EXHIBIT 10(f)
FIDELITY SOUTHERN CORPORATION
FIDELITY BANK
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the 18th
day of December, 2003, by and among FIDELITY SOUTHERN CORPORATION ("Fidelity"),
a Georgia Corporation, FIDELITY BANK ("Bank"), a Georgia corporation, and XXXXX
X. XXXXXX, XX. ("Xxxxxx").
WHEREAS, Xxxxxx is the Chairman and Chief Executive Officer of
Fidelity and Chairman of the Bank;
WHEREAS, Fidelity agrees to continue to employ Xxxxxx as its Chief
Executive Officer and as the Chairman of the Bank, subject to his election, to
provide the services set forth herein; and
WHEREAS, Xxxxxx agrees to accept such employment 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:
1. EMPLOYMENT/DUTIES.
(a) Fidelity shall employ Xxxxxx as the 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. Xxxxxx also
agrees to serve as the Chairman of the Board of Directors of Fidelity and of
the Bank upon his election to such positions.
(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 and shall comply
with all policies and procedures adopted by the Board of Directors or any
committee thereof. 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,
2004.
(f) This Agreement shall not prohibit Xxxxxx from
serving as a director of other businesses and as a member of any committee of
the board of directors thereof.
2. COMPENSATION.
(a) Base Salary. During the term of the employment of
Xxxxxx hereunder, Fidelity and Bank will pay to Xxxxxx an aggregate base salary
("Base Salary") at the rate of $300,000 per year, payable in arrears in equal
semi-monthly payments, subject to applicable withholdings and deductions. In
the event of the disability of Xxxxxx, to the extent payments are received by
him under any employer sponsored disability program and/or under any policy the
premiums of which are paid by Fidelity or Bank, the payments hereunder are to
be reduced by an amount equal to such disability payments.
(b) Incentive Compensation. Fidelity and Bank shall pay
to Xxxxxx the incentive compensation ("Incentive Compensation") determined as
set forth in Attachment A hereto. Xxxxxx shall be eligible to participate in
incentive plans and programs hereafter adopted as determined by the Board or
the Compensation Committee of the Board.
(c) Employee Benefit Programs. 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 and/or executives, 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.
(d) Life Insurance for Fidelity. 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 the issuance of such policy. Xxxxxx hereby acknowledges
that he has consented to the purchase and maintenance by Fidelity of the Split
Dollar Insurance Plan ("Split Dollar Plan") in the face amount of $2,000,000
dated October 3, 1984 (including all amendments and replacement and substitute
policies, as hereafter mutually agreed in writing). In addition, Fidelity and
Bank agree to maintain the Flexible Premium Adjustable Life Insurance,
Universal Life, policy issued by Great-West Life & Annuity Insurance Company
("Great-West") in the face amount of $6 million payable to beneficiaries
designated by Xxxxxx or his estate in lieu thereof, at all times hereafter,
regardless of the termination of this Agreement or Xxxxxx'x employment
hereunder, including terminations pursuant to Section 3. The policies purchased
and maintained by Fidelity under the Split Dollar Plan and the policy purchased
and maintained by Fidelity with Great West, or any substituted policies, shall
be maintained by Fidelity at all times hereafter, including after the
termination of this Agreement or Xxxxxx'x employment hereunder.
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(e) Additional Benefits. The Non-Qualified Stock Option
dated September 18, 1997, shall continue in effect and shall not be affected by
any modification or termination of this Agreement.
(f) Vacation. Xxxxxx is entitled to five (5) 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 taken.
(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 the Atlanta Athletic
Club and the Capital City Club 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 all such expenses advanced by Xxxxxx.
(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.
3. EARLY TERMINATION.
(a) For Cause. (i) Notwithstanding the foregoing, the
Board may terminate the employment of Xxxxxx "for cause" (as hereinafter
defined) at any time upon 10 business days' prior written notice. The term "for
cause" shall mean (A) the commission of a felony or any other crime involving
moral turpitude or the pleading of nolo contendere to any such act, (B) 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 and are intended to cause
harm or damage to Fidelity, the Bank or their subsidiaries, (C) the illegal use
of controlled substances, (D) the misappropriation or embezzlement of assets of
Fidelity, the Bank or their subsidiaries, or (E) 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 or the board of directors of the Bank.
(ii) Upon termination for cause, Fidelity and
Bank shall have no further obligation to pay any compensation to Xxxxxx or make
available to Xxxxxx participation under any employee benefit program for
periods after the effective date of the termination for cause. In such event,
Incentive Compensation is payable only for the periods of employment. Salary
which accrued to the termination date shall be paid on the normal payment date.
(b) Other Termination by Fidelity. (i) Fidelity and the
Bank 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 as set forth in Section 2 after the
effective date of the termination shall cease, except that the Base Salary
shall
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be continued to be paid semi-monthly as provided in Section 2(a) for the
remainder of said three years as provided in Section 1(d), the employee
benefits shall be continued as provided in Section 2(c) for thirty-six (36)
months from the date of termination at a cost to Xxxxxx not to exceed the
amounts paid by executives for such employee benefits and the Incentive
Compensation for the periods of employment shall be paid as provided in Section
2(b).
(ii) Subsequent to the date of any written
notice of termination provided to Xxxxxx pursuant to Section 3(b)(i) or by
Xxxxxx to Fidelity pursuant to Section 3(c)(ii), Fidelity shall engage the
independent accounting firm regularly utilized by Fidelity ("Accounting Firm")
to provide to Fidelity and Xxxxxx, at Fidelity's expense, a determination of
whether any compensation payable to Xxxxxx pursuant to Section 3(b)(i)
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 compensation payable to Xxxxxx pursuant to
Section 3(b)(i) 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 Xxxxxx 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 Xxxxxx pursuant to Section 3(b)(i) were reduced
(assuming latest payments are reduced first) so that no amount payable to
Xxxxxx hereunder constitutes a Parachute Payment than he 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 Xxxxxx hereunder were not so reduced; and (C),
if the Accounting Firm determines in (B) above that Xxxxxx would realize a
higher amount if the compensation payable to Xxxxxx were so reduced, the amount
of the reductions. All determinations shall be made on a present value basis.
The Accounting Firm shall provide to Fidelity and to Xxxxxx a written report of
its determinations hereunder no later than forty-five (45) days prior to the
termination date. No later than fifteen (15) days following his receipt of the
report from the Accounting Firm, Xxxxxx will notify Fidelity in writing of any
disagreement with said report, and, in such case, Fidelity shall direct the
Accounting Firm to promptly discuss its determinations with an accountant or
counsel designated by Xxxxxx in his written notice and seek to reach an
agreement regarding same no later than fifteen (15) days prior to the
termination date, with Fidelity and Xxxxxx, each bearing the cost of their own
accountants or counsel. If no agreement can be reached within thirty (30) days
after the expiration of said fifteen (15) day period, the matter shall be
promptly submitted to binding arbitration under Section 13 hereof by either
party. The determinations so made shall be binding on the parties. If it is
determined hereunder that Xxxxxx 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 him pursuant to Section 3(b)(i) were
reduced (assuming latest payments are reduced first) so that no amount payable
to Xxxxxx hereunder constitutes a Parachute Payment, then the amounts payable
to Xxxxxx pursuant to Section 3(b)(i) shall be so reduced.
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Xxxxxx
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Fidelity
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Bank
(c) Termination by Xxxxxx. (i) Xxxxxx may terminate his
employment at any time upon at least 90 days' prior written notice to Fidelity
and the Bank. Upon such termination of employment Xxxxxx'x right to
compensation after the effective date of termination shall cease. The Base
Salary which accrued as of the termination date and the Incentive Compensation
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payable pursuant to Section 2 (b) will be paid after the effective date of
termination under this Section 3(c) on the normal payment dates.
(ii) Notwithstanding the foregoing, if Fidelity
or the Bank 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 and the Bank without cause under
Section 3(b)(i) of this Agreement. A reduction in the responsibilities and
authority of Xxxxxx as provided in Section l(b) shall constitute a breach of a
material obligation of Fidelity and Bank hereunder.
(d) Termination Upon Death or Disability.
(i) The employment of Xxxxxx shall terminate
upon his death, or (10) business days after written notice by Fidelity of
termination during the continuance of the total disability (as hereinafter
defined) of Xxxxxx.
(ii) Upon termination upon death or by Fidelity
upon total disability, Xxxxxx'x right to compensation after the effective date
of termination shall cease. Base Salary which accrued as of the termination
date will be paid after the effective date of termination under this Section
3(d) on the normal payment date(s) and any Incentive Compensation will be paid
as provided in Section 2(b). Fidelity and Bank shall have no obligation to pay
any compensation for periods after the effective date of such termination under
this Section 3(d).
(iii) The term "total disability" means the
inability of Xxxxxx to substantially perform his duties hereunder for a
continuous period of ninety (90) days unless such period is extended in writing
by Fidelity, in which event, for such greater period. Total disability shall be
deemed to commence upon the expiration of such continuous ninety (90) day
period or such greater period, if so extended. In the event of any dispute as
to the "total disability" of Xxxxxx or the expiration of said ninety (90) day
period or such greater period, if so extended, 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.
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Xxxxxx
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Fidelity
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Bank
(e) Life Insurance Policies. Termination of this
Agreement or the benefits payable hereunder for any reason, including pursuant
to Section 3(a), (b), (c) or (d) hereof, shall not terminate the duty of
Fidelity and Bank to maintain or continue the Split Dollar Plan, or that
certain life insurance policy with Great West pursuant to Section 2(d) hereof,
including any substitute plan or policy hereafter mutually agreed to.
4. COVENANT NOT TO COMPETE.
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(a) Xxxxxx agrees that for the period commencing on the
date hereof and ending two (2) years after the expiration of the term of his
employment under this Agreement (and if employment is continued thereafter "at
will", then one (1) year after termination of such continued employment with
Fidelity, the Bank 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, the Bank
and their 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).
(c) Xxxxxx acknowledges that the products and services
provided by the Business are being and are intended to be marketed throughout
the Territory.
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 and the Bank 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
(collectively "Solicitation") any customer or prospective customer of Fidelity
or the Bank or of any subsidiary or any representative of any customer or
prospective customer of Fidelity or the Bank or any subsidiary 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 5 shall apply only to customers or prospects of Fidelity, the
Bank and of their subsidiaries or representatives thereof with which Xxxxxx had
contact while in the employ of Fidelity, the Bank or any subsidiary during the
two year period immediately preceding the Solicitation.
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 and the Bank 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 the Bank or any subsidiary
thereof, to leave the employ of Fidelity or the Bank or any subsidiary thereof
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 or the Bank, any Trade
Secrets (as hereinafter defined) or Confidential Information (as hereinafter
defined) of Fidelity or the Bank, or any subsidiary thereof or any of their
customers,
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except for use or disclosure thereof in the course of the business of Fidelity
or the Bank (or that of any subsidiary), and such disclosure shall be limited
to those who have a need to know.
(b) Upon termination of employment with Fidelity and the
Bank for any reason, Xxxxxx shall not take with him any documents or data of
Fidelity or the Bank or any subsidiary or of any customer thereof or any
reproduction thereof and agrees to return any such documents and data in his
possession at that time.
(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, the Bank and all
subsidiaries and customers thereof.
(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
or the Bank 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, the Bank 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, the
Bank or by Xxxxxx.
(f) Trade Secrets and Confidential Information shall not
include any information (A) which becomes publicly known through no fault or
act of Xxxxxx; (B) 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 (C) 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
without the posting of a bond or other security in addition to all other rights
and remedies it might have for any violation of the undertakings set forth in
Sections 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 Articles of Incorporation and By-Laws of Fidelity and the
Georgia Business Corporation Code, as amended from time to time.
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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 Section 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 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:
If to Fidelity
Fidelity Southern Corporation
0000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Board of Directors
If to Xxxxxx:
Xxxxx X. Xxxxxx, Xx.
c/o Fidelity Southern 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 Split Dollar
Plan, the Flexible Premium Adjustable Life, Universal Life, policy and the
Non-Qualified Stock Option, 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 election as Chairman of the
Board of Fidelity and the Bank and supersedes all prior agreements and
understandings, oral or written.
13. BINDING ARBITRATION/ATTORNEY FEES. Except as otherwise
specifically provided herein, including as provided in Section 8 hereof,
Specific Performance, 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.
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Xxxxxx
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Fidelity
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Bank
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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, excluding its conflicts of
laws.
[Signatures on the following page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
FIDELITY SOUTHERN CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
--------------------------------------
Title: Chairman of the Compensation
Committee
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FIDELITY BANK
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
--------------------------------------
Title: Chairman of the Compensation
Committee
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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 consolidated income of Fidelity for any calendar year
before the Incentive Compensation provided herein and before taxes of Fidelity
and excluding extraordinary items, determined in accordance with generally
accepted accounting principles ("Income") achieved is at least 80% of the
Target Income and is less than 100% of the Target Income, the Incentive
Compensation shall be the product of $200,000 times the percent of Target
Income achieved between 80% of the Target Income and 100% of the Target Income.
In the event the Income achieved equals 100% of the Target Income, the
Incentive Compensation shall be $200,000. In the event the Income achieved
exceeds 100% of the Target Income and is no more than 120% of the Target Income,
the Incentive Compensation shall be increased by the product of (i) $100,000
times (ii) the percentage of the Target Income in excess of 100% of the Target
Income and not more than 120% of the Target Income. For example, if the
percentage of Income achieved is 100% of the Target Income, the Incentive
Compensation is $200,000 and if 90% of the Target Income is achieved, the
Incentive Compensation is $100,000. No Incentive Compensation will be paid if
the percentage of Target Income achieved is 80% or less. The maximum Incentive
Compensation shall be $300,000.
The Compensation Committee may modify the Target Income for any
calendar year at any time during a 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 achieved Income, 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.
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 not exceed the amount of the
Incentive Compensation for that calendar year.
