Item 1.01
Entry into a Material
Definitive Agreement.
Agreement and Plan of Merger
On December 17, 2018, Fidelity Southern Corporation, a Georgia corporation (“Fidelity”), entered into an Agreement and Plan of Merger
(the “Merger Agreement”) with Ameris Bancorp, a Georgia corporation (“Ameris”). 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 Fidelity and Ameris.
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.