EX-10.(I) DIRECTOR COMPENSATION ARRANGEMENTS



 





EXHIBIT
10(i)




FIDELITY BANK




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 B. Rodrick Marlow (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.






	 	(h)	 	“Change of Control Period” shall have the meaning set forth in
Section 4(a).




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	 	(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;
	 
	 	(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;




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	 	(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 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)	 	“Non-Compete Benefit” means the benefit provided in Section 14.
	 
	 	(q)	 	“Salary Continuance Benefit” means the benefit provided in
Section 4(b).
	 
	 	(r)	 	“Severance Benefit” means a Salary Continuance Benefit and/or a
Welfare Continuance Benefit.
	 
	 	(s)	 	“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 Executive for
Good Reason and ending on the date twelve (12) months thereafter.
	 
	 	(t)	 	“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




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	 	 	 	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.
	 
	 	(u)	 	“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 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





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	 	 	 	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.
	 
	 	(v)	 	“Voting Power” shall have the meaning set forth in Section
1(g)(1).
	 
	 	(w)	 	“Welfare Continuance Benefit” means the benefit provided in
Section 4(c).
	 
	 	(x)	 	“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.





     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 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




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	 	 	 	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 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, 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




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	 	 	 	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
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.




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	 	(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 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)	 	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.






	 	(e)	 	(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





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	 	 	 	 	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 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





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	 	 	 	 or distributed to the Executive that should
not have been paid or distributed under this Section 4(e)
(“Overpayments”), or that additional amounts should be paid or
distributed to the Executive under this Section 4(e) (“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 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(e).
	 
	 	(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



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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.



     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




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	 	 	 	and other payments (including, but not
limited to, payments described in Section 14 below) payable under this
Agreement shall be reduced by any 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 3490 Piedmont Road, Atlanta, Georgia 30305. 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 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.




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	 	(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 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




15









 






	 	 	 	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,
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



16









 






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
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




17









 






	 	 	 	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 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




18









 






	 	 	 	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

     3490 Piedmont Road

     Suite 1550

     Atlanta, Georgia 30305

     Attn: Chief Executive Officer
	 
	 	 	 	If to the Executive:
	 
	 	 	 	     B. Rodrick Marlow

     190 Westchester Way

     Alpharetta, Georgia 30005
	 
	 	(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.





     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/ James B. Miller, Jr.
 	 
	 	 	Name:  	James B. Miller, Jr. 	 
	 	 	Title:  	Chairman 	 
	 



	 	 	 	 	 
	 	FIDELITY BANK

 	 
	 	By:  	/s/ Palmer Proctor
 	 
	 	 	Name:  	Palmer Proctor 	 
	 	 	Title:  	President 	 
	 
	 	EXECUTIVE

 	 
	 	/s/ B. Rodrick
 Marlow
 	 
	 	B. Rodrick Marlow 	 
	 	 	 




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