AMENDMENT NO. 1 TO EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.4
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 XXX X. XXXXXXX, 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 July 1, 2003 (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 replacing all references therein to “South Regional
Executive” with “Executive Vice President and Director of Credit
Administration”.
(b) The
Agreement is amended by adding the following sentence to the end of Subsection
5(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.”
(c) The
introductory paragraph of Subsection 9(B) of the Agreement, immediately
preceding Subsection 9(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
9(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 9(B), “good
reason” for termination shall mean that any one or more of the following events
has occurred, without Executive’s express written consent:”
(d) Subsection
9(B)(6) of the Agreement is amended and restated in its entirety as
follows:
“(6) [Intentionally
omitted.]”
(e) Subsection
9(E) of the Agreement is amended and restated in its entirety as
follows:
“(E) 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;
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(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 (x) 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 (y) 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.”
(f) The last
sentence of Subsection 10(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”
(g) Section
11 of the Agreement is amended and restated in its entirety as
follows:
“11. 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 11 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 its
subsidiaries or upon its or their written request, or use any such confidential
information (which shall at all times remain the property of Employer) directly
or indirectly for Executive’s own benefit or for the benefit of any person, firm
or corporation other than Employer. For purposes hereof, the term
“confidential information” shall mean Employer’s and its subsidiaries’
non-public, confidential or proprietary information, including, without
limitation, any and all tangible and intangible information, whether oral, in
writing or in any other medium, whether developed by Executive or furnished to
Executive by third parties at the direction of Employer, concerning the
policies, plans, procedures or customers of Employer or its subsidiaries or the
business, financial condition, operations, assets, liabilities and contingencies
of Employer or its subsidiaries.
(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) of Employer or any of its subsidiaries for
as long as they remain trade secrets.
(3) While
Executive is employed by Employer and for a period of one (1) year after
termination of Executive’s employment (a) by Employer for any of the reasons set
forth in Subsection 9(A) of this Agreement, or (b) by Executive pursuant to
Section 4 or Subsection 9(C) of this Agreement, 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 (as hereinafter defined) 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 two (2) years after
termination of Executive’s employment (a) by Employer for any of the reasons set
forth in Subsection 9(A) of this Agreement, or (b) by Executive pursuant to
Section 4 or Subsection 9(C) of this Agreement, 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 Moultrie, Georgia.
(5) While
Executive is employed by Employer and for a period of one (1) year after
termination of Executive’s employment (a) by Employer for any of the reasons set
forth in Subsection 9(A) of this Agreement, or (b) by Executive pursuant to
Section 4 or Subsection 9(C) of this Agreement, 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 written
agreement and whether or not such employment is for a determined period or is at
will.
(6) If
Executive’s employment by Employer is terminated for reasons other than those
set forth in Subsection 9(B) of this Agreement, 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 a fifty (50) mile radius of Moultrie, Georgia, 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 the 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 6 hereof other
than those benefits that Employer may be required to maintain for Executive
under applicable federal or state law.
(7) If
Executive’s employment is terminated for any of the reasons set forth in
Subsection 9(B) of this Agreement, 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 a fifty (50) mile radius of Moultrie, Georgia, 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 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 11(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 10(B)
hereof) and any employee benefit, retirement and compensation plans and other
perquisites provided in Section 6 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 or its
affiliates in the possession or control of Executive, all of which writings are
and will continue to be the sole and exclusive property of Employer or its
affiliates, as the case may be.
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(E) Executive
acknowledges that irreparable loss and injury would result to Employer upon the
breach of any of the covenants contained in this Section 11 and that damages
arising out of such breach would be difficult to ascertain. Executive
hereby agrees that, in addition to all other remedies provided at law or in
equity, Employer may petition and obtain from a court of law or equity, without
the necessity of proving actual damages and without posting any bond or other
security, both temporary and permanent injunctive relief to prevent a breach by
Executive of any covenant contained in this Section 11, 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
11 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.”
(h) The
proviso included in the last sentence of Section 12 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).”
(i) The
second and third sentences of Subsection 13(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.”
(j) The third
and fourth sentences of Subsection 13(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.”
(k) The
Agreement is amended by adding the following as new Section 25
thereof:
“25. 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
25(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/
Xxx X. Xxxxxxx
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Xxx
X. Xxxxxxx
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