FIDELITY SOUTHERN CORPORATION
FORM OF INCENTIVE STOCK OPTION AGREEMENT
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NUMBER OF
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SHARES
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VESTING SCHEDULE*
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GRANTED TO:
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GRANT DATE
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GRANTED
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Vesting Date
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Shares
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EXPIRATION*
DATE
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PRICE PER
SHARE
$
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* See 3, 5, 6 and 7
below
THIS INCENTIVE
STOCK OPTION AGREEMENT is made as of the ___ day of ____________,
by and between Fidelity Southern Corporation (the
“Company”) and the individual specified above, an
employee of the Company or any parent or subsidiary of the Company
(the “Participant”).
The Company
desires to carry out the purposes of its Fidelity Southern
Corporation 2006 Equity Incentive Plan (the “Plan”),
which is incorporated herein by reference, by affording the
Participant an opportunity to purchase shares of the Company no par
value common stock (the “Common Stock”), as provided in
this Agreement. The option granted hereunder is intended to qualify
as an “Incentive Stock Option” within the meaning of
Section 422 of the Internal Revenue Code of 1986, as
amended.
NOW, THEREFORE, in
consideration of the mutual covenants set forth in this Agreement,
and for other good and valuable consideration, the Company and the
Participant hereby agree as follows:
1. Grant
of Option . The Company, by this Agreement, irrevocably grants
to the Participant the right and option (the “Option”)
to purchase the number of shares of Common Stock specified above
such number being subject to adjustment as provided in
Article XII of the Plan, on the terms and conditions set forth
in the Plan.
2.
Purchase Price . The purchase price of the shares of the
Common Stock covered by this Option shall be the price specified
above per share, said purchase price not being less than the fair
market value of the Common Stock at the time this Option is
granted.
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3. Term
and Vesting of Option .
(a).
Term . The term of the Option shall be for a period of
____________ (___) years from the date of this Agreement, subject
to earlier termination as provided in paragraphs 5, 6 and 7 of this
Agreement and Article VI of the Plan. Except as otherwise
provided in this Agreement, the Option may be exercised in whole or
part at any time during its term to the extent the Option has
vested and the Option has not terminated. Except as provided in
paragraphs 5, 6 and 7 of this Agreement, the Option may not be
exercised at any time unless the Participant has maintained a
continuous employment with the Company, Parent and/or any
Subsidiary from the date of this Agreement to the date of the
exercise of the Option. The Participant shall not have any of the
rights of a shareholder with respect to the shares of Common Stock
covered by the Option until such shares shall be issued to him or
her upon the due exercise of the Option and payment of the purchase
price.
(b).
Vesting . Except as otherwise provided in this Agreement,
the Option shall vest with respect to the number of shares stated
above as of each applicable vesting date provided that the
Participant has been in continuous employment with the Company,
Parent and/or any Subsidiary as of such vesting date.
4.
Non-Transferability . The Option shall not be transferable
otherwise than by will or the laws of descent and distribution, and
during the lifetime of the Participant, may only be exercised by
the Participant or his or her duly appointed legal representative.
More particularly, but without limiting the generality of the
foregoing, the Option may not be assigned, transferred (except as
provided above), pledged, or hypothecated in any way and shall not
be subject to execution, attachment, or similar processes. Any
attempted assignment, transfer, pledge, hypothecation, or other
distribution of the Option contrary to the provisions of this
Agreement and the levy of any execution, attachment, or similar
process upon the Option shall be null and void and without
effect.
5.
Termination of Employment with the Company . In the event of
any termination of the Participant’s continuous employment
with the Company, except as otherwise hereafter provided, Parent
and/or any Subsidiary, the Option shall (except to the extent
vested before termination of the Participant’s employment)
cease to vest. The Participant may exercise the Option to the
extent vested before termination of employment for any reason at
any time within three (3) months after such termination of
employment, but in no event more than ____________ (___) years
after the date of this Agreement. So long as the Participant shall
continue to be an employee of the Company, Parent and/or any
Subsidiary, the Option shall not be affected by any change in the
Participants’ duties or position.
In the event the
Participant’s continuous employment with the Company, Parent
and/or any Subsidiary is terminated by Participant for Good Reason
or by Company, Parent or Subsidiary without Cause within
12 months after a Change in Control (as herein after defined),
the Option shall vest in full upon such termination of employment,
including with respect to the portion of the Option which had not
previously vested. The Participant may exercise the Option (to the
extent not previously exercised) at any time within three
(3) months after such termination of employment.
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“Good
Reason” will exist with respect to the Participant if,
without the Participant’s express written consent, after a
Change of Control:
(a) there
is a reduction in the Participant’s rate of base
salary;
(b) the
Company’s requiring the employee to relocate his or her
residence or his or her principal business office to any place
outside a fifty (50) mile radius from the Company’s
headquarters or such other work location immediately prior to the
Change in Control, except for reasonably required travel on the
Company’s business which is not materially greater than such
travel requirements prior to the Change of Control;
(c) the
Company’s failure to continue in effect any compensation,
welfare or benefit plan in which the Participant is participating
at the time of the Change of Control without substituting plans
providing the Participant with substantially similar or greater
benefits, or the taking of any action by the Company which would
materially and adversely affect the Participant’s
participation in or materially reduce the Participant’s
benefits under any of such plans or deprive the Participant of any
material fringe benefit enjoyed by the Participant at the time of
the Change of Control;
(d) the
Company’s material breach of this Agreement or written
employment agreement, if any, which is not corrected within thirty
(30) days of receipt of written notice of such material breach
from Participant.
The term
“Change in Control” shall mean:
(a) the
acquisition (other than from the Company, its Parent or its
Subsidiaries) by any person, entity or “group” within
the meaning of Sections 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934 (“34 Act”) (excluding, for this
purpose, the Company, its Parent or its Subsidiaries, or any
employee benefit plan of the Company, its Parent or its
Subsidiaries) of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the 34 Act) of more than 50% of
either the then outstanding shares (i) of Common Stock of the
Company or of the combined voting power of the Company’s then
outstanding voting securities entitled to vote generally in the
election of directors, or (ii) of the combined voting power of
the outstanding voting securities of Fidelity Bank
(“FB”) entitled to vote generally for the election of
directors; or
(b) individuals
who, as of the date hereof, constitute the Board of Directors of
the Company (“Incumbent Board”) cease for any reason to
constitute at least a majority of the board of directors, provided
that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by the
Company’s shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall
be considered as though such individual is a member of the
Incumbent Board; or
(c) approval
by the shareholders of the Company of a merger, consolidation or
other reorganization in each case, with respect to which persons
who were the shareholders of the Company and optionees immediately
prior to such merger, consolidation or other
reorganization,
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immediately
thereafter, will not own more than 50% of the combined voting power
entitled to vote generally in the election of directors of the
merged, consolidated or reorganized company’s then
outstanding voting securities, or of the sale of all or
substantially all of the assets of the Company or the sale of all
or substantially all of the assets or voting securities of
FB.
The term
“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 of dishonesty when such act is intended to
result or results, directly or indirectly, in gain or personal
enrichment of Participant or any related persons or affiliated
entity or is intended to cause harm or damage to the Company,
Parent or any Subsidiary;
(c) the
illegal use of controlled substances;
(d) the
use of alcohol so as to have a material adverse effect on the
performance of the Participant’s duties;
(e) the
misappropriation or embezzlement of assets of the Company, Parent
or any Subsidiary; or
(f) the
breach of any other material term of Participant’s employment
that has not been cured within 30 days of receipt of written
notice of such breach from the Company.
6.
Disability of Participant . In the event of any termination
of the Participant’s employment relationship with the Company
by reason of the Participant’s Disability (as determined by
the Committee in its sole discretion), the Participant may exercise
the Option at any time within one (1) year after such
termination to the extent of the number of shares vested on the
date of termination, but in no event more than ____________ (___)
years after the date of this Agreement. The term
“Disability” shall have the meaning as set forth in
Section 22(e)(3) of the Internal Revenue Code.
7. Death
of Participant . If the Participant shall die while an employee
of the Company, Parent or any Subsidiary or shall die within the
three-month period following termination of his employment (except
termination for Cause or voluntary termination by the Participant
or without Good Reason after a Change in Control as provided in
paragraph 5) the Option to the extent vested may be exercised by
any legatee of the Option under the Participant’s will, by
the Participant’s estate or personal representative, or by
any distributee of the Option at any time within one (1) year
after the Participant’s termination of employment, but in no
event more than ____________ (___) years after the date of this
Agreement.
8. Method
of Exercising Option . Subject to the terms and conditions of
this Agreement, the Option may be exercised by giving written
notice to the Company. Such notice shall state the
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election to
exercise the Option and the number of shares with respect to which
it is being exercised and shall be signed by the person who shall
exercise the option. (In the event that the Option shall be
exercised pursuant to paragraph 7 of this Agreement, the notice
shall be accompanied by appropriate proof of the right of such
person to exercise the Option). Such notice shall be accompanied by
payment of the full purchase price of such shares. The shares as to
which the Option shall have been so exercised shall be registered
in the name of the person who shall exercise the Option and a
certificate evidencing such shares shall be delivered to the person
who shall exercise the Option on his or her written order. All
shares that shall be purchased in the exercise of the Option shall
be fully paid and nonassessable.
As a condition to
the issuance of the shares as to which the Option shall be
exercised, the Participant authorizes the Company to withhold from
any regular cash compensation payable to the Participant any taxes
required to be withheld by the Company under federal, state, or
other local law as a result of the exercise of the Option;
provided, however, if t
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