AMENDMENT NO. 1 TO EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.2
AMENDMENT NO. 1
TO
This AMENDMENT NO. 1 TO EXECUTIVE
EMPLOYMENT AGREEMENT (the “Amendment”) is made and entered into as of the
30th
day of December, 2008, by and between AMERIS BANCORP, a Georgia
corporation (“Employer”), and XXXXXX X. XXXXXX XX., an
individual resident of the State of Georgia (“Executive”).
W I T N E S S E T H:
WHEREAS, Employer and
Executive have entered into that certain Executive Employment Agreement dated as
of May 6, 2005 (the “Agreement”);
WHEREAS, Employer and
Executive wish to amend the Agreement as provided herein to comply with Section
409A of the Internal Revenue Code of 1986, as amended, and to
make certain other conforming revisions; and
WHEREAS, capitalized terms
used but not otherwise defined herein shall have the same meanings given to such
terms in the Agreement;
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and agreements herein,
the parties hereto do hereby agree as follows:
1. Amendments
to Agreement. The Agreement is
hereby amended as follows:
(a) The
Agreement is amended by adding the following sentence to the end of Subsection
4(B) thereof:
“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.”
(b) The
introductory paragraph of Subsection 8(B) of the Agreement, immediately
preceding Subsection 8(B)(1) of the Agreement, is amended and restated in its
entirety
as follows:
“(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:”
(c) Subsection
8(B)(6) of the Agreement is amended and restated in its entirety as
follows:
“(6) [Intentionally
omitted.]”
(d) The last
sentence of Subsection 9(B) of the Agreement is amended by adding to the end of
clause (3) of such sentence, and immediately before the semicolon at
the end
of such clause, the following:
“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”
(e) The
proviso included in the last sentence of Section 11 of the Agreement is amended
and restated in its entirety as follows:
“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, by arbitration or
by a final judgment, order or decree of a court of competent jurisdiction (the
time for appeal therefrom having expired and no appeal having been
perfected).”
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(f) The
second and third sentences of Subsection 12(A) of the Agreement are amended and
restated in their entirety as follows:
“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.”
(g) The third
and fourth sentences of Subsection 12(D) of the Agreement are amended and
restated in their entirety as follows:
“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.”
(h) Section
24 of the Agreement is amended and restated in its entirety as
follows:
“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.”
2. Existing
Terms. The existing
terms and conditions of the Agreement shall remain in full force and effect
except as such terms and conditions are specifically amended by, or
conflict
with, the terms of this Amendment.
3. Severability. If any term or
provision of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of
the terms
and provisions of this Amendment shall in no way be affected, impaired or
invalidated.
4. Governing
Law. This Amendment
shall be governed by, and construed and enforced in accordance with, the laws of
the State of Georgia, without regard to the conflicts of
laws
principles thereof.
5. Counterparts. This Amendment
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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IN WITNESS WHEREOF, Executive has executed
and delivered this Amendment, and Employer has caused this Amendment to be
executed and delivered by its duly authorized officer, all as of the day and
year first above written.
By:
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/s/
Xxxxx X. Xxxxxxx, Xx.
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Xxxxx
X. Xxxxxxx, Xx.,
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President
and Chief Executive Officer
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/s/
Xxxxxx X. Xxxxxx Xx.
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Xxxxxx X. Xxxxxx Xx.
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