UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

Date of report (Date of earliest event reported): December 15, 2014

 

Ameris Bancorp
(Exact Name of Registrant as Specified in Charter)

 

Georgia 001-13901 58-1456434
(State or Other (Commission File Number) (IRS Employer
Jurisdiction of   Identification No.)
Incorporation)    

 

310 First Street, S.E., Moultrie, Georgia 31768
(Address of Principal Executive Offices) (Zip Code)

 

Registrant’s telephone number, including area code: (229) 890-1111

 

 
(Former Name or Former Address, if Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 
 

 

Item 1.01.Entry into a Material Definitive Agreement.

 

On December 15, 2014, Ameris Bancorp (the “Company”) and its wholly owned banking subsidiary, Ameris Bank (the “Bank”), entered into an Executive Employment Agreement (each, an “Employment Agreement”) with each of Edwin W. Hortman, Jr., Dennis Jr. Zember Jr., Andrew B. Cheney, Jon S. Edwards, Stephen A. Melton and Cindi H. Lewis, each of whom is an existing executive officer of the Company and the Bank. Except in the case of Mr. Melton, who did not have an employment agreement with the Company or the Bank previously, each executive’s Employment Agreement replaces and supersedes his or her prior employment agreement with the Company. The Employment Agreements were entered into by the Company following a periodic review of executive compensation matters conducted by the Compensation Committee of the Board of Directors of the Company (the “Committee”) during which the Committee determined to, among other things, seek to have all executive officers of the Company be employed pursuant to similar agreements having comparable provisions, to the extent reasonably practicable. The following is a summary of the general terms and conditions of each Employment Agreement.

 

Title, Term and Compensation Provisions

 

Mr. Hortman’s Employment Agreement provides that he will continue to serve as the President and Chief Executive Officer of the Company and the Chief Executive Officer of the Bank. The Employment Agreement provides for a continuously (on a daily basis) renewing term of three years, unless either Mr. Hortman or the Company provides written notice to the other that the term of his employment will not be further extended, in which case the term of his employment will expire on the date that is three years after the date specified in the non-renewal notice. Mr. Hortman will receive a minimum annual salary of $485,000 under his Employment Agreement.

 

Mr. Zember’s Employment Agreement provides that he will continue to serve as the Executive Vice President and Chief Financial Officer of the Company and the Bank. The Employment Agreement provides for a term of two years, which will renew for successive terms of two years each unless either Mr. Zember or the Company provides written notice to the other at least 90 days prior to the applicable renewal date that his employment will not be further extended. Mr. Zember will receive a minimum annual salary of $285,000 under his Employment Agreement.

 

Mr. Cheney’s Employment Agreement provides that he will continue to serve as the Executive Vice President, Chief Operating Officer and Banking Group President of the Company and the President and Chief Operating Officer of the Bank. The Employment Agreement provides for a term of two years, which will renew for successive terms of two years each unless either Mr. Cheney or the Company provides written notice to the other at least 90 days prior to the applicable renewal date that his employment will not be further extended. Mr. Cheney will receive a minimum annual salary of $350,000 under his Employment Agreement.

 

Mr. Edwards’s Employment Agreement provides that he will continue to serve as the Executive Vice President and Chief Credit Officer of the Company and the Bank. The Employment Agreement provides for a term of one year, which will renew for successive terms of one year each unless either Mr. Edwards or the Company provides written notice to the other at least 90 days prior to the applicable renewal date that his employment will not be further extended. Mr. Edwards will receive a minimum annual salary of $220,000 under his Employment Agreement.

 

Mr. Melton’s Employment Agreement provides that he will continue to serve as the Executive Vice President and Chief Risk Officer of the Company and the Bank. The Employment Agreement provides for a term of one year, which will renew for successive terms of one year each unless either Mr. Melton or the Company provides written notice to the other at least 90 days prior to the applicable renewal date that his employment will not be further extended. Mr. Melton will receive a minimum annual salary of $260,000 under his Employment Agreement.

 

 
 

 

Ms. Lewis’s Employment Agreement provides that she will continue to serve as the Executive Vice President, Chief Administrative Officer and Corporate Secretary of the Company and the Bank. The Employment Agreement provides for a term of one year, which will renew for successive terms of one year each unless either Ms. Lewis or the Company provides written notice to the other at least 90 days prior to the applicable renewal date that her employment will not be further extended. Ms. Lewis will receive a minimum annual salary of $170,000 under her Employment Agreement.

 

Under the Employment Agreements, the Company, in accordance with the policies and procedures of the Committee, will review each executive’s total compensation at least annually and may increase (but not decrease) the executive’s annual salary from the amount set forth above. In addition, each executive will be entitled to participate, as determined by the Committee, in all incentive plans of the Company applicable to its senior executives generally, including short-term and long-term incentive plans and equity compensation plans. Each executive will also be eligible to participate in all other employee benefit plans, practices, policies and programs provided by the Company applicable to its senior executives generally.

 

Termination and Severance Provisions

 

Each Employment Agreement provides that the applicable executive’s employment may be terminated by the Company for “Cause” (as defined in the Employment Agreements) or without Cause, or by the executive for “Good Reason” (as defined in the Employment Agreements) or without Good Reason. The executive’s employment will terminate upon a determination that the executive is disabled or automatically upon the executive’s death.

 

If an executive’s employment is terminated by the Company for Cause or by the executive without Good Reason, then under his or her Employment Agreement, the executive will be entitled to receive any accrued but unpaid salary and accrued but unused vacation, sick or other leave pay. If the executive’s employment is terminated by the executive without Good Reason, then he or she will also be entitled to any earned but unpaid cash bonus with respect to the completed fiscal year immediately preceding the termination date, which will be paid on the otherwise applicable payment date. The foregoing amounts are referred to collectively as the “Accrued Amounts.”

 

If an executive’s employment is terminated by the Company without Cause or by the executive for Good Reason, then, in addition to the Accrued Amounts, the executive will be entitled under his or her Employment Agreement to receive the following: (i) an amount equal to one, two or three times (with such multiple corresponding to the applicable executive’s term of employment of one, two or three years provided in his or her Employment Agreement) the sum of (A) the executive’s salary and (B) the executive’s highest cash bonus earned with respect to any fiscal year within the three most recently completed fiscal years immediately preceding the termination date; (ii) an amount equal to the product of (A) the cash bonus, if any, that the executive would have earned for the fiscal year in which the termination date occurs based on the achievement of applicable performance goals for such year and (B) a fraction, the numerator of which is the number of days the executive was employed by the Company during the year of termination and the denominator of which is the number of days in such year (the “Pro-Rata Bonus”); and (iii) reimbursement for the monthly COBRA premium paid by the executive for the executive and his or her dependents for a period of as many as 18 months.

 

If an executive’s employment is terminated on account of the executive’s death or disability, then the executive (or his or her estate or beneficiaries, as the case may be) will be entitled to receive the Accrued Amounts and an amount equal to the Pro-Rata Bonus, if any, that the executive would have earned for the fiscal year in which the employment termination date occurs based on the achievement of applicable performance goals for such year.

 

 
 

 

Restrictive Covenant Provisions

 

The Employment Agreements prohibit the executives from disclosing or using confidential information or trade secrets of the Company and the Bank for any purpose other than as necessary and appropriate in the performance of the executives’ duties under the Employment Agreements. In addition, while the applicable executive is employed and thereafter for an additional period of one, two or three years (with such number of years for each executive corresponding to his or her term of employment of one, two or three years provided in his or her Employment Agreement), the executive agrees not to, on his or her own behalf or in the service or on behalf of others, (i) solicit or attempt to solicit any customer of the Company or its subsidiaries or affiliates with whom the executive had material contact during his or her employment, for the purpose of providing products or services that are competitive with those offered or provided by the Company or its subsidiaries or affiliates, (ii) perform duties and responsibilities that are the same as or substantially similar to those he or she performs for the Company or the Bank for any business which is the same as or essentially the same as the business conducted by the Company and its subsidiaries and affiliates, within a geographic territory consisting of a 50-mile radius of each of the Company’s corporate offices located in Moultrie, Georgia and Jacksonville, Florida, or (iii) solicit or recruit any employee of the Company or its subsidiaries or affiliates to cease working for such employer.

 

The descriptions of the Employment Agreements contained herein are qualified in their entirety by reference to the terms of the Employment Agreements, each of which is attached hereto as an exhibit and incorporated herein by this reference.

 

Item 5.02.Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

The information provided under Item 1.01 “Entry into a Material Definitive Agreement” is incorporated herein by reference.

 

Item 9.01.Financial Statements and Exhibits.

 

(d)Exhibits.

 

99.1Executive Employment Agreement by and among Ameris Bancorp, Ameris Bank and Edwin W. Hortman, Jr. dated as of December 15, 2014.

 

99.2Executive Employment Agreement by and among Ameris Bancorp, Ameris Bank and Dennis J. Zember Jr. dated as of December 15, 2014.

 

99.3Executive Employment Agreement by and among Ameris Bancorp, Ameris Bank and Andrew B. Cheney dated as of December 15, 2014.

 

99.4Executive Employment Agreement by and among Ameris Bancorp, Ameris Bank and Jon S. Edwards dated as of December 15, 2014.

 

99.5Executive Employment Agreement by and among Ameris Bancorp, Ameris Bank and Stephen A. Melton dated as of December 15, 2014.

 

99.6Executive Employment Agreement by and among Ameris Bancorp, Ameris Bank and Cindi H. Lewis dated as of December 15, 2014.

 

 
 

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Company has duly caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

  AMERIS BANCORP
     
  By: /s/ Edwin W. Hortman, Jr.
    Edwin W. Hortman, Jr.
    President and Chief Executive Officer

 

Dated: December 18, 2014

 

 
 

 

EXHIBIT INDEX

 

Exhibit No.   Exhibit
     
99.1   Executive Employment Agreement by and among Ameris Bancorp, Ameris Bank and Edwin W. Hortman, Jr. dated as of December 15, 2014.
     
99.2   Executive Employment Agreement by and among Ameris Bancorp, Ameris Bank and Dennis J. Zember Jr. dated as of December 15, 2014.
     
99.3   Executive Employment Agreement by and among Ameris Bancorp, Ameris Bank and Andrew B. Cheney dated as of December 15, 2014.
     
99.4   Executive Employment Agreement by and among Ameris Bancorp, Ameris Bank and Jon S. Edwards dated as of December 15, 2014.
     
99.5   Executive Employment Agreement by and among Ameris Bancorp, Ameris Bank and Stephen A. Melton dated as of December 15, 2014.
     
99.6   Executive Employment Agreement by and among Ameris Bancorp, Ameris Bank and Cindi H. Lewis dated as of December 15, 2014.

 

 



 

Exhibit 99.1

 

EXECUTIVE EMPLOYMENT AGREEMENT

 

THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered as of the 15th day of December, 2014, by and among AMERIS BANCORP, a Georgia corporation (the “Bancorp”), AMERIS BANK, a Georgia state-chartered bank and wholly owned subsidiary of the Bancorp (the “Bank”; the Bancorp and the Bank are collectively referred to herein as the “Employer”), and EDWIN W. HORTMAN, JR. (“Executive”).

 

BACKGROUND

 

WHEREAS, the expertise and experience of Executive in the financial institutions industry are valuable to the Employer;

 

WHEREAS, it is in the best interests of the Employer to maintain an experienced and sound executive management team to manage the Employer, further the Employer’s overall strategies and protect and enhance shareholder value; and

 

WHEREAS, the Employer and Executive desire to enter into this Agreement to establish the scope, terms and conditions of Executive’s continued employment by the Employer;

 

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.          Effective Date. The effective time and date of this Agreement shall be deemed to be 12:00:01 a.m. on the date of its making first set forth above (the “Effective Date”).

 

2.          Employment. Executive is employed as the President and Chief Executive Officer of the Bancorp and the Chief Executive Officer of the Bank. Executive’s responsibilities, duties, prerogatives and authority in such offices shall be those customary for persons holding such offices of institutions in the financial institutions industry, as well as such other duties of an executive, managerial or administrative nature, which are consistent with such offices, as shall be specified and designated from time to time by the Board of Directors of the Bancorp (the “Bancorp Board”).

 

3.          Employment Period. Unless earlier terminated in accordance with Section 6 hereof, Executive’s employment under this Agreement shall begin as of the Effective Date and shall continue thereafter for a continuously (on a daily basis) renewing term of three years (the “Employment Period”), unless either Executive or the Employer provides written notice to the other that the Employment Period shall not be further extended and specifying in such notice the date of such non-renewal, in which case the Employment Period shall expire on the date that is three years after the date specified in such non-renewal notice. For purposes of this Agreement, “terminate” (and variations and derivatives thereof) shall mean, when used in connection with a cessation of employment, that Executive has incurred a separation from service as defined in Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and guidance and regulations issued thereunder (collectively, “Section 409A”).

 

 
 

  

4.          Extent of Service. During the Employment Period, and excluding any periods of vacation, sick or other leave to which Executive is entitled under this Agreement, Executive agrees to devote all of Executive’s business time and efforts to serving the business and affairs of the Employer commensurate with Executive’s offices. During the Employment Period, it shall not be a violation of this Agreement for Executive, subject to the requirements of Section 11, to (i) serve on civic or charitable boards or committees or (ii) manage personal investments, so long as such activities do not materially interfere with the performance of Executive’s responsibilities to the Employer or violate the Employer’s conflicts of interest or other applicable policies.

 

5.          Compensation and Benefits.

 

(a)          Base Salary. During the Employment Period, the Employer will pay to Executive a base salary at the rate of at least $485,000 per year (“Base Salary”), less normal withholdings, payable in equal monthly or more frequent installments as are customary under the Employer’s payroll procedures from time to time. In accordance with the policies and procedures of the Compensation Committee (the “Committee”) of the Bancorp Board, the Employer shall review Executive’s total compensation at least annually and in its sole discretion may adjust Executive’s total compensation from year to year, but during the Employment Period the Employer may not decrease Executive’s Base Salary below $485,000; provided, however, that periodic increases in Base Salary, once granted, shall not be subject to revocation. The annual review of Executive’s total compensation will consider, among other things, changes in the cost of living, Executive’s own performance and the Bancorp’s consolidated performance.

 

(b)          Incentive Plans. During the Employment Period, Executive shall be entitled to participate, as determined by the Committee, in all incentive plans of the Employer applicable to senior executives of the Employer generally, including, without limitation, short-term and long-term incentive plans and equity compensation plans.

 

(c)          Benefit Plans. During the Employment Period, Executive or Executive’s dependents, as the case may be, shall be eligible for participation in all employee benefit plans, practices, policies and programs provided by the Employer applicable to senior executives of the Employer generally (the “Benefit Plans”).

 

(d)          Expenses. During the Employment Period, Executive shall be entitled to receive prompt reimbursement, in accordance with the policies, practices and procedures of the Employer applicable to senior executives of the Employer generally, for all reasonable and necessary out-of-pocket expenses incurred by Executive in the performance of Executive’s duties under this Agreement. The expenses eligible for reimbursement under this Section 5(d) in any year shall not affect any expenses eligible for reimbursement or in-kind benefits in any other year. Executive’s rights under this Section 5(d) are not subject to liquidation or exchange for any other benefit.

 

(e)          Vacation, Sick and Other Leave. During the Employment Period, Executive shall be entitled annually to a minimum of 20 business days of paid vacation and shall be entitled to those number of business days of paid disability, sick and other leave specified in the employment policies of the Employer.

 

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6.          Termination of Employment.

 

(a)          Cause. The Employer may terminate Executive’s employment with the Employer for Cause. For purposes of this Agreement, “Cause” shall mean:

 

(i)          the willful and continued failure of Executive to perform Executive’s duties with the Employer, other than any such failure resulting from Disability (as defined below), or to follow the directives of the Bancorp Board or a more senior executive of the Employer, following written notice from the Bancorp Board specifying such failure;

 

(ii)         Executive’s willful misconduct or gross negligence (including, but not limited to, a material willful violation of the Employer’s written corporate governance and ethics guidelines and codes of conduct) in connection with the Employer’s business or relating to Executive’s duties hereunder;

 

(iii)        Executive’s habitual substance abuse;

 

(iv)        Executive’s being convicted of, or pleading guilty or nolo contendere to, a felony or a crime involving moral turpitude;

 

(v)         Executive’s willful theft, embezzlement or act of comparable dishonesty against the Employer;

 

(vi)        a willful act by Executive which constitutes a material breach of Executive’s fiduciary duty to the Employer;

 

(vii)       a material breach by Executive of this Agreement, which breach is not cured (if curable) by Executive within 30 days following Executive’s receipt of written notice thereof; or

 

(viii)      conduct by Executive that results in the permanent removal of Executive from Executive’s position as an officer or employee of the Bancorp or the Bank pursuant to a written order by any banking regulatory agency with authority or jurisdiction over the Bancorp or the Bank, as the case may be.

 

For purposes of this Section 6(a), no act or failure to act on the part of Executive shall be considered “willful” unless it is done, or omitted to be done, by Executive in bad faith or without reasonable belief that Executive’s action or omission was in the best interests of the Employer.

 

(b)          Good Reason. Executive may terminate Executive’s employment with the Employer for Good Reason. For purposes of this Agreement, “Good Reason” shall mean: (i) a material diminution in Executive’s authority, duties or responsibilities; (ii) a material change in the geographic location at which Executive must regularly perform the services to be performed by Executive pursuant to this Agreement (other than a change in such geographic location to an office or other location closer to Executive’s home residence); and (iii) any other action or inaction that constitutes a material breach by the Employer of this Agreement; provided, however, that Executive must provide notice to the Employer of the condition Executive contends is Good Reason within 90 days after the initial existence of the condition, and the Employer must have a period of 30 days to remedy the condition. If the condition is not remedied within such 30-day period, then Executive must provide a Notice of Termination as set forth in Section 6(f) within 30 days after the end of the Employer’s remedy period.

 

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(c)          Without Cause. The Employer may terminate Executive’s employment without Cause (a “Termination Without Cause”).

 

(d)          Voluntary Termination. Executive may voluntarily terminate Executive’s employment without Good Reason (a “Voluntary Termination”).

 

(e)          Death or Disability. Executive’s employment with the Employer shall terminate automatically upon Executive’s death during the Employment Period. If the Employer determines in good faith that the Disability of Executive has occurred during the Employment Period, it may give to Executive written notice in accordance with Sections 6(f) and 14(i) of this Agreement of its intention to terminate Executive’s employment. In such event, Executive’s employment with the Employer shall terminate effective on the 45th day after receipt of such written notice by Executive (the “Disability Effective Date”), provided that, within the 30 days after such receipt, Executive shall not have returned to full-time performance of Executive’s duties. For purposes of this Agreement, “Disability” shall mean the inability of Executive to perform Executive’s duties with the Employer on a full-time basis for 180 days in any one-year period as a result of incapacity due to mental or physical illness or injury.

 

(f)          Notice of Termination. Any termination (other than for death) shall be communicated by a Notice of Termination given in accordance with Section 14(i) of this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice that (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated and (iii) if the Termination Date (as defined below) is other than the date of receipt of such notice, specifies the Termination Date (which date shall be not more than 30 days after the giving of such notice, except as otherwise provided in Section 6(e)). The failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Disability, Cause or Good Reason shall not waive any right of Executive or the Employer hereunder or preclude Executive or the Employer from asserting such fact or circumstance in enforcing Executive’s or the Employer’s rights hereunder.

 

(g)          Termination Date. “Termination Date” means (i) if Executive’s employment is terminated by the Employer for Cause or without Cause, the date of Executive’s receipt of the Notice of Termination or a later date specified therein, as the case may be, (ii) if Executive’s employment is terminated by Executive for Good Reason, the date of the Employer’s receipt of the Notice of Termination, (iii) if Executive’s employment is terminated by Executive as a Voluntary Termination, the date of the Employer’s receipt of the Notice of Termination or a later date specified therein, as the case may be, and (iv) if Executive’s employment is terminated by reason of death or Disability, the Termination Date shall be the date of death of Executive or the Disability Effective Date, as the case may be.

 

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7.          Obligations of the Employer Upon Termination.

 

(a)          Cause; Voluntary Termination. If, during the Employment Period, the Employer shall terminate Executive’s employment for Cause or Executive shall terminate Executive’s employment by a Voluntary Termination, then Executive shall be entitled to receive the following (collectively, the “Accrued Amounts”):

 

(i)          any accrued but unpaid Base Salary and accrued but unused vacation, sick or other leave pay, which shall be paid on the pay date immediately following the Termination Date in accordance with the Employer’s customary payroll procedures;

 

(ii)         any earned but unpaid cash bonus with respect to any completed fiscal year immediately preceding the Termination Date, which shall be paid on the otherwise applicable payment date; provided, however, that if Executive’s employment is terminated by the Employer for Cause, then any such accrued but unpaid cash bonus shall be forfeited;

 

(iii)        reimbursement for unreimbursed business expenses properly incurred by Executive, which shall be subject to and paid in accordance with the Employer’s expense reimbursement policies, practices and procedures; and

 

(iv)        such employee benefits, if any, as to which Executive may be entitled under the Benefit Plans as of the Termination Date.

 

(b)          Termination Without Cause or for Good Reason. If, during the Employment Period, the Employer shall terminate Executive’s employment without Cause or Executive shall terminate Executive’s employment for Good Reason, then Executive shall be entitled to receive the Accrued Amounts and, subject to Executive’s execution of a release of claims in favor of the Employer, its subsidiaries and affiliates and their respective officers and directors in a form to be provided by the Employer (the “Release”) and such Release becoming effective within 45 days following the Termination Date (such 45-day period, for purposes of this Section 7(b), the “Release Execution Period”), Executive shall also be entitled to receive the following:

 

(i)          a lump sum amount equal to three times the sum of (A) Executive’s Base Salary and (B) Executive’s highest cash bonus earned with respect to any fiscal year within the three most recently completed fiscal years immediately preceding the Termination Date, which amount shall be paid in cash on or before the 60th day after the Termination Date; provided, however, that if the Release Execution Period begins in one taxable year and ends in another taxable year, then payment shall not be made until the beginning of the second taxable year;

 

(ii)         a lump sum amount equal to the product of (A) the cash bonus, if any, that Executive would have earned for the fiscal year in which the Termination Date occurs based on the achievement of applicable performance goals for such year and (B) a fraction, the numerator of which is the number of days Executive was employed by the Employer during the year of termination and the denominator of which is the number of days in such year (the “Pro-Rata Bonus”), which amount shall be paid in cash on the date that annual bonuses are paid to senior executives of the Employer generally, but in no event later than two-and-one-half months following the end of the fiscal year in which the Termination Date occurs; and

 

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(iii)        if Executive timely and properly elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), then the Employer shall reimburse Executive for the monthly COBRA premium paid by Executive for Executive and Executive’s dependents until the earliest of: (A) the 18-month anniversary of the Termination Date; (B) the date Executive is no longer eligible to receive COBRA continuation coverage; and (C) the date on which Executive becomes eligible to receive substantially similar coverage from another employer. Such reimbursement shall be paid to Executive on the 15th day of the month immediately following the month in which Executive timely remits the premium payment.

 

(c)          Death or Disability. If Executive’s employment is terminated during the Employment Period on account of Executive’s death or Disability, Executive (or Executive’s estate or beneficiaries, as the case may be) shall be entitled to receive the following: (i) the Accrued Amounts; and (ii) a lump sum amount equal to the Pro-Rata Bonus, if any, that Executive would have earned for the fiscal year in which the Termination Date occurs based on the achievement of applicable performance goals for such year, which amount shall be paid in cash on the date that annual bonuses are paid to senior executives of the Employer generally, but in no event later than two-and-one-half months following the end of the fiscal year in which the Termination Date occurs. Notwithstanding any other provision contained herein, all payments made in connection with Executive’s Disability shall be provided in a manner that is consistent with federal and state law.

 

8.          Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any plan, program, policy or practice provided by the Employer and for which Executive may qualify, nor shall anything herein limit or otherwise affect such rights as Executive may have under any contract or agreement with the Employer, except as expressly provided otherwise in this Agreement. Amounts which are vested benefits or which Executive is otherwise entitled to receive under any plan, policy, practice or program of or any contract or agreement with the Employer at or subsequent to the Termination Date shall be payable in accordance with such plan, policy, practice or program or such contract or agreement, except as expressly modified by this Agreement.

 

9.          No Mitigation. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under Section 7 of this Agreement.

 

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10.         Code Section 280G.

 

(a)          Certain Reductions in Agreement Payments. Anything in this Agreement to the contrary notwithstanding, in the event a nationally recognized independent accounting firm designated by the Employer and reasonably acceptable to Executive (the “Accounting Firm”) shall determine that receipt of all payments or distributions by the Employer and its affiliates in the nature of compensation to or for Executive’s benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”), would subject Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine as required below in this Section 10(a) whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) to the Reduced Amount (as defined below). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if Executive’s Agreement Payments were so reduced. If the Accounting Firm determines that Executive would not have a greater Net After-Tax Receipt of aggregate Payments if Executive’s Agreement Payments were so reduced, then Executive shall receive all Agreement Payments to which Executive is entitled.

 

(b)          Accounting Firm Determinations. If the Accounting Firm determines that aggregate Agreement Payments should be reduced to the Reduced Amount, then the Employer shall promptly give Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 10 shall be binding upon the Employer and Executive and shall be made as soon as reasonably practicable and in no event later than 20 days following the Termination Date. For purposes of reducing the Agreement Payments to the Reduced Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: first from Section 7(b)(iii), then from Section 7(b)(ii) and lastly from Section 7(b)(i). All fees and expenses of the Accounting Firm shall be borne solely by the Employer.

 

(c)          Overpayments; Underpayments. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Employer to or for the benefit of Executive pursuant to this Agreement which should not have been so paid or distributed (an “Overpayment”) or that additional amounts which will have not been paid or distributed by the Employer to or for the benefit of Executive pursuant to this Agreement which should have been so paid or distributed (an “Underpayment”), in each case consistent with the calculation of the Reduced Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Employer or Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, Executive shall pay any such Overpayment to the Employer together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by Executive to the Employer if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be paid promptly (and in no event later than 60 days following the date on which the Underpayment is determined) by the Employer to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.

 

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(d)          Definitions. The following terms shall have the following meanings for purposes of this Section 10:

 

(i)          “Reduced Amount” shall mean the greatest amount of Agreement Payments that can be paid that would not result in the imposition of the excise tax under Section 4999 of the Code if the Accounting Firm determines to reduce Agreement Payments pursuant to Section 10(a).

 

(ii)         “Net After-Tax Receipt” shall mean the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to Executive’s taxable income for the immediately preceding taxable year, or such other rate(s) as the Accounting Firm determined to be likely to apply to Executive in the relevant taxable year(s).

 

11.         Restrictive Covenants.

 

(a)          Executive Acknowledgements. Executive acknowledges that (i) the Employer has separately bargained and paid additional consideration for the restrictive covenants in this Section 11 and (ii) the Employer will provide certain benefits to Executive hereunder in reliance on such covenants in view of the unique and essential nature of the services Executive will perform on behalf of the Employer and the irreparable injury that would befall the Employer should Executive breach such covenants. Executive further acknowledges that Executive’s services are of a special, unique and extraordinary character and that Executive’s position with the Employer will place Executive in a position of confidence and trust with customers and employees of the Employer and its subsidiaries and affiliates and with the Employer’s other constituencies and will allow Executive access to Trade Secrets and Confidential Information (each as defined below) concerning the Employer and its subsidiaries and affiliates. Executive further acknowledges that the types and periods of restrictions imposed by the covenants in this Section 11 are fair and reasonable and that such restrictions will not prevent Executive from earning a livelihood.

 

(b)          Covenants. Having acknowledged the foregoing, Executive covenants and agrees with the Employer as follows:

 

(i)          While Executive is employed by the Employer and continuing thereafter, Executive shall not disclose or use any Confidential Information or Trade Secret for so long as such information remains Confidential Information or a Trade Secret, as applicable, for any purpose other than as may be necessary and appropriate in the ordinary course of performing Executive’s duties to the Employer during the Employment Period.

 

(ii)         While Executive is employed by the Employer and for a period of three years thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), on Executive’s own behalf or in the service or on behalf of others, solicit or attempt to solicit any customer of the Employer or its subsidiaries or affiliates, including, without limitation, actively sought prospective customers, with whom Executive had Material Contact (as defined below) during Executive’s employment, for the purpose of providing products or services that are Competitive (as defined below) with those offered or provided by the Employer or its subsidiaries or affiliates or, in the event of Executive’s termination, Competitive with those offered or provided by the Employer or its subsidiaries or affiliates within the two years immediately preceding the termination of Executive’s employment.

 

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(iii)        While Executive is employed by the Employer and for a period of three years thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), either directly or indirectly, on Executive’s own behalf or in the service or on behalf of others, perform duties and responsibilities that are the same as or substantially similar to those Executive performs for the Employer or, in the event of Executive’s termination, performed for the Employer within two years prior to the termination of Executive’s employment, for any business which is the same as or essentially the same as the business conducted by the Employer and its subsidiaries and affiliates, within the Restricted Territory (as defined below).

 

(iv)        While Executive is employed by the Employer and for a period of three years thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), on Executive’s own behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any employee of the Employer or its subsidiaries or affiliates, whether or not such employee is a full-time employee or a temporary employee of the Employer or its subsidiaries or affiliates, whether or not such employment is pursuant to a written agreement and whether or not such employment is for a determined period or is at will, to cease working for the Employer.

 

(v)         Upon the expiration of the Employment Period, or Executive’s earlier termination or resignation, Executive will turn over promptly thereafter to the Employer all physical items and other property belonging to the Employer, including, without limitation, all business correspondence, letters, papers, reports, customer lists, financial statements, credit reports or other Confidential Information, data or documents of the Employer, in the possession or control of Executive, all of which are and will continue to be the sole and exclusive property of the Employer.

 

(c)          Definitions. For purposes of this Section 11, the following terms shall be defined as set forth below:

 

(i)          “Competitive,” with respect to particular products or services, shall mean products or services that are the same as or similar to the products or services of the Employer and its subsidiaries and affiliates.

 

(ii)         “Confidential Information” shall mean data and information: (A) relating to the business of the Employer and its subsidiaries and affiliates, regardless of whether the data or information constitutes a Trade Secret; (B) disclosed to Executive or of which Executive becomes aware as a consequence of Executive’s relationship with the Employer; (C) having value to the Employer; and (D) not generally known to competitors of the Employer. Confidential Information shall include, without limitation, Trade Secrets, methods of operation, names of customers, price lists, financial information and projections, personnel data and similar information; provided, however, that such term shall not mean data or information that (x) has been voluntarily disclosed to the public by the Employer, except where such public disclosure has been made by Executive without authorization from the Employer, (y) has been independently developed and disclosed by others or (z) has otherwise entered the public domain through lawful means.

 

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(iii)        “Material Contact” shall mean contact between Executive and a customer or prospective customer: (A) with whom or which Executive dealt on behalf of the Employer or its subsidiaries or affiliates; (B) whose dealings with the Employer were coordinated or supervised by Executive; (C) about whom Executive obtained Confidential Information in the ordinary course of business as a result of Executive’s association with the Employer; or (D) who receives products or services as authorized by the Employer, the sale or provision of which results or resulted in compensation, commissions or earnings for Executive within the two years immediately preceding the Termination Date.

 

(iv)        “Restricted Territory” shall mean the geographic territory within a 50-mile radius of each of the Employer’s corporate offices located at 310 First Street, S.E., Moultrie, Georgia 31768 and 7915 Baymeadows Way, Suite 300, Jacksonville, Florida 32256; provided, however, that if the physical location of either or both of such offices shall change during the Term, then the Restricted Territory shall mean the geographic territory within a 50-mile radius of the physical locations of such offices at such time and, in the event of the termination of Executive’s employment, the Restricted Territory shall mean the geographic territory within a 50-mile radius of the physical locations of such offices on the Termination Date.

 

(v)         “Trade Secret” shall mean information, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans or a list of actual or potential customers or suppliers, that is not commonly known by or available to the public and which information (A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

 

(d)          Equitable Remedies. Executive acknowledges that irreparable loss and injury would result to the Employer upon the breach of any of the covenants contained in this Section 11 and that damages arising out of such breach would be difficult to ascertain. Executive hereby agrees that, in addition to all other remedies provided at law or in equity, the Employer may petition and obtain from a court of law or equity, without the necessity of proving actual damages and without posting any bond or other security, both temporary and permanent injunctive relief to prevent a breach by Executive of any covenant contained in this Section 11.

 

(e)          Modification of Covenants. In the event that the provisions of this Section 11 should ever be determined to exceed the time, geographic or other limitations permitted by applicable law, then such provisions shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision(s) cannot be modified to be enforceable, the provision(s) shall be severed from this Agreement to the extent unenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.

 

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12.         Executive’s Representations. Executive hereby represents to the Employer that the execution and delivery of this Agreement by Executive and the Employer and the performance by Executive of Executive’s duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any employment agreement or other agreement or policy to which Executive is a party or otherwise bound. Executive represents and warrants that Executive is not subject to any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, restrictive covenant or any other obligation to any former employer or to any other person or entity that conflicts in any way with Executive’s ability to be employed by or perform services for the Employer.

 

13.         Assignment and Successors.

 

(a)          Executive. This Agreement is personal to Executive and without the prior written consent of the Employer shall not be assignable by Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by Executive’s legal representatives.

 

(b)          The Employer. This Agreement shall inure to the benefit of and be binding upon the Employer and its successors and assigns. The Bancorp and the Bank will each require any successor to it (whether direct or indirect, by stock or asset purchase, merger, consolidation or otherwise) or to all or substantially all of its business or assets to assume expressly and agree to perform this Agreement in the same manner and to the same extent it would be required to perform it if no such succession had taken place.

 

14.         Miscellaneous.

 

(a)          Waiver. Failure of either party to insist, in one or more instances, on performance by the other in strict accordance with the terms and conditions of this Agreement shall not be deemed a waiver or relinquishment of any right granted in this Agreement or of the future performance of any such term or condition or of any other term or condition of this Agreement, unless such waiver is contained in a writing signed by the party making the waiver.

 

(b)          Severability. If any provision or covenant, or any part thereof, of this Agreement should be held by any court to be invalid, illegal or unenforceable, either in whole or in part, such invalidity, illegality or unenforceability shall not affect the validity, legality enforceability of the remaining provisions or covenants, or any part thereof, of this Agreement, all of which shall remain in full force and effect.

 

(c)          Entire Agreement. Except as provided herein, this Agreement contains the entire agreement between the Employer and Executive with respect to the subject matter hereof and from and after the Effective Date supersedes and invalidates all previous employment agreements with Executive, including that certain Executive Employment Agreement between the Bancorp and Executive dated as of December 31, 2003, as amended prior to the Effective Date. No representations, inducements, promises or agreements, oral or otherwise, which are not embodied herein shall be of any force or effect.

 

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(d)          Withholdings. Notwithstanding any other provision of this Agreement, the Employer shall withhold from any amounts payable or benefits provided under this Agreement any federal, state and local taxes as shall be required to be withheld pursuant to any applicable law or regulation.

 

(e)          Compliance with Section 409A.

 

(i)          It is intended that this Agreement shall conform with all applicable Section 409A requirements to the extent Section 409A applies to any provisions of the Agreement. Accordingly, in interpreting, construing or applying any provisions of the Agreement, the same shall be construed in such manner as shall meet and comply with Section 409A, and in the event of any inconsistency with Section 409A, the same shall be reformed so as to meet the requirements of Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments. In no event shall Executive, directly or indirectly, designate the calendar year of payment. Executive acknowledges that the Employer has not made, and does not make, any representation or warranty regarding the treatment of this Agreement or the benefits payable under this Agreement under federal, state or local income tax laws, including, but not limited to, Section 409A or compliance with the requirements thereof.

 

(ii)         To the extent Executive is a “specified employee” as defined in Section 409A, notwithstanding the timing of payment provided in any other Section of this Agreement, no payment, distribution or benefit under this Agreement that constitutes a distribution of deferred compensation (within the meaning of Section 409A) upon separation from service (within the meaning of Section 409A), after taking into account all available exemptions, that would otherwise be payable, distributable or settled during the six-month period after separation from service, will be made during such six-month period, and any such payment, distribution or benefit will instead be paid, distributed or settled on the first business day after such six-month period; provided, however, that if Executive dies following the Termination Date and prior to the payment, distribution, settlement or provision of any payments, distributions or benefits delayed on account of Section 409A, then such payments, distributions or benefits shall be paid or provided to the personal representative of Executive’s estate within 30 days after the date of Executive’s death.

 

(f)          Clawback Provisions. Notwithstanding any other provisions in this Agreement to the contrary, any bonus, incentive-based, equity-based or other similar compensation paid to Executive pursuant to this Agreement or any other agreement or arrangement with the Employer which is subject to recovery under any law, government regulation or stock exchange listing requirement will be subject to such deductions and clawback as may be required to be made pursuant to such law, government regulation or stock exchange listing requirement (or any policy adopted by the Employer pursuant to any such law, government regulation or stock exchange listing requirement).

 

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(g)          Governing Law. Except to the extent preempted by federal law, the laws of the State of Georgia shall govern this Agreement in all respects, whether as to its validity, construction, capacity, performance or otherwise.

 

(h)          Arbitration. Except for any claim for injunctive relief hereunder or as provided in Section 11 hereof, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration in accordance with the rules and procedures of the American Arbitration Association. The place of arbitration shall be selected by the Employer. The decision of the arbitration panel shall be final and binding upon the parties, and judgment upon the award rendered by the arbitration panel may be entered by any court having jurisdiction. The parties agree that Executive and the Employer shall each bear one-half of the administrative expenses (filing and arbitrator costs) associated with the arbitration, and the prevailing party shall be entitled to reimbursement for the additional costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by such party in connection with any such dispute.

 

(i)          Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally, by nationally recognized overnight courier service or sent by certified, registered or express mail, postage prepaid. Any such notice shall be deemed given when so delivered personally, when delivered by nationally recognized overnight courier service or, if mailed, five days after the date of deposit in the United States mail, as follows:

 

To the Employer:

 

Ameris Bancorp

310 First Street, S.E.

Moultrie, Georgia 31768

Attention: Board of Directors

 

To Executive:

 

At the most recent address on file for Executive with the Employer.

 

(j)          Any party may change the address to which notices, requests, demands and other communications shall be delivered or mailed by giving notice thereof to the other party in the same manner provided herein.

 

(k)          Survival. Notwithstanding anything in this Agreement to the contrary, the provisions of Sections 7, 10, 11 and 14(e)-(j), the definitions of defined terms used therein and the remaining provisions of this Section 14 (to the extent necessary to effectuate the survival of the foregoing provisions) shall survive the termination of this Agreement and any termination of Executive’s employment hereunder.

 

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(l)          Amendments and Modifications. This Agreement may be amended or modified only by a writing signed by all parties hereto that makes specific reference to this Agreement.

 

[Signature page follows.]

 

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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Executive Employment Agreement as of the date first above written.

 

  AMERIS BANCORP

 

  By: /s/ Cindi H. Lewis
  Name: Cindi H. Lewis
  Title: EVP and Chief Administrative Officer

 

  AMERIS BANK

 

  By: /s/ Cindi H. Lewis
  Name: Cindi H. Lewis
  Title: EVP and Chief Administrative Officer

 

  Edwin W. Hortman, Jr.
  EDWIN W. HORTMAN, JR.

  

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Exhibit 99.2

 

EXECUTIVE EMPLOYMENT AGREEMENT

 

THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered as of the 15th day of December, 2014, by and among AMERIS BANCORP, a Georgia corporation (the “Bancorp”), AMERIS BANK, a Georgia state-chartered bank and wholly owned subsidiary of the Bancorp (the “Bank”; the Bancorp and the Bank are collectively referred to herein as the “Employer”), and DENNIS J. ZEMBER JR. (“Executive”).

 

BACKGROUND

 

WHEREAS, the expertise and experience of Executive in the financial institutions industry are valuable to the Employer;

 

WHEREAS, it is in the best interests of the Employer to maintain an experienced and sound executive management team to manage the Employer, further the Employer’s overall strategies and protect and enhance shareholder value; and

 

WHEREAS, the Employer and Executive desire to enter into this Agreement to establish the scope, terms and conditions of Executive’s continued employment by the Employer;

 

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.            Effective Date. The effective time and date of this Agreement shall be deemed to be 12:00:01 a.m. on the date of its making first set forth above (the “Effective Date”).

 

2.            Employment. Executive is employed as the Executive Vice President and Chief Financial Officer of the Employer. Executive’s responsibilities, duties, prerogatives and authority in such offices shall be those customary for persons holding such offices of institutions in the financial institutions industry, as well as such other duties of an executive, managerial or administrative nature, which are consistent with such offices, as shall be specified and designated from time to time by the Board of Directors of the Bancorp (the “Bancorp Board”).

 

3.            Employment Period. Unless earlier terminated in accordance with Section 6 hereof, Executive’s employment under this Agreement shall begin as of the Effective Date and shall continue until the second anniversary thereof (the “Initial Term”); provided, however, that on the second anniversary of the Effective Date and on each second anniversary thereafter, Executive’s term of employment hereunder shall be extended by two years, unless either Executive or the Employer provides written notice to the other at least 90 days prior to the applicable extension date that Executive’s employment period shall not be further extended (the Initial Term, as so extended, the “Employment Period”). For purposes of this Agreement, “terminate” (and variations and derivatives thereof) shall mean, when used in connection with a cessation of employment, that Executive has incurred a separation from service as defined in Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and guidance and regulations issued thereunder (collectively, “Section 409A”).

 

 
 

  

4.            Extent of Service. During the Employment Period, and excluding any periods of vacation, sick or other leave to which Executive is entitled under this Agreement, Executive agrees to devote all of Executive’s business time and efforts to serving the business and affairs of the Employer commensurate with Executive’s offices. During the Employment Period, it shall not be a violation of this Agreement for Executive, subject to the requirements of Section 11, to (i) serve on civic or charitable boards or committees or (ii) manage personal investments, so long as such activities do not materially interfere with the performance of Executive’s responsibilities to the Employer or violate the Employer’s conflicts of interest or other applicable policies.

 

5.            Compensation and Benefits.

 

(a)          Base Salary. During the Employment Period, the Employer will pay to Executive a base salary at the rate of at least $285,000 per year (“Base Salary”), less normal withholdings, payable in equal monthly or more frequent installments as are customary under the Employer’s payroll procedures from time to time. In accordance with the policies and procedures of the Compensation Committee (the “Committee”) of the Bancorp Board, the Employer shall review Executive’s total compensation at least annually and in its sole discretion may adjust Executive’s total compensation from year to year, but during the Employment Period the Employer may not decrease Executive’s Base Salary below $285,000; provided, however, that periodic increases in Base Salary, once granted, shall not be subject to revocation. The annual review of Executive’s total compensation will consider, among other things, changes in the cost of living, Executive’s own performance and the Bancorp’s consolidated performance.

 

(b)          Incentive Plans. During the Employment Period, Executive shall be entitled to participate, as determined by the Committee, in all incentive plans of the Employer applicable to senior executives of the Employer generally, including, without limitation, short-term and long-term incentive plans and equity compensation plans.

 

(c)          Benefit Plans. During the Employment Period, Executive or Executive’s dependents, as the case may be, shall be eligible for participation in all employee benefit plans, practices, policies and programs provided by the Employer applicable to senior executives of the Employer generally (the “Benefit Plans”).

 

(d)          Expenses. During the Employment Period, Executive shall be entitled to receive prompt reimbursement, in accordance with the policies, practices and procedures of the Employer applicable to senior executives of the Employer generally, for all reasonable and necessary out-of-pocket expenses incurred by Executive in the performance of Executive’s duties under this Agreement. The expenses eligible for reimbursement under this Section 5(d) in any year shall not affect any expenses eligible for reimbursement or in-kind benefits in any other year. Executive’s rights under this Section 5(d) are not subject to liquidation or exchange for any other benefit.

 

(e)          Vacation, Sick and Other Leave. During the Employment Period, Executive shall be entitled annually to a minimum of 20 business days of paid vacation and shall be entitled to those number of business days of paid disability, sick and other leave specified in the employment policies of the Employer.

 

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6.            Termination of Employment.

 

(a)          Cause. The Employer may terminate Executive’s employment with the Employer for Cause. For purposes of this Agreement, “Cause” shall mean:

 

(i)          the willful and continued failure of Executive to perform Executive’s duties with the Employer, other than any such failure resulting from Disability (as defined below), or to follow the directives of the Bancorp Board or a more senior executive of the Employer, following written notice from the Chief Executive Officer of the Employer specifying such failure;

 

(ii)         Executive’s willful misconduct or gross negligence (including, but not limited to, a material willful violation of the Employer’s written corporate governance and ethics guidelines and codes of conduct) in connection with the Employer’s business or relating to Executive’s duties hereunder;

 

(iii)        Executive’s habitual substance abuse;

 

(iv)        Executive’s being convicted of, or pleading guilty or nolo contendere to, a felony or a crime involving moral turpitude;

 

(v)         Executive’s willful theft, embezzlement or act of comparable dishonesty against the Employer;

 

(vi)        a willful act by Executive which constitutes a material breach of Executive’s fiduciary duty to the Employer;

 

(vii)       a material breach by Executive of this Agreement, which breach is not cured (if curable) by Executive within 30 days following Executive’s receipt of written notice thereof; or

 

(viii)      conduct by Executive that results in the permanent removal of Executive from Executive’s position as an officer or employee of the Bancorp or the Bank pursuant to a written order by any banking regulatory agency with authority or jurisdiction over the Bancorp or the Bank, as the case may be.

 

For purposes of this Section 6(a), no act or failure to act on the part of Executive shall be considered “willful” unless it is done, or omitted to be done, by Executive in bad faith or without reasonable belief that Executive’s action or omission was in the best interests of the Employer.

 

(b)          Good Reason. Executive may terminate Executive’s employment with the Employer for Good Reason. For purposes of this Agreement, “Good Reason” shall mean: (i) a material diminution in Executive’s authority, duties or responsibilities; (ii) a material change in the geographic location at which Executive must regularly perform the services to be performed by Executive pursuant to this Agreement (other than a change in such geographic location to an office or other location closer to Executive’s home residence); and (iii) any other action or inaction that constitutes a material breach by the Employer of this Agreement; provided, however, that Executive must provide notice to the Employer of the condition Executive contends is Good Reason within 90 days after the initial existence of the condition, and the Employer must have a period of 30 days to remedy the condition. If the condition is not remedied within such 30-day period, then Executive must provide a Notice of Termination as set forth in Section 6(f) within 30 days after the end of the Employer’s remedy period.

 

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(c)          Without Cause. The Employer may terminate Executive’s employment without Cause (a “Termination Without Cause”).

 

(d)          Voluntary Termination. Executive may voluntarily terminate Executive’s employment without Good Reason (a “Voluntary Termination”).

 

(e)          Death or Disability. Executive’s employment with the Employer shall terminate automatically upon Executive’s death during the Employment Period. If the Employer determines in good faith that the Disability of Executive has occurred during the Employment Period, it may give to Executive written notice in accordance with Sections 6(f) and 14(i) of this Agreement of its intention to terminate Executive’s employment. In such event, Executive’s employment with the Employer shall terminate effective on the 45th day after receipt of such written notice by Executive (the “Disability Effective Date”), provided that, within the 30 days after such receipt, Executive shall not have returned to full-time performance of Executive’s duties. For purposes of this Agreement, “Disability” shall mean the inability of Executive to perform Executive’s duties with the Employer on a full-time basis for 180 days in any one-year period as a result of incapacity due to mental or physical illness or injury.

 

(f)           Notice of Termination. Any termination (other than for death) shall be communicated by a Notice of Termination given in accordance with Section 14(i) of this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice that (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated and (iii) if the Termination Date (as defined below) is other than the date of receipt of such notice, specifies the Termination Date (which date shall be not more than 30 days after the giving of such notice, except as otherwise provided in Section 6(e)). The failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Disability, Cause or Good Reason shall not waive any right of Executive or the Employer hereunder or preclude Executive or the Employer from asserting such fact or circumstance in enforcing Executive’s or the Employer’s rights hereunder.

 

(g)          Termination Date. “Termination Date” means (i) if Executive’s employment is terminated by the Employer for Cause or without Cause, the date of Executive’s receipt of the Notice of Termination or a later date specified therein, as the case may be, (ii) if Executive’s employment is terminated by Executive for Good Reason, the date of the Employer’s receipt of the Notice of Termination, (iii) if Executive’s employment is terminated by Executive as a Voluntary Termination, the date of the Employer’s receipt of the Notice of Termination or a later date specified therein, as the case may be, and (iv) if Executive’s employment is terminated by reason of death or Disability, the Termination Date shall be the date of death of Executive or the Disability Effective Date, as the case may be.

 

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7.            Obligations of the Employer Upon Termination.

 

(a)          Cause; Voluntary Termination. If, during the Employment Period, the Employer shall terminate Executive’s employment for Cause or Executive shall terminate Executive’s employment by a Voluntary Termination, then Executive shall be entitled to receive the following (collectively, the “Accrued Amounts”):

 

(i)          any accrued but unpaid Base Salary and accrued but unused vacation, sick or other leave pay, which shall be paid on the pay date immediately following the Termination Date in accordance with the Employer’s customary payroll procedures;

 

(ii)         any earned but unpaid cash bonus with respect to any completed fiscal year immediately preceding the Termination Date, which shall be paid on the otherwise applicable payment date; provided, however, that if Executive’s employment is terminated by the Employer for Cause, then any such accrued but unpaid cash bonus shall be forfeited;

 

(iii)        reimbursement for unreimbursed business expenses properly incurred by Executive, which shall be subject to and paid in accordance with the Employer’s expense reimbursement policies, practices and procedures; and

 

(iv)        such employee benefits, if any, as to which Executive may be entitled under the Benefit Plans as of the Termination Date.

 

(b)          Termination Without Cause or for Good Reason. If, during the Employment Period, the Employer shall terminate Executive’s employment without Cause or Executive shall terminate Executive’s employment for Good Reason, then Executive shall be entitled to receive the Accrued Amounts and, subject to Executive’s execution of a release of claims in favor of the Employer, its subsidiaries and affiliates and their respective officers and directors in a form to be provided by the Employer (the “Release”) and such Release becoming effective within 45 days following the Termination Date (such 45-day period, for purposes of this Section 7(b), the “Release Execution Period”), Executive shall also be entitled to receive the following:

 

(i)          a lump sum amount equal to two times the sum of (A) Executive’s Base Salary and (B) Executive’s highest cash bonus earned with respect to any fiscal year within the three most recently completed fiscal years immediately preceding the Termination Date, which amount shall be paid in cash on or before the 60th day after the Termination Date; provided, however, that if the Release Execution Period begins in one taxable year and ends in another taxable year, then payment shall not be made until the beginning of the second taxable year;

 

(ii)         a lump sum amount equal to the product of (A) the cash bonus, if any, that Executive would have earned for the fiscal year in which the Termination Date occurs based on the achievement of applicable performance goals for such year and (B) a fraction, the numerator of which is the number of days Executive was employed by the Employer during the year of termination and the denominator of which is the number of days in such year (the “Pro-Rata Bonus”), which amount shall be paid in cash on the date that annual bonuses are paid to senior executives of the Employer generally, but in no event later than two-and-one-half months following the end of the fiscal year in which the Termination Date occurs; and

 

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(iii)        if Executive timely and properly elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), then the Employer shall reimburse Executive for the monthly COBRA premium paid by Executive for Executive and Executive’s dependents until the earliest of: (A) the 18-month anniversary of the Termination Date; (B) the date Executive is no longer eligible to receive COBRA continuation coverage; and (C) the date on which Executive becomes eligible to receive substantially similar coverage from another employer. Such reimbursement shall be paid to Executive on the 15th day of the month immediately following the month in which Executive timely remits the premium payment.

 

(c)          Death or Disability. If Executive’s employment is terminated during the Employment Period on account of Executive’s death or Disability, Executive (or Executive’s estate or beneficiaries, as the case may be) shall be entitled to receive the following: (i) the Accrued Amounts; and (ii) a lump sum amount equal to the Pro-Rata Bonus, if any, that Executive would have earned for the fiscal year in which the Termination Date occurs based on the achievement of applicable performance goals for such year, which amount shall be paid in cash on the date that annual bonuses are paid to senior executives of the Employer generally, but in no event later than two-and-one-half months following the end of the fiscal year in which the Termination Date occurs. Notwithstanding any other provision contained herein, all payments made in connection with Executive’s Disability shall be provided in a manner that is consistent with federal and state law.

 

8.             Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any plan, program, policy or practice provided by the Employer and for which Executive may qualify, nor shall anything herein limit or otherwise affect such rights as Executive may have under any contract or agreement with the Employer, except as expressly provided otherwise in this Agreement. Amounts which are vested benefits or which Executive is otherwise entitled to receive under any plan, policy, practice or program of or any contract or agreement with the Employer at or subsequent to the Termination Date shall be payable in accordance with such plan, policy, practice or program or such contract or agreement, except as expressly modified by this Agreement.

 

9.             No Mitigation. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under Section 7 of this Agreement.

 

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10.          Code Section 280G.

 

(a)          Certain Reductions in Agreement Payments. Anything in this Agreement to the contrary notwithstanding, in the event a nationally recognized independent accounting firm designated by the Employer and reasonably acceptable to Executive (the “Accounting Firm”) shall determine that receipt of all payments or distributions by the Employer and its affiliates in the nature of compensation to or for Executive’s benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”), would subject Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine as required below in this Section 10(a) whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) to the Reduced Amount (as defined below). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if Executive’s Agreement Payments were so reduced. If the Accounting Firm determines that Executive would not have a greater Net After-Tax Receipt of aggregate Payments if Executive’s Agreement Payments were so reduced, then Executive shall receive all Agreement Payments to which Executive is entitled.

 

(b)          Accounting Firm Determinations. If the Accounting Firm determines that aggregate Agreement Payments should be reduced to the Reduced Amount, then the Employer shall promptly give Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 10 shall be binding upon the Employer and Executive and shall be made as soon as reasonably practicable and in no event later than 20 days following the Termination Date. For purposes of reducing the Agreement Payments to the Reduced Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: first from Section 7(b)(iii), then from Section 7(b)(ii) and lastly from Section 7(b)(i). All fees and expenses of the Accounting Firm shall be borne solely by the Employer.

 

(c)          Overpayments; Underpayments. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Employer to or for the benefit of Executive pursuant to this Agreement which should not have been so paid or distributed (an “Overpayment”) or that additional amounts which will have not been paid or distributed by the Employer to or for the benefit of Executive pursuant to this Agreement which should have been so paid or distributed (an “Underpayment”), in each case consistent with the calculation of the Reduced Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Employer or Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, Executive shall pay any such Overpayment to the Employer together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by Executive to the Employer if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be paid promptly (and in no event later than 60 days following the date on which the Underpayment is determined) by the Employer to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.

  

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(d)          Definitions. The following terms shall have the following meanings for purposes of this Section 10:

 

(i)          “Reduced Amount” shall mean the greatest amount of Agreement Payments that can be paid that would not result in the imposition of the excise tax under Section 4999 of the Code if the Accounting Firm determines to reduce Agreement Payments pursuant to Section 10(a).

 

(ii)         “Net After-Tax Receipt” shall mean the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to Executive’s taxable income for the immediately preceding taxable year, or such other rate(s) as the Accounting Firm determined to be likely to apply to Executive in the relevant taxable year(s).

 

11.          Restrictive Covenants.

 

(a)          Executive Acknowledgements. Executive acknowledges that (i) the Employer has separately bargained and paid additional consideration for the restrictive covenants in this Section 11 and (ii) the Employer will provide certain benefits to Executive hereunder in reliance on such covenants in view of the unique and essential nature of the services Executive will perform on behalf of the Employer and the irreparable injury that would befall the Employer should Executive breach such covenants. Executive further acknowledges that Executive’s services are of a special, unique and extraordinary character and that Executive’s position with the Employer will place Executive in a position of confidence and trust with customers and employees of the Employer and its subsidiaries and affiliates and with the Employer’s other constituencies and will allow Executive access to Trade Secrets and Confidential Information (each as defined below) concerning the Employer and its subsidiaries and affiliates. Executive further acknowledges that the types and periods of restrictions imposed by the covenants in this Section 11 are fair and reasonable and that such restrictions will not prevent Executive from earning a livelihood.

 

(b)          Covenants. Having acknowledged the foregoing, Executive covenants and agrees with the Employer as follows:

 

(i)          While Executive is employed by the Employer and continuing thereafter, Executive shall not disclose or use any Confidential Information or Trade Secret for so long as such information remains Confidential Information or a Trade Secret, as applicable, for any purpose other than as may be necessary and appropriate in the ordinary course of performing Executive’s duties to the Employer during the Employment Period.

 

(ii)         While Executive is employed by the Employer and for a period of two years thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), on Executive’s own behalf or in the service or on behalf of others, solicit or attempt to solicit any customer of the Employer or its subsidiaries or affiliates, including, without limitation, actively sought prospective customers, with whom Executive had Material Contact (as defined below) during Executive’s employment, for the purpose of providing products or services that are Competitive (as defined below) with those offered or provided by the Employer or its subsidiaries or affiliates or, in the event of Executive’s termination, Competitive with those offered or provided by the Employer or its subsidiaries or affiliates within the two years immediately preceding the termination of Executive’s employment.

 

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(iii)        While Executive is employed by the Employer and for a period of two years thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), either directly or indirectly, on Executive’s own behalf or in the service or on behalf of others, perform duties and responsibilities that are the same as or substantially similar to those Executive performs for the Employer or, in the event of Executive’s termination, performed for the Employer within two years prior to the termination of Executive’s employment, for any business which is the same as or essentially the same as the business conducted by the Employer and its subsidiaries and affiliates, within the Restricted Territory (as defined below).

 

(iv)        While Executive is employed by the Employer and for a period of two years thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), on Executive’s own behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any employee of the Employer or its subsidiaries or affiliates, whether or not such employee is a full-time employee or a temporary employee of the Employer or its subsidiaries or affiliates, whether or not such employment is pursuant to a written agreement and whether or not such employment is for a determined period or is at will, to cease working for the Employer.

 

(v)         Upon the expiration of the Employment Period, or Executive’s earlier termination or resignation, Executive will turn over promptly thereafter to the Employer all physical items and other property belonging to the Employer, including, without limitation, all business correspondence, letters, papers, reports, customer lists, financial statements, credit reports or other Confidential Information, data or documents of the Employer, in the possession or control of Executive, all of which are and will continue to be the sole and exclusive property of the Employer.

 

(c)          Definitions. For purposes of this Section 11, the following terms shall be defined as set forth below:

 

(i)          “Competitive,” with respect to particular products or services, shall mean products or services that are the same as or similar to the products or services of the Employer and its subsidiaries and affiliates.

 

(ii)         “Confidential Information” shall mean data and information: (A) relating to the business of the Employer and its subsidiaries and affiliates, regardless of whether the data or information constitutes a Trade Secret; (B) disclosed to Executive or of which Executive becomes aware as a consequence of Executive’s relationship with the Employer; (C) having value to the Employer; and (D) not generally known to competitors of the Employer. Confidential Information shall include, without limitation, Trade Secrets, methods of operation, names of customers, price lists, financial information and projections, personnel data and similar information; provided, however, that such term shall not mean data or information that (x) has been voluntarily disclosed to the public by the Employer, except where such public disclosure has been made by Executive without authorization from the Employer, (y) has been independently developed and disclosed by others or (z) has otherwise entered the public domain through lawful means.

 

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(iii)        “Material Contact” shall mean contact between Executive and a customer or prospective customer: (A) with whom or which Executive dealt on behalf of the Employer or its subsidiaries or affiliates; (B) whose dealings with the Employer were coordinated or supervised by Executive; (C) about whom Executive obtained Confidential Information in the ordinary course of business as a result of Executive’s association with the Employer; or (D) who receives products or services as authorized by the Employer, the sale or provision of which results or resulted in compensation, commissions or earnings for Executive within the two years immediately preceding the Termination Date.

 

(iv)        “Restricted Territory” shall mean the geographic territory within a 50-mile radius of each of the Employer’s corporate offices located at 310 First Street, S.E., Moultrie, Georgia 31768 and 7915 Baymeadows Way, Suite 300, Jacksonville, Florida 32256; provided, however, that if the physical location of either or both of such offices shall change during the Term, then the Restricted Territory shall mean the geographic territory within a 50-mile radius of the physical locations of such offices at such time and, in the event of the termination of Executive’s employment, the Restricted Territory shall mean the geographic territory within a 50-mile radius of the physical locations of such offices on the Termination Date.

 

(v)         “Trade Secret” shall mean information, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans or a list of actual or potential customers or suppliers, that is not commonly known by or available to the public and which information (A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

 

(d)          Equitable Remedies. Executive acknowledges that irreparable loss and injury would result to the Employer upon the breach of any of the covenants contained in this Section 11 and that damages arising out of such breach would be difficult to ascertain. Executive hereby agrees that, in addition to all other remedies provided at law or in equity, the Employer may petition and obtain from a court of law or equity, without the necessity of proving actual damages and without posting any bond or other security, both temporary and permanent injunctive relief to prevent a breach by Executive of any covenant contained in this Section 11.

 

(e)          Modification of Covenants. In the event that the provisions of this Section 11 should ever be determined to exceed the time, geographic or other limitations permitted by applicable law, then such provisions shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision(s) cannot be modified to be enforceable, the provision(s) shall be severed from this Agreement to the extent unenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.

 

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12.          Executive’s Representations. Executive hereby represents to the Employer that the execution and delivery of this Agreement by Executive and the Employer and the performance by Executive of Executive’s duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any employment agreement or other agreement or policy to which Executive is a party or otherwise bound. Executive represents and warrants that Executive is not subject to any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, restrictive covenant or any other obligation to any former employer or to any other person or entity that conflicts in any way with Executive’s ability to be employed by or perform services for the Employer.

 

13.          Assignment and Successors.

 

(a)         Executive. This Agreement is personal to Executive and without the prior written consent of the Employer shall not be assignable by Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by Executive’s legal representatives.

 

(b)         The Employer. This Agreement shall inure to the benefit of and be binding upon the Employer and its successors and assigns. The Bancorp and the Bank will each require any successor to it (whether direct or indirect, by stock or asset purchase, merger, consolidation or otherwise) or to all or substantially all of its business or assets to assume expressly and agree to perform this Agreement in the same manner and to the same extent it would be required to perform it if no such succession had taken place.

 

14.          Miscellaneous.

 

(a)          Waiver. Failure of either party to insist, in one or more instances, on performance by the other in strict accordance with the terms and conditions of this Agreement shall not be deemed a waiver or relinquishment of any right granted in this Agreement or of the future performance of any such term or condition or of any other term or condition of this Agreement, unless such waiver is contained in a writing signed by the party making the waiver.

 

(b)          Severability. If any provision or covenant, or any part thereof, of this Agreement should be held by any court to be invalid, illegal or unenforceable, either in whole or in part, such invalidity, illegality or unenforceability shall not affect the validity, legality enforceability of the remaining provisions or covenants, or any part thereof, of this Agreement, all of which shall remain in full force and effect.

 

(c)          Entire Agreement. Except as provided herein, this Agreement contains the entire agreement between the Employer and Executive with respect to the subject matter hereof and from and after the Effective Date supersedes and invalidates all previous employment agreements with Executive, including that certain Executive Employment Agreement between the Bancorp and Executive dated as of May 5, 2005, as amended prior to the Effective Date. No representations, inducements, promises or agreements, oral or otherwise, which are not embodied herein shall be of any force or effect.

 

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(d)          Withholdings. Notwithstanding any other provision of this Agreement, the Employer shall withhold from any amounts payable or benefits provided under this Agreement any federal, state and local taxes as shall be required to be withheld pursuant to any applicable law or regulation.

 

(e)          Compliance with Section 409A.

 

(i)          It is intended that this Agreement shall conform with all applicable Section 409A requirements to the extent Section 409A applies to any provisions of the Agreement. Accordingly, in interpreting, construing or applying any provisions of the Agreement, the same shall be construed in such manner as shall meet and comply with Section 409A, and in the event of any inconsistency with Section 409A, the same shall be reformed so as to meet the requirements of Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments. In no event shall Executive, directly or indirectly, designate the calendar year of payment. Executive acknowledges that the Employer has not made, and does not make, any representation or warranty regarding the treatment of this Agreement or the benefits payable under this Agreement under federal, state or local income tax laws, including, but not limited to, Section 409A or compliance with the requirements thereof.

 

(ii)         To the extent Executive is a “specified employee” as defined in Section 409A, notwithstanding the timing of payment provided in any other Section of this Agreement, no payment, distribution or benefit under this Agreement that constitutes a distribution of deferred compensation (within the meaning of Section 409A) upon separation from service (within the meaning of Section 409A), after taking into account all available exemptions, that would otherwise be payable, distributable or settled during the six-month period after separation from service, will be made during such six-month period, and any such payment, distribution or benefit will instead be paid, distributed or settled on the first business day after such six-month period; provided, however, that if Executive dies following the Termination Date and prior to the payment, distribution, settlement or provision of any payments, distributions or benefits delayed on account of Section 409A, then such payments, distributions or benefits shall be paid or provided to the personal representative of Executive’s estate within 30 days after the date of Executive’s death.

 

(f)            Clawback Provisions. Notwithstanding any other provisions in this Agreement to the contrary, any bonus, incentive-based, equity-based or other similar compensation paid to Executive pursuant to this Agreement or any other agreement or arrangement with the Employer which is subject to recovery under any law, government regulation or stock exchange listing requirement will be subject to such deductions and clawback as may be required to be made pursuant to such law, government regulation or stock exchange listing requirement (or any policy adopted by the Employer pursuant to any such law, government regulation or stock exchange listing requirement).

 

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(g)           Governing Law. Except to the extent preempted by federal law, the laws of the State of Georgia shall govern this Agreement in all respects, whether as to its validity, construction, capacity, performance or otherwise.

 

(h)           Arbitration. Except for any claim for injunctive relief hereunder or as provided in Section 11 hereof, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration in accordance with the rules and procedures of the American Arbitration Association. The place of arbitration shall be selected by the Employer. The decision of the arbitration panel shall be final and binding upon the parties, and judgment upon the award rendered by the arbitration panel may be entered by any court having jurisdiction. The parties agree that Executive and the Employer shall each bear one-half of the administrative expenses (filing and arbitrator costs) associated with the arbitration, and the prevailing party shall be entitled to reimbursement for the additional costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by such party in connection with any such dispute.

 

(i)            Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally, by nationally recognized overnight courier service or sent by certified, registered or express mail, postage prepaid. Any such notice shall be deemed given when so delivered personally, when delivered by nationally recognized overnight courier service or, if mailed, five days after the date of deposit in the United States mail, as follows:

 

To the Employer:

 

Ameris Bancorp

310 First Street, S.E.

Moultrie, Georgia 31768

Attention: Chief Executive Officer

 

To Executive:

 

At the most recent address on file for Executive with the Employer.

 

Any party may change the address to which notices, requests, demands and other communications shall be delivered or mailed by giving notice thereof to the other party in the same manner provided herein.

 

(j)            Survival. Notwithstanding anything in this Agreement to the contrary, the provisions of Sections 7, 10, 11 and 14(e)-(j), the definitions of defined terms used therein and the remaining provisions of this Section 14 (to the extent necessary to effectuate the survival of the foregoing provisions) shall survive the termination of this Agreement and any termination of Executive’s employment hereunder.

 

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(k)           Amendments and Modifications. This Agreement may be amended or modified only by a writing signed by all parties hereto that makes specific reference to this Agreement.

 

[Signature page follows.]

 

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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Executive Employment Agreement as of the date first above written.

 

  AMERIS BANCORP
     
  By:   /s/ Edwin W. Hortman, Jr.
  Name: Edwin W. Hortman, Jr.
  Title: President and Chief Executive Officer
     
  AMERIS BANK
     
  By: /s/ Edwin W. Hortman, Jr.
  Name: Edwin W. Hortman, Jr.
  Title: Chief Executive Officer
   
  /s/ Dennis J. Zember Jr.
  DENNIS J. ZEMBER JR.

 

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Exhibit 99.3

 

EXECUTIVE EMPLOYMENT AGREEMENT

 

THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered as of the 15th day of December, 2014, by and among AMERIS BANCORP, a Georgia corporation (the “Bancorp”), AMERIS BANK, a Georgia state-chartered bank and wholly owned subsidiary of the Bancorp (the “Bank”; the Bancorp and the Bank are collectively referred to herein as the “Employer”), and ANDREW B. CHENEY (“Executive”).

 

BACKGROUND

 

WHEREAS, the expertise and experience of Executive in the financial institutions industry are valuable to the Employer;

 

WHEREAS, it is in the best interests of the Employer to maintain an experienced and sound executive management team to manage the Employer, further the Employer’s overall strategies and protect and enhance shareholder value; and

 

WHEREAS, the Employer and Executive desire to enter into this Agreement to establish the scope, terms and conditions of Executive’s continued employment by the Employer;

 

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.         Effective Date.  The effective time and date of this Agreement shall be deemed to be 12:00:01 a.m. on the date of its making first set forth above (the “Effective Date”).

 

2.         Employment.  Executive is employed as the Executive Vice President, Chief Operating Officer and Banking Group President of the Bancorp and the President and Chief Operating Officer of the Bank. Executive’s responsibilities, duties, prerogatives and authority in such offices shall be those customary for persons holding such offices of institutions in the financial institutions industry, as well as such other duties of an executive, managerial or administrative nature, which are consistent with such offices, as shall be specified and designated from time to time by the Board of Directors of the Bancorp (the “Bancorp Board”).

 

3.         Employment Period.  Unless earlier terminated in accordance with Section 6 hereof, Executive’s employment under this Agreement shall begin as of the Effective Date and shall continue until the second anniversary thereof (the “Initial Term”); provided, however, that on the second anniversary of the Effective Date and on each second anniversary thereafter, Executive’s term of employment hereunder shall be extended by two years, unless either Executive or the Employer provides written notice to the other at least 90 days prior to the applicable extension date that Executive’s employment period shall not be further extended (the Initial Term, as so extended, the “Employment Period”). For purposes of this Agreement, “terminate” (and variations and derivatives thereof) shall mean, when used in connection with a cessation of employment, that Executive has incurred a separation from service as defined in Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and guidance and regulations issued thereunder (collectively, “Section 409A”).

 

 
 

 

4.         Extent of Service.  During the Employment Period, and excluding any periods of vacation, sick or other leave to which Executive is entitled under this Agreement, Executive agrees to devote all of Executive’s business time and efforts to serving the business and affairs of the Employer commensurate with Executive’s offices. During the Employment Period, it shall not be a violation of this Agreement for Executive, subject to the requirements of Section 11, to (i) serve on civic or charitable boards or committees or (ii) manage personal investments, so long as such activities do not materially interfere with the performance of Executive’s responsibilities to the Employer or violate the Employer’s conflicts of interest or other applicable policies.

 

5.         Compensation and Benefits.

 

(a)         Base Salary.  During the Employment Period, the Employer will pay to Executive a base salary at the rate of at least $350,000 per year (“Base Salary”), less normal withholdings, payable in equal monthly or more frequent installments as are customary under the Employer’s payroll procedures from time to time. In accordance with the policies and procedures of the Compensation Committee (the “Committee”) of the Bancorp Board, the Employer shall review Executive’s total compensation at least annually and in its sole discretion may adjust Executive’s total compensation from year to year, but during the Employment Period the Employer may not decrease Executive’s Base Salary below $350,000; provided, however, that periodic increases in Base Salary, once granted, shall not be subject to revocation. The annual review of Executive’s total compensation will consider, among other things, changes in the cost of living, Executive’s own performance and the Bancorp’s consolidated performance.

 

(b)        Incentive Plans.  During the Employment Period, Executive shall be entitled to participate, as determined by the Committee, in all incentive plans of the Employer applicable to senior executives of the Employer generally, including, without limitation, short-term and long-term incentive plans and equity compensation plans.

 

(c)         Benefit Plans.  During the Employment Period, Executive or Executive’s dependents, as the case may be, shall be eligible for participation in all employee benefit plans, practices, policies and programs provided by the Employer applicable to senior executives of the Employer generally (the “Benefit Plans”).

 

(d)       Expenses.  During the Employment Period, Executive shall be entitled to receive prompt reimbursement, in accordance with the policies, practices and procedures of the Employer applicable to senior executives of the Employer generally, for all reasonable and necessary out-of-pocket expenses incurred by Executive in the performance of Executive’s duties under this Agreement. The expenses eligible for reimbursement under this Section 5(d) in any year shall not affect any expenses eligible for reimbursement or in-kind benefits in any other year. Executive’s rights under this Section 5(d) are not subject to liquidation or exchange for any other benefit.

 

(e)         Vacation, Sick and Other Leave.  During the Employment Period, Executive shall be entitled annually to a minimum of 20 business days of paid vacation and shall be entitled to those number of business days of paid disability, sick and other leave specified in the employment policies of the Employer.

 

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6.         Termination of Employment.

 

(a)         Cause.  The Employer may terminate Executive’s employment with the Employer for Cause. For purposes of this Agreement, “Cause” shall mean:

 

(i)          the willful and continued failure of Executive to perform Executive’s duties with the Employer, other than any such failure resulting from Disability (as defined below), or to follow the directives of the Bancorp Board or a more senior executive of the Employer, following written notice from the Chief Executive Officer of the Employer specifying such failure;

 

(ii)         Executive’s willful misconduct or gross negligence (including, but not limited to, a material willful violation of the Employer’s written corporate governance and ethics guidelines and codes of conduct) in connection with the Employer’s business or relating to Executive’s duties hereunder;

 

(iii)        Executive’s habitual substance abuse;

 

(iv)        Executive’s being convicted of, or pleading guilty or nolo contendere to, a felony or a crime involving moral turpitude;

 

(v)         Executive’s willful theft, embezzlement or act of comparable dishonesty against the Employer;

 

(vi)        a willful act by Executive which constitutes a material breach of Executive’s fiduciary duty to the Employer;

 

(vii)       a material breach by Executive of this Agreement, which breach is not cured (if curable) by Executive within 30 days following Executive’s receipt of written notice thereof; or

 

(viii)      conduct by Executive that results in the permanent removal of Executive from Executive’s position as an officer or employee of the Bancorp or the Bank pursuant to a written order by any banking regulatory agency with authority or jurisdiction over the Bancorp or the Bank, as the case may be.

 

For purposes of this Section 6(a), no act or failure to act on the part of Executive shall be considered “willful” unless it is done, or omitted to be done, by Executive in bad faith or without reasonable belief that Executive’s action or omission was in the best interests of the Employer.

 

(b)         Good Reason.  Executive may terminate Executive’s employment with the Employer for Good Reason. For purposes of this Agreement, “Good Reason” shall mean: (i) a material diminution in Executive’s authority, duties or responsibilities; (ii) a material change in the geographic location at which Executive must regularly perform the services to be performed by Executive pursuant to this Agreement (other than a change in such geographic location to an office or other location closer to Executive’s home residence); and (iii) any other action or inaction that constitutes a material breach by the Employer of this Agreement; provided, however, that Executive must provide notice to the Employer of the condition Executive contends is Good Reason within 90 days after the initial existence of the condition, and the Employer must have a period of 30 days to remedy the condition. If the condition is not remedied within such 30-day period, then Executive must provide a Notice of Termination as set forth in Section 6(f) within 30 days after the end of the Employer’s remedy period.

 

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(c)         Without Cause.  The Employer may terminate Executive’s employment without Cause (a “Termination Without Cause”).

 

(d)         Voluntary Termination.  Executive may voluntarily terminate Executive’s employment without Good Reason (a “Voluntary Termination”).

 

(e)         Death or Disability.  Executive’s employment with the Employer shall terminate automatically upon Executive’s death during the Employment Period. If the Employer determines in good faith that the Disability of Executive has occurred during the Employment Period, it may give to Executive written notice in accordance with Sections 6(f) and 14(i) of this Agreement of its intention to terminate Executive’s employment. In such event, Executive’s employment with the Employer shall terminate effective on the 45th day after receipt of such written notice by Executive (the “Disability Effective Date”), provided that, within the 30 days after such receipt, Executive shall not have returned to full-time performance of Executive’s duties. For purposes of this Agreement, “Disability” shall mean the inability of Executive to perform Executive’s duties with the Employer on a full-time basis for 180 days in any one-year period as a result of incapacity due to mental or physical illness or injury.

 

(f)          Notice of Termination.  Any termination (other than for death) shall be communicated by a Notice of Termination given in accordance with Section 14(i) of this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice that (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated and (iii) if the Termination Date (as defined below) is other than the date of receipt of such notice, specifies the Termination Date (which date shall be not more than 30 days after the giving of such notice, except as otherwise provided in Section 6(e)). The failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Disability, Cause or Good Reason shall not waive any right of Executive or the Employer hereunder or preclude Executive or the Employer from asserting such fact or circumstance in enforcing Executive’s or the Employer’s rights hereunder.

 

(g)         Termination Date. “Termination Date” means (i) if Executive’s employment is terminated by the Employer for Cause or without Cause, the date of Executive’s receipt of the Notice of Termination or a later date specified therein, as the case may be, (ii) if Executive’s employment is terminated by Executive for Good Reason, the date of the Employer’s receipt of the Notice of Termination, (iii) if Executive’s employment is terminated by Executive as a Voluntary Termination, the date of the Employer’s receipt of the Notice of Termination or a later date specified therein, as the case may be, and (iv) if Executive’s employment is terminated by reason of death or Disability, the Termination Date shall be the date of death of Executive or the Disability Effective Date, as the case may be.

 

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7.         Obligations of the Employer Upon Termination.

 

(a)         Cause; Voluntary Termination.  If, during the Employment Period, the Employer shall terminate Executive’s employment for Cause or Executive shall terminate Executive’s employment by a Voluntary Termination, then Executive shall be entitled to receive the following (collectively, the “Accrued Amounts”):

 

(i)          any accrued but unpaid Base Salary and accrued but unused vacation, sick or other leave pay, which shall be paid on the pay date immediately following the Termination Date in accordance with the Employer’s customary payroll procedures;

 

(ii)         any earned but unpaid cash bonus with respect to any completed fiscal year immediately preceding the Termination Date, which shall be paid on the otherwise applicable payment date; provided, however, that if Executive’s employment is terminated by the Employer for Cause, then any such accrued but unpaid cash bonus shall be forfeited;

 

(iii)        reimbursement for unreimbursed business expenses properly incurred by Executive, which shall be subject to and paid in accordance with the Employer’s expense reimbursement policies, practices and procedures; and

 

(iv)        such employee benefits, if any, as to which Executive may be entitled under the Benefit Plans as of the Termination Date.

 

(b)         Termination Without Cause or for Good Reason.  If, during the Employment Period, the Employer shall terminate Executive’s employment without Cause or Executive shall terminate Executive’s employment for Good Reason, then Executive shall be entitled to receive the Accrued Amounts and, subject to Executive’s execution of a release of claims in favor of the Employer, its subsidiaries and affiliates and their respective officers and directors in a form to be provided by the Employer (the “Release”) and such Release becoming effective within 45 days following the Termination Date (such 45-day period, for purposes of this Section 7(b), the “Release Execution Period”), Executive shall also be entitled to receive the following:

 

(i)          a lump sum amount equal to two times the sum of (A) Executive’s Base Salary and (B) Executive’s highest cash bonus earned with respect to any fiscal year within the three most recently completed fiscal years immediately preceding the Termination Date, which amount shall be paid in cash on or before the 60th day after the Termination Date; provided, however, that if the Release Execution Period begins in one taxable year and ends in another taxable year, then payment shall not be made until the beginning of the second taxable year;

 

(ii)         a lump sum amount equal to the product of (A) the cash bonus, if any, that Executive would have earned for the fiscal year in which the Termination Date occurs based on the achievement of applicable performance goals for such year and (B) a fraction, the numerator of which is the number of days Executive was employed by the Employer during the year of termination and the denominator of which is the number of days in such year (the “Pro-Rata Bonus”), which amount shall be paid in cash on the date that annual bonuses are paid to senior executives of the Employer generally, but in no event later than two-and-one-half months following the end of the fiscal year in which the Termination Date occurs; and

 

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(iii)        if Executive timely and properly elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), then the Employer shall reimburse Executive for the monthly COBRA premium paid by Executive for Executive and Executive’s dependents until the earliest of: (A) the 18-month anniversary of the Termination Date; (B) the date Executive is no longer eligible to receive COBRA continuation coverage; and (C) the date on which Executive becomes eligible to receive substantially similar coverage from another employer. Such reimbursement shall be paid to Executive on the 15th day of the month immediately following the month in which Executive timely remits the premium payment.

 

(c)         Death or Disability.  If Executive’s employment is terminated during the Employment Period on account of Executive’s death or Disability, Executive (or Executive’s estate or beneficiaries, as the case may be) shall be entitled to receive the following: (i) the Accrued Amounts; and (ii) a lump sum amount equal to the Pro-Rata Bonus, if any, that Executive would have earned for the fiscal year in which the Termination Date occurs based on the achievement of applicable performance goals for such year, which amount shall be paid in cash on the date that annual bonuses are paid to senior executives of the Employer generally, but in no event later than two-and-one-half months following the end of the fiscal year in which the Termination Date occurs. Notwithstanding any other provision contained herein, all payments made in connection with Executive’s Disability shall be provided in a manner that is consistent with federal and state law.

 

8.          Non-Exclusivity of Rights.  Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any plan, program, policy or practice provided by the Employer and for which Executive may qualify, nor shall anything herein limit or otherwise affect such rights as Executive may have under any contract or agreement with the Employer, except as expressly provided otherwise in this Agreement. Amounts which are vested benefits or which Executive is otherwise entitled to receive under any plan, policy, practice or program of or any contract or agreement with the Employer at or subsequent to the Termination Date shall be payable in accordance with such plan, policy, practice or program or such contract or agreement, except as expressly modified by this Agreement.

 

9.          No Mitigation.  In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under Section 7 of this Agreement.

 

10.        Code Section 280G.

 

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(a)          Certain Reductions in Agreement Payments.  Anything in this Agreement to the contrary notwithstanding, in the event a nationally recognized independent accounting firm designated by the Employer and reasonably acceptable to Executive (the “Accounting Firm”) shall determine that receipt of all payments or distributions by the Employer and its affiliates in the nature of compensation to or for Executive’s benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”), would subject Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine as required below in this Section 10(a) whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) to the Reduced Amount (as defined below). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if Executive’s Agreement Payments were so reduced. If the Accounting Firm determines that Executive would not have a greater Net After-Tax Receipt of aggregate Payments if Executive’s Agreement Payments were so reduced, then Executive shall receive all Agreement Payments to which Executive is entitled.

 

(b)         Accounting Firm Determinations.  If the Accounting Firm determines that aggregate Agreement Payments should be reduced to the Reduced Amount, then the Employer shall promptly give Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 10 shall be binding upon the Employer and Executive and shall be made as soon as reasonably practicable and in no event later than 20 days following the Termination Date. For purposes of reducing the Agreement Payments to the Reduced Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: first from Section 7(b)(iii), then from Section 7(b)(ii) and lastly from Section 7(b)(i). All fees and expenses of the Accounting Firm shall be borne solely by the Employer.

 

(c)          Overpayments; Underpayments.  As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Employer to or for the benefit of Executive pursuant to this Agreement which should not have been so paid or distributed (an “Overpayment”) or that additional amounts which will have not been paid or distributed by the Employer to or for the benefit of Executive pursuant to this Agreement which should have been so paid or distributed (an “Underpayment”), in each case consistent with the calculation of the Reduced Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Employer or Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, Executive shall pay any such Overpayment to the Employer together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by Executive to the Employer if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be paid promptly (and in no event later than 60 days following the date on which the Underpayment is determined) by the Employer to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.

 

(d)         Definitions.  The following terms shall have the following meanings for purposes of this Section 10:

 

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(i)          “Reduced Amount” shall mean the greatest amount of Agreement Payments that can be paid that would not result in the imposition of the excise tax under Section 4999 of the Code if the Accounting Firm determines to reduce Agreement Payments pursuant to Section 10(a).

 

(ii)         “Net After-Tax Receipt” shall mean the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to Executive’s taxable income for the immediately preceding taxable year, or such other rate(s) as the Accounting Firm determined to be likely to apply to Executive in the relevant taxable year(s).

 

11.         Restrictive Covenants.

 

(a)          Executive Acknowledgements.  Executive acknowledges that (i) the Employer has separately bargained and paid additional consideration for the restrictive covenants in this Section 11 and (ii) the Employer will provide certain benefits to Executive hereunder in reliance on such covenants in view of the unique and essential nature of the services Executive will perform on behalf of the Employer and the irreparable injury that would befall the Employer should Executive breach such covenants. Executive further acknowledges that Executive’s services are of a special, unique and extraordinary character and that Executive’s position with the Employer will place Executive in a position of confidence and trust with customers and employees of the Employer and its subsidiaries and affiliates and with the Employer’s other constituencies and will allow Executive access to Trade Secrets and Confidential Information (each as defined below) concerning the Employer and its subsidiaries and affiliates. Executive further acknowledges that the types and periods of restrictions imposed by the covenants in this Section 11 are fair and reasonable and that such restrictions will not prevent Executive from earning a livelihood.

 

(b)          Covenants.  Having acknowledged the foregoing, Executive covenants and agrees with the Employer as follows:

 

(i)          While Executive is employed by the Employer and continuing thereafter, Executive shall not disclose or use any Confidential Information or Trade Secret for so long as such information remains Confidential Information or a Trade Secret, as applicable, for any purpose other than as may be necessary and appropriate in the ordinary course of performing Executive’s duties to the Employer during the Employment Period.

 

(ii)         While Executive is employed by the Employer and for a period of two years thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), on Executive’s own behalf or in the service or on behalf of others, solicit or attempt to solicit any customer of the Employer or its subsidiaries or affiliates, including, without limitation, actively sought prospective customers, with whom Executive had Material Contact (as defined below) during Executive’s employment, for the purpose of providing products or services that are Competitive (as defined below) with those offered or provided by the Employer or its subsidiaries or affiliates or, in the event of Executive’s termination, Competitive with those offered or provided by the Employer or its subsidiaries or affiliates within the two years immediately preceding the termination of Executive’s employment.

 

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(iii)        While Executive is employed by the Employer and for a period of two years thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), either directly or indirectly, on Executive’s own behalf or in the service or on behalf of others, perform duties and responsibilities that are the same as or substantially similar to those Executive performs for the Employer or, in the event of Executive’s termination, performed for the Employer within two years prior to the termination of Executive’s employment, for any business which is the same as or essentially the same as the business conducted by the Employer and its subsidiaries and affiliates, within the Restricted Territory (as defined below).

 

(iv)        While Executive is employed by the Employer and for a period of two years thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), on Executive’s own behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any employee of the Employer or its subsidiaries or affiliates, whether or not such employee is a full-time employee or a temporary employee of the Employer or its subsidiaries or affiliates, whether or not such employment is pursuant to a written agreement and whether or not such employment is for a determined period or is at will, to cease working for the Employer.

 

(v)         Upon the expiration of the Employment Period, or Executive’s earlier termination or resignation, Executive will turn over promptly thereafter to the Employer all physical items and other property belonging to the Employer, including, without limitation, all business correspondence, letters, papers, reports, customer lists, financial statements, credit reports or other Confidential Information, data or documents of the Employer, in the possession or control of Executive, all of which are and will continue to be the sole and exclusive property of the Employer.

 

(c)          Definitions.  For purposes of this Section 11, the following terms shall be defined as set forth below:

 

(i)          “Competitive,” with respect to particular products or services, shall mean products or services that are the same as or similar to the products or services of the Employer and its subsidiaries and affiliates.

 

(ii)         “Confidential Information” shall mean data and information: (A) relating to the business of the Employer and its subsidiaries and affiliates, regardless of whether the data or information constitutes a Trade Secret; (B) disclosed to Executive or of which Executive becomes aware as a consequence of Executive’s relationship with the Employer; (C) having value to the Employer; and (D) not generally known to competitors of the Employer. Confidential Information shall include, without limitation, Trade Secrets, methods of operation, names of customers, price lists, financial information and projections, personnel data and similar information; provided, however, that such term shall not mean data or information that (x) has been voluntarily disclosed to the public by the Employer, except where such public disclosure has been made by Executive without authorization from the Employer, (y) has been independently developed and disclosed by others or (z) has otherwise entered the public domain through lawful means.

 

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(iii)        “Material Contact” shall mean contact between Executive and a customer or prospective customer: (A) with whom or which Executive dealt on behalf of the Employer or its subsidiaries or affiliates; (B) whose dealings with the Employer were coordinated or supervised by Executive; (C) about whom Executive obtained Confidential Information in the ordinary course of business as a result of Executive’s association with the Employer; or (D) who receives products or services as authorized by the Employer, the sale or provision of which results or resulted in compensation, commissions or earnings for Executive within the two years immediately preceding the Termination Date.

 

(iv)        “Restricted Territory” shall mean the geographic territory within a 50-mile radius of each of the Employer’s corporate offices located at 310 First Street, S.E., Moultrie, Georgia 31768 and 7915 Baymeadows Way, Suite 300, Jacksonville, Florida 32256; provided, however, that if the physical location of either or both of such offices shall change during the Term, then the Restricted Territory shall mean the geographic territory within a 50-mile radius of the physical locations of such offices at such time and, in the event of the termination of Executive’s employment, the Restricted Territory shall mean the geographic territory within a 50-mile radius of the physical locations of such offices on the Termination Date.

 

(v)         “Trade Secret” shall mean information, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans or a list of actual or potential customers or suppliers, that is not commonly known by or available to the public and which information (A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

 

(d)          Equitable Remedies.  Executive acknowledges that irreparable loss and injury would result to the Employer upon the breach of any of the covenants contained in this Section 11 and that damages arising out of such breach would be difficult to ascertain. Executive hereby agrees that, in addition to all other remedies provided at law or in equity, the Employer may petition and obtain from a court of law or equity, without the necessity of proving actual damages and without posting any bond or other security, both temporary and permanent injunctive relief to prevent a breach by Executive of any covenant contained in this Section 11.

 

(e)          Modification of Covenants.  In the event that the provisions of this Section 11 should ever be determined to exceed the time, geographic or other limitations permitted by applicable law, then such provisions shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision(s) cannot be modified to be enforceable, the provision(s) shall be severed from this Agreement to the extent unenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.

 

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12.         Executive’s Representations.  Executive hereby represents to the Employer that the execution and delivery of this Agreement by Executive and the Employer and the performance by Executive of Executive’s duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any employment agreement or other agreement or policy to which Executive is a party or otherwise bound. Executive represents and warrants that Executive is not subject to any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, restrictive covenant or any other obligation to any former employer or to any other person or entity that conflicts in any way with Executive’s ability to be employed by or perform services for the Employer.

 

13.         Assignment and Successors.

 

(a)          Executive.  This Agreement is personal to Executive and without the prior written consent of the Employer shall not be assignable by Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by Executive’s legal representatives.

 

(b)          The Employer.  This Agreement shall inure to the benefit of and be binding upon the Employer and its successors and assigns. The Bancorp and the Bank will each require any successor to it (whether direct or indirect, by stock or asset purchase, merger, consolidation or otherwise) or to all or substantially all of its business or assets to assume expressly and agree to perform this Agreement in the same manner and to the same extent it would be required to perform it if no such succession had taken place.

 

14.         Miscellaneous.

 

(a)          Waiver.  Failure of either party to insist, in one or more instances, on performance by the other in strict accordance with the terms and conditions of this Agreement shall not be deemed a waiver or relinquishment of any right granted in this Agreement or of the future performance of any such term or condition or of any other term or condition of this Agreement, unless such waiver is contained in a writing signed by the party making the waiver.

 

(b)          Severability.  If any provision or covenant, or any part thereof, of this Agreement should be held by any court to be invalid, illegal or unenforceable, either in whole or in part, such invalidity, illegality or unenforceability shall not affect the validity, legality enforceability of the remaining provisions or covenants, or any part thereof, of this Agreement, all of which shall remain in full force and effect.

 

(c)          Entire Agreement.  Except as provided herein, this Agreement contains the entire agreement between the Employer and Executive with respect to the subject matter hereof and from and after the Effective Date supersedes and invalidates all previous employment agreements with Executive, including that certain Executive Employment Agreement between the Bancorp and Executive dated as of February 18, 2009. No representations, inducements, promises or agreements, oral or otherwise, which are not embodied herein shall be of any force or effect.

 

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(d)          Withholdings. Notwithstanding any other provision of this Agreement, the Employer shall withhold from any amounts payable or benefits provided under this Agreement any federal, state and local taxes as shall be required to be withheld pursuant to any applicable law or regulation.

 

(e)          Compliance with Section 409A.

 

(i)          It is intended that this Agreement shall conform with all applicable Section 409A requirements to the extent Section 409A applies to any provisions of the Agreement. Accordingly, in interpreting, construing or applying any provisions of the Agreement, the same shall be construed in such manner as shall meet and comply with Section 409A, and in the event of any inconsistency with Section 409A, the same shall be reformed so as to meet the requirements of Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments. In no event shall Executive, directly or indirectly, designate the calendar year of payment. Executive acknowledges that the Employer has not made, and does not make, any representation or warranty regarding the treatment of this Agreement or the benefits payable under this Agreement under federal, state or local income tax laws, including, but not limited to, Section 409A or compliance with the requirements thereof.

 

(ii)         To the extent Executive is a “specified employee” as defined in Section 409A, notwithstanding the timing of payment provided in any other Section of this Agreement, no payment, distribution or benefit under this Agreement that constitutes a distribution of deferred compensation (within the meaning of Section 409A) upon separation from service (within the meaning of Section 409A), after taking into account all available exemptions, that would otherwise be payable, distributable or settled during the six-month period after separation from service, will be made during such six-month period, and any such payment, distribution or benefit will instead be paid, distributed or settled on the first business day after such six-month period; provided, however, that if Executive dies following the Termination Date and prior to the payment, distribution, settlement or provision of any payments, distributions or benefits delayed on account of Section 409A, then such payments, distributions or benefits shall be paid or provided to the personal representative of Executive’s estate within 30 days after the date of Executive’s death.

 

(f)          Clawback Provisions.  Notwithstanding any other provisions in this Agreement to the contrary, any bonus, incentive-based, equity-based or other similar compensation paid to Executive pursuant to this Agreement or any other agreement or arrangement with the Employer which is subject to recovery under any law, government regulation or stock exchange listing requirement will be subject to such deductions and clawback as may be required to be made pursuant to such law, government regulation or stock exchange listing requirement (or any policy adopted by the Employer pursuant to any such law, government regulation or stock exchange listing requirement).

 

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(g)          Governing Law.  Except to the extent preempted by federal law, the laws of the State of Georgia shall govern this Agreement in all respects, whether as to its validity, construction, capacity, performance or otherwise.

 

(h)          Arbitration.  Except for any claim for injunctive relief hereunder or as provided in Section 11 hereof, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration in accordance with the rules and procedures of the American Arbitration Association. The place of arbitration shall be selected by the Employer. The decision of the arbitration panel shall be final and binding upon the parties, and judgment upon the award rendered by the arbitration panel may be entered by any court having jurisdiction. The parties agree that Executive and the Employer shall each bear one-half of the administrative expenses (filing and arbitrator costs) associated with the arbitration, and the prevailing party shall be entitled to reimbursement for the additional costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by such party in connection with any such dispute.

 

(i)          Notices.  Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally, by nationally recognized overnight courier service or sent by certified, registered or express mail, postage prepaid. Any such notice shall be deemed given when so delivered personally, when delivered by nationally recognized overnight courier service or, if mailed, five days after the date of deposit in the United States mail, as follows:

 

To the Employer:

 

Ameris Bancorp

310 First Street, S.E.

Moultrie, Georgia 31768

Attention: Chief Executive Officer

 

To Executive:

 

At the most recent address on file for Executive with the Employer.

 

Any party may change the address to which notices, requests, demands and other communications shall be delivered or mailed by giving notice thereof to the other party in the same manner provided herein.

 

(j)          Survival.  Notwithstanding anything in this Agreement to the contrary, the provisions of Sections 7, 10, 11 and 14(e)-(j), the definitions of defined terms used therein and the remaining provisions of this Section 14 (to the extent necessary to effectuate the survival of the foregoing provisions) shall survive the termination of this Agreement and any termination of Executive’s employment hereunder.

 

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(k)          Amendments and Modifications.  This Agreement may be amended or modified only by a writing signed by all parties hereto that makes specific reference to this Agreement.

 

[Signature page follows.]

 

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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Executive Employment Agreement as of the date first above written.

 

AMERIS BANCORP

 

  By: /s/ Edwin W. Hortman, Jr.
  Name: Edwin W. Hortman, Jr.
  Title:  President and Chief Executive Officer

   
  AMERIS BANK

 

  By: /s/ Edwin W. Hortman, Jr.
  Name: Edwin W. Hortman, Jr.
  Title: Chief Executive Officer

 

  /s/ Andrew B. Cheney
  ANDREW B. CHENEY

 

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Exhibit 99.4

 

EXECUTIVE EMPLOYMENT AGREEMENT

 

THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered as of the 15th day of December, 2014, by and among AMERIS BANCORP, a Georgia corporation (the “Bancorp”), AMERIS BANK, a Georgia state-chartered bank and wholly owned subsidiary of the Bancorp (the “Bank”; the Bancorp and the Bank are collectively referred to herein as the “Employer”), and JON S. EDWARDS (“Executive”).

 

BACKGROUND

 

WHEREAS, the expertise and experience of Executive in the financial institutions industry are valuable to the Employer;

 

WHEREAS, it is in the best interests of the Employer to maintain an experienced and sound executive management team to manage the Employer, further the Employer’s overall strategies and protect and enhance shareholder value; and

 

WHEREAS, the Employer and Executive desire to enter into this Agreement to establish the scope, terms and conditions of Executive’s continued employment by the Employer;

 

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.          Effective Date. The effective time and date of this Agreement shall be deemed to be 12:00:01 a.m. on the date of its making first set forth above (the “Effective Date”).

 

2.          Employment. Executive is employed as the Executive Vice President and Chief Credit Officer of the Employer. Executive’s responsibilities, duties, prerogatives and authority in such offices shall be those customary for persons holding such offices of institutions in the financial institutions industry, as well as such other duties of an executive, managerial or administrative nature, which are consistent with such offices, as shall be specified and designated from time to time by the Board of Directors of the Bancorp (the “Bancorp Board”).

 

3.          Employment Period. Unless earlier terminated in accordance with Section 6 hereof, Executive’s employment under this Agreement shall begin as of the Effective Date and shall continue until the first anniversary thereof (the “Initial Term”); provided, however, that on the first anniversary of the Effective Date and each anniversary thereafter, Executive’s term of employment hereunder shall be extended by one year, unless either Executive or the Employer provides written notice to the other at least 90 days prior to the applicable extension date that Executive’s employment period shall not be further extended (the Initial Term, as so extended, the “Employment Period”). For purposes of this Agreement, “terminate” (and variations and derivatives thereof) shall mean, when used in connection with a cessation of employment, that Executive has incurred a separation from service as defined in Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and guidance and regulations issued thereunder (collectively, “Section 409A”).

 

 
 

 

4.          Extent of Service. During the Employment Period, and excluding any periods of vacation, sick or other leave to which Executive is entitled under this Agreement, Executive agrees to devote all of Executive’s business time and efforts to serving the business and affairs of the Employer commensurate with Executive’s offices. During the Employment Period, it shall not be a violation of this Agreement for Executive, subject to the requirements of Section 11, to (i) serve on civic or charitable boards or committees or (ii) manage personal investments, so long as such activities do not materially interfere with the performance of Executive’s responsibilities to the Employer or violate the Employer’s conflicts of interest or other applicable policies.

 

5.          Compensation and Benefits.

 

(a)          Base Salary. During the Employment Period, the Employer will pay to Executive a base salary at the rate of at least $220,000 per year (“Base Salary”), less normal withholdings, payable in equal monthly or more frequent installments as are customary under the Employer’s payroll procedures from time to time. In accordance with the policies and procedures of the Compensation Committee (the “Committee”) of the Bancorp Board, the Employer shall review Executive’s total compensation at least annually and in its sole discretion may adjust Executive’s total compensation from year to year, but during the Employment Period the Employer may not decrease Executive’s Base Salary below $220,000; provided, however, that periodic increases in Base Salary, once granted, shall not be subject to revocation. The annual review of Executive’s total compensation will consider, among other things, changes in the cost of living, Executive’s own performance and the Bancorp’s consolidated performance.

 

(b)          Incentive Plans. During the Employment Period, Executive shall be entitled to participate, as determined by the Committee, in all incentive plans of the Employer applicable to senior executives of the Employer generally, including, without limitation, short-term and long-term incentive plans and equity compensation plans.

 

(c)          Benefit Plans. During the Employment Period, Executive or Executive’s dependents, as the case may be, shall be eligible for participation in all employee benefit plans, practices, policies and programs provided by the Employer applicable to senior executives of the Employer generally (the “Benefit Plans”).

 

(d)          Expenses. During the Employment Period, Executive shall be entitled to receive prompt reimbursement, in accordance with the policies, practices and procedures of the Employer applicable to senior executives of the Employer generally, for all reasonable and necessary out-of-pocket expenses incurred by Executive in the performance of Executive’s duties under this Agreement. The expenses eligible for reimbursement under this Section 5(d) in any year shall not affect any expenses eligible for reimbursement or in-kind benefits in any other year. Executive’s rights under this Section 5(d) are not subject to liquidation or exchange for any other benefit.

 

(e)          Vacation, Sick and Other Leave. During the Employment Period, Executive shall be entitled annually to a minimum of 20 business days of paid vacation and shall be entitled to those number of business days of paid disability, sick and other leave specified in the employment policies of the Employer.

 

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6.          Termination of Employment.

 

(a)          Cause. The Employer may terminate Executive’s employment with the Employer for Cause. For purposes of this Agreement, “Cause” shall mean:

 

(i)          the willful and continued failure of Executive to perform Executive’s duties with the Employer, other than any such failure resulting from Disability (as defined below), or to follow the directives of the Bancorp Board or a more senior executive of the Employer, following written notice from the Chief Executive Officer of the Employer specifying such failure;

 

(ii)         Executive’s willful misconduct or gross negligence (including, but not limited to, a material willful violation of the Employer’s written corporate governance and ethics guidelines and codes of conduct) in connection with the Employer’s business or relating to Executive’s duties hereunder;

 

(iii)        Executive’s habitual substance abuse;

 

(iv)        Executive’s being convicted of, or pleading guilty or nolo contendere to, a felony or a crime involving moral turpitude;

 

(v)         Executive’s willful theft, embezzlement or act of comparable dishonesty against the Employer;

 

(vi)        a willful act by Executive which constitutes a material breach of Executive’s fiduciary duty to the Employer;

 

(vii)       a material breach by Executive of this Agreement, which breach is not cured (if curable) by Executive within 30 days following Executive’s receipt of written notice thereof; or

 

(viii)      conduct by Executive that results in the permanent removal of Executive from Executive’s position as an officer or employee of the Bancorp or the Bank pursuant to a written order by any banking regulatory agency with authority or jurisdiction over the Bancorp or the Bank, as the case may be.

 

For purposes of this Section 6(a), no act or failure to act on the part of Executive shall be considered “willful” unless it is done, or omitted to be done, by Executive in bad faith or without reasonable belief that Executive’s action or omission was in the best interests of the Employer.

 

(b)          Good Reason. Executive may terminate Executive’s employment with the Employer for Good Reason. For purposes of this Agreement, “Good Reason” shall mean: (i) a material diminution in Executive’s authority, duties or responsibilities; (ii) a material change in the geographic location at which Executive must regularly perform the services to be performed by Executive pursuant to this Agreement (other than a change in such geographic location to an office or other location closer to Executive’s home residence); and (iii) any other action or inaction that constitutes a material breach by the Employer of this Agreement; provided, however, that Executive must provide notice to the Employer of the condition Executive contends is Good Reason within 90 days after the initial existence of the condition, and the Employer must have a period of 30 days to remedy the condition. If the condition is not remedied within such 30-day period, then Executive must provide a Notice of Termination as set forth in Section 6(f) within 30 days after the end of the Employer’s remedy period.

 

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(c)          Without Cause. The Employer may terminate Executive’s employment without Cause (a “Termination Without Cause”).

 

(d)          Voluntary Termination. Executive may voluntarily terminate Executive’s employment without Good Reason (a “Voluntary Termination”).

 

(e)          Death or Disability. Executive’s employment with the Employer shall terminate automatically upon Executive’s death during the Employment Period. If the Employer determines in good faith that the Disability of Executive has occurred during the Employment Period, it may give to Executive written notice in accordance with Sections 6(f) and 14(i) of this Agreement of its intention to terminate Executive’s employment. In such event, Executive’s employment with the Employer shall terminate effective on the 45th day after receipt of such written notice by Executive (the “Disability Effective Date”), provided that, within the 30 days after such receipt, Executive shall not have returned to full-time performance of Executive’s duties. For purposes of this Agreement, “Disability” shall mean the inability of Executive to perform Executive’s duties with the Employer on a full-time basis for 180 days in any one-year period as a result of incapacity due to mental or physical illness or injury.

 

(f)          Notice of Termination. Any termination (other than for death) shall be communicated by a Notice of Termination given in accordance with Section 14(i) of this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice that (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated and (iii) if the Termination Date (as defined below) is other than the date of receipt of such notice, specifies the Termination Date (which date shall be not more than 30 days after the giving of such notice, except as otherwise provided in Section 6(e)). The failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Disability, Cause or Good Reason shall not waive any right of Executive or the Employer hereunder or preclude Executive or the Employer from asserting such fact or circumstance in enforcing Executive’s or the Employer’s rights hereunder.

 

(g)          Termination Date. “Termination Date” means (i) if Executive’s employment is terminated by the Employer for Cause or without Cause, the date of Executive’s receipt of the Notice of Termination or a later date specified therein, as the case may be, (ii) if Executive’s employment is terminated by Executive for Good Reason, the date of the Employer’s receipt of the Notice of Termination, (iii) if Executive’s employment is terminated by Executive as a Voluntary Termination, the date of the Employer’s receipt of the Notice of Termination or a later date specified therein, as the case may be, and (iv) if Executive’s employment is terminated by reason of death or Disability, the Termination Date shall be the date of death of Executive or the Disability Effective Date, as the case may be.

 

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7.          Obligations of the Employer Upon Termination.

 

(a)          Cause; Voluntary Termination. If, during the Employment Period, the Employer shall terminate Executive’s employment for Cause or Executive shall terminate Executive’s employment by a Voluntary Termination, then Executive shall be entitled to receive the following (collectively, the “Accrued Amounts”):

 

(i)          any accrued but unpaid Base Salary and accrued but unused vacation, sick or other leave pay, which shall be paid on the pay date immediately following the Termination Date in accordance with the Employer’s customary payroll procedures;

 

(ii)         any earned but unpaid cash bonus with respect to any completed fiscal year immediately preceding the Termination Date, which shall be paid on the otherwise applicable payment date; provided, however, that if Executive’s employment is terminated by the Employer for Cause, then any such accrued but unpaid cash bonus shall be forfeited;

 

(iii)        reimbursement for unreimbursed business expenses properly incurred by Executive, which shall be subject to and paid in accordance with the Employer’s expense reimbursement policies, practices and procedures; and

 

(iv)        such employee benefits, if any, as to which Executive may be entitled under the Benefit Plans as of the Termination Date.

 

(b)          Termination Without Cause or for Good Reason. If, during the Employment Period, the Employer shall terminate Executive’s employment without Cause or Executive shall terminate Executive’s employment for Good Reason, then Executive shall be entitled to receive the Accrued Amounts and, subject to Executive’s execution of a release of claims in favor of the Employer, its subsidiaries and affiliates and their respective officers and directors in a form to be provided by the Employer (the “Release”) and such Release becoming effective within 45 days following the Termination Date (such 45-day period, for purposes of this Section 7(b), the “Release Execution Period”), Executive shall also be entitled to receive the following:

 

(i)          a lump sum amount equal to the sum of (A) Executive’s Base Salary and (B) Executive’s highest cash bonus earned with respect to any fiscal year within the three most recently completed fiscal years immediately preceding the Termination Date, which amount shall be paid in cash on or before the 60th day after the Termination Date; provided, however, that if the Release Execution Period begins in one taxable year and ends in another taxable year, then payment shall not be made until the beginning of the second taxable year;

 

(ii)         a lump sum amount equal to the product of (A) the cash bonus, if any, that Executive would have earned for the fiscal year in which the Termination Date occurs based on the achievement of applicable performance goals for such year and (B) a fraction, the numerator of which is the number of days Executive was employed by the Employer during the year of termination and the denominator of which is the number of days in such year (the “Pro-Rata Bonus”), which amount shall be paid in cash on the date that annual bonuses are paid to senior executives of the Employer generally, but in no event later than two-and-one-half months following the end of the fiscal year in which the Termination Date occurs; and

 

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(iii)        if Executive timely and properly elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), then the Employer shall reimburse Executive for the monthly COBRA premium paid by Executive for Executive and Executive’s dependents until the earliest of: (A) the 18-month anniversary of the Termination Date; (B) the date Executive is no longer eligible to receive COBRA continuation coverage; and (C) the date on which Executive becomes eligible to receive substantially similar coverage from another employer. Such reimbursement shall be paid to Executive on the 15th day of the month immediately following the month in which Executive timely remits the premium payment.

 

(c)          Death or Disability. If Executive’s employment is terminated during the Employment Period on account of Executive’s death or Disability, Executive (or Executive’s estate or beneficiaries, as the case may be) shall be entitled to receive the following: (i) the Accrued Amounts; and (ii) a lump sum amount equal to the Pro-Rata Bonus, if any, that Executive would have earned for the fiscal year in which the Termination Date occurs based on the achievement of applicable performance goals for such year, which amount shall be paid in cash on the date that annual bonuses are paid to senior executives of the Employer generally, but in no event later than two-and-one-half months following the end of the fiscal year in which the Termination Date occurs. Notwithstanding any other provision contained herein, all payments made in connection with Executive’s Disability shall be provided in a manner that is consistent with federal and state law.

 

8.          Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any plan, program, policy or practice provided by the Employer and for which Executive may qualify, nor shall anything herein limit or otherwise affect such rights as Executive may have under any contract or agreement with the Employer, except as expressly provided otherwise in this Agreement. Amounts which are vested benefits or which Executive is otherwise entitled to receive under any plan, policy, practice or program of or any contract or agreement with the Employer at or subsequent to the Termination Date shall be payable in accordance with such plan, policy, practice or program or such contract or agreement, except as expressly modified by this Agreement.

 

9.          No Mitigation. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under Section 7 of this Agreement.

 

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10.         Code Section 280G.

 

(a)          Certain Reductions in Agreement Payments. Anything in this Agreement to the contrary notwithstanding, in the event a nationally recognized independent accounting firm designated by the Employer and reasonably acceptable to Executive (the “Accounting Firm”) shall determine that receipt of all payments or distributions by the Employer and its affiliates in the nature of compensation to or for Executive’s benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”), would subject Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine as required below in this Section 10(a) whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) to the Reduced Amount (as defined below). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if Executive’s Agreement Payments were so reduced. If the Accounting Firm determines that Executive would not have a greater Net After-Tax Receipt of aggregate Payments if Executive’s Agreement Payments were so reduced, then Executive shall receive all Agreement Payments to which Executive is entitled.

 

(b)          Accounting Firm Determinations. If the Accounting Firm determines that aggregate Agreement Payments should be reduced to the Reduced Amount, then the Employer shall promptly give Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 10 shall be binding upon the Employer and Executive and shall be made as soon as reasonably practicable and in no event later than 20 days following the Termination Date. For purposes of reducing the Agreement Payments to the Reduced Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: first from Section 7(b)(iii), then from Section 7(b)(ii) and lastly from Section 7(b)(i). All fees and expenses of the Accounting Firm shall be borne solely by the Employer.

 

(c)          Overpayments; Underpayments. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Employer to or for the benefit of Executive pursuant to this Agreement which should not have been so paid or distributed (an “Overpayment”) or that additional amounts which will have not been paid or distributed by the Employer to or for the benefit of Executive pursuant to this Agreement which should have been so paid or distributed (an “Underpayment”), in each case consistent with the calculation of the Reduced Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Employer or Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, Executive shall pay any such Overpayment to the Employer together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by Executive to the Employer if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be paid promptly (and in no event later than 60 days following the date on which the Underpayment is determined) by the Employer to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.

  

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(d)          Definitions. The following terms shall have the following meanings for purposes of this Section 10:

 

(i)          “Reduced Amount” shall mean the greatest amount of Agreement Payments that can be paid that would not result in the imposition of the excise tax under Section 4999 of the Code if the Accounting Firm determines to reduce Agreement Payments pursuant to Section 10(a).

 

(ii)         “Net After-Tax Receipt” shall mean the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to Executive’s taxable income for the immediately preceding taxable year, or such other rate(s) as the Accounting Firm determined to be likely to apply to Executive in the relevant taxable year(s).

 

11.         Restrictive Covenants.

 

(a)          Executive Acknowledgements. Executive acknowledges that (i) the Employer has separately bargained and paid additional consideration for the restrictive covenants in this Section 11 and (ii) the Employer will provide certain benefits to Executive hereunder in reliance on such covenants in view of the unique and essential nature of the services Executive will perform on behalf of the Employer and the irreparable injury that would befall the Employer should Executive breach such covenants. Executive further acknowledges that Executive’s services are of a special, unique and extraordinary character and that Executive’s position with the Employer will place Executive in a position of confidence and trust with customers and employees of the Employer and its subsidiaries and affiliates and with the Employer’s other constituencies and will allow Executive access to Trade Secrets and Confidential Information (each as defined below) concerning the Employer and its subsidiaries and affiliates. Executive further acknowledges that the types and periods of restrictions imposed by the covenants in this Section 11 are fair and reasonable and that such restrictions will not prevent Executive from earning a livelihood.

 

(b)          Covenants. Having acknowledged the foregoing, Executive covenants and agrees with the Employer as follows:

 

(i)          While Executive is employed by the Employer and continuing thereafter, Executive shall not disclose or use any Confidential Information or Trade Secret for so long as such information remains Confidential Information or a Trade Secret, as applicable, for any purpose other than as may be necessary and appropriate in the ordinary course of performing Executive’s duties to the Employer during the Employment Period.

 

(ii)         While Executive is employed by the Employer and for a period of one year thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), on Executive’s own behalf or in the service or on behalf of others, solicit or attempt to solicit any customer of the Employer or its subsidiaries or affiliates, including, without limitation, actively sought prospective customers, with whom Executive had Material Contact (as defined below) during Executive’s employment, for the purpose of providing products or services that are Competitive (as defined below) with those offered or provided by the Employer or its subsidiaries or affiliates or, in the event of Executive’s termination, Competitive with those offered or provided by the Employer or its subsidiaries or affiliates within the two years immediately preceding the termination of Executive’s employment.

 

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(iii)        While Executive is employed by the Employer and for a period of one year thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), either directly or indirectly, on Executive’s own behalf or in the service or on behalf of others, perform duties and responsibilities that are the same as or substantially similar to those Executive performs for the Employer or, in the event of Executive’s termination, performed for the Employer within two years prior to the termination of Executive’s employment, for any business which is the same as or essentially the same as the business conducted by the Employer and its subsidiaries and affiliates, within the Restricted Territory (as defined below).

 

(iv)        While Executive is employed by the Employer and for a period of one year thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), on Executive’s own behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any employee of the Employer or its subsidiaries or affiliates, whether or not such employee is a full-time employee or a temporary employee of the Employer or its subsidiaries or affiliates, whether or not such employment is pursuant to a written agreement and whether or not such employment is for a determined period or is at will, to cease working for the Employer.

 

(v)         Upon the expiration of the Employment Period, or Executive’s earlier termination or resignation, Executive will turn over promptly thereafter to the Employer all physical items and other property belonging to the Employer, including, without limitation, all business correspondence, letters, papers, reports, customer lists, financial statements, credit reports or other Confidential Information, data or documents of the Employer, in the possession or control of Executive, all of which are and will continue to be the sole and exclusive property of the Employer.

 

(c)          Definitions. For purposes of this Section 11, the following terms shall be defined as set forth below:

 

(i)          “Competitive,” with respect to particular products or services, shall mean products or services that are the same as or similar to the products or services of the Employer and its subsidiaries and affiliates.

 

(ii)         “Confidential Information” shall mean data and information: (A) relating to the business of the Employer and its subsidiaries and affiliates, regardless of whether the data or information constitutes a Trade Secret; (B) disclosed to Executive or of which Executive becomes aware as a consequence of Executive’s relationship with the Employer; (C) having value to the Employer; and (D) not generally known to competitors of the Employer. Confidential Information shall include, without limitation, Trade Secrets, methods of operation, names of customers, price lists, financial information and projections, personnel data and similar information; provided, however, that such term shall not mean data or information that (x) has been voluntarily disclosed to the public by the Employer, except where such public disclosure has been made by Executive without authorization from the Employer, (y) has been independently developed and disclosed by others or (z) has otherwise entered the public domain through lawful means.

 

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(iii)        “Material Contact” shall mean contact between Executive and a customer or prospective customer: (A) with whom or which Executive dealt on behalf of the Employer or its subsidiaries or affiliates; (B) whose dealings with the Employer were coordinated or supervised by Executive; (C) about whom Executive obtained Confidential Information in the ordinary course of business as a result of Executive’s association with the Employer; or (D) who receives products or services as authorized by the Employer, the sale or provision of which results or resulted in compensation, commissions or earnings for Executive within the two years immediately preceding the Termination Date.

 

(iv)        “Restricted Territory” shall mean the geographic territory within a 50-mile radius of each of the Employer’s corporate offices located at 310 First Street, S.E., Moultrie, Georgia 31768 and 7915 Baymeadows Way, Suite 300, Jacksonville, Florida 32256; provided, however, that if the physical location of either or both of such offices shall change during the Term, then the Restricted Territory shall mean the geographic territory within a 50-mile radius of the physical locations of such offices at such time and, in the event of the termination of Executive’s employment, the Restricted Territory shall mean the geographic territory within a 50-mile radius of the physical locations of such offices on the Termination Date.

 

(v)         “Trade Secret” shall mean information, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans or a list of actual or potential customers or suppliers, that is not commonly known by or available to the public and which information (A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

 

(d)          Equitable Remedies. Executive acknowledges that irreparable loss and injury would result to the Employer upon the breach of any of the covenants contained in this Section 11 and that damages arising out of such breach would be difficult to ascertain. Executive hereby agrees that, in addition to all other remedies provided at law or in equity, the Employer may petition and obtain from a court of law or equity, without the necessity of proving actual damages and without posting any bond or other security, both temporary and permanent injunctive relief to prevent a breach by Executive of any covenant contained in this Section 11.

 

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(e)          Modification of Covenants. In the event that the provisions of this Section 11 should ever be determined to exceed the time, geographic or other limitations permitted by applicable law, then such provisions shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision(s) cannot be modified to be enforceable, the provision(s) shall be severed from this Agreement to the extent unenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.

 

12.         Executive’s Representations. Executive hereby represents to the Employer that the execution and delivery of this Agreement by Executive and the Employer and the performance by Executive of Executive’s duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any employment agreement or other agreement or policy to which Executive is a party or otherwise bound. Executive represents and warrants that Executive is not subject to any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, restrictive covenant or any other obligation to any former employer or to any other person or entity that conflicts in any way with Executive’s ability to be employed by or perform services for the Employer.

 

13.         Assignment and Successors.

 

(a)          Executive. This Agreement is personal to Executive and without the prior written consent of the Employer shall not be assignable by Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by Executive’s legal representatives.

 

(b)          The Employer. This Agreement shall inure to the benefit of and be binding upon the Employer and its successors and assigns. The Bancorp and the Bank will each require any successor to it (whether direct or indirect, by stock or asset purchase, merger, consolidation or otherwise) or to all or substantially all of its business or assets to assume expressly and agree to perform this Agreement in the same manner and to the same extent it would be required to perform it if no such succession had taken place.

 

14.         Miscellaneous.

 

(a)          Waiver. Failure of either party to insist, in one or more instances, on performance by the other in strict accordance with the terms and conditions of this Agreement shall not be deemed a waiver or relinquishment of any right granted in this Agreement or of the future performance of any such term or condition or of any other term or condition of this Agreement, unless such waiver is contained in a writing signed by the party making the waiver.

 

(b)          Severability. If any provision or covenant, or any part thereof, of this Agreement should be held by any court to be invalid, illegal or unenforceable, either in whole or in part, such invalidity, illegality or unenforceability shall not affect the validity, legality enforceability of the remaining provisions or covenants, or any part thereof, of this Agreement, all of which shall remain in full force and effect.

 

(c)          Entire Agreement. Except as provided herein, this Agreement contains the entire agreement between the Employer and Executive with respect to the subject matter hereof and from and after the Effective Date supersedes and invalidates all previous employment agreements with Executive, including that certain Executive Employment Agreement between the Bancorp and Executive dated as of July 1, 2003, as amended prior to the Effective Date. No representations, inducements, promises or agreements, oral or otherwise, which are not embodied herein shall be of any force or effect.

 

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(d)          Withholdings. Notwithstanding any other provision of this Agreement, the Employer shall withhold from any amounts payable or benefits provided under this Agreement any federal, state and local taxes as shall be required to be withheld pursuant to any applicable law or regulation.

 

(e)          Compliance with Section 409A.

 

(i)          It is intended that this Agreement shall conform with all applicable Section 409A requirements to the extent Section 409A applies to any provisions of the Agreement. Accordingly, in interpreting, construing or applying any provisions of the Agreement, the same shall be construed in such manner as shall meet and comply with Section 409A, and in the event of any inconsistency with Section 409A, the same shall be reformed so as to meet the requirements of Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments. In no event shall Executive, directly or indirectly, designate the calendar year of payment. Executive acknowledges that the Employer has not made, and does not make, any representation or warranty regarding the treatment of this Agreement or the benefits payable under this Agreement under federal, state or local income tax laws, including, but not limited to, Section 409A or compliance with the requirements thereof.

 

(ii)         To the extent Executive is a “specified employee” as defined in Section 409A, notwithstanding the timing of payment provided in any other Section of this Agreement, no payment, distribution or benefit under this Agreement that constitutes a distribution of deferred compensation (within the meaning of Section 409A) upon separation from service (within the meaning of Section 409A), after taking into account all available exemptions, that would otherwise be payable, distributable or settled during the six-month period after separation from service, will be made during such six-month period, and any such payment, distribution or benefit will instead be paid, distributed or settled on the first business day after such six-month period; provided, however, that if Executive dies following the Termination Date and prior to the payment, distribution, settlement or provision of any payments, distributions or benefits delayed on account of Section 409A, then such payments, distributions or benefits shall be paid or provided to the personal representative of Executive’s estate within 30 days after the date of Executive’s death.

 

(f)          Clawback Provisions. Notwithstanding any other provisions in this Agreement to the contrary, any bonus, incentive-based, equity-based or other similar compensation paid to Executive pursuant to this Agreement or any other agreement or arrangement with the Employer which is subject to recovery under any law, government regulation or stock exchange listing requirement will be subject to such deductions and clawback as may be required to be made pursuant to such law, government regulation or stock exchange listing requirement (or any policy adopted by the Employer pursuant to any such law, government regulation or stock exchange listing requirement).

 

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(g)          Governing Law. Except to the extent preempted by federal law, the laws of the State of Georgia shall govern this Agreement in all respects, whether as to its validity, construction, capacity, performance or otherwise.

 

(h)          Arbitration. Except for any claim for injunctive relief hereunder or as provided in Section 11 hereof, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration in accordance with the rules and procedures of the American Arbitration Association. The place of arbitration shall be selected by the Employer. The decision of the arbitration panel shall be final and binding upon the parties, and judgment upon the award rendered by the arbitration panel may be entered by any court having jurisdiction. The parties agree that Executive and the Employer shall each bear one-half of the administrative expenses (filing and arbitrator costs) associated with the arbitration, and the prevailing party shall be entitled to reimbursement for the additional costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by such party in connection with any such dispute.

 

(i)          Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally, by nationally recognized overnight courier service or sent by certified, registered or express mail, postage prepaid. Any such notice shall be deemed given when so delivered personally, when delivered by nationally recognized overnight courier service or, if mailed, five days after the date of deposit in the United States mail, as follows:

 

To the Employer:

 

  Ameris Bancorp
  310 First Street, S.E.
  Moultrie, Georgia  31768
  Attention:  Chief Executive Officer

 

To Executive:

 

  At the most recent address on file for Executive with the Employer.

 

Any party may change the address to which notices, requests, demands and other communications shall be delivered or mailed by giving notice thereof to the other party in the same manner provided herein.

 

(j)          Survival. Notwithstanding anything in this Agreement to the contrary, the provisions of Sections 7, 10, 11 and 14(e)-(j), the definitions of defined terms used therein and the remaining provisions of this Section 14 (to the extent necessary to effectuate the survival of the foregoing provisions) shall survive the termination of this Agreement and any termination of Executive’s employment hereunder.

 

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(k)          Amendments and Modifications. This Agreement may be amended or modified only by a writing signed by all parties hereto that makes specific reference to this Agreement.

 

[Signature page follows.]

 

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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Executive Employment Agreement as of the date first above written.

  

  AMERIS BANCORP
   
  By:   /s/ Edwin W. Hortman, Jr.
  Name: Edwin W. Hortman, Jr.
  Title: President and Chief Executive Officer
     
  AMERIS BANK
     
  By:   /s/ Edwin W. Hortman, Jr.
  Name: Edwin W. Hortman, Jr.
  Title: Chief Executive Officer
     
    /s/ Jon S. Edwards
  JON S. EDWARDS

 

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Exhibit 99.5

 

EXECUTIVE EMPLOYMENT AGREEMENT

 

THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered as of the 15th day of December, 2014, by and among AMERIS BANCORP, a Georgia corporation (the “Bancorp”), AMERIS BANK, a Georgia state-chartered bank and wholly owned subsidiary of the Bancorp (the “Bank”; the Bancorp and the Bank are collectively referred to herein as the “Employer”), and STEPHEN A. MELTON (“Executive”).

 

BACKGROUND

 

WHEREAS, the expertise and experience of Executive in the financial institutions industry are valuable to the Employer;

 

WHEREAS, it is in the best interests of the Employer to maintain an experienced and sound executive management team to manage the Employer, further the Employer’s overall strategies and protect and enhance shareholder value; and

 

WHEREAS, the Employer and Executive desire to enter into this Agreement to establish the scope, terms and conditions of Executive’s continued employment by the Employer;

 

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.          Effective Date.  The effective time and date of this Agreement shall be deemed to be 12:00:01 a.m. on the date of its making first set forth above (the “Effective Date”).

 

2.          Employment.  Executive is employed as the Executive Vice President and Chief Risk Officer of the Employer. Executive’s responsibilities, duties, prerogatives and authority in such offices shall be those customary for persons holding such offices of institutions in the financial institutions industry, as well as such other duties of an executive, managerial or administrative nature, which are consistent with such offices, as shall be specified and designated from time to time by the Board of Directors of the Bancorp (the “Bancorp Board”).

 

3.          Employment Period.   Unless earlier terminated in accordance with Section 6 hereof, Executive’s employment under this Agreement shall begin as of the Effective Date and shall continue until the first anniversary thereof (the “Initial Term”); provided, however, that on the first anniversary of the Effective Date and each anniversary thereafter, Executive’s term of employment hereunder shall be extended by one year, unless either Executive or the Employer provides written notice to the other at least 90 days prior to the applicable extension date that Executive’s employment period shall not be further extended (the Initial Term, as so extended, the “Employment Period”). For purposes of this Agreement, “terminate” (and variations and derivatives thereof) shall mean, when used in connection with a cessation of employment, that Executive has incurred a separation from service as defined in Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and guidance and regulations issued thereunder (collectively, “Section 409A”).

 

 
 

 

4.          Extent of Service.  During the Employment Period, and excluding any periods of vacation, sick or other leave to which Executive is entitled under this Agreement, Executive agrees to devote all of Executive’s business time and efforts to serving the business and affairs of the Employer commensurate with Executive’s offices. During the Employment Period, it shall not be a violation of this Agreement for Executive, subject to the requirements of Section 11, to (i) serve on civic or charitable boards or committees or (ii) manage personal investments, so long as such activities do not materially interfere with the performance of Executive’s responsibilities to the Employer or violate the Employer’s conflicts of interest or other applicable policies.

 

5.          Compensation and Benefits.

 

(a)          Base Salary.   During the Employment Period, the Employer will pay to Executive a base salary at the rate of at least $260,000 per year (“Base Salary”), less normal withholdings, payable in equal monthly or more frequent installments as are customary under the Employer’s payroll procedures from time to time. In accordance with the policies and procedures of the Compensation Committee (the “Committee”) of the Bancorp Board, the Employer shall review Executive’s total compensation at least annually and in its sole discretion may adjust Executive’s total compensation from year to year, but during the Employment Period the Employer may not decrease Executive’s Base Salary below $260,000; provided, however, that periodic increases in Base Salary, once granted, shall not be subject to revocation. The annual review of Executive’s total compensation will consider, among other things, changes in the cost of living, Executive’s own performance and the Bancorp’s consolidated performance.

 

(b)          Incentive Plans.   During the Employment Period, Executive shall be entitled to participate, as determined by the Committee, in all incentive plans of the Employer applicable to senior executives of the Employer generally, including, without limitation, short-term and long-term incentive plans and equity compensation plans.

 

(c)          Benefit Plans.   During the Employment Period, Executive or Executive’s dependents, as the case may be, shall be eligible for participation in all employee benefit plans, practices, policies and programs provided by the Employer applicable to senior executives of the Employer generally (the “Benefit Plans”).

 

(d)          Expenses.   During the Employment Period, Executive shall be entitled to receive prompt reimbursement, in accordance with the policies, practices and procedures of the Employer applicable to senior executives of the Employer generally, for all reasonable and necessary out-of-pocket expenses incurred by Executive in the performance of Executive’s duties under this Agreement. The expenses eligible for reimbursement under this Section 5(d) in any year shall not affect any expenses eligible for reimbursement or in-kind benefits in any other year. Executive’s rights under this Section 5(d) are not subject to liquidation or exchange for any other benefit.

 

(e)          Vacation, Sick and Other Leave.   During the Employment Period, Executive shall be entitled annually to a minimum of 20 business days of paid vacation and shall be entitled to those number of business days of paid disability, sick and other leave specified in the employment policies of the Employer.

 

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6.          Termination of Employment.

 

(a)          Cause. The Employer may terminate Executive’s employment with the Employer for Cause. For purposes of this Agreement, “Cause” shall mean:

 

(i)          the willful and continued failure of Executive to perform Executive’s duties with the Employer, other than any such failure resulting from Disability (as defined below), or to follow the directives of the Bancorp Board or a more senior executive of the Employer, following written notice from the Chief Executive Officer of the Employer specifying such failure;

 

(ii)         Executive’s willful misconduct or gross negligence (including, but not limited to, a material willful violation of the Employer’s written corporate governance and ethics guidelines and codes of conduct) in connection with the Employer’s business or relating to Executive’s duties hereunder;

 

(iii)        Executive’s habitual substance abuse;

 

(iv)        Executive’s being convicted of, or pleading guilty or nolo contendere to, a felony or a crime involving moral turpitude;

 

(v)         Executive’s willful theft, embezzlement or act of comparable dishonesty against the Employer;

 

(vi)        a willful act by Executive which constitutes a material breach of Executive’s fiduciary duty to the Employer;

 

(vii)       a material breach by Executive of this Agreement, which breach is not cured (if curable) by Executive within 30 days following Executive’s receipt of written notice thereof; or

 

(viii)      conduct by Executive that results in the permanent removal of Executive from Executive’s position as an officer or employee of the Bancorp or the Bank pursuant to a written order by any banking regulatory agency with authority or jurisdiction over the Bancorp or the Bank, as the case may be.

 

For purposes of this Section 6(a), no act or failure to act on the part of Executive shall be considered “willful” unless it is done, or omitted to be done, by Executive in bad faith or without reasonable belief that Executive’s action or omission was in the best interests of the Employer.

 

(b)          Good Reason.   Executive may terminate Executive’s employment with the Employer for Good Reason. For purposes of this Agreement, “Good Reason” shall mean: (i) a material diminution in Executive’s authority, duties or responsibilities; (ii) a material change in the geographic location at which Executive must regularly perform the services to be performed by Executive pursuant to this Agreement (other than a change in such geographic location to an office or other location closer to Executive’s home residence); and (iii) any other action or inaction that constitutes a material breach by the Employer of this Agreement; provided, however, that Executive must provide notice to the Employer of the condition Executive contends is Good Reason within 90 days after the initial existence of the condition, and the Employer must have a period of 30 days to remedy the condition. If the condition is not remedied within such 30-day period, then Executive must provide a Notice of Termination as set forth in Section 6(f) within 30 days after the end of the Employer’s remedy period.

 

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(c)          Without Cause.   The Employer may terminate Executive’s employment without Cause (a “Termination Without Cause”).

 

(d)          Voluntary Termination. Executive may voluntarily terminate Executive’s employment without Good Reason (a “Voluntary Termination”).

 

(e)          Death or Disability.   Executive’s employment with the Employer shall terminate automatically upon Executive’s death during the Employment Period. If the Employer determines in good faith that the Disability of Executive has occurred during the Employment Period, it may give to Executive written notice in accordance with Sections 6(f) and 14(i) of this Agreement of its intention to terminate Executive’s employment. In such event, Executive’s employment with the Employer shall terminate effective on the 45th day after receipt of such written notice by Executive (the “Disability Effective Date”), provided that, within the 30 days after such receipt, Executive shall not have returned to full-time performance of Executive’s duties. For purposes of this Agreement, “Disability” shall mean the inability of Executive to perform Executive’s duties with the Employer on a full-time basis for 180 days in any one-year period as a result of incapacity due to mental or physical illness or injury.

 

(f)          Notice of Termination.   Any termination (other than for death) shall be communicated by a Notice of Termination given in accordance with Section 14(i) of this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice that (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated and (iii) if the Termination Date (as defined below) is other than the date of receipt of such notice, specifies the Termination Date (which date shall be not more than 30 days after the giving of such notice, except as otherwise provided in Section 6(e)). The failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Disability, Cause or Good Reason shall not waive any right of Executive or the Employer hereunder or preclude Executive or the Employer from asserting such fact or circumstance in enforcing Executive’s or the Employer’s rights hereunder.

 

(g)          Termination Date.     “Termination Date” means (i) if Executive’s employment is terminated by the Employer for Cause or without Cause, the date of Executive’s receipt of the Notice of Termination or a later date specified therein, as the case may be, (ii) if Executive’s employment is terminated by Executive for Good Reason, the date of the Employer’s receipt of the Notice of Termination, (iii) if Executive’s employment is terminated by Executive as a Voluntary Termination, the date of the Employer’s receipt of the Notice of Termination or a later date specified therein, as the case may be, and (iv) if Executive’s employment is terminated by reason of death or Disability, the Termination Date shall be the date of death of Executive or the Disability Effective Date, as the case may be.

 

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7.          Obligations of the Employer Upon Termination.

 

(a)          Cause; Voluntary Termination.   If, during the Employment Period, the Employer shall terminate Executive’s employment for Cause or Executive shall terminate Executive’s employment by a Voluntary Termination, then Executive shall be entitled to receive the following (collectively, the “Accrued Amounts”):

 

(i)          any accrued but unpaid Base Salary and accrued but unused vacation, sick or other leave pay, which shall be paid on the pay date immediately following the Termination Date in accordance with the Employer’s customary payroll procedures;

 

(ii)         any earned but unpaid cash bonus with respect to any completed fiscal year immediately preceding the Termination Date, which shall be paid on the otherwise applicable payment date; provided, however, that if Executive’s employment is terminated by the Employer for Cause, then any such accrued but unpaid cash bonus shall be forfeited;

 

(iii)        reimbursement for unreimbursed business expenses properly incurred by Executive, which shall be subject to and paid in accordance with the Employer’s expense reimbursement policies, practices and procedures; and

 

(iv)        such employee benefits, if any, as to which Executive may be entitled under the Benefit Plans as of the Termination Date.

 

(b)          Termination Without Cause or for Good Reason.   If, during the Employment Period, the Employer shall terminate Executive’s employment without Cause or Executive shall terminate Executive’s employment for Good Reason, then Executive shall be entitled to receive the Accrued Amounts and, subject to Executive’s execution of a release of claims in favor of the Employer, its subsidiaries and affiliates and their respective officers and directors in a form to be provided by the Employer (the “Release”) and such Release becoming effective within 45 days following the Termination Date (such 45-day period, for purposes of this Section 7(b), the “Release Execution Period”), Executive shall also be entitled to receive the following:

 

(i)          a lump sum amount equal to the sum of (A) Executive’s Base Salary and (B) Executive’s highest cash bonus earned with respect to any fiscal year within the three most recently completed fiscal years immediately preceding the Termination Date, which amount shall be paid in cash on or before the 60th day after the Termination Date; provided, however, that if the Release Execution Period begins in one taxable year and ends in another taxable year, then payment shall not be made until the beginning of the second taxable year;

 

(ii)         a lump sum amount equal to the product of (A) the cash bonus, if any, that Executive would have earned for the fiscal year in which the Termination Date occurs based on the achievement of applicable performance goals for such year and (B) a fraction, the numerator of which is the number of days Executive was employed by the Employer during the year of termination and the denominator of which is the number of days in such year (the “Pro-Rata Bonus”), which amount shall be paid in cash on the date that annual bonuses are paid to senior executives of the Employer generally, but in no event later than two-and-one-half months following the end of the fiscal year in which the Termination Date occurs; and

 

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(iii)        if Executive timely and properly elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), then the Employer shall reimburse Executive for the monthly COBRA premium paid by Executive for Executive and Executive’s dependents until the earliest of: (A) the 18-month anniversary of the Termination Date; (B) the date Executive is no longer eligible to receive COBRA continuation coverage; and (C) the date on which Executive becomes eligible to receive substantially similar coverage from another employer. Such reimbursement shall be paid to Executive on the 15th day of the month immediately following the month in which Executive timely remits the premium payment.

 

(c)          Death or Disability.   If Executive’s employment is terminated during the Employment Period on account of Executive’s death or Disability, Executive (or Executive’s estate or beneficiaries, as the case may be) shall be entitled to receive the following: (i) the Accrued Amounts; and (ii) a lump sum amount equal to the Pro-Rata Bonus, if any, that Executive would have earned for the fiscal year in which the Termination Date occurs based on the achievement of applicable performance goals for such year, which amount shall be paid in cash on the date that annual bonuses are paid to senior executives of the Employer generally, but in no event later than two-and-one-half months following the end of the fiscal year in which the Termination Date occurs. Notwithstanding any other provision contained herein, all payments made in connection with Executive’s Disability shall be provided in a manner that is consistent with federal and state law.

 

8.          Non-Exclusivity of Rights.   Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any plan, program, policy or practice provided by the Employer and for which Executive may qualify, nor shall anything herein limit or otherwise affect such rights as Executive may have under any contract or agreement with the Employer, except as expressly provided otherwise in this Agreement. Amounts which are vested benefits or which Executive is otherwise entitled to receive under any plan, policy, practice or program of or any contract or agreement with the Employer at or subsequent to the Termination Date shall be payable in accordance with such plan, policy, practice or program or such contract or agreement, except as expressly modified by this Agreement.

 

9.          No Mitigation. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under Section 7 of this Agreement.

 

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10.         Code Section 280G.

 

(a)          Certain Reductions in Agreement Payments.   Anything in this Agreement to the contrary notwithstanding, in the event a nationally recognized independent accounting firm designated by the Employer and reasonably acceptable to Executive (the “Accounting Firm”) shall determine that receipt of all payments or distributions by the Employer and its affiliates in the nature of compensation to or for Executive’s benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”), would subject Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine as required below in this Section 10(a) whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) to the Reduced Amount (as defined below). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if Executive’s Agreement Payments were so reduced. If the Accounting Firm determines that Executive would not have a greater Net After-Tax Receipt of aggregate Payments if Executive’s Agreement Payments were so reduced, then Executive shall receive all Agreement Payments to which Executive is entitled.

 

(b)          Accounting Firm Determinations.   If the Accounting Firm determines that aggregate Agreement Payments should be reduced to the Reduced Amount, then the Employer shall promptly give Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 10 shall be binding upon the Employer and Executive and shall be made as soon as reasonably practicable and in no event later than 20 days following the Termination Date. For purposes of reducing the Agreement Payments to the Reduced Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: first from Section 7(b)(iii), then from Section 7(b)(ii) and lastly from Section 7(b)(i). All fees and expenses of the Accounting Firm shall be borne solely by the Employer.

 

(c)          Overpayments; Underpayments.   As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Employer to or for the benefit of Executive pursuant to this Agreement which should not have been so paid or distributed (an “Overpayment”) or that additional amounts which will have not been paid or distributed by the Employer to or for the benefit of Executive pursuant to this Agreement which should have been so paid or distributed (an “Underpayment”), in each case consistent with the calculation of the Reduced Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Employer or Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, Executive shall pay any such Overpayment to the Employer together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by Executive to the Employer if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be paid promptly (and in no event later than 60 days following the date on which the Underpayment is determined) by the Employer to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.

 

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(d)          Definitions. The following terms shall have the following meanings for purposes of this Section 10:

 

(i)          “Reduced Amount” shall mean the greatest amount of Agreement Payments that can be paid that would not result in the imposition of the excise tax under Section 4999 of the Code if the Accounting Firm determines to reduce Agreement Payments pursuant to Section 10(a).

 

(ii)         “Net After-Tax Receipt” shall mean the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to Executive’s taxable income for the immediately preceding taxable year, or such other rate(s) as the Accounting Firm determined to be likely to apply to Executive in the relevant taxable year(s).

 

11.         Restrictive Covenants.

 

(a)          Executive Acknowledgements.   Executive acknowledges that (i) the Employer has separately bargained and paid additional consideration for the restrictive covenants in this Section 11 and (ii) the Employer will provide certain benefits to Executive hereunder in reliance on such covenants in view of the unique and essential nature of the services Executive will perform on behalf of the Employer and the irreparable injury that would befall the Employer should Executive breach such covenants. Executive further acknowledges that Executive’s services are of a special, unique and extraordinary character and that Executive’s position with the Employer will place Executive in a position of confidence and trust with customers and employees of the Employer and its subsidiaries and affiliates and with the Employer’s other constituencies and will allow Executive access to Trade Secrets and Confidential Information (each as defined below) concerning the Employer and its subsidiaries and affiliates. Executive further acknowledges that the types and periods of restrictions imposed by the covenants in this Section 11 are fair and reasonable and that such restrictions will not prevent Executive from earning a livelihood.

 

(b)          Covenants.   Having acknowledged the foregoing, Executive covenants and agrees with the Employer as follows:

 

(i)          While Executive is employed by the Employer and continuing thereafter, Executive shall not disclose or use any Confidential Information or Trade Secret for so long as such information remains Confidential Information or a Trade Secret, as applicable, for any purpose other than as may be necessary and appropriate in the ordinary course of performing Executive’s duties to the Employer during the Employment Period.

 

(ii)         While Executive is employed by the Employer and for a period of one year thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), on Executive’s own behalf or in the service or on behalf of others, solicit or attempt to solicit any customer of the Employer or its subsidiaries or affiliates, including, without limitation, actively sought prospective customers, with whom Executive had Material Contact (as defined below) during Executive’s employment, for the purpose of providing products or services that are Competitive (as defined below) with those offered or provided by the Employer or its subsidiaries or affiliates or, in the event of Executive’s termination, Competitive with those offered or provided by the Employer or its subsidiaries or affiliates within the two years immediately preceding the termination of Executive’s employment.

 

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(iii)        While Executive is employed by the Employer and for a period of one year thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), either directly or indirectly, on Executive’s own behalf or in the service or on behalf of others, perform duties and responsibilities that are the same as or substantially similar to those Executive performs for the Employer or, in the event of Executive’s termination, performed for the Employer within two years prior to the termination of Executive’s employment, for any business which is the same as or essentially the same as the business conducted by the Employer and its subsidiaries and affiliates, within the Restricted Territory (as defined below).

 

(iv)        While Executive is employed by the Employer and for a period of one year thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), on Executive’s own behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any employee of the Employer or its subsidiaries or affiliates, whether or not such employee is a full-time employee or a temporary employee of the Employer or its subsidiaries or affiliates, whether or not such employment is pursuant to a written agreement and whether or not such employment is for a determined period or is at will, to cease working for the Employer.

 

(v)         Upon the expiration of the Employment Period, or Executive’s earlier termination or resignation, Executive will turn over promptly thereafter to the Employer all physical items and other property belonging to the Employer, including, without limitation, all business correspondence, letters, papers, reports, customer lists, financial statements, credit reports or other Confidential Information, data or documents of the Employer, in the possession or control of Executive, all of which are and will continue to be the sole and exclusive property of the Employer.

 

(c)          Definitions. For purposes of this Section 11, the following terms shall be defined as set forth below:

 

(i)          “Competitive,” with respect to particular products or services, shall mean products or services that are the same as or similar to the products or services of the Employer and its subsidiaries and affiliates.

 

(ii)         “Confidential Information” shall mean data and information: (A) relating to the business of the Employer and its subsidiaries and affiliates, regardless of whether the data or information constitutes a Trade Secret; (B) disclosed to Executive or of which Executive becomes aware as a consequence of Executive’s relationship with the Employer; (C) having value to the Employer; and (D) not generally known to competitors of the Employer. Confidential Information shall include, without limitation, Trade Secrets, methods of operation, names of customers, price lists, financial information and projections, personnel data and similar information; provided, however, that such term shall not mean data or information that (x) has been voluntarily disclosed to the public by the Employer, except where such public disclosure has been made by Executive without authorization from the Employer, (y) has been independently developed and disclosed by others or (z) has otherwise entered the public domain through lawful means.

 

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(iii)        “Material Contact” shall mean contact between Executive and a customer or prospective customer: (A) with whom or which Executive dealt on behalf of the Employer or its subsidiaries or affiliates; (B) whose dealings with the Employer were coordinated or supervised by Executive; (C) about whom Executive obtained Confidential Information in the ordinary course of business as a result of Executive’s association with the Employer; or (D) who receives products or services as authorized by the Employer, the sale or provision of which results or resulted in compensation, commissions or earnings for Executive within the two years immediately preceding the Termination Date.

 

(iv)        “Restricted Territory” shall mean the geographic territory within a 50-mile radius of each of the Employer’s corporate offices located at 310 First Street, S.E., Moultrie, Georgia 31768 and 7915 Baymeadows Way, Suite 300, Jacksonville, Florida 32256; provided, however, that if the physical location of either or both of such offices shall change during the Term, then the Restricted Territory shall mean the geographic territory within a 50-mile radius of the physical locations of such offices at such time and, in the event of the termination of Executive’s employment, the Restricted Territory shall mean the geographic territory within a 50-mile radius of the physical locations of such offices on the Termination Date.

 

(v)         “Trade Secret” shall mean information, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans or a list of actual or potential customers or suppliers, that is not commonly known by or available to the public and which information (A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

 

(d)          Equitable Remedies.   Executive acknowledges that irreparable loss and injury would result to the Employer upon the breach of any of the covenants contained in this Section 11 and that damages arising out of such breach would be difficult to ascertain. Executive hereby agrees that, in addition to all other remedies provided at law or in equity, the Employer may petition and obtain from a court of law or equity, without the necessity of proving actual damages and without posting any bond or other security, both temporary and permanent injunctive relief to prevent a breach by Executive of any covenant contained in this Section 11.

 

(e)          Modification of Covenants.   In the event that the provisions of this Section 11 should ever be determined to exceed the time, geographic or other limitations permitted by applicable law, then such provisions shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision(s) cannot be modified to be enforceable, the provision(s) shall be severed from this Agreement to the extent unenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.

 

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12.         Executive’s Representations.   Executive hereby represents to the Employer that the execution and delivery of this Agreement by Executive and the Employer and the performance by Executive of Executive’s duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any employment agreement or other agreement or policy to which Executive is a party or otherwise bound. Executive represents and warrants that Executive is not subject to any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, restrictive covenant or any other obligation to any former employer or to any other person or entity that conflicts in any way with Executive’s ability to be employed by or perform services for the Employer.

 

13.         Assignment and Successors.

 

(a)          Executive. This Agreement is personal to Executive and without the prior written consent of the Employer shall not be assignable by Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by Executive’s legal representatives.

 

(b)          The Employer.   This Agreement shall inure to the benefit of and be binding upon the Employer and its successors and assigns. The Bancorp and the Bank will each require any successor to it (whether direct or indirect, by stock or asset purchase, merger, consolidation or otherwise) or to all or substantially all of its business or assets to assume expressly and agree to perform this Agreement in the same manner and to the same extent it would be required to perform it if no such succession had taken place.

 

14.         Miscellaneous.

 

(a)          Waiver.   Failure of either party to insist, in one or more instances, on performance by the other in strict accordance with the terms and conditions of this Agreement shall not be deemed a waiver or relinquishment of any right granted in this Agreement or of the future performance of any such term or condition or of any other term or condition of this Agreement, unless such waiver is contained in a writing signed by the party making the waiver.

 

(b)          Severability.   If any provision or covenant, or any part thereof, of this Agreement should be held by any court to be invalid, illegal or unenforceable, either in whole or in part, such invalidity, illegality or unenforceability shall not affect the validity, legality enforceability of the remaining provisions or covenants, or any part thereof, of this Agreement, all of which shall remain in full force and effect.

 

(c)          Entire Agreement.   Except as provided herein, this Agreement contains the entire agreement between the Employer and Executive with respect to the subject matter hereof and from and after the Effective Date supersedes and invalidates all previous employment agreements with Executive. No representations, inducements, promises or agreements, oral or otherwise, which are not embodied herein shall be of any force or effect.

 

(d)          Withholdings. Notwithstanding any other provision of this Agreement, the Employer shall withhold from any amounts payable or benefits provided under this Agreement any federal, state and local taxes as shall be required to be withheld pursuant to any applicable law or regulation.

 

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(e)          Compliance with Section 409A.

 

(i)          It is intended that this Agreement shall conform with all applicable Section 409A requirements to the extent Section 409A applies to any provisions of the Agreement. Accordingly, in interpreting, construing or applying any provisions of the Agreement, the same shall be construed in such manner as shall meet and comply with Section 409A, and in the event of any inconsistency with Section 409A, the same shall be reformed so as to meet the requirements of Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments. In no event shall Executive, directly or indirectly, designate the calendar year of payment. Executive acknowledges that the Employer has not made, and does not make, any representation or warranty regarding the treatment of this Agreement or the benefits payable under this Agreement under federal, state or local income tax laws, including, but not limited to, Section 409A or compliance with the requirements thereof.

 

(ii)         To the extent Executive is a “specified employee” as defined in Section 409A, notwithstanding the timing of payment provided in any other Section of this Agreement, no payment, distribution or benefit under this Agreement that constitutes a distribution of deferred compensation (within the meaning of Section 409A) upon separation from service (within the meaning of Section 409A), after taking into account all available exemptions, that would otherwise be payable, distributable or settled during the six-month period after separation from service, will be made during such six-month period, and any such payment, distribution or benefit will instead be paid, distributed or settled on the first business day after such six-month period; provided, however, that if Executive dies following the Termination Date and prior to the payment, distribution, settlement or provision of any payments, distributions or benefits delayed on account of Section 409A, then such payments, distributions or benefits shall be paid or provided to the personal representative of Executive’s estate within 30 days after the date of Executive’s death.

 

(f)          Clawback Provisions.   Notwithstanding any other provisions in this Agreement to the contrary, any bonus, incentive-based, equity-based or other similar compensation paid to Executive pursuant to this Agreement or any other agreement or arrangement with the Employer which is subject to recovery under any law, government regulation or stock exchange listing requirement will be subject to such deductions and clawback as may be required to be made pursuant to such law, government regulation or stock exchange listing requirement (or any policy adopted by the Employer pursuant to any such law, government regulation or stock exchange listing requirement).

 

(g)          Governing Law.   Except to the extent preempted by federal law, the laws of the State of Georgia shall govern this Agreement in all respects, whether as to its validity, construction, capacity, performance or otherwise.

 

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(h)          Arbitration.   Except for any claim for injunctive relief hereunder or as provided in Section 11 hereof, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration in accordance with the rules and procedures of the American Arbitration Association. The place of arbitration shall be selected by the Employer. The decision of the arbitration panel shall be final and binding upon the parties, and judgment upon the award rendered by the arbitration panel may be entered by any court having jurisdiction. The parties agree that Executive and the Employer shall each bear one-half of the administrative expenses (filing and arbitrator costs) associated with the arbitration, and the prevailing party shall be entitled to reimbursement for the additional costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by such party in connection with any such dispute.

 

(i)          Notices.   Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally, by nationally recognized overnight courier service or sent by certified, registered or express mail, postage prepaid. Any such notice shall be deemed given when so delivered personally, when delivered by nationally recognized overnight courier service or, if mailed, five days after the date of deposit in the United States mail, as follows:

 

To the Employer:

 

  Ameris Bancorp
  310 First Street, S.E.
  Moultrie, Georgia  31768
  Attention:  Chief Executive Officer

 

To Executive:

 

  At the most recent address on file for Executive with the Employer.

 

Any party may change the address to which notices, requests, demands and other communications shall be delivered or mailed by giving notice thereof to the other party in the same manner provided herein.

 

(j)          Survival. Notwithstanding anything in this Agreement to the contrary, the provisions of Sections 7, 10, 11 and 14(e)-(j), the definitions of defined terms used therein and the remaining provisions of this Section 14 (to the extent necessary to effectuate the survival of the foregoing provisions) shall survive the termination of this Agreement and any termination of Executive’s employment hereunder.

 

(k)          Amendments and Modifications. This Agreement may be amended or modified only by a writing signed by all parties hereto that makes specific reference to this Agreement.

 

[Signature page follows.]

 

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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Executive Employment Agreement as of the date first above written.

 

  AMERIS BANCORP
     
  By: /s/ Edwin W. Hortman, Jr.
  Name: Edwin W. Hortman, Jr.
  Title: President and Chief Executive Officer

 

  AMERIS BANK
     
  By: /s/ Edwin W. Hortman, Jr.
  Name: Edwin W. Hortman, Jr.
  Title: Chief Executive Officer

 

  /s/ Stephen A. Melton
  STEPHEN A. MELTON

 

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Exhibit 99.6

 

EXECUTIVE EMPLOYMENT AGREEMENT

 

THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered as of the 15th day of December, 2014, by and among AMERIS BANCORP, a Georgia corporation (the “Bancorp”), AMERIS BANK, a Georgia state-chartered bank and wholly owned subsidiary of the Bancorp (the “Bank”; the Bancorp and the Bank are collectively referred to herein as the “Employer”), and CINDI H. LEWIS (“Executive”).

 

BACKGROUND

 

WHEREAS, the expertise and experience of Executive in the financial institutions industry are valuable to the Employer;

 

WHEREAS, it is in the best interests of the Employer to maintain an experienced and sound executive management team to manage the Employer, further the Employer’s overall strategies and protect and enhance shareholder value; and

 

WHEREAS, the Employer and Executive desire to enter into this Agreement to establish the scope, terms and conditions of Executive’s continued employment by the Employer;

 

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.           Effective Date. The effective time and date of this Agreement shall be deemed to be 12:00:01 a.m. on the date of its making first set forth above (the “Effective Date”).

 

2.           Employment. Executive is employed as the Executive Vice President, Chief Administrative Officer and Corporate Secretary of the Employer. Executive’s responsibilities, duties, prerogatives and authority in such offices shall be those customary for persons holding such offices of institutions in the financial institutions industry, as well as such other duties of an executive, managerial or administrative nature, which are consistent with such offices, as shall be specified and designated from time to time by the Board of Directors of the Bancorp (the “Bancorp Board”).

 

3.           Employment Period. Unless earlier terminated in accordance with Section 6 hereof, Executive’s employment under this Agreement shall begin as of the Effective Date and shall continue until the first anniversary thereof (the “Initial Term”); provided, however, that on the first anniversary of the Effective Date and each anniversary thereafter, Executive’s term of employment hereunder shall be extended by one year, unless either Executive or the Employer provides written notice to the other at least 90 days prior to the applicable extension date that Executive’s employment period shall not be further extended (the Initial Term, as so extended, the “Employment Period”). For purposes of this Agreement, “terminate” (and variations and derivatives thereof) shall mean, when used in connection with a cessation of employment, that Executive has incurred a separation from service as defined in Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and guidance and regulations issued thereunder (collectively, “Section 409A”).

 

 
 

 

4.           Extent of Service. During the Employment Period, and excluding any periods of vacation, sick or other leave to which Executive is entitled under this Agreement, Executive agrees to devote all of Executive’s business time and efforts to serving the business and affairs of the Employer commensurate with Executive’s offices. During the Employment Period, it shall not be a violation of this Agreement for Executive, subject to the requirements of Section 11, to (i) serve on civic or charitable boards or committees or (ii) manage personal investments, so long as such activities do not materially interfere with the performance of Executive’s responsibilities to the Employer or violate the Employer’s conflicts of interest or other applicable policies.

 

5.           Compensation and Benefits.

 

(a)          Base Salary. During the Employment Period, the Employer will pay to Executive a base salary at the rate of at least $170,000 per year (“Base Salary”), less normal withholdings, payable in equal monthly or more frequent installments as are customary under the Employer’s payroll procedures from time to time. In accordance with the policies and procedures of the Compensation Committee (the “Committee”) of the Bancorp Board, the Employer shall review Executive’s total compensation at least annually and in its sole discretion may adjust Executive’s total compensation from year to year, but during the Employment Period the Employer may not decrease Executive’s Base Salary below $170,000; provided, however, that periodic increases in Base Salary, once granted, shall not be subject to revocation. The annual review of Executive’s total compensation will consider, among other things, changes in the cost of living, Executive’s own performance and the Bancorp’s consolidated performance.

 

(b)          Incentive Plans. During the Employment Period, Executive shall be entitled to participate, as determined by the Committee, in all incentive plans of the Employer applicable to senior executives of the Employer generally, including, without limitation, short-term and long-term incentive plans and equity compensation plans.

 

(c)          Benefit Plans. During the Employment Period, Executive or Executive’s dependents, as the case may be, shall be eligible for participation in all employee benefit plans, practices, policies and programs provided by the Employer applicable to senior executives of the Employer generally (the “Benefit Plans”).

 

(d)          Expenses. During the Employment Period, Executive shall be entitled to receive prompt reimbursement, in accordance with the policies, practices and procedures of the Employer applicable to senior executives of the Employer generally, for all reasonable and necessary out-of-pocket expenses incurred by Executive in the performance of Executive’s duties under this Agreement. The expenses eligible for reimbursement under this Section 5(d) in any year shall not affect any expenses eligible for reimbursement or in-kind benefits in any other year. Executive’s rights under this Section 5(d) are not subject to liquidation or exchange for any other benefit.

 

(e)          Vacation, Sick and Other Leave. During the Employment Period, Executive shall be entitled annually to a minimum of 20 business days of paid vacation and shall be entitled to those number of business days of paid disability, sick and other leave specified in the employment policies of the Employer.

 

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6.           Termination of Employment.

 

(a)          Cause. The Employer may terminate Executive’s employment with the Employer for Cause. For purposes of this Agreement, “Cause” shall mean:

 

(i)          the willful and continued failure of Executive to perform Executive’s duties with the Employer, other than any such failure resulting from Disability (as defined below), or to follow the directives of the Bancorp Board or a more senior executive of the Employer, following written notice from the Chief Executive Officer of the Employer specifying such failure;

 

(ii)         Executive’s willful misconduct or gross negligence (including, but not limited to, a material willful violation of the Employer’s written corporate governance and ethics guidelines and codes of conduct) in connection with the Employer’s business or relating to Executive’s duties hereunder;

 

(iii)        Executive’s habitual substance abuse;

 

(iv)        Executive’s being convicted of, or pleading guilty or nolo contendere to, a felony or a crime involving moral turpitude;

 

(v)         Executive’s willful theft, embezzlement or act of comparable dishonesty against the Employer;

 

(vi)        a willful act by Executive which constitutes a material breach of Executive’s fiduciary duty to the Employer;

 

(vii)       a material breach by Executive of this Agreement, which breach is not cured (if curable) by Executive within 30 days following Executive’s receipt of written notice thereof; or

 

(viii)      conduct by Executive that results in the permanent removal of Executive from Executive’s position as an officer or employee of the Bancorp or the Bank pursuant to a written order by any banking regulatory agency with authority or jurisdiction over the Bancorp or the Bank, as the case may be.

 

For purposes of this Section 6(a), no act or failure to act on the part of Executive shall be considered “willful” unless it is done, or omitted to be done, by Executive in bad faith or without reasonable belief that Executive’s action or omission was in the best interests of the Employer.

 

(b)          Good Reason. Executive may terminate Executive’s employment with the Employer for Good Reason. For purposes of this Agreement, “Good Reason” shall mean: (i) a material diminution in Executive’s authority, duties or responsibilities; (ii) a material change in the geographic location at which Executive must regularly perform the services to be performed by Executive pursuant to this Agreement (other than a change in such geographic location to an office or other location closer to Executive’s home residence); and (iii) any other action or inaction that constitutes a material breach by the Employer of this Agreement; provided, however, that Executive must provide notice to the Employer of the condition Executive contends is Good Reason within 90 days after the initial existence of the condition, and the Employer must have a period of 30 days to remedy the condition. If the condition is not remedied within such 30-day period, then Executive must provide a Notice of Termination as set forth in Section 6(f) within 30 days after the end of the Employer’s remedy period.

 

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(c)          Without Cause. The Employer may terminate Executive’s employment without Cause (a “Termination Without Cause”).

 

(d)          Voluntary Termination. Executive may voluntarily terminate Executive’s employment without Good Reason (a “Voluntary Termination”).

 

(e)          Death or Disability. Executive’s employment with the Employer shall terminate automatically upon Executive’s death during the Employment Period. If the Employer determines in good faith that the Disability of Executive has occurred during the Employment Period, it may give to Executive written notice in accordance with Sections 6(f) and 14(i) of this Agreement of its intention to terminate Executive’s employment. In such event, Executive’s employment with the Employer shall terminate effective on the 45th day after receipt of such written notice by Executive (the “Disability Effective Date”), provided that, within the 30 days after such receipt, Executive shall not have returned to full-time performance of Executive’s duties. For purposes of this Agreement, “Disability” shall mean the inability of Executive to perform Executive’s duties with the Employer on a full-time basis for 180 days in any one-year period as a result of incapacity due to mental or physical illness or injury.

 

(f)          Notice of Termination. Any termination (other than for death) shall be communicated by a Notice of Termination given in accordance with Section 14(i) of this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice that (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated and (iii) if the Termination Date (as defined below) is other than the date of receipt of such notice, specifies the Termination Date (which date shall be not more than 30 days after the giving of such notice, except as otherwise provided in Section 6(e)). The failure to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Disability, Cause or Good Reason shall not waive any right of Executive or the Employer hereunder or preclude Executive or the Employer from asserting such fact or circumstance in enforcing Executive’s or the Employer’s rights hereunder.

 

(g)          Termination Date. “Termination Date” means (i) if Executive’s employment is terminated by the Employer for Cause or without Cause, the date of Executive’s receipt of the Notice of Termination or a later date specified therein, as the case may be, (ii) if Executive’s employment is terminated by Executive for Good Reason, the date of the Employer’s receipt of the Notice of Termination, (iii) if Executive’s employment is terminated by Executive as a Voluntary Termination, the date of the Employer’s receipt of the Notice of Termination or a later date specified therein, as the case may be, and (iv) if Executive’s employment is terminated by reason of death or Disability, the Termination Date shall be the date of death of Executive or the Disability Effective Date, as the case may be.

 

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7.           Obligations of the Employer Upon Termination.

 

(a)          Cause; Voluntary Termination. If, during the Employment Period, the Employer shall terminate Executive’s employment for Cause or Executive shall terminate Executive’s employment by a Voluntary Termination, then Executive shall be entitled to receive the following (collectively, the “Accrued Amounts”):

 

(i)          any accrued but unpaid Base Salary and accrued but unused vacation, sick or other leave pay, which shall be paid on the pay date immediately following the Termination Date in accordance with the Employer’s customary payroll procedures;

 

(ii)         any earned but unpaid cash bonus with respect to any completed fiscal year immediately preceding the Termination Date, which shall be paid on the otherwise applicable payment date; provided, however, that if Executive’s employment is terminated by the Employer for Cause, then any such accrued but unpaid cash bonus shall be forfeited;

 

(iii)        reimbursement for unreimbursed business expenses properly incurred by Executive, which shall be subject to and paid in accordance with the Employer’s expense reimbursement policies, practices and procedures; and

 

(iv)        such employee benefits, if any, as to which Executive may be entitled under the Benefit Plans as of the Termination Date.

 

(b)          Termination Without Cause or for Good Reason. If, during the Employment Period, the Employer shall terminate Executive’s employment without Cause or Executive shall terminate Executive’s employment for Good Reason, then Executive shall be entitled to receive the Accrued Amounts and, subject to Executive’s execution of a release of claims in favor of the Employer, its subsidiaries and affiliates and their respective officers and directors in a form to be provided by the Employer (the “Release”) and such Release becoming effective within 45 days following the Termination Date (such 45-day period, for purposes of this Section 7(b), the “Release Execution Period”), Executive shall also be entitled to receive the following:

 

(i)          a lump sum amount equal to the sum of (A) Executive’s Base Salary and (B) Executive’s highest cash bonus earned with respect to any fiscal year within the three most recently completed fiscal years immediately preceding the Termination Date, which amount shall be paid in cash on or before the 60th day after the Termination Date; provided, however, that if the Release Execution Period begins in one taxable year and ends in another taxable year, then payment shall not be made until the beginning of the second taxable year;

 

(ii)         a lump sum amount equal to the product of (A) the cash bonus, if any, that Executive would have earned for the fiscal year in which the Termination Date occurs based on the achievement of applicable performance goals for such year and (B) a fraction, the numerator of which is the number of days Executive was employed by the Employer during the year of termination and the denominator of which is the number of days in such year (the “Pro-Rata Bonus”), which amount shall be paid in cash on the date that annual bonuses are paid to senior executives of the Employer generally, but in no event later than two-and-one-half months following the end of the fiscal year in which the Termination Date occurs; and

 

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(iii)        if Executive timely and properly elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), then the Employer shall reimburse Executive for the monthly COBRA premium paid by Executive for Executive and Executive’s dependents until the earliest of: (A) the 18-month anniversary of the Termination Date; (B) the date Executive is no longer eligible to receive COBRA continuation coverage; and (C) the date on which Executive becomes eligible to receive substantially similar coverage from another employer. Such reimbursement shall be paid to Executive on the 15th day of the month immediately following the month in which Executive timely remits the premium payment.

 

(c)          Death or Disability. If Executive’s employment is terminated during the Employment Period on account of Executive’s death or Disability, Executive (or Executive’s estate or beneficiaries, as the case may be) shall be entitled to receive the following: (i) the Accrued Amounts; and (ii) a lump sum amount equal to the Pro-Rata Bonus, if any, that Executive would have earned for the fiscal year in which the Termination Date occurs based on the achievement of applicable performance goals for such year, which amount shall be paid in cash on the date that annual bonuses are paid to senior executives of the Employer generally, but in no event later than two-and-one-half months following the end of the fiscal year in which the Termination Date occurs. Notwithstanding any other provision contained herein, all payments made in connection with Executive’s Disability shall be provided in a manner that is consistent with federal and state law.

 

8.           Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any plan, program, policy or practice provided by the Employer and for which Executive may qualify, nor shall anything herein limit or otherwise affect such rights as Executive may have under any contract or agreement with the Employer, except as expressly provided otherwise in this Agreement. Amounts which are vested benefits or which Executive is otherwise entitled to receive under any plan, policy, practice or program of or any contract or agreement with the Employer at or subsequent to the Termination Date shall be payable in accordance with such plan, policy, practice or program or such contract or agreement, except as expressly modified by this Agreement.

 

9.           No Mitigation. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under Section 7 of this Agreement.

 

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10.          Code Section 280G.

 

(a)          Certain Reductions in Agreement Payments. Anything in this Agreement to the contrary notwithstanding, in the event a nationally recognized independent accounting firm designated by the Employer and reasonably acceptable to Executive (the “Accounting Firm”) shall determine that receipt of all payments or distributions by the Employer and its affiliates in the nature of compensation to or for Executive’s benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”), would subject Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine as required below in this Section 10(a) whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) to the Reduced Amount (as defined below). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if Executive’s Agreement Payments were so reduced. If the Accounting Firm determines that Executive would not have a greater Net After-Tax Receipt of aggregate Payments if Executive’s Agreement Payments were so reduced, then Executive shall receive all Agreement Payments to which Executive is entitled.

 

(b)          Accounting Firm Determinations. If the Accounting Firm determines that aggregate Agreement Payments should be reduced to the Reduced Amount, then the Employer shall promptly give Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 10 shall be binding upon the Employer and Executive and shall be made as soon as reasonably practicable and in no event later than 20 days following the Termination Date. For purposes of reducing the Agreement Payments to the Reduced Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: first from Section 7(b)(iii), then from Section 7(b)(ii) and lastly from Section 7(b)(i). All fees and expenses of the Accounting Firm shall be borne solely by the Employer.

 

(c)          Overpayments; Underpayments. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Employer to or for the benefit of Executive pursuant to this Agreement which should not have been so paid or distributed (an “Overpayment”) or that additional amounts which will have not been paid or distributed by the Employer to or for the benefit of Executive pursuant to this Agreement which should have been so paid or distributed (an “Underpayment”), in each case consistent with the calculation of the Reduced Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Employer or Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, Executive shall pay any such Overpayment to the Employer together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by Executive to the Employer if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be paid promptly (and in no event later than 60 days following the date on which the Underpayment is determined) by the Employer to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.

 

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(d)          Definitions. The following terms shall have the following meanings for purposes of this Section 10:

 

(i)          “Reduced Amount” shall mean the greatest amount of Agreement Payments that can be paid that would not result in the imposition of the excise tax under Section 4999 of the Code if the Accounting Firm determines to reduce Agreement Payments pursuant to Section 10(a).

 

(ii)         “Net After-Tax Receipt” shall mean the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to Executive’s taxable income for the immediately preceding taxable year, or such other rate(s) as the Accounting Firm determined to be likely to apply to Executive in the relevant taxable year(s).

 

11.          Restrictive Covenants.

 

(a)          Executive Acknowledgements. Executive acknowledges that (i) the Employer has separately bargained and paid additional consideration for the restrictive covenants in this Section 11 and (ii) the Employer will provide certain benefits to Executive hereunder in reliance on such covenants in view of the unique and essential nature of the services Executive will perform on behalf of the Employer and the irreparable injury that would befall the Employer should Executive breach such covenants. Executive further acknowledges that Executive’s services are of a special, unique and extraordinary character and that Executive’s position with the Employer will place Executive in a position of confidence and trust with customers and employees of the Employer and its subsidiaries and affiliates and with the Employer’s other constituencies and will allow Executive access to Trade Secrets and Confidential Information (each as defined below) concerning the Employer and its subsidiaries and affiliates. Executive further acknowledges that the types and periods of restrictions imposed by the covenants in this Section 11 are fair and reasonable and that such restrictions will not prevent Executive from earning a livelihood.

 

(b)          Covenants. Having acknowledged the foregoing, Executive covenants and agrees with the Employer as follows:

 

(i)          While Executive is employed by the Employer and continuing thereafter, Executive shall not disclose or use any Confidential Information or Trade Secret for so long as such information remains Confidential Information or a Trade Secret, as applicable, for any purpose other than as may be necessary and appropriate in the ordinary course of performing Executive’s duties to the Employer during the Employment Period.

 

(ii)         While Executive is employed by the Employer and for a period of one year thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), on Executive’s own behalf or in the service or on behalf of others, solicit or attempt to solicit any customer of the Employer or its subsidiaries or affiliates, including, without limitation, actively sought prospective customers, with whom Executive had Material Contact (as defined below) during Executive’s employment, for the purpose of providing products or services that are Competitive (as defined below) with those offered or provided by the Employer or its subsidiaries or affiliates or, in the event of Executive’s termination, Competitive with those offered or provided by the Employer or its subsidiaries or affiliates within the two years immediately preceding the termination of Executive’s employment.

 

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(iii)        While Executive is employed by the Employer and for a period of one year thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), either directly or indirectly, on Executive’s own behalf or in the service or on behalf of others, perform duties and responsibilities that are the same as or substantially similar to those Executive performs for the Employer or, in the event of Executive’s termination, performed for the Employer within two years prior to the termination of Executive’s employment, for any business which is the same as or essentially the same as the business conducted by the Employer and its subsidiaries and affiliates, within the Restricted Territory (as defined below).

 

(iv)        While Executive is employed by the Employer and for a period of one year thereafter, Executive shall not (except on behalf of or with the prior written consent of the Employer), on Executive’s own behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any employee of the Employer or its subsidiaries or affiliates, whether or not such employee is a full-time employee or a temporary employee of the Employer or its subsidiaries or affiliates, whether or not such employment is pursuant to a written agreement and whether or not such employment is for a determined period or is at will, to cease working for the Employer.

 

(v)         Upon the expiration of the Employment Period, or Executive’s earlier termination or resignation, Executive will turn over promptly thereafter to the Employer all physical items and other property belonging to the Employer, including, without limitation, all business correspondence, letters, papers, reports, customer lists, financial statements, credit reports or other Confidential Information, data or documents of the Employer, in the possession or control of Executive, all of which are and will continue to be the sole and exclusive property of the Employer.

 

(c)          Definitions. For purposes of this Section 11, the following terms shall be defined as set forth below:

 

(i)          “Competitive,” with respect to particular products or services, shall mean products or services that are the same as or similar to the products or services of the Employer and its subsidiaries and affiliates.

 

(ii)         “Confidential Information” shall mean data and information: (A) relating to the business of the Employer and its subsidiaries and affiliates, regardless of whether the data or information constitutes a Trade Secret; (B) disclosed to Executive or of which Executive becomes aware as a consequence of Executive’s relationship with the Employer; (C) having value to the Employer; and (D) not generally known to competitors of the Employer. Confidential Information shall include, without limitation, Trade Secrets, methods of operation, names of customers, price lists, financial information and projections, personnel data and similar information; provided, however, that such term shall not mean data or information that (x) has been voluntarily disclosed to the public by the Employer, except where such public disclosure has been made by Executive without authorization from the Employer, (y) has been independently developed and disclosed by others or (z) has otherwise entered the public domain through lawful means.

 

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(iii)        “Material Contact” shall mean contact between Executive and a customer or prospective customer: (A) with whom or which Executive dealt on behalf of the Employer or its subsidiaries or affiliates; (B) whose dealings with the Employer were coordinated or supervised by Executive; (C) about whom Executive obtained Confidential Information in the ordinary course of business as a result of Executive’s association with the Employer; or (D) who receives products or services as authorized by the Employer, the sale or provision of which results or resulted in compensation, commissions or earnings for Executive within the two years immediately preceding the Termination Date.

 

(iv)        “Restricted Territory” shall mean the geographic territory within a 50-mile radius of each of the Employer’s corporate offices located at 310 First Street, S.E., Moultrie, Georgia 31768 and 7915 Baymeadows Way, Suite 300, Jacksonville, Florida 32256; provided, however, that if the physical location of either or both of such offices shall change during the Term, then the Restricted Territory shall mean the geographic territory within a 50-mile radius of the physical locations of such offices at such time and, in the event of the termination of Executive’s employment, the Restricted Territory shall mean the geographic territory within a 50-mile radius of the physical locations of such offices on the Termination Date.

 

(v)         “Trade Secret” shall mean information, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans or a list of actual or potential customers or suppliers, that is not commonly known by or available to the public and which information (A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

 

(d)          Equitable Remedies. Executive acknowledges that irreparable loss and injury would result to the Employer upon the breach of any of the covenants contained in this Section 11 and that damages arising out of such breach would be difficult to ascertain. Executive hereby agrees that, in addition to all other remedies provided at law or in equity, the Employer may petition and obtain from a court of law or equity, without the necessity of proving actual damages and without posting any bond or other security, both temporary and permanent injunctive relief to prevent a breach by Executive of any covenant contained in this Section 11.

 

(e)          Modification of Covenants. In the event that the provisions of this Section 11 should ever be determined to exceed the time, geographic or other limitations permitted by applicable law, then such provisions shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision(s) cannot be modified to be enforceable, the provision(s) shall be severed from this Agreement to the extent unenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.

 

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12.          Executive’s Representations. Executive hereby represents to the Employer that the execution and delivery of this Agreement by Executive and the Employer and the performance by Executive of Executive’s duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any employment agreement or other agreement or policy to which Executive is a party or otherwise bound. Executive represents and warrants that Executive is not subject to any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, restrictive covenant or any other obligation to any former employer or to any other person or entity that conflicts in any way with Executive’s ability to be employed by or perform services for the Employer.

 

13.          Assignment and Successors.

 

(a)          Executive. This Agreement is personal to Executive and without the prior written consent of the Employer shall not be assignable by Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by Executive’s legal representatives.

 

(b)          The Employer. This Agreement shall inure to the benefit of and be binding upon the Employer and its successors and assigns. The Bancorp and the Bank will each require any successor to it (whether direct or indirect, by stock or asset purchase, merger, consolidation or otherwise) or to all or substantially all of its business or assets to assume expressly and agree to perform this Agreement in the same manner and to the same extent it would be required to perform it if no such succession had taken place.

 

14.          Miscellaneous.

 

(a)          Waiver. Failure of either party to insist, in one or more instances, on performance by the other in strict accordance with the terms and conditions of this Agreement shall not be deemed a waiver or relinquishment of any right granted in this Agreement or of the future performance of any such term or condition or of any other term or condition of this Agreement, unless such waiver is contained in a writing signed by the party making the waiver.

 

(b)          Severability. If any provision or covenant, or any part thereof, of this Agreement should be held by any court to be invalid, illegal or unenforceable, either in whole or in part, such invalidity, illegality or unenforceability shall not affect the validity, legality enforceability of the remaining provisions or covenants, or any part thereof, of this Agreement, all of which shall remain in full force and effect.

 

(c)          Entire Agreement. Except as provided herein, this Agreement contains the entire agreement between the Employer and Executive with respect to the subject matter hereof and from and after the Effective Date supersedes and invalidates all previous employment agreements with Executive, including that certain Executive Employment Agreement between the Bancorp and Executive dated as of December 31, 2003, as amended prior to the Effective Date. No representations, inducements, promises or agreements, oral or otherwise, which are not embodied herein shall be of any force or effect.

 

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(d)          Withholdings. Notwithstanding any other provision of this Agreement, the Employer shall withhold from any amounts payable or benefits provided under this Agreement any federal, state and local taxes as shall be required to be withheld pursuant to any applicable law or regulation.

 

(e)          Compliance with Section 409A.

 

(i)          It is intended that this Agreement shall conform with all applicable Section 409A requirements to the extent Section 409A applies to any provisions of the Agreement. Accordingly, in interpreting, construing or applying any provisions of the Agreement, the same shall be construed in such manner as shall meet and comply with Section 409A, and in the event of any inconsistency with Section 409A, the same shall be reformed so as to meet the requirements of Section 409A. For purposes of Section 409A, each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments. In no event shall Executive, directly or indirectly, designate the calendar year of payment. Executive acknowledges that the Employer has not made, and does not make, any representation or warranty regarding the treatment of this Agreement or the benefits payable under this Agreement under federal, state or local income tax laws, including, but not limited to, Section 409A or compliance with the requirements thereof.

 

(ii)         To the extent Executive is a “specified employee” as defined in Section 409A, notwithstanding the timing of payment provided in any other Section of this Agreement, no payment, distribution or benefit under this Agreement that constitutes a distribution of deferred compensation (within the meaning of Section 409A) upon separation from service (within the meaning of Section 409A), after taking into account all available exemptions, that would otherwise be payable, distributable or settled during the six-month period after separation from service, will be made during such six-month period, and any such payment, distribution or benefit will instead be paid, distributed or settled on the first business day after such six-month period; provided, however, that if Executive dies following the Termination Date and prior to the payment, distribution, settlement or provision of any payments, distributions or benefits delayed on account of Section 409A, then such payments, distributions or benefits shall be paid or provided to the personal representative of Executive’s estate within 30 days after the date of Executive’s death.

 

(f)          Clawback Provisions. Notwithstanding any other provisions in this Agreement to the contrary, any bonus, incentive-based, equity-based or other similar compensation paid to Executive pursuant to this Agreement or any other agreement or arrangement with the Employer which is subject to recovery under any law, government regulation or stock exchange listing requirement will be subject to such deductions and clawback as may be required to be made pursuant to such law, government regulation or stock exchange listing requirement (or any policy adopted by the Employer pursuant to any such law, government regulation or stock exchange listing requirement).

 

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(g)          Governing Law. Except to the extent preempted by federal law, the laws of the State of Georgia shall govern this Agreement in all respects, whether as to its validity, construction, capacity, performance or otherwise.

 

(h)          Arbitration. Except for any claim for injunctive relief hereunder or as provided in Section 11 hereof, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration in accordance with the rules and procedures of the American Arbitration Association. The place of arbitration shall be selected by the Employer. The decision of the arbitration panel shall be final and binding upon the parties, and judgment upon the award rendered by the arbitration panel may be entered by any court having jurisdiction. The parties agree that Executive and the Employer shall each bear one-half of the administrative expenses (filing and arbitrator costs) associated with the arbitration, and the prevailing party shall be entitled to reimbursement for the additional costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by such party in connection with any such dispute.

 

(i)          Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally, by nationally recognized overnight courier service or sent by certified, registered or express mail, postage prepaid. Any such notice shall be deemed given when so delivered personally, when delivered by nationally recognized overnight courier service or, if mailed, five days after the date of deposit in the United States mail, as follows:

 

To the Employer:

 

  Ameris Bancorp
  310 First Street, S.E.
  Moultrie, Georgia  31768
  Attention:  Chief Executive Officer

 

To Executive:

 

  At the most recent address on file for Executive with the Employer.

 

Any party may change the address to which notices, requests, demands and other communications shall be delivered or mailed by giving notice thereof to the other party in the same manner provided herein.

 

(j)          Survival. Notwithstanding anything in this Agreement to the contrary, the provisions of Sections 7, 10, 11 and 14(e)-(j), the definitions of defined terms used therein and the remaining provisions of this Section 14 (to the extent necessary to effectuate the survival of the foregoing provisions) shall survive the termination of this Agreement and any termination of Executive’s employment hereunder.

 

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(k)          Amendments and Modifications. This Agreement may be amended or modified only by a writing signed by all parties hereto that makes specific reference to this Agreement.

 

[Signature page follows.]

 

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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Executive Employment Agreement as of the date first above written.

 

  AMERIS BANCORP
     
  By:    /s/ Edwin W. Hortman, Jr.
  Name:   Edwin W. Hortman, Jr.
  Title:   President and Chief Executive Officer
   
  AMERIS BANK
   
  By:    /s/ Edwin W. Hortman, Jr.
  Name:   Edwin W. Hortman, Jr.
  Title:   Chief Executive Officer
     
     /s/ Cindi H. Lewis
  CINDI H. LEWIS

  

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