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EXHIBIT 10(g)
FIDELITY SOUTHERN CORPORATION
EXECUTIVE CONTINUITY AGREEMENT
This Executive Continuity Agreement (this "Agreement") is made as
of
December 31, 2003, between Fidelity
Southern Corporation ("Fidelity Southern")
and Bank (together with Fidelity Southern
collectively referred to as
"Fidelity") and M. Howard Griffith, Jr.
(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 Bank by providing reasonable
employment security to the Executive
and to recognize the prior service of the
Executive in the event of 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 on or
after the date hereof.
Section 1. Definitions. For purposes of this Agreement:
(a)
"Affiliate" means any entity that is, directly or
indirectly
through one or more intermediaries,
controlled by Fidelity Southern or the Bank, as the
case may be.
(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
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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 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), (3), or (4)
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 reorganization,
merger or consolidation, which includes
Fidelity Southern or the Bank, as the case
may be, in which the holders of the Voting
Power of Fidelity Southern or the Bank
immediately prior to such event, do not,
following such reorganization, merger or
consolidation, beneficially own, directly
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or indirectly, more than 75% of the Voting
Power of the entity resulting from such
reorganization, merger or consolidation.
(4) 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 in Control.
(h) "Change in
Control Period" shall have the meaning
set forth in Section 4(a).
(i) "Code"
means the Internal Revenue Code of 1986, as
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
by 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 (a)(8) or under any other
program that provides for pre-tax salary reductions
or compensation deferrals; (ii) plus any amount of
the Executive's compensation which is deferred under
any 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.
(l)
"Disability" means a complete inability of the
Executive substantially to perform the employment
duties of the Executive for Fidelity Southern or
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
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Change of Control; or (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 aggregate annual base salary 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, any of the following events occurs
after a Change of Control which is not corrected
within thirty (30) days after receipt of written
notice from 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 in Control;
(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 in 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 Executive;
(5) the
requiring of the Executive to relocate
the principal business office of the
Executive 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 constitute a
relocation of Executive's principal
business office);
(6) the
failure of Fidelity to continue in
effect any Compensation or Welfare Plan 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
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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 Executive.
(p) "Salary
Continuance Benefit" means the benefit
provided in Section 4(b).
(q) "Severance
Benefit" means a Salary Continuance
Benefit and/or a Welfare Continuance Benefit.
(r) "Severance
Period" means the period beginning on the
date the Executive's employment with Fidelity
terminates, other than for Cause or Disability or
death, and ending on the date one (1) year
thereafter.
(s) "Voting
Power" shall have the meaning set forth in
Section 1(g)(1).
(t) "Welfare
Continuance Benefit" means the benefit
provided in Section 4(c).
(u) "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 ERISA
made available by Fidelity
Southern, the Bank or any Affiliate in which the
Executive is eligible to participate.
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 six (6) months prior to
a Change in Control ("Commencement Date") and ending
upon the earlier of (i) one year after a Change in
Control or (ii) upon termination of employment of
Executive for any reason by 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
greater of (i) the 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 annual base salary rate of the
Executive payable immediately prior to the Change in
Control. During the Employment Period, the Annual
Base Salary will be
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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 of Fidelity to the Executive
under this Agreement. The Annual Base Salary in
effect on the Commencement Date will not be reduced
thereafter nor shall any 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 Affiliate, but in
no event will such plans and other programs and
practices, including policies, provide the Executive
with incentive opportunities, savings opportunities
and retirement and other benefit opportunities, in
each case, less favorable, in the aggregate than
those provided by Fidelity Southern, the Bank or any
Affiliate 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 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
immediately prior to the Change in Control. The
parties agree that 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 Executive.
(d) During the
Employment Period, the Executive and the
eligible Members of the Executive's family
("Dependents") who participated (or otherwise
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 similarly situated, but in no
event will the Welfare Plans provide benefits for
the Executive and Beneficiaries 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.
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(e) 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 Date with respect to other
peer executives of Fidelity Southern, the Bank or
any Affiliate.
Section 4. Benefits Upon Termination of Employment.
(a) The
Executive will be entitled to the Salary
Continuance Benefit and the Welfare Continuance
Benefit as hereafter set forth if (i) the employment
of the Executive with Fidelity Southern, the Bank or
any
