UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
April 26, 2019
Date of Report (Date of earliest event
reported)
Fidelity Southern Corporation
(Exact name of registrant as specified
in its charter)
Georgia
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001-34981
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58-1416811
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(State or other jurisdiction
of incorporation)
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(Commission
file number)
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(IRS Employer
Identification Number)
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3490 Piedmont Road, Suite 1550
Atlanta, Georgia 30305
(Address of principal executive offices)
(404) 639-6500
(Registrant’s telephone number,
including area code)
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:
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x
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Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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¨
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Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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¨
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Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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¨
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Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Indicate by check mark whether the
registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter)
or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging
growth company
¨
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act.
¨
Explanatory Note
As previously disclosed, 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”), pursuant to which, among other things, 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.
On March 8, 2019, an action captioned Paul Parshall v. Fidelity
Southern Corporation et al., Case 1:19-cv-01098-MHC (the “Parshall Action”), was filed in the U.S. District Court for
the Northern District of Georgia on behalf of a purported class of Fidelity shareholders against Fidelity, its current directors
and Ameris. This complaint contends, among other things, that the registration statement on Form S-4 filed by Ameris on February
12, 2019 in connection with the Merger (as amended, the “Registration Statement”) is false and misleading because it
omits certain allegedly material information in violation of Sections 14(a) and 20(a) of the Exchange Act, and Rule 14a-9 promulgated
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
On April 26, 2019, Fidelity filed a
Current Report on Form 8-K (the “Original Form 8-K”) providing certain supplemental disclosures (the
“original litigation-related supplemental disclosures”) to the Registration Statement in response to the Parshall
Action.
On April 24, 2019, an action captioned Morten Oftedal v. Fidelity
Southern Corporation et al., Case 1:19-cv-03656 (the “Oftedal Action” and together with the Parshall Action, the “Actions”),
was filed in the U.S. District Court for the Southern District of New York against Fidelity and its current directors. This complaint contends, among other things, that the definitive joint proxy statement/prospectus
contained in the Registration Statement (the “Definitive Proxy Statement”) is false and misleading because it omits
certain allegedly material information in violation of Sections 14(a) and 20(a) of the Exchange Act, and Rule 14a-9 promulgated
under the Exchange Act.
This Form 8-K/A amends the Original Form 8-K to amend certain
of the original litigation-related disclosures and to include additional supplemental disclosures (collectively, the “additional
litigation-related disclosures”) to the Definitive Proxy Statement in response to the Oftedal Action. Except as expressly
modified herein, the original litigation-related disclosures in the Original Form 8-K shall continue to update or supplement the
Registration Statement and Definitive Proxy Statement.
The defendants believe that
the Actions are without merit, and deny that any further disclosure beyond that already contained in the Registration
Statement and the Definitive Proxy Statement is required under applicable law to supplement the Registration Statement and
the Definitive Proxy Statement included therein which has been disseminated to Fidelity and Ameris stockholders. Nonetheless,
to avoid the risk that the Actions may delay or otherwise adversely affect the consummation of the Merger and to minimize
the expense of defending the Actions, the defendants are making the additional litigation-related disclosures, as set forth
herein. Nothing in this Form 8-K/A shall be deemed an admission of the legal necessity or materiality under applicable laws
of any of the supplemental disclosures set forth herein.
The additional litigation-related disclosures contained below
should be read in conjunction with the Registration Statement and the Definitive Proxy Statement included therein, which are available
on the Internet site maintained by the Securities and Exchange Commission (the “SEC”) at http://www.sec.gov, along
with periodic reports and other information Fidelity and Ameris file with the SEC, including the Original Form 8-K. To the extent
that the information set forth herein differs from or updates information contained in the Registration Statement, the information
set forth herein shall supersede or supplement the information in the Registration Statement and the original litigation-related
disclosures. All page references are to pages in the Definitive Proxy Statement, and terms used below, unless otherwise defined,
have the meanings set forth in the Definitive Proxy Statement.
Supplemental Disclosures
The disclosure under the subsection captioned “Opinion
of Sandler O’Neill & Partners, L.P.” is hereby amended and supplemented by adding the following after the second
sentence of the first full paragraph on page 70 of the Registration Statement:
The 2022 terminal value for Fidelity common stock
was presented as a range.
The disclosure under the subsection captioned “Opinion
of Sandler O’Neill & Partners, L.P.” is hereby amended and supplemented by adding the following after the second
sentence of the first full paragraph on page 71 of the Registration Statement:
The 2022 terminal value of Ameris common stock was
presented as a range.
The disclosure under the subsection captioned “Opinion
of Sandler O’Neill & Partners, L.P.” is hereby amended and supplemented by replacing the second sentence of the
second paragraph on page 72 of the Registration Statement with the following:
In performing this analysis, Sandler O’Neill
utilized certain assumptions relating to purchase accounting adjustments and cost savings, as provided by the senior management
of Ameris, as discussed in the section entitled “Certain Unaudited Prospective Financial Information” on page 60 of
this joint proxy statement/prospectus, $47.5 million of pre-tax transaction expenses as provided by senior management of Ameris,
as well as the publicly available consensus mean analyst earnings per share estimate for Fidelity for the year ending December 31,
2018 with estimated earnings per share for Fidelity for the years thereafter, as provided by the senior management of Ameris.
The disclosure under the subsection captioned “Opinion
of Sandler O’Neill & Partners, L.P.” is hereby amended and supplemented by replacing the third sentence of the
second paragraph on page 72 of the Registration Statement with the following:
The analysis indicated that the merger could be dilutive
to Ameris’ estimated earnings per share (excluding one-time transaction costs and expenses) in the year ending December 31,
2019 by approximately 4.3% and accretive to Ameris’ estimated earnings per share (excluding one-time transaction costs and
expenses) in the year ending December 31, 2020, December 31, 2021 and December 31, 2022 by approximately 6.1%, 6.4%, and 6.7%,
respectively; dilutive to Ameris’ estimated tangible book value per share at closing, December 31, 2019 and December
31, 2020 by approximately 2.5%, 3.2%, and 1.3%, respectively, and accretive to Ameris’ estimated tangible book value per
share at December 31, 2021 and December 31, 2022 by approximately 0.2% and 1.5%, respectively.
The disclosure under the subsection
captioned “Opinion of FIG Partners, LLC” is hereby amended and supplemented by replacing the Table entitled
“
Fidelity Comparable Company Analysis – Additional Detail – Financial Highlights
” in the
Form 8-K filed with the SEC by Fidelity on April 26, 2019, and added before the last paragraph on page 76 of the Registration Statement, in its entirety with the
following:
Fidelity Comparable Company Analysis
– Additional Detail – Financial Highlights
Institution
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Total
Assets
($M)
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Total
Loans
($M)
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TCE/
TA
(%)
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NPAs/
Assets
(%)
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LTM
ROAA
(%)
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LTM
ROAE
(%)
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Pinnacle Financial Partners
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24,557.5
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17,552.8
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9.0
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0.41
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1.27
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7.70
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South State Corporation
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14,552.2
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10,942.9
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9.7
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0.28
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0.95
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5.95
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CenterState Bank Corp.
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12,274.4
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8,262.6
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9.1
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0.31
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1.12
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7.65
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ServisFirst Bancshares, Inc.
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7,517.8
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6,368.8
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8.9
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0.40
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1.72
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19.25
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United Community Banks Inc.
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12,405.1
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8,253.8
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8.9
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0.58
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0.90
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8.06
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Eagle Bancorp, Inc.
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8,057.9
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6,863.4
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12.0
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0.40
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1.65
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12.88
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Ameris Bancorp, Inc.
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11,429.0
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8,659.7
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7.8
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0.86
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0.98
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8.60
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Cadence Bancorp
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11,759.8
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9,490.6
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9.6
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0.61
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1.34
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10.92
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Seacoast Banking Corp of FL
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5,930.9
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4,075.5
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9.8
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0.75
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1.10
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9.23
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First Bancorp
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5,711.6
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4,196.7
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9.0
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0.72
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1.42
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11.14
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National Commerce Corp
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4,103.3
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3,245.9
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10.6
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0.14
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1.10
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6.79
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Carolina Financial Corp.
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3,721.5
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2,482.8
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11.7
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0.46
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1.17
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8.47
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Access National Corp.
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3,021.3
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2,130.9
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9.1
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0.22
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1.03
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7.06
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First Bancshares, Inc.
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2,508.9
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1,752.8
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9.1
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1.11
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0.77
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6.74
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Atlantic Capital Bancshares, Inc.
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2,882.7
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2,040.3
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10.4
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0.44
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0.16
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1.38
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Capital City Bank Group, Inc.
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2,819.2
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1,782.1
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7.8
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1.36
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0.62
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6.10
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Franklin Financial Network Inc.
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4,167.8
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2,564.7
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8.1
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0.15
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0.83
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10.24
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Home Bancorp, Inc.
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2,140.5
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1,636.5
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11.1
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1.08
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1.29
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9.91
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The disclosure under the subsection
captioned “Opinion of FIG Partners, LLC” is hereby amended and supplemented by replacing the Table entitled
“
Ameris Comparable Company Analysis – Additional Detail – Financial Highlights
” in the Form 8-K filed with the SEC by Fidelity on April 26, 2019, and added before the heading “
Analysis of Selected Merger Transactions
” on page 77 of
the Registration Statement, in its entirety with the following:
Ameris Comparable Company Analysis –
Additional Detail – Financial Highlights
Institution
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Total
Assets
($M)
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Total
Loans
($M)
|
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TCE/
TA
(%)
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NPAs/
Assets
(%)
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LTM
ROAA
(%)
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LTM
ROAE
(%)
|
|
Pinnacle Financial Partners
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24,557.5
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17,522.8
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9.0
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0.41
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|
|
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1.27
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7.70
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United Bankshares Inc.
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19.187.6
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13,510.9
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9.8
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|
|
0.78
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|
|
|
1.12
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6.42
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Home BancShares Inc.
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|
14,912.7
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|
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|
10,832.8
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9.6
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|
|
|
0.45
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|
|
|
1.76
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|
|
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11.23
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Bank OZK
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22,086.5
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16,725.8
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|
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13.8
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|
|
|
0.23
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|
|
|
2.09
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|
|
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12.74
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Simmons First National Corp.
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16,281.3
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|
|
|
11,907.7
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|
|
|
8.1
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|
|
|
0.54
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|
|
|
1.18
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|
|
|
8.57
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South State Corporation
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14,522.2
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|
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10,942.9
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|
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9.7
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|
|
|
0.28
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|
|
|
0.95
|
|
|
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5.95
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CenterState Bank Corp.
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12,274.4
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|
|
8,262.6
|
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|
|
9.1
|
|
|
|
0.31
|
|
|
|
1.12
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|
|
|
7.65
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|
Union Bankshares Corp.
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|
13,371.7
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|
|
|
9,412.0
|
|
|
|
8.7
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|
|
|
0.44
|
|
|
|
0.97
|
|
|
|
7.11
|
|
Renasant Corp.
|
|
|
12,746.9
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|
|
|
9,586.2
|
|
|
|
8.8
|
|
|
|
0.31
|
|
|
|
1.14
|
|
|
|
7.56
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|
TowneBank
|
|
|
11,121.2
|
|
|
|
8,215.0
|
|
|
|
9.4
|
|
|
|
0.45
|
|
|
|
1.15
|
|
|
|
8.40
|
|
First Merchants Corp.
|
|
|
9,787.3
|
|
|
|
7,091.1
|
|
|
|
9.6
|
|
|
|
0.31
|
|
|
|
1.49
|
|
|
|
10.86
|
|
United Community Banks Inc
|
|
|
12,405.1
|
|
|
|
8,253.8
|
|
|
|
8.9
|
|
|
|
0.58
|
|
|
|
0.90
|
|
|
|
8.06
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|
Heartland Financial USA Inc
|
|
|
11,335.1
|
|
|
|
7,443.2
|
|
|
|
7.7
|
|
|
|
0.64
|
|
|
|
0.95
|
|
|
|
8.95
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|
Cadence Bancorp
|
|
|
11,759.8
|
|
|
|
9,490.6
|
|
|
|
9.6
|
|
|
|
0.61
|
|
|
|
1.34
|
|
|
|
10.92
|
|
Sandy Spring Bancorp Inc
|
|
|
8,034.6
|
|
|
|
6,420.5
|
|
|
|
8.9
|
|
|
|
0.42
|
|
|
|
1.15
|
|
|
|
9.24
|
|
Southside Bancshares Inc
|
|
|
6,105.4
|
|
|
|
3,275.5
|
|
|
|
9.0
|
|
|
|
0.65
|
|
|
|
1.09
|
|
|
|
9.28
|
|
First Bancorp
|
|
|
5,711.6
|
|
|
|
4,196.7
|
|
|
|
9.0
|
|
|
|
0.72
|
|
|
|
1.42
|
|
|
|
11.14
|
|
The disclosure under the subsection captioned “Opinion
of FIG Partners, LLC” is hereby amended and supplemented by adding the following after the second sentence in the last paragraph
on page 79 of the Registration Statement (which, for the avoidance of doubt, amends and replaces the corresponding disclosure set
forth in the Form 8-K filed with the SEC by Fidelity on April 26, 2019):
In arriving at the range of multiples used, FIG Partners
analyzes precedent transactions of similar companies, such as the comparable transaction group previously defined in this document.
FIG analyzed the P/E and P/TBV multiples of those comparable transactions, and combined with FIG’s general industry knowledge
and experience arrived at the aforementioned ranges. This led to Capitalized Terminal Values of $3,226,344,000 on a tangible
book value multiple basis and $3,307,186,000 on an earnings multiple basis.
* * *
Cautionary Statements Regarding Forward-Looking Information
This Report contains
forward-looking statements, as defined by federal securities laws, including, among other forward-looking statements, certain plans,
expectations and goals, and including statements about the benefits of the Merger. Words such as “may,” “believe,”
“expect,” “anticipate,” “intend,” “will,” “should,” “plan,”
“estimate,” “predict,” “continue” and “potential” or the negative of these terms
or other comparable terminology, as well as similar expressions, are meant to identify forward-looking statements. The forward-looking
statements in this Report are based on current expectations and are provided to assist in the understanding of potential future
performance. Such forward-looking statements involve numerous assumptions, risks and uncertainties that may cause actual results
to differ materially from those expressed or implied in any such statements.
Factors that could
cause or contribute to such differences include, without limitation, the following: the parties’ ability to consummate the
Merger or satisfy the conditions to the completion of the Merger, including, without limitation, the receipt of required shareholder
and regulatory approvals, on the terms expected or on the anticipated schedule; the parties’ ability to meet expectations
regarding the timing, completion and accounting and tax treatments of the Merger; the businesses of Fidelity and Ameris may not
be integrated successfully or such integration may take longer to accomplish than expected; the expected cost savings and any revenue
synergies from the Merger may not be fully realized within the expected timeframes; disruption from the Merger may make it more
difficult to maintain relationships with customers, employees or others; diversion of management time to Merger-related issues;
dilution caused by Ameris’s issuance of additional shares of Ameris Common Stock in connection with the Merger; general competitive,
economic, political and market conditions and fluctuations, including, without limitation, movements in interest rates; competitive
pressures on product pricing and services; and success and timing of other business strategies. For a discussion of some of the
other risks and other factors that may cause such forward-looking statements to differ materially from actual results, please refer
to Fidelity’s and Ameris’s filings with the SEC, including Fidelity’s Annual Report on Form 10-K for the year
ended December 31, 2018 and its subsequently filed Current Reports on Form 8-K, and Ameris’s Annual Report on Form 10-K for
the year ended December 31, 2018 and its subsequently filed Current Reports on Form 8-K. Forward-looking statements speak only
as of the date they are made, and neither Fidelity nor Ameris undertakes any obligation to update or revise forward-looking statements.
Additional Information
On February 12, 2019,
Ameris filed a registration statement on Form S-4, as amended on March 22, 2019, with the SEC to register the shares of Ameris
Common Stock that will be issued to Fidelity’s shareholders in connection with the Merger. The registration statement included
a joint proxy statement/prospectus and other relevant materials in connection with the transaction. The registration statement
was declared effective by the SEC on March 25, 2019, and Fidelity and Ameris commenced mailing the definitive joint proxy statement/prospectus
to stockholders of Fidelity and Ameris on or about March 28, 2019. BEFORE MAKING ANY VOTING OR INVESTMENT DECISION, INVESTORS AND
SECURITY HOLDERS ARE URGED TO READ THE DEFINITIVE JOINT PROXY STATEMENT/PROSPECTUS REGARDING THE MERGER AND ANY OTHER RELEVANT
DOCUMENTS CAREFULLY IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY CONTAIN OR WILL CONTAIN IMPORTANT INFORMATION ABOUT
THE MERGER. Investors and security holders may obtain free copies of these documents and other documents filed with the SEC on
its website at http://www.sec.gov. Investors and security holders may also obtain free copies of the documents filed with the SEC
by Fidelity on its website at www.FidelitySouthern.com and by Ameris on its website at http://www.AmerisBank.com.
This Report does not
constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval. Before
making any voting or investment decision, investors and security holders of Fidelity and Ameris are urged to read carefully the
entire registration statement and definitive joint proxy statement/prospectus, including any amendments thereto, because they contain
or will contain important information about the Merger. Free copies of these documents may be obtained as described above.
Participants in the Solicitation
Fidelity and Ameris,
and certain of their respective directors, executive officers and other members of management and employees, may be deemed to be
participants in the solicitation of proxies from Fidelity’s shareholders and Ameris’s shareholders in respect of the
Merger. Information regarding the directors and executive officers of Fidelity and Ameris and other persons who may be deemed participants
in the solicitation of Fidelity’s shareholders and Ameris’s shareholders is included in the definitive joint proxy
statement/prospectus for Fidelity’s meeting of shareholders and Ameris’s meeting of shareholders, which is filed with
the SEC. Information about Fidelity’s directors and executive officers and their ownership of Fidelity common stock can also
be found in Fidelity’s Annual Report on Form 10-K for the year ended December 31, 2018, as filed with the SEC on March 13,
2019, and other documents subsequently filed by Fidelity with the SEC. Information about Ameris’s directors and executive
officers and their ownership of Ameris common stock can also be found in Ameris’s definitive proxy statement in connection
with its 2019 annual meeting of shareholders, as filed with the SEC on April 1, 2019, and other documents subsequently filed by
Ameris with the SEC. Additional information regarding the interests of such participants is included in the definitive joint proxy
statement/prospectus filed with the SEC and other relevant documents regarding the Merger to be filed with the SEC when they become
available.
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
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FIDELITY
SOUTHERN CORPORATION
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By:
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/s/ Charles D. Christy
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Charles D. Christy
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Chief Financial Officer
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Date: April 30, 2019
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