EXHIBIT 10.2
FIDELITY SOUTHERN CORPORATION
FIDELITY BANK
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the 17th day
of March, 2005, by and among FIDELITY SOUTHERN CORPORATION ("Fidelity"), a
Georgia Corporation, FIDELITY BANK ("Bank"), a Georgia corporation, and H.
XXXXXX XXXXXXX, XX. ("Xxxxxxx").
WHEREAS, Xxxxxxx is the Vice President of Fidelity and President of the
Bank;
WHEREAS, Fidelity and the Bank agree to continue to employ Xxxxxxx as Vice
President of Fidelity and as President of the Bank, subject to his election, to
provide the services set forth herein; and
WHEREAS, Xxxxxxx agrees to accept such employment and to continue to
provide such services in accordance with the terms and conditions of this
Agreement;
NOW, THEREFORE, in consideration of the mutual promises herein made and of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT/DUTIES.
(a) Fidelity shall employ Xxxxxxx as Vice President and the Bank
shall employ Xxxxxxx as President during the term of his employment as set forth
in this Agreement and Xxxxxxx hereby accepts such employment. Xxxxxxx also
agrees to serve as a member of the Board of Directors of Fidelity (the "Board")
and of the Bank upon his election to such positions.
(b) Xxxxxxx shall be the President of the Bank and shall be
responsible for the day-to-day operations of the business of the Bank and shall
have such authority consistent with such positions and necessary for the conduct
of such business under the general direction of the Chief Executive Officer and
the Board of Directors of the Bank.
(c) Xxxxxxx agrees that he will at all times and to the best of his
ability and experience faithfully perform all of the duties that may be required
of him pursuant to the terms of this Agreement and shall comply with all
policies and procedures adopted by the Board of Directors or any committee
thereof. Xxxxxxx shall devote his full business time to the performance of his
obligations hereunder.
(d) The term of employment of Xxxxxxx shall be for an initial term
of three (3) years, commencing as of January 1, 2005, and may be extended upon
written agreement of the parties.
(e) Xxxxxxx shall be prohibited from serving as a director of other
businesses and as a member of any committee of the board(s) of directors thereof
unless the
Board formally has approved such service before Xxxxxxx becomes any
such director or member of any committee of such board(s) of directors.
2. COMPENSATION.
(a) Base Salary. During the term of the employment of Xxxxxxx
hereunder, Fidelity and Bank will pay to Xxxxxxx an aggregate base salary ("Base
Salary") at the rate of $250,000 per year, payable in arrears in equal
semi-monthly payments, subject to applicable withholdings and deductions. In the
event of the disability of Xxxxxxx, to the extent payments are received by him
under any employer sponsored disability program and/or under any disability
policy the premiums of which are paid by Fidelity or the Bank, the payments
hereunder are to be reduced by an amount equal to any such disability payments
that are intended to replace all or a portion of any compensation Xxxxxxx loses
due to such disability.
(b) Incentive Compensation. Fidelity and the Bank shall pay to
Xxxxxxx the incentive compensation ("Incentive Compensation") determined as set
forth in Attachment A hereto. Xxxxxxx shall be eligible to participate in
incentive plans and programs hereafter adopted as determined by the Board or the
Compensation Committee of the Board.
(c) Employee Benefit Programs. Xxxxxxx shall be eligible to
participate in all employee benefit programs, including medical, dental and
hospitalization programs, now or hereafter made available by Fidelity to its
employees and/or executives, subject to terms and conditions of such programs,
including eligibility. It is understood that Fidelity reserves the right to
modify and rescind any program or adopt new programs in its sole discretion.
(d) Life Insurance for Fidelity. Fidelity may, in its sole
discretion, maintain key man life insurance on the life of Xxxxxxx and designate
Fidelity as the beneficiary. Xxxxxxx agrees to execute any documents necessary
to effect the issuance of such policy. Fidelity and the Bank agree to maintain
the Flexible Premium Adjustable Life Insurance, Universal Life policy issued by
Great-West Life & Annuity Insurance Company ("Great-West") in the face amount of
$500,000 payable to beneficiaries designated by Xxxxxxx or his estate or trust
in lieu thereof, at all times hereafter, regardless of the termination of this
Agreement or Xxxxxxx'x employment hereunder including termination pursuant to
Section 3. The policy purchased and maintained by Fidelity and the Bank with
Great-West, or any substituted policies, shall be maintained by Fidelity during
Xxxxxxx'x employment. Such policy will only be maintained after termination of
Xxxxxxx'x employment if such termination is due to retirement (as such term is
defined by the Board).
(e) Additional Benefits. The Incentive Stock Options granted
December 16, 1999, and April 24, 2002, shall continue in effect and shall not be
affected by any modification or termination of this Agreement.
(f) Vacation. Xxxxxxx is entitled to five (5) weeks vacation each
year. Vacation shall be taken at such times as not to materially interfere with
the business of Fidelity. The vacation time must be taken prior to the end of
each calendar year or as otherwise mutually agreed in writing, otherwise it
expires to the extent not taken.
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(g) Expenses. Fidelity shall pay all reasonable expenses incurred by
Xxxxxxx in the performance of his responsibilities and duties for Fidelity,
including without limitation, dues payable to the Capital City Club and to such
reasonable civic organizations as approved by the Compensation Committee of the
Bank. Xxxxxxx shall submit to Fidelity periodic statements of all expenses so
incurred in accordance with the policies of Fidelity then in effect. Subject to
such reviews as Fidelity may deem reasonably necessary, Fidelity shall, promptly
in the ordinary course of business, reimburse Xxxxxxx for the full amount of all
such expenses advanced by Xxxxxxx.
(h) Automobile. Fidelity will continue to provide Xxxxxxx with an
appropriate automobile for his use and will maintain and insure it at Fidelity's
expense.
3. EARLY TERMINATION.
(a) For Cause. (i) Notwithstanding the foregoing, the Board may
terminate the employment of Xxxxxxx "for cause" (as hereinafter defined) at any
time upon 10 business days' prior written notice. The term "for cause" shall
mean (A) the commission of a felony or any other crime involving moral turpitude
or the pleading of nolo contendere to any such act, (B) the commission of any
act or acts of dishonesty when such acts are intended to result or result,
directly or indirectly, in gain or personal enrichment of Xxxxxxx or any related
person or affiliated company and are intended to cause harm or damage to
Fidelity, the Bank or their subsidiaries, (C) the illegal use of controlled
substances, (D) the misappropriation or embezzlement of assets of Fidelity, the
Bank or their subsidiaries, (E) the breach of any other material term or
provision of this Agreement to be performed by Xxxxxxx (other than pursuant to
Sections 4, 5, 6 or 7) which have not been cured within thirty (30) days of
receipt of written notice of such breach from the Board or the board of
directors of the Bank, or (F) the breach of any provision of Section 4, 5, 6 or
7 during his employment.
(ii) Upon termination for cause, Fidelity and Bank shall have
no further obligation to pay any compensation to Xxxxxxx or make available to
Xxxxxxx participation under any employee benefit program for periods after the
effective date of the termination for cause. In such event, Incentive
Compensation is payable only for the periods of employment. Base Salary which
accrued to the termination date shall be paid on the normal payment date.
(b) Other Termination by Fidelity. (i) Fidelity and the Bank may
terminate the employment of Xxxxxxx for any reason (other than for cause, death
or total disability (as defined in Section 3(d)(iii) below)) at any time upon at
least 90 days' prior written notice. Upon such termination, the Base Salary
which accrued as of the termination date and the Incentive Compensation payable
pursuant to Section 2(b) for the periods of employment will be paid after the
effective date of termination on the normal payment dates. Xxxxxxx'x right to
additional compensation after the effective date of the termination shall cease,
except that if Xxxxxxx executes a "Release" (as defined below) within the time
period specified by Fidelity or the Bank, and does not revoke such Release,
Xxxxxxx will be paid severance equal to the excess of (i) three times his then
Base Salary over (ii) the aggregate amount payable under Section 8 below. Such
severance benefit will be payable in seventy-two (72) equal semi-
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monthly installments commencing on the 15th or last day of the month immediately
following the date of termination, whichever date occurs first, and continuing
on the 15th and last day of each calendar month thereafter until all such
installments are paid. Additionally, if Xxxxxxx timely executes and does not
revoke a Release, the employee welfare benefits as provided in Section 2(c)
shall be continued for eighteen (18) months from the date of termination at a
cost to Xxxxxxx not to exceed the amounts paid by executives for such employee
welfare benefits; provided, however, that if continued participation in any of
such employee welfare benefit plans is not possible under the terms of such
plans or any provision of law would create any adverse tax effect for Xxxxxxx,
Fidelity or the Bank, due to such participation, Fidelity will provide
substantially identical benefits directly or through an insurance arrangement or
pay Xxxxxxx'x costs for such welfare benefits if continued by Xxxxxxx, including
as permitted under ERISA. For purposes of this Agreement, the term "Release"
means a general release that releases Fidelity, 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 Xxxxxxx or Xxxxxxx'x successors and beneficiaries
might then have against them (excluding any claims for vested benefits under any
employee pension plan of Fidelity or the Bank).
(ii) If Xxxxxxx violates any of the undertakings set forth in
Sections 4, 5, 6 and 7 of this Agreement after the termination of his
employment, any additional compensation and benefits under Section 3(b)(i) shall
cease.
(iii) Subsequent to the date of any written notice of
termination provided to Xxxxxxx pursuant to Section 3(b)(i) or by Xxxxxxx to
Fidelity pursuant to Section 3(c)(ii), Fidelity shall engage the independent
accounting firm regularly utilized by Fidelity ("Accounting Firm") to provide to
Fidelity and Xxxxxxx, at Fidelity's expense, a determination of whether any
compensation payable to Xxxxxxx pursuant to Section 3(b)(i) (alone or when added
to all other compensation paid or payable to Xxxxxxx by Fidelity and the Bank)
constitutes a "parachute payment" ("Parachute Payment") as defined in Section
280G of the Internal Revenue Code of 1986, as amended (the "Code"). If the
Accounting Firm determines that any compensation payable to Xxxxxxx pursuant to
Section 3(b)(i) (alone or when added to all other compensation paid or payable
to Xxxxxxx by Fidelity and the Bank) 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 Xxxxxxx 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 Xxxxxxx
pursuant to Section 3(b)(i) were reduced (assuming latest payments are reduced
first) so that no amount payable to Xxxxxxx hereunder (alone or when added to
all other compensation paid or payable to Xxxxxxx by Fidelity and the Bank)
constitutes a Parachute Payment than he would realize after federal and Georgia
income taxes (assuming the highest marginal rates then in effect apply) and
after imposition of the excise tax under Section 4999 of the Code if the amounts
payable to Xxxxxxx hereunder were not so reduced; and (C), if the Accounting
Firm determines in (B) above that Xxxxxxx would realize a higher amount if the
compensation payable to Xxxxxxx were so reduced, the amount of the reductions.
All determinations shall be made on a present value basis. The Accounting Firm
shall provide to Fidelity and to Xxxxxxx a written report of its determinations
hereunder no later than forty-five (45) days prior to the termination date. No
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later than fifteen (15) days following his receipt of the report from the
Accounting Firm, Xxxxxxx will notify Fidelity in writing of any disagreement
with said report, and, in such case, Fidelity shall direct the Accounting Firm
to promptly discuss its determinations with an accountant or counsel designated
by Xxxxxxx in his written notice and seek to reach an agreement regarding same
no later than fifteen (15) days prior to the termination date, with Fidelity and
Xxxxxxx, each bearing the cost of their own accountants or counsel. If no
agreement can be reached within thirty (30) days after the expiration of said
fifteen (15) day period, the matter shall be promptly submitted to binding
arbitration under Section 13 hereof by either party. The determinations so made
shall be binding on the parties. If it is determined hereunder that Xxxxxxx
would realize a greater amount after Federal and Georgia income taxes (assuming
the highest marginal rates then in effect apply) if the compensation payable to
him pursuant to Section 3(b)(i) were reduced (assuming latest payments are
reduced first) so that no amount payable to Xxxxxxx hereunder constitutes a
Parachute Payment, then the amounts payable to Xxxxxxx pursuant to Section
3(b)(i) shall be so reduced.
(iv) 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 Xxxxxxx that should not have been paid or distributed
under this Section 3(b) ("Overpayments"), or that additional amounts should be
paid or distributed to Xxxxxxx under this Section 3(b) ("Underpayments"). If
based on either the assertion of a deficiency by the Internal Revenue Service
against Fidelity or Xxxxxxx, which assertion has a high probability of 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
Xxxxxxx 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
Xxxxxxx to Fidelity unless, and then only to the extent that, the deemed loan
and payment would either reduce the amount on which Xxxxxxx 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
Xxxxxxx promptly by Fidelity. Whether an Overpayment or Underpayment has
occurred may be determined in substantially the same manner as the original
determination.
(v) Fidelity and Xxxxxxx shall each provide the Accounting
Firm access to and copies of any books, records and documents in the possession
of Fidelity or Xxxxxxx, 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 3(b).
(vi) The federal, state and local income or other tax returns
filed by Xxxxxxx shall be prepared and filed on a consistent basis with the
determination with respect to the excise tax payable by Xxxxxxx. Xxxxxxx, 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.
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(c) Termination by Xxxxxxx. (i) Xxxxxxx may terminate his employment
at any time upon at least 90 days' prior written notice to Fidelity and the
Bank. Upon such termination of employment Xxxxxxx'x right to compensation after
the effective date of termination shall cease. The Base Salary which accrued as
of the termination date and the Incentive Compensation payable pursuant to
Section 2(b) will be paid after the effective date of termination under this
Section 3(c) on the normal payment dates.
(ii) Notwithstanding the foregoing, if Fidelity or the Bank
fails to perform any of its material obligations hereunder and such failure
continues for sixty (60) days after written notice thereof by Xxxxxxx to the
Board, termination by Xxxxxxx of this Agreement for such failure shall be deemed
to constitute a termination by Fidelity and the Bank without cause under Section
3(b)(i) of this Agreement. A reduction in the responsibilities and authority of
Xxxxxxx as provided in Section l(b) shall constitute a breach of a material
obligation of Fidelity and Bank hereunder.
(d) Termination Upon Death or Disability.
(i) The employment of Xxxxxxx shall terminate upon his death,
or (10) business days after written notice by Fidelity of termination during the
continuance of the total disability (as hereinafter defined) of Xxxxxxx.
(ii) Upon termination upon death or by Fidelity upon total
disability, Xxxxxxx'x right to compensation after the effective date of
termination shall cease. Base Salary which accrued as of the termination date
will be paid after the effective date of termination under this Section 3(d) on
the normal payment date(s) and any Incentive Compensation will be paid as
provided in Section 2(b). Fidelity and Bank shall have no obligation to pay any
compensation for periods after the effective date of such termination under this
Section 3(d).
(iii) The term "total disability" means the inability of
Xxxxxxx to substantially perform his duties hereunder for a continuous period of
ninety (90) days unless such period is extended in writing by Fidelity, in which
event, for such greater period. Total disability shall be deemed to commence
upon the expiration of such continuous ninety (90) day period or such greater
period, if so extended. In the event of any dispute as to the "total disability"
of Xxxxxxx or the expiration of said ninety (90) day period or such greater
period, if so extended, the matter shall be resolved by the decision of a single
physician, serving as an arbitrator, mutually selected or appointed in
accordance with the rules of the American Arbitration Association, Atlanta,
Georgia. The decision of the arbitrator shall be binding on all parties hereto.
Xxxxxxx agrees to submit medical records requested and to submit to such
examination and testing reasonably requested by such physician.
(e) Life Insurance Policy. Termination of this Agreement or the
benefits payable hereunder for any reason, shall not terminate the duty of
Fidelity and Bank to maintain or continue the life insurance policy with
Great-West pursuant to Section 2(d) hereof, including any substitute plan or
policy hereafter mutually agreed to, during Xxxxxxx'x
__________________
Executive
__________________
Fidelity Southern
__________________
Bank
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employment with Fidelity and Bank or after Xxxxxxx'x termination of employment
if such termination is due to retirement (as such term is determined by the
Board).
4. COVENANT NOT TO COMPETE. Xxxxxxx agrees that during his employment with
Fidelity or Bank and for a period of eighteen (18) months after termination of
Xxxxxxx'x employment with Fidelity or Bank for any reason, that Xxxxxxx 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. Xxxxxxx agrees that because of the nature
of Fidelity's and Bank's business, the nature of Xxxxxxx'x job responsibilities,
and the nature of the Confidential Information and Trade Secrets of Fidelity and
Bank which Fidelity and Bank will give Xxxxxxx access to, any breach of this
provision by Xxxxxxx would result in the inevitable disclosure of Fidelity's and
Bank's Trade Secrets and Confidential Information to its direct competitors.
5. NON-SOLICITATIONS OF CLIENTS AND CUSTOMERS. Xxxxxxx agrees that during
his employment with Fidelity or Bank and for a period of eighteen (18) months
after termination of his employment with Fidelity or Bank for any reason,
Xxxxxxx will not directly or indirectly solicit, contact, call upon, communicate
with or attempt to communicate with any client or customer of Fidelity or Bank
for the purpose of providing banking or banking related services. This
restriction shall apply only to any client or customer of Fidelity or Bank with
whom Xxxxxxx had material contact during the last twelve months of Xxxxxxx'x
employment with Fidelity or Bank. "Material contact" means interaction between
Xxxxxxx 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.
6. NON-SOLICITATIONS OF EMPLOYEES. Xxxxxxx agrees that during his
employment with Fidelity or Bank and for a period of eighteen (18) months after
termination of his employment with Fidelity or Bank for any reason, Xxxxxxx will
not recruit, hire or attempt to recruit or hire, directly or by assisting
others, any other employee of Fidelity or Bank with whom Xxxxxxx had material
contact during Xxxxxxx'x employment with Fidelity or 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.
7. CONFIDENTIALITY, PROPRIETARY INFORMATION AND INVENTIONS.
(a) During the term of Xxxxxxx'x employment with Fidelity or Bank,
and at all times thereafter, Xxxxxxx shall not use or disclose to others,
without the prior written consent of Fidelity and Bank, any Trade Secrets (as
hereinafter defined) of Fidelity or Bank, or any subsidiary thereof or any of
their customers, except for use or disclosure thereof in the course of the
business of Fidelity or Bank (or that of any subsidiary), and such disclosure
shall be limited to those who have a need to know.
(b) During the term of Xxxxxxx'x employment with Fidelity or Bank,
and for eighteen (18) months after termination of his employment with Fidelity
or Bank for any reason, Xxxxxxx shall not use or disclose to others, without the
prior written consent of Fidelity
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and Bank, any Confidential Information (as hereinafter defined) of Fidelity or
Bank, or any subsidiary thereof or any of their customers, except for use or
disclosure thereof in the course of the business of Fidelity or Bank (or that of
any subsidiary), and such disclosure shall be limited to those who have a need
to know.
(c) Upon termination of employment with Fidelity or Bank for any
reason, Xxxxxxx shall not take with him any documents or data of Fidelity or
Bank or any subsidiary or of any customer thereof or any reproduction thereof
and agrees to return any such documents and data in his possession at that time.
(d) Xxxxxxx 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, 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 or 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 Xxxxxxx;
(B) is lawfully received by Xxxxxxx from a third party after termination of
employment without a similar restriction regarding confidentiality and use and
without a breach of this Agreement; or (C) which is independently developed by
Xxxxxxx and entirely unrelated to the business of providing banking or banking
related services.
(g) Xxxxxxx agrees that any and all information and data originated
by Xxxxxxx while employed by Fidelity or Bank and, where applicable, by other
employees or associates under Xxxxxxx'x direction or supervision in connection
with or as a result of any work or service performed under the terms of
Xxxxxxx'x employment, shall be promptly disclosed to Fidelity and Bank, shall
become Fidelity and/or Bank's property, and shall be kept confidential by
Xxxxxxx. 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 and Bank upon request and in any case shall be returned to
Fidelity and Bank upon termination of Xxxxxxx'x employment with Fidelity or
Bank.
(h) Xxxxxxx agrees that Xxxxxxx will promptly disclose to Fidelity
and Bank all inventions or discoveries made, conceived, or for the first time
reduced to practice in connection with or as a result of the work and/or
services Xxxxxxx performs for Fidelity or Bank.
(i) Xxxxxxx 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 and
Bank. Xxxxxxx further agrees that Xxxxxxx
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will, without expense to Fidelity or Bank, execute all documents and do all acts
which may be necessary, desirable, or convenient to enable Fidelity and Bank, at
its expense, to file and prosecute applications for patents on such inventions,
and to maintain patents granted thereon.
8. CONSIDERATION FOR NON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE
PROVISIONS. In consideration of Xxxxxxx'x undertakings set forth in Sections 4,
5, 6 and 7 above, with respect to periods after termination of employment,
Fidelity or the Bank will pay Xxxxxxx thirty-six (36) semi-monthly installments,
each installment in an amount equal to forty percent (40%) of his then Base
Salary divided by twenty-four (24), commencing on the 15th or last day of the
month immediately following the date of termination of employment, whichever
date occurs first, and on the 15th and last day of each calendar month
thereafter until all such installments are paid. If Xxxxxxx violates any of the
undertakings set forth in Sections 4, 5, 6 and 7 of this Agreement, Xxxxxxx
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 he may otherwise be entitled to receive under this Agreement,
whether pursuant to this Section or otherwise.
9. SPECIFIC PERFORMANCE. Because of Xxxxxxx'x knowledge and experience,
Xxxxxxx agrees that Fidelity shall be entitled to specific performance, an
injunction, temporary injunction or other similar relief without the posting of
a bond or other security in addition to all other rights and remedies it might
have for any violation of the undertakings set forth in Sections 4, 5, 6 and 7
of this Agreement. In any such court proceeding, Xxxxxxx will not object thereto
and claim that monetary damages are an adequate remedy.
10. MAXIMUM PAYMENTS. The total amount payable hereunder as severance pay
(as set forth in Section 3(b)(i)) and consideration for the non-compete,
non-solicitation and non-disclosure provisions (as set forth in Section 8) shall
not exceed three times Xxxxxxx'x Base Salary.
11. NO SETOFF. Nothing in this Agreement will limit or otherwise affect
such rights as Xxxxxxx may have under any other contract or agreement with
Fidelity Southern, the Bank or Affiliates, except as specifically set forth in
such contract or agreement. Amounts which constitute vested benefits or which
Xxxxxxx is otherwise entitled to receive under any employee benefit plan,
policy, practice or program of or any contract or agreement (collectively,
"programs") with Fidelity or the Bank at or subsequent to Xxxxxxx'x termination
of employment will be payable in accordance with such programs.
12. INDEMNIFICATION OF XXXXXXX. Fidelity shall indemnify Xxxxxxx and shall
advance reimbursable expenses incurred by Xxxxxxx in any proceeding against
Xxxxxxx, including a proceeding brought by or in the right of Fidelity, as a
director or officer of Fidelity or any subsidiary thereof, except claims and
proceedings brought by Fidelity against Xxxxxxx, to the fullest extent permitted
under the Articles of Incorporation and By-Laws of Fidelity and the Georgia
Business Corporation Code, as amended from time to time.
13. 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
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when delivered by hand or upon delivery to the address of the party determined
pursuant to this Section when delivered by express mail, overnight courier or
other similar method to such address or by facsimile transmission (provided a
copy is also sent by registered or certified mail or by overnight courier), or
five (5) business days after deposit of the notice in the US mail, if mailed by
certified or registered mail, with postage prepaid addressed to the respective
party as set forth below, which address may be changed by written notice to the
other party:
If to Fidelity:
Fidelity Southern Corporation
0000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Board of Directors
If to Xxxxxxx:
H. Xxxxxx Xxxxxxx, Xx.
c/o Fidelity Southern Corporation
0000 Xxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
14. BINDING EFFECT. This Agreement shall inure to the benefit of and be
binding upon and enforceable by Xxxxxxx and his estate, personal representatives
and heirs, and by Fidelity and its successors and assigns. This Agreement and
the payments hereunder may not be assigned, pledged or otherwise hypothecated by
Xxxxxxx.
15. ENTIRE AGREEMENT. This Agreement, including the Flexible Premium
Adjustable Life Insurance, Universal Life policy and Executive Continuity
Agreement are intended by the parties hereto to constitute the entire
understanding of the parties with respect to the employment of Xxxxxxx as an
employee and officer of Fidelity and election as a member of the Board of
Fidelity and the Bank and supersedes all prior agreements and understandings,
oral or written.
16. BINDING ARBITRATION/ATTORNEY FEES. Except as otherwise specifically
provided herein, including as provided in Section 9 hereof, Specific
Performance, all disputes arising under this Agreement shall be submitted to and
settled by arbitration. Arbitration shall be by one (1) arbitrator selected in
accordance with the rules of the American Arbitration Association, Atlanta,
Georgia ("AAA") by the AAA. The hearings before the arbitrator shall be held in
Atlanta, Georgia and shall be conducted in accordance with the rules existing on
the date thereof of the AAA to the extent not inconsistent with this Agreement.
All reasonable costs and expense incurred in connection with any such
arbitration proceedings and those incurred in any civil action to enforce the
same shall be borne by the party against which the decision is rendered.
17. AMENDMENTS. This Agreement may not be amended or modified except in
writing signed by both parties.
__________________
Executive
__________________
Fidelity Southern
__________________
Bank
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18. 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.
19. FUTURE EMPLOYERS. Fidelity or Bank may notify anyone employing Xxxxxxx
or evidencing an intention to employ Xxxxxxx as to the existence and provisions
of this Agreement and may provide any such person or organization a copy of this
Agreement. Xxxxxxx agrees that for a period of 18 months after termination of
Xxxxxxx'x employment with Fidelity or Bank for any reason, Xxxxxxx will provide
Fidelity and Bank the identity of any employer Xxxxxxx goes to work for along
with Xxxxxxx'x job title and anticipated job duties with any such employer.
20. GOVERNING LAW. This Agreement shall be deemed to be made in and in all
respects shall be interpreted, construed and governed by and in accordance with
the laws of the State of Georgia, excluding its conflicts of laws.
11
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
FIDELITY SOUTHERN CORPORATION
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman, Compensation Committee
FIDELITY BANK
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman, Compensation Committee
XXXXXXX
/s/ H. Xxxxxx Xxxxxxx, Xx.
----------------------------------------
H. Xxxxxx Xxxxxxx, Xx.
12
ATTACHMENT A
INCENTIVE COMPENSATION
For each calendar year during the term of the Agreement, the Compensation
Committee ("Committee") of the Board of Directors of Fidelity will establish in
its sole discretion (after discussion with Xxxxxxx) a target consolidated net
income of Fidelity Southern Corporation and Subsidiaries ("Fidelity") before the
Incentive Compensation provided herein, excluding extraordinary items
(determined in accordance with generally accepted accounting principles)
("Target Income") for such calendar year prior to the commencement of the
calendar year. Xxxxxxx will be paid incentive compensation ("Incentive
Compensation") in cash depending upon the percentage in excess of Target Income
achieved for such calendar year.
In the event the consolidated net income of Fidelity for any calendar year
before the Incentive Compensation provided herein and excluding extra-ordinary
items, determined in accordance with generally accepted accounting principles
("Income") achieved exceeds 90% of the Target Income but is no more than 100% of
the Target Income, the Incentive Compensation shall be the product of (i)
$50,000 times (ii) the incremental percentage of the Target Income between 90%
of the Target Income and 100% of the Target Income. If the Income achieved
exceeds 100% of the Target Income, the Incentive Compensation shall be $50,000
plus the product of (i) $50,000 times (ii) the incremental percentage of the
Target Income between 100% of the Target Income and 105% of the Target Income.
For example, if the percentage of Income achieved is 104% of the Target Income,
the Incentive Compensation is $90,000. No Incentive Compensation will be paid if
the percentage of Target Income achieved is 90% or less. The maximum Incentive
Compensation shall be $100,000.
The Compensation Committee may modify the Target Income for any calendar
year at any time during a calendar year to reflect changes resulting from
changes in accounting principles or practices of Fidelity and changes in the
business plan.
In the event of any dispute as to the achieved Income, it shall be such
amount as set forth in Fidelity's certified financial statements less the amount
of this Incentive Compensation for such calendar year.
The right of Xxxxxxx to receive the Incentive Compensation hereunder
related to a calendar year shall vest on the last day of such calendar year. In
the event Xxxxxxx is entitled pursuant to the Agreement to Incentive
Compensation for a period of less than a full year, the Incentive Compensation
for such year shall vest on the last day of his employment and the amount shall
be determined as set forth hereinabove for the calendar year prorated based upon
the percentage of the year Xxxxxxx was employed under the Agreement.
Payment is to be made in cash promptly after the amount is determined but
in no event more than 90 days after the end of the calendar year. The Committee,
in its sole discretion, during a calendar year may make a non-refundable
prepayment of a portion of the Incentive Compensation to Xxxxxxx if it believes
that the partial payment will not exceed the amount of the Incentive
Compensation for that calendar year.
FIDELITY SOUTHERN CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman, Compensation Committee
FIDELITY BANK
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman, Compensation Committee
XXXXXXX
/s/ H. Xxxxxx Xxxxxxx, Xx.
---------------------------------------
H. Xxxxxx Xxxxxxx, Xx.
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