Item 6. Indemnification of Directors
and Officers.
Subsection (a) of Section 14-2-851 of the
Georgia Business Corporation Code (“GBCC”) provides that a corporation may indemnify an individual who is party to
a proceeding because he or she is or was a director against liability incurred in the proceeding if: (1) such individual conducted
himself or herself in good faith; and (2) such individual reasonably believed (A) in the case of conduct in his or her official
capacity, that such conduct was in the best interests of the corporation, (B) in all other cases, that such conduct was at least
not opposed to the best interests of the corporation, and (C) in the case of any criminal proceeding, that the individual had no
reasonable cause to believe that such conduct was unlawful. Subsection (c) of Section 14-2-851 of the GBCC provides that the termination
of a proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent is not, of itself,
determinative that the director did not meet the standard of conduct described in Section 14-2-851 of the GBCC. Subsection (d)
of Section 14-2-851 of the GBCC provides that a corporation may not indemnify a director in connection with a proceeding by or
in the right of the corporation, except for reasonable expenses incurred in connection with the proceeding if it is determined
that the director has met the relevant standard of conduct, or in connection with any proceeding with respect to conduct for which
he or she was adjudged liable on the basis that personal benefit was improperly received by him or her, whether or not involving
action in his or her official capacity. Notwithstanding the foregoing, pursuant to Section 14-2-854 of the GBCC, a court may order
a corporation to indemnify a director if such court determines, in view of all the relevant circumstances, that it is fair and
reasonable to indemnify or advance expenses to the director, even if the director has not met the relevant standard of conduct
set forth in subsections (a) and (b) of Section 14-2-851 of the GBCC, failed to comply with Section 14-2-853 of the GBCC, or was
adjudged liable in a proceeding referred to in paragraph (1) or (2) of subsection (d) of Section 14-2-851 of the GBCC but if the
director was adjudged so liable, the indemnification shall be limited to reasonable expenses incurred in connection with the proceeding.
Section 14-2-852 of the GBCC provides that
a corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding
to which he or she was a party because he or she was a director of the corporation against reasonable expenses incurred by the
director in connection with the proceeding.
Section 14-2-857 of the GBCC provides that
a corporation may indemnify and advance expenses to an officer of the corporation who is a party to a proceeding because he or
she is an officer of the corporation to the same extent as a director. If the officer is not a director (or if the officer is a
director but the sole basis on which he or she is made a party to the proceeding is an act or omission solely as an officer), the
corporation may also indemnify and advance expenses to such officer to such further extent as may be provided by the articles of
incorporation or the bylaws of the corporation, by a resolution of the board of directors of the corporation, or by contract, except
for liability arising out of conduct that constitutes: (1) the appropriation, in violation of their duties, of any business opportunity
of the corporation; (2) acts or omissions which involve intentional misconduct or a knowing violation of law; (3) the types of
liability set forth in Section 14-2-832 of the GBCC; or (4) receipt of an improper personal benefit. An officer of a corporation
who is not a director is entitled to mandatory indemnification under Section 14-2-852 of the GBCC and may apply to a court under
Section 14-2-854 of the GBCC for indemnification or advances, in each case to the same extent to which a director may be entitled
to indemnification under those provisions. Finally, a corporation may also indemnify an employee or agent who is not a director
to the extent that, consistent with public policy, may be provided by its articles of incorporation or bylaws, by general or specific
action by its board of directors or by contract.
Article XI of the Articles of Incorporation
of Ameris provides that, except as may be limited by the GBCC or any successor law, no director shall be personally liable to Ameris
or any of its shareholders for monetary damages for breach of his or her duty of care or other duty as a director.
Article VII of the Bylaws of Ameris provides
that every person (and the heirs and legal representatives of such person) who is or was a director or officer of Ameris or any
other corporation of which he or she served as such at the request of Ameris and of which Ameris directly or indirectly is a shareholder
or creditor, or in which or in the stocks, bonds, securities or other obligations of which Ameris is in any way interested, may
be indemnified for any liability and expense resulting from any threatened, pending or completed action, suit or proceeding, civil,
criminal, administrative, arbitrative or investigative or otherwise, or in connection with any appeal relating thereto, in which
he or she may become involved, as a party or prospective party or otherwise, by reason of any action taken or not taken in his
or her capacity as a director or officer or as a member of any committee appointed by the board of directors of Ameris to act for,
in the interest of, or on behalf of Ameris, whether or not he or she continues to be a director or officer at the time such liability
or expense is incurred; provided such person acted in good faith and (i) reasonably believed, in the case of conduct in the person’s
official capacity, that the conduct was in Ameris’s best interests; (ii) reasonably believed, in all other cases, that the
conduct was at least not opposed to Ameris’s best interests; and (iii) in the case of a criminal action or proceeding, did
not have reasonable cause to believe that his or her conduct was unlawful. The termination of any claim, action, suit or proceeding,
by judgment, order, compromise, settlement (with or without court approval) or conviction or upon a plea of guilty or of nolo contendere,
or its equivalent, does not create a presumption that a director or officer did not meet the standards of conduct set forth in
the Bylaws. Expenses incurred with respect to any claim, action, suit or proceeding of the character described in Article VII of
the Bylaws of Ameris may be advanced by Ameris prior to the final disposition thereof upon receipt of any undertaking by or on
behalf of the recipient to repay such amount, unless it is ultimately determined that he or she is entitled to indemnification
under the Bylaws.
Notwithstanding the foregoing, Article
VII of Ameris’s Bylaws provides that no officer or director who was or is a party to any action or suit by or in the right
of Ameris to procure a judgment in its favor by reason of the fact that he or she is or was an officer or director of Ameris or
such other corporation can be indemnified in respect of any claim, issue or matter as to which such person is adjudged to be liable
for negligence or misconduct in the performance of his or her duty to Ameris, unless the court in which such action or suit was
brought determines that, despite the adjudication of liability and in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
Article VII of Ameris’s Bylaws further
provides that every person (and the heirs and legal representatives of such person) referred to above who has been wholly successful,
on the merits or otherwise, with the respect to such claim, action, suit or proceeding is entitled to indemnification as of right
without any further action or approval by the board of directors of Ameris, and any indemnification otherwise pursuant to the Bylaws
of Ameris will be made at the discretion of Ameris, but only pursuant to a determination made in the manner set forth in Section
14-2-855 of the GBCC that indemnification is permissible in the circumstances. Section 14-2-855 of the GBCC provides that indemnification
may be made where the person to be indemnified has met the relevant standard of conduct described above as determined by a majority
vote of a quorum consisting of disinterested directors of the board of directors, by duly selected independent legal counsel or
by a majority vote of the disinterested shareholders. The board of directors also may designate a special committee of two or more
disinterested directors to make this determination.
The rights of indemnification provided
in Article VII of Ameris’s Bylaws are in addition to: (1) any rights to which any director or officer may otherwise be entitled
under any bylaw, agreement, vote of shareholders or otherwise; and (2) the power of Ameris to purchase and maintain insurance on
behalf of any director or officer against any liability asserted against him or her and incurred by him or her in such capacity,
or arising out of his or her status as such, regardless of whether Ameris would have the power to indemnify against such liability
under the Bylaws or otherwise.
Ameris’s Bylaws further provide that
any amendment to Article VII thereof that limits or otherwise adversely affects the right of indemnification, advancement of expenses
or other rights of any indemnified person thereunder shall, as to such indemnified person, apply only to proceedings based on actions,
events or omissions occurring after such amendment and after delivery of notice of such amendment to the indemnified person so
affected. Any indemnified person shall, as to any proceeding based on actions, events or omissions occurring prior to the date
of receipt of such notice, be entitled to the right of indemnification, advancement of expenses and other rights under Article
VII as in effect prior to such amendment.
Item 9. Undertakings.
(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement;
provided, however
, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act that are incorporated by reference in the Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing
of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion
of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.