As filed with the Securities and Exchange Commission on January 24, 2006
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
AMERIS BANCORP
(Exact Name of Registrant as Specified in its Charter)
| GEORGIA | 58-1456434 | |
|
(State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
24 2 nd Avenue, S.E.
Moultrie, Georgia 31768
(Address of Principal Executive Offices)
ABC BANCORP 2005 OMNIBUS STOCK
OWNERSHIP AND LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
Mr. Edwin W. Hortman, Jr.
Chief Executive Officer
Ameris Bancorp
24 2 nd Avenue, S.E.
Moultrie, Georgia 31768
(229) 890-1111
(Name, Address and Telephone Number of Agent for Service)
CALCULATION OF REGISTRATION FEE
|
Title of Each Class of Securities to be Registered |
Amount to be
Registered (2) |
Proposed Maximum Offering Price Per Share (3) |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee |
||||
|
Common Stock, $1.00 par value per share (1) |
1,020,000 | $20.08 | $20,481,600 | $2,191.53 |
| (1) | Represents shares issuable pursuant to the ABC Bancorp 2005 Omnibus Stock Ownership and Long-Term Incentive Plan (the “Plan”). |
| (2) | This registration statement also relates to an indeterminate number of additional shares of Common Stock that may become issuable pursuant to anti-dilution and adjustment provisions of the Plan. In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Plan. |
| (3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as amended, based upon the average of the high and low prices of the Registrant’s common stock on January 20, 2006 as reported by The Nasdaq Stock Market, Inc. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information .
The documents containing the information specified in this Item 1 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
Item 2. Registration Information and Employee Plan Annual Information .
The documents containing the information specified in this Item 2 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference .
The following documents previously filed with the Commission are incorporated by reference in this Registration Statement:
| (i) | The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2004; |
| (ii) | The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2005, June 30, 2005 and September 30, 2005; |
| (iii) | The Registrant’s Current Reports on Form 8-K filed on January 21, 2005, February 1, 2005, March 15, 2005, April 21, 2005, May 11, 2005, May 16, 2005, May 23, 2005, July 7, 2005, July 20, 2005, August 31, 2005, October 19, 2005, December 1, 2005 and December 20, 2005; and |
| (iv) | The Registrant’s Registration Statement on Form 8-A filed on September 2, 1987. |
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment to this Registration Statement which indicates that all the shares of the Registrant’s common stock offered hereby have been sold or which deregisters all of such shares then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
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Item 4. Description of Securities .
Not applicable.
Item 5. Interests of Named Experts and Counsel .
The validity of the shares of the Registrant’s common stock registered herby has been passed upon by Rogers & Hardin LLP.
Item 6. Indemnification of Officers and Directors .
Subsection (a) of Section 14-2-851 of the Georgia Business Corporation Code (the “GBCC”) provides that a corporation may indemnify an individual who is party to a proceeding because he or she is or was a director against liability incurred in the proceeding if (1) such individual conducted himself or herself in good faith; and (2) such individual reasonably believed (A) in the case of conduct in his or her official capacity, that such conduct was in the best interests of the corporation, (B) in all other cases, that such conduct was at least not opposed to the best interests of the corporation, and (C) in the case of any criminal proceeding, that the individual had no reasonable cause to believe that such conduct was unlawful. Subsection (d) of Section 14-2-851 of the GBCC provides that a corporation may not indemnify a director in connection with a proceeding by or in the right of the corporation, except for reasonable expenses incurred in connection with the proceeding if it is determined that the director has met the relevant standard of conduct, or in connection with any proceeding with respect to conduct for which he or she was adjudged liable on the basis that personal benefit was improperly received by him or her, whether or not involving action in his or her official capacity. Notwithstanding the foregoing, pursuant to Section 14-2-854 of the GBCC, a court may order a corporation to indemnify a director if such court determines, in view of all the relevant circumstances, that it is fair and reasonable to indemnify or advance expenses to the director, even if the director has not met the relevant standard of conduct set forth in subsections (a) and (b) of Section 14-2-851 of the GBCC, failed to comply with Section 14-2-853 of the GBCC, or was adjudged liable in a proceeding referred to in paragraph (1) or (2) of subsection (d) of Section 14-2-851 of the GBCC, but if the director was adjudged so liable, the indemnification shall be limited to reasonable expenses incurred in connection with the proceeding.
Section 14-2-852 of the GBCC provides that a corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he or she was a party because he or she was a director of the corporation against reasonable expenses incurred by the director in connection with the proceeding.
Section 14-2-857 of the GBCC provides that a corporation may indemnify and advance expenses to an officer of the corporation who is a party to a proceeding because he or she is an officer of the corporation to the same extent as a director. If the officer is not a director (or if the officer is a director but the sole basis on which he or she is made a party to the proceeding is an act or omission solely as an officer), the corporation may also indemnify and advance expenses to such officer to such further extent as may be provided by the articles of incorporation or the bylaws of the corporation, by a resolution of the board of directors of the corporation, or by contract, except for liability arising out of conduct that constitutes (1) the appropriation, in violation of their duties, of any business opportunity of the corporation, (2) acts or omissions which involve intentional misconduct or a knowing violation of law, (3) the types of liability set forth in Section 14-2-832 of the GBCC or (4) receipt of an improper personal benefit. An officer of a corporation who is not a director is entitled to mandatory indemnification under Section 14-2-852 of the GBCC and may apply to a court under Section 14-2-854 of the GBCC for indemnification or advances, in each case to the same extent to which a director may be entitled to indemnification under those provisions. Finally, a corporation may also indemnify an employee or agent who is not a director to the extent, consistent with public policy, that may be provided by its articles of incorporation or bylaws, by general or specific action by its board of directors or by contract.
Article XI of the Articles of Incorporation of the Registrant provides that, except as may be limited by the GBCC or any successor law, no director shall be personally liable to the Registrant or any of its shareholders for monetary damages for breach of his or her duty of care or other duty as a director.
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Article VII of the Bylaws of the Registrant provides that every person (and the heirs and legal representatives of such person) who is or was a director or officer of the Registrant or any other corporation of which he or she served as such at the request of the Registrant and of which the Registrant directly or indirectly is a shareholder or creditor, or in which or in the stocks, bonds, securities or other obligations of which the Registrant is in any way interested, may be indemnified for any liability and expense resulting from any threatened, pending or completed action, suit or proceeding, civil, criminal, administrative or investigative or derivative or otherwise, or in connection with any appeal relating thereto, in which he or she may become involved, as a party or prospective party or otherwise, by reason of any action taken or not taken in his or her capacity as a director or officer or as a member of any committee appointed by the board of directors of the Registrant to act for, in the interest of, or on behalf of the Registrant, whether or not he or she continues to be a director or officer at the time such liability or expense is incurred; provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Registrant and, in addition, with respect to any criminal action or proceeding, did not have reasonable cause to believe that his or her conduct was unlawful. The termination of any claim, action, suit or proceeding, by judgment, order, compromise, settlement (with or without court approval) or conviction or upon a plea of guilty or of nolo contendere, or its equivalent, does not create a presumption that a director or officer did not meet the standards of conduct set forth in the Bylaws. Expenses incurred with respect to any claim, action, suit or proceeding of the character described in Article VII of the Bylaws of the Registrant may be advanced by the Registrant prior to the final disposition thereof upon receipt of any undertaking by or on behalf of the recipient to repay such amount, unless it is ultimately determined that he or she is entitled to indemnification under the Bylaws.
Notwithstanding the foregoing, Article VII of the Registrant’s Bylaws provides that no officer or director who was or is a party to any action or suit by or in the right of the Registrant to procure a judgment in its favor by reason of the fact that he or she is or was an officer or director of the Registrant or such other corporation can be indemnified in respect of any claim, issue or matter as to which such person is adjudged to be liable for negligence or misconduct in the performance of his or her duty to the Registrant, unless the court in which such action or suit was brought determines that, despite the adjudication of liability and in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
Article VII of the Registrant’s Bylaws further provides that every person (and the heirs and legal representatives of such person) referred to above who has been wholly successful, on the merits or otherwise, with the respect to such claim, action, suit or proceeding is entitled to indemnification as of right without any further action or approval by the board of directors of the Registrant, and any indemnification pursuant to the Bylaws of the Registrant will be made at the discretion of the Registrant only if (a) the board of directors, acting by majority vote of a quorum consisting of directors who were not parties to such claim, action, suit or proceeding, present or voting, finds that the director or officer met the standard of conduct set forth in the Bylaws, or (b) no such quorum of the board of directors exists, independent legal counsel at the request of either the Registrant or the person seeking indemnification, delivers to the Registrant such counsel’s written opinion that such director or officer met such standards, or (c) the holders of a majority of stock then entitled to vote for the election of directors determines by affirmative vote that such director or officer met such standards.
The rights of indemnification provided in Article VII of the Registrant’s Bylaws are in addition to (i) any rights to which any director or officer may otherwise be entitled under any bylaw, agreement, vote of shareholders or otherwise and (ii) the power of the Registrant to purchase and maintain insurance on behalf of any director or officer against any liability asserted against him or her and incurred by him or her in such capacity, or arising out of his or her status as such, regardless of whether the Registrant would have the power to indemnify against such liability under the Bylaws or otherwise.
The Registrant’s Bylaws further provide that any repeal or modification of the Bylaws by the shareholders of the Registrant cannot adversely affect any right or protection of a director of the Registrant existing at the time of such repeal or modification.
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that, in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act
Item 7. Exemption from Registration Claimed .
Not applicable.
Item 8. Exhibits .
The exhibits to this Registration Statement are listed on the Exhibit Index
Item 9. Undertakings .
| (a) | The undersigned Registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) under the Securities Act if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table set forth in this Registration Statement; and |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; |
| provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registrant Statement; |
| (2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | That, for the purpose of determining liability under the Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after |
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| effectiveness. Provided, however , that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use; and |
| (5) | That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of an undersigned Registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s Annual Report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer of controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Moultrie, state of Georgia, on this 24 th day of January, 2006.
|
AMERIS BANCORP |
||
| By: |
/s/ Edwin W. Hortman, Jr. |
|
| Edwin W. Hortman, Jr. | ||
| President and Chief Executive Officer | ||
KNOW ALL MEN BY THESE PRESENTS , that each of the undersigned officers and directors of Ameris Bancorp hereby constitutes and appoints each of Edwin W. Hortman, Jr. and Dennis J. Zember Jr., his attorney-in-fact and agent, each with full power of substitution and resubstitution for him in any and all capacities, to sign any or all amendments or post-effective amendments to this Registration Statement, and to file the same, with exhibits thereto and other documents in connection therewith, in connection with the registration of the shares of the Registrant’s common stock under the Securities Act of 1933, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary in connection with such matters as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that such attorney-in-fact and agent or his substitute may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
|
Name |
Title |
Date |
||
|
/s/ Edwin W. Hortman, Jr. Edwin W. Hortman, Jr. |
President and Chief Executive Officer (Principal Executive Officer) |
January 24, 2006 | ||
|
/s/ Dennis J. Zember Jr. Dennis J. Zember Jr. |
Executive Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
January 24, 2006 | ||
|
/s/ Johnny W. Floyd Johnny W. Floyd |
Director | January 24, 2006 | ||
|
/s/ J. Raymond Fulp J. Raymond Fulp |
Director | January 24, 2006 | ||
|
/s/ Kenneth J. Hunnicutt Kenneth J. Hunnicutt |
Director | January 24, 2006 | ||
|
/s/ Daniel B. Jeter Daniel B. Jeter |
Director | January 24, 2006 | ||
|
/s/ Glenn A. Kirbo Glenn A. Kirbo |
Director | January 24, 2006 | ||
|
/s/ Robert P. Lynch Robert P. Lynch |
Director | January 24, 2006 | ||
|
/s/ Brooks Sheldon Brooks Sheldon |
Director | January 24, 2006 | ||
|
/s/ Eugene M. Vereen, Jr. Eugene M. Vereen, Jr. |
Director | January 24, 2006 | ||
|
/s/ Henry C. Wortman Henry C. Wortman |
Director | January 24, 2006 | ||
EXHIBIT INDEX
|
Exhibit No.
|
Description |
Method of Filing |
||
| 4.1 | ABC Bancorp 2005 Omnibus Stock Ownership and Long-Term Incentive Plan. | Incorporated by reference to Appendix A to the Registrant’s Definitive Proxy Statement filed with the Commission on April 18, 2005. | ||
| 4.2 | Form of Incentive Stock Option Agreement. | Filed herewith. | ||
| 4.3 | Form of Non-Qualified Stock Option Agreement. | Filed herewith. | ||
| 4.4 | Form of Restricted Stock Grant Agreement. | Filed herewith. | ||
| 5.1 | Opinion of Rogers & Hardin LLP. | Filed herewith. | ||
| 23.1 | Consent of Mauldin & Jenkins, Certified Public Accountants and Consultants, LLC. | Filed herewith. | ||
| 23.2 | Consent of Rogers & Hardin LLP (contained in Exhibit 5.1 hereto). | Filed herewith. | ||
| 24.1 | Powers of Attorney (contained on the signature page hereto). | |||
Exhibit 4.2
AMERIS BANCORP
2005 OMNIBUS STOCK OWNERSHIP
INCENTIVE STOCK OPTION AGREEMENT
|
Grantee: |
Number of Shares: |
Date of Grant: |
||
| _____________________ | _____________________ | _____________________ | ||
|
Expiration Date * : |
Exercise Price Per Share: |
|||
| _____________________ | $ | |||
|
Vesting Dates and Amounts*: |
Exercisability Dates*: |
|
| ____________________________ | ____________________________ | |
| ____________________________ | ____________________________ | |
| ____________________________ | ____________________________ | |
| ____________________________ | ____________________________ | |
| ____________________________ | ____________________________ |
THIS AGREEMENT (this “Agreement”) is made and entered into as of the date of the grant set forth above (the “Grant Date”), by and between Ameris Bancorp (f/k/a ABC Bancorp), a Georgia corporation (“Ameris”), and the above-named individual (the “Grantee”).
W I T N E S S E T H :
WHEREAS, Ameris has established the “ABC Bancorp 2005 Omnibus Stock Ownership and Long-Term Incentive Plan” (the “Plan”) to advance the interests of Ameris and any parent or subsidiary corporation of Ameris (together with Ameris, the “Company”) by strengthening the Company’s ability to attract and retain individuals of training, experience and ability in the employ of the Company and to furnish additional incentive to such key employees to promote the Company’s financial success; and
WHEREAS, pursuant to the provisions of the Plan, the Compensation Committee (the “Committee”) of the Board of Directors (the “Board”) authorized a grant of an option to acquire capital stock of Ameris to the Grantee as reflected herein on the Grant Date, the Board approved such grant on the Grant Date, and the Committee has the full power and authority to direct the execution and delivery of this Agreement in the name and on behalf of Ameris in order to evidence and to set forth fully the terms of said grant;
| * | Subject to acceleration as provided in Sections 3 and 4 hereof. |
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of ISO . Subject and pursuant to all terms and conditions stated in this Agreement and in the Plan, which is incorporated herein by this reference and made a part hereof as though fully set forth herein, Ameris grants to the Grantee on the Grant Date an incentive stock option (the “ISO”, as defined in the Plan), within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”), to purchase the number of shares of Ameris’s common stock, $1.00 par value per share (the “Common Stock”), set forth above (the “Option Shares”), at the exercise price per share set forth above (the “Per-Share Price”), on or before the expiration date set forth above (the “Expiration Date”). Unless sooner vested pursuant to Section 3 or 4 hereof, the ISO shall become vested to the Grantee in accordance with the vesting schedule set forth above (each such date upon which all or any part of the ISO shall vest, a “Vesting Date”) so long as (i) the Grantee remains employed with the Company throughout the period commencing on the Grant Date and continuing through the applicable Vesting Date and (ii) the performance targets set forth on Exhibit A attached hereto with respect to such Vesting Date have been met. The Grantee hereby accepts the ISO on such terms and conditions. The Grantee shall, subject to the limitations of this Agreement and the Plan, have the right to exercise the ISO under the exercisability schedule set forth above (each such date upon which all or any part of the ISO shall first become exercisable, an “Exercisability Date”) by purchasing all or any part of the Option Shares then available for purchase under the vesting schedule set forth above.
2. Exercise of ISO . The Grantee may exercise all or any part of the ISO by delivering written notice to the Committee (in the form attached hereto as Exhibit B ) of the number of Option Shares (in a multiple of 100, except in the case of a full exercise of the remaining vested portion of the ISO) to be purchased together with payment in an amount equal to the product of the Per-Share Price times the number of Option Shares to be purchased (the “Exercise Price”) made in one of the following forms or a combination thereof:
(a) Payment in Cash . The Committee may require the Grantee to make a cash payment to the Company equal to the amount of the Exercise Price; or
(b) Payment in Shares . The Grantee may request, in lieu of cash payment, that the Company either accept shares (of the same class as the Option Shares) owned by the Grantee or withhold Option Shares, each as more fully described below. If the Committee grants any such request in whole or in part, in its sole and absolute discretion, any shares so accepted or withheld by the Company under this paragraph (b) shall be valued at their fair market value, as determined in good faith by the Board. In no such event shall any fractional shares be accepted or withheld, and thus any deficiency remaining after the acceptance or withholding of whole shares shall be satisfied by the Grantee in cash.
In the event the Committee has indicated to the Grantee that it will permit payment of the Exercise Price to be made in whole or in part with previously issued stock owned by the Grantee, the stock certificates evidencing the surrendered shares shall accompany the notice of exercise and shall be duly endorsed or accompanied by duly executed stock powers to transfer the same to the Company. In the event that the Committee has indicated to the Grantee that it will permit payment of the Exercise Price to be made in whole or in part with Option Shares, the notice of exercise need not be accompanied by any stock certificates but shall include a statement directing the Company to
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retain that number of Option Shares as shall equal the number of shares that would have been surrendered to the Company by the Grantee if the Exercise Price had been paid with previously issued stock.
In the event the Grantee does not make such payment when requested, the Company may refuse to issue or cause to be delivered any shares under this Agreement or any other incentive plan agreement entered into by the Grantee and the Company until such payment has been made or arrangements for such payment satisfactory to the Company have been made.
Such notice of exercise shall be sent to the Committee at Ameris Bancorp, 24 Second Avenue SE, Moultrie, Georgia 31768, Attention: Chairman. The ISO shall be deemed to have been exercised on the date the written notice and required consideration are received on behalf of the Committee.
3. Vesting and Exercisability of ISO Following Termination of Employment .
(a) Employment Termination Prior to Exercisability Date of ISO . In the case of any termination of the Grantee’s employment with the Company, voluntarily or involuntarily, prior to an Exercisability Date, and other than under the circumstances described in Section 4 hereof, the following provisions shall apply:
(1) Unvested Portion of ISO . Any unvested portion of the ISO shall immediately terminate upon the earlier of (i) the date the employment of the Grantee with the Company terminates, or (ii) the date the Grantee is given written notice of his or her discharge from such employment; provided , however , that in the event such termination of employment occurs due to Retirement, Disability or Death (as each such term is defined in the Plan), then the Committee, in its sole and absolute discretion, may cause all or any part of such unvested portion of the ISO to become fully vested immediately upon the date of such employment termination (and thus become immediately exercisable and otherwise subject to the terms and conditions of subparagraph (2) immediately below).
(2) Vested Portion of ISO . Any vested but theretofore unexercisable portion of the ISO (including any portion of the ISO that vests in the discretion of the Committee pursuant to subparagraph (1) immediately above) shall become immediately exercisable but shall terminate effective three (3) months after the earlier of (i) the date the employment of the Grantee with the Company terminates, or (ii) the date the Grantee is given written notice of his or her discharge from such employment; provided , however , that in the event such termination of employment occurs due to either Disability or Death, such vested portion of the ISO may be exercised at any time (i) within one (1) year from such Disability (but in all events prior to the Expiration Date), or (ii) prior to the Expiration Date in the case of employment termination by reason of Death.
(b) Employment Termination On or After Exercisability Date of ISO . In the case of any termination of the Grantee’s employment with the Company, voluntarily or involuntarily, on or after an Exercisability Date, any vested and theretofore exercisable (but unexercised) portion of the ISO shall terminate effective three (3) months after the earlier of (i) the date the employment of the
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Grantee with the Company terminates, or (ii) the date the Grantee is given written notice of his or her discharge from such employment; provided , however , that in the event such employment termination occurs due to Disability or Death, the ISO may be exercised at any time (i) within one (1) year from such Disability (but in all events prior to the Expiration Date) or (ii) prior to the Expiration Date in the case of employment termination by reason of Death.
4. Vesting and Exercisability of ISO Following Change in Control . If a Triggering Event (as defined in the Plan) shall occur within the 12-month period beginning with a Change in Control (as defined in the Plan) of the Company, then, effective immediately prior to such Triggering Event, any unvested and/or unexercisable portion of the ISO shall automatically become fully and immediately vested and exercisable.
5. Legal Restrictions . If in the opinion of legal counsel for the Company the issuance or sale of any Option Shares would not be lawful for any reason, including, without limitation, the inability of the Company to obtain from any governmental authority or regulatory body having jurisdiction the authority deemed by such counsel to be necessary to such issuance or sale, the Company shall not be obligated to issue or sell any Option Shares pursuant to the exercise of this ISO to the Grantee or any other authorized person unless a registration statement that complies with the provisions of the Securities Act of 1933, as amended (the “Act”), in respect of such Option Shares is in effect at the time thereof, or other appropriate action has been taken under and pursuant to the terms and provisions of the Act, or the Company receives evidence satisfactory to such counsel that the issuance and sale of such Option Shares, in the absence of an effective registration statement or other appropriate action, would not constitute a violation of the Act or any applicable state securities law. It is further agreed that the Company is in no event obligated to register any Option Shares, to comply with any exemption from registration requirements or to take any other action which may be required in order to permit, or to remedy or remove any prohibition or limitation on, the issuance or sale of such Option Shares to the Grantee. The Grantee further acknowledges that the Act and/or applicable state securities laws may restrict the right and govern the manner in which the Grantee may dispose of Option Shares, and the Grantee agrees not to offer, sell or otherwise dispose of any such shares in a manner which would violate the Act or any other federal or state law.
6. Option Shares Delivered in Escrow . All Option Shares issued upon any exercise of the ISO shall be held in escrow for a period which ends on the later of (i) two (2) years from the Grant Date or (ii) one (1) year after the issuance of such shares pursuant to the exercise of the ISO. Such shares shall be held by the Company or its designee. During such escrow period, the Grantee shall have all rights of a shareholder of the Company, including, but not limited to, the rights to vote, receive dividends and transfer such shares. The sole purpose of the escrow is to inform the Company of any disqualifying disposition (described in Section 422(a)(1) of the Code) of the Option Shares and it shall be administered solely for this purpose.
7. No Rights as Shareholder or to Employment . Neither the Grantee nor any other person authorized to purchase Common Stock upon exercise of this ISO shall have any interest in or shareholder rights with respect to any shares of the Common Stock which are subject to this ISO until such shares have been issued and delivered into escrow as provided in Section 6 hereof. Furthermore, neither this Agreement nor the Plan shall confer upon the Grantee any rights of
4
employment with the Company, including, without limitation, any right to continue in the employ of the Company, or shall affect the right of the Company to terminate the employment of the Grantee at any time, with or without cause.
8. Withholding Taxes . As a condition of exercise of this ISO, the Committee may, in its sole discretion, withhold or require the Grantee to pay or reimburse the Company for any taxes which the Company determines are required to be withheld in connection with the grant or any exercise of this ISO.
9. Heirs and Successors . This Agreement and all terms and conditions hereof shall be binding upon the parties hereto, and their successors, heirs, legatees and legal representatives.
10. Nontransferability; Who May Exercise . Neither this Agreement nor the ISO granted hereby may be transferred or assigned, other than by will or the laws of descent and distribution, and the ISO may not be exercised by any person other than the Grantee during the Grantee’s lifetime.
11. Plan Controls . Copies of the Plan will be made available to the Grantee upon request. In the event of any conflict between the Plan and this Agreement, the Plan shall control and this Agreement shall be deemed to be modified accordingly.
12. Governing Law; Venue . To the extent not superseded by federal law, the laws of the State of Georgia shall control in all matters relating to this Agreement and any action relating to this Agreement must be brought in Colquitt County, State of Georgia.
13. Counterparts; Facsimile Delivery . This Agreement may be executed simultaneously in counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument. Executed counterparts may be delivered via facsimile transmission.
14. Compliance with Section 409A . The Company expressly reserves the right to modify or amend this Agreement without the consent of the Grantee if the Committee determines, in its sole discretion, that such modification or amendment is necessary or desirable for purposes of compliance with or exemption from the requirements of Section 409A of the Code or any regulations or other guidance issued thereunder; provided , however , that the Company shall have no liability whatsoever to the Grantee or any other person in the event that this Agreement is determined to be subject to and not in compliance with Section 409A of the Code.
[Signatures on following page.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, all as of the Grant Date set forth herein.
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AMERIS BANCORP |
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| By: |
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| Chairman of the Committee | ||
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| GRANTEE | ||
EXHIBIT A
PERFORMANCE TARGETS
[To be completed.]
EXHIBIT B
EXERCISE OF INCENTIVE
STOCK OPTION
The undersigned Optionee under that certain Ameris Bancorp Incentive Stock Option Agreement dated as of (the “Agreement”), hereby exercises the Incentive Stock Option granted under the Agreement for the following number of shares of Common Stock, subject to the terms and conditions of the Agreement:
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Number of shares being purchased (must be a multiple of 100 or full exercise): |
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Total purchase price submitted herewith: |
$ | ||
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| (Signature) |
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| (Date) |
Exhibit 4.3
AMERIS BANCORP
2005 OMNIBUS STOCK OWNERSHIP
NON-QUALIFIED STOCK OPTION AGREEMENT
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Grantee: |
Number of Shares: |
Date of Grant: |
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| _____________________ | _____________________ | _____________________ | ||
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Expiration Date * : |
Exercise Price Per Share: |
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| _____________________ | $ | |||
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Vesting Dates*: |
Exercisability Dates*: |
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| ____________________________ | ____________________________ | |
| ____________________________ | ____________________________ | |
| ____________________________ | ____________________________ | |
| ____________________________ | ____________________________ | |
| ____________________________ | ____________________________ |
THIS AGREEMENT (this “Agreement”) is made and entered into as of the date of the grant set forth above (the “Grant Date”), by and between Ameris Bancorp (f/k/a ABC Bancorp), a Georgia corporation (“Ameris”), and the above-named individual (the “Grantee”).
W I T N E S S E T H :
WHEREAS, Ameris has established the “ABC Bancorp 2005 Omnibus Stock Ownership and Long-Term Incentive Plan” (the “Plan”) to advance the interests of Ameris and any parent or subsidiary corporation of Ameris (together with Ameris, the “Company”) by strengthening the Company’s ability to attract and retain individuals of training, experience and ability in the employ of the Company and to furnish additional incentive to such key employees to promote the Company’s financial success; and
WHEREAS, pursuant to the provisions of the Plan, the Compensation Committee (the “Committee”) of the Board of Directors (the “Board”) authorized a grant of an option to acquire capital stock of Ameris to the Grantee as reflected herein on the Grant Date, the Board approved such grant on the Grant Date, and the Committee has the full power and authority to direct the execution and delivery of this Agreement in the name and on behalf of Ameris in order to evidence and to set forth fully the terms of said grant;
| * | Subject to acceleration as provided in Sections 3 and 4 hereof. |
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option . Subject and pursuant to all terms and conditions stated in this Agreement and in the Plan, which is incorporated herein by this reference and made a part hereof as though fully set forth herein, Ameris grants to the Grantee on the Grant Date a non-qualified stock option (the “Option”) to purchase the number of shares of Ameris’s common stock, $1.00 par value per share (the “Common Stock”), set forth above (the “Option Shares”), at the exercise price per share set forth above (the “Per-Share Price”), on or before the expiration date set forth above (the “Expiration Date”). Unless sooner vested pursuant to Section 3 or 4 hereof, the Option shall become vested to the Grantee in accordance with the vesting schedule set forth above (each such date upon which all or any part of the Option shall vest, a “Vesting Date”) so long as (i) the Grantee remains employed with the Company throughout the period commencing on the Grant Date and continuing through the applicable Vesting Date and (ii) the performance targets set forth on Exhibit A attached hereto with respect to such Vesting Date have been met. The Grantee hereby accepts the Option on such terms and conditions. The Grantee shall, subject to the limitations of this Agreement and the Plan, have the right to exercise the Option under the exercisability schedule set forth above (each such date upon which all or any part of the Option shall first become exercisable, an “Exercisability Date”) by purchasing all or any part of the Option Shares then available for purchase under the vesting schedule set forth above.
2. Exercise of Option . The Grantee may exercise all or any part of the Option by delivering written notice to the Committee (in the form attached hereto as Exhibit B ) of the number of Option Shares (in a multiple of 100, except in the case of a full exercise of the remaining vested portion of the Option) to be purchased together with payment in an amount equal to the product of the Per-Share Price times the number of Option Shares to be purchased (the “Exercise Price”) made in one of the following forms or a combination thereof:
(a) Payment in Cash . The Committee may require the Grantee to make a cash payment to the Company equal to the amount of the Exercise Price; or
(b) Payment in Shares . The Grantee may request, in lieu of cash payment, that the Company either accept shares (of the same class as the Option Shares) owned by the Grantee or withhold Option Shares, each as more fully described below. If the Committee grants any such request in whole or in part, in its sole and absolute discretion, any shares so accepted or withheld by the Company under this paragraph (b) shall be valued at their fair market value, as determined in good faith by the Board. In no such event shall any fractional shares be accepted or withheld, and thus any deficiency remaining after the acceptance or withholding of whole shares shall be satisfied by the Grantee in cash.
In the event the Committee has indicated to the Grantee that it will permit payment of the Exercise Price to be made in whole or in part with previously issued stock owned by the Grantee, the stock certificates evidencing the surrendered shares shall accompany the notice of exercise and shall be duly endorsed or accompanied by duly executed stock powers to transfer the same to the Company. In the event that the Committee has indicated to the Grantee that it will permit payment of the Exercise Price to be made in whole or in part with Option Shares, the notice of exercise need not be accompanied by any stock certificates but shall include a statement directing the Company to retain that number of Option Shares as shall equal the number of shares that would have been surrendered to the Company by the Grantee if the Exercise Price had been paid with previously issued stock.
2
In the event the Grantee does not make such payment when requested, the Company may refuse to issue or cause to be delivered any shares under this Agreement or any other incentive plan agreement entered into by the Grantee and the Company until such payment has been made or arrangements for such payment satisfactory to the Company have been made.
Such notice of exercise shall be sent to the Committee at Ameris Bancorp, 24 Second Avenue SE, Moultrie, Georgia 31768, Attention: Chairman. The Option shall be deemed to have been exercised on the date the written notice and required consideration are received on behalf of the Committee.
3. Vesting and Exercisability of Option Following Termination of Employment .
(a) Employment Termination Prior to Exercisability Date of Option . In the case of any termination of the Grantee’s employment with the Company, voluntarily or involuntarily, prior to an Exercisability Date, and other than under the circumstances described in Section 4 hereof, the following provisions shall apply:
(1) Unvested Portion of Option . Any unvested portion of the Option shall immediately terminate upon the earlier of (i) the date the employment of the Grantee with the Company terminates, or (ii) the date the Grantee is given written notice of his or her discharge from such employment; provided , however , that in the event such termination of employment occurs due to Retirement, Disability or Death (as each such term is defined in the Plan), then the Committee, in its sole and absolute discretion, may cause all or any part of such unvested portion of the Option to become fully vested immediately upon the date of such employment termination (and thus become immediately exercisable and otherwise subject to the terms and conditions of subparagraph (2) immediately below).
(2) Vested Portion of Option . Any vested but theretofore unexercisable portion of the Option (including any portion of the Option that vests in the discretion of the Committee pursuant to subparagraph (1) immediately above) shall become immediately exercisable but shall terminate effective three (3) months after the earlier of (i) the date the employment of the Grantee with the Company terminates, or (ii) the date the Grantee is given written notice of his or her discharge from such employment; provided , however , that in the event such termination of employment occurs due to either Disability or Death, such vested portion of the Option may be exercised at any time (i) within one (1) year from such Disability (but in all events prior to the Expiration Date), or (ii) prior to the Expiration Date in the case of employment termination by reason of Death.
(b) Employment Termination On or After Exercisability Date of Option . In the case of any termination of the Grantee’s employment with the Company, voluntarily or involuntarily, on or after an Exercisability Date, any vested and theretofore exercisable (but unexercised) portion of the Option shall terminate effective three (3) months after the earlier of (i) the date the employment of the Grantee with the Company terminates, or (ii) the date the Grantee is given written notice of his
3
or her discharge from such employment; provided , however , that in the event such employment termination occurs due to Disability or Death, the Option may be exercised at any time (i) within one (1) year from such Disability (but in all events prior to the Expiration Date) or (ii) prior to the Expiration Date in the case of employment termination by reason of Death.
4. Vesting and Exercisability of Option Following Change in Control . If a Triggering Event (as defined in the Plan) shall occur within the 12-month period beginning with a Change in Control (as defined in the Plan) of the Company, then, effective immediately prior to such Triggering Event, any unvested and/or unexercisable portion of the Option shall automatically become fully and immediately vested and exercisable.
5. Legal Restrictions . If in the opinion of legal counsel for the Company the issuance or sale of any Option Shares would not be lawful for any reason, including, without limitation, the inability of the Company to obtain from any governmental authority or regulatory body having jurisdiction the authority deemed by such counsel to be necessary to such issuance or sale, the Company shall not be obligated to issue or sell any Option Shares pursuant to the exercise of this Option to the Grantee or any other authorized person unless a registration statement that complies with the provisions of the Securities Act of 1933, as amended (the “Act”), in respect of such Option Shares is in effect at the time thereof, or other appropriate action has been taken under and pursuant to the terms and provisions of the Act, or the Company receives evidence satisfactory to such counsel that the issuance and sale of such Option Shares, in the absence of an effective registration statement or other appropriate action, would not constitute a violation of the Act or any applicable state securities law. It is further agreed that the Company is in no event obligated to register any Option Shares, to comply with any exemption from registration requirements or to take any other action which may be required in order to permit, or to remedy or remove any prohibition or limitation on, the issuance or sale of such Option Shares to the Grantee. The Grantee further acknowledges that the Act and/or applicable state securities laws may restrict the right and govern the manner in which the Grantee may dispose of Option Shares, and the Grantee agrees not to offer, sell or otherwise dispose of any such shares in a manner which would violate the Act or any other federal or state law.
6. No Rights as Shareholder or to Employment . Neither the Grantee nor any other person authorized to purchase Common Stock upon exercise of this Option shall have any interest in or shareholder rights with respect to any shares of the Common Stock which are subject to this Option until such shares have been issued and delivered to the Grantee or such other person. Furthermore, neither this Agreement nor the Plan shall confer upon the Grantee any rights of employment with the Company, including, without limitation, any right to continue in the employ of the Company, or shall affect the right of the Company to terminate the employment of the Grantee at any time, with or without cause.
7. Withholding Taxes . As a condition of exercise of this Option, the Committee may, in its sole discretion, withhold or require the Grantee to pay or reimburse the Company for any taxes which the Company determines are required to be withheld in connection with the grant or any exercise of this Option.
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8. Heirs and Successors . This Agreement and all terms and conditions hereof shall be binding upon the parties hereto, and their successors, heirs, legatees and legal representatives.
9. Nontransferability; Who May Exercise . Neither this Agreement nor the Option granted hereby may be transferred or assigned, other than by will or the laws of descent and distribution, and the Option may not be exercised by any person other than the Grantee during the Grantee’s lifetime.
10. Plan Controls . Copies of the Plan will be made available to the Grantee upon request. In the event of any conflict between the Plan and this Agreement, the Plan shall control and this Agreement shall be deemed to be modified accordingly.
11. Governing Law; Venue . To the extent not superseded by federal law, the laws of the State of Georgia shall control in all matters relating to this Agreement and any action relating to this Agreement must be brought in Colquitt County, State of Georgia.
12. Counterparts; Facsimile Delivery . This Agreement may be executed simultaneously in counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument. Executed counterparts may be delivered via facsimile transmission.
13. Compliance with Section 409A . The Company expressly reserves the right to modify or amend this Agreement without the consent of the Grantee if the Committee determines, in its sole discretion, that such modification or amendment is necessary or desirable for purposes of compliance with or exemption from the requirements of Section 409A of the Code or any regulations or other guidance issued thereunder; provided , however , that the Company shall have no liability whatsoever to the Grantee or any other person in the event that this Agreement is determined to be subject to and not in compliance with Section 409A of the Code.
[Signatures on following page.]
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, all as of the Grant Date set forth herein.
| AMERIS BANCORP | ||
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By: |
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| Chairman of the Committee | ||
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|
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| GRANTEE | ||
EXHIBIT A
PERFORMANCE TARGETS
[To be completed.]
EXHIBIT B
EXERCISE OF NON-QUALIFIED
STOCK OPTION
The undersigned Optionee under that certain Ameris Bancorp Incentive Stock Option Agreement dated as of (the “Agreement”), hereby exercises the Non-Qualified Stock Option granted under the Agreement for the following number of shares of Common Stock, subject to the terms and conditions of the Agreement:
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Number of shares being purchased (must be a multiple of 100 or full exercise): |
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Total purchase price submitted herewith: |
$ | ||
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| (Signature) |
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| (Date) |
Exhibit 4.4
AMERIS BANCORP
2005 OMNIBUS STOCK OWNERSHIP
RESTRICTED STOCK GRANT AGREEMENT
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Grantee: |
Number of Shares: |
Date of Grant: |
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| _____________________ | _____________________ | _____________________ |
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Vesting Dates and Amounts * : |
Closing Price at Date of Grant: |
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| ____________________________ | $ per share | |
| ____________________________ |
THIS AGREEMENT (this “Agreement”) is made and entered into as of the date of the grant set forth above (the “Grant Date”), by and between Ameris Bancorp (f/k/a ABC Bancorp), a Georgia corporation (“Ameris”), and the above-named individual (the “Grantee”).
W I T N E S S E T H :
WHEREAS, Ameris has established the “ABC Bancorp 2005 Omnibus Stock Ownership and Long-Term Incentive Plan” (the “Plan”) to advance the interests of Ameris and any parent or subsidiary corporation of Ameris (together with Ameris, the “Company”) by strengthening the Company’s ability to attract and retain individuals of training, experience and ability in the employ of the Company and to furnish additional incentive to such key employees to promote the Company’s financial success; and
WHEREAS, pursuant to the provisions of the Plan, the Compensation Committee (the “Committee”) of the Board of Directors (the “Board”) authorized a grant of restricted capital stock of Ameris to the Grantee as reflected herein on the Grant Date, the Board approved such grant on the Grant Date, and the Committee has the full power and authority to direct the execution and delivery of this Agreement in the name and on behalf of Ameris in order to evidence and to set forth fully the terms of said grant;
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Shares . Subject and pursuant to all terms and conditions stated in this Agreement and in the Plan, which is incorporated herein by this reference and made a part hereof as though fully set forth herein, Ameris grants to the Grantee on the Grant Date the number of shares of Ameris’s common stock, $1.00 par value per share (the “Common Stock”), set forth above (the “Shares”). The Grantee hereby accepts the Shares on such terms and conditions.
| * | Subject to acceleration as provided in Sections 2(b) and 3 hereof. |
2. Vesting/Forfeiture of Shares; Employment Termination .
(a) In General . Unless sooner vested pursuant to Section 3 hereof, the Shares shall become fully vested to the Grantee in accordance with the vesting schedule set forth above (each such date upon which all or any part of the Shares shall vest, a “Vesting Date”) so long as (i) the Grantee remains employed with the Company throughout the period commencing on the Grant Date and continuing through the applicable Vesting Date and (ii) the performance targets set forth on Exhibit A attached hereto with respect to such Vesting Date have been met. Subject to the Committee’s discretion to accelerate the vesting of the Shares under certain circumstances as set forth in paragraph (b) immediately below, in the event that the Grantee’s employment with the Company terminates for any reason prior to a Vesting Date, other than under the circumstances described in Section 3 hereof, all the then unvested Shares shall be forfeited to the Company and cancelled on the date of such termination.
(b) Discretion to Accelerate Vesting . In the event that the Grantee’s employment with the Company terminates prior to a Vesting Date due to either Retirement, Disability or Death (as each such term is defined in the Plan), then the Committee, in its sole and absolute discretion, may cause all or any part of the Shares theretofore unvested nevertheless to become fully vested on one or more Vesting Dates (or sooner, in the discretion of the Committee).
3. Vesting of Shares Following Change in Control . If a Triggering Event (as defined in the Plan) shall occur within the 12-month period beginning with a Change in Control (as defined in the Plan) of the Company, then, effective immediately prior to such Triggering Event, all unvested Shares not previously forfeited and cancelled pursuant to Section 2(a) hereof shall become immediately and fully vested in the Grantee and all forfeiture and transfer restrictions thereon shall lapse.
4. Section 83(b) Election . If the grant of the Shares would not be taxable under the provisions of Section 83(a) of the Internal Revenue Code of 1986, as amended (the “Code”), as a result of the forfeiture and restriction on transferability provisions contained herein, then the Grantee shall be authorized, in the Grantee’s discretion, to make an election to be taxed on the grant of the Shares under Section 83(b) of the Code. To effect such election, the Grantee shall file an appropriate election with the Internal Revenue Service and shall submit a copy of any such election to the Company within thirty (30) days after the grant of the Shares and otherwise in accordance with applicable Treasury Regulations. The Company’s copy of the election shall be sent to the Committee at Ameris Bancorp, 24 Second Avenue, SE, Moultrie, Georgia 31768, Attention: Chairman.
5. Withholding Taxes . The Grantee acknowledges that he or she generally will be required to recognize income for federal, state or local income tax purposes upon the vesting of the Shares (or upon the grant of the Shares, if the Grantee makes an election with respect to the Shares pursuant to Section 83(b) of the Code, as more fully described in Section 4 hereof), and that such income generally will be subject to withholding of tax by the Company (the “Tax”). The Grantee agrees that the Company, in its discretion, may withhold such Tax in any of the following ways:
(a) The Company may withhold an appropriate amount from any compensation or any other payment of any kind then payable or which may become payable to the Grantee;
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(b) The Committee may require the Grantee to make a cash payment to the Company equal to the amount of withholding required in the opinion of the Company; or
(c) The Grantee may request, in lieu of cash payment, that the Company accept shares of Common Stock already owned by the Grantee or withhold a portion of the Shares, each as more fully described below. If the Committee grants any such request in whole or in part, in its sole and absolute discretion, any shares so accepted or withheld by the Company under this paragraph (c) shall be valued at their fair market value, as determined in good faith by the Board. In no such event shall any fractional shares be accepted or withheld, and thus any deficiency remaining after the acceptance or withholding of whole shares shall be satisfied by the Grantee in cash.
In the event the Committee permits payment of the Tax or any portion thereof to be made in whole or in part with previously issued shares of Company Stock owned by the Grantee, the stock certificates evidencing the shares so to be used shall be surrendered to the Company by the date determined by the Company for such surrender and shall be duly endorsed or accompanied by duly executed stock powers to transfer the same to the Company. In the event the Committee permits payment of the Tax to be made in whole or in part with a portion of the Shares, the Grantee need not surrender any stock certificates but shall provide upon request a written statement directing the Company to retain that number of Shares as shall equal the number of shares of Common Stock that would have been surrendered to the Company if the Tax had been paid with previously issued stock.
In the event the Grantee does not make such payment when requested, the Company may refuse to issue or cause to be delivered any Shares under this Agreement or any other incentive plan agreement entered into by the Grantee and the Company until such payment has been made or arrangements for such payment satisfactory to the Company have been made.
6. Escrow and Delivery of Shares .
(a) Escrow; Legend . The Shares shall be issued in the name of the Grantee as soon as reasonably practicable after the Grantee has executed this Agreement and the appropriate blank stock powers. Prior to the time the restrictions on the Shares lapse pursuant to Section 2 hereof, the Shares may not be sold, transferred or otherwise disposed of and shall not be pledged or otherwise hypothecated, but the Grantee shall have all other rights of a stockholder with respect to the Shares as set forth in Section 7 hereof. Certificates representing the Shares shall be held by the Company in escrow and shall remain in the custody of the Company until their delivery to the Grantee or his estate as set forth in paragraph (b) immediately below or their forfeiture to the Company as set forth in Section 2(a) hereof. Each such stock certificate shall bear a legend in substantially the following form:
“This certificate and the shares of stock represented hereby are subject to the terms and conditions (including forfeiture and restrictions against transfer) contained in the ABC Bancorp 2005 Omnibus Stock Ownership and Long-Term Incentive Plan (the
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“Plan”) and a Restricted Stock Grant Agreement (the “Agreement”) between the registered owner of the shares represented hereby and Ameris Bancorp. Release from such terms and conditions shall be made only in accordance with the provisions of the Plan and the Agreement, copies of which are on file in the office of the Secretary of Ameris Bancorp.”
(b) Delivery . As soon as practical following the lapse of the restrictions pursuant to Section 2 hereof (or following the vesting of Shares pursuant to Section 2(b) or 3 hereof), provided the Grantee has satisfied all applicable withholding requirements with respect thereto, the Company shall issue new certificates which shall not bear the legend set forth in paragraph (a) immediately above; provided , however , that the Shares will be delivered only in compliance with all applicable federal and state securities and other laws.
7. Voting Rights; Dividends; Capital Changes . The Grantee shall have the full power to vote all of the Shares (including any unvested Shares) from time to time and shall be entitled to receive all dividends declared upon any of the Shares (including any unvested Shares) from time to time (net of any applicable withholding taxes). The Grantee hereby acknowledges that any cash dividends declared upon unvested Shares shall be payable to the Grantee solely in cash and shall not be eligible for reinvestment in any dividend reinvestment program administered by the Company. All shares of capital stock or other securities issued with respect to any of the Shares or in substitution thereof, whether by the Company or by another issuer, shall be subject to all of the terms of this Agreement and may be forfeited to the Company under Section 2(a) hereof under the same circumstances as the Shares with respect to, or in substitution for, which they were issued.
8. No Rights to Employment . Neither this Agreement nor the Plan shall confer upon the Grantee any rights of employment with the Company, including, without limitation, any right to continue in the employ of the Company, or shall affect the right of the Company to terminate the employment of the Grantee at any time, with or without cause.
9. Heirs and Successors . This Agreement and all terms and conditions hereof shall be binding upon the parties hereto, and their successors, heirs, legatees and legal representatives.
10. Plan Controls . Copies of the Plan will be made available to the Grantee upon request. In the event of any conflict between the Plan and this Agreement, the Plan shall control and this Agreement shall be deemed to be modified accordingly.
11. Governing Law; Venue . To the extent not superseded by federal law, the laws of the State of Georgia shall control in all matters relating to this Agreement and any action relating to this Agreement must be brought in Colquitt County, State of Georgia.
12. Counterparts; Facsimile Delivery . This Agreement may be executed simultaneously in counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument. Executed counterparts may be delivered via facsimile transmission.
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13. Compliance with Section 409A . The Company expressly reserves the right to modify or amend this Agreement without the consent of the Grantee if the Committee determines, in its sole discretion, that such modification or amendment is necessary or desirable for purposes of compliance with or exemption from the requirements of Section 409A of the Code or any regulations or other guidance issued thereunder; provided , however , that the Company shall have no liability whatsoever to the Grantee or any other person in the event that this Agreement is determined to be subject to and not in compliance with Section 409A of the Code.
[Signatures on following page.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, all as of the Grant Date set forth herein.
| AMERIS BANCORP | ||
| By: |
|
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| Chairman of the Committee | ||
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|
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| GRANTEE | ||
EXHIBIT A
PERFORMANCE TARGETS
[To be completed.]
STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto , shares of the $ 1.00 par value per share Common Stock of Ameris Bancorp , standing in his/her name on the books of said Corporation, represented by Certificate No(s). , and does hereby irrevocably constitute and appoint attorney to transfer the said stock on the books of said Corporation with full power of substitution in the premises.
Dated:
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| (Signature) |
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| (Printed Name) |
GUARANTEE:
Exhibit 5.1
January 24, 2006
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
| Re: | Ameris Bancorp (f/k/a ABC Bancorp) |
| Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have acted as counsel to Ameris Bancorp (f/k/a ABC Bancorp), a Georgia corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) registering under the Securities Act of 1933, as amended (the “Act”), 1,020,000 shares (the “Shares”) of the Company’s common stock, $1.00 par value per share, issuable pursuant to the ABC Bancorp 2005 Omnibus Stock Ownership and Long-Term Incentive Plan (the “Plan”).
The opinion hereinafter set forth is given pursuant to Item 8 of Form S-8 and Item 601 of Regulation S-K. Such opinion is given solely for the benefit of the Commission and may be relied upon only by the Commission in connection with the Registration Statement and may not be used, circulated, quoted or referred to by or filed with any other person or entity, including any other governmental unit or agency, without first obtaining the express written consent of this firm.
In giving the opinion hereinafter set forth, we have examined and relied upon, among other things, the following: (i) the Plan; (ii) the Company’s Articles of Incorporation, as amended; (iii) the Company’s Bylaws, as amended; and (iv) originals or copies, certified or otherwise identified to our satisfaction, of such other agreements, documents, instruments and records as we have deemed necessary or appropriate under the circumstances for us to express the opinion hereinafter set forth. As to various factual matters that are material to our opinion, we have relied upon certificates of officers of the Company and certificates and orders of various public officials. In making the foregoing examinations, we assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to the original documents of all documents submitted to us as copies, the authority of the person or persons who executed each of such documents on behalf of any person or entity other than the Company, the correctness and accuracy of all certificates of officers of the Company and the correctness and accuracy of all certificates and orders of various public officials. We have also made such investigations of law as we have deemed appropriate.
Based upon and subject to the foregoing, we are of the opinion that the Shares, when issued in accordance with the terms and conditions of the Plan, will be validly issued, fully paid and non-assessable.
Securities and Exchange Commission
January 24, 2006
Page 2
Our conclusions are limited to the matters expressly set forth as our “opinion” in the immediately preceding paragraph, and no opinion is implied or to be inferred beyond the matters expressly so stated. Such opinion is given as of the date hereof, and we expressly decline any undertaking to revise or update such opinion subsequent to the date hereof or to advise the Commission of any matter arising subsequent to the date hereof that would cause us to modify, in whole or in part, such opinion.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving the foregoing consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.
| Very truly yours, |
|
/s/ Rogers & Hardin |
| ROGERS & HARDIN |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S-8 of Ameris Bancorp of our reports dated January 27, 2005, except for Note 20 as to which the date is February 15, 2005, relating to our audits of the consolidated financial statements and internal control over financial reporting, which appears in the Annual Report on Form 10-K of Ameris Bancorp for the year ended December 31, 2004.
/s/ Mauldin & Jenkins, LLC
Albany, Georgia
January 24, 2006