As Filed with the Securities and Exchange Commission on June 17, 2011
Registration No. 333-                     
 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
Registration Statement Under The Securities Act of 1933
FIDELITY SOUTHERN CORPORATION
(Exact Name of Registrant as Specified in its Charter)
     
Georgia   58-1416811
(State or Other Jurisdiction   (IRS Employer
of Incorporation or Organization)   Identification Number)
3490 Piedmont Road NE, Suite 1550
Atlanta, Georgia 30305
(Address of Principal Executive Offices) (Zip Code)
Fidelity Southern Corporation Equity Incentive Plan
(Full Title of the Plan)
James B. Miller, Jr.
Chairman and Chief Executive Officer
3490 Piedmont Road NE, Suite 1550
Atlanta, Georgia 30305
(404) 240-1504
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
             
Large accelerated filer o   Accelerated filer o   Non-accelerated filer o   Smaller reporting company þ
        (Do not check if a smaller reporting company)    
CALCULATION OF REGISTRATION FEE
                                     
 
              Proposed     Proposed        
              Maximum     Maximum        
        Amount to be     Offering Price     Aggregate     Amount of  
  Title of Securities to be Registered     Registered (1)     Per Share (2)     Offering Price     Registration Fee  
 
Common Stock, no par value
    1,500,000 shares     $ 6.65       $ 9,975,000       $1,158.10
($116.10 per $1,000,000) 		 
 
     
(1)  
Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate number of additional shares that may become issuable to prevent dilution in the event of stock splits, stock dividends or similar transactions.
 
(2)  
Estimated solely for the purpose of calculating the registration fee required by Section 6(b) of the Securities Act, pursuant to Rule 457(c) thereunder, based on $6.65, the average of the high and low prices of the common stock on June 13, 2011, as reported on the NASDAQ Global Select Market.
 
 

 

 

 

EXPLANATORY NOTE
By this Registration Statement, Fidelity Southern Corporation (“Fidelity” or the “Registrant”) is registering an additional 1,500,000 shares of its common stock, no par value, issuable under the Fidelity Southern Corporation Equity Incentive Plan (the “Plan”). Fidelity has previously filed a Registration Statement relating to 750,000 shares of its common stock issuable under the Plan (SEC File No. 333-134054, filed on May 12, 2006). The contents of that prior Registration Statement are incorporated by reference into this Registration Statement pursuant to General Instruction E of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant with the Securities and Exchange Commission (“SEC”) are incorporated herein by reference:
1.  
Annual Report on Form 10-K for the year ended December 31, 2010;
 
2.  
Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2011;
 
3.  
Current Reports on Form 8-K filed on April 25, 2011, May 3, 2011 and May 31, 2011; and
 
4.  
The description of the Registrant’s common stock, no par value, which is contained in the Registrant’s Registration Statement filed on Form 10 dated August 27, 1993, and all amendments or reports filed for the purpose of updating that description.
All documents filed by the Registrant and the Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the dates of filing of such reports and documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein, or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein, modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 6. Indemnification of Directors and Officers.
Sections 14-2-851 and 14-2-857 of the Georgia Business Corporation Code provide that a corporation may indemnify its directors and officers against civil and criminal liabilities. Directors and officers may be indemnified if they acted in good faith and in a manner reasonably believed to be in or not opposed to the best interest of the corporation, if they have not been adjudged liable on the basis of the improper receipt of a personal benefit and, with respect to any criminal action, if they had no reasonable cause to believe their conduct was unlawful. A director or officer may be indemnified against expenses incurred in connection with a derivative suit if he or she acted in good faith and in a manner reasonably believed to be in or not opposed to the best interest of the corporation, except that no indemnification may be made without court approval if such person was adjudged liable for negligence or misconduct in the performance of his or her duty to the corporation. Statutory indemnification is not exclusive of any rights provided by any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
Fidelity’s bylaws contain indemnification provisions that provide that directors and officers of Fidelity will be indemnified if they are successful on the merits or otherwise in the defense of any proceeding or any claim, issue or matter involved in the proceeding. The indemnification provisions also provide that Fidelity will indemnify directors and officers when they meet the applicable standard of conduct, regardless if they are successful in the defense of the proceeding or claim, issue or matter. The applicable standard of conduct is met if the director or officer acted in a manner he or she reasonably believed to be in, or not opposed to, the best interests of Fidelity. The standard of conduct with respect to any criminal action or proceeding is met if the director had no reasonable cause to believe his or her conduct was unlawful. Whether the applicable standard of conduct has been met is determined by the board of directors, the stockholders or independent legal counsel in each specific case.
Fidelity may also provide for greater indemnification than that set forth in its bylaws if it chooses to do so, subject to approval by Fidelity’s stockholders. Fidelity may not, however, indemnify a director for liability arising out of circumstances that constitute exceptions to limitation of a director’s liability for monetary damages, as described below. Fidelity may purchase and maintain insurance on behalf of any director against any liability asserted against such person and incurred by him or her in any such capacity, whether or not Fidelity would have had the power to indemnify against such liability.

 

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In addition, Article 5 of Fidelity’s Articles of Incorporation, subject to certain exceptions, eliminates the potential personal liability of a director for monetary damages to Fidelity and to the stockholders of Fidelity for breach of a duty as a director. There is no elimination of liability for:
  •  
any appropriation, in violation of his duties, of any of our business opportunities;
  •  
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
  •  
the types of liability set forth in the Official Code of Georgia Section 14-2-832; or
  •  
any transaction from which the director derived an improper personal benefit.
The Articles of Incorporation do not eliminate or limit the right of Fidelity or its stockholders to seek injunctive or other equitable relief not involving monetary damages.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Our directors and officers are insured against losses arising from any claim against them as such for wrongful acts or omissions, subject to limitations.
Item 8. Exhibits.
See the Exhibit Index, which is incorporated herein by reference. The Registrant agrees to furnish supplementally a copy of any omitted schedule to the SEC upon request.
Item 9. Undertakings.
  (a)  
The undersigned Registrant hereby undertakes:
  (1)  
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
  (i)  
To include any prospectus required by Section 10(a)(3) of the Securities Act,
 
  (ii)  
To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement,
 
  (iii)  
To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement,
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
  (2)  
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
  (3)  
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

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  (b)  
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof.
 
  (c)  
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

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POWER OF ATTORNEY AND SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia, on June 16, 2011.
         
  FIDELITY SOUTHERN CORPORATION
  		 
  By:   /s/ James B. Miller, Jr.    
    James B. Miller, Jr.   
    Chief Executive Officer and Chairman of the Board
(Principal Executive Officer)  		 
     
     /s/ Stephen H. Brolly    
    Stephen H. Brolly   
    Chief Financial Officer
(Principal Financial and Accounting Officer)  		 
Know all men by these presents, that each person whose signature appears below constitutes and appoints James B. Miller, Jr. and Stephen H. Brolly, or either of them, as attorney-in-fact, with each having the power of substitution, for him in any and all capacities, to sign any amendments to this Registration Statement on Form S-8 and to file the same, with exhibits thereto, and other documents in connection therewith, with the SEC, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
         
Signature   Title   Date
/s/ James B. Miller, Jr.
 
James B. Miller, Jr.
  Chief Executive Officer and Chairman of the Board
(Principal Executive Officer)  		  June 16, 2011
 
       
/s/ Stephen H. Brolly
 
Stephen H. Brolly
  Chief Financial Officer
(Principal Financial and Accounting Officer)  		  June 16, 2011
 
       
/s/ David R. Bockel
 
Major General (Ret) David R. Bockel
  Director    June 16, 2011
 
       
/s/ Millard Choate
 
Millard Choate
  Director    June 16, 2011
 
       
/s/ Donald A. Harp, Jr.
 
Dr. Donald A. Harp, Jr.
  Director    June 16, 2011
 
       
/s/ Kevin S. King
 
Kevin S. King
  Director    June 16, 2011
 
       
/s/ William C. Lankford, Jr.
 
William C. Lankford, Jr.
  Director    June 16, 2011
 
       
/s/ H. Palmer Proctor, Jr.
 
H. Palmer Proctor, Jr.
  Director    June 16, 2011
 
       
/s/ W. Clyde Shepherd III
 
W. Clyde Shepherd III
  Director    June 16, 2011
 
       
/s/ Rankin M. Smith, Jr.
 
Rankin M. Smith, Jr.
  Director    June 16, 2011

 

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EXHIBIT INDEX
The following is a list of Exhibits included as part of this Registration Statement. Items marked with an asterisk are filed herewith.
         
Exhibit No.   Exhibit Name
       
 
  3 (a)  
Amended and Restated Articles of Incorporation of Fidelity Southern Corporation, as amended effective December 16, 2008 (incorporated by reference from Exhibit 3(a) to Fidelity’s Form 10-K for the year ended December 31, 2009)
  3 (b)  
Bylaws of Fidelity Southern Corporation, as amended (incorporated by reference from Exhibit 3(b) to Fidelity’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2007)
  4 (a)  
Form of Stock Certificate (incorporated by reference from Exhibit 4A to Fidelity’s Form S-2 filed November 14, 1997)
  5 *  
Opinion of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
  23 (a)*  
Consent of Ernst & Young LLP
  23 (b)*  
Consent of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (included in the opinion filed as Exhibit 5 to this Registration Statement)
  24    
Power of Attorney (set forth on signature page)
  99 (a)*  
First Amendment to the Fidelity Southern Corporation Equity Incentive Plan dated April 27, 2006
     
*  
Filed herewith.

 

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Exhibit No. 5
June 16, 2011
Fidelity Southern Corporation
3490 Piedmont Road NE, Suite 1550
Atlanta, Georgia 30305
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Fidelity Southern Corporation (“Fidelity”), a Georgia corporation, in connection with the preparation and filing with the Securities and Exchange Commission (the “SEC”) of the Registration Statement on Form S-8 (the “Registration Statement”) relating to the registration under the Securities Act of 1933, as amended (the “Act”), of an additional 1,500,000 shares of Fidelity’s common stock, no par value (the “Shares”), to be offered under Fidelity’s Equity Incentive Plan (the “Plan”).
In connection with this opinion, we have examined and relied upon (a) the Plan, (b) Fidelity’s Articles of Incorporation, filed as Exhibit 3(a) to the Registration Statement, and Bylaws, filed as Exhibit 3(b) to the Registration Statement, and (c) the originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below, and we have undertaken no independent verification with respect thereto. We have assumed the genuineness and authenticity of all documents submitted to us as originals, and the conformity to originals of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of officers of Fidelity and have not sought to independently verify such matters
Based on the foregoing, and in reliance thereon, we are of the opinion that the Shares have been duly and validly authorized, and, when issued and paid for in accordance with the Plan and the provisions of the award agreements relating to awards granted under the Plan, the Shares will be validly issued, fully paid and nonassessable.
This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in law that occur which could affect the opinions contained herein. This opinion is being rendered for the benefit of Fidelity in connection with the matters addressed herein.
Our opinions expressed above are limited to federal and Georgia law, and we express no opinion with respect to the applicability of any other laws.
We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. In addition, we hereby consent to the use of this opinion in the related Section 10(a) Prospectus. In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the SEC promulgated thereunder.
Very truly yours,
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
     
/s/ Jackie G. Prester
 
Jackie G. Prester,
   
Authorized Representative
   

 

 

Exhibit No. 23(a)
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Fidelity Southern Corporation Equity Incentive Plan of our reports dated March 17, 2011, with respect to the consolidated financial statements of Fidelity Southern Corporation and the effectiveness of internal control over financial reporting of Fidelity Southern Corporation included in its Annual Report (Form 10-K) for the year ended December 31, 2010, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Atlanta, GA
June 16, 2011

 

 

Exhibit No. 99(a)
FIRST AMENDMENT TO THE
FIDELITY SOUTHERN CORPORATION
EQUITY INCENTIVE PLAN
WHEREAS, Fidelity Southern Corporation (“Corporation”) has previously adopted the Fidelity Southern Corporation Equity Incentive Plan (“Plan”), reserving the right therein to amend the Plan; and
WHEREAS, the Directors of the Corporation deem it advisable and in the best interest of the Corporation that the Plan be amended to increase the number of shares of Common Stock of the Corporation which are authorized to be issued under the Plan, to extend the term of the Plan other than for purposes of granting Incentive Stock Options, to eliminate certain forms of grant which are authorized under the Plan prior to this Amendment, and to clarify the provisions of the Plan relating to Incentive Awards;
NOW, THEREFORE, subject to the approval of the shareholders of the Corporation, the Plan is hereby amended as follows:
1. The first three sentences of Section 5.02 are deleted and are replaced by the following:
“The maximum aggregate number of shares of Common Stock that may be issued under the Plan from the date of initial adoption shall be 2,250,000. One hundred percent (100%) of such shares may be issued pursuant to Options, any or all of which may be Incentive Stock Options. One-third (750,000) of such shares may be issued in the aggregate pursuant to Awards other than Options.”
2. Section 6.01 is amended by adding, at the end of the existing provision, the following:
“Notwithstanding any other provision of the Plan, including but not limited to any extension of the term of the Plan, any Incentive Stock Option must be granted within ten (10) years from the original date of adoption of the Plan or the original date of shareholder approval of the Plan, if earlier. Accordingly, no Incentive Stock Option may be granted under the Plan after January 18, 2016.”
3. The contents of Article IX (Restricted Stock Units) are deleted from the Plan and no such Awards shall be made from the Plan. The remaining provisions of the Plan which address Restricted Stock Units are deleted as unnecessary.
4. The first two sentences of Section 10.02 are amended to provide as follows:
“The Committee shall determine the conditions which govern the grant. By way of example and not of limitation, the Committee may grant an Incentive Award based upon the Participant’s completion of a period of employment or service with the Company or an Affiliate.”
5. Section 10.04 is amended by adding, at the end of the existing provision, the following:
“Under no circumstances shall an amount be payable under an Incentive Award unless the Participant to whom the Award is made remains actively employed by the Company or an Affiliate on the date all conditions to earning the Award have been satisfied. In all cases, Incentive Awards will be paid within 75 days after the conditions specified by the Committee for the Incentive Award are satisfied.”
6. The content of “(ii)” in the first sentence of Section 10.08 is revised to provide as follows:
“(ii) take such other action as the Committee determines to provide that the Award will be earned and payable as of the Control Change Date.”

 

 

 

7. Article XVII of the Plan is amended to provide as follows:
“No Award may be granted under this Plan after January 19, 2021 (15 years following the effective date of the Plan). Awards granted before that date shall remain valid in accordance with their terms. Notwithstanding the foregoing, any Incentive Stock Option must be granted within ten (10) years from the original date of adoption of the Plan. Accordingly, no Incentive Stock Option may be granted under the Plan after January 18, 2016.”
8. Article XV of the Plan is amended by adding, as a new Section 15.11, the following:
“15.11 Code Section 409A
The Plan is intended to constitute an unfunded Plan of deferred compensation, the Awards under which are excluded from the requirements of Code Section 409A, and will be construed and applied accordingly. However, in the event and to the extent any Award is made which is determined to be deferred compensation within the contemplation of Code Section 409A or Treasury Department guidance issued thereunder, the Plan will be construed and applied consistent with that determination.
Notwithstanding any other provision of this arrangement, no payment will be made to any specified employee (within the contemplation of Treasury Regulation §1.409A-1(i)) upon a separation from service (as contemplated by Treasury Regulation §1.409A-1(h)) before the date that is six months after the date of separation from service (or, if earlier than the end of the six month period, the date of death of the specified employee). For this purpose, any individual who is not a specified employee as of the date of a separation from service will not be treated as subject to this requirement, even if the individual would have become a specified employee if services had continued through the next specified employee effective date. Similarly, an individual who is treated as a specified employee as of the date of a separation from service will be subject to this requirement even if the person would not have been treated as a specified employee after the next specified employee effective date had the person continued providing services. Notwithstanding the foregoing, this paragraph does not apply to a payment made under any payment of employment taxes provision. Any payments to which a specified employee would otherwise be entitled during the first six months following the date of separation from service will be accumulated and paid on the first day of the seventh month following the date of separation from service.
Notwithstanding the foregoing, to the extent permissible under Treasury Regulation §1.409A-1(b)(4)(ii), the payment date may be delayed within the discretion of the Company on the following grounds: (A) It is administratively impracticable to make the payment by the regular payment date due to unforeseeable reasons; (B) The payment would jeopardize the Company’s ability to continue as a going concern; (C) The payment is reasonably anticipated not to be deductible under Section 162(m) of the Code due to circumstances that a reasonable person would not have anticipated; or (D) Such other grounds as may be from time to time permissible under the foregoing regulation; Provided, however, any delayed payment shall be made within the period required under the foregoing Regulation.”
This Amendment is subject to approval by the shareholders of the Corporation.
         
  DATED the 26th day of April, 2011.

FIDELITY SOUTHERN CORPORATION
  		 
  By:   /s/ Stephen H. Brolly    
    Title: CFO