of the Agreement the
Compensation Committee ("Committee") of the Board of Directors of Fidelity will
establish in its sole discretion (after discussion with Xxxxxx) a target
consolidated income before the Incentive Compensation provided herein and
before taxes of Fidelity, excluding extraordinary items (determined in
accordance with generally accepted accounting principles) ("Target Income") for
such calendar year prior to the commencement of the calendar year. Xxxxxx will
be paid incentive compensation ("Incentive Compensation") in cash depending
upon the percentage of the Target Income achieved for such calendar year.
In the event the percentage of the Target Income achieved is at
least 70% and is less than 100%, the Incentive Income shall be the sum of (i)
$150,000 and (ii) the product of (A) the percentage of the Target Income
achieved in excess of 70%, times (B) $500,000. In the event the percentage of
the Target Income achieved exceeds 100% and is not more than 120%, the
Incentive Income shall be the sum of (i) $300,000 and (ii) the product of (A)
the percentage of the Target Income achieved in excess of 100%, times (B)
$500,000. If the percentage of the Target Income achieved is 100%, the
Incentive Compensation is $300,000. No Incentive Compensation will be paid if
the percentage of Target Income achieved is less than 70%. No additional
Incentive Compensation will be paid if the percentage of the Target Income
achieved is greater than 120%. The maximum Incentive Income shall be $400,000.
The Compensation Committee may modify the Target Income for any
calendar year to reflect changes resulting from changes in accounting
principles or practices of Fidelity and changes in the business plan.
In the event of any dispute as to the actual consolidated income
before taxes and extraordinary items, it shall be such amount as set forth in
Fidelity's certified financial statements less the amount of this Incentive
Compensation for such calendar year.
The right of Xxxxxx to receive the Incentive Compensation
hereunder related to a calendar year shall vest on the last day of such
calendar year. In the event Xxxxxx is entitled pursuant to the Agreement to
Incentive Compensation for a period of less than a full year, the Incentive
Compensation for such year shall vest on the last day of his employment and the
amount shall be determined as set forth hereinabove for the calendar year
prorated based upon the percentage of the year Xxxxxx was employed under the
Agreement.
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Payment is to be made in cash promptly after the amount is
determined but in no event more than 90 days after the end of the calendar
year. The Committee, in its sole discretion, during a calendar year may make a
non-refundable prepayment of a portion of the Incentive Compensation to Xxxxxx
if it believes that the partial payment will exceed the amount of the Incentive
Compensation for that calendar year.
Average Incentive Compensation still mean the Incentive
Compensation for each full calendar year that has vested divided by the number
of said calendar years. In the event Incentive Compensation for a calendar year
has not vested, Average Incentive Compensation shall mean $300,000.
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Optionee: Xxxxx X. Xxxxxx, Xx.
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Option Shares: 109,600
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(number of shares of
Common Stock)
Purchase Price
per share: $9.00
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Date of Grant: September 18, 1997
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First Vesting
Date: September 18, 1998
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Expiration Date: September 18, 2004
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FIDELITY NATIONAL CORPORATION
STOCK OPTION AGREEMENT
("Option Agreement")
SECTION I
GRANT
Fidelity National Corporation ("Corporation") hereby grants to
the optionee set forth above ("Optionee") a non-qualified stock option
("Option") to purchase the number of shares of common stock, no par value, of
the Corporation set forth above (collectively "Option Shares") on the terms and
conditions herein set forth and the provisions of the Fidelity National
Corporation 1997 Stock Option Plan, as amended from time to time, ("Plan"). The
purchase price of each such share shall be the Purchase Price set forth above.
The Option shall expire on the Expiration Date set forth above, unless sooner
terminated as provided in Section III or Section X of this Option Agreement or
Paragraph V of the Plan. Each term used herein shall have the same meaning as
provided in the Plan unless herein otherwise provided.
The Option is granted pursuant to the Plan.
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SECTION II
EXERCISE OF THE OPTION
The Option granted hereunder may be exercised at any time and
from time to time during the period commencing from the date the Option was
granted until the date the Option expires provided and to the extent that this
Option has vested and is exercisable as provided hereinafter and in the Plan.
To the extent Option Shares do not vest prior to the termination of the Option
for any reason, such Option Shares may not be acquired hereunder.
SECTION III
EARLY TERMINATION OF OPTION
The provisions of Sections I and II notwithstanding, this Option
may not be exercised in whole or in part upon the earliest to occur (i) upon
termination of employment by the Corporation (or any Subsidiary or Parent) for
cause (as defined in the Employment Agreement dated September 18, 1997), (ii)
more than three (3) months with respect to incentive stock options and twelve
(12) months with respect to non-qualified stock options following the date of
the termination of employment of the Optionee by the Corporation (or any
Subsidiary or Parent) for any reason, or by Optionee for any reason, other than
termination for cause, termination upon or during Total Disability (as defined
in the Employment Agreement) or termination upon the death of the Optionee
while an employee of the Corporation (or any Subsidiary or Parent), and (iii)
more than twelve (12) months following the date of termination of employment of
the Optionee, in the event the termination of employment is due to death or
Optionee's death occurs during said three month period set forth in
subparagraph (ii) or to the Total Disability of the Optionee.
SECTION IV
VESTING OF OPTION
(a) The Option hereby granted shall vest only during the
Optionee's continuous employment with the Corporation and/or any Parent and/or
Subsidiary, and shall be exercisable only upon and after such vesting and prior
to the termination of the Option, by Optionee in accordance with and in such
number of shares of Common Stock determined as set forth in the following
schedule:
(i) 20% of the Option shares commencing on the first
anniversary of the grant of the Option;
(ii) additional 20% of the Option Shares commencing on the
second anniversary of the grant of the Option;
(iii) additional 20% of the Option Shares commencing on the
third anniversary of the grant of the Option;
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(iv) additional 20% of the Option Shares commencing on the
fourth anniversary of the grant of the Option; and
(v) additional 20% of the Option Shares commencing on the
fifth anniversary of the grant of the Option.
(b) Notwithstanding the foregoing provisions of this Section IV,
in the event of a Change in Control (as hereinafter defined) during the
Optionee's employment with the Corporation and/or any Parent and/or any
Subsidiary, the Option hereby granted shall vest in full immediately prior to
such Change in Control with respect to all remaining outstanding Option Shares
that have not theretofore vested.
The term "Change in Control" shall mean:
(i) The acquisition (other than from the
Corporation, its Parent or its Subsidiaries) by any person,
entity or "group" within the meaning of Sections 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934 ("34 Act")
(excluding, for this purpose, the Corporation, its Parent or its
Subsidiaries, or any employee benefit plan of the Corporation,
its Parent or its Subsidiaries) of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the 34 Act) of more
than 50% of either the then outstanding shares (i) of Common
Stock of the Corporation or of the combined voting power of the
Corporation's then outstanding voting securities entitled to
vote generally in the election of directors, or (ii) of the
combined voting power of the outstanding voting securities of
Fidelity National Bank ("FNB") entitled to vote generally for
the election of directors; or
(ii) Individuals who, as of the date hereof,
constitute the board of directors of the Corporation ("Incumbent
Board") cease for any reason to constitute at least a majority
of the board of directors, provided that any individual becoming
a director subsequent to the date hereof whose election, or
nomination for election by the Corporation's shareholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though
such individual is a member of the Incumbent Board; or
(iii) Approval by the shareholders of the
Corporation of a merger, consolidation or other reorganization
in each case, with respect to which persons who were the
shareholders of the Corporation and optionees immediately prior
to such merger, consolidation or other reorganization,
immediately thereafter, will not own more than 50% of the
combined voting power entitled to vote generally in the election
of directors of the merged, consolidated or reorganized
corporation's then outstanding voting securities, or of the sale
of all or substantially all of the assets of the Corporation or
the sale of all or substantially all of the voting securities of
FNB.
(c) In addition, the Option hereby granted shall vest in full
upon the termination of employment of the Optionee (i) by the Corporation or
FNB without cause at any time during the
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term of the Option or (ii) by the Optionee or FNB or the Corporation upon the
expiration of the initial three (3) year term of employment of Optionee by the
Corporation or FNB.
SECTION V
TRANSFER
The Option may not be transferred except by will or the laws of
descent and distribution and may be exercised only by Optionee during his
lifetime. More particularly, but without limiting the generality of the
foregoing, the Option may not be assigned, transferred (except as permitted in
Section VI), pledged or hypothecated in any way (whether by operation of law or
otherwise). The Option shall not be subject to execution, attachment or similar
process. Any attempted assignment, transfer, pledge, hypothecation, or other
disposition of the Option contrary to the provisions hereof, and the levy of
any attachment or similar process on the Option, shall be null and void and
without effect.
SECTION VI
DEATH OF OPTIONEE
In the event of Optionee's death, the Option may be exercised by
the legal representatives of the estate of Optionee or by the person or persons
to whom Optionee's rights under the Option shall have passed by will or by the
laws of descent and distribution.
SECTION VII
TOTAL OR PARTIAL EXERCISE
The portion of the Option which has vested and is exercisable
may be exercised either at one time as to the total number of such Option
Shares or may be exercised from time to time as to any portion thereof prior to
the termination of the Option.
SECTION VIII
NOTICE OF EXERCISE; ISSUANCE OF CERTIFICATES
Subject to the terms and conditions of the Option, the vested
portions of the Option may be exercised by written notice to the Corporation,
at its principal office at Fidelity National Corporation, 0000 Xxxxxxxx Xxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, or such other place designated in writing
by the Corporation from time to time to the Optionee. Such notice shall state
the election to exercise the Option and the number of shares in respect of
which it is being exercised, and shall be signed by the person so exercising
the Option. Such notice shall be accompanied by (i) a certified or bank
cashier's check payable to the order of the Corporation for or (ii) shares of
Common Stock assigned to the Corporation having a fair market value equal to or
(iii) such or other consideration approved by the Board of Directors for or
(iv) a combination of
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the foregoing for; the full purchase price of the Shares in respect of which
the Option is being exercised. The fair market value of the shares of Common
Stock shall be the average of the high and low selling prices at which the
shares of Common Stock traded on the Nasdaq Market (or other applicable market)
on the date the Option was exercised. The certificate or certificates
representing the Shares shall be issued and delivered by the Corporation as
soon as practicable after receipt of the notice and payment. Such certificate
or certificates shall be registered in the name of the person so exercising the
Option and, if the Option shall be exercised by Optionee and the Optionee shall
so request in the notice exercising the Option, such certificate or
certificates shall be registered in the name of Optionee and another person
jointly, with right of survivorship, and shall be delivered to or on the
written order of the person or persons exercising the Option. In the event the
Option is being exercised pursuant to Section VI hereof, by any person or
persons other than Optionee, the notice shall be accompanied by appropriate
proof of the right of such person or persons to exercise the Option.
SECTION IX
ISSUANCE AND TRANSFER OF SHARES
Subject to the provisions of Paragraph VI of the Plan, in the
event the issuance or transfer of the shares covered by the Option may, in the
opinion of counsel to the Corporation, conflict or be inconsistent with any
applicable law or regulation of any governmental agency having jurisdiction,
the Corporation reserves the right to refuse or to delay the issuance or
transfer of such shares.
SECTION X
ADJUSTMENT ON RECAPITALIZATION
In the event of a merger, consolidation, reorganization,
recapitalization, reclassification of stock, stock dividend, split-up or other
change in the corporate structure or capitalization of the Corporation
affecting the Corporation's common stock as presently constitute, the Option
shall be adjusted, modified or terminated as provided in or pursuant to the
provisions of Paragraph V of the Plan.
SECTION XI
GOVERNING LAW
This option grant shall be governed by the laws of the State of Georgia.
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FIDELITY NATIONAL CORPORATION
By: /s/ R. Xxxxxxx Xxxxxxx, III
-----------------------------
Name: R. Xxxxxxx Xxxxxxx, III
Title: Director
OPTIONEE ACKNOWLEDGMENT
I have read the above Stock Option Agreement and the Fidelity
National Corporation 1997 Stock Option Plan ("Plan") and hereby accept the
above Option to purchase shares of the Common Stock of the Corporation in
accordance with and subject to the terms and conditions of the Stock Option
Agreement and the Plan with which I am familiar and I agree to be bound
thereby. I further understand that (i) any rule, regulation and determination,
including interpretation by the Board of Directors or Committee regarding the
Plan, the Options granted thereunder and the exercise thereof shall be final
and conclusive for all purposes and on all persons including the Corporation
and myself; and (ii) the grant of this Option shall not affect in any way the
Corporation and/or its Subsidiary and/or Parent's right to terminate my
employment or constitute an agreement by me to remain in the employ of the
Corporation or the Subsidiary or its Parent for any specified term.
/s/ Xxxxx X. Xxxxxx, Xx.
--------------------------------
OPTIONEE - Xxxxx X. Xxxxxx, Xx.
Acceptance Date: As of
September 18, 1997
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Optionee: Xxxxx X. Xxxxxx, Xx.
--------------------------
Option Shares: 40,400
--------------------------
(number of shares of
Common Stock)
Purchase Price
per share: $9.90
--------------------
Date of Grant: September 18, 1997
-------------------------
First Vesting
Date: September 18, 1998
-------------------------
Expiration Date:September 18, 2002
-------------------------
FIDELITY NATIONAL CORPORATION
STOCK OPTION AGREEMENT
("Option Agreement")
SECTION I
GRANT
Fidelity National Corporation ("Corporation") hereby grants to
the optionee set forth above ("Optionee") an incentive stock option ("Option")
within the meaning of Section 422 of the Internal Revenue Code to purchase the
number of shares of common stock, no par value, of the Corporation set forth
above (collectively "Option Shares") on the terms and conditions herein set
forth and the provisions of the Fidelity National Corporation 1997 Stock Option
Plan, as amended from time to time, ("Plan"). The purchase price of each such
share shall be the Purchase Price set forth above. The Option shall expire on
the Expiration Date set forth above, unless sooner terminated as provided in
Section III or Section X of this Option Agreement or Paragraph V of the Plan.
Each term used herein shall have the same meaning as provided in the Plan
unless herein otherwise provided. To the extent the Option does not qualify as
an incentive stock option it shall be treated as options which are not
incentive stock options.
The Option is granted pursuant to the Plan.
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SECTION II
EXERCISE OF THE OPTION
The Option granted hereunder may be exercised at any time and
from time to time during the period commencing from the date the Option was
granted until the date the Option expires provided and to the extent that this
Option has vested and is exercisable as provided hereinafter and in the Plan.
To the extent Option Shares do not vest prior to the termination of the Option
for any reason, such Option Shares may not be acquired hereunder.
SECTION III
EARLY TERMINATION OF OPTION
The provisions of Sections I and II notwithstanding, this Option
may not be exercised in whole or in part upon the earliest to occur (i) upon
termination of employment by the Corporation (or any Subsidiary or Parent) for
cause (as defined in the Employment Agreement dated September 18, 1997), (ii)
more than three (3) months with respect to incentive stock options and twelve
(12) months with respect to non-qualified stock options following the date of
the termination of employment of the Optionee by the Corporation (or any
Subsidiary or Parent) for any reason, or by Optionee for any reason, other than
termination for cause, termination upon or during Total Disability (as defined
in the Employment Agreement) or termination upon the death of the Optionee
while an employee of the Corporation (or any Subsidiary or Parent), and (iii)
more than twelve (12) months following the date of termination of employment of
the Optionee, in the event the termination of employment is due to death or
Optionee's death occurs during said three month period set forth in
subparagraph (ii) or to the Total Disability of the Optionee.
SECTION IV
VESTING OF OPTION
(a) The Option hereby granted shall vest only during the
Optionee's continuous employment with the Corporation and/or any Parent and/or
Subsidiary, and shall be exercisable only upon and after such vesting and prior
to the termination of the Option, by Optionee in accordance with and in such
number of shares of Common Stock determined as set forth in the following
schedule:
(i) 25% of the Option shares commencing on the first
anniversary of the grant of the Option;
(ii) additional 25% of the Option Shares commencing on the
second anniversary of the grant of the Option;
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(iii) additional 25% of the Option Shares commencing on the
third anniversary of the grant of the Option; and
(iv) additional 25% of the Option Shares commencing on the
fourth anniversary of the grant of the Option.
(b) Notwithstanding the foregoing provisions of this Section IV,
in the event of a Change in Control (as hereinafter defined) during the
Optionee's employment with the Corporation and/or any Parent and/or any
Subsidiary, the Option hereby granted shall vest in full immediately prior to
such Change in Control with respect to all remaining outstanding Option Shares
that have not theretofore vested.
The term "Change in Control" shall mean:
(i) The acquisition (other than from the
Corporation, its Parent or its Subsidiaries) by any person,
entity or "group" within the meaning of Sections 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934 ("34 Act")
(excluding, for this purpose, the Corporation, its Parent or its
Subsidiaries, or any employee benefit plan of the Corporation,
its Parent or its Subsidiaries) of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the 34 Act) of more
than 50% of either the then outstanding shares (i) of Common
Stock of the Corporation or of the combined voting power of the
Corporation's then outstanding voting securities entitled to
vote generally in the election of directors, or (ii) of the
combined voting power of the outstanding voting securities of
Fidelity National Bank ("FNB") entitled to vote generally for
the election of directors; or
(ii) Individuals who, as of the date hereof,
constitute the board of directors of the Corporation ("Incumbent
Board") cease for any reason to constitute at least a majority
of the board of directors, provided that any individual becoming
a director subsequent to the date hereof whose election, or
nomination for election by the Corporation's shareholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though
such individual is a member of the Incumbent Board; or
(iii) Approval by the shareholders of the
Corporation of a merger, consolidation or other reorganization
in each case, with respect to which persons who were the
shareholders of the Corporation and optionees immediately prior
to such merger, consolidation or other reorganization,
immediately thereafter, will not own more than 50% of the
combined voting power entitled to vote generally in the election
of directors of the merged, consolidated or reorganized
corporation's then outstanding voting securities, or of the sale
of all or substantially all of the assets of the Corporation or
the sale of all or substantially all of the voting securities of
FNB.
(c) In addition, the Option hereby granted shall vest in full
upon the termination of employment of the Optionee (i) by the Corporation or
FNB without cause at any time during the
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term of the Option or (ii) by the Optionee or FNB or the Corporation upon the
expiration of the initial three (3) year term of employment of Optionee by the
Corporation or FNB.
SECTION V
TRANSFER
The Option may not be transferred except by will or the laws of
descent and distribution and may be exercised only by Optionee during his
lifetime. More particularly, but without limiting the generality of the
foregoing, the Option may not be assigned, transferred (except as permitted in
Section VI), pledged or hypothecated in any way (whether by operation of law or
otherwise). The Option shall not be subject to execution, attachment or similar
process. Any attempted assignment, transfer, pledge, hypothecation, or other
disposition of the Option contrary to the provisions hereof, and the levy of
any attachment or similar process on the Option, shall be null and void and
without effect.
SECTION VI
DEATH OF OPTIONEE
In the event of Optionee's death, the Option may be exercised by
the legal representatives of the estate of Optionee or by the person or persons
to whom Optionee's rights under the Option shall have passed by will or by the
laws of descent and distribution.
SECTION VII
TOTAL OR PARTIAL EXERCISE
The portion of the Option which has vested and is exercisable
may be exercised either at one time as to the total number of such Option
Shares or may be exercised from time to time as to any portion thereof prior to
the termination of the Option.
SECTION VIII
NOTICE OF EXERCISE; ISSUANCE OF CERTIFICATES
Subject to the terms and conditions of the Option, the vested
portions of the Option may be exercised by written notice to the Corporation,
at its principal office at Fidelity National Corporation, 0000 Xxxxxxxx Xxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, or such other place designated in writing
by the Corporation from time to time to the Optionee. Such notice shall state
the election to exercise the Option and the number of shares in respect of
which it is being exercised, and shall be signed by the person so exercising
the Option. Such notice shall be accompanied by (i) a certified or bank
cashier's check payable to the order of the Corporation for or (ii) shares of
Common Stock assigned to the Corporation having a fair market value equal to or
(iii) such or other consideration approved by the Board of Directors for or
(iv) a combination of
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the foregoing for; the full purchase price of the Shares in respect of which
the Option is being exercised. The fair market value of the shares of Common
Stock shall be the average of the high and low selling prices at which the
shares of Common Stock traded on the Nasdaq Market (or other applicable market)
on the date the Option was exercised. The certificate or certificates
representing the Shares shall be issued and delivered by the Corporation as
soon as practicable after receipt of the notice and payment. Such certificate
or certificates shall be registered in the name of the person so exercising the
Option and, if the Option shall be exercised by Optionee and the Optionee shall
so request in the notice exercising the Option, such certificate or
certificates shall be registered in the name of Optionee and another person
jointly, with right of survivorship, and shall be delivered to or on the
written order of the person or persons exercising the Option. In the event the
Option is being exercised pursuant to Section VI hereof, by any person or
persons other than Optionee, the notice shall be accompanied by appropriate
proof of the right of such person or persons to exercise the Option.
SECTION IX
ISSUANCE AND TRANSFER OF SHARES
Subject to the provisions of Paragraph VI of the Plan, in the
event the issuance or transfer of the shares covered by the Option may, in the
opinion of counsel to the Corporation, conflict or be inconsistent with any
applicable law or regulation of any governmental agency having jurisdiction,
the Corporation reserves the right to refuse or to delay the issuance or
transfer of such shares.
SECTION X
ADJUSTMENT ON RECAPITALIZATION
In the event of a merger, consolidation, reorganization,
recapitalization, reclassification of stock, stock dividend, split-up or other
change in the corporate structure or capitalization of the Corporation
affecting the Corporation's common stock as presently constitute, the Option
shall be adjusted, modified or terminated as provided in or pursuant to the
provisions of Paragraph V of the Plan.
SECTION XI
GOVERNING LAW
This option grant shall be governed by the laws of the State of Georgia.
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FIDELITY NATIONAL CORPORATION
By: /s/ R. Xxxxxxx Xxxxxxx, III
---------------------------
Name: R. Xxxxxxx Xxxxxxx, III
Title: Director
OPTIONEE ACKNOWLEDGMENT
I have read the above Stock Option Agreement and the Fidelity
National Corporation 1997 Stock Option Plan ("Plan") and hereby accept the
above Option to purchase shares of the Common Stock of the Corporation in
accordance with and subject to the terms and conditions of the Stock Option
Agreement and the Plan with which I am familiar and I agree to be bound
thereby. I further understand that (i) any rule, regulation and determination,
including interpretation by the Board of Directors or Committee regarding the
Plan, the Options granted thereunder and the exercise thereof shall be final
and conclusive for all purposes and on all persons including the Corporation
and myself; and (ii) the grant of this Option shall not affect in any way the
Corporation and/or its Subsidiary and/or Parent's right to terminate my
employment or constitute an agreement by me to remain in the employ of the
Corporation or the Subsidiary or its Parent for any specified term.
/s/ Xxxxx X. Xxxxxx, Xx.
-------------------------------
OPTIONEE - Xxxxx X. Xxxxxx, Xx.
Acceptance Date: As of
September 18, 1997
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