Item 1.01
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Entry into a Material Definitive Agreement.
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Agreement and Plan of Merger
On December 17, 2018,
Ameris Bancorp, a Georgia corporation (“Ameris”), entered into an Agreement and Plan of Merger (the “Merger Agreement”)
with Fidelity Southern Corporation, a Georgia corporation (“Fidelity”). The Merger Agreement provides that, upon the
terms and subject to the conditions set forth therein, Fidelity will merge with and into Ameris (the “Merger”), with
Ameris surviving the Merger. Immediately following the Merger, Fidelity’s wholly owned bank subsidiary, Fidelity Bank, will
merge (the “Bank Merger”) with and into Ameris’s wholly owned bank subsidiary, Ameris Bank. Ameris Bank will
be the surviving entity in the Bank Merger. The Merger Agreement was unanimously approved by the board of directors of each of
Ameris and Fidelity.
Subject to the terms
and conditions of the Merger Agreement, at the effective time of the Merger (the “Effective Time”), Fidelity’s
shareholders will have the right to receive 0.80 shares (the “Exchange Ratio”) of common stock, par value $1.00 per
share, of Ameris (“Ameris Common Stock”) for each share of common stock, no par value per share, of Fidelity (“Fidelity
Common Stock”) that they hold, together with cash in lieu of fractional shares. Each outstanding Fidelity restricted stock
award will fully vest and be cancelled and converted at the Effective Time into the right to receive 0.80 shares of Ameris Common
Stock for each share of Fidelity Common Stock underlying such award. Each outstanding Fidelity stock option will fully vest and
be converted automatically at the Effective Time into an option to purchase shares of Ameris Common Stock, with the number of underlying
shares and per share exercise price of such option adjusted to reflect the Exchange Ratio.
The Merger Agreement
provides that, at the Effective Time, the respective boards of directors of Ameris and Ameris Bank will each be increased in size
by five to fourteen members, and five current members of the board of directors of Fidelity will be appointed to fill the resulting
vacancies. In addition, at the Effective Time, James B. Miller, Jr., Chairman and Chief Executive Officer of Fidelity, will become
Executive Chairman of Ameris and Ameris Bank, and H. Palmer Proctor, Jr., President of Fidelity and Chief Executive Officer of
Fidelity Bank, will become President of Ameris and Chief Executive Officer of Ameris Bank. The other existing officers of Ameris
and Ameris Bank will continue to hold after the Effective Time the offices they held prior to the Effective Time, including Dennis
J. Zember Jr. and Lawton E. Bassett, III, who will remain Chief Executive Officer of Ameris and President of Ameris Bank, respectively.
The Merger Agreement
contains customary representations and warranties from both Ameris and Fidelity, and each party has agreed to customary covenants,
including covenants relating to: (i) the conduct of Ameris’s and Fidelity’s businesses during the interim period
between the execution of the Merger Agreement and the Effective Time; (ii) the obligation of Ameris to call a meeting of its
shareholders to approve the issuance of the shares of Ameris Common Stock in connection with the Merger and to recommend that its
shareholders approve such issuance; (iii) the obligation of Fidelity to call a meeting of its shareholders to approve the
Merger Agreement and the transactions contemplated thereby and, subject to certain exceptions, to recommend that its shareholders
approve the Merger Agreement and the transactions contemplated thereby; and (iv) Fidelity’s non-solicitation obligations
relating to alternative acquisition proposals.
The completion of the
Merger is subject to customary conditions, including: (i) approval by Ameris’s shareholders of the issuance of the shares
of Ameris Common Stock in connection with the Merger; (ii) approval by Fidelity’s shareholders of the Merger Agreement and
the transactions contemplated thereby; (iii) approval for listing, subject to official notice of issuance, on the Nasdaq Global
Select Market of the shares of Ameris Common Stock to be issued in the Merger; (iv) the receipt of required regulatory approvals,
including the approval of the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation and the
Georgia Department of Banking and Finance; (v) effectiveness of the registration statement on Form S-4 relating to the shares
of Ameris Common Stock to be issued in the Merger; and (vi) the absence of any law, order, judgment, injunction or other legal
restraint preventing the completion of the Merger or making the completion of the Merger illegal.
Under the Merger Agreement,
each party’s obligation to complete the Merger is also subject to certain additional customary conditions, including: (i) subject
to certain exceptions, the accuracy of the representations and warranties of the other party, generally subject to a material adverse
effect qualification; (ii) the performance in all material respects by the other party of its obligations under the Merger
Agreement; (iii) the absence of a material adverse effect with respect to the other party since the execution of the Merger
Agreement; and (iv) the receipt by such party of an opinion from its counsel to the effect that the Merger will qualify as
a “reorganization” for U.S. federal income tax purposes.
The Merger Agreement
provides certain termination rights for both Ameris and Fidelity and further provides that a termination fee of $29,000,000 will
be payable by Fidelity upon termination of the Merger Agreement under certain circumstances.
The Merger is expected
to close in the second quarter of 2019.
The foregoing description
of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger
Agreement, which is attached to this Current Report on Form 8-K (this “Report”) as Exhibit 2.1 and is incorporated
into this Report by reference. The representations, warranties and covenants of each party set forth in the Merger Agreement have
been made only for purposes of, and were and are solely for the benefit of the parties to, the Merger Agreement, may be subject
to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes
of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts, and
may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors.
Accordingly, the representations and warranties may not describe the actual state of affairs at the date they were made or at any
other time, and investors should not rely on them as statements of fact. In addition, such representations and warranties will
not survive consummation of the Merger, unless otherwise specified therein, and were made only as of the date of the Merger Agreement
or such other date as is specified in the Merger Agreement. Moreover, information concerning the subject matter of the representations
and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected
in the parties’ public disclosures. Accordingly, the Merger Agreement is included with this Report only to provide investors
with information regarding the terms of the Merger Agreement, and not to provide investors with any other factual information regarding
Ameris or Fidelity, their respective affiliates or their respective businesses.
The Merger Agreement
should not be read alone, but should instead be read in conjunction with the other information regarding Ameris, Fidelity, their
respective affiliates and their respective businesses and the information regarding the Merger Agreement and the Merger that will
be contained in, or incorporated by reference into, the registration statement on Form S-4 of Ameris that will include a joint
proxy statement of Ameris and Fidelity and a prospectus of Ameris and that will be filed with the U.S. Securities and Exchange
Commission (the “SEC”).
Voting Agreements
In connection with
entering into the Merger Agreement, each director of Fidelity who beneficially owns 1% or more of the outstanding Fidelity Common
Stock has entered into a Voting and Support Agreement with Ameris and Fidelity (the “Voting Agreement”), pursuant to
which each such director has agreed, among other things, to vote his shares of Fidelity Common Stock in favor of the approval of
the Merger Agreement and the transactions contemplated thereby and against any action or agreement that would prevent, materially
impede or materially delay the consummation of the transactions contemplated by the Merger Agreement and against any alternative
acquisition proposal. Subject to certain exceptions, each such director has also agreed not to transfer such shares of Fidelity
Common Stock prior to receipt of the Fidelity shareholder approval without Ameris’s and Fidelity’s consent. The Voting
Agreement automatically terminates upon any termination of the Merger Agreement.
The foregoing description
of the Voting Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Voting
Agreement, a form of which is included as
Exhibit B
to the Merger Agreement filed as Exhibit 2.1 to this Report and which
is incorporated into this Report by reference.