UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
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Date
of report (Date of earliest event reported):
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November
21, 2008
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Ameris Bancorp
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(Exact
Name of Registrant as Specified in Charter)
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Georgia
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No.
001-13901
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No.58-1456434
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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24
2nd Avenue,
S.E.,
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Moultrie,
Georgia 31768
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(Address
of Principal Executive Offices)
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Registrant’s
telephone number, including area code:
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(229)
890-1111
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(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
[ ] Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ] Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
[ ] Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01
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Entry
into a Material Definitive
Agreement.
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On
November 21, 2008 (the “Closing Date”), Ameris Bancorp (the “Company”), pursuant
to the Troubled Asset Relief Program Capital Purchase Program (the “CPP”),
issued and sold to the U.S. Department of the Treasury (the “Treasury”), for an
aggregate cash purchase price of $52 million, (i) 52,000 shares (the
“Preferred Shares”) of the Company’s Fixed Rate Cumulative Perpetual Preferred
Stock, Series A, having a liquidation preference of $1,000 per share, and
(ii) a ten-year warrant (the “Warrant”) to purchase up to 679,443 shares of
the Company’s common stock, par value $1.00 per share (the “Common Stock”), at
an exercise price of $11.48 per share. The issuance and sale of these
securities was a private placement exempt from registration pursuant to
Section 4(2) of the Securities Act of 1933, as amended.
Cumulative
dividends on the Preferred Shares will accrue on the liquidation preference at a
rate of 5% per annum for the first five years and at a rate of 9% per
annum thereafter, but such dividends will be paid only if, as and when declared
by the Company’s Board of Directors. The Preferred Shares have no
maturity date and rank senior to the Common Stock (and pari passu with the Company’s
other authorized preferred stock, of which no shares are currently designated or
outstanding) with respect to the payment of dividends and distributions and
amounts payable upon liquidation, dissolution and winding up of the
Company. Subject to the approval of the Board of Governors of the
Federal Reserve System, the Preferred Shares are redeemable at the option of the
Company at 100% of their liquidation preference, provided that the Preferred
Shares may be redeemed prior to the first dividend payment date falling after
the third anniversary of the Closing Date (February 15, 2012) only if
(i) the Company has raised aggregate gross proceeds in one or more
Qualified Equity Offerings (as defined in the Letter Agreement dated November
21, 2008 between the Company and the Treasury, including the Securities Purchase
Agreement – Standard Terms incorporated by reference therein (collectively, the
“Purchase Agreement”)) in excess of $13 million and (ii) the aggregate
redemption price does not exceed the aggregate net proceeds from such Qualified
Equity Offerings.
The
Treasury may not transfer a portion or portions of the Warrant with respect to,
and/or exercise the Warrant for more than one-half of, the 679,443 shares of
Common Stock issuable upon exercise of the Warrant, in the aggregate, until the
earlier of (i) the date on which the Company has received aggregate gross
proceeds of not less than $52 million from one or more Qualified Equity
Offerings and (ii) December 31, 2009. If the Company
completes one or more Qualified Equity Offerings on or prior to
December 31, 2009 that result in the Company receiving aggregate gross
proceeds of not less than $52 million, then the number of the shares of Common
Stock underlying the portion of the Warrant then held by the Treasury will be
reduced by one-half of the number of shares of Common Stock originally covered
by the Warrant. For purposes of the foregoing, as provided in the
Purchase Agreement, “Qualified Equity Offering” is defined as the sale and
issuance for cash by the Company to persons other than the Company or any
Company subsidiary after the Closing Date of shares of perpetual Preferred
Stock, Common Stock or any combination of such stock, that, in each case,
qualify as and may be included in Tier I capital of the Company at the time of
issuance under the applicable risk-based capital guidelines of the Company’s
federal banking agency (other than any such sales and issuances made pursuant to
agreements or arrangements entered into, or pursuant to financing plans which
were publicly announced, on or prior to October 13, 2008).
The
Purchase Agreement pursuant to which the Preferred Shares and the Warrant were
sold contains limitations on the payment of dividends on the Common Stock
(including with respect to the payment of cash dividends in excess of $0.05 per
share, which was the amount of the last regular dividend declared by the Company
prior to October 14, 2008) and on the Company’s ability to repurchase its
Common Stock, and subjects the Company to certain of the executive compensation
limitations included in the Emergency Economic Stabilization Act of 2008 (the
“Act”). As a condition to the closing of the transaction, each of
Messrs. Edwin W. Hortman, Jr., Dennis J. Zember Jr., Jon S. Edwards, C. Johnson
Hipp, III and Marc J. Bogan, the Company’s Senior Executive Officers (as defined
in the Purchase Agreement), executed a waiver (the “Waiver”) voluntarily waiving
any claim against the Treasury or the Company for any changes to such Senior
Executive Officer’s compensation or benefits that are required to comply with
the regulation issued by the Treasury under the CPP as published in the Federal
Register on October 20, 2008 and acknowledging that the regulation may
require modification of the compensation, bonus, incentive and other benefit
plans, arrangements and policies and agreements (collectively, “Benefit Plans”)
as they relate to the period the Treasury holds any equity or debt securities of
the Company acquired through the CPP. Each of the Senior Executive
Officers also entered into a letter agreement (the “Executive Agreement”) with
the Company amending the Benefit Plans with respect to such Senior Executive
Officer as may be necessary, during the period that the Treasury owns any debt
or equity securities of the Company acquired pursuant to the Purchase Agreement
or the Warrant, to comply with Section 111(b) of the Act.
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Copies of
the Purchase Agreement, the form of Warrant, the Articles of Amendment to the
Company’s Articles of Incorporation with respect to the Preferred Shares, the
form of Waiver executed by the Senior Executive Officers and the form of
Executive Agreement executed by the Senior Executive Officers are included as
exhibits to this Report on Form 8-K and are incorporated by reference into
Items 1.01, 3.02, 3.03, 5.02 and 5.03 hereof. The foregoing
summary of certain provisions of these documents is qualified in its entirety by
reference thereto.
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Item
3.02
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Unregistered
Sales of Equity
Securities.
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The
information set forth under Item 1.01 hereof is incorporated by reference into
this Item 3.02.
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Item
3.03
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Material
Modification of the Rights of Security
Holders.
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The
information set forth under Item 1.01 hereof is incorporated by reference into
this Item 3.03.
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Item
5.02
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangement of Certain
Officers.
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The information set forth under Item
1.01 hereof is incorporated by reference into this Item 5.02.
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Item
5.03
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Amendments to Articles
of Incorporation or Bylaws; Change in Fiscal
Year.
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On November
18, 2008, the Company filed with the Secretary of State of the State of Georgia
Articles of Amendment to the Company’s Articles of Incorporation creating the
Preferred Shares and establishing their terms. A copy of the Articles
of Amendment is included as an exhibit to this Report on Form 8-K and is
incorporated by reference into this Item 5.03.
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Item
9.01
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Financial Statements
and Exhibits.
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(d) Exhibits.
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3.1
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Articles
of Amendment to the Articles of Incorporation of the Company
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3.2
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Warrant
to Purchase up to 679,443 shares of Common Stock of the
Company
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10.1
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Letter
Agreement, dated November 21, 2008, including Securities Purchase
Agreement – Standard Terms incorporated by reference therein, between the
Company and the United States Department of the Treasury
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10.2
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Form
of Waiver, executed by each of Messrs. Edwin W. Hortman, Jr., Dennis J.
Zember Jr., Jon S. Edwards, C. Johnson Hipp, III and Marc J.
Bogan
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10.3
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Form
of Letter Agreement, executed by the Company and each of Messrs. Edwin W.
Hortman, Jr., Dennis J. Zember Jr., Jon S. Edwards, C. Johnson Hipp, III
and Marc J. Bogan
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SIGNATURE
Pursuant to the requirements of the
Securities Exchange Act of 1934, as amended, the Company has duly caused this
Report to be signed on its behalf by the undersigned, thereunto duly
authorized.
AMERIS
BANCORP
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By:
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/s/
Dennis J. Zember Jr.
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Dennis
J. Zember, Jr.
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Executive
Vice President and Chief Financial
Officer
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Dated: November
21, 2008