Exhibit 10.6
FIDELITY SOUTHERN CORPORATION
EXECUTIVE CONTINUITY AGREEMENT
This Executive Continuity Agreement (this "Agreement') is made as of
January 19, 2006, between Fidelity Southern Corporation ("Fidelity Southern")
and the Bank (together with Fidelity Southern collectively referred to as
"Fidelity") and Xxxxx Xxxxxxxx (the "Executive").
The purpose of this Agreement is to encourage the Executive to continue
employment with Fidelity after a Change of Control of Fidelity Southern or the
Bank by providing reasonable employment security to the Executive and to
recognize the prior service of the Executive in the event of a Termination of
Employment under defined circumstances after any such Change of Control. This
Agreement supersedes and replaces all prior similar written and oral agreements
between the Executive and Fidelity and is in addition to any employment
agreement entered into between Fidelity and the Executive before, on or after
the date hereof.
Section 1. Definitions. For purposes of this Agreement:
(a) "Affiliate" means any entity with whom Fidelity Southern or the Bank
would be considered a single employer under Code Sections 414(b) or
414(c).
(b) "Annual Base Salary" shall have the meaning set forth in Section 3.
(c) "Bank" shall mean Fidelity Bank and the successors of all or
substantially all of its business.
(d) "Beneficiary" means the person or entity designated by the Executive,
by a written instrument delivered to Fidelity Southern, to receive any
benefits payable under this Agreement in the event of the Executive's
death. If the Executive fails to designate a Beneficiary, or if no
beneficiary survives the Executive, such Benefits on the death of the
Executive will be paid to the Executive's estate.
(e) "Board" means the Board of Directors of Fidelity Southern.
(f) "Cause" means:
(1) The willful and continued failure by the Executive to
substantially perform the material duties of the Executive with
Fidelity and/or any Affiliate (other than any such failure
resulting from the Disability of the Executive) for a continuous
period of three months, after a written demand for such
performance is delivered to the Executive at the direction of the
Board by the Chief Executive Officer of Fidelity Southern or by
any person designated by the board of Fidelity Southern or the
Bank, which written demand specifically identifies the material
duties of which Fidelity believes that the Executive has not
substantially performed or
(2) The willful engaging by the Executive in gross misconduct
materially and demonstrably injurious to Fidelity. No act, or
failure to act, on the Executive's part shall be considered
"willful" unless done, or omitted to be done, by the Executive in
the absence of good faith and without a reasonable belief that
the action or failure to act of the Executive was in the best
interest of Fidelity or any Affiliates.
(g) "Change of Control" means the occurrence hereafter of any event
described in (1), (2) or (3) below.
(1) Any "person" (as such term is used in Sections 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended, the
"Act) acquires "beneficial ownership" (as such term is defined in
Rule 13d-3 promulgated under the Act), directly or indirectly, of
equity securities of Fidelity Southern or the Bank representing
more than fifty percent (50%) of the combined voting power
represented by the outstanding voting securities of Fidelity
Southern or the Bank, as the case may be ("Voting Power").
(2) Individuals who constitute the membership of the Board or the
board of the Bank on the date of this Agreement (each being
hereinafter referred to as the "Incumbent Board') cease at any
time hereafter, to constitute at least a majority of the Board or
the board of the Bank, provided that any director whose
nomination was approved by a majority of the Incumbent Board will
be considered a member of the Incumbent Board, excluding any such
individual not otherwise a member of the Incumbent Board whose
initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the
directors of Fidelity Southern or the Bank.
(3) The effective date of a complete liquidation or dissolution of
Fidelity Southern or the Bank, or of the sale or other
disposition of all or substantially all of the assets of Fidelity
Southern or the Bank, as approved by the shareholders of Fidelity
Southern or the Bank, as the case may be, or the acquisition by a
person, other than Fidelity Southern, of beneficial ownership,
directly or indirectly, of equity securities of the Bank
representing more than fifty percent (50%) of the combined voting
power represented by the Bank's then outstanding voting
securities.
If a Change of Control occurs on account of a series of
transactions, the Change of Control is deemed to have occurred on
the date of the last of such transactions which results in the
Change of Control.
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(h) "Change of Control Period" shall have the meaning set forth in Section
4(a).
(i) "Code" means the Internal Revenue Code of 1986, amended.
(j) "Commencement Date" shall have the meaning set forth in Section 3(a).
(k) "Compensation" means the total compensation paid to the Executive by
Fidelity Southern, the Bank and/or any Affiliate which is or will be
reportable as income under the Code on Internal Revenue Service Form
W-2, (i) plus any amount contributed by the Executive pursuant to a
salary reduction agreement, which is not includible in gross income
under Code Sections 125 or 402(g) or under any other program that
provides for pre-tax salary reductions and compensation deferrals;
(ii) plus any amount of the Executive's compensation which is deferred
under any other plan or program of Fidelity and (iii) reduced by any
income reportable on Form W-2 that is attributable to the exercise of
any stock option or other equity award.
(l) "Disability" means a complete inability of the Executive substantially
to perform the employment duties for Fidelity Southern or the Bank or
any Affiliate for a period of at least one hundred and eighty (180)
consecutive days.
(m) "Employment Period" shall have the meaning set forth in Section 3(a).
(n) "Final Compensation" means the highest of (i) the Executive's
Compensation for the 12 full calendar months immediately preceding the
Change of Control; (ii) the Executive's annual base salary rate
payable by Fidelity Southern, the Bank and any Affiliate, in effect
immediately preceding the Change of Control or (iii) the Executive's
annual base salary rate as set by Fidelity Southern, the Bank and any
Affiliate, effective at any time during the Employment Period.
(o) "Good Reason" will exist with respect to the Executive if, without the
Executive's express written consent, the following events occur after
a Change of Control which are not corrected within thirty (30) days
after receipt of written notice from the Executive to Fidelity
Southern:
(1) there is a material change in the Executive's position or
responsibilities (including reporting responsibilities) which, in
the Executive's reasonable judgment, represents an adverse change
from the Executive's status, title, position or responsibilities
immediately prior to the Change of Control;
(2) the assignment to the Executive of any duties or responsibilities
which are inconsistent with the position or responsibilities of
the Executive immediately prior to the Change of Control;
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(3) any removal of the Executive from or failure to reappoint or
reelect the Executive to any of the positions the Executive held
immediately prior to the Change of Control;
(4) there is a reduction in the Executive's rate of annual base
salary or a change in the manner the incentive compensation of
the Executive is calculated and such change will result in a
reduction of the incentive compensation of the Executive;
(5) the requiring of the Executive to relocate his principal business
office to any place outside a fifteen (15) mile radius from the
Executive's current place of employment in Atlanta, Georgia
(reasonable required travel on Fidelity's business which is
materially greater than such travel requirements prior to the
Change of Control shall not constitute a relocation of the
Executive's principal business office);
(6) the failure of Fidelity to continue in effect any Welfare Plan,
Individual Life Insurance Policy or other compensation plan,
program or policy in which the Executive is participating
immediately prior to the Change of Control without substituting
plans providing the Executive with substantially similar or
greater benefits, or the taking of any action by Fidelity which
would materially and adversely affect the Executive's
participation in or materially reduce the Executive's benefits
under any of such plans or deprive the Executive of any material
fringe benefit enjoyed by the Executive immediately prior to the
Change of Control or
(7) the material breach of any provision of this Agreement which is
not timely corrected by Fidelity upon thirty (30) days prior
written notice from the Executive.
(p) "Individual Life Insurance Policy" means the Flexible Premium
Adjustable Life Insurance, Universal Life policy, issued by Great-West
Life & Annuity Insurance Company in the face amount of $500,000
payable to beneficiaries designated by the Executive, or his estate or
trust in lieu thereof.
(q) "Non-Compete Benefit" means the benefit provided in Section 14.
(r) "Salary Continuance Benefit" means the benefit provided in Section
4(b).
(s) "Severance Benefit" means a Salary Continuance Benefit and/or a
Welfare Continuance Benefit.
(t) "Severance Period" means the period beginning on the date of the
Executive's Termination of Employment by Fidelity Southern, the Bank
or any Affiliate, other than for Cause, Disability or death, or by the
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Executive for Good Reason and ending on the date twelve (12) months
thereafter.
(u) "Specified Employee" means an employee who is (i) an officer of
Fidelity Southern having annual compensation greater than $135,000
(with certain adjustments for inflation after 2005), (ii) a
five-percent owner of Fidelity Southern or (iii) a one-percent owner
of Fidelity Southern having annual compensation greater than $150,000.
For purposes of this Section, no more than 50 employees (or, if
lesser, the greater of three or 10 percent of the employees) shall be
treated as officers. Employees who (i) normally work less than 17 1/2
hours per week, (ii) normally work not more than 6 months during any
year, (iii) have not attained age 21 or (iv) are included in a unit of
employees covered by an agreement which the Secretary of Labor finds
to be a collective bargaining agreement between employee
representatives and Fidelity Southern (except as otherwise provided in
regulations issued under the Code) shall be excluded for purposes of
determining the number of officers. For purposes of this Section, the
term "five-percent owner" ("one-percent owner") means any person who
owns more than five percent (one percent) of the outstanding stock of
Fidelity Southern or stock possessing more than five percent (one
percent) of the total combined voting power of all stock of Fidelity
Southern. For purposes of determining ownership, the attribution rules
of Section 318 of the Code shall be applied by substituting "five
percent" for "50 percent" in Section 318(a)(2) and the rules of
Sections 414(b), 414(c) and 414(m) of the Code shall not apply. For
purposes of this Section, the term "compensation" has the meaning
given such term by Section 414(q)(4) of the Code. The determination of
whether the Executive is a Specified Employee will be based on a
December 31 identification date such that if the Executive satisfies
the above definition of Specified Employee at any time during the
12-month period ending on December 31, he will be treated as a
Specified Employee if he has a Termination of Employment during the
12-month period beginning on the first day of the fourth month
following the identification date. This definition is intended to
comply with the specified employee rules of Section 409A(a)(2)(B)(i)
of the Code and shall be interpreted accordingly.
(v) "Termination of Employment" means the termination of the Executive's
employment with Fidelity Southern, the Bank and all Affiliates;
provided, however, that the Executive will not be considered as having
had a Termination of Employment if (i) the Executive continues to
provide services to Fidelity Southern, the Bank or any Affiliate as an
employee at an annual rate that is at least equal to 20 percent of the
services rendered, on average, during the immediately preceding three
full calendar years of employment (or, if employed less than three
years, such lesser period) and the annual remuneration for such
services is at least equal to 20 percent of the average annual
remuneration earned during the final three full calendar years of
employment (or if less, such lesser period), (ii) the Executive
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continues to provide services to Fidelity Southern, the Bank or any
Affiliate in a capacity other than as an employee and such services
are provided at an annual rate that is 50 percent or more of the
services rendered, on average, during the immediately preceding three
full calendar years of employment (or, if employed less than three
years, such lesser period) and the annual remuneration for such
services is 50 percent or more of the annual remuneration earned
during the final three full calendar years of employment (or, if less,
such lesser period) or (iii) the Executive is on military leave, sick
leave or other bona fide leave of absence (such as temporary
employment by the government) so long as the period of such leave does
not exceed six months, or if longer, so long as the individual's right
to reemployment with Fidelity Southern, the Bank or any Affiliate is
provided either by statute or by contract. If the period of leave
exceeds six months and the Executive's right to reemployment is not
provided either by statute or by contract, the Termination of
Employment will be deemed to occur on the first date immediately
following such six-month period. For purposes of this Section, annual
rate of providing services shall be determined based upon the
measurement used to determine the Executive's base compensation.
(w) "Voting Power" shall have the meaning set forth in Section 1(g)(1).
(x) "Welfare Continuance Benefit" means the benefit provided in Section
4(c).
(y) "Welfare Plan" means any medical, prescription, dental, disability,
salary continuation, employee life, accidental death, travel accident
insurance or any other welfare benefit plan, as defined in Section
3(l) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") made available by Fidelity Southern, the Bank or any
Affiliate in which the Executive is eligible to participate; provided,
however, that the term "Welfare Plan" shall not include the Individual
Life Insurance Policy.
Section 2. Employment After Change of Control.
If the Executive is employed by Fidelity Southern, the Bank or an Affiliate on
the Commencement Date, such employer will continue to employ the Executive for
the Employment Period.
Section 3. Compensation During Employment Period.
(a) During the period commencing one year prior to a Change of Control
("Commencement Date") and ending upon the earlier of (i) one year
after a Change of Control or (ii) upon the Executive's Termination of
Employment for any reason by the Executive or by Fidelity Southern or
the Bank or any Affiliate ("Employment Period"), the Executive will
receive an annual base salary ("Annual Base Salary"), at least equal
to the
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greater of (i) the highest annual base salary payable to the Executive
by Fidelity Southern, the Bank and/or Affiliates in respect of the
twelve full calendar month period immediately preceding the
Commencement Date or (ii) the highest annual base salary rate of the
Executive payable on and after the Commencement Date and prior to the
Change of Control. During the Employment Period, the Annual Base
Salary will be increased at any time and from time to time so as to be
substantially consistent with increases in base salaries generally
awarded in the ordinary course of business to other peer executives of
Fidelity Southern, the Bank and Affiliates. Any increase in Annual
Base Salary will not serve to limit or reduce any other obligation to
the Executive under this Agreement. The Annual Base Salary will not be
reduced thereafter nor shall any such increase during the Employment
Period be reduced thereafter.
(b) During the Employment Period, the Executive will be entitled to
participate in all incentive plans (including, without limitation,
stock option, stock purchase, savings, supplemental medical and
retirement plans) and other programs and practices applicable
generally to other peer executives of Fidelity Southern, the Bank or
any Affiliates, but in no event will such plans and other programs,
practices, including policies to provide the Executive with incentive
opportunities, savings opportunities and retirement and other benefit
opportunities, in each case, be less favorable, in the aggregate, than
those provided by Fidelity Southern, the Bank or any Affiliates for
the Executive under such plans, practices, policies and program as in
effect at any time on and after the Commencement Date and prior to the
Change of Control.
(c) In addition the method of the calculation of the Executive's total
incentive compensation for each fiscal year, or part thereof, during
the Employment Period will not be changed in any manner which will
result in less total incentive compensation being paid or payable to
the Executive by Fidelity Southern, the Bank and Affiliates in respect
of the Employment Period (or any portion thereof) from the maximum
amount that would have been paid using the method of calculating
incentive compensation under the incentive compensation programs in
effect on and after the Commencement Date and prior to the Change of
Control. The parties agree that the Executive shall be entitled to
incentive compensation for services rendered during part of a fiscal
year regardless of the reason for the Termination of Employment of the
Executive.
(d) During the Employment Period the Executive and the eligible members of
the Executive's family ("Dependents") who participated (or otherwise
were provided coverage) on the Commencement Date and continue to be
eligible for participation in any Welfare Plan, will receive all such
benefits under the Welfare Plans to the extent applicable generally to
other peer executives of Fidelity Southern, the Bank and Affiliates
and their Dependents similarly situated, but in no event will the
Welfare Plans
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provide benefits for the Executive and Dependents that are less
favorable, in the aggregate, than the most favorable benefits provided
under the Welfare Plans in effect at any time during the Employment
Period.
(e) During the Employment Period, Fidelity Southern will maintain in place
the Individual Life Insurance Policy.
(f) During the Employment Period, the Executive will be entitled to fringe
benefits in accordance with the most favorable plans, practices,
programs and policies of Fidelity Southern, the Bank and any Affiliate
in effect for which the Executive qualifies or qualified at any time
during the Employment Period including, if more favorable to the
Executive, as in effect at any time on or after the Change of Control
with respect to other peer executives of Fidelity Southern, the Bank
or any Affiliate.
Section 4. Benefits Upon Termination of Employment.
(a) Provided the Executive executes a "Release" (as defined below) and
does not revoke such Release, the Executive will be entitled to a
Salary Continuance Benefit and a Welfare Continuance Benefit as
hereafter set forth if (i) the Executive has a Termination of
Employment by Fidelity Southern, the Bank or any Affiliate, other than
for Cause, Disability or death, during the period commencing upon the
Commencement Date and ending one year after a Change of Control
("Change of Control Period") or (ii) the Executive has a Termination
of Employment by the Executive for Good Reason during the Change of
Control Period. Any Termination of Employment by the Executive will be
communicated by Notice of Termination to Fidelity Southern given in
accordance with Section 23(b). For purposes of this Agreement, a
"Notice of Termination" means a written notice which (i) indicates the
specific termination provision in this Section relied upon; (ii) to
the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for the Termination of
Employment under the provision so indicated and (iii), if applicable,
indicates the date of the Termination of Employment, which shall not
be less than 30 days and more than 60 days after the giving of such
notice. The term "Release" means a general release that releases
Fidelity Southern, the Bank, their Affiliates, shareholders,
directors, officers, employees, employee benefit plans,
representatives, and agents and their successors and assigns from any
and all employment related claims the Executive or the Executive's
successors and beneficiaries might then have against them (excluding
any claims for vested benefits under any employee pension plan of
Fidelity Southern, the Bank or the Affiliates).
(b) The Salary Continuance Benefit will be the excess of (i) the
Executive's Final Compensation over (ii) the aggregate amount payable
under Section 14. The Salary Continuance Benefit will be made net of
all required
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Federal and State withholding taxes and similar required withholdings
and authorized deductions. The Salary Continuance Benefit shall be
payable to the estate of the Executive upon the death of the Executive
after the amounts become payable. If the Executive is not a Specified
Employee, the Salary Continuance Benefit will be payable in 24 equal
semi-monthly installments commencing on the 15th or last day of the
month immediately following the date of the Termination of Employment,
whichever date occurs first, and then continuing on the 15th and last
day of each calendar month thereafter until all such installments are
paid. If the Executive is a Specified Employee, the Salary Continuance
Benefit shall not be payable until the first 15th or last day of the
month which is at least six months after the Executive's Termination
of Employment. All installments, which would have otherwise been
required to be made over such six-month period if the Executive had
not been a Specified Employee, shall be paid to the Executive in one
lump sum payment as soon as administratively feasible after the first
15th or last day of the month which is at least six months after the
Executive's Termination of Employment. After the lump sum payment, the
remaining semi-monthly installments (each equal to 1/24 of the Salary
Continuance Benefit) will continue on the 15th and last day of each
calendar month until all such installments are paid.
(c) During the Severance Period, the Executive and the Executive's
Dependents will continue to be covered by all Welfare Plans in which
the Executive or Dependents were participating immediately prior to
the date of the Executive's Termination of Employment, subject to the
eligibility requirements of such Welfare Plans on the date of the
Termination of Employment (the "Welfare Continuance Benefit"). Any
changes to any Welfare Plan during the Severance Period will be
applicable to the Executive and his Dependents as if he continued to
be an employee of Fidelity Southern, the Bank or any Affiliate.
Fidelity Southern or the Bank will pay, or they shall cause an
Affiliate to pay, all or a portion of the cost of the Welfare
Continuance Benefit for the Executive and his Dependents under the
Welfare Plans on the same basis as applicable, from time to time, to
active employees covered under the Welfare Plans and the Executive
will pay any additional costs comparable to those costs paid by active
executives. If such participation in any one or more of the Welfare
Plans included in the Welfare Continuance Benefit is not possible
under the terms of the Welfare Plan or any provision of law would
create any adverse tax effect for the Executive or Fidelity Southern,
the Bank or any Affiliate due to such participation, Fidelity Southern
or the Bank will provide, or will cause an Affiliate to provide,
substantially identical benefits directly or through an insurance
arrangement or pay the Executive's costs for such Welfare Plan if
continued by the Executive, including as permitted under ERISA. The
Welfare Continuance Benefit as to any Welfare Plan will cease if and
when the Executive has obtained coverage under one or more welfare
benefit plans of a subsequent
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employer that provide for equal or greater benefits to the Executive
and his Dependents with respect to the specific type of benefit
provided under the applicable Welfare Plan. Notwithstanding any other
provision of this Section 4(c), if the Executive is a Specified
Employee and if Fidelity determines that any portion of the Welfare
Benefit is subject to Section 409A of the Code, then to the extent
necessary to avoid taxation under Section 409A, the Executive will be
required to pay for the Welfare Benefit during the six-month period
following his Termination of Employment; provided; however, that at
the end of such six-month period, Fidelity will reimburse the
Executive for such payments.
(d) Fidelity Southern shall maintain the Individual Life Insurance Policy
after the Executive's Termination of Employment only if such
termination is due to retirement (as such term is determined by the
Board). Notwithstanding the previous sentence, if the Executive is a
Specified Employee and if Fidelity determines that the maintenance of
the Individual Life Insurance Policy is subject to Section 409A of the
Code, then to the extent necessary to avoid taxation under Section
409A, the Executive will be required to pay for the maintenance of the
Individual Life Insurance Policy during the six-month period following
his Termination of Employment; provided; however, that at the end of
such six-month period, Fidelity will reimburse the Executive for such
payments.
(e) If the Executive violates any of the undertakings set forth in
Sections 10, 11, 12 and 13 of this Agreement after the Termination of
Employment, any additional compensation and benefits under this
Section 4 shall cease; except that the benefits under Section 4(d)
shall continue to be available under the terms of the Individual Life
Insurance Policy to the extent set forth in Section 4(d).
(f) (i) Fidelity Southern shall engage the independent accounting firm
regularly utilized by Fidelity Southern ("Accounting Firm") to
provide to Fidelity Southern and the Executive, at Fidelity
Southern's expense, a determination of whether any
compensation payable to the Executive pursuant to this
Agreement (alone or when added to all other compensation paid
or payable to the Executive by Fidelity, the Bank or any
Affiliate) during the Severance Period constitutes a
"parachute payment" ("Parachute Payment") as defined in
Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"). If the Accounting Firm determines that any such
compensation payable to the Executive constitutes a Parachute
Payment, the Accounting Firm shall also determine: (A) the
amount of the excise tax to be imposed under Section 4999 of
the Code; (B) whether the Executive would realize a greater
amount after Federal and Georgia income taxes (assuming the
highest marginal rates then in effect apply) if such
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compensation payable to the Executive were reduced (assuming
latest payments are reduced first) so that no amount payable to
the Executive hereunder (alone or when added to all other
compensation paid or payable to the Executive by Fidelity, the
Bank or any Affiliate) constitutes a Parachute Payment than the
Executive would realize after Federal and Georgia income taxes
(assuming the highest marginal rates then in effect apply) and
after imposition of the excise tax under Section 4999 of the Code
if the amounts payable to the Executive hereunder were not so
reduced and (C), if the Accounting Firm determines in (B) above
that the Executive would realize a higher amount if the
compensation payable to the Executive were so reduced, the amount
of the reduced benefit. All determinations shall be made on a
present value basis. The Accounting Firm shall provide to
Fidelity Southern and to the Executive a written report of its
calculations and determinations hereunder as soon as practicable.
No later than fifteen (15) days following receipt by the
Executive of the report from the Accounting Firm, the Executive
will notify Fidelity Southern in writing of any disagreement with
said report, and, in such case, Fidelity Southern shall direct
the Accounting Firm to promptly discuss its determinations with
an accountant or other counsel designated by the Executive in the
Executive's written notice and seek to reach an agreement
regarding same no later than fifteen (15) days after receipt of
the Executive's notice, with Fidelity Southern and the Executive,
each bearing the cost of their own accountants, counsel and other
advisers. If no agreement can be reached, the matter shall be
promptly submitted to binding arbitration under the rules of the
American Arbitration Association before a single arbitrator in
Atlanta, Georgia. The determinations so made shall be binding on
the parties. If it is determined hereunder that the Executive
would realize a greater amount after Federal and Georgia income
taxes (assuming the highest marginal rates then in effect apply)
if the compensation payable to the Executive pursuant to this
Agreement were reduced (assuming latest payments are reduced
first) so that no amount payable to the Executive hereunder
constitutes a Parachute Payment, then the amounts payable to the
Executive pursuant to this Agreement shall be so reduced.
(ii) As a result of the uncertainty in the application of Sections
280G and 4999 of the Code, it is possible that amounts will have
been paid or distributed to the Executive that should not have
been paid or distributed under this Section 4(f)
("Overpayments"), or that additional amounts should be paid or
distributed to the Executive under this Section 4(f)
("Underpayments"). If based on either the assertion of a
deficiency by the Internal Revenue Service against Fidelity or
the Executive, which assertion has a high probability of
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success, or controlling precedent or substantial authority, an
Overpayment has been made, that Overpayment will be treated for
all purposes as a loan ab initio that the Executive must repay to
Fidelity immediately together with interest at the applicable
Federal rate under Section 7872 of the Code; provided, however,
that no loan will be deemed to have been made and no amount will
be payable by the Executive to Fidelity unless, and then only to
the extent that, the deemed loan and payment would either reduce
the amount on which the Executive is subject to tax under Section
4999 of the Code or generate a refund of tax imposed under
Section 4999 of the Code. If based upon controlling precedent or
substantial authority, an Underpayment has occurred, the amount
of that Underpayment will be paid to the Executive promptly by
Fidelity. Whether an Overpayment or Underpayment has occurred may
be determined in substantially the same manner as the original
determination.
(iii) Fidelity and the Executive shall each provide the Accounting
Firm access to and copies of any books, records and documents in
the possession of Fidelity or the Executive, as the case may be,
reasonably requested by the Accounting Firm, and otherwise
cooperate with the Accounting Firm in connection with the
preparation and issuance of the determinations and calculations
contemplated by this Section 4(f).
(iv) The federal, state and local income or other tax returns filed by
the Executive shall be prepared and filed on a consistent basis
with the determination with respect to the excise tax payable by
the Executive. The Executive, at the request of Fidelity, shall
provide Fidelity true and correct copies (with any amendments) of
his federal income tax return as filed with the Internal Revenue
Service and corresponding state and local tax returns, if
relevant, as filed with the applicable taxing authority, and such
other documents reasonably requested by Fidelity, evidencing such
conformity.
Section 5. Outplacement Services.
If the Executive is entitled to a Severance Benefit under Section 4, the
Executive also will be entitled in addition to receive complete outplacement
services, including job search, interview skill services, job retaining and
education and resume preparation, paid by Fidelity Southern up to a total cost
of $20,000. The services will be provided by a nationally or regionally
recognized outplacement organization selected by the Executive with the approval
of Fidelity Southern (which approval will not be unreasonable withheld). The
services will be provided for up to two (2) years after the Executive's
Termination of Employment or until the Executive obtains full-time employment,
whichever occurs first.
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Section 6. Death.
If the Executive dies while receiving a Welfare Continuation Benefit, the
Executive's Dependents will continue to be covered under all applicable Welfare
Plans during the remainder of the Severance Period.
Section 7. Setoff.
(a) Except as otherwise provided in Section 7(c) below, payment of a
Severance Benefit will be in addition to any other amounts otherwise
then currently payable to the Executive, including any accrued but
unpaid vacation pay or deferred compensation. No payments or benefits
payable to or with respect to the Executive pursuant to this Agreement
will be reduced by any amount the Executive may earn or receive from
employment with another employer or from any other source. In no event
will the Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement and, except as
provided in the last sentence of Section 4(c) with respect to the
Welfare Continuation Benefit or in Section 5 with respect to
outplacement services, such amounts will not be reduced whether or not
the Executive obtains other employment.
(b) Nothing in this Agreement will limit or otherwise affect such rights
as the Executive may have under any other contract or agreement with
Fidelity Southern, the Bank or Affiliates. Amounts which constitute
vested benefits or which the Executive is otherwise entitled to
receive under any plan, policy, practice or program of or any contract
or agreement (collectively, "programs") with Fidelity Southern, the
Bank or Affiliates at or subsequent to the Executive's Termination of
Employment will be payable in accordance with such program.
(c) The total amount payable hereunder for Salary Continuance Benefits and
consideration for the non-compete, non-solicitation and non-disclosure
provisions (as set forth in Section 14) shall not exceed the
Executive's Final Compensation. Fidelity Southern, the Bank or an
Affiliate and the Executive may be parties to other agreements,
policies, plans, programs or arrangements relating to the Executive's
employment. This Agreement shall be construed and interpreted so that
the Salary Continuance Benefit, Welfare Continuance Benefit and other
payments (including, but not limited to, payments described in Section
14 below) hereunder are paid or made available only to the extent that
similar amounts are not paid or made available to the Executive under
any other similar agreements, policies, plans, programs or
arrangements. Without limiting the foregoing, any Salary Continuance
Benefit, Welfare Continuance Benefit and other payments (including,
but not limited to, payments described in Section 14 below) payable
under this Agreement shall be reduced by any
13
other compensation, severance pay, continued welfare benefits,
non-compete payments or other similar amounts that the Executive
receives under any employment or employment-related agreement with
Fidelity Southern, the Bank or any Affiliate and under any other
similar agreements, policies, plans, programs or arrangements covering
the Executive with respect to Fidelity Southern, the Bank or any
Affiliate; it being the intent of both the Executive and Fidelity
Southern, the Bank or any Affiliate not to provide to the Executive
any duplicative payments, severance pay or welfare benefits hereunder.
(d) To the extent that federal, state or local law requires Fidelity
Southern, the Bank or an Affiliate to provide notice and/or make a
payment to the Executive because of an involuntary Termination of
Employment, the severance pay available under this Agreement for
periods for which the Executive is not required to report to work
shall be reduced, but not below zero, by the amount of any such
mandated payments.
Section 8. No Interest in Benefit.
No interest of the Executive or any Beneficiary, or any right to receive any
payment or distribution hereunder, will be subject in any manner to sale,
transfer, assignment, pledge, attachment, garnishment or other alienation or
encumbrance of any kind, nor may such interest or right to receive a payment or
distribution be taken, voluntarily or involuntarily, for the satisfaction of the
obligation or debts of, or other claims against, the Executive or Beneficiary,
including claims for alimony, support, separate maintenance, and claims in
bankruptcy proceedings.
Section 9. Benefits Unfunded.
All rights under this Agreement of the Executive and Beneficiaries will at all
times be entirely unfunded, and no provision will at any time be made with
respect to segregating any assets of Fidelity or any Affiliate for payment of
any amounts due hereunder. The Executive and Beneficiaries will have only the
rights of general unsecured creditors of Fidelity.
Section 10. Covenant Not to Compete.
The Executive agrees that during his employment with Fidelity Southern or the
Bank and for a period of twelve (12) months after the Executive's Termination of
Employment with Fidelity Southern or the Bank for any reason, that the Executive
shall not, on his own behalf or on another's behalf, work in any management or
executive capacity in the business of providing banking or banking related
services. This restriction shall apply only within a 50-mile radius of 0000
Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000. The Executive agrees that because of the
nature of Fidelity Southern's and the Bank's business, the nature of the
Executive's job responsibilities, and the nature of the Confidential Information
and Trade Secrets of Fidelity Southern and the Bank which Fidelity Southern and
the Bank will give the Executive access to, any breach of this
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provision by the Executive would result in the inevitable disclosure of Fidelity
Southern's and the Bank's Trade Secrets and Confidential Information to its
direct competitors.
Section 11. Non-Solicitations of Customers.
Executive agrees that during his employment with Fidelity Southern or the Bank
and for a period of twelve (12) months after the Executive's Termination of
Employment with Fidelity Southern or the Bank for any reason, the Executive will
not will not directly or indirectly solicit, contact, call upon, communicate
with or attempt to communicate with any client or customer of Fidelity Southern
or the Bank for the purpose of providing banking or banking related services.
This restriction shall apply only to any client or customer of Fidelity Southern
or the Bank with whom the Executive had material contact during the last twelve
months of the Executive's employment with Fidelity Southern or the Bank.
"Material contact" means interaction between the Executive and the client or
customer which takes place to further the business relationship. "Clients" and
"customers" include, but are not limited to, depositors and commercial loan
customers.
Section 12. Non-Solicitations of Employees.
The Executive agrees that during his employment with Fidelity Southern or the
Bank and for a period of twelve (12) months after the Executive's Termination of
Employment with Fidelity Southern or the Bank for any reason, the Executive will
not recruit, hire or attempt to recruit or hire, directly or by assisting
others, any other employee of Fidelity Southern or the Bank with whom the
Executive had material contact during the Executive's employment with Fidelity
Southern or the Bank. This restriction shall apply only to recruiting, hiring or
attempting to recruit or hire any employee for the purpose of working in the
business of providing banking or banking related services.
Section 13. Confidentiality, Proprietary Information and Inventions.
(a) During the term of the Executive's employment with Fidelity Southern
or the Bank, and at all times thereafter, the Executive shall not use
or disclose to others, without the prior written consent of Fidelity
Southern and the Bank, any Trade Secrets (as hereinafter defined) of
Fidelity Southern or the Bank, or any Affiliate or any of their
customers, except for use or disclosure thereof in the course of the
business of Fidelity Southern or the Bank (or that of any Affiliate),
and such disclosure shall be limited to those who have a need to know.
(b) During the term of the Executive's employment with Fidelity Southern
or the Bank, and for twelve (12) months after the Executive's
Termination of Employment with Fidelity Southern or the Bank for any
reason, the Executive shall not use or disclose to others, without the
prior written consent of Fidelity Southern and the Bank, any
Confidential Information (as hereinafter defined) of Fidelity Southern
or the Bank, or any Affiliate or any of their customers, except for
use or disclosure thereof in the course
15
of the business of Fidelity Southern or the Bank (or that of any
Affiliate), and such disclosure shall be limited to those who have a
need to know.
(c) Upon a Termination of Employment with Fidelity Southern or the Bank
for any reason, the Executive shall not take with him any documents or
data of Fidelity Southern or the Bank or any Affiliate or of any
customer thereof or any reproduction thereof and agrees to return any
such documents and data in his possession at that time.
(d) The Executive agrees to take reasonable precautions to safeguard and
maintain the confidentiality and secrecy and limit the use of all
Trade Secrets and Confidential Information of Fidelity Southern, the
Bank and all subsidiaries and customers thereof.
(e) 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 include all information and data which
is protectable as a legal form of property or non-public information
of Fidelity Southern or the Bank or their customers, excluding any
information or data which constitutes a Trade Secret.
(f) Trade Secrets and Confidential Information shall not include any
information (A) which becomes publicly known through no fault or act
of the Executive; (B) is lawfully received by the Executive from a
third party after a 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 the
Executive and entirely unrelated to the business of providing banking
or banking related services.
(g) The Executive agrees that any and all information and data originated
by the Executive while employed by Fidelity Southern or the Bank and,
where applicable, by other employees or associates under the
Executive's direction or supervision in connection with or as a result
of any work or service performed under the terms of the Executive's
employment, shall be promptly disclosed to Fidelity Southern and the
Bank, shall become Fidelity Southern and/or the Bank's property, and
shall be kept confidential by the Executive. Any and all such
information and data, reduced to written, graphic or other tangible
form and any and all copies and reproduction thereof shall be
furnished to Fidelity Southern and the Bank upon request and in any
case shall be returned to Fidelity Southern and the Bank upon the
Executive's Termination of Employment with Fidelity Southern or the
Bank.
(h) The Executive agrees that the Executive will promptly disclose to
Fidelity Southern and the Bank all inventions or discoveries made,
conceived or for the first time reduced to practice in connection with
or as a result of the
16
work and/or services the Executive performs for Fidelity Southern or
the Bank.
(i) The Executive agrees that he will assign the entire right, title and
interest in any such invention or inventions and any patents that may
be granted thereon in any country in the world concerning such
inventions to Fidelity Southern and the Bank. The Executive further
agrees that the Executive will, without expense to Fidelity Southern
or the Bank, execute all documents and do all acts which may be
necessary, desirable or convenient to enable Fidelity Southern and the
Bank, at its expense, to file and prosecute applications for patents
on such inventions, and to maintain patents granted thereon.
Section 14. Consideration for Non-Compete, Non-Solicitation and Non-Disclosure
Provisions.
In consideration of the Executive's undertakings set forth in Sections 10, 11,
12 and 13 above, with respect to periods after a Termination of Employment,
Fidelity Southern or the Bank will pay the Executive the Non-Compete Benefit. If
the Executive is not a Specified Employee, the Non-Compete Benefit will be
payable in 24 equal semi-monthly installments, each installment in an amount
equal to forty percent (40%) of his Annual Base Salary in effect immediately
prior to the Termination of Employment divided by 24, commencing on the 15th or
last day of the month immediately following the date of the Termination of
Employment, whichever date occurs first, and then continuing on the 15th and
last day of each calendar month thereafter until all such installments are paid.
If the Executive is a Specified Employee, the Non-Compete Benefit shall not
become payable until the first 15th or last day of the month which is at least
six months after the Executive's Termination of Employment. All installments,
which would have otherwise been required to be made over such six-month period
if the Executive had not been a Specified Employee, shall be paid to the
Executive in one lump sum payment as soon as administratively feasible after the
first 15th or last day of the month which is at least six months after the
Executive's Termination of Employment. After the lump sum payment, the remaining
semi-monthly installments (each equal to forty percent (40%) of the Executive's
Annual Base Salary in effect immediately prior to the Termination of Employment
divided by 24) will continue on the 15th and last day of each calendar month
until all such installments are paid. If the Executive violates any of the
undertakings set forth in Sections 10, 11, 12 and 13 of this Agreement, the
Executive waives and forfeits any and all rights to any further payments under
this Agreement, including but not limited to, any additional payments,
compensation or Severance Benefits he may otherwise be entitled to receive under
this Agreement.
Section 15. Specific Performance.
Because of the Executive's knowledge and experience, the Executive agrees that
Fidelity Southern, the Bank and Affiliates shall be entitled to specific
performance, an injunction, temporary injunction or other similar equitable
relief in addition to all other rights and remedies it might have for any
violation of the undertakings set forth in Sections 10, 11,
17
12 or 13 of this Agreement. In any such court proceeding or arbitration, the
Executive will not object thereto and claim that monetary damages are an
adequate remedy.
Section 16. Indemnification of the Executive.
Fidelity Southern, the Bank or Affiliates shall indemnify the Executive and
shall advance reasonable reimbursable expenses incurred by the Executive in any
proceeding against the Executive, including a proceeding brought in the right of
Fidelity Southern, the Bank or any Affiliate, as a director or officer of
Fidelity Southern, the Bank or any Affiliate thereof, except claims and
proceedings brought directly by Fidelity Southern, the Bank or any Affiliate
against the Executive, to the fullest extent permitted under the Georgia
Business Corporation Code, and the Articles of Incorporation and By-Laws of
Fidelity Southern, the Bank or any applicable Affiliate, as such Code, Articles
or By-Laws may be amended from time to time hereafter. Such indemnities and
advances shall be paid to the Executive on the next normal payroll payment date
after the Executive's rights to such amounts are no longer in dispute; provided,
however, that if the Executive is a Specified Employee such payments shall not
be made before the date that is six months after the date of the Executive's
Termination of Employment.
Section 17. Applicable Law.
This Agreement will be construed and interpreted in accordance with the laws of
the State of Georgia without reference to its conflict of laws rules.
Section 18. No Employment Contract.
Nothing contained in this Agreement shall be construed to be an employment
contract between the Executive and Fidelity.
Section 19. Severability.
In the event any provision of this Agreement is held illegal or invalid, the
remaining provisions of this Agreement will not be affected thereby.
Section 20. Successors.
(a) The Agreement will be binding upon and inure to the benefit of
Fidelity Southern, the Bank, Affiliates, the Executive and their
respective heirs, representatives and successors.
(b) Fidelity Southern and the Bank will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of Fidelity
Southern, the Bank or Affiliates, as the case may be, to assume
expressly and agree to perform this Agreement in the same manner and
to the same extent that Fidelity Southern and the Bank would be
required to perform it if no such succession had taken place. As used
in this Agreement, "Fidelity Southern" will mean Fidelity Southern as
herein defined and any
18
successor to its business and/or assets which assumes this Agreement
by operation of law or otherwise.
Section 21. Litigation Expenses.
(a) Fidelity Southern and the Bank agree to pay or reimburse the Executive
promptly as incurred, to the full extent permitted by law, all legal
fees and expenses which the Executive may reasonably incur as a result
of any contest (regardless of the outcome thereof unless a court of
competent jurisdiction determines that the Executive acted in bad
faith in initiating the contest) by Fidelity Southern, the Bank, any
Affiliate, the Executive or others regarding the validity or
enforceability of, or liability under, any provision of this Agreement
(including as a result of any contest by the Executive about the
amount of any payment pursuant to this Agreement), plus in each case
interest on any delayed payment at the applicable Federal rate
provided for in the Internal Revenue Code Section 7872 (f)(2)(A);
provided however, that the reasonableness of the fees and expenses
must be determined by an independent arbitrator, using standard legal
principles, mutually agreed upon by Fidelity Southern or the Bank, as
the case may be, and the Executive in accordance with rules set forth
by the American Arbitration Association. Such payments and
reimbursements shall be paid to the Executive or on the Executive's
behalf on or by the next normal payroll payment date after the
Executive's rights to such amounts are no longer in dispute; provided,
however, that if the Executive is a Specified Employee such payments
shall not be made before the date that is six months after the date of
the Executive's Termination of Employment.
(b) If there is any dispute between Fidelity Southern, the Bank or any
Affiliate and the Executive, in the event of any Termination of
Employment by Fidelity Southern, the Bank or Affiliate or by the
Executive, then, unless and until there is a final, nonappealable
judgment by a court of competent jurisdiction declaring that the
Executive is not entitled to benefits under this Agreement, Fidelity
will pay or cause to be paid all amounts, and provide all benefits, to
the Executive and/or the Executive's family or other Beneficiaries, as
the case may be, that Fidelity or any Affiliate would be required to
pay or provide pursuant to this Agreement. Fidelity Southern, the Bank
and Affiliates will not be required to pay any disputed amounts
pursuant to this subsection except upon receipt of an undertaking
(which may be unsecured) by or on behalf of the Executive to repay all
such amounts to which the Executive is ultimately adjudge by such
court not to be entitled.
Section 22. Future Employers.
Fidelity Southern, the Bank or any Affiliate may notify anyone employing the
Executive or evidencing an intention to employ the Executive as to the existence
and provisions of
19
this Agreement and may provide any such person or organization a copy of this
Agreement. The Executive agrees that for a period of twelve (12) months after
the Executive's Termination of Employment with Fidelity Southern or the Bank for
any reason, the Executive will provide Fidelity Southern and the Bank the
identity of any employer the Executive goes to work for along with the
Executive's job title and anticipated job duties with such employer.
Section 23. Miscellaneous.
(a) Amendments/Waivers. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is
agreed to in writing and the writing is signed by the Executive and
Fidelity Southern and the Bank. A waiver of any breach of or
compliance with any provision or condition of this Agreement is not a
waiver of similar or dissimilar provisions or conditions. This
Agreement may be executed in one or more counterparts, all of which
will be considered one and the same agreement.
(b) Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be
deemed to have been given upon receipt when delivered by hand or upon
delivery to the address of the party determined pursuant to this
Section 23 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 parties:
If to Fidelity Southern or the Bank:
Fidelity Southern Corporation
0000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
If to the Executive:
Xxxxx Xxxxxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxxx, Xxxxxxx 00000
(c) Confidentiality. The Executive agrees that the Executive will not
discuss the Executive's employment and resignation or termination
(including the terms of this Agreement) with any representatives of
the media, either directly or indirectly, without the prior written
consent and approval of Fidelity Southern and the Bank.
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Section 24. Entire Agreement.
No agreement or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by a party which is not
expressly set forth in this Agreement. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof.
Section 25. Compliance with Section 409A.
This Agreement is intended to satisfy the requirements of Code Section 409A and
shall be construed and interpreted in accordance therewith.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
FIDELITY SOUTHERN CORPORATION
By: /s/ Xxxxx X. Xxxxxx, Xx.
------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Chairman
FIDELITY BANK
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
EXECUTIVE
/s/ Xxxxx Xxxxxxxx
----------------------------------------
Xxxxx Xxxxxxxx
22
