November____, 2008
Exhibit 10.3
November____, 2008
Dear____________:
Ameris
Bancorp (the “Company”) anticipates entering into a Securities Purchase
Agreement (the “Participation Agreement”) with the United States Department of
Treasury (“Treasury”) that provides for the Company’s participation in the
Treasury’s TARP Capital Purchase Program (the “CPP”). If the Company
does not participate or ceases at any time to participate in the CPP, this
letter shall be of no further force and effect.
For the
Company to participate in the CPP and as a condition to the closing of the
investment contemplated by the Participation Agreement, the Company is required
to establish specified standards for incentive compensation to its senior
executive officers and to make changes to its compensation
arrangements. To comply with these requirements, and in consideration
of the benefits that you will receive as a result of the Company’s participation
in the CPP, you hereby agree as follows:
(1) No Golden Parachute
Payments. The Company is prohibiting any golden parachute
payment to you during any “CPP Covered Period”. A “CPP Covered
Period” is any period during which (i) you are a senior executive officer
and (ii) Treasury holds an equity or debt position acquired from the
Company in the CPP.
(2) Recovery of Bonus and
Incentive Compensation. Any bonus and incentive compensation
paid to you during a CPP Covered Period is subject to recovery or “clawback” by
the Company if the payments were based on materially inaccurate financial
statements or any other materially inaccurate performance metric
criteria.
(3) Compensation Program
Amendments. Each of the Company’s compensation, bonus,
incentive and other benefit plans, arrangements and agreements (including golden
parachute, severance and employment agreements) (collectively, “Benefit Plans”)
with respect to you is hereby amended to the extent necessary to give effect to
provisions (1) and (2) hereof.
In
addition, the Company is required to review its Benefit Plans to ensure that
they do not encourage senior executive officers to take unnecessary and
excessive risks that threaten the value of the Company. To the extent
any such review requires revisions to any Benefit Plan with respect to you, you
and the Company agree to negotiate such changes promptly and in good
faith.
(4) Definitions and
Interpretation. This letter shall be interpreted as
follows:
(a) “Senior
executive officer” means the Company’s “senior executive officers” as defined in
Section 111(b)(3) of EESA.
(b) “Golden
parachute payment” is used with same meaning as in Section 111(b)(2)(C) of
EESA.
(c) “EESA”
means the Emergency Economic Stabilization Act of 2008 as implemented by
guidance or regulation issued by the Department of the Treasury and as published
in the Federal Register on October 20, 2008.
(d) Provisions
(1) and (2) of this letter are intended to, and will be interpreted,
administered and construed to, comply with Section 111 of EESA (and, to the
maximum extent consistent with the preceding, to permit operation of the Benefit
Plans in accordance with their terms before giving effect to this
letter).
(5) Miscellaneous. To
the extent not subject to federal law, this letter will be governed by and
construed in accordance with the laws of Georgia. This letter may be
executed in two or more counterparts, each of which will be deemed to be an
original. A signature transmitted by facsimile will be deemed an
original signature.
Sincerely,
By:__________________________
Intending
to be legally bound, I hereby
agree to
and accept the foregoing terms
as of the
date first set forth above.
By:__________________________
