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EXHIBIT 10(C)
FIDELITY NATIONAL BANK/FIDELITY NATIONAL CORPORATION
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the 15th
day of September, 1997, among Fidelity National Bank ("FNB"), a National
Association, Fidelity National Corporation ("Fidelity"), a Georgia corporation,
and Xxxxx X. Xxxxxxxx ("Executive").
WHEREAS, FNB agrees to employ Executive as an executive to provide the
services set forth herein; and
WHEREAS, Executive agrees to accept such engagement and 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) FNB shall employ Executive as the President and Chief
Executive Officer of FNB during the term of his employment as set forth in this
Agreement and Executive hereby accepts such employment. He shall also be a Vice
President of Fidelity.
(b) Executive shall be responsible for the day-to-day
operations of the business of FNB and shall have such authority as is
customarily and normally granted to the chief executive office or is necessary
for the conduct of such business under the general direction of the Board of
Directors of FNB ("Board").
(c) Executive 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. Executive shall
devote his full business time to the performance of his obligations hereunder.
(d) The term of employment of Executive shall be for an
initial term of three (3) years and may be extended upon written agreement of
the parties. In the event the term of employment is not extended after the
initial term or another employment agreement is not entered into, upon terms
acceptable to Executive, then Executive or FNB shall have the option to
terminate Executive's employment upon 60 days' prior notice as of the last day
of the initial term. Upon such termination by Executive or FNB, FNB shall pay
Executive semi-monthly an amount equal to Executive's semi-monthly Base Salary
(as hereinafter defined) for a period of thirty-six months from the date of
termination.
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(e) Employment shall commence on September 15, 1997.
(f) The employment of the Executive hereunder is subject
to the prior receipt from the Office of the Comptroller of the Currency ("OCC")
of a no objection letter for Executive's election as President and Chief
Executive Officer of the FNB. The parties shall promptly complete and furnish
said information and documents requested by the OCC in connection with
Executive's employment hereunder.
2. COMPENSATION.
(a) Salary. During the term of the employment of
Executive, FNB will pay to Executive 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 an employer
sponsored disability program and/or under a policy the premiums of which are
paid by FNB, the payments hereunder are to be reduced by an amount equal to such
disability payments.
(b) Stock Options. The Compensation Committee of the
Board of Directors of Fidelity has granted to Executive as of the first (1st)
day of his employment at FNB, a stock option to purchase 100,000 shares of
Common Stock, no par value, of Fidelity ("Common Stock") at its fair market
value on the first day of Executive's employment, as set forth in Exhibit A
attached hereto.
(c) Lump Sum Payment. Within thirty days of the commencement of
employment hereunder, FNB shall pay Executive $50,000.
(d) Employee Benefit Program. Executive shall be eligible to
participate in all employee benefit programs, including medical and
hospitalization programs, now or hereafter made available by FNB to its
employees or executives thereof, subject to terms and conditions of such
programs, including eligibility. It is understood that FNB reserves the right to
modify and rescind any program or adopt new programs in its sole discretion. FNB
may, in its sole discretion, maintain key man life insurance on the life of
Executive and designate FNB as the beneficiary. Executive agrees to execute any
documents necessary to effect such policy.
(e) Additional Benefits.
(1) During the term of this Agreement, FNB will
pay or reimburse Executive for the premiums on a $1,000,000 term life insurance
policy on the life of the Executive payable to his beneficiaries. Such annual
premiums are currently estimated to be approximately $12,500.00, and FNB's
obligations under this subparagraph (1) will not exceed such amount.
(2) During the term of this Agreement, FNB will
pay or reimburse Executive for the premiums on a disability insurance policy,
which together with other FNB disability payments will provide Executive with
monthly disability benefits at an annual rate of $210,000. Such annual premiums
are currently estimated to be approximately $2,500.00 per year
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and FNB's obligations under this subparagraph (2) will not exceed such amount.
(3) FNB or Fidelity National Corporation will
adopt a deferred compensation plan which will include senior executives of FNB
within 12 months of the date of this Agreement.
(f) Vacation. Executive is entitled to a minimum of three
(3) weeks of vacation every year. Vacation shall be taken at such times as not
to materially interfere with the business of FNB. 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) Moving Allowance. FNB shall provide an allowance to
Executive equal to the aggregate of the actual cost of moving expenses, plus an
amount equal to the income taxes payable by Executive by reason of the payment
of the allowance for moving expenses. Moving expenses include packing and
unpacking and temporary storage of up to 120 days. In addition, FNB shall pay:
(i) the reasonable cost of temporary housing expenses; (ii) reasonable travel
expenses incurred in connection with such relocation for the Executive and his
spouse; (iii) closing costs on the purchase of a home in an amount not to exceed
2% of the purchase price (or compensating services in place thereof); and (iv)
the real estate commission payable on the sale of Executive's home. Executive
will make every effort to sell his present home, but if the home is not sold
within six (6) months, FNB will purchase the home for the average value as
determined by two appraisers, one named by Executive and one by FNB, and a third
chosen by the first two if their appraisals are more than 10% apart.
(h) Expenses. FNB shall pay all reasonable expenses
incurred by the Executive in the performance of his responsibilities and duties
for FNB, including without limitation the Executive's initiation fees and dues
payable to a country club of the Executive's choice and such civic organizations
which are approved by the Board. Executive shall submit to FNB periodic
statements of all expenses so incurred in accordance with the policies of FNB
then in effect. Subject to such reviews as FNB may deem reasonably necessary,
FNB shall, promptly in the ordinary course of business, reimburse the Executive
for the full amount of any such expenses advanced by the Executive.
(i) Automobile. FNB will provide the Executive with an
automobile for his use and will maintain and insure it at FNB's expense and pay
the license and registration fees and gasoline..
3. EARLY TERMINATION.
(a) For Cause. (1) Notwithstanding the foregoing, the
Board may terminate the employment of Executive "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
Executive or any related person or
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affiliated company or are intended to cause harm or damage to FNB or its parents
or subsidiaries of its parent, (iii) the illegal use of controlled substances,
(iv) the use of alcohol so as to have a material adverse effect on the
performance of the Executive's duties, (v), the misappropriation or embezzlement
of assets of FNB or its parent or subsidiaries of its parent, or (vi) the breach
of any other material term or provision of this Agreement to be performed by
Executive 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, FNB shall have no further
obligation to pay any compensation to Executive 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 FNB. FNB may terminate the employment of
Executive for any reason (other than for cause) at any time upon at least 30
days' prior written notice. Upon such termination, Executive's right to
compensation after the effective date of termination shall cease, except that
the Base Salary shall continue to be paid semi-monthly for thirty-six (36)
months from the date of termination. A $10,000.00 relocation expense and twelve
(12) months of services of an out-placement firm selected by Executive will also
be provided to Executive.
(c) Termination by Executive. Executive may terminate his
employment at any time upon at least 30 days' prior written notice to FNB. Upon
such termination of employment Executive's right to compensation after the
effective date of termination shall cease. The Base Salary 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 either FNB or Fidelity fails to perform any of its material obligations
hereunder and such failure continues for sixty (60) days after written notice by
Executive to the Board, termination by Executive of this Agreement for such
failure shall be deemed to constitute a termination by Fidelity or FNB without
cause under paragraph 3(b) of this Agreement. A material reduction in the
responsibilities and authority of Executive as provided in paragraph 1(b) shall
constitute a breach of a material obligation of FNB hereunder.
(d) Termination Upon Death or Disability.
(1) The employment of Executive shall terminate upon his
death, or (10) business days after written notice by FNB of termination, upon or
during the continuance of the total disability (as hereinafter defined) of
Executive.
(2) Upon termination upon death or upon or during total
disability, Executive's 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). FNB shall have no obligation to
pay any compensation for periods after the effective date of such termination.
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(3) The term "total disability" means the inability of
Executive to substantially perform his duties hereunder for a continuous period
of sixty (60) days unless extended in writing by FNB. Total disability shall be
deemed to commence upon the expiration of such continuous sixty (60) day period.
In the event of any dispute as to the "total disability" of the Executive, 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. Executive agrees to submit
medical records requested and to submit to such examination and testing
requested by such physician.
4. COVENANT NOT TO COMPETE.
(a) Executive 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 FNB or parent or any
subsidiary of its parent for any reason), Executive 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 FNB and its parent and
subsidiaries of its parent. This covenant not to be compete shall not prohibit
engagements which do not involve, directly or indirectly, the Business.
Ownership of stock of companies listed on a stock exchange or traded over the
counter is not prohibited by this Agreement.
(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) Executive 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. Executive agrees that during
his employment and the period of twelve months immediately following termination
of his employment for any reason with FNB by himself or by FNB, Executive 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 FNB
or any representative of any customer or prospective customer of FNB 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 FNB or representative
thereof with which Executive had contact while in the employ of FNB during the
two year period preceding the termination of employment or such lessor period of
employment.
6. NON-SOLICITATIONS OF EMPLOYEES. Executive agrees that during
his employment
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and the period of twelve months immediately following termination of his
employment with FNB by himself or by FNB for any reason, Executive 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 FNB, Fidelity National Corporation or any subsidiary thereof, to
leave its employ for an engagement in any capacity by another person or to
provide the name of any such employee to any one who, to the knowledge of
Executive, may hire or be interested in hiring such employee.
7. CONFIDENTIALITY.
(a) During the term of Executive's employment with FNB,
and at all times thereafter, Executive shall not use or disclose to others,
without the prior written consent of FNB, any Trade Secrets (as hereinafter
defined) or Confidential Information (as hereinafter defined) of FNB or its
customers, except for use or disclosure thereof in the course of FNB's business,
and such disclosure shall be limited to those who have a need to know.
(b) Upon termination of employment with FNB for any
reason, the Executive shall not take with him any documents or data of FNB or of
any customer or any reproduction thereof.
(c) Executive agrees to take reasonable precautions to
safeguard and maintain the confidentiality and secrecy and limit the use of all
Trade Secrets and Confidential Information of FNB 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 legal form of property or
non-public information of FNB 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 FNB 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 FNB or by the Executive.
(f) Trade Secrets and Confidential Information shall not
include any information (i) which becomes publicly known through no fault or act
of the Executive; (ii) is lawfully received by Executive from a third party
after termination of employment without a similar restriction regarding
confidentiality and use and without a breach of this Agreement; or (iii) which
is independently developed by Executive before the commencement of or after
termination of Executive's employment.
8. SPECIFIC PERFORMANCE. Because of Executive's knowledge and
experience, Executive agrees that FNB 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
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violation of the undertakings set forth in paragraphs 4, 5, 6 and 7 of this
Agreement. In any such court proceeding, Executive will not object thereto and
claim that monetary damages are an adequate remedy.
9. INDEMNIFICATION OF EXECUTIVE. FNB shall indemnify Executive
and shall advance reimburse expenses incurred by Executive in any proceeding
against Executive, including a proceeding brought by or in the right of FNB, as
a director or officer of FNB or any subsidiary thereof, except claims and
proceedings brought by FNB against Executive, 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 by express
mail, overnight courier or other similar method 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:
(a) If to FNB
Fidelity National Bank
0000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Chairman of the Board
(b) If to Executive:
Xxxxx X. Xxxxxxxx
c/o Fidelity National Bank
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 Executive and his estate, personal
representatives and heirs, and by FNB and its successors and assigns. This
Agreement and the payments hereunder may not be assigned, pledged or otherwise
hypothecated by Executive.
12. ENTIRE AGREEMENT. This Agreement, including the Exhibits
attached hereto, is intended by the parties hereto to constitute the entire
understanding of the parties with respect to the employment of Executive by FNB
and supersedes all prior agreements and understandings, oral or written.
13. BINDING ARBITRATION/ATTORNEY FEES. Except as otherwise
specifically provided Executive herein, including as provided in paragraph 8
hereof, all disputes arising under this
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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/ Xxxxx X. Xxxxxx, Xx.
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Xxxxx X. Xxxxxx, Xx., Chairman
FIDELITY NATIONAL BANK
By: /S/ Xxxxx X. Xxxxxx, Xx.
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Xxxxx X. Xxxxxx, Xx. By Authority
of the Board of Directors
EXECUTIVE
/S/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
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EXHIBIT A
Optionee: Xxxxx X. Xxxxxxxx
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Option Shares:
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(number of shares of
Common Stock)
Purchase Price
per share:
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Date of Grant: September , 1997
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First Vesting
Date: September , 1998
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Expiration Date: September , 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") 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.
SECTION II
EXERCISE OF THE OPTION
The Option granted hereunder may be exercised at any time and from time
to time during
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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 15, 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;
(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.
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(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 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.
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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 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
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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.
FIDELITY NATIONAL CORPORATION
By:
--------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Chairman
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OPTIONEE ACKNOWLEDGMENT
I have read the above Incentive 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 Incentive 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.
-----------------------------------
OPTIONEE - Xxxxx X. Xxxxxxxx
Acceptance Date: As of
September 15, 1997
A-6
