EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.1
THIS EXECUTIVE EMPLOYMENT
AGREEMENT (the “Agreement”), is entered into as of the 18th day of
February, 2009, by and between AMERIS BANCORP, a Georgia
corporation (“Employer”), and XXXXXX X. XXXXXX, an
individual resident of the State of Florida (“Executive”).
W I T N E S S E T H:
WHEREAS, Employer wishes to
employ Executive as its Executive Vice President for Florida and Coastal
Georgia, and Executive wishes to serve in such position, on the terms and
conditions set forth herein;
WHEREAS, Executive desires to
be assured of a secure minimum compensation from Employer for his services over
a defined term;
WHEREAS, Employer desires to
assure the continued services of Executive on behalf of Employer on an objective
and impartial basis and without distraction or conflict of interest in the event
of an attempt by any person or entity to obtain control of
Employer;
WHEREAS, Employer desires to
provide fair and reasonable benefits to Executive on the terms and subject to
the conditions set forth in this Agreement; and
WHEREAS, Employer desires
reasonable protection of its confidential business and customer information
which it has developed over the years at substantial expense and assurance that
Executive will not compete with Employer for a reasonable period of time after
termination of his employment with Employer, except as otherwise provided
herein;
NOW, THEREFORE, in
consideration of these premises, the mutual covenants and undertakings herein
contained, Employer and Executive, each intending to be legally bound, covenant
and agree as follows:
1. Employment. Upon
the terms and subject to the conditions set forth in this Agreement, Employer
employs Executive as its Executive Vice President for Florida and Coastal
Georgia, and Executive hereby accepts such employment.
2. Position
and Duties. Executive agrees to serve as the Executive Vice
President for Florida and Coastal Georgia of Employer as set forth in Section 1
hereof and to perform such duties as may reasonably be assigned to him by the
Board of Directors (the “Board”) or the Chief Executive Officer or Banking Group
President of Employer; provided, however, that such
duties shall be of the same character as those generally associated with the
office held by Executive. Employee shall be based, and shall perform
his duties, at Employer’s principal Jacksonville, Florida office, and Employer
shall not, without the written consent of Executive, relocate or transfer
Executive to a location other than such office. During the Term (as
hereinafter defined) of this Agreement, Executive agrees that he will serve
Employer faithfully and to the best of his ability and that he will devote his
full business time, attention and skills to Employer’s business; provided, however, that the
foregoing shall not be deemed to restrict Executive from devoting a reasonable
amount of time and attention to the management of his personal affairs and
investments, so long as such activities do not interfere with the responsible
performance of Executive’s duties hereunder; and provided further, however, that
Executive may serve as a director or officer of any charitable, religious,
civic, educational, or trade organizations to the extent that such activities,
individually or in the aggregate, do not interfere with the performance of
Executive’s duties and responsibilities under this Agreement.
3. Term. This
Agreement shall commence as of February 18, 2009 (the “Effective Date”) and
shall continue in effect until the second anniversary thereof (such period,
together with any extensions or renewals hereunder, the “Term”), at which time
the Term shall renew for an additional period of eighteen (18) months; provided, however, that
commencing on August 18, 2012, and on each August 18th
thereafter, the Term shall automatically be extended for one (1) year unless
either Employer or Executive shall have given written notice to the other at
least ninety (90) days prior thereto that the Term shall not be so
extended. Notwithstanding the foregoing, this Agreement may be
earlier terminated by Employer or Executive in accordance with the terms of
Section 8 hereof; provided, however, that,
notwithstanding any notice by Employer not to extend, the Term shall not expire
prior to the expiration of twelve (12) months after the occurrence of a Change
of Control (as defined in Subsection 23(B) hereof); and provided further, however, that this
Agreement shall automatically terminate (and the Term shall thereupon end)
without notice when Executive attains 65 years of age.
-1-
4. Compensation.
(A) Executive
shall receive an annual salary of Two Hundred Thousand and no/100 Dollars
($200,000.00) (“Base Compensation”) payable at regular intervals in accordance
with Employer’s normal payroll practices now or hereafter in
effect. Employer may consider and declare from time to time increases
in the salary it pays Executive and thereby increase the Base
Compensation. Any and all increases in Executive’s salary pursuant to
this Section 4(A) shall cause the level of Base Compensation to be increased by
the amount of each such increase for purposes of this Agreement. The
increased level of Base Compensation as provided in this Section 4(A) shall
become the level of Base Compensation for the remainder of the Term until there
is a further increase in Base Compensation as provided herein.
(B) In
addition to his Base Compensation, Executive shall be awarded, during each
calendar year during the Term hereof, an annual bonus (an “Annual Bonus”) either
pursuant to a bonus or incentive plan of Employer or otherwise on terms no less
favorable than those awarded to other executive officers of
Employer. Any Annual Bonus earned and payable to Executive shall be
paid on or after January 1, but not later than March 15, of the calendar year
following the calendar year for which such Annual Bonus is earned.
5. Other
Benefits. So long as Executive is employed by Employer
pursuant to this Agreement, he shall be included as a participant in all present
and future employee benefit, retirement and compensation plans of Employer
generally available to its employees, consistent with his Base Compensation and
his position with Employer, including, without limitation, Employer’s 401(k)
Profit Sharing Plan, and Executive and his dependents shall be included in
Employer’s hospitalization, major medical, disability and group life insurance
plans. Executive acknowledges that, notwithstanding any of the
provisions of this Agreement, any of Employer’s benefit plans and programs may
be modified from time to time and that Employer is not required to continue any
plan or program currently in effect or adopted hereafter; provided, however, that each of
the above benefits shall continue in effect on terms no less favorable than
those for other executive officers of Employer (as permitted by law) during the
Term hereof.
6. Expenses. So
long as Executive is employed by Employer pursuant to this Agreement, Executive
shall receive reimbursement from Employer for all reasonable business expenses
incurred in the course of his employment by Employer upon proper submission to
Employer of written vouchers and statements for reimbursement. In
addition, Employer shall provide to Executive an automobile and pay for all
costs associated therewith during the Term hereof if Employer determines that it
is reasonably likely that Executive will be required to travel by ground at
least 20,000 miles per year in connection with his duties hereunder, and in the
absence of such determination, Employer shall reimburse Executive for all
mileage driven by Executive in his personal automobile in connection with his
duties hereunder in accordance with Employer’s mileage reimbursement policy as
in effect from time to time. Employer shall also use its reasonable
best efforts to provide to Executive a country club membership for business and
personal use and shall pay for all initiation fees and monthly dues related
thereto for business purposes; provided, however, that, if
such membership is not already owned by Executive as of the date hereof, then
such membership shall be and remain the sole property of Employer.
-2-
7. Vacation. Executive
shall be entitled to four (4) weeks paid vacation during each calendar year of
Executive’s employment hereunder.
8. Termination. Subject
to the respective continuing obligations of the parties hereto, including,
without limitation, those set forth in Subsections 10(A), 10(B), 10(C) and 10(D)
hereof, Executive’s employment by Employer hereunder may be terminated prior to
the expiration of the Term hereof as follows:
(A) Employer,
by action of the Board and upon written notice to Executive, may terminate
Executive’s employment with Employer immediately for cause. For
purposes of this Subsection 8(A), “cause” for termination of Executive’s
employment shall exist (i) if Executive is convicted of (from which no appeal
may be taken), or pleads guilty or nolo contendere to, any act of fraud,
misappropriation or embezzlement, or any felony, (ii) if, in the determination
of the Board, Executive has engaged in gross or willful misconduct materially
damaging to the business of Employer (it being understood, however, that neither
conduct pursuant to Executive’s exercise of his good faith business judgment nor
unintentional physical damage to any property of Employer by Executive shall be
a ground for such a determination by the Board), or (iii) if Executive has
failed, without reasonable cause, to follow reasonable written instructions of
the Board consistent with Executive’s position with Employer and, after written
notice from the Board of such failure, Executive at any time thereafter again so
fails.
(B) Executive
may terminate his employment with Employer for good reason; provided, however, that
Executive shall not have good reason for termination pursuant to this Subsection
8(B) unless Executive gives written notice of termination for good reason within
thirty (30) days after the event giving rise to good reason occurs, Employer
does not correct the event that constitutes good reason, as set forth in
Executive’s notice of termination, within thirty (30) days after the date on
which Executive gives written notice of termination and Executive terminates
employment within sixty (60) days after the occurrence of the event that
constitutes good reason. For purposes of this Subsection 8(B), “good
reason” for termination shall mean that any one or more of the following events
has occurred, without Executive’s express written consent:
(1) after a
Change of Control, a change in Executive’s reporting responsibilities, titles or
offices as in effect immediately prior to the Change of Control, or any removal
of Executive from, or any failure to re-elect Executive to, any of Executive’s
positions that he held immediately prior to the Change of Control, which has the
effect of materially diminishing Executive’s responsibility or
authority;
(2) after a
Change of Control, a material reduction by Employer in Executive’s Base
Compensation as in effect immediately prior to the Change of Control or as the
same may be increased from time to time or a change in the eligibility
requirements or performance criteria under any bonus, incentive or compensation
plan, program or arrangement under which Executive is covered immediately prior
to the Change of Control which materially adversely affects
Executive;
(3) at the
time of a Change of Control, Employer requires Executive to be based anywhere
other than within a fifty (50) mile radius of Employer’s principal office in
Jacksonville Florida;
(4) after a
Change of Control and without replacement by a plan providing benefits to
Executive substantially equal to or greater than those discontinued, the failure
by Employer to continue in effect, within its maximum stated term, any material
pension, bonus, incentive, stock ownership, purchase, option, life insurance,
health, accident, disability, or any other employee benefit plan, program or
arrangement in which Executive is participating at the time of the Change of
Control, or the taking of any action by Employer after a Change of Control that
would materially adversely affect Executive’s participation or materially reduce
Executive’s benefits under any of such plans; or
(5) after a
Change of Control, the taking of any action by Employer that would materially
adversely affect the physical conditions existing at the time of the Change of
Control in or under which Executive performs his employment duties, provided that
Employer may take action with respect to such conditions after a Change of
Control so long as such conditions are at least commensurate with the conditions
in or under which an officer of Executive’s status would customarily perform his
employment duties.
-3-
Any event
described in Subsection 8(B)(1) through (5) hereof which occurs prior to a
Change of Control but which Executive reasonably demonstrates (x) was at the
request of a third party who has indicated an intention, or taken steps
reasonably calculated, to effect a Change of Control or (y) otherwise arose in
connection with, or in anticipation of, a Change of Control which actually
occurs, shall constitute good reason for purposes hereof, notwithstanding that
it occurred prior to a Change of Control.
(C) Executive,
upon ninety (90) days written notice to Employer, may terminate his employment
with Employer without good reason.
(D) Executive’s
employment with Employer shall terminate in the event of Executive’s death or
disability. For purposes of this Agreement, “disability” shall be
defined as Executive’s inability by reason of illness or other physical or
mental incapacity to perform the duties required by his employment for any
consecutive one hundred eighty (180) day period.
9. Compensation
Upon Termination. In the event of termination of Executive’s
employment with Employer pursuant to Section 8 hereof, compensation shall
continue to be paid by Employer to Executive as follows:
(A) In the
event of a termination pursuant to Subsection 8(A) or Subsection 8(C) hereof,
compensation provided for herein (including, without limitation, Base
Compensation and an Annual Bonus) shall continue to be paid, and Executive shall
continue to participate in the employee benefit, retirement, compensation plans
and other perquisites as provided in Section 5 hereof, through and including the
Date of Termination (as hereinafter defined) specified in the Notice of
Termination (as hereinafter defined). Any benefits payable under
insurance, health, retirement and bonus plans as a result of Executive’s
participation in such plans through the Date of Termination specified in the
Notice of Termination shall be paid when due under such plans.
(B) In the
event of a termination pursuant to Subsection 8(B) hereof, compensation provided
for herein (including, without limitation, Base Compensation and an Annual
Bonus) shall continue to be paid, and Executive shall continue to participate in
the employee benefit, retirement, compensation plans and other perquisites as
provided in Section 5 hereof, through the Date of Termination specified in the
Notice of Termination, and any benefits payable under insurance, health,
retirement and bonus plans as a result of Executive’s participation in such
plans through the Date of Termination specified in the Notice of Termination
shall be paid when due under such plans. In addition, if the event of
termination pursuant to Subsection 8(B) hereof occurs within twelve (12) months
after the date of a Change of Control, then, subject to the terms of Section 12
hereof, (1) Executive shall be entitled to continue to receive from Employer for
one (1) additional 12-month period his Base Compensation at the rates in effect
at the time of termination plus an Annual Bonus in accordance with Employer’s
Incentive Plan as of the date of the event of termination, payable in accordance
with Employer’s standard payment practices then existing; (2) Executive shall be
entitled to continue to participate for one (1) additional 12-month period in
each employee welfare benefit plan (as such term is defined in the Employment
Retirement Income Security Act of 1974, as amended) in which Executive was
entitled to participate immediately prior to the date of his termination, unless
an essentially equivalent and no less favorable benefit is provided by a
subsequent employer of Executive, provided that if the
terms of any such employee welfare benefit plan or applicable laws do not permit
continued participation by Executive, Employer will arrange to provide to
Executive a benefit substantially similar to, and no less favorable than, the
benefit he was entitled to receive under such plan at the end of the period of
coverage; and (3) Employer shall contribute the maximum contributions allowable
under Employer’s 401(k) Profit Sharing Plan, or any successor plans thereto, for
the benefit of Executive in a lump sum on or after January 1, but not later than
March 15, of the calendar year following the calendar year in which the Date of
Termination occurs.
-4-
(C) In the
event of a termination pursuant to Subsection 8(D) hereof, compensation provided
for herein (including, without limitation, Base Compensation and an Annual
Bonus) shall continue to be paid, and Executive shall continue to participate in
the employee benefit, retirement, and compensation plans and other perquisites
as provided in Section 5 hereof, (1) in the event of Executive’s death, through
the date of death, or (2) in the event of Executive’s disability, through the
Date of Termination specified in the Notice of Termination. Any benefits payable
under insurance, health, retirement and bonus plans as a result of Executive’s
participation in such plans through the date of death or the Date of Termination
specified in the Notice of Termination, as the case may be, shall be paid when
due under those plans.
(D) Employer
will permit Executive or his personal representative(s) or heirs, during a
period of ninety (90) days following the Date of Termination of Executive’s
employment by Employer (as specified in the Notice of Termination) for the
reasons set forth in Subsection 8(B) hereof, to purchase all of the stock of
Employer that would be issuable under all outstanding stock options, if any,
previously granted by Employer to Executive under any Employer stock option plan
then in effect, whether or not such options are then exercisable, at a cash
purchase price equal to the purchase price as set forth in such outstanding
stock options.
10. Restrictive
Covenants.
(A) Executive
acknowledges that (1) Employer has separately bargained and paid additional
consideration for the restrictive covenants herein; and (2) 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 Employer and the irreparable injury that would befall Employer
should Executive breach such covenants.
(B) Executive
further acknowledges that his services are of a special, unique and
extraordinary character and that his position with Employer will place him in a
position of confidence and trust with employees of Employer and its subsidiaries
and affiliates and with Employer’s other constituencies and will allow him
access to trade secrets and confidential information concerning Employer and its
subsidiaries and affiliates.
(C) Executive
further acknowledges that the type and periods of restrictions imposed by the
covenants in this Section 10 are fair and reasonable and that such restrictions
will not prevent Executive from earning a livelihood.
(D) Having
acknowledged the foregoing, Executive covenants and agrees with Employer as
follows:
(1) For a
period of two (2) years after the termination of Executive’s employment by
Employer for any reason or for no reason, Executive shall not divulge or furnish
any confidential information of Employer acquired by him while employed by
Employer to any person, firm or corporation, other than to Employer or upon its
written request, or use any such confidential information (which shall at all
times remain the property of Employer) directly or indirectly for Executive’ own
benefit or for the benefit of any person, firm or corporation other than
Employer. For purposes hereof, the term “confidential information”
means data and information relating to the Banking Business (as hereinafter
defined) (which does not rise to the status of a Trade Secret, as such term is
defined in Section 10-1-761 of the Official Code of Georgia Annotated) which is
or has been disclosed to Executive or of which Executive became aware as a
consequence of or through Executive’s relationship to Employer and which has
value to Employer and is not generally known to its competitors. Without
limiting the foregoing, “confidential information” shall include: (a)
all items of information that could be classified as a Trade Secret pursuant to
Georgia law; (b) the names, addresses and banking requirements of the customers
of Employer or its subsidiaries and the nature and amount of business done with
such customers; (c) the names and addresses of employees and other business
contacts of Employer or its subsidiaries; (d) the particular names, methods and
procedures utilized by Employer or its subsidiaries in the conduct and
advertising of their business; (e) application, operating system, communication
and other computer software and derivatives thereof, including, without
limitation, sources and object codes, flow charts, coding sheets, routines,
subrouting and related documentation and manuals of Employer or its
subsidiaries; and (f) marketing techniques, purchasing information, pricing
policies, loan policies, quoting procedures, financial information, customer
data and other materials or information relating to Employer’s or its
subsidiaries’ manner of doing business. Confidential information
shall not include any data or information that has been voluntarily disclosed to
the public by Employer (except where such public disclosure has been made by
Executive without authorization) or that has been independently developed and
disclosed by others, or that otherwise enters the public domain through lawful
means.
(2) Executive
hereby agrees that he will not directly or indirectly disclose to anyone, or use
or otherwise exploit for his own benefit or for the benefit of anyone other than
Employer and its subsidiaries any trade secrets (as defined in §10-1-761 of the
Official Code of Georgia Annotated and applicable code sections for any states
where Employer has business locations) of Employer for as long as they remain
trade secrets.
-5-
(3) While
Executive is employed by Employer and for a period of one (1) year after
termination of Executive’s employment pursuant to Subsection 8(A), 8(C) or 8(D)
hereof, Executive shall not (except on behalf of or with the prior written
consent of Employer), on Executive’s own behalf or in the service or on behalf
of others, solicit, divert or appropriate, or attempt to solicit, divert or
appropriate, directly or by assisting others, any Banking Business from any of
the customers of Employer or its subsidiaries, including actively sought
prospective customers, with whom Executive has or had material contact during
the last two (2) years of Executive’s employment, for purposes of providing
products or services that are competitive with those provided by Employer or its
subsidiaries. The term “Banking Business” shall mean the business
conducted by Employer and its subsidiaries, which is the business of banking,
including the solicitation of time and demand deposits and the making of
residential, consumer, commercial and corporate loans.
(4) While
Executive is employed by Employer and for a period of one (1) year after
termination of Executive’s employment pursuant to Subsection 8(A), 8(C) or 8(D)
hereof, Executive shall not, either directly or indirectly, on his own behalf or
in the service or on behalf of others, as an executive employee or in any other
capacity which involves duties and responsibilities similar to those undertaken
for Employer, engage in any business which is the same as or essentially the
same as the Banking Business within a fifty (50) mile radius of Employer’s
offices located at Jacksonville, FL; and all other principal locations within
the Executive’s Florida and Coastal Georgia market (collectively, the
“Restricted Territory”).
(5) While
Executive is employed by Employer and for a period of one (1) year after
termination of Executive’s employment pursuant to Subsection 8(A), 8(C) or 8(D)
hereof, Executive will not on Executive’s own behalf or in the service or on
behalf of others, solicit, recruit or hire away, or attempt to solicit, recruit
or hire away, directly or by assisting others, any employee of Employer or its
subsidiaries, whether or not such employee is a full-time employee or a
temporary employee of Employer or its subsidiaries and 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.
(6) If
Executive’s employment is terminated pursuant to Subsection 8(A), 8(C) or 8(D)
hereof, and Executive subsequently (a) solicits, diverts or appropriates, or
attempts to solicit, divert or appropriate, directly or by assisting others, on
Executive’s own behalf or in the service or on behalf of others, any Banking
Business from any of the customers of Employer or its subsidiaries, including
actively sought prospective customers, with whom Executive has or had material
contact during the last two (2) years of Executive’s employment, for purposes of
providing products or services that are competitive with those provided by
Employer or its subsidiaries, (b) engages, either directly or indirectly, on his
own behalf or in the service or on behalf of others, as an executive employee or
in any other capacity which involves duties and responsibilities similar to
those undertaken for Employer, in any business which is the same as or
essentially the same as the Banking Business within the Restricted Territory, or
(c) solicits, recruits or hires away, or attempts to solicit, recruit or hire
away, directly or by assisting others, on Executive’s own behalf or in the
service or on behalf of others, any employee of Employer or its subsidiaries,
whether or not such employee is a full-time employee or a temporary employee of
Employer or its subsidiaries and whether or not such employment is pursuant to
written agreement and whether or not such employment is for a determined period
or is at will, then, in addition to any other remedies available to Employer
hereunder, Employer may immediately terminate and shall not be required to
continue on behalf of Executive or his dependents and beneficiaries any
compensation provided for herein (including, without limitation, Base
Compensation and any Annual Bonus) and any employee benefit, retirement and
compensation plans and other prerequisites provided in Section 5 hereof other
than those benefits that Employer may be required to maintain for Executive
under applicable federal or state law.
-6-
(7) If
Executive’s employment is terminated pursuant to Subsection 8(B) hereof, then
Executive may thereafter (a) solicit, divert or appropriate, or attempt to
solicit, divert or appropriate, directly or by assisting others, on Executive’s
own behalf or in the service or on behalf of others, any Banking Business from
any of the customers of Employer or its subsidiaries, including actively sought
prospective customers, with whom Executive has or had material contact during
the last two (2) years of Executive’s employment, for purposes of providing
products or services that are competitive with those provided by Employer or its
subsidiaries, (b) engage, either directly or indirectly, on his own behalf or in
the service or on behalf of others, as an executive employee or in any other
capacity which involves duties and responsibilities similar to those undertaken
for Employer, in any business which is the same as or essentially the same as
the Banking Business within the Restricted Territory, or (c) solicit, recruit or
hire away, or attempt to solicit, recruit or hire away, directly or by assisting
others, on Executive’s own behalf or in the service or on behalf of others, any
employee of Employer or its subsidiaries, whether or not such employee is a
full-time employee or a temporary employee of Employer or its subsidiaries and
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; provided, however, that if
Executive engages in the activities described in clause (a), (b) or (c) of this
Subsection 10(D)(7), then Employer may immediately terminate and shall not be
required to continue on behalf of Executive or his dependents and beneficiaries
any compensation provided for herein (including, without limitation, Base
Compensation, any Annual Bonus and any payments pursuant to Subsection 9(B)
hereof) and any employee benefit, retirement and compensation plans and other
perquisites provided in Section 5 hereof other than those benefits that Employer
may be required to maintain for Executive under applicable federal or state
law.
(8) If
Executive’s employment by Employer is terminated for any reason or for no
reason, Executive will turn over immediately thereafter to Employer all business
correspondence, letters, papers, reports, customer lists, financial statements,
credit reports or other confidential information or documents of Employer in the
possession or control of Executive, all of which writings are and will continue
to be the sole and exclusive property of Employer.
(E) Executive
acknowledges that irreparable loss and injury would result to Employer upon the
breach of any of the covenants contained in this Section 10 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, 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 10, and shall be entitled to
an equitable accounting of all earnings, profits and other benefits arising out
of any such breach. In the event that the provisions of this Section
10 should ever be deemed to exceed the time, geographic or any other limitations
permitted by applicable law, then such provisions shall be deemed reformed to
the maximum extent permitted thereby.
11. Notice of
Termination and Date of Termination. Any termination of
Executive’s employment with Employer as contemplated by Section 8 hereof, except
in the circumstances of Executive’s death, shall be communicated by written
notice of termination (the “Notice of Termination”) by the terminating party to
the other party hereto. Any Notice of Termination given pursuant to
Subsections 8(A), 8(B) or 8(D) hereof shall indicate the specific provisions of
this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for such
termination. Any Notice of Termination given pursuant to Subsection
8(C) hereof shall indicate the provision of this Agreement relied upon, but need
not state any basis for such termination. For purposes of this
Agreement, “Date of Termination” shall mean: (A) if Executive’s
employment is terminated because of disability, thirty (30) days after Notice of
Termination is given (unless Executive shall have returned to the performance of
Executive’s duties on a full-time basis during such thirty (30) day period); or
(B) if Executive’s employment is terminated for cause, good reason (pursuant to
Subsection 8(B) hereof) or pursuant to Subsection 8(C) hereof, the date
specified in the Notice of Termination; provided, however, that if
within thirty (30) days after any such Notice of Termination is given with
respect to termination of employment for cause, the party receiving such Notice
of Termination notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date on which the dispute is
finally resolved, either by mutual agreement of the parties or by arbitration as
provided in Section 26.
-7-
12. Excess
Parachute Payments and One Million Dollar Deduction Limit.
(A) Notwithstanding
anything contained herein to the contrary, if any portion of the payments and
benefits provided hereunder and benefits provided to, or for the benefit of,
Executive under any other plan or agreement of Employer (such payments or
benefits are collectively referred to as the “Payments”) would be subject to the
excise tax (the “Excise Tax”) imposed under Section 4999 of the Internal Revenue
Code of 1986, as amended (the “Code”), or would be nondeductible by Employer
pursuant to Section 280G of the Code, the Payments shall be reduced (but not
below zero) if and to the extent necessary so that no portion of any Payment to
be made or benefit to be provided to Executive shall be subject to the Excise
Tax or shall be nondeductible by Employer pursuant to Section 280G of the Code
(such reduced amount is hereinafter referred to as the “Limited Payment
Amount”). Employer shall reduce or eliminate the Payments by first
reducing or eliminating those payments or benefits which are not payable in cash
and then by reducing or eliminating cash payments, in each case in reverse order
beginning with payments or benefits which are to be paid the farthest in time
from the Determination (as hereinafter defined). For this purpose,
where multiple payments or benefits are to be paid at the same time, they shall
be reduced or eliminated on a pro rata basis.
(B) An
initial determination as to whether the Payments shall be reduced to the Limited
Payment Amount pursuant to the Code and the amount of such Limited Payment
Amount shall be made by an accounting firm at Employer’s expense selected by
Employer which is designated as one of the four largest accounting firms in the
United States (the “Accounting Firm”). The Accounting Firm shall
provide its determination (the “Determination”), together with detailed
supporting calculations and documentation to Employer and Executive within
thirty (30) days of the Termination Date, if applicable, and if the Accounting
Firm determines that no Excise Tax is payable by Executive with respect to a
Payment or Payments, it shall furnish Executive with an opinion reasonably
acceptable to Executive that no Excise Tax will be imposed with respect to any
such Payment or Payments. Within ten (10) days of the delivery of the
Determination to Executive, Executive shall have the right to dispute the
Determination (the “Dispute”). If there is no Dispute, the
Determination shall be binding, final and conclusive upon Employer and Executive
subject to the application of Subsection 12(C) below.
(C) As a
result of the uncertainty in the application of Sections 4999 and 280G of the
Code, it is possible that the Payments to be made to, or provided for the
benefit of, Executive either have been made or will not be made by Employer
which, in either case, will be inconsistent with the limitations provided in
Section 12(A) hereof (hereinafter referred to as an “Excess Payment” or
“Underpayment”, respectively). If it is established pursuant to a
final determination of a court or an Internal Revenue Service (the “IRS”)
proceeding which has been finally and conclusively resolved that an Excess
Payment has been made, such Excess Payment shall be deemed for all purposes to
be a loan to Executive made on the date Executive received the Excess Payment,
and Executive shall repay the Excess Payment to Employer on demand (but not less
than ten (10) days after written notice is received by Executive), together with
interest on the Excess Payment at the “Applicable Federal Rate” (as defined in
Section 1274(d) of the Code) from the date of Executive’s receipt of such Excess
Payment until the date of such repayment. In the event that it is
determined (1) by the Accounting Firm, Employer (which shall include the
position taken by Employer, or together with its consolidated group, on its
federal income tax return) or the IRS; (2) pursuant to a determination by a
court; or (3) upon the resolution of the Dispute to Executive’s satisfaction,
that an Underpayment has occurred, Employer shall pay an amount equal to the
Underpayment to Executive within ten (10) days of such determination or
resolution, together with interest on such amount at the Applicable Federal Rate
from the date such amount would have been paid to Executive until the date of
payment.
(D) Notwithstanding
anything contained herein to the contrary, if any portion of the Payments would
be nondeductible by Employer pursuant to Section 162(m) of the Code, the
Payments to be made to Executive in any taxable year of Employer shall be
reduced (but not below zero) if and to the extent necessary so that no portion
of any Payment to be made or benefit to be provided to Executive in such taxable
year of Employer shall be nondeductible by Employer pursuant to Section 162(m)
of the Code. The amount by which any Payment is reduced pursuant to
the immediately preceding sentence, together with interest thereon at the
Applicable Federal Rate, shall be paid by Employer to Executive on or before the
fifth business day of the immediately succeeding taxable year of Employer,
subject to the application of the limitations of the immediately preceding
sentence and this Section 12. Employer shall reduce or eliminate the
Payments in any one taxable year of Employer by first reducing or eliminating
those payments or benefits which are not payable in cash and then by reducing or
eliminating cash payments, in each case in reverse order beginning with payments
or benefits which are to be paid the farthest in time from the Section 162(m)
Determination (as hereinafter defined). For this purpose, where
multiple payments or benefits are to be paid at the same time, they shall be
reduced or eliminated on a pro rata basis.
(E) The
determination as to whether the Payments shall be reduced pursuant to Section
12(D) hereof and the amount of the Payments to be made in each taxable year
after the application of Section 12(D) hereof shall be made by the Accounting
Firm at Employer’s expense. The Accounting Firm shall provide its
determination (the “Section 162(m) Determination”), together with detailed
supporting calculations and documentation to Employer and Executive within
thirty (30) days of the termination date specified in the Notice of
Termination. The Section 162(m) Determination shall be binding, final
and conclusive upon Employer and Executive.
-8-
13. Payments
After Death. Should Executive die after termination of his
employment with Employer while any amounts are payable to him hereunder, this
Agreement shall inure to the benefit of and be enforceable by Executive’s
executors, administrators, heirs, distributees, devisees and legatees, and all
amounts payable hereunder shall be paid in accordance with the terms of this
Agreement to Executive’s devisee, legatee or other designee or, if there is no
such designee, to his estate.
14. Full
Settlement. The respective obligations of the parties hereto
to make payments or otherwise to perform hereunder shall not be affected by any
rights of set-off, counterclaim, recoupment, defense or other claim, right or
action which one party hereto may have against the other party
hereto. In no event shall Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts which
may be payable to Executive by Employer hereunder.
15. Notices. For
purposes of this Agreement, notices and all other communications provided for
herein shall be in writing and shall be deemed to have been given when delivered
or mailed by United States registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to
Executive: Xxxxxx
X. Xxxxxx
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
If to
Employer: Ameris
Bancorp
000 Xxxxx Xxxxxx, X.X.
Xxxxxxxx,
Xxxxxxx 00000
Attention: Chief Executive
Officer
or to
such address as either party hereto may have furnished to the other party in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
16. Governing
Law. The validity, interpretation and performance of this
Agreement shall be governed by the laws of the State of Georgia, without giving
effect to the conflicts of laws principles thereof.
17. Successors. Employer
shall require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or
assets of Employer, by agreement in form and substance reasonably satisfactory
to Executive, to expressly assume and agree to perform this Agreement in the
same manner and same extent that Employer would be required to perform it if no
such succession had taken place. Failure of Employer to obtain such
agreement prior to the effectiveness of any such succession shall be a material,
intentional breach of this Agreement and shall entitle Executive to terminate
his employment with Employer for good reason pursuant to Subsection 8(B)
hereof. All references to Employer in this Agreement shall include,
unless the context otherwise requires, all subsidiaries and controlled
affiliates of Employer.
18. Modification
and Waiver. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by Executive and Employer. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of dissimilar provisions or conditions
at the same or any prior subsequent time. No agreements or
representation, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement.
19. Severability. The
invalidity or unenforceability of any provisions of this Agreement shall not
affect the validity or enforceability of any other provisions of this Agreement,
which shall remain in full force and effect.
20. Counterparts. This
Agreement may be executed (and delivered via facsimile) in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same Agreement.
-9-
21. Assignment. This
Agreement is personal in nature, and neither party hereto shall, without the
prior written consent of the other, assign or transfer this Agreement or any
rights or obligations hereunder except as provided in Sections 13 and 17
above. Without limiting the foregoing, Executive’s right to receive
compensation hereunder shall not be assignable or transferable, whether by
pledge, creation of a security interest or otherwise, other than a transfer by
his will or by the laws of descent or distribution as set forth in Section 13
hereof, and in the event of any attempted assignment or transfer contrary to
this Section 21, Employer shall have no liability to pay any amounts so
attempted to be assigned or transferred.
22. Entire
Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, understandings
and arrangements, oral or written, between the parties hereto with respect to
the subject matter hereof.
23. Construction;
Definition of Change of Control.
(A) Whenever
the singular number is used in this Agreement and when required by the context,
the same shall include the plural and vice versa, and the masculine gender shall
include the feminine and neuter genders and vice versa. The headings
in this Agreement are for convenience only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of this
Agreement or any of its provisions. All references to Employer in
this Agreement shall include, unless the context otherwise requires, all
subsidiaries and controlled affiliates of Employer.
(B) For
purposes of this Agreement, a “Change of Control” shall have occurred
if:
(1) a
majority of the directors of Employer shall be persons other than
persons: (a) for whose election proxies shall have been solicited by
the Board, or (b) who are then serving as directors appointed by the Board to
fill vacancies on the Board caused by death or resignation (but not by removal)
or to fill newly-created directorships;
(2) twenty-five
percent (25%) of the outstanding voting power of Employer shall have been
acquired or beneficially owned (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended, or any successor rule thereto) by any person
(other than Employer, a subsidiary of Employer or Executive) or by any two or
more persons acting as a partnership, limited partnership, syndicate or other
group acting in concert for the purpose of acquiring, holding or disposing of
any voting stock of Employer (hereinafter a “Group”), which Group does not
include Executive; or
(3) there
shall have occurred:
(a) a merger
or consolidation of Employer with or into another corporation (other than (i) a
merger or consolidation with a subsidiary of Employer or (ii) a merger or
consolidation in which (aa) the holders of voting stock of Employer immediately
prior to the merger as a class continue to hold immediately after the merger at
least a majority of all outstanding voting power of the surviving or resulting
corporation or its parent and (bb) all holders of each outstanding class or
series of voting stock of Employer immediately prior to the merger or
consolidation have the right to receive substantially the same cash, securities
or other property in exchange for their voting stock of Employer as all other
holders of such class or series);
(b) a
statutory exchange of shares of one or more classes or series of outstanding
voting stock of Employer for cash, securities or other property;
(c) the sale
or other disposition of all or substantially all of the assets of Employer (in
one transaction or a series of transactions); or
(d) the
liquidation or dissolution of Employer;
unless
twenty-five percent (25%) or more of the voting stock (or the voting equity
interest) of the surviving corporation or the corporation or other entity
acquiring all or substantially all of the assets of Employer (in the case of a
merger, consolidation or disposition of assets) or of Employer or its resulting
parent corporation (in the case of a statutory share exchange) is beneficially
owned by Executive or a Group that includes Executive.
-10-
24. Compliance
with Code Section 409A.
(A) This
Agreement shall be interpreted to avoid any penalty sanctions under Section 409A
of the Code (“Section 409A”). If any payment or benefit cannot be
provided or made at the time specified herein without incurring sanctions under
Section 409A, then such benefit or payment shall be provided in full at the
earliest time thereafter when such sanctions will not be imposed. For
purposes of Section 409A, (i) all payments to be made upon a termination of
employment under this Agreement may only be made upon a “separation from
service” within the meaning of such term under Section 409A, (ii) each payment
made under this Agreement shall be treated as a separate payment and (iii) 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.
(B) All
reimbursements and in-kind benefits provided under this Agreement shall be made
or provided in accordance with the requirements of Section 409A, including,
where applicable, the requirements that (i) any reimbursement is for expenses
incurred during Executive’s lifetime (or during a shorter period of time
specified in this Agreement), (ii) the amount of expenses eligible for
reimbursement, or in-kind benefits provided, during a calendar year may not
affect the expenses eligible for reimbursement, or in-kind benefits to be
provided, in any other calendar year, (iii) the reimbursement of an eligible
expense will be made on or before the last day of the calendar year following
the year in which the expense is incurred and (iv) the right to reimbursement or
in-kind benefits is not subject to liquidation or exchange for another
benefit.
(C) Notwithstanding
any provision in this Agreement to the contrary, if, at the time of Executive’s
separation from service with Employer, Employer has securities which are
publicly traded on an established securities market, Executive is a “specified
employee” (as defined in Section 409A) and it is necessary to postpone the
commencement of any severance payments otherwise payable pursuant to this
Agreement as a result of such separation from service to prevent any accelerated
or additional tax under Section 409A, then Employer will postpone the
commencement of the payment of any such payments or benefits hereunder (without
any reduction in such payments or benefits ultimately paid or provided to
Executive) that are not otherwise exempt from Section 409A until the first
payroll date that occurs after the date that is six (6) months following
Executive’s separation from service with Employer (as determined under Section
409A). If any payments are postponed pursuant to this Subsection
24(C), then such postponed amounts will be paid in a lump sum to Executive on
the first payroll date that occurs after the date that is six (6) months
following Executive’s separation from service with Employer. If
Executive dies during the postponement period prior to the payment of any
postponed amount, such amount shall be paid to the personal representative of
Executive’s estate within sixty (60) days after the date of Executive’s
death.
25. Representations
and Warranties of Employer. Employer hereby
represents and warrants to Executive that: (i) this Agreement has been duly
authorized by the Board, executed and delivered by Employer, and constitutes the
valid and binding agreement of Employer, enforceable against Employer in
accordance with its terms; and (ii) Employer has the full power authority to
execute, deliver and perform this Agreement and has taken all necessary action
to secure all approvals required in connection herewith.
26. Arbitration. Any controversy
or claim arising out of or relating to this Agreement or the breach thereof,
except as otherwise provided in Subsection 10(E) or Subsection 12(C) hereof,
shall be settled by arbitration in Moultrie, Georgia in accordance with the
commercial arbitration rules of the American Arbitration Association then in
effect. The decision of the arbitrators shall be final and binding as
to any matter submitted to them under this Agreement, and judgment on any award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
27. Attorneys’
Fees. If there is any
legal action, arbitration or proceeding between Executive and Employer arising
from or based on this Agreement or the interpretation or enforcement of any
provisions hereof, then the unsuccessful party to such action, arbitration or
proceeding shall pay to the prevailing party all costs and expenses, including,
without limitation, reasonable attorneys’ fees, incurred by such prevailing
party in such action, arbitration or proceeding, in any appeal in connection
therewith and in any action or proceeding taken to enforce any judgment or order
so obtained by the prevailing party. If such prevailing party
recovers a judgment in any such action, arbitration, proceeding or appeal, then
such costs, expenses and attorneys’ fees shall be included in and as a part of
such judgment.
-11-
SIGNATURES
IN WITNESS WHEREOF, Executive
has executed, sealed and delivered this Agreement, and Employer has caused this
Agreement to be executed, sealed and delivered, all as of the day and year first
above set forth.
|
By:
|
/s/
Xxxxx X. Xxxxxxx, Xx.,
|
|
Xxxxx
X. Xxxxxxx, Xx.,
|
|
|
President
and Chief Executive Officer
|
|
Attest:
|
/s/
Xxxxx X. Xxxxx,
|
|
Xxxxx
X. Xxxxx,
|
|
|
Corporate
Secretary
|
|
|
/s/
Xxxxxx X. Xxxxxx,
|
|
Xxxxxx
X. Xxxxxx
|
|
|
|
