þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Georgia | 58-1416811 | |
(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification No.) | |
3490 Piedmont Road, Suite 1550 | ||
Atlanta, Georgia | 30305 | |
(Address of principal executive offices) | (Zip Code) |
Large accelerated filer o | Accelerated filer o |
Non-accelerated filer
þ
(Do not check if a smaller reporting company) |
Smaller reporting company o |
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104
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$
139
209
199
318
579
$
1,444
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Total Loans
Held-for-Sale
Loans
$
152
$
7
$
145
228
25
203
253
8
245
117
1
116
694
15
679
$
1,444
$
56
$
1,388
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secured loans, except for loans made under the Banks SBA program and indirect automobile
loans which are generally secured by the vehicle purchased, be made to persons and
companies which are well-established and have net worth, collateral, and cash flow to
support the loan;
real estate loans be secured by real property located primarily in Georgia or Florida;
unsecured loans be made to persons who maintain depository relationships with the Bank
and have significant financial strength;
loan renewal requests be reviewed in the same manner as an application for a new loan; and
working capital loans to be repaid out of conversion of assets or current earnings of the
commercial borrower and that such loans generally be secured by the assets of the
commercial borrower.
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making or servicing loans and certain types of leases;
performing certain data processing services;
acting as fiduciary or investment or financial advisor;
providing brokerage services;
underwriting bank eligible securities;
underwriting debt and equity securities on a limited basis through separately
capitalized subsidiaries; and
making investments in corporations or projects designed primarily to promote
community welfare.
lending, exchanging, transferring, investing for others or safeguarding money or
securities;
insuring, guaranteeing, or indemnifying against loss, harm, damage, illness,
disability, or death, or providing and issuing annuities, and acting as principal,
agent, or broker with respect thereto;
providing financial, investment, or economic advisory services, including advising an
investment company;
issuing or selling instruments representing interest in pools of assets permissible
for a bank to hold directly; and
underwriting, dealing in or making a market in securities.
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(a)
total classified assets as of the most recent examination of the bank do not exceed
80% of equity capital (as defined by regulation);
(b)
the aggregate amount of dividends declared or anticipated to be declared in the
calendar year does not exceed 50% of the net profits after taxes but before dividends for
the previous calendar year; and
(c)
the ratio of equity capital to adjusted assets is not less than 6%.
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Name
Age
Since
Position
68
1979
Principal Executive Officer,
Chairman of the Board and Chief
Executive Officer of Fidelity
since 1979; President of
Fidelity from 1979 to April
2006; Chairman of Fidelity Bank
since 1998; President of
Fidelity Bank from 1977 to
1997, and from December 2003
through September 2004; and
Chief Executive Officer of
Fidelity Bank from 1977 to 1997
and from December 2003 until
present. A director of
Fidelity Bank since 1976.
Chairman of LionMark Insurance
Company, a wholly-owned
subsidiary, since November
2004. A director of Interface,
Inc., a carpet and fabric
manufacturing company, since
2000, and of American Software,
Inc., a software development
company, since 2002.
41
1996
President of Fidelity since
April 2006; Senior Vice
President of Fidelity from
January 2006 through April
2006; Vice President of
Fidelity from 1996 through
January 2006; Director and
President of Fidelity Bank
since October 2004 and Senior
Vice President of Fidelity Bank
from 1996 through September
2004. Director and
Secretary/Treasurer of LionMark
Insurance Company, a
wholly-owned subsidiary, since
November 2004.
46
2008
Principal Financial and
Accounting Officer of Fidelity
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Name
Age
Since
Position
and Chief Financial Officer of
Fidelity and Fidelity Bank
since August 2008; Treasurer of
Fidelity and Fidelity Bank from
May 2006 through August 2008.
Chief Financial Officer of
LionMark Insurance Company, a
wholly-owned subsidiary, since
August 2008. Senior Vice
President, Chief Accounting
Officer and Controller of Sun
Bancorp, Inc. in Vineland, New
Jersey from 1999 to 2006.
51
1995
Vice President of Fidelity
since 1999; Executive Vice
President of Fidelity Bank
since October 2004; and Senior
Vice President of Fidelity Bank
from 1995 through September
2004. President of LionMark
Insurance Company, a
wholly-owned subsidiary, since
November 2004.
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news reports relating to trends, concerns and other issues in the financial services
industry;
actual or anticipated variations in quarterly results of operations;
recommendations by securities analysts;
operating and stock price performance of other companies that investors deem
comparable to us;
perceptions in the marketplace regarding the Company and/or our competitors;
significant acquisitions or business combinations, strategic partnerships, joint
ventures or capital commitments by or involving the Company or our competitors;
changes in government laws and regulation; and
geopolitical conditions such as acts or threats of terrorism or military conflicts.
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Item 5.
Market for Registrants Common Equity, Related Stockholder Matters and Issuer Purchases
of Equity Securities
Dividend
2008
2007
2006
$
.09
$
.09
$
.08
.09
.09
.08
.01
.09
.08
.09
.08
$
.19
$
.36
$
.32
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Number of Securities Remaining
Number of Securities
Available for Future Issuance
to be Issued upon
Weighted Average
Under Equity Compensation
Exercise of
Exercise Price of
Plans (Excluding Securities
Plan Category
Outstanding Options
Outstanding Options
Reflected in Column A)
517,074
$
8.89
323,166
N/A
N/A
N/A
517,074
$
8.89
323,166
(1)
1997 Stock Option Plan and 2006 Equity Incentive Plan
(2)
Excludes shares issued under the 401(k) Plan.
Period Ending December 31,
Index
2003
2004
2005
2006
2007
2008
$
100.00
$
145.46
$
139.28
$
147.37
$
75.58
$
30.13
100.00
108.59
110.08
120.56
132.39
78.72
100.00
114.61
111.12
124.75
97.94
71.13
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SELECTED FINANCIAL DATA
Years Ended December 31,
2008
2007
2006
2005
2004
(Dollars in thousands except per share data)
$
104,054
$
113,462
$
97,804
$
74,016
$
59,609
57,636
66,682
54,275
34,684
23,961
46,418
46,780
43,529
39,332
35,648
36,550
8,500
3,600
2,900
4,800
17,636
17,911
15,699
14,339
14,641
1,306
2
32
384
48,839
47,203
40,568
35,001
34,070
(12,236
)
6,634
10,374
10,326
7,632
1,783
3,357
2,964
2,567
1,799
$
(1.30
)
$
.70
$
1.11
$
1.11
$
.84
(1.30
)
.70
1.11
1.11
.83
9.15
10.56
10.09
9.30
8.56
.19
.36
.32
.28
.20
%
50.61
%
28.57
%
24.86
%
23.56
%
(.70
)%
.41
%
.70
%
.79
%
.66
%
(12.43
)
6.84
11.67
12.59
10.29
2.84
3.04
3.10
3.17
3.22
76.25
72.97
68.49
65.21
67.75
1.36
%
.45
%
.19
%
.23
%
.29
%
2.43
1.19
1.07
1.17
1.29
7.89
1.65
.40
.25
.29
.29
x
.71
x
2.52
x
4.50
x
5.53
x
100.01
%
103.30
%
100.18
%
100.51
%
97.93
%
96.14
98.77
95.98
97.79
94.57
89.81
90.34
88.36
86.58
82.85
10.04
%
7.93
%
8.07
%
8.64
%
8.74
%
11.10
8.43
8.54
9.60
9.88
13.67
11.54
10.37
11.97
11.91
5.66
5.93
5.99
6.29
6.38
$
1,763,113
$
1,686,484
$
1,649,179
$
1,405,703
$
1,223,717
1,635,722
1,597,855
1,562,736
1,342,335
1,170,535
1,443,862
1,452,013
1,389,024
1,129,777
995,289
1,443,682
1,405,625
1,386,541
1,124,013
1,016,377
115,027
92,527
83,908
94,908
70,598
136,604
99,963
94,647
86,739
78,809
$
1,738,494
$
1,635,520
$
1,483,384
$
1,304,090
$
1,162,651
1,649,022
1,553,602
1,415,105
1,247,480
1,114,141
1,481,066
1,403,461
1,250,386
1,080,025
923,103
1,445,485
1,377,503
1,223,428
1,072,695
969,815
111,475
90,366
94,111
81,817
80,205
98,461
97,059
88,866
82,002
74,137
(1)
Adjusted for stock dividends
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The provision for loan losses for 2008 was $36.6 million compared to $8.5 million in
2007. Net charge-offs for 2008 were 1.36% of average loans outstanding compared to .45%
for 2007. The allowance for loan losses was 2.43% of outstanding loans and provided a
coverage ratio of 29.2 % of nonperforming loans.
The net interest margin declined 20 basis points in 2008 to 2.84% from 3.04% in 2007,
resulting from a 94 basis point decrease in the cost of funds which lagged the 100 basis
point decrease in the yield on earning assets. While both the cost of funds and the
yield on earning assets were negatively affected by the decrease in market interest
rates, the yield on earning assets was also negatively affected by the increase in
nonperforming loans which decreases loan interest income.
Total assets increased $76.6 million or 4.5% to $1.763 billion at the end of 2008
compared to $1.686 billion at year end 2007. This increase was primarily due to the
206.3% increase in cash and cash equivalents as a result of proceeds from the issuance
of preferred stock, higher investment securities, and higher Other Real Estate,
partially offset by an increase in the allowance for loan losses.
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(1)
Fee income relating to loans is included in interest income.
(2)
Nonaccrual loans are included in average balances and income on such loans, if recognized, is recognized on a cash basis.
(3)
Interest income includes the effects of taxable-equivalent adjustments of $192,000, $350,000, and $278,000, for 2008, 2007, and 2006, respectively, using a combined tax rate of 35%.
(4)
Interest income includes the effects of taxable-equivalent adjustments of $259,000 and $147,000 for 2008 and 2007, respectively, using a combined tax rate of 35%.
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2008 Compared to 2007
2007 Compared to 2006
Variance Attributed to
(1)
Variance Attributed to
(1)
Volume
Rate
Net Change
Volume
Rate
Net Change
(Dollars in thousands)
$
5,961
$
(15,174
)
$
(9,213
)
$
11,241
$
5,097
$
16,338
(327
)
(145
)
(472
)
153
28
181
102
(199
)
(97
)
(987
)
58
(929
)
428
15
443
416
4
420
191
(255
)
(64
)
(122
)
5
(117
)
40
(62
)
(22
)
(17
)
1
(16
)
$
6,395
$
(15,820
)
$
(9,425
)
$
10,684
$
5,193
$
15,877
$
(719
)
$
(3,299
)
$
(4,018
)
$
1,832
$
1,850
$
3,682
245
(3,083
)
(2,838
)
1,121
432
1,553
4,158
(6,482
)
(2,324
)
3,255
4,061
7,316
3,684
(12,864
)
(9,180
)
6,208
6,343
12,551
(63
)
(221
)
(284
)
(99
)
10
(89
)
359
(94
)
265
(222
)
(49
)
(271
)
40
(272
)
(232
)
(37
)
90
53
1,082
(743
)
339
689
(122
)
567
309
(263
)
46
(478
)
74
(404
)
$
5,411
$
(14,457
)
$
(9,046
)
$
6,061
$
6,346
$
12,407
(1)
The change in interest due to both rate and volume has been allocated to the components in proportion to the relationship of the dollar amounts of
the change in each.
(2)
Reflects fully taxable equivalent adjustments using a combined tax rate of 35%.
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December 31,
2008
2007
2006
2005
2004
(Dollars in thousands)
$
16,557
$
14,213
$
12,912
$
12,443
$
10,189
99
200
1
385
384
220
67
9,083
1,934
332
82
5
160
454
10,841
5,301
3,616
2,890
2,770
20,575
7,517
3,689
3,435
3,608
5
257
505
284
456
215
145
43
190
14
78
7
41
66
882
836
733
679
540
1,159
1,361
1,390
1,004
1,062
19,416
6,156
2,299
2,431
2,546
36,550
8,500
3,600
2,900
4,800
$
33,691
$
16,557
$
14,213
$
12,912
$
12,443
2.43
%
1.19
%
1.07
%
1.17
%
1.29
%
1.36
.45
.19
.23
.29
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December 31, 2008
December 31, 2007
Market Rates of Interest
+200 Basis Points
-200 Basis Points
+200 Basis Points
-200 Basis Points
$
(7,550
)
$
15,640
$
(2,783
)
$
(329
)
(.43
)%
.89
%
(.17
)%
(.02
)%
(3.54
)%
7.34
%
(1.53
)%
(.18
)%
(1.97
)%
(2.62
)%
(.60
)%
(.28
)%
(7.68
)%
(10.28
)%
(2.76
)%
(1.30
)%
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Repricing Within
0-30
31-60
61-90
91-120
121-150
151-180
181-365
Over One
Days
Days
Days
Days
Days
Days
Days
Year
Total
$
1,058
$
1,047
$
1,035
$
6,306
$
1,012
$
1,001
$
15,855
$
131,510
$
158,824
552,448
50,294
28,609
28,235
34,501
27,528
183,435
482,972
1,388,022
967
15,000
10,000
10,000
19,873
55,840
23,184
23,184
9,853
9,853
587,510
66,341
29,644
44,541
35,513
38,529
219,163
614,482
1,635,723
8,318
6,932
6,239
6,100
5,961
5,823
24,954
74,308
138,635
171,478
4,919
2,459
2,459
2,459
2,459
12,297
124,828
323,358
34,059
10,643
8,869
6,823
5,248
3,749
2,343
13,095
84,829
20,924
20,625
48,942
23,834
6,889
14,701
134,049
47,574
317,538
35,690
41,446
64,582
43,562
42,690
35,314
193,920
122,117
579,321
25,774
2,500
86,753
115,027
21,007
6,565
5,471
4,208
3,237
2,312
3,945
8,273
55,018
291,476
91,130
162,336
89,486
66,484
64,358
371,508
476,948
1,613,726
$
296,034
$
(24,789
)
$
(132,692
)
$
(44,945
)
$
(30,971
)
$
(25,829
)
$
(152,345
)
$
137,534
$
21,997
$
296,034
$
271,245
$
138,553
$
93,608
$
62,637
$
36,808
$
(115,537
)
$
21,997
18.10
%
16.58
%
8.47
%
5.72
%
3.83
%
2.25
%
(7.06
)%
1.34
%
201.56
%
72.80
%
18.26
%
49.77
%
53.42
%
59.87
%
58.99
%
128.84
%
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December 31, 2008
$
5,000
43,000
175,000
37,000
305,000
$
565,000
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Commitment Maturity or Payment Due by Period
Commitments
More Than 1
3 Years or
or Long-term
1 Year or
Year but Less
More but Less
5 Years or
Borrowings
Less
Than 3 Years
Than 5 Years
More
(Dollars in thousands)
$
47,728
$
2,921
$
8,988
$
8,827
$
26,992
77,473
77,473
2,941
2,286
655
55,997
51,993
2,622
969
413
5,013
2,978
2,035
3,534
3,534
8,413
8,178
235
1,725
478
55
1,192
202,824
149,841
12,555
9,796
30,632
67,527
67,527
47,500
27,500
7,500
12,500
9,705
2,550
2,504
3,163
1,488
3,131
1,676
901
554
$
330,687
$
154,067
$
43,460
$
21,013
$
112,147
(1)
Financial commitments include both secured and unsecured obligations to fund. Certain residential construction and acquisition and development commitments relate to
revolving commitments whereby payments are received as individual homes or parcels are sold; therefore, the outstanding balances at any one time will be less than the total
commitment. Construction loan commitments in excess of one year have provisions to convert to term loans at the end of the construction period.
(2)
Subordinated debt is comprised of five trust preferred security issuances. We have no obligations related to the trust preferred security holders other than to remit periodic
interest payments and to remit principal and interest due at maturity. Each trust preferred security provides us the opportunity to prepay the securities at specified dates from
inception, the fixed rate issues with declining premiums based on the time outstanding or at par after designated periods for all issues.
(3)
All long-term borrowings are collateralized with investment grade securities or with pledged real estate loans.
(4)
Leases and other rental agreements typically have renewal options either at predetermined rates or market rates on renewal.
(5)
Purchase obligations include significant contractual obligations under legally enforceable contracts with contract terms that are both fixed and determinable with initial
terms greater than one year. The majority of these amounts are primarily for services, including core processing systems and telecommunications maintenance.
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December 31,
2008
2007
2006
2005
2004
(Dollars in thousands)
$
137,988
$
107,325
$
107,992
$
88,532
$
79,597
7,508
9,235
14,969
7,572
6,245
202,516
189,881
163,275
104,996
98,770
348,012
306,441
286,236
201,100
184,612
245,153
282,056
306,078
257,789
199,127
115,527
93,673
91,652
85,086
86,997
679,330
706,188
646,790
555,194
490,490
1,388,022
1,388,358
1,330,756
1,099,169
961,226
(33,691
)
(16,557
)
(14,213
)
(12,912
)
(12,443
)
$
1,354,331
$
1,371,801
$
1,316,543
$
1,086,257
$
948,783
$
1,388,022
$
1,388,358
$
1,330,756
$
1,099,169
$
961,226
967
1,412
321
1,045
4,063
15,000
38,000
43,000
26,000
30,000
39,873
24,243
14,947
3,563
55,840
63,655
58,268
30,608
34,063
$
1,443,862
$
1,452,013
$
1,389,024
$
1,129,777
$
995,289
December 31, 2008
One
Within
Through
Over Five
One Year
Five Years
Years
Total
(Dollars in thousands)
$
93,452
$
45,177
$
6,867
$
145,496
238,622
6,531
245,153
$
332,074
$
51,708
$
6,867
$
390,649
$
35,506
$
44,354
$
6,867
$
86,727
77,789
4,576
82,365
57,946
823
58,769
160,833
1,955
162,788
$
332,074
$
51,708
$
6,867
$
390,649
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Total Construction Loans
Houses
Lots
Total
Number
Balance
Number
Balance
Balance
(Dollars in thousands)
700
$
149,523
2,138
$
119,770
$
269,293
255
18,171
57
4,474
22,645
59,519
7,683
67,202
(289
)
(99,201
)
(201
)
(11,108
)
(110,309
)
(143
)
(11,265
)
(55
)
(4,789
)
(16,054
)
(1,675
)
(6,276
)
(7,951
)
523
$
115,072
1,939
$
109,754
$
224,826
Atlanta, Georgia
Houses
Lots
Total
Number
Balance
Number
Balance
Balance
(Dollars in thousands)
494
$
118,517
864
$
58,929
$
177,446
69
5,771
20
2,556
8,327
33,666
4,205
37,871
(83
)
(64,638
)
(95
)
(6,961
)
(71,599
)
(140
)
(10,083
)
(55
)
(4,789
)
(14,872
)
(619
)
(3,047
)
(3,666
)
340
$
82,614
734
$
50,893
$
133,507
Florida
Houses
Lots
Total
Number
Balance
Number
Balance
Balance
(Dollars in thousands)
206
$
31,006
1,274
$
60,841
$
91,847
186
12,400
37
1,918
14,318
25,853
3,478
29,331
(206
)
(34,563
)
(106
)
(4,147
)
(38,710
)
(3
)
(1,182
)
(1,182
)
(1,056
)
(3,229
)
(4,285
)
183
$
32,458
1,205
$
58,861
$
91,319
Table of Contents
Table of Contents
December 31,
2008
2007
2006
2005
2004
(Dollars in thousands)
$
98,151
$
14,371
$
4,587
$
1,993
$
1,578
2,016
2,512
937
819
625
15,063
7,308
665
$
115,230
$
24,191
$
5,524
$
2,812
$
2,868
$
$
23
$
$
$
2
%
%
%
%
%
7.89
1.65
.40
.25
.29
Table of Contents
December 31, 2005
December 31, 2004
Allowance
%*
Allowance
%*
$
3,717
18.30
%
$
4,703
19.20
%
2,331
23.45
2,041
20.72
610
7.74
588
9.05
4,892
50.51
4,540
51.03
1,093
302
$
12,643
100.00
%
$
12,174
100.00
%
*
Percentage of respective loan type to loans.
(1)
Includes allowance allocated for real estate-mortgage-commercial loans and SBA loans.
Table of Contents
December 31,
2008
2007
2006
Amortized
Fair
Amortized
Fair
Amortized
Fair
Cost
Value
Cost
Value
Cost
Value
(Dollars in thousands)
$
9,830
$
9,954
$
5,000
$
5,007
$
9,997
$
9,917
15,222
14,384
10,985
11,050
126,340
129,878
117,525
115,819
134,545
131,364
$
151,392
$
154,216
$
133,510
$
131,876
$
144,542
$
141,281
Table of Contents
December 31, 2008
December 31, 2007
Amortized
Fair
Average
Amortized
Fair
Average
Cost
Value
Yield
(1)
Cost
Value
Yield
(1)
(Dollars in thousands)
$
9,830
$
9,954
2.58
%
$
5,000
$
5,007
5.00
%
3,012
2,889
5.45
503
518
6.05
4,962
4,889
5.37
3
,
332
3
,
291
5.23
7,248
6,606
5.84
7
,
150
7
,
241
5.82
10,229
10,478
4.65
17,748
17,587
4.80
84,950
87,376
5.12
65
,
758
64
,
624
5.00
6
,
368
6
,
557
5.31
4,955
4,881
5.21
$
126,599
$
128,749
$
104,446
$
103,149
4,711
4,854
4.47
%
$
6,327
$
6,309
4.66
%
20,082
20,613
5.03
22,737
22,418
5.03
$
24,793
$
25,467
$
29,064
$
28,727
(1)
Weighted average yields are calculated on the basis of the carrying value of the security.
(2)
Interest income includes the effects of taxable equivalent adjustments of $259,000 in 2008 and $147,000 in 2007.
Table of Contents
December 31,
2008
2007
2006
Average
Average
Average
Amount
Rate
Amount
Rate
Amount
Rate
$
128,706
%
$
130,835
%
$
127,978
%
271,429
2.29
293,336
3.49
234,871
2.79
209,301
2.89
203,529
4.36
177,505
4.13
836,049
4.36
749,803
5.17
683,074
4.61
$
1,445,485
3.37
$
1,377,503
4.20
$
1,223,428
3.71
December 31, 2008
$100,000 or
Other
More
Total
(Dollars in thousands)
$
135,101
$
90,492
$
225,593
121,566
45,424
166,990
193,920
134,049
327,969
83,865
42,772
126,637
36,034
2,097
38,131
8,564
2,706
11,270
270
270
$
579,320
$
317,540
$
896,860
Table of Contents
Maximum
Average
Weighted
Outstanding at
Average
Interest Rate
Ending
Average Interest
Years Ended December 31
Any Month-End
Balance
During Year
Balance
Rate at Year-End
(Dollars in thousands)
$
106,348
$
69,318
2.98
%
$
55,017
1.81
%
79,163
56,500
4.10
75,954
3.44
98,470
66,462
3.95
72,061
4.10
(1)
Consists of Federal funds purchased, securities sold under agreements to repurchase, long-term borrowings within
a year to maturity, and borrowings from the FHLB that mature either overnight or on a remaining fixed maturity not to
exceed one year.
Table of Contents
Table of Contents
Table of Contents
2008
2007
Fourth
Third
Second
First
Fourth
Third
Second
First
Quarter
Quarter
Quarter
Quarter
Quarter
Quarter
Quarter
Quarter
(In thousands except per share date)
$
24,329
$
26,088
$
26,164
$
27,473
$
28,680
$
29,064
$
28,317
$
27,401
13,629
14,152
14,096
15,759
16,874
17,047
16,618
16,143
10,700
11,936
12,068
11,714
11,806
12,017
11,699
11,258
14,700
11,400
5,850
4,600
3,550
2,800
1,650
500
3,743
3,851
4,365
5,677
4,304
4,795
4,346
4,465
12,413
12,579
12,461
11,387
12,450
11,836
11,379
11,537
$
(12,670
)
(8,192
)
(1,878
)
1,404
110
2,176
3,016
3,686
(5,101
)
(3,318
)
(976
)
295
(211
)
497
946
1,122
$
(7,569
)
$
(4,874
)
$
(902
)
$
1,109
$
321
$
1,679
$
2,070
$
2,564
$
(.81
)
$
(.51
)
$
(.10
)
$
.12
$
.03
$
.18
$
.22
$
.27
$
(.81
)
$
(.51
)
$
(.10
)
$
.12
$
.03
$
.18
$
.22
$
.27
9,606
9,537
9,488
9,470
9,456
9,435
9,416
9,390
(1)
Adjusted for stock dividends
Table of Contents
Fidelity Southern Corporation
/s/ Ernst & Young LLP
March 12, 2009
Table of Contents
Table of Contents
Years Ended December 31,
2008
2007
2006
(Dollars in thousands, except per share data)
$
96,398
$
105,924
$
89,477
7,441
7,237
7,893
215
301
434
104,054
113,462
97,804
48,722
57,902
45,351
2,065
2,316
2,623
5,284
4,945
4,378
1,565
1,519
1,923
57,636
66,682
54,275
46,418
46,780
43,529
36,550
8,500
3,600
9,868
38,280
39,929
4,757
4,730
4,207
1,944
1,872
1,642
340
339
676
5,227
5,449
4,136
1,250
2,444
2,147
1,278
1,166
1,109
1,306
2
1,534
1,909
1,782
17,636
17,911
15,699
25,827
25,815
22,314
2,949
2,942
2,636
4,137
4,105
3,557
1,654
1,729
1,548
3,823
3,559
2,955
645
928
1,348
647
758
850
344
296
299
8,813
7,071
5,061
48,839
47,203
40,568
(21,335
)
8,988
15,060
(9,099
)
2,354
4,686
(12,236
)
6,634
10,374
106
$
(12,342
)
$
6,634
$
10,374
$
(1.30
)
$
.70
$
1.11
$
(1.30
)
$
.70
$
1.11
9,525,298
9,424,475
9,361,045
9,525,298
9,438,574
9,372,547
Table of Contents
Accumulated
Other
Comprehensive
Preferred Stock
Common Stock
Treasury Stock
Income (Loss)
Retained
Shares
Amount
Shares
Amount
Shares
Amount
Net of Tax
Earnings
Total
(In thousands, except per share data)
$
9,241
$
44,178
3
$
(17
)
$
(1,434
)
$
44,012
$
86,739
10,374
10,374
(156
)
(156
)
10,218
38
420
420
9
217
(3
)
17
234
(2,964
)
(2,964
)
9,288
44,815
(1,590
)
51,422
94,647
6,634
6,634
786
786
7,420
(96
)
(96
)
50
857
857
31
492
492
(3,357
)
(3,357
)
9,369
46,164
(804
)
54,603
99,963
(12,236
)
(12,236
)
2,137
2,137
(10,099
)
(594
)
(594
)
109
701
701
85
297
297
48
43,787
43,787
26
(26
)
--
4,413
4,413
(80
)
(80
)
(1,783
)
(1,783
)
95
311
(311
)
--
(1
)
(1
)
48
$
43,813
9,658
$
51,886
$
$
1,333
$
39,572
$
136,604
Table of Contents
Years Ended December 31,
2008
2007
2006
(Dollars in thousands)
$
(12,236
)
$
6,634
$
10,374
36,550
8,500
3,600
2,141
2,151
1,975
368
500
337
2,353
85
169
130
30
(15
)
142,575
233,694
179,080
7,634
1,173
376
(132,813
)
(235,893
)
(204,013
)
(1,306
)
(2
)
(1,947
)
(3,188
)
(2,727
)
(197
)
(118
)
(112
)
1,275
(55
)
(2,576
)
(1,169
)
(1,005
)
(960
)
(8,117
)
(2,244
)
(1,057
)
(4,451
)
(4,779
)
(3,345
)
278
(282
)
2,573
(584
)
595
1,894
30,523
5,881
(14,551
)
(44,314
)
(10,984
)
(4,927
)
(7,896
)
(5,405
)
5,417
4,289
4,131
5,167
18,072
17,791
15,017
5,310
7,065
5,490
(35,805
)
(71,838
)
(234,150
)
(821
)
(367
)
(2,631
)
(2,169
)
(6,710
)
(55,410
)
(64,267
)
(220,591
)
(115,284
)
38,704
101,161
153,341
(19,620
)
161,367
27,500
25,000
(25,000
)
20,619
(5,000
)
(12,000
)
(11,000
)
(20,937
)
3,893
(20,427
)
48,200
828
1,204
624
15
(1,783
)
(3,357
)
(2,964
)
86,865
29,458
228,761
61,978
(28,928
)
(6,381
)
30,047
58,975
65,356
$
92,025
$
30,047
$
58,975
$
58,730
$
66,964
$
51,703
$
1,394
$
5,812
$
5,230
$
16,725
$
8,080
$
264
$
311
$
$
$
7,550
$
1,025
$
4,495
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
FDIC Regulations
December 31,
Adequately
Well
Capital Ratios
Capitalized
Capitalized
2008
2007
4.00
%
5.00
%
(1)
9.97
%
8.10
%
4.00
6.00
11.01
8.60
8.00
10.00
12.92
10.29
(1)
8% required by memorandum of understanding
December 31, 2008
December 31, 2007
Amount
Percent
Amount
Percent
$
173,303
11.10
%
$
132,637
8.43
%
63,018
4.00
62,954
4.00
$
110,285
7.10
%
$
69,683
4.43
%
$
213,406
13.67
%
$
181,567
11.54
%
126,037
8.00
125,909
8.00
$
87,369
5.67
%
$
55,658
3.54
%
10.04
%
7.93
%
4.00
4.00
6.04
%
3.93
%
Table of Contents
Table of Contents
Gross
Unrealized
Gross
Unrealized
Amortized Cost
Gains
Losses
Fair Value
$
9,830
$
124
$
$
9,954
15,222
52
(890
)
14,384
101,547
2,864
104,411
$
126,599
$
3,040
$
(890
)
$
128,749
$
24,793
$
674
$
$
25,467
$
5,000
$
7
$
$
5,007
10,985
131
(66
)
11,050
88,461
104
(1,473
)
87,092
$
104,446
$
242
$
(1,539
)
$
103,149
$
29,064
$
10
$
(347
)
$
28,727
December 31, 2008
December 31, 2007
Amortized Cost
Fair Value
Amortized Cost
Fair Value
$
9,830
$
9,954
$
5,000
$
5,007
15,222
14,384
10,985
11,050
101,547
104,411
88,461
87,092
$
126,599
$
128,749
$
104,446
$
103,149
$
24,793
$
25,467
$
29,064
$
28,727
Table of Contents
12 Months or Less
More Than 12 Months
Fair Value
Unrealized Losses
Fair Value
Unrealized Losses
$
$
$
$
11,218
890
$
11,218
$
890
$
$
$
$
$
$
$
$
$
$
5,805
66
67,890
1,473
$
5,805
$
66
$
67,890
$
1,473
$
$
$
28,191
$
347
Table of Contents
December 31,
2008
2007
$
145,496
$
116,560
202,516
189,881
348,012
306,441
245,153
282,056
115,527
93,673
679,330
706,188
1,388,022
1,388,358
(33,691
)
(
16,557
)
$
1,354,331
$
1,371,801
Table of Contents
$
1,392
320
(103
)
$
1,609
December 31,
2008
2007
2006
$
16,557
$
14,213
$
12,912
36,550
8,500
3,600
(20,575
)
(7,517
)
(3,689
)
1,159
1,361
1,390
$
33,691
$
16,557
$
14,213
December 31,
2008
2007
$
97,851
$
17,591
16,993
11,544
$
114,844
$
29,135
$
9,940
$
1,310
Table of Contents
For the Years Ended December 31,
2008
2007
2006
$
68,531
$
18,007
$
24,958
$
596
$
1,845
$
1,938
$
$
$
128
(1)
Average based on end of month outstandings
December 31,
2008
2007
$
837
$
1,577
9,197
2,652
7,113
3,163
17,147
7,392
(2,084
)
(85
)
$
15,063
$
7,307
For the Years Ended December 31,
2008
2007
2006
$
197
$
118
$
112
$
821
$
367
$
Table of Contents
December 31,
2008
2007
$
4,821
$
5,051
17,217
14,983
16,865
16,650
38,903
36,684
(19,592
)
(
17,863
)
$
19,311
$
18,821
Table of Contents
December 31,
2008
2007
$
$
5,000
52,517
23,954
20,000
15,000
2,500
7,000
5,000
55,017
70,954
$
55,017
$
75,954
Table of Contents
December 31,
2008
2007
$
10,825
$
10,825
10,309
10,309
15,464
15,464
10,310
10,310
20,619
20,619
67,527
67,527
25,000
25,000
5,000
5,000
5,000
2,500
2,500
2,500
47,500
25,000
$
115,027
$
92,527
Table of Contents
Amount
$
27,500
7,500
12,500
67,527
$
115,027
Table of Contents
Table of Contents
Current
Deferred
Total
$
(996
)
$
(6,108
)
$
(7,104
)
14
(2,009
)
(1,995
)
$
(982
)
$
(8,117
)
$
(9,099
)
$
4,546
$
(1,923
)
$
2,623
52
(321
)
(269
)
$
4,598
$
(2,244
)
$
2,354
$
5,378
$
(953
)
$
4,425
365
(104
)
261
$
5,743
$
(1,057
)
$
4,686
Table of Contents
2008
%
2007
%
2006
%
$
(7,254
)
(34.0
)%
$
3,056
34.0
%
$
5,120
34.0
%
(1,371
)
(6.4
)
(177
)
(2.0
)
173
1.2
(345
)
(1.6
)
(376
)
(4.2
)
(387
)
(2.6
)
(324
)
(1.5
)
(325
)
(3.6
)
(192
)
(1.3
)
195
.8
176
2.0
(28
)
(.2
)
$
(9,099
)
(42.7
)%
$
2,354
26.2
%
$
4,686
31.1
%
December 31,
2008
2007
Assets
Liabilities
Assets
Liabilities
$
12,789
$
$
6,183
$
707
691
53
11
849
566
1,821
465
215
627
104
817
493
595
340
336
67
$
16,681
$
1,917
$
8,362
$
769
Table of Contents
2008
2007
$
189,000
$
198,000
117,000
(35,000
)
(75,000
)
(9,000
)
$
196,000
$
189,000
Table of Contents
2008
2007
2006
3.27
%
4.88
%
4.60
%
4
3
3
15.00
%
15.00
%
%
.14
1.93
1.52
28.53
15.48
22.23
Weighted
Weighted
Average
Number
Average
Remaining
Aggregate
of share
Exercise
Contractual
Intrinsic
options
Price
Term
Value
178,905
$
18.10
362,000
4.60
23,831
12.78
517,074
$
8.89
3.85
$
71,331
$
17.49
2.37
$
Table of Contents
Weighted
Average
Number of
Grant-Date
share options
Fair Value
161,643
$
2.81
362,000
.93
55,903
2.83
21,997
1.85
445,743
$
1.33
Amount
$
2,550
2,504
2,149
1,013
918
571
$
9,705
Table of Contents
Table of Contents
For the Years Ended December 31,
2008
2007
2006
$
(12,236
)
$
6,634
$
10,374
(106
)
$
(12,342
)
$
6,634
$
10,374
9,431
9,331
9,268
94
94
93
9,525
9,425
9,361
14
11
9,525
9,439
9,372
$
(1.30
)
$
.70
$
1.11
$
(1.30
)
$
.70
$
1.11
2007
2006
$
.71
$
1.12
(.01
)
(.01
)
$
.70
$
1.11
$
.71
$
1.12
(.01
)
(.01
)
$
.70
$
1.11
Table of Contents
Accumulated
Tax
Other
Gain/(Loss)
(Expense)
Comprehensive
Before Tax
/Benefit
Income/(Loss)
$
(1,434
)
$
(251
)
$
95
(156
)
$
(251
)
$
95
(1,590
)
$
1,268
$
(481
)
787
2
(1
)
1
$
1,266
$
(480
)
(804
)
$
3,493
$
(1,327
)
2,166
47
(18
)
29
$
3,446
$
(1,309
)
$
1,333
Table of Contents
Fair Value Measurements at December 31, 2008
Quoted Prices in
Active Markets for
Significant Other
Significant
Identical
Observable Inputs
Unobservable Inputs
Total
Securities Level 1
Level 2
Level 3
$
128,749
$
$
128,749
$
Fair Value Measurements at December 31, 2008
Quoted Prices in
Active Markets for
Significant Other
Significant
Identical
Observable Inputs
Unobservable Inputs
Total
Securities Level 1
Level 2
Level 3
$
39,873
$
$
$
39,873
97,851
97,851
$
137,724
$
$
$
137,724
Table of Contents
December 31,
2008
2007
Carrying Amount
Fair Value
Carrying Amount
Fair Value
(Dollars in thousands)
$
68,841
$
68,841
$
23,442
$
23,442
23,184
23,184
6,605
6,605
128,749
128,749
103,149
103,149
24,793
25,467
29,064
28,727
5,282
5,282
5,665
5,665
1,443,862
1,456,135
1,452,013
1,466,016
1,694,711
$
1,707,658
1,619,938
$
1,633,604
68,402
66,546
$
1,763,113
$
1,686,484
$
138,634
$
138,634
$
131,597
$
131,597
1,305,048
1,314,211
1,274,028
1,276,535
1,443,682
1,452,845
1,405,625
1,408,132
55,017
55,032
75,954
75,930
67,527
48,069
67,527
65,343
47,500
46,252
25,000
24,728
1,613,726
$
1,602,198
1,574,106
$
1,574,133
149,387
112,378
$
1,763,113
$
1,686,484
Table of Contents
Table of Contents
December 31,
2008
$
80,414
55,997
5,013
47,728
3,534
1,725
8,413
$
202,824
Table of Contents
December 31,
2008
2007
$
5,326
$
2,234
14,764
7,593
2,027
2,027
1,454
1,657
1,289
1,289
3,043
2,485
3,856
3,624
$
31,759
$
20,909
$
1,614
$
2,869
4,131
2,786
$
5,745
$
5,655
Years Ended December 31,
2008
2007
2006
$
720
$
1,338
$
1,146
545
522
486
1,350
545
486
3,286
105
(415
)
567
3,327
3,994
2,943
$
8,813
$
7,071
$
5,061
Table of Contents
December 31,
2008
2007
(Dollars in thousands)
$
14,488
$
18,890
189
419
177,209
135,705
2,210
2,389
10,000
10,000
1,094
1,059
$
205,190
$
168,462
$
67,527
$
67,527
1,059
972
68,586
68,499
43,813
51,886
46,164
1,333
(804
)
39,572
54,603
136,604
99,963
$
205,190
$
168,462
Table of Contents
Years Ended December 31,
2008
2007
2006
(Dollars in thousands)
$
295
$
449
$
367
659
853
831
954
1,302
1,198
5,267
4,928
4,361
(4,313
)
(3,626
)
(3,163
)
140
120
120
2,460
3,990
3,640
664
687
469
448
161
138
3,712
4,958
4,367
662
684
650
(1,263
)
648
554
(1,414
)
1,270
1,173
151
1,918
1,727
(12,387
)
4,716
8,647
$
(12,236
)
$
6,634
$
10,374
Years Ended December 31,
2008
2007
2006
(Dollars in thousands)
$
(12,236
)
$
6,634
$
10,374
12,387
(4,716
)
(8,647
)
(291
)
521
(35
)
(153
)
1,225
7
45
(22
)
353
1,810
2,930
(52,000
)
(5,619
)
(6,000
)
(52,000
)
(5,619
)
(6,000
)
48,200
20,619
828
1,204
624
(1,783
)
(3,357
)
(2,964
)
47,245
18,466
(2,340
)
(4,402
)
14,657
(5,410
)
18,890
4,233
9,643
$
14,488
$
18,890
$
4,233
Table of Contents
Table of Contents
March 12, 2009
Table of Contents
Item 12.
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder
Matters
Table of Contents
(a)
Documents filed as part of this Report
(1)
Financial Statements
(2)
Financial Statement Schedules
All financial statement
schedules are omitted as the
required information is
inapplicable or the information
is presented in the
Consolidated Financial
Statements and the Notes
thereto in Item 8 above.
(3)
Exhibits
The exhibits filed herewith or
incorporated by reference to
exhibits previously filed with
the SEC are set forth in Item
15(b)
(b)
Exhibits
Exhibit No.
Name of Exhibit
Amended and Restated Articles of Incorporation of
Fidelity Southern Corporation, as amended effective
December 16, 2008
By-Laws of Fidelity Southern Corporation, as amended
(incorporated by reference from Exhibit 3(b) to
Fidelity Southern Corporations Quarterly Report on
Form 10-Q for the quarter ended September 30, 2007)
See Exhibits 3(a) and 3(b) for provisions of the
Amended and Restated Articles of Incorporation, as
amended, and By-laws, which define the rights of the
shareholders.
Fidelity Southern Corporation Defined Contribution
Master Plan and Trust Agreement and related Adoption
Agreement, as amended (incorporated by reference from
Exhibit 10(a) to Fidelity Southern Corporations
Registration Statement on Form 10, Commission File
No. 0-22374)
Amended and Restated Supplemental Deferred
Compensation Plan (incorporated by reference from
Exhibit 10.7 to Fidelity Southern Corporations Form
8-K filed January 25, 2006)
Fidelity Southern Corporation 1997 Stock Option Plan
(incorporated by reference from Exhibit A to Fidelity
Southern Corporations Proxy Statement, dated April
21, 1997, for the 1997 Annual Meeting of
Shareholders)
Fidelity Southern Corporation Equity Incentive Plan
dated April 27, 2006, (incorporated by reference from
Exhibit 10.1 to Fidelity Southern Corporations Form
8-K filed May 3, 2006)
Forms of Stock Option Agreements for the Fidelity
Southern Corporation Equity Incentive Plan dated
April 27, 2006 (incorporated by reference from
Exhibit 10.1 to Fidelity Southern Corporations Form
8-K filed January 18, 2007)
Employment Agreement among Fidelity, the Bank and
James B. Miller, Jr., dated as of January 18, 2007
(incorporated by reference from Exhibit 10.1 to
Fidelity Southern Corporations Form 8-K filed
January 22, 2007)
Table of Contents
Exhibit No.
Name of Exhibit
Employment Agreement among Fidelity, the Bank and H.
Palmer Proctor, Jr., dated as of January 18, 2007
(incorporated by reference from Exhibit 10.2 to
Fidelity Southern Corporations Form 8-K filed
January 22, 2007)
Executive Continuity Agreement among Fidelity, the
Bank and James B. Miller, Jr., dated as of January
19, 2006 (incorporated by reference from Exhibit 10.3
to Fidelity Southern Corporations Form 8-K filed
January 25, 2006)
Executive Continuity Agreement among Fidelity, the
Bank and H. Palmer Proctor, Jr., dated as of January
19, 2006 (incorporated by reference from Exhibit 10.4
to Fidelity Southern Corporations Form 8-K filed
January 25, 2006)
Executive Continuity Agreement among Fidelity, the
Bank and Stephen H. Brolly dated as of May 22, 2006
Executive Continuity Agreement among Fidelity, the
Bank and David Buchanan dated as of January 19, 2006
(incorporated by reference from Exhibit 10.6 to
Fidelity Southern Corporations Form 8-K filed
January 25, 2006)
Form of 2009 Incentive Compensation Plan among
Fidelity, the Bank and James B. Miller, Jr., H.
Palmer Proctor, Jr., Stephen H. Brolly and David
Buchanan dated as of January 22, 2009 (incorporated
by reference from Exhibit 10.1 to Fidelity Southern
Corporations Form 8-K filed January 26, 2009)
Director Compensation Arrangements (incorporated by
reference for Exhibit 10(j) to Fidelity Southern
Corporations Annual Report on Form 10-K for the year
ended December 31, 2005)
Warrant to Purchase up to 2,266,458 shares of Common
Stock, dated December 19, 2008 (incorporated by
reference from Exhibit 4.1 to Fidelity Southern
Corporations Form 8-K filed December 19, 2008)
Letter Agreement, dated December 19, 2008, including
Securities Purchase Agreement Standard Terms,
incorporated by reference therein, between the
Company and the United States Department of the
Treasury (incorporated by reference from Exhibit 10.1
to Fidelity Southern Corporations Form 8-K filed
December 19, 2008)
Form of Senior Executive Officer Agreement
(incorporated by reference from Exhibit 10.1 to
Fidelity Southern Corporations Form 8-K filed
December 19, 2008)
Annual Report to Shareholders
Subsidiaries of Fidelity Southern Corporation
Consent of Ernst & Young LLP
Powers of Attorney (included on signature page hereto)
Certification of Chief Executive Officer pursuant to
Securities Exchange Act Rules 13a-14 and 15d-14, as
adopted pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002.
Certification of Chief Financial Officer pursuant to
Securities Exchange Act Rules 13a-14 and 15d-14, as
adopted pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002.
Table of Contents
Exhibit No.
Name of Exhibit
Certification of Chief Executive Officer pursuant to
18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Financial Officer pursuant to
18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
#
Indicates director and management contracts or compensatory plans or arrangements.
(c)
Financial Statement Schedules
.
Fidelity Southern Corporation
By:
/s/
James B. Miller, Jr.
James B. Miller, Jr.
Chief Executive Officer and
Chairman of the Board
(Principal Executive Officer)
By:
/s/
Stephen H. Brolly
Stephen H. Brolly
Chief Financial Officer
(Principal Financial and Accounting Officer)
Table of Contents
Signature
Title
Date
Chairman of the Board and Director
(Principal Executive Officer)
March 13, 2009
Chief Financial Officer
(Principal
Financial and Accounting Officer)
March 13, 2009
Director
March 13, 2009
Director
March 13, 2009
Director
March 13, 2009
Director
March 13, 2009
Director
March 13, 2009
Director
March 13, 2009
Director
March 13, 2009
Director
March 13, 2009
Director
March 13, 2009
Table of Contents
Exhibit
No.
Name of Exhibit
Amended and Restated Articles of Incorporation of Fidelity
Southern Corporation, as amended effective December 16, 2008
Executive Continuity Agreement among Fidelity, the Bank and
Stephen H. Brolly dated as of May 22, 2006
Annual Report to Shareholders
Subsidiaries of Fidelity Southern Corporation
Consent of Ernst & Young LLP
Certification of Chief Executive Officer pursuant to
Securities Exchange Act Rules 13a-14 and 15d-14, as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Financial Officer pursuant to
Securities Exchange Act Rules 13a-14 and 15d-14, as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Executive Officer pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
Certification of Chief Financial Officer pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
1
2
3
4
5
FIDELITY NATIONAL CORPORATION
|
||||
By: | /s/ M. Howard Griffith, Jr. | |||
Name: | M. Howard Griffith, Jr. | |||
Title: | Chief Financial Officer | |||
ATTEST: /s/ Martha C. Fleming
Martha C. Fleming Secretary |
||
[Corporate Seal] |
6
1
2
FIDELITY SOUTHERN CORPORATION
|
||||
By: | /s/ H. Palmer Proctor, Jr. | |||
Name: | H. Palmer Proctor, Jr. | |||
Title: | President |
3
A-1
A-2
A-3
A-4
A-5
A-6
A-7
A-8
A-9
A-10
(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 Executives 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 Executives 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 Executives 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 Banks 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 |
2
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). |
(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 Executives 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 Executives Compensation for the 12 full calendar months immediately preceding the Change of Control; (ii) the Executives annual base salary rate payable by Fidelity Southern, the Bank and any Affiliate, in effect immediately preceding the Change of Control or (iii) the Executives 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 Executives 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 Executives position or responsibilities (including reporting responsibilities) which, in the Executives reasonable judgment, represents an adverse change from the Executives status, title, position or responsibilities immediately prior to the Change of Control; |
3
(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; |
(4) | there is a reduction in the Executives 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 Executives current place of employment in Atlanta, Georgia (reasonable required travel on Fidelitys business which is materially greater than such travel requirements prior to the Change of Control shall not constitute a relocation of the Executives 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 Executives participation in or materially reduce the Executives 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 Executives 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. |
4
(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 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 Executives 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 |
5
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 individuals 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 months and the Executives 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 Executives 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. |
(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 Executives 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 |
6
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 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 Executives 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 Executives 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. |
7
(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. |
(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 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 Executives 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 Executives 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 15 th or last day of the month immediately following the date of the Termination of Employment, whichever date |
8
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 15 th or last day of the month which is at least six months after the Executives 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 15 th or last day of the month which is at least six months after the Executives 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 15 th and last day of each calendar month until all such installments are paid. |
(c) | During the Severance Period, the Executive and the Executives 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 Executives 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 Executives 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 |
9
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 Southerns 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 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 Executives written notice and seek to reach an agreement regarding same no later than |
10
fifteen (15) days after receipt of the Executives 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 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 |
11
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. |
(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 |
12
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 Executives 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 Executives 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 Executives 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 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. |
13
14
(a) | During the term of the Executives 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 Executives employment with Fidelity Southern or the Bank, and for twelve (12) months after the Executives 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. |
(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 |
15
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 Executives direction or supervision in connection with or as a result of any work or service performed under the terms of the Executives employment, shall be promptly disclosed to Fidelity Southern and the Bank, shall become Fidelity Southern and/or the Banks 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 Executives 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 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 . |
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17
(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. |
(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 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 |
18
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 Executives behalf on or by the next normal payroll payment date after the Executives 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 Executives 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 Executives 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. |
(a) | Amendments/Waivers . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is 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 |
19
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: |
Stephen Brolly |
(c) | Confidentiality . The Executive agrees that the Executive will not discuss the Executives 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. |
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FIDELITY SOUTHERN CORPORATION
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By: | /s/ James B. Miller, Jr. | |||
Name: | James B. Miller, Jr | |||
Title: | Chairman | |||
FIDELITY BANK
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By: | /s/ Palmer Proctor | |||
Name: | Palmer Proctor | |||
Title: | President | |||
EXECUTIVE
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/s/ Stephen Brolly | ||||
Stephen Brolly | ||||
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James B. Miller, Jr. | Major General (Ret) | |
Chairman | David R. Bockel | |
Edward G. Bowen, M.D. | Dr. Donald A. Harp, Jr. | |
Kevin S. King | James H. Miller III | |
H. Palmer Proctor, Jr. | Robert J. Rutland | |
President | Founder | |
W. Clyde Shepherd III | Rankin M. Smith, Jr. |
James B. Miller, Jr.
|
Chairman and CEO
Fidelity Southern Corporation Fidelity Bank LionMark Insurance Company |
Board Member
Berlin American Companies Interface, Inc. American Software |
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Major General (Ret) David R. Bockel
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Deputy Executive Director
Reserve Officers Association of the United States Washington, D.C. |
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Edward G. Bowen, M.D.
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Retired
Gynecologist and Obstetrician |
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Dr. Donald A. Harp, Jr.
Minister Emeritus |
Adjunct Professor
Candler School of Theology Emory University |
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Kevin S. King
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Attorney
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Executive Director
Greenfield Hebrew Academy |
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James H. Miller III
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President and CEO
Southern Nuclear Operating Company |
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H. Palmer Proctor, Jr.
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President
Fidelity Southern Corporation Fidelity Bank |
Secretary and Treasurer
LionMark Insurance Company |
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Robert J. Rutland, Founder
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Chairman and CEO
Greyland Development Group |
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W. Clyde Shepherd III
|
President
Plant Improvement Co., Inc. |
President
Toco Hill, Inc. |
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Rankin M. Smith, Jr.
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Owner and Manager
Seminole Plantation |
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||
W. Clyde Shepherd, Jr. | ||
Founder |
W. Clyde Shepherd, Jr.,
|
Founder
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Director Emeritus
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Senior Management
|
James B. Miller, Jr.
|
Chairman and CEO
Fidelity Southern Corporation Fidelity Bank LionMark Insurance Company |
H. Palmer Proctor, Jr.
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President
Fidelity Southern Corporation Fidelity Bank |
Secretary and Treasurer
LionMark Insurance Company |
Stephen H. Brolly
|
Chief Financial Officer
Fidelity Southern Corporation Fidelity Bank LionMark Insurance Company |
David Buchanan
|
Vice President
Fidelity Southern Corporation |
Executive Vice President
Fidelity Bank |
President
LionMark Insurance Company |
* | Investment services offered exclusively through Reliance Corporation, LLC, member NASD/SIPC, an independent broker/dealer, and: are not FDIC insured or insured by any Federal Government Aggency; are not deposits or guaranteed by Fidelity Bank; and are subject to risk and my lose value. |
Executive Offices
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Telephone Banking | |
3490 Piedmont Road, NE
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404-248-LION (5466) | |
Suite 1550
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888-248-LION (5466) | |
Atlanta, GA 30305
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404-639-6500
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Online Banking | |
Main Office Number
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www.lionbank.com | |
404-639-6500
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Independent Registered Public Accounting Firm | ||
Ernst & Young LLP
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Atlanta, GA
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Legal Counsel
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Kilpatrick Stockton LLP
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Atlanta, GA
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| Change of name or address | |
| Consolidation of accounts | |
| Duplicate mailings | |
| Dividend reinvestment enrollment | |
| Lost stock certificates | |
| Transfer of stock to another person | |
| Additional administrative services |
2008 | High | Low | ||||||
Fourth Quarter
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$ | 4.89 | $ | 1.49 | ||||
Third Quarter
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6.68 | 2.26 | ||||||
Second Quarter
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8.68 | 4.26 | ||||||
First Quarter
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10.30 | 7.24 |
2007 | High | Low | ||||||
Fourth Quarter
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$ | 15.05 | $ | 8.45 | ||||
Third Quarter
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17.44 | 12.98 | ||||||
Second Quarter
|
19.16 | 16.46 | ||||||
First Quarter
|
19.00 | 18.03 |
/s/ Ernst & Young LLP | ||||
Atlanta, Georgia | ||||
March 12, 2009 |
1. | I have reviewed this Annual Report on Form 10-K of Fidelity Southern Corporation; | |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations, and cash flows of the registrant as of, and for, the periods presented in this report; | |
4. | The registrants other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have: |
(a) | Designed such disclosure controls and procedures or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
(c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
(d) | Disclosed in this report any significant change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of registrants board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize, and report financial information; and |
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal controls over financial reporting. |
Date: March 13, 2009
|
||||
/s/ James B. Miller, Jr. | ||||
James B. Miller, Jr. | ||||
Chief Executive Officer
Fidelity Southern Corporation |
1. | I have reviewed this Annual Report on Form 10-K of Fidelity Southern Corporation; | |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations, and cash flows of the registrant as of, and for, the periods presented in this report; | |
4. | The registrants other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have: |
(a) | Designed such disclosure controls and procedures or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
(c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
(d) | Disclosed in this report any significant change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of registrants board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize, and report financial information; and | ||
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal controls over financial reporting. |
Date: March 13, 2009
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/s/ Stephen H. Brolly | ||||
Stephen H. Brolly
Chief Financial Officer Fidelity Southern Corporation |
1. | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and | |
2. | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Corporation. |
Date: March 13, 2009 | /s/ James B. Miller, Jr. | |||
Name: | James B. Miller, Jr. | |||
Title: |
Chief Executive Officer
Fidelity Southern Corporation |
1. | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and | |
2. | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Corporation. |
Date: March 13, 2009 | /s/ Stephen H. Brolly | |||
Name: | Stephen H. Brolly | |||
Title: |
Chief Financial Officer
Fidelity Southern Corporation |
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