TABLE OF CONTENTS
As filed with the Securities and Exchange Commission on January 16, 2018February 12, 2019
Registration No. 333-       ​
​
​
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
​
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
​
AMERIS BANCORP
(Exact name of Registrantregistrant as specified in its charter)
​
​Georgia​​6022​​58-1456434​
​(State or other jurisdiction of
incorporation or organization)		​​(Primary Standard Industrial
Classification Code Number)		​​(I.R.S. Employer
Identification No.)		​
​


Ameris Bancorp
310 First St.,Street, S.E.
Moultrie, Georgia 31768
(229) 890-1111
(Address, including ZIP code, and telephone
number, including area code, of registrant’s
principal executive offices)
​​
Mr. Edwin W. Hortman,Dennis J. Zember Jr.
Executive Chairman, President and
Chief Executive Officer
Ameris Bancorp
310 First St.,Street, S.E.
Moultrie, Georgia 31768
(229) 890-1111
​
​(Address, including ZIP code, and telephone number,
including area code, of Registrant’s principal executive offices)		​​(Name, address, including ZIP code,
and telephone number,
including area
code, of agent for service)		​
​
COPIES TO:
​COPIES TO:​
​Lori A. Gelchion, Esq.
Jody L. Spencer, Esq.
Rogers & Hardin LLP
2700 International Tower
229 Peachtree Street NE
Atlanta, Georgia 30303
Telephone: (404) 522-4700
Facsimile: (404) 525-2224 (facsimile)		​​A. George Igler,
Edward D. Herlihy, Esq.
Richard Pearlman,Brandon C. Price, Esq.
Igler and Pearlman, P.A.Wachtell, Lipton, Rosen & Katz
2075 Centre Pointe Boulevard, Suite 10051 West 52nd Street
Tallahassee, Florida 32308New York, New York 10019
(850) 878-2411Telephone: (212) 403-1000
(850) 878-1230 (facsimile)Facsimile: (212) 403-2000
​
​
Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable following the effectiveness of this Registration Statementregistration statement and upon completion of the merger described herein.
If the securities being registered on this Form are being offered in connection with formation of a holding company and there is compliance with General Instruction G, check the following box. ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the Registrantregistrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of  “large accelerated filer,” “accelerated filer,” and “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
​
Large accelerated filer
☒
​
​​☒​​
Accelerated Filer
filer
☐
​
​☐​
​
Non-accelerated filer
☐
​
​​☐​​
Smaller reporting company

☐
​
​☐​
​(Do not check if a smaller reporting company)​​
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 7(a)(2)(B) of the Securities Act. ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐
Calculation of Registration Fee​
Title of each class of securities to be registered​​
Amount to be
registered(1)
​​Proposed
maximum offering
price per share		​​
Proposed
maximum aggregate
offering price(2)
​​
Amount of
registration fee(3)
​
Common Stock, $1.00 par value​​​​2,644,131​​​​​N/A​​​​$132,984,211.95​​​​$16,556.53​​
​
​
TABLE OF CONTENTS
Calculation of Registration Fee​
Title of each class of securities to be registered​​
Amount to
be registered(1)
​​Proposed maximum
offering price
per share		​​
Proposed maximum
aggregate offering
price(2)
​​
Amount of
registration fee(3)
​
Common Stock, $1.00 par value​​​​22,653,416​​​​​N/A​​​​$865,218,876.80​​​​$104,864.53​​
​
(1)
TheBased on the maximum number of shares of the Registrant’s common stock, being registered hereunder is based uponpar value $1.00 per share (the “Ameris common stock”), of the anticipated maximum number of such shares requiredregistrant, Ameris Bancorp (“Ameris”), estimated to consummate the proposed merger of Atlantic Coast Financial Corporation (“Atlantic”) into the Registrant. The Registrant will remove from registration by means of a post-effective amendment any shares being registered that are notbe issued in connection with such merger. If the merger described herein (the “merger”). This number of shares is the product of: (a) the sum of  (i) 27,448,279, the aggregate number of shares of the Registrant’s common stock, required to be issued to consummateno par value per share (the “Fidelity common stock”), of Fidelity Southern Corporation (“Fidelity”) outstanding as of January 31, 2019, except for shares of Fidelity common stock held by Fidelity as treasury stock or shares owned by Ameris or by any wholly owned subsidiary of Ameris or Fidelity (other than (x) shares held in trust accounts, managed accounts and the proposed mergerlike, or otherwise held in a fiduciary or agency capacity, that are beneficially owned by third parties and (y) shares held, directly or indirectly, by Ameris, Fidelity or any wholly owned subsidiary of Atlantic intoAmeris or Fidelity in respect of a debt previously contracted), which outstanding share number includes 94,446 shares granted in respect of Fidelity restricted stock awards outstanding as of January 31, 2019, plus (ii) 868,490, the Registrant is increased afteraggregate number of shares of Fidelity common stock reserved for issuance upon the date this registration statement is declared effective, then the Registrant will register such additional sharesexercise of Fidelity options outstanding as of January 31, 2019; multiplied by (b) in accordance with Rule 413the terms of the merger agreement by and between Ameris and Fidelity described herein, an exchange ratio of 0.80 shares of Ameris common stock for each share of Fidelity common stock.
​
(2)
The proposed maximum aggregate offering price of the Ameris common stock was calculated based upon the market value of shares of Fidelity common stock in accordance with Rules 457(c) and 457(f) under the Securities Act of 1933, as amended (the “Securities Act”), as follows: the product of  (a) $30.555, the average of the high and low prices per share of Fidelity common stock as reported on the Nasdaq Global Select Market on February 8, 2019, multiplied by filing a registration statement pursuant to Rule 462(b) or Rule 429 under(b) 28,316,769, the Securities Act,estimated number of shares of Fidelity common stock that may be exchanged for the merger consideration (calculated as applicable, with respect to such additional shares.shown in note (1) above).
​
(2)(3)
Estimated solely for the purpose of calculating the registration fee required by Section 6(b) of the Securities Act pursuant to Rules 457(c) and 457(f)(1) and (f)(3) of the Securities Act. The proposed maximum aggregate offering price of the Registrant’s common stock is the result of: (i) 15,553,709, the maximum number of shares of Atlantic’s common stock that may be received by the Registrant pursuant to the merger multiplied by the market value of the shares of Atlantic’s common stock expected to be exchanged for the Registrant’s common stock in connection with the merger, as established by the average of the high and low prices of Atlantic’s common stock as reported on the NASDAQ Global Market on January 10, 2018 of  $9.94, minus (ii) $21,619,655.51, the estimated amount in cash to be paid by the Registrant in the proposed merger.
​
(3)
Computed pursuant to Rules 457(f)(1) and 457(c) of the Securities Act, based on a rate of $124.50$121.20 per $1,000,000 of the proposed maximum aggregate offering price.
​
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OFThe Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A)or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), MAY DETERMINE.
​
​
may determine.
TABLE OF CONTENTS
The information in this proxy statement/prospectusInformation contained herein is not complete and may be changed. Ameris Bancorp may not sell thesubject to completion or amendment. A registration statement relating to these securities offered by this proxy statement/prospectus until the registration statementhas been filed with the Securities and Exchange Commission isCommission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This proxy statement/prospectus isdocument shall not constitute an offer to sell these securities and Ameris Bancorp is not soliciting anor the solicitation of any offer to buy nor shall there be any sale of these securities in any jurisdiction where thein which such offer, solicitation or sale is not permitted.would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
PRELIMINARY —JOINT PROXY STATEMENT/PROSPECTUS
DATED FEBRUARY 12, 2019, SUBJECT TO COMPLETION DATED JANUARY 16, 2018
​
[MISSING IMAGE: lg_atlanticfinancial.jpg]

[MISSING IMAGE: lg_amerisbancorp1.jpg]
​​
[MISSING IMAGE: lg_amerisbancorp.jpg][MISSING IMAGE: lg_fidelity-southern.jpg]
​
MERGER AND SHARE ISSUANCE PROPOSED — YOUR VOTE IS VERY IMPORTANT
To the StockholdersShareholders of Atlantic Coast FinancialAmeris Bancorp and the Shareholders of Fidelity Southern Corporation:
On November 16, 2017, Atlantic Coast Financial Corporation, or “Atlantic,” andDecember 17, 2018, Ameris Bancorp or “Ameris,”(which we refer to as “Ameris”) and Fidelity Southern Corporation (which we refer to as “Fidelity”) entered into an Agreement and Plan of Merger which(which we refer to as the “Merger Agreement.” The Merger Agreement provides for“merger agreement”). Under the merger of Atlanticagreement, Fidelity will merge with and into Ameris, with Ameris continuing as the surviving company, which transactioncorporation (which we refer to as the “merger.”“merger”). Immediately afterfollowing the completion of the merger, Atlantic Coast Bank, a Florida state-chartered bank and aFidelity’s wholly owned subsidiary, of Atlantic,Fidelity Bank, a Georgia state-chartered bank, will merge with and into Ameris’s wholly owned subsidiary, Ameris Bank, a Georgia state-charteredstate-charted bank and a(which we refer to as “Ameris Bank”), with Ameris Bank continuing as the surviving bank.
In the merger, each outstanding share of common stock, no par value per share, of Fidelity (which we refer to as the “Fidelity common stock”) held immediately prior to the effective time of the merger, except for shares of Fidelity common stock held by Fidelity as treasury stock or shares owned by Ameris or by any wholly owned subsidiary of Ameris with Ameris Bank as the surviving bank, which we refer to as the “bank merger.” Before the merger can be completed, Atlantic stockholders must approve the Merger Agreementor Fidelity (other than (i) shares held in trust accounts, managed accounts and the transactions provided for therein, which we refer to as the “merger proposal.”
In the merger, each sharelike, or otherwise held in a fiduciary or agency capacity, that are beneficially owned by third parties and (ii) shares held, directly or indirectly, by Ameris, Fidelity or any wholly owned subsidiary of Atlantic common stockAmeris or Fidelity in respect of a debt previously contracted), will be converted into the right to receive: (i) $1.39 in cash, without interest; and (ii) 0.17receive 0.80 shares (which we refer to as the “exchange ratio”) of common stock, par value $1.00 per share, of Ameris (which we refer to as the “Ameris common stock”). The value of the merger consideration will depend on the market price of the Ameris common stock at the effective time of the merger.
Shares of Ameris common stock plus cash in lieu of fractional shares.and Fidelity common stock are listed on the Nasdaq Global Select Market (which we refer to as the “Nasdaq”) under the symbols “ABCB” and “LION,” respectively. Based on the $47.30 closing price per share of Ameris common stock on the NASDAQ Global Select MarketNasdaq on November 16, 2017,December 14, 2018, the last trading day before the public announcement of the merger, the 0.17 exchange ratio together with the $1.39 cash consideration, represented $9.43approximately $27.22 in value for each share of AtlanticFidelity common stock, and approximately $146.7 million in aggregate value.
stock. Based on the closing price per share of Ameris common stock is traded on the NASDAQ Global Select Market underNasdaq on [•], the symbol “ABCB.” Atlanticlatest practicable trading day before the date of this joint proxy statement/prospectus, the exchange ratio represented approximately $[•] in value for each share of Fidelity common stock is traded on the NASDAQ Global Market under the symbol “ACFC.” Thestock. We urge you to obtain current market pricesquotations for both Ameris common stock and AtlanticFidelity common stock will fluctuate before the merger. stock.
Based on the 0.17 exchange ratio and the number of shares of AtlanticFidelity common stock outstanding as of [•] and the dateexchange ratio of this proxy statement/prospectus, and assuming no adjustment to0.80, the stock portion of the merger consideration paid by Ameris, the maximumtotal number of shares of Ameris common stock issuableexpected to be issued in connection with the merger is 2,644,131.
The completion of the merger is subject to a price floor. If the average closing price of one share of Ameris common stock during a specified determination period has declined by more than 15% from its priceapproximately [•]. In addition, based on November 15, 2017, of  $46.95 per share, and the Ameris common stock underperforms the KBW Nasdaq Regional Banking Index (KRX) by more than 15% during such period, then Atlantic may terminate the Merger Agreement unless Ameris offsets such reduction in the value of Ameris common stock by increasing the number of shares of Ameris common stock and Fidelity common stock outstanding, in each case as of [•], and based on the exchange ratio of 0.80, it is expected that holders of Fidelity common stock as of immediately prior to be issued, or paying additional cash consideration, to Atlantic stockholders.the effective time of the merger will hold, in the aggregate, approximately [•]% of the outstanding shares of Ameris common stock immediately following the merger.
AtlanticAmeris will hold a special meeting of its stockholdersholders of Ameris common stock (which we refer to as “Ameris shareholders”) on [•], at [•] a.m. Eastern Time, at [•] (which we refer to as the “Ameris special meeting”). At the Ameris special meeting, the Ameris shareholders will be asked consider and vote on a proposal to approve the issuance of shares of Ameris common stock in connection with the transactions contemplated by the merger agreement (which we refer to as the “Ameris share issuance proposal”) and related matters.
Fidelity also will hold a special meeting of holders of Fidelity common stock (which we refer to as “Fidelity shareholders”) on [•], at [•] a.m. Eastern Time, at [•] (which we refer to as the “Fidelity special meeting”). At the Fidelity special meeting, the Fidelity shareholders will be asked to consider and vote on a proposal to approve the merger agreement and the transactions contemplated thereby (which we refer to as the “merger proposal”) and related matters.
TABLE OF CONTENTS
The merger cannot be completed unless, among other things, a majority of the votes cast at the Ameris special meeting vote to approve the Ameris share issuance proposal and holders of at least 662∕3% of the outstanding shares of Fidelity common stock vote to approve the merger proposal. TheAmeris and Fidelity are sending you this joint proxy statement/prospectus to ask you to vote in favor of these and the other matters described in this joint proxy statement/prospectus.
YOUR VOTE IS VERY IMPORTANT, REGARDLESS OF THE NUMBER OF SHARES OF AMERIS COMMON STOCK OR FIDELITY COMMON STOCK YOU OWN. To ensure your representation at the Ameris special meeting or Fidelity special meeting, as applicable, please complete, sign, date and return the enclosed proxy card in the enclosed postage-paid envelope or submit your proxy by telephone or via the Internet by following the instructions in this joint proxy statement/prospectus and on your proxy card. Please vote promptly whether or not you expect to attend your special meeting. Submitting a proxy now will NOT prevent you from being able to vote in person at your special meeting. If you hold your shares in “street name,” you should instruct your broker, bank or other nominee how to vote in accordance with the voting instruction form you receive from your broker, bank or other nominee.
The board of stockholders is scheduled to be held on [•], at [•] a.m., local time, at [•]. No votedirectors of Ameris shareholders is required(which we refer to completeas the merger. This document, which serves as Atlantic’s proxy statement for“Ameris board of directors”) has unanimously: (i) determined that the special meetingmerger agreement and the transactions contemplated thereby, including the merger, are in the best interests of its stockholdersAmeris and as a prospectus for the Ameris shareholders; and (ii) adopted the merger agreement and approved the execution, delivery and performance by Ameris of the merger agreement and the consummation of the transactions contemplated thereby, including the merger and the issuance of shares of Ameris common stock in connection with the transactions contemplated by the merger agreement. The Ameris board of directors unanimously recommends that the Ameris shareholders vote “FOR” the Ameris share issuance proposal and “FOR” the other matters to be considered at the Ameris special meeting.
The board of directors of Fidelity (which we refer to as the “Fidelity board of directors”) has unanimously: (i) determined that the merger agreement and the transactions contemplated thereby, including the merger, are in the best interests of Fidelity and the Fidelity shareholders; and (ii) adopted the merger agreement and approved the execution, delivery and performance by Fidelity of the merger agreement and the consummation of the transactions contemplated thereby, including the merger. The Fidelity board of directors unanimously recommends that the Fidelity shareholders vote “FOR” the merger proposal and “FOR” the other matters to be considered at the Fidelity special meeting.
This joint proxy statement/prospectus provides you with detailed information about the merger agreement, the merger and related matters. It also contains or references information about Ameris and Fidelity. You are encouraged to read this joint proxy statement/prospectus carefully. In particular, you should read the “Risk Factors” section beginning on page 35 for a discussion of the risks you should consider in evaluating the proposed merger and how it will affect you. You can also obtain information about Ameris and Fidelity from documents that have been filed with the Securities and Exchange Commission that are incorporated by reference into this joint proxy statement/prospectus.
Sincerely,
​Dennis J. Zember Jr.
President and Chief Executive Officer
Ameris Bancorp		​​James B. Miller, Jr.
Chairman and Chief Executive Officer
Fidelity Southern Corporation		​
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the merger, the securities to be issued in the merger to Atlantic stockholders, gives you detailed information aboutor the special meeting andother transactions described in this joint proxy statement/prospectus, or passed upon the merger. The merger cannot be completed unless all closing conditions have been met, including receipt of required regulatory approvals and approvaladequacy or accuracy of the merger proposal bydisclosure in this joint proxy statement/prospectus. Any representation to the Atlantic stockholders. Approval of the merger proposal requires the affirmative vote of the holders of the majority of the outstanding shares of Atlantic common stock.
Atlanticcontrary is asking its stockholders to consider and vote on the merger proposal at the special meeting of stockholders and also to vote on: (i) a proposal to approve, on a non-binding advisory basis, the compensation that certain executive officers of Atlantic will receive under existing agreements with Atlantic in connection with the merger, which we refer to as the “merger-related compensation proposal;” and (ii) a proposal to adjourn the special meeting, if necessary or appropriate, to permit further solicitation of proxies if there are not sufficient votes to approve the merger proposal at the time of the special meeting, which we refer to as the “adjournment proposal.” Approval, on a non-binding advisory basis, of the merger-related compensation proposal, and approval of the adjournment proposal, each requires the affirmative vote of the holders of a majority of the shares of Atlantic common stock represented in person or by proxy at the special meeting.
Even if you plan to attend the special meeting, to ensure a quorum is present to hold the special meeting, we would ask you to complete and return the proxy card in the enclosed prepaid envelope. If you sign, date and mail your proxy card without indicating how you want to vote, then your proxy will be counted as a vote “FOR” the merger proposal, “FOR” the merger-related compensation proposal and “FOR” the adjournment proposal. Failing to instruct your broker how to vote shares held by you in “street name,” will have the same effect as a vote against the merger proposal, but will have no effect on the outcome of the merger-related compensation proposal or the adjournment proposal.criminal offense.
The board of directors of Atlantic unanimously recommends that Atlantic stockholders vote “FOR” the merger proposal, “FOR” the merger-related compensation proposal and “FOR” the adjournment proposal.
You should read carefully this entire proxy statement/prospectus, including the appendices hereto and the documents incorporated by reference herein, because it contains important information about the merger and the related transactions. In particular, you should read carefully the information set forth under “Risk Factors” beginning on page 21 of this proxy statement/prospectus, which discusses the risks relating to the merger.
On behalf of the board of directors of Atlantic, thank you for your prompt consideration to this important matter.
By Order of the Board of Directors of Atlantic,

Tracy L. Keegan
Executive Vice President,
Chief Financial Officer and
Corporate Secretary
The shares of Ameris common stocksecurities to be issued in the merger are not savings or deposit accounts or other obligations of any bank or nonbank subsidiary of Ameris or Atlantic,savings association, and they are not insured by the Federal Deposit Insurance Corporation or any other governmental agency.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved the securities to be issued in the merger or passed upon the adequacy or accuracyThe date of this proxy statement/prospectus. Any representation to the contrary is a criminal offense.
Thisjoint proxy statement/prospectus is dated [•[•], 2018, and it is first being first mailed or otherwise delivered to Atlantic stockholdersthe Ameris shareholders and the Fidelity shareholders on or about [•[•], 2018..
TABLE OF CONTENTS
ATLANTIC COAST FINANCIAL CORPORATION
4655 Salisbury Road, Suite 110
Jacksonville, Florida 32256[MISSING IMAGE: lg_amerisbancorp1.jpg]
NOTICE OF THE SPECIAL MEETING OF STOCKHOLDERS
To be Held onSHAREHOLDERS TO BE HELD ON [•]
NOTICE IS HEREBY GIVEN that a Special MeetingTo the Shareholders of Stockholders of Atlantic Coast Financial Corporation (“Atlantic”Ameris Bancorp:
Ameris Bancorp (which we refer to as “Ameris”) will be heldhold a special meeting of holders of common stock of Ameris (which we refer to as “Ameris shareholders”) on [•[•], at [•[•] a.m. Eastern Time, at [•] a.m., local time, at [•](which we refer to as the “Ameris special meeting”), to consider and vote on:upon the following matters:
•
Thea proposal to approve the issuance of shares of common stock, par value $1.00 per share, of Ameris (which we refer to as the “Ameris common stock”) in connection with the transactions contemplated by the Agreement and Plan of Merger, dated November 16, 2017 (the “Merger Agreement”), between Atlantic and Ameris Bancorp (“Ameris”), pursuantas of December 17, 2018, as may be amended from time to which Atlantic will merge with and into Ameris with Ameristime (which we refer to as the surviving company subject“merger agreement”), by and between Ameris and Fidelity Southern Corporation (which we refer to as the terms and conditions contained in the Merger Agreement, including the transactions provided for in the Merger Agreement (collectively, the “merger proposal”), as more fully described in the attached proxy statement/prospectus. A copy of the Merger Agreement is included in the attached proxy statement/prospectus as Appendix A;
​
•
The proposal to approve, on a non-binding advisory basis, the compensation that certain executive officers of Atlantic will receive under existing agreements with Atlantic in connection with the merger (the “merger-related compensation“Ameris share issuance proposal”); and
​
•
Thea proposal to approve one or more adjournments or postponements ofadjourn the Ameris special meeting, if necessary or appropriate, to permit further solicitation of proxies if there are not sufficient votes at the timein favor of the special meetingAmeris share issuance proposal (which we refer to approveas the merger proposal (the “adjournment“Ameris adjournment proposal”).
​
We have fixedAssuming a quorum is present, approval of each of the closeAmeris share issuance proposal and the Ameris adjournment proposal requires the affirmative vote of a majority of the votes cast on such proposal at the Ameris special meeting. Ameris will transact no other business on [•at the Ameris special meeting, except for business properly brought before the Ameris special meeting or any adjournment or postponement thereof.
Ameris shareholders must approve the Ameris share issuance proposal in order for the merger to occur. If Ameris shareholders fail to approve the Ameris share issuance proposal, the merger will not occur. The joint proxy statement/prospectus accompanying this notice explains the merger agreement and the transactions contemplated thereby, as well as the proposals to be considered at the Ameris special meeting. Please review the joint proxy statement/prospectus carefully.
The board of directors of Ameris (which we refer to as the “Ameris board of directors”) has set [•] as the record date for the Ameris special meeting. Only Atlantic stockholdersholders of record of Ameris common stock at the close of business on that date are[•] will be entitled to notice of and to vote at the Ameris special meeting. Approvalmeeting and any adjournments or postponements thereof. Any shareholder entitled to attend and vote at the Ameris special meeting is entitled to appoint a proxy to attend and vote on such shareholder’s behalf. Such proxy need not be a holder of the merger proposal requires the affirmative vote of the holders of a majority of the outstanding shares of AtlanticAmeris common stock. Approval, on a non-binding advisory basis, of the merger-related compensation proposal, and approval of the adjournment proposal, each requires the affirmative vote of the holders of a majority of the shares of Atlantic common stock represented in person
YOUR VOTE IS VERY IMPORTANT, REGARDLESS OF THE NUMBER OF SHARES OF AMERIS COMMON STOCK YOU OWN. Whether or by proxy at the special meeting of stockholders.
The board of directors of Atlantic has unanimously approved and adopted the Merger Agreement and has determined that the merger, as set forth in the Merger Agreement, and the terms and conditions set forth in the Merger Agreement are in the best interests of Atlantic and its stockholders. The board of directors of Atlantic unanimously recommends that Atlantic stockholders vote “FOR” the merger proposal, “FOR” the merger-related compensation proposal and “FOR” the adjournment proposal, if necessary.
Your vote is very important. We cannot complete the merger unless Atlantic stockholders approve the merger proposal.
The attached proxy statement/prospectus provides a detailed description of the special meeting, the Merger Agreement, the documents related to the merger, the merger-related compensation proposal, the adjournment proposal and other related matters. We urge you to read carefully the proxy statement/prospectus, including the appendices and any documents incorporated by reference.
You are cordially invited to attend the special meeting in person. Regardless of whethernot you plan to attend the Ameris special meeting, please vote,complete, sign, date and return the enclosed proxy card in the self-addressedenclosed postage-paid envelope as soon as possible. No additional postage is required if mailed within the United States. Alternatively, you may vote throughor submit your proxy by telephone or via the Internet or by telephone. Information and applicable deadlines for voting throughfollowing the Internet or by telephone are set forthinstructions in the enclosedjoint proxy card instructions. Ifstatement/prospectus accompanying this notice and on your proxy card. Please vote promptly whether or not you chooseexpect to attend the Ameris special meeting, thenmeeting. Submitting a proxy now will NOT prevent you mayfrom being able to vote your shares in person even if you have previously signed and returned your proxy card or voted viaat the Internet or by telephone.Ameris special meeting. If you hold your Atlanticshares in “street name,” you should instruct your broker, bank or other nominee how to vote in accordance with the voting instruction form you receive from your broker, bank or other nominee.
The Ameris board of directors has unanimously: (i) determined that the merger agreement and the transactions contemplated thereby, including the merger, are in the best interests of Ameris and the Ameris shareholders; and (ii) adopted the merger agreement and approved the execution, delivery and performance of the merger agreement and the consummation of the transactions contemplated thereby, including the merger and the issuance of shares of Ameris common stock in connection with the transactions contemplated by the merger agreement. The Ameris board of directors unanimously recommends that Ameris shareholders vote “FOR” the Ameris share issuance proposal and “FOR” the Ameris adjournment proposal (if necessary or appropriate).
TABLE OF CONTENTS
If you have any questions or need assistance with voting, please contact Ameris’s proxy solicitor, [•], by calling toll-free at [•]. If you plan to attend the Ameris special meeting, please bring valid photo identification. Ameris shareholders that hold their shares of Ameris common stock through a bank, broker or other nominee (commonly referred to as held in “street name”), then you must direct your are required to bring valid photo identification and proof of stock ownership in order to attend the Ameris special meeting, and a legal proxy, executed in such shareholder’s favor, from the record holder of such shareholder’s shares, such as a broker, bank broker or other nominee to vote in accordance with the instructions you have received from them. You may revoke your proxy at any time prior to the special meeting as specified in the accompanying proxy statement/prospectus.nominee.
By Order of the Board of Directors of Atlantic,
Tracy L. Keegan
Executive Vice President, Chief Financial Officer
and Corporate Secretary
Jacksonville, Florida
[•], 2018
YOUR VOTE IS VERY IMPORTANT
WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING, PLEASE VOTE BY USING THE INTERNET, BY TELEPHONE, OR BY COMPLETING, DATING, AND SIGNING THE ENCLOSED FORM OF PROXY AND RETURNING IT IN THE ENCLOSED RETURN ENVELOPE IN ORDER TO ENSURE THAT YOUR SHARES WILL BE REPRESENTED AT THE SPECIAL MEETING. THE AFFIRMATIVE VOTE OF HOLDERS OF A MAJORITY OF THE OUTSTANDING SHARESBOARD OF ATLANTIC COMMON STOCK IS REQUIRED FOR APPROVAL OF THE MERGER PROPOSAL.DIRECTORS,
Cindi H. Lewis
Corporate Secretary
TABLE OF CONTENTS
WHERE YOU CAN FIND MORE INFORMATION[MISSING IMAGE: lg_fidelity-southern.jpg]
BothNOTICE OF THE SPECIAL MEETING OF SHAREHOLDERS TO BE HELD ON [•]
To the Shareholders of Fidelity Southern Corporation:
Fidelity Southern Corporation (which we refer to as “Fidelity”) will hold a special meeting of holders of common stock of Fidelity (which we refer to as “Fidelity shareholders”) on [•], at [•] a.m. Eastern Time, at [•] (which we refer to as the “Fidelity special meeting”), to consider and vote upon the following matters:
•
a proposal to approve the Agreement and Plan of Merger, dated as of December 17, 2018, as may be amended from time to time (which we refer to as the “merger agreement”), by and between Fidelity and Ameris Bancorp and Atlantic are subjectthe transactions contemplated thereby (which we refer to as the “merger proposal”);
​
•
a proposal to approve, on a non-binding, advisory basis, the compensation to be paid to Fidelity’s named executive officers that is based on or otherwise relates to the information requirementsmerger, as discussed under “The Merger — Merger-related Compensation for Fidelity’s Named Executive Officers” beginning on page 99 in the accompanying joint proxy statement/prospectus (which we refer to as the “Fidelity compensation proposal”); and
​
•
a proposal to adjourn the Fidelity special meeting, if necessary or appropriate, to permit further solicitation of proxies in favor of the Securities Exchange Actmerger proposal (which we refer to as the “Fidelity adjournment proposal”).
​
The affirmative vote of 1934, as amended (the “Exchange Act”), which means that they are bothat least 662∕3% of the outstanding shares of Fidelity common stock entitled to vote thereon is required to file certain reports,approve the merger proposal. Assuming a quorum is present, approval of each of the Fidelity compensation proposal and the Fidelity adjournment proposal requires the affirmative vote of a majority of the votes cast on such proposal at the Fidelity special meeting. Fidelity will transact no other business at the special meeting, except for business properly brought before the Fidelity special meeting or any adjournment or postponement thereof.
Fidelity shareholders must approve the merger proposal in order for the merger to occur. The merger is not conditioned on approval of the Fidelity compensation proposal. The joint proxy statementsstatement/prospectus accompanying this notice explains the merger agreement and the transactions contemplated thereby, as well as the proposals to be considered at the Fidelity special meeting. Please review the joint proxy statement/​prospectus carefully.
The board of directors of Fidelity (which we refer to as the “Fidelity board of directors”) has set [•] as the record date for the Fidelity special meeting. Only holders of record of Fidelity common stock at the close of business on [•] will be entitled to notice of and to vote at the Fidelity special meeting and any adjournments or postponements thereof. Any shareholder entitled to attend and vote at the Fidelity special meeting is entitled to appoint a proxy to attend and vote on such shareholder’s behalf. Such proxy need not be a holder of Fidelity common stock.
YOUR VOTE IS VERY IMPORTANT, REGARDLESS OF THE NUMBER OF SHARES OF FIDELITY COMMON STOCK YOU OWN. Whether or not you plan to attend the Fidelity special meeting, please complete, sign, date and return the enclosed proxy card in the enclosed postage-paid envelope or submit your proxy by telephone or via the Internet by following the instructions in the joint
TABLE OF CONTENTS
proxy statement/prospectus accompanying this notice and on your proxy card. Please vote promptly whether or not you expect to attend the Fidelity special meeting. Submitting a proxy now will NOT prevent you from being able to vote in person at the Fidelity special meeting. If you hold your shares in “street name,” you should instruct your broker, bank or other nominee how to vote in accordance with the voting instruction form you receive from your broker, bank or other nominee.
The Fidelity board of directors has unanimously: (i) determined that the merger agreement and the transactions contemplated thereby, including the merger, are in the best interests of Fidelity and the Fidelity shareholders; and (ii) adopted the merger agreement and approved the execution of the merger agreement and the consummation of the transactions contemplated thereby, including the merger. The Fidelity board of directors unanimously recommends that Fidelity shareholders vote “FOR” the merger proposal, “FOR” the Fidelity compensation proposal and “FOR” the Fidelity adjournment proposal (if necessary or appropriate).
If you have any questions or need assistance with voting, please contact Fidelity’s proxy solicitor, [•], by calling toll-free at [•].
If you plan to attend the Fidelity special meeting in person, please bring valid photo identification. Fidelity shareholders that hold their shares of Fidelity common stock in “street name” are required to bring valid photo identification and proof of stock ownership in order to attend the Fidelity special meeting, and a legal proxy, executed in such shareholder’s favor, from the record holder of such shareholder’s shares, such as a broker, bank or other nominee.
BY ORDER OF THE BOARD OF DIRECTORS,
Martha C. Fleming
Corporate Secretary
TABLE OF CONTENTS
REFERENCES TO ADDITIONAL INFORMATION
This joint proxy statement/prospectus incorporates important business and financial information about Ameris and Fidelity from documents filed with the Securities and Exchange Commission (the(which we refer to as the “SEC”). that are not included in or delivered with this joint proxy statement/prospectus. You may read and copycan obtain any materials that Amerisof the documents filed with or Atlantic file withfurnished to the SEC by Ameris and/or Fidelity at its Public Reference Room at 100 F Street, N.E., Room 1580, Washington, D.C. 20549, at prescribed rates. Please callno cost from the SEC at (800) SEC-0330 for further information on the Public Reference Room. In addition, Ameris and Atlantic file reports and other business and financial information with the SEC electronically, and the SEC maintains a website located at www.sec.gov containing this information. You will also be able to obtain these documents, free of charge, from Ameris by accessing Ameris’sSEC’s website at www.amerisbank.com, and from Atlantic by accessing Atlantic’s website at www.atlanticcoastbank.net. Except as specifically incorporated by reference into this proxy statement/prospectus, information on those websites or filed with the SEC is not a part of this proxy statement/prospectus. Copies of these documents can also be obtained, free of charge, by directing a written request to:
​Ameris Bancorp
310 First Street, S.E.
Moultrie, Georgia 31768
Attn: Corporate Secretary		​​Atlantic Coast Financial Corporation
4655 Salisbury Road, Suite 110
Jacksonville, Florida 32256
Attn: Corporate Secretary		​
http://www.sec.gov. Ameris has filed a registration statement on Form S-4 to register with the SEC up to 2,644,131 shares of Ameris common stock to be issued pursuant to the merger (the “registration statement”). Thiswhich this joint proxy statement/prospectus isforms a part of that registration statement.part. As permitted by SEC rules, this joint proxy statement/​prospectus does not contain all of the information included in the registration statement or in the exhibits or schedules to the registration statement. You may read andobtain a free copy of the registration statement, including any amendments, schedules and exhibits at the SEC’s Public Reference Room at the address set forth above. The registration statement, including any amendments, schedules and exhibits, is also available, free of charge, by accessing the websites of the SEC or Ameris, or upon written request to Ameris or Atlantic at the addresses set forth above.
below. Statements contained in this joint proxy statement/prospectus as to the contents of any contract or other documents referred to in this joint proxy statement/prospectus are not necessarily complete. In each case, you should refer to the copy of the applicable contract or other document filed as an exhibit to the registration statement. ThisYou may also request copies of these documents, including documents incorporated by reference into this joint proxy statement/prospectus, incorporates important business and financial information about Ameris and Atlantic that isat no cost by contacting the appropriate company at the following address or telephone number:
​
Ameris Bancorp
310 First Street, S.E.
Moultrie, Georgia 31768
Attention: Corporate Secretary
Telephone: (229) 890-1111
​​
Fidelity Southern Corporation
3490 Piedmont Road, Suite 1550
Atlanta, Georgia 30305
Attention: Corporate Secretary
Telephone: (404) 248-5466
​
You will not included in or delivered with this proxy statement/prospectus, including incorporating by referencebe charged for any of these documents that Ameris and Atlantic have previously filed with the SEC. These documents contain important information about Ameris and Atlantic and their financial condition. See “Certain Documents Incorporated by Reference.” These documents are available free of charge upon written request to Ameris and Atlantic at the addresses listed above.
you request. To obtain timely delivery of these documents, you must request them no later than five business days before the date of your special meeting. This means that Ameris shareholders requesting documents must do so by [•], in order to receive them before the Ameris special meeting.meeting, and Fidelity shareholders requesting documents must do so by [•], in order to receive them before the Fidelity special meeting
You should rely only on the information contained in, or incorporated by reference into, this joint proxy statement/prospectus. No one has been authorized to provide you with information that is different from that contained in, or incorporated by reference into, this joint proxy statement/prospectus. This joint proxy statement/prospectus is dated [•], and you should assume that the information in this joint proxy statement/prospectus is accurate only as of such date. You should assume that the information incorporated by reference into this joint proxy statement/prospectus is accurate as of the date of such information. Neither the mailing of this joint proxy statement/prospectus to Ameris shareholders or Fidelity shareholders, nor the issuance by Ameris of shares of Ameris common stock in connection with the merger, will create any implication to the contrary.
This documentjoint proxy statement/prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, any securities, or the solicitation of a proxy, in any jurisdiction to or from any person to whom it is unlawful to make any such offer or solicitation in such jurisdiction. Ameris supplied all information contained in, or incorporated by reference into, this proxy statement/prospectus relating to Ameris, and Atlantic supplied all information contained in, or incorporated by reference into, this proxy statement/prospectus relating to Atlantic.
You should rely only on Except where the information contained in, or incorporated by reference into, this proxy statement/prospectus. No one has been authorized to provide you with information that is different from what is contained in this proxy statement/prospectus. You should not assume that thecontext otherwise indicates, information contained in this joint proxy statement/prospectus is accurate as of any date other than the date ofregarding Ameris has been provided by Ameris and information contained in this joint proxy statement/prospectus and neither the mailing of this proxy statement/prospectus to Atlantic stockholders nor the issuance of Ameris common stock in the merger shall create any implication to the contrary.
No personregarding Fidelity has been authorized to give any information or make any representation about the merger or Ameris or Atlantic that differs from, or adds to, the information in this proxy statement/prospectus or in documents that are publicly filed with the SEC. Therefore, if anyone does give you different or additional information, you should not rely on it.provided by Fidelity.
See “Where You Can Find More Information” for more details.
TABLE OF CONTENTS​​
TABLE OF CONTENTS
​​​Page​
QUESTIONS AND ANSWERS ABOUT THE MERGER AND THE SPECIAL MEETING
​​​​1​​
SUMMARY
​​​​711​​
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OFSelected Historical Consolidated Financial data of AMERIS
​​​​1525​​
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF ATLANTICSelected Historical Consolidated Financial data of FIDELITY
​​​​1828​​
SELECTED UNAUDITED PRO FORMA CONDENSED FINANCIALunaudited pro forma financial DATA
​​​​2031​​
RISK FACTORSCOMPARATIVE HISTORICAL AND UNAUDITED PRO FORMA PER SHARE DATA
​​​​2132​​
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
​​​​2433​​
UNAUDITED COMPARATIVE PER COMMON SHARE DATARISK FACTORS
​​​​2635​​
COMPARATIVE PER SHARE MARKET PRICE AND DIVIDEND INFORMATIONRisks Related to the Merger
​​​​2735​​
INFORMATION ABOUT Other Risk Factors of Ameris and Fidelity
​​​​41​​
THE FIDELITY SPECIAL MEETING
​​​​2942​​
FIDELITY PROPOSALS FOR
​​​​46​​
THE AMERIS SPECIAL MEETING
​​​​3248​​
Proposal 1 — Approval of the Merger ProposalAMERIS PROPOSALS
​​​​3252​​
Proposal 2 — Approval, on a Non-binding Advisory Basis, of the Merger-Related Compensation ProposalTHE PARTIES
​​​​32​​
Proposal 3 — Approval of the Adjournment Proposal
​​​​33​​
THE COMPANIES
​​​​3454​​
THE MERGER
​​​​3656​​
Terms of the Merger
​​​​56​​
Background of the Merger
​​​​3656​​
Atlantic’sFidelity’s Reasons for the Merger and theMerger; Recommendation of the AtlanticFidelity Board of Directors
​​​​3960​​
Certain Unaudited Prospective Financial Information
​​​​62​​
Opinion of Atlantic’s Financial AdvisorSandler O’Neill & Partners, L.P.
​​​​4165​​
Opinion of FIG Partners, LLC
​​​​78​​
Ameris’s Reasons for the Merger; Recommendation of the Ameris Board of Directors
​​​​86​​
Opinion of Stephens Inc.
​​​​88​​
The Ameris Board of Directors and Ameris’s Executive Officers After the Merger
​​​​5095​​
Interests of AtlanticFidelity’s Directors and Executive Officers in the Merger
​​​​5195​​
Board of Directors and Management of Ameris FollowingMerger-related Compensation for Fidelity’s Named Executive Officers
​​​​99​​
Dividend Policy
​​​​100​​
Public Trading Markets
​​​​101​​
Appraisal Rights in the Merger
​​​​53101​​
Regulatory Approvals Required for the Merger
​​​​53​​
Accounting Treatment
​​​​53​​
Dissenters’ Rights for Atlantic Stockholders
​​​​53101​​
THE MERGER AGREEMENT
​​​​54103​​
TheExplanatory Note Regarding the Merger Agreement
​​​​103​​
Structure of the Merger
​​​​54103​​
Treatment of Fidelity Equity Awards
​​​​104​​
Closing and Effective Time of the Merger
​​​​54​​
The Merger Consideration
​​​​55​​
Treatment of Atlantic Equity Awards
​​​​55​​
Delivery of Merger Consideration
​​​​56​​
Conduct of Business Pending the Merger
​​​​57​​
Representations and Warranties
​​​​58​​
Regulatory Matters
​​​​60​​
Employee Matters
​​​​60​​
The Atlantic ESOP
​​​​61​​
Indemnification and Directors’ and Officers’ Insurance
​​​​61105​​
i
TABLE OF CONTENTS​
​​​Page​
NASDAQ ListingConversion of Shares; Exchange of Certificates
​​​​62105​​
Limitations on Discussion With Third PartiesRepresentations and Warranties
​​​​62106​​
Atlantic Board RecommendationCovenants and Agreements
​​​​63108​​
Change in Atlantic Board RecommendationAmeris and Fidelity Special Meetings
​​​​63113​​
Agreement Not to Solicit Other Officers
​​​​113​​
Adverse Recommendation Change
​​​​114​​
Conditions to Completion ofComplete the Merger
​​​​64115​​
Termination;Termination of the Merger Consideration AdjustmentsAgreement
​​​​65116​​
Effect of Termination
​​​​117​​
Termination Fee
​���​​​67117​​
Expenses and Fees
​​​​67118​​
Amendment and Modification
​​​​67118​​
Voting Agreement
​​​​67118​​
ACCOUNTING TREATMENT
​​​​119​​
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER
​​​​69120​​
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
​​​​123​​
DESCRIPTION OF AMERIS CAPITAL STOCK
​​​​140​​
COMPARISON OF SHAREHOLDERSHAREHOLDERS’ RIGHTS
​​​​73143​​
UNAUDITED PRO FORMA COMBINED CONDENSED FINANCIAL INFORMATIONCOMPARATIVE MARKET PRICES AND DIVIDENDS
​​​​91156​​
LEGAL MATTERS
​​​​99157​​
EXPERTS
​​​​99157​​
FUTURE ATLANTIC STOCKHOLDERDEADLINES FOR SUBMITTING SHAREHOLDER PROPOSALS
​​​​99158​​
CERTAIN DOCUMENTS INCORPORATED BY REFERENCEWHERE YOU CAN FIND MORE INFORMATION
​​​​101159​​
AppendixAnnex A
Agreement and Plan of Merger, dated November 16, 2017,as of December 17, 2018, between Ameris Bancorp and Atlantic Coast FinancialFidelity Southern Corporation
​
​​​​A-1​​
AppendixAnnex B
Form of Voting and Support Agreement executed by thecertain directors and certain executive officers of Atlantic Coast FinancialFidelity Southern Corporation
​
​​​​B-1​​
AppendixAnnex C
Opinion of Hovde Group, LLC, dated November 15, 2017Sandler O’Neill & Partners, L.P.
​
​​​​C-1​​
Annex D
Opinion of FIG Partners, LLC
​
​​​​D-1​​
Annex E
Opinion of Stephens Inc.
​
​​​​E-1​​
ii
TABLE OF CONTENTS​
QUESTIONS AND ANSWERS ABOUT THE MERGER
AND THE SPECIAL MEETING
The following are some answers to certain questions that you may have aboutregarding the special meeting of Atlantic stockholders, which we refer to as the “special meeting,”merger and the merger.Fidelity and Ameris special meetings. We urge you to read carefully the remainder of this joint proxy statement/​prospectus (including “Risk Factors” beginning on page 21) because the information in this section doesmay not provide all of the information that might be important to you with respectin determining how to the special meeting and the merger.vote. Additional important information is also contained in the appendices to, and the documents incorporated by reference into, this joint proxy statement/prospectus. See “Where You Can Find More Information” and “Certain Documents Incorporated by Reference.Information.”
Q:
What am I being asked to vote on?is the merger?
​
A:
You are being askedAmeris Bancorp, a Georgia corporation (which we refer to voteas “Ameris”), and Fidelity Southern Corporation, a Georgia corporation (which we refer to approve theas “Fidelity”), have entered into an Agreement and Plan of Merger, dated November 16, 2017, between Ameris and Atlantic, pursuantDecember 17, 2018, as may be amended from time to which Atlantictime (which we refer to as the “merger agreement”). Under the merger agreement, Fidelity will merge with and into Ameris, with Ameris continuing as the surviving company subjectcorporation (which we refer to as the terms“merger”). Immediately following the completion of the merger, Fidelity’s wholly owned subsidiary, Fidelity Bank, a Georgia state-chartered bank (which we refer to as “Fidelity Bank”), will merge with and conditions contained ininto Ameris’s wholly owned subsidiary, Ameris Bank, a Georgia state-charted bank (which we refer to as “Ameris Bank”), with Ameris Bank continuing as the Merger Agreement, includingsurviving bank (which we refer to as the transactions provided for in the Merger Agreement, a“bank merger”). A copy of whichthe merger agreement is included inattached to this joint proxy statement/prospectus as AppendixAnnex A. We urge you to read carefully this joint proxy statement/prospectus and the merger agreement in their entirety.
​
Fidelity will hold a special meeting of holders of common stock of Fidelity (which we refer to as “Fidelity shareholders”) on [•], at [•] a.m. Eastern Time, at [•] (which we refer to as the “Fidelity special meeting”), and Ameris will hold a special meeting of holders of common stock of Ameris (which we refer to as “Ameris shareholders”) on [•], at [•] a.m. Eastern Time, at [•] (which we refer to as the “Ameris special meeting”), to obtain the required shareholders approvals.
Q:
Why am I receiving this document?
​
A:
In order to complete the merger, among other things:
​
•
Fidelity shareholders must approve the merger agreement and the transactions contemplated thereby; and
​
•
Ameris shareholders must approve the issuance of shares of common stock, par value $1.00 per share, of Ameris (which we refer to as the “Ameris common stock”), in connection with transactions contemplated by the merger agreement (which we refer to as the “Ameris share issuance”).
​
Atlantic stockholders also are being askedEach of Fidelity and Ameris is sending this joint proxy statement/prospectus to approve: (i) onits shareholders to help them decide how to vote their shares of common stock, no par value per share, of Fidelity (which we refer to as the “Fidelity common stock”) or Ameris common stock, as the case may be, with respect to such matters to be considered at the special meetings.
Information about these special meetings, the merger and the other business to be considered by Fidelity or Ameris shareholders at each of the special meetings is contained in this joint proxy statement/prospectus, and you should read it carefully.
This document constitutes both a non-binding advisory basis,joint proxy statement of Ameris and Fidelity and a prospectus of Ameris. It is a joint proxy statement because each of the compensation that certain executive officersboard of Atlantic will receive under existing agreements with Atlanticdirectors of Ameris (which we refer to as the “Ameris board of directors”) and the board of directors of Fidelity (which we refer to as the “Fidelity board of directors”) is soliciting proxies using this document from its shareholders. It is a prospectus because Ameris, in connection with the merger; and (ii) a proposal providing for one or more adjournments or postponements of the special meeting, if necessary or appropriate, to permit further solicitation of proxies if there are not sufficient votes at the time of the special meeting to approve the merger, proposal.
Q:
Why do Ameris and Atlantic want to merge?
​
A:
We believe the combinationwill issue shares of Ameris common stock to Fidelity shareholders, and Atlantic will create one of the leading community banking franchises in the Jacksonville, Florida market, providing our customers with additional branch locations and market share in such market. The board of directors of Atlantic has determined that the merger is in the best interests of Atlantic and its stockholders, and unanimously recommends that Atlantic stockholders vote “FOR” the merger proposal. For morethis prospectus contains information about the reasons for the merger, see “The Merger — Atlantic’s Reasons for the Merger and the Recommendation of the Atlantic Board of Directors” and “The Merger — Ameris’s Reasons for the Merger.”Ameris common stock.
​
1
TABLE OF CONTENTS
Q:
What will IFidelity shareholders receive in the merger?
​
A:
Unless adjusted pursuantIf the merger is completed, Fidelity shareholders will receive 0.80 shares of Ameris common stock (which ratio we refer to as the terms“exchange ratio” and which shares, together with cash in lieu of fractional shares as discussed below, we refer to as the Merger Agreement,“merger consideration”) for each share of AtlanticFidelity common stock, outstandingexcept for shares of Fidelity common stock held by Fidelity as treasury stock or shares owned by Ameris or by any wholly owned subsidiary of Ameris or Fidelity (other than (i) shares held in trust accounts, managed accounts and the like, or otherwise held in a fiduciary or agency capacity, that are beneficially owned by third parties and (ii) shares held, directly or indirectly, by Ameris, Fidelity or any wholly owned subsidiary of Ameris or Fidelity in respect of a debt previously contracted), they hold immediately prior to the effective time of the merger will be converted into the right to receive: (i) $1.39 in cash, without interest (the “cash consideration”); and (ii) 0.17 shares (the “exchange ratio”) of Ameris common stock, plus cash in lieu of fractional shares (the “stock consideration”). We(which we refer to the cash consideration and the stock consideration to be received for each share of Atlantic common stock as the “per share purchase price.”“effective time”).
​
Q:
What happens if I am entitled to receive a fractional share of Ameris common stock as part of the stock consideration?
​
A:
Ameris will not issue any fractional shares of Ameris common stock in the merger. Rather, Atlantic stockholdersFidelity shareholders who would otherwise be entitled to receive a fractionalfraction of a share of Ameris common stock upon the completion of the merger will instead receive, for the fraction of a share, an amount in cash (computed(rounded to the nearest whole cent) equal to such fractional partbased on the average of a sharethe closing-sale prices of Ameris common stock multiplied byfor the exchange ratio multiplied byfive full trading days ending on the average Ameris stock price (as defined under “The Merger Agreement — Merger Termination; Merger Consideration Adjustments”).
​
​
1
TABLE OF CONTENTS
Q:
Under what circumstances maytrading day immediately prior to the merger consideration be adjusted?
​
A:
The completionclosing date of the merger is subject to a price floor. If the average closing price of one share of Ameris common stock during a specified determination period has declined by more than 15% from its pricemerger.
Based on November 15, 2017, of  $46.95 per share, and Ameris common stock underperforms the KBW Nasdaq Regional Banking Index (KRX) by more than 15% during such period, then Atlantic may terminate the Merger Agreement unless Ameris offsets such reduction in the value of Ameris common stock by:
​
•
increasing the number of shares of Ameris common stock toand Fidelity common stock outstanding as of [•], the latest practicable trading date before the date of this joint proxy statement/prospectus, and based on the exchange ratio of 0.80, it is expected that Ameris shareholders will hold approximately [•]%, and Fidelity shareholders will hold approximately [•]%, of the shares of the combined company outstanding immediately after the effective time.
The merger cannot be issued to Atlantic stockholders: or
​
•
paying additional cash consideration (provided that doing so would not preventcompleted unless, among other things, Fidelity shareholders approve the merger from qualifying as a tax-free reorganization withinagreement and the meaning of Section 368(a) oftransactions contemplated thereby and Ameris shareholders approve the Internal Revenue Code of 1986, as amended (the “Code”)) to Atlantic stockholders.
​
Also, if the June 30, 2018 termination date of the Merger Agreement is extended by either party as contemplated in the Merger Agreement and described under “The Merger Agreement — Termination; Merger Consideration Adjustments,” then provided that it will not cause the merger to fail to qualify as a tax-free reorganization within the meaning of Section 368(a) of the Code, the aggregate cash consideration to be received by Atlantic stockholders in the merger will be increased by the amount of Atlantic’s after-tax net income for the period from January 1, 2018 through June 30, 2018.
Subject to certain exceptions specified in the Merger Agreement, if prior to the effective time of the merger the number of outstanding shares of Ameris common stock or Atlantic common stock is changed as a result of a stock split, reverse stock split, stock dividend, recapitalization, reclassification or similar transaction with respect to such shares, then the stock consideration will be proportionately and appropriately adjusted.
We refer to the aggregate per share purchase price payable in the merger, as may be adjusted as contemplated by the Merger Agreement, as the “merger consideration.”issuance.
Q:
Will the value of the merger consideration change between the date of this joint proxy statement/​prospectus and the time the merger is completed?
​
A:
TheYes. Although the merger consideration is fixed, the value of the merger consideration will fluctuate between the date of this proxy statement/​prospectus and the completion of the merger basedis dependent upon the market value of Ameris common stock. Any fluctuation instock and therefore will fluctuate with the market price of Ameris common stock afterstock. Accordingly, any change in the date of this proxy statement/​prospectus will change the value of the sharesprice of Ameris common stock that Atlantic stockholdersprior to the merger will receive, and will therefore changeaffect the market value of the merger consideration. consideration that Fidelity shareholders will receive as a result of the merger.
​
Based on the 0.17 exchange ratio and the closing price per share of Ameris common stock on the NASDAQNasdaq Global Select Market of  $47.30(which we refer to as the “Nasdaq”), on November 16, 2017,December 14, 2018, the last full trading day before the public announcement of the merger, the exchange ratio represented approximately $27.22 in value of the merger consideration was $9.43 for each share of AtlanticFidelity common stock and approximately $146.7 million in the aggregate.stock. Based on the 0.17 exchange ratio and the closing price per share of Ameris common stock on the NASDAQ Global Select Market on [•[•], 2017, the latest practicable datetrading day before the date of this joint proxy statement/prospectus, the value of the merger consideration was $[exchange ratio represented approximately $[•] in value for each share of AtlanticFidelity common stock and approximately $[•] million in the aggregate. The market prices of both Ameris common stock and Atlantic common stock will fluctuate before the merger is completed.stock. We encourageurge you to obtain current market pricesquotations for shares of Ameris common stock (trading symbol “ABCB”) and Atlanticshares of Fidelity common stock.
​stock (currently listed on the Nasdaq under the trading symbol “LION”).
Q:
How will the merger impact Atlantic restricted shareaffect Fidelity equity awards?
​
A:
At the effective time, ofeach option granted under either the merger, each outstanding award ofFidelity Southern Corporation Incentive Plan or the Fidelity Southern Corporation 2018 Omnibus Incentive Plan (which we refer to as the “Fidelity incentive plans”) to acquire shares of AtlanticFidelity common stock subject(which we refer to vesting, repurchase or other lapse restriction granted pursuantas a “Fidelity option”) that is outstanding and unexercised immediately prior to Atlantic’s equity-based compensation plans (each, an “Atlantic restricted share award”),the effective time will fully vest and be converted automatically into an option to acquire, on the rightsame terms and conditions as were applicable to receivesuch Fidelity option, the merger consideration.number of shares of Ameris common stock (rounded down to the nearest whole share), determined by multiplying (i) the number of shares of Fidelity common stock subject to such
​
As of the date of the Merger Agreement, there were outstanding Atlantic restricted share awards with respect to [•] shares of Atlantic common stock.
​
2
TABLE OF CONTENTS
Q:
Fidelity stock option immediately prior to the effective time by (ii) the exchange ratio, at an exercise price per share of Ameris common stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Fidelity common stock subject to such Fidelity stock option divided by (y) the exchange ratio.
Do anyIn addition, at the effective time, each award of Atlantic’s directorsshares of Fidelity common stock subject to vesting, repurchase or executive officers have interests inother lapse restrictions granted under either of the Fidelity incentive plans (which we refer to as a “Fidelity restricted stock award”) that is outstanding immediately prior to the effective time will fully vest and be cancelled and converted into the right to receive the merger consideration in respect of each share of Fidelity common stock underlying such restricted stock award, including a payment in respect of any fractional shares (together with any accrued but unpaid dividends corresponding to the portion of the restricted stock award that may differ from those of Atlantic stockholders?
​
A:
Atlantic’s directors and executive officers have interests in the merger that are different from, or in addition to, those of Atlantic stockholders generally. The board of directors of Atlantic was aware of and considered these interests, among other matters, in evaluating the merger proposal, and in recommending that Atlantic stockholders approve the merger proposal. For a description of these interests, see “The Merger — Interests of Atlantic Directors and Executive Officers in the Merger.”
​
Q:
Why am I being asked to cast an advisory (non-binding) vote to approve the compensation payable to certain Atlantic executive officers in connection with the merger?
​
A:
The SEC, in accordance with the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd Frank Act”), adopted rules that require Atlantic to seek an advisory (non-binding) vote with respect to certain payments that may be made to certain of Atlantic’s executive officers in connection with the merger.
​vests).
Q:
What will happen if Atlantic stockholders do not approve the merger-related compensation proposal?
​
A:
Certain of Atlantic’s executive officers are entitled, pursuant to the terms of their existing employment agreements with Atlantic, toAmeris shareholders receive certain payments in connection with the merger. If the merger is completed, Atlantic is contractually obligated to make these payments to these executive officers under certain circumstances.
​
Atlantic stockholder approval of the compensation payable to these executive officers in connection with the merger is not a condition to completion of the merger. The vote on the merger-related compensation proposal is advisory and will not be binding on Atlantic (or the combined company that results from the merger) regardless of whether the merger is approved. Accordingly, because the compensation to be paid to certain of Atlantic’s executive officers in connection with the merger is contractual, the compensation will be payable if the merger is completed regardless of the outcome of the non-binding, advisory vote on the merger-related compensation proposal.
Q:
What will happen to Atlantic as a result of the merger?
​
A:
If the merger is completed, then AtlanticAmeris shareholders will be merged withnot receive any merger consideration and intowill continue to hold the shares of Ameris with Ameris as the surviving company.common stock that they currently hold. As a result of the merger, Atlantic will cease to exist, and Atlantic Coast Bank, a Florida state-charted bank and a wholly owned subsidiaryAmeris share issuance, however, the overall ownership percentage of Atlantic, will become a wholly owned subsidiary of Ameris. See “— What will happen to Atlantic Coast BankAmeris shareholders in the combined company following the merger?”
​
In addition, ifmerger will be diluted. Based on the merger is completed, then Atlanticnumber of shares of Ameris common stock and Fidelity common stock outstanding as of [•], the latest practicable trading date before the date of this joint proxy statement/prospectus, and based on the exchange ratio of 0.80, it is expected that Ameris shareholders will be delisted fromhold approximately [•]%, and Fidelity shareholders will hold approximately [•]%, of the NASDAQ Global Market and deregistered undershares of the Exchange Act.combined company outstanding immediately after the effective time.
​
Q:
What will happenam I being asked to Atlantic Coast Bank following the merger?vote on and why is this approval necessary?
​
A:
Immediately afterFidelity Special Meeting:   Fidelity shareholders are being asked to vote on the following matters at the Fidelity special meeting:
​
•
a proposal to approve the merger Atlantic Coast Bank will merge withagreement, a copy of which is attached as Annex A to this joint proxy statement/prospectus, and into Ameris Bank, a Georgia state-charted bank and a wholly owned subsidiary of Ameris, with Ameris Bankthe transactions contemplated thereby (which we refer to as the surviving bank (the “bank merger”“merger proposal”).;
​
Q:•
Doesa proposal to approve, on a non-binding, advisory basis, the board of directors of Atlantic supportcompensation to be paid to Fidelity’s named executive officers that is based on or otherwise relates to the merger?merger, as discussed under “The Merger — Merger-related Compensation for Fidelity’s Named Executive Officers” beginning on page 99 (which we refer to as the “Fidelity compensation proposal”); and
​
A:•
Yes. The boarda proposal to adjourn the Fidelity special meeting, if necessary or appropriate, to permit further solicitation of directors of Atlantic has determined that the Merger Agreement is in the best interests of Atlantic stockholders and unanimously recommends that Atlantic stockholders vote “FOR” the merger proposal. Additionally, the directors and certain executive officers of Atlantic have entered into a Voting and Support Agreement (the “Voting Agreement”) with Ameris and Atlantic pursuant to which they have agreed, among other things, to vote all of the shares of Atlantic common stock they beneficially ownproxies in favor of the merger proposal and(which we refer to as the “Fidelity adjournment proposal. A totalproposal”).
​
Ameris Special Meeting:   Ameris shareholders are being asked to vote on the following matters at the Ameris special meeting:
•
a proposal to approve the Ameris share issuance (which we refer to as the “Ameris share issuance proposal”); and
​
•
a proposal to adjourn the Ameris special meeting, if necessary or appropriate, to permit further solicitation of 1,698,990 shares of Atlantic common stock, representing approximately 10.9%proxies in favor of the outstanding shares of Atlantic common stock entitledAmeris share issuance proposal (which we refer to vote atas the “Ameris adjournment proposal”).
​
Q:
When and where are the Fidelity and Ameris special meetings?
​
A:
Fidelity Special Meeting:   The Fidelity special meeting are subject to the Voting Agreement.will be held on [•], at [•] a.m. Eastern Time, at [•].
​
Ameris Special Meeting:   The Ameris special meeting will be held on [•], at [•] a.m. Eastern Time, at [•].
​
3
TABLE OF CONTENTS
Q:
When do you expect the mergerWho is entitled to be completed?vote at each special meeting?
​
A:Fidelity Special Meeting:
Ameris and Atlantic expect the merger to be completed in the second quarter   All holders of 2018 and are working towards completing the merger as quickly as possible. To do so, the Atlantic stockholders must approve the merger proposal, Ameris must obtain all regulatory approvals necessary to complete the merger, and other customary closing conditions must be satisfied. See “The Merger Agreement — Conditions to Completion of the Merger.” However, it is possible that factors outside the control of both companies could result in the merger being delayed or not completed at all.
​
Q:
Are there risks associated with the merger that I should consider in deciding how to vote?
​
A:
Yes. There are a number of risks related to the merger and the other transactions provided for in the Merger Agreement that are discussed in this proxy statement/prospectus, in the appendices to this proxy statement/prospectus and the documents incorporated by reference into this proxy statement/prospectus. Please read with particular care the detailed description of the risks described in “Risk Factors” and in Ameris’s and Atlantic’s respective SEC filings incorporated by reference herein and referred to in “Where You Can Find More Information” and “Certain Documents Incorporated by Reference.”
​
Q:
When and where is the special meeting of Atlantic stockholders?
​
A:
The special meeting will take place on [•], at [•] a.m., local time, at [•].
​
Q:
Who can vote at the special meeting of Atlantic stockholders?
​
A:
You can vote at the special meeting if you own shares of AtlanticFidelity common stock who held shares at the close of business on [•[•], (which we refer to as the “Fidelity record date fordate”) are entitled to receive notice of and to vote at the Fidelity special meeting. As
Ameris Special Meeting:   All holders of Ameris common stock who held shares at the close of business on that date, approximately [•[•] (which we refer to as the “Ameris record date”) are entitled to receive notice of and to vote at the Ameris special meeting.
Q:
What constitutes a quorum at each special meeting?
​
A:
Fidelity Special Meeting:   The presence, in person or represented by proxy, of at least a majority of the total number of outstanding shares of AtlanticFidelity common stock were outstanding.entitled to vote is necessary in order to constitute a quorum for purposes of the matters being voted on at the Fidelity special meeting.
​
Ameris Special Meeting:   The presence, in person or represented by proxy, of at least a majority of the total number of outstanding shares of Ameris common stock entitled to vote is necessary in order to constitute a quorum for purposes of the matters being voted on at the Ameris special meeting.
Abstentions will be included in determining the number of shares present at the respective special meetings for the purpose of determining the presence of a quorum; however, broker non-votes will not be included.
Q:
What vote is required to approve each proposal at the merger proposal?Fidelity special meeting?
​
A:
The merger proposal:Approval of the merger proposal requires the affirmative vote of at least 66 2∕3% of the holdersoutstanding shares of Fidelity common stock entitled to vote thereon. If you fail to vote, mark “ABSTAIN” on your proxy or fail to instruct your bank, broker or other nominee with respect to the merger proposal, it will have the same effect as a vote “AGAINST” the merger proposal. Fidelity shareholders must approve the merger proposal in order for the merger to occur. If Fidelity shareholders fail to approve the merger proposal, the merger will not occur.
​
The Fidelity compensation proposal:   Assuming a quorum is present, approval of the Fidelity compensation proposal requires the affirmative vote of a majority of the sharesvotes cast on such proposal at the Fidelity special meeting. If you fail to vote, mark “ABSTAIN” on your proxy or fail to instruct your bank, broker or other nominee with respect to the Fidelity compensation proposal, you will not be deemed to have cast a vote with respect to such proposal, and it will have no effect on such proposal. This is an advisory vote, and therefore is not binding on Fidelity or Ameris or the boards of Atlantic common stock outstandingdirectors or the compensation committees of Fidelity or Ameris. Since compensation and benefits to be paid or provided in connection with the merger are based on contractual arrangements with Fidelity’s named executive officers, the record date. Weoutcome of this advisory vote will not affect the obligation to make these payments. Fidelity is seeking this non-binding advisory shareholder approval pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (which we refer to thisas “Dodd-Frank Act”) and Rule 14a-21(c) of the Securities Exchange Act of 1934, as amended (which we refer to as the “requisite Atlantic stockholder approval.”
​
Atlantic stockholders will have one“Exchange Act”), which requires Fidelity to provide its shareholders with the opportunity to vote for each share of Atlantic common stock they own.
Q:
What vote is required to approve, on a non-binding, advisory basis, the merger-related compensation proposal?
​
A:
Approval,that may be paid or become payable to Fidelity’s named executive officers in connection with the merger. The Fidelity compensation proposal gives Fidelity shareholders the opportunity to express their views on a non-binding advisory basis, of the merger-related compensation proposal requires the affirmative vote of the holders of a majority of the shares of Atlantic common stock represented in person or by proxy at the special meeting.
​
Q:
What vote isFidelity’s named executive officers. Fidelity shareholders are not required to approve the adjournment proposal?
​Fidelity compensation proposal in order for the merger to occur.
A:The Fidelity adjournment proposal:
Approval   Assuming a quorum is present, approval of the Fidelity adjournment proposal requires the affirmative vote of the holders of a majority of the shares of Atlantic common stock represented in person or by proxyvotes cast on such proposal at the Fidelity special meeting.
​
Q:
Are participants in the Atlantic Coast Financial Corporation Employee Stock Ownership able to vote?
​
A:
Yes. Participants in the Atlantic Coast Financial Corporation Employee Stock Ownership (the “Atlantic ESOP”) will each receive a Voting Instruction Form that reflects all of the shares that the participant may direct the Atlantic ESOP trustee If you fail to vote, mark “ABSTAIN” on hisyour proxy or her behalf underfail to instruct your bank, broker or other nominee with respect to the Atlantic ESOP. UnderFidelity adjournment proposal, you will not be deemed to have cast a vote with respect to such proposal, and it will have no effect on such proposal. Fidelity shareholders are not required to approve the terms ofFidelity adjournment proposal in order for the Atlantic ESOP, the Atlantic ESOP trustee votes all shares held by the Atlantic ESOP, but each Atlantic ESOP participant may direct the trustee howmerger to vote the shares of Atlantic common stock allocated to his or her account. The Atlantic ESOP trustee will vote all unallocated shares of Atlantic common stock held by the Atlantic ESOP and allocated shares for which no voting instructions are received in the same proportion as shares for which it has received timely voting instructions.occur.
​
​
4
TABLE OF CONTENTS
Q:
What vote is required to approve each proposal at the Ameris special meeting?
​
A:
Ameris share issuance proposal:   Assuming a quorum is present, approval of the Ameris share issuance proposal requires the affirmative vote of a majority of the votes cast on such proposal at the Ameris special meeting. If you fail to vote, mark “ABSTAIN” on your proxy or fail to instruct your bank, broker or other nominee with respect to the Ameris share issuance proposal, you will not be deemed to have cast a vote with respect to such proposal, and it will have no effect on such proposal. Ameris shareholders must approve the Ameris share issuance proposal in order for the merger to occur. If Ameris shareholders fail to approve the Ameris share issuance proposal, the merger will not occur.
​
Ameris adjournment proposal:   Assuming a quorum is present, approval of the Ameris adjournment proposal requires the affirmative vote of a majority of the votes cast on such proposal at the Ameris special meeting. If you fail to vote, mark “ABSTAIN” on your proxy or fail to instruct your bank, broker or other nominee with respect to the Ameris adjournment proposal, you will not be deemed to have cast a vote with respect to such proposal, and it will have no effect on such proposal. Ameris shareholders are not required to approve the Ameris adjournment proposal in order for the merger to occur. If Ameris shareholders fail to approve the Ameris adjournment proposal, but approve the Ameris share issuance proposal, the merger may nonetheless occur.
Q:
What are the conditions to complete the merger?
​
A:
The obligations of Ameris and Fidelity to complete the merger are subject to the satisfaction or waiver of certain closing conditions contained in the merger agreement, including the receipt of required regulatory approvals, tax opinions, approval of the merger proposal by Fidelity shareholders and approval of the Ameris share issuance proposal by Ameris shareholders. For more information, see “The Merger Agreement — Conditions to Complete the Merger” beginning on page 115.
​
Q:
When will the merger be completed?
​
A:
We will complete the merger when all of the conditions to completion contained in the merger agreement are satisfied or waived, including the receipt of required regulatory approvals, approval of the merger proposal by Fidelity shareholders and approval of the Ameris share issuance proposal by Ameris shareholders. While we expect the merger to be completed during the second quarter of 2019, because fulfillment of some of the conditions to completion of the merger is not entirely within our control, we cannot assure you that the merger will be completed within such time period or at all.
​
Q: How does the Fidelity board of directors and the Ameris board of directors recommend that I vote?
A:
The Fidelity board of directors unanimously recommends that Fidelity shareholders vote “FOR” the merger proposal, “FOR” the Fidelity compensation proposal and “FOR” the Fidelity adjournment proposal (if necessary or appropriate).
​
The Ameris board of directors unanimously recommends that Ameris shareholders vote “FOR” the Ameris share issuance proposal and “FOR” the Ameris adjournment proposal (if necessary or appropriate).
Q:
What do I need to do now?
​
A:
Please readAfter carefully reading and considering the information contained in or incorporated by reference into this joint proxy statement/prospectus, and decide how you wish toincluding its annexes, please vote your shares and then indicate that vote on the proxy card included with this proxy statement/prospectus. Sign and return the proxy card in the enclosed prepaid return envelope as soon as possible so that your shares maywill be represented and voted at your respective company’s special meeting. Please follow the special meeting to be held on [•]. Alternatively, you may vote through the Internet or by telephone. Information and applicable deadlines for voting through the Internet or by telephone areinstructions set forth inherein or on the enclosed proxy card instructions.or on the voting instruction form provided by your broker, bank or other nominee if your shares are held in the name of your broker, bank or other nominee.
​
​
5
TABLE OF CONTENTS
Q:
What ifHow do I do not vote?
​
A:
If you are a shareholder of record of Fidelity as of [•], the Fidelity record date, you may submit your proxy before the Fidelity special meeting in any of the following ways:
​
•
by mail, by completing, signing, dating and returning the enclosed proxy card to Fidelity using the enclosed postage-paid envelope;
​
•
by telephone, by calling toll-free [•] and following the recorded instructions; or
​
•
via the Internet, by accessing the website [•] and following the instructions on the website.
​
If you are a shareholder of record of Ameris as of [•], the Ameris record date, you may submit your proxy before the Ameris special meeting in any of the following ways:
•
by mail, by completing, signing, dating and returning the enclosed proxy card to Ameris using the enclosed postage-paid envelope;
​
•
by telephone, by calling toll-free [•] and following the recorded instructions; or
​
•
via the Internet, by accessing the website [•] and following the instructions on the website.
​
If you intend to submit your proxy by telephone or via the Internet, you must do so by [11:59 P.M. Eastern Time] on the day before your respective company’s special meeting. If you intend to submit your proxy by mail, your completed proxy card must be received prior to your respective company’s special meeting.
If you are a shareholder of record of Fidelity as of the Fidelity record date, or a shareholder of record of Ameris as of the Ameris record date, you may also cast your vote in person at your respective company’s special meeting. If you plan to attend your respective company’s special meeting, you must hold your shares in your own name or have a letter from the record holder of your shares confirming your ownership. In addition, you must bring a form of personal photo identification with you in order to be admitted to the meeting. Each of Fidelity and Ameris reserves the right to refuse admittance to anyone without proper proof of stock ownership or without proper photo identification. Whether or not you intend to be present at your special meeting, you are urged to complete, sign, date and return the enclosed proxy card to Fidelity or Ameris, as applicable, in the enclosed postage-paid envelope or submit a proxy by telephone or via the Internet as described on the enclosed instructions as soon as possible. If you are then present and wish to vote then ityour shares in person, your original proxy may be revoked by attending and voting at the relevant company’s special meeting.
If you hold your shares in “street name” through a broker, bank or other nominee, your broker, bank or other nominee will havesend you separate instructions describing the same effect asprocedure for voting your shares. If your shares againstare held in “street name,” you must obtain a legal proxy, executed in your favor, from the merger proposal; however, it will have no effect onrecord holder of your shares, such as a broker, bank or other nominee, to vote your shares in person at the outcome of the merger-related compensation proposal or the adjournment proposal.
​relevant company’s special meeting.
Q:
If my shares are held in “street name” by mya broker, bank or other nominee, will my broker, bank or other nominee vote my shares for me?
​
A:
No. Your broker, will not be ablebank or other nominee cannot vote your shares unless you provide instructions to your broker, bank or other nominee on how to vote. If your shares are held in “street name” by a broker, bank or other nominee, you must provide such broker, bank or other nominee with instructions on how to vote your shares. Please follow the voting instructions provided by your broker, bank or other nominee. Please note that you may not vote shares withoutheld in “street name” by returning a proxy card directly to Fidelity or Ameris or by voting in person at your respective company’s special meeting unless you provide a legal proxy, executed in your favor, from the record holder of your shares, such as a broker, bank or other nominee. In addition to such legal proxy, if you plan to attend your respective company’s special meeting, but are not a shareholder of record because you hold your shares in “street name,” please bring evidence of your beneficial ownership of your shares and valid photo identification with you to such company’s special meeting.
​
​
6
TABLE OF CONTENTS
Under the applicable rules of the New York Stock Exchange (which we refer to as the NYSE), brokers who hold shares in “street name” for a beneficial owner of those shares typically have the authority to vote in their discretion on “routine” proposals when they have not received instructions from you. You shouldbeneficial owners. However, brokers are not permitted to exercise their voting discretion with respect to the approval of matters that the NYSE determines to be “non-routine” without specific instructions from the beneficial owner. It is expected that all proposals to be voted on at the Fidelity special meeting and the Ameris special meeting are “non-routine” matters. Broker non-votes occur when a broker or nominee is not instructed by the beneficial owner of shares to vote on a particular proposal for which the broker does not have discretionary voting power.
If you are a Fidelity shareholder holding your shares in “street name” and you do not instruct your broker, bank or other nominee on how to vote your shares followingof Fidelity common stock, your broker, bank or other nominee will: (i) not vote your shares on the directions provided bymerger proposal, which broker non-votes will have the same effect as a vote “AGAINST” such proposal; and (ii) will not vote your broker.shares on the Fidelity compensation proposal or the Fidelity adjournment proposal, which broker non-votes will have no effect on the vote count for these proposals.
If you are an Ameris shareholder holding your shares in “street name” and you do not instruct your broker, bank or other nominee on how to vote your shares of Ameris common stock, your broker, bank or other nominee will not vote your shares on the Ameris share issuance proposal or the Ameris adjournment proposal, which broker non-votes will have no effect on the vote count for these proposals.
Q:
What if I attend the meeting and abstain or do not vote?
​
A:
For purposes of each of the Fidelity special meeting and the Ameris special meeting, an abstention occurs when a shareholder attends the applicable special meeting in person and does not vote or returns a proxy with an “ABSTAIN” vote.
​
•
For the Fidelity merger proposal, an abstention or failure to vote will have the same effect as a vote cast “AGAINST” such proposal.
​
•
For the Fidelity compensation proposal and Fidelity adjournment proposal, and the Ameris share issuance proposal and Ameris adjournment proposal, an abstention or failure to vote will have no effect on the outcome of the vote. For each of these proposals, abstentions are not treated as votes cast and will have no effect on the outcome of the vote, though abstentions are counted towards establishing a quorum.
​
Q:
CanWhat will happen if I changereturn my proxy card without indicating how to vote?
​
A:
If you sign and return your proxy card without indicating how to vote on any particular proposal, the shares of Fidelity common stock represented by your proxy will be voted as recommended by the Fidelity board of directors with respect to such proposal, or revokethe shares of Ameris common stock represented by your proxy will be voted as recommended by the Ameris board of directors with respect to such proposal, as the case may be.
​
Q:
May I change my vote after I have mailedsubmitted my signed proxy card?
​
A:
Yes. There are three ways in which you may revoke your proxy and change your vote.
​
First, you may send a written notice to Atlantic’s Corporate Secretary stating that you would like to revoke your proxy. Second, you may complete and submit a new proxy card (or you can vote again via the Internet or by telephone). Third, you may attend the special meeting and vote in person. Simply attending the special meeting, however, will not revoke your proxy.
Q:
Can I exercise dissenters’ rights in connection with the merger?voting instruction card?
​
A:
No, under Maryland law Atlantic stockholdersYes. If you are not eligible to exercise dissenters’ rights in connection witha holder of record of Fidelity common stock or Ameris common stock and you have previously submitted your proxy, you may change your vote at any time before your proxy is voted at the merger.Fidelity special meeting or the Ameris special meeting, as applicable, by taking any of the following actions:
​
•
delivering a written notice bearing a date later than the date of your proxy to the Corporate Secretary of Fidelity or Ameris, as applicable, stating that you revoke your proxy, which notice must be received by Fidelity or Ameris, as applicable, prior to the beginning of your respective company’s special meeting;
​
​
7
TABLE OF CONTENTS
•
completing, signing, dating and returning a new proxy card to the Corporate Secretary of Fidelity or Ameris, as applicable, relating to the same shares of Fidelity common stock or Ameris common stock, as applicable, and bearing a later date, which new proxy card must be received by Fidelity or Ameris, as applicable, prior to the beginning of your respective company’s special meeting;
​
•
casting a new vote by telephone or via the Internet at any time before [11:59 P.M. Eastern Time] on the day before your respective company’s special meeting; or
​
•
attending your respective company’s special meeting and voting in person, although attendance at the special meeting will not, by itself, revoke a proxy.
​
If you are a shareholder of record of Fidelity or Ameris and you choose to send a written notice of revocation or mail a new proxy, you must submit such notice of revocation or such new proxy to, in the case of Fidelity, to Fidelity Southern Corporation, Attention: Corporate Secretary, 3490 Piedmont Road, Suite 1550, Atlanta Georgia 30305, or, in the case of Ameris, to Ameris Bancorp, Attention: Corporate Secretary, 310 First Street, S.E., Moultrie, Georgia 31768. If you have instructed a broker, bank or other nominee to vote your shares of Fidelity common stock or shares of Ameris common stock, as applicable, you must follow the directions you receive from your broker, bank or other nominee in order to change or revoke your vote.
Q:
Should I send in my stock certificates now?Are Fidelity shareholders entitled to appraisal rights or dissenters’ rights?
​
A:
No, please do NOT return your stock certificate(s) with your proxy. You should wait until you receiveNo. Fidelity shareholders will not be entitled to appraisal rights or dissenters’ rights. For further information, see “The Merger — Appraisal Rights in the letter of transmittal that will be mailed shortly after the merger and then you should submit your Atlantic stock certificate(s) along with the completed letter of transmittal. The letter of transmittal will be accompanied by instructions explaining how to complete the letter of transmittal and deliver it and your stock certificate(s) or book-entry shares to the exchange agent for the merger.Merger” beginning on page 101.
​
Q:
What are the material United StatesU.S. federal income tax consequences of the merger to Atlantic stockholders?Fidelity shareholders?
​
A:
The mergerIt is intended tothat the merger qualify as a tax-free reorganization“reorganization” within the meaning of Section 368(a) of the Internal Revenue Code and itof 1986, as amended (which we refer to as the “Code”). It is a condition to the respective obligationscompletion of Ameris and Atlantic to complete the merger that eachAmeris and Fidelity receive written opinions from their respective legal counsel to the effect that the merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. If the merger so qualifies, a U.S. holder (as defined under “Material U.S. Federal Income Tax Consequences of the Merger” beginning on page 29) of Fidelity common stock generally will not recognize gain or loss for U.S. federal income tax purposes upon the exchange of shares of Fidelity common stock for shares of Ameris and Atlantic receives a legal opinion to that effect. Accordingly, an Atlantic stockholder generally will recognize gain, but not loss, in an amount equal to the lesser of: (i) the amount of gain realized (i.e., the excess of the sum of the amount of cash and the fair market value of the Ameris common stock received pursuant to the merger, over that holder’s adjusted tax basis in its shares of Atlantic common stock surrendered); and (ii) the amount of cash received pursuant to the merger. Further, an Atlantic stockholder generally will recognize gain or lossexcept with respect to cash received in lieuinstead of fractional shares of Ameris common stock that the Atlantic stockholder would otherwise be entitled to receive.stock. For further information, see “Material U.S. Federal Income Tax Consequences.”Consequences of the Merger” beginning on page 29.
​
The United States federal income tax consequences described above may not apply to allAll holders of AtlanticFidelity common stock. Yourstock should consult their own tax consequences will depend on your individual situation. Accordingly, we strongly urge you to consult your tax advisoradvisors for a full understanding of the particular tax consequences of the merger to you.them.
Q:
What happens if the merger is not completed?
​
A:
If the merger is not completed, Fidelity shareholders will not receive any consideration for their shares of Fidelity common stock in connection with the merger. Instead, Fidelity will remain an independent public company and Fidelity common stock will continue to be listed on the Nasdaq. In addition, if the merger agreement is terminated in certain circumstances, Fidelity may be required to pay Ameris a fee with respect to such termination. See “The Merger Agreement — Termination of the Merger Agreement” and “The Merger Agreement — Termination Fee” beginning on pages 116 and 117, respectively.
​
Q:
What happens if I sell my shares after the applicable record date but before the relevant company’s special meeting?
​
A:
Each of the Fidelity record date and the Ameris record date is earlier than the date of the Fidelity special meeting or Ameris special meeting, as applicable, and earlier than the date that the merger is expected to be completed. If you sell or otherwise transfer your shares of Fidelity common stock or Ameris common stock, as applicable, after the applicable record date but before the date of the
​
​
5
8
TABLE OF CONTENTS
applicable special meeting, you will retain your right to vote at such special meeting, but, with respect to Fidelity common stock, you will not have the right to receive the merger consideration to be received by Fidelity shareholders in connection with the merger. In order to receive the merger consideration, you must hold your shares of Fidelity common stock through completion of the merger.
Q:
Whom shouldWhat do I call with questionsdo if I receive more than one joint proxy statement/prospectus or to obtain additional copiesset of this proxy statement/prospectus?voting instructions?
​
A:
Fidelity shareholders and Ameris shareholders may receive more than one set of voting materials, including multiple copies of this joint proxy statement/prospectus and multiple proxy cards or voting instruction forms. For example, if you hold shares of Fidelity common stock in more than one brokerage account, you will receive a separate voting instruction form for each brokerage account in which you hold such shares. If you hold shares directly as a record holder and also in “street name” or otherwise through a nominee, you will receive more than one joint proxy statement/prospectus and/or set of voting instructions relating to the special meeting. These should each be voted and/or returned separately in order to ensure that all of your shares are voted.
​
Q:
Should Fidelity shareholders send in their stock certificates now?
​
A:
No. Fidelity shareholders SHOULD NOT send in any stock certificates now. After the merger is complete, you will receive separate written instructions for surrendering your shares of Fidelity common stock in exchange for the merger consideration. In the meantime, you should retain your stock certificates because they are still valid. Please do not send in your stock certificates with your proxy card.
​
Q:
What should I do if I hold my shares of Fidelity common stock in book-entry form?
​
A:
At this time, you are not required to take any additional actions, in connection with the conversion at the effective time of your shares of Fidelity common stock into shares of Ameris common stock, if your shares of Fidelity common stock are held in book-entry form. After the completion of the merger, you will receive separate instructions for surrendering your shares of Fidelity common stock held in book-entry form in exchange for book-entry shares of Ameris common stock.
​
Q:
Will a proxy solicitor be used?
​
A:
Yes. Fidelity has engaged [•] (which we refer to as [•]) to assist in the solicitation of proxies for the Fidelity special meeting, and estimates it will pay [•] a fee of approximately [•] plus certain expenses. Fidelity has also agreed to indemnify [•] against certain losses. Ameris has engaged [•] (which we refer to as [•]) to assist in the solicitation of proxies for the Ameris special meeting, and estimates it will pay [•] a fee of approximately $[•] plus certain expenses. Ameris has also agreed to indemnify [•] against certain losses. In addition, Fidelity, Ameris and their respective officers and employees may also solicit proxies by mail, telephone, facsimile, electronic mail or in person, but no additional compensation will be paid to them.
​
Q:
Where can I find more information about the companies?
​
A:
You can find more information about Fidelity and Ameris from the various sources described under “Where You Can Find More Information” beginning on page 159.
​
Q:
What is householding and how does it affect me?
​
A:
The SEC permits companies to send a single set of proxy materials to any household at which two or more shareholders reside, unless contrary instructions have been received, but only if the applicable shareholders provide advance notice and follows certain procedures. In such cases, each shareholder continues to receive a separate notice of the meeting and proxy card. Certain brokerage firms may have instituted householding for beneficial owners of Fidelity common stock or Ameris common stock, as applicable, held through brokerage firms. If your family has multiple accounts holding Fidelity common stock or Ameris common stock, as applicable, you may have already received a householding notification from your broker. Please contact your broker directly if you have any questions or require
​
​
9
TABLE OF CONTENTS
additional copies of this joint proxy statement/prospectus. The broker will arrange for delivery of a separate copy of this joint proxy statement/prospectus promptly upon your written or oral request. You may decide at any time to revoke your decision to household, and thereby receive multiple copies.
Q:
Whom should I contact if I have any questions about the proxy materials or voting?
​
A:
You may contact Fidelity or Ameris at the telephone numbers listed under “References to Additional Information” in the forefront of this joint proxy statement/prospectus. If you have any questions about the merger,proxy materials or if you need assistance in submitting your proxy or voting your shares of Atlantic common stock, or need additional copies of this joint proxy statement/prospectus or the enclosed proxy card(s)card, you should contact the proxy solicitation agent for the company in which you hold shares. If you are a Fidelity shareholder, you should contact [•], pleasethe proxy solicitation agent for Fidelity, toll-free at [•]. If you are an Ameris shareholder, you should contact Atlantic’s Corporate Secretary[•], the proxy solicitation agent for Ameris, toll-free at (904) 903-2683.[•].
​
​
610
TABLE OF CONTENTS​
SUMMARY
This following summary highlights selected information fromincluded in this joint proxy statement/prospectus. Itprospectus and does not contain all of the information that ismay be important to you. Each item inYou should read this summary refers to the page where that subject is discussed in more detail. For more information about the merger, the Merger Agreemententire document and the special meeting, you should carefully read the entire proxy statement/prospectus, including theits appendices and the other documents attached to or incorporatedwhich we refer before you decide how to vote. In addition, we incorporate by reference important business and financial information about Ameris and Fidelity into this joint proxy statement/prospectus. See “Where You Can Find More Information” beginning on page 159. Each item in this summary includes a page reference directing you to a more complete description of that item.
The Merger (page 56)
Ameris and Fidelity have entered into the merger agreement pursuant to which Fidelity will merge with and into Ameris, with Ameris continuing as the surviving corporation. Immediately following the completion of the merger, Fidelity Bank will merge with and into Ameris Bank, with Ameris Bank continuing as the surviving bank.
The merger agreement governs the merger. The merger agreement is attached to this joint proxy statement/prospectus as Annex A. All descriptions in this summary and elsewhere in this joint proxy statement/prospectus of the terms and conditions of the merger are qualified in their entirety by reference to the merger agreement. Please read the merger agreement carefully for a more complete understanding of the merger.
The terms and conditions of the bank merger are set forth in a separate merger agreement (which we refer to as the “bank merger agreement”), which was executed by Ameris Bank and Fidelity Bank in connection with the execution of the merger agreement. The form of the bank merger agreement is attached to the merger agreement as Exhibit A.
The Merger Consideration (page 103)
If the merger is completed, each share of Fidelity common stock outstanding immediately prior to the effective time of the merger, except shares of Fidelity common stock held by Fidelity as treasury stock or shares owned by Ameris or by any wholly owned subsidiary of Ameris or Fidelity (other than (i) shares held in trust accounts, managed accounts and the like, or otherwise held in a fiduciary or agency capacity, that are beneficially owned by third parties and (ii) shares held, directly or indirectly, by Ameris, Fidelity or any wholly owned subsidiary of Ameris or Fidelity in respect of a debt previously contracted), will be converted into the right to receive 0.80 shares of Ameris common stock. Fidelity shareholders who would otherwise be entitled to a fraction of a share of Ameris common stock upon the completion of the merger will instead receive, for the fraction of a share, an amount in cash (rounded to the nearest whole cent) based on the average of the closing-sale prices of Ameris common stock for the five full trading days ending on the trading day preceding the closing date of the merger.
As a result of the foregoing, based on the number of shares of Ameris common stock and Fidelity common stock outstanding as of [•], the latest practicable trading date before the date of this joint proxy statement/prospectus, and based on the exchange ratio of 0.80, it is expected that Ameris shareholders will hold approximately [•]%, and Fidelity shareholders will hold approximately [•]%, of the shares of the combined company outstanding immediately after the effective time. Ameris common stock is listed on the Nasdaq under the symbol “ABCB,” and Fidelity common stock is listed on the Nasdaq under the symbol “LION.” The following table shows the closing sale prices of Ameris common stock and Fidelity common stock as reported on the Nasdaq, on December 14, 2018, the last trading day before the public announcement of the merger, and on [•], 2018, the latest practicable trading day before the date of this joint proxy statement/prospectus. The table also shows the implied value of the merger consideration payable for each share of Fidelity common stock, which we calculated by multiplying the closing price per share of Ameris common stock on those dates by the exchange ratio of 0.80.
11
TABLE OF CONTENTS
​​​Ameris
Common
Stock		​​Fidelity
Common
Stock		​​Implied Value of
One Share of
Fidelity
Common
Stock		​
December 14, 2018​​​$34.02​​​​$21.42​​​​$27.22​​
[•]​​​$[•]​​​​$[•]​​​​$[•]​​
Treatment of Fidelity Equity Awards (page 104)
At the effective time: (i) each outstanding Fidelity option will fully vest and be converted into an option to acquire, on the same terms and conditions as were applicable to such Fidelity option, the number of shares of Ameris common stock (rounded down to the nearest whole share), determined by multiplying (x) the number of shares of Fidelity common stock subject to such Fidelity stock option immediately prior to the effective time by (y) the exchange ratio, at an exercise price per share of Ameris common stock (rounded up to the nearest whole cent) equal to (A) the exercise price per share of Fidelity common stock subject to such Fidelity stock option divided by (B) the exchange ratio; and (ii) each outstanding Fidelity restricted stock award will fully vest and be cancelled and converted into the right to receive the merger consideration in respect of each share of Fidelity common stock underlying such restricted stock award,including a payment in respect of any fractional shares (together with any accrued but unpaid dividends corresponding to the portion of the restricted stock award that vests).
Recommendation of the Fidelity Board of Directors (page 60)
The Fidelity board of directors has unanimously: (i) determined that the merger agreement and the transactions contemplated thereby, including the merger, are in the best interests of Fidelity and the Fidelity shareholders; and (ii) adopted the merger agreement and approved the execution, delivery and performance by Fidelity of the merger agreement and the consummation of the transactions contemplated thereby, including the merger. The Fidelity board of directors unanimously recommends that the Fidelity shareholders vote “FOR” the merger proposal, “FOR” the Fidelity compensation proposal and “FOR” the Fidelity adjournment proposal. See “The Merger — Fidelity’s Reasons for the Merger; Recommendation of the Fidelity Board of Directors” beginning on page 60.
Opinion of Fidelity’s Financial Advisors (pages 65 and 78 and Annexes C and D)
Opinion of Sandler O’Neill & Partners, L.P.
On December 16, 2018, Sandler O’Neill & Partners, L.P. (which we refer to as “Sandler O’Neill”) rendered its oral opinion, which was later confirmed in writing, to the Fidelity board of directors to the effect that, as of the date of the opinion and based upon and subject to the procedures followed, assumptions made, matters considered and qualifications and limitations set forth in the opinion, the exchange ratio was fair to the holders of Fidelity common stock, from a financial point of view. The full text of the Sandler O’Neill written opinion, which sets forth the assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached to this joint proxy statement/prospectus as Annex C. Fidelity shareholders are urged to read the opinion in its entirety. Sandler O’Neill’s opinion speaks only as of the date of the opinion and was necessarily based on financial, economic, market and other conditions as they existed on, and the information made available to Sandler O’Neill as of, the date of Sandler O’Neill’s opinion. The Sandler O’Neill written opinion is addressed to the Fidelity board of directors, is directed only to the fairness of the exchange ratio to the holders of Fidelity common stock, from a financial point of view, and does not constitute a recommendation as to how any Fidelity shareholder should vote with respect to the merger proposal, the Fidelity compensation proposal, or any other proposals presented at the Fidelity special meeting.
For further information, see “The Merger — Opinion of Sandler O’Neill & Partners, L.P.,” beginning on page 65.
12
TABLE OF CONTENTS
Opinion of FIG Partners, LLC
On December 16, 2018, FIG Partners, LLC (which we refer to as “FIG Partners”) rendered its oral opinion, which was later confirmed in writing, to the Fidelity board of directors that, based upon and subject to the various considerations set forth in its opinion, the merger consideration to be paid to the Fidelity shareholders is fair to the Fidelity shareholders from a financial point of view. The full text of the FIG Partners written opinion, which sets forth the assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached to this joint proxy statement/prospectus as Annex D. Fidelity shareholders are urged to read the opinion in its entirety. FIG Partners’ opinion speaks only as of the date of the opinion and was necessarily based on financial, economic, market and other conditions as they existed on, and the information made available to FIG Partners as of, the date of its opinion. The FIG Partners written opinion is addressed to the Fidelity board of directors, is directed only to the fairness of the merger consideration to the holders of Fidelity common stock, from a financial point of view, and does not constitute a recommendation as to how any Fidelity shareholder should vote with respect to the merger proposal, the Fidelity compensation proposal or any other proposals presented at the Fidelity special meeting.
For further information, see “The Merger — Opinion of FIG Partners, LLC,” beginning on page 78.
Recommendation of the Ameris Board of Directors (page 86)
The Ameris board of directors has unanimously: (i) determined that the merger agreement and the transactions contemplated thereby, including the merger, are in the best interests of Ameris and the Ameris shareholders; and (ii) adopted the merger agreement and approved the execution, delivery and performance by Ameris of the merger agreement and the consummation of the transactions contemplated thereby, including the merger and the Ameris share issuance. The Ameris board of directors unanimously recommends that Ameris shareholders vote “FOR” the Ameris share issuance proposal and “FOR” the Ameris adjournment. See “The Merger — Ameris’s Reasons for the Merger; Recommendation of the Ameris Board of Directors” beginning on page 86.
Opinion of Ameris’s Financial Advisor (page 88 and Annex E)
On December 16, 2018, Stephens Inc. (which we refer to as “Stephens”) rendered its oral opinion, which was later confirmed in writing, to the Ameris board of directors that, as of the date of the opinion and based upon and subject to the procedures followed, assumptions made, matters considered and qualifications and limitations set forth in the opinion, the consideration to be given by Ameris in the merger is fair to Ameris from a financial point of view. The full text of the Stephens written opinion, which sets forth the assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached to this joint proxy statement/prospectus as Annex E. Ameris shareholders are urged to read the opinion in its entirety. Stephens’s opinion speaks only as of the date of the opinion and was necessarily based on financial, economic, market and other conditions as they existed on, and the information made available to Stephens as of, the date of Stephens’s opinion. The Stephens written opinion is addressed to the Ameris board of directors, is directed only to the fairness to Ameris of the consideration to be given by Ameris in the merger, from a financial point of view, and does not constitute a recommendation as to how any Ameris shareholder should vote with respect to the Ameris share issuance proposal or any other proposal presented at the Ameris special meeting.
For further information, see “The Merger — Opinion of Stephens Inc.,” beginning on page 88.
Fidelity Special Meeting (page 113)
The Fidelity special meeting will be held on [•], at [•] a.m. Eastern Time, at [•]. At the Fidelity special meeting, Fidelity shareholders will be asked to approve the merger proposal, the Fidelity compensation proposal and the Fidelity adjournment proposal (if necessary or appropriate).
The Fidelity board of directors has fixed the close of business on [•] as the record date for determining the holders of Fidelity common stock entitled to receive notice of, and to vote at, the Fidelity special meeting. As of the Fidelity record date, there were [•] shares of Fidelity common stock outstanding and entitled to vote at the Fidelity special meeting held by [•] holders of record.
13
TABLE OF CONTENTS
The presence, in person or represented by proxy, of at least a majority of the total number of outstanding shares of Fidelity common stock entitled to vote is necessary in order to constitute a quorum for purposes of the matters being voted on at the Fidelity special meeting.
Each share of Fidelity common stock entitles the holder thereof to one vote at the Fidelity special meeting on each proposal to be considered at the Fidelity special meeting. As of the Fidelity record date, directors and executive officers of Fidelity and their affiliates owned and were entitled to vote [•] shares of Fidelity common stock, representing approximately [•]% of the shares of Fidelity common stock issued and outstanding on that date.
Each director of Fidelity who beneficially owns 1% or more of the outstanding Fidelity common stock, solely in such director’s capacity as a Fidelity shareholder, has entered into a voting and support agreement with Ameris and Fidelity, the form of which is attached as Annex B to this joint proxy statement/​prospectus (which we refer to as the “voting agreement”), pursuant to which such director has agreed to vote in favor of the merger proposal and against any alternative acquisition proposal. As of the Fidelity record date, the directors of Fidelity who are parties to the voting agreement were entitled to vote approximately [•] shares of Fidelity common stock representing approximately [•]% of the shares of Fidelity common stock outstanding on that date.
Fidelity currently expects that its directors who are not party to the voting agreement and its executive officers will vote their shares in favor of the merger proposal, the Fidelity compensation proposal and the Fidelity adjournment proposal (if necessary or appropriate), although none of them has entered into any agreements obligating them to do so. As of the record date, Ameris did not beneficially hold any shares of Fidelity common stock.
Approval of the merger proposal requires the affirmative vote of at least 662∕3% of the outstanding shares of Fidelity common stock entitled to vote thereon. Assuming a quorum is present, approval of the Fidelity compensation proposal and Fidelity adjournment proposal (if necessary or appropriate) requires the affirmative vote of a majority of the votes cast on such proposal at the Fidelity special meeting. Fidelity shareholders must approve the merger proposal in order for the merger to occur. Fidelity shareholders are not, however, required to approve the Fidelity compensation proposal or the Fidelity adjournment proposal in order for the merger to occur.
Ameris Special Meeting (page 48)
The Ameris special meeting will be held on [•], at [•] a.m. Eastern Time, at [•]. At the Ameris special meeting, Ameris shareholders will be asked to approve the Ameris share issuance proposal and the Ameris adjournment proposal (if necessary or appropriate).
The Ameris board of directors has fixed the close of business on [•] as the record date for determining the holders of Ameris common stock entitled to receive notice of, and to vote at, the Ameris special meeting. As of the Ameris record date, there were [•] shares of Ameris common stock outstanding and entitled to vote at the Ameris special meeting held by [•] holders of record.
The presence, in person or represented by proxy, of at least a majority of the total number of outstanding shares of Ameris common stock entitled to vote is necessary in order to constitute a quorum for purposes of the matters being voted on at the Ameris special meeting.
Each share of Ameris common stock entitles the holder thereof to one vote at the Ameris special meeting on each proposal to be considered at the Ameris special meeting. As of the Ameris record date, directors and executive officers of Ameris and their affiliates owned and were entitled to vote [•] shares of Ameris common stock, representing approximately [•]% of the shares of Ameris common stock issued and outstanding on that date.
Ameris currently expects that its directors and executive officers will vote their shares in favor of the Ameris share issuance proposal and the Ameris adjournment proposal (if necessary or appropriate), although none of them has entered into any agreements obligating them to do so. As of the record date, Fidelity did not beneficially hold any shares of Ameris common stock.
14
TABLE OF CONTENTS
Assuming a quorum is present, approval of each of the Ameris share issuance proposal and Ameris adjournment proposal (if necessary or appropriate) requires the affirmative vote of a majority of the votes cast on such proposal at the Ameris special meeting. Ameris shareholders must approve the Ameris share issuance proposal in order for the merger to occur. If Ameris shareholders fail to approve the Ameris share issuance proposal, the merger will not occur. Ameris shareholders are not, however, required to approve the Ameris adjournment proposal in order for the merger to occur. If Ameris shareholders fail to approve the Ameris adjournment proposal, but approve the Ameris share issuance proposal, the merger may nonetheless occur.
Interests of Fidelity’s Directors and Executive Officers in the Merger (page 95)
In considering the recommendation of the Fidelity board of directors with respect to the merger, Fidelity shareholders should be aware that Fidelity’s directors and executive officers have interests in the merger, including financial interests, that may be different from, or in addition to, the interests of Fidelity shareholders generally. The Fidelity board of directors was aware of these interests and considered them, among other matters, in making its recommendation that Fidelity shareholders vote to approve the merger proposal.
These interests include, among others:
•
at the effective time, each Fidelity option will fully vest and convert into a stock option of equivalent value to purchase shares of Ameris common stock, and each Fidelity restricted stock award will fully vest and convert into the right to receive the merger consideration in respect of each share of Fidelity common stock subject to such award;
​
•
James B. Miller, Jr., H. Palmer Proctor, Jr., Gloria A. O’Neal, Rodney D. Bullard and Wm. Millard Choate, each a member of the Fidelity board of directors, will be appointed to serve on the Ameris and Ameris Bank boards of directors at the effective time;
​
•
Mr. Miller, Chairman and Chief Executive Officer of Fidelity, will become Executive Chairman of Ameris and Ameris Bank at the effective time, pursuant to the terms of an employment agreement he entered into with Ameris and Ameris Bank, which agreement provides for certain payments in connection with the effective time or a qualifying termination of employment thereafter;
​
•
Mr. Proctor, President of Fidelity and Chief Executive Officer of Fidelity Bank, will become President of Ameris and Chief Executive Officer of Ameris Bank at the effective time, pursuant to the terms of an employment agreement he entered into with Ameris and Ameris Bank, which agreement provides for certain payments in connection with the effective time or a qualifying termination of employment thereafter;
​
•
Charles D. Christy, Chief Financial Officer of Fidelity, and David Buchanan, Vice President of Fidelity, are party to executive continuity agreements with Fidelity that provide for severance benefits upon a qualifying termination of employment;
​
•
the salary continuation agreements between Fidelity and its executive officers (other than Mr. Christy) will be paid out in connection with the merger; and
​
•
Fidelity’s directors and executive officers are entitled to continued indemnification and insurance coverage under the merger agreement.
​
For a more complete description of these interests, see the section entitled “The Merger — Interests of Fidelity’s Directors and Executive Officers in the Merger” and “The Merger — Merger-related Compensation for Fidelity’s Named Executive Officers” beginning on pages 95 and 99, respectively.
Appraisal Rights in the Merger (page 101)
Under the Georgia Business Corporations Code (which we refer to as the “GBCC”), which is the law under which Fidelity is incorporated, Fidelity shareholders will not be entitled to any appraisal rights or dissenters’ rights in connection with the merger.
For more information, see “The Merger — Appraisal Rights in the Merger,” beginning on page 101.
15
TABLE OF CONTENTS
Agreement Not to Solicit Other Offers (page 113)
Under the terms of the merger agreement, Fidelity has agreed not to take any action to initiate, solicit, seek, knowingly facilitate or encourage any inquiries or expressions of interest or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, or participate in any discussions or negotiations regarding, or furnish, or otherwise afford access, to any person or entity any nonpublic information or data relating to, or approve, endorse or recommend, or enter into any agreement in principle, arrangement, understanding, contract or agreement (other than a confidentiality agreement described in this paragraph) relating to, any acquisition proposal. Notwithstanding these restrictions, the merger agreement provides that, under specified circumstances, Fidelity may take any of the actions described in the preceding sentence in response to an unsolicited, bona fide written acquisition proposal received by Fidelity prior to the Fidelity special meeting if, but only if, (i) the Fidelity board of directors determines in good faith (in accordance with the merger agreement and after consultation with its outside legal counsel and independent financial advisor) that such acquisition proposal constitutes, or is reasonably likely to result in, a proposal which is superior to the merger with Ameris and a failure to take such actions would be reasonably likely to result in a violation of its fiduciary duties to Fidelity and its shareholders under applicable law, (ii) Fidelity provides Ameris with prompt (and in any event within twenty-four (24) hours) notice of such determination and (iii) prior to furnishing or affording access to any information or data with respect to Fidleity or otherwise relating to such acquisition proposal, Fidelity receives from such person or entity a confidentiality agreement with terms no less favorable to Fidelity than those contained in the confidentiality agreement between Fidelity and Ameris.
Conditions to Complete the Merger (page 115)
The obligations of Ameris and Fidelity to complete the merger are each subject to the satisfaction or waiver of certain conditions, including:
•
the approval of the Ameris share issuance by the requisite vote of Ameris shareholders (which we refer to as the “Ameris shareholder approval”);
​
•
the approval of the merger agreement and the transactions contemplated thereby, including the merger, by the requisite vote of Fidelity shareholders (which we refer to as the “Fidelity shareholder approval”);
​
•
the receipt and effectiveness of the requisite regulatory approvals contemplated by the merger agreement, without the imposition of any materially burdensome regulatory condition (as defined in the merger agreement and discussed under “The Merger Agreement — Regulatory Matters” beginning on page 111), and the expiration or termination of all statutory waiting periods in respect thereof;
​
•
the approval for listing on the Nasdaq of the shares of Ameris common stock to be issued in the merger;
​
•
the parties’ standing ready to complete the bank merger immediately after the merger;
​
•
effectiveness of the registration statement on Form S-4, of which this joint proxy statement/​prospectus forms a part, and the absence of a stop order or proceeding initiated or threatened by the SEC for that purpose;
​
•
the absence of any law or order enacted or issued by any governmental authority which has the effect of making illegal or preventing or prohibiting the completion of the transactions contemplated by the merger agreement;
​
•
subject to certain exceptions, the accuracy of the representations and warranties of the other party, generally subject to a material adverse effect qualification;
​
•
performance and compliance in all material respects by the other party of its covenants and obligations required by the merger agreement to be performed or complied with prior to or at the closing date of the merger;
​
​
16
TABLE OF CONTENTS
•
receipt by such party of an opinion from its legal counsel to the effect that the merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code; and
​
•
the absence of any event, change, occurrence, circumstance, condition, effect or development that has had, or may reasonably be expected to have, a material adverse effect on the other party since December 17, 2018.
​
Neither Ameris nor Fidelity can be certain when, or if, the conditions to the merger will be satisfied or waived, or that the merger will be completed. For more information, see “The Merger Agreement — Conditions to Complete the Merger,” beginning on page 115.
Termination of the Merger Agreement; Termination Fee (pages 116 and 117)
The merger agreement may be terminated at any time by Ameris or Fidelity prior to the closing date of the merger:
•
by mutual written consent;
​
•
by either party if the merger does not close by December 31, 2019, except that a party may not terminate the merger agreement for this reason if the failure of the closing to occur by such date was caused by or resulted from such party’s failure to fulfill any obligation under the merger agreement;
​
•
by either party in the event of a breach by the other party of any representation, warranty or obligation contained in the merger agreement, which breach has not been or cannot be cured within 30 days after the giving of written notice to the non-terminating party of such breach and which breach would be reasonably likely to result in a failure to satisfy any applicable closing condition, provided that the terminating party is not then in material breach of the merger agreement;
​
•
by either party if final action has been taken by a regulatory agency whose approval is required in connection with the merger agreement or the bank merger agreement, which final action has become nonappealable and does not approve the merger agreement or the bank merger agreement or the transactions contemplated thereby, or any governmental authority enacts or enters a law or final nonappealable judgment which would make illegal the consummation of the transactions contemplated by the merger agreement or the bank merger agreement;
​
•
by either party (provided that such party is not in breach of its obligations under the merger agreement with respect to obtaining its shareholders’ approval), if the Ameris shareholder approval is not obtained at the Ameris special meeting or the Fidelity shareholder approval is not obtained at the Fidelity special meeting;
​
•
by Ameris prior to the time the Fidelity shareholder approval is obtained if the Fidelity board of directors (or any committee thereof) fails to recommend that Fidelity shareholders approve the merger agreement or makes an adverse recommendation change (as defined in the merger agreement and discussed under “The Merger Agreement — Adverse Recommendation Change” beginning on page 114), or Fidelity has materially breached its obligations with respect to obtaining the Fidelity shareholder approval or alternative acquisition proposals; and
​
•
by Fidelity, prior to obtaining the Fidelity shareholder approval, to enter into an agreement relating to a superior proposal (as defined in the merger agreement and discussed under “The Merger Agreement — Agreement Not to Solicit Other Offers” beginning on page 113), provided that Fidelity has complied in all material respects with its obligations with respect to obtaining the Fidelity shareholder approval and alternative acquisition proposals.
​
If the merger agreement is terminated under certain circumstances, Fidelity may be required to pay to Ameris a termination fee equal to $29,000,000. This termination fee could discourage other companies from seeking to acquire or merge with Fidelity.
For more information, see “The Merger Agreement — Termination of the Merger Agreement” and “The Merger Agreement — Termination Fee” beginning on pages 116 and 117, respectively.
17
TABLE OF CONTENTS
Regulatory Approvals Required for the Merger (page 23)
Subject to the terms of the merger agreement, both Ameris and Fidelity have agreed to use their reasonable best efforts to obtain all regulatory approvals required or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by the merger agreement and the bank merger agreement. Under applicable law, the merger must be approved by The Board of Governors of the Federal Reserve System (the “Federal Reserve”), and the bank merger must be approved by the Federal Deposit Insurance Corporation (the “FDIC”). In addition, the Georgia Department of Banking and Finance (the “GDBF”) must also approve the merger and the bank merger.
Ameris has filed all notices and applications to obtain the necessary regulatory approvals for the merger and the bank merger. Although the parties currently believe they should be able to obtain all regulatory approvals in a timely manner, they cannot be certain when or if they will obtain them or, if obtained, whether they will contain terms, conditions or restrictions not currently contemplated that will be detrimental to the combined company after the completion of the merger. We make no assurance that the regulatory approvals received will not contain any condition applicable to Ameris, Fidelity or any of their respective subsidiaries that would result in the imposition of a materially burdensome regulatory condition.
For more information, see “The Merger — Regulatory Approvals Required for the Merger,” beginning on page 23.
Comparison of Shareholders’ Rights (page 143)
The rights of Fidelity shareholders will change as a result of the merger due to differences in Ameris’s and Fidelity’s articles of incorporation and bylaws. Rights of Fidelity shareholders are currently governed by Fidelity’s articles of incorporation and bylaws and Georgia law. Upon the completion of the merger, Fidelity shareholders immediately prior to the effective time will become shareholders of Ameris, as the continuing legal entity in the merger, and the rights of Fidelity shareholders will thereafter be governed by Ameris’s articles of incorporation and bylaws and Georgia law. The differences in shareholder rights are explained more fully in “Comparison of Shareholders’ Rights” beginning on page 143.
Risk Factors (page 35)
You should consider all the information contained in or incorporated by reference into this joint proxy statement/prospectus in deciding how to obtain copiesvote for the proposals presented in this joint proxy statement/​prospectus. In particular, you should consider the factors described under “Risk Factors” beginning on page 35.
Accounting Treatment of those documents.the Merger (page 119)
Ameris will account for the merger as a business combination using the acquisition method of accounting for financial reporting purposes.
Material U.S. Federal Income Tax Consequences of the Merger (page 29)
It is intended that the merger qualify as a “reorganization” within the meaning of Section 368(a) of the Code. It is a condition to the completion of the merger that Ameris and Fidelity receive written opinions from their respective legal counsel to the effect that the merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. If the merger so qualifies, a U.S. holder of Fidelity common stock generally will not recognize gain or loss for U.S. federal income tax purposes upon the exchange of shares of Fidelity common stock for shares of Ameris common stock pursuant to the merger, except with respect to cash received instead of fractional shares of Ameris common stock. For further information, see “Material U.S. Federal Income Tax Consequences of the Merger” beginning on page 29.
All holders of Fidelity common stock should consult their own tax advisors for a full understanding of the particular tax consequences of the merger to them.
The Companies (see pageParties (page 3454)
Ameris Bancorp
310 First Street, S.E.
Moultrie, Georgia 31768
(229) 890-1111
Ameris Bancorp a Georgia corporation incorporated in 1980, is a bank holding company headquartered in Moultrie, Georgia. Ameris’swhose business is conducted primarily through Ameris Bank, a Georgia state-chartered bank and a wholly owned subsidiary of Ameris. At September 30, 2017, Ameris had total consolidated assets of  $7.6 billion, total loans (net of allowance for loan losses) of  $5.9 billion, total deposits of  $5.9 billion and shareholders’ equity of  $801.9 million.
Through Ameris Bank,
18
TABLE OF CONTENTS
Ameris provides a full range of banking services to its retail and commercial customers through 97125 branches primarily concentrated in select markets in Georgia, Alabama, Northern Florida and South Carolina. These branches serve distinct communities in Ameris’s business areas with autonomy but do so as one bank, leveraging Ameris’sits favorable geographic footprint in an effort to acquire more customers. Deposits with Ameris Bank are insured, up to applicable limits, by the FDIC.
TheThroughout Ameris’s history, Ameris’s strategy has been focused on growing the franchise in Ameris’s historical markets and in select new markets that Ameris common stock is listed on the NASDAQ Global Select Market under the symbol “ABCB.”
Atlantic Coast Financial Corporation
4655 Salisbury Road, Suite 110
Jacksonville, Florida 32256
(800) 342-2824
Atlantic Coast Financial Corporation,has entered through acquisitions. Ameris believes its strategy has resulted in a Maryland corporation incorporatedconsistent record of strong growth over an extended period of time, as Ameris has grown from $2.11 billion in total assets at December 31, 2007 is a bank holding company headquarteredto $11.43 billion in Jacksonville, Florida. Through its principal wholly owned subsidiary, Atlantic Coast Bank, Atlantic serves the Northeast Florida, Central Florida and Southeast Georgia markets.total assets at September 30, 2018. At September 30, 2017, Atlantic2018, Ameris also had total consolidated assets of  $921.9 million, total loans (net of allowance for loan losses) of $785.5 million,$8.50 billion, total deposits of  $676.4 million,$9.18 billion and shareholders’ equity of  $91.4 million.$1.40 billion.
Atlantic CoastAmeris common stock is listed on the Nasdaq under the symbol “ABCB.”
Ameris Bancorp’s principal executive office is located at 310 First Street, S.E., Moultrie, Georgia 31768, and its telephone number at that location is (229) 890-1111. Ameris’s website is http://www.amerisbank.com. The information on Ameris’s website is not part of this joint proxy statement/prospectus, and the reference to Ameris’s website address does not constitute incorporation by reference of any information on that website into this joint proxy statement/prospectus. Additional information about Ameris and its subsidiaries is included in documents incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information” beginning on page 159.
Fidelity Southern Corporation
Fidelity Southern Corporation is a bank holding company headquartered in Atlanta, Georgia. Fidelity conducts operations primarily through Fidelity Bank, a state chartered wholly-owned subsidiary bank. Fidelity Bank was established in 1939organized as a credit union to serve the employees of the Atlantic Coast Line Railroad. On November 1, 2000, after receiving the necessary regulatorynational banking corporation in 1973 and membership approvals, Atlantic Coast Federal Credit Union converted to a federal mutual savingsGeorgia chartered state bank (and subsequentlyin 2003. LionMark Insurance Company is a federally-chartered savings bank) known as Atlantic Coast Bank. The conversion allowed the bankwholly-owned subsidiary of Fidelity and is an insurance agency offering consumer credit related insurance products. Fidelity also owns three subsidiaries established to diversify its customer base by marketing products and servicesissue trust preferred securities. Deposits with Fidelity Bank are insured, up to individuals and businesses in its market areas and make loans to customers who did not have a deposit relationship with the bank. On December 27, 2016, Atlantic Coast Bank consummated the conversion of its charter from that of a federally-chartered savings bank to that of a Florida state-chartered commercial bank supervisedapplicable limits, by the FDIC.
Since Fidelity’s inception in 1973, it has pursued managed, profitable growth through providing quality financial services. Fidelity’s mission is to continue growth, improve earnings and increase shareholder value; to treat customers, employees, community and shareholders according to the “Golden Rule”; and to operate within a culture of strong internal controls. Fidelity’s franchise primarily spans the metropolitan Atlanta, Jacksonville, Orlando, Tallahassee and Sarasota-Bradenton, Florida Officemarkets. Fidelity also conducts indirect automobile lending in Georgia and Florida and residential mortgage lending throughout the South. Small business administration lending has a nation-wide footprint.
At September 30, 2018, Fidelity had $4.81 billion in total assets, total loans (net of Financial Regulationallowance for loan losses) of  $3.68 billion, total deposits of  $4.05 billion and total shareholders’ equity of  $432.10 million.
Fidelity common stock is listed on the Nasdaq under the symbol “LION.”
Fidelity’s principal executive office is located at 3490 Piedmont Road, Suite 1550, Atlanta, Georgia 30305, and its telephone number at that location is (404) 639-6500. Fidelity’s website is http://www.fidelitysouthern.com. The information on Fidelity’s website is not part of this joint proxy statement/​prospectus, and the Federal Deposit Insurance Corporation (“FDIC”)reference to Fidelity’s website address does not constitute incorporation by reference of any information on that website into this joint proxy statement/prospectus. Additional information about Fidelity and its subsidiaries is included in documents incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information” beginning on page 159.
Atlantic Coast Bank offersAmeris Bancorp Year End 2018 Financial Results
On January 25, 2019, Ameris issued a variety of deposit accounts having a wide range of interest ratespress release announcing its financial results for the fourth quarter and terms, which generally include noninterest-bearing and interest-bearing demand, savings and money market demand, and time deposit accounts with terms ranging from three monthsyear ended December 31, 2018. The press release was included as an exhibit to five years. Deposits are primarily solicited in Atlantic Coast Bank’s market areas of Northeast Florida and Southeast Georgiathe Current Report on Form 8-K furnished to fund loan demand and other liquidity needs; however, late in 2015, Atlantic Coast Bank also started soliciting deposits in Central Florida, which is expected to become a key deposit market for Atlantic Coast Bank.the SEC by Ameris on January 25, 2019.
719
TABLE OF CONTENTS
The Atlantic common stock is listed onAmeris’s audited consolidated financial statements for year ended December 31, 2018 are not yet available. Accordingly, the NASDAQ Global Market under the symbol “ACFC.”
Atlantic Special Meeting (see page 29)
The special meeting will be held on [•], at [•] a.m., local time, at [•]. At the special meeting, holders of Atlantic common stock will be asked to:
•
approve the merger proposal;
​
•
approve, on a non-binding advisory basis, the merger-related compensation proposal;financial results presented below are preliminary and
​
•
approve the adjournment proposal.
​
You can vote at the special meeting if you owned Atlantic common stock as of the close of business on [•], which is the record date for the special meeting. On that date, there were [•] shares of Atlantic common stock outstanding and entitled to vote, approximately [•]% of which were owned and entitled to be voted by Atlantic’s directors and executive officers and their affiliates. As of the record date, neither Ameris nor any of its directors or executive officers owned or had the right to vote any of the outstanding shares of Atlantic common stock. You can cast one vote for each share of Atlantic common stock you owned on that date.
Approval of the merger proposal requires the affirmative vote of the holders of a majority of the issued and outstanding shares of Atlantic common stock entitled to vote. Approval, on a non-binding advisory basis, of the merger-related compensation proposal, and approval of the adjournment proposal, each requires the affirmative vote of the holders of a majority of the shares of Atlantic common stock represented in person or by proxy at the special meeting.
The directors and certain executive officers of Atlantic have entered into a Voting Agreement with Ameris and Atlantic under which they have agreed, among other things, to vote all of the shares they beneficially own for approval of the merger proposal and the adjournment proposal. A total of 1,698,990 shares of Atlantic common stock, representing approximately 10.9% of the outstanding shares of Atlantic common stock entitled to vote at the special meeting, are subject to the Voting Agreement.
The Merger (see page 54)
The termscompletion of Ameris’s financial closing procedures and conditions ofany adjustments that may result from the merger are contained in the Merger Agreement, a copy of which is included as Appendix A to this proxy statement/prospectus and is incorporated by reference into this proxy statement/prospectus. You should read the Merger Agreement carefully and in its entirety, as it is the legal document governing the merger.
In the merger, Atlantic will merge with and into Ameris, with Ameris as the surviving company. It is expected that immediately after the merger, Atlantic Coast Bank will merge into Ameris Bank, with Ameris Bank as the surviving bank.
Closing and Effective Time of the Merger (see page 54)
The completion of the merger is expectedreview of its consolidated financial statements. As a result, these preliminary results may differ from the actual results that will be reflected in Ameris’s audited consolidated financial statements for the year ended December 31, 2018 when they are completed and publicly disclosed. These preliminary results may change and those changes may be material.
Ameris’s expectations with respect to occurits unaudited results for the period discussed below are based upon management estimates and are the responsibility of management. Ameris’s independent registered public accounting firm has not audited, reviewed or performed any procedures with respect to these preliminary results and, accordingly, does not express an opinion or any other form of assurance about them.
Results of Operations
Ameris reported net income of  $121.0 million, or $2.80 per diluted share, for the year ended December 31, 2018, compared with $73.5 million, or $1.98 per diluted share, for 2017. For the quarter ending December 31, 2018, reported results include net income of  $43.5 million, or $0.91 per diluted share, compared with $9.2 million, or $0.24 per diluted share, for the same period in 2017.
Net interest income on a tax-equivalent basis increased 30.1% in 2018 to $347.5 million, up from $267.1 million for 2017. Growth in earning assets from Ameris’s two acquisitions in 2018, as well as internal sources, contributed to the increase. Average earning assets increased 31.1% in 2018 to $8.86 billion, compared with $6.76 billion for 2017. Although Ameris’s net interest income increased, net interest margin for 2018 declined only slightly to 3.92%, compared with 3.95% for 2017. Yields on earning assets in 2018 were 4.71%, compared with 4.46% in 2017. Accretion income for 2018 increased to $11.8 million, or 2.6% of total revenue, compared with $10.6 million, or 2.9%, respectively, for 2017.
Ameris’s net interest margin was 3.91% for the fourth quarter of 2018, down slightly from 3.92% reported for the third quarter of 2018 and 3.94% reported for the fourth quarter of 2017. Accretion income for the fourth quarter of 2018 increased to $4.1 million, compared with $3.7 million for the third quarter of 2018, and up from $2.2 million reported for the fourth quarter of 2017.
Total interest expense for 2018 was $69.9 million, compared with $34.2 million for 2017. Deposit costs increased during 2018 to 0.62%, compared with 0.34% for 2017. Noninterest-bearing deposits represented 27.5% of the total average deposits for 2018, compared with 28.6% for 2017.
Interest expense during the secondfourth quarter of 2018 moved higher to $23.2 million, compared with $22.1 million in the third quarter of 2018 and $10.0 million in the fourth quarter of 2017. Ameris’s total cost of funds moved 4 basis points higher to 0.94% in the fourth quarter of 2018 as compared with the third quarter of 2018. Unless both Ameris and Atlantic agreeDeposit costs increased 10 basis points during the fourth quarter of 2018 to a later date,0.79%, compared with 0.69% in the closingthird quarter of 2018. Costs of interest-bearing deposits increased during the quarter from 0.93% in the third quarter of 2018 to 1.09% in the fourth quarter, with the material portion of the merger will take place no later than five business days after allincrease relating to NOW and MMDA accounts.
Non-interest income increased 13.4% in 2018 to $118.4 million, compared with $104.5 million for 2017, as a result of the conditionsincreased service charges and mortgage banking activity during 2018. Service charge revenue increased $4.1 million, or 9.7%, during 2018 due to the closingAmeris’s increased number of the merger have been satisfied or waived in accordance with their terms. We refer to the date on which the closing of the merger occurs as the “closing date.”
On the closing date, Ameris will file a certificate of merger with the Georgia Secretary of State and articles of merger with the Maryland State Department of Assessments and Taxation. The merger will be effective upon the later of: (i) the filing of the certificate of merger with the Georgia Secretary of Statedeposit accounts from organic growth and the articlesacquisitions completed in 2018. Revenue in the retail mortgage group totaled $71.7 million in 2018, an increase of merger18.5%, compared with $60.5 million in 2017. Net income for Ameris’s retail mortgage division was $4.0 million for the Maryland State Departmentfourth quarter of Assessments2018, compared with $3.7 million in the third quarter of 2018 and Taxation;$2.2 million for the fourth quarter of 2017. Profitability in Ameris’s warehouse lending group continued to increase, as revenues from the division increased 45.9% during the year, from $7.6 million for 2017 to $11.1 million in 2018. Net income for the division increased 86.8% from $4.3 million in 2017 to $8.1 million in 2018. Net income for Ameris’s warehouse lending division was $2.0 million for the fourth quarter of 2018, compared with $2.2 million for the third quarter of 2018 and (ii) such later date and time to which Ameris and Atlantic agree and as may be specified in accordance with$1.4 million for the Georgia Business Corporation Code. We refer to the date and time at which the merger is effective as the “effective time.”fourth quarter of 2017.
820
TABLE OF CONTENTS
Non-interest expense increased $61.7 million, or 26.6%, to $293.6 million for the year ended December 31, 2018, compared with $231.9 million for 2017. During 2018, Ameris recorded $31.8 million of charges to earnings, the majority of which were related to merger and conversion activity and executive retirement, compared to $7.8 million in 2017 that were mostly merger and compliance oriented. Excluding these charges, adjusted expenses increased approximately $37.6 million, or 16.8%, to $261.8 million in 2018, up from $224.2 million in 2017. Growth in operating expenses in 2018 amounted to 1.57% of growth in average assets, materially lower than Ameris’s gross overhead ratio for 2017 at 3.06%.
Ameris’s recorded income tax expense of  $30.5 million for the year ended December 31, 2018 compared with $50.7 million for the year ended December 31, 2017. The Merger Consideration; Merger Consideration Adjustments (see pages 55 and 65)
Ifeffective tax rate was 20.1% for the merger is completed and unless adjusted pursuantyear end December 31, 2018, significantly lower than effective tax rate of 40.8% for 2017 due to the termsTax Cuts and Jobs Act that was enacted in the fourth quarter of 2017.
Balance Sheet Trends
Total assets increased $3.59 billion, or 45.7%, during 2018. Total loans, including loans held for sale, purchased loans and purchased loan pools, were $8.62 billion at the end of 2018, compared with $6.24 billion at the end of 2017. Excluding the effects of recent acquisitions, growth in core loans (including legacy and purchased non-covered loans) totaled $482.6 million, or 8.5%, during 2018, compared with $941.0 million, or 20.3%, in 2017.
At December 31, 2018, total deposits amounted to $9.65 billion, or 97.4% of total funding, compared with $6.63 billion and 94.8%, respectively, at December 31, 2017. Excluding Ameris’s recently completed acquisitions and brokered funds, deposits increased $549.7 million, or 8.6%. At December 31, 2018, noninterest-bearing deposit accounts were $2.52 billion, or 26.1% of total deposits, compared with $1.78 billion, or 26.8% of total deposits, at December 31, 2017. Non-rate sensitive deposits (including non-interest bearing, NOW and savings) totaled $4.60 billion at December 31, 2018, compared with $3.52 billion at the end of 2017. These funds represented 47.6% of Ameris’s total deposits at the end of 2018, compared with 53.1% at the end of 2017.
Shareholders’ equity at December 31, 2018 totaled $1.46 billion, an increase of  $651.9 million, or 81.0%, from December 31, 2017. The increase in shareholders’ equity was the result of the Merger Agreement, each shareissuance of Atlantic common stock outstanding immediately prior to the effective time of the merger will be converted into the right to receive: (i) $1.39 in cash, without interest; and (ii) 0.17new shares of Ameris common stock in Ameris’s recent acquisitions, plus cashearnings of  $121.0 million during 2018. Tangible book value per common share was $18.83 at the end of 2018, up from $17.78 at September 30, 2018 and $17.86 at the end of 2017. Tangible common equity as a percentage of tangible assets was 8.22% at the end of 2018, compared with 7.77% at the end of the third quarter of 2017 and 8.62% at the end of 2017.
Ameris’s “tangible book value per common share” is determined by methods other than in lieu of fractional shares.
Ameris will not issue fractional sharesaccordance with generally accepted accounting principles in the merger. Rather, Atlantic stockholders who would otherwise be entitledUnited States (which we refer to receiveas “GAAP”). See “— Reconciliation of Non-GAAP Financial Measures” below for a fractionalreconciliation of Ameris’s tangible book value per common share, a non-GAAP financial measure, to book value per common share, a financial measure calculated and presented in accordance with GAAP, and see “Selected Historical Consolidated Financial Data of Ameris — Reconciliation of Non-GAAP Financial Measures” for a discussion of Ameris’s management’s use of non-GAAP financial measures.
During the fourth quarter of 2018, Ameris recorded provision for loan loss expense of  $3.7 million, compared with $2.1 million in the third quarter of 2018. The increase in provision expense is mostly attributable to increased general reserves on consumer and premium finance loans based on loss history and agricultural loans affected by Hurricane Michael. Nonperforming assets as a percentage of total assets decreased five basis points to 0.55% during the quarter.
Reconciliation of Non-GAAP Financial Measures
The following information reconciles Ameris’s tangible book value per common stock uponshare, a non-GAAP financial measure, as of the periods presented to Ameris’s book value per common share, a financial measure calculated and presented in accordance with GAAP, as of the periods presented.
21
TABLE OF CONTENTS
​​​Three Months Ended​​Year Ended​
(dollars in thousands except per share data)​​December
2018		​​September
2018		​​June
2018		​​March
2018		​​December
2017		​​December
2018		​​December
2017		​
Total shareholders’ equity​​​$1,456,347​​​​$1,404,977​​​​$1,371,896​​​​$868,944​​​​$804,479​​​​$1,456,347​​​​$804,479​​
Less:​​​​​​​​
Goodwill​​​​503,434​​​​​505,604​​​​​504,764​​​​​208,513​​​​​125,532​​​​​503,434​​​​​125,532​​
Other intangibles, net​​​​58,689​​​​​54,729​​​​​53,561​​​​​12,562​​​​​13,496​​​​​58,689​​​​​13,496​​
Total tangible shareholders’ equity​​​$894,224​​​​$844,644​​​​$813,571​​​​$647,869​​​​$665,451​​​​$894,224​​​​$665,451​​
Period end number of shares​​​​47,499,941​​​​​47,496,966​​​​​47,518,662​​​​​38,327,081​​​​​37,260,012​​​​​47,499,941​​​​​37,260,012​​
Book value per share (period end)​​​$30.66​​​​$29.58​​​​$28.87​​​​$22.67​​​​$21.59​​​​$30.66​​​​$21.59​​
Tangible book value per share (period end) ​​​$18.83​​​​$17.78​​​​$17.12​​​​$16.90​​​​$17.86​​​​$18.83​​​​$17.86​​
Fidelity Southern Corporation Year End 2018 Financial Results
On January 17, 2019, Fidelity issued a press release announcing its financial results for the fourth quarter and year ended December 31, 2018. The press release was included as an exhibit to the Current Report on Form 8-K furnished to the SEC by Fidelity on January 18, 2019.
Fidelity’s audited consolidated financial statements for year ended December 31, 2018 are not yet available. Accordingly, the financial results presented below are preliminary and subject to the completion of Fidelity’s financial closing procedures and any adjustments that may result from the completion of the mergerreview of its consolidated financial statements. As a result, these preliminary results may differ from the actual results that will instead receive an amountbe reflected in cash (computedFidelity’s audited consolidated financial statements for the year ended December 31, 2018 when they are completed and publicly disclosed. These preliminary results may change and those changes may be material.
Fidelity’s expectations with respect to its unaudited results for the nearest cent) equalperiod discussed below are based upon management estimates and are the responsibility of management. Fidelity’s independent registered public accounting firm has not audited, reviewed or performed any procedures with respect to such fractional part of a share of Ameris common stock multiplied by the exchange ratio multiplied by the average Ameris stock price (as defined under “The Merger Agreement — Termination; Merger Consideration Adjustments”).
The completion of the merger is subject to a price floor. If the average closing price of one share of Ameris common stock during a specified determination period has declined by more than 15% from its price on November 15, 2017, of  $46.95 per share,these preliminary results and, Ameris common stock underperforms the KBW Nasdaq Regional Banking Index (KRX) by more than 15% during such period, then Atlantic may terminate the Merger Agreement unless Ameris offsets such reduction in the value of Ameris common stock by increasing the number of shares of Ameris common stock to be issued, or paying additional cash consideration (provided that doing so would not prevent the merger from qualifying as a tax-free reorganization within the meaning of Section 368(a) of the Code), to the Atlantic stockholders.
If the June 30, 2018 termination date of the Merger Agreement is extended by either party as contemplated in the Merger Agreement and described under “The Merger Agreement — Termination; Merger Consideration Adjustments,” then provided that itaccordingly, does not preventexpress an opinion or any other form of assurance about them.
Results of Operations
Fidelity reported net income of  $43.8 million, or $1.61 per diluted share, for the merger from qualifying as a tax-free reorganization withinyear ended December 31, 2018, compared with $39.8 million, or $1.49 per diluted share, for 2017. For the meaningquarter ending December 31, 2018, reported results include net income of  Section 368(a) of$9.9 million, or $0.36 per diluted share, compared with $12.4 million, or $0.46 per diluted share, for the Code, the aggregate cash consideration to be received by Atlantic stockholderssame period in the merger will be increased by the amount of Atlantic’s after-tax net2017.
Interest income for the period from January 1,quarter ended December 31, 2018 through June 30, 2018.
Subjectof  $48.3 million was higher by $1.4 million, compared to certain exceptions specifiedthe prior quarter, driven by moderate increases in loan, investment and Fed Funds income. Although average loans decreased by $105.5 million for the quarter, $70.2 million of this was due to a decrease in lower yielding indirect loans, which were partially replaced in the Merger Agreement, if priorportfolio mix with higher yielding commercial and SBA loans. An increase in average investment securities of  $57.5 million and an increase in average Fed Funds and bank deposit balances of  $33.7 million also contributed to higher interest income. The yield on total average interest-bearing assets also increased 14 basis points from the previous quarter. As compared to the effective timesame period in the prior year, interest income increased by $6.6 million as average loans increased by $172.7 million and the yield on total average interest-bearing assets increased by 35 basis points, as market interest rates rose year over year. Interest income was $181.4 million for the year ended December 31, 2018, an increase of  $23.5 million compared to the same period in the prior year, primarily due to an increase of 21 basis points in the yield on loans and an increase of  $324.7 million in average loans.
Interest expense of  $8.7 million increased slightly by $588,000, or 7.2%, for the quarter ended December 31, 2018 as average FHLB borrowings increased by $8.8 million. As compared to the fourth quarter of the merger the number of outstanding shares of Ameris common stock or Atlantic common stock is changed as a result of a stock split, reverse stock split, stock dividend, recapitalization, reclassification or similar transaction with respect to such shares, then the stock consideration will be proportionately and appropriately adjusted.
The value of the shares of Ameris common stock to be issued in the merger will fluctuate between now and the closing date of the merger. Theprior year, interest expense increased by $2.9 million. Rising market price of Ameris common stock at closing will not be known at the time of the special meeting and may be more or less than the current market price of Ameris common stock or the price of Ameris common stock at the time of the special meeting. You should obtain current market prices for Ameris common stock and Atlantic common stock prior to voting. The Ameris common stock is tradedrates paid on the NASDAQ Global Select Market under the symbol “ABCB.” The Atlantic common stock is traded on the NASDAQ Global Market under the symbol “ACFC.”
Equivalent Atlantic Per Share Value (see page 27)
The following table presents the closing price of Ameris common stock on November 16, 2017, the last full trading day before the public announcement of the merger, and [•], the latest practicable date before the date of this proxy statement/prospectus. The table also presents the equivalent value of the per share purchase price on those dates, calculated by multiplying the closing price of Ameris common stock on those dates by the exchange ratio of 0.17 and then adding to such product the cash consideration of  $1.39.
Date​​Ameris
Closing Price		​​Exchange
Ratio		​​Equivalent Atlantic
Per Share Value		​
November 16, 2017​​​$47.30​​​​​0.17​​​​$9.43​​
[•]​​​$[•]​​​​​0.17​​​​$[•]​​
The value of the merger consideration will fluctuate between the date of this proxy statement/prospectus and the completion of the merger based upon the market price of Ameris common stock. Any fluctuation in the market price of Ameris common stock after the date of this proxymoney
922
TABLE OF CONTENTS
statement/prospectus will changemarket deposits and CD’s drove the valueincrease, as well as increased volume and rates for short term borrowings. For the year ended December 31, 2018, interest expense increased by $9.2 million, or 40.3%, compared to previous year, as market rates and deposit balances increased over the twelve months ended December 31, 2018.
The net interest margin was 3.54% for the quarter ended December 31, 2018 compared to 3.45% in the previous quarter, an increase of 9 basis points. Loan coupon yields, excluding fees, SBA discount accretion, and accretable yields, increased faster than deposit and borrowing costs during the quarter.
The yield on total average interest-bearing liabilities increased by only 9 basis points while the yield on total average interest-earning assets increased by 14 basis points from 4.18% to 4.32%. Average loans decreased by $105.5 million, of which $70.2 million was a decrease in lower yielding indirect auto loans. Higher yielding investment securities increased by $57.5 million as Fidelity Bank’s strategy to reposition its balance sheet continues to occur.
Average total interest-bearing liabilities decreased by $24.2 million, average deposits decreased by $33.1 million, offset by an increase in average borrowings of  $8.8 million in order to help fund loan production.
As compared to the same period a year ago, the net interest margin for the quarter ended December 31, 2018 increased by 12 basis points to 3.54% from 3.42%, primarily due to a 35 basis point increase in the yield on total average interest-earning assets of  $4.4 billion, offset by an increase of 35 basis points in the yield on total average interest-bearing liabilities of  $3.1 billion. Average earning assets increased by $271.6 million, primarily due to an increase in average loans over the year. Average interest-bearing liabilities increased by $117.8 million, primarily driven by an increase in average borrowings of  $146.7 million, offset by a decrease in average interest-bearing deposits of  $29.0 million.
On a linked-quarter basis, noninterest income for the quarter ended December 31, 2018 decreased by $2.6 million, or 7.7%, largely due to a decrease in other noninterest income of  $2.8 million, primarily due to the $2.6 million death benefit received from life insurance policies during the previous quarter. Mortgage banking activities decreased by $1.9 million, or 8.1%, as gross mortgage revenue decreased by $2.8 million and mortgage production also decreased by $121.6 million. These decreases were offset by an increase in SBA lending activities of  $2.5 million, mainly due to a large SBA loan sale in December, as well as an increase in SBA loan closings during the quarter. Compared to the same period a year ago, noninterest income for the quarter increased by $2.2 million, primarily due to a $2.9 million increase in SBA banking activities, as SBA loan sales were higher in the current quarter as discussed above. For the year ended December 31, 2018, noninterest income increased by $3.9 million as all sources of noninterest income increased, except for indirect lending activities, which decreased by $7.3 million, as indirect loan sales and production decreased significantly during the year.
On a linked-quarter basis, total noninterest expense for the quarter ended December 31, 2018 increased by $528,000, or 0.9%, mainly due to an increase in other expenses of  $2.4 million, of which $1.2 million were merger related expenses. This increase was offset by a decrease in commissions expense of  $1.7 million from lower mortgage loan originations for the quarter. Compared to the prior year quarter, noninterest expense of  $56.1 increased by $3.2 million, or 6.1%. Salaries and employee benefits increased by $3.2 million, or 12.4%, compared to the same quarter in 2017, primarily due to $2.6 million of merger related expenses. For the year ended December 31, 2018, total noninterest expense increased $14.4 million compared to the previous year, of which $10.2 million was due to an increase in salaries and benefits. Salaries increased by $3.8 million, partially due to a $2.7 million increase in employee incentives due to performance and related to the balance sheet strategies implemented earlier in the year, and from a comparison perspective, no executive incentives were paid in 2017. Other expense increased by $2.8 million, of which $1.2 million was merger related expenses.
On a linked-quarter basis, income tax expense for the quarter ended December 31, 2018 remained relatively flat. The effective tax rate increased to 28% from 23% due to a $2.6 million tax-free death benefit received from life insurance policies in the previous quarter. For the year ended December 31, 2018, income tax expense decreased by $1.5 million as the effective tax rate decreased from 28% to 24% primarily as a result of the shares of Ameris common stock that Atlantic stockholders will receive,Tax Cuts and will therefore changeJobs Act enacted on December 22, 2017, which included, among other things, a reduction in the valuefederal corporate income tax rate from 35% to 21% from the beginning of the merger consideration. You should obtain current market prices for shares of Ameris common stock and Atlantic common stock.
Upon completion of the merger, former Atlantic stockholders will own approximately [•]% of the outstanding shares of Ameris common stock, assuming [•] shares of Ameris common stock outstanding immediately prior to the effective time of the merger and no adjustments to the stock consideration paid by Ameris.
Treatment of Atlantic Equity Awards (see page 55)
At the effective time of the merger, each Atlantic restricted share award will fully vest and be converted automatically into the right to receive the merger consideration.
Each outstanding option to acquire shares of Atlantic common stock issued pursuant to Atlantic’s equity-based compensation plans (each, an “Atlantic stock option”) has an exercise price of  $14.95 per share. Because this exercise price is expected to be well in excess of the merger consideration price (as defined below), it is likely that each Atlantic stock option will be canceled without consideration. If, however, the exercise price is less than the merger consideration price at the effective time of the merger, then each Atlantic stock option will fully vest and be cancelled and converted automatically into the right to receive a cash payment from Ameris or Ameris Bank (the “cash-out amount”) in an amount equal to the product of: (i) the excess, if any, of the merger consideration price over the exercise price of each such Atlantic stock option; and (ii) the number of shares of Atlantic common stock subject to such Atlantic stock option to the extent not previously exercised.
The term “merger consideration price” means the sum of: (i) the exchange ratio multiplied by the average Ameris stock price (as defined under “The Merger Agreement — Termination; Merger Consideration Adjustments”); and (ii) $1.39.
Surrender of Stock Certificates (see page 56)
Shortly after the effective time of the merger, the exchange agent for the merger will mail to each holder of record of Atlantic common stock a letter of transmittal and instructions for the surrender of the holder’s Atlantic stock certificate(s) or book-entry shares for the merger consideration and any dividends or distributions to which such holder may be entitled to pursuant to the Merger Agreement.
Please do not send in your stock certificates until you receive the letter of transmittal.
Recommendation of the Board of Directors of Atlantic (see pages 39 and 63)
The board of directors of Atlantic has approved and adopted the Merger Agreement, and determined that the merger is in the best interests of Atlantic and its stockholders, and unanimously recommends that Atlantic stockholders vote “FOR” the merger proposal, “FOR” the merger-related compensation proposal and “FOR” the adjournment proposal.
For a discussion of the factors considered by the board of directors of Atlantic in reaching its decision to approve the Merger Agreement, see “The Merger — Atlantic’s Reasons for the Merger and the Recommendation of the Atlantic Board of Directors.”
Opinion of Hovde Group, LLC, Financial Advisor of Atlantic (see page 41 and Appendix C)
On November 15, 2017, Hovde Group, LLC (“Hovde”) delivered to the board of directors of Atlantic a written opinion regarding the fairness of the merger consideration to be received by Atlantic stockholders from a financial point of view.
The Hovde opinion was directed to the board of directors of Atlantic and relates only to the fairness of the merger consideration to be received by Atlantic stockholders from a financial point of view. Hovde’s opinion does not address any other aspect of the merger and is not a recommendation to any Atlantic stockholder as to how such stockholder should vote at the special meeting.tax year 2018 going forward.
1023
TABLE OF CONTENTS
Balance Sheet Trends
Total assets decreased by $78.3 million, or 1.6%, during the quarter, to $4.7 billion at December 31, 2018, primarily due to a decrease of  $153.5 million in total loans. This decrease was primarily due to a decrease in loans held for sale of  $132.0 million, as well as a decrease of  $21.5 million in loans held for investment. The full textdecrease in loans held for sale was primarily in mortgage loans, which decreased $102.7 million, as seasonal production decreased. Other assets also decreased by $3.0 million.
Offsetting these decreases, investments increased by $42.2 million as Fidelity Bank continues to increase its investments available-for-sale portfolio as part of Hovde’s November 15, 2017 opinion is includedits strategy to reposition the balance sheet to higher yielding assets. Cash balances also increased by $29.6 million for the quarter. Loan servicing assets also increased by $3.4 million.
Total assets grew by $156.9 million, or 3.4%, to $4.7 billion at December 31, 2018, compared to $4.6 billion at December 31, 2017. Primary drivers for the year over year growth were an increase in cash of $26.0 million and an increase in investments available-for-sale of  $131.5 million as Appendix CFidelity Bank repositioned its balance sheet to higher yielding investments over the year.
Total loans, including loans held for sale, decreased during the quarter by $153.5 million, or 3.8%, to $3.9 billion at December 31, 2018. This reduction was primarily due to a decrease in this proxy statement/​prospectus and is incorporated by reference into this proxy statement/prospectus. The opinion outlines the procedures followed, assumptions made, matters considered and qualifications and limitations on the review undertaken by Hovde in rendering its opinion. The descriptionloans held for sale of $132.0 million, primarily mortgage loans held for sale, which accounted for $102.7 million of the opinion is qualifieddecrease.
Total loans decreased by $13.9 million, or 0.4%, compared to December 31, 2017, as loans held for sale decreased by $118.5 million, offset by an increase in its entiretyloans held for investment of  $104.5 million. Loans held for sale decreased due to lower sales of mortgage loans and indirect auto loans. The growth in loans was primarily in commercial and mortgage loans, while average indirect auto loans for the quarter decreased by reference$70.2 million.
Compared to 2017, the provision for loan losses for the year increased by $1.2 million, or 29.1%, mainly due to increases in commercial loan balances.
Core deposits decreased by $86.6 million during the quarter to $3.1 billion with seasonal decreases in all categories. Noninterest bearing deposits decreased by 2.8% as escrow deposits decreased seasonally as escrow balances were paid down during the quarter. Also, the escrow accounts for mortgage servicing rights sold in the previous quarter were transferred to the opinion. Atlantic stockholders are urgedpurchaser. This decrease was offset by an increase in time deposits of  $18.2 million during the quarter, mainly due to read the entire opinion carefullyan increase of  $29.6 million in connection with their consideration of the merger proposal.
Material U.S. Federal Income Tax Consequences of the Merger (see page 69)
The merger is intended to qualify as a tax-free reorganization within the meaning of Section 368(a) of the Code. It is a condition to the respective obligations of Ameris and Atlantic to complete the merger that each of Ameris and Atlantic receives a legal opinion to that effect. Accordingly, a, Atlantic stockholder generally will recognize gain, but not loss, in an amount equal to the lesser of: (i) the amount of gain realized (i.e., the excess of the sum of the amount of cash and the fair market value of the Ameris common stock received pursuant to the merger over that holder’s adjusted tax basis in its shares of Atlantic common stock surrendered); and (ii) the amount of cash received pursuant to the merger. Further, an Atlantic stockholder generally will recognize gain or loss with respect to cash received instead of fractional shares of Ameris common stock that the Atlantic stockholder would otherwise be entitled to receive.
The United States federal income tax consequences described above may not apply to all holders of Atlantic common stock. Your tax consequences will depend on your individual situation. Accordingly, we urge you to consult your tax advisor for a full understanding of the particular tax consequences of the merger to you.
Interests of Atlantic Directors and Executive Officers in the Merger (see page 51)
Some of Atlantic’s executive officers and directors have interests in the merger that are in addition to, or different from, the interests of Atlantic stockholders generally. These interests include the following:
•
simultaneously with the execution of the Merger Agreement, John K. Stephens, Jr., the President and Chief Executive Officer of Atlantic and Atlantic Coast Bank, entered into an Executive Non-Competition Agreement with Ameris that provides for the payment to Mr. Stephens of the sum of  $605,000, to be paid in equal installments over a period of eighteen months;
​
•
employment agreements with each of Atlantic’s executive officers provide for certain cash severance benefits if such officers’ employment is terminated following a change in control of Atlantic;
​
•
each Atlantic restricted share award will vest and be converted into the right to receive the merger consideration; and
​
•
Atlantic’s directors and executive officers will be entitled to indemnification by Ameris with respect to claims arising from matters occurring at or prior to the closing of the merger and to coverage under a directors’ and officers’ liability insurance policy for six years after the merger.
​
The board of directors of Atlantic was aware of these interests and considered them, among other matters, in approving and adopting the Merger Agreement and the transactions contemplated by the Merger Agreement, including the merger.
Conditions to Completion of the Merger (see page 64)
The completion of the merger depends on a number of customary conditions being satisfied or, where permitted, waived, including:
•
receipt of the requisite Atlantic stockholder approval;
​
•
receipt of all regulatory authorizations, consents, orders or approvals required to complete the transactions contemplated by the Merger Agreement, including the merger and the bank merger (the “required regulatory approvals”), without them containing orbrokered deposits, resulting in the impositiona decrease in total deposits of  any materially burdensome regulatory condition (as defined under “— Regulatory Approvals”);
​
​
11
TABLE OF CONTENTS
•
no order, injunction$68.4 million, or legal restraint preventing the completion of the merger or the other transactions contemplated by the Merger Agreement, and no law prohibiting or making illegal the completion of the merger;
​
•
the effectiveness of the registration statement of which this proxy statement/prospectus forms a part, and no stop order being entered with respect thereto;
​
•
the accuracy of the representations and warranties in the Merger Agreement, without giving effect to any limitation as to materiality or material adverse effect described in the Merger Agreement;
​
•
the performance in all material respects by Ameris and Atlantic of their respective agreements and covenants under the Merger Agreement; and
​
•
receipt by each of Ameris and Atlantic of an opinion of its respective legal counsel as to certain tax matters related to the merger.
​
No assurance is given as to when, or if, the conditions to the merger will be satisfied or waived, or that the merger will be completed.
Regulatory Approvals (see page 53)
Under applicable law, the merger must be approved by The Board of Governors of the Federal Reserve System (the “Federal Reserve”) and the bank merger of the two bank subsidiaries must be approved by the FDIC. In addition, the Georgia Department of Banking and Finance (the “GDBF”) must also approve the merger and the bank merger of the two bank subsidiaries.
All of the regulatory applications for the required regulatory approvals from the foregoing banking regulators have been filed and are pending as of the date of this proxy statement/prospectus. There is no assurance as to whether all required regulatory approvals will be obtained or as to the dates of the approvals. We make no assurance that the required regulatory approvals can be obtained or that any conditions regarding such regulatory approvals would not reasonably be expected to have a material adverse effect on the surviving company and its subsidiaries, taken as a whole (a “materially burdensome regulatory condition”)1.7%.
Limitations on Discussions With Third Parties (see page 62)
Atlantic has agreedYear over year, deposits grew by $114.4 million or 3.0%, primarily due to a number of limitations with respect to soliciting, negotiatinggrowth in non-interest bearing demand deposits and discussing, or accepting acquisition proposals (as defined under “The Merger Agreement — Limitations on Discussions With Third Parties”) involving persons other than Ameris, and to certain related matters. The Merger Agreement does not, however, prohibit Atlantic from considering prior to the special meeting an unsolicited, bona fide acquisition proposal from a third party if certain conditions specified in the Merger Agreement are met.
Termination Rights; Termination Fee (see pages 65 and 67)
Ameris and Atlantic may mutually agree to terminate the Merger Agreement and abandon the merger at any time prior to the effective time. Subject to conditions and circumstances described in the Merger Agreement, the Merger Agreement may be terminated prior to the effective time as follows:
•
by either party if, under certain circumstances, the merger is not completed by June 30, 2018 (unless such termination date is extended by either party as provided in the Merger Agreement);
​
•
by either party, if events that have had, or would reasonably be expected to have, a material adverse effect on the other party have occurred and are continuing;
​
•
by either party, if the other party materially breaches any covenant, obligation or agreement in the Merger Agreement, subject to the cure provisions provided in the Merger Agreement;
​
•
by Ameris, if Ameris learns of any fact or condition that would reasonably be expected to have a material adverse effect on Ameris or Atlantic and which Atlantic was required, but failed, to disclose;
​
​
12
TABLE OF CONTENTS
•
by either party, if any required regulatory approval has been denied or any governmental authority of competent jurisdiction has issued a final, nonappealable injunction permanently enjoining or prohibiting the completion of the transactions contemplated by the Merger Agreement, including the merger or the bank merger of the two bank subsidiaries;
​
•
by either party, if the requisite Atlantic stockholder approval is not obtained; and
​
•
by Atlantic, prior to obtaining the requisite Atlantic stockholder approval, to enter into another proposed offer.
​
In addition, if the average closing price of one share of Ameris common stock during the determination period has declined by more than 15% from its price on November 15, 2017, of  $46.95 per share, and Ameris common stock underperforms the KBW Nasdaq Regional Banking Index (KRX) by more than 15% during such period, then Atlantic may terminate the Merger Agreement unless Ameris increases the exchange ratio or contributes sufficient additional cash consideration (provided that doing so would not prevent the merger from qualifying as a tax-free reorganization within the meaning of Section 368(a) of the Code) for payment to Atlantic stockholders to offset any reduction in the value of the stock consideration attributable to such decline.
Atlantic must pay to Ameris a termination fee equal to $5.75 million if an acquisition proposal (as defined under “The Merger Agreement — Limitations on Discussions With Third Parties”) is outstanding, or has been accepted by Atlantic, and the Merger Agreement is terminated:
•
by either party because the merger is not completed on or before June 30, 2018; or
​
•
by Atlantic other than because (i) events have occurred and are continuing that have had, or would reasonably be expected to have, a material adverse effect on Ameris, or (ii) Ameris has materially breached any covenant, obligation or agreement in the Merger Agreement, subject to the cure provisions provided therein.
​
Atlantic also must pay to Ameris the termination fee of  $5.75 million if Ameris terminates the Merger Agreement after an adverse Atlantic recommendation change (as defined under “The Merger Agreement — Atlantic Board Recommendation”) by the board of directors of Atlantic.
Accounting Treatment (see page 53)
The merger will be accounted for as a purchase for financial reporting and accounting purposes under generally accepted accounting principles in the United States (“GAAP”).
Dissenters’ Rights (see page 53)
Under Maryland law, holders of Atlantic common stock do not have the right to dissent from the Merger Agreement and seek an appraisal in connection with the merger.
NASDAQ Listing (see page 62)
Ameris has agreed to list on the NASDAQ Global Select Market, by the closing date, the shares of Ameris common stock to be issued to Atlantic stockholders in the merger.
Resale of Ameris Common Stock
All shares of Ameris common stock received by Atlantic stockholders in the merger will be freely tradable for purposes of the Securities Act of 1933, as amended (the “Securities Act”), except for shares of Ameris common stock received by any such holder who becomes an “affiliate” of Ameris after the completion of the merger. This proxy statement/prospectus does not cover resales of shares of Ameris common stock received by any person upon completion of the merger, and no person is authorized to make any use of this proxy statement/prospectus in connection with any resale.money market accounts.
13
TABLE OF CONTENTS
Comparison of Shareholder Rights (see page 73)
Atlantic stockholders, whose rights are currently governed by Atlantic’s articles of incorporation, Atlantic’s bylaws and Maryland law, will, upon completion of the merger, become shareholders of Ameris and their rights will be governed by Ameris’s articles of incorporation, Ameris’s bylaws, and Georgia law.
Risk Factors (see page 21)
You should consider all the information contained in or incorporated by reference into this proxy statement/prospectus in deciding how to vote for the proposals presented in this proxy statement/prospectus. In particular, you should consider the factors described under “Risk Factors” beginning on page 21.
1424
TABLE OF CONTENTS​
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF AMERIS
The following selected historical consolidated financial data as of and for the year ended December 31, 2016, 2015, 2014, 2013, and 2012, is derived from the audited consolidated financial statements of Ameris. The following selected historical consolidated financial data as of and for the nine months ended September 30, 2017, and 2016, is derived from the unaudited consolidated financial statements of Ameris and has been prepared on the same basis as the selected historical consolidated financial data derived from the audited consolidated financial statements and, in the opinion of Ameris’s management, reflects all adjustments, consisting only of normal recurring adjustments, necessary for a fair presentation of this data for those dates.
The results of operations as of and for the nine months ended September 30, 2017, are not necessarily indicative of the results that may be expected for the year ended December 31, 2017 or any future period. You should read the following selected historical consolidated financial data in conjunction with: (i) the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and Ameris’s audited consolidated financial statements and accompanying notes included in Ameris’s Annual Report on Form 10-K for the year ended December 31, 2016; and (ii) the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and Ameris’s unaudited consolidated financial statements and accompanying notes included in Ameris’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2017, both of which are incorporated by reference into this proxy statement/prospectus. See “Certain Documents Incorporated by Reference.”
Ameris’s “tangible book value per common share” is determined by methods other than in accordance with GAAP. See “— Reconciliation of Non-GAAP Financial Measures” below for a reconciliation ofMeasures
The following information reconciles Ameris’s tangible book value per common share, a non-GAAP financial measure, as of the periods presented to Ameris’s book value per common share, a financial measure calculated and presented in accordance with GAAP.GAAP, as of the periods presented.
​​​Nine Months Ended
September 30,		​​Years Ended December 31,​
​​​2017​​2016​​2016​​2015​​2014​​2013​​2012​
​​​(unaudited)​​(audited)​
​​​(In thousands, except per share data and ratios)​
Selected Balance Sheet Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Total assets​​​$7,649,820​​​​$6,493,495​​​​$6,892,031​​​​$5,588,940​​​​$4,037,077​​​​$3,667,649​​​​$3,019,052​​
Earning assets​​​​7,074,828​​​​​5,925,072​​​​​6,293,670​​​​​5,084,658​​​​​3,574,561​​​​​3,232,769​​​​​2,554,551​​
Loans held for sale​​​​137,392​​​​​126,263​​​​​105,924​​​​​111,182​​​​​94,759​​​​​67,278​​​​​48,786​​
Loans, net of unearned income​​​​4,574,678​​​​​3,091,039​​​​​3,626,821​​​​​2,406,877​​​​​1,889,881​​​​​1,618,454​​​​​1,450,635​​
Purchased, non-covered loans (excluding loan pools)​​​​885,256​​​​​1,067,090​​​​​1,011,031​​​​​771,554​​​​​674,239​​​​​448,753​​​​​—​​
Purchased, non-covered loan pools​​​​465,218​​​​​624,886​​​​​568,314​​​​​592,963​​​​​—​​​​​—​​​​​—​​
Covered loans​​​​31,870​​​​​62,291​​​​​58,160​​​​​137,529​​​​​271,279​​​​​390,237​​​​​507,712​​
Investment securities available for sale​​​​819,593​​​​​838,124​​​​​822,735​​​​​783,185​​​​​541,805​​​​​486,235​​​​​346,909​​
FDIC loss-share receivable, net of clawback​​​​—​​​​​—​​​​​—​​​​​6,301​​​​​31,351​​​​​65,441​​​​​159,724​​
Total deposits​​​​5,895,504​​​​​5,306,098​​​​​5,575,163​​​​​4,879,290​​​​​3,431,149​​​​​2,999,231​​​​​2,624,663​​
FDIC loss-share payable including clawback​​​​8,190​​​​​7,775​​​​​6,313​​​​​—​​​​​—​​​​​—​​​​​—​​
Shareholders’ equity​​​​801,921​​​​​642,583​​​​​646,437​​​​​514,759​​​​​366,028​​​​​316,699​​​​​279,017​​
Selected Income Statement Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Interest income​​​$214,783​​​​$176,109​​​​$239,065​​​​$190,393​​​​$164,566​​​​$126,322​​​​$129,479​​
Interest expense​​​​24,181​​​​​14,017​​​​​19,694​​​​​14,856​​​​​14,680​​​​​10,137​​​​​15,074​​
Net interest income​​​​190,602​​​​​162,092​​​​​219,371​​​​​175,537​​​​​149,886​​​​​116,185​​​​​114,405​​
Provision for loan losses​​​​5,828​​​​​2,381​​​​​4,091​​​​​5,264​​​​​5,648​​​​​11,486​​​​​31,089​​
Noninterest income​​​​80,894​​​​​81,529​​​​​105,801​​​​​85,586​​​​​62,836​​​​​46,549​​​​​57,874​​
Noninterest expenses​​​​172,599​​​​​161,158​​​​​215,835​​​​​199,115​​​​​150,869​​​​​121,945​​​​​119,470​​
Income before income taxes​​​​93,069​​​​​80,082​​​​​105,246​​​​​56,744​​​​​56,205​​​​​29,303​​​​​21,720​​
Income tax expense​​​​28,671​​​​​26,159​​​​​33,146​​​​​15,897​​​​​17,482​​​​​9,285​​​​​7,285​​
Net income​​​​64,398​​​​​53,923​​​​​72,100​​​​​40,847​​​​​38,723​​​​​20,018​​​​​14,435​​
Preferred stock dividends​​​​—​​​​​—​​​​​—​​​​​—​​​​​286​​​​​1,738​​​​​3,577​​
Net income available to common shareholders ​​​​64,398​​​​​53,923​​​​​72,100​​​​​40,847​​​​​38,437​​​​​18,280​​​​​10,858​​
1521
TABLE OF CONTENTS
​​​Nine Months Ended
September 30,		​​Years Ended December 31,​
​​​2017​​2016​​2016​​2015​​2014​​2013​​2012​
​​​(unaudited)​​(audited)​
​​​(In thousands, except per share data and ratios)​
Per Share Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Earnings per share available to common shareholders:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Basic​​​$1.76​​​​$1.58​​​​$2.10​​​​$1.29​​​​$1.48​​​​$0.76​​​​$0.46​​
Diluted​​​​1.74​​​​​1.56​​​​​2.08​​​​​1.27​​​​​1.46​​​​​0.75​​​​​0.46​​
Common book value​​​​21.54​​​​​18.42​​​​​18.51​​​​​15.98​​​​​13.67​​​​​11.50​​​​​10.56​​
Tangible book value​​​​17.78​​​​​14.38​​​​​14.42​​​​​12.65​​​​​10.99​​​​​9.87​​​​​10.39​​
Cash dividends declared per share​​​​0.30​​​​​0.20​​​​​0.30​​​​​0.20​​​​​0.15​​​​​—​​​​​—​​
Profitability Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Net income to average total assets​​​​1.20%​​​​​1.19%​​​​​1.17%​​​​​0.85%​​​​​1.08%​​​​​0.70%​​​​​0.49%​​
Net income to average common shareholders’ equity​​​​11.39%​​​​​12.01%​​​​​11.75%​​​​​8.37%​​​​​12.40%​​​​​8.06%​​​​​5.99%​​
Net interest margin (fully taxable equivalent basis)​​​​3.96%​​​​​4.01%​​​​​3.99%​​​​​4.12%​​​​​4.59%​​​​​4.74%​​​​​4.60%​​
Efficiency ratio​​​​63.57%​​​​​66.15%​​​​​66.38%​​​​​76.25%​​​​​70.92%​​​​​74.94%​​​​​69.35%​​
Loan Quality Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Net charge-offs to average loans*​​​​0.13%​​​​​0.10%​​​​​0.11%​​​​​0.22%​​​​​0.34%​​​​​0.75%​​​​​2.87%​​
Allowance for loan losses to total loans*​​​​0.46%​​​​​0.63%​​​​​0.56%​​​​​0.85%​​​​​1.12%​​​​​1.38%​​​​​1.63%​​
Non-performing assets to total loans and OREO**​​​​0.94%​​​​​1.25%​​​​​1.12%​​​​​1.60%​​​​​3.35%​​​​​3.49%​​​​​5.28%​​
Liquidity Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Loans to total deposits​​​​101.04%​​​​​91.32%​​​​​94.42%​​​​​80.11%​​​​​82.64%​​​​​81.94%​​​​​74.61%​​
Average loans to average earning assets​​​​83.42%​​​​​80.49%​​​​​80.83%​​​​​75.96%​​​​​80.22%​​​​​78.08%​​​​​77.83%​​
Noninterest-bearing deposits to total deposits ​​​​29.14%​​​​​29.46%​​​​​28.22%​​​​​27.26%​​​​​24.46%​​​​​22.29%​​​​​19.46%​​
Capital Adequacy Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Shareholders’ equity to total assets​​​​10.48%​​​​​9.90%​​​​​9.38%​​​​​9.21%​​​​​9.07%​​​​​8.63%​​​​​9.24%​​
Common stock dividend payout ratio ​​​​17.05%​​​​​12.66%​​​​​14.29%​​​​​15.50%​​​​​10.14%​​​​​0.00%​​​​​0.00%​​
​​​Three Months Ended​​Year Ended​
(dollars in thousands except per share data)​​December
2018		​​September
2018		​​June
2018		​​March
2018		​​December
2017		​​December
2018		​​December
2017		​
Total shareholders’ equity​​​$1,456,347​​​​$1,404,977​​​​$1,371,896​​​​$868,944​​​​$804,479​​​​$1,456,347​​​​$804,479​​
Less:​​​​​​​​
Goodwill​​​​503,434​​​​​505,604​​​​​504,764​​​​​208,513​​​​​125,532​​​​​503,434​​​​​125,532​​
Other intangibles, net​​​​58,689​​​​​54,729​​​​​53,561​​​​​12,562​​​​​13,496​​​​​58,689​​​​​13,496​​
Total tangible shareholders’ equity​​​$894,224​​​​$844,644​​​​$813,571​​​​$647,869​​​​$665,451​​​​$894,224​​​​$665,451​​
Period end number of shares​​​​47,499,941​​​​​47,496,966​​​​​47,518,662​​​​​38,327,081​​​​​37,260,012​​​​​47,499,941​​​​​37,260,012​​
Book value per share (period end)​​​$30.66​​​​$29.58​​​​$28.87​​​​$22.67​​​​$21.59​​​​$30.66​​​​$21.59​​
Tangible book value per share (period end) ​​​$18.83​​​​$17.78​​​​$17.12​​​​$16.90​​​​$17.86​​​​$18.83​​​​$17.86​​
​
Fidelity Southern Corporation Year End 2018 Financial Results
*
On January 17, 2019, Fidelity issued a press release announcing its financial results for the fourth quarter and year ended December 31, 2018. The press release was included as an exhibit to the Current Report on Form 8-K furnished to the SEC by Fidelity on January 18, 2019.
Excludes purchased non-coveredFidelity’s audited consolidated financial statements for year ended December 31, 2018 are not yet available. Accordingly, the financial results presented below are preliminary and coveredsubject to the completion of Fidelity’s financial closing procedures and any adjustments that may result from the completion of the review of its consolidated financial statements. As a result, these preliminary results may differ from the actual results that will be reflected in Fidelity’s audited consolidated financial statements for the year ended December 31, 2018 when they are completed and publicly disclosed. These preliminary results may change and those changes may be material.
Fidelity’s expectations with respect to its unaudited results for the period discussed below are based upon management estimates and are the responsibility of management. Fidelity’s independent registered public accounting firm has not audited, reviewed or performed any procedures with respect to these preliminary results and, accordingly, does not express an opinion or any other form of assurance about them.
Results of Operations
Fidelity reported net income of  $43.8 million, or $1.61 per diluted share, for the year ended December 31, 2018, compared with $39.8 million, or $1.49 per diluted share, for 2017. For the quarter ending December 31, 2018, reported results include net income of  $9.9 million, or $0.36 per diluted share, compared with $12.4 million, or $0.46 per diluted share, for the same period in 2017.
Interest income for the quarter ended December 31, 2018 of  $48.3 million was higher by $1.4 million, compared to the prior quarter, driven by moderate increases in loan, investment and Fed Funds income. Although average loans decreased by $105.5 million for the quarter, $70.2 million of this was due to a decrease in lower yielding indirect loans, which were partially replaced in the portfolio mix with higher yielding commercial and SBA loans. An increase in average investment securities of  $57.5 million and an increase in average Fed Funds and bank deposit balances of  $33.7 million also contributed to higher interest income. The yield on total average interest-bearing assets also increased 14 basis points from the previous quarter. As compared to the same period in the prior year, interest income increased by $6.6 million as average loans increased by $172.7 million and the yield on total average interest-bearing assets increased by 35 basis points, as market interest rates rose year over year. Interest income was $181.4 million for the year ended December 31, 2018, an increase of  $23.5 million compared to the same period in the prior year, primarily due to an increase of 21 basis points in the yield on loans and an increase of  $324.7 million in average loans.
​Interest expense of  $8.7 million increased slightly by $588,000, or 7.2%, for the quarter ended December 31, 2018 as average FHLB borrowings increased by $8.8 million. As compared to the fourth quarter of the prior year, interest expense increased by $2.9 million. Rising market rates paid on money
**
Excludes covered assets
​
​
1622
TABLE OF CONTENTS
market deposits and CD’s drove the increase, as well as increased volume and rates for short term borrowings. For the year ended December 31, 2018, interest expense increased by $9.2 million, or 40.3%, compared to previous year, as market rates and deposit balances increased over the twelve months ended December 31, 2018.
The net interest margin was 3.54% for the quarter ended December 31, 2018 compared to 3.45% in the previous quarter, an increase of 9 basis points. Loan coupon yields, excluding fees, SBA discount accretion, and accretable yields, increased faster than deposit and borrowing costs during the quarter.
The yield on total average interest-bearing liabilities increased by only 9 basis points while the yield on total average interest-earning assets increased by 14 basis points from 4.18% to 4.32%. Average loans decreased by $105.5 million, of which $70.2 million was a decrease in lower yielding indirect auto loans. Higher yielding investment securities increased by $57.5 million as Fidelity Bank’s strategy to reposition its balance sheet continues to occur.
Average total interest-bearing liabilities decreased by $24.2 million, average deposits decreased by $33.1 million, offset by an increase in average borrowings of  $8.8 million in order to help fund loan production.
As compared to the same period a year ago, the net interest margin for the quarter ended December 31, 2018 increased by 12 basis points to 3.54% from 3.42%, primarily due to a 35 basis point increase in the yield on total average interest-earning assets of  $4.4 billion, offset by an increase of 35 basis points in the yield on total average interest-bearing liabilities of  $3.1 billion. Average earning assets increased by $271.6 million, primarily due to an increase in average loans over the year. Average interest-bearing liabilities increased by $117.8 million, primarily driven by an increase in average borrowings of  $146.7 million, offset by a decrease in average interest-bearing deposits of  $29.0 million.
On a linked-quarter basis, noninterest income for the quarter ended December 31, 2018 decreased by $2.6 million, or 7.7%, largely due to a decrease in other noninterest income of  $2.8 million, primarily due to the $2.6 million death benefit received from life insurance policies during the previous quarter. Mortgage banking activities decreased by $1.9 million, or 8.1%, as gross mortgage revenue decreased by $2.8 million and mortgage production also decreased by $121.6 million. These decreases were offset by an increase in SBA lending activities of  $2.5 million, mainly due to a large SBA loan sale in December, as well as an increase in SBA loan closings during the quarter. Compared to the same period a year ago, noninterest income for the quarter increased by $2.2 million, primarily due to a $2.9 million increase in SBA banking activities, as SBA loan sales were higher in the current quarter as discussed above. For the year ended December 31, 2018, noninterest income increased by $3.9 million as all sources of noninterest income increased, except for indirect lending activities, which decreased by $7.3 million, as indirect loan sales and production decreased significantly during the year.
On a linked-quarter basis, total noninterest expense for the quarter ended December 31, 2018 increased by $528,000, or 0.9%, mainly due to an increase in other expenses of  $2.4 million, of which $1.2 million were merger related expenses. This increase was offset by a decrease in commissions expense of  $1.7 million from lower mortgage loan originations for the quarter. Compared to the prior year quarter, noninterest expense of  $56.1 increased by $3.2 million, or 6.1%. Salaries and employee benefits increased by $3.2 million, or 12.4%, compared to the same quarter in 2017, primarily due to $2.6 million of merger related expenses. For the year ended December 31, 2018, total noninterest expense increased $14.4 million compared to the previous year, of which $10.2 million was due to an increase in salaries and benefits. Salaries increased by $3.8 million, partially due to a $2.7 million increase in employee incentives due to performance and related to the balance sheet strategies implemented earlier in the year, and from a comparison perspective, no executive incentives were paid in 2017. Other expense increased by $2.8 million, of which $1.2 million was merger related expenses.
On a linked-quarter basis, income tax expense for the quarter ended December 31, 2018 remained relatively flat. The effective tax rate increased to 28% from 23% due to a $2.6 million tax-free death benefit received from life insurance policies in the previous quarter. For the year ended December 31, 2018, income tax expense decreased by $1.5 million as the effective tax rate decreased from 28% to 24% primarily as a result of the Tax Cuts and Jobs Act enacted on December 22, 2017, which included, among other things, a reduction in the federal corporate income tax rate from 35% to 21% from the beginning of the tax year 2018 going forward.
23
TABLE OF CONTENTS
Balance Sheet Trends
Total assets decreased by $78.3 million, or 1.6%, during the quarter, to $4.7 billion at December 31, 2018, primarily due to a decrease of  $153.5 million in total loans. This decrease was primarily due to a decrease in loans held for sale of  $132.0 million, as well as a decrease of  $21.5 million in loans held for investment. The decrease in loans held for sale was primarily in mortgage loans, which decreased $102.7 million, as seasonal production decreased. Other assets also decreased by $3.0 million.
Offsetting these decreases, investments increased by $42.2 million as Fidelity Bank continues to increase its investments available-for-sale portfolio as part of its strategy to reposition the balance sheet to higher yielding assets. Cash balances also increased by $29.6 million for the quarter. Loan servicing assets also increased by $3.4 million.
Total assets grew by $156.9 million, or 3.4%, to $4.7 billion at December 31, 2018, compared to $4.6 billion at December 31, 2017. Primary drivers for the year over year growth were an increase in cash of $26.0 million and an increase in investments available-for-sale of  $131.5 million as Fidelity Bank repositioned its balance sheet to higher yielding investments over the year.
Total loans, including loans held for sale, decreased during the quarter by $153.5 million, or 3.8%, to $3.9 billion at December 31, 2018. This reduction was primarily due to a decrease in loans held for sale of $132.0 million, primarily mortgage loans held for sale, which accounted for $102.7 million of the decrease.
Total loans decreased by $13.9 million, or 0.4%, compared to December 31, 2017, as loans held for sale decreased by $118.5 million, offset by an increase in loans held for investment of  $104.5 million. Loans held for sale decreased due to lower sales of mortgage loans and indirect auto loans. The growth in loans was primarily in commercial and mortgage loans, while average indirect auto loans for the quarter decreased by $70.2 million.
Compared to 2017, the provision for loan losses for the year increased by $1.2 million, or 29.1%, mainly due to increases in commercial loan balances.
Core deposits decreased by $86.6 million during the quarter to $3.1 billion with seasonal decreases in all categories. Noninterest bearing deposits decreased by 2.8% as escrow deposits decreased seasonally as escrow balances were paid down during the quarter. Also, the escrow accounts for mortgage servicing rights sold in the previous quarter were transferred to the purchaser. This decrease was offset by an increase in time deposits of  $18.2 million during the quarter, mainly due to an increase of  $29.6 million in brokered deposits, resulting in a decrease in total deposits of  $68.4 million, or 1.7%.
Year over year, deposits grew by $114.4 million or 3.0%, primarily due to growth in non-interest bearing demand deposits and money market accounts.
24
TABLE OF CONTENTS​
Reconciliation of Non-GAAP Financial Measures
The following information reconciles Ameris’s tangible book value per common share, a non-GAAP financial measure, as of the periods presented to Ameris’s book value per common share, a financial measure calculated and presented in accordance with GAAP, as of the periods presented.
21
TABLE OF CONTENTS
​​​Three Months Ended​​Year Ended​
(dollars in thousands except per share data)​​December
2018		​​September
2018		​​June
2018		​​March
2018		​​December
2017		​​December
2018		​​December
2017		​
Total shareholders’ equity​​​$1,456,347​​​​$1,404,977​​​​$1,371,896​​​​$868,944​​​​$804,479​​​​$1,456,347​​​​$804,479​​
Less:​​​​​​​​
Goodwill​​​​503,434​​​​​505,604​​​​​504,764​​​​​208,513​​​​​125,532​​​​​503,434​​​​​125,532​​
Other intangibles, net​​​​58,689​​​​​54,729​​​​​53,561​​​​​12,562​​​​​13,496​​​​​58,689​​​​​13,496​​
Total tangible shareholders’ equity​​​$894,224​​​​$844,644​​​​$813,571​​​​$647,869​​​​$665,451​​​​$894,224​​​​$665,451​​
Period end number of shares​​​​47,499,941​​​​​47,496,966​​​​​47,518,662​​​​​38,327,081​​​​​37,260,012​​​​​47,499,941​​​​​37,260,012​​
Book value per share (period end)​​​$30.66​​​​$29.58​​​​$28.87​​​​$22.67​​​​$21.59​​​​$30.66​​​​$21.59​​
Tangible book value per share (period end) ​​​$18.83​​​​$17.78​​​​$17.12​​​​$16.90​​​​$17.86​​​​$18.83​​​​$17.86​​
Fidelity Southern Corporation Year End 2018 Financial Results
On January 17, 2019, Fidelity issued a press release announcing its financial results for the fourth quarter and year ended December 31, 2018. The press release was included as an exhibit to the Current Report on Form 8-K furnished to the SEC by Fidelity on January 18, 2019.
Fidelity’s audited consolidated financial statements for year ended December 31, 2018 are not yet available. Accordingly, the financial results presented below are preliminary and subject to the completion of Fidelity’s financial closing procedures and any adjustments that may result from the completion of the review of its consolidated financial statements. As a result, these preliminary results may differ from the actual results that will be reflected in Fidelity’s audited consolidated financial statements for the year ended December 31, 2018 when they are completed and publicly disclosed. These preliminary results may change and those changes may be material.
Fidelity’s expectations with respect to its unaudited results for the period discussed below are based upon management estimates and are the responsibility of management. Fidelity’s independent registered public accounting firm has not audited, reviewed or performed any procedures with respect to these preliminary results and, accordingly, does not express an opinion or any other form of assurance about them.
Results of Operations
Fidelity reported net income of  $43.8 million, or $1.61 per diluted share, for the year ended December 31, 2018, compared with $39.8 million, or $1.49 per diluted share, for 2017. For the quarter ending December 31, 2018, reported results include net income of  $9.9 million, or $0.36 per diluted share, compared with $12.4 million, or $0.46 per diluted share, for the same period in 2017.
Interest income for the quarter ended December 31, 2018 of  $48.3 million was higher by $1.4 million, compared to the prior quarter, driven by moderate increases in loan, investment and Fed Funds income. Although average loans decreased by $105.5 million for the quarter, $70.2 million of this was due to a decrease in lower yielding indirect loans, which were partially replaced in the portfolio mix with higher yielding commercial and SBA loans. An increase in average investment securities of  $57.5 million and an increase in average Fed Funds and bank deposit balances of  $33.7 million also contributed to higher interest income. The yield on total average interest-bearing assets also increased 14 basis points from the previous quarter. As compared to the same period in the prior year, interest income increased by $6.6 million as average loans increased by $172.7 million and the yield on total average interest-bearing assets increased by 35 basis points, as market interest rates rose year over year. Interest income was $181.4 million for the year ended December 31, 2018, an increase of  $23.5 million compared to the same period in the prior year, primarily due to an increase of 21 basis points in the yield on loans and an increase of  $324.7 million in average loans.
Interest expense of  $8.7 million increased slightly by $588,000, or 7.2%, for the quarter ended December 31, 2018 as average FHLB borrowings increased by $8.8 million. As compared to the fourth quarter of the prior year, interest expense increased by $2.9 million. Rising market rates paid on money
22
TABLE OF CONTENTS
market deposits and CD’s drove the increase, as well as increased volume and rates for short term borrowings. For the year ended December 31, 2018, interest expense increased by $9.2 million, or 40.3%, compared to previous year, as market rates and deposit balances increased over the twelve months ended December 31, 2018.
The net interest margin was 3.54% for the quarter ended December 31, 2018 compared to 3.45% in the previous quarter, an increase of 9 basis points. Loan coupon yields, excluding fees, SBA discount accretion, and accretable yields, increased faster than deposit and borrowing costs during the quarter.
The yield on total average interest-bearing liabilities increased by only 9 basis points while the yield on total average interest-earning assets increased by 14 basis points from 4.18% to 4.32%. Average loans decreased by $105.5 million, of which $70.2 million was a decrease in lower yielding indirect auto loans. Higher yielding investment securities increased by $57.5 million as Fidelity Bank’s strategy to reposition its balance sheet continues to occur.
Average total interest-bearing liabilities decreased by $24.2 million, average deposits decreased by $33.1 million, offset by an increase in average borrowings of  $8.8 million in order to help fund loan production.
As compared to the same period a year ago, the net interest margin for the quarter ended December 31, 2018 increased by 12 basis points to 3.54% from 3.42%, primarily due to a 35 basis point increase in the yield on total average interest-earning assets of  $4.4 billion, offset by an increase of 35 basis points in the yield on total average interest-bearing liabilities of  $3.1 billion. Average earning assets increased by $271.6 million, primarily due to an increase in average loans over the year. Average interest-bearing liabilities increased by $117.8 million, primarily driven by an increase in average borrowings of  $146.7 million, offset by a decrease in average interest-bearing deposits of  $29.0 million.
On a linked-quarter basis, noninterest income for the quarter ended December 31, 2018 decreased by $2.6 million, or 7.7%, largely due to a decrease in other noninterest income of  $2.8 million, primarily due to the $2.6 million death benefit received from life insurance policies during the previous quarter. Mortgage banking activities decreased by $1.9 million, or 8.1%, as gross mortgage revenue decreased by $2.8 million and mortgage production also decreased by $121.6 million. These decreases were offset by an increase in SBA lending activities of  $2.5 million, mainly due to a large SBA loan sale in December, as well as an increase in SBA loan closings during the quarter. Compared to the same period a year ago, noninterest income for the quarter increased by $2.2 million, primarily due to a $2.9 million increase in SBA banking activities, as SBA loan sales were higher in the current quarter as discussed above. For the year ended December 31, 2018, noninterest income increased by $3.9 million as all sources of noninterest income increased, except for indirect lending activities, which decreased by $7.3 million, as indirect loan sales and production decreased significantly during the year.
On a linked-quarter basis, total noninterest expense for the quarter ended December 31, 2018 increased by $528,000, or 0.9%, mainly due to an increase in other expenses of  $2.4 million, of which $1.2 million were merger related expenses. This increase was offset by a decrease in commissions expense of  $1.7 million from lower mortgage loan originations for the quarter. Compared to the prior year quarter, noninterest expense of  $56.1 increased by $3.2 million, or 6.1%. Salaries and employee benefits increased by $3.2 million, or 12.4%, compared to the same quarter in 2017, primarily due to $2.6 million of merger related expenses. For the year ended December 31, 2018, total noninterest expense increased $14.4 million compared to the previous year, of which $10.2 million was due to an increase in salaries and benefits. Salaries increased by $3.8 million, partially due to a $2.7 million increase in employee incentives due to performance and related to the balance sheet strategies implemented earlier in the year, and from a comparison perspective, no executive incentives were paid in 2017. Other expense increased by $2.8 million, of which $1.2 million was merger related expenses.
On a linked-quarter basis, income tax expense for the quarter ended December 31, 2018 remained relatively flat. The effective tax rate increased to 28% from 23% due to a $2.6 million tax-free death benefit received from life insurance policies in the previous quarter. For the year ended December 31, 2018, income tax expense decreased by $1.5 million as the effective tax rate decreased from 28% to 24% primarily as a result of the Tax Cuts and Jobs Act enacted on December 22, 2017, which included, among other things, a reduction in the federal corporate income tax rate from 35% to 21% from the beginning of the tax year 2018 going forward.
23
TABLE OF CONTENTS
Balance Sheet Trends
Total assets decreased by $78.3 million, or 1.6%, during the quarter, to $4.7 billion at December 31, 2018, primarily due to a decrease of  $153.5 million in total loans. This decrease was primarily due to a decrease in loans held for sale of  $132.0 million, as well as a decrease of  $21.5 million in loans held for investment. The decrease in loans held for sale was primarily in mortgage loans, which decreased $102.7 million, as seasonal production decreased. Other assets also decreased by $3.0 million.
Offsetting these decreases, investments increased by $42.2 million as Fidelity Bank continues to increase its investments available-for-sale portfolio as part of its strategy to reposition the balance sheet to higher yielding assets. Cash balances also increased by $29.6 million for the quarter. Loan servicing assets also increased by $3.4 million.
Total assets grew by $156.9 million, or 3.4%, to $4.7 billion at December 31, 2018, compared to $4.6 billion at December 31, 2017. Primary drivers for the year over year growth were an increase in cash of $26.0 million and an increase in investments available-for-sale of  $131.5 million as Fidelity Bank repositioned its balance sheet to higher yielding investments over the year.
Total loans, including loans held for sale, decreased during the quarter by $153.5 million, or 3.8%, to $3.9 billion at December 31, 2018. This reduction was primarily due to a decrease in loans held for sale of $132.0 million, primarily mortgage loans held for sale, which accounted for $102.7 million of the decrease.
Total loans decreased by $13.9 million, or 0.4%, compared to December 31, 2017, as loans held for sale decreased by $118.5 million, offset by an increase in loans held for investment of  $104.5 million. Loans held for sale decreased due to lower sales of mortgage loans and indirect auto loans. The growth in loans was primarily in commercial and mortgage loans, while average indirect auto loans for the quarter decreased by $70.2 million.
Compared to 2017, the provision for loan losses for the year increased by $1.2 million, or 29.1%, mainly due to increases in commercial loan balances.
Core deposits decreased by $86.6 million during the quarter to $3.1 billion with seasonal decreases in all categories. Noninterest bearing deposits decreased by 2.8% as escrow deposits decreased seasonally as escrow balances were paid down during the quarter. Also, the escrow accounts for mortgage servicing rights sold in the previous quarter were transferred to the purchaser. This decrease was offset by an increase in time deposits of  $18.2 million during the quarter, mainly due to an increase of  $29.6 million in brokered deposits, resulting in a decrease in total deposits of  $68.4 million, or 1.7%.
Year over year, deposits grew by $114.4 million or 3.0%, primarily due to growth in non-interest bearing demand deposits and money market accounts.
24
TABLE OF CONTENTS​
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF AMERIS
The following table summarizes certain selected consolidated historical financial data of Ameris for the periods presented. The selected historical financial data as of and for the nine months ended September 30, 2018 and 2017 have been derived from Ameris’s unaudited interim consolidated financial statements, which are incorporated by reference into this joint proxy statement/prospectus. The unaudited consolidated financial statements include all adjustments, consisting only of normal recurring items, which Ameris’s management considers necessary for a fair presentation of its financial position and results of operations for these periods. The financial condition and results of operations as of and for the nine months ended September 30, 2018 do not purport to be indicative of the financial condition or results of operations to be expected as of or for the year ended December 31, 2018. The unaudited consolidated financial statements as of September 30, 2018 and for the nine-month periods ended September 30, 2018 and 2017, together with the notes thereto, are included in Ameris’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2018, which is incorporated by reference into this joint proxy statement/prospectus. The selected historical financial data as of and for the years ended December 31, 2017, 2016, 2015, 2014 and 2013 has been derived from Ameris’s audited consolidated financial statements, and Ameris’s audited consolidated financial statements as of December 31, 2017 and 2016 and for each of the years in the three-year period ended December 31, 2017 have been incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information.”
The selected consolidated historical financial data of Ameris presented below is only a summary and not necessarily indicative of the results of future operations of Ameris or the combined company following the completion of the merger, and you should read such information together with the historical consolidated financial information contained in Ameris’s consolidated financial statements and related notes, as well as the information contained under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Ameris’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2018 and Ameris’s Annual Report on Form 10-K for the year ended December 31, 2017, which are incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information.”
Ameris’s “tangible book value per common share” is determined by methods other than in accordance with GAAP. See “— Reconciliation of Non-GAAP Financial Measures” below for a reconciliation of Ameris’s tangible book value per common share, a non-GAAP financial measure, to book value per common share, a financial measure calculated and presented in accordance with GAAP.
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
​​​(unaudited)​​(audited)​
​​​(In thousands, except per share data and ratios)​
Selected Balance Sheet Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Total assets​​​$11,428,994​​​​$7,649,820​​​​$7,856,203​​​​$6,892,031​​​​$5,588,940​​​​$4,037,077​​​​$3,667,649​​
Earning assets​​​​10,340,558​​​​​7,074,828​​​​​7,288,285​​​​​6,293,670​​​​​5,084,658​​​​​3,574,561​​​​​3,232,769​​
Loans held for sale​​​​130,179​​​​​137,392​​​​​197,442​​​​​105,924​​​​​111,182​​​​​94,759​​​​​67,278​​
Loans, net of unearned
income		​​​​5,543,306​​​​​4,574,678​​​​​4,856,514​​​​​3,626,821​​​​​2,406,877​​​​​1,889,881​​​​​1,618,454​​
Purchased loans​​​​2,711,460​​​​​917,126​​​​​861,595​​​​​1,069,191​​​​​909,083​​​​​945,518​​​​​838,990​​
Purchased loan pools​​​​274,752​​​​​465,218​​​​​328,246​​​​​568,314​​​​​592,963​​​​​—​​​​​—​​
Investment securities available for
sale		​​​​1,162,570​​​​​819,593​​​​​810,873​​​​​822,735​​​​​783,185​​​​​541,805​​​​​486,235​​
FDIC loss-share receivable, net of
clawback		​​​​—​​​​​—​​​​​—​​​​​—​​​​​6,301​​​​​31,351​​​​​65,441​​
Total deposits​​​​9,181,363​​​​​5,895,504​​​​​6,625,845​​​​​5,575,163​​​​​4,879,290​​​​​3,431,149​​​​​2,999,231​​
FDIC loss-share payable including clawback​​​​18,740​​​​​8,190​​​​​8,803​​​​​6,313​​​​​—​​​​​—​​​​​—​​
Shareholders’ equity​​​​1,404,977​​​​​801,921​​​​​804,479​​​​​646,437​​​​​514,759​​​​​366,028​​​​​316,699​​
​
25
TABLE OF CONTENTS
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
​​​(unaudited)​​(audited)​
​​​(In thousands, except per share data and ratios)​
Selected Income Statement Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Interest income​​​$290,577​​​​$214,783​​​​$294,347​​​​$239,065​​​​$190,393​​​​$164,566​​​​$126,322​​
Interest expense​​​​46,739​​​​​24,181​​​​​34,222​​​​​19,694​​​​​14,856​​​​​14,680​​​​​10,137​​
Net interest income​​​​243,838​​​​​190,602​​​​​260,125​​​​​219,371​​​​​175,537​​​​​149,886​​​​​116,185​​
Provision for loan
losses		​​​​13,006​​​​​5,828​​​​​8,364​​​​​4,091​​​​​5,264​​​​​5,648​​​​​11,486​​
Noninterest income​​​​87,942​​​​​80,894​​​​​104,457​​​​​105,801​​​​​85,586​​​​​62,836​​​​​46,549​​
Noninterest expense​​​​217,837​​​​​172,599​​​​​231,936​​​​​215,835​​​​​199,115​​​​​150,869​​​​​121,945​​
Income before income taxes​​​​100,937​​​​​93,069​​​​​124,282​​​​​105,246​​​​​56,744​​​​​56,205​​​​​29,303​​
Income tax expense​​​​23,446​​​​​28,671​​​​​50,734​​​​​33,146​​​​​15,897​​​​​17,482​​​​​9,285​​
Net income​​​​77,491​​​​​64,398​​​​​73,548​​​​​72,100​​​​​40,847���​​​​38,723​​​​​20,018​​
Preferred stock
dividends		​​​​—​​​​​—​​​​​—​​​​​—​​​​​—​​​​​286​​​​​1,738​​
Net income available
to common shareholders		​​​$77,491​​​​$64,398​​​​$73,548​​​​$72,100​​​​$40,847​​​​$38,437​​​​$18,280​​
Per Share Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Earnings per share available to common shareholders:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Basic​​​$1.86​​​​$1.76​​​​$2.00​​​​$2.10​​​​$1.29​​​​$1.48​​​​$0.76​​
Diluted​​​​1.85​​​​​1.74​​​​​1.98​​​​​2.08​​​​​1.27​​​​​1.46​​​​​0.75​​
Common book value​​​​29.58​​​​​21.54​​​​​21.59​​​​​18.51​​​​​15.98​​​​​13.67​​​​​11.50​​
Tangible book value​​​​17.78​​​​​17.78​​​​​17.86​​​​​14.42​​​​​12.65​​​​​10.99​​​​​9.87​​
Cash dividends declared​​​​0.30​​​​​0.30​​​​​0.40​​​​​0.30​​​​​0.20​​​​​0.15​​​​​—​​
Profitability Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Net income to average
total assets		​​​​1.12%​​​​​1.20%​​​​​1.00%​​​​​1.17%​​​​​0.85%​​​​​1.08%​​​​​0.70%​​
Net income to average shareholders’ equity​​​​9.47%​​​​​11.39%​​​​​9.55%​​​​​11.75%​​​​​8.37%​​​​​12.40%​​​​​8.06%​​
Net interest margin (fully taxable
equivalent basis)		​​​​3.93%​​​​​3.96%​​​​​3.95%​​​​​3.99%​​​​​4.12%​​​​​4.59%​​​​​4.74%​​
Efficiency ratio​​​​65.66%​​​​​63.57%​​​​���63.62%​​​​​66.38%​​​​​76.25%​​​​​70.92%​​​​​74.94%​​
Loan Quality Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Net charge-offs to average
loans*		​​​​0.29%​​​​​0.13%​​​​​0.13%​​​​​0.11%​​​​​0.22%​​​​​0.34%​​​​​0.75%​​
Allowance for loan losses to total
loans*		​​​​0.46%​​​​​0.46%​​​​​0.44%​​​​​0.56%​​​​​0.85%​​​​​1.12%​​​​​1.38%​​
Non performing assets to total loans and OREO**​​​​0.78%​​​​​0.94%​​​​​0.85%​​​​​1.12%​​​​​1.60%​​​​​3.35%​​​​​3.49%​​
Liquidity Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Loans to total deposits​​​​92.90%​​​​​101.04%​​​​​91.25%​​​​​94.42%​​​​​80.11%​​​​​82.64%​​​​​81.94%​​
Average loans to average earning
assets		​​​​84.11%​​​​​83.42%​​​​​83.50%​​​​​80.83%​​​​​75.96%​​​​​80.22%​​​​​78.08%​​
Noninterest-bearing deposits to total deposits​​​​25.42%​​​​​29.14%​​​​​26.82%​​​​​28.22%​​​​​27.26%​​​​​24.46%​​​​​22.29%​​
Capital Adequacy Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Shareholders’ equity to total assets​​​​12.29%​​​​​10.48%​​​​​10.24%​​​​​9.38%​​​​​9.21%​​​​​9.07%​​​​​8.63%​​
Common stock dividend payout ratio​​​​16.13%​​​​​17.05%​​​​​20.00%​​​​​14.29%​​​​​15.50%​​​​​10.14%​​​​​—​​
​
*
Excludes purchased non-covered and covered assets.
​
**
Excludes covered assets.
​
​
26
TABLE OF CONTENTS
Reconciliation of Non-GAAP Financial Measures
This joint proxy statement/prospectus and certain documents filed by Ameris with the SEC and incorporated by reference into this joint proxy statement/prospectus contain financial information determined by methods other than in accordance with GAAP. Ameris’s management uses these non-GAAP measures in its analysis of Ameris’s performance. These measures are useful when evaluating the underlying performance and efficiency of Ameris’s operations and balance sheet. Ameris’s management believes that these non-GAAP measures provide a greater understanding of ongoing operations, enhance comparability of results with prior periods and demonstrate the effects of significant gains and charges in the current period. Ameris’s management believes that investors may use these non-GAAP financial measures to evaluate Ameris’s financial performance without the impact of unusual items that may obscure trends in Ameris’s underlying performance. These disclosures should not be viewed as a substitute for financial measures determined in accordance with GAAP, nor are they necessarily comparable to non-GAAP performance measures that may be presented by other companies. Non-GAAP measures include tangible common shareholders’ equity and tangible book value per common share. Ameris calculates the regulatory capital ratios using current regulatory report instructions. Ameris’s management uses these measures to assess the quality of capital and believes that investors may find them useful in their evaluation of Ameris. These capital measures may or may not be necessarily comparable to similar capital measures that may be presented by other companies.
The following information reconciles Ameris’s tangible book value per common share, a non-GAAP financial measure, as of the dates presented to Ameris’s book value per common share, a financial measure calculated and presented in accordance with GAAP, as of the dates presented.
​​Nine Months Ended
September 30,		​Years Ended December 31,​​September 30,​December 31,​
​​2017​2016​2016​2015​2014​2013​2012​​2018​2017​2017​2016​2015​2014​2013​
​​(unaudited)​(audited)​​(unaudited)​(audited)​
​​(In thousands, except per share data)​​(dollars in thousands, except per share data)​
Tangible Book Value Per Share Reconciliation:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​Tangible Book Value Per Share Reconciliation:​​​​​​​​​​​​​​​​​​​​​​​​​​
Common shareholders’ equity​​$801,921​​​$642,583​​​$646,437​​​$514,759​​​$366,028​​​$288,699​​​$251,355​​​​$1,404,977​​​$801,921​​​$804,479​​​$646,437​​​$514,759​​​$366,028​​​$288,699​​
Less: Goodwill​​​125,532​​​​122,545​​​​125,532​​​​90,082​​​​63,547​​​​35,049​​​​956​​​​​505,604​​​​125,532​​​​125,532​​​​125,532​​​​90,082​​​​63,547​​​​35,049​​
Less: Other intangibles, net​​​14,437​​​​18,472​​​​17,428​​​​17,058​​​​8,221​​​​6,009​​​​3,040​​​​​54,729​​​​14,437​​​​13,496​​​​17,428​​​​17,058​​​​8,221​​​​6,009​​
Total tangible shareholders’ equity​​$661,952​​​$501,566​​​$503,477​​​$407,619​​​$294,260​​​$247,641​​​$247,359​​
Total tangible common shareholders’
equity		​​$844,644​​​$661,952​​​$665,451​​​$503,477​​​$407,619​​​$294,260​​​$247,641​​
Period end number of shares​​​37,231,049​​​​34,891,304​​​​34,921,474​​​​32,211,385​​​​26,773,863​​​​25,098,427​​​​23,799,768​​​​​47,496,966​​​​37,231,049​​​​37,260,012​​​​34,921,474​​​​32,211,385​​​​26,773,863​​​​25,098,427​​
Book value per common share​​$21.54​​​$18.42​​​$18.51​​​$15.98​​​$13.67​​​$11.50​​​$10.56​​​​$29.58​​​$21.54​​​$21.59​​​$18.51​​​$15.98​​​$13.67​​​$11.50​​
Tangible book value per common share​​​17.78​​​​14.38​​​​14.42​​​​12.65​​​​10.99​​​​9.87​​​​10.39​​​​​17.78​​​​17.78​​​​17.86​​​​14.42​​​​12.65​​​​10.99​​​​9.87​​
1727
TABLE OF CONTENTS​
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF ATLANTICFIDELITY
The following table summarizes certain selected consolidated historical consolidated financial data as of andFidelity for the year ended December 31, 2016, 2015, 2014, 2013, and 2012, is derived from the audited consolidated financial statements of Atlantic.periods presented. The following selected historical consolidated financial data as of and for the nine months ended September 30, 2018 and 2017 and 2016, ishave been derived from theFidelity’s unaudited interim consolidated financial statements, which are incorporated by reference in this joint proxy statement/prospectus. The unaudited consolidated financial statements of Atlantic and has been prepared on the same basis as the selected historical consolidated financial data derived from the audited consolidated financial statements and, in the opinion of Atlantic’s management, reflectsinclude all adjustments, consisting only of normal recurring adjustments,items, which Fidelity’s management considers necessary for a fair presentation of this dataits financial position and results of operations for those dates.
these periods. The financial condition and results of operations as of and for the nine months ended September 30, 2018 do not purport to be indicative of the financial condition or results of operations to be expected as of or for the year ended December 31, 2018. The unaudited consolidated financial statements as of September 30, 2018 and for the nine-month periods ended September 30, 2018 and 2017, together with the notes thereto, are included in Fidelity’s Quarterly Report on Form 10-Q for the quarter ended September 30 2018, which is incorporated by reference into this joint proxy statement/​prospectus. The selected historical financial data as of and for the years ended December 31, 2017, 2016, 2015, 2014 and 2013 have been derived from Fidelity’s audited consolidated financial statements, and Fidelity’s audited consolidated financial statements as of December 31, 2017 and 2016 and for each of the years in the three-year period ended December 31, 2017 have been incorporated by reference in this joint proxy statement/prospectus. See “Where You Can Find More Information.”
The selected consolidated historical financial data of Fidelity presented below is only a summary and not necessarily indicative of the results that may be expected forof future operations of Fidelity or the year ended December 31, 2017 or any future period. Youcombined company following the completion of the merger, and you should read such information together with the following selected historical consolidated financial datainformation contained in conjunction with: (i)Fidelity’s consolidated financial statements and related notes, as well as the section entitledinformation contained under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Fidelity’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2018 and Atlantic’s audited consolidated financial statements and accompanying notes included in Atlantic’sFidelity’s Annual Report on Form 10-K for the year ended December 31, 2016; and (ii) the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and Atlantic’s unaudited consolidated financial statements and accompanying notes included in Atlantic’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2017, both of which are incorporated by reference into this joint proxy statement/prospectus. See “Certain Documents Incorporated“Where You Can Find More Information.”
Fidelity’s “tangible book value per common share” is determined by Reference.”methods other than in accordance with GAAP. See “— Reconciliation of Non-GAAP Financial Measures” below for a reconciliation of Fidelity’s tangible book value per common share, a non-GAAP financial measure, to book value per common share, a financial measure calculated and presented in accordance with GAAP.
​​​Nine Months Ended
September 30,		​​Years Ended December 31,​
​​​2017​​2016​​2016​​2015​​2014​​2013​​2012​
​​​(unaudited)​​(audited)​
​​​(In thousands, except per share data and ratios)​
Selected Balance Sheet Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Total assets​​​$921,935​​​​$936,893​​​​$907,459​​​​$857,198​​​​$706,498​​​​$733,633​​​​$772,619​​
Earning assets​​​​875,031​​​​​880,074​​​​​857,203​​​​​801,272​​​​​664,486​​​​​690,317​​​​​721,112​​
Loans held for sale​​​​5,025​​​​​8,057​​​​​7,147​​​​​6,591​​​​​7,219​​​​​1,656​​​​​4,089​​
Loans, net of unearned income​​​​793,927​​​​​774,407​​​​​727,984​​​​​655,326​​​​​487,949​​​​​399,425​​​​​500,569​​
Investment securities available for sale​​​​39,113​​​​​49,003​​​​​65,293​​​​​120,110​​​​​118,699​​​​​159,732​​​​​159,745​​
Investment securities held to maturity​​​​—​​​​​—​​​​​—​​​​​—​​​​​17,919​​​​​19,266​​​​​—​​
Total deposits​​​​676,416​​​​​617,496​​​​​628,413​​​​​555,821​​​​​440,780​​​​​460,098​​​​​499,760​​
Shareholders’ equity​​​​91,394​​​​​86,126​​​​​87,018​​​​​80,738​​​​​72,336​​​​​65,525​​​​​40,260​​
Selected Income Statement Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Interest income​​​$25,020​​​​$25,184​​​​$33,889​​​​$29,796​​​​$28,135​​​​$28,836​​​​$33,505​​
Interest expense​​​​5,244​​​​​5,828​​​​​7,417​​​​​8,686​​​​​10,512​​​​​12,695​​​​​14,270​​
Net interest income​​​​19,776​​​​​19,356​​​​​26,472​​​​​21,110​​​​​17,623​​​​​16,141​​​​​19,235​​
Provision for loan losses​​​​458​​​​​569​​​​​619​​​​​807​​​​​1,266​​​​​7,026​​​​​12,491​​
Noninterest income​​​​5,715​​​​​7,307​​​​​9,247​​​​​6,850​​​​​6,439​​​​​6,328​​​​​10,096​​
Noninterest expenses​​​​19,191​​​​​19,074​​​​​25,050​​​​​28,942​​​​​21,469​​​​​26,849​​​​​23,357​​
Income (loss) before taxes​​​​5,842​​​​​7,020​​​​​10,050​​​​​(1,789)​​​​​1,327​​​​​(11,406)​​​​​(6,517)​​
Income tax expense (benefit)​​​​2,058​​​​​2,604​​​​​3,632​​​​​(9,507)​​​​​—​​​​​—​​​​​150​​
Net income (loss)​​​​3,784​​​​​4,416​​​​​6,418​​​​​7,718​​​​​1,327​​​​​(11,406)​​​​​(6,667)​​
Preferred stock dividends​​​​—​​​​​—​​​​​—​​​​​—​​​​​—​​​​​—​​​​​—​​
Net income (loss) available to common shareholders​​​​3,784​​​​​4,416​​​​​6,418​​​​​7,718​​​​​1,327​​​​​(11,406)​​​​​(6,667)​​
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
​​​(unaudited)​​(audited)​
​​​(In thousands)​
Selected Balance Sheet Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Total assets​​​$4,812,056​​​​$4,505,423​​​​$4,576,858​​​​$4,389,685​​​​$3,849,063​​​​$3,085,135​​​​$2,564,053​​
Earning assets​​​​4,448,875​​​​​4,167,549​​​​​4,242,218​​​​​4,059,414​​​​​3,558,669​​​​​2,847,971​​​​​2,355,530​​
Loans held for sale​​​​371,319​​​​​340,329​​​​​357,755​​​​​465,328​​​​​397,834​​​​​368,935​​​​​187,366​​
Loans receivable​​​​3,706,953​​​​​3,409,707​​​​​3,580,966​​​​​3,302,264​​​​​2,896,948​​​​​2,253,306​​​​​1,893,037​​
Investment securities available for sale​​​​209,180​​​​​124,827​​​​​120,121​​​​​144,310​​​​​172,397​​​​​149,590​​​​​168,865​​
Investment securities held
to maturity		​​​​20,383​​​​​15,072​​​​​21,689​​​​​16,583​​​​​14,398​​​​​7,349​​​​​4,051​​
Total deposits​​​​4,049,969​​​​​3,938,360​​​​​3,867,200​​​​​3,630,594​​​​​3,179,511​​​​​2,458,022​​​​​2,202,452​​
Shareholders’ equity​​​​432,098​​​​​388,068​​​​​401,632​​​​​362,647​​​​​301,459​​​​​264,951​​​​​236,230​​
1828
TABLE OF CONTENTS
​​​Nine Months Ended
September 30,		​​Years Ended December 31,​
​​​2017​​2016​​2016​​2015​​2014​​2013​​2012​
​​​(unaudited)​​(audited)​
​​​(In thousands, except per share data and ratios)​
Per Share Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Earnings (loss) per share available to common shareholders:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Basic​​​$0.25​​​​$0.29​​​​$0.42​​​​$0.50​​​​$0.09​​​​$(3.23)​​​​$(2.67)​​
Diluted​​​​0.25​​​​​0.29​​​​​0.42​​​​​0.50​​​​​0.09​​​​​(3.23)​​​​​(2.67)​​
Common book value per share (period end)​​​​5.88​​​​​5.55​​​​​5.61​​​​​5.21​​​​​4.66​​​​​4.22​​​​​15.31​​
Cash dividends declared per share​​​$—​​​​$—​​​​$—​​​​$—​​​​$—​​​​$—​​​​$—​​
Profitability Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Net income to average total assets​​​​0.58%​​​​​0.66%​​​​​0.72%​​​​​1.00%​​​​​0.19%​​​​​(1.55)%​​​​​(0.85)%​​
Net income to average shareholders’ equity​​​​5.61%​​​​​6.98%​​​​​7.54%​​​​​9.94%​​​​​1.89%​​​​​(30.45)%​​​​​(14.51)%​​
Net interest margin​​​​3.19%​​​​​3.08%​​​​​3.12%​​​​​2.95%​​​​​2.61%​​​​​2.31%​​​​​2.58%​​
Efficiency ratio​​​​75.29%​​​​​71.54%​​​​​70.13%​​​​​103.51%​​​​​89.22%​​​​​119.49%​​​​​79.63%​​
Loan Quality Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Net charge-offs to average loans​​​​0.04%​​​​​0.04%​​​​​0.03%​​​​​0.04%​​​​​0.27%​​​​​2.77%​​​​​3.59%​​
Allowance for loan losses to total loans​​​​1.12%​​​​​1.24%​​​​​1.26%​​​​​1.27%​​​​​1.57%​​​​​1.83%​​​​​2.52%​​
Non-performing assets to total loans and OREO​​​​1.30%​​​​​2.10%​​​​​2.03%​​​​​1.23%​​​​​1.87%​​​​​2.28%​​​​​7.68%​​
Liquidity Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Loans to total deposits​​​​111.42%​​​​​106.04%​​​​​103.02%​​​​​109.97%​​​​​102.99%​​​​​82.35%​​​​​86.46%​​
Average loans to average earning assets​​​​84.13%​​​​​77.00%​​​​​76.17%​​​​​69.00%​​​​​61.08%​​​​​56.77%​​​​​64.07%​​
Noninterest-bearing deposits to total deposits​​​​10.35%​​​​​9.17%​​​​​9.50%​​​​​8.49%​​​​​9.37%​​​​​7.56%​​​​​8.38%​​
Capital Adequacy Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Shareholders’ equity to total assets​​​​9.91%​​​​​9.19%​​​​​9.59%​​​​​9.42%​​​​​10.24%​​​​​8.93%​​​​​5.21%​​
Common stock dividend payout ratio​​​​0.00%​​​​​0.00%​​​​​0.00%​​​​​0.00%​​​​​0.00%​​​​​0.00%​​​​​0.00%​​
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
​​​(unaudited)​​(audited)​
​​​(In thousands)​
Selected Income Statement Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Interest income​​​$133,174​​​​$116,325​​​​$157,978​​​​$149,283​​​​$116,642​​​​$101,667​​​​$97,563​​
Interest expense​​​​23,187​​​​​16,951​​​​​22,730​​​​​20,448​​​​​15,804​​​​​11,226​​​​​13,961​​
Net interest income​​​​109,987​​​​​99,374​​​​​135,248​​​​​128,835​​​​​100,838​​​​​90,441​​​​​83,602​​
Provision for loan
losses		​​​​4,776​​​​​4,275​​​​​4,275​​​​​8,231​​​​​4,351​​​​​531​​​​​5,440​​
Noninterest income​​​​107,772​​​​​106,064​​​​​134,952​​​​​141,325​​​​​127,888​​​​​95,320​​​​​96,878​​
Noninterest expense​​​​169,179​​​​​157,960​​​​​210,870​​​​​201,020​​​​​162,946​​​​​138,754​​​​​132,325​​
Income before income taxes​​​​43,804​​​​​43,203​​​​​55,055​​​​​60,909​​​​​61,429​​​​​46,476​​​​​42,715​​
Income tax expense​​​​9,905​​​​​15,850​​​​​15,259​​​​​22,143​​​​​22,294​​​​​16,440​​​​​15,077​​
Net income​​​​33,899​​​​​27,353​​​​​39,796​​​​​38,766​​​​​39,135​​​​​30,036​​​​​27,638​​
Preferred stock
dividends		​​​​—​​​​​—​​​​​—​​​​​—​​​​​—​​​​​—​​​​​(2,463)​​
Net income available
to common shareholders		​​​$33,899​​​​$27,353​​​​$39,796​​​​$38,766​​​​$39,135​​​​$30,036​​​​$25,175​​
​
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
Per Share Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Earnings per share available to common shareholders:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Basic​​​$1.25​​​​$1.03​​​​$1.50​​​​$1.52​​​​$1.77​​​​$1.41​​​​$1.35​​
Diluted​​​​1.25​​​​​1.03​​​​​1.49​​​​​1.50​​​​​1.64​​​​​1.28​​​​​1.21​​
Common book value​​​​15.85​​​​​14.47​​​​​14.86​​​​​13.78​​​​​13.03​​​​​12.40​​​​​11.07​​
Tangible book value​​​​15.43​​​​​14.00​​​​​14.41​​​​​13.26​​​​​12.66​​​​​12.22​​​​​10.96​​
Cash dividends
declared		​​​​0.36​​​​​0.36​​​​​0.48​​​​​0.48​​​​​0.39​​​​​0.30​​​​​0.05​​
Profitability Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Net income to average total assets​​​​0.95%​​​​​0.81%​​​​​0.89%​​​​​0.92%​​​​​1.16%​​​​​1.11%​​​​​1.09%​​
Net income to average shareholders’ equity​​​​10.92%​​​​​9.66%​​​​​10.51%​​​​​11.61%​​​​​13.85%​​​​​12.07%​​​​​12.20%​​
Net interest margin (fully
taxable equivalent
basis)		​​​​3.32%​​​​​3.20%​​​​​3.26%​​​​​3.32%​​​​​3.24%​​​​​3.62%​​​​​3.58%​​
Efficiency ratio​​​​77.69%​​​​​76.89%​​​​​78.04%​​​​​74.41%​​​​​71.24%​​​​​74.69%​​​​​73.32%​​
Loan Quality Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Net charge-offs to average loans*​​​​0.13%​​​​​0.14%​​​​​0.13%​​​​​0.14%​​​​​0.13%​​​​​0.34%​​​​​0.38%​​
Allowance for loan losses
to total loans*		​​​​0.88%​​​​​0.96%​​​​​0.88%​​​​​0.99%​​​​​0.98%​​​​​1.15%​​​​​1.85%​​
Non performing assets to
total loans and
OREO**		​​​​1.92%​​​​​1.71%​​​​​1.76%​​​​​1.77%​​​​​1.76%​​​​​2.78%​​​​​3.90%​​
Liquidity Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Loans to total deposits​​​​91.53%​​​​​86.58%​​​​​92.60%​​​​​90.96%​​​​​91.11%​​​​​91.67%​​​​​85.95%​​
Average loans to average
earning assets		​​​​92.63%​​​​​89.61%​​​​​90.20%​​​​​92.64%​​​​​92.84%​​​​​91.00%​​​​​90.00%​​
Noninterest-bearing deposits to total
deposits		​​​​30.85%​​​​​28.25%​​​​​29.11%​​​​​26.58%​​​​​24.75%​​​​​22.70%​​​​​22.17%​​
1929
TABLE OF CONTENTS
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
Capital Adequacy Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Shareholders’ equity to total assets​​​​8.98%​​​​​8.61%​​​​​8.78%​​​​​8.26%​​​​​7.83%​​​​​8.59%​​​​​9.21%​​
Common stock dividend
payout ratio		​​​​28.80%​​​​​34.95%​​​​​32.00%​​​​​31.58%​​​​​22.03%​​​​​21.28%​​​​​3.70%​​
​
*
Excludes purchased non-covered and covered assets.
​
**
Excludes covered assets.
​
Reconciliation of Non-GAAP Financial Measures
This joint proxy statement/prospectus and certain documents filed by Fidelity with the SEC and incorporated by reference into this joint proxy statement/prospectus contain financial information determined by methods other than in accordance with GAAP. Fidelity’s management uses these non-GAAP measures in its analysis of Fidelity’s performance. These measures are useful when evaluating the underlying performance and efficiency of Fidelity’s operations and balance sheet. Fidelity’s management believes that these non-GAAP measures provide a greater understanding of ongoing operations, enhance comparability of results with prior periods and demonstrate the effects of significant gains and charges in the current period. Fidelity’s management believes that investors may use these non-GAAP financial measures to evaluate Fidelity’s financial performance without the impact of unusual items that may obscure trends in Fidelity’s underlying performance. These disclosures should not be viewed as a substitute for financial measures determined in accordance with GAAP, nor are they necessarily comparable to non-GAAP performance measures that may be presented by other companies. Non-GAAP measures include tangible common shareholders’ equity and tangible book value per common share. Fidelity calculates the regulatory capital ratios using current regulatory report instructions. Fidelity’s management uses these measures to assess the quality of capital and believes that investors may find them useful in their evaluation of Fidelity. These capital measures may or may not be necessarily comparable to similar capital measures that may be presented by other companies.
The following information reconciles Fidelity’s tangible book value per common share, a non-GAAP financial measure, as of the dates presented to Fidleity’s book value per common share, a financial measure calculated and presented in accordance with GAAP, as of the dates presented.
​​​September 30,​​December 31,​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
​​​(unaudited)​​(audited)​
​​​(dollars in thousands, except per share data)​
Tangible Book Value Per Share Reconciliation:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Common shareholders’ equity​​​$432,098​​​​$388,068​​​​$401,632​​​​$362,647​​​​$301,459​​​​$264,951​​​​$236,230​​
Less: intangibles​​​​11,474​​​​​12,625​​​​​12,306​​​​​13,649​​​​​8,382​​​​​3,858​​​​​2,376​​
Tangible common shareholders’ equity​​​​420,624​​​​​375,443​​​​​389,326​​​​​348,998​​​​​293,077​​​​​261,093​​​​​233,854​​
Period end number of
shares		​​​​27,260,681​​​​​26,815,287​​​​​27,019,201​​​​​26,318,400​​​​​23,140,774​​​​​21,365,098​​​​​21,342,549​​
Book value per common share​​​$15.85​​​​$14.47​​​​$14.86​​​​$13.78​​​​$13.03​​​​$12.40​​​​$11.07​​
Tangible book value per common share​​​​15.43​​​​​14.00​​​​​14.41​​​​​13.26​​​​​12.66​​​​​12.22​​​​​10.96​​
30
TABLE OF CONTENTS​
SELECTED UNAUDITED PRO FORMA CONDENSED FINANCIAL DATA
The following table presentsshows selected unaudited pro forma condensed combined financial datainformation about the financial condition and results of operations of Ameris giving effect to the merger. See “The Merger — Accounting Treatment.”
The following table presentsmerger, for the informationyear ended December 31, 2017 and as ifof and for the merger had become effective onnine months ended September 30, 2017, with respect to financial condition data, and on January 1, 2017, with respect to the results of operations data. 2018.
The selected unaudited pro forma condensed combined financial data haveinformation has been prepared using the acquisition method of accounting, adjusted from Ameris’s unaudited interim financial statements as of and for the nine months ended September 30, 2018 and Ameris’s audited financial statements for the year ended December 31, 2017 to give effect to the merger and the estimated acquisition accounting adjustments resulting from the merger. The unaudited pro forma combined condensed consolidated balance sheet information as of September 30, 2018 in the tables below are presented as if the merger occurred on September 30, 2018, and the unaudited pro forma combined condensed consolidated statements of income information for the nine months ended September 30, 2018 and the year ended December 31, 2017 is presented as if the merger occurred on January 1, 2017.
The selected unaudited pro forma condensed combined financial information is presented for illustrative purposes only and does not necessarily indicate the financial results of the combined companies had Ameris and Fidelity actually been combined as of the dates indicated and at the beginning of the periods presented, nor does it necessarily indicate the results of operations in future periods or the future financial position of the combined entities, which could differ materially from those shown in this information. The selected unaudited pro forma condensed combined financial information does not reflect the benefits of expected synergies or other factors that may result as a consequence of the merger.
The selected unaudited pro forma condensed combined financial information has been derived from, and should be read in conjunction with, the historicalunaudited pro forma condensed combined financial information, thatincluding the notes thereto, included in this joint proxy statement/prospectus. See “Unaudited Pro Forma Condensed Combined Financial Statements.”
​​​For the nine
months ended
September 30,
2018		​​For the
year ended
December 31,
2017		​
​​​(In thousands)​
Unaudited Pro Forma Condensed Combined Income Statement Information:​​​
Net interest income​​​$385,130​​​​$509,577​​
Provision for loan losses​​​$17,863​​​​$13,549​​
Income before income taxes​​​$152,618​​​​$223,829​​
Net income​​​$117,413​​​​$135,260​​
​​​As of
September 30,
2018		​
​​​(In thousands)​
Unaudited Pro Forma Condensed Combined Balance Sheet Information:​​
Net loans​​​$12,169,098​​
Total assets​​​​16,552,225​​
Deposits​​​​13,233,355​​
Other borrowings​​​​881,118​​
Subordinated deferrable interest debentures​​​​135,379​​
Shareholders’ equity​​​​2,155,710​​
31
TABLE OF CONTENTS​
COMPARATIVE HISTORICAL AND UNAUDITED PRO FORMA PER SHARE DATA
Presented below are Ameris’s historical per share data for the year ended December 31, 2017, as derived from the audited financial statements of Ameris, and Atlantic havethe nine months ended September 30, 2018, derived from the unaudited financial statements of Ameris. Also presented below are Fidelity’s historical per share data for the year ended December 31, 2017, as derived from the audited financial statements of Fidelity, and the nine months ended September 30, 2018, derived from the unaudited financial statements of Fidelity. The pro forma combined per share data for the year ended December 31, 2017 and nine months ended September 30, 2018 and the per equivalent Fidelity share information provided in the table below are unaudited. The unaudited pro forma data and equivalent per share information give effect to the merger as if the merger had been effective on the dates presented, in the case of the book value data, and as if the merger had become effective on January 1, 2017, in the case of the earnings per share and dividends declared data. This information should be read together with the historical consolidated financial statements and related notes of Ameris and Fidelity incorporated by reference into this joint proxy statement/prospectus, as of and forwith the indicated periods.unaudited pro forma condensed combined financial statements included in this joint proxy statement/prospectus. See “Unaudited Pro Forma Condensed Combined Condensed Financial Information” and “Certain Documents Incorporated by Reference.Statements.”
The selected unaudited pro forma condensed financial data areinformation is presented for illustrative purposes only and dodoes not necessarily indicate the financial results of the combined companies had the companies actually been combined at the beginning of the period presented. The selected unaudited pro forma condensed financial information also does not consider any potential impacts of current market conditions on revenues, potential revenue enhancements, anticipated cost savings and expense efficiencies, or asset dispositions, among other factors.
​​​For the Nine Months
Ended September 30, 2017		​​For the Year
Ended December 31, 2016		​
​​​(In thousands, except per share data)​
Pro Forma Condensed Consolidated Income Statement Data:​​​​​​​​​​​​​
Net interest income​​​$212,490​​​​$248,659​​
Provision for loan losses​​​​6,286​​​​​4,710​​
Income before tax​​​​100,489​​​​​117,400​​
Net income​​​​69,208​​​​​79,886​​
Preferred stock dividends​​​​—​​​​​—​​
Net income available to common shareholders​​​​69,208​​​​​79,886​​
Per Share Data:​​​​​​​​​​​​​
Earnings (loss) per share available to common shareholders:​​​​​​​​​​​​​
Basic​​​$1.76​​​​$2.16​​
Diluted​​​$1.75​​​​$2.14​​
Cash Dividends per share​​​$0.30​​​​$0.30​​
Pro Forma Condensed Consolidated Balance Sheet Data:​​​​​​​​​​​​​
Total loans​​​$6,711,920​​​​​​​​
Total assets​​​​8,611,567​​​​​​​​
Total deposits​​​​6,571,920​​​​​​​​
Other borrowings​​​​963,712​​​​​​​​
Subordinated deferrable interest debentures​​​​85,220​​​​​​​​
Shareholders’ equity​​​​928,829​​​​​​​​
​​​Ameris
Historical		​​Fidelity
Historical		​​Pro Forma
Combined		​​Per
Equivalent
Fidelity
Share		​
For the nine months ended September 30, 2018:​​​​​
Earnings per common share (Basic)​​​$1.86​​​​$1.25​​​​$1.69​​​​$1.35​​
Earnings per common share (Diluted)​​​$1.85​​​​$1.25​​​​$1.67​​​​$1.34​​
Dividends declared per share​​​$0.30​​​​$0.36​​​​$0.30​​​​$0.24​​
Book value per common share​​​$29.58​​​​$15.85​​​​$31.06​​​​$24.85​​
For the year ended December 31, 2017:​​​​​
Earnings per common share (Basic)​​​$2.00​​​​$1.50​​​​$1.96​​​​$1.57​​
Earnings per common share (Diluted)​​​$1.98​​​​$1.49​​​​$1.93​​​​$1.54​​
Dividends declared per share​​​$0.40​​​​$0.48​​​​$0.40​​​​$0.32​​
Book value per common share​​​$21.59​​​​$14.86​​​​$30.34​​​​$24.27​​
2032
TABLE OF CONTENTS​
RISK FACTORS
In deciding how to vote, you should consider carefully all of the information included in this proxy statement/prospectus and its appendices and all of the information incorporated by reference and the risk factors identified by Ameris and Atlantic with respect to their operations included in their respective filings with the SEC, including, in each case, the Annual Reports on Form 10-K for the year ended December 31, 2016 and the Quarterly Reports on Form 10-K for the quarter ended September 30, 2017. See “Where You Can Find More Information” and “Certain Documents Incorporated by Reference.” In addition, you should consider the following risk factors.
Because the market price of the Ameris common stock may fluctuate, Atlantic stockholders cannot be sure of the market value of the merger consideration that they will receive in the merger until the closing.
Upon completion of the merger, each share of Atlantic common stock outstanding immediately prior to the effective time of the merger will be converted into the right to receive: (i) $1.39 in cash, without interest; and (ii) 0.17 shares of Ameris common stock, plus cash in lieu of fractional shares. The value of the shares of Ameris common stock to be issued to Atlantic stockholders in the merger will fluctuate between now and the closing date of the merger due to a variety of factors, including general market and economic conditions, changes in the parties’ respective businesses, operations and prospects, and regulatory considerations. Many of these factors are beyond the control of Ameris and Atlantic. Therefore, at the time of the special meeting, Atlantic stockholders will not know or be able to calculate the market value of the Ameris common stock they will receive upon completion of the merger. We make no assurances as to whether or when the merger will be completed.
Combining the two companies may be more difficult, costly or time consuming than expected, and Ameris may fail to realize all of the anticipated benefits of the merger.
Ameris and Atlantic have operated and, until the completion of the merger, will continue to operate, independently. The success of the merger will depend on, among other things, Ameris’s ability to combine the businesses of Ameris and Atlantic in a manner that does not materially disrupt the existing customer relationships of either Ameris or Atlantic or result in decreased revenues from customers of either of them. Additionally, Ameris may not be able to successfully achieve the level of cost savings, revenue enhancements and other synergies that it expects. If Ameris is not able to successfully achieve these objectives, then the anticipated benefits of the merger may not be realized fully, if at all, or may take longer to realize than expected. This could have an adverse effect on Ameris’s business, results of operations and stock price.
It is possible that the integration process could take longer than anticipated, result in the loss of key employees, disrupt either Ameris’s or Atlantic’s ongoing businesses or result in inconsistencies in standards, controls, procedures and policies that adversely affect the ability of Ameris or Atlantic to maintain relationships with their respective clients, customers, depositors and employees or to achieve the anticipated benefits of the merger.
If Ameris’s stock price decreases below specified thresholds, then Atlantic has the right to terminate the Merger Agreement and the merger would not occur unless Ameris increases the merger consideration.
If the average closing price of one share of Ameris common stock during a specified determination period has declined by more than 15% from its price on November 15, 2017, of  $46.95 per share, and Ameris common stock underperforms the KBW Nasdaq Regional Banking Index (KRX) by more than 15% during such period, then Atlantic may terminate the Merger Agreement unless Ameris offsets such reduction in the value of Ameris common stock by increasing the number of shares of Ameris common stock to be issued, or paying additional cash consideration, to the Atlantic stockholders.
As a result, even if Atlantic stockholders approve the Merger Agreement, the merger may ultimately not be completed. Although the Ameris board of directors has the ability to increase the merger consideration, and the board of directors of Atlantic has the power to choose not to terminate the Merger Agreement and proceed with the merger if Ameris does not increase the merger consideration, there is no obligation of either board to exercise such power.
21
TABLE OF CONTENTS
The merger is expected to, but may not, qualify as a tax-free reorganization under the Code.
The parties expect the merger to be treated as a tax-free reorganization within the meaning of Section 368(a) of the Code, and Ameris and Atlantic will receive United States federal income tax opinions to that effect from their respective tax counsel. These tax opinions represent the legal judgement of counsel rendering the opinion and are not binding on the Internal Revenue Service (the “IRS”) or the courts. If the merger does not qualify as a tax-free reorganization, then the Atlantic stockholders may be required to recognize any gain with respect to all the consideration, including the shares of Ameris common stock and not just the cash, received in the merger. Tax matters are very complicated and the consequences of the merger to any particular Atlantic stockholder will depend on that stockholder’s particular facts and circumstances. You should consult your own tax advisor to determine the particular tax consequences of the merger to you.
Negative or unexpected consequences of the 2017 Tax Act could adversely affect Ameris’s results of operations.
The Tax Cuts and Jobs Act of 2017, signed into law on December 22, 2017 (the “2017 Tax Act”), will make significant changes to the Code, including a reduction in the corporate tax rate and limitations on certain corporate deductions and credits. The new tax law could have negative or unexpected consequences on Ameris’s financial position. By way of example, the 2017 Tax Act will lead to changes in the valuation of certain deferred tax assets and deferred tax liabilities on Ameris’s consolidated balance sheets, which could materially affect Ameris’s results of operations. Further, the full extent of the impact of the 2017 Tax Act on the financial statements of Ameris cannot reasonably be estimated at this time. No assurance is given that the new tax law will not have an adverse effect on the market price of Ameris common stock after the merger.
The actual financial positions and results of operations of Ameris and Atlantic may differ materially from the pro forma financial information included in this proxy statement/prospectus.
The pro forma financial information contained in this proxy statement/prospectus is presented for illustrative purposes only and may not be an indication of what the combined company’s financial position or results of operations would have been had the merger been completed on the dates indicated. The pro forma financial information has been derived from the audited and unaudited historical financial statements of Ameris and Atlantic and includes certain adjustments and assumptions regarding the combined businesses after giving effect to the transactions. The assets and liabilities of Atlantic have been measured at fair value based on various preliminary estimates using assumptions that management believes are reasonable utilizing information currently available. The process for calculating the fair value of acquired assets and assumed liabilities requires the use of estimates in determining the appropriate assumptions and estimates. These estimates may be revised as additional information becomes available and as additional analyses are performed. Differences between preliminary estimates in the pro forma financial information and the final acquisition accounting will occur and could have a material impact on the pro forma financial information and the combined company’s financial position and future results of operations. In addition, the assumptions used in preparing the pro forma financial information may not prove to be accurate, and other factors may affect the combined company’s financial condition or results of operations following the closing. See “Unaudited Pro Forma Combined Condensed Financial Information.”
The opinion that Atlantic has obtained from Hovde has not been, and is not expected to be, updated to reflect any changes in circumstances that may have occurred since the signing of the Merger Agreement.
The opinion issued to the board of directors of Atlantic by Hovde, financial advisor to Atlantic, with respect to the fairness of the merger consideration to be received by Atlantic stockholders from a financial point of view, speaks only as of November 15, 2017. Changes in the operations and prospects of Ameris or Atlantic, general market and economic conditions and other factors that may be beyond the control of Ameris and Atlantic, and on which the opinion was based, may have altered the value of Ameris or Atlantic, or the price of Ameris common stock as of the date of this proxy statement/prospectus, or may alter such values and prices by the time the merger is completed. Hovde has no obligation to update, revise or reaffirm its opinion to reflect subsequent developments and has not done so. Because Atlantic does not
22
TABLE OF CONTENTS
currently anticipate asking Hovde to update its opinion, the opinion will not address the fairness of the merger consideration from a financial point of view as of the date of this proxy statement/prospectus or at the time the merger is completed. See “The Merger — Opinion of Atlantic’s Financial Advisor” and Appendix C included in this proxy statement/prospectus.
The merger and the bank merger are subject to the receipt of consents and approvals from regulatory authorities that may impose conditions that could have an adverse effect on Ameris.
Before the merger and the bank merger can be completed, various approvals or consents or waivers must be obtained from bank regulatory authorities. These authorities may impose conditions on the completion of the merger or the bank merger or require changes to their terms not favorable to Ameris or Atlantic proceeding with the merger. The required regulatory approvals may not be received at all, may not be received in a timely fashion, or may contain conditions on the completion of the merger and the bank merger that are burdensome, not anticipated or cannot be met. If the consummation of the merger is delayed, including by a delay in receipt of required regulatory approvals, the business, financial condition and results of operations of each company may also be materially adversely affected. See “The Merger — Regulatory Approvals” and “The Merger Agreement — Conditions to Completion of the Merger.”
If the merger is not completed, then the parties will have incurred significant expenses without realizing the expected benefits of the merger and could be subject to additional risks.
Prior to completion of the merger, each of Atlantic and Ameris will incur or have incurred substantial expenses in connection with the completion of the transactions contemplated by the Merger Agreement. If the merger is not completed, then Ameris and Atlantic would have to recognize these expenses without realizing the anticipated benefits of the merger. Ameris or Atlantic also could be subject to litigation related to any failure to complete the merger or to proceedings commenced by Ameris or Atlantic against the other seeking damages or to compel the other to perform its obligations under the Merger Agreement. These factors and similar risks could have an adverse effect on the results of operations, business and stock prices of Ameris and Atlantic.
The market price of Ameris common stock after the merger may be affected by factors different from those affecting the shares of Ameris or Atlantic currently.
Upon completion of the merger, holders of Atlantic common stock will become holders of Ameris common stock. Ameris’s business differs from that of Atlantic, and accordingly, the results of operations of Ameris will be affected by some factors that are different from those currently affecting the results of operations of Atlantic. For a discussion of the businesses of Ameris and Atlantic and of some important factors to consider in connection with those businesses, see “Certain Documents Incorporated by Reference,” including, in particular, in the section entitled “Risk Factors” in each of Ameris’s and Atlantic’s Annual Report on Form 10-K for the year ended December 31, 2016, and Quarterly Report on Form 10-Q for the quarter ended September 30, 2017.
Atlantic stockholders will not be entitled to dissenters’ or appraisal rights in the merger.
Dissenters’ or appraisal rights are statutory rights that, if applicable under law, enable stockholders to dissent from an extraordinary transaction, such as a merger, and to demand that the corporation pay the fair value for their shares as determined by a court in a judicial proceeding instead of receiving the consideration offered to stockholders in connection with the extraordinary transaction. Under the Maryland law, holders of Atlantic common stock do not have the right to dissent from the Merger Agreement and seek an appraisal in connection with the merger.
23
TABLE OF CONTENTS​
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTSAmeris Bancorp
ThisAmeris Bancorp is a bank holding company whose business is conducted primarily through Ameris Bank, a Georgia state-chartered bank and a wholly owned subsidiary of Ameris. Through Ameris Bank,
18
TABLE OF CONTENTS
Ameris provides a full range of banking services to its retail and commercial customers through 125 branches primarily concentrated in select markets in Georgia, Alabama, Florida and South Carolina. These branches serve distinct communities in Ameris’s business areas with autonomy but do so as one bank, leveraging its favorable geographic footprint in an effort to acquire more customers. Deposits with Ameris Bank are insured, up to applicable limits, by the FDIC.
Throughout Ameris’s history, Ameris’s strategy has been focused on growing the franchise in Ameris’s historical markets and in select new markets that Ameris has entered through acquisitions. Ameris believes its strategy has resulted in a consistent record of strong growth over an extended period of time, as Ameris has grown from $2.11 billion in total assets at December 31, 2007 to $11.43 billion in total assets at September 30, 2018. At September 30, 2018, Ameris also had total loans (net of allowance for loan losses) of $8.50 billion, total deposits of  $9.18 billion and shareholders’ equity of  $1.40 billion.
Ameris common stock is listed on the Nasdaq under the symbol “ABCB.”
Ameris Bancorp’s principal executive office is located at 310 First Street, S.E., Moultrie, Georgia 31768, and its telephone number at that location is (229) 890-1111. Ameris’s website is http://www.amerisbank.com. The information on Ameris’s website is not part of this joint proxy statement/prospectus, includingand the reference to Ameris’s website address does not constitute incorporation by reference of any information on that website into this joint proxy statement/prospectus. Additional information about Ameris and its subsidiaries is included in ordocuments incorporated by reference into this proxy statement/prospectus, may contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements include: (i) statements about the benefits of the merger, including future financial and operating results and cost savings that may be realized from the merger; (ii) statements about our respective plans, objectives, expectations and intentions and other statements that are not historical facts; and (iii) other statements identified by words such as “expects,” “anticipates,” “intends,” “plans,” “believes,” “seeks,” “estimates” or words of similar meaning. You should note that the discussion of the reasons for the merger contain many forward-looking statements that describe beliefs, assumptions, expectations and estimates of the board of directors or management of Ameris and Atlantic as of the indicated dates, and those assumptions, expectations and estimates may have changed as of the date of this proxy statement/prospectus. Forward-looking statements are based on current beliefs and expectations of management of Ameris and Atlantic, and are inherently subject to significant business, economic and competitive uncertainties and contingencies, many of which are beyond the control of Ameris and Atlantic. In addition, these forward-looking statements are subject to assumptions with respect to future business strategies and decisions that are subject to change. Therefore, actual results may differ materially from those expressed in, or implied by, the forward-looking statements.
The ability to predict results or the actual effects of the combined company’s plans and strategies is inherently uncertain. Some of the factors that may cause actual results to differ materially from those contemplated by the forward-looking statements include those identified under “Risk Factors” and the following:
•
the risk that the cost savings and any revenue synergies from the merger may not be realized or take longer than anticipated to be realized;
​
•
disruption caused by the merger with customers, suppliers or employees or other business relationships;
​
•
a material adverse change in the financial condition of Ameris or Atlantic;
​
•
a decline in the market price for Ameris common stock before the completion of the merger due to broader stock market movements or the performance of financial companies and peer group companies;
​
•
lower than expected revenue following the merger;
​
•
general economic conditions, either nationally or in Alabama, Florida, Georgia or South Carolina, that are less favorable than expected resulting in, among other things, a deterioration of the quality of the combined company’s loan portfolio and reduced demand for its products and services;
​
•
the failure of the closing conditions to be satisfied or any unexpected delay in closing the merger;
​
•
the possibility that the merger may be more expensive to complete than anticipated, including as a result of unexpected factors or events;
​
•
rapid fluctuations or unanticipated changes in interest rates on loans or deposits;
​
•
changes in state and federal legislation, regulations or policies applicable to banks and other financial service providers, including regulatory or legislative developments; and
​
•
general competitive, economic, political and market conditions.
​
Additional factors that may cause actual results or earnings to differ materially from those contemplated by the forward-looking statements include those discussed in the filings of Ameris and Atlantic with the SEC that are incorporated by reference into thisjoint proxy statement/prospectus. See “Where You Can Find More Information” beginning on page 159.
Fidelity Southern Corporation
Fidelity Southern Corporation is a bank holding company headquartered in Atlanta, Georgia. Fidelity conducts operations primarily through Fidelity Bank, a state chartered wholly-owned subsidiary bank. Fidelity Bank was organized as a national banking corporation in 1973 and “Certain Documents Incorporatedconverted to a Georgia chartered state bank in 2003. LionMark Insurance Company is a wholly-owned subsidiary of Fidelity and is an insurance agency offering consumer credit related insurance products. Fidelity also owns three subsidiaries established to issue trust preferred securities. Deposits with Fidelity Bank are insured, up to applicable limits, by Reference.the FDIC.
Since Fidelity’s inception in 1973, it has pursued managed, profitable growth through providing quality financial services. Fidelity’s mission is to continue growth, improve earnings and increase shareholder value; to treat customers, employees, community and shareholders according to the “Golden Rule”; and to operate within a culture of strong internal controls. Fidelity’s franchise primarily spans the metropolitan Atlanta, Jacksonville, Orlando, Tallahassee and Sarasota-Bradenton, Florida markets. Fidelity also conducts indirect automobile lending in Georgia and Florida and residential mortgage lending throughout the South. Small business administration lending has a nation-wide footprint.
At September 30, 2018, Fidelity had $4.81 billion in total assets, total loans (net of allowance for loan losses) of  $3.68 billion, total deposits of  $4.05 billion and total shareholders’ equity of  $432.10 million.
Fidelity common stock is listed on the Nasdaq under the symbol “LION.”
Fidelity’s principal executive office is located at 3490 Piedmont Road, Suite 1550, Atlanta, Georgia 30305, and its telephone number at that location is (404) 639-6500. Fidelity’s website is http://www.fidelitysouthern.com. The information on Fidelity’s website is not part of this joint proxy statement/​prospectus, and the reference to Fidelity’s website address does not constitute incorporation by reference of any information on that website into this joint proxy statement/prospectus. Additional information about Fidelity and its subsidiaries is included in documents incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information” beginning on page 159.
Ameris Bancorp Year End 2018 Financial Results
On January 25, 2019, Ameris issued a press release announcing its financial results for the fourth quarter and year ended December 31, 2018. The press release was included as an exhibit to the Current Report on Form 8-K furnished to the SEC by Ameris on January 25, 2019.
2419
TABLE OF CONTENTS
Because these forward-looking
Ameris’s audited consolidated financial statements for year ended December 31, 2018 are not yet available. Accordingly, the financial results presented below are preliminary and subject to assumptionsthe completion of Ameris’s financial closing procedures and uncertainties, Ameris’s and Atlantic’s actualany adjustments that may result from the completion of the review of its consolidated financial statements. As a result, these preliminary results may differ from the actual results that will be reflected in Ameris’s audited consolidated financial statements for the year ended December 31, 2018 when they are completed and publicly disclosed. These preliminary results may change and those changes may be material.
Ameris’s expectations with respect to its unaudited results for the period discussed below are based upon management estimates and are the responsibility of management. Ameris’s independent registered public accounting firm has not audited, reviewed or performed any procedures with respect to these preliminary results and, accordingly, does not express an opinion or any other form of assurance about them.
Results of Operations
Ameris reported net income of  $121.0 million, or $2.80 per diluted share, for the year ended December 31, 2018, compared with $73.5 million, or $1.98 per diluted share, for 2017. For the quarter ending December 31, 2018, reported results include net income of  $43.5 million, or $0.91 per diluted share, compared with $9.2 million, or $0.24 per diluted share, for the same period in 2017.
Net interest income on a tax-equivalent basis increased 30.1% in 2018 to $347.5 million, up from $267.1 million for 2017. Growth in earning assets from Ameris’s two acquisitions in 2018, as well as internal sources, contributed to the increase. Average earning assets increased 31.1% in 2018 to $8.86 billion, compared with $6.76 billion for 2017. Although Ameris’s net interest income increased, net interest margin for 2018 declined only slightly to 3.92%, compared with 3.95% for 2017. Yields on earning assets in 2018 were 4.71%, compared with 4.46% in 2017. Accretion income for 2018 increased to $11.8 million, or 2.6% of total revenue, compared with $10.6 million, or 2.9%, respectively, for 2017.
Ameris’s net interest margin was 3.91% for the fourth quarter of 2018, down slightly from 3.92% reported for the third quarter of 2018 and 3.94% reported for the fourth quarter of 2017. Accretion income for the fourth quarter of 2018 increased to $4.1 million, compared with $3.7 million for the third quarter of 2018, and up from $2.2 million reported for the fourth quarter of 2017.
Total interest expense for 2018 was $69.9 million, compared with $34.2 million for 2017. Deposit costs increased during 2018 to 0.62%, compared with 0.34% for 2017. Noninterest-bearing deposits represented 27.5% of the total average deposits for 2018, compared with 28.6% for 2017.
Interest expense during the fourth quarter of 2018 moved higher to $23.2 million, compared with $22.1 million in the third quarter of 2018 and $10.0 million in the fourth quarter of 2017. Ameris’s total cost of funds moved 4 basis points higher to 0.94% in the fourth quarter of 2018 as compared with the third quarter of 2018. Deposit costs increased 10 basis points during the fourth quarter of 2018 to 0.79%, compared with 0.69% in the third quarter of 2018. Costs of interest-bearing deposits increased during the quarter from 0.93% in the third quarter of 2018 to 1.09% in the fourth quarter, with the material portion of the increase relating to NOW and MMDA accounts.
Non-interest income increased 13.4% in 2018 to $118.4 million, compared with $104.5 million for 2017, as a result of increased service charges and mortgage banking activity during 2018. Service charge revenue increased $4.1 million, or 9.7%, during 2018 due to Ameris’s increased number of deposit accounts from organic growth and the acquisitions completed in 2018. Revenue in the retail mortgage group totaled $71.7 million in 2018, an increase of 18.5%, compared with $60.5 million in 2017. Net income for Ameris’s retail mortgage division was $4.0 million for the fourth quarter of 2018, compared with $3.7 million in the third quarter of 2018 and $2.2 million for the fourth quarter of 2017. Profitability in Ameris’s warehouse lending group continued to increase, as revenues from the division increased 45.9% during the year, from $7.6 million for 2017 to $11.1 million in 2018. Net income for the division increased 86.8% from $4.3 million in 2017 to $8.1 million in 2018. Net income for Ameris’s warehouse lending division was $2.0 million for the fourth quarter of 2018, compared with $2.2 million for the third quarter of 2018 and $1.4 million for the fourth quarter of 2017.
20
TABLE OF CONTENTS
Non-interest expense increased $61.7 million, or 26.6%, to $293.6 million for the year ended December 31, 2018, compared with $231.9 million for 2017. During 2018, Ameris recorded $31.8 million of charges to earnings, the majority of which were related to merger and conversion activity and executive retirement, compared to $7.8 million in 2017 that were mostly merger and compliance oriented. Excluding these charges, adjusted expenses increased approximately $37.6 million, or 16.8%, to $261.8 million in 2018, up from $224.2 million in 2017. Growth in operating expenses in 2018 amounted to 1.57% of growth in average assets, materially lower than Ameris’s gross overhead ratio for 2017 at 3.06%.
Ameris’s recorded income tax expense of  $30.5 million for the year ended December 31, 2018 compared with $50.7 million for the year ended December 31, 2017. The effective tax rate was 20.1% for the year end December 31, 2018, significantly lower than effective tax rate of 40.8% for 2017 due to the Tax Cuts and Jobs Act that was enacted in the fourth quarter of 2017.
Balance Sheet Trends
Total assets increased $3.59 billion, or 45.7%, during 2018. Total loans, including loans held for sale, purchased loans and purchased loan pools, were $8.62 billion at the end of 2018, compared with $6.24 billion at the end of 2017. Excluding the effects of recent acquisitions, growth in core loans (including legacy and purchased non-covered loans) totaled $482.6 million, or 8.5%, during 2018, compared with $941.0 million, or 20.3%, in 2017.
At December 31, 2018, total deposits amounted to $9.65 billion, or 97.4% of total funding, compared with $6.63 billion and 94.8%, respectively, at December 31, 2017. Excluding Ameris’s recently completed acquisitions and brokered funds, deposits increased $549.7 million, or 8.6%. At December 31, 2018, noninterest-bearing deposit accounts were $2.52 billion, or 26.1% of total deposits, compared with $1.78 billion, or 26.8% of total deposits, at December 31, 2017. Non-rate sensitive deposits (including non-interest bearing, NOW and savings) totaled $4.60 billion at December 31, 2018, compared with $3.52 billion at the end of 2017. These funds represented 47.6% of Ameris’s total deposits at the end of 2018, compared with 53.1% at the end of 2017.
Shareholders’ equity at December 31, 2018 totaled $1.46 billion, an increase of  $651.9 million, or 81.0%, from those expressed or impliedDecember 31, 2017. The increase in shareholders’ equity was the result of the issuance of new shares of Ameris common stock in Ameris’s recent acquisitions, plus earnings of  $121.0 million during 2018. Tangible book value per common share was $18.83 at the end of 2018, up from $17.78 at September 30, 2018 and $17.86 at the end of 2017. Tangible common equity as a percentage of tangible assets was 8.22% at the end of 2018, compared with 7.77% at the end of the third quarter of 2017 and 8.62% at the end of 2017.
Ameris’s “tangible book value per common share” is determined by these forward-looking statements. You are cautioned notmethods other than in accordance with generally accepted accounting principles in the United States (which we refer to place undue relianceas “GAAP”). See “— Reconciliation of Non-GAAP Financial Measures” below for a reconciliation of Ameris’s tangible book value per common share, a non-GAAP financial measure, to book value per common share, a financial measure calculated and presented in accordance with GAAP, and see “Selected Historical Consolidated Financial Data of Ameris — Reconciliation of Non-GAAP Financial Measures” for a discussion of Ameris’s management’s use of non-GAAP financial measures.
During the fourth quarter of 2018, Ameris recorded provision for loan loss expense of  $3.7 million, compared with $2.1 million in the third quarter of 2018. The increase in provision expense is mostly attributable to increased general reserves on these statements, which speak onlyconsumer and premium finance loans based on loss history and agricultural loans affected by Hurricane Michael. Nonperforming assets as a percentage of total assets decreased five basis points to 0.55% during the quarter.
Reconciliation of Non-GAAP Financial Measures
The following information reconciles Ameris’s tangible book value per common share, a non-GAAP financial measure, as of the dateperiods presented to Ameris’s book value per common share, a financial measure calculated and presented in accordance with GAAP, as of the periods presented.
21
TABLE OF CONTENTS
​​​Three Months Ended​​Year Ended​
(dollars in thousands except per share data)​​December
2018		​​September
2018		​​June
2018		​​March
2018		​​December
2017		​​December
2018		​​December
2017		​
Total shareholders’ equity​​​$1,456,347​​​​$1,404,977​​​​$1,371,896​​​​$868,944​​​​$804,479​​​​$1,456,347​​​​$804,479​​
Less:​​​​​​​​
Goodwill​​​​503,434​​​​​505,604​​​​​504,764​​​​​208,513​​​​​125,532​​​​​503,434​​​​​125,532​​
Other intangibles, net​​​​58,689​​​​​54,729​​​​​53,561​​​​​12,562​​​​​13,496​​​​​58,689​​​​​13,496​​
Total tangible shareholders’ equity​​​$894,224​​​​$844,644​​​​$813,571​​​​$647,869​​​​$665,451​​​​$894,224​​​​$665,451​​
Period end number of shares​​​​47,499,941​​​​​47,496,966​​​​​47,518,662​​​​​38,327,081​​​​​37,260,012​​​​​47,499,941​​​​​37,260,012​​
Book value per share (period end)​​​$30.66​​​​$29.58​​​​$28.87​​​​$22.67​​​​$21.59​​​​$30.66​​​​$21.59​​
Tangible book value per share (period end) ​​​$18.83​​​​$17.78​​​​$17.12​​​​$16.90​​​​$17.86​​​​$18.83​​​​$17.86​​
Fidelity Southern Corporation Year End 2018 Financial Results
On January 17, 2019, Fidelity issued a press release announcing its financial results for the fourth quarter and year ended December 31, 2018. The press release was included as an exhibit to the Current Report on Form 8-K furnished to the SEC by Fidelity on January 18, 2019.
Fidelity’s audited consolidated financial statements for year ended December 31, 2018 are not yet available. Accordingly, the financial results presented below are preliminary and subject to the completion of Fidelity’s financial closing procedures and any adjustments that may result from the completion of the review of its consolidated financial statements. As a result, these preliminary results may differ from the actual results that will be reflected in Fidelity’s audited consolidated financial statements for the year ended December 31, 2018 when they are completed and publicly disclosed. These preliminary results may change and those changes may be material.
Fidelity’s expectations with respect to its unaudited results for the period discussed below are based upon management estimates and are the responsibility of management. Fidelity’s independent registered public accounting firm has not audited, reviewed or performed any procedures with respect to these preliminary results and, accordingly, does not express an opinion or any other form of assurance about them.
Results of Operations
Fidelity reported net income of  $43.8 million, or $1.61 per diluted share, for the year ended December 31, 2018, compared with $39.8 million, or $1.49 per diluted share, for 2017. For the quarter ending December 31, 2018, reported results include net income of  $9.9 million, or $0.36 per diluted share, compared with $12.4 million, or $0.46 per diluted share, for the same period in 2017.
Interest income for the quarter ended December 31, 2018 of  $48.3 million was higher by $1.4 million, compared to the prior quarter, driven by moderate increases in loan, investment and Fed Funds income. Although average loans decreased by $105.5 million for the quarter, $70.2 million of this proxy statement/prospectuswas due to a decrease in lower yielding indirect loans, which were partially replaced in the portfolio mix with higher yielding commercial and SBA loans. An increase in average investment securities of  $57.5 million and an increase in average Fed Funds and bank deposit balances of  $33.7 million also contributed to higher interest income. The yield on total average interest-bearing assets also increased 14 basis points from the previous quarter. As compared to the same period in the prior year, interest income increased by $6.6 million as average loans increased by $172.7 million and the yield on total average interest-bearing assets increased by 35 basis points, as market interest rates rose year over year. Interest income was $181.4 million for the year ended December 31, 2018, an increase of  $23.5 million compared to the same period in the prior year, primarily due to an increase of 21 basis points in the yield on loans and an increase of  $324.7 million in average loans.
Interest expense of  $8.7 million increased slightly by $588,000, or 7.2%, for the datequarter ended December 31, 2018 as average FHLB borrowings increased by $8.8 million. As compared to the fourth quarter of any document incorporatedthe prior year, interest expense increased by reference into this proxy statement/prospectus.$2.9 million. Rising market rates paid on money
All subsequent written
22
TABLE OF CONTENTS
market deposits and oral forward-looking statements concerningCD’s drove the increase, as well as increased volume and rates for short term borrowings. For the year ended December 31, 2018, interest expense increased by $9.2 million, or 40.3%, compared to previous year, as market rates and deposit balances increased over the twelve months ended December 31, 2018.
The net interest margin was 3.54% for the quarter ended December 31, 2018 compared to 3.45% in the previous quarter, an increase of 9 basis points. Loan coupon yields, excluding fees, SBA discount accretion, and accretable yields, increased faster than deposit and borrowing costs during the quarter.
The yield on total average interest-bearing liabilities increased by only 9 basis points while the yield on total average interest-earning assets increased by 14 basis points from 4.18% to 4.32%. Average loans decreased by $105.5 million, of which $70.2 million was a decrease in lower yielding indirect auto loans. Higher yielding investment securities increased by $57.5 million as Fidelity Bank’s strategy to reposition its balance sheet continues to occur.
Average total interest-bearing liabilities decreased by $24.2 million, average deposits decreased by $33.1 million, offset by an increase in average borrowings of  $8.8 million in order to help fund loan production.
As compared to the same period a year ago, the net interest margin for the quarter ended December 31, 2018 increased by 12 basis points to 3.54% from 3.42%, primarily due to a 35 basis point increase in the yield on total average interest-earning assets of  $4.4 billion, offset by an increase of 35 basis points in the yield on total average interest-bearing liabilities of  $3.1 billion. Average earning assets increased by $271.6 million, primarily due to an increase in average loans over the year. Average interest-bearing liabilities increased by $117.8 million, primarily driven by an increase in average borrowings of  $146.7 million, offset by a decrease in average interest-bearing deposits of  $29.0 million.
On a linked-quarter basis, noninterest income for the quarter ended December 31, 2018 decreased by $2.6 million, or 7.7%, largely due to a decrease in other noninterest income of  $2.8 million, primarily due to the $2.6 million death benefit received from life insurance policies during the previous quarter. Mortgage banking activities decreased by $1.9 million, or 8.1%, as gross mortgage revenue decreased by $2.8 million and mortgage production also decreased by $121.6 million. These decreases were offset by an increase in SBA lending activities of  $2.5 million, mainly due to a large SBA loan sale in December, as well as an increase in SBA loan closings during the quarter. Compared to the same period a year ago, noninterest income for the quarter increased by $2.2 million, primarily due to a $2.9 million increase in SBA banking activities, as SBA loan sales were higher in the current quarter as discussed above. For the year ended December 31, 2018, noninterest income increased by $3.9 million as all sources of noninterest income increased, except for indirect lending activities, which decreased by $7.3 million, as indirect loan sales and production decreased significantly during the year.
On a linked-quarter basis, total noninterest expense for the quarter ended December 31, 2018 increased by $528,000, or 0.9%, mainly due to an increase in other expenses of  $2.4 million, of which $1.2 million were merger related expenses. This increase was offset by a decrease in commissions expense of  $1.7 million from lower mortgage loan originations for the quarter. Compared to the prior year quarter, noninterest expense of  $56.1 increased by $3.2 million, or 6.1%. Salaries and employee benefits increased by $3.2 million, or 12.4%, compared to the same quarter in 2017, primarily due to $2.6 million of merger related expenses. For the year ended December 31, 2018, total noninterest expense increased $14.4 million compared to the previous year, of which $10.2 million was due to an increase in salaries and benefits. Salaries increased by $3.8 million, partially due to a $2.7 million increase in employee incentives due to performance and related to the balance sheet strategies implemented earlier in the year, and from a comparison perspective, no executive incentives were paid in 2017. Other expense increased by $2.8 million, of which $1.2 million was merger related expenses.
On a linked-quarter basis, income tax expense for the quarter ended December 31, 2018 remained relatively flat. The effective tax rate increased to 28% from 23% due to a $2.6 million tax-free death benefit received from life insurance policies in the previous quarter. For the year ended December 31, 2018, income tax expense decreased by $1.5 million as the effective tax rate decreased from 28% to 24% primarily as a result of the Tax Cuts and Jobs Act enacted on December 22, 2017, which included, among other matters addressedthings, a reduction in this proxy statement/prospectus, and attributable to Ameris or Atlantic or any person acting on their behalf, are expressly qualified in their entirety by the cautionary statements contained or referred to in this “Cautionary Statements Regarding Forward-Looking Statements.” Ameris and Atlantic undertake no obligation to update these forward-looking statements to reflect events or circumstances after the date of this proxy statement/prospectus or to reflect the occurrence of unanticipated events, unless obligated to do so under the federal securities laws.corporate income tax rate from 35% to 21% from the beginning of the tax year 2018 going forward.
2523
TABLE OF CONTENTS
Balance Sheet Trends
Total assets decreased by $78.3 million, or 1.6%, during the quarter, to $4.7 billion at December 31, 2018, primarily due to a decrease of  $153.5 million in total loans. This decrease was primarily due to a decrease in loans held for sale of  $132.0 million, as well as a decrease of  $21.5 million in loans held for investment. The decrease in loans held for sale was primarily in mortgage loans, which decreased $102.7 million, as seasonal production decreased. Other assets also decreased by $3.0 million.
Offsetting these decreases, investments increased by $42.2 million as Fidelity Bank continues to increase its investments available-for-sale portfolio as part of its strategy to reposition the balance sheet to higher yielding assets. Cash balances also increased by $29.6 million for the quarter. Loan servicing assets also increased by $3.4 million.
Total assets grew by $156.9 million, or 3.4%, to $4.7 billion at December 31, 2018, compared to $4.6 billion at December 31, 2017. Primary drivers for the year over year growth were an increase in cash of $26.0 million and an increase in investments available-for-sale of  $131.5 million as Fidelity Bank repositioned its balance sheet to higher yielding investments over the year.
Total loans, including loans held for sale, decreased during the quarter by $153.5 million, or 3.8%, to $3.9 billion at December 31, 2018. This reduction was primarily due to a decrease in loans held for sale of $132.0 million, primarily mortgage loans held for sale, which accounted for $102.7 million of the decrease.
Total loans decreased by $13.9 million, or 0.4%, compared to December 31, 2017, as loans held for sale decreased by $118.5 million, offset by an increase in loans held for investment of  $104.5 million. Loans held for sale decreased due to lower sales of mortgage loans and indirect auto loans. The growth in loans was primarily in commercial and mortgage loans, while average indirect auto loans for the quarter decreased by $70.2 million.
Compared to 2017, the provision for loan losses for the year increased by $1.2 million, or 29.1%, mainly due to increases in commercial loan balances.
Core deposits decreased by $86.6 million during the quarter to $3.1 billion with seasonal decreases in all categories. Noninterest bearing deposits decreased by 2.8% as escrow deposits decreased seasonally as escrow balances were paid down during the quarter. Also, the escrow accounts for mortgage servicing rights sold in the previous quarter were transferred to the purchaser. This decrease was offset by an increase in time deposits of  $18.2 million during the quarter, mainly due to an increase of  $29.6 million in brokered deposits, resulting in a decrease in total deposits of  $68.4 million, or 1.7%.
Year over year, deposits grew by $114.4 million or 3.0%, primarily due to growth in non-interest bearing demand deposits and money market accounts.
24
TABLE OF CONTENTS​
UNAUDITED COMPARATIVE PER COMMON SHARE
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF AMERIS
The following table shows per common sharesummarizes certain selected consolidated historical financial data regarding basicof Ameris for the periods presented. The selected historical financial data as of and diluted net income, cash dividendsfor the nine months ended September 30, 2018 and book value for Ameris and Atlantic on a historical basis, Ameris and Atlantic on a pro forma combined basis, and Atlantic on a pro forma equivalent basis. The pro forma information has2017 have been derived from and should be read in conjunction with: (i) Ameris’s auditedunaudited interim consolidated financial statements, which are incorporated by reference into this joint proxy statement/prospectus. The unaudited consolidated financial statements include all adjustments, consisting only of normal recurring items, which Ameris’s management considers necessary for a fair presentation of its financial position and accompanying notes included in Ameris’s Annual Report on Form 10-Kresults of operations for these periods. The financial condition and results of operations as of and for the nine months ended September 30, 2018 do not purport to be indicative of the financial condition or results of operations to be expected as of or for the year ended December 31, 2016, and Ameris’s2018. The unaudited consolidated financial statements as of September 30, 2018 and accompanyingfor the nine-month periods ended September 30, 2018 and 2017, together with the notes thereto, are included in Ameris’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2017, both of2018, which areis incorporated by reference into this joint proxy statement/prospectus;prospectus. The selected historical financial data as of and (ii) Atlantic’sfor the years ended December 31, 2017, 2016, 2015, 2014 and 2013 has been derived from Ameris’s audited consolidated financial statements, and accompanyingAmeris’s audited consolidated financial statements as of December 31, 2017 and 2016 and for each of the years in the three-year period ended December 31, 2017 have been incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information.”
The selected consolidated historical financial data of Ameris presented below is only a summary and not necessarily indicative of the results of future operations of Ameris or the combined company following the completion of the merger, and you should read such information together with the historical consolidated financial information contained in Ameris’s consolidated financial statements and related notes, includedas well as the information contained under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Atlantic’sAmeris’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2018 and Ameris’s Annual Report on Form 10-K for the year ended December 31, 2016,2017, which are incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information.”
Ameris’s “tangible book value per common share” is determined by methods other than in accordance with GAAP. See “— Reconciliation of Non-GAAP Financial Measures” below for a reconciliation of Ameris’s tangible book value per common share, a non-GAAP financial measure, to book value per common share, a financial measure calculated and Atlantic’spresented in accordance with GAAP.
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
​​​(unaudited)​​(audited)​
​​​(In thousands, except per share data and ratios)​
Selected Balance Sheet Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Total assets​​​$11,428,994​​​​$7,649,820​​​​$7,856,203​​​​$6,892,031​​​​$5,588,940​​​​$4,037,077​​​​$3,667,649​​
Earning assets​​​​10,340,558​​​​​7,074,828​​​​​7,288,285​​​​​6,293,670​​​​​5,084,658​​​​​3,574,561​​​​​3,232,769​​
Loans held for sale​​​​130,179​​​​​137,392​​​​​197,442​​​​​105,924​​​​​111,182​​​​​94,759​​​​​67,278​​
Loans, net of unearned
income		​​​​5,543,306​​​​​4,574,678​​​​​4,856,514​​​​​3,626,821​​​​​2,406,877​​​​​1,889,881​​​​​1,618,454​​
Purchased loans​​​​2,711,460​​​​​917,126​​​​​861,595​​​​​1,069,191​​​​​909,083​​​​​945,518​​​​​838,990​​
Purchased loan pools​​​​274,752​​​​​465,218​​​​​328,246​​​​​568,314​​​​​592,963​​​​​—​​​​​—​​
Investment securities available for
sale		​​​​1,162,570​​​​​819,593​​​​​810,873​​​​​822,735​​​​​783,185​​​​​541,805​​​​​486,235​​
FDIC loss-share receivable, net of
clawback		​​​​—​​​​​—​​​​​—​​​​​—​​​​​6,301​​​​​31,351​​​​​65,441​​
Total deposits​​​​9,181,363​​​​​5,895,504​​​​​6,625,845​​​​​5,575,163​​​​​4,879,290​​​​​3,431,149​​​​​2,999,231​​
FDIC loss-share payable including clawback​​​​18,740​​​​​8,190​​​​​8,803​​​​​6,313​​​​​—​​​​​—​​​​​—​​
Shareholders’ equity​​​​1,404,977​​​​​801,921​​​​​804,479​​​​​646,437​​​​​514,759​​​​​366,028​​​​​316,699​​
​
25
TABLE OF CONTENTS
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
​​​(unaudited)​​(audited)​
​​​(In thousands, except per share data and ratios)​
Selected Income Statement Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Interest income​​​$290,577​​​​$214,783​​​​$294,347​​​​$239,065​​​​$190,393​​​​$164,566​​​​$126,322​​
Interest expense​​​​46,739​​​​​24,181​​​​​34,222​​​​​19,694​​​​​14,856​​​​​14,680​​​​​10,137​​
Net interest income​​​​243,838​​​​​190,602​​​​​260,125​​​​​219,371​​​​​175,537​​​​​149,886​​​​​116,185​​
Provision for loan
losses		​​​​13,006​​​​​5,828​​​​​8,364​​​​​4,091​​​​​5,264​​​​​5,648​​​​​11,486​​
Noninterest income​​​​87,942​​​​​80,894​​​​​104,457​​​​​105,801​​​​​85,586​​​​​62,836​​​​​46,549​​
Noninterest expense​​​​217,837​​​​​172,599​​​​​231,936​​​​​215,835​​​​​199,115​​​​​150,869​​​​​121,945​​
Income before income taxes​​​​100,937​​​​​93,069​​​​​124,282​​​​​105,246​​​​​56,744​​​​​56,205​​​​​29,303​​
Income tax expense​​​​23,446​​​​​28,671​​​​​50,734​​​​​33,146​​​​​15,897​​​​​17,482​​​​​9,285​​
Net income​​​​77,491​​​​​64,398​​​​​73,548​​​​​72,100​​​​​40,847���​​​​38,723​​​​​20,018​​
Preferred stock
dividends		​​​​—​​​​​—​​​​​—​​​​​—​​​​​—​​​​​286​​​​​1,738​​
Net income available
to common shareholders		​​​$77,491​​​​$64,398​​​​$73,548​​​​$72,100​​​​$40,847​​​​$38,437​​​​$18,280​​
Per Share Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Earnings per share available to common shareholders:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Basic​​​$1.86​​​​$1.76​​​​$2.00​​​​$2.10​​​​$1.29​​​​$1.48​​​​$0.76​​
Diluted​​​​1.85​​​​​1.74​​​​​1.98​​​​​2.08​​​​​1.27​​​​​1.46​​​​​0.75​​
Common book value​​​​29.58​​​​​21.54​​​​​21.59​​​​​18.51​​​​​15.98​​​​​13.67​​​​​11.50​​
Tangible book value​​​​17.78​​​​​17.78​​​​​17.86​​​​​14.42​​​​​12.65​​​​​10.99​​​​​9.87​​
Cash dividends declared​​​​0.30​​​​​0.30​​​​​0.40​​​​​0.30​​​​​0.20​​​​​0.15​​​​​—​​
Profitability Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Net income to average
total assets		​​​​1.12%​​​​​1.20%​​​​​1.00%​​​​​1.17%​​​​​0.85%​​​​​1.08%​​​​​0.70%​​
Net income to average shareholders’ equity​​​​9.47%​​​​​11.39%​​​​​9.55%​​​​​11.75%​​​​​8.37%​​​​​12.40%​​​​​8.06%​​
Net interest margin (fully taxable
equivalent basis)		​​​​3.93%​​​​​3.96%​​​​​3.95%​​​​​3.99%​​​​​4.12%​​​​​4.59%​​​​​4.74%​​
Efficiency ratio​​​​65.66%​​​​​63.57%​​​​���63.62%​​​​​66.38%​​​​​76.25%​​​​​70.92%​​​​​74.94%​​
Loan Quality Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Net charge-offs to average
loans*		​​​​0.29%​​​​​0.13%​​​​​0.13%​​​​​0.11%​​​​​0.22%​​​​​0.34%​​​​​0.75%​​
Allowance for loan losses to total
loans*		​​​​0.46%​​​​​0.46%​​​​​0.44%​​​​​0.56%​​​​​0.85%​​​​​1.12%​​​​​1.38%​​
Non performing assets to total loans and OREO**​​​​0.78%​​​​​0.94%​​​​​0.85%​​​​​1.12%​​​​​1.60%​​​​​3.35%​​​​​3.49%​​
Liquidity Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Loans to total deposits​​​​92.90%​​​​​101.04%​​​​​91.25%​​​​​94.42%​​​​​80.11%​​​​​82.64%​​​​​81.94%​​
Average loans to average earning
assets		​​​​84.11%​​​​​83.42%​​​​​83.50%​​​​​80.83%​​​​​75.96%​​​​​80.22%​​​​​78.08%​​
Noninterest-bearing deposits to total deposits​​​​25.42%​​​​​29.14%​​​​​26.82%​​​​​28.22%​​​​​27.26%​​​​​24.46%​​​​​22.29%​​
Capital Adequacy Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Shareholders’ equity to total assets​​​​12.29%​​​​​10.48%​​​​​10.24%​​​​​9.38%​​​​​9.21%​​​​​9.07%​​​​​8.63%​​
Common stock dividend payout ratio​​​​16.13%​​​​​17.05%​​​​​20.00%​​​​​14.29%​​​​​15.50%​​​​​10.14%​​​​​—​​
​
*
Excludes purchased non-covered and covered assets.
​
**
Excludes covered assets.
​
​
26
TABLE OF CONTENTS
Reconciliation of Non-GAAP Financial Measures
This joint proxy statement/prospectus and certain documents filed by Ameris with the SEC and incorporated by reference into this joint proxy statement/prospectus contain financial information determined by methods other than in accordance with GAAP. Ameris’s management uses these non-GAAP measures in its analysis of Ameris’s performance. These measures are useful when evaluating the underlying performance and efficiency of Ameris’s operations and balance sheet. Ameris’s management believes that these non-GAAP measures provide a greater understanding of ongoing operations, enhance comparability of results with prior periods and demonstrate the effects of significant gains and charges in the current period. Ameris’s management believes that investors may use these non-GAAP financial measures to evaluate Ameris’s financial performance without the impact of unusual items that may obscure trends in Ameris’s underlying performance. These disclosures should not be viewed as a substitute for financial measures determined in accordance with GAAP, nor are they necessarily comparable to non-GAAP performance measures that may be presented by other companies. Non-GAAP measures include tangible common shareholders’ equity and tangible book value per common share. Ameris calculates the regulatory capital ratios using current regulatory report instructions. Ameris’s management uses these measures to assess the quality of capital and believes that investors may find them useful in their evaluation of Ameris. These capital measures may or may not be necessarily comparable to similar capital measures that may be presented by other companies.
The following information reconciles Ameris’s tangible book value per common share, a non-GAAP financial measure, as of the dates presented to Ameris’s book value per common share, a financial measure calculated and presented in accordance with GAAP, as of the dates presented.
​​​September 30,​​December 31,​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
​​​(unaudited)​​(audited)​
​​​(dollars in thousands, except per share data)​
Tangible Book Value Per Share Reconciliation:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Common shareholders’
equity		​​​$1,404,977​​​​$801,921​​​​$804,479​​​​$646,437​​​​$514,759​​​​$366,028​​​​$288,699​​
Less: Goodwill​​​​505,604​​​​​125,532​​​​​125,532​​​​​125,532​​​​​90,082​​​​​63,547​​​​​35,049​​
Less: Other intangibles, net​​​​54,729​​​​​14,437​​​​​13,496​​​​​17,428​​​​​17,058​​​​​8,221​​​​​6,009​​
Total tangible common shareholders’
equity		​​​$844,644​​​​$661,952​​​​$665,451​​​​$503,477​​​​$407,619​​​​$294,260​​​​$247,641​​
Period end number of
shares		​​​​47,496,966​​​​​37,231,049​​​​​37,260,012​​​​​34,921,474​​​​​32,211,385​​​​​26,773,863​​​​​25,098,427​​
Book value per common share​​​$29.58​​​​$21.54​​​​$21.59​​​​$18.51​​​​$15.98​​​​$13.67​​​​$11.50​​
Tangible book value per common
share		​​​​17.78​​​​​17.78​​​​​17.86​​​​​14.42​​​​​12.65​​​​​10.99​​​​​9.87​​
27
TABLE OF CONTENTS​
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF FIDELITY
The following table summarizes certain selected consolidated historical financial data of Fidelity for the periods presented. The selected historical financial data as of and for the nine months ended September 30, 2018 and 2017 have been derived from Fidelity’s unaudited interim consolidated financial statements, which are incorporated by reference in this joint proxy statement/prospectus. The unaudited consolidated financial statements include all adjustments, consisting only of normal recurring items, which Fidelity’s management considers necessary for a fair presentation of its financial position and accompanyingresults of operations for these periods. The financial condition and results of operations as of and for the nine months ended September 30, 2018 do not purport to be indicative of the financial condition or results of operations to be expected as of or for the year ended December 31, 2018. The unaudited consolidated financial statements as of September 30, 2018 and for the nine-month periods ended September 30, 2018 and 2017, together with the notes thereto, are included in Atlantic’sFidelity’s Quarterly Report on Form 10-Q for the quarter ended September 30 2017, both of2018, which areis incorporated by reference into this joint proxy statement/​prospectus. The selected historical financial data as of and for the years ended December 31, 2017, 2016, 2015, 2014 and 2013 have been derived from Fidelity’s audited consolidated financial statements, and Fidelity’s audited consolidated financial statements as of December 31, 2017 and 2016 and for each of the years in the three-year period ended December 31, 2017 have been incorporated by reference in this joint proxy statement/prospectus. See “Where You Can Find More Information” and “Certain Documents Incorporated by Reference.Information.”
The selected consolidated historical financial data of Fidelity presented below is only a summary and not necessarily indicative of the results of future operations of Fidelity or the combined company following the completion of the merger, and you should read such information together with the historical consolidated financial information contained in Fidelity’s consolidated financial statements and related notes, as well as the information contained under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Fidelity’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2018 and Fidelity’s Annual Report on Form 10-K for the year ended December 31, 2017, which are incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information.”
Fidelity’s “tangible book value per common share” is determined by methods other than in accordance with GAAP. See “— Reconciliation of Non-GAAP Financial Measures” below for a reconciliation of Fidelity’s tangible book value per common share, a non-GAAP financial measure, to book value per common share, a financial measure calculated and presented in accordance with GAAP.
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
​​​(unaudited)​​(audited)​
​​​(In thousands)​
Selected Balance Sheet Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Total assets​​​$4,812,056​​​​$4,505,423​​​​$4,576,858​​​​$4,389,685​​​​$3,849,063​​​​$3,085,135​​​​$2,564,053​​
Earning assets​​​​4,448,875​​​​​4,167,549​​​​​4,242,218​​​​​4,059,414​​​​​3,558,669​​​​​2,847,971​​​​​2,355,530​​
Loans held for sale​​​​371,319​​​​​340,329​​​​​357,755​​​​​465,328​​​​​397,834​​​​​368,935​​​​​187,366​​
Loans receivable​​​​3,706,953​​​​​3,409,707​​​​​3,580,966​​​​​3,302,264​​​​​2,896,948​​​​​2,253,306​​​​​1,893,037​​
Investment securities available for sale​​​​209,180​​​​​124,827​​​​​120,121​​​​​144,310​​​​​172,397​​​​​149,590​​​​​168,865​​
Investment securities held
to maturity		​​​​20,383​​​​​15,072​​​​​21,689​​​​​16,583​​​​​14,398​​​​​7,349​​​​​4,051​​
Total deposits​​​​4,049,969​​​​​3,938,360​​​​​3,867,200​​​​​3,630,594​​​​​3,179,511​​​​​2,458,022​​​​​2,202,452​​
Shareholders’ equity​​​​432,098​​​​​388,068​​​​​401,632​​​​​362,647​​​​​301,459​​​​​264,951​​​​​236,230​​
28
TABLE OF CONTENTS
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
​​​(unaudited)​​(audited)​
​​​(In thousands)​
Selected Income Statement Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Interest income​​​$133,174​​​​$116,325​​​​$157,978​​​​$149,283​​​​$116,642​​​​$101,667​​​​$97,563​​
Interest expense​​​​23,187​​​​​16,951​​​​​22,730​​​​​20,448​​​​​15,804​​​​​11,226​​​​​13,961​​
Net interest income​​​​109,987​​​​​99,374​​​​​135,248​​​​​128,835​​​​​100,838​​​​​90,441​​​​​83,602​​
Provision for loan
losses		​​​​4,776​​​​​4,275​​​​​4,275​​​​​8,231​​​​​4,351​​​​​531​​​​​5,440​​
Noninterest income​​​​107,772​​​​​106,064​​​​​134,952​​​​​141,325​​​​​127,888​​​​​95,320​​​​​96,878​​
Noninterest expense​​​​169,179​​​​​157,960​​​​​210,870​​​​​201,020​​​​​162,946​​​​​138,754​​​​​132,325​​
Income before income taxes​​​​43,804​​​​​43,203​​​​​55,055​​​​​60,909​​​​​61,429​​​​​46,476​​​​​42,715​​
Income tax expense​​​​9,905​​​​​15,850​​​​​15,259​​​​​22,143​​​​​22,294​​​​​16,440​​​​​15,077​​
Net income​​​​33,899​​​​​27,353​​​​​39,796​​​​​38,766​​​​​39,135​​​​​30,036​​​​​27,638​​
Preferred stock
dividends		​​​​—​​​​​—​​​​​—​​​​​—​​​​​—​​​​​—​​​​​(2,463)​​
Net income available
to common shareholders		​​​$33,899​​​​$27,353​​​​$39,796​​​​$38,766​​​​$39,135​​​​$30,036​​​​$25,175​​
​
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
Per Share Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Earnings per share available to common shareholders:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Basic​​​$1.25​​​​$1.03​​​​$1.50​​​​$1.52​​​​$1.77​​​​$1.41​​​​$1.35​​
Diluted​​​​1.25​​​​​1.03​​​​​1.49​​​​​1.50​​​​​1.64​​​​​1.28​​​​​1.21​​
Common book value​​​​15.85​​​​​14.47​​​​​14.86​​​​​13.78​​​​​13.03​​​​​12.40​​​​​11.07​​
Tangible book value​​​​15.43​​​​​14.00​​​​​14.41​​​​​13.26​​​​​12.66​​​​​12.22​​​​​10.96​​
Cash dividends
declared		​​​​0.36​​​​​0.36​​​​​0.48​​​​​0.48​​​​​0.39​​​​​0.30​​​​​0.05​​
Profitability Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Net income to average total assets​​​​0.95%​​​​​0.81%​​​​​0.89%​​​​​0.92%​​​​​1.16%​​​​​1.11%​​​​​1.09%​​
Net income to average shareholders’ equity​​​​10.92%​​​​​9.66%​​​​​10.51%​​​​​11.61%​​​​​13.85%​​​​​12.07%​​​​​12.20%​​
Net interest margin (fully
taxable equivalent
basis)		​​​​3.32%​​​​​3.20%​​​​​3.26%​​​​​3.32%​​​​​3.24%​​​​​3.62%​​​​​3.58%​​
Efficiency ratio​​​​77.69%​​​​​76.89%​​​​​78.04%​​​​​74.41%​​​​​71.24%​​​​​74.69%​​​​​73.32%​​
Loan Quality Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Net charge-offs to average loans*​​​​0.13%​​​​​0.14%​​​​​0.13%​​​​​0.14%​​​​​0.13%​​​​​0.34%​​​​​0.38%​​
Allowance for loan losses
to total loans*		​​​​0.88%​​​​​0.96%​​​​​0.88%​​​​​0.99%​​​​​0.98%​​​​​1.15%​​​​​1.85%​​
Non performing assets to
total loans and
OREO**		​​​​1.92%​​​​​1.71%​​​​​1.76%​​​​​1.77%​​​​​1.76%​​​​​2.78%​​​​​3.90%​​
Liquidity Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Loans to total deposits​​​​91.53%​​​​​86.58%​​​​​92.60%​​​​​90.96%​​​​​91.11%​​​​​91.67%​​​​​85.95%​​
Average loans to average
earning assets		​​​​92.63%​​​​​89.61%​​​​​90.20%​​​​​92.64%​​​​​92.84%​​​​​91.00%​​​​​90.00%​​
Noninterest-bearing deposits to total
deposits		​​​​30.85%​​​​​28.25%​​​​​29.11%​​​​​26.58%​​​​​24.75%​​​​​22.70%​​​​​22.17%​​
29
TABLE OF CONTENTS
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
Capital Adequacy Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Shareholders’ equity to total assets​​​​8.98%​​​​​8.61%​​​​​8.78%​​​​​8.26%​​​​​7.83%​​​​​8.59%​​​​​9.21%​​
Common stock dividend
payout ratio		​​​​28.80%​​​​​34.95%​​​​​32.00%​​​​​31.58%​​​​​22.03%​​​​​21.28%​​​​​3.70%​​
​
*
Excludes purchased non-covered and covered assets.
​
**
Excludes covered assets.
​
Reconciliation of Non-GAAP Financial Measures
This joint proxy statement/prospectus and certain documents filed by Fidelity with the SEC and incorporated by reference into this joint proxy statement/prospectus contain financial information determined by methods other than in accordance with GAAP. Fidelity’s management uses these non-GAAP measures in its analysis of Fidelity’s performance. These measures are useful when evaluating the underlying performance and efficiency of Fidelity’s operations and balance sheet. Fidelity’s management believes that these non-GAAP measures provide a greater understanding of ongoing operations, enhance comparability of results with prior periods and demonstrate the effects of significant gains and charges in the current period. Fidelity’s management believes that investors may use these non-GAAP financial measures to evaluate Fidelity’s financial performance without the impact of unusual items that may obscure trends in Fidelity’s underlying performance. These disclosures should not be viewed as a substitute for financial measures determined in accordance with GAAP, nor are they necessarily comparable to non-GAAP performance measures that may be presented by other companies. Non-GAAP measures include tangible common shareholders’ equity and tangible book value per common share. Fidelity calculates the regulatory capital ratios using current regulatory report instructions. Fidelity’s management uses these measures to assess the quality of capital and believes that investors may find them useful in their evaluation of Fidelity. These capital measures may or may not be necessarily comparable to similar capital measures that may be presented by other companies.
The following information reconciles Fidelity’s tangible book value per common share, a non-GAAP financial measure, as of the dates presented to Fidleity’s book value per common share, a financial measure calculated and presented in accordance with GAAP, as of the dates presented.
​​​September 30,​​December 31,​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
​​​(unaudited)​​(audited)​
​​​(dollars in thousands, except per share data)​
Tangible Book Value Per Share Reconciliation:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Common shareholders’ equity​​​$432,098​​​​$388,068​​​​$401,632​​​​$362,647​​​​$301,459​​​​$264,951​​​​$236,230​​
Less: intangibles​​​​11,474​​​​​12,625​​​​​12,306​​​​​13,649​​​​​8,382​​​​​3,858​​​​​2,376​​
Tangible common shareholders’ equity​​​​420,624​​​​​375,443​​​​​389,326​​​​​348,998​​​​​293,077​​​​​261,093​​​​​233,854​​
Period end number of
shares		​​​​27,260,681​​​​​26,815,287​​​​​27,019,201​​​​​26,318,400​​​​​23,140,774​​​​​21,365,098​​​​​21,342,549​​
Book value per common share​​​$15.85​​​​$14.47​​​​$14.86​​​​$13.78​​​​$13.03​​​​$12.40​​​​$11.07​​
Tangible book value per common share​​​​15.43​​​​​14.00​​​​​14.41​​​​​13.26​​​​​12.66​​​​​12.22​​​​​10.96​​
30
TABLE OF CONTENTS​
SELECTED UNAUDITED PRO FORMA FINANCIAL DATA
The following table shows selected unaudited pro forma condensed combined financial information givesabout the financial condition and results of operations of Ameris giving effect to the merger, accounted for the year ended December 31, 2017 and as a purchaseof and assumes thatfor the nine months ended September 30, 2018.
The selected unaudited pro forma condensed combined financial information has been prepared using the acquisition method of accounting, adjusted from Ameris’s unaudited interim financial statements as of and for the nine months ended September 30, 2018 and Ameris’s audited financial statements for the year ended December 31, 2017 to give effect to the merger and the estimated acquisition accounting adjustments resulting from the merger. The unaudited pro forma combined condensed consolidated balance sheet information as of September 30, 2018 in the tables below are presented as if the merger occurred on September 30, 2018, and the unaudited pro forma combined condensed consolidated statements of income information for the nine months ended September 30, 2018 and the year ended December 31, 2017 is presented as ofif the beginning of the fiscal year presented (or in the case of book value, as of the date specified). Thismerger occurred on January 1, 2017.
The selected unaudited pro forma condensed combined financial information is presented for illustrative purposes only. You should not rely on the pro forma combined or pro forma equivalent amounts as they areonly and does not necessarily indicativeindicate the financial results of the operating results or financial position that would have occurred if the mergercombined companies had Ameris and Fidelity actually been completedcombined as of the dates indicated nor are they necessarily indicativeand at the beginning of the periods presented, nor does it necessarily indicate the results of operations in future operating resultsperiods or the future financial position of the combined company.entities, which could differ materially from those shown in this information. The selected unaudited pro forma information, although helpful in illustrating thecondensed combined financial characteristics of the combined company under one set of assumptions,information does not reflect the benefits of expected cost savings, opportunities to earn additional revenue, the impact of restructuring and merger-related costs,synergies or other factors that may result as a consequence of the merger and, accordingly, does not attempt to predict or suggest future results.
​​​As of and for the Nine Months Ended
September 30, 2017		​​As of and for the Twelve Months Ended
December 31, 2016		​
​​​Ameris
Historical		​​Atlantic
Historical		​​Pro
Forma
Combined		​​
Per
Equivalent
Atlantic
Share(1)
​​Ameris
Historical		​​Atlantic
Historical		​​Pro
Forma
Combined		​​
Per
Equivalent
Atlantic
Share(1)
​
Net Income Per Common Share – Basic​​​$1.76​​​​$0.25​​​​$1.76​​​​$0.30​​​​$2.10​​​​$0.42​​​​$2.16​​​​$0.37​​
Net Income Per Common Share – Diluted​​​$1.74​​​​$0.25​​​​$1.75​​​​$0.30​​​​$2.08​​​​$0.42​​​​$2.14​​​​$0.36​​
Cash Dividends Per Common Share​​​$0.30​​​​$—​​​​$0.30​​​​$0.05​​​​$0.30​​​​$—​​​​$0.30​​​​$0.05​​
Book Value Per Common Share​​​$21.54​​​​$5.88​​​​$23.30​​​​$3.96​​​​$18.51​​​​$5.61​​​​$20.59​​​​$3.50​​
​
(1)
merger.
The equivalent shareselected unaudited pro forma condensed combined financial information has been derived from, and should be read in conjunction with, the above table is computed using 2,633,340 shares additional shares of Ameris common stock issued to Atlantic stockholders at a price of  $48.20 per share at an exchange rate of 0.17 shares of Ameris common stock for each share of Atlantic common stock.
​
​
26
TABLE OF CONTENTS​
COMPARATIVE PER SHARE MARKET PRICE AND DIVIDEND INFORMATION
Ameris common stock trades onunaudited pro forma condensed combined financial information, including the NASDAQ Global Select Market under the symbol “ABCB,” and Atlantic common stock trades on the NASDAQ Global Market under the symbol “ACFC.” The following table sets forth the high and low reported sales prices per share of Ameris common stock and Atlantic common stock, and the cash dividends declared per share of Ameris common stock and Atlantic common stock for the periods indicated.
AMERIS COMMON STOCK
QUARTER DATA​​HIGH​​LOW​​DIVIDEND DECLARED​
First Quarter 2018 Fiscal Year (through January 12, 2018)​​​$53.45​​​​$47.90​​​​​—​​
First Quarter 2017 Fiscal Year​​​​49.50​​​​​41.60​​​​$0.10​​
Second Quarter 2017 Fiscal Year​​​​49.80​​​​​42.60​​​​​0.10​​
Third Quarter 2017 Fiscal Year​​​​51.28​​​​​41.05​​​​​0.10​​
Fourth Quarter 2017 Fiscal Year​​​​51.30​​​​​44.75​​​​​0.10​​
First Quarter 2016 Fiscal Year​​​​33.81​​​​​24.96​​​​​0.05​​
Second Quarter 2016 Fiscal Year​​​​32.76​​​​​27.73​​​​​0.05​​
Third Quarter 2016 Fiscal Year​​​​36.20​​​​​28.90​​​​​0.10​​
Fourth Quarter 2016 Fiscal Year​​​​47.70​​​​​34.61​​​​​0.10​​
ATLANTIC COMMON STOCK
QUARTER DATA​​HIGH​​LOW​​DIVIDEND DECLARED​
First Quarter 2018 Fiscal Year (through January 12, 2018)​​​$10.33​​​​$9.38​​​​​—​​
First Quarter 2017 Fiscal Year​​​​8.27​​​​​6.76​​​​​—​​
Second Quarter 2017 Fiscal Year​​​​8.35​​​​​7.27​​​​​—​​
Third Quarter 2017 Fiscal Year​​​​8.89​​​​​7.05​​​​​—​​
Fourth Quarter 2017 Fiscal Year​​​​9.95​​​​​8.27​​​​​—​​
First Quarter 2016 Fiscal Year​​​​6.20​​​​​5.16​​​​​—​​
Second Quarter 2016 Fiscal Year​​​​6.51​​​​​5.53​​​​​—​​
Third Quarter 2016 Fiscal Year​​​​6.95​​​​​5.84​​​​​—​​
Fourth Quarter 2016 Fiscal Year​​​​7.35​​​​​6.26​​​​​—​​
On November 16, 2017, the last full trading day before the public announcement of the merger, the closing price of Ameris common stock was $47.30. On [•], the last practicable trading day before the mailing ofnotes thereto, included in this proxy statement/prospectus, the closing price of Ameris common stock was $[•].
On November 16, 2017, the last full trading day before the public announcement of the merger, the closing price of Atlantic common stock was $8.69. On [•], the last practicable trading day before the mailing of this proxy statement/prospectus, the closing price of Atlantic common stock was $[•].
As of  [•], the last practicable trading day before mailing this proxy statement/prospectus, there were approximately [•] registered holders of Atlantic common stock and approximately [•] registered holders of Ameris common stock.
27
TABLE OF CONTENTS
The following table presents the closing prices of Ameris common stock and Atlantic common stock on November 16, 2017, the last trading day before the public announcement of the merger, and on [•], the last practicable trading day prior to the mailing of thisjoint proxy statement/prospectus. The table also shows the estimated implied value of the per share merger consideration on the relevant date for holders of Atlantic common stock.
Date​​Atlantic Closing Price​​Ameris Closing Price​​Exchange Ratio​​
Estimated
Equivalent Per share
Value(1)
​
November 16, 2017​​​$8.69​​​​$47.30​​​​​0.17​​​​$9.43​​
[•]​​​​[•]​​​​​[•]​​​​​0.17​​​​​[•]​​
​
(1)
The implied value of the per share merger consideration represents the sum of: (i) the product of the exchange ratio of 0.17 and the closing price of Ameris common stock as of the applicable date; plus (ii) the $1.39 cash consideration.
​
The above table shows only historical comparisons. The market prices of Ameris common stock and Atlantic common stock will fluctuate between the date of this proxy statement/prospectus and the date of completion of the merger. No assurance can be given concerning the market prices of Atlantic common stock or Ameris common stock before or after the effective date of the merger. Changes in the market price of Ameris common stock prior to the completion of the merger will affect the market value of the merger consideration to be received by Atlantic stockholders.
28
TABLE OF CONTENTS​
INFORMATION ABOUT THE SPECIAL MEETING
This section contains information for Atlantic stockholders about the special meeting that Atlantic has called to allow stockholders to vote on the merger proposal, the merger-related compensation proposal and the adjournment proposal. The board of directors of Atlantic is mailing this proxy statement/prospectus to you, as an Atlantic stockholder, on or about [•].
Time, Date and Place
The special meeting is scheduled to be held on [•], at [•] a.m., local time, at [•].
Matters to be Considered by Atlantic Stockholders at the Special Meeting
At the special meeting, holders of Atlantic common stock will be asked to:
•
approve the merger proposal;
​
•
approve, on a non-binding advisory basis, the merger-related compensation proposal;
​
•
approve the adjournment proposal; and
​
•
vote on any other matters as may properly be brought before the special meeting or any adjournment or postponement thereof.
​
At this time, the board of directors of Atlantic is unaware of any other matters that may be presented for action at the special meeting. If any other matters are properly presented, however, and you have previously voted, the person(s) named as proxy will have the authority to vote your shares in accordance with his or her judgment with respect to such matters.
A copy of the Merger Agreement is included in this proxy statement/prospectus as Appendix A, and we encourage you to read it carefully in its entirety.
Recommendation of the board of directors of Atlantic
The board of directors of Atlantic unanimously recommends that Atlantic stockholders vote “FOR” the merger proposal, “FOR” the merger-related compensation proposal and “FOR” the adjournment proposal. See “The Merger — Atlantic’s Reasons for the Merger and the Recommendation of the Atlantic Board of Directors.“Unaudited Pro Forma Condensed Combined Financial Statements.”
​​​For the nine
months ended
September 30,
2018		​​For the
year ended
December 31,
2017		​
​​​(In thousands)​
Unaudited Pro Forma Condensed Combined Income Statement Information:​​​
Net interest income​​​$385,130​​​​$509,577​​
Provision for loan losses​​​$17,863​​​​$13,549​​
Income before income taxes​​​$152,618​​​​$223,829​​
Net income​​​$117,413​​​​$135,260​​
​​​As of
September 30,
2018		​
​​​(In thousands)​
Unaudited Pro Forma Condensed Combined Balance Sheet Information:​​
Net loans​​​$12,169,098​​
Total assets​​​​16,552,225​​
Deposits​​​​13,233,355​​
Other borrowings​​​​881,118​​
Subordinated deferrable interest debentures​​​​135,379​​
Shareholders’ equity​​​​2,155,710​​
Record Date and Quorum
[•] has been fixed as the record date for the determination of Atlantic stockholders entitled to notice of, and to vote at, the special meeting and any adjournment or postponement thereof. At the close of business on the record date, there were [•] shares of Atlantic common stock outstanding and entitled to vote at the special meeting.
A quorum is necessary to transact business at the special meeting. The presence, in person or by proxy, of the holders of a majority of the outstanding shares of Atlantic common stock entitled to vote at the special meeting is necessary to constitute a quorum. Shares of Atlantic common stock represented at the special meeting but not voted, including shares that a stockholder abstains from voting and shares held in “street name” and voted by a bank, broker or other nominee even though a stockholder does not provide voting instructions, will be counted for establishing a quorum. Once a share of Atlantic common stock is represented at the special meeting, it will be counted for determining a quorum not only at the special meeting but also at any adjournment or postponement of the special meeting. In the event that a quorum is not present at the special meeting, it is expected that the special meeting will be adjourned or postponed.
Required Vote
Each share of Atlantic common stock you own as of the record date for the special meeting entitles you to one vote at the special meeting on all matters properly presented at the meeting. The affirmative vote of the holders of a majority of the outstanding shares of Atlantic common stock entitled to vote at the special meeting is necessary to approve the merger proposal. If you vote to abstain or if you fail to vote, then this will have the same effect as voting against the merger proposal.
29
TABLE OF CONTENTS
Approval of the non-binding merger-related compensation proposal and the adjournment proposal each require the affirmative vote of the holders of a majority of the shares of Atlantic common stock represented in person or by proxy at the special meeting. Not voting or abstaining on either of these proposals will have no effect on the outcome of the vote on these proposals.
Shares Subject to the Voting Agreement; Shares Held by Directors and Executive Officers
As of the record date, the directors and certain executive officers of Atlantic beneficially owned and were entitled to vote approximately 1,698,990 shares of Atlantic common stock representing approximately 10.9% of the shares of Atlantic common stock outstanding on that date. Ameris has entered into a Voting Agreement with Atlantic and the directors and certain executive officers of Atlantic, pursuant to which these stockholders have agreed, solely in their capacity as Atlantic stockholders, to vote their shares of Atlantic common stock in favor of the merger proposal and the adjournment proposal, subject to certain exceptions. See “The Merger Agreement — Voting Agreement.” A copy of the Voting Agreement is included as Appendix B in this proxy statement/prospectus.
How to Vote — Stockholders of Record
Voting in Person.   If you are a stockholder of record, then you can vote in person by submitting a ballot at the special meeting. Nevertheless, we recommend that you vote by proxy as promptly as possible, even if you plan to attend the special meeting. This will ensure that your vote is received. If you attend the special meeting, then you may vote by ballot, thereby canceling any proxy previously submitted.
Voting by Proxy.   Your proxy card includes instructions on how to vote by mailing in the proxy card. If you choose to vote by proxy, please mark each proxy card you receive, sign and date it, and promptly return it in the envelope enclosed with the proxy card. Alternatively, you may vote through the Internet or by telephone. Information and applicable deadlines for voting through the Internet or by telephone are set forth in the enclosed proxy card instructions. If you sign and return your proxy without instruction on how to vote your shares, then your shares will be voted “FOR” the merger proposal, “FOR” the merger-related compensation proposal and “FOR” the adjournment proposal.
How to Vote — Shares Held in “Street Name”
If your shares of Atlantic common stock are held through a bank, broker or other nominee, then you are considered the beneficial owner of such shares held in “street name.” In such case, this proxy statement/prospectus has been forwarded to you by your bank, broker or other nominee. As the beneficial owner, you have the right to direct your bank, broker or other nominee how to vote the shares by following the voting instructions that they have sent. Without specific instructions from you, your bank, broker or other nominee is not empowered to vote your shares. Not voting these shares will have the effect of voting against the merger proposal but will have no effect on the outcome of the merger-related compensation proposal or the adjournment proposal. Alternatively, if you are a beneficial owner and wish to vote in person at the special meeting, then you must provide a proxy executed in your favor by your bank, broker or other nominee.
How to Vote — Shares Held in the Atlantic ESOP
Participants in the Atlantic ESOP will each receive a Voting Instruction Form that reflects all of the shares that the participant may direct the Atlantic ESOP trustee to vote on his or her behalf under the plan. Under the terms of the Atlantic ESOP, the Atlantic ESOP trustee votes all shares held by the Atlantic ESOP, but each Atlantic ESOP participant may direct the trustee how to vote the shares of Atlantic common stock allocated to his or her account. The Atlantic ESOP trustee will vote all unallocated shares of Atlantic common stock held by the Atlantic ESOP and allocated shares for which no voting instructions are received in the same proportion as shares for which it has received timely voting instructions.
The deadline for returning your Atlantic ESOP Voting Instruction Form is [•] at [•] p.m., Eastern Time.
30
TABLE OF CONTENTS
Revocation of Proxies
You can revoke your proxy at any time before your shares are voted. If you are a stockholder of record, then you can revoke your proxy by:
•
submitting another valid proxy card bearing a later date;
​
•
voting again via the Internet or by telephone not later than [•] a.m., Eastern Time, on [•];
​
•
attending the special meeting and voting your shares in person; or
​
•
delivering prior to the special meeting a written notice of revocation to Atlantic’s Corporate Secretary.
​
Attendance at the special meeting will not, in and of itself, constitute revocation of a proxy.
If you hold your shares in street name with a bank, broker or other nominee, then you must follow the directions you receive from your bank, broker or other nominee to change your vote. Your last vote will be the vote that is counted.
Solicitation of Proxies
The proxy for the special meeting is being solicited on behalf of the board of directors of Atlantic. Atlantic will bear the entire cost of soliciting proxies. All other costs and expenses incurred in connection with the merger and the transactions contemplated thereby are to be paid by the party incurring such expenses. See “The Merger Agreement — Expenses.”
Proxies will be solicited principally by mail, but may also be solicited by the directors, officers, and other employees of Atlantic in person or by telephone, facsimile or other means of electronic communication. Directors, officers and employees will receive no compensation for these activities in addition to their regular compensation, but may be reimbursed for out-of-pocket expenses in connection with such solicitation.
Attending the Special Meeting
All holders of Atlantic common stock, including stockholders of record and stockholders who hold their shares in street name through banks, brokers or other nominees, are cordially invited to attend the special meeting. You must bring a form of personal photo identification with you in order to be admitted at the special meeting. We reserve the right to refuse admittance to anyone without proper proof of share ownership or without proper photo identification. The use of cell phones, cameras, sound recording equipment, communications devices or any similar equipment during the special meeting without Atlantic’s express written consent is prohibited.
Adjournments and Postponements
Although it is not currently expected, the special meeting may be adjourned or postponed, including to solicit additional proxies, if there are insufficient votes at the time of the special meeting to approve the merger proposal, or if a quorum is not present at the special meeting. Other than an announcement to be made at the special meeting of the time, date and place of an adjourned meeting, an adjournment generally may be made without notice. Any adjournment or postponement of the special meeting to solicit additional proxies will allow the stockholders who have already sent in their proxies to revoke them at any time prior to their use at the special meeting as adjourned or postponed.
Questions and Additional Information
If you have more questions about the merger or how to submit your proxy or vote, or if you need additional copies of this proxy statement/prospectus, the enclosed proxy card or voting instructions, please contact Atlantic at:
Atlantic Coastal Financial Corporation
4655 Salisbury Road, Suite 100
Jacksonville, Florida 32256
Telephone: (800) 342-8424
Attn: Investor Relations
31
TABLE OF CONTENTS​​​
PROPOSALS FOR THE SPECIAL MEETING
COMPARATIVE HISTORICAL AND UNAUDITED PRO FORMA PER SHARE DATA
Proposal 1: ApprovalPresented below are Ameris’s historical per share data for the year ended December 31, 2017, as derived from the audited financial statements of Ameris, and the Merger Proposal
Holdersnine months ended September 30, 2018, derived from the unaudited financial statements of Atlantic common stockAmeris. Also presented below are being askedFidelity’s historical per share data for the year ended December 31, 2017, as derived from the audited financial statements of Fidelity, and the nine months ended September 30, 2018, derived from the unaudited financial statements of Fidelity. The pro forma combined per share data for the year ended December 31, 2017 and nine months ended September 30, 2018 and the per equivalent Fidelity share information provided in the table below are unaudited. The unaudited pro forma data and equivalent per share information give effect to approve the Merger Agreement, pursuant to which Atlantic will merge with and into Ameris with Ameris as the surviving company. Approval of the merger proposal requires the affirmative vote of the holders of a majority of the shares of Atlantic common stock outstanding on the record date.
If your shares of Atlantic common stock are present at the special meeting but are not voted on the merger proposal, or if you vote to abstain on the merger proposal, then it will have the same effect as a vote against the merger proposal. If you fail to submit a proxy, or if your shares of Atlantic common stock are held through a bank, broker or other nominee and you do not instruct your bank, broker or other nominee to vote your shares of Atlantic common stock, then your shares of Atlantic common stock will not be voted, and it will have the same effect as a vote against the merger proposal.
The board of directors of Atlantic unanimously recommends that Atlantic stockholders vote “FOR” the merger proposal.
Proposal 2: Approval, on a Non-binding Advisory Basis, of the Merger-Related Compensation Proposal
Atlantic stockholders are being asked to approve, on a non-binding advisory basis, the compensation that certain executive officers of Atlantic (“named executive officers”) will receive under existing agreements with Atlantic in connection with the merger.
Section 951 of the Dodd-Frank Act and Rule 14a-21(c) under the Exchange Act require that Atlantic seek a non-binding advisory vote from Atlantic stockholders to approve certain compensation that its named executive officers will receive from Atlantic in connection with the merger.
Atlantic is presenting this proposal, which gives Atlantic stockholders the opportunity to express their views on the merger-related compensation by voting “FOR” or “AGAINST” the following resolution:
“RESOLVED, that the compensation that will become payable to Atlantic’s named executive officers in connection with the completion of the merger as disclosed under “The Merger — Interests of Atlantic Directors and Executive Officers in the Merger” and the related tables and narrative, is hereby approved.”
Approval, on a non-binding advisory basis, of the merger-related compensation proposal requires the affirmative vote of the holders of a majority of the shares of Atlantic common stock represented in person or by proxy at the special meeting.
If your shares of Atlantic common stock are present at the special meeting but are not voted on the proposal, or if you vote to abstain on the proposal, then it will have no effect on the outcome of the vote on the merger-related compensation proposal. If you fail to submit a proxy, or if your shares of Atlantic common stock are held through a bank, broker or other nominee and you do not instruct your bank, broker or other nominee to vote your shares of Atlantic common stock, then your shares of Atlantic common stock will not be voted.
Atlantic stockholder approval of the compensation payable to Atlantic’s named executive officers in connection with the merger is not a condition to completion of the merger. The vote on the merger-related compensation proposal is advisory and will not be binding on Atlantic (or the combined company that results from the merger) regardless of whether the merger is approved. Accordingly, because the compensation to be paid to Atlantic’s named executive officers in connection with the merger is contractual, the compensation will be payable if the merger is completed regardlesshad been effective on the dates presented, in the case of the outcomebook value data, and as if the merger had become effective on January 1, 2017, in the case of the non-binding, advisory vote onearnings per share and dividends declared data. This information should be read together with the merger-related compensation proposal.
The boardhistorical consolidated financial statements and related notes of directors of Atlantic unanimously recommends that Atlantic stockholders vote in favor of the merger-related compensation arrangements described inAmeris and Fidelity incorporated by reference into this joint proxy statement/prospectus, by voting “FOR”and with the merger-related compensation proposal.unaudited pro forma condensed combined financial statements included in this joint proxy statement/prospectus. See “Unaudited Pro Forma Condensed Combined Financial Statements.”
The unaudited pro forma financial information is presented for illustrative purposes only and does not necessarily indicate the financial results of the combined companies had the companies actually been combined at the beginning of the period presented. The unaudited pro forma financial information also does not consider any potential impacts of current market conditions on revenues, potential revenue enhancements, anticipated cost savings and expense efficiencies, or asset dispositions, among other factors.
​​​Ameris
Historical		​​Fidelity
Historical		​​Pro Forma
Combined		​​Per
Equivalent
Fidelity
Share		​
For the nine months ended September 30, 2018:​​​​​
Earnings per common share (Basic)​​​$1.86​​​​$1.25​​​​$1.69​​​​$1.35​​
Earnings per common share (Diluted)​​​$1.85​​​​$1.25​​​​$1.67​​​​$1.34​​
Dividends declared per share​​​$0.30​​​​$0.36​​​​$0.30​​​​$0.24​​
Book value per common share​​​$29.58​​​​$15.85​​​​$31.06​​​​$24.85​​
For the year ended December 31, 2017:​​​​​
Earnings per common share (Basic)​​​$2.00​​​​$1.50​​​​$1.96​​​​$1.57​​
Earnings per common share (Diluted)​​​$1.98​​​​$1.49​​​​$1.93​​​​$1.54​​
Dividends declared per share​​​$0.40​​​​$0.48​​​​$0.40​​​​$0.32​​
Book value per common share​​​$21.59​​​​$14.86​​​​$30.34​​​​$24.27​​
32
TABLE OF CONTENTS​
Proposal 3: Approval of the Adjournment Proposal
Atlantic stockholders are being asked to grant authority to proxy holders to vote in favor of one or more adjournments or postponements of the special meeting, if necessary or appropriate, to solicit additional proxies if there are insufficient votes at the time of the special meeting to approve the merger proposal.
If this proposal is approved, then the special meeting could be successively adjourned to any date. A vote on adjournment of the special meeting, if necessary or appropriate, to solicit additional proxies if there are insufficient votes at the time of the special meeting to approve the merger proposal may be taken in the absence of a quorum. Atlantic does not currently intend to propose adjournment of the special meeting if there are sufficient votes to approve the merger proposal. If approval of the adjournment proposal is submitted to the Atlantic stockholders for approval, then the approval requires the affirmative vote of the holders of a majority of the shares of Atlantic common stock represented in person or by proxy at the special meeting.
If your shares of Atlantic common stock are present at the special meeting but are not voted on the adjournment proposal, or if you vote to abstain on the adjournment proposal, then it will have no effect on the outcome of the vote on the adjournment proposal. If you fail to submit a proxy, or if your shares of Atlantic common stock are held through a bank, broker or other nominee and you do not instruct your bank, broker or other nominee to vote your shares of Atlantic common stock, then your shares of Atlantic common stock will not be voted, which will have no effect on the outcome of the vote on the adjournment proposal.
The board of directors of Atlantic unanimously recommends that Atlantic stockholders vote “FOR” the adjournment proposal.
33
TABLE OF CONTENTS​
THE COMPANIES
Ameris Bancorp
Ameris Bancorp a Georgia corporation incorporated in 1980, is a bank holding company headquarteredwhose business is conducted primarily through Ameris Bank, a Georgia state-chartered bank and a wholly owned subsidiary of Ameris. Through Ameris Bank,
18
TABLE OF CONTENTS
Ameris provides a full range of banking services to its retail and commercial customers through 125 branches primarily concentrated in Moultrie, Georgia. The select markets in Georgia, Alabama, Florida and South Carolina. These branches serve distinct communities in Ameris’s business areas with autonomy but do so as one bank, leveraging its favorable geographic footprint in an effort to acquire more customers. Deposits with Ameris Bank are insured, up to applicable limits, by the FDIC.
Throughout Ameris’s history, Ameris’s strategy has been focused on growing the franchise in Ameris’s historical markets and in select new markets that Ameris has entered through acquisitions. Ameris believes its strategy has resulted in a consistent record of strong growth over an extended period of time, as Ameris has grown from $2.11 billion in total assets at December 31, 2007 to $11.43 billion in total assets at September 30, 2018. At September 30, 2018, Ameris also had total loans (net of allowance for loan losses) of $8.50 billion, total deposits of  $9.18 billion and shareholders’ equity of  $1.40 billion.
Ameris common stock is listed on the NASDAQ Global Select MarketNasdaq under the symbol “ABCB.” Ameris’s
Ameris Bancorp’s principal executive offices areoffice is located at 310 First Street, S.E., Moultrie, Georgia 31768, and its telephone number at that location is (229) 890-1111. ItsAmeris’s website is www.amerisbank.com.http://www.amerisbank.com. The information on Ameris’s website is not part of this joint proxy statement/prospectus, and the reference to Ameris’s website address does not constitute incorporation by reference of any information on that website into this joint proxy statement/prospectus. Additional information about Ameris and its subsidiaries is included in documents incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information” beginning on page 159.
Fidelity Southern Corporation
Fidelity Southern Corporation is a bank holding company headquartered in Atlanta, Georgia. Fidelity conducts operations primarily through Fidelity Bank, a state chartered wholly-owned subsidiary bank. Fidelity Bank was organized as a national banking corporation in 1973 and converted to a Georgia chartered state bank in 2003. LionMark Insurance Company is a wholly-owned subsidiary of Fidelity and is an insurance agency offering consumer credit related insurance products. Fidelity also owns three subsidiaries established to issue trust preferred securities. Deposits with Fidelity Bank are insured, up to applicable limits, by the FDIC.
Since Fidelity’s inception in 1973, it has pursued managed, profitable growth through providing quality financial services. Fidelity’s mission is to continue growth, improve earnings and increase shareholder value; to treat customers, employees, community and shareholders according to the “Golden Rule”; and to operate within a culture of strong internal controls. Fidelity’s franchise primarily spans the metropolitan Atlanta, Jacksonville, Orlando, Tallahassee and Sarasota-Bradenton, Florida markets. Fidelity also conducts indirect automobile lending in Georgia and Florida and residential mortgage lending throughout the South. Small business administration lending has a nation-wide footprint.
At September 30, 2018, Fidelity had $4.81 billion in total assets, total loans (net of allowance for loan losses) of  $3.68 billion, total deposits of  $4.05 billion and total shareholders’ equity of  $432.10 million.
Fidelity common stock is listed on the Nasdaq under the symbol “LION.”
Fidelity’s principal executive office is located at 3490 Piedmont Road, Suite 1550, Atlanta, Georgia 30305, and its telephone number at that location is (404) 639-6500. Fidelity’s website is http://www.fidelitysouthern.com. The information on Fidelity’s website is not part of this joint proxy statement/​prospectus, and the reference to Fidelity’s website address does not constitute incorporation by reference of any information on that website into this joint proxy statement/prospectus. Additional information about Fidelity and its subsidiaries is included in documents incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information” beginning on page 159.
Ameris Bancorp Year End 2018 Financial Results
On January 25, 2019, Ameris issued a press release announcing its financial results for the fourth quarter and year ended December 31, 2018. The press release was included as an exhibit to the Current Report on Form 8-K furnished to the SEC by Ameris on January 25, 2019.
19
TABLE OF CONTENTS
Ameris’s audited consolidated financial statements for year ended December 31, 2018 are not yet available. Accordingly, the financial results presented below are preliminary and subject to the completion of Ameris’s financial closing procedures and any adjustments that may result from the completion of the review of its consolidated financial statements. As a result, these preliminary results may differ from the actual results that will be reflected in Ameris’s audited consolidated financial statements for the year ended December 31, 2018 when they are completed and publicly disclosed. These preliminary results may change and those changes may be material.
Ameris’s expectations with respect to its unaudited results for the period discussed below are based upon management estimates and are the responsibility of management. Ameris’s independent registered public accounting firm has not audited, reviewed or performed any procedures with respect to these preliminary results and, accordingly, does not express an opinion or any other form of assurance about them.
Results of Operations
Ameris reported net income of  $121.0 million, or $2.80 per diluted share, for the year ended December 31, 2018, compared with $73.5 million, or $1.98 per diluted share, for 2017. For the quarter ending December 31, 2018, reported results include net income of  $43.5 million, or $0.91 per diluted share, compared with $9.2 million, or $0.24 per diluted share, for the same period in 2017.
Net interest income on a tax-equivalent basis increased 30.1% in 2018 to $347.5 million, up from $267.1 million for 2017. Growth in earning assets from Ameris’s two acquisitions in 2018, as well as internal sources, contributed to the increase. Average earning assets increased 31.1% in 2018 to $8.86 billion, compared with $6.76 billion for 2017. Although Ameris’s net interest income increased, net interest margin for 2018 declined only slightly to 3.92%, compared with 3.95% for 2017. Yields on earning assets in 2018 were 4.71%, compared with 4.46% in 2017. Accretion income for 2018 increased to $11.8 million, or 2.6% of total revenue, compared with $10.6 million, or 2.9%, respectively, for 2017.
Ameris’s net interest margin was 3.91% for the fourth quarter of 2018, down slightly from 3.92% reported for the third quarter of 2018 and 3.94% reported for the fourth quarter of 2017. Accretion income for the fourth quarter of 2018 increased to $4.1 million, compared with $3.7 million for the third quarter of 2018, and up from $2.2 million reported for the fourth quarter of 2017.
Total interest expense for 2018 was $69.9 million, compared with $34.2 million for 2017. Deposit costs increased during 2018 to 0.62%, compared with 0.34% for 2017. Noninterest-bearing deposits represented 27.5% of the total average deposits for 2018, compared with 28.6% for 2017.
Interest expense during the fourth quarter of 2018 moved higher to $23.2 million, compared with $22.1 million in the third quarter of 2018 and $10.0 million in the fourth quarter of 2017. Ameris’s total cost of funds moved 4 basis points higher to 0.94% in the fourth quarter of 2018 as compared with the third quarter of 2018. Deposit costs increased 10 basis points during the fourth quarter of 2018 to 0.79%, compared with 0.69% in the third quarter of 2018. Costs of interest-bearing deposits increased during the quarter from 0.93% in the third quarter of 2018 to 1.09% in the fourth quarter, with the material portion of the increase relating to NOW and MMDA accounts.
Non-interest income increased 13.4% in 2018 to $118.4 million, compared with $104.5 million for 2017, as a result of increased service charges and mortgage banking activity during 2018. Service charge revenue increased $4.1 million, or 9.7%, during 2018 due to Ameris’s increased number of deposit accounts from organic growth and the acquisitions completed in 2018. Revenue in the retail mortgage group totaled $71.7 million in 2018, an increase of 18.5%, compared with $60.5 million in 2017. Net income for Ameris’s retail mortgage division was $4.0 million for the fourth quarter of 2018, compared with $3.7 million in the third quarter of 2018 and $2.2 million for the fourth quarter of 2017. Profitability in Ameris’s warehouse lending group continued to increase, as revenues from the division increased 45.9% during the year, from $7.6 million for 2017 to $11.1 million in 2018. Net income for the division increased 86.8% from $4.3 million in 2017 to $8.1 million in 2018. Net income for Ameris’s warehouse lending division was $2.0 million for the fourth quarter of 2018, compared with $2.2 million for the third quarter of 2018 and $1.4 million for the fourth quarter of 2017.
20
TABLE OF CONTENTS
Non-interest expense increased $61.7 million, or 26.6%, to $293.6 million for the year ended December 31, 2018, compared with $231.9 million for 2017. During 2018, Ameris recorded $31.8 million of charges to earnings, the majority of which were related to merger and conversion activity and executive retirement, compared to $7.8 million in 2017 that were mostly merger and compliance oriented. Excluding these charges, adjusted expenses increased approximately $37.6 million, or 16.8%, to $261.8 million in 2018, up from $224.2 million in 2017. Growth in operating expenses in 2018 amounted to 1.57% of growth in average assets, materially lower than Ameris’s gross overhead ratio for 2017 at 3.06%.
Ameris’s recorded income tax expense of  $30.5 million for the year ended December 31, 2018 compared with $50.7 million for the year ended December 31, 2017. The effective tax rate was 20.1% for the year end December 31, 2018, significantly lower than effective tax rate of 40.8% for 2017 due to the Tax Cuts and Jobs Act that was enacted in the fourth quarter of 2017.
Balance Sheet Trends
Total assets increased $3.59 billion, or 45.7%, during 2018. Total loans, including loans held for sale, purchased loans and purchased loan pools, were $8.62 billion at the end of 2018, compared with $6.24 billion at the end of 2017. Excluding the effects of recent acquisitions, growth in core loans (including legacy and purchased non-covered loans) totaled $482.6 million, or 8.5%, during 2018, compared with $941.0 million, or 20.3%, in 2017.
At December 31, 2018, total deposits amounted to $9.65 billion, or 97.4% of total funding, compared with $6.63 billion and 94.8%, respectively, at December 31, 2017. Excluding Ameris’s recently completed acquisitions and brokered funds, deposits increased $549.7 million, or 8.6%. At December 31, 2018, noninterest-bearing deposit accounts were $2.52 billion, or 26.1% of total deposits, compared with $1.78 billion, or 26.8% of total deposits, at December 31, 2017. Non-rate sensitive deposits (including non-interest bearing, NOW and savings) totaled $4.60 billion at December 31, 2018, compared with $3.52 billion at the end of 2017. These funds represented 47.6% of Ameris’s total deposits at the end of 2018, compared with 53.1% at the end of 2017.
Shareholders’ equity at December 31, 2018 totaled $1.46 billion, an increase of  $651.9 million, or 81.0%, from December 31, 2017. The increase in shareholders’ equity was the result of the issuance of new shares of Ameris common stock in Ameris’s recent acquisitions, plus earnings of  $121.0 million during 2018. Tangible book value per common share was $18.83 at the end of 2018, up from $17.78 at September 30, 2018 and $17.86 at the end of 2017. Tangible common equity as a percentage of tangible assets was 8.22% at the end of 2018, compared with 7.77% at the end of the third quarter of 2017 and 8.62% at the end of 2017.
Ameris’s “tangible book value per common share” is determined by methods other than in accordance with generally accepted accounting principles in the United States (which we refer to as “GAAP”). See “— Reconciliation of Non-GAAP Financial Measures” below for a reconciliation of Ameris’s tangible book value per common share, a non-GAAP financial measure, to book value per common share, a financial measure calculated and presented in accordance with GAAP, and see “Selected Historical Consolidated Financial Data of Ameris — Reconciliation of Non-GAAP Financial Measures” for a discussion of Ameris’s management’s use of non-GAAP financial measures.
During the fourth quarter of 2018, Ameris recorded provision for loan loss expense of  $3.7 million, compared with $2.1 million in the third quarter of 2018. The increase in provision expense is mostly attributable to increased general reserves on consumer and premium finance loans based on loss history and agricultural loans affected by Hurricane Michael. Nonperforming assets as a percentage of total assets decreased five basis points to 0.55% during the quarter.
Reconciliation of Non-GAAP Financial Measures
The following information reconciles Ameris’s tangible book value per common share, a non-GAAP financial measure, as of the periods presented to Ameris’s book value per common share, a financial measure calculated and presented in accordance with GAAP, as of the periods presented.
21
TABLE OF CONTENTS
​​​Three Months Ended​​Year Ended​
(dollars in thousands except per share data)​​December
2018		​​September
2018		​​June
2018		​​March
2018		​​December
2017		​​December
2018		​​December
2017		​
Total shareholders’ equity​​​$1,456,347​​​​$1,404,977​​​​$1,371,896​​​​$868,944​​​​$804,479​​​​$1,456,347​​​​$804,479​​
Less:​​​​​​​​
Goodwill​​​​503,434​​​​​505,604​​​​​504,764​​​​​208,513​​​​​125,532​​​​​503,434​​​​​125,532​​
Other intangibles, net​​​​58,689​​​​​54,729​​​​​53,561​​​​​12,562​​​​​13,496​​​​​58,689​​​​​13,496​​
Total tangible shareholders’ equity​​​$894,224​​​​$844,644​​​​$813,571​​​​$647,869​​​​$665,451​​​​$894,224​​​​$665,451​​
Period end number of shares​​​​47,499,941​​​​​47,496,966​​​​​47,518,662​​​​​38,327,081​​​​​37,260,012​​​​​47,499,941​​​​​37,260,012​​
Book value per share (period end)​​​$30.66​​​​$29.58​​​​$28.87​​​​$22.67​​​​$21.59​​​​$30.66​​​​$21.59​​
Tangible book value per share (period end) ​​​$18.83​​​​$17.78​​​​$17.12​​​​$16.90​​​​$17.86​​​​$18.83​​​​$17.86​​
Fidelity Southern Corporation Year End 2018 Financial Results
On January 17, 2019, Fidelity issued a press release announcing its financial results for the fourth quarter and year ended December 31, 2018. The press release was included as an exhibit to the Current Report on Form 8-K furnished to the SEC by Fidelity on January 18, 2019.
Fidelity’s audited consolidated financial statements for year ended December 31, 2018 are not yet available. Accordingly, the financial results presented below are preliminary and subject to the completion of Fidelity’s financial closing procedures and any adjustments that may result from the completion of the review of its consolidated financial statements. As a result, these preliminary results may differ from the actual results that will be reflected in Fidelity’s audited consolidated financial statements for the year ended December 31, 2018 when they are completed and publicly disclosed. These preliminary results may change and those changes may be material.
Fidelity’s expectations with respect to its unaudited results for the period discussed below are based upon management estimates and are the responsibility of management. Fidelity’s independent registered public accounting firm has not audited, reviewed or performed any procedures with respect to these preliminary results and, accordingly, does not express an opinion or any other form of assurance about them.
Results of Operations
Fidelity reported net income of  $43.8 million, or $1.61 per diluted share, for the year ended December 31, 2018, compared with $39.8 million, or $1.49 per diluted share, for 2017. For the quarter ending December 31, 2018, reported results include net income of  $9.9 million, or $0.36 per diluted share, compared with $12.4 million, or $0.46 per diluted share, for the same period in 2017.
Interest income for the quarter ended December 31, 2018 of  $48.3 million was higher by $1.4 million, compared to the prior quarter, driven by moderate increases in loan, investment and Fed Funds income. Although average loans decreased by $105.5 million for the quarter, $70.2 million of this was due to a decrease in lower yielding indirect loans, which were partially replaced in the portfolio mix with higher yielding commercial and SBA loans. An increase in average investment securities of  $57.5 million and an increase in average Fed Funds and bank deposit balances of  $33.7 million also contributed to higher interest income. The yield on total average interest-bearing assets also increased 14 basis points from the previous quarter. As compared to the same period in the prior year, interest income increased by $6.6 million as average loans increased by $172.7 million and the yield on total average interest-bearing assets increased by 35 basis points, as market interest rates rose year over year. Interest income was $181.4 million for the year ended December 31, 2018, an increase of  $23.5 million compared to the same period in the prior year, primarily due to an increase of 21 basis points in the yield on loans and an increase of  $324.7 million in average loans.
Interest expense of  $8.7 million increased slightly by $588,000, or 7.2%, for the quarter ended December 31, 2018 as average FHLB borrowings increased by $8.8 million. As compared to the fourth quarter of the prior year, interest expense increased by $2.9 million. Rising market rates paid on money
22
TABLE OF CONTENTS
market deposits and CD’s drove the increase, as well as increased volume and rates for short term borrowings. For the year ended December 31, 2018, interest expense increased by $9.2 million, or 40.3%, compared to previous year, as market rates and deposit balances increased over the twelve months ended December 31, 2018.
The net interest margin was 3.54% for the quarter ended December 31, 2018 compared to 3.45% in the previous quarter, an increase of 9 basis points. Loan coupon yields, excluding fees, SBA discount accretion, and accretable yields, increased faster than deposit and borrowing costs during the quarter.
The yield on total average interest-bearing liabilities increased by only 9 basis points while the yield on total average interest-earning assets increased by 14 basis points from 4.18% to 4.32%. Average loans decreased by $105.5 million, of which $70.2 million was a decrease in lower yielding indirect auto loans. Higher yielding investment securities increased by $57.5 million as Fidelity Bank’s strategy to reposition its balance sheet continues to occur.
Average total interest-bearing liabilities decreased by $24.2 million, average deposits decreased by $33.1 million, offset by an increase in average borrowings of  $8.8 million in order to help fund loan production.
As compared to the same period a year ago, the net interest margin for the quarter ended December 31, 2018 increased by 12 basis points to 3.54% from 3.42%, primarily due to a 35 basis point increase in the yield on total average interest-earning assets of  $4.4 billion, offset by an increase of 35 basis points in the yield on total average interest-bearing liabilities of  $3.1 billion. Average earning assets increased by $271.6 million, primarily due to an increase in average loans over the year. Average interest-bearing liabilities increased by $117.8 million, primarily driven by an increase in average borrowings of  $146.7 million, offset by a decrease in average interest-bearing deposits of  $29.0 million.
On a linked-quarter basis, noninterest income for the quarter ended December 31, 2018 decreased by $2.6 million, or 7.7%, largely due to a decrease in other noninterest income of  $2.8 million, primarily due to the $2.6 million death benefit received from life insurance policies during the previous quarter. Mortgage banking activities decreased by $1.9 million, or 8.1%, as gross mortgage revenue decreased by $2.8 million and mortgage production also decreased by $121.6 million. These decreases were offset by an increase in SBA lending activities of  $2.5 million, mainly due to a large SBA loan sale in December, as well as an increase in SBA loan closings during the quarter. Compared to the same period a year ago, noninterest income for the quarter increased by $2.2 million, primarily due to a $2.9 million increase in SBA banking activities, as SBA loan sales were higher in the current quarter as discussed above. For the year ended December 31, 2018, noninterest income increased by $3.9 million as all sources of noninterest income increased, except for indirect lending activities, which decreased by $7.3 million, as indirect loan sales and production decreased significantly during the year.
On a linked-quarter basis, total noninterest expense for the quarter ended December 31, 2018 increased by $528,000, or 0.9%, mainly due to an increase in other expenses of  $2.4 million, of which $1.2 million were merger related expenses. This increase was offset by a decrease in commissions expense of  $1.7 million from lower mortgage loan originations for the quarter. Compared to the prior year quarter, noninterest expense of  $56.1 increased by $3.2 million, or 6.1%. Salaries and employee benefits increased by $3.2 million, or 12.4%, compared to the same quarter in 2017, primarily due to $2.6 million of merger related expenses. For the year ended December 31, 2018, total noninterest expense increased $14.4 million compared to the previous year, of which $10.2 million was due to an increase in salaries and benefits. Salaries increased by $3.8 million, partially due to a $2.7 million increase in employee incentives due to performance and related to the balance sheet strategies implemented earlier in the year, and from a comparison perspective, no executive incentives were paid in 2017. Other expense increased by $2.8 million, of which $1.2 million was merger related expenses.
On a linked-quarter basis, income tax expense for the quarter ended December 31, 2018 remained relatively flat. The effective tax rate increased to 28% from 23% due to a $2.6 million tax-free death benefit received from life insurance policies in the previous quarter. For the year ended December 31, 2018, income tax expense decreased by $1.5 million as the effective tax rate decreased from 28% to 24% primarily as a result of the Tax Cuts and Jobs Act enacted on December 22, 2017, which included, among other things, a reduction in the federal corporate income tax rate from 35% to 21% from the beginning of the tax year 2018 going forward.
23
TABLE OF CONTENTS
Balance Sheet Trends
Total assets decreased by $78.3 million, or 1.6%, during the quarter, to $4.7 billion at December 31, 2018, primarily due to a decrease of  $153.5 million in total loans. This decrease was primarily due to a decrease in loans held for sale of  $132.0 million, as well as a decrease of  $21.5 million in loans held for investment. The decrease in loans held for sale was primarily in mortgage loans, which decreased $102.7 million, as seasonal production decreased. Other assets also decreased by $3.0 million.
Offsetting these decreases, investments increased by $42.2 million as Fidelity Bank continues to increase its investments available-for-sale portfolio as part of its strategy to reposition the balance sheet to higher yielding assets. Cash balances also increased by $29.6 million for the quarter. Loan servicing assets also increased by $3.4 million.
Total assets grew by $156.9 million, or 3.4%, to $4.7 billion at December 31, 2018, compared to $4.6 billion at December 31, 2017. Primary drivers for the year over year growth were an increase in cash of $26.0 million and an increase in investments available-for-sale of  $131.5 million as Fidelity Bank repositioned its balance sheet to higher yielding investments over the year.
Total loans, including loans held for sale, decreased during the quarter by $153.5 million, or 3.8%, to $3.9 billion at December 31, 2018. This reduction was primarily due to a decrease in loans held for sale of $132.0 million, primarily mortgage loans held for sale, which accounted for $102.7 million of the decrease.
Total loans decreased by $13.9 million, or 0.4%, compared to December 31, 2017, as loans held for sale decreased by $118.5 million, offset by an increase in loans held for investment of  $104.5 million. Loans held for sale decreased due to lower sales of mortgage loans and indirect auto loans. The growth in loans was primarily in commercial and mortgage loans, while average indirect auto loans for the quarter decreased by $70.2 million.
Compared to 2017, the provision for loan losses for the year increased by $1.2 million, or 29.1%, mainly due to increases in commercial loan balances.
Core deposits decreased by $86.6 million during the quarter to $3.1 billion with seasonal decreases in all categories. Noninterest bearing deposits decreased by 2.8% as escrow deposits decreased seasonally as escrow balances were paid down during the quarter. Also, the escrow accounts for mortgage servicing rights sold in the previous quarter were transferred to the purchaser. This decrease was offset by an increase in time deposits of  $18.2 million during the quarter, mainly due to an increase of  $29.6 million in brokered deposits, resulting in a decrease in total deposits of  $68.4 million, or 1.7%.
Year over year, deposits grew by $114.4 million or 3.0%, primarily due to growth in non-interest bearing demand deposits and money market accounts.
24
TABLE OF CONTENTS​
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF AMERIS
The following table summarizes certain selected consolidated historical financial data of Ameris for the periods presented. The selected historical financial data as of and for the nine months ended September 30, 2018 and 2017 have been derived from Ameris’s unaudited interim consolidated financial statements, which are incorporated by reference into this joint proxy statement/prospectus. The unaudited consolidated financial statements include all adjustments, consisting only of normal recurring items, which Ameris’s management considers necessary for a fair presentation of its financial position and results of operations for these periods. The financial condition and results of operations as of and for the nine months ended September 30, 2018 do not purport to be indicative of the financial condition or results of operations to be expected as of or for the year ended December 31, 2018. The unaudited consolidated financial statements as of September 30, 2018 and for the nine-month periods ended September 30, 2018 and 2017, together with the notes thereto, are included in Ameris’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2018, which is incorporated by reference into this joint proxy statement/prospectus. The selected historical financial data as of and for the years ended December 31, 2017, 2016, 2015, 2014 and 2013 has been derived from Ameris’s audited consolidated financial statements, and Ameris’s audited consolidated financial statements as of December 31, 2017 and 2016 and for each of the years in the three-year period ended December 31, 2017 have been incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information.”
The selected consolidated historical financial data of Ameris presented below is only a summary and not necessarily indicative of the results of future operations of Ameris or the combined company following the completion of the merger, and you should read such information together with the historical consolidated financial information contained in Ameris’s consolidated financial statements and related notes, as well as the information contained under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Ameris’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2018 and Ameris’s Annual Report on Form 10-K for the year ended December 31, 2017, which are incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information.”
Ameris’s “tangible book value per common share” is determined by methods other than in accordance with GAAP. See “— Reconciliation of Non-GAAP Financial Measures” below for a reconciliation of Ameris’s tangible book value per common share, a non-GAAP financial measure, to book value per common share, a financial measure calculated and presented in accordance with GAAP.
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
​​​(unaudited)​​(audited)​
​​​(In thousands, except per share data and ratios)​
Selected Balance Sheet Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Total assets​​​$11,428,994​​​​$7,649,820​​​​$7,856,203​​​​$6,892,031​​​​$5,588,940​​​​$4,037,077​​​​$3,667,649​​
Earning assets​​​​10,340,558​​​​​7,074,828​​​​​7,288,285​​​​​6,293,670​​​​​5,084,658​​​​​3,574,561​​​​​3,232,769​​
Loans held for sale​​​​130,179​​​​​137,392​​​​​197,442​​​​​105,924​​​​​111,182​​​​​94,759​​​​​67,278​​
Loans, net of unearned
income		​​​​5,543,306​​​​​4,574,678​​​​​4,856,514​​​​​3,626,821​​​​​2,406,877​​​​​1,889,881​​​​​1,618,454​​
Purchased loans​​​​2,711,460​​​​​917,126​​​​​861,595​​​​​1,069,191​​​​​909,083​​​​​945,518​​​​​838,990​​
Purchased loan pools​​​​274,752​​​​​465,218​​​​​328,246​​​​​568,314​​​​​592,963​​​​​—​​​​​—​​
Investment securities available for
sale		​​​​1,162,570​​​​​819,593​​​​​810,873​​​​​822,735​​​​​783,185​​​​​541,805​​​​​486,235​​
FDIC loss-share receivable, net of
clawback		​​​​—​​​​​—​​​​​—​​​​​—​​​​​6,301​​​​​31,351​​​​​65,441​​
Total deposits​​​​9,181,363​​​​​5,895,504​​​​​6,625,845​​​​​5,575,163​​​​​4,879,290​​​​​3,431,149​​​​​2,999,231​​
FDIC loss-share payable including clawback​​​​18,740​​​​​8,190​​​​​8,803​​​​​6,313​​​​​—​​​​​—​​​​​—​​
Shareholders’ equity​​​​1,404,977​​​​​801,921​​​​​804,479​​​​​646,437​​​​​514,759​​​​​366,028​​​​​316,699​​
​
25
TABLE OF CONTENTS
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
​​​(unaudited)​​(audited)​
​​​(In thousands, except per share data and ratios)​
Selected Income Statement Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Interest income​​​$290,577​​​​$214,783​​​​$294,347​​​​$239,065​​​​$190,393​​​​$164,566​​​​$126,322​​
Interest expense​​​​46,739​​​​​24,181​​​​​34,222​​​​​19,694​​​​​14,856​​​​​14,680​​​​​10,137​​
Net interest income​​​​243,838​​​​​190,602​​​​​260,125​​​​​219,371​​​​​175,537​​​​​149,886​​​​​116,185​​
Provision for loan
losses		​​​​13,006​​​​​5,828​​​​​8,364​​​​​4,091​​​​​5,264​​​​​5,648​​​​​11,486​​
Noninterest income​​​​87,942​​​​​80,894​​​​​104,457​​​​​105,801​​​​​85,586​​​​​62,836​​​​​46,549​​
Noninterest expense​​​​217,837​​​​​172,599​​​​​231,936​​​​​215,835​​​​​199,115​​​​​150,869​​​​​121,945​​
Income before income taxes​​​​100,937​​​​​93,069​​​​​124,282​​​​​105,246​​​​​56,744​​​​​56,205​​​​​29,303​​
Income tax expense​​​​23,446​​​​​28,671​​​​​50,734​​​​​33,146​​​​​15,897​​​​​17,482​​​​​9,285​​
Net income​​​​77,491​​​​​64,398​​​​​73,548​​​​​72,100​​​​​40,847���​​​​38,723​​​​​20,018​​
Preferred stock
dividends		​​​​—​​​​​—​​​​​—​​​​​—​​​​​—​​​​​286​​​​​1,738​​
Net income available
to common shareholders		​​​$77,491​​​​$64,398​​​​$73,548​​​​$72,100​​​​$40,847​​​​$38,437​​​​$18,280​​
Per Share Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Earnings per share available to common shareholders:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Basic​​​$1.86​​​​$1.76​​​​$2.00​​​​$2.10​​​​$1.29​​​​$1.48​​​​$0.76​​
Diluted​​​​1.85​​​​​1.74​​​​​1.98​​​​​2.08​​​​​1.27​​​​​1.46​​​​​0.75​​
Common book value​​​​29.58​​​​​21.54​​​​​21.59​​​​​18.51​​​​​15.98​​​​​13.67​​​​​11.50​​
Tangible book value​​​​17.78​​​​​17.78​​​​​17.86​​​​​14.42​​​​​12.65​​​​​10.99​​​​​9.87​​
Cash dividends declared​​​​0.30​​​​​0.30​​​​​0.40​​​​​0.30​​​​​0.20​​​​​0.15​​​​​—​​
Profitability Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Net income to average
total assets		​​​​1.12%​​​​​1.20%​​​​​1.00%​​​​​1.17%​​​​​0.85%​​​​​1.08%​​​​​0.70%​​
Net income to average shareholders’ equity​​​​9.47%​​​​​11.39%​​​​​9.55%​​​​​11.75%​​​​​8.37%​​​​​12.40%​​​​​8.06%​​
Net interest margin (fully taxable
equivalent basis)		​​​​3.93%​​​​​3.96%​​​​​3.95%​​​​​3.99%​​​​​4.12%​​​​​4.59%​​​​​4.74%​​
Efficiency ratio​​​​65.66%​​​​​63.57%​​​​���63.62%​​​​​66.38%​​​​​76.25%​​​​​70.92%​​​​​74.94%​​
Loan Quality Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Net charge-offs to average
loans*		​​​​0.29%​​​​​0.13%​​​​​0.13%​​​​​0.11%​​​​​0.22%​​​​​0.34%​​​​​0.75%​​
Allowance for loan losses to total
loans*		​​​​0.46%​​​​​0.46%​​​​​0.44%​​​​​0.56%​​​​​0.85%​​​​​1.12%​​​​​1.38%​​
Non performing assets to total loans and OREO**​​​​0.78%​​​​​0.94%​​​​​0.85%​​​​​1.12%​​​​​1.60%​​​​​3.35%​​​​​3.49%​​
Liquidity Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Loans to total deposits​​​​92.90%​​​​​101.04%​​​​​91.25%​​​​​94.42%​​​​​80.11%​​​​​82.64%​​​​​81.94%​​
Average loans to average earning
assets		​​​​84.11%​​​​​83.42%​​​​​83.50%​​​​​80.83%​​​​​75.96%​​​​​80.22%​​​​​78.08%​​
Noninterest-bearing deposits to total deposits​​​​25.42%​​​​​29.14%​​​​​26.82%​​​​​28.22%​​​​​27.26%​​​​​24.46%​​​​​22.29%​​
Capital Adequacy Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Shareholders’ equity to total assets​​​​12.29%​​​​​10.48%​​​​​10.24%​​​​​9.38%​​​​​9.21%​​​​​9.07%​​​​​8.63%​​
Common stock dividend payout ratio​​​​16.13%​​​​​17.05%​​​​​20.00%​​​​​14.29%​​​​​15.50%​​​​​10.14%​​​​​—​​
​
*
Excludes purchased non-covered and covered assets.
​
**
Excludes covered assets.
​
​
26
TABLE OF CONTENTS
Reconciliation of Non-GAAP Financial Measures
This joint proxy statement/prospectus and certain documents filed by Ameris with the SEC and incorporated by reference into this joint proxy statement/prospectus contain financial information determined by methods other than in accordance with GAAP. Ameris’s management uses these non-GAAP measures in its analysis of Ameris’s performance. These measures are useful when evaluating the underlying performance and efficiency of Ameris’s operations and balance sheet. Ameris’s management believes that these non-GAAP measures provide a greater understanding of ongoing operations, enhance comparability of results with prior periods and demonstrate the effects of significant gains and charges in the current period. Ameris’s management believes that investors may use these non-GAAP financial measures to evaluate Ameris’s financial performance without the impact of unusual items that may obscure trends in Ameris’s underlying performance. These disclosures should not be viewed as a substitute for financial measures determined in accordance with GAAP, nor are they necessarily comparable to non-GAAP performance measures that may be presented by other companies. Non-GAAP measures include tangible common shareholders’ equity and tangible book value per common share. Ameris calculates the regulatory capital ratios using current regulatory report instructions. Ameris’s management uses these measures to assess the quality of capital and believes that investors may find them useful in their evaluation of Ameris. These capital measures may or may not be necessarily comparable to similar capital measures that may be presented by other companies.
The following information reconciles Ameris’s tangible book value per common share, a non-GAAP financial measure, as of the dates presented to Ameris’s book value per common share, a financial measure calculated and presented in accordance with GAAP, as of the dates presented.
​​​September 30,​​December 31,​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
​​​(unaudited)​​(audited)​
​​​(dollars in thousands, except per share data)​
Tangible Book Value Per Share Reconciliation:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Common shareholders’
equity		​​​$1,404,977​​​​$801,921​​​​$804,479​​​​$646,437​​​​$514,759​​​​$366,028​​​​$288,699​​
Less: Goodwill​​​​505,604​​​​​125,532​​​​​125,532​​​​​125,532​​​​​90,082​​​​​63,547​​​​​35,049​​
Less: Other intangibles, net​​​​54,729​​​​​14,437​​​​​13,496​​​​​17,428​​​​​17,058​​​​​8,221​​​​​6,009​​
Total tangible common shareholders’
equity		​​​$844,644​​​​$661,952​​​​$665,451​​​​$503,477​​​​$407,619​​​​$294,260​​​​$247,641​​
Period end number of
shares		​​​​47,496,966​​​​​37,231,049​​​​​37,260,012​​​​​34,921,474​​​​​32,211,385​​​​​26,773,863​​​​​25,098,427​​
Book value per common share​​​$29.58​​​​$21.54​​​​$21.59​​​​$18.51​​​​$15.98​​​​$13.67​​​​$11.50​​
Tangible book value per common
share		​​​​17.78​​​​​17.78​​​​​17.86​​​​​14.42​​​​​12.65​​​​​10.99​​​​​9.87​​
27
TABLE OF CONTENTS​
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF FIDELITY
The following table summarizes certain selected consolidated historical financial data of Fidelity for the periods presented. The selected historical financial data as of and for the nine months ended September 30, 2018 and 2017 have been derived from Fidelity’s unaudited interim consolidated financial statements, which are incorporated by reference in this joint proxy statement/prospectus. The unaudited consolidated financial statements include all adjustments, consisting only of normal recurring items, which Fidelity’s management considers necessary for a fair presentation of its financial position and results of operations for these periods. The financial condition and results of operations as of and for the nine months ended September 30, 2018 do not purport to be indicative of the financial condition or results of operations to be expected as of or for the year ended December 31, 2018. The unaudited consolidated financial statements as of September 30, 2018 and for the nine-month periods ended September 30, 2018 and 2017, together with the notes thereto, are included in Fidelity’s Quarterly Report on Form 10-Q for the quarter ended September 30 2018, which is incorporated by reference into this joint proxy statement/​prospectus. The selected historical financial data as of and for the years ended December 31, 2017, 2016, 2015, 2014 and 2013 have been derived from Fidelity’s audited consolidated financial statements, and Fidelity’s audited consolidated financial statements as of December 31, 2017 and 2016 and for each of the years in the three-year period ended December 31, 2017 have been incorporated by reference in this joint proxy statement/prospectus. See “Where You Can Find More Information.”
The selected consolidated historical financial data of Fidelity presented below is only a summary and not necessarily indicative of the results of future operations of Fidelity or the combined company following the completion of the merger, and you should read such information together with the historical consolidated financial information contained in Fidelity’s consolidated financial statements and related notes, as well as the information contained under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Fidelity’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2018 and Fidelity’s Annual Report on Form 10-K for the year ended December 31, 2017, which are incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information.”
Fidelity’s “tangible book value per common share” is determined by methods other than in accordance with GAAP. See “— Reconciliation of Non-GAAP Financial Measures” below for a reconciliation of Fidelity’s tangible book value per common share, a non-GAAP financial measure, to book value per common share, a financial measure calculated and presented in accordance with GAAP.
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
​​​(unaudited)​​(audited)​
​​​(In thousands)​
Selected Balance Sheet Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Total assets​​​$4,812,056​​​​$4,505,423​​​​$4,576,858​​​​$4,389,685​​​​$3,849,063​​​​$3,085,135​​​​$2,564,053​​
Earning assets​​​​4,448,875​​​​​4,167,549​​​​​4,242,218​​​​​4,059,414​​​​​3,558,669​​​​​2,847,971​​​​​2,355,530​​
Loans held for sale​​​​371,319​​​​​340,329​​​​​357,755​​​​​465,328​​​​​397,834​​​​​368,935​​​​​187,366​​
Loans receivable​​​​3,706,953​​​​​3,409,707​​​​​3,580,966​​​​​3,302,264​​​​​2,896,948​​​​​2,253,306​​​​​1,893,037​​
Investment securities available for sale​​​​209,180​​​​​124,827​​​​​120,121​​​​​144,310​​​​​172,397​​​​​149,590​​​​​168,865​​
Investment securities held
to maturity		​​​​20,383​​​​​15,072​​​​​21,689​​​​​16,583​​​​​14,398​​​​​7,349​​​​​4,051​​
Total deposits​​​​4,049,969​​​​​3,938,360​​​​​3,867,200​​​​​3,630,594​​​​​3,179,511​​​​​2,458,022​​​​​2,202,452​​
Shareholders’ equity​​​​432,098​​​​​388,068​​​​​401,632​​​​​362,647​​​​​301,459​​​​​264,951​​​​​236,230​​
28
TABLE OF CONTENTS
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
​​​(unaudited)​​(audited)​
​​​(In thousands)​
Selected Income Statement Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Interest income​​​$133,174​​​​$116,325​​​​$157,978​​​​$149,283​​​​$116,642​​​​$101,667​​​​$97,563​​
Interest expense​​​​23,187​​​​​16,951​​​​​22,730​​​​​20,448​​​​​15,804​​​​​11,226​​​​​13,961​​
Net interest income​​​​109,987​​​​​99,374​​​​​135,248​​​​​128,835​​​​​100,838​​​​​90,441​​​​​83,602​​
Provision for loan
losses		​​​​4,776​​​​​4,275​​​​​4,275​​​​​8,231​​​​​4,351​​​​​531​​​​​5,440​​
Noninterest income​​​​107,772​​​​​106,064​​​​​134,952​​​​​141,325​​​​​127,888​​​​​95,320​​​​​96,878​​
Noninterest expense​​​​169,179​​​​​157,960​​​​​210,870​​​​​201,020​​​​​162,946​​​​​138,754​​​​​132,325​​
Income before income taxes​​​​43,804​​​​​43,203​​​​​55,055​​​​​60,909​​​​​61,429​​​​​46,476​​​​​42,715​​
Income tax expense​​​​9,905​​​​​15,850​​​​​15,259​​​​​22,143​​​​​22,294​​​​​16,440​​​​​15,077​​
Net income​​​​33,899​​​​​27,353​​​​​39,796​​​​​38,766​​​​​39,135​​​​​30,036​​​​​27,638​​
Preferred stock
dividends		​​​​—​​​​​—​​​​​—​​​​​—​​​​​—​​​​​—​​​​​(2,463)​​
Net income available
to common shareholders		​​​$33,899​​​​$27,353​​​​$39,796​​​​$38,766​​​​$39,135​​​​$30,036​​​​$25,175​​
​
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
Per Share Data:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Earnings per share available to common shareholders:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Basic​​​$1.25​​​​$1.03​​​​$1.50​​​​$1.52​​​​$1.77​​​​$1.41​​​​$1.35​​
Diluted​​​​1.25​​​​​1.03​​​​​1.49​​​​​1.50​​​​​1.64​​​​​1.28​​​​​1.21​​
Common book value​​​​15.85​​​​​14.47​​​​​14.86​​​​​13.78​​​​​13.03​​​​​12.40​​​​​11.07​​
Tangible book value​​​​15.43​​​​​14.00​​​​​14.41​​​​​13.26​​​​​12.66​​​​​12.22​​​​​10.96​​
Cash dividends
declared		​​​​0.36​​​​​0.36​​​​​0.48​​​​​0.48​​​​​0.39​​​​​0.30​​​​​0.05​​
Profitability Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Net income to average total assets​​​​0.95%​​​​​0.81%​​​​​0.89%​​​​​0.92%​​​​​1.16%​​​​​1.11%​​​​​1.09%​​
Net income to average shareholders’ equity​​​​10.92%​​​​​9.66%​​​​​10.51%​​​​​11.61%​​​​​13.85%​​​​​12.07%​​​​​12.20%​​
Net interest margin (fully
taxable equivalent
basis)		​​​​3.32%​​​​​3.20%​​​​​3.26%​​​​​3.32%​​​​​3.24%​​​​​3.62%​​​​​3.58%​​
Efficiency ratio​​​​77.69%​​​​​76.89%​​​​​78.04%​​​​​74.41%​​​​​71.24%​​​​​74.69%​​​​​73.32%​​
Loan Quality Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Net charge-offs to average loans*​​​​0.13%​​​​​0.14%​​​​​0.13%​​​​​0.14%​​​​​0.13%​​​​​0.34%​​​​​0.38%​​
Allowance for loan losses
to total loans*		​​​​0.88%​​​​​0.96%​​​​​0.88%​​​​​0.99%​​​​​0.98%​​​​​1.15%​​​​​1.85%​​
Non performing assets to
total loans and
OREO**		​​​​1.92%​​​​​1.71%​​​​​1.76%​​​​​1.77%​​​​​1.76%​​​​​2.78%​​​​​3.90%​​
Liquidity Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Loans to total deposits​​​​91.53%​​​​​86.58%​​​​​92.60%​​​​​90.96%​​​​​91.11%​​​​​91.67%​​​​​85.95%​​
Average loans to average
earning assets		​​​​92.63%​​​​​89.61%​​​​​90.20%​​​​​92.64%​​​​​92.84%​​​​​91.00%​​​​​90.00%​​
Noninterest-bearing deposits to total
deposits		​​​​30.85%​​​​​28.25%​​​​​29.11%​​​​​26.58%​​​​​24.75%​​​​​22.70%​​​​​22.17%​​
29
TABLE OF CONTENTS
​​​Nine Months Ended
September 30,		​​Years Ended
December 31,		​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
Capital Adequacy Ratios:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Shareholders’ equity to total assets​​​​8.98%​​​​​8.61%​​​​​8.78%​​​​​8.26%​​​​​7.83%​​​​​8.59%​​​​​9.21%​​
Common stock dividend
payout ratio		​​​​28.80%​​​​​34.95%​​​​​32.00%​​​​​31.58%​​​​​22.03%​​​​​21.28%​​​​​3.70%​​
​
*
Excludes purchased non-covered and covered assets.
​
**
Excludes covered assets.
​
Reconciliation of Non-GAAP Financial Measures
This joint proxy statement/prospectus and certain documents filed by Fidelity with the SEC and incorporated by reference into this joint proxy statement/prospectus contain financial information determined by methods other than in accordance with GAAP. Fidelity’s management uses these non-GAAP measures in its analysis of Fidelity’s performance. These measures are useful when evaluating the underlying performance and efficiency of Fidelity’s operations and balance sheet. Fidelity’s management believes that these non-GAAP measures provide a greater understanding of ongoing operations, enhance comparability of results with prior periods and demonstrate the effects of significant gains and charges in the current period. Fidelity’s management believes that investors may use these non-GAAP financial measures to evaluate Fidelity’s financial performance without the impact of unusual items that may obscure trends in Fidelity’s underlying performance. These disclosures should not be viewed as a substitute for financial measures determined in accordance with GAAP, nor are they necessarily comparable to non-GAAP performance measures that may be presented by other companies. Non-GAAP measures include tangible common shareholders’ equity and tangible book value per common share. Fidelity calculates the regulatory capital ratios using current regulatory report instructions. Fidelity’s management uses these measures to assess the quality of capital and believes that investors may find them useful in their evaluation of Fidelity. These capital measures may or may not be necessarily comparable to similar capital measures that may be presented by other companies.
The following information reconciles Fidelity’s tangible book value per common share, a non-GAAP financial measure, as of the dates presented to Fidleity’s book value per common share, a financial measure calculated and presented in accordance with GAAP, as of the dates presented.
​​​September 30,​​December 31,​
​​​2018​​2017​​2017​​2016​​2015​​2014​​2013​
​​​(unaudited)​​(audited)​
​​​(dollars in thousands, except per share data)​
Tangible Book Value Per Share Reconciliation:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Common shareholders’ equity​​​$432,098​​​​$388,068​​​​$401,632​​​​$362,647​​​​$301,459​​​​$264,951​​​​$236,230​​
Less: intangibles​​​​11,474​​​​​12,625​​​​​12,306​​​​​13,649​​​​​8,382​​​​​3,858​​​​​2,376​​
Tangible common shareholders’ equity​​​​420,624​​​​​375,443​​​​​389,326​​​​​348,998​​​​​293,077​​​​​261,093​​​​​233,854​​
Period end number of
shares		​​​​27,260,681​​​​​26,815,287​​​​​27,019,201​​​​​26,318,400​​​​​23,140,774​​​​​21,365,098​​​​​21,342,549​​
Book value per common share​​​$15.85​​​​$14.47​​​​$14.86​​​​$13.78​​​​$13.03​​​​$12.40​​​​$11.07​​
Tangible book value per common share​​​​15.43​​​​​14.00​​​​​14.41​​​​​13.26​​​​​12.66​​​​​12.22​​​​​10.96​​
30
TABLE OF CONTENTS​
SELECTED UNAUDITED PRO FORMA FINANCIAL DATA
The following table shows selected unaudited pro forma condensed combined financial information about the financial condition and results of operations of Ameris giving effect to the merger, for the year ended December 31, 2017 and as of and for the nine months ended September 30, 2018.
The selected unaudited pro forma condensed combined financial information has been prepared using the acquisition method of accounting, adjusted from Ameris’s unaudited interim financial statements as of and for the nine months ended September 30, 2018 and Ameris’s audited financial statements for the year ended December 31, 2017 to give effect to the merger and the estimated acquisition accounting adjustments resulting from the merger. The unaudited pro forma combined condensed consolidated balance sheet information as of September 30, 2018 in the tables below are presented as if the merger occurred on September 30, 2018, and the unaudited pro forma combined condensed consolidated statements of income information for the nine months ended September 30, 2018 and the year ended December 31, 2017 is presented as if the merger occurred on January 1, 2017.
The selected unaudited pro forma condensed combined financial information is presented for illustrative purposes only and does not necessarily indicate the financial results of the combined companies had Ameris and Fidelity actually been combined as of the dates indicated and at the beginning of the periods presented, nor does it necessarily indicate the results of operations in future periods or the future financial position of the combined entities, which could differ materially from those shown in this information. The selected unaudited pro forma condensed combined financial information does not reflect the benefits of expected synergies or other factors that may result as a consequence of the merger.
The selected unaudited pro forma condensed combined financial information has been derived from, and should be read in conjunction with, the unaudited pro forma condensed combined financial information, including the notes thereto, included in this joint proxy statement/prospectus. See “Unaudited Pro Forma Condensed Combined Financial Statements.”
​​​For the nine
months ended
September 30,
2018		​​For the
year ended
December 31,
2017		​
​​​(In thousands)​
Unaudited Pro Forma Condensed Combined Income Statement Information:​​​
Net interest income​​​$385,130​​​​$509,577​​
Provision for loan losses​​​$17,863​​​​$13,549​​
Income before income taxes​​​$152,618​​​​$223,829​​
Net income​​​$117,413​​​​$135,260​​
​​​As of
September 30,
2018		​
​​​(In thousands)​
Unaudited Pro Forma Condensed Combined Balance Sheet Information:​​
Net loans​​​$12,169,098​​
Total assets​​​​16,552,225​​
Deposits​​​​13,233,355​​
Other borrowings​​​​881,118​​
Subordinated deferrable interest debentures​​​​135,379​​
Shareholders’ equity​​​​2,155,710​​
31
TABLE OF CONTENTS​
COMPARATIVE HISTORICAL AND UNAUDITED PRO FORMA PER SHARE DATA
Presented below are Ameris’s historical per share data for the year ended December 31, 2017, as derived from the audited financial statements of Ameris, and the nine months ended September 30, 2018, derived from the unaudited financial statements of Ameris. Also presented below are Fidelity’s historical per share data for the year ended December 31, 2017, as derived from the audited financial statements of Fidelity, and the nine months ended September 30, 2018, derived from the unaudited financial statements of Fidelity. The pro forma combined per share data for the year ended December 31, 2017 and nine months ended September 30, 2018 and the per equivalent Fidelity share information provided in the table below are unaudited. The unaudited pro forma data and equivalent per share information give effect to the merger as if the merger had been effective on the dates presented, in the case of the book value data, and as if the merger had become effective on January 1, 2017, in the case of the earnings per share and dividends declared data. This information should be read together with the historical consolidated financial statements and related notes of Ameris and Fidelity incorporated by reference into this joint proxy statement/prospectus, and with the unaudited pro forma condensed combined financial statements included in this joint proxy statement/prospectus. See “Unaudited Pro Forma Condensed Combined Financial Statements.”
The unaudited pro forma financial information is presented for illustrative purposes only and does not necessarily indicate the financial results of the combined companies had the companies actually been combined at the beginning of the period presented. The unaudited pro forma financial information also does not consider any potential impacts of current market conditions on revenues, potential revenue enhancements, anticipated cost savings and expense efficiencies, or asset dispositions, among other factors.
​​​Ameris
Historical		​​Fidelity
Historical		​​Pro Forma
Combined		​​Per
Equivalent
Fidelity
Share		​
For the nine months ended September 30, 2018:​​​​​
Earnings per common share (Basic)​​​$1.86​​​​$1.25​​​​$1.69​​​​$1.35​​
Earnings per common share (Diluted)​​​$1.85​​​​$1.25​​​​$1.67​​​​$1.34​​
Dividends declared per share​​​$0.30​​​​$0.36​​​​$0.30​​​​$0.24​​
Book value per common share​​​$29.58​​​​$15.85​​​​$31.06​​​​$24.85​​
For the year ended December 31, 2017:​​​​​
Earnings per common share (Basic)​​​$2.00​​​​$1.50​​​​$1.96​​​​$1.57​​
Earnings per common share (Diluted)​​​$1.98​​​​$1.49​​​​$1.93​​​​$1.54​​
Dividends declared per share​​​$0.40​​​​$0.48​​​​$0.40​​​​$0.32​​
Book value per common share​​​$21.59​​​​$14.86​​​​$30.34​​​​$24.27​​
32
TABLE OF CONTENTS​
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements contained or incorporated by reference in this joint proxy statement/prospectus are forward looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 giving Ameris’s or Fidelity’s expectations or predictions of future financial or business performance or conditions. Forward-looking statements are typically identified by words such as “believe,” “expect,” “anticipate,” “intend,” “target,” “estimate,” “continue,” “positions,” “projections,” “prospects” or “potential,” by future conditional verbs such as “will,” “would,” “should,” “could” or “may,” or by variations of such words or by similar expressions. Such forward-looking statements include, but are not limited to, statements about the benefits of the merger or the bank merger, including future financial and operating results of Ameris, Fidelity or the combined company following the merger, the combined company’s plans, objectives, expectations and intentions, the expected timing of the completion of the merger and other statements that are not historical facts. These statements are only predictions based on Ameris’s and Fidelity’s current expectations and projections about future events. There are important factors that could cause Ameris’s and Fidelity’s actual results, level of activity, performance or achievements to differ materially from the results, level of activity, performance or achievements expressed or implied by the forward-looking statements. In particular, you should consider the numerous risks and uncertainties described in “Risk Factors” beginning on page 35.
These forward-looking statements are subject to numerous assumptions, risks, and uncertainties which change over time. In addition to factors previously disclosed in Ameris’s and Fidelity’s reports filed with the SEC, the following factors, among others, could cause actual results to differ materially from forward-looking statements:
•
the uncertainty of the value of the merger consideration that Fidelity shareholders will receive in the merger due to a fixed exchange ratio and a potential fluctuation in the market price of Ameris common stock prior to the effective time, including as a result of the financial performance of Ameris or Fidelity prior to the effective time;
​
•
inability to close the merger and the bank merger in a timely manner;
​
•
the failure to complete the merger due to the failure to obtain the Ameris shareholder approval or the Fidelity shareholder approval;
​
•
failure to obtain applicable regulatory approvals and meet other closing conditions to the merger on the expected terms and schedule;
​
•
the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement;
​
•
the taking of governmental action (including the passage of legislation) to block the merger or otherwise adversely affecting Ameris and Fidelity;
​
•
the effect of restrictions placed on Ameris’s, Fidelity’s or their respective subsidiaries’ business activities and the limitations put on Fidelity’s ability to pursue alternatives to the merger pursuant to the merger agreement;
​
•
Fidelity’s directors and executive officers having interests in the merger that are different from, or in addition to, the interests of Fidelity shareholders generally;
​
•
the potential impact of announcement or consummation of the merger on relationships with third parties, including customers, employees and competitors;
​
•
business disruption following the merger;
​
•
difficulties and delays in integrating the businesses of Ameris and Fidelity;
​
•
the challenges of integrating, retaining and hiring key personnel;
​
•
failure to attract new customers and retain existing customers in the manner anticipated;
​
•
Ameris’s potential exposure to unknown or contingent liabilities of Fidelity;
​
​
33
TABLE OF CONTENTS
•
the possibility that the expected cost savings and synergies from the merger will not be realized or will take longer to realize than expected;
​
•
the possibility of actual results of operations, cash flows and financial position after the merger materially differing from the unaudited pro forma condensed combined financial information included in this joint proxy statement/prospectus;
​
•
the outcome of pending or threatened litigation, or of matters before regulatory agencies, whether currently existing or commencing in the future, including litigation related to the merger;
​
•
changes in legislation, regulation, policies or administrative practices, whether by judicial, governmental or legislative action and other changes pertaining to banking, securities, taxation and financial accounting and reporting, environmental protection and insurance, and the ability to comply with such changes in a timely manner;
​
•
changes in the monetary and fiscal policies of the U.S. government, including policies of the U.S. Department of the Treasury and the Federal Reserve;
​
•
changes in interest rates, which may affect Ameris’s and Fidelity’s net income, prepayment penalty income, mortgage banking income and other future cash flows, or the market value of Ameris’s or Fidelity’s assets, including its investment securities;
​
•
changes in accounting principles, policies, practices or guidelines;
​
•
changes in Ameris’s credit ratings or in Ameris’s ability to access the capital markets; and
​
•
other economic, competitive, governmental, regulatory, technological and geopolitical factors affecting Ameris’s or Fidelity’s operations, pricing and services.
​
Additionally, the timing and occurrence or non-occurrence of events may be subject to circumstances beyond Ameris’s or Fidelity’s control.
Additional factors that could cause Ameris’s and Fidelity’s results to differ materially from those described in the forward-looking statements can be found in Ameris’s and Fidelity’s filings with the SEC, including Ameris’s Annual Report on Form 10-K for the year ended December 31, 2017 and Fidelity’s Annual Report on Form 10-K for the year ended December 31, 2017.
For any forward-looking statements made in this joint proxy statement/prospectus or in any documents incorporated by reference into this joint proxy statement/prospectus, Ameris and Fidelity claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995. You are cautioned not to place undue reliance on these statements, which speak only as of the date of this joint proxy statement/prospectus or the date of the applicable document incorporated by reference into this joint proxy statement/prospectus. Except to the extent required by applicable law, Ameris and Fidelity do not undertake to update forward-looking statements to reflect facts, circumstances, assumptions, or events that occur after the date the forward-looking statements are made. All written and oral forward-looking statements concerning the merger or other matters addressed in this joint proxy statement/prospectus and attributable to Ameris, Fidelity, or any person acting on their behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this joint proxy statement/prospectus.
34
TABLE OF CONTENTS​​
RISK FACTORS
In addition to general investment risks and the other information contained in or incorporated by reference into this joint proxy statement/prospectus, including the matters addressed under “Cautionary Statement Regarding Forward-Looking Statements,” Ameris’s Annual Report on Form 10-K for the year ended December 31, 2017 and Fidelity’s Annual Report on Form 10-K for the year ended December 31, 2017, you should carefully consider the following risk factors in deciding how to vote for the proposals presented in this joint proxy statement/prospectus. You should also consider the other information in this joint proxy statement/​prospectus and the other documents incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information.”
Risks Related to the Merger
Because the market price of Ameris common stock will fluctuate, Fidelity shareholders cannot be certain of the market value of the merger consideration they will receive.
Upon completion of the merger, each outstanding share of Fidelity common stock, except for shares of Fidelity common stock held by Fidelity as treasury stock or shares owned by Ameris or by any wholly owned subsidiary of Ameris or Fidelity (other than (i) shares held in trust accounts, managed accounts and the like, or otherwise held in a fiduciary or agency capacity, that are beneficially owned by third parties and (ii) shares held, directly or indirectly, by Ameris, Fidelity or any wholly owned subsidiary of Ameris or Fidelity in respect of a debt previously contracted), will be converted into the right to receive 0.80 shares of Ameris common stock. The merger consideration that Fidelity shareholders will receive is a fixed number of shares of Ameris common stock; it is not a number of shares with a particular fixed market value. The market value of the merger consideration will vary from the closing price of Ameris common stock on the date Ameris and Fidelity announced the merger, on the dates that this joint proxy statement/prospectus is mailed to Ameris and Fidelity shareholders, on the dates of the Ameris and Fidelity special meetings and on the date the merger is completed. Any change in the market price of Ameris common stock prior to the completion of the merger will affect the market value of the merger consideration that Fidelity shareholders will receive upon completion of the merger, and there will be no adjustment to the merger consideration for changes in the market price of either shares of Ameris common stock or shares of Fidelity common stock.
The market price of the Ameris common stock could be subject to significant fluctuations due to a variety of factors, including, without limitation, changes in sentiment in the market regarding Ameris’s operations or business prospects, including market sentiment regarding Ameris’s entry into the merger agreement. These risks may also be affected by:
•
operating results that vary from the expectations of Ameris’s and/or Fidelity’s management or of securities analysts and investors;
​
•
developments in Ameris’s and/or Fidelity’s business or in the financial services sector generally;
​
•
regulatory or legislative changes affecting the banking industry generally or Ameris’ and/or Fidelity’s business and operations;
​
•
operating and securities price performance of companies that investors consider to be comparable to Ameris and/or Fidelity;
​
•
changes in estimates or recommendations by securities analysts or rating agencies;
​
•
announcements of strategic developments, acquisitions, dispositions, financings and other material events by Ameris or its competitors; and
​
•
changes in global financial markets and economies and general market conditions, such as interest or foreign exchange rates, stock, commodity, credit or asset valuations or volatility.
​
Many of these factors are outside the control of Ameris and Fidelity. Accordingly, at the time of the Ameris special meeting and the time of the Fidelity special meeting, neither Ameris shareholders nor Fidelity shareholders will know or be able to calculate the exact value of the Ameris common stock that will constitute the merger consideration. You should obtain current market quotations for both Ameris common stock and Fidelity common stock.
35
TABLE OF CONTENTS
The market price of Ameris common stock after the merger may be affected by factors different from those currently affecting the prices of Ameris common stock and Fidelity common stock.
The businesses of Ameris and Fidelity differ in certain respects, and accordingly, the results of operations of the combined company and the market price of the shares of Ameris common stock after the completion of the merger may be affected by factors different from those currently affecting the independent results of operations and market prices of common stock of each of Ameris and Fidelity. For a discussion of the businesses of Ameris and Fidelity and of certain factors to consider in connection with those businesses, see the documents incorporated by reference into this joint proxy statement/prospectus and referred to under “Where You Can Find More Information.”
Combining Ameris and Fidelity may be more difficult, costly or time consuming than expected and the anticipated benefits and cost savings of the merger may not be realized.
Ameris and Fidelity have operated and, until the completion of the merger, will continue to operate, independently. The success of the merger, including anticipated benefits and cost savings, will depend, in part, on Ameris’s ability to successfully combine and integrate the businesses of Ameris and Fidelity in a manner that permits growth opportunities and does not materially disrupt the existing customer relations nor result in decreased revenues due to loss of customers. It is possible that the integration process could result in the loss of key employees, the disruption of either company’s ongoing businesses or inconsistencies in standards, controls, procedures and policies that adversely affect the combined company’s ability to maintain relationships with clients, customers, depositors and employees or to achieve the anticipated benefits and cost savings of the merger. The loss of key employees could adversely affect Ameris’s ability to successfully conduct its business, which could have an adverse effect on Ameris’s financial results and the value of the Ameris common stock. If Ameris experiences difficulties with the integration process, the anticipated benefits of the merger may not be realized fully or at all, or may take longer to realize than expected. As with any merger of financial institutions, there also may be business disruptions that cause Ameris and/or Fidelity to lose customers or cause customers to remove their accounts from Ameris and/or Fidelity and move their business to competing financial institutions. Integration efforts between the two companies will also divert management attention and resources. These integration matters could have an adverse effect on each of Ameris and Fidelity during this transition period and for an undetermined period after completion of the merger on the combined company. In addition, the actual cost savings of the merger could be less than anticipated.
Ameris’s decisions regarding the credit risk associated with Fidelity’s loan portfolio could be incorrect and its credit mark may be inadequate, which may adversely affect the financial condition and results of operations of the combined company after the completion of the merger.
Before signing the merger agreement, Ameris conducted extensive due diligence on a significant portion of Fidelity’s loan portfolio. However, Ameris’s review did not encompass each and every loan in Fidelity’s loan portfolio. In accordance with customary industry practices, Ameris evaluated Fidelity’s loan portfolio based on various factors, including historical loss experience, economic risks associated with each loan category, volume and types of loans, trends in classification, volume and trends in delinquencies and nonaccruals, and general economic conditions, both local and national. In this process, Ameris’s management made various assumptions and judgments about the collectability of the loan portfolio, including the creditworthiness and financial condition of the borrowers, the value of the real estate, other assets serving as collateral for the repayment of the loans, the existence of any guarantees and indemnifications and the economic environment in which the borrowers operate. In addition, the effects of probable decreases in expected principal cash flows on Fidelity’s loans were considered as part of Ameris’s evaluation. If Ameris’s assumptions and judgments turn out to be incorrect, including as a result of the fact that its due diligence review did not cover each individual loan, Ameris’s estimated credit mark against Fidelity’s loan portfolio in total may be insufficient to cover actual loan losses after the merger is completed, and adjustments may be necessary to allow for different economic conditions or adverse developments in Fidelity’s loan portfolio. Additionally, deterioration in economic conditions affecting borrowers, new information regarding existing loans, identification of additional problem loans and other factors, both within and outside Ameris’s or Fidelity’s control, may require an increase in the provision for loan losses. Material additions to the credit mark and/or allowance for loan losses would materially decrease Ameris’s net income and would result in extra regulatory scrutiny and possibly supervisory action.
36
TABLE OF CONTENTS
Regulatory approvals may not be received, may take longer than expected, or may impose conditions that are not presently anticipated or that could have an adverse effect on the combined company following the merger.
Before the merger and the bank merger may be completed, Ameris and Fidelity must obtain all necessary approvals from the Federal Reserve, the FDIC and the GDBF. In determining whether to grant these approvals the regulators consider a variety of factors, including the regulatory standing of each party. An adverse development in either party’s regulatory standing or other factors could result in an inability to obtain one or more of the required regulatory approvals or delay receipt of required approvals. The Federal Reserve has stated that if supervisory issues arise during processing of an application for approval of a merger transaction, a banking organization will be expected to withdraw its application pending resolution of such supervisory concerns. Accordingly, if there is an adverse development in either party’s regulatory standing, Ameris may be required to withdraw its application for approval of the proposed merger and, if possible, resubmit such application after the applicable supervisory concerns have been resolved.
The terms and conditions of the approvals that are granted may impose conditions, limitations, obligations or costs, or place restrictions on the conduct of the combined company’s business or require changes to the terms of the transactions contemplated by the merger agreement. There is no assurance that regulators will not impose any such conditions, limitations, obligations or restrictions and that such conditions, limitations, obligations or restrictions will not have the effect of delaying the completion of any of the transactions contemplated by the merger agreement, imposing additional material costs on or materially limiting the revenues of the combined company following the merger or otherwise reduce the anticipated benefits of the merger if the merger were consummated successfully within the expected timeframe. In addition, there is no assurance that any such conditions, terms, obligations or restrictions will not result in the delay or abandonment of the merger. Additionally, the completion of the merger is conditioned on the absence of any law or order enacted or issued by any governmental authority which has the effect of making illegal or preventing or prohibiting the completion of the transactions contemplated by the merger agreement.
Ameris and Fidelity believe that the transactions contemplated by the merger agreement should not raise significant regulatory concerns and that Ameris will be able to obtain all requisite regulatory approvals in a timely manner. However, the merger agreement does not require Ameris, or require or permit Fidelity, to take any action, or agree to any condition or restriction, in connection with obtaining the permits, consents, approvals and authorizations of any governmental authority that would reasonably be expected to have a material adverse effect (measured on a scale relative to Fidelity and its subsidiaries taken as a whole) on the combined company and its subsidiaries, after giving effect to the merger. See “The Merger Agreement — Covenants and Agreements — Regulatory Matters.”
The merger agreement may be terminated in accordance with its terms and the merger may not be completed.
The merger agreement is subject to a number of conditions which must be fulfilled in order to complete the merger. Those conditions include: (i) the receipt of the Ameris shareholder approval; (ii) the receipt of the Fidelity shareholder approval; (iii) the receipt and effectiveness of the requisite regulatory approvals contemplated by the merger agreement, without the imposition of any materially burdensome regulatory condition, and the expiration or termination of all statutory waiting periods in respect thereof; (iv) effectiveness of the registration statement on Form S-4, of which this joint proxy statement/prospectus forms a part, and the absence of a stop order or proceeding initiated or threatened by the SEC for that purpose; (v) the approval for listing on the Nasdaq of the shares of Ameris common stock to be issued in the merger; (vi) the parties’ standing ready to complete the bank merger immediately after the merger; (vii) the absence of any law or order enacted or issued by any governmental authority which has the effect of making illegal or preventing or prohibiting the completion of the transactions contemplated by the merger agreement; (viii) subject to certain exceptions, the accuracy of the representations and warranties of the other party, generally subject to a material adverse effect standard; (ix) performance and compliance in all material respects by the other party of its covenants and obligations required by the merger agreement to be performed or complied with prior to or at the closing date of the merger; (x) receipt by each party of an opinion from its legal counsel to the effect that the merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code; and (xi) the absence of any event, change, occurrence, circumstance, condition, effect or development that has had, or may reasonably be expected to have, a material adverse effect on the other party since December 17, 2018. See “The Merger Agreement — Conditions to Complete the Merger.”
37
TABLE OF CONTENTS
These conditions to the closing of the merger may not be fulfilled in a timely manner or at all, and, accordingly, the merger may not be completed. In addition, the parties can mutually decide to terminate the merger agreement at any time, before or after shareholder approval, or Ameris or Fidelity may elect to terminate the merger agreement in certain other circumstances. See “The Merger Agreement —  Termination of the Merger Agreement.”
Failure to complete the merger could negatively impact Ameris and Fidelity.
If the merger is not completed, the ongoing businesses of Ameris and Fidelity may be adversely affected, and Ameris and Fidelity will be subject to several risks, including the following:
•
Fidelity may be required, under certain circumstances, to pay Ameris a termination fee of $29,000,000 under the merger agreement;
​
•
Ameris and Fidelity will be required to pay certain costs relating to the merger, whether or not the merger is completed, such as legal, accounting, financial advisor and printing fees;
​
•
under the merger agreement, Ameris and Fidelity are subject to certain restrictions on the conduct of their business prior to completing the merger, which may adversely affect their ability to execute certain of their business strategies; and
​
•
matters relating to the merger may require substantial commitments of time and resources by the management of Ameris and Fidelity, which could otherwise have been devoted to other opportunities that may have been beneficial to Ameris and Fidelity as independent companies, as the case may be.
​
In addition, if the merger is not completed, Ameris and/or Fidelity may experience negative reactions from the financial markets and from their respective customers and employees. For example, Ameris and Fidelity businesses may be impacted adversely by the failure to pursue other beneficial opportunities due to the focus of management on the merger, without realizing any of the anticipated benefits of completing the merger. The market price of Ameris common stock or Fidelity common stock could decline to the extent that the current market prices reflect a market assumption that the merger will be completed. Ameris and/or Fidelity also could be subject to litigation related to any failure to complete the merger or to proceedings commenced against Ameris or Fidelity to perform their respective obligations under the merger agreement. If the merger is not completed, there is no assurance by Ameris or Fidelity that the risks described above will not materialize and will not materially affect the business, financial results and stock prices of Ameris and/or Fidelity.
Ameris and Fidelity will be subject to business uncertainties and contractual restrictions while the merger is pending.
Uncertainty about the effect of the merger on employees and customers may have an adverse effect on Ameris or Fidelity. These uncertainties may impair Ameris’s or Fidelity’s ability to attract, retain and motivate key personnel until the merger is completed, and could cause customers and others that deal with Ameris or Fidelity to seek to change existing business relationships with Ameris or Fidelity. Retention of certain employees by Ameris or Fidelity may be challenging while the merger is pending, as certain employees may experience uncertainty about their future roles with the combined company. If key employees depart because of issues relating to the uncertainty and difficulty of integration, or a desire not to remain with Ameris or Fidelity, Ameris’s business or Fidelity’s business could be harmed. In addition, subject to certain exceptions, Ameris and Fidelity have each agreed to operate its business in the ordinary and usual course of business in accordance with applicable law and in a manner consistent with prior practice, in each case, in all material respects, and use commercially reasonable efforts to maintain and preserve intact its business organization, to keep available the services of its current officers and employees and to preserve the rights, franchises, goodwill and relations of its customers, clients, lessors and others with whom business relationships exits. These restrictions may prevent Ameris and/or Fidelity from pursuing attractive business opportunities that may arise prior to the completion of the merger. See “The Merger Agreement — Covenants and Agreements  —  Conduct of Businesses Prior to the Completion of the Merger.”
38
TABLE OF CONTENTS
The combined company may be unable to retain Ameris’s and/or Fidelity’s personnel successfully after the merger is completed.
The success of the merger will depend in part on the combined company’s ability to retain the talents and dedication of key employees currently employed by Ameris and Fidelity. It is possible that these employees may decide not to remain with Ameris or Fidelity, as applicable, while the merger is pending or with the combined company after the merger is consummated. If key employees terminate their employment, or if an insufficient number of employees is retained to maintain effective operations, the combined company’s business activities may be adversely affected and management’s attention may be diverted from successfully integrating Fidelity to hiring suitable replacements, all of which may cause the combined company’s business to suffer. In addition, Ameris and Fidelity may not be able to locate suitable replacements for any key employees who leave either company, or to offer employment to potential replacements on reasonable terms.
Fidelity’s directors and executive officers have interests in the merger that may differ from the interests of Fidelity shareholders.
Fidelity shareholders should be aware that some of Fidelity’s directors and executive officers have interests in the merger that are different from, or in addition to, those of Fidelity shareholders generally. These interests and arrangements may create potential conflicts of interest. The Fidelity board of directors was aware of these interests and considered these interests, among other matters, when making its decision to adopt the merger agreement, and in recommending that Fidelity shareholders vote “FOR” the merger proposal. For a more complete description of these interests, see “The Merger — Interests of Fidelity’s Directors and Executive Officers in the Merger.”
The merger agreement limits Fidelity’s ability to pursue alternative acquisition proposals and requires Fidelity to pay a termination fee of  $29,000,000 under certain circumstances.
The merger agreement prohibits Fidelity from soliciting, initiating, seeking, knowingly facilitating or encouraging any third-party acquisition proposals. See “The Merger Agreement — Agreement Not to Solicit Other Offers.” The merger agreement also provides that Fidelity will be required to pay a termination fee in the amount of  $29,000,000 in the event that the merger agreement is terminated under certain circumstances, including an adverse recommendation change by the Fidelity board of directors as discussed under “The Merger Agreement — Adverse Recommendation Change” and “The Merger Agreement — Termination Fee.” These provisions might discourage a potential competing acquirer that might have an interest in acquiring all or a significant part of Fidelity from considering or proposing such an acquisition.
The unaudited pro forma condensed combined financial statements included in this joint proxy statement/​prospectus are preliminary, and the actual financial condition and results of operations of Ameris after the merger may differ materially.
The unaudited pro forma condensed combined financial statements in this joint proxy statement/​prospectus are presented for illustrative purposes only and are not necessarily indicative of what Ameris’s actual financial condition or results of operations would have been had the merger been completed on the dates indicated. The preparation of the pro forma financial information is based upon available information and certain assumptions and estimates that Ameris and Fidelity currently believe are reasonable. The unaudited pro forma financial information reflects adjustments, which are based upon preliminary estimates, to allocate the purchase price to Fidelity’s net assets. The purchase price allocation reflected in this joint proxy statement/prospectus is preliminary, and the final allocation of the purchase price will be based upon the actual purchase price and the fair value of the assets and liabilities of Fidelity as of the date of the completion of the merger. In addition, following the completion of the merger, there may be further refinements of the purchase price allocation as additional information becomes available. Accordingly, the final purchase accounting adjustments may differ materially from the pro forma adjustments reflected in this joint proxy statement/prospectus. See “Unaudited Pro Forma Condensed Combined Financial Statements.”
Ameris and Fidelity will incur transaction and integration costs in connection with the merger.
Each of Ameris and Fidelity has incurred and expects that it will incur significant, non-recurring costs in connection with negotiating the merger agreement and consummating the merger. In addition, Ameris
39
TABLE OF CONTENTS
will incur integration costs following the completion of the merger as Ameris integrates the businesses of the two companies, including facilities and systems consolidation costs and employment-related costs. There is no assurance that the expected benefits and efficiencies related to the integration of the businesses will be realized to offset these transaction and integration costs over time. See the risk factor entitled “— Combining Ameris and Fidelity may be more difficult, costly or time consuming than expected and the anticipated benefits and cost savings of the merger may not be realized” above. Ameris and Fidelity may also incur additional costs to maintain employee morale and to retain key employees. Ameris and Fidelity will also incur significant legal, financial advisor, accounting, banking and consulting fees, fees relating to regulatory filings and notices, SEC filing fees, printing and mailing fees and other costs associated with the merger. Some of these costs are payable regardless of whether the merger is completed. See “The Merger Agreement — Expenses and Fees.”
The fairness opinions of Ameris’s and Fidelity’s financial advisors delivered to the parties’ respective boards of directors prior to signing the merger agreement will not be updated to reflect any changes in circumstances that may have occurred since the date of such opinions.
The fairness opinion of Stephens was rendered to the Ameris board of directors on December 16, 2018, and the fairness opinions of Sandler O’Neill and FIG Partners were rendered to the Fidelity board of directors on December 16, 2018, and December 17, 2018, respectively. Changes in the operations and prospects of Ameris or Fidelity, general market and economic conditions and other factors which may be beyond the control of Ameris and Fidelity may have altered the value of Ameris or Fidelity or the market prices of the shares of Ameris common stock or Fidelity common stock as of the date of this joint proxy statement/prospectus, or may alter such values and market prices by the time the merger is completed. The respective opinions from Stephens, Sandler O’Neill and FIG Partners do not speak as of any date other than the respective dates of such opinions. See “The Merger — Opinion of Sandler O’Neill & Partners, L.P.,” “The Merger — Opinion of FIG Partners, LLC” and “The Merger — Opinion of Stephens Inc.”
The shares of Ameris common stock to be received by Fidelity shareholders as a result of the merger will have different rights from the shares of Fidelity common stock.
Upon completion of the merger, Fidelity shareholders will become Ameris shareholders and their rights as shareholders will be governed by the GBCC and Ameris’s articles of incorporation and bylaws. The rights associated with Fidelity common stock are different from the rights associated with Ameris common stock. See “Comparison of Shareholders’ Rights” for a discussion of the different rights associated with Ameris common stock.
Ameris shareholders and Fidelity shareholders will have a reduced ownership and voting interest in the combined company after the merger and will exercise less influence over its management, as compared to their ownership and voting interests in Ameris and Fidelity, respectively, prior to the merger.
Ameris shareholders and Fidelity shareholders currently have the right to vote in the election of the board of directors and on other matters affecting Ameris and Fidelity, respectively. Upon completion of the merger, each Fidelity shareholder who receives shares of Ameris common stock will become an Ameris shareholder, with a percentage ownership of Ameris that is smaller than such shareholder’s percentage ownership of Fidelity. Based on the number of issued and outstanding shares of Ameris common stock and shares of Fidelity common stock (including Fidelity restricted stock awards), in each case as of [•], the latest practicable trading date before the date of this joint proxy statement/prospectus, and based on the exchange ratio of 0.80, it is expected that former Fidelity shareholders, as a group, will receive shares in the merger constituting approximately [•]% of the shares of Ameris common stock expected to be issued and outstanding immediately after the merger.
As a result, current Ameris shareholders as a group will own approximately [•]% of the outstanding shares of Ameris common stock immediately after the merger. Because of this, current Fidelity shareholders, as a group, will have less influence on the Ameris board of directors, management and policies (as the combined company following the merger) than they now have on the Fidelity board of directors, management and policies, and the current Ameris shareholders, as a group, will have less influence on the Ameris board of directors, management and policies (as the combined company following the merger) than they now have on the Ameris board of directors, management and policies.
40
TABLE OF CONTENTS​
Lawsuits may in the future be filed against Ameris and Fidelity, and their respective directors, challenging the merger, and an adverse ruling in any such lawsuit may prevent the merger from becoming effective or from becoming effective within the expected timeframe.
Transactions like the merger are frequently the subject of litigation or other legal proceedings, including actions alleging that the board of directors of either Ameris or Fidelity breached their respective fiduciary duties to their shareholders by entering into the merger agreement, by failing to obtain a greater value in the transaction for their shareholders or otherwise. Both Ameris and Fidelity believe that any such litigation or proceedings would be without merit, but there is no assurance that they will not be brought. If litigation or other legal proceedings are in fact brought against either Ameris or Fidelity or against the board of directors of either company, they will defend against it, but they might not be successful in doing so. An adverse outcome in such matters, as well as the costs and efforts of a defense even if successful, could have a material adverse effect on the business, results of operation or financial position of Ameris, Fidelity or the combined company, including through the possible diversion of either company’s resources or distraction of key personnel.
Further, one of the conditions to the completion of the merger is the absence of any law or order enacted or issued by any governmental authority which has the effect of making illegal or preventing or prohibiting the completion of the transactions contemplated by the merger agreement. If any plaintiff were successful in obtaining an injunction prohibiting Fidelity or Ameris from completing the merger on the agreed upon terms, then such injunction may prevent the merger from becoming effective or from becoming effective within the expected timeframe and could result in significant costs to Fidelity and/or Ameris, including any cost associated with the indemnification of directors and officers. The defense or settlement of any lawsuit or claim that remains unresolved at the time the merger is completed may adversely affect Ameris’s business, financial condition, results of operations and cash flow.
Fidelity shareholders will not have appraisal rights or dissenters’ rights in the merger.
Appraisal rights (also known as dissenters’ rights) are statutory rights that, if applicable under law, enable shareholders to dissent from an extraordinary transaction, such as a merger, and to demand that the corporation pay the fair value for their shares as determined by a court in a judicial proceeding instead of receiving the consideration offered to shareholders in connection with the extraordinary transaction. Under the GBCC, a shareholder may not dissent from a merger as to shares that are listed on a national securities exchange or held of record by more than 2,000 shareholders at the record date fixed to determine the shareholders entitled to receive notice of the meeting of shareholders to vote upon the agreement of merger or consolidation, and such shareholders accept as consideration for their shares the shares of the surviving corporation or another publicly held corporation which at the effective date of the merger are either listed on a national securities exchange or held of record by more than 2,000 shareholders, except for cash paid in lieu of fractional shares.
Because (i) Fidelity common stock is listed on the Nasdaq, a national securities exchange, and is expected to continue to be so listed on the record date for the Fidelity special meeting, (ii) the merger otherwise satisfies the foregoing requirements of the GBCC, and (iii) Fidelity shareholders will receive shares of Ameris common stock as merger consideration, which are currently listed on the Nasdaq, and are expected to continue to be so listed at the effective date of the merger, the Fidelity shareholders will not be entitled to any appraisal rights or dissenters’ rights in connection with the merger.
Other Risk Factors of Ameris and Fidelity
Ameris’s and Fidelity’s businesses are and will be subject to the risks described above. In addition, Ameris and Fidelity are, and will continue to be subject to the risks described in Ameris’s Annual Report on Form 10-K for the year ended December 31, 2017 and Fidelity’s Annual Report on Form 10-K for the year ended December 31, 2017, in each case, as such risks may be updated or supplemented in each company’s subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, all of which are filed with the SEC and incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information.”
41
TABLE OF CONTENTS​
THE FIDELITY SPECIAL MEETING
Date, Time and Place
The Fidelity special meeting will be held on [•], at [•] a.m. Eastern Time at [•]. On or about [•], Fidelity commenced mailing this joint proxy statement/prospectus and the enclosed form of proxy to its shareholders entitled to vote at the Fidelity special meeting.
Purpose of the Special Fidelity Meeting
At the Fidelity special meeting, Fidelity shareholders will be asked to consider and vote upon the following matters:
•
the merger proposal;
​
•
the Fidelity compensation proposal; and
​
•
the Fidelity adjournment proposal.
​
Recommendation of the Fidelity Board of Directors
The Fidelity board of directors unanimously recommends that Fidelity shareholders vote “FOR” the merger proposal, “FOR” the Fidelity compensation proposal and “FOR” the Fidelity adjournment proposal. See “The Merger — Fidelity’s Reasons for the Merger; Recommendation of the Fidelity Board of Directors” for a more detailed discussion of the Fidelity board of directors’ recommendation.
Fidelity Record Date and Quorum
The Fidelity board of directors has fixed the close of business on [•] as the record date for determining the holders of Fidelity common stock entitled to receive notice of, and to vote at, the Fidelity special meeting. As of the Fidelity record date, there were [•] shares of Fidelity common stock outstanding and entitled to vote at the Fidelity special meeting held by [•] holders of record.
To transact business at the Fidelity special meeting, the presence, in person or represented by proxy, of at least a majority of the total number of outstanding shares of Fidelity common stock entitled to vote at the Fidelity special meeting is necessary in order to constitute a quorum for purposes of the matters being voted on at the Fidelity special meeting. Abstentions and broker non-votes will be treated as present at the Fidelity special meeting for purposes of determining the presence or absence of a quorum for the transaction of all business. In the event that a quorum is not present at the Fidelity special meeting, the holders of a majority of the voting shares represented at the Fidelity special meeting, in person or by proxy, may adjourn the meeting from time to time to another time and/or place until a quorum is so present or represented.
Fidelity Voting Rights
Each share of Fidelity common stock entitles the holder to one vote at the Fidelity special meeting on each proposal to be considered at the Fidelity special meeting.
Required Vote
Approval of the merger proposal requires the affirmative vote of the holders of at least 662∕3% of the outstanding shares of Fidelity common stock entitled to vote on the proposal. Assuming a quorum is present, approval of the Fidelity compensation proposal and the Fidelity adjournment proposal (if necessary or appropriate) requires the affirmative vote of the holders of a majority of the votes cast at the Fidelity special meeting.
Shares Held by Officers and Directors
As of the Fidelity record date, the directors and executive officers of Fidelity and their affiliates beneficially owned and were entitled to vote approximately [•] shares of Fidelity common stock representing approximately [•]% of the shares of Fidelity common stock outstanding on that date. As of the Fidelity record date, Ameris, the directors and officers of Ameris and their affiliates beneficially owned no shares of Fidelity common stock outstanding on that date.
42
TABLE OF CONTENTS
Each director of Fidelity who beneficially owns 1% or more of the outstanding Fidelity common stock, solely in such director’s capacity as a Fidelity shareholder, has entered into a voting agreement with Ameris and Fidelity, pursuant to which such director has agreed to vote in favor of the merger proposal and against any alternative acquisition proposal. As of the Fidelity record date, the directors of Fidelity who are parties to the voting agreement were entitled to vote approximately [•] shares of Fidelity common stock representing approximately [•]% of the shares of Fidelity common stock outstanding on that date.
Treatment of Abstentions; Failure to Vote
For purposes of the Fidelity special meeting, an abstention occurs when a Fidelity shareholder attends the Fidelity special meeting, either in person or by proxy, but abstains from voting or marks abstain on such shareholder’s proxy card for the merger proposal, an abstention or a failure to vote, either in person or by proxy, at the Fidelity special meeting will have the same effect as a vote cast against the merger proposal.
For the Fidelity compensation proposal and the Fidelity adjournment proposal, an abstention or failure to vote, either in person or by proxy, at the Fidelity special meeting will have no effect on the outcome of the vote. For each of these proposals, abstentions are not treated as votes cast and will have no effect on the outcome of the vote, though abstentions are counted towards establishing a quorum.
Voting of Proxies; Incomplete Proxies
Giving a proxy means that a Fidelity shareholder authorizes the persons named in the enclosed proxy card to vote its shares of Fidelity common stock at the Fidelity special meeting in the manner such shareholder directs. A Fidelity shareholder may vote by proxy or in person at the Fidelity special meeting. If you hold your shares of Fidelity common stock in your name as a shareholder of record, to submit a proxy, you, as a Fidelity shareholder, may use one of the following methods:
•
By mail:   Complete, sign, date and return the enclosed proxy card to Fidelity using the enclosed postage-paid envelope. The envelope requires no additional postage if mailed in the United States.
​
•
By telephone:   Use any touch-tone telephone to vote your proxy by calling toll-free [•] and following the voice recorded instructions. Please have your proxy card available when you call. Voting by telephone is available 24 hours a day, 7 days a week until [11:59 P.M. Eastern Time on the day before] the Fidelity special meeting.
​
•
Via the Internet:   Use the Internet to vote your proxy by accessing the website [•] and following the instructions on the website to obtain your records and submit an electronic ballot. Please have your proxy card available when you access this voting site. Voting via the Internet is available 24 hours a day, 7 days a week until [11:59 P.M. Eastern Time on the day before] the Fidelity special meeting.
​
When the accompanying proxy is returned properly executed prior to the Fidelity special meeting, the shares of Fidelity common stock represented by it will be voted at the Fidelity special meeting in accordance with the instructions contained on the proxy card. If any proxy is returned without indication as to how to vote, the shares of Fidelity common stock represented by the proxy will be voted as recommended by the Fidelity board of directors.
If a Fidelity shareholder’s shares of Fidelity common stock are held in “street name” by a broker, bank or other nominee, the Fidelity shareholder should check the voting form used by that firm to determine whether it may vote by telephone or via the Internet.
YOUR VOTE IS VERY IMPORTANT, REGARDLESS OF THE NUMBER OF SHARES OF FIDELITY COMMON STOCK YOU OWN. Accordingly, each Fidelity shareholder should complete, sign, date and return the enclosed proxy card in the enclosed postage-paid envelope, or vote via the Internet or by telephone as soon as possible, whether or not such Fidelity shareholder plans to attend the Fidelity special meeting in person.
Shares Held in “Street Name”; Broker Non-Votes
If you are a Fidelity shareholder and your shares of Fidelity common stock are held in “street name” through a broker, bank or other nominee, your broker, bank or other nominee’s ability to vote your shares
43
TABLE OF CONTENTS
of Fidelity common stock for you is governed by the rules of the NYSE. Without your specific instruction, a broker, bank or other nominee may only vote your shares of Fidelity common stock on routine proposals. As such, your broker, bank or other nominee will submit a proxy card on your behalf as to routine proposals but leave your shares of Fidelity common stock unvoted on non-routine proposals — this is known as a “broker non-vote.” The merger proposal, the Fidelity compensation proposal and the Fidelity adjournment proposal are regarded as non-routine matters and your broker, bank or other nominee will not vote on these matters without instructions from you. Therefore, if you are a Fidelity shareholder holding your shares of Fidelity common stock in “street name” and you do not instruct your broker, bank or other nominee on how to vote your shares of Fidelity common stock:
•
your broker, bank or other nominee will not vote your shares of Fidelity common stock on the merger proposal, which broker non-votes will have the same effect as a vote cast “AGAINST” this proposal; and
​
•
your broker, bank or other nominee will not vote your shares of Fidelity common stock on the Fidelity compensation proposal or the Fidelity adjournment proposal, which broker non-votes will have no effect on the vote count for these proposals.
​
Revocability of Proxies and Changes to a Fidelity Shareholder’s Vote
If you have submitted your proxy and would like to revoke it, you may do so before your shares of Fidelity common stock are voted at the Fidelity special meeting by taking any of the following actions:
•
delivering a written notice bearing a date later than the date of your proxy to the Corporate Secretary of Fidelity stating that you revoke your proxy, which notice must be received by Fidelity prior to the beginning the Fidelity special meeting;
​
•
completing, signing, dating and returning to the secretary of Fidelity a new proxy card relating to the same shares of Fidelity common stock and bearing a later date, which new proxy card must be received by Fidelity prior to the beginning of the Fidelity special meeting;
​
•
casting a new vote by telephone or via the Internet at any time before [11:59 P.M. Eastern Time on the day before] the Fidelity special meeting; or
​
•
attending the Fidelity special meeting and voting in person, although attendance at the Fidelity special meeting will not, by itself, revoke a proxy.
​
If you choose to send a written notice of revocation or to mail a new proxy to Fidelity, you must submit your notice of revocation or your new proxy to Fidelity Southern Corporation, Attention: Corporate Secretary, 3490 Piedmont Road, Suite 1550, Atlanta Georgia 30305.
If you have instructed a broker, bank or other nominee to vote your shares of Fidelity common stock, you must follow the directions you receive from your broker, bank or other nominee in order to change or revoke your vote.
Fidelity shareholders retain the right to revoke their proxies in the manner described above. Unless so revoked, the shares of Fidelity common stock represented by such proxies will be voted at the Fidelity special meeting and all adjournments or postponements thereof.
Solicitation of Proxies
Fidelity is soliciting your proxy in conjunction with the merger. The cost of solicitation of proxies for the Fidelity special meeting will be borne by Fidelity. Fidelity will reimburse brokerage firms and other custodians, nominees and fiduciaries for reasonable expenses incurred by them in sending proxy materials to the beneficial owners of common stock. Fidelity has retained [•] to assist in the solicitation of proxies for a fee of approximately $[•] plus related fees for any additional services and reasonable out-of-pocket expenses. In addition, Fidelity’s directors, officers and employees may also solicit proxies by mail, telephone, facsimile, electronic mail or in person, but no additional compensation will be paid to them.
44
TABLE OF CONTENTS
Attending the Fidelity Special Meeting
All Fidelity shareholders of record as of the record date, or their duly appointed proxies, may attend the Fidelity special meeting. If you plan to attend the Fidelity special meeting, you must hold your shares of Fidelity common stock in your own name or have a letter from the record holder of your shares confirming your ownership. In addition, you must bring a form of personal photo identification with you in order to be admitted to the Fidelity special meeting. Fidelity reserves the right to refuse admittance to anyone without proper proof of stock ownership or without proper photo identification.
If your shares of Fidelity common stock are held in “street name” by a bank, broker or other nominee and you wish to attend the Fidelity special meeting, please bring evidence of your beneficial ownership of your shares (e.g., a copy of a recent brokerage statement showing the shares) and valid photo identification with you to the Fidelity special meeting. If you intend to vote in person at the Fidelity special meeting and you own your shares in “street name,” you also are required to bring to the Fidelity special meeting a legal proxy, executed in your favor, from the record holder of your shares, such as a broker, bank or other nominee.
The use of cameras, sound recording equipment, communications devices, or any similar equipment during the Fidelity special meeting is prohibited without Fidelity’s express written consent.
Assistance
If you have any questions concerning the merger or this joint proxy statement/prospectus, would like additional copies of this joint proxy statement/prospectus, or need help voting your shares of Fidelity common stock, please direct your inquiry to Fidelity Southern Corporation, Attention: [•], at [•], or Fidelity’s proxy solicitor, [•], at [•], or toll-free at [•].
45
TABLE OF CONTENTS​
FIDELITY PROPOSALS
Proposal No. 1: Merger Proposal
As discussed elsewhere in this joint proxy statement/prospectus, Fidelity shareholders will consider and vote on the merger proposal at the Fidelity special meeting. Fidelity shareholders must approve the merger proposal in order for the merger to occur. If Fidelity shareholders fail to approve the merger proposal, the merger will not occur.
Accordingly, Fidelity is asking Fidelity shareholders to vote to approve the merger proposal, either by attending the Fidelity special meeting and voting in person or by submitting a proxy. You should carefully read this joint proxy statement/prospectus in its entirety for more detailed information concerning the merger agreement and the transactions contemplated thereby. In particular, you are urged to read the merger agreement in its entirety, which is attached as Annex A to this joint proxy statement/prospectus.
Approval of the merger proposal requires the affirmative vote of 662∕3% of the outstanding shares of Fidelity common stock entitled to vote thereon. For the merger proposal, you may vote “FOR,” “AGAINST” or “ABSTAIN.” If you abstain or if your shares of Fidelity common stock are not present at the Fidelity special meeting, either in person or by proxy, it will have the same effect as a vote “AGAINST” the merger proposal. If you hold your shares of Fidelity common stock through a broker, bank or other nominee and you do not instruct your broker, bank or other nominee on how to vote your shares on the merger proposal, your broker, bank or other nominee will not vote your shares of Fidelity common stock on the merger proposal, which broker non-votes will have the same effect as a vote “AGAINST” such proposal.
The Fidelity board of directors unanimously recommends that Fidelity shareholders vote “FOR” the merger proposal.
Proposal No. 2: Fidelity Compensation Proposal
Pursuant to the Dodd-Frank Act and Rule 14a-21(c) of the Exchange Act, Fidelity is seeking non-binding, advisory shareholder approval of the compensation of Fidelity’s named executive officers that is based on or otherwise relates to the merger as discussed under “The Merger — Merger-related Compensation for Fidelity’s Named Executive Officers.” The proposal gives Fidelity shareholders the opportunity to express their views on the merger-related compensation of Fidelity’s named executive officers. Accordingly, Fidelity is requesting shareholders to adopt the following resolution, on a non-binding, advisory basis:
“RESOLVED, that the compensation that may be paid or become payable to Fidelity’s named executive officers in connection with the merger, and the agreements or understandings pursuant to which such compensation may be paid or become payable, in each case as disclosed pursuant to Item 402(t) of Regulation S-K in “The Merger — Merger-related Compensation for Fidelity’s Named Executive Officers,” is hereby APPROVED on a non-binding, advisory basis.”
The vote on this proposal is a vote separate and apart from the vote of the Fidelity shareholders to approve the merger proposal and approval of the Fidelity compensation proposal is not a condition to completion of the merger. Accordingly, a holder of Fidelity common stock may vote to not approve the Fidelity compensation proposal and vote to approve the merger proposal or vice versa. The vote with respect to the Fidelity compensation proposal is advisory only and will not be binding on Fidelity or Ameris, regardless of whether the other proposals are approved. If the merger is completed, the merger-related compensation may be paid to Fidelity’s named executive officers to the extent payable in accordance with the terms of the compensation agreements and arrangements even if Fidelity shareholders fail to approve the Fidelity compensation proposal.
Assuming a quorum is present, approval of the Fidelity compensation proposal requires the affirmative vote of a majority of the votes cast on such proposal at the Fidelity special meeting. For the Fidelity compensation proposal, you may vote “FOR,” “AGAINST” or “ABSTAIN.” If your shares of Fidelity common stock are not present at the Fidelity special meeting, either in person or by proxy, it will have no effect on the Fidelity compensation proposal (assuming a quorum is present). If you abstain, your
46
TABLE OF CONTENTS
abstention will have no effect on the Fidelity compensation proposal, although it will be counted toward establishing a quorum. If you hold your shares of Fidelity common stock through a broker, bank or other nominee and you do not instruct your broker, bank or other nominee on how to vote your shares of Fidelity common stock on the Fidelity compensation proposal, your broker, bank or other nominee will not vote your shares of Fidelity common stock on the Fidelity compensation proposal, which broker non-votes will have no effect on the vote count for such proposal.
The Fidelity board of directors unanimously recommends that Fidelity shareholders vote “FOR” the Fidelity compensation proposal.
Proposal No. 3: Adjournment Proposal
The Fidelity special meeting may be adjourned to another time or place, if necessary or appropriate, to permit further solicitation of proxies in favor of the merger proposal.
If, at the Fidelity special meeting, the number of shares of Fidelity common stock present in person or represented by proxy and voting in favor of the merger proposal is insufficient to approve the merger proposal, Fidelity may move to adjourn the Fidelity special meeting in order to enable the Fidelity board of directors to solicit additional proxies in favor of the merger proposal.
In the Fidelity adjournment proposal, Fidelity is asking its shareholders to authorize the holder of any proxy solicited by the Fidelity board of directors to vote in favor of granting discretionary authority to the proxy holders, and each of them individually, to adjourn the Fidelity special meeting to another time and/or place for the purpose of soliciting additional proxies. If the Fidelity shareholders approve the Fidelity adjournment proposal, Fidelity could adjourn the Fidelity special meeting and any adjourned session of the Fidelity special meeting and use the additional time to solicit additional proxies, including the solicitation of proxies from Fidelity shareholders who have previously voted. Fidelity does not intend to call a vote on adjournment of the special meeting to solicit additional proxies if the merger proposal is adopted at the Fidelity special meeting.
Assuming a quorum is present, approval of the Fidelity adjournment proposal (if necessary or appropriate) requires the affirmative vote of a majority of the votes cast on such proposal at the Fidelity special meeting. For the Fidelity adjournment proposal, you may vote “FOR,” “AGAINST” or “ABSTAIN.” If your shares of Fidelity common stock are not present at the Fidelity special meeting, either in person or by proxy, it will have no effect on the Fidelity adjournment proposal (assuming a quorum is present). If you abstain, your abstention will have no effect on the Fidelity adjournment proposal, although it will be counted toward establishing a quorum. If you hold your shares of Fidelity common stock through a broker, bank or other nominee and you do not instruct your broker, bank or other nominee on how to vote your shares of Fidelity common stock on the Fidelity adjournment proposal, your broker, bank or other nominee will not vote your shares of Fidelity common stock on the Fidelity adjournment proposal, which broker non-votes will have no effect on the vote count for such proposal.
The Fidelity board of directors unanimously recommends that Fidelity shareholders vote “FOR” the Fidelity adjournment proposal (if necessary or appropriate).
47
TABLE OF CONTENTS​
THE AMERIS SPECIAL MEETING
Date, Time and Place
The Ameris special meeting will be held on [•], at [•] a.m. Eastern Time, at [•]. On or about [•], Ameris commenced mailing this joint proxy statement/prospectus and the enclosed form of proxy to its shareholders entitled to vote at the Ameris special meeting
Purpose of the Ameris Special Meeting
At the Ameris special meeting, Ameris shareholders will be asked to consider and vote upon the following matters:
•
the Ameris share issuance proposal; and
​
•
the Ameris adjournment proposal.
​
Recommendation of the Ameris Board of Directors
The Ameris board of directors unanimously recommends that Ameris shareholders vote “FOR” the Ameris share issuance proposal and “FOR” the Ameris adjournment proposal. See “The Merger —  Ameris’s Reasons for the Merger; Recommendation of the Ameris Board of Directors” for a more detailed discussion of the Ameris board of directors’ recommendation.
Ameris Record Date and Quorum
The Ameris board of directors has fixed the close of business on [•] as the record date for determining the holders of Ameris common stock entitled to receive notice of, and to vote at, the Ameris special meeting. As of the Ameris record date, there were [•] shares of Ameris common stock outstanding and entitled to vote at the Ameris special meeting held by [•] holders of record.
To transact business at the Ameris special meeting, the presence, in person or represented by proxy, of at least a majority of the total number of outstanding shares of Ameris common stock entitled to vote at the Ameris special meeting is necessary in order to constitute a quorum for purposes of the matters being voted on at the Ameris special meeting. Abstentions and broker non-votes will be treated as present at the Ameris special meeting for purposes of determining the presence or absence of a quorum for the transaction of all business. In the event that a quorum is not present at the Ameris special meeting, the holders of a majority of the voting shares represented at the Ameris special meeting, in person or by proxy, may adjourn the meeting from time to time to another time and/or place until a quorum is so present or represented.
Ameris Voting Rights
Each share of Ameris common stock entitles the holder to one vote at the Ameris special meeting on each proposal to be considered at the Ameris special meeting.
Required Vote
Assuming a quorum is present, approval of the Ameris share issuance proposal and Ameris adjournment proposal (if necessary or appropriate) requires the affirmative vote of a majority of the votes cast on such proposal at the Ameris special meeting.
Shares Held by Officers and Directors
As of the Ameris record date, the directors and executive officers of Ameris and their affiliates owned and were entitled to vote approximately [•] shares of Ameris common stock, representing approximately [•]% of the shares of Ameris common stock outstanding on that date. As of the Ameris record date, Fidelity, the directors and officers of Fidelity and their affiliates beneficially owned no shares of Ameris common stock outstanding on that date.
48
TABLE OF CONTENTS
Treatment of Abstentions; Failure to Vote
For purposes of the Ameris special meeting, an abstention occurs when an Ameris shareholder attends the Ameris special meeting, either in person or by proxy, but abstains from voting or marks abstain on such shareholder’s proxy card. For each of the Ameris share issuance proposal and the Ameris adjournment proposal, an abstention or failure to vote, either in person or by proxy, at the Ameris special meeting will have no effect on the outcome of the vote. For these proposals, abstentions are not treated as votes cast and will have no effect on the outcome of the vote on the Ameris share issuance proposal or the Ameris adjournment proposal, though abstentions are counted towards establishing a quorum.
Voting of Proxies; Incomplete Proxies
Giving a proxy means that an Ameris shareholder authorizes the persons named in the enclosed proxy card to vote its shares of Ameris common stock at the Ameris special meeting in the manner such shareholder directs. An Ameris shareholder may vote by proxy or in person at the Ameris special meeting. If you hold your shares of Ameris common stock in your name as a shareholder of record, to submit a proxy, you, as an Ameris shareholder, may use one of the following methods:
•
By mail:   Complete, sign, date and return the enclosed proxy card to Ameris using the enclosed postage-paid envelope. The envelope requires no additional postage if mailed in the United States.
​
•
By telephone:   Use any touch-tone telephone to vote your proxy by calling toll-free [•] and following the voice recorded instructions. Please have your proxy card available when you call. Voting by telephone is available 24 hours a day, 7 days a week until [11:59 P.M. Eastern Time on the day before] the Ameris special meeting.
​
•
Via the Internet:   Use the Internet to vote your proxy by accessing the website [•] and following the instructions on the website to obtain your records and submit an electronic ballot. Please have your proxy card available when you access this voting site. Voting via the Internet is available 24 hours a day, 7 days a week until [11:59 P.M. Eastern Time on the day before] the Ameris special meeting.
​
When the accompanying proxy is returned properly executed prior to the Ameris special meeting, the shares of Ameris common stock represented by it will be voted at the Ameris special meeting in accordance with the instructions contained on the proxy card. If any proxy is returned without indication as to how to vote, the shares of Ameris common stock represented by the proxy will be voted as recommended by the Ameris board of directors.
If an Ameris shareholder’s shares of Ameris common stock are held in “street name” by a broker, bank or other nominee, the Ameris shareholder should check the voting form used by that firm to determine whether it may vote by telephone or via the Internet.
YOUR VOTE IS VERY IMPORTANT, REGARDLESS OF THE NUMBER OF SHARES OF AMERIS COMMON STOCK YOU OWN. Accordingly, each Ameris shareholder should complete, sign, date and return the enclosed proxy card in the enclosed postage-paid envelope, or vote via the Internet or by telephone as soon as possible, whether or not such Ameris shareholder plans to attend the Ameris special meeting in person.
Shares Held in “Street Name”; Broker Non-Votes
If you are an Ameris shareholder and your shares of Ameris common stock are held in “street name” through a broker, bank or other nominee, your broker, bank or other nominee’s ability to vote your shares of Ameris common stock for you is governed by the rules of the NYSE. Without your specific instruction, a broker, bank or other nominee may only vote your shares of Ameris common stock on routine proposals. As such, your broker, bank or other nominee will submit a proxy card on your behalf as to routine proposals but leave your shares of Ameris common stock unvoted on non-routine proposals — this is known as a “broker non-vote.” The Ameris share issuance proposal and the Ameris adjournment proposal are regarded as non-routine matters and your broker, bank or other nominee will not vote on these matters without instructions from you. Therefore, if you are an Ameris shareholder holding your shares of Ameris
49
TABLE OF CONTENTS
common stock in “street name” and you do not instruct your broker, bank or other nominee on how to vote your shares of Ameris common stock, your broker, bank or other nominee will not vote your shares on the Ameris share issuance proposal or the Ameris adjournment proposal, which broker non-votes will have no effect on the outcome of the vote for these proposals.
Revocability of Proxies and Changes to an Ameris Shareholder’s Vote
If you have submitted your proxy and would like to revoke it, you may do so before your shares of Ameris common stock are voted at the Ameris special meeting by taking any of the following actions:
•
delivering a written notice bearing a date later than the date of your proxy to the Corporate Secretary of Ameris stating that you revoke your proxy, which notice must be received by Ameris prior to the beginning the Ameris special meeting;
​
•
completing, signing, dating and returning to the Corporate Secretary of Ameris a new proxy card relating to the same shares of Ameris common stock and bearing a later date, which new proxy card must be received by Ameris prior to the beginning of the Ameris special meeting;
​
•
casting a new vote by telephone or via the Internet at any time before [11:59 P.M. Eastern Time on the day before] the Ameris special meeting; or
​
•
attending the Ameris special meeting and voting in person, although attendance at the Ameris special meeting will not, by itself, revoke a proxy.
​
If you choose to send a written notice of revocation or to mail a new proxy to Ameris, you must submit your notice of revocation or your new proxy to Ameris Bancorp, Attention: Corporate Secretary, 310 First Street, S.E., Moultrie, Georgia 31768.
If you have instructed a broker, bank or other nominee to vote your shares of Ameris common stock, you must follow the directions you receive from your broker, bank or other nominee in order to change or revoke your vote.
Ameris shareholders retain the right to revoke their proxies in the manner described above. Unless so revoked, the shares of Ameris common stock represented by such proxies will be voted at the Ameris special meeting and all adjournments or postponements thereof.
Solicitation of Proxies
Ameris is soliciting your proxy in conjunction with the merger. The cost of solicitation of proxies for the Ameris special meeting will be borne by Ameris. Ameris will reimburse brokerage firms and other custodians, nominees and fiduciaries for reasonable expenses incurred by them in sending proxy materials to the beneficial owners of common stock. Ameris has retained [•] to assist in the solicitation of proxies for a fee of approximately $[•] plus related fees for any additional services and reasonable out-of-pocket expenses. In addition, Ameris’s directors, officers and employees may also solicit proxies by mail, telephone, facsimile, electronic mail or in person, but no additional compensation will be paid to them.
Attending the Ameris Special Meeting
All Ameris shareholders of record as of the record date, or their duly appointed proxies, may attend the Ameris special meeting. If you plan to attend the Ameris special meeting, you must hold your shares of Ameris common stock in your own name or have a letter from the record holder of your shares confirming your ownership. In addition, you must bring a form of personal photo identification with you in order to be admitted to the Ameris special meeting. Ameris reserves the right to refuse admittance to anyone without proper proof of stock ownership or without proper photo identification.
If your shares of Ameris common stock are held in “street name” by a bank, broker or other nominee and you wish to attend the Ameris special meeting, please bring evidence of your beneficial ownership of your shares (e.g., a copy of a recent brokerage statement showing the shares) and valid photo identification
50
TABLE OF CONTENTS
with you to the Ameris special meeting. If you intend to vote in person at the Ameris special meeting and you own your shares in “street name,” you also are required to bring to the Ameris special meeting a legal proxy, executed in your favor, from the record holder of your shares, such as a broker, bank or other nominee.
The use of cameras, sound recording equipment, communications devices, or any similar equipment during the Ameris special meeting is prohibited without Ameris’s express written consent.
Assistance
If you have any questions concerning the merger or this joint proxy statement/prospectus, would like additional copies of this joint proxy statement/prospectus, or need help voting your shares of Ameris common stock, please direct your inquiry to Ameris Bancorp, Attention: [•], at [•], or Ameris’s proxy solicitor, [•], at [•], or toll-free at [•].
51
TABLE OF CONTENTS​
AMERIS PROPOSALS
Proposal No. 1: Ameris Share Issuance Proposal
As discussed elsewhere in this joint proxy statement/prospectus, Ameris shareholders will consider and vote on the Ameris share issuance proposal at the Ameris special meeting. Ameris shareholders must approve the Ameris share issuance proposal in order for the merger to occur. If Ameris shareholders fail to approve the Ameris share issuance proposal, the merger will not occur.
Accordingly, Ameris is asking Ameris shareholders to vote to approve the Ameris share issuance proposal, either by attending the Ameris special meeting and voting in person or by submitting a proxy. You should carefully read this joint proxy statement/prospectus in its entirety for more detailed information concerning the Ameris share issuance. In particular, you are urged to read the merger agreement in its entirety, which is attached as Annex A to this joint proxy statement/prospectus.
Assuming a quorum is present, approval of the Ameris share issuance proposal requires the affirmative vote of a majority of the votes cast on such proposal at the Ameris special meeting. For the Ameris share issuance proposal, you may vote “FOR,” “AGAINST” or “ABSTAIN.” If your shares of Ameris common stock are not present at the Ameris special meeting, either in person or by proxy, it will have no effect on the Ameris share issuance proposal (assuming a quorum is present). If you abstain, your abstention will have no effect on the Ameris share issuance proposal, although it will be counted toward establishing a quorum. If you hold your shares of Ameris common stock through a broker, bank or other nominee and you do not instruct your broker, bank or other nominee on how to vote your shares of Ameris common stock on the Ameris share issuance proposal, your broker, bank or other nominee will not vote your shares of Ameris common stock on the Ameris share issuance proposal, which broker non-votes will have no effect on the vote count for such proposal.
The Ameris board of directors unanimously recommends that Ameris shareholders vote “FOR” the Ameris share issuance proposal.
Proposal No. 2: Ameris Adjournment Proposal
The Ameris special meeting may be adjourned to another time or place, if necessary or appropriate, to permit further solicitation of proxies in favor of the Ameris share issuance proposal.
If, at the Ameris special meeting, the number of shares of Ameris common stock present in person or represented by proxy and voting in favor of the Ameris share issuance proposal is insufficient to approve the Ameris share issuance proposal, Ameris may move to adjourn the Ameris special meeting in order to enable the Ameris board of directors to solicit additional proxies in favor of the Ameris share issuance proposal.
In the Ameris adjournment proposal, Ameris is asking its shareholders to authorize the holder of any proxy solicited by the Ameris board of directors to vote in favor of granting discretionary authority to the proxy holders, and each of them individually, to adjourn the Ameris special meeting to another time and/or place for the purpose of soliciting additional proxies. If the Ameris shareholders approve the Ameris adjournment proposal, Ameris could adjourn the Ameris special meeting and any adjourned session of the Ameris special meeting and use the additional time to solicit additional proxies, including the solicitation of proxies from Ameris shareholders who have previously voted. Ameris does not intend to call a vote on adjournment of the special meeting to solicit additional proxies if the Ameris share issuance proposal is approved at the Ameris special meeting.
Assuming a quorum is present, approval of the Ameris adjournment proposal (if necessary or appropriate) requires the affirmative vote of a majority of the votes cast on such proposal at the Ameris special meeting. For the Ameris adjournment proposal, you may vote “FOR,” “AGAINST” or “ABSTAIN.” If your shares of Ameris common stock are not present at the Ameris special meeting, either in person or by proxy, it will have no effect on the Ameris adjournment proposal (assuming a quorum is present). If you abstain, your abstention will have no effect on the Ameris adjournment proposal, although it will be counted toward establishing a quorum. If you hold your shares of Ameris common stock through a broker, bank or other nominee and you do not instruct your broker, bank or other nominee on how to
52
TABLE OF CONTENTS
vote your shares of Ameris common stock on the Ameris adjournment proposal, your broker, bank or other nominee will not vote your shares of Ameris common stock on the Ameris adjournment proposal, which broker non-votes will have no effect on the vote count for such proposal.
The Ameris board of directors unanimously recommends that Ameris shareholders vote “FOR” the Ameris adjournment proposal.
53
TABLE OF CONTENTS​
THE PARTIES
Ameris Bancorp
Ameris Bancorp is a bank holding company that was incorporated under the laws of the State of Georgia in 1980 and is headquartered in Moultrie, Georgia. Ameris’s business is conducted primarily through Ameris Bank, a Georgia state-chartered bank and a wholly owned subsidiary. At September 30, 2017, Ameris had total consolidated assetssubsidiary of $7.6 billion, total loans (net of allowance for loan losses) of  $5.9 billion, total deposits of   $5.9 billion and shareholders’ equity of  $801.9 million.
Ameris. Through Ameris Bank, Ameris provides a full range of banking services to its retail and commercial customers through 97125 branches primarily concentrated in select markets in Georgia, Alabama, Northern Florida and South Carolina. These branches serve distinct communities in Ameris’s business areas with autonomy but do so as one bank, leveraging Ameris’s favorable geographic footprint in an effort to acquire more customers. Deposits with Ameris Bank are insured, up to applicable limits, by the FDIC.
Ameris’s business model capitalizes on the efficiencies of a large financial services company while still providing the community with the personalized banking service expected by its customers. As a bank holding company, Ameris performs certain shareholder and investor relations functions and seeks to provide financial support, if necessary, to Ameris Bank. Ameris Bank is managed through a balance of decentralized management responsibilities and efficient centralized operating systems, products and loan underwriting standards. The Ameris board of directors and senior managers establish corporate policy, strategy and administrative policies. Within Ameris’s established guidelines and policies, the banker closest to the customer responds to the differing needs and demands of his or her unique market.
Throughout Ameris’s history, theAmeris strategy has been focused on growing its franchise in its historical markets and in select new markets that Ameris has entered through acquisitions. Ameris believes that this strategy has resulted in a consistent record of strong growth over an extended period of time, as Ameris has grown from $2.1$2.11 billion in total assets at December 31, 2007 to $7.6$11.43 billion in total assets at September 30, 2017.
On December 11, 2017, the FDIC terminated, effectively immediately, the Consent Order it issued to Ameris Bank on December 16, 2016 (the “Consent Order”). The Consent Order was associated with certain deficiencies in Ameris Bank’s Anti-Money Laundering and Bank Secrecy Act compliance program that arose out of regulatory examinations conducted in 2016.
For a complete description of Ameris’s business, financial condition, results of operations and other important information, please refer to Ameris’s filings with the SEC that are incorporated by reference into this proxy statement/prospectus, including its Annual Report on Form 10-K for the year ended December 31, 2016, and its Quarterly Report on Form 10-Q for the quarter ended2018. At September 30, 2017. See “Certain Documents Incorporated By Reference.”2018, Ameris also had total loans (net of allowance for loan losses) of  $8.50 billion, total deposits of  $9.18 billion and shareholders’ equity of  $1.40 billion.
Atlantic Coast Financial Corporation
Atlantic Coast Financial Corporation, a Maryland corporation incorporated in 2007, is a bank holding company headquartered in Jacksonville, Florida. The AtlanticAmeris common stock is listed on the NASDAQ Global MarketNasdaq under the symbol “ACFC.“ABCB.” Atlantic is headquartered
Ameris’s principal executive offices are located at 4655 Salisbury Road, Suite 110, Jacksonville, Florida, 32256310 First Street, S.E., Moultrie, Georgia 31768, and its telephone number is (800) 342-2824.(229) 890-1111. Its website is www.atlanticcoastbank.net.http://www.amerisbank.com. The information on Atlantic’sAmeris’s website is not part of this joint proxy statement/prospectus, and the reference to Atlantic’sAmeris’s website address does not constitute incorporation by reference of any information on that website into this joint proxy statement/prospectus.
Additional information about Ameris and its subsidiaries is included in documents incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information.”
Fidelity Southern Corporation
Fidelity Southern Corporation is a bank holding company headquartered in Atlanta, Georgia. Fidelity conducts operations primarily through Fidelity Bank, a state chartered wholly-owned subsidiary bank. Fidelity Bank was organized as a national banking corporation in 1973 and converted to a Georgia chartered state bank in 2003. LionMark Insurance Company is a wholly-owned subsidiary of Fidelity and is an insurance agency offering consumer credit related insurance products. Fidelity also owns three subsidiaries established to issue trust preferred securities.
Since Fidelity’s inception in 1973, it has pursued managed, profitable growth through providing quality financial services. Fidelity’s mission is to continue growth, improve earnings and increase shareholder value; to treat customers, employees, community and shareholders according to the “Golden Rule”; and to operate within a culture of strong internal controls. Fidelity’s franchise primarily spans the metropolitan Atlanta, Jacksonville, Orlando, Tallahassee and Sarasota-Bradenton, Florida markets. Fidelity also conducts indirect automobile lending in Georgia and Florida and residential mortgage lending throughout the South. Small business administration lending has a nation-wide footprint.
Fidelity’s customers are primarily individuals and small to medium-sized businesses. Fidelity is primarily engaged in attracting deposits from individuals and businesses and using these deposits and borrowed funds to originate commercial, residential mortgage, construction and installment loans. Fidelity
3454
TABLE OF CONTENTS
Atlantic servesactively sells residential mortgage loans, small business administration loans and indirect automobile loans, retaining servicing on a significant amount of the Northeast Florida, Central Floridasales. Internet banking, including online bill pay and Southeast Georgia markets through its principal wholly owned subsidiary, Atlantic Coast Bank. mobile deposit, and internet cash management services are available to individuals and businesses. Fidelity also offers cash management services, remote deposit services, and international trade services for businesses. Fidelity’s wealth management business focuses on providing trust administration, investment management, financial and estate planning, specialized lending and banking for affluent and high net worth individuals. Through Fidelity’s marketing partners, Fidelity offers merchant services for businesses and credit cards for both individuals and businesses.
At September 30, 2017, Atlantic2018, Fidelity had $4.81 billion in total consolidated assets, of  $921.9 million, total loans (net of allowance for loan losses) of  $785.5 million,$3.68 billion, total deposits of  $676.4 million$4.05 billion and total shareholders’ equity of  $91.4$432.10 million.
Atlantic Coast Bank was established in 1939 as a credit union servingFidelity common stock is listed on the employeesNasdaq under the symbol “LION.”
Fidelity’s principal executive office is located at 3490 Piedmont Road, Suite 1550, Atlanta, Georgia 30305, and its telephone number at that location is (404) 639-6500. Fidelity’s website is http://www.fidelitysouthern.com. The information on Fidelity’s website is not part of the Atlantic Coast Line Railroad. On November 1, 2000, Atlantic Coast Federal Credit Union converted to a federal mutual savings bank (and subsequently a federally-chartered savings bank). The conversion allowed Atlantic Coast Bank to diversify its customer base by marketing products and services to individuals and businesses in its market areas and make loans to customers who did not have a deposit relationship with the bank. On December 27, 2016, Atlantic Coast Bank consummated the conversion of its charter from that of a federally-chartered savings bank to that of a Florida state-chartered commercial bank supervised by the Florida Office of Financial Regulationthis joint proxy statement/​prospectus, and the FDIC.reference to Fidelity’s website address does not constitute incorporation by reference of any information on that website into this joint proxy statement/prospectus.
Atlantic Coast Bank offers a variety of deposit accounts having a wide range of interest ratesAdditional information about Fidelity and terms, which generally include noninterest-bearing and interest-bearing demand, savings and money market demand, and time deposit accounts with terms ranging from three months to five years. Deposits are primarily solicitedits subsidiaries is included in the bank’s market areas in Northeast Florida and Southeast Georgia to fund loan demand and other liquidity needs; however, late in 2015, the bank also started soliciting deposits in Central Florida, which is expected to become a key deposit market for the bank. Those funds are primarily invested in loans, including commercial real estate loans, consumer loans, first mortgages on owner-occupied one- to four-family residences, and home equity loans. Additionally, the bank invests funds in multi-family residential loans, commercial business loans, and commercial and residential construction loans. The bank also invests funds in investment securities, primarily those issued by U.S. government-sponsored agencies or entities, including Fannie Mae, Freddie Mac and Ginnie Mae.
Revenues are derived principally from interest on loans and other interest-earning assets, such as investment securities, as well as from gains on the sale of loans. To a lesser extent, revenue is generated from service charges and other income sources.
For a complete description of Atlantic’s business, financial condition, results of operations and other important information, please refer to Atlantic’s filings with the SEC that aredocuments incorporated by reference into this joint proxy statement/prospectus, including its Annual Report on Form 10-K for the year ended December 31, 2016, and its Quarterly Report on Form 10-Q for the quarter ended September 30, 2017.prospectus. See “Certain Documents Incorporated By Reference.“Where You Can Find More Information.”
3555
TABLE OF CONTENTS​​​
THE MERGER
The following discussion contains certain information about the merger. The discussion is subject, and qualified in its entirety by reference, to the merger agreement attached as Annex A to this joint proxy statement/prospectus and incorporated herein by reference. We urge you to read carefully this entire joint proxy statement/prospectus, including the merger agreement attached as Annex A, for a more complete understanding of the merger.
Terms of the Merger
Each of the Ameris board of directors and the Fidelity board of directors has unanimously adopted the merger agreement and approved the transactions contemplated thereby, including the merger and, in the case of the Ameris board of directors, the Ameris share issuance. The merger agreement provides for the merger of Fidelity with and into Ameris, with Ameris continuing as the surviving corporation. Immediately following the completion of the merger, Fidelity Bank will merge with and into Ameris Bank pursuant to the bank merger agreement, with Ameris Bank continuing as the surviving entity.
Each share of Fidelity common stock issued and outstanding immediately prior to the effective time, except for shares of Fidelity common stock held by Fidelity as treasury stock or shares owned by Ameris or by any wholly owned subsidiary of Ameris or Fidelity (other than (i) shares held in trust accounts, managed accounts and the like, or otherwise held in a fiduciary or agency capacity, that are beneficially owned by third parties and (ii) shares held, directly or indirectly, by Ameris, Fidelity or any wholly owned subsidiary of Ameris or Fidelity in respect of a debt previously contracted), will be converted into the right to receive 0.80 shares of validly issued, fully paid and nonassessable shares of Ameris common stock. Ameris will not issue any fractional shares of Ameris common stock in the merger. Instead, a Fidelity shareholder who otherwise would have received a fraction of a share of Ameris common stock will receive an amount in cash (rounded to the nearest whole cent) determined by multiplying (i) the average of the closing-sale prices of Ameris common stock for five full trading days ending at the closing of trading on the trading day immediately prior to the closing date by (ii) the fraction of a share (rounded to three decimal places) of Ameris common stock which such holder would otherwise be entitled to receive.
Under the merger agreement, at the effective time: (i) each outstanding Fidelity option will fully vest and be converted into an option to acquire, on the same terms and conditions as were applicable to such Fidelity option, the number of shares of Ameris common stock (rounded down to the nearest whole share), determined by multiplying (x) the number of shares of Fidelity common stock subject to such Fidelity stock option immediately prior to the effective time by (y) the exchange ratio, at an exercise price per share of Ameris common stock (rounded up to the nearest whole cent) equal to (A) the exercise price per share of Fidelity common stock subject to such Fidelity stock option divided by (B) the exchange ratio; and (ii) each outstanding Fidelity restricted stock award will fully vest and be cancelled and converted into the right to receive the merger consideration in respect of each share of Fidelity common stock underlying such restricted stock award, including a payment in respect of any fractional shares (together with any accrued but unpaid dividends corresponding to the portion of the restricted stock award that vests).
See “The Merger Agreement” for additional and more detailed information regarding the legal documents that govern the merger, including information about conditions to the completion of the merger and provisions for terminating or amending the merger agreement.
Background of the Merger
The board of directors of Atlantic has, on a regular basis, considered and deliberated over Atlantic’s long-term objectives and strategies, including how Atlantic could increase stockholder value in light of economic, regulatory and competitive factors, and strategies to enhance the profitability of Atlantic Coast Bank by diversifying its asset portfolio and revenue streams. The deliberations of the board of directors have also taken into consideration the possibility of engaging in a merger or acquisition transaction, as a buyer, a seller or a participant in a “merger-of-equals.”
As a part of its deliberation process, the board of directors of Atlantic held a retreat on October 19 and 20, 2016. At this retreat, management of Atlantic presented its forecast for the remainder of 2016 and 2017, along with a proposed strategic plan. TheFidelity board of directors and Fidelity’s senior management engagedhave regularly reviewed and discussed Fidelity’s business strategy, performance and prospects in a lengthy discussionthe context of Atlantic’s liquidity needs to support projected loan growthdevelopments in the banking industry, the regulatory environment and market conditions, as well as the associated riskscompetitive landscape. Among other things, these discussions have included an evaluation of effectively executing the strategic plan. Onalternatives that may be available to Fidelity.
In connection with the second dayevaluation of the retreat, representativesthese strategic alternatives, members of Hovde made a presentation regarding market conditions and Atlantic’s strategic options. The board of directors reviewed those options and discussed different alternativesFidelity’s senior management have from time to achieve its objectives. John K. Stephens, Jr., President and Chief Executive Officer of Atlantic and Atlantic Coast Bank, was instructed to reach out to potential “merger-of-equals” partners and report his findings to Jay S. Sidhu, Vice Chairman of the board of directors.
From October 24 to November 3, 2016, Mr. Stephens contacted three Florida-based potential financial institution partners and one out-of-state potential financial institution partner. None expressed any serious interest in pursuing a “merger-of-equals” transaction. During this exploratory process, Mr. Stephens also contacted the investment banking firm B. Riley FBR, Inc. (“FBR”) to discuss FBR’s perspective on acquisition market conditions and prospective pricing. On November 6, 2016, Messrs. Stephens and Sidhu met to discuss Mr. Stephens’s findings to determine what steps the board of directors of Atlantic should be considering.
On December 2 and 3, 2016, Messrs. Stephens and Sidhu mettime had informal discussions with representatives of FBR and discussed market conditions, potential partners, pricing and different strategies to enhance Atlantic’s marketability. On December 18, 2016, Messrs. Stephens and Sidhu, and John J. Dolan, Chairman of the board of directors of Atlantic, as the Strategic Committee of the board of directors, met to discuss which investment banks might be well suited to assist in analyzing options for Atlantic. The Strategic Committee recommended to the board of directors that Atlantic retain FBR to market Atlantic for sale. That same day, the board of directors approved the hiring of FBR for that purpose.
From December 21, 2016 to January 30, 2017, FBR and Atlantic’s management populated a due diligence data room and drafted a confidential information memorandum to be used in marketing Atlantic. During that period, Mr. Stephens also met with representatives of three Florida-based banks and one out-of-state bank that he had not contacted earlier in 2016. At the January 23, 2017 meeting of the board of directors of Atlantic, Mr. Stephens provided an update on his meetings and discussed progress on the confidential information memorandum.
On January 30, 2017, FBR began marketing Atlantic to a number of in-state and out-of-stateother financial institutions, that had been active in acquisitions in the Florida market. As part of this process, the confidential information memorandum and non-disclosure agreements were distributed with the request that recipients of the confidential information memorandum provide an indication of their interest by March 1, 2017.
On February 15 and March 4, 2017, the board of directors of Atlantic met to discuss the status and progress of the marketing process. FBR reported at each meeting that it had not received any viable indication of interest from the list of potential acquirers. On March 10, 2017, the board of directors concluded that the marketing process, and Atlantic’s engagement with FBR, should be terminated. As part of the termination of FBR’s engagement, Atlantic and FBR agreed that FBR would be paid a reduced fee if a merger transaction was consummated during the original term of FBR’s engagement.
On March 20, 2017, the board of directors of Atlantic met with representatives of Hovde, who presented an update of market conditions and a review of current transactions in Florida. On March 24,including Ameris.
3656
TABLE OF CONTENTS
2017, Mr. Stephens met again with a representativeIn early June 2018, H. Palmer Proctor, Jr., President of one of the Florida-based institutions he had met with in January 2017. On March 25, 2017, Mr. Stephens advised the board of directors that, based on his subsequent discussions, he concluded that a “merger-of equals” transaction was unlikely to be successful. The board of directors agreed with Mr. Stephens’ conclusionFidelity, and discussed other strategic alternatives. One of those alternatives was a possible strategic alignment with a potential spin-off of a deposit gathering subsidiary from Customers Bancorp, Inc. Due to their affiliations with Customers Bancorp, Inc. and its subsidiary, Messrs. Sidhu and Dolan recused themselves from any consideration of such a transaction.
Between April and June 2017, management and the board of directors of Atlantic evaluated the deposit subsidiary alternative with input from Atlantic’s legal counsel, Igler and Pearlman, P.A (“Igler”) and the investment banking firm, UBS AG. After a thorough evaluation of the merits of such a transaction and the fact that the deposit subsidiary was still under contract with another financial institution, the board of directors concluded that the regulatory, operational and economic risks associated with such a transaction made the possibility of successful execution too remote for Atlantic to undertake the acquisition.
During that period, the board of directors of Atlantic continued to consider other alternatives. On May 10, 2017, Mr. Stephens met again with representatives of Hovde to discuss the prior marketing attempt, current market conditions and the potential of Ameris being an interested acquiror. Following Atlantic’s annual meeting of stockholders held on May 22, 2017, the board of directors met and again discussed Atlantic’s strategic plans and alternatives.
At the Florida Bankers Association conference held during the week of June 11, 2017, Mr. Stephens met with management representatives of a number of acquisition-minded financial institutions, including Ameris. During such meetings, there was more interest in a transaction with Atlantic than Atlantic’s earlier efforts had elicited. On July 7, 2017, Atlantic formally engaged Hovde to market the company for sale. On July 13, 2017, Atlantic entered into a non-disclosure agreement with Ameris, thereby enabling its representatives to begin a due diligence review of Atlantic. On July 24, 2017, Ameris contacted Mr. Stephens to advise that Ameris had an interest in a possible acquisition. The Strategic Committee of the board of directors of Atlantic met the same day and agreed to further explore the possibility of a merger transaction. The next day, the Strategic Committee met with the board of directors to present Ameris’s interest in Atlantic. The board of directors instructed management to continue the discussions with Ameris.
On August 4, 2017, Ameris submitted a draft letter of intent to Atlantic, which contemplated the merger consideration to consist solely of Ameris common stock based on a valuation of Atlantic common stock at $10.00 per share. On August 7, 2017, the Strategic Committee of the board of directors of Atlantic and a representative of Hovde met to discuss the letter of intent. The Strategic Committee instructed Hovde to make a counteroffer of  $10.50 per share, with 15% of the consideration to be paid in cash.
On August 9, 2017, Ameris provided a new draft letter of intent to Atlantic. Among other customary provisions, the draft contemplated merger consideration of  $10.00 per share of Atlantic common stock to be paid 15% in cash and 85% in Ameris common stock, based on the ten-day average closing price prior to the signing of a definitive agreement with respect to the merger. On the same day, the Strategic Committee and representatives of Igler and Hovde discussed the merits of the letter of intent, as well as next steps. On August 11, 2017, the Strategic Committee had a conference call with Edwin W. Hortman,Dennis J. Zember Jr., President and Chief Executive Officer of Ameris, engaged in an informal discussion regarding developments in the banking industry and Dennis J.the Southeastern banking market. Mr. Zember Jr.discussed his vision to create a community bank of choice for top bankers and customers in the Southeast that could disrupt the market leading position of the large regional banks and the progress that Ameris had made through its recent acquisitions. Mr. Zember explained that the key to building such a franchise included sufficient size and scale, market presence, reputation, low-cost deposit funding, a strong balance sheet and an exceptional leadership team. Mr. Zember and Mr. Proctor then discussed the complementary nature of the two companies’ businesses, geographic footprints and cultures.
A few days later, Mr. Zember contacted Mr. Proctor to continue these discussions. Mr. Zember stated that he believed that it was the right time for a combination of the two organizations and that such a combination presented a unique opportunity for the shareholders, customers, employees and communities of both companies. Mr. Zember then outlined a preliminary framework that he believed could form the basis for the combination of the two financial institutions if Fidelity were interested: a merger of Fidelity with and into Ameris, with Ameris as the surviving company, all-stock consideration to Fidelity shareholders with an exchange ratio of approximately 0.7000, Fidelity representation on the combined company’s board of directors proportionate with its shareholders’ relative ownership of the combined company, key leadership positions for Fidelity employees and the combined bank having a significant presence and operations in Atlanta, Georgia.
On June 14, 2018, at a regularly scheduled meeting of the Fidelity Bank board of directors (which has the same members as the Fidelity board of directors), Executive Vice President, Chief Operating Officer and then-Chief Financial Officer of Ameris, to further discussMr. Proctor informed the terms of a potential transaction. The following day, the Strategic Committee presented the letter of intent to theFidelity board of directors of Atlantic, which unanimously voted to accept its termsthe interest from Ameris and move forwardthe substance of the discussions with due diligenceMr. Zember. James B. Miller, Jr., Chairman and transaction negotiations. On August 14, 2017, Ameris formally presentedChief Executive Officer of Fidelity, and Mr. Proctor discussed their view that the letterinitial framework for a combination of intent, which was executedthe two companies as outlined by Mr. Stephens on behalfZember, including the illustrative exchange ratio, should be explored further but emphasized that discussions were very preliminary in nature and that no confidential information had been exchanged. Mr. Miller and Mr. Proctor also discussed their positive impressions of Atlantic.the Ameris franchise and senior management team, whom they knew well. The Fidelity board of directors agreed that Mr. Miller and Mr. Proctor should continue exploratory discussions with Ameris to better assess the strategic rationale for combining the two companies.
On AugustJune 16, 2017, Atlantic convened a due diligence working group, which met to discuss the members’ roles and responsibilities. On August 28, 2017, Atlantic engaged Saltmarsh, Cleaveland & Gund, P.A. (“Saltmarsh”) to assist in a reverse due diligence review of Ameris.
On September 5, 2017,2018, Mr. Stephens and Tracy L. Keegan, Executive Vice President and Chief Financial Officer of Atlantic,Miller met with Mr. Zember and James LaHaise, Executive Vice President/Ameris’s lead director, Daniel B. Jeter, to further explore the merits for the proposed combination between Ameris and Fidelity. They shared information about their respective organizations and management backgrounds, their views on trends in the banking industry and the regulatory environment and their expectations for the markets in which they operate, including continued consolidation and the benefits of size and scale in providing additional customer services and in absorbing the significant operational costs needed for compliance and investments in infrastructure. The Ameris representatives also discussed their successful track record in acquisitions but noted that they viewed this potential transaction more as a strategic combination rather than as an acquisition. They then discussed the potential benefits of combining their organizations and leveraging the combined management talent and complementary branch networks and balance sheets to create a premier banking franchise in the Southeast with attractive economies of scale and a shared commitment to their customers and the communities in which they operate.
On July 19, 2018, Fidelity held a regularly scheduled meeting of its board of directors. Mr. Proctor updated the Fidelity board of directors on the discussions with Ameris since the last meeting of the board of directors. The Fidelity board of directors authorized Mr. Miller and Mr. Proctor to engage in more detailed discussions with Ameris.
On August 22, 2018, Mr. Proctor and Mr. Miller met with Mr. Zember, Mr. Jeter and certain other members of Ameris’s executive management team and the Ameris board of directors. The Ameris representatives discussed their vision for the combined company, potential synergies, preliminary transaction economics and execution risks. The Fidelity representatives asked Ameris to provide a preliminary letter of interest in advance of the September meeting of the Fidelity board of directors.
On September 11, 2018, Mr. Zember provided Mr. Miller with a letter of interest highlighting the strategic benefits to both organizations of a combination and setting forth a preliminary and non-binding proposal. Ameris proposed a targeted exchange ratio between 0.700 and 0.7250 of Ameris common stock
3757
TABLE OF CONTENTS
Corporate Bankingfor each share of Fidelity common stock. The letter also proposed that the Ameris board of directors would be expanded at closing and that former directors of Fidelity would represent five out of its fourteen members. Ameris proposed that the executive management team be led by Mr. Zember as Chief Executive Officer of Ameris and Mr. Proctor as President of Ameris Bank,and Chief Executive Officer of Ameris Bank. Ameris also reaffirmed its intent for Atlanta, Georgia to discuss preliminary due diligence findingsbe the location of its bank headquarters and a proposed adjustment tooperations center following the purchase price. The following day,transaction with its holding company headquarters remaining in Jacksonville, Florida.
On September 20, 2018, the Strategic Committee of theFidelity board of directors held a regularly scheduled meeting. The meeting was also attended by representatives of AtlanticSandler O’Neill who were invited to present on the proposed transaction. Mr. Miller and Mr. Proctor updated the Fidelity board of directors on the discussions with Ameris since the last board meeting, including the terms of the September 11 proposal. Representatives of Sandler O’Neill discussed general consolidation trends in the banking industry, provided an overview of Ameris and presented a representativepreliminary financial analysis of Hovde metthe potential transaction and the Ameris September 11 proposal, including the proposed exchange ratio. Representatives of Sandler O’Neill also discussed certain of Fidelity’s potential strategic alternatives, including the limited number of other potential strategic partners. There was discussion regarding the level of interest that these other potential strategic partners might have in proceeding with a transaction as well as risks associated with actively soliciting other offers. As part of this discussion, it was noted that none of the potential strategic partners represented an attractive alternative to discuss the preliminary findingsproposed transaction with Ameris based on these criteria. The Fidelity board of directors and senior management also discussed the competitive market conditions in the banking industry, their impact on Fidelity, and the benefits in the current banking environment of increased scale and efficiencies to offset high fixed costs. The Fidelity board of directors discussed Fidelity’s progress in reducing its indirect auto business and transitioning to a more commercially focused balance sheet as well as the risks and challenges in executing on its strategy going forward, including a lower growth rate during the transitional period. The Fidelity board of directors authorized management to move forward with the discussions with Ameris and due diligence and to evaluateseek to negotiate for an increase in the proposed adjustmentexchange ratio. The Fidelity board of directors also authorized the engagement of Sandler O’Neill as a financial advisor.
Over the next two weeks, representatives of Fidelity and Ameris engaged in negotiations with respect to the purchase price. exchange ratio, with Fidelity seeking to increase the exchange ratio from the range proposed by Ameris in its September 11 proposal.
On September 8, 2017,October 4, 2018, Ameris sent a revised letter of interest to Fidelity. This letter revised the proposed exchange ratio, setting forth a range of potential exchange ratios from 0.8261 to 0.9875, with the final exchange ratio to be determined following due diligence.
On October 5, 2018, Mr. StephensMiller informed Mr. Zember that Fidelity was willing to move forward with discussions and Ms. Keegan had a conference call with Messrs. Zember and LaHaise in which the parties agreed to continue the due diligence process.on the basis of the Ameris proposal. The parties entered into a non-disclosure agreement and each commenced their respective due diligence reviews.
On September 15, 2017,October 18, 2018, the Fidelity board of directors held a regularly scheduled meeting. Mr. Proctor updated the Fidelity board of directors on the status of discussions with Ameris communicatedand the revised October 4 proposal. Representatives of Sander O’Neill were also present at the meeting and presented an updated preliminary financial analysis based on the revised Ameris proposal as well as current market information.
On November 8, 2018, Mr. Zember reached out to HovdeMr. Miller and Mr. Proctor and informed them that as a result of Ameris’s due diligence, it was offering merger consideration of  $9.27 per share of Atlantic common stock, with the cash portionsignificant decline in bank sector stocks in the weeks since the October 4 proposal, the exchange ratio needed to be fixed at $1.37 per share.revised for Ameris preliminarily committed to continue discussions. Mr. Zember then proposed a revised exchange ratio of 0.7700 to 0.8000. Over the next twenty-four hours, representatives of Fidelity and Ameris continued to negotiate, and on November 9, 2018, Ameris revised its proposal to include an exchange ratio of 0.17 shares0.8000 and a commitment to increase its dividend following closing so that Fidelity shareholders would receive the same effective dividend after adjusting for the exchange ratio, subject to applicable law.
From November 13, 2018 through November 15, 2018, members of Ameris common stock per share of Atlantic common stock.
On September 25, 2017, the Fidelity board of directors attended their annual board retreat for the purpose of conducting an in-depth review of Fidelity’s performance and managementlong-term strategy. Mr. Miller and Mr. Proctor updated the Fidelity board of Atlantic,directors on
58
TABLE OF CONTENTS
the status of discussions and negotiations with Ameris. At a board meeting on November 15, 2018, representatives of IglerSandler O’Neill presented an overview of market conditions for bank sector stocks and Hovde, metthe general macroeconomic environment as well as an updated preliminary financial analysis reflecting the revised exchange ratio and current market conditions. At the invitation of Fidelity, Mr. Zember also attended a portion of the meeting and made a presentation regarding Ameris’s vision for the combined company and his view of the anticipated benefits of the transaction. Mr. Zember also agreed to discussprovide an updated letter of interest reflecting the new exchange ratio, which would include a 45-day exclusivity period which Ameris would require to dedicate the significant resources to complete due diligence and finalize the terms of the transaction. After Mr. Zember left the meeting, the Fidelity board of directors continued its discussion from prior meetings regarding the potential benefits of the transaction as compared to the other strategic opportunities available to Fidelity, including remaining independent. The Fidelity board of directors determined that management should continue its due diligence investigation and negotiations with Ameris and authorized the execution of the updated letter of interest when received.
On November 16, 2018, Ameris provided an updated letter of interest that memorialized the revised exchange ratio of 0.8000 as well as the commitment to increase the Ameris dividend and provided for a 45-day exclusivity period. Fidelity executed the letter of interest on November 19, 2018, which was non-binding other than the exclusivity provisions.
On November 26, 2018, Ameris’s outside legal counsel, Rogers & Hardin LLP (which we refer to as “Rogers & Hardin”), sent the first draft of the merger agreement to Wachtell, Lipton, Rosen & Katz (which we refer to as “Wachtell Lipton”), outside legal counsel to Fidelity. Over the next couple of weeks, Rogers & Hardin and Wachtell Lipton exchanged drafts of the merger agreement and related transaction documents to be entered into in connection with the merger agreement, including a voting agreement with certain directors of Fidelity with significant stock ownership and employment agreements between Ameris and each of Mr. Miller and Mr. Proctor, and engaged in telephonic negotiations of the terms of the agreements. Also during this time, the parties worked to complete their respective due diligence reviews, which included in-person and telephonic meetings as well as document review. Mr. Miller and Mr. Proctor periodically updated members of the Fidelity board of directors regarding the status of the transaction.
On December 12, 2018, the Fidelity board of directors held a meeting to continue their discussion of the proposed transaction with Ameris. Members of Fidelity’s management team and representatives from Sandler O’Neill and Wachtell Lipton were also in attendance. At the meeting, Mr. Miller and Mr. Proctor updated the Fidelity board of directors on the status of the proposed merger, and reviewed the strategic rationale and the anticipated benefits and risks associated with the proposed merger. Representatives of management, Sandler O’Neill and Wachtell Lipton provided input on the results of the due diligence conducted on Ameris. Sandler O’Neill provided an update on the market, including a review of the recent decline in bank sector stocks, and noting that the decline in Ameris stock was likely attributable to market forces and not a change in the underlying fundamentals of Ameris. Sandler O’Neill also reviewed the financial aspects of the proposed merger, including the various financial methodologies used in its analyses. Representatives of Wachtell Lipton advised the Fidelity board of directors on its fiduciary duties and discussed the terms of the draft transaction agreements, including the merger agreement, the voting agreement and the employment agreements to be entered into between Ameris and each of Mr. Miller and Mr. Proctor. After these presentations, the Fidelity board of directors engaged in a detailed discussion regarding the benefits and risks associated with the transaction and pricing issues.its belief that the proposed transaction with Ameris represented the best strategic alternative available to Fidelity and authorized management to finalize the transaction documents and due diligence. The pricing issuesFidelity board of directors also authorized the engagement of FIG Partners to provide a second fairness opinion in connection with the transaction.
Over the next few days, Rogers & Hardin and Wachtell Lipton worked to finalize the transaction documents, and Fidelity and Ameris completed their respective diligence reviews.
On December 16, 2018, the Fidelity board of directors held a meeting to consider the terms of the proposed transaction with Ameris. Members of Fidelity’s management team and representatives from Sandler O’Neill, FIG Partners and Wachtell Lipton were being driven partly byalso in attendance. Representatives of Fidelity’s senior management updated the Fidelity board of directors on the completion of due diligence. Sandler O’Neill reviewed the market developments since the last board meeting and its updated financial analysis,
59
TABLE OF CONTENTS​
and rendered an oral opinion to the Fidelity board of directors, which was later confirmed in writing, to the effect that, as of that date and subject to the procedures followed, assumptions made, matters considered, and qualifications set forth in such written opinion, the exchange ratio in the proposed merger was fair to the holders of Fidelity common stock, from a financial point of view. See “—Opinion of Sandler O’Neill & Partners, L.P.,” for more information. Next, FIG Partners presented to the Fidelity board of directors its view on the market and general macroeconomic trends, including a review of the recent fluctuationssell-off in bank sector stocks, including Ameris, and concurred that the decline in the market price of Ameris common stock was likely attributable to market forces and Atlantic’s recent performance. Based on this discussion,not a change in the underlying fundamentals of Ameris. FIG Partners then reviewed the financial aspects of the proposed merger, including discussing the various financial methodologies used in its analysis, and rendered an oral opinion to the Fidelity board of directors, directed managementwhich was later confirmed in writing, to the effect that, as of that date and Hovdesubject to continue negotiations with Ameris to increase the purchase price per share.
On September 28, 2017, Ameris’s legal counsel provided a draft merger agreement to Igler so that the parties could begin negotiating the specific terms thereof.
On October 3, 2017, Mr. Stephens, Ms. Keegan, other members of Atlantic’s due diligence working group (including representatives of Iglerprocedures followed, assumptions made, matters considered, and Saltmarsh) met with Mr. LaHaise and other members of Ameris’s management to conclude Atlantic’s reverse due diligence of Ameris.
On October 18, 2017, the board of directors of Atlantic met with the members of the due diligence working group. At this meeting, a representative of Hovde provided an update on the status of the Consent Order issued by the FDIC to Ameris Bank. A representative of Igler followedqualifications set forth in such update by stating that it would be very unlikely thatwritten opinion, the merger would receive regulatory approval while the Consent Order was in effect.
On October 23, 2017, the board of directors of Atlantic met with representatives of Saltmarsh, Hovde and Igler to review Saltmarsh’s final reverse due diligence report. Saltmarsh’s representative explained the purpose for the reverse due diligence review of a prospective acquirer. Saltmarsh’s representative also discussed the Consent Order, Ameris’s financial condition, performance and general loan portfolio, and other operational and regulatory matters. The board of directors also requested Saltmarsh to provide additional clarification on some of the loan portfolio data that had been presented.
On November 7, 2017, the board of directors of Atlantic and representatives of Igler and Hovde met to discuss whether Atlantic should consider entering into a merger agreement before the Consent Order was terminated. Mr. Stephens stated that, after discussions with a representative of the FDIC, Mr. Stephens felt relatively confident that the Consent Order would be liftedconsideration in the near term.
On November 11, 2017, a similar meeting was held to discuss pricing and the proposed merger agreement. The board of directors of Atlantic also reviewed the terms of the proposed voting agreement and non-solicitation agreements and concluded that they were reasonable and appropriate given the terms and structure of the merger. A representative of Hovde distributed its presentation and opinion to the board of directors and others present. Hovde’s representative described the financial terms of the merger and the termination fee. Hovde’s representative presented a valuation analysis of the merger, first from a market approach and then from an income approach, and explained in detail the assumptions used in both approaches and answered questions from the board of directors. Hovde’s representative concluded the presentation by stating that, in the firm’s opinion, the merger was fair, from a financial point of view, to Atlantic stockholders.
A representativethe holders of Igler then discussedFidelity common stock. See “—Opinion of FIG Partners, LLC,” for more information. Representatives of Wachtell Lipton further advised the fiduciary duties of theFidelity board of directors of Atlanticon its fiduciary duties and provided a summary ofconfirmed the materialfinal terms of the proposed merger agreement. Igler’s representative explained that the proposed merger agreement included all of the technical information regarding the merger and reviewed the representations and warranties to be made by Atlantic and Ameris, the covenants
38
TABLE OF CONTENTS​
of both parties, the conditions to closing and the termination provisions. Igler’s representative discussed in detail Atlantic’s commitment not to market itself, its right to terminate the merger agreement if it received a superior, unsolicited offer and the material terms of the termination fee.
Igler’s representative also coveredrelated transaction documents with the board of directors of Atlantic the other agreements that Atlantic’s directors and executive officers would be required to enter into in connection with the merger. Igler’s representative discussed the terms and conditions of the voting agreement and non-solicitation agreements and concluded his presentation by answering questions from theFidelity board of directors.
After a thorough review and evaluation ofconsidering the proposed terms of the merger agreement and merger agreement, as well as Saltmarsh’s reportrelated transaction documents and the fairness opinion from Hovde,various presentations of its financial and legal advisors, and taking into consideration the matters discussed during that meeting and prior meetings of the Fidelity board of directors and the factors described under “—Fidelity’s Reasons for the Merger; Recommendation of Atlantic concluded thatthe Fidelity Board of Directors,” the Fidelity board of directors unanimously determined the merger, wasthe merger agreement and the other transactions contemplated by the proposed merger agreement, to be in the best interests of Atlantic stockholders. The board ofFidelity and its shareholders, and the directors asked Mr. Sidhu to contact Ameris’s representatives to finalize the terms ofunanimously approved and adopted the proposed merger agreement and the transactions contemplated by it and determined to see if there was a possibility of a price adjustment ifrecommend that Fidelity shareholders approve and adopt the merger did not close as expected by June 30, 2018.agreement.
On November 15, 2017, while at a banking industry conference, Mr. Sidhu met with Mr. Zember to discuss the merger. The representatives of Ameris and Atlantic reaffirmedSubsequently, the merger consideration terms as discussed on September 17, 2017, but agreed to increase the merger consideration if the merger did not close by June 30, 2018. In such case, if the parties agreed to continue with the merger transaction, then the merger consideration would be increased by the amount of Atlantic’s net earnings for the first six months of 2018. These final revisionsagreement and related agreements were ultimately included in the Merger Agreement.
On November 16, 2017, the board of directors of Atlantic reconvened to discuss the information presented on November 11, 2017, and the final merger consideration terms contained in the Merger Agreement. Hovde issued its formal opinion, which was consistent with its November 11, 2017 presentation to the board of directors. The board of directors discussed the issues regarding the merger transaction at length and concluded that the merger was in the best interests of Atlantic stockholders. The board of directors unanimously agreed to approve the merger and authorized management to execute and deliver the Merger Agreement and ancillary documents. Later that day, Atlantic and Ameris executed and delivered the Merger Agreement and the ancillary documents.
Beforetransaction announced on the openingmorning of the market on NovemberDecember 17, 2017, Ameris issued2018 in a press release announcing the execution of the Merger Agreement.issued jointly by Ameris and Fidelity.
Atlantic’sFidelity’s Reasons for the Merger and theMerger; Recommendation of the AtlanticFidelity Board of Directors
The board of directors of Atlantic believes that the merger presents an opportunity for Atlantic and its stockholders to become part of a strong, $8.6 billion commercial bank, operating in Northern Florida and Southern Georgia, among other Southeastern markets. The board of directors of Atlantic believes that the merger will also afford Ameris the opportunity to expand its revenue sources, provide for earnings per share accretion due to cost savings opportunities, and sustain its robust loan and deposit origination trends in currents markets served by Ameris and Atlantic.
The terms of the merger, including the merger consideration, are the result of arm’s-length negotiations between representatives of Atlantic and Ameris, including their respective financial, accounting and legal advisors. In reaching its decision to adopt and approve the merger agreement, the board of directors of Atlantic consulted with its advisors regarding the terms of the transaction and with management. In approving and adopting the Merger Agreementmerger and the other transactions contemplated by the Merger Agreement,merger agreement, and to recommend that its shareholders approve the merger agreement, the Fidelity board of directors evaluated the merger in consultation with the Fidelity’s management, as well as Fidelity’s financial and legal advisors, and considered a number of Atlantic considered, among other things,factors, including the following material factors:
•
the valueFidelity board of directors’ understanding of the consideration to be received by Atlantic stockholders relative to recent trading prices, book valuecurrent and earnings per share of Atlantic common stock,prospective environment in which Fidelity and Ameris operate, including national and local economic conditions, the relationship betweeninterest rate environment, the considerationcompetitive and Atlantic’s book value and earnings per share,regulatory environments for financial institutions generally and the book valuelikely effect of these factors on Fidelity both with and without the merger;
​
•
the Fidelity board of directors’ familiarity with and understanding of Fidelity’s business, results of operations, asset quality, financial and market position and expectations concerning Fidelity’s future earnings per share of Ameris;and prospects;
​
•
information about Ameris and Atlantic, including thediscussion regarding Ameris’s business, and financial condition, results of operations, financial and market position and future earnings businessand prospects and financial obligations, including financial obligations to be incurred in connectionthe results of Fidelity’s due diligence investigation;
​
•
the Fidelity board of directors’ evaluation, with the merger;assistance of management and Fidelity’s financial and legal advisors, of strategic alternatives available to Fidelity for enhancing value over the long term and the potential risks, rewards and uncertainties associated with such alternatives, and the Fidelity board of directors’ belief that the proposed merger with Ameris was the best option available to Fidelity and its shareholders;
​
​
3960
TABLE OF CONTENTS
•
the fact that a portionstrategic benefits of the transaction and the synergies and cost savings expected to be achieved by the combined company upon completion of the merger, considerationincluding the following:
​
◦
the complementary nature of the balance sheets, business strategies, customers, geographic markets and cultures of the two companies, including both companies’ client oriented community banking model;
​
◦
the belief that the transaction will consistaccelerate Fidelity’s balance sheet restructuring and redeployment of sharescash flow into higher yielding assets and stimulate loan growth;
​
◦
the belief that the combined company will have one of Ameris common stock,the most recognizable brands and franchises in the Southeast and sufficient size and scale to fuel a diversified credit and treasury offering, which will allow Atlantic stockholdersposition the combined bank to participate inbecome the future performancecommunity bank of Ameris’s businesschoice for top bankers and synergies resulting from the mergercustomers; and have greater liquidity for their investment;
​
•◦
the fact that the combined company will have a portionsignificant presence in both Atlanta and Jacksonville which are two of the merger consideration will be paidmost attractive markets in cash, which will serve as a hedge against the possibility that the market price of the Ameris common stock may decrease after the merger;
​
•
the prospects of the successful execution of the proposed transactions;
​
•
the financial terms of recent merger and acquisition transactions involving banks and bank holding companies, particularly in Florida, and a comparison of the financial metrics of such transactions with the terms of the proposed merger with Ameris;
​
•
the alternatives to the merger, including Atlantic’s prospects as an independent financial institution;
​
•
the need for additional capital to support Atlantic’s future growth and operations, including the expenses associated with raising such capitalSoutheast and the terms on, and prices at, which Atlantic could obtain such capital;combined branch network will allow Fidelity to expand its customer service to communities throughout the Southeast;
​
•
the fact that the merger consideration is all stock with a fixed exchange ratio offers Fidelity shareholders the opportunity to fully participate in the future growth and opportunities of the combined company, and the fact that the receipt of the merger consideration (other than any cash in lieu of fractional shares) will generally be structuredtax-free to Fidelity shareholders based on the expected tax treatment of the merger as a tax-free reorganization, providing certain“reorganization” for U.S. federal income tax benefits topurposes, as further described in “Material U.S. Federal Income Tax Consequences of the extent that Atlantic stockholders receive Ameris common stock in the merger;
​
•
Ameris’s history of successful integration of other acquired financial institutions;
​
•
Ameris’s larger size, which should allow it to compete more effectively through broader product offerings and a larger legal lending limit;Merger”;
​
•
the potentialparticipation of 5 of Fidelity’s directors on the board of directors of the combined company and the significant leadership positions of Fidelity’s senior management in the combined company which, along with Ameris’s acquisition experience, the Fidelity board of directors believes would assist in integrating and operating the combined company post-closing and enhance the likelihood of realizing the strategic benefits that Ameris will receive greater attentionFidelity expects to result from investorsthe merger and potential strategic partners or acquirers due to its larger size;lower execution risk;
​
•
the opinionseparate financial presentations of Atlantic’seach of Fidelity’s financial advisoradvisors, Sandler O’Neill and FIG Partners, to the Fidelity board of directors on December 16, 2018 and their separate respective opinions delivered to the Fidelity board of directors, to the effect that as of such date and based on and subject to certain assumptions, procedures, qualifications and limitations, the merger consideration iswas fair, from a financial point of view, to the Atlantic stockholders;holders of Fidelity common stock, as further described under “The Merger—Opinion of Sandler O’Neill & Partners, L.P.” and “The Merger—Opinion of FIG Partners, LLC”;
​
•
the facthistorical performance of each of Fidelity common stock and Ameris common stock and the dividend yield of each and the commitment of Ameris to increase its dividend following closing so that ifFidelity shareholders receive the closing ofsame effective dividend after adjusting for the merger has not occurred by June 30, 2018, then the merger consideration will be increased by the amount of Atlantic’s after-tax net income subject to Ameris or Atlantic electing to extend the term of the Merger Agreement.exchange ratio;
​
The board of directors of Atlantic also considered potential risks associated with the merger in connection with its deliberations, including the following:
•
the implied value of the merger consideration of  $27.22 for each share of Fidelity common stock represented approximately a 27.1% premium over the closing price of Fidelity common stock on December 14, 2018 (the last trading day prior to the board meeting to approve the transaction);
​
•
the regulatory and other approvals required in connection with the merger, consideration of the relevant factors assessed by the regulators for the approvals and the parties’ evaluations of those factors (including Ameris’s recent record of successfully receiving regulatory approvals for acquisitions in a timely manner), and the expectation that such approvals could be received in a reasonably timely manner and without the imposition of unacceptable conditions;
​
•
the terms and conditions of the merger agreement, including, among other things, the expected tax treatment of the merger as a “reorganization” for U.S. federal income tax purposes, Fidelity’s ability to take certain actions in response to an unsolicited bona fide written acquisition proposal
​
​
61
TABLE OF CONTENTS​
under specific circumstances, including to terminate the merger agreement to enter into a superior proposal, the conditions to closing, the possibility that Fidelity would be required to pay a termination fee under certain circumstances, the fact that Fidelity shareholders will have an opportunity to vote on the merger and that their approval is a condition to completion of the merger, the terms of the merger agreement that restrict Fidelity’s ability to solicit alternative transactions, and the provisions of the merger agreement generally requiring Fidelity to conduct its business in the ordinary course and the other restrictions on the conduct of Fidelity’s business prior to completion of the merger;
•
with the merger consideration consisting of Ameris wouldshares at a fixed exchange ratio, the potential risk for the implied value of the merger consideration to be adversely affected by a decrease in the trading price of Ameris common stock;
​
•
the risk that the merger may not be able to obtainconsummated or that the required regulatory approval for the merger inclosing may be unduly delayed, including as a prompt fashion, or at all, due to the Consent Order;result of factors outside either party’s control;
​
•
the potential diversionrisk of diverting management attention and resources from the operation of Atlantic’sFidelity’s business towardsto the completionmerger, and the possibility of employee attrition or adverse effects on client and business relationships as a result of the merger;
​
•
the requirement that Atlantic conduct its business in the ordinary courseannouncement and subject to certain restrictions prior to the completion of the merger, which may delay or prevent Atlantic from exploiting business opportunities that may arise pending completionpendency of the merger;
​
•
the potential for other delaysrisks and costs associated with successfully integrating Fidelity’s business, operations and workforce with those of Ameris, including the risk of not realizing all of the anticipated benefits of the merger or not realizing them in receiving required regulatory approvals and in obtaining an order of effectiveness for the registration statement of which this proxy statement/prospectus forms a part;
​
•
the possibility that the $5.75 million termination fee will discourage other parties that might be interested in a transaction with Atlantic from proposing such a transaction;expected timeframe; and
​
•
the impact Atlantic’s merger-related costsother risks described under the sections entitled “Risk Factors” and “Cautionary Statement Regarding Forward-Looking Statements.”
​
In considering the recommendation of the Fidelity board of directors, you should be aware that certain directors and executive officers of Fidelity may have interests in the merger that are different from, or in addition to, interests of Fidelity shareholders generally and may create potential conflicts of interest. The Fidelity board of directors was aware of these interests and considered them when evaluating and negotiating the merger agreement, the merger and the other transactions contemplated by the merger agreement, and in recommending to Fidelity shareholders that they vote in favor of the merger proposal. See “The Merger—Interests of Fidelity’s Directors and Executive Officers in the Merger.”
This discussion of the information and factors considered by the Fidelity board of directors includes the material factors considered by the Fidelity board of directors, but it is not intended to be exhaustive and may not include all the factors considered by the Fidelity board of directors. In view of the wide variety of factors considered, and the complexity of these matters, the Fidelity board of directors did not quantify or assign any relative or specific weights to the various factors that it considered in reaching its determination to adopt and approve the merger agreement, the merger and the other transactions contemplated by the merger agreement. Rather, the Fidelity board of directors viewed its position and recommendation as being based on the totality of the information presented to and factors considered by it, including discussions with, and questioning of, Fidelity’s management and its financial and legal advisors. In addition, individual members of the Fidelity board of directors may have given differing weights to different factors. It should be noted that this explanation of the reasoning of the Fidelity board of directors and certain information presented in this section is forward-looking in nature and, therefore, that information should be read in light of the factors discussed in “Cautionary Statement Regarding Forward-Looking Statements.”
For the reasons set forth above, the Fidelity board of directors unanimously recommends that Fidelity shareholders vote “FOR” the merger proposal.
Certain Unaudited Prospective Financial Information
Fidelity and Ameris do not, as a matter of course, publicly disclose forecasts or internal projections as to their respective future performance, earnings or other results due to, among other reasons, the inherent uncertainty of the underlying assumptions and estimates, other than, from time to time, estimated ranges of certain expected financial results and operational metrics for the current year and certain future years in their respective regular earnings press releases and other investor materials.
62
TABLE OF CONTENTS
However, in connection with the merger, Fidelity’s senior management and Ameris’s senior management prepared or approved for use certain unaudited prospective financial information which was provided to and considered by Sandler O’Neill, FIG Partners and Stephens for the purpose of performing financial analyses in connection with their respective fairness opinions, as described in this joint proxy statement/prospectus under “— Opinion of Sandler O’Neill & Partners, L.P.,” “— Opinion of FIG Partners, LLC” and “— Opinion of Stephens Inc.” We refer to this information collectively as the “prospective financial information.”
The prospective financial information was not prepared for the purposes of, or with a view toward, public disclosure or with a view toward complying with the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial information, published guidelines of the SEC regarding forward-looking statements or generally accepted accounting principles. A summary of certain significant elements of this information is set forth below, and is included in this joint proxy statement/prospectus solely for the purpose of providing Fidelity shareholders and Ameris shareholders access to certain nonpublic information made available to Fidelity’s and Ameris’s financial advisors for the purpose of performing financial analyses in connection with their respective fairness opinions.
Although presented with numeric specificity, the prospective financial information reflect numerous estimates and assumptions made by Fidelity’s senior management or Ameris’s senior management, as applicable, at the time such prospective financial information was prepared or approved for use by the financial advisors and represent Fidelity senior management’s or Ameris senior management’s respective evaluation of Fidelity’s expected future financial performance on a stand-alone basis, without reference to the merger and Ameris senior management’s evaluation of Ameris’s expected future financial performance on a stand-alone basis, without reference to the merger. These and the other estimates and assumptions underlying the prospective financial information involve judgments with respect to, among other things, economic, competitive, regulatory and financial market conditions and future business decisions that may not be realized and that are inherently subject to significant business, economic, competitive and regulatory uncertainties and contingencies, including, among other things, the inherent uncertainty of the business and economic conditions affecting the industry in which Fidelity and Ameris operate and the risks and uncertainties described under “Risk Factors,” “Cautionary Statement Regarding Forward-Looking Statements” and in the reports that Fidelity and Ameris file with the SEC from time to time, all of which are difficult to predict and many of which are outside the control of Fidelity and Ameris and will have on its earnings ifbe beyond the control of the combined company. There can be no assurance that the underlying assumptions would prove to be accurate or that the projected results would be realized, and actual results could differ materially from those reflected in the prospective financial information, whether or not the merger is completed. Further, these assumptions do not consummated.include all potential actions that the senior management of Fidelity or Ameris could or might have taken during these time periods. The inclusion in this joint proxy statement/prospectus of the unaudited prospective financial information below should not be regarded as an indication that Fidelity, Ameris or their respective boards of directors or financial advisors, considered, or now consider, this prospective financial information to be material information to any Fidelity shareholders or Ameris shareholders, as the case may be, particularly in light of the inherent risks and uncertainties associated with such prospective financial information. The prospective financial information is not fact and should not be relied upon as being necessarily indicative of actual future results. The prospective financial information also reflects numerous variables, expectations and assumptions available at the time it was prepared as to certain business decisions that are subject to change and do not take into account any circumstances or events occurring after the date they were prepared. No assurances can be given that if the prospective financial information and the underlying assumptions had been prepared as of the date of this joint proxy statement/prospectus, similar assumptions would be used. In addition, the prospective financial information may not reflect the manner in which Ameris would operate the combined company after the merger.
Ernst & Young LLP (Fidelity’s independent registered public accounting firm) and Crowe LLP (Ameris’s independent registered public accounting firm) have not examined, compiled or otherwise performed any procedures with respect to the prospective financial information contained in these prospective financial information and, accordingly, Ernst & Young LLP and Crowe LLP have not expressed any opinion or given any other form of assurance with respect thereto and they assume no responsibility for
63
TABLE OF CONTENTS
the prospective financial information. The reports of the independent registered public accounting firms incorporated by reference in this joint proxy statement/prospectus relate to the historical financial information of Fidelity and Ameris, respectively. Such reports do not extend to the prospective financial information and should not be read to do so. No independent registered public accounting firm has examined, compiled or otherwise performed any procedures with respect to the prospective financial information contained in these prospective financial information and, accordingly, no independent registered public accounting firm has expressed any opinion or given any other form of assurance with respect thereto and no independent registered public accounting firm assumes any responsibility for the prospective financial information.
Fidelity Prospective Financial Information
In connection with its financial analyses, Sandler O’Neill used estimates for Fidelity earnings per share for 2018 and 2019 and estimates of Fidelity annual dividends for 2018 and 2019, in each case that reflected consensus Wall Street research estimates. Further, in connection with the evaluation of the merger, Fidelity’s senior management provided an estimated long term earnings per share growth rate of 10% for 2020, 2021 and 2022 and an annual dividend increase of  $0.04 per share for 2020, 2021 and 2022. The following table presents the estimated earnings per share and dividends per share based on these assumptions.
​​​2018E​​2019E​​2020E​​2021E​​2022E​
Earnings per share​​​$1.58​​​​$1.59​​​​$1.75​​​​$1.92​​​​$2.11​​
Dividends per share​​​$0.48​​​​$0.52​​​​$0.56​​​​$0.60​​​​$0.64​​
In connection with the merger, Sandler O’Neill, FIG Partners and Stephens also used adjusted earnings per share estimates for Fidelity that reflected the estimated impact of certain projected balance sheet repositioning, including indirect auto redeployment and proceeds from future MSR sales. These estimates were derived by first using consensus Wall Street research estimates from 2018 through 2020 and the 10% growth rate provided by Fidelity’s senior management for 2021 and 2022, and then making adjustments to reflect the estimated impact of projected balance sheet decisions, including indirect auto redeployment and proceeds from future MSR sales. The Sandler O’Neill and Stephens estimates reflected the views of Ameris’s senior management based on, among other things, its due diligence on Fidelity and the FIG Partners estimates included certain additional adjustments based on discussions with representatives of Fidelity and Ameris. The following table presents the adjusted earnings per share based on the foregoing assumptions.
​​​2018E​​2019E​​2020E​​2021E​​2022E​
Adjusted earnings per share​​​$1.58​​​​$1.54(1)​​​​$1.96​​​​$2.37​​​​$2.80(1)​​
​
(1)
Due to differences in rounding and certain assumptions, FIG Partners calculated adjusted earnings per share of  $1.55 in 2019 and $2.85 in 2022.
​
Ameris Prospective Financial Information
In connection with their financial analyses, Sandler O’Neill and Stephens used estimates for Ameris earnings per share for 2018 and 2019 that reflected consensus Wall Street research estimates. Ameris’s senior management provided the financial advisors with an estimated long term earnings per share growth rate of 10% for 2020, 2021 and 2022 and estimated annual dividends of 0.40 per share for 2018 through 2022 on a stand-alone basis, and estimated annual dividends of  $0.60 per share following the closing of the transaction on a pro forma basis.
The following table presents the estimated earnings per share used by Sandler O’Neill and Stephens in their financial analyses based on these assumptions.
​​​2018E​​2019E​​2020E​​2021E​​2022E​
Earnings per share​​​$2.75​​​​$4.26​​​​$4.68(1)​​​​$5.15​​​​$5.66(1)​​
​
(1)
Due to differences in rounding and certain assumptions, Stephens calculated earnings per share of $4.69 in 2020 and $5.67 in 2022.
​
​
4064
TABLE OF CONTENTS​
The board of directors of Atlantic considered all of these factors and risks as a whole and believes that the opportunities created by the merger cause the Merger Agreement and the transactions contemplated by the Merger Agreement to be in the best interests of Atlantic and its stockholders.
The foregoing discussion of the factors and risks that were considered is not exhaustive, but includes the material factors and risks considered by the board of directors of Atlantic. In view of the wide variety of factors and risks considered by the board of directors of Atlantic in connection with its evaluationfinancial analyses, FIG Partners used estimates for Ameris earnings per share for 2018, 2019 and 2020 that reflected consensus Wall Street research estimates and used the 10% long term growth rate provided by Ameris’s senior management for 2021 and 2022. FIG Partners utilized the estimated annual dividends of  $0.40 for 2018 through 2022 provided by Ameris’s senior management. The following table presents the estimated earnings per share used by FIG Partners in its financial analyses based on these assumptions.
​​​2018E​​2019E​​2020E​​2021E​​2022E​
Earnings per share​​​$2.75​​​​$4.30​​​​$4.77​​​​$5.25​​​​$5.77​​
The consensus mean Wall Street estimates used by the financial advisors differed in some respects due to them being pulled from different databases and on different dates.
In connection with the pro forma financial analysis, Ameris’s senior management also provided the financial advisors with certain assumptions regarding, among other items, purchase accounting adjustments and cost savings, which we refer to as the Ameris pro forma assumptions. These assumptions included, among other items, a gross credit mark to loans and OREO of  ($35.3) million, gross rate mark to indirect auto loans of  ($5.0) million, fair value adjustment to buildings and land of  $30.9 million, core deposit intangible of  $77.5 million, amortized straight-line over 10 years, mark of  $6.7 million to other asset and liabilities, cost savings equal to 40.0% of Fidelity’s estimated noninterest expenses (50% realized in 2019 and 100% thereafter) and Durbin impact to Fidelity’s annual earnings of  $(4.6) million pre-tax following closing, grown 3.0% annually.
General
The prospective financial information was prepared separately using, in some cases, different assumptions, and the different estimates are not intended to be added together. Adding the prospective financial information together for the two companies is not intended to represent the results the combined company will achieve if the merger is completed and is not intended to represent forecasted financial information for the complexity of those matters,combined company if the board of directors of Atlantic did not consider it practical to, nor did it attempt to, quantify, rank or otherwise assign relative weights to the specific factors that it consideredmerger is completed.
By including in reaching its decision.
The decision to enter into the Merger Agreement was unanimously approved by the board of directors of Atlantic on November 11, 2017.
Opinion of Atlantic’s Financial Advisor
The fairness opinion andthis joint proxy statement/prospectus a summary of the prospective financial information, neither Ameris nor Fidelity nor any of their respective representatives has made or makes any representation to any person regarding the ultimate performance of Fidelity or Ameris compared to the information contained in the prospective financial information. Neither Fidelity, Ameris, nor, after completion of the merger, the combined company undertakes any obligation to update or otherwise revise the prospective financial information or financial information to reflect circumstances existing since their preparation or to reflect the occurrence of subsequent or unanticipated events, even in the event that any or all of the underlying assumptions are shown to be in error, or to reflect changes in general economic or industry conditions.
The prospective financial analysesinformation summarized in this section are not being included in this joint proxy statement/prospectus in order to induce any Fidelity shareholder to vote in favor of Atlantic’sthe merger proposal or any of the other proposals to be voted on at the Fidelity special meeting or to induce any Ameris shareholder to vote in favor of the Ameris share issuance proposal or any of the other proposals to be voted on at the Ameris special meeting.
Opinion of Sandler O’Neill & Partners, L.P.
Fidelity retained Sandler O’Neill to act as financial advisor Hovde Group, LLC, are described below. Asto the Fidelity board of directors in connection with Fidelity’s consideration of a basis forpossible business combination. Sandler O’Neill is a nationally recognized investment banking firm whose principal business specialty is financial institutions. In the ordinary course of its opinion, Hovde reviewed, amonginvestment banking business, Sandler O’Neill is regularly engaged in the valuation of financial institutions and their securities in connection with mergers and acquisitions and other things,corporate transactions.
Sandler O’Neill acted as financial advisor in connection with the draftproposed transaction and participated in certain of the Agreement and Plan of Merger, between Ameris and Atlantic, dated November 10, 2017, providednegotiations leading to Hovde by Atlantic (the “Agreement”). The description contains projections, estimates and other forward-looking statements about the future earnings or other measuresexecution of the future performancemerger agreement. At the December 16, 2018 meeting at which the Fidelity board of Atlantic. The projections were baseddirectors considered and discussed the terms of
65
TABLE OF CONTENTS
the merger agreement and the merger, Sandler O’Neill delivered to the Fidelity board of directors its oral opinion, which was subsequently confirmed in writing on numerous variables and assumptions, which are inherently uncertain, including factors relatedDecember 16, 2018, to general economic and competitive conditions. Accordingly, actual results could vary significantly from those set forththe effect that, as of such date, the exchange ratio in the projections. You should not rely on anymerger was fair to the holders of these statements as having been made or adopted by Atlantic or Ameris. Fidelity common stock, from a financial point of view. The full text of Hovde’s writtenSandler O’Neill’s opinion is included inattached as Annex C to this joint proxy statement/prospectus as Appendix C and is incorporated herein by reference. You are urged to read the​prospectus. The opinion in its entirety for a description ofoutlines the procedures followed, assumptions made, matters considered and qualifications and limitations on the review undertaken by Hovde.Sandler O’Neill in rendering its opinion. The summarydescription of Hovde’sthe opinion included in this proxy statement/prospectusset forth below is qualified in its entirety by reference to the full text of the opinion. Holders of Fidelity common stock are urged to read the entire opinion carefully in connection with their consideration of the proposed merger.
Sandler O’Neill’s opinion speaks only as of the date of the opinion. The opinion was directed to the Fidelity board of directors in connection with its consideration of the merger agreement and the merger and does not constitute a recommendation to any Fidelity shareholder as to how any such opinion.shareholder should vote at any meeting of shareholders called to consider and vote upon the approval of the merger agreement and the merger. Sandler O’Neill’s opinion was directed only to the fairness, from a financial point of view, of the exchange ratio to the holders of Fidelity common stock and did not address the underlying business decision of Fidelity to engage in the merger, the form or structure of the merger or any other transactions contemplated in the merger agreement, the relative merits of the merger as compared to any other alternative transactions or business strategies that might exist for Fidelity or the effect of any other transaction in which Fidelity might engage. Sandler O’Neill did not express any opinion as to the fairness of the amount or nature of the compensation to be received in the merger by any officer, director or employee of Fidelity or Ameris, or any class of such persons, if any, relative to the compensation to be received in the merger by any other shareholder. Sandler O’Neill’s opinion was approved by Sandler O’Neill’s fairness opinion committee.
On July 6,In connection with its opinion, Sandler O’Neill reviewed and considered, among other things:
•
A draft of the merger agreement, dated December 14, 2018;
​
•
certain publicly available financial statements and other historical financial information of Fidelity that Sandler O’Neill deemed relevant;
​
•
certain publicly available financial statements and other historical financial information of Ameris that Sandler O’Neill deemed relevant;
​
•
publicly available consensus mean analyst earnings per share and dividends per share estimates for Fidelity for the years ending December 31, 2018 and December 31, 2019, as well as an estimated long-term earnings per share growth rate and estimated dividends per share for the years thereafter, as provided by the senior management of Fidelity;
​
•
publicly available consensus mean analyst earnings per share estimates for Ameris for the years ending December 31, 2018 and December 31, 2019, as confirmed by the senior management of Ameris, as well as an estimated long-term earnings per share growth rate for the years thereafter and estimated dividends per share for the years ending December 31, 2018 through December 31, 2022, as provided by the senior management of Ameris;
​
•
the relative contributions of assets, liabilities, equity and earnings of Fidelity and Ameris to the combined entity;
​
•
the pro forma financial impact of the proposed transaction on Ameris based on certain assumptions relating to purchase accounting adjustments, cost savings and transaction expenses, as provided by the 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 publicly reported historical price and trading activity for Fidelity common stock and Ameris common stock, including a comparison of certain stock market information for Fidelity common stock and Ameris common stock and certain stock indices as well as publicly available information for certain other similar companies, the securities of which are publicly traded;
​
​
66
TABLE OF CONTENTS
•
a comparison of certain financial information for Fidelity and Ameris with similar financial institutions for which information was publicly available;
​
•
the financial terms of certain recent pending and completed business combinations in the bank and thrift industry (on a regional and nationwide basis), to the extent publicly available;
​
•
the current market environment generally and the banking environment in particular; and
​
•
such other information, financial studies, analyses and investigations and financial, economic and market criteria as Sandler O’Neill considered relevant.
​
Sandler O’Neill also discussed with certain members of the senior management of Fidelity the business, financial condition, results of operations and prospects of Fidelity and held similar discussions with certain members of the senior management of Ameris and its representatives regarding the business, financial condition, results of operations and prospects of Ameris.
In performing its review, Sandler O’Neill relied upon the accuracy and completeness of all of the financial and other information that was available to and reviewed by Sandler O’Neill from public sources, that was provided to Sandler O’Neill by Fidelity or Ameris or their respective representatives or that was otherwise reviewed by Sandler O’Neill, and Sandler O’Neill assumed such accuracy and completeness for purposes of rendering its opinion without any independent verification or investigation. Sandler O’Neill relied on the assurances of the respective senior managements of Fidelity and Ameris that they were not aware of any facts or circumstances that would have made any of such information inaccurate or misleading. Sandler O’Neill was not asked to and did not undertake an independent verification of any of such information and Sandler O’Neill did not assume any responsibility or liability for the accuracy or completeness thereof. Sandler O’Neill did not make an independent evaluation or perform an appraisal of the specific assets, the collateral securing assets or the liabilities (contingent or otherwise) of Fidelity or Ameris or any of their respective subsidiaries, nor was Sandler O’Neill furnished with any such evaluations or appraisals. Sandler O’Neill rendered no opinion or evaluation on the collectability of any assets or the future performance of any loans of Fidelity or Ameris. Sandler O’Neill did not make an independent evaluation of the adequacy of the allowance for loan losses of Fidelity or Ameris, or of the combined entity after the merger, and Sandler O’Neill did not review any individual credit files relating to Fidelity or Ameris. Sandler O’Neill assumed, with Fidelity’s consent, that the respective allowances for loan losses for both Fidelity and Ameris were adequate to cover such losses and would be adequate on a pro forma basis for the combined entity.
In preparing its analyses, Sandler O’Neill used publicly available consensus mean analyst earnings per share and dividends per share estimates for Fidelity for the years ending December 31, 2018 and December 31, 2019, as well as an estimated long-term earnings per share growth rate and estimated dividends per share for the years thereafter, as provided by the senior management of Fidelity. In addition, Sandler O’Neill used publicly available consensus mean analyst earnings per share estimates for Ameris for the years ending December 31, 2018 and December 31, 2019, as confirmed by the senior management of Ameris, as well as an estimated long-term earnings per share growth rate for the years thereafter and estimated dividends per share for the years ending December 31, 2018 through December 31, 2022, as provided by the senior management of Ameris. Sandler O’Neill also received and used in its pro forma analyses certain assumptions relating to purchase accounting adjustments, cost savings and transaction expenses, as provided by the 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 Fidelity. With respect to the foregoing information, the respective senior managements of Fidelity and Ameris confirmed to Sandler O’Neill that such information reflected (or, in the case of the publicly available analyst estimates referred to above, were consistent with) the best currently available estimates and judgments of those respective senior managements as to the future financial performance of Fidelity and Ameris, respectively, and the other matters covered thereby, and Sandler O’Neill assumed that the future financial performance reflected in such information would be achieved. Sandler O’Neill expressed no opinion as to such information, or the assumptions on which such information was based. Sandler O’Neill also assumed that there had been no material change in the respective assets, financial condition, results of operations,
67
TABLE OF CONTENTS
business or prospects of Fidelity or Ameris since the date of the most recent financial statements made available to Sandler O’Neill. Sandler O’Neill assumed in all respects material to its analysis that Fidelity and Ameris would remain as going concerns for all periods relevant to its analysis.
Sandler O’Neill assumed, with Fidelity’s consent, that: (i) each of the parties to the merger agreement would comply in all material respects with all material terms and conditions of the merger agreement and all related agreements, that all of the representations and warranties contained in such agreements were true and correct in all material respects, that each of the parties to such agreements would perform in all material respects all of the covenants and other obligations required to be performed by such party under such agreements and that the conditions precedent in such agreements were not and would not be waived; (ii) in the course of obtaining the necessary regulatory or third party approvals, consents and releases with respect to the merger, no delay, limitation, restriction or condition would be imposed that would have an adverse effect on Fidelity, Ameris or the merger or any related transactions; and (iii) the merger and any related transactions would be consummated in accordance with the terms of the merger agreement without any waiver, modification or amendment of any material term, condition or agreement thereof and in compliance with all applicable laws and other requirements. Finally, with Fidelity’s consent, Sandler O’Neill relied upon the advice that Fidelity received from its legal, accounting and tax advisors as to all legal, accounting and tax matters relating to the merger and the other transactions contemplated by the merger agreement. Sandler O’Neill expressed no opinion as to any such matters.
Sandler O’Neill’s opinion was necessarily based on financial, regulatory, economic, market and other conditions as in effect on, and the information made available to Sandler O’Neill as of, the date of the opinion. Events occurring after the date of Sandler O’Neill’s opinion could materially affect the opinion. Sandler O’Neill has not undertaken to update, revise, reaffirm or withdraw its opinion or otherwise comment upon events occurring after the date of its opinion. Sandler O’Neill expressed no opinion as to the trading value of Fidelity common stock or Ameris common stock at any time or what the value of Ameris common stock would be once it is actually received by the holders of Fidelity common stock.
In rendering its opinion, Sandler O’Neill performed a variety of financial analyses. The summary below is not a complete description of the analyses underlying Sandler O’Neill’s opinion or the presentation made by Sandler O’Neill to the Fidelity board of directors, but is a summary of all material analyses performed and presented by Sandler O’Neill. The summary includes information presented in tabular format. In order to fully understand the financial analyses, these tables must be read together with the accompanying text. The tables alone do not constitute a complete description of the financial analyses. The preparation of a fairness opinion is a complex process involving subjective judgments as to the most appropriate and relevant methods of financial analysis and the application of those methods to the particular circumstances. The process, therefore, is not necessarily susceptible to a partial analysis or summary description. Sandler O’Neill believes that its analyses must be considered as a whole and that selecting portions of the factors and analyses to be considered without considering all factors and analyses, or attempting to ascribe relative weights to some or all such factors and analyses, could create an incomplete view of the evaluation process underlying its opinion. Also, no company included in Sandler O’Neill’s comparative analyses described below is identical to Fidelity or Ameris and no transaction is identical to the merger. Accordingly, an analysis of comparable companies or transactions involves complex considerations and judgments concerning differences in financial and operating characteristics of the companies and other factors that could affect the public trading values or merger transaction values, as the case may be, of Fidelity and Ameris and the companies to which they are being compared. In arriving at its opinion, Sandler O’Neill did not attribute any particular weight to any analysis or factor that it considered. Rather, Sandler O’Neill made qualitative judgments as to the significance and relevance of each analysis and factor. Sandler O’Neill did not form an opinion as to whether any individual analysis or factor (positive or negative) considered in isolation supported or failed to support its opinion, rather, Sandler O’Neill made its determination as to the fairness of exchange ratio on the basis of its experience and professional judgment after considering the results of all its analyses taken as a whole.
In performing its analyses, Sandler O’Neill also made numerous assumptions with respect to industry performance, business and economic conditions and various other matters, many of which are beyond the control of Fidelity, Ameris and Sandler O’Neill. The analyses performed by Sandler O’Neill are not necessarily indicative of actual values or future results, both of which may be significantly more or less
68
TABLE OF CONTENTS
favorable than suggested by such analyses. Sandler O’Neill prepared its analyses solely for purposes of rendering its opinion and provided such analyses to the Fidelity board of directors at its December 16, 2018 meeting. Estimates on the values of companies do not purport to be appraisals or necessarily reflect the prices at which companies or their securities may actually be sold. Such estimates are inherently subject to uncertainty and actual values may be materially different. Accordingly, Sandler O’Neill’s analyses do not necessarily reflect the value of Fidelity common stock or the prices at which Fidelity common stock or Ameris common stock may be sold at any time. The analyses of Sandler O’Neill and its opinion were among a number of factors taken into consideration by the Fidelity board of directors in making its determination to approve the merger agreement and should not be viewed as determinative of the merger consideration or the decision of the Fidelity board of directors or management with respect to the fairness of the merger. The type and amount of consideration payable in the merger were determined through negotiations between Fidelity and Ameris.
Summary of Aggregate Merger Consideration and Implied Transaction Metrics
Sandler O’Neill reviewed the financial terms of the proposed merger. Pursuant to the terms of the merger agreement, each share of Fidelity common stock outstanding immediately prior to the effective time, except for certain shares of Fidelity common stock as specified in the merger agreement, will be converted into the right to receive 0.80 shares of Ameris common stock. Based on the closing price of Ameris common stock on December 14, 2018 of  $34.02 per share and based upon 27,371,942 shares of Fidelity common stock outstanding and 916,994 options outstanding with a weighted average exercise price of  $20.91, Sandler O’Neill calculated an aggregate implied transaction value of  $750.7 million. Based upon historical financial information for Fidelity as of or for the last twelve months (“LTM”) ended September 30, 2018, historical financial information for the LTM period adjusted to remove the one-time $4.9 million deferred tax asset write-up in Q4 2017 Atlantic engaged Hovderelated to acttax reform, publicly available consensus mean analyst earnings per share estimates for Fidelity for the years ending December 31, 2018 and December 31, 2019 and the closing price of Fidelity common stock on December 14, 2018 of  $21.42 per share, Sandler O’Neill calculated the following implied transaction metrics:
​Transaction Value/Fidelity Last Twelve Months Earnings:​​​​16.2x​​
​
Transaction Value/Fidelity Adjusted Last Twelve Months Earnings(1):
​​​​18.1x​​
​Transaction Value/Fidelity 2018E Earnings:​​​​19.2x​​
​Transaction Value/Fidelity 2019E Earnings:​​​​17.3x​​
​Transaction Value/Fidelity September 30, 2018 Book Value:​​​​173.7%​​
​Transaction Value/Fidelity September 30, 2018 Tangible Book Value:​​​​178.5%​​
​
Tangible Book Premium(2)/Core Deposits(3):
​​​​8.5%​​
​
Tangible Book Premium(2)/Core Deposits(4):
​​​​8.9%​​
​
Market Premium(5):
​​​​27.1%​​
​
(1)
LTM earnings adjusted to exclude the $4.9 million deferred tax asset write-up in Q4 2017 due to corporate tax reform.
​
(2)
Defined as itsaggregate merger consideration less Fidelity reported tangible common equity at September 30, 2018.
​
(3)
Core deposits defined as total deposits less time deposits greater than $250,000.
​
(4)
Core deposits defined as total deposits less time deposits greater than $100,000.
​
(5)
Based on Fidelity’s closing stock price of  $21.42 as of December 14, 2018.
​
Stock Trading History
Sandler O’Neill reviewed the historical stock price performance of Fidelity common stock for the one-year period ended and the three-year period ended December 14, 2018. Sandler O’Neill then compared the relationship between the stock price performance of Fidelity’s shares to movements in the Fidelity Peer Group (as described below) as well as certain stock indices.
69
TABLE OF CONTENTS
Fidelity One-Year Stock Price Performance
​​​December 14,
2017		​​December 14,
2018		​
Fidelity​​​​100%​​​​​100.1%​​
Fidelity Peer Group​​​​100%​​​​​92.7%​​
NASDAQ Bank Index​​​​100%​​​​​85.5%​​
S&P 500 Index​​​​100%​​​​​98.0%​​
Fidelity Three-Year Stock Price Performance
​​​December 14,
2015		​​December 14,
2018		​
Fidelity​​​​100%​​​​​98.3%​​
Fidelity Peer Group​​​​100%​​​​​152.7%​​
NASDAQ Bank Index​​​​100%​​​​​119.6%​​
S&P 500 Index​​​​100%​​​​​128.6%​​
Sandler O’Neill also reviewed the historical stock price performance of Ameris common stock for the one-year period ended and three-year period ended December 14, 2018. Sandler O’Neill then compared the relationship between the stock price performance of Ameris’ shares to movements in the Ameris Peer Group (as described below) as well as certain stock indices.
Ameris One-Year Stock Price Performance
​​​December 14,
2017		​​December 14,
2018		​
Ameris​​​​100%​​​​​73.4%​​
Ameris Peer Group​​​​100%​​​​​84.1%​​
NASDAQ Bank Index​​​​100%​​​​​85.5%​​
S&P 500 Index​​​​100%​​​​​98.0%​​
Ameris Stock Three-Year Stock Price Performance
​​​December 14,
2015		​​December 14,
2018		​
Ameris​​​​100%​​​​​101.4%​​
Ameris Peer Group​​​​100%​​​​​109.9%​​
NASDAQ Bank Index​​​​100%​​​​​119.6%​​
S&P 500 Index​​​​100%​​​​​128.6%​​
Comparable Company Analyses
Sandler O’Neill used publicly available information to compare selected financial information for Fidelity with a group of financial institutions selected by Sandler O’Neill (which we refer to as the “Fidelity Peer Group”). The Fidelity Peer Group consisted of major exchange traded banks and thrifts headquartered in the Southeast region with total assets between $2.0 billion and $10.0 billion and nonperforming assets/​total assets less than 2.00%, excluding announced merger targets. The Fidelity Peer Group consisted of the following companies:
70
TABLE OF CONTENTS
​ServisFirst Bancshares, Inc.​​HomeTrust Bancshares, Inc.​
​Seacoast Banking Corporation of Florida​​Atlantic Capital Bancshares, Inc.​
​First Bancorp​​Capital City Bank Group, Inc.​
​FB Financial Corporation​​Southern National Bancorp of Virginia, Inc.​
​City Holding Company​​First Bancshares, Inc.​
​Franklin Financial Network, Inc.​​First Community Bankshares, Inc.​
​Carolina Financial Corporation​​SmartFinancial, Inc.​
The analysis compared publicly available financial information for Fidelity and the Fidelity Peer Group as of or for the twelve months ended September 30, 2018, or for the most recent quarter (“MRQ”), with pricing data as of December 14, 2018. The table below sets forth the data for Fidelity and the high, low, median and mean data for the Fidelity Peer Group.
​​​Fidelity​​Fidelity Peer
Group Median		​​Fidelity Peer
Group Mean		​​Fidelity Peer
Group High		​​Fidelity Peer
Group Low		​
Market Capitalization ($mm)​​​​584​​​​​501​​​​​729​​​​​1,788​​​​​251​​
Price/LTM Earnings per Share (x)​​​​12.6​​​​​16.6​​​​​19.3​​​​​48.1​​​​​12.0​​
Price/Year-to-Date Annualized Earnings per Share (x)​​​​12.9​​​​​14.5​​​​​16.8​​​​​45.8​​​​​9.6​​
Price/2018E Earnings per Share (x)​​​​15.3​​​​​14.1​​​​​14.7​​​​​21.0​​​​​10.4​​
Price/2019E Earnings per Share (x)​​​​14.2​​​​​12.2​​​​​12.8​​​​​15.9​​​​​10.6​​
Price/Tangible Book Value (%)​​​​142​​​​​191​​​​​185​​​​​268​​​​​118​​
Price/52-Week High (%)​​​​79.2​​​​​75.9​​​​​77.2​​​​​92.0​​​​​65.0​​
Dividend Payout (%)​​​​28.2​​​​​15.8​​​​​24.8​​​​​75.0​​​​​7.3​​
Total Assets ($mm)​​​​4,812​​​​​3,538​​​​​3,937​​​​​7,518​​​​​2,051​​
Loans/Deposits (%)​​​​91.5​​​​​90.2​​​​​91.2​​​​​117.4​​​​​74.5​​
Tangible Common Equity/Tangible Assets (%)​​​​8.76​​​​​9.55​​​​​9.70​​​​​11.72​​​​​7.80​​
Total Risk Based Capital Ratio (%)​​​​12.78​​​​​14.85​​​​​14.82​​​​​17.08​​​​​12.05​​
MRQ Return on Average Assets (%)​​​​1.06​​​​​1.21​​​​​1.29​​​​​1.90​​​​​0.84​​
MRQ Return on Average Equity (%)​​​​11.96​​​​​10.56​​​​​10.92​​​​​20.59​​​​​6.92​​
MRQ Net Interest Margin (%)​​​​3.48​​​​​3.82​​​​​3.84​​​​​4.75​​​​​2.73​​
MRQ Cost of Deposits (%)​​​​0.56​​​​​0.69​​​​​0.70​​​​​1.69​​​​​0.18​​
MRQ Efficiency Ratio (%)​​​​79.2​​​​​57.0​​​​​57.1​​​​​76.4​​​​​31.5​​
Non-performing Assets/Total Assets (%)(1)
​​​​1.03​​​​​0.62​​​​​0.72​​​​​1.43​​​​​0.15​​
Loan Loss Reserve/Loans (%)​​​​0.76​​​​​0.76​​​​​0.73​​​​​1.05​​​​​0.45​​
​
(1)
Nonperforming assets defined as nonaccrual loans and leases, renegotiated loans and leases and real estate owned.
​
Note: Excludes AMTB due to recent IPO and LOB due to nontraditional banking model.
Sandler O’Neill used publicly available information to perform a similar analysis for Ameris and a group of financial institutions selected by Sandler O’Neill (which we refer to as the “Ameris Peer Group”). The Ameris Peer Group consisted of major exchange traded banks and thrifts headquartered in the Southeast regions with total assets between $5.0 billion and $20.0 billion, excluding announced merger targets. The Ameris Peer Group consisted of the following companies.
​United Bankshares, Inc.​​WesBanco, Inc.​
​BancorpSouth Bank​​United Community Banks, Inc.​
​Simmons First National Corporation​​CenterState Bank Corporation​
​Home BancShares, Inc.​​TowneBank​
​South State Corporation​​ServisFirst Bancshares, Inc.​
​Trustmark Corporation​​Seacoast Banking Corporation of Florida​
​Union Bankshares Corporation​​First Bancorp​
​Renasant Corporation​​FB Financial Corporation​
71
TABLE OF CONTENTS
The analysis compared publicly available financial information for Ameris and the Ameris Peer Group as of or for the twelve months ended September 30, 2018, or for the MRQ, with pricing data as of December 14, 2018. The table below sets forth the data for Ameris and the high, low, median and mean data for the Ameris Peer Group.
​​​Ameris​​Ameris Peer
Group Median		​​Ameris Peer
Group Mean		​​Ameris Peer
Group High		​​Ameris Peer
Group Low		​
Market Capitalization ($mm)​​​​1,615​​​​​1,955​​​​​2,002​​​​​3,262​​​​​1,003​​
Price/LTM Earnings per Share (x)​​​​16.6​​​​​15.4​​​​​14.9​​​​​19.5​​​​​11.6​​
Price/Year-to-Date Annualized Earnings per Share (x)​​​​13.8​​​​​13.0​​​​​12.8​​​​​18.5​​​​​9.6​​
Price/2018E Earnings per Share (x)​​​​11.0​​​​​12.7​​​​​12.6​​​​​17.5​​​​​10.0​​
Price/2019E Earnings per Share (x)​​​​8.5​​​​​12.0​​​​​11.7​​​​​13.9​​​​​9.5​​
Price/Tangible Book Value (%)​​​​191​​​​​187​​​​​195​​​​​268​​​​​163​​
Price/52-Week High (%)​​​​57.6​​​​​74.6​​​​​72.6​​​​​79.9​​​​​62.4​​
Dividend Payout (%)​​​​19.5​​​​​34.0​​​​​35.1​​​​​67.7​​​​​7.3​​
Total Assets ($mm)​​​​11,429​​​​​12,673​​​​​12,146​​​​​19,188​​​​​5,058​​
Loans/Deposits (%)​​​​92.9​​​​​92.9​​​​​91.2​​​​​101.6​​​​​80.4​​
Tangible Common Equity/Tangible Assets (%)​​​​7.77​​​​​9.07​​​​​9.18​​​​​10.17​​​​​8.11​​
Total Risk Based Capital Ratio (%)​​​​11.78​​​​​13.74​​​​​13.82​​​​​15.73​​​​​12.05​​
MRQ Return on Average Assets (%)​​​​1.48​​​​​1.38​​​​​1.42​​​​​2.16​​​​​1.08​​
MRQ Return on Average Equity (%)​​​​11.88​​​​​9.61​​​​​10.74​​​​​20.59​​​​​7.46​​
MRQ Net Interest Margin (%)​​​​3.95​​​​​3.91​​​​​3.96​​​​​4.75​​​​​3.53​​
MRQ Cost of Deposits (%)​​​​0.70​​​​​0.57​​​​​0.60​​​​​0.96​​​​​0.35​​
MRQ Efficiency Ratio (%)​​​​51.9​​​​​55.4​​​​​54.4​​​​​65.4​​​​​31.5​​
Non-performing Assets/Total Assets (%)(1)
​​​​0.86​​​​​0.45​​​​​0.50​​​​​0.79​​​​​0.28​​
Loan Loss Reserve/Loans (%)​​​​0.32​​​​​0.62​​​​​0.69​​​​​1.05​​​​​0.44​​
​
(1)
Nonperforming assets defined as nonaccrual loans and leases, renegotiated loans and leases and real estate owned.
​
Note: Excludes AMTB due to recent IPO.
Analysis of Selected Merger Transactions
Sandler O’Neill reviewed a group of recent merger and acquisition transactions consisting of bank and thrift transactions where targets were headquartered in the Southeast region, announced between January 1, 2017 and December 14, 2018 with disclosed deal values and target total assets between $2.0 billion and $10.0 billion (which we refer to as the “Regional Precedent Transactions”).
The Regional Precedent Transactions group was composed of the following transactions:
Buyer​​Target​
CenterState Bank Corporation​​National Commerce Corporation​
Union Bankshares Corporation​​Access National Corporation​
Cadence Bancorporation​​State Bank Financial Corporation​
Renasant Corporation​​Brand Group Holdings, Inc.​
Banco de Credito e Inversiones SA​​TotalBank​
Arvest Bank Group, Inc.​​Bear State Financial, Inc.​
Valley National Bancorp​​USAmeriBancorp, Inc.​
Union Bankshares Corporation​​Xenith Bankshares, Inc.​
Sandy Spring Bancorp, Inc.​​WashingtonFirst Bankshares, Inc.​
South State Corporation​​Park Sterling Corporation​
Home BancShares, Inc.​​Stonegate Bank​
IBERIABANK Corporation​​Sabadell United Bank, N.A.​
Pinnacle Financial Partners, Inc.​​BNC Bancorp​
Using the latest publicly available information prior to the announcement of the relevant transaction, Sandler O’Neill reviewed the following transaction metrics: transaction price to last twelve months
72
TABLE OF CONTENTS
earnings, transaction price to forward earnings, transaction price to book value, transaction price to tangible book value, core deposit premium and one-day market premium. Sandler O’Neill compared the indicated transaction multiples for the merger to the high, low, mean and median multiples of the Regional Precedent Transactions group.
​​​Fidelity/​
Ameris		​​Regional
Precedent
Transactions
Median		​​Regional
Precedent
Transactions
Mean		​​Regional
Precedent
Transactions
High		​​Regional
Precedent
Transactions
Low		​
Transaction Price/LTM Earnings (x)​​​​16.2​​​​​22.6​​​​​23.1​​​​​40.0​​​​​10.1​​
Transaction Price/Forward
Earnings (x)		​​​​19.2​​​​​18.8​​​​​20.0​​​​​27.5​​​​​15.7​​
Transaction Price/Book Value (%)​​​​174​​​​​189​​​​​181​​​​​248​​​​​106​​
Transaction Price/Tangible Book
Value (%)		​​​​178​​​​​245​​​​​229​​​​​271​​​​​156​​
Core Deposit Premium (%)​​​​8.9(2)/8.5(1)​​​​​15.7​​​​​15.8​​​​​22.1​​​​​9.2​​
1-Day Market Premium (%)​​​​27.1​​​​​8.0​​​​​14.4​​​​​60.9​​​​​2.1​​
​
(1)
Core deposits defined as total deposits less time deposits greater than $250,000.
​
(2)
Core deposits defined as total deposits less time deposits greater than $100,000.
​
Sandler O’Neill also reviewed a nationwide group of recent merger and acquisition transactions consisting of bank and thrift transactions announced between January 1, 2017 and December 14, 2018 with disclosed deal values and target total assets between $2.0 billion and $10.0 billion (which we refer to as the “Nationwide Precedent Transactions”). The Nationwide Precedent Transactions group was composed of the following transactions:
Buyer​​Target​
People’s United Financial, Inc.​​BSB Bancorp, Inc.​
CenterState Bank Corporation​​National Commerce Corporation​
Union Bankshares Corporation​​Access National Corporation​
Independent Bank Corp.​​Blue Hills Bancorp, Inc.​
PacWest Bancorp​​El Dorado Savings Bank, F.S.B.​
WSFS Financial Corporation​​Beneficial Bancorp, Inc.​
Veritex Holdings, Inc.​​Green Bancorp, Inc.​
People’s United Financial, Inc.​​First Connecticut Bancorp, Inc.​
BOK Financial Corporation​​CoBiz Financial Inc.​
Independent Bank Group, Inc.​​Guaranty Bancorp​
Cadence Bancorporation​​State Bank Financial Corporation​
Renasant Corporation​​Brand Group Holdings, Inc.​
CVB Financial Corp.​​Community Bank​
Pacific Premier Bancorp, Inc.​​Grandpoint Capital, Inc.​
Banco de Credito e Inversiones SA​​TotalBank​
Arvest Bank Group, Inc.​​Bear State Financial, Inc.​
Old National Bancorp​​Anchor Bancorp, Inc.​
Valley National Bancorp​​USAmeriBancorp, Inc.​
First Financial Bancorp.​​MainSource Financial Group, Inc.​
Associated Banc-Corp​​Bank Mutual Corporation​
OceanFirst Financial Corp.​​Sun Bancorp, Inc.​
73
TABLE OF CONTENTS
Buyer​​Target​
Union Bankshares Corporation​​Xenith Bankshares, Inc.​
Berkshire Hills Bancorp, Inc.​​Commerce Bancshares Corp.​
Sandy Spring Bancorp, Inc.​​WashingtonFirst Bankshares, Inc.​
South State Corporation​​Park Sterling Corporation​
PacWest Bancorp​​CU Bancorp​
Home BancShares, Inc.​​Stonegate Bank​
IBERIABANK Corporation​​Sabadell United Bank, N.A.​
Simmons First National Corporation​​First Texas BHC, Inc.​
Pinnacle Financial Partners, Inc.​​BNC Bancorp​
Columbia Banking System, Inc.​​Pacific Continental Corporation​
Using the latest publicly available information prior to the announcement of the relevant transaction, Sandler O’Neill reviewed the following transaction metrics: transaction price to last twelve months earnings, transaction price to forward earnings, transaction price to book value, transaction price to tangible book value, core deposit premium and one-day market premium. Sandler O’Neill compared the indicated transaction multiples for the merger to the high, low, mean and median multiples of the Nationwide Precedent Transactions group.
​​​Fidelity/​
Ameris		​​Nationwide
Precedent
Transactions
Median		​​Nationwide
Precedent
Transactions
Mean		​​Nationwide
Precedent
Transactions
High		​​Nationwide
Precedent
Transactions
Low		​
Transaction Price/LTM Earnings (x)​​​​16.2​​​​​24.2​​​​​24.6​​​​​53.0​​​​​7.8​​
Transaction Price/Forward Earnings (x)​​​​19.2​​​​​19.4​​​​​23.3​​​​​63.2​​​​​15.2​​
Transaction Price/Book Value (%)​​​​174​​​​​189​​​​​189​​​​​288​​​​​106​​
Transaction Price/Tangible Book
Value (%)		​​​​178​​​​​241​​​​​227​​​​​325​​​​​138​​
Core Deposit Premium (%)​​​​8.9(2)/8.5(1)​​​​​16.0​​​​​15.6​​​​​24.1​​​​​3.0​​
1-Day Market Premium/(Discount) (%)​​​​27.1​​​​​11.9​​​​​15.1​​​​​60.9​​​​​(7.1)​​
​
(1)
Core deposits defined as total deposits less time deposits greater than $250,000.
​
(2)
Core deposits defined as total deposits less time deposits greater than $100,000.
​
Sandler O’Neill then reviewed a subset of the Nationwide Precedent Group that were pending as of December 14, 2018 (which we refer to as the “Pending Precedent Transactions”). The Pending Precedent Transactions group was composed of the following transactions:
Buyer​​Target​
People’s United Financial, Inc.​​BSB Bancorp, Inc.​
CenterState Bank Corporation​​National Commerce Corporation​
Union Bankshares Corporation​​Access National Corporation​
Independent Bank Corp.​​Blue Hills Bancorp, Inc.​
PacWest Bancorp​​El Dorado Savings Bank, F.S.B.​
WSFS Financial Corporation​​Beneficial Bancorp, Inc.​
Veritex Holdings, Inc.​​Green Bancorp, Inc.​
Independent Bank Group, Inc.​​Guaranty Bancorp​
Cadence Bancorporation​​State Bank Financial Corporation​
Using the latest publicly available information prior to the announcement of the relevant transaction, with transaction pricing adjusted to represent public buyer stock prices as of December 14, 2018, Sandler O’Neill reviewed the following transaction metrics: transaction price to last twelve months earnings,
74
TABLE OF CONTENTS
transaction price to forward earnings, transaction price to tangible book value and core deposit premium. Sandler O’Neill compared the indicated transaction multiples for the merger to the high, low, mean and median multiples of the Pending Precedent Transactions group, as adjusted for market pricing as of December 14, 2018.
​​​Fidelity/​
Ameris		​​Pending
Precedent
Transactions
Median		​​Pending
Precedent
Transactions
Mean		​​Pending
Precedent
Transactions
High		​​Pending
Precedent
Transactions
Low		​
Transaction Price/LTM Earnings (x)​​​​16.2​​​​​16.9​​​​​20.8​​​​​40.0​​​​​14.0​​
Transaction Price/Forward Earnings (x)​​​​19.2​​​​​13.3​​​​​15.0​​​​​25.1​​​​​9.8​​
Transaction Price/Tangible Book Value (%)​​​​178​​​​​157​​​​​165​​​​​194​​​​​134​​
Core Deposit Premium (%)​​​​8.9(2)/8.5(1)​​​​​10.3​​​​​8.9​​​​​11.4​​​​​5.2​​
​
(1)
Core deposits defined as total deposits less time deposits greater than $250,000.
​
(2)
Core deposits defined as total deposits less time deposits greater than $100,000.
​
Net Present Value Analyses
Sandler O’Neill performed an analysis that estimated the per share net present value of Fidelity common stock assuming Fidelity performed in accordance with publicly available consensus mean analyst earnings per share and dividends per share estimates for Fidelity for the years ending December 31, 2018 and December 31, 2019, as well as a long-term earnings growth rate and dividends per share for the years thereafter, as provided by the senior management of Fidelity. To approximate the terminal value per share of Fidelity common stock at December 31, 2022, Sandler O’Neill applied price to 2022 earnings per share multiples ranging from 13.0x to 18.0x and price to December 31, 2022 tangible book value per share multiples ranging from 130% to 205%. The terminal values were then discounted to present values using different discount rates ranging from 9.5% to 13.5% which were chosen to reflect different assumptions regarding required rates of return of holders or prospective buyers of Fidelity common stock. As illustrated in the following tables, the analysis indicated an imputed range of per share values of Fidelity common stock of  $17.79 to $27.79 when applying multiples of earnings and $17.63 to $31.08 when applying multiples of tangible book value.
Earnings Per Share Multiples
Discount Rate​​13.0x​​14.0x​​15.0x​​16.0x​​17.0x​​18.0x​
9.5%​​​$20.60​​​​$22.03​​​​$23.47​​​​$24.91​​​​$26.35​​​​$27.79​​
10.5%​​​$19.84​​​​$21.23​​​​$22.61​​​​$23.99​​​​$25.38​​​​$26.76​​
11.5%​​​$19.13​​​​$20.46​​​​$21.79​​​​$23.12​​​​$24.45​​​​$25.78​​
12.5%​​​$18.44​​​​$19.72​​​​$21.00​​​​$22.29​​​​$23.57​​​​$24.85​​
13.5%​​​$17.79​​​​$19.02​​​​$20.26​​​​$21.49​​​​$22.72​​​​$23.96​​
Tangible Book Value Per Share Multiples
Discount Rate​​130%​​145%​​160%​​175%​​190%​​205%​
9.5%​​​$20.41​​​​$22.54​​​​$24.68​​​​$26.81​​​​$28.95​​​​$31.08​​
10.5%​​​$19.67​​​​$21.72​​​​$23.77​​​​$25.82​​​​$27.88​​​​$29.93​​
11.5%​​​$18.95​​​​$20.93​​​​$22.91​​​​$24.88​​​​$26.86​​​​$28.83​​
12.5%​​​$18.28​​​​$20.18​​​​$22.08​​​​$23.98​​​​$25.88​​​​$27.79​​
13.5%​​​$17.63​​​​$19.46​​​​$21.29​​​​$23.12​​​​$24.96​​​​$26.79​​
Sandler O’Neill also considered and discussed with the Fidelity board of directors how this analysis would be affected by changes in the underlying assumptions, including variations with respect to net income. To illustrate this impact, Sandler O’Neill performed a similar analysis assuming Fidelity’s net
75
TABLE OF CONTENTS
income varied from 20% above estimates to 20% below estimates. This analysis resulted in the following range of values per Fidelity common share, applying the price to 2022 earnings per share multiples range of 13.0x to 18.0x referred to above and a discount rate of 11.64%.
Earnings Per Share Multiples
Annual Budget Variance​​13.0x​​14.0x​​15.0x​​16.0x​​17.0x​​18.0x​
(20.0%)​​​$15.59​​​​$16.65​​​​$17.71​​​​$18.77​​​​$19.83​​​​$20.89​​
(10.0%)​​​$17.31​​​​$18.50​​​​$19.69​​​​$20.89​​​​$22.08​​​​$23.27​​
0.0%​​​$19.03​​​​$20.36​​​​$21.68​​​​$23.01​​​​$24.33​​​​$25.65​​
10.0%​​​$20.75​​​​$22.21​​​​$23.67​​​​$25.12​​​​$26.58​​​​$28.04​​
20.0%​​​$22.48​​​​$24.07​​​​$25.65​​​​$27.24​​​​$28.83​​​​$30.42​​
Sandler O’Neill also performed an analysis that estimated the net present value per share of Ameris common stock assuming that Ameris performed in accordance with publicly available consensus mean analyst earnings per share estimates for the years ending December 31, 2018 and December 31, 2019, as confirmed by the senior management of Ameris, as well as an estimated long-term earnings per share growth rate for the years thereafter and estimated dividends per share for the years ending December 31, 2018 through December 31, 2022, as provided by the senior management of Ameris. To approximate the per share terminal value of Ameris common stock at December 31, 2022, Sandler O’Neill applied price to 2022 earnings per share multiples ranging from 10.0x to 15.0x and price to December 31, 2022 tangible book value per share multiples ranging from 180% to 230%. The terminal values were then discounted to present values using different discount rates ranging from 9.0% to 13.0% chosen to reflect different assumptions regarding required rates of return of holders or prospective buyers of Ameris common stock. As illustrated in the following tables, the analysis indicated an imputed range of values per share of Ameris common stock of  $34.94 to $60.26 when applying multiples of earnings per share and $41.24 to $60.92 when applying multiples of tangible book value per share.
Earnings Per Share Multiples
Discount Rate​​10.0x​​11.0x​​12.0x​​13.0x​​14.0x​​15.0x​
9.0%​​​$40.63​​​​$44.55​​​​$48.48​​​​$52.41​​​​$56.33​​​​$60.26​​
10.0%​​​$39.10​​​​$42.88​​​​$46.66​​​​$50.43​​​​$54.21​​​​$57.99​​
11.0%​​​$37.65​​​​$41.28​​​​$44.92​​​​$48.55​​​​$52.18​​​​$55.82​​
12.0%​​​$36.26​​​​$39.76​​​​$43.26​​​​$46.76​​​​$50.25​​​​$53.75​​
13.0%​​​$34.94​​​​$38.30​​​​$41.67​​​​$45.04​​​​$48.41​​​​$51.78​​
Tangible Book Value Per Share Multiples
Discount Rate​​180%​​190%​​200%​​210%​​220%​​230%​
9.0%​​​$47.97​​​​$50.56​​​​$53.15​​​​$55.74​​​​$58.33​​​​$60.92​​
10.0%​​​$46.17​​​​$48.66​​​​$51.15​​​​$53.64​​​​$56.13​​​​$58.62​​
11.0%​​​$44.45​​​​$46.84​​​​$49.24​​​​$51.64​​​​$54.03​​​​$56.43​​
12.0%​​​$42.81​​​​$45.11​​​​$47.42​​​​$49.73​​​​$52.03​​​​$54.34​​
13.0%​​​$41.24​​​​$43.46​​​​$45.68​​​​$47.90​​​​$50.12​​​​$52.35​​
Sandler O’Neill also considered and discussed with the Fidelity board of directors how this analysis would be affected by changes in the underlying assumptions, including variations with respect to net income. To illustrate this impact, Sandler O’Neill performed a similar analysis assuming Ameris’ net income varied from 20% above estimates to 20% below estimates. This analysis resulted in the following range of per share values for Ameris shares, applying the price to 2022 earnings per share multiples range of 10.0x to 15.0x referred to above and a discount rate of 10.75%.
76
TABLE OF CONTENTS
Earnings Per Share Multiples
Annual Budget Variance​​10.0x​​11.0x​​12.0x​​13.0x​​14.0x​​15.0x​
(20.0%)​​​$30.66​​​​$33.60​​​​$36.54​​​​$39.47​​​​$42.41​​​​$45.34​​
(10.0%)​​​$34.33​​​​$37.64​​​​$40.94​​​​$44.24​​​​$47.54​​​​$50.85​​
0.0%​​​$38.00​​​​$41.67​​​​$45.34​​​​$49.01​​​​$52.68​​​​$56.35​​
10.0%​​​$41.67​​​​$45.71​​​​$49.75​​​​$53.78​​​​$57.82​​​​$61.86​​
20.0%​​​$45.34​​​​$49.75​​​​$54.15​​​​$58.55​​​​$62.96​​​​$67.36​​
Sandler O’Neill noted that the net present value analysis is a widely used valuation methodology, but the results of such methodology are highly dependent upon the numerous assumptions that must be made, and the results thereof are not necessarily indicative of actual values or future results.
Pro Forma Merger Analysis
Sandler O’Neill analyzed certain potential pro forma effects of the merger, assuming the merger closes at the end of the second calendar quarter of 2019. In performing this analysis, Sandler O’Neill utilized certain assumptions relating to purchase accounting adjustments, cost savings and transaction expenses, as provided by the 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 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 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; dilutive to Ameris’ estimated tangible book value per share at closing, December 31, 2019 and December 31, 2020 and accretive to Ameris’ estimated tangible book value per share at December 31, 2021 and December 31, 2022.
In connection with this analysis, Sandler O’Neill considered and discussed with the Fidelity board of directors how the analysis would be affected by changes in the underlying assumptions, including the impact of final purchase accounting adjustments determined at the closing of the transaction, and noted that the actual results achieved by the combined company may vary from projected results and the variations may be material.
Sandler O’Neill’s Relationship
Sandler O’Neill acted as financial advisor to Fidelity in connection with the proposed merger. HovdeFidelity has agreed to pay Sandler O’Neill a transaction fee in an amount equal to 0.80% of the aggregate merger consideration, which transaction fee is contingent upon the closing of the merger. At the time of announcement, based on Ameris’ closing price of  $34.02 as of December 14, 2018, Sandler O’Neill’s transaction fee was approximately $6.0 million. Sandler O’Neill also received a $250,000 fee upon rendering its fairness opinion to the Fidelity board of directors, which opinion fee will be credited in full towards the transaction fee which will become payable to Sandler O’Neill on the day of closing of the merger. Fidelity has also agreed to indemnify Sandler O’Neill against certain claims and liabilities arising out of its engagement and to reimburse Sandler O’Neill for certain of its out-of-pocket expenses incurred in connection with its engagement.
Sandler O’Neill did not provide any other investment banking services to Fidelity in the two years preceding the date of its opinion. As the Fidelity board of directors are aware, in the two years preceding the date of its opinion, Sandler O’Neill provided certain investment banking services to Ameris and received fees for such services. Most recently, Sandler O’Neill acted as co-manager in connection with Ameris’ subordinated notes offering, which transaction closed in March 2017. In addition, in the ordinary course of Sandler O’Neill’s business as a broker-dealer, Sandler O’Neill may purchase securities from and sell securities to Fidelity, Ameris and their respective affiliates. Sandler O’Neill may also actively trade the equity and debt securities of Fidelity, Ameris and their respective affiliates for its own account and for the accounts of its customers.
77
TABLE OF CONTENTS​
Opinion of FIG Partners, LLC
FIG Partners was engaged by the Fidelity board of directors by letter dated December 13, 2018 to act as financial advisor and to render a fairness opinion to the Fidelity board of directors in connection with a potential business combination with Ameris. FIG Partners delivered to the Fidelity board of directors its written opinion dated December 17, 2018 that, based upon and subject to the various considerations set forth in its written opinion, the merger consideration to be paid to the Fidelity shareholders is fair to the Fidelity shareholders from a financial point of view. In requesting FIG Partners’ advice and opinion, no limitations were imposed by Fidelity with respect to the investigations made or procedures followed by it in rendering its opinion. The full text of the opinion of FIG Partners, which describes the procedures followed, assumptions made, matters considered and limitations on the review undertaken, are attached to this joint proxy statement/prospectus as Annex D. Fidelity shareholders should read the opinion in its entirety. FIG Partners’ opinion speaks only as of December 17, 2018, the date of the opinion.
FIG Partners is a nationally recognized investment banking firm with substantial experience in transactions similar to the merger and, is familiar with Atlantic and its operations. Asas part of its investment banking business, Hovde is continually engaged in the valuation of businesses and their securitiesit values financial institutions in connection with among other things, mergers and acquisitions. Hovdeacquisitions, private placements and for other purposes. As a specialist in securities of financial institutions, FIG Partners has experience in, and knowledge of, banks, thrifts and their respectivebank and thrift holding companies. The Fidelity board of directors of Atlantic selected HovdeFIG Partners to act as its financial advisor in connection with the merger on the basis of the firm’s reputation and expertise in merger transactions.transactions such as the merger.
Hovde reviewed the financial aspectsFIG Partners received a fee of  the proposed merger with the board$265,000 from Fidelity upon delivery of directors of Atlantic and, on November 15, 2017, delivered aits written opinion to the Fidelity board of directors of Atlantic that the merger consideration to be received by the Atlantic stockholders in connection with the merger is fairas to the Atlantic stockholdersfairness, from a financial point of view. In requesting Hovde’s advice and opinion, no limitations were imposed by Atlantic upon Hovde with respect to the investigations made or procedures followed by it in rendering its opinion. Hovde’s opinion was directed to the board of directors of Atlantic and addresses only the fairnessview, of the merger consideration to be paidFidelity shareholders as compensation for its services. Further, Fidelity has agreed to Atlantic stockholders in connection with the merger. Hovde did not opine onindemnify FIG Partners against any individual stock, cashclaims or other componentsliabilities arising out of consideration payable in connection with the merger. Hovde’s opinion does not address the underlying business decision to proceed with the merger and does not constitute a recommendation to any of the Atlantic stockholders as to how such stockholder should vote at any meetings of Atlantic stockholders on the merger or any related matter. Other than as specifically set forth in the opinion, Hovde does not express any opinion with respect to the terms and provisions of the Agreement or the enforceability of any such terms or provisions.
FIG Partners’ engagement by Fidelity. As part of its engagement, Hovde has received from Atlantic and Atlantic Coast Bank a fairness opinion fee upon the delivery of the fairness opinion to the board of directors of Atlantic. Additionally, Hovde will receive a completion fee that is contingent upon the consummation of the merger. The opinion fee will be credited in full towards the portion of the completion fee which will become payable to Hovde
41
TABLE OF CONTENTS
upon the consummation of the merger. In addition to Hovde’s fees, and regardless of whether the merger is consummated, Atlantic and Atlantic Coast Bank have agreed to reimburse Hovde for certain of its reasonable out-of-pocket expenses. Atlantic and Atlantic Coast Bank have also agreed to indemnify Hovde and its affiliates for certain liabilities that may arise out of the engagement. In the past two years, Hovde has not provided investment banking or financial advisory services to Atlantic. Duringbusiness, FIG Partners is routinely engaged in the past three years preceding the datevaluation of its opinion, Hovde has provided investment banking services to,businesses and received fees from, two bankstheir securities in connection with their respective sales to Ameris. Duringmergers and acquisitions, negotiated underwritings, competitive bidding, secondary distributions of listed and unlisted securities, private placements and valuations for estate, corporate and other purposes. As specialists in the past two years precedingsecurities of banking companies, FIG Partners has experience and knowledge of, the datevaluation of itsbanking institutions. FIG Partners’ opinion Hovdehas been reviewed by FIG Partners’ compliance officer and fairness committee consistent and with internal policy. FIG Partners has not provided any investment bankinghad a material relationship with or financial advisory services to Ameris. Hovde or its affiliates may presently or in the future seek or receivereceived compensation from Ameris in connection with future transactions, or in connection with potential advisory services and corporate transactions, although to Hovde’s knowledge none are expected at this time. In the ordinary course of its business as a broker/dealer, Hovde may from time to time purchase securities from, and sell securities to, AtlanticFidelity or Ameris or their affiliates, and as a market maker in securities, Hovde may from time to time have a long or short position in, and buy or sell, debt or equity securities of Atlantic or Ameris for its own accounts and for the accounts of its customers. Except for the foregoing, during the pastprior two years there have not been, and there currently are no mutual understandings contemplating in the future, any material relationships between Hovde and Atlantic or Ameris.
Pursuant and subject to the terms of the Agreement, at the effective time, each share of Atlantic common stock issued and outstanding immediately prior to the effective time (other than treasury stock and certain shares which are cancelled in accordance with the terms of the Agreement and as discussed under “The Merger Agreement — The Merger Consideration”), shall be converted, in accordance with the terms of the Agreement, into the right to receive the following consideration: (i) an amount of cash equal to $1.39, without interest; and (ii) 0.17 validly issued, fully paid and nonassessable shares of Ameris common stock, together with cash in lieu of any fractional shares in accordance with the Agreement.
Pursuant to the Agreement, each Atlantic stock option, whether vested or unvested, that is outstanding as of immediately prior to the effective time, shall become fully vested and shall be cancelled and converted automatically into the right to receive a cash payment from Ameris or Ameris Bank in an amount equal to the product of: (i) the excess, if any, of the merger consideration price over the exercise price of each such Atlantic stock option; and (ii) the number of shares of Atlantic common stock subject to such Atlantic stock option to the extent not previously exercised. After the effective time, any such cancelled Atlantic stock option shall no longer be exercisable by the former holder thereof, but shall only entitle the holder to the cash-out amount, without interest. In the event the exercise price per share of Atlantic common stock subject to an Atlantic stock option is equal to or greater than the merger consideration price, such Atlantic stock option shall be cancelled without consideration and have no further force or effect. Atlantic advised Hovde to assume for purposes of the opinion that there are 20,776 Atlantic stock options outstanding with a weighted average exercise price of  $14.95 per share as of November 13, 2017, and therefore, with Atlantic’s consent, Hovde assumed for purposes of the opinion that all such outstanding options will be canceled and not entitled to receive the merger consideration price.
Further, at the effective time, each Atlantic restricted share award granted pursuant to Atlantic’s equity-based compensation plans, whether vested or unvested, that is outstanding as of immediately prior to the effective time, shall become fully vested and shall be converted automatically into the right to receive the merger consideration in respect of each share of Atlantic common stock underlying such Atlantic restricted share award. Atlantic advised Hovde to assume for purposes of the opinion that there are 63,475 unallocated shares of Atlantic restricted stock outstanding held by the Atlantic ESOP as of November 13, 2017, all of which will be cancelled for the repayment of the Atlantic ESOP Loan (as provided in the Agreement and discussed under “The Merger Agreement — The Atlantic ESOP”). Accordingly, Atlantic advised Hovde that there are a total of 15,490,234 shares of Atlantic common stock outstanding as of November 13, 2017, eligible to receive the merger consideration price, and therefore, based upon the closing price of Ameris common stock as of November 13, 2017, of  $46.75, Hovde assumed for purposes of the opinion that the aggregate merger consideration payable by Ameris to the holders of Atlantic common stock is $144,640,060.
Pursuant to Section 7.8 of the Agreement, in the event that the average Ameris stock price (as defined in the Agreement and discussed under “The Merger Agreement — Termination; Merger Consideration Adjustments”) declines at any time during the determination period, the Agreement may be terminated by
42
TABLE OF CONTENTS
Atlantic or, alternatively, either: (i) the exchange ratio may be increased by Ameris; or (ii) Ameris may pay as part of the merger consideration additional cash consideration, provided that the additional cash consideration complies with the provisions for such additional cash consideration set forth in the Agreement and discussed under “The Merger Agreement — Termination; Merger Consideration Adjustments.” However, Atlantic advised Hovde to assume for purposes of the opinion that the provisions of Section 7.8 will not be triggered and that the exchange ratio, the per share purchase price, the merger consideration price and the aggregate merger consideration will not be adjusted and will remain as set forth above.
Hovde’s opinion addresses only the fairness of the merger consideration to be paid in connection with the merger and does not address any individual stock, cash, option or other components of the consideration.years.
The following is a summary of the analyses performed and matters considered by HovdeFIG Partners in connection with its fairness opinion. Certain analyses were confirmed in a presentation to the Fidelity board of directors by FIG Partners on December 16, 2018. The summary set forth below does not purport to be a complete description of either the analyses performed by HovdeFIG Partners in rendering its opinion or the presentation delivered by FIG Partners to the Fidelity board of directors, but it does summarize all of the material analyses performed and presented by Hovde.FIG Partners.
The preparation of a fairness opinion involves various determinations as to the most appropriate and relevant methods of financial analyses and the application of those methods to the particular circumstances. In arriving at its opinion, FIG Partners did not attribute any particular weight to any analysis or factor considered by it, but rather made qualitative judgments as to the significance and relevance of each analysis and factor. FIG Partners may have given various analyses more or less weight than other analyses. Accordingly, FIG Partners believes that its analyses and the following summary must be considered as a whole and that selecting portions of its analyses, without considering all factors, could create an incomplete view of the process underlying the analyses set forth in its report to the Fidelity board of directors and its fairness opinion.
In performing its analyses, FIG Partners made numerous assumptions with respect to industry performance, general business and economic conditions and other matters, many of which are beyond the control of Fidelity or Ameris. The analyses performed by FIG Partners are not necessarily indicative of actual value or actual future results, which may be significantly more or less favorable than suggested by such analyses. Such analyses were prepared solely as part of FIG Partners’ analysis of the fairness of the merger consideration, from a financial point of view, to Fidelity shareholders. The analyses do not purport to be an appraisal or to reflect the prices at which a company might actually be sold or the prices at which
78
TABLE OF CONTENTS
any securities may trade at the present time or at any time in the future. FIG Partners’ opinion does not address the relative merits of the merger as compared to any other business combination in which Fidelity might engage. In addition, as described above, FIG Partners’ opinion was one of many factors taken into consideration by the Fidelity board of directors in making its determination to approve the merger agreement.
During the course of its engagement and as a basis for the purpose of renderingarriving at its opinion, Hovde:FIG Partners reviewed and analyzed material bearing upon financial and operating conditions of Fidelity and Ameris and material prepared in connection with the merger, including, among other things, the following:
•(i)
reviewed a draft of the Agreement;merger agreement;
​
•
reviewed unaudited financial statements for Atlantic and Ameris as of September 30, 2017;
​
•
reviewed certain historical annual reports of each of Atlantic and Ameris, including audited annual reports for the year ended December 31, 2016;
​
•(ii)
reviewed certain historical, publicly available business and financial information concerning each of AtlanticFidelity and Ameris;Ameris including, among other things, quarterly and annual reports filed by the parties with the SEC;
​
•(iii)
reviewed certain internal financial statements and other financial and operating data concerning Atlantic;
​
•
reviewed financial projections prepared by certainheld discussions with members or representatives of the senior management of Atlantic over a forward looking six-year period beginning withFidelity for the year ending December 31, 2017, and ending with the year ending December 31, 2022;
​
•
discussed with certain memberspurpose of senior management of Atlantic and Ameris the business, financial condition, results of operations andreviewing future prospects of each entity; the historypotential pro forma institution related to the respective businesses, earnings, assets, liabilities and pastthe amount of and current operationstiming of Atlantic and Ameris; Atlantic’s and Ameris’ historical financial performance; and their assessmentcost savings expected to be achieved as a result of the rationale for the merger;
​
•
reviewed and analyzed materials detailing the merger prepared by Atlantic and Ameris and by their respective legal and financial advisors, including the estimated amount and timing of the cost savings and related expenses, purchase accounting adjustments and synergies expected to result from the merger (the “Synergies”);
​
•
analyzed the pro forma financial impact of the merger on the combined company’s earnings, tangible book value, financial ratios and other such metrics Hovde deemed relevant, giving effect to the merger based on assumptions relating to the Synergies;
​
•
reviewed publicly available consensus mean analyst earnings per share estimates for Ameris for the years ending December 31, 2017, December 31, 2018 and December 31, 2019;
​
•
assessed current general economic, market and financial conditions;
​
•(iv)
reviewed the terms of recent merger acquisition and control investmentacquisition transactions, to the extent publicly available, involving financial institutionsbanks, thrifts and financial institutionbank and thrift holding companies that werewe considered relevant;
​
•(v)
took into consideration Hovde’s experience inreviewed the current and historical financial results of Fidelity and Ameris;
​
(vi)
performed a comparison of certain Fidelity and Ameris operating and trading information with other similar transactions and securities valuations as well as our knowledge of the banking and financial services industry;
​
publicly traded companies;
​
43
TABLE OF CONTENTS
•(vii)
reviewed historical market pricespublicly-available consensus earnings estimates for Fidelity and trading volumes of the Ameris common stock;
​
•
reviewed publicly available financial and stock market data relatingassumed long term growth rates provided to selected public companies that Hovde deemed relevant to its analysis;us by Fidelity and Ameris representatives; and
​
•(viii)
performed such other analyses and considered such other factors as Hovdewe have deemed appropriate.
​
Hovde assumed, without investigation, that there have been,FIG Partners also took into account its assessment of general economic, market and from the date of the opinion through the effective time, that there will be no material changesfinancial conditions and its experience in the financial condition and results of operations of Atlantic, Atlantic Coast Bank, Ameris or Ameris Bank since the date of the latest financial information described above. Hovde assumed, without independent verification, that the representationsother transactions as well as the financial and other information provided to Hovde by Atlantic and Ameris or included in the Agreement, which has formed a substantial basis for its opinion, are true and complete. Hovde relied upon the management of Atlantic and Ameris as to the reasonableness and achievabilityknowledge of the financial forecastsbanking industry and projections (and the assumptions and bases therein) provided to Hovde by Atlantic and Ameris, and Hovde assumed such forecasts and projections have been reasonably prepared by Atlantic and Ameris on a basis reflecting the best currently available information and Atlantic’s and Ameris’ judgments and estimates. Hovde assumed that such forecasts and projections would be realizedits general experience in the amounts and at the times contemplated thereby, and did not, in any respect, assume any responsibility for the accuracy or reasonableness thereof. Hovde has been authorized by Atlantic to rely upon such forecasts and projections and other information and data, including the projections, and Hovde expresses no view as to any such forecasts, projections or other forward-looking information or data, or the bases or assumptions on which they were prepared.securities valuation.
In performing its review, HovdeFIG Partners has assumed and relied upon, without independent verification, the accuracy and completeness of all of the financial and other information and representations that was contained in the financials and other materials available to Hovde from public sources, or that was provided to it by AtlanticFidelity and Ameris, or their respective representatives or that was otherwise reviewed by Hovde and assumed such accuracy and completeness for purposes of rendering their opinion. Hovderepresentatives. FIG Partners further relied on the assurances of the respective managementsmanagement of AtlanticFidelity and Ameris that they arewere not aware of any facts or circumstances that would make any of such information inaccurate or misleading. Hovde was
FIG Partners is not asked to and did not undertake an independent verification of any of such information, and does not assume any responsibility or liability for the accuracy or completeness thereof. Hovde assumed that each party to the Agreement would advise them promptly if any information previously provided to them became inaccurate or was required to be updated during the period of Hovde’s review.
Hovde is not expert in the evaluation of loan and lease portfolios for purposes of assessing the adequacy of the allowances for losses with respect thereto. Hovdethereto and have assumed that such allowances for Atlantic, Atlantic Coast Bank, AmerisFidelity and Ameris Bank are in the aggregate adequate to cover such losses, and will be adequate on a pro forma basis for the combined entity following the merger. Hovdelosses. FIG Partners was not requestedretained to make, and did not make,conduct a physical inspection of any of the properties or facilities of Fidelity and Ameris. In addition, FIG Partners has not reviewed individual credit files nor has it made an independent evaluation physical inspection or appraisal of the assets properties, facilities, orand liabilities (contingent or otherwise) of Atlantic, Atlantic Coast Bank, AmerisFidelity and Ameris Bank, the collateral securingor any such assets or liabilities, or the collectability of any such assets,their respective subsidiaries and HovdeFIG Partners was not furnished with any such evaluations or appraisals nor did Hovde review any loan or credit files of Atlantic, Atlantic Coast Bank, Ameris or Ameris Bank. Hovde did not conduct a review of any credit mark which may be taken in connection withappraisals.
In preparing its analyses, FIG Partners used publicly available consensus mean analyst earnings per share estimates for Fidelity for the merger nor has it evaluatedyears ending December 31, 2018, December 31, 2019 and December 31, 2020 as well as an estimated long-term earnings per share growth rate for the adequacy of any contemplated credit mark to be so taken.
Hovde’s opinion does not consider, include or address: (i) the legal, tax, accounting, or regulatory consequencesyears thereafter, as provided by representatives of the merger on Atlantic or its stockholders; (ii) any advice or opinionssenior management of Fidelity. Fidelity earnings were also adjusted for the impact of projected balance sheet repositioning (including indirect auto redeployment and proceeds from future MSR sales) as provided by any other advisor to the boardrepresentatives of directors of Atlantic; (iii) any other strategic alternatives that might be available to Atlantic; or (iv) whether Ameris has sufficient cash or other sources of funds to enable it to pay any consideration contemplated by the merger.
Hovde assumed that the merger will be consummated substantially in accordance with the terms set forth in the Agreement, without any waiver of material terms or conditions by Atlantic or any other party to the AgreementFidelity and that the final Merger Agreement will not differ materially from the draft Hovde reviewed. Hovde assumed that the merger will be consummated in compliance with all applicable laws and regulations. Atlantic has advised Hovde that Atlantic is not aware of any factors that would impede anyAmeris. Additionally. FIG Partners used publicly
4479
TABLE OF CONTENTS
necessary regulatoryavailable consensus mean analyst earnings per share estimates for Ameris for the years ending December 31, 2018, December 31, 2019 and December 31, 2020 as well as an estimated long-term earnings per share growth rate for the years thereafter, as provided by the representatives of senior management of Ameris.
FIG Partners also received and relied upon in its pro forma analyses assumptions relating to transaction costs, purchase accounting, cost savings, core deposit intangible assets, among other assumptions, as provided by representatives of Fidelity and Ameris. FIG Partners expressed no opinion as to such information or governmental approvalthe assumptions on which such information was based.
FIG Partners assumed that there had been no material change in the respective assets, financial condition, results of operations, business or prospects of Fidelity or Ameris since the date of the merger. Hovdemost recent financial data made available to FIG Partners. FIG Partners also assumed in all respects material to its analysis Fidelity and Ameris would remain as going concerns for all periods relevant to its analyses.
Summary of Proposed Merger Consideration and Implied Transaction Metrics
FIG Partners reviewed the financial terms of the proposed transaction. Based upon Ameris’s December 14, 2018 closing stock price of  $34.02, and based upon 27,371,942 shares of Fidelity common stock outstanding, FIG Partners calculated an aggregate implied transaction value of approximately $750.7 million, or a transaction price per share of  $27.22. Based upon financial information for Fidelity as or for the last twelve months (“LTM”) ended September 30, 2018, unless otherwise noted, FIG Partners calculated the following implied transaction metrics:
​
Transaction Price/2018E Net Income(1):
​​​​17.4x​​
​
Transaction Price/2019E Net Income (including cost savings)(2):
​​​​9.5x​​
​
Transaction Price/Tangible Book Value Per Share(3):
​​​​178.5%​​
​
Tangible Book Premium/Core Deposits(4):
​​​​8.5%​​
​
Transaction Price/Total Assets(5):
​​​​15.6%​​
​
(1)
Based upon Fidelity 2018E EPS of  $1.58.
​
(2)
Based upon Fidelity 2019E EPS of  $1.54, which includes adjustments for projected balance sheet repositioning, plus 40% cost savings phased in 50% in 2019Y.
​
(3)
Based upon Fidelity tangible common equity of  $420.6 million as of 9/30/2018.
​
(4)
Based upon Fidelity core deposits of  $3,874.2 million as of 9/30/2018.
​
(5)
Based upon Fidelity total assets of  $4,812.1 million as of 9/30/2018.
​
Stock Trading History
FIG Partners reviewed historical publicly reported trading prices of Ameris common stock for the year-to-date period ended December 14, 2018. FIG Partners compared the relationship between the movements in the prices of Ameris common stock to movements in peer indexes (Nasdaq and SNL U.S. Bank > $10B).
Parent Year-to-Date Stock Performance
​​​Beginning
January 1,
2018		​​Ending
December 14,
2018		​
Ameris​​​​100%​​​​​71%​​
Nasdaq​​​​100%​​​​​100%​​
SNL U.S. Bank > $10B​​​​100%​​​​​83%​​
FIG Partners also reviewed the recent trading activity of Ameris stock over the 30, 60, and 90 trading day periods ended December 14, 2018. In this analysis, FIG Partners analyzed the volume weighted average trading price of Ameris common stock over the defined periods, among other trading metrics.
80
TABLE OF CONTENTS
Comparable Company Analyses
FIG Partners used publicly available information to compare selected financial information for Fidelity with a group of financial institutions selected by FIG Partners for the Fidelity Peer Group. The Fidelity Peer Group consisted of publicly-traded holding companies, as defined by FIG Partners’ Research Group’s published reports on Fidelity. The Fidelity Peer Group consisted of the following companies:
​Pinnacle Financial Partners​​First Bancorp​
​South State Corporation​​National Commerce Corp.​
​CenterState Bank Corp.​​Carolina Financial Corp.​
​ServisFirst Bancshares Inc.​​Access National Corp.​
​United Community Banks Inc.​​First Bancshares Inc.​
​Eagle Bancorp Inc.​​Atlantic Capital Bancshares Inc.​
​Ameris Bancorp​​Capital City Bank Group Inc.​
​Cadence Bancorp​​Franklin Financial Network Inc​
​Seacoast Banking Corp. of FL​​Home Bancorp Inc.​
The analysis compared selected financial information for Fidelity with the corresponding publicly available data for the Fidelity Peer Group as of or for the twelve months ended September 30, 2018 (unless otherwise noted), with pricing data as of December 14, 2018. The table below sets forth the data for Fidelity and the high, low, median and mean data for the Fidelity Peer Group.
Fidelity Comparable Company Analysis
​​​Fidelity​​Fidelity Peer
Group
Median		​​Fidelity Peer
Group Mean		​​Fidelity Peer
Group High		​​Fidelity Peer
Group Low		​
Market Capitalization ($M)​​​$584.1​​​​$1,125.2​​​​$1,261.0​​​​$3,712.2​​​​$333.3​​
Price/Tangible Book Value​​​​142.2%​​​​​182.0%​​​​​180.4%​​​​​267.8%​​​​​117.7%​​
Price/LTM EPS​​​​12.6x​​​​​16.6x​​​​​16.2x​​​​​23.8x​​​​​10.7x​​
Price/NTM EPS​​​​13.9x​​​​​11.9x​​​​​11.9x​​​​​16.6x​​​​​8.9x​​
Dividend Yield​​​​2.2%​​​​​1.3%​​​​​1.6%​​​​​3.2%​​​​​0.0%​​
Weekly Volume​​​​1.8%​​​​​2.0%​​​​​2.4%​​​​​6.2%​​​​​0.6%​​
Insider Ownership​​​​23.8%​​​​​7.5%​​​​​9.8%​​​​​36.5%​​​​​2.2%​​
Institutional Ownership​​​​72.0%​​​​​73.0%​​​​​68.5%​​​​​89.6%​​​​​30.9%​​
Last Twelve Months Return​​​​2.2%​​​​​-15.4%​​​​​-13.4%​​​​​6.6%​​​​​-28.0%​​
Total Assets ($M)​​​$4,812.1​​​​$5,821.3​​​​$7,751.8​​​​$24,557.5​​​​$2,140.5​​
Total Loans ($M)​​​$4,078.3​​​​$4136.1​​​​$5,681.8​​​​$17,522.8​​​​$1,636.5​​
Tangible Common Equity/​ Tangible Assets​​​​8.6%​​​​​9.1%​​​​​9.5%​​​​​12.0%​​​​​7.8%​​
NPAs/Assets​​​​1.03%​​​​​0.45%​​​​​0.57%​​​​​1.36%​​​​​0.14%​​
Last Twelve Months ROAA​​​​0.98%​​​​​1.10%​​​​​1.08%​​​​​1.72%​​​​​0.16%​​
Last Twelve Months ROAE​​​​11.32%​​​​​8.27%​​​​​8.78%​​​​​19.25%​​​​​1.38%​​
​
Note:
Financial data for the institutions in the Fidelity Peer Group is not pro forma for any publicly announced and pending transactions.
​
Note:
Fidelity P/NTM EPS based upon $1.54 2019E EPS, which considers projected balance sheet repositioning.
​
FIG Partners used publicly available information to perform a similar analysis for Ameris and a group of financial institutions as selected by FIG Partners for the Ameris Peer Group. The Ameris Peer Group consisted of holding companies, banks and thrifts as defined in FIG Partners’ Research Group’s reports published on Ameris. The Ameris Peer Group consisted of the following companies:
81
TABLE OF CONTENTS
​Pinnacle Financial Partners​​TowneBank​
​United Bankshares Inc.​​First Merchants Corp.​
​Home BancShares Inc.​​United Community Banks Inc.​
​Bank OZK​​Heartland Financial USA Inc.​
​Simmons First National Corp.​​Cadence Bancorp.​
​South State Corporation​​Sandy Spring Bancorp Inc.​
​CenterState Bank Corp.​​Southside Bancshares Inc.​
​Union Bankshares Corp​​First Bancorp​
​Renasant Corp.​​
The analysis compared financial information for Ameris with the corresponding publicly available data for the Ameris Peer Group as of or for the twelve months ended September 30, 2018 (unless otherwise noted) with pricing data as of December 14, 2018. The table below sets forth the data for Ameris and the high, low, median and mean data for the Ameris Peer Group.
Ameris Comparable Company Analysis
​​​Ameris​​Ameris Peer
Group Median		​​Ameris Peer
Group Mean		​​Ameris Peer
Group High		​​Ameris Peer
Group Low		​
Market Capitalization ($M)​​​$1,615.3​​​​$1,824.3​​​​$2,056.5​​​​$3,712.2​​​​$1,003.4​​
Price/Tangible Book Value​​​​191.3%​​​​​182.4%​​​​​180.2%​​​​​218.9%​​​​​95.6%​​
Price/LTM EPS​​​​16.6x​​​​​13.3x​​​​​13.9x​​​​​17.2x​​​​​6.3x​​
Price/NTM EPS​​​​8.9x​​​​​10.8x​​​​​11.0x​​​​​14.1x​​​​​7.0x​​
Dividend Yield​​​​1.2%​​​​​2.7%​​​​​2.7%​​​​​4.3%​​​​​1.2%​​
Weekly Volume​​​​3.0%​​​​​2.2%​​​​​2.7%​​​​​6.2%​​​​​1.0%​​
Insider Ownership​​​​2.6%​​​​​4.3%​​​​​5.1%​​​​​11.1%​​​​​1.4%​​
Institutional Ownership​​​​86.8%​​​​​72.5%​​​​​73.3%​​​​​109.3%​​​​​44.9%​​
Last Twelve Months Return​​​​-26.0%​​​​​-17.0%​​​​​-17.3%​​​​​-2.9%​​​​​-51.7%​​
Total Assets ($M)​​​$11,429.0​​​​$12,405.1​​​​$13,306.0​​​​$24,557.5​​​​$5,711.6​​
Total Loans ($M)​​​$8,659.7​​​​$9,412.0​​​​$9,593.5​​​​$17,522.8​​​​$3,275.5​​
Tangible Common Equity/Tangible Assets​​​​7.8%​​​​​9.0%​​​​​9.3%​​​​​13.8%​​​​​7.7%​​
NPAs/Assets​​​​0.86%​​​​​0.45%​​​​​0.48%​​​​​0.78%​​​​​0.23%​​
Last Twelve Months ROAA​​​​0.98%​​​​​1.15%​​​​​1.24%​​​​​2.09%​​​​​0.90%​​
Last Twelve Months ROAE​​​​8.60%​​​​​8.57%​​​​​8.92%​​​​​12.74%​​​​​5.95%​​
​
Note:
Financial data for the institutions in the Ameris Peer Group is not pro forma for any publicly announced and pending transactions.
​
Note:
Ameris P/NTM EPS based upon consensus estimates for Ameris.
​
Analysis of Selected Merger Transactions
FIG Partners reviewed a group of selected merger and acquisition transactions (which we refer to as the “Comparable Transactions group”). The Comparable Transactions group consisted of selected nationwide holding company, bank and thrift transactions with disclosed deal value and target total assets between $1.0 billion and $10.0 billion announced between June 30, 2018 and December 14, 2018, excluding mergers of equals transactions and transactions where less than 100% of the stock was acquired. The Comparable Transactions group was composed of the following transactions:
82
TABLE OF CONTENTS
Buyer​​Target​
Berkshire Hills Bancorp Inc.​​SI Financial Group Inc.​
First Midwest Bancorp Inc.​​Bridgeview Bancorp Inc.​
People’s United Financial Inc.​​BSB Bancorp Inc.​
CenterState Bank Corp.​​National Commerce Corp.​
Simmons First National Corp.​​Reliance Bancshares Inc.​
First Merchants Corp.​​MBT Financial Corp.​
Union Bankshares Corp.​​Access National Corp.​
Independent Bank Corp.​​Blue Hills Bancorp Inc.​
PacWest Bancorp​​El Dorado SB FSB​
First Busey Corp.​​Banc Ed Corp.​
MidWestOne Financial Group Inc.​​ATBancorp​
WSFS Financial Corp.​​Beneficial Bancorp Inc​
Veritex Holdings Inc.​​Green Bancorp Inc​
FIG Partners reviewed the following transaction metrics: transaction price to last-twelve-months earnings per share, transaction price to estimated earnings per share, transaction price to tangible book value per share and tangible book premium to core deposits. FIG Partners also reviewed the following target financials: total assets, non-performing assets to assets, tangible common equity to tangible assets and last-twelve-months return on average assets. FIG Partners compared the indicated transaction multiples and target financials for the merger to the high, low, mean and median multiples of the Comparable Transactions group.
​​​Fidelity/​
Ameris		​​Precedent
Transactions
Median		​​Precedent
Transactions
Mean		​​Precedent
Transactions
High		​​Precedent
Transactions
Low		​
Deal Value ($M)​​​$750.7​​​​$327.8​​​​$519.6​​​​$1,507.4​​​​$145.0​​
Transaction price/Tangible book value per share​​​​178.5%​​​​​177.9%​​​​​185.1%​​​​​249.9%​​​​​117.5%​​
Transaction price/Earnings per share​​​​16.2x​​​​​22.8x​​​​​20.1x​​​​​27.3x​​​​​6.3x​​
Transaction price/Total assets​​​​15.6%​​​​​20.6%​​​​​18.1%​​​​​26.5%​​​​​11.0%​​
Core deposit premium​​​​8.5%​​​​​8.33%​​​​​10.2%​​​​​19.2%​​​​​2.6%​​
Target Total Assets ($M)​​​$4,812.1​​​​$2,206.3​​​​$2,616.1​​​​$5,770.3​​​​$1,259.9​​
Target NPAs/Assets​​​​1.03%​​​​​0.52%​​​​​0.67%​​​​​1.34%​​​​​0.14%​​
Target TCE/TA​​​​8.76%​​​​​10.06%​​​​​10.09%​​​​​15.19%​​​​​5.75%​​
Target LTM ROAA​​​​0.98%​​​​​0.74%​​​​​0.74%​​​​​1.69%​​​​​0.01%​​
Net Present Value Analyses
FIG Partners performed an analysis that estimated the necessary regulatorynet present value per share of Fidelity common stock assuming Fidelity performed in accordance with publicly available consensus mean analyst earnings per share estimates for the years ending December 31, 2018, December 31, 2019 and governmental approvalsDecember 31, 2020 and an estimated earnings per share growth rate for the years thereafter, as granted will not be subjectprovided by the senior management and representatives of Fidelity, as well as a projected dividend growth rate, as discussed with and confirmed by senior management and representatives of Fidelity, adjusted for the projected impact of projected balance sheet repositioning. To approximate the terminal value of a share of Fidelity common stock at December 31, 2022, FIG Partners applied price to any conditions that2022 earnings multiples ranging from 14.5x to 18.5x and multiples of December 31, 2022 tangible book value ranging from 180% to 220%. The terminal values were then discounted to present values using discount rates ranging from 11.5% to 13.5%. The discount rates selected by FIG Partners were intended to reflect different assumptions regarding required rates of return of holders or prospective buyers of Fidelity common stock. The analysis and the underlying assumptions yielded a range of values per share of Fidelity common stock of  $26.62 to $36.07 when applying multiples of earnings and $25.20 to $32.76 when applying multiples of tangible book value.
83
TABLE OF CONTENTS
Earnings Per Share Multiples
Discount Rate​​14.5x​​15.5x​​16.5x​​17.5x​​18.5x​
11.5%​​​$28.65​​​​$30.51​​​​$32.36​​​​$34.22​​​​$36.07​​
12.0%​​​$28.13​​​​$29.95​​​​$31.77​​​​$33.59​​​​$35.40​​
12.5%​​​$27.61​​​​$29.40​​​​$31.18​​​​$32.97​​​​$34.75​​
13.0%​​​$27.11​​​​$28.86​​​​$30.62​​​​$32.37​​​​$34.12​​
13.5%​​​$26.62​​​​$28.34​​​​$30.06​​​​$31.78​​​​$33.50​​
Tangible Book Value Multiples
Discount Rate​​180%​​190%​​200%​​210%​​220%​
11.5%​​​$27.12​​​​$28.53​​​​$29.94​​​​$31.35​​​​$32.76​​
12.0%​​​$26.63​​​​$28.01​​​​$29.39​​​​$30.77​​​​$32.16​​
12.5%​​​$26.14​​​​$27.50​​​​$28.85​​​​$30.21​​​​$31.57​​
13.0%​​​$25.67​​​​$27.00​​​​$28.33​​​​$29.66​​​​$30.99​​
13.5%​​​$25.20​​​​$26.51​​​​$27.82​​​​$29.12​​​​$30.43​​
FIG Partners also considered how this analysis would be unduly burdensome on Atlantic and Ameris or would have a material adverse effect on the contemplated benefits of the merger. Additionally, Atlantic has advised Hovde to assume that the Consent Order issuedaffected by the FDIC will either be removed by such regulatory authorities prior to the effective time, or in the absence of such regulatory action, will not impede or prevent the consummation of the merger as set forth in the Agreement.
In performing its analyses, Hovde made numerous assumptionsvariations with respect to industry performance, general business, economic, market and financial conditions and other matters, many of which are beyond the control of Hovde, Atlantic and Ameris. Hovde’s opinion was necessarily based on financial, economic, market and other conditions and circumstances as they existed on, and on the information made availablenet income. FIG Partners performed a similar analysis assuming Fidelity’s net income varied from 15% above estimates to Hovde as of, the dates used in its opinion. Any estimates contained15% below estimates. This analysis resulted in the following ranges of per share values for Fidelity common stock, applying the price to 2022 earnings multiples range of 14.5x to 18.5x and the price to 2022 tangible book value range of 180% to 220% referred to above and a discount rate of 12.50%.
Earnings Per Share Multiples
Annual Budget Variance​​14.5x​​15.5x​​16.5x​​17.5x​​18.5x​
(15.0%)​​​$23.73​​​​$25.25​​​​$26.77​​​​$28.28​​​​$29.80​​
(10.0%)​​​$25.02​​​​$26.63​​​​$28.24​​​​$29.85​​​​$31.45​​
(5.0%)​​​$26.32​​​​$28.02​​​​$29.71​​​​$31.34​​​​$33.10​​
0.0%​​​$27.61​​​​$29.40​​​​$31.18​​​​$32.97​​​​$34.75​​
5.0%​​​$28.91​​​​$30.78​​​​$32.66​​​​$34.53​​​​$36.41​​
10.0%​​​$30.20​​​​$32.17​​​​$34.13​​​​$36.09​​​​$38.06​​
15.0%​​​$31.50​​​​$33.55​​​​$35.60​​​​$37.66​​​​$39.71​​
Tangible Book Value Multiples
Annual Budget Variance​​180%​​190%​​200%​​210%​​220%​
(15.0%)​​​$24.61​​​​$25.89​​​​$27.16​​​​$28.43​​​​$29.70​​
(10.0%)​​​$25.12​​​​$26.42​​​​$27.72​​​​$29.02​​​​$30.32​​
(5.0%)​​​$25.63​​​​$26.96​​​​$28.29​​​​$29.62​​​​$30.94​​
0.0%​​​$26.14​​​​$27.50​​​​$28.85​​​​$30.21​​​​$31.57​​
5.0%​​​$26.65​​​​$28.04​​​​$29.42​​​​$30.80​​​​$32.19​​
10.0%​​​$27.16​​​​$28.57​​​​$29.99​​​​$31.40​​​​$32.81​​
15.0%​​​$27.67​​​​$29.11​​​​$30.55​​​​$31.99​​​​$33.43​​
FIG Partners also performed an analysis that estimated the net present value per share of Ameris common stock assuming that Ameris performed in accordance with publicly available consensus mean analyst earnings per share estimates for Ameris for the years ending December 31, 2018, December 31, 2019 and December 31, 2020 as well as an estimated earnings per share growth rate and estimated dividends for the years thereafter, as provided by the senior management and advisors of Ameris. To approximate the terminal value of Ameris common stock at December 31, 2022, FIG Partners applied price to 2022 earnings multiples ranging from 10.0x to 14.0x and multiples of December 31, 2022 tangible book value ranging from 170% to 210%. The terminal values were then discounted to present values using different discount
84
TABLE OF CONTENTS
rates ranging from 11.5% to 13.5%. Discount rates were chosen to reflect different assumptions regarding required rates of return of holders or prospective buyers of Ameris common stock. The analysis indicated an imputed range of values per share of Ameris common stock of  $34.37 to $51.28 when applying earnings multiples and $37.69 to $49.84 when applying multiples of tangible book value.
Earnings Per Share Multiples
Discount Rate​​10.0x​​11.0x​​12.0x​​13.0x​​14.0x​
11.5%​​​$37.02​​​​$40.58​​​​$44.15​​​​$47.71​​​​$51.28​​
12.0%​​​$36.33​​​​$39.83​​​​$43.33​​​​$46.82​​​​$50.32​​
12.5%​​​$35.66​​​​$39.09​​​​$42.53​​​​$45.96​​​​$49.39​​
13.0%​​​$35.01​​​​$38.37​​​​$41.74​​​​$45.11​​​​$48.48​​
13.5%​​​$34.37​​​​$37.67​​​​$40.98​​​​$44.28​​​​$47.59​​
Tangible Book Value Multiples
Discount Rate​​170%​​180%​​190%​​200%​​210%​
11.5%​​​$40.60​​​​$42.91​​​​$45.22​​​​$47.53​​​​$49.84​​
12.0%​​​$39.85​​​​$42.11​​​​$44.38​​​​$46.64​​​​$48.91​​
12.5%​​​$39.11​​​​$41.34​​​​$43.56​​​​$45.78​​​​$48.00​​
13.0%​​​$38.39​​​​$40.57​​​​$42.75​​​​$44.94​​​​$47.12​​
13.5%​​​$37.69​​​​$39.83​​​​$41.97​​​​$44.11​​​​$46.25​​
FIG Partners also considered how this analysis would be affected by variations with respect to net income. To illustrate this impact, FIG Partners performed a similar analysis assuming Ameris’s net income varied from 15% above estimates to 15% below estimates. This analysis resulted in the following range of per share values for Ameris common stock, applying the price to 2022 earnings multiples range of 10.0x to 14.0x and the price to 2022 tangible book value range of 170% to 210% referred to above and a discount rate of 12.50%.
Earnings Per Share Multiples
Annual Budget Variance​​10.0x​​11.0x​​12.0x​​13.0x​​14.0x​
(15.0%)​​​$30.51​​​​$33.43​​​​$36.35​​​​$39.26​​​​$42.18​​
(10.0%)​​​$32.23​​​​$35.32​​​​$38.41​​​​$41.50​​​​$44.58​​
(5.0%)​​​$33.94​​​​$37.20​​​​$40.47​​​​$43.73​​​​$46.99​​
0.0%​​​$35.66​​​​$39.09​​​​$42.53​​​​$45.96​​​​$49.39​​
5.0%​​​$37.38​​​​$40.98​​​​$44.58​​​​$48.19​​​​$51.79​​
10.0%​​​$39.09​​​​$42.87​​​​$46.64​​​​$50.42​​​​$54.20​​
15.0%​​​$42.31​​​​$44.72​​​​$47.13​​​​$49.54​​​​$51.95​​
Tangible Book Value Multiples
Annual Budget Variance​​170%​​180%​​190%​​200%​​210%​
(15.0%)​​​$35.92​​​​$37.95​​​​$39.99​​​​$42.02​​​​$44.06​​
(10.0%)​​​$36.98​​​​$39.08​​​​$41.18​​​​$43.27​​​​$45.37​​
(5.0%)​​​$38.05​​​​$40.21​​​​$42.37​​​​$44.53​​​​$46.69​​
0.0%​​​$39.11​​​​$41.34​​​​$43.56​​​​$45.78​​​​$48.00​​
5.0%​​​$40.18​​​​$42.46​​​​$44.75​​​​$47.03​​​​$49.32​​
10.0%​​​$41.24​​​​$43.59​​​​$45.94​​​​$48.28​​​​$50.63​​
15.0%​​​$40.81​​​​$44.76​​​​$48.70​​​​$52.65​​​​$56.60​​
85
TABLE OF CONTENTS​
In connection with its analyses, performedFIG Partners considered and discussed with the Fidelity board of directors how the present value analyses would be affected by Hovdechanges in the underlying assumptions. FIG Partners noted that the net present value analysis is a widely used valuation methodology, but the results of such methodology are highly dependent upon the numerous assumptions that must be made, and the results thereof are not necessarily indicative of actual values or future results, which may be significantly more or less favorable than suggested by these analyses. Additionally, estimatesresults.
Pro Forma Merger Analysis
FIG Partners performed a pro forma merger analysis that combined projected income statement and balance sheet information of Fidelity and Ameris. FIG Partners analyzed the value of businesses or securities do not purport to be appraisals or to reflect the prices at which such businesses or securities may be sold or the prices at which any securities may trade at any time in the future. Accordingly, these analyses and estimates are inherently subject to substantial uncertainty. Hovde’s opinion does not address the relative meritsestimated financial impact of the merger on certain projected financial results for Fidelity and Ameris and financial forecasts and projections relating to the earnings of Fidelity and Ameris, which were derived by FIG Partners from publicly available consensus estimates, and pro forma assumptions (including, without limitation, purchase accounting adjustments, cost savings and related expenses), which, in the case of Fidelity and Ameris were derived by FIG Partners from publicly available information. This analysis indicated that the merger could be accretive to Ameris estimated EPS in 2020 and have a 2.5 payback period for Ameris with minimal dilution at closing to estimated tangible book value per share (2.5% dilutive to the Ameris tangible book value per share). For all of the above analysis, the actual results achieved by Ameris following the merger may vary from the projected results, and the variations may be material.
Ameris’s Reasons for the Merger; Recommendation of the Ameris Board of Directors
In evaluating the merger, the Ameris board of directors consulted with Ameris management, as well as Ameris’s independent legal and financial advisors, and, in the course of reaching its decision to adopt the merger agreement and approve the transactions contemplated thereby, including the merger and the Ameris share issuance, and to recommend that Ameris shareholders approve the Ameris share issuance proposal, the Ameris board of directors considered a number of factors, including the following material factors:
•
its understanding of the current and prospective environment in which Ameris and Fidelity operate, including national and local economic conditions, the interest rate environment, increasing operating costs resulting from regulatory initiatives and compliance mandates, the competitive environment for financial institutions generally and the likely effect of these factors on Ameris both with and without the proposed transaction;
​
•
its view that Fidelity’s earnings and prospects, and synergies potentially available in the merger, if completed, created an opportunity for the combined company to have superior future earnings and prospects compared to any otherAmeris’s earnings and prospects on a stand-alone basis. In particular, the Ameris board of directors considered the following:
​
◦
its view that the merger will create a stronger company, elevated growth and meaningful long-term value for both shareholders and customers of Ameris and Fidelity;
​
◦
its view that the merger is a well-structured, low-risk transaction with appealing acquisition metrics, including a compelling strategic rationale, mid-single digit accretion with fully phased in cost savings and an earn-back of approximately 2.5 years;
​
◦
that shareholders of Ameris and Fidelity would benefit from expected annual cost savings from maximizing efficiencies across the combined company;
​
◦
its view that Fidelity’s business combination in which Atlantic might engage. In addition, Hovde’s fairness opinion was among several factors taken into considerationand operations complement those of Ameris, including by driving revenue synergies and strengthening core operating and financial metrics;
​
◦
that the merger would diversify Ameris’s loan portfolio and provide an opportunity to strengthen its core deposit base;
​
◦
that the merger would enhance profitability and returns while reducing risk profile through diversification;
​
◦
the anticipated pro forma impact of the merger on the combined company, including the expected impact on financial metrics (including earnings per share, return on invested capital, return on tangible common equity and cash efficiency ratio) and on long-term capital ratios;
​
​
86
TABLE OF CONTENTS
◦
the expanded possibilities, including organic growth and future acquisitions, that would be available to the combined company given its larger size, asset base, capital and footprint;
​
◦
its review and discussions with Ameris’s management and advisors concerning Ameris’s due diligence examination of Fidelity’s business;
​
◦
the participation of five of Fidelity’s directors on the board of directors of Atlantic in making its determination to approve the Agreementcombined company, and the merger. Consequently,significant leadership positions of Fidelity’s senior management in the analyses described below should not be viewed as solely determinativecombined company, each of which the decision of theAmeris board of directors believed would assist integrating the businesses of AtlanticAmeris and Fidelity after the closing and enhance the likelihood of realizing the strategic benefits that Ameris expects to derive from the merger;
​
◦
Ameris’s successful track record of creating shareholder value through acquisitions and its proven experience in successfully integrating acquired businesses and retaining key personnel, and Ameris management’s belief that Ameris will be able to integrate Fidelity with Ameris successfully; and
​
◦
the financial analyses presented to the Ameris board of directors by Stephens and the oral opinion rendered by Stephens, subsequently confirmed by delivery of a written opinion dated December 16, 2018, to the Ameris board of directors to the effect that, as of such date and based on and subject to the factors and assumptions set forth in Stephens’s written opinion, the consideration to be given by Ameris in the merger is fair to Ameris from a financial point of view, as summarized below under “— Opinion of Stephens Inc.”
​
The Ameris board of directors also considered potential risks relating to the merger but concluded that the anticipated benefits of the merger were likely to substantially outweigh these risks. These potential risks included:
•
the possibility of encountering difficulties in achieving anticipated cost savings in the amounts estimated or Atlantic’sin the time frame contemplated;
​
•
the possibility of encountering difficulties in successfully integrating Fidelity’s business, operations, and workforce with those of Ameris;
​
•
the merger-related costs, including the payments and other benefits to be received by Fidelity directors and executive officers in connection with the merger as more fully described under “— Interests of Fidelity’s Directors and Executive Officers in the Merger” and “— Merger-related Compensation for Fidelity’s Named Executive Officers”;
​
•
diversion of management attention and resources from the operation of Ameris’s business towards the completion of the merger; and
​
•
the regulatory and other approvals required in connection with the merger and the risk that such regulatory approvals will not be received in a timely manner or may impose unacceptable conditions.
​
The foregoing discussion of the information and factors considered by the Ameris board of directors is not intended to be exhaustive, but includes the material factors considered by the Ameris board of directors. In reaching its decision to adopt the merger agreement and approve the transactions contemplated thereby, including the merger and the Ameris share issuance, and to recommend that Ameris shareholders approve the Ameris share issuance proposal, the Ameris board of directors did not quantify or assign any relative weights to the factors considered, and individual directors may have given different weights to different factors. The Ameris board of directors considered all these factors as a whole and overall considered the factors to be favorable to, and to support, its determination. It should be noted that this explanation of the reasoning of the Ameris board of directors and certain information presented in this section is forward-looking in nature and, therefore, that information should be read in light of the factors discussed in “Cautionary Statement Regarding Forward-Looking Statements.”
For the reasons set forth above, the Ameris board of directors unanimously: (i) determined that the merger agreement and the transactions contemplated thereby, including the merger, are in the best interests of Ameris and its shareholders; and (ii) adopted the merger agreement and approved the execution, delivery and
87
TABLE OF CONTENTS​
performance of the merger agreement and the consummation of the transactions contemplated thereby, including the merger and the Ameris share issuance. The Ameris board of directors unanimously recommends that Ameris shareholders vote “FOR” the Ameris share issuance proposal.
Opinion of Stephens Inc.
Ameris engaged Stephens to render financial advisory and investment banking services to Ameris, including (but not limited to) providing an opinion to the Ameris board of directors as to the fairness, from a financial point of view, to Ameris of the consideration to be given to Fidelity in the merger. Ameris selected Stephens because Stephens is a nationally recognized investment banking firm with substantial experience in mergers similar to the merger. As part of its investment banking business, Stephens is continually engaged in the valuation of financial services businesses and their securities in connection with mergers and acquisitions.
At the December 16, 2018 meeting of the Ameris board of directors, representatives of Stephens rendered its oral opinion, which was subsequently confirmed by delivery of a written opinion to the Ameris board of directors dated December 16, 2018, as to the fairness, as of such date, from a financial point of view, to Ameris of the consideration to be paid by Ameris in the merger, based upon and subject to the qualifications, limitations and assumptions made and other matters considered in connection with the preparation of its opinion.
The description of the opinion set forth herein is qualified in its entirety by reference to the full text of the written opinion of Stephens, dated December 16, 2018, a copy of which is attached as Annex E to this joint proxy statement/prospectus. Ameris shareholders are urged to read the opinion in its entirety.
Stephens provided its opinion for the information of the Ameris board of directors (solely in its capacity as such) in connection with, and for purposes of, its consideration of the merger and its opinion only addresses the fairness, from a financial point of view, of the merger consideration to be given by Ameris. The opinion of Stephens does not address any other term or aspect of the merger agreement or the merger contemplated thereby. The Stephens opinion does not constitute a recommendation to the Ameris board of directors or to any Ameris shareholder as to how the Ameris board of directors, such Ameris shareholder or any other person should vote or otherwise act with respect to the merger or any other matter. Stephens does not express any opinion as to the likely trading range of Ameris common stock following the merger, which may vary depending on numerous factors that generally impact the price of securities or on the operations, financial condition or prospects of Ameris at that time.
In connection with its review of the merger and the preparation of its opinion, Stephens, among other things:
•
analyzed certain publicly available financial statements and reports regarding Ameris and Fidelity;
​
•
reviewed and considered publicly available consensus mean analyst earnings per share estimates for Ameris and Fidelity for the years ending December 31, 2018 and December 31, 2019, publicly available consensus mean analyst earnings per share estimates for Fidelity for the year ending December 31, 2020 and estimated long-term annual earnings and balance sheet growth rates and dividends per share for Ameris and Fidelity for the years thereafter, as provided to Stephens by the senior management of Ameris;
​
•
analyzed, on a pro forma basis in reliance upon financial projections and other information and assumptions provided by the management teams of Ameris and Fidelity, the effect of the merger on the balance sheet, earnings, tangible book value per share and earnings per share of Ameris;
​
•
reviewed the reported prices and trading activity for the common stock of Ameris and Fidelity;
​
•
compared the financial performance of Ameris and Fidelity with that of certain publicly-traded companies that Stephens deemed relevant to its analysis of the merger, and their securities;
​
•
reviewed the financial terms, to the extent publicly available, of certain merger or acquisition mergers that Stephens deemed relevant to its analysis of the merger;
​
•
reviewed the merger agreement and related documents provided to Stephens by Ameris;
​
​
88
TABLE OF CONTENTS
•
discussed with management of Ameris the operations of and future business prospects for Ameris and Fidelity and the anticipated cost savings and financial consequences of the merger to Ameris; and
​
•
performed such other analyses and provided such other services as Stephens deemed appropriate.
​
Stephens relied on the accuracy and completeness of the information and financial data provided to it by Ameris and Fidelity and of the other information reviewed by it in connection with the preparation of its opinion, and its opinion is based upon such information. Stephens has not assumed any responsibility for independent verification of the accuracy or completeness of any of such information or financial data. Management of Ameris has assured Stephens that they were not aware of any relevant information that has been omitted or remained undisclosed to Stephens. Stephens has not assumed any responsibility for making or undertaking an independent evaluation or appraisal of any of the assets or liabilities of Ameris or of Fidelity, and Stephens has not been furnished with any such evaluations or appraisals; nor did Stephens evaluate the solvency or fair value of Ameris or of Fidelity under any laws relating to bankruptcy, insolvency or similar matters. Stephens has not received or reviewed any individual credit files nor did Stephens make an evaluation of the adequacy of the allowance for loan losses of Ameris or Fidelity. Stephens has not assumed any obligation to conduct any physical inspection of the properties or facilities of Ameris or Fidelity. With respect to any financial forecasts prepared by the management of Ameris, including forecasts of potential cost savings and of potential synergies, Stephens assumed that such financial forecasts have been reasonably prepared and reflect the best currently available estimates and judgments of the management of Ameris as to the future financial performance of Ameris and Fidelity and that the financial results reflected by such projections will be realized as predicted. Stephens has also assumed that the representations and warranties contained in the merger agreement and all related documents are true, correct and complete in all material respects. In formulating its opinion, Stephens considered only the merger consideration to be paid by Ameris, and Stephens did not consider, and its opinion did not address, the fairness of the amount or nature of any compensation to be paid or payable to any of the officers, directors or employees of Ameris or Fidelity, or such class of persons, in connection with the merger whether relative to the merger consideration to be received by any class or group of securities holders or otherwise. Stephens was not requested to opine as to, and its opinion did not express any views as to or otherwise address, among other things: (i) the Atlantic stockholdersfairness of the merger to the holders of any class of securities, creditors or other constituencies of Ameris, or to any other party, except and only to the extent expressly set forth in connection withits opinion letter; or (ii) the merger.fairness of the merger to any one class or group of Ameris’s or any other party’s security holders or other constituents vis-à-vis any other class or group of Ameris’s or such other party’s security holders or other constituents.
Material Financial Analyses
The following is a summary of the material financial analyses preparedpresented by Hovde and deliveredStephens to the Ameris board of directors of Atlanticat its meeting on November 15, 2017,December 16, 2018, in connection with the delivery of its fairness opinion. ThisThe summary is not a complete description of the financial analyses underlying the fairness opinion or the presentation preparedmade by Hovde,Stephens to the Ameris board of directors, but it summarizes the material analyses performed and presented in connection with such opinion. The financial analyses summarized below include information presented in tabular format. The tables alone do not constitute a complete description of the financial analyses. The preparation of a fairness opinion is a complex analyticalanalytic process involving various determinations as to the most appropriate and relevant methods of financial analysis and the application of those methods to the particular circumstances. Therefore, a fairness opinion is not readily susceptible to partial analysis or summary description. In arriving at its opinion, HovdeStephens did not attribute any particular weight to any analysis or factor that it considered, but rather made qualitative judgments as to the significance and relevance of each analysis and factor. The financial analyses summarized below include information presented in tabular format. TheAccordingly, Stephens believes that its analyses and the summary of theits analyses must be considered as a whole and that selecting portions of theits analyses and factors or focusing on the information presented below in tabular format, without considering all analyses and factors or the full narrative description of the financial analyses, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete view of the process underlying theits analyses and opinion of Hovde. The tables alone are not a complete description of the financial analyses.
Market Approach — Comparable Transactions.   As part of its analysis, Hovde reviewed publicly available information related to two comparable groups (a “Regional Group” and a “Nationwide Group”) of select acquisition transactions of banks. The Regional Group consisted of acquisition transactions where targets were headquartered in Alabama, Arkansas, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, Virginia and West Virginia announced since January 1, 2015, in which the target’s total assets were between $500 million and $1.5 billion, last-twelve-months (“LTM”) return on average assets (“ROAA”) were between 0.40% and 1.10%, and non-performing assets (“NPAs”) to total assets were greater than 1.00%. The Nationwide Group consisted of acquisition transactions of banks in the United States announced since January 1, 2015, in which the target’s total assets were between $500 million and $1.5 billion, last-twelve-months return on average assets were between 0.50% and 1.00%, and non-performing assets to total assets were greater than 1.50%. In each case, for which financial information was available, no transaction that fit the above selection criteria was excluded. Information for the target institutions was based on balance sheet data as of, and income statement data for, the twelve months preceding the most recent quarter prior to announcement of the transactions. The resulting two groups consisted of the following transactions (13 transactions for the Regional Group and 14 transactions for the Nationwide Group):
45
TABLE OF CONTENTS
Regional Group:​
Buyer (State)​​Target (State)​
State Bank Financial Corporation (GA)​​AloStar Bank of Commerce (AL)​
Southern National Bancorp of VA, Inc. (VA)​​Eastern Virginia Bankshares, Inc. (VA)​
Access National Corporation (VA)​​Middleburg Financial Corporation (VA)​
First Bancorp (NC)​​Carolina Bank Holdings, Inc. (NC)​
Hampton Roads Bankshares, Inc. (VA)​​Xenith Bankshares, Inc. (VA)​
BNC Bancorp (NC)​​High Point Bank Corporation (NC)​
Ameris Bancorp (GA)​​Jacksonville Bancorp, Inc. (FL)​
Private investor – Gaylon Lawrence Jr.​​F&M Financial Corporation (TN)​
Home BancShares, Inc. (AR)​​Florida Business BancGroup, Inc. (FL)​
Valley National Bancorp (NJ)​​CNLBancshares, Inc. (FL)​
Pinnacle Financial Partners, Inc. (TN)​​Magna Bank (TN)​
United Community Banks, Inc. (GA)​​Palmetto Bancshares, Inc. (SC)​
Pinnacle Financial Partners, Inc. (TN)​​CapitalMark Bank & Trust (TN)​
Nationwide Group:​
Buyer (State)​​Target (State)​
Old Line Bancshares, Inc. (MD)​​Bay Bancorp, Inc. (MD)​
Veritex Holdings, Inc. (TX)​​Sovereign Bancshares, Inc. (TX)​
Southern National Bancorp of VA, Inc. (VA)​​Eastern Virginia Bankshares, Inc. (VA)​
Access National Corporation (VA)​​Middleburg Financial Corporation (VA)​
Enterprise Financial Services Corp (MO)​​Jefferson County Bancshares, Inc. (MO)​
First Bancorp (NC)​​Carolina Bank Holdings, Inc. (NC)​
QCR Holdings, Inc. (IL)​​Community State Bank (IA)​
BNC Bancorp (NC)​​High Point Bank Corporation (NC)​
Nicolet Bankshares, Inc. (WI)​​Baylake Corp. (WI)​
Private investor – Gaylon Lawrence Jr.​​F&M Financial Corporation (TN)​
Home BancShares, Inc. (AR)​​Florida Business BancGroup, Inc. (FL)​
Valley National Bancorp (NJ)​​CNLBancshares, Inc. (FL)​
Pinnacle Financial Partners, Inc. (TN)​​Magna Bank (TN)​
United Community Banks, Inc. (GA)​​Palmetto Bancshares, Inc. (SC)​
For each precedent transaction, Hovde compared the implied ratio of the transaction value to certain financial characteristics of Atlantic as follows:
•
the multiple of the purchase consideration to the acquired company’s tangible common book value (the “Price-to-Tangible Common Book Value Multiple”);
​
•
the multiple of the purchase consideration to the acquired company’s adjusted tangible common book value (the “Price-to-Adjusted Tangible Common Book Value”);
​
•
the multiple of the purchase consideration to the acquired company’s LTM net earnings per share (the “Price-to-LTM Earnings Multiple”); and
​
•
the multiple of the difference between the purchase consideration and the acquired company’s tangible book value to the acquired company’s core deposits (the “Premium-to-Core Deposits Multiple”).
​
The results of the analysis are set forth in the table below. Transaction multiples for the merger were based upon the merger consideration of  $144,640,060 for Atlantic and were based on September 30, 2017, financial results for Atlantic.
46
TABLE OF CONTENTS
​​​Price-to-Tangible
Common Book Value
Multiple		​​
Price-to-Adjusted
Common Tangible
Book Value(1)
​​
Price-to-LTM Earnings
Multiple(2)
​​
Premium-to-Core
Deposits Multiple(3)
​
Total Transaction Value​​​​158.3%​​​​​172.2%​​​​​25.0x​​​​​9.4%​​
Precedent Transactions Regional Group:​
Median​​​​161.3%​​​​​165.3%​​​​​23.5x​​​​​8.4%​​
Minimum​​​​101.4%​​​​​103.6%​​​​​13.6x​​​​​0.6%​​
Maximum​​​​232.3%​​​​​237.1%​​​​​32.5x​​​​​16.1%​​
Precedent Transactions Nationwide Group:​
Median​​​​160.9%​​​​​168.3%​​​​​21.8x​​​​​8.2%​​
Minimum​​​​133.6%​​​​​142.2%​​​​​13.6x​​​​​4.4%​​
Maximum​​​​200.7%​​​​​223.9%​​​​​39.3x​​​​​17.2%​​
​
(1)
Price-to-Adjusted Common Tangible Book Value equals the adjusted purchase price divided by core capital where: (i) core capital equals total tangible assets multiplied by 8%; (ii) excess capital equals total tangible book value less core capital; and (iii) adjusted purchase price equals implied value of the merger consideration less excess capital (assumes dollar-for-dollar payment on excess capital).
​
(2)
Price-to-LTM EPS multiples are considered non-meaningful for values greater than 40.0x.
​
(3)
Core deposits are defined as total deposits less foreign deposits and time deposit accounts greater than $100,000.
​
Using publicly available information, Hovde compared the financial performance of Atlantic with that of the median of the precedent transactions from both the Regional and Nationwide Groups. The performance highlights are based on September 30, 2017, financial results of Atlantic.
​​​Tangible
Equity/​
Tangible
Assets		​​
Core
Deposits(2)
​​LTM
ROAA		​​LTM
ROAE		​​Efficiency
Ratio		​​
NPAs/​
Assets(3)
​​
LLR/​
NPLs(4)
​
Atlantic(1)​​​​9.91%​​​​​84.18%​​​​​0.66%​​​​​6.49%​​​​​72.63%​​​​​3.81%​​​​​24.06%​​
Precedent Transactions – Regional Group Median:​​​​9.42%​​​​​81.10%​​​​​0.72%​​​​​6.48%​​​​​73.98%​​​​​1.76%​​​​​54.18%​​
Precedent Transactions – Nationwide Group Median:​​​​10.38%​​​​​87.41%​​​​​0.74%​​​​​6.87%​​​​​72.00%​​​​​1.98%​​​​​53.32%​​
​
​
(1)
Atlantic’s financial data as of September 30, 2017.
​
(2)
Core deposits exclude foreign deposits and time deposit accounts greater than $100,000.
​
(3)
Non-performing assets as a percentage of total assets (includes restructured loans and leases).
​
(4)
Loan Loss Reserve (“LLR”) as a percentage of non-performing loans.
​opinion.
No company or transactionmerger used as a comparison in the above transaction analyses described below is identical or directly comparable to Atlantic, and no transaction was consummated on terms identical toAmeris, Fidelity or the termscontemplated merger. For purposes of the Agreement. Accordingly, an analysis of these results is not strictly mathematical. Rather, it involves complex considerations and judgments concerning differences in financial and operating characteristics of the companies. The resulting values of the Precedent Transactions Regional Group using the median values for the four valuation metrics set forth above indicatedanalyses described below, Stephens utilized an implied aggregate valuation ranging between $136.0 million and $147.4 million compared tomerger value for the proposed merger consideration of  $144.6 million. The resulting values$27.22 per share of the Precedent Transactions Nationwide Group using the median values for the four valuation metrics set forth above indicated an implied aggregate valuation ranging between $125.9 million and $147.0 million compared to the proposed merger consideration of  $144.6 million.Fidelity common
4789
TABLE OF CONTENTS
Income Approach — Discounted Cash Flow Analysis.   Taking into account various factors, including Atlantic’s recent performance, the current banking environment and the local economy in which Atlantic operates, Hovde determined, in consultation with and based on information provided by management of Atlantic, earnings estimates for Atlantic over a forward looking six-year period, and in consultation with Atlantic management, developed the forward-looking projections and key assumptions which formed the basis for the discounted cash flow analyses. The resulting projected Atlantic net income numbers used for the analysis were calculated using an assumed effective tax rate of 35% and were $5.2 million for 2017, $6.6 million for 2018, $7.7 million for 2019, $8.7 million for 2020, $9.9 million for 2021, and $11.3 million for 2022.
To determine present values of Atlantic based on these projections, Hovde utilized two discounted cash flow models, each of which capitalized terminal values using a different methodology: (i) Terminal Price/​Earnings Multiple (“DCF Terminal P/E Multiple”); and (ii) Terminal Price/Tangible Book Value Multiple (“DCF Terminal P/TBV Multiple”).
In the DCF Terminal P/E Multiple analysis, an estimated value of the Atlantic common stock was calculated based on the present value of Atlantic’s after-tax net income based on Atlantic management’s forward-looking projections. Hovde utilized a terminal value at the end of 2022 by applying a five point range of price-to-earnings multiples of 21.5x to 25.5x, which range is based around the median price-to-earnings multiple derived from transactions in the Regional Group of 23.5x. The present value of Atlantic’s projected dividends, of which there were none projected, plus the terminal value was then calculated assuming a range of discount rates between 12.40% and 14.40%, with a midpoint of 13.40% discounted over a period of 5.13 years. This range of discount rates was chosen to reflect different assumptions regarding the required rates of return of holders or prospective buyers of Atlantic common stock. The range of discount rates utilized the buildup method to determine such required rates of return and was based upon the risk-free interest rate, an equity risk premium, an industry risk premium, and a size premium which resulted in a discount rate of 13.4% used as the midpoint of the five point range of discount rates of 12.40% to 14.40%. The resulting aggregate values of Atlantic common stock based on the DCF Terminal P/E Multiple applied0.8000x exchange ratio in the merger agreement and the closing price of Ameris common stock on December 14, 2018. In addition to the 2022 projectedfinancial analyses described below, Stephens reviewed with the Ameris board of directors for informational purposes, among other things, implied merger statistics for the proposed merger of 16.0x, 17.3x and 17.1x Fidelity’s last 12 months (“LTM”), 2018 and 2019 earnings per share (“EPS”), using reported LTM EPS and consensus EPS estimates for Fidelity, 176.4% of $11.3 million and then discounted utilizing the five point range of discount rates set forth above resulted in implied aggregate values between $121.4 million and $157.7 million with a midpoint of  $138.9 million.
In the DCF Terminal P/TBV Multiple model, the same earnings estimates and projected net income were used as in the preceding DCF Terminal P/E Multiple analysis to determine the projectedFidelity’s reported tangible book value for Atlantic(“TBV”) per share as of September 30, 2018, 8.8% premium to Fidelity’s core deposits as of September 30, 2018 and 27.1% premium to Fidelity’s closing stock price of  $21.42 as of December 31, 2022. In arriving at the terminal value at the end of 2022, Hovde applied a five point range of price-to-tangible book value multiples of 1.51x to 1.71x utilizing as a midpoint of the range the median price-to-tangible book value multiple derived from transactions14, 2018, in the Regional Group of 1.61x. The present value of projected dividends, of which there were none projected, plus the terminal value was then calculated assuming the range of discount rates between 12.40% and 14.40%, with a midpoint of 13.40% discounted over a period of 5.13 years as was applied in the DCF Terminal P/E Multiple analysis set forth above. The resulting implied aggregate values of Atlantic common stockeach case based on the DCF Terminal P/TBV Multiple analysis ranged between $103.8 million and $128.7 millionimplied merger value for the proposed merger of  $27.22 per share of Fidelity common stock.
Selected Public Companies Analysis — Ameris
Stephens used publicly available information to compare selected financial information for Ameris with a midpointgroup of $115.8 million.financial institutions selected by Stephens. The Ameris peer group included 12 Southeast banks whose securities are publicly traded on major U.S. exchanges with assets between $10.0 billion and $25.0 billion. The Ameris peer group consisted of the following companies:
These analyses•
BancorpSouth Bank
​
•
CenterState Bank Corporation
​
•
Home BancShares, Inc.
​
•
Pinnacle Financial Partners, Inc.
​
•
Renasant Corporation
​
•
South State Corporation
​
•
TowneBank
​
•
Trustmark Corporation
​
•
Union Bankshares Corporation
​
•
United Bankshares, Inc.
​
•
United Community Banks, Inc.
​
•
WesBanco, Inc.
​
The analysis compared publicly available financial information for Ameris with the corresponding data for the Ameris peer group as of or for the three-month period ended September 30, 2018 (unless otherwise indicated), with pricing data as of December 14, 2018. The table below sets forth the data for Ameris and their underlying assumptions yielded a range of implied multiple valuesthe 25th percentile, 75th percentile and median data for Atlantic common stock which are outlined in the table below:Ameris peer group. Regulatory data was used when GAAP data was unavailable.
Implied Multiple Value for Atlantic common stock Based On:​​Implied
Aggregate
Value		​​
Price-to-Tangible
Book Value
Multiple(1)
​​
Price-to-LTM
Earnings
Multiple(1)(2)
​​
Premium-to-
Core
Deposits
Multiple(1)(3)
​
Total Deal Value​​​$144,640​​​​​158.3%​​​​​25.0x​​​​​9.4%​​
DCF Analysis – Terminal P/E Multiple(1)(4)
​
Midpoint​​​$138,853​​​​​151.9%​​​​​24.0x​​​​​8.3%​​
DCF Analysis – Terminal P/TBV Multiple(1)(4)
​
Midpoint​​​$115,776​​​​​126.7%​​​​​20.0x​​​​​4.3%​​
​​​Comparable Company Analysis​
​​​Ameris​​Ameris Peer Group​
​​​
75th
​​Median​​
25th
​
Total Assets (in millions)​​​$11,429​​​​$18,017​​​​$14,717​​​​$12,636​​
Loans/Deposits​​​​92.9%​​​​​94.9%​​​​​93.6%​​​​​86.5%​​
Core Deposits/Deposits​​​​88.3%​​​​​95.9%​​​​​93.2%​​​​​88.9%​​
Non-performing Assets/Assets​​​​0.86%​​​​​0.55%​​​​​0.43%​​​​​0.32%​​
Tangible Common Equity/Tangible Assets​​​​7.77%​​​​​9.57%​​​​​9.06%​​​​​8.83%​​
Core Return on Average Assets(1)
​​​​1.52%​​​​​1.58%​​​​​1.42%​​​​​1.36%​​
Net Interest Margin​​​​3.95%​​​​​4.09%​​​​​3.75%​​​​​3.61%​​
Efficiency Ratio​​​​51.9%​​​​​60.5%​​​​​55.4%​​​​​49.4%​​
Construction & Development Loans/Total Risk-Based Capital(2)
​​​​77.1%​​​​​84.8%​​​​​74.3%​​​​​64.9%​​
Commercial Real Estate Loans/Total Risk-Based Capital(2)
​​​​257.7%​​​​​288.4%​​​​​254.7%​​​​​218.5%​​
Market Capitalization​​​$1,615​​​​$2,866​​​​$2,071​​​​$1,855​​
Price/Tangible Book Value​​​​1.91x​​​​​1.94x​​​​​1.82x​​​​​1.75x​​
Price/2018 Consensus Estimated EPS​​​​10.3x​​​​​12.8x​​​​​12.0x​​​​​10.4x​​
Price/2019 Consensus Estimated EPS​​​​8.0x​​​​​11.7x​​​​​11.0x​​​​​9.7x​​
4890
TABLE OF CONTENTS
​
(1)
Pricing multiples basedCore income excludes net income attributable to non-controlling interest, non-recurring items, gain/loss on the total deal valuesale of $144,640,060; DCF Analysis — Terminal P/E Multiple median deal value of  $138,853; and a DCF Analysis — Terminal P/TBV Multiple median deal value of  $115,776.securities.
​
(2)
PriceBank level data.
​
Selected Companies Analysis — Fidelity
Stephens used publicly available information to LTM EPS multiplesperform a similar analysis for Fidelity using a peer group of financial institutions selected by Stephens. The Fidelity peer group consisted of 10 Southeast banks whose securities are considered non-meaningfulpublicly traded on Nasdaq, NYSE American with assets between $3.0 billion and $8.0 billion. The Fidelity peer group consisted of the following companies:
•
Carolina Financial Corporation
​
•
City Holding Company
​
•
Community Trust Bancorp, Inc.
​
•
First Bancorp
​
•
Franklin Financial Network, Inc.
​
•
HomeTrust Bancshares, Inc.
​
•
Origin Bancorp, Inc.
​
•
Seacoast Banking Corporation of Florida
​
•
ServisFirst Bancshares, Inc.
​
•
Stock Yards Bancorp, Inc.
​
The analysis compared publicly available financial information for valuesFidelity with the corresponding data for the Fidelity peer group as of or for the three-month period ended September 30, 2018 (unless otherwise indicated), with pricing data as of December 14, 2018. The table below sets forth the data for Fidelity and the 25th percentile, 75th percentile and median data for the Fidelity peer group. Regulatory data was used when GAAP data was unavailable.
​​​Comparable Company Analysis​
​​​Fidelity​​Fidelity Peer Group​
​​​
75th
​​Median​​
25th
​
Total Assets (in millions)​​​$4,812​​​​$5,966​​​​$4,421​​​​$3,632​​
Loans/Deposits​​​​91.5%​​​​​97.6%​​​​​94.6%​​​​​88.6%​​
Core Deposits/Deposits​​​​94.1%​​​​​94.4%​​​​​91.9%​​​​​88.1%​​
Non-performing Assets/Assets​​​​1.03%​​​​​1.03%​​​​​0.74%​​​​​0.35%​​
Tangible Common Equity/Tangible Assets​​​​8.57%​​​​​11.61%​​​​​10.28%​​​​​8.98%​​
Core Return on Average Assets(1)
​​​​0.89%​​​​​1.81%​​​​​1.55%​​​​​1.08%​​
Net Interest Margin​​​​3.48%​​​​​3.91%​​​​​3.80%​​​​​3.54%​​
Efficiency Ratio​​​​79.2%​​​​​60.5%​​​​​55.1%​​​​​50.9%​​
Construction & Development Loans/Total Risk-Based Capital(2)
​​​​60.9%​​​​​79.6%​​​​​66.5%​​​​​50.6%​​
Commercial Real Estate Loans/Total Risk-Based Capital(2)
​​​​144.3%​​​​​249.2%​​​​​234.1%​​​​​203.4%​​
Market Capitalization​​​$584​​​​$1,140​​​​$796​​​​$619​​
Price/Tangible Book Value​​​​1.39x​​​​​2.29x​​​​​1.83x​​​​​1.43x​​
Price/2018 Consensus Estimated EPS​​​​13.6x​​​​​16.9x​​​​​12.9x​​​​​11.4x​​
Price/2019 Consensus Estimated EPS​​​​13.5x​​​​​14.3x​​​​​12.1x​​​​​11.3x​​
​
(1)
Core income excludes net income attributable to non-controlling interest, non-recurring items, gain/loss on sale of securities.
​
(2)
Bank level data.
​
​
91
TABLE OF CONTENTS
Selected Merger Analysis
Stephens reviewed a group of recent merger and acquisition mergers consisting of 14 nationwide bank mergers announced between January 1, 2017 and December 14, 2018, with reported target assets between $3.0 billion and $8.0 billion where the target’s return on average assets was greater than 40.0x.0.50%, the target’s ratio of non-performing assets to total assets was less than 3.0% and the target’s ratio of tangible common equity to tangible assets was less than 13.0%. The precedent mergers group was composed of the following mergers:
Acquirer​​Target​​Announcement Date​
CenterState Bank Corp.​​National Commerce Corp.​​11/26/2018​
PacWest Bancorp​​El Dorado SB FSB​​9/12/2018​
Veritex Holdings Inc.​​Green Bancorp Inc.​​7/24/2018​
People’s United Financial Inc.​​First Connecticut Bancorp, Inc.​​6/19/2018​
BOK Financial Corp.​​CoBiz Financial Inc.​​6/18/2018​
Independent Bk Group Inc.​​Guaranty Bancorp​​5/22/2018​
Cadence Bancorp​​State Bank Financial Corp.​​5/13/2018​
CVB Financial Corp.​​Community Bank​​2/26/2018​
Valley National Bancorp​​USAmeriBancorp Inc.​​7/26/2017​
First Financial Bancorp.​​MainSource Financial Group​​7/25/2017​
South State Corporation​​Park Sterling Corporation​​4/27/2017​
PacWest Bancorp​​CU Bancorp​​4/06/2017​
IBERIABANK Corp.​​Sabadell United Bank N.A.​​2/28/2017​
Pinnacle Financial Partners​​BNC Bancorp​​1/22/2017​
Using the latest publicly available information prior to the announcement of the merger, Stephens reviewed the following merger metrics: deal value, target total assets, target non-performing assets to assets, target tangible common equity to tangible assets, target last twelve months return on average assets, target last twelve months efficiency ratio, price to tangible book value, price to last twelve months earnings per share, price to next fiscal year earnings per share, core deposit premium and market premium. Stephens compared the indicated merger metrics for the merger, based on an aggregate implied merger value of approximately $750.7 million, or a merger price per share of  $27.22, resulting from the closing stock price of Ameris common stock on December 14, 2018 of  $34.02, to the 25th percentile, 75th percentile and median metrics of the precedent mergers group.
​​​Ameris/​
Fidelity		​​Precedent Transactions​
​​​
75th
​​Median​​
25th
​
Deal Value (in millions)​​​$751(3)​​​​$1,022​​​​$928​​​​$741​​
Total Assets (Target)​​​$4,812​​​​$4,389​​​​$3,929​​​​$3,412​​
Non-performing Assets/Assets​​​​1.03%​​​​​0.70%​​​​​0.55%​​​​​0.41%​​
Tangible Common Equity/Tangible Assets​​​​8.76%​​​​​9.33%​​​​​8.96%​​​​​8.86%​​
LTM Return on Average Assets​​​​0.98%​​​​​1.10%​​​​​0.98%​​​​​0.81%​​
LTM Efficiency Ratio​​​​78.9%​​​​​61.0%​​​​​55.3%​​​​​52.8%​​
Price/Tangible Book Value​​​​176.4%​​​​​268.8%​​​​​247.7%​​​​​212.6%​​
Price/LTM EPS(1)
​​​​17.4x(4)​​​​​23.0x​​​​​21.3x​​​​​19.9x​​
Price/Next Year EPS​​​​17.1x(5)​​​​​17.3x​​​​​16.4x​​​​​14.6x​​
Core Deposit Premium​​​​8.8%(6)​​​​​20.4%​​​​​18.0%​​​​​14.2%​​
Market Premium(2)
​​​​27.1%(7)​​​​​17.6%​​​​​10.5%​​​​​3.7%​​
​
(1)
Based on LTM pre-tax earnings, tax-effected at a 22.6% effective tax rate (Fidelity’s year to date effective tax rate as of September 30, 2018).
​
(2)
Market premium based on target’s stock price one day before announcement.
​
(3)
Core deposits are definedMerger value based on Ameris’s closing price of  $34.02 as total deposits less foreign depositsof December 14, 2018 and time deposit accounts greater than $100,000.a 0.8000 exchange ratio.
​
(4)
DCF Analysis utilizes a 13.40% discount rate over a periodBased on Fidelity tangible book value per share of  5.13 years.$15.43 as of September 30, 2018.
​
​
Hovde noted that while the
92
TABLE OF CONTENTS
(5)
Based on Fidelity LTM pre-tax earnings of  $55.7 million, tax-effected at a 22.6% effective tax rate as of September 30, 2018.
​
(6)
Based on Fidelity 2019 EPS of  $1.59 as of December 14, 2018, per FacSet.
​
(7)
Based on Fidelity core deposits of  $3.9 billion and tangible common equity of  $411 million as of September 30, 2018.
​
(8)
Based on Fidelity closing stock price of  $21.42 as of December 14, 2018.
​
Discounted Cash Flow Analysis
Stephens performed a discounted cash flow analysis to estimate a range for the implied equity value of Fidelity, taking into account the cost savings and related expenses expected to result or be derived from the merger as well as certain purchase accounting adjustments assumed with respect thereto. In this analysis, Stephens used financial forecasts and projections relating to the earnings and assets of Fidelity prepared and provided to Stephens by Ameris’s management, and estimated cost savings and related expenses and purchase accounting adjustments that were provided by Ameris’s management. Stephens assumed discount rates ranging from 10.0% to 14.0%. The ranges of values were derived by adding: (i) the present value of the estimated free cash flows that Fidelity could generate over the period from July 1, 2019 to 2023; and (ii) the present value of Fidelity’s implied terminal value at the end of such period. Stephens assumed that Fidelity would maintain a tangible common equity to tangible assets ratio of 9.00% and would retain sufficient earnings to maintain that level. In calculating the terminal value of Fidelity, Stephens applied a range of 9.0x to 13.0x estimated 2023 earnings. This discounted cash flow analysis resulted in a range of implied values per share of Fidelity common stock of approximately $39.53 per share to $60.73 per share.
The discounted cash flow analysis is a widely used valuation methodology, it reliesbut the results of such methodology are highly dependent on numerousthe assumptions that must be made, including asset and earnings growth rates, projectedterminal values, dividend payouts, terminal valuespayout rates, and discount rates. Hovde’sThe analysis doesdid not purport to be indicative of the actual values or expected aggregate values of Atlantic common stock.Fidelity.
Ameris Comparable Companies Analysis:   Hovde used publicly available information to compare selected financial and trading information forRelative Contribution Analysis
Stephens analyzed the relative standalone contribution of Ameris and a groupFidelity to various pro forma balance sheet and income statement items of 16 publicly-traded financial institutions selected by Hovde based on publicly-traded banks headquartered in Alabama, Arkansas, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, and West Virginia with total assets between $4.0 billion and $12.0 billion and LTM ROAA greater than 0.75%.
​South State Corporation​​CenterState Bank Corporation​
​United Community Banks, Inc.​​ServisFirst Bancshares, Inc.​
​Renasant Corporation​​Seacoast Banking Corporation of FL​
​FCB Financial Holdings, Inc.​​State Bank Financial Corporation​
​WesBanco, Inc.​​FirstBancorp​
​Simmons First National Corporation​​FB Financial Corporation​
​Union Bankshares Corporation​​Fidelity Southern Corporation​
​TowneBank​​City Holding Company​
Thethe combined entity. This analysis compared publicly available financial and market trading information for Ameris and the data for the 16 financial institutions identified above as of and for the most recent twelve-month period which was publicly available. The table below compares theexcluded purchase accounting adjustments. To perform this analysis, Stephens used: (i) balance sheet data for Ameris and the medianFidelity as of September 30, 2018; and (ii) estimated earnings data for Ameris and Fidelity taken from mean analyst estimates. The results of the 16 financial institutions identified above,analysis are set forth in the following table, which also compares the results of the analysis with pricing datathe implied pro forma ownership percentages of Ameris’s and Fidelity’s respective shareholders in the combined company based on the exchange ratio of 0.8000x in the merger:
​​​Ameris
% of Total		​​Fidelity
% of Total		​
Balance Sheet​​​​​​​​​​​​​
Assets​​​​70.4%​​​​​29.6%​​
Gross Loans​​​​68.0%​​​​​32.0%​​
Deposits​​​​69.4%​​​​​30.6%​​
Equity​​​​76.5%​​​​​23.5%​​
Tangible Equity​​​​67.3%​​​​​32.7%​​
Income Statement​​​​​​​​​​​​​
Last Twelve Months (“LTM”) Operating Pre-Tax Income(1)
​​​​73.2%​​​​​26.8%​​
2018E Operating Income(2)
​​​​76.2%​​​​​23.8%​​
2019E Operating Income(2)
​​​​82.0%​​​​​18.0%​​
Ownership(3)​​​​​​​​​​​​​
100% Common Stock at 0.8000x Exchange Ratio​​​​68.4%​​​​​31.6%​​
​
(1)
Operating pre-tax income reflects reported pre-tax income plus merger charges and any other one-time costs.
​
(2)
Ameris and Fidelity earnings per consensus operating estimates per Factset.
​
​
93
TABLE OF CONTENTS
(3)
Shares of Ameris common stock outstanding of 47,500,913 and options outstanding of 84,307 with weighted average strike price of  $11.51 as of November 13, 2017.
​​​Market
Cap
($M)		​​Price/​
Tangible
Book
Value		​​Price/​
LTM
EPS		​​Price/​
2017E
EPS		​​Dividend
Yield		​​YTD Price
Change		​​Two
Year
Total
Return		​
Ameris​​​$1,741​​​​​262.9%​​​​​20.6x​​​​​18.9x​​​​​0.86%​​​​​7.2%​​​​​47.4%​​
Comparable Companies:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Median​​​$1,634​​​​​226.7%​​​​​19.7x​​​​​18.0x​​​​​1.75%​​​​​(2.1)%​​​​​37.5%​​
Ameris fell within the range30, 2018. Shares of pricing metricsFidelity common stock outstanding of comparable companies. No company used27,298,456 as of November 30, 2018, 73,486 additional projected restricted stock awards to be awarded in first quarter 2019 and 916,994 in-the-money options with a comparison in the above analysis is identical to Ameris. Accordingly, an analysisweighted average exercise price of  these results is not strictly mathematical. Rather, it involves complex considerations and judgments concerning differences in financial and operating characteristics of the companies.$20.91, rolled over.
Accretion/Dilution​
Pro Forma Financial Impact Analysis:   Hovde
Stephens performed a pro forma mergerfinancial impact analysis that combined projected income statement and balance sheet information of AtlanticAmeris and Ameris. Assumptions regarding theFidelity. Using closing balance sheet estimates as of June 30, 2019 for Ameris and Fidelity provided by Ameris management, consensus earnings estimates of Ameris for 2018 and 2019, as well as assumed long term growth rates based thereon provided by Ameris’s management, certain financial and operating forecasts and projections for Fidelity provided by Ameris’s management, and pro forma assumptions (including certain purchase accounting treatment, acquisition adjustments, cost savings and synergies were used to calculaterelated expenses) provided by Ameris’s management, Stephens analyzed the potential financial impact thatof the merger would have on certain projected financial results of Ameris. For purposes of this analysis, Hovde used the S&P Cap IQ mean of analyst earnings estimates for Ameris for the years ended or ending December 31, 2017, December 31, 2018, December 31, 2019, and an effective tax rate of 31% and an earnings growth rate of 10.0% were assumed for December 31, 2020. Additionally, Hovde used
49
TABLE OF CONTENTS​
earnings estimates provided by Atlantic’s management for Atlantic for the years ended or ending December 31, 2017, December 31, 2018, December 31, 2019, and December 31, 2020. This analysis indicated that the merger is expected to be accretive by $0.09 per share to Ameris’ consensus estimated earnings per share of  $3.13 in 2018, accretive by $0.15 per share to Ameris’ consensus estimated earnings per share of  $3.61 in 2019, and accretive by $0.15 per share to Ameris’ consensus estimated earnings per share of  $3.97 in 2020. The analysis also indicated that the merger is expected tocould be accretive to Ameris’s 2020 estimated EPS, accretive to Ameris’s estimated book value per share as of June 30, 2019 and dilutive to Ameris’s estimated tangible book value per share as of June 30, 2019. The analysis indicated that, pro forma for Ameris by $0.21 per share in 2018, accretive by $0.38 per share inthe merger, Ameris’s tangible common equity to tangible assets ratio as of June 30, 2019 could be unchanged. Furthermore, the analysis indicated that, pro forma for the merger, each of Ameris’s Leverage Ratio, Tier 1 Risk-Based Capital Ratio and accretive by $0.55 per share in 2020 and that Ameris would maintain capital ratios in excessTotal Risk-Based Capital Ratio as of those required for Ameris toJune 30, 2019 could be considered well-capitalized under existing regulations.lower. For all of the above, analyses, the actual results achieved by Atlantic and Ameris prior to and following the merger may vary from the projected results, and the variations may be material.
Other FactorsAdditional Considerations
The preparation of a fairness opinion is a complex process and Analyses.   Hovde took into consideration various other factorsis not susceptible to a partial analysis or summary description. Stephens believes that its analyses must be considered as a whole and that selecting portions of its analyses, including: current market environment; merger and acquisition environment; movements inwithout considering the common stock valuationsanalyses taken as a whole, would create an incomplete view of selected publicly-traded banking companies; and movements in the S&P 500 Index.
Conclusion.   Based uponprocess underlying its opinion. In addition, Stephens considered the foregoingresults of all such analyses and did not assign relative weights to any of the analyses, but rather made qualitative judgements as to significance and relevance of each analysis and factor, so the ranges of valuations resulting from any particular analysis described above should not be taken to be the view of Stephens as to the actual value of Fidelity.
In performing its analyses, Stephens made numerous assumptions with respect to industry performance, general business, economic and regulatory conditions and other investigations and assumptions as set forthmatters, many of which are beyond the control of Ameris. The analyses performed by Stephens are not necessarily indicative of actual values, trading values or actual future results which might be achieved, all of which may be significantly more or less favorable than suggested by such analyses. Such analyses were provided to the Ameris board of directors (solely in its opinion, without giving specific weightings to any one factor, analysis or comparison, Hovde determined that,capacity as such) and were prepared solely as part of the dateanalysis of Stephens of the its opinion,fairness, from a financial point of view, to Ameris, of the merger consideration to be paidgiven by Ameris in the merger. The analyses do not purport to be appraisals or to reflect the prices at which companies may actually be bought or sold, and such estimates are inherently subject to uncertainty. The opinion of Stephens was one of many factors taken into account by the Ameris board of directors in making its determination to adopt the merger agreement and approve the transactions contemplated thereby. Neither the opinion of Stephens nor the analyses described above should be viewed as determinative of the views of the Ameris board of directors’ or Ameris’s management with respect to Ameris, Fidelity or the merger. Stephens provided advice to Ameris with respect to the merger. Stephens did not, however, recommend any specific amount of consideration to the Ameris board of directors or that any specific merger consideration constituted the only appropriate consideration for the merger. Ameris placed no limits on the scope of the analysis performed, or opinion expressed, by Stephens.
The Stephens opinion was necessarily based upon market, economic, and other circumstances and conditions existing and can be evaluated on, and on the information made available to Stephens as of December 14, 2018. It should be understood that subsequent developments may affect the opinion of Stephens and that Stephens does not have any obligation to update, revise or reaffirm its opinion. Stephens
94
TABLE OF CONTENTS​​
has assumed that the merger will be consummated on the terms of the merger agreement provided to it, without material waiver or modification. Stephens has also assumed that in the course of obtaining the necessary regulatory, lending or other consents or approvals (contractual or otherwise) for the merger, no restrictions, including any divestiture requirements or amendments or modifications, will be imposed that would have a material adverse effect on the contemplated benefits of the merger to Ameris.
Pursuant to the Stephens’s engagement agreement, Ameris agreed to pay Stephens a fee equal to $5,000,000 for its services in connection with the merger is fairupon the closing of the merger. In addition, for services rendered in connection with the delivery of its opinion, Ameris paid Stephens a fee equal to $1,000,000 upon delivery of its opinion. Ameris also agreed to reimburse Stephens for out-of-pocket expenses and disbursements incurred in connection with its engagement and to indemnify Stephens against certain liabilities relating to or arising out of Stephens’ engagement or Stephens’s role in connection therewith. In addition to this present engagement, Stephens has provided investment banking and financial advisory services to Ameris in the holders of Atlantic common stock frompast two years. Stephens was engaged in December 2016, March 2017 and January 2018 as an advisor for Ameris in connection with a financial point of view.
Ameris’s Reasonsmerger, as an underwriter in a follow on equity offering and a subordinated debt offering for Ameris and as an advisor for Ameris in connection with a merger, respectively. Stephens received compensation for the Mergeraforementioned engagements in the aggregate amount of  $6.1 million. In the past two years, Stephens has not provided investment banking and financial advisory services to Fidelity.
Stephens is actively involved in the investment banking business and regularly undertakes the valuation of investment securities in connection with public offerings, private placements, business combinations and similar mergers. In the ordinary course of business, Stephens makes a market in the stocks of Ameris and Fidelity and may trade in the securities of Ameris and Fidelity for its own account and for the accounts of its customers and, accordingly, may at any time hold a long or short position in such securities. Stephens may provide investment banking, financial advisory and other financial services to Ameris and/or Fidelity or other participants in the merger in the future, for which Stephens may receive compensation.
The Ameris boardBoard of directors has concluded thatDirectors and Ameris’s Executive Officers After the merger is inMerger
At the best interest of Ameris and its shareholders. In reaching its decision to approve and adopt the Merger Agreement,effective time, the Ameris board of directors evaluatedwill be increased in size by five to fourteen members, and the following members of the Fidelity board of directors will be appointed to fill the resulting vacancies: James B. Miller, Jr., H. Palmer Proctor, Jr., Gloria A. O’Neal, Rodney D. Bullard and Wm. Millard Choate. If any such person becomes unable or unwilling to serve as an Ameris director prior to the effective time, a replacement mutually acceptable to Ameris and Fidelity will be chosen. In addition, the nine members of the Ameris board of directors serving immediately prior to the effective time will continue to serve as Ameris directors at and after the effective time.
Also, at the effective time, James B. Miller, Jr., Chairman and Chief Executive Officer of Fidelity, will become Executive Chairman of Ameris, and H. Palmer Proctor, Jr., President of Fidelity and Chief Executive Officer of Fidelity Bank, will become President of Ameris. The other existing officers of Ameris will continue to hold after the effective time the offices they held prior to the effective time.
Information regarding the current directors and executive officers of Ameris and the directors and executive officers of Fidelity who will serve as directors and executive officer of Ameris at and after the effective time, including biographical information, compensation and stock ownership, can be found in Ameris’s proxy statement for its 2018 annual meeting of shareholders, and Fidelity’s proxy statement for its 2018 annual meeting of shareholders, respectively, each of which was filed with the SEC and is incorporated by reference into this joint proxy statement/prospectus. See “Where You Can Find More Information.”
Interests of Fidelity’s Directors and Executive Officers in the Merger
In considering the recommendation of the Fidelity board of directors, Fidelity shareholders should be aware that the directors and executive officers of Fidelity have certain interests in the merger andthat may be different from, or in addition to, the Merger Agreement in consultation with Ameris’s management, as well as Ameris’s financial and legal advisors,interests of Fidelity shareholders generally. The Fidelity board of directors was aware of these interests and considered them, among other matters, in making its recommendation that Fidelity shareholders vote to approve the merger proposal.
95
TABLE OF CONTENTS
Treatment of Fidelity’s Equity-Based Awards
At the effective time, each Fidelity option will fully vest and convert into a numberstock option of factorsequivalent value to purchase shares of Ameris common stock, and each Fidelity restricted stock award will fully vest and convert into the right to receive the merger consideration in favorrespect of each share of Fidelity common stock subject to such award. In order to mitigate any potential impact of Sections 280G and 4999 of the Code in connection with the merger, the vesting of 125,000 restricted shares held by Mr. Miller and 75,000 restricted shares held by Mr. Proctor was accelerated into December 2018. In addition, under the merger agreement, Fidelity has reserved flexibility to amend the stock options held by its non-employee directors to provide that such options shall remain exercisable for their full terms following the termination of the holder’s service.
For an estimate of the amounts that would become payable to Fidelity’s named executive officers upon the vesting and settlement of their unvested equity-based awards, see “— Quantification of Potential Payments to Fidelity’s Named Executive Officers in Connection with the Merger.” Fidelity estimates that the aggregate amount that would become payable to its nine non-employee directors in settlement of their unvested equity-based awards if the closing date were February 8, 2019, based on a price per share of Company common stock of  $25.29 (the average closing price of common stock of Fidelity over the five trading days following announcement of the merger), to be $517,511.
New Employment Agreements with Ameris
In connection with the execution of the merger includingagreement, Ameris entered into employment agreements with Messrs. Miller and Proctor setting forth the terms of their employment with Ameris following the effective time of the merger. The employment agreements provide that Mr. Miller will serve as Executive Chairman and member of the boards of directors of Ameris and Ameris Bank, and Mr. Proctor will serve as President of Ameris and Chief Executive Officer of Ameris Bank and member of the boards of directors of Ameris and Ameris Bank. In consideration for their services, the executives will be entitled to (i) an annual base salary (of  $1,000,000 for Mr. Miller and $800,000 for Mr. Proctor), (ii) incentive compensation opportunities that are no less favorable than those provided by Fidelity prior to closing or, if more favorable, those provided to other senior executives of Ameris, provided that the target annual incentive opportunities will not be less than 50% of the applicable executive’s annual base salary, and (iii) employee benefits and fringe benefits (including life insurance, vacation, reimbursement of club dues and automobile benefits) that are no less favorable than those provided by Fidelity prior to closing or, if more favorable, those provided to other senior executives of Ameris. In addition, at the effective time, each of the executives will receive (x) a one-time transition payment (of  $4,000,000 for Mr. Miller and $2,600,000 for Mr. Proctor) and (y) a payment in settlement of all obligations under their salary continuation agreements (as described further below under the caption “— Salary Continuation Agreements with Fidelity”).
If the employment of Mr. Miller or Mr. Proctor is terminated by Ameris without cause or by the executive for good reason during the term of his employment agreement, subject to the execution of a release of claims, he would be entitled to the following material factors, which are not presented in order of priority:severance benefits:
•
eachSeverance Payment.   A cash severance payment equal to the excess of  Ameris’s, Atlantic’s(a) the product of  (i) three multiplied by (ii) the executive’s “Final Compensation” (which is defined generally as the sum of the executive’s annual base salary and the combined company’s business, operations, financial condition, earnings and prospects, taking into accountgreater of the results of Ameris’s due diligence review of Atlantic, which included financial, credit, legal, regulatory and operational due diligence,executive’s target annual cash bonus opportunity and the conclusion that Atlantic’s financial condition, capital adequacy and asset quality were sound and would complement thoseannual cash bonus paid for the year preceding the year of Ameris;termination) over (b) the amount described in the immediately following bullet, payable in installments over 36 months.
​
•
Ameris’s beliefNoncompete Payment.   A cash payment equal to 60% of the annual base salary that Ameris and Atlantic share a compatible community banking model, including with respectwould have been payable to strategic focus, client service, credit culture and risk profiles;the executive during the 18-month restrictive covenant period (as described below), payable in installments over 18 months.
​
•
Welfare Benefit Continuation.   Continued participation in employee welfare benefit programs for 18 months after the fact that thatdate of termination on the merger would enable Ameris to continue its focus, and expand its existing presence, in the high growth, attractive Jacksonville, Florida market by the addition of certain branches operated by Atlantic;
​
•
the belief that the merger would solidify Ameris’s positionsame basis as the largest community bank by deposit market share in the Jacksonville, Florida market;
​
•
the belief that the merger will afford Ameris the opportunity to expand its revenue sources and sustain its robust loan and deposit origination trends in Ameris’s and Atlantic’s current markets;
​
•
Ameris and Atlantic have complementary footprints in both Northern Florida and Southern Georgia, and Ameris’s management’s belief that that the significant market overlap will allow for considerable operating efficiencies;
​
•
the belief that that the merger will be financially accretive to Ameris’s earnings per share due to a combination of revenue synergies, cost efficiencies and other cost savings opportunities for the combined company;
​
•
the Ameris board of director’s understanding of the current and prospective economic, interest rate, regulatory and competitive environment in which Ameris and Atlantic operate, and the likely effect of these factors on Ameris, both with and without the merger;executives.
​
​
5096
TABLE OF CONTENTS
•
Prorated Bonus.   A prorated annual cash bonus for the year in which termination occurs, determined assuming performance goals are satisfied at the target level.
​
•
Long-Term Incentive Awards.   Full vesting of any equity or other long-term incentive awards, with any applicable performance goals deemed satisfied at the greater of target and actual performance and with any stock options exercisable for the full remaining term thereof.
​
The employment agreements also provide that Ameris will maintain, during the executive’s lifetime, life insurance policies in the aggregate face amount of  $8 million for Mr. Miller and $1.5 million for Mr. Proctor.
If the compensation and benefits payable under the employment agreements would be subject to Section 280G of the Code, such amounts would be reduced to the extent such reduction would place the applicable executive in a better after-tax position.
The employment agreements contain certain restrictive covenants, including a perpetual nondisclosure covenant and covenants concerning noncompetition and nonsolicitation of clients, customers and employees, each of which apply for 18 months following the applicable executive’s termination of employment.
Employment and Change in Control Agreements with Fidelity
Superseded Employment Agreements with James Miller and Palmer Proctor
As noted above, Fidelity is party to employment agreements Messrs. Miller and Proctor, which will be superseded upon the effective time by new employment agreements with Ameris. Under the superseded Fidelity employment agreements, if the employment of Mr. Miller or Mr. Proctor were terminated involuntarily without cause or by the executive for good reason during the term of his employment agreement, subject to the execution of a release of claims, he would be entitled to the following severance benefits:
•
Severance Payment.   A cash severance payment equal to the excess of  (a) the product of  (i) three multiplied by (ii) the executive’s “Final Compensation” over (b) the amount described in the immediately following bullet, payable in installments over 36 months. For purposes of such agreements, if the termination occurs within one year following a change of control, the term “Final Compensation” is defined generally as the highest of the executive’s (x) compensation for the 12-month period immediately preceding a change in control, (y) base salary in effect immediately preceding the change in control and (z) base salary set at any time during the employment period.
​
•
Noncompete Payment.   A cash payment equal to 60% of the annual base salary that would have been payable to the executive during the 18-month restrictive covenant period (as described below), payable in installments over 18 months.
​
•
Welfare Benefit Continuation.   Continued participation in employee welfare benefit programs for 18 months after the date of termination on the same basis as other executives.
​
•
Outplacement.   Outplacement services up to a total cost of  $20,000 for up to two years post-termination.
​
The employment agreements also provide that Fidelity will maintain, during the executive’s lifetime, life insurance policies in the aggregate face amount of  $8 million for Mr. Miller and $1.5 million for Mr. Proctor.
If the compensation and benefits payable under the employment agreements would be subject to Section 280G of the Code, such amounts would be reduced to the extent such reduction would place the applicable executive in a better after-tax position.
The employment agreements contain certain restrictive covenants, including covenants concerning nondisclosure, nonsolicitation of clients, customers and employees and, if the executive’s employment is terminated for any reason other than by Fidelity, noncompetition, each of which apply for 18 months following the executive’s termination of employment.
97
TABLE OF CONTENTS
Executive Continuity Agreements with Charles Christy and David Buchanan
Fidelity is party to executive continuity agreements with Messrs. Christy and Buchanan. Under such agreements, if the employment of Mr. Christy or Mr. Buchanan were terminated involuntarily without cause or by the executive for good reason within 12 months following a change in control, subject to the execution of a release of claims, the executive would be entitled to the following severance benefits:
•
Severance Payment.   A cash severance payment equal to the excess of  (a) the executive’s “Final Compensation” (defined similarly to the definition in Fidelity’s employment agreements with Messrs. Miller and Proctor) over (b) the amount described in the immediately following bullet, payable in installments over 12 months.
​
•
Noncompete Payment.   A cash payment equal to 40% of the annual base salary that would have been payable to the executive during the 12-month restrictive covenant period (as described below), payable in installments over 12 months.
​
•
Welfare Benefit Continuation.   For Mr. Christy, fully subsidized premium payments for any health care continuation coverage that is required by applicable law for a period of 12 months, and (b) for Mr. Buchannan continued participation in employee welfare benefit programs for 12 months after the date of termination on the same basis as other executives.
​
•
Outplacement.   Outplacement services up to a total cost of  $20,000 for up to two years post-termination.
​
The executive continuity agreement with Mr. Buchanan also provides that he will be covered, during his lifetime, by a life insurance policy in the face amount of  $500,000, provided that his termination constitutes a retirement. Under the merger agreement, Fidelity has reserved flexibility to clarify that a retirement means any termination of employment following the effective time.
If the compensation and benefits payable under the executive continuity agreements would be subject to Section 280G of the Code, such amounts would be reduced to the extent such reduction would place the applicable executive in a better after-tax position.
The employment agreements contain certain restrictive covenants, including covenants concerning nondisclosure, nonsolicitation of clients, customers and employees and noncompetition, each of which apply for 12 months following the executive’s termination of employment.
Estimated Value of Severance Entitlements
For an estimate of the amounts that would become payable to Fidelity’s named executive officers under their employment or executive continuity agreements if a severance-qualifying termination of employment were to occur immediately following the effective time, see “— Quantification of Potential Payments to Fidelity’s Named Executive Officers in Connection with the Merger.”
Salary Continuation Agreements with Fidelity
Fidelity is party to salary continuation agreements with each of its named executive officers (other than Mr. Christy), which agreements will terminate in connection with the closing of the merger in exchange for a cash payment in the following amounts: Mr. Miller — $5,930,000; Mr. Proctor — $3,560,000; Mr. Buchanan — $2,970,000; Mr. Brolly — $246,048.
Director and Officer Indemnification and Insurance
Pursuant to the terms of the merger agreement, for a period of six years from the effective time, Ameris will indemnify certain persons, including Fidelity’s directors and executive officers. In addition, for a period of six years from the effective time, Ameris will maintain Fidelity’s current directors’ and officers’ liability insurance policies. For additional information, see “The Merger Agreement — Director and Officer Indemnification and Insurance.”
98
TABLE OF CONTENTS​
Post-Closing Roles
As noted above, Mr. Miller, currently Chairman and Chief Executive Officer of Fidelity, will become Executive Chairman of Ameris and Ameris Bank at the effective time, and Mr. Proctor, currently President of Fidelity and Chief Executive Officer of Fidelity Bank, will become President of Ameris and Chief Executive Officer of Ameris Bank at the effective time. In addition, Messrs. Miller and Proctor, as well as Gloria A. O’Neal, Rodney D. Bullard and Wm. Millard Choate, each currently a member of the Fidelity board of directors, will be appointed to serve on the boards of directors of Ameris and Ameris Bank at the effective time.
Merger-related Compensation for Fidelity’s Named Executive Officers
The information set forth in the table below is intended to comply with Item 402(t) of Regulation S-K, which requires disclosure of information about certain compensation for each of Fidelity’s named executive officers that is based on or otherwise relates to the merger. The merger-related compensation described below is based on the named executive officers’ existing compensation arrangements with Fidelity. With respect to Messrs. Miller and Proctor, in accordance with SEC guidance, it describes the severance that would be payable under their existing agreements with Fidelity, which will be superseded upon the closing of the merger by employment agreements with Ameris. For additional details regarding the terms of the payments described below, as well as the terms of the employment agreements between Ameris and Messrs. Miller and Proctor, see the discussion under the caption “— Interests of Fidelity’s Directors and Executive Officers in the Merger.”
The amounts indicated below are estimates based on multiple assumptions that may or may not actually occur or be accurate on the relevant date, including the assumptions described below, and do not reflect certain compensation actions that may occur before the effective time. For purposes of calculating such amounts, we have assumed:
•
Ameris’s past recordFebruary 8, 2019 as the closing date of integrating acquisitions and of realizing projected financial goals and benefits;the merger;
​
•
a termination of each named executive officer’s employment without cause, as of immediately following the fact that Atlantic stockholders would own no more than [•]%effective time of the outstandingmerger; and
​
•
a price per share of Fidelity common stock of  $25.29 (the average closing price of Fidelity common stock over the five trading days following announcement of the merger).
​
Name​​
Cash
($)(1)
​​
Equity
($)(2)
​​
Perquisites/​
Benefits
($)(3)
​​Total
($)		​
Named Executive Officers​​​​​​​​​​​​​​​​​​​​​​​​​
James B. Miller, Jr.​​​​9,907,854​​​​​366,224​​​​​65,472​​​​​10,339,550​​
Charles D. Christy​​​​537,844​​​​​239,876​​​​​47,694​​​​​825,413​​
H. Palmer Proctor, Jr.​​​​6,148,121​​​​​228,900​​​​​61,046​​​​​6,438,067​​
David Buchanan​​​​3,567,820​​​​​1,026,091​​​​​42,439​​​​​4,636,350​​
Stephen H. Brolly​​​​246,048​​​​​—​​​​​—​​​​​246,048​​
​
(1)
The cash amount payable to the named executive officers consists of the following:
​
(a)
Cash Severance.   A cash severance payment equal to the excess of  (i) the product of  (A) three (for Messrs. Miller and Proctor) or one (for Messrs. Christy and Buchanan), multiplied by (B) the named executive officer’s “Final Compensation” (as defined above), over (ii) the amount described in the immediately following bullet, which is payable in installments over 36 months (for Messrs. Miller and Proctor) or 12 months (for Messrs. Christy and Buchanan) following a termination of employment without cause or for good reason (i.e., “double-trigger”);
​
(b)
Noncompete Payment.   A cash payment equal to 60% (for Messrs. Miller and Proctor) or 40% (for Messrs. Christy and Buchanan) of the annual base salary that would have been payable to the executive during the 18-month (for Messrs. Miller and Proctor) or 12-month (for Messrs. Christy
​
​
99
TABLE OF CONTENTS​
and Buchanan) restrictive covenant period under their employment or executive continuity agreements, payable in installments over 18 months (for Messrs. Miller and Proctor) or 12 months (for Messrs. Christy and Buchanan) following a termination of employment without cause or for good reason (i.e., “double-trigger”); and
(c)
Salary Continuation Payment.   A cash payment in settlement of all obligations under the named executive officers’ salary continuation agreements with Fidelity, which would terminate in connection with the closing of the merger (i.e., “single-trigger”).
​
Mr. Brolly’s employment with Fidelity terminated on June 26, 2017, and therefore he is entitled to only the salary continuation payment.
Set forth below is the estimated value of each component of the aggregate cash amount.
Name​​Cash
Severance
($)		​​Noncompete
Payment
($)		​​Salary
Continuation
Payment
($)		​
Named Executive Officers​​​​​​​​​​​​​​​​​​​
James B. Miller, Jr.​​​​3,077,854​​​​​900,000​​​​​5,930,000​​
Charles D. Christy​​​​387,844​​​​​150,000​​​​​—​​
H. Palmer Proctor, Jr.​​​​1,868,121​​​​​720,000​​​​​3,560,000​​
David Buchanan​​​​437,820​​​​​160,000​​​​​2,970,000​​
Stephen H. Brolly​​​​—​​​​​—​​​​​246,048​​
(2)
At the effective time, each Fidelity restricted stock award would fully vest (i.e., single-trigger) and convert into the right to receive the merger consideration in respect of each share of Fidelity common stock subject to such award. In addition to the restricted shares reflected above, in order to mitigate any potential impact of Sections 280G and 4999 of the Code in connection with the merger, the vesting of 125,000 restricted shares (which would have had a value of  $3,161,250 at $25.29 per share) held by Mr. Miller and 75,000 restricted shares (which would have had a value of  $1,896,750 at $25.29 per share) held by Mr. Proctor was accelerated into December 2018. As of February 8, 2019, the named executive officers only held restricted stock awards.
​
(3)
Under their employment or executive continuity agreements, Messrs. Miller, Proctor and Buchanan are entitled to continued participation in employee welfare benefit programs for 18 months (for Messrs. Miller and Proctor) or 12 months (for Mr. Buchanan) after the date of termination on the same basis as other executives. Mr. Christy, under his executive continuity agreement, is entitled to fully subsidized premium payments for any health care continuation coverage that is required by applicable law for a period of 12 months. In addition, each of the named executive officers (other than Mr. Brolly, whose employment has terminated) is entitled to outplacement benefits up to a total cost of $20,000 for up to two years post-termination. The executive continuity agreement with Mr. Buchanan also provides that he will be covered, during his lifetime, by a life insurance policy in the face amount of  $500,000, provided that his termination constitutes a retirement. Under the merger agreement, Fidelity has reserved flexibility to clarify that a retirement means any termination of employment following the effective time. All premiums with respect to such policy have been fully paid as of the date of this joint proxy statement/prospectus. All of the benefits described in this footnote are payable double-trigger.
​
Dividend Policy
Ameris currently pays a quarterly cash dividend of  $0.10 per share of Ameris common stock, which is expected to continue until the effective time, although the Ameris board of directors may change this dividend policy at any time. Fidelity currently pays quarterly cash dividends of  $0.12 per share of Fidelity common stock, which is expected to continue until the effective time, although, subject to certain restrictions in the merger agreement, the Fidelity board of directors may change this dividend policy at any time.
100
TABLE OF CONTENTS​​​
The merger agreement provides that, commencing no later than the first quarterly dividend payable on shares of Ameris common stock immediately following the completioneffective time and subject to applicable law, Ameris will effect an increase in the amount of the merger (assuming 2,644,131Ameris’s regular quarterly dividend on shares of Ameris common stock are issued into $0.15 per share.
Funds for the merger and there are [•] sharespayment of cash dividends on Ameris common stock outstanding immediately beforeare obtained from dividends received by Ameris from Ameris Bank. Accordingly, the effective timedeclaration and payment of cash dividends on Ameris common stock depends upon Ameris Bank’s earnings, financial condition, general economic conditions, compliance with regulatory requirements and other factors. Restrictions on Ameris Bank’s ability to transfer funds to Ameris in the form of cash dividends exist under federal and state law and regulations. For a discussion of these restrictions, see “Supervision and Regulation — Payment for Dividends and Other Restrictions” in Item 1, “Business,” and Note 21, “Regulatory Matters,” in the Notes to Consolidated Financial Statements in Item 8, “Financial Statements and Supplementary Data,” each in Ameris’s Annual Report on Form 10-K for the year ended December 31, 2017, which is incorporated by reference into this joint proxy statement/prospectus.
Public Trading Markets
Ameris common stock is listed on the Nasdaq under the symbol “ABCB.” Fidelity common stock is listed on the Nasdaq under the symbol “LION.” Upon completion of the merger);merger, Fidelity common stock will be delisted from the Nasdaq and thereafter will be deregistered under the Exchange Act and Fidelity will no longer be required to file periodic reports with the SEC with respect to the Fidelity common stock. Following the merger, the Ameris common stock will continue to be listed on the Nasdaq.
​
•
Under the financial and other terms and conditions ofmerger agreement, Ameris will cause the Merger Agreement, including provisions for the payment by Atlantic to Ameris of a termination fee if the Merger Agreement is terminated under certain circumstances and the fact that the exchange ratio and total number of shares of Ameris common stock to be issued in the merger are essentially fixed.
​
The Ameris boardas merger consideration to be approved for listing on the Nasdaq, subject to official notice of directors also considered potential risks relatingissuance, prior to the effective time.
Appraisal Rights in the Merger
Under Article 13 of the GBCC, Fidelity shareholders will not be entitled to appraisal rights or dissenters’ rights in connection with the merger includingif, on the following:record date for the Fidelity special meeting, their shares are listed on a national securities exchange or held of record by more than 2,000 shareholders, and they accept as consideration for their shares the shares of the surviving corporation or another publicly held corporation which at the effective date of the merger are either listed on a national securities exchange or held of record by more than 2,000 shareholders, except for cash paid in lieu of fractional shares. The Fidelity common stock is currently listed on Nasdaq, a national securities exchange, and is expected to continue to be so listed on the record date for the Fidelity special meeting. The Fidelity shareholders will receive shares of Ameris common stock as merger consideration, which are currently listed on the Nasdaq, and are expected to continue to be so listed at the effective date of the merger. Accordingly, the Fidelity shareholders will not be entitled to any appraisal rights or dissenters’ rights in connection with the merger.
•
Regulatory Approvals Required for the Merger
Subject to the needterms of the merger agreement, both Ameris and Fidelity have agreed to use their reasonable best efforts to obtain all regulatory approvals required or advisable to consummate and make effective, in the requisite Atlantic stockholder approval to completemost expeditious manner practicable, the transactions contemplated by the merger agreement and the bank merger agreement. Under applicable law, the merger must be approved by the Federal Reserve, and the bank merger must be approved by the FDIC. In addition, the GDBF must also approve the merger and the risk that that or other conditions would not be satisfied;bank merger.
​
•
the possibility that Ameris would not be ablehas filed all notices and applications to obtain the requirednecessary regulatory approvals for the merger and the bank merger. Although the parties currently believe they should be able to obtain all regulatory approvals in a prompt fashion,timely manner, they cannot be certain when or at all, dueif they will obtain them or, if obtained, whether they will contain terms, conditions or restrictions not currently contemplated that will be detrimental to the Consent Order (which has subsequently been terminated);
​
•
combined company after the possibility that other merger and acquisition opportunities would be foregone while finalizing the merger with Atlantic;
​
•
the potential risks associated with integrating Atlantic’s business, operations and workforce with those of Ameris, including the execution risk of data system conversion and the possible negative effect on customer and employee relationships;
​
•
that Ameris may not realize from the merger all of the anticipated cost synergies and savings in the amounts estimated or in the time frame contemplated;
​
•
the potential risk of diverting management attention and resources from the operation of the business of Ameris and towards completion of the merger and integration of operations;
​
•
approvals from regulatory authorities could impose conditions that could have the effect of delaying completion of the merger or imposing additional costs; and
​
•
the expenses to be incurred in working towards completion of the merger.
​
The foregoing discussion of the factors considered by the Ameris board of directors is not intended to be exhaustive, but rather includes the material factors considered by the Ameris board of directors. In reaching its decision to approve and adopt the Merger Agreement and the transactions contemplated thereby, the Ameris board of directors did not quantify or assign any relative weights to the factors considered, and individual directors may have given different weights to different factors. The Ameris board of directors considered the foregoing factors as a whole, including discussions with, and questioning of, Ameris’s management and financial and legal advisors, and unanimously concluded We make no assurance that the positive factors outweighed the negative factors andregulatory approvals received will not contain any condition applicable to Ameris, Fidelity or any of their respective subsidiaries that the factors as a whole supported a determination to approve and adopt the Merger Agreement.
The decision to enter into the Merger Agreement was unanimously approved by the Ameris board of directors on October 17, 2017.
Interests of Atlantic Directors and Executive Officerswould result in the Merger
Someimposition of Atlantic’s executive officers participated in negotiations of the Merger Agreement with Ameris, and the board of directors of Atlantic adopted the Merger Agreement and is recommending that Atlantic stockholders vote “FOR” the Merger Agreement. In considering these facts and the other information contained in this proxy statement/prospectus, you should be aware that Atlantic’s executive officers and directors have interests in the merger that are in addition to, or different from, the interests of Atlantic stockholders generally.a materially burdensome regulatory condition.
51101
TABLE OF CONTENTS
Golden Parachute Compensation to Executive Officers.   Each of Atlantic’s three executive officers will receive cash paymentsFederal Reserve and accelerated vesting of their restricted stock awards.FDIC
At the effective timeCompletion of the merger Atlantic’s executive officers will each receive cash change-in-control paymentsis subject, among other things, to approval by the Federal Reserve pursuant to the terms of their existing agreements with Atlantic. Mr. Stephens will receive a payment of approximately $1,150,939, Ms. Keegan will receive a payment of approximately $624,167, and Phillip S. Buddenbohm, Chief Credit Officer and Executive Vice President of Atlantic, will receive a payment of approximately $562,525.
At the effective timeSection 3 of the merger,Bank Holding Company Act of 1956, as amended (which we refer to as the unvested shares“BHC Act”). In considering the approval of restricted stock held by Atlantic’s executivean application under Section 3 of the BHC Act, the Federal Reserve reviews certain factors, including: (i) the competitive impact of the transaction; (ii) the financial and managerial resources of the bank holding companies and banks involved (including consideration of capital adequacy, liquidity, and earnings performance; the competence, experience, and integrity of the officers, will vestdirectors, and principal shareholders; assessments of the risk management systems and operations; the records of compliance with applicable laws and regulations) and the future prospects of the combined organization (including consideration of the current and projected capital positions and levels of indebtedness); (iii) the convenience and needs of the communities to be served; (iv) the effectiveness of the companies in combatting money laundering; and (v) the extent to which the proposal would result in greater or more concentrated risks to the stability of the United States banking or financial system. In considering an application under Section 3 of the BHC Act, the Federal Reserve also reviews the records of performance of the relevant insured depository institutions under the Community Reinvestment Act of 1977 (which we refer to as the “CRA”).
The bank merger will be converted intosubject to approval by the merger consideration. AsFDIC under Section 18(c) of the dateFederal Deposit Insurance Act (which we refer to as the “Bank Merger Act”). In evaluating an application filed under the Bank Merger Act, the FDIC considers: (i) the competitive impact of this proxy statement/prospectus, Mr. Stephens’ unvested shares total 27,267 shares, Ms. Keegan’s unvested shares total 9,326 shares,the transaction; (ii) the financial and Mr. Buddenbohm’s unvested shares total 8,055 shares.managerial resources of the depository institutions party to the bank merger and future prospects of the resulting institution; (iii) the convenience and needs of the communities to be served; (iv) the depository institutions’ effectiveness in combating money-laundering activities; and (v) the risk to the stability of the United States banking and financial system. In considering an application under the Bank Merger Act, the FDIC also reviews the records or performance of the relevant insured depository institutions under the CRA.
Furthermore, the BHC Act, the Bank Merger Act and the regulations of the Federal Reserve and the FDIC require published notice of, and the opportunity for public comment on, the applications to the Federal Reserve and the FDIC, and authorize the Federal Reserve and the FDIC to hold a public hearing or meeting if the Federal Reserve or the FDIC determines that a hearing or meeting would be appropriate. The valuesFederal Reserve and the FDIC take into account the views of this compensationthird party commenters, particularly on the subject of the merging parties’ CRA performance and record of service to their communities, and any hearing, meeting or comments provided by third parties could prolong the period during which the applicable application is disclosedunder review by the Federal Reserve or the FDIC.
GDBF
The merger must be approved by the GDBF under Section 7-1-606 of the Official Code of Georgia. In considering an application under Section 7-1-606, the GDBF reviews certain factors, including: (i) the competitive impact of the transaction; (ii) the financial and managerial resources of the bank holding companies and banks involved and the future prospects of the combined organization; and (iii) the convenience and needs of the communities to be served.
In addition, the bank merger must be approved by the GDBF under Section 7-1-530 of the Official Code of Georgia. In considering an application under Section 7-1-530, the GDBF may consider a variety of factors, including whether: (i) the bank merger adequately protects the interests of depositors, other creditors, and shareholders; (ii) the requirements for a merger under all applicable laws have been satisfied and the resulting bank would satisfy the requirements of applicable Georgia law; and (iii) the bank merger would be consistent with adequate and sound banking and in the following table:
Golden Parachute Compensation​
Name​​Cash​​
Equity(1)
​​Total​
John K. Stephens, Jr.
President and Chief Executive Officer		​​​$1,150,939​​​​$261,234​​​​$1,412,173​​
Tracy L. Keegan
Chief Financial Officer and Executive Vice President		​​​$624,167​​​​$89,349​​​​$713,516​​
Phillip S. Buddenbohm
Chief Credit Officer and Executive Vice President		​​​$562,525​​​​$77,172​​​​$639,697​​
​
(1)
Representspublic interest on the valuebasis of the accelerated vestingfinancial history and condition, prospects, character of restricted stock awards, equal to $1.39 in cash and 0.17 shares of Ameris common stock per share of Atlantic common stock. For purposes of this table, each share of Ameris common stock is valued at $48.18 per share, the average closing market price of Ameris common stock over the first five business days following the first public announcementmanagement of the merger.
​
Atlantic Executive Officer Executive Non-Competition Agreement.   Mr. Stephensparties to the bank merger and Ameris have entered into an Executive Non-Competition Agreement, which will become effective at the timeconvenience and needs of the merger. Pursuantarea primarily to this agreement, Ameris will pay to Mr. Stephens, in 18 equal installments,be served by the sum of $605,000, less any withholding taxes and other deductions or withholdings required by law.resulting institution.
In exchange for such payment, Mr. Stephens has agreed that, for a period of six months followingFurthermore, the effective timeapplicable provisions of the merger, he will not engage in certain defined banking activities withinOfficial Code of Georgia require published notice of, and the boundaries of each county in Florida and Georgia where Atlantic Coast Bank operates a banking office atopportunity for public comment on, the effective time ofapplications for both the merger and each county that is contiguous to each of such counties. Mr. Stephens has further agreed that for a period of 18 months following the effective time of thebank merger he shall not, without the prior written consent of Ameris, directly or indirectly, on behalf of himself or any other person, solicit or attempt to solicit for the purpose of providing prohibited banking activities any customer of Atlantic, Ameris or any of their affiliates, in each case, with whom he had material contact on behalf of Atlantic or Atlantic Coast Bank in the course of his service as an executive officer or director of Atlantic or Atlantic Coast Bank.
Indemnification and Directors’ and Officers’ Insurance.   For a period of six years after the effective time of the merger, Ameris must indemnify and defend, to the fullest extent permitted by applicable law, the present and former directors and executive officers of Atlantic and its subsidiaries (each, an “indemnified party”) against all liabilities arising out or related to any claim, action, suit, proceeding, investigation or other legal proceeding (a “claim”) in which an indemnified party is or is threatened to be made a party or witness arising out of the fact that such indemnified party is or was a director or officer of Atlantic or any of its subsidiaries (or was a director, officer, manager or trustee with another Atlantic entity or benefit plan) prior to the effective time, if such claim pertains to any matter of fact arising, existing or occurring on or prior to the effective time.
In addition to indemnifying former directors and executive officers of Atlantic during the same six-year period, Ameris will provide directors’ and officers’ liability insurance covering present and formerGDBF.
52102
TABLE OF CONTENTS​​​​
directors and officers of Atlantic and its subsidiaries who are covered by Atlantic’s policies, as of the date of the Merger Agreement, on terms similar to such existing insurance.
These obligations are described in more detail under “The Merger Agreement — Indemnification and Directors’ and Officers’ Insurance.”
Board of Directors and Management of Ameris Following the Merger
The directors and officers of Ameris immediately after the effective time of the merger will consist of the directors and officers of Ameris immediately prior to the effective time of the merger. The directors and officers of the surviving company will hold office until their respective successors are duly elected and qualified, or their earlier death, resignation or removal. Information regarding the executive officers and directors of Ameris is contained in documents filed by Ameris with the SEC and incorporated by reference into this proxy statement/prospectus, including Ameris’s Annual Report on Form 10-K for the year ended December 31, 2016, and its Definitive Proxy Statement on Schedule 14A for its 2017 annual meeting of shareholders, filed with the SEC on April 3, 2017. See “Certain Documents Incorporated by Reference.”
Regulatory Approvals
The Federal Reserve and the GDBF must approve the merger of Ameris and Atlantic, and the FDIC and the GDBF must approve the bank merger of the two bank subsidiaries. All of the regulatory applications for the required regulatory approvals from the foregoing banking regulators have been filed and are pending as of the date of this proxy statement/prospectus. In determining whether to grant its approval, the Federal Reserve will consider the effect of the merger on the financial and managerial resources and future prospects of the companies and banks concerned and the convenience and needs of the communities to be served.
The review of the regulatory applications by the Federal Reserve, the FDIC and the GDBF will not include an evaluation of the merger from the financial perspective of the individual Atlantic stockholders. Further, no Atlantic stockholder should construe an approval of the regulatory applications by the Federal Reserve, the FDIC or the GDBF to be a recommendation that the Atlantic stockholders vote to approve the merger proposal. Each Atlantic stockholder entitled to vote should evaluate the merger proposal to determine the personal financial impact of the completion of the merger.
Accounting Treatment
The merger will be accounted for as a purchase for financial reporting and accounting purposes under GAAP. Ameris will be treated as the acquirer for accounting purposes. After the merger, the results of operations of Atlantic will be included in the consolidated financial statements of Ameris. The merger consideration will be allocated based on the fair values of the assets acquired and the liabilities assumed. Any excess of cost over fair value of the net tangible and identified intangible assets of Atlantic acquired will be recorded as goodwill. Any identified intangible asset may be amortized by charges to operations under generally accepted accounting principles in the United States.
Dissenters’ Rights for Atlantic Stockholders
Dissenters’ or appraisal rights are statutory rights that, if applicable under law, enable stockholders to dissent from an extraordinary transaction, such as a merger, and to demand that the corporation pay the fair value for their shares as determined by a court in a judicial proceeding instead of receiving the consideration offered to stockholders in connection with the extraordinary transaction. Under Maryland law, holders of Atlantic common stock do not have the right to dissent from the Merger Agreement and seek an appraisal in connection with the merger.
53
TABLE OF CONTENTS​​​
THE MERGER AGREEMENT
This is a summaryThe following describes certain aspects of the merger, including certain material provisions of the Merger Agreement, whichmerger agreement. The following description of the merger agreement is subject to, and qualified in its entirety by reference to, the Merger Agreement, a copy ofmerger agreement, which is includedattached to this joint proxy statement/prospectus as AppendixAnnex A to this proxy statement/​prospectus and is incorporated herein by reference.reference into this joint proxy statement/prospectus. We urge you to read the merger agreement carefully and in its entirety, as it is the legal document governing the merger.
Explanatory Note Regarding the Merger Agreement
The Merger
The boardsmerger agreement is included to provide you with information regarding its terms. Neither the merger agreement nor the summary of directorsits material terms included in this section is intended to provide any factual information about Ameris or Fidelity. Factual disclosures about Ameris and Fidelity contained in this joint proxy statement/prospectus and/or in the reports of Ameris and Atlantic have eachFidelity filed with the SEC (as described in “Where You Can Find More Information”) may supplement, update or modify the disclosures about Ameris and Fidelity contained in the merger agreement. The merger agreement contains representations and warranties and covenants of the parties customary for transactions of this nature. The representations and warranties contained in the merger agreement were made only for purposes of the merger agreement as of the specific dates therein; were made 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. Investors are not third-party beneficiaries under the merger agreement and should not rely on the representations and warranties or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of representations and warranties may change after the date of the merger agreement, which subsequent information may or may not be fully reflected in Ameris’s or Fidelity’s public disclosures. Accordingly, the representations and warranties in the merger agreement should not be relied on by any person as characterizations of the actual state of facts about Ameris or Fidelity at the time they were made or otherwise.
Structure of the Merger
Each of the Ameris board of directors and the Fidelity board of directors has unanimously approved and adopted the Merger Agreement, whichmerger agreement and approved the transactions contemplated thereby, including the merger and, in the case of the Ameris board of directors, the Ameris share issuance. The merger agreement provides for the merger of AtlanticFidelity with and into Ameris, with Ameris continuing as the surviving company in the merger. Following the merger, the articles of incorporation, bylaws, corporate identity and existence of Ameris will not be changed, and Atlantic will cease to exist as a separate entity.
corporation. Immediately after (and subject to)following the completion of the merger, Atlantic CoastFidelity Bank will merge with and into Ameris Bank with Ameris Bank as the surviving bank. The terms and conditions of the bank merger are set forth in a separate Merger Agreement (referredpursuant to as the “bank merger agreement”), which was executed by Atlantic Coast Bank and Ameris Bank concurrently with the execution of the Merger Agreement and the form of which is attached as an exhibit to the Merger Agreement.
As provided in the bank merger agreement, the bank merger agreement will be terminated, and the bank merger will be abandoned automatically, without any further action by any party, if the Merger Agreement is terminated. See “— Termination; Merger Consideration Adjustments.” The bank merger agreement otherwise may be terminated, and the bank merger abandoned at any time prior to its effectiveness, by: (i) the mutual consent of the board of directors ofwith Ameris Bank and Atlantic Coast Bank; (ii)continuing as the board of directors of either Ameris Bank or Atlantic Coast Bank if the bank merger is not completed by June 30, 2018; or (iii) the board of directors of either Ameris Bank or Atlantic Coast Bank if any of the conditions tosurviving entity.
Before the completion of the bank merger, cannot be satisfied, through no fault of the terminating party, by June 30, 2018.
If Ameris deems desirable, then Ameris may at any time and without the approval of Atlantic, change the method of effecting the business combination contemplated by the Merger Agreementof Ameris and Fidelity (including by providing for thea merger of AtlanticFidelity with a wholly owned subsidiary of Ameris). In, except that no event shall such change:change may: (i) alter or change the amountexchange ratio or kindthe number of shares of Ameris common stock received by Fidelity shareholders in exchange for each share of Fidelity common stock; (ii) adversely affect the tax treatment of the considerationmerger with respect to Fidelity shareholders; or (iii) be issuedreasonably likely to eitheradversely affect or materially delay the Atlantic stockholdersreceipt of any necessary regulatory approvals or the holderscompletion of Atlantic stock options asthe transactions contemplated by the Merger Agreement; (ii) reasonably be expectedmerger agreement. Fidelity agrees to materially impede or delay consummation of the merger; (iii) adversely affect the federal income tax treatment of Atlantic stockholders in connection withenter into such amendments to the merger or adversely limit or impact the qualificationagreement as Ameris may reasonably request in order to give effect to any such restructuring.
Merger Consideration
Each share of the merger as a tax-free reorganization within the meaning of Section 368(a) of the Code; or (iv) require submission, to or approval of, the Atlantic stockholders after the Merger Agreement has been approved by the Atlantic stockholders.
ClosingFidelity common stock issued and Effective Time of the Merger
Unless both Ameris and Atlantic agree to a later date, the closing of the merger will take place no later than five business days after all of the conditionsoutstanding immediately prior to the closingeffective time, except for shares of the merger have been satisfiedFidelity common stock held by Fidelity as treasury stock or waivedshares owned by Ameris or by any wholly owned subsidiary of Ameris or Fidelity (other than (i) shares held in accordance with their terms. On the closing date, Ameris will file a certificate of merger with the Georgia Secretary of State and articles of merger with the Maryland State Department of Assessments and Taxation. The merger will be effective upon the later of: (i) the filing of the certificate of merger with the Georgia Secretary of Statetrust accounts, managed accounts and the articles of merger with the Maryland State Department of Assessments and Taxation; and (ii) such later date and time to which Ameris and Atlantic agree and as may be specifiedlike, or otherwise held in accordance with the Georgia Business Corporation Code.
The merger is expected to be completed in the second quarter of 2018, subject to the receipt of the requisite Atlantic stockholder approval, the receipt of all required regulatory approvals and the expiration of all regulatory waiting periods and the satisfaction of other customary closing conditions. However, completion of the merger could be delayed if there is a delay in obtaining the required regulatory approvalsfiduciary or in satisfying any other conditions to the merger. No assurance is made as to whether, or when, Ameris and Atlantic will obtain the required approvals or complete the merger. See “— Conditions to Completion of the Merger.”agency capacity, that are beneficially owned by
54103
TABLE OF CONTENTS​​
The Merger Consideration
If the merger is completedthird parties and unless adjusted pursuant to the terms(ii) shares held, directly or indirectly, by Ameris, Fidelity or any wholly owned subsidiary of the Merger Agreement, each shareAmeris or Fidelity in respect of Atlantic common stock outstanding immediately prior to the effective time of the merger (excluding treasury stock and cancelled shares, as defined below)a debt previously contracted), will be converted into the right to receive: (i) $1.39 in cash, without interest;receive 0.80 shares of validly issued, fully paid and (ii) 0.17nonassessable shares of Ameris common stock.
If the outstanding shares of Ameris common stock plus cash in lieu of fractional shares.
Each share of Atlanticor Fidelity common stock ownedare changed into a different number of shares or type of securities by Ameris, Atlanticreason of any stock split, stock combination, stock dividend, reclassification, recapitalization or any of their respective subsidiaries (other than shares in trust accounts, managed accounts or other similar accountstransaction, and the record date for the benefit of customers or shares held as collateral for outstanding debt previously contracted) immediatelysuch event is prior to the effective time, and each share of Atlantic common stock that is remittedthen the merger consideration will be proportionately adjusted as necessary to Atlanticprovide the same economic effect as contemplated by the merger agreement prior to the effective time for purposes of repayment of the Atlantic ESOP Loan (as defined under “— The Atlantic ESOP”), will be cancelled at the effective time without consideration (collectively, the “cancelled shares”).such event.
Fractional Shares
Ameris will not issue any fractional shares in the merger. Rather, Atlantic stockholders who would otherwise be entitled to receive a fractional share of Ameris common stock uponin the completion of the merger will instead receive an amount in cash (computed to the nearest cent) equal to such fractional partmerger. Instead, a Fidelity shareholder who otherwise would have received a fraction of a share of Ameris common stock multipliedwill receive an amount in cash (rounded to the nearest whole cent) determined by the exchange ratio multiplied bymultiplying (i) the average Ameris stock price (as defined in “— Termination; Merger Consideration Adjustments”).
The completion of the merger is subject to a price floor which, if reached prior to the completion of the merger, could result in more sharesclosing-sale prices of Ameris common stock being issued or more cash being paid, orfor five full trading days ending at the merger being terminated. See “— Termination; Merger Consideration Adjustment” and “— Termination Fee.”
Subject to certain exceptions specified inclosing of trading on the Merger Agreement, iftrading day immediately prior to the effective timeclosing date by (ii) the fraction of the merger, the number of outstanding sharesa share (rounded to three decimal places) of Ameris common stock or Atlantic common stock is changed as a result of a stock split, reverse stock split, stock dividend, recapitalization, reclassification or similar transaction with respectwhich such holder would otherwise be entitled to such shares, then the stock consideration will be proportionatelyreceive.
Charter Documents; Directors and appropriately adjusted.Officers; Governance Matters
The value of the shares of Ameris common stock to be issued to Atlantic stockholders in the merger will fluctuate between now and the closing date of the merger. We make no assurances as to whether or when the merger will be completed, and you are advised to obtain current market prices for the Ameris and Atlantic common stock. See “Risk Factors — Because the market price of the Ameris common stock may fluctuate, Atlantic stockholders cannot be sure of the market value of the merger consideration that they will receive in the merger until the closing.”
Treatment of Atlantic Equity Awards
Atlantic Stock Options.   At the effective time, Ameris’s articles of the merger, each Atlantic stock option, whether vested or unvested, that is outstandingincorporation and bylaws in effect immediately prior to the effective time will be the articles of incorporation and bylaws of the surviving corporation until thereafter amended in accordance with the terms thereof and applicable law, except that Ameris’s bylaws will be amended at or prior to the effective time so that the requirement that each director retire at the annual meeting following the date such director attains the age of 75 will be inapplicable to James B. Miller, Jr.
At the effective time, the Ameris board of directors and the Ameris Bank board of directors will each be increased in size by five to fourteen members, and the following members of the Fidelity board of directors will be appointed to fill the resulting vacancies: James B. Miller, Jr., H. Palmer Proctor, Jr., Gloria A. O’Neal, Rodney D. Bullard and Wm. Millard Choate. If any such person becomes unable or unwilling to serve in such position prior to the effective time, a replacement mutually acceptable to Ameris and Fidelity will be chosen. At the effective time, the remaining nine members of the Ameris board of directors and the Ameris Bank board of directions will be the directors of Ameris and Ameris Bank immediately prior to the effective time.
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.
The merger agreement provides that, at and after the effective time, the headquarters and operations center for Ameris Bank, the surviving entity in the bank merger, will be located in Atlanta, Georgia. The merger agreement further provides that, commencing no later than the first quarterly dividend payable on shares of Ameris common stock following the effective time and subject to applicable law, Ameris will effect an increase in the amount of Ameris’s regular quarterly dividend on shares of Ameris common stock to $0.15 per share. Prior to the effective time, Ameris and Fidelity will cooperate in good faith to develop a primary corporate and marketing logo to be used by Ameris and Ameris Bank after the effective time, which will incorporate the Fidelity lion and other agreed upon elements of both parties’ primary logos.
Treatment of Fidelity Equity Awards
Under the merger agreement, at the effective time, each outstanding Fidelity restricted stock award will fully vest and be cancelled and converted automatically into the right to receive a cash-out payment from Ameris or Ameris Bank in an amount equal to the product of: (i) the excess, if any, of the merger consideration price over the exercise price of each such Atlantic stock option; and (ii) the number of shares of Atlantic common stock subject to such Atlantic stock option to the extent not previously exercised. After the effective time of the merger, any such canceled Atlantic stock option will no longer be exercisable by the former holder thereof, but will only entitle the holder to the cash-out payment, without interest. If the exercise price per share of Atlantic common stock subject to an Atlantic stock option is equal to or greater than the merger consideration price, then such Atlantic stock option will be canceled without consideration.
Atlantic Restricted Stock Awards.   At the effective time of the merger, each Atlantic restricted stock award, whether vested or unvested, that is outstanding immediately prior to the effective time, will fully vest and be converted automatically into the right to receive the merger consideration in respect of each share of AtlanticFidelity common stock underlying such Atlantic restricted stock award.award, including a payment in respect of any fractional shares (together with any accrued but unpaid dividends corresponding to the portion of the restricted stock award that vests).
55104
TABLE OF CONTENTS​​
At the effective time, each outstanding Fidelity stock option will fully vest and be converted automatically into an option to acquire, on the same terms and conditions as were applicable to such Fidelity option, the number of shares of Ameris common stock (rounded down to the nearest whole share), determined by multiplying (x) the number of shares of Fidelity common stock subject to such Fidelity stock option immediately prior to the effective time by (y) the exchange ratio, at an exercise price per share of Ameris common stock (rounded up to the nearest whole cent) equal to (A) the exercise price per share of Fidelity common stock subject to such Fidelity stock option divided by (B) the exchange ratio. On the closing date, Ameris will file a registration statement on Form S-8 with respect to the shares of Ameris common stock issuable pursuant to such options and will maintain the effectiveness of such registration statement for so long as such options remain outstanding.
Closing and Effective Time of the Merger
The merger will be completed only if all conditions to the merger discussed in this joint proxy statement/prospectus and set forth in the merger agreement are either satisfied or waived (subject to applicable law). See “— Conditions to Complete the Merger.”
The merger will become effective upon the filing of the certificate of merger to be filed with the Secretary of State of the State of Georgia on the closing date or such later date and time to which Ameris and Fidelity will agree and as may be specified in accordance with applicable law. The closing of the merger will occur at 10:00 a.m., Atlanta, Georgia time, on a date no later than five business days after the satisfaction or waiver of the conditions set forth in the merger agreement (other than conditions that by their nature are to be satisfied at the closing), unless the parties agree in writing to another date and time. It is currently anticipated that the merger will be completed during the second quarter of 2019, subject to the receipt of Ameris and Fidelity shareholder approval, regulatory approvals and other customary closing conditions, but neither Ameris nor Fidelity can guarantee when or if the merger will be completed.
Conversion of Shares; Exchange of Certificates
The conversion of Fidelity common stock into the right to receive the merger consideration will occur automatically at the effective time. After completion of the merger, an exchange agent will handle the exchange of shares of Fidelity common stock for the merger consideration to be received pursuant to the terms of the merger agreement. Ameris’s transfer agent or an unrelated bank or trust company reasonably acceptable to Fidelity will serve as the exchange agent. All shares of Ameris common stock to be issued in the merger will be issued in book-entry form, without physical certificates.
Letter of Transmittal
Ameris will instruct the exchange agent to mail, as promptly as practicable after the effective time and in any event within three business days thereafter, to each holder of record of Fidelity common stock immediately prior to the effective time a letter of transmittal and instructions on how to surrender shares of Fidelity common stock (whether certificated or in book-entry form) in exchange for the merger consideration the holder is entitled to receive under the merger agreement.
If a certificate for Fidelity common stock has been lost, stolen, or destroyed, the exchange agent will issue the merger consideration upon receipt of: (i) an affidavit of that fact by the claimant in form and substance acceptable to Ameris; and (ii) if required by Ameris, the posting of a bond in an amount as Ameris may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such certificate.
After completion of the merger, there will be no further registration of transfers of shares of Fidelity common stock on the records of Fidelity, except for the cancellation of such shares in connection with the merger.
Withholding
Ameris and the exchange agent will be entitled to deduct and withhold from any consideration payable under the merger agreement the amounts they are required to deduct and withhold under the Code or any provision of state, local or foreign tax law. If any such amounts are so withheld, these amounts will be treated for all purposes of the merger agreement as having been paid to such person from whom they were withheld.
105
TABLE OF CONTENTS​
Delivery of Merger Consideration
Ameris will designate Computershare Inc. to act as the exchange agent in connection with the merger. Prior to the effective time of the merger, Ameris will deposit with the exchange agent for the benefit of the Atlantic stockholders sufficient cashDividends and shares of Ameris common stock to satisfy the merger consideration payable under the Merger Agreement.
No later than five business days after the effective time, Ameris will instruct the exchange agent to mail to each record holder, as of the effective time, of Atlantic common stock, a letter of transmittal for use in connection with the exchange and instructions for use in surrendering the applicable stock certificates or book-entry shares in exchange for the merger consideration.
After the effective time, Atlantic stockholders who surrender their stock certificates or book-entry shares to the exchange agent, together with a properly completed and duly executed letter of transmittal, and such other documents as may be required pursuant to such instructions, will receive the per share purchase price applicable to each of their shares of Atlantic common stock. No interest will be paid or accrue on any merger consideration. Until surrendered, each such stock certificate or book-entry share will represent after the effective time of the merger only the right to receive the merger consideration, without interest, and any dividends or distributions to which such holder is entitled.Distributions
No dividends or other distributions declared or made with respect to AtlanticAmeris common stock with a record date after the effective time will be paid to the holder of any unsurrendered Atlanticcertificates or book-entry shares of Fidelity common stock until the holder surrenders such certificate or book-entry shares in accordance with respect to the merger agreement. After the surrender of such certificate or book-entry shares of Ameris common stock represented thereby until such Atlantic common stock has been properly surrendered. Subjectin accordance with the merger agreement and subject to applicable law, following the proper surrender of previously unsurrendered Atlantic common stock, the record holder thereof will be entitled to receive without interest: (i) the amount of unpaidany such dividends or other distributions, with a record date after the effective time of the mergerwithout any interest, which had previously become payable with respect to the whole shares of Ameris common stock represented by such Atlantic common stock and paid prior to such surrender date; and (ii) atthat the appropriate payment date, the amount of dividends or other distributions payable with respect to shares of AmerisFidelity common stock represented by such Atlantic common stock with a record date aftercertificate or book-entry have been converted into the effective time ofright to receive under the merger (but before such surrender date) and with a payment date after the issuance of the shares of Ameris common stock issuable in exchange for such Atlantic common stock.agreement.
At the effective time of the merger, the stock transfer books of Atlantic will be closed and there will be no further registration of transfers of Atlantic common stock on the records of Atlantic. The merger consideration paid will be deemed to have been paid in full satisfaction of all rights pertaining to the Atlantic common stock. After the effective time, the holders of Atlantic common stock outstanding immediately prior to the effective time will cease to have any rights with respect to such stock, except as otherwise provided for in the Merger Agreement or by applicable law.
Neither Ameris nor the exchange agent will be liable to any former Atlantic stockholder for any merger consideration delivered in good faith to a public official pursuant to applicable abandoned property, escheat or similar laws.
If any stock certificate is lost, stolen or destroyed, in order to receive the merger consideration, the holder of that certificate must provide an affidavit of that fact and, if required by either Ameris or the exchange agent in its reasonable discretion, deliver a customary indemnity agreement or post a bond in a customary amount with respect to that certificate.
56
TABLE OF CONTENTS​
Conduct of Business Pending the Merger
Pursuant to the Merger Agreement, Ameris and Atlantic have agreed to certain restrictions on their activities until the effective time of the merger. The Merger Agreement provides that, until the effective time of the merger, except as permitted by the Merger Agreement, required by applicable law or governmental authority, or with the prior written consent of Ameris, Atlantic will, and will cause its subsidiaries (where applicable) to:
•
conduct its business only in the ordinary course and not incur any indebtedness for borrowed money (other than deposit and similar accounts and customary credit arrangements between banks in the ordinary course of business, including any credit arrangements with any Federal Home Loan Bank in the ordinary course of business);
​
•
not enter into any new line of business or change in any material respect its lending, investment, underwriting, risk and asset liability management and other banking and operating, securitization and servicing policies;
​
•
maintain its properties and assets in good operating condition, ordinary wear and tear excepted;
​
•
maintain and keep in full force and effect all material insurance;
​
•
except upon exercise of Atlantic stock options, make no change in its authorized or issued capital stock or other securities, or issue or grant any right or option to purchase or otherwise acquire any of the capital stock or other securities of Atlantic or any of its subsidiaries;
​
•
not declare or make any dividend, distribution or payment in respect of the Atlantic stock;
​
•
make no amendment to its articles of incorporation, bylaws or comparable governing document, and maintain its corporate existence and powers;
​
•
not acquire (whether by merger, consolidation or purchase of a substantial portion of the assets of, or by any other manner) any business, person or entity or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to Atlantic;
​
•
not sell, mortgage, lease, buy or otherwise acquire, transfer or dispose of any real property or interest therein (except for sales in the ordinary course of business) or, except in the ordinary course of business, sell or transfer, mortgage, pledge or subject to any lien any other tangible or intangible asset;
​
•
provide Ameris with five business days’ prior notice before Atlantic Coast Bank’s execution of an agreement to make any loan or extension of credit in an amount in excess of   $1,000,000 (excluding any loan or extension of credit of a smaller amount on an outstanding loan or line of credit in excess of  $1,000,000);
​
•
not renew or amend any existing loan or extension of credit that is characterized as “Special Mention,” “Substandard,” “Doubtful,” or “Loss” in the books and records of Atlantic; provided, however, that if Atlantic requests the prior approval of Ameris to amend or renew any existing loan that is so characterized, Atlantic may amend or renew such existing loan if Ameris does not disapprove of such request in writing within five business days upon receipt of such request from Atlantic;
​
•
make no material change to its methodology for determining its allowance for loan and lease losses;
​
•
make no change in the banking and safe deposit arrangements of Atlantic or any of its subsidiaries, other than in the ordinary course of business, consistent with past practice;
​
•
not make application for the opening, relocation or closing of any, or open, relocate or close any, branch office, loan production office or other significant office or operations facility;
​
•
except in the ordinary course of business, not terminate, materially amend or waive any material right under any material contract or enter into any contract that would constitute a material contract if it were in effect on the date of the Merger Agreement;
​
​
57
TABLE OF CONTENTS​
•
maintain its books and records in the usual, regular and ordinary course;
​
•
not prepare or file any tax return inconsistent with past practice or, on any tax return, take any position, make any election, or adopt any method inconsistent with positions taken, elections made or methods used in preparing or filing similar tax returns in prior periods; make or change any express or deemed election related to taxes; change an annual accounting period; adopt or change any method of accounting; file an amended tax return; surrender any right to claim a refund of taxes; enter into any closing agreements with respect to tax; or consent to any extension or waiver of the limitation period applicable to any tax proceedings related to Atlantic;
​
•
promptly advise Ameris orally and in writing of any change or event having, or which would reasonably be expected to have, a material adverse effect on Atlantic;
​
•
file all reports required to be filed with any regulatory or governmental authority and deliver to Ameris copies of all such reports promptly after the same are filed;
​
•
not adopt any new benefit plans or programs or amend any existing benefit plans or programs, the effect of which is to increase benefits to any current or former employees, directors, officers or independent contractors or their spouses, dependents or beneficiaries or otherwise increase the costs or liabilities of Atlantic or its subsidiaries or successors; and
​
•
except as previously disclosed to Ameris, not grant or enter into any new employment agreement, retention agreement, severance pay, termination pay, retention pay, change in control or transaction or deal bonus or arrangement or other benefit plan.
​
Pursuant to the Merger Agreement, Ameris and Atlantic have also agreed to use commercially reasonable efforts in good faith to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary or advisable so as to permit consummation of the merger as promptly as practicable and to cooperate fully with each other to that end. Ameris and Atlantic have each also agreed that it will, and will cause its subsidiaries to:
•
conduct its business in the ordinary course of business consistent with past practice, except as permitted by the Merger Agreement, required by applicable law or governmental authority, or with the prior written consent of the other party;
​
•
use its commercially reasonable efforts to preserve intact its business organization, to keep available the services of its present employees and to preserve the goodwill of customers and others having business relations with it;
​
•
use its commercially reasonable effort, and cause its officers, directors, employees and agents to use their commercially reasonable efforts, to obtain as promptly as reasonable practicable all required regulatory approvals; and
​
•
use its commercially reasonable efforts to cause the merger to qualify as a tax-free reorganization within the meaning of Section 368(a) of the Code, and it will not take any action that would reasonably be expected to prevent the merger from so qualifying, or fail to take any action that would reasonably be expected to be necessary to permit the merger to so qualify.
​
Representations and Warranties
The Merger Agreementmerger agreement contains generally customary representations and warranties of Ameris and Atlantic relating to their respective businesses that are made as of the date of the Merger Agreement and as of the closing date of the merger. The representations and warranties of each of Ameris and Atlantic have been made solely for the benefit of the other party, and these representations and warranties should not be relied on by any other person. In addition, these representations and warranties:
•
have been qualified by information set forth in confidential disclosure schedules provided in connection with the Merger Agreement — the information contained in these schedules modifies, qualifies and creates exceptionsFidelity relating to thetheir respective businesses. The representations and warranties in the Merger Agreement;
​
•
willmerger agreement do not survive consummation of the merger;
​
​
58
TABLE OF CONTENTS
•
may be intended not as statements of fact, but rather as a way of allocating the risk to one of the parties to the Merger Agreement if those statements turn out to be inaccurate;
​
•
are in some cases subject to a materiality standard described in the Merger Agreement that may differ from what may be viewed as material by you; and
​
•
were made only as of the date of the Merger Agreement or as of the closing date or such other date as is specified in the Merger Agreement.
​effective time.
The merger agreement contains representations and warranties made by each of Ameris and AtlanticFidelity relating to each other primarily relate to:a number of matters, including the following:
•
corporate matters, including due organization existence, power and authority;qualification and subsidiaries;
​
•
corporate authorizationauthority relative to enter intoexecution and delivery of the Merger Agreementmerger agreement and to consummate the transactions contemplated thereby, includingbank merger agreement and the absence of conflicts with, or violations of, charter documents or other obligations as a result of the merger and the bank merger;
​
•
absenceinapplicability of any breach of organizational documents, violation of law or breach of agreements as a result of the merger;takeover statutes;
​
•
required governmental and other regulatory approvalsfilings and consents requiredand approvals in connection with the merger and the bank merger;
​
•
capitalization;
​
•
reports filed with governmental authorities, including the SEC;
​
•
financial statements;to regulatory authorities;
​
•
absence of material adverse changes on each party since December 31, 2016;agreements with regulatory authorities;
​
•
compliance with laws;capitalization;
​
•
litigation;deposits;
​
•
SEC filings;
​
•
financial statements, internal controls, books and records and absence of undisclosed liabilities;
​
•
the absence of certain changes or events;
​
•
absence of any action or fact or circumstance that would reasonably be expected to prevent the merger from qualifying as a “reorganization” under Section 368(a) of the Code;
​
•
tax matters;
​
•
engagement of brokers, finders or financial advisors in connection with the Merger Agreement or the transactions contemplated thereby; andreal property;
​
•
accuracy of the information supplied by each party for inclusion or incorporation by reference in this proxy statement/prospectus.
​
Atlantic has also made representations and warranties to Ameris with respect to:
•
accuracy of books and records;legal proceedings;
​
•
taxcompliance with applicable laws;
​
•
permits;
​
•
loan matters;
​
•
loan portfolio;regulatory capital;
​
•
investment securities and commodities;
​
•
derivative transactions;
​
•
intellectual property;
​
​
106
TABLE OF CONTENTS
•
environmental matters;
​
•
insurance policies;
​
•
administration of fiduciary accounts;
​
•
certain material contracts;
​
•
intellectual property;
​
•
labor and employee relations;
​
•
employee benefit plans;
​
•
real and personal propertyplan matters;
​
•
related partylabor relations and employee matters;
​
•
related-party transactions;
​
•
opinion from its financial advisor;insurance matters;
​
•
information security matters;
​
•
broker’s fees and fairness opinion; and
​
•
absencethe accuracy of state takeover law applicability.information supplied for inclusion in this joint proxy statement/prospectus and other similar documents.
​
​
59
TABLE OF CONTENTS​​
Certain representations and warranties of Ameris and AtlanticFidelity are qualified as to “materiality”knowledge, “materiality,” “material adverse change” or “material adverse effect.” For purposes of the Merger Agreement,merger agreement, a “material adverse effect,” when used in referencechange” or “material adverse effect” means, with respect to either Ameris and its subsidiaries, or Atlantic and its subsidiaries, means any change, event, occurrence, development, violation, effect or circumstance which, individually or in the aggregate: (i) has, or is reasonably likely to have, a material adverse effect on the business, operations, properties, assets, liquidity, deposit liabilities, condition (financial or otherwise) or prospects of such party on a consolidated basis; or (ii) prevents or materially impairs, or would be reasonably likely to prevent or materially impair, the ability of such party to timely consummate the transactions contemplated by the Merger Agreement or the bank merger agreement or to perform its agreements or covenants under the Merger Agreement. For purposes of the immediately preceding clause (i), a material adverse effect specifically excludes any adverse effect attributable to or resulting from:
•
any change in banking laws of general applicability (so long as AmerisFidelity and its subsidiaries, on the one hand, or AtlanticAmeris and its subsidiaries, on the other, any event, change, occurrence, effect or development that has a material adverse effect on: (i) the financial condition, results of operations, assets or deposit liabilities, business, property or assets of Fidelity and its subsidiaries, taken as a whole, or Ameris and its subsidiaries, taken as a whole, as the case may be; or (ii) the ability of Fidelity, on the one hand, or Ameris, on the other, as the case may be, to timely complete the transactions contemplated by the merger agreement or the bank merger agreement. However, in the case of clause (i) only, a “material adverse change” or “material adverse effect” does not include events, changes, occurrences, effects or developments resulting from or arising out of: (a) changes after the date of the merger agreement in GAAP or regulatory accounting requirements or principles (except to the extent Fidelity and its subsidiaries, on the one hand, or Ameris and its subsidiaries, on the other, as the case may be, are not disproportionately affected thereby);
​
•
any changethereby as compared to other companies in GAAP or regulatory accounting principles applicablethe industry in which such party and its subsidiaries operate); (b) changes after the date of the merger agreement in laws of general applicability to banks or their holding companies generally (so long as Amerisfinancial institutions (except to the extent that Fidelity and its subsidiaries, on the one hand, or AtlanticAmeris and its subsidiaries, on the other, as the case may be, are not disproportionately affected thereby);
​
•
any action or omission expressly required bythereby as compared to other companies in the Merger Agreement or taken withindustry in which such party and its subsidiaries operate); (c) changes after the express prior written consentdate of the other party tomerger agreement in global, national or regional political conditions (including the Merger Agreement;
​
•
general changesoutbreak of war or acts of terrorism) or in national economic monetary,or market or financial conditions affecting financial institutions (so long as Amerisgenerally, including changes in prevailing interest rates, credit availability and liquidity, currency exchange rates and price levels or trading volumes in securities markets (except to the extent that Fidelity and its subsidiaries, on the one hand, or AtlanticAmeris and its subsidiaries, on the other, as the case may be, are not disproportionately affected thereby);
​
•
changesthereby as compared to other companies in national political conditions, including the outbreakindustry in which such party and its subsidiaries operate); (d) floods, hurricanes, tornados, earthquakes, fires or escalationother natural disasters; (e) the impact of acts of terrorism;
​
•
the public disclosure, pendency or performance of the Merger Agreementmerger agreement or the bank merger agreement or the transactions contemplated hereby;thereby; (f) any failure by Fidelity or
​
•
Ameris to meet any internal or published industry analyst projections or forecasts or estimates of revenues or earnings for any period (but the facts and circumstances giving rise to such failure that are not otherwise excluded from the definition of material adverse change or material adverse effect may be taken into account in determining whether there has been a material adverse change or a material adverse effect); (g) changes in the trading price or trading volume of the Ameris common stock or Atlanticthe Fidelity common stock.stock; or (h) with respect to Fidelity and its subsidiaries, actions taken or omitted to be taken with the prior written consent of Ameris or required by the merger agreement or the bank merger agreement, or with respect to Ameris and its subsidiaries, actions taken or omitted to be taken with the prior written consent of Fidelity or required by the merger agreement or the bank merger agreement.
​
107
Regulatory Matters
TABLE OF CONTENTS​
Covenants and Agreements
Conduct of Businesses Prior to the Completion of the Merger
Each of Ameris and Fidelity has agreed that, during the period from the date of the merger agreement to the closing date (or earlier termination of the merger agreement), subject to specified exceptions, it will, and will cause each of its subsidiaries to: (i) conduct its business and operations in the ordinary and usual course of business in accordance with applicable law and in a manner consistent with prior practice, in each case, in all material respects; and (ii) use its commercially reasonable efforts to maintain and preserve intact its business organization and keep available the services of its current officers and employees and preserve the rights, franchises, goodwill and relations of its customers, clients, lessors and others with whom business relationships exist.
In addition, each of Ameris and Fidelity has agreed that, during the same period, subject to specified exceptions, it will, and will cause each of its subsidiaries to, take no action that that is intended to or would reasonably be likely to: (i) result in any of the registration statementclosing conditions not being satisfied or prevent or materially delay the completion of which this proxy statement/prospectus formsthe transactions contemplated by the merger agreement or the bank merger agreement; or (ii) adversely affect or materially delay the ability of such party or its subsidiaries to obtain any required regulatory approvals or to perform its covenants and agreements under the merger agreement or the bank merger agreement or to complete the transactions contemplated thereby.
Additionally, Ameris and Fidelity have undertaken further covenants. Between the date of the merger agreement and the closing date (or earlier termination of the merger agreement), subject to specified exceptions, Fidelity may not, and will cause its subsidiaries not to, without prior written consent of Ameris (which may not be unreasonably withheld, conditioned or delayed), undertake the following:
•
amend its charter documents;
​
•
adjust, split, combine or reclassify any shares of its capital stock or other equity interests or declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or equity interests (other than to a partwholly owned subsidiary of Fidelity), or redeem, repurchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire any of its securities, other than: (i) regular quarterly cash dividends by Fidelity at a rate not in excess of  $0.12 per share of Fidelity common stock; (ii) dividends paid by any of the subsidiaries of Fidelity to Fidelity or any of its wholly owned subsidiaries; (iii) regular distributions on Fidelity’s outstanding trust preferred securities; (iv) the withholding, repurchase or acceptance of shares of Fidelity common stock as payment for the exercise price of Fidelity stock options or for withholding taxes incurred in connection with the exercise of Fidelity stock options or vesting of Fidelity restricted stock awards in accordance with past practice and the terms of the applicable award agreements or pursuant to the terms of a Fidelity 401(k) plan; or (v) the issuance, acquisition or delivery of shares of Fidelity common stock in connection with Fidelity’s dividend reinvestment plan or employee stock purchase plan;
​
•
except for transactions in the ordinary course of business consistent with past practice or pursuant to contracts or agreements in force at the date of the merger agreement and disclosed to Ameris, make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any person or entity other than a wholly owned subsidiary of Fidelity;
​
•
sell, lease, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any person or entity (except for sales of properties or assets in the ordinary course of business consistent with past practice) or merge or consolidate with any entity;
​
•
other than in the ordinary course of business, incur any indebtedness (excluding bank deposits) for borrowed money (other than indebtedness of Fidelity or any of its wholly owned Subsidiaries to Fidelity or any of its subsidiaries), assume, guarantee, endorse or otherwise as an accommodation become effective and remain effective throughresponsible for the obligations of any other person or entity, in each case, in excess of  $10,000,000;
​
​
108
TABLE OF CONTENTS
•
make any material change to its accounting methods, principles or practices, except as required by GAAP or applicable law;
​
•
except as contemplated by any Fidelity employee benefit plan, (i) increase the compensation, severance, benefits, change of control payments or any other amounts payable, or pay or award, or commit to pay or award, any bonuses or incentive compensation, to its present or former employees or directors, other than, in each case, increases in compensation or benefits for employees made in the ordinary course of business consistent with past practice, payment of earned but unpaid bonuses or other incentive awards with respect to any performance period ending before the effective time, and payment of prorated bonuses with respect to that portion of the merger.then-current fiscal year of Fidelity ending at the effective time (the amount of which prorated bonuses would be, on an annualized basis, consistent with past practice); (ii) establish, adopt, enter into, amend or terminate any collective bargaining agreement or Fidelity employee benefit plan, other than any amendments in the ordinary course of business consistent with past practice that do not materially increase the cost to Fidelity, in the aggregate, of maintaining such Fidelity employee benefit plan, or any amendments required by applicable law; (iii) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable to any employee or director; or (iv) hire any employee having expected total annual compensation in excess of  $300,000, other than to fill vacant positions;
​
•
(i) grant any stock appreciation rights, options, restricted stock, restricted stock units, awards based on the value of Fidelity’s capital stock or other equity-based compensation or grant to any person or entity any right to acquire any shares of its capital stock; (ii) issue or commit to issue any additional shares of capital stock of Fidelity, other than the issuance of shares of Fidelity common stock upon the exercise of any Fidelity stock options in accordance with the terms of the applicable award agreement or pursuant to the terms of a Fidelity 401(k) plan; (iii) issue, sell, lease, transfer, mortgage, encumber or otherwise dispose of any capital stock in any of Fidelity’s subsidiaries; or (iv) enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stock;
​
•
make or change any material tax election, settle or compromise any material tax liability, fail to file any material tax return when due (taking extensions into account), enter into any material closing agreement, file any material amended tax return or surrender any right to claim a material tax refund, offset or other reduction in tax liability;
​
•
fail to use commercially reasonable efforts to maintain existing material insurance policies or comparable replacement policies to the extent available for a reasonable cost;
​
•
enter into any material new line of business or change in any material respect its lending, investment, underwriting, risk and asset liability management, interest rate or fee pricing with respect to depository accounts, hedging and other material banking and operating policies or practices except as required by applicable;
​
•
file any application to establish, or to relocate or terminate the operations of, any banking office;
​
•
make, or commit to make, any capital expenditures in excess of  $500,000 individually or $2,500,000 in the aggregate unless required by law or incurred in connection with the repair or replacement of facilities destroyed or damaged due to casualty or accident (whether or not covered by insurance);
​
•
except for transactions in the ordinary course of business, terminate, amend or waive any material provision of certain material contracts, or make any change in any instrument or agreement governing the terms of any of its securities, or enter into certain material contracts;
​
•
settle any claims, actions or proceedings (other than claims, actions or proceedings in the ordinary course of business consistent with past practice and involving solely money damages) in excess of $1,000,000 in the aggregate;
​
•
materially restructure or materially change its investment securities portfolio, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
​
​
109
TABLE OF CONTENTS
•
change in any material respect its credit policies and collateral eligibility requirements and standards, in each case except as may be required by such policies and standards or by any applicable laws, guidelines or policies imposed by any governmental authority;
​
•
make or acquire any loan or extension of credit or issue a commitment (including a letter of credit) or renew or extend an existing commitment for any loan or extension of credit, or amend or modify in any material respect any loan or extension of credit, outside the ordinary course of business consistent with past practice or in excess of the limitations contained in Fidelity’s loan policy; provided that Ameris has also agreedis required to respond to any request for consent to take such action with respect to any loan or extension of credit within three business days after the loan package is delivered to Ameris and any non-response will constitute consent by Ameris;
​
•
adopt a plan of complete or partial liquidation or dissolution;
​
•
take any action or knowingly fail to take any action, requiredwhich action or failure to act would reasonably be takenexpected to prevent or impede the merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code; or
​
•
agree to take, make any commitments to take, or adopt any resolutions of the board of directors or shareholders in support of any of the foregoing.
​
During the period from the date of the merger agreement to the closing date (or earlier termination of the merger agreement), subject to specified exceptions, Ameris may not, and Ameris will cause its subsidiaries not to, without prior written consent of Fidelity (which may not be unreasonably withheld, conditioned or delayed), undertake the following:
•
amend its charter documents;
​
•
adjust, split, combine or reclassify any shares of its capital stock or other equity interests or declare, set aside, make or pay any dividend or other distribution in respect of the Ameris common stock (except regular quarterly cash dividends by Ameris at a rate not in excess of  $0.10 per share of Ameris common stock);
​
•
except for transactions in the ordinary course of business consistent with past practice or pursuant to contracts or agreements in force at the date of the merger agreement and disclosed to Fidelity, make any investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any person or entity other than a wholly owned subsidiary of Ameris, in excess of  $50,000,000 in the aggregate;
​
•
(i) issue or commit to issue any additional shares of capital stock of Ameris, other than in any transaction permitted under the applicable state securities lawsimmediately preceding provision (with such shares to have no greater aggregate value at the time of issuance than as set forth therein), the granting of Ameris equity awards in connectionthe ordinary course of business consistent with past practice, the issuance of shares of Ameris common stock upon completionthe exercise or vesting of Ameris equity awards in accordance with the terms of the merger. Atlantic has agreedapplicable award agreement or pursuant to providean Ameris reasonable assistance as necessary401(k) plan or the issuance, acquisition or delivery of shares of Ameris common stock in connection with Ameris’s dividend reinvestment plan or employee stock purchase plan; (ii) issue, sell, lease, transfer, mortgage, encumber or otherwise dispose of any capital stock in any of Ameris’s subsidiaries; or (iii) grant any stock appreciation rights, options, restricted stock, restricted stock units, awards based on the value of Ameris’s capital stock or other equity-based compensation except in the preparationordinary course of business consistent with past practice;
​
•
sell, lease, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any person or entity (except for sales of properties or assets in the ordinary course of business consistent with past practice) or merge or consolidate with any entity;
​
•
other than in the ordinary course of business, incur any indebtedness (excluding bank deposits) for borrowed money (other than indebtedness of Ameris or any of its wholly owned subsidiaries to Ameris or any of its subsidiaries), assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other person or entity, in each case in excess of  $10,000,000;
​
​
110
TABLE OF CONTENTS​
•
adopt a plan of complete or partial liquidation or dissolution;
​
•
take any action or knowingly fail to take any action, which action or failure to act would reasonably be expected to prevent or impede the merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the registration statement, including providing Ameris with information concerning Atlantic as andCode; or
​
•
agree to take, make any commitments to take, or adopt any resolutions of the board of directors or shareholders in support of any of the foregoing.
​
Regulatory Matters
Subject to the extent required for inclusion interms of the registration statement.
Eachmerger agreement, each of Fidelity and Ameris and Atlantic havehas agreed to use its commercially reasonable best efforts to obtain as promptly as reasonabletake all actions and to do, and to assist and cooperate with the other party in doing, all things necessary, proper or advisable to fulfill all conditions applicable to such party and its respective subsidiaries pursuant to the merger agreement and the bank merger agreement and to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by the merger agreement and the bank merger agreement, including: (i) obtaining all required regulatory approvals. Notwithstandingapprovals and all other necessary, proper or advisable actions or approvals from governmental authorities and making all necessary, proper or advisable registrations, filings and notices and taking all steps as may be necessary to obtain an approval, waiver or exemption from any governmental authority; (ii) obtaining all necessary, proper or advisable consents, qualifications, approvals, waivers or exemptions from nongovernmental persons or entities; and (iii) executing and delivering any additional documents or instruments necessary, proper or advisable to consummate the foregoing, nothing intransactions contemplated by, and to fully carry out the Merger Agreement will be deemed topurposes of, the merger agreement or the bank merger agreement. However, the merger agreement does not require Ameris, or require or permit Atlantic, to take any action, or commitFidelity, to take any action, or agree to any condition or restriction, in connection with obtaining the permits, consents, approvals and authorizations of any governmental authority that would reasonably be expected to have a material adverse effect (measured on a scale relative to Fidelity and its subsidiaries taken as a whole) on the surviving corporation and its subsidiaries, after giving effect to the merger (which we refer to as a “materially burdensome regulatory condition”).
In particular, Ameris and Fidelity have agreed to make any required filings of applications, filings and notices with the Federal Reserve, the FDIC and the GDBF in connection with the merger or the bank merger within forty-five days after the date of the merger agreement and to use reasonable best efforts to prepare and file any applications, notices and filings required in order to obtain the required regulatory approvals as promptly as practicable after the date of the merger agreement. The parties agreed to cooperate with each other in connection with obtaining the required regulatory approvals. Each party will provide the other with copies of: (i) any applications and all correspondence relating thereto prior to filing (other than material filed under a claim of confidentiality); and (ii) copies of correspondence from regulatory agencies.
Subject to applicable law, the parties are required to advise each other promptly after receiving any communication from any governmental authority whose consent or approval is required for completion of the merger or the bank merger that would constitutecauses such party to believe that there is a burdensomereasonable likelihood that the required regulatory condition.or other approvals will not be obtained or that the receipt of any such approval will be materially delayed.
Employee Benefit Matters
FollowingFrom the closing date,effective time until the first anniversary of the effective time, Ameris or its applicable subsidiary shallhas agreed to provide to employeeseach employee of Atlantic andFidelity or its subsidiaries who, as decided by Ameris in its sole discretion, will continue employment with Ameristhe surviving corporation or any of its subsidiaries following the closing date (“(each of whom we refer to as a continuing employees”) medical, dental, vacationemployee): (i) base hourly wages or salaries, as applicable, that are no less favorable than was provided to each such continuing employee immediately prior to the closing date; and long-term disability benefits, medical(ii) employee benefit plans, programs, policies and dependent care flexible spending accounts, severancearrangements that are no less favorable, in the aggregate, than the Fidelity employee benefit plans provided to each such continuing employee immediately prior to the closing date.
111
TABLE OF CONTENTS
Employees of Fidelity and life insurance (collectively, “Ameris employee benefits”) on termsits subsidiaries (other than certain specified employees who are party to an employment, change-of-control or other type of agreement that provides for severance) who remain employed by Fidelity or any of its subsidiaries as of the effective time and conditions consistent in all material respects with those then currentlywhose employment is terminated by Ameris or its subsidiaries following the closing date will be provided by Ameris or its subsidiaries with severance benefits under the existing severance policies of Ameris and its subsidiaries. For purposes of such severance policies, such employees will be credited with their years of service with Fidelity or its subsidiaries prior to the effective time and Ameris or its subsidiaries following the effective time. Such benefit payments will be conditioned on execution of a customary release of claims in a form satisfactory to Ameris.
With respect to any Ameris employee benefit plan in which any continuing employee becomes eligible to participate on or after the closing date, Ameris will: (i) waive all preexisting conditions, actively at work requirements, exclusion and waiting periods with respect to participation and coverage requirements to the extent they were inapplicable to, or were satisfied under, any Fidelity employee benefit plan in which such continuing employee participated; and (ii) ensure that each continuing employee receives full credit under each Ameris employee benefit plan in which such continuing employee becomes or may become a participant for service with the surviving corporation (or any predecessor to the surviving corporation and its affiliates), to the same extent such service was credited under the Fidelity employee benefit plans.
As of the closing date, Ameris will credit continuing employees the amount of vacation time that such employees had accrued under any vacation policy or arrangement as of the closing date. With respect to each Ameris health plan in which continuing employees participate after closing, Ameris will: (i) cause to be waived any eligibility waiting period, any evidence of insurability requirement and the application of any pre-existing condition limitation under such plan to the extent such requirements or limitations were inapplicable to, or were satisfied under, any Fidelity employee benefit plan in which such continuing employee participated; and (ii) cause each continuing employee to be given credit with respect to the plan year in which the closing date occurs (or, if later, the plan year in which such continuing employee becomes eligible to participate in such plan) for amounts (such as deductibles and co-payments) paid under any similar Fidelity employee benefit plan by such continuing employee. The merger agreement does not obligate Ameris to maintain any particular Fidelity employee benefit plan, Ameris employee benefit plan or other similarly-situated employees.employee benefit plan or retain the employment of any particular employee following the closing date.
Fidelity has agreed to terminate any 401(k) plan sponsored or maintained by Fidelity effective as of immediately prior to the closing if requested in writing by Ameris no later than ten business days prior to the closing date. In such event, Ameris will permit each participant in the Fidelity 401(k) to immediately participate in a 401(k) plan sponsored or maintained by Ameris or one of its subsidiaries and roll over his or her account balance into the Ameris 401(k) plan.
Director and Officer Indemnification and Insurance
For a period of six years from the effective time, Ameris will indemnify and hold harmless, to the fullest extent permitted by law, each individual who at the effective time is, or any time was, a director, officer or employee of Fidelity or any of its subsidiaries and each individual who served as a director, officer, member, trustee or fiduciary of another entity or an employee benefit plan if such service was at the request or for the benefit of Fidelity or any of its subsidiaries in respect of all claims, liabilities, losses, damages, judgments, fines, penalties costs and expenses (including reasonable attorneys’ fees) in connection with any claim, suit, action, proceeding or investigation based on or arising out of the fact that such individual was an officer, director or employee of Fidelity or any subsidiary (or fiduciary of any benefit plan of Fidelity or its subsidiaries) for acts or omissions by such individual in such capacity or taken at the request of Fidelity or any subsidiary, at or any time prior to the effective time (including any claim relating to the transactions contemplated by merger agreement or the bank merger agreement). Ameris has also agreed to assume all obligations of Fidelity and its subsidiaries to such indemnified persons in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the effective time as provided in the charter documents of Fidelity and its subsidiaries. From and after the effective time, Ameris will also advance any expenses (including reasonable attorneys’ fees) of any such indemnified person as incurred to the fullest extent permitted by applicable law, provided such person provides an undertaking to repay any advances if it is determined that he or she is not entitled to indemnification.
60112
TABLE OF CONTENTS​​
The merger agreement requires Ameris must give continuing employees creditto maintain Fidelity’s current directors’ and officers’ liability insurance policies in effect for their prior service with Atlantic and its subsidiaries for purposes of eligibility and vesting (but not benefit accruals) under any Ameris employee benefits to the extent such service was counted under the similar plan of Atlantic or its subsidiaries. The continuing employees’ prior service with Atlantic or any of its subsidiaries shall also be credited for purposes of all waiting periods for participation in any Ameris employee benefits to the extent such service was counted under the similar plan of Atlantic or its subsidiary. Ameris or its applicable subsidiary also: (i) will waive all restrictions and limitations for preexisting conditions under Ameris employee benefits to the extent such restrictions or limitations would not apply to the continuing employees under the similar plan of Atlantic or its subsidiary; and (ii) will use commercially reasonable efforts to provide the continuing employees, in the plan year which includes the closing date, with credit under Ameris’s group health employee benefits towards any applicable deductibles for the aggregate amounts paid by such employees toward applicable deductibles under Atlantic’s group health employee benefit plans for such plan year.
Subject to applicable legal requirements, Ameris and Atlantic will take such other commercially reasonable actions as necessary to terminate or amend, effective as of the closing date, all existing employment agreements and other Atlantic employee benefit plans or arrangements that Ameris directs Atlantic or Atlantic Coast Bank to terminate or amend prior to the completion of the merger. Unless terminated prior to the closing date, Ameris has agreed to honor the existing employment agreements with continuing employees in accordance with their terms or as otherwise amended by the parties.
The Atlantic ESOP
The Atlantic ESOP is a tax-qualified plan that covers substantially all of the employees of Atlantic and its subsidiaries. The Atlantic ESOP received a loan from Atlantic, the proceeds of which were used to acquire shares of Atlantic common stock for the benefit of plan participants (the “Atlantic ESOP Loan”). The Atlantic ESOP has pledged the shares acquired with the loan as collateral for the loan and holds them in a suspense account, releasing them to participants’ accounts as the loan is repaid, using contributions received from Atlantic.
Prior to the effective time of the merger, the outstanding Atlantic ESOP Loan will be repaid by the Atlantic ESOP by delivering a sufficient number of unallocated shares of Atlantic common stock to Atlantic and, if after remitting such shares there remains any unpaid amount under the Atlantic ESOP Loan, such unpaid amount, including any unpaid but accrued interest, will be forgiven by Atlantic at the effective time of the merger. Any unallocated shares remaining in the Atlantic ESOP suspense account (after the repayment of the outstanding Atlantic ESOP Loan) will be allocated to the active plan participants pro-rata as earnings. As of the effective time of the merger, the ESOP will be terminated and all allocated shares of common stock held by the Atlantic ESOP will be converted into the right to receive the merger consideration.
As soon as practicable following the receipt of a favorable determination letter from the IRS regarding the qualified status of the Atlantic ESOP upon its termination, the account balances in the Atlantic ESOP shall either be distributed to participants and beneficiaries or transferred to an eligible tax-qualified retirement plan or individual retirement account as a participant or beneficiary may direct.
Indemnification and Directors’ and Officers’ Insurance
For a period of six years after the effective time of the merger, Ameris must indemnify and defend,with respect to the fullest extent permitted by applicable law, the present and former directors and executive officers of Atlantic and its subsidiaries against all liabilities arising out or related to any claim, action, suit, proceeding, investigation or other legal proceeding in which an indemnified party is or is threatened to be made a party or witness arising out of the fact that such indemnified party is or was a director or officer of Atlantic or any of its subsidiaries (or was a director, officer, manager or trustee with another Atlantic entity or benefit plan)matters occurring prior to the effective time, iftime. Ameris may substitute policies of at least the same coverage and amounts containing terms and conditions which are no less advantageous to such claim pertains to any matter of fact arising, existingofficers and directors, so long as substitution does not result in gaps or occurring on or prior to the effective time.
Ameris shall promptly pay reasonable expenses (including reasonable attorneys’ fees)lapses in advance of the final disposition of any such claim to each indemnified party to the fullest extent permitted by applicable law upon receipt of an undertaking to repay such advance payments if such indemnified party is
61
TABLE OF CONTENTS​​
adjudicated not to be entitled to indemnification under the Merger Agreement. Ameris will not have any obligations to an indemnified party under the Merger Agreement if a federal or state banking agency or other governmental authority determines that indemnification of the indemnified person as contemplated under the Merger Agreement is prohibited by applicable law.
Ameris has agreed that it will not consolidate with or merge with any other corporation or entity wherecoverage. However, Ameris is not the continuing or surviving entity, or transfer all or substantially all of Ameris’s property or assets, unless proper provision is made so that the successors and assigns of Ameris assume the obligations of indemnification under the Merger Agreement.
In additionrequired to indemnifying former directors and executive officers of Atlantic during the same six-year period, Ameris will provide directors’ and officers’ liability insurance covering present and former directors and officers of Atlantic and its subsidiaries who are covered by Atlantic’s policies, as of the date of the Merger Agreement, on terms similar to such existing insurance (a “tail insurance policy”). In no event shall Ameris be obligated to make aggregate annual premium payments for such six-year period for the tail insurance policy which exceed 200%spend annually more than 300% of the annual premium paymentspayment on Atlantic’sFidelity’s current policy in effect as of the date of the Merger Agreement (the “maximum amount”).merger agreement. If premiums necessary to maintain or procure the tail insurance policy exceed the maximumcost of coverage exceeds that amount, then Ameris will use its reasonable best efforts to maintainpurchase as much coverage as possible for that amount. In lieu of the most advantageous policies of directors’ and officers’ liability insurance obtainable forforegoing, Ameris may obtain a premium equalprepaid “tail” policy at or prior to the maximum amount.effective time providing coverage equivalent to that described above for an aggregate price of no more than the 300% premium cap.
NASDAQ ListingCertain Additional Covenants
Ameris has agreedThe merger agreement also contains additional covenants, including, among others, covenants relating to list onaccess to information and notifications of certain changes, public announcements with respect to the NASDAQ Global Select Market,transactions contemplated by the closing date,merger agreement, the conversion of the Fidelity data processing and related electronic information technology system to facilitate the integration of Fidelity with Ameris’s business, tax matters, the listing of the shares of Ameris common stock to be issued to Atlantic stockholders in the merger.merger, litigation in connection with the merger agreement, Ameris’s assumption of Fidelity’s obligations in respect of the trust preferred securities of certain subsidiaries of Fidelity, the filing of this joint proxy statement/​prospectus, exemption from liability under Section 16(b) of the Exchange Act, obtaining required consents and the inapplicability of takeover laws to the transactions contemplated by the merger agreement.
Limitations on Discussion With Third PartiesAmeris and Fidelity Special Meetings
Under the Merger Agreement, Atlantic may not, and may not permit any of its subsidiaries or representatives, to solicit or entertain offers from, negotiate with or encourage, discuss, accept or consider an acquisition proposal (as defined below) of any third party. AtlanticAmeris has agreed to immediately ceasehold a meeting of its shareholders for the purpose of voting upon the Ameris share issuance, and Fidelity has agreed to hold a meeting of its shareholders for the purpose of voting on the merger agreement and the transactions contemplated thereby (including the merger), in each case, as promptly as practicable after the registration statement of which this this joint proxy statement/prospectus forms a part is declared effective. The Ameris board of directors is required to recommend that Ameris shareholders approve the Ameris share issuance and use reasonable best efforts to solicit from Ameris shareholders proxies in favor of such approval (including by communicating to Ameris shareholders the recommendation of the Ameris board of directors that they approve the Ameris share issuance). Except to the extent that the Fidelity board of directors has made an adverse recommendation change in accordance with the merger agreement, the Fidelity board of directors is required to recommend that Fidelity shareholders approve the merger agreement and use reasonable best efforts to solicit from Fidelity shareholders proxies in favor of such approval (including by communicating to Fidelity shareholders the recommendation of the Fidelity board of directors that they approve the merger agreement). Ameris and Fidelity agreed to cooperate and use their reasonable best efforts to hold their respective shareholders’ meetings on the same date and time.
Agreement Not to Solicit Other Offers
Fidelity has agreed that it will not, and will cause its subsidiaries and its and their respective representatives to not, directly or indirectly: (i) take any action to solicit, initiate, seek, knowingly facilitate or encourage any inquiries or expressions of interest or the making of any proposal or offer that constitutes, or would reasonably be terminatedexpected to lead to, any previously undertaken or ongoing activities,acquisition proposal; (ii) participate in any discussions or negotiations withregarding any third partyacquisition proposal or furnish, or otherwise afford access, to any person or entity (other than Ameris and its subsidiaries) any nonpublic information or data with respect to any acquisition proposal. If AtlanticFidelity or any of its subsidiaries or representatives receives any communication regardingotherwise relating to an acquisition proposal; (iii) approve, endorse or recommend any acquisition proposal before(other than the closing datemerger); or (iv) enter into any agreement in principle, arrangement, understanding, contract or agreement (other than a confidentiality agreement which expressly permits Fidelity to comply with its obligations pursuant to the merger agreement) relating to an acquisition proposal. Fidelity agreed to cease, and to cause each of its subsidiaries and its and their respective representatives to cease, any discussions, negotiations or communications with respect to any acquisition proposal upon execution of the merger then Atlantic shall immediately notify Amerisagreement.
113
TABLE OF CONTENTS​
For purposes of the receipt of such acquisition proposal.
Anmerger agreement, an “acquisition proposal” means:means, other than the transactions contemplated by the merger agreement and the bank merger agreement: (i) anya tender or exchange offer, proposal or offer with respect tofor a merger, joint venture, partnership, consolidation dissolution, liquidation, tender offer, recapitalization, reorganization, rights offering, share exchange,or other business combination involving Fidelity or similar transaction involving Atlanticits subsidiaries whose assets, individually or anyin the aggregate, constitute 25% or more of the consolidated assets of Fidelity and its subsidiaries; or (ii) any acquisition by any third party resulting in, or proposal or offer which, if consummated, would resultto acquire in any such third party becoming the beneficial owner, directlymanner in a single transaction or indirectly,series of transactions (a) more than 20%25% of the total voting power in Fidelity or its subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of any classthe consolidated assets of equity securities of Atlantic or any ofFidelity and its subsidiaries, or (b) more than 20%25% of the consolidated total assets of Atlantic or any ofFidelity and its subsidiaries.
However, priorFidelity may take any of the actions described in the second immediately preceding paragraph with respect to obtaining the requisite Atlantic stockholder approval, Atlantic may enter into discussions or negotiations with a third party, or furnish Atlantic non-public information to a third party, in response to aan unsolicited, bona fide unsolicited written acquisition proposal from such party if:
•
received by Fidelity prior to the Fidelity special meeting, which acquisition proposal did not result from a breach of Atlantic’s obligations under the Merger Agreement regarding limitations on discussions with third parties;
​
•
restrictions in the second immediately preceding paragraph, if, but only if: (i) the Fidelity board of directors of Atlantic determines in good faith (in accordance with the merger agreement and after consultation with its financial advisor and outside legal counsel and independent financial advisor) that (a) such acquisition proposal constitutes, or is reasonably likely to result in, a superior proposal (as defined below);
​
•
the board of directors of Atlantic determines in good faith, after consultation with its outside legal counsel, thatand (b) a failure to take such actionactions would be reasonably likely to result in a breachviolation of theits fiduciary duties of the board of directors;
​
​
62
TABLE OF CONTENTS​​
•
Atlantic givesto Fidelity and its shareholders under applicable law; (ii) Fidelity provides Ameris with prompt (and in any event within twenty-four hours) notice of (i) receipt by Atlanticsuch determination; and (iii) prior to furnishing or affording access to any information or data with respect to Fidelity or any of its subsidiaries or representatives of anyotherwise relating to such acquisition proposal, (which notice shall include the identity of such third party and the material terms and conditions of any proposals or offers), and (ii) Atlantic’s entering into discussions or negotiations with, or furnishing Atlantic non-public information to, such third party;
​
•
AtlanticFidelity receives from such third party an executedperson or entity a confidentiality agreement containingwith terms no less favorable to AtlanticFidelity than those contained in the nondisclosure agreement between Ameris and Fidelity. Fidelity is required to promptly provide Ameris with any non-public information regarding Fidelity or its subsidiaries provided to any other person or entity that was not previously provided to Ameris, and such additional information must be provided to Ameris no later than the termsdate of the confidentiality agreement between Atlantic and Ameris relating to the merger; and
​
•
contemporaneously with, or promptly after, Atlantic furnishes anyprovision of such nonpublic information to such other party.
For purposes of the merger agreement, a “superior proposal” means a bona fide written acquisition proposal made by a third party Atlantic furnishes(or group of third parties) which the Fidelity board of directors determines in its good faith judgment to be more favorable, from a financial point of view, to Fidelity shareholders than the merger after: (i) consultation with its financial advisors and outside counsel; and (ii) taking into account the likelihood of completion of such nonpublic informationtransaction on the terms set forth therein, the anticipated timing of such completion relative to Ameris (if not previously furnished).
​
Atlantic has agreed to keep Ameris reasonably informed on a prompt basisthe anticipated timing of the status and materialmerger, all other legal (with the advice of outside counsel), financial (including the financing terms of any such acquisition proposal, including any material amendments or proposed amendments, and any change in Atlantic’s intentions with respect to the transactions contemplated by the Merger Agreement.
A “superior proposal” means any bona fide written acquisition proposal: (i) that, if consummated, would result in any a third party becoming the beneficial owner, directly or indirectly, of more than 50% of the total voting power of any class of equity securities of Atlantic or any of its subsidiaries, or of more than 50% of the consolidated total assets of Atlantic or any of its subsidiaries; and (ii) with respect to which the board of directors of Atlantic (a) determines in good faith that such acquisition proposal, if accepted, is reasonably likely to be consummated on a timely basis, taking into account all legal, financial,proposal), regulatory and other aspects of the acquisitionsuch proposal (including any expense reimbursement provisions and conditions to closing and the third party or parties making such proposal,proposal) and (b) determines in good faith (based on, amongany other things, the advice of Atlantic’s financial advisor) to be more favorable to the Atlantic stockholders than the merger taking into account all relevant factors (including whether, in the good faith judgment of the board of directors of Atlantic,permitted under applicable law, and after obtaining the advice of the Atlantic’s financial advisor, the third party making such acquisition proposal is reasonably ablegiving effect to finance the transaction and close it timely, and any proposed changes to the Merger Agreementmerger agreement that may be proposed by Ameris in response to such acquisition proposal).
Atlantic Board Recommendation
The Merger Agreement requires Atlantic to hold the special meeting,proposal; provided, however, that for purposes of submitting the Merger Agreementdefinition of  “superior proposal,” the references to 25% in the definition of  “acquisition proposal” are deemed to be references to 50%.
The merger agreement requires that Fidelity promptly (and in any event within twenty-four hours) notify Ameris in writing if any proposals or offers (or modified offers or proposals) are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with, Fidelity or any of its subsidiaries or any of their respective representatives, in each case constituting or in connection with any acquisition proposal. Such notice must indicate the name of the person or entity initiating such discussions or negotiations or making such proposal, offer or information request and the merger to the Atlantic stockholders for approval, as promptly as reasonably practical after the registration statementmaterial terms and conditions of which this proxy/statement forms a part is declared effective by the SEC. Atlantic must use its reasonable best efforts to solicit from the Atlantic stockholders proxies in favor of the adoption of the Merger Agreement and the approval of the merger and take all other action necessaryany such proposals, offers or advisable to secure the requisite Atlantic stockholder approval. To this end, the board of directors of Atlantic must communicate to the Atlantic stockholders the board of directors of Atlantic’ recommendation that they adopt and approve the Merger Agreement and the transactions contemplated thereby, including the merger (the “Atlantic board recommendation”).information requests.
Adverse Recommendation Change
Except as described under “— Change in Atlantic Board Recommendation,”below, the merger agreement prohibits the Fidelity board of directors of Atlantic may not:or any committee thereof from: (i) withdraw, qualifywithdrawing, qualifying or modify,modifying, or propose publicallypublicly proposing to withdraw, qualify or modify, in a manner adverse to Ameris or itsany of Ameris’s subsidiaries, the Atlanticrecommendation of the Fidelity board recommendation;of directors that Fidelity shareholders vote in favor of the merger agreement: or (ii) approveapproving or recommend,recommending to Fidelity shareholders, or propose publicallypublicly proposing to approve or recommend to Fidelity shareholders, any acquisition proposal. Weproposal (each of which we refer to any of the actions in clause (i) and (ii) as an “adverse Atlantic recommendation change.”change”).
Change in Atlantic Board Recommendation
114
Prior to obtaining
TABLE OF CONTENTS​
Notwithstanding the requisite Atlantic stockholder approval,foregoing, the Fidelity board of directors of Atlantic may makeat any time prior to the Fidelity special meeting: (i) effect an adverse Atlantic recommendation changechange; or (ii) terminate the merger agreement to enter into a definitive agreement with respect to a superior proposal, if and only if:
•
the Fidelity board of directors of Atlantic determines in good faith, after consultation with Atlantic’s financial advisor andits outside legal counsel and independent financial advisor, that it has received an unsolicited, bona fide acquisition proposal (not resulting(that did not result from a breach of Atlantic’s obligationsthe nonsolicitation provisions of the merger agreement described above under the Merger“— Agreement regarding limitations on discussions with third parties)Not to Solicit Other Offers”) that constitutes, or is reasonably likely to result in, a superior proposal (and such superior proposaland that has not been withdrawn)withdrawn;
​
•
the Fidelity board of directors determines in good faith, after consultation with such outside legal counsel, that a failure to take such actions would be reasonably likely to result in a violation of its fiduciary duties to Fidelity and its shareholders under applicable law;
​
•
the Fidelity board of directors provides written notice to Ameris of its receipt of the acquisition proposal and its intent to withdraw the recommendation of the Fidelity board of directors in favor of the merger agreement on the fifth business day following delivery of such notice, which notice must specify in reasonable detail the material terms and conditions of the acquisition proposal, and any amendment to any financial or other material term of such acquisition proposal requires a new notice of recommendation change (which must be delivered within three business days, and with respect to which the time period referred to in each of the following two clauses is three business days);
​
•
after providing such notice, Fidelity is required to negotiate in good faith with Ameris (if requested by Ameris) and provide Ameris reasonable opportunity during the subsequent five business day (or three business day) period(s) to make such changes in the terms and conditions of the merger agreement as would enable the Fidelity board of directors to proceed without withdrawing its recommendation in favor of the merger agreement, although Ameris is not required to propose any such changes; and
​
•
the Fidelity board of directors, following the final such five business day (or three business day) period, again determines in good faith, after consultation with such outside legal counsel and such independent financial advisor, that such acquisition proposal would continue to constitute a superior proposal if such proposed revisions were to be given effect.
​
Conditions to Complete the Merger
The respective obligations of each of Ameris and Fidelity to complete the merger is subject to the satisfaction or waiver of the following conditions:
•
the absence of any law or order enacted or issued by any governmental authority which has the effect of making illegal or preventing or prohibiting the completion of the transactions contemplated by the merger agreement;
​
•
the receipt of the Fidelity shareholder approval and the receipt of the Ameris shareholder approval;
​
•
the receipt and effectiveness of the requisite regulatory approvals contemplated by the merger agreement, without the imposition of any materially burdensome regulatory condition, and the expiration or termination of all statutory waiting periods in respect thereof;
​
•
the effectiveness of the registration statement of which this joint proxy statement/prospectus forms a part, the absence of any stop order suspending the effectiveness of such registration statement (or any proceedings for that purpose initiated or threatened by the SEC and continuing), and the receipt of all necessary approvals under state securities laws or the Securities Act of 1933, as amended (which we refer to as the “Securities Act”), relating to the issuance of the shares Ameris common stock in the merger;
​
•
the approval for listing on the Nasdaq of the shares of Ameris common stock to be issued in the merger, subject to official notice of issuance;
​
​
63115
TABLE OF CONTENTS​
•
the board of directors of Atlantic determines, in good faith,parties’ standing ready to complete the bank merger immediately after consultation with Atlantic’s outside legal counsel, that a failure to accept such superior proposal would be reasonably likely to result in a breach of the fiduciary duties of the board of directors under applicable law;
​
•
the board of directors of Atlantic delivers to Ameris written notice of its receipt of the superior proposal and its intent to announce an adverse Atlantic recommendation change on the third business day after such delivery, which notice shall specify the material terms and conditions of the superior proposal;
​
•
after providing such written notice, Atlantic negotiates in good faith with Ameris (if requested) and provides Ameris reasonable opportunity during such three-business day period to adjust the terms and conditions of the Merger Agreement as would enable the board of directors of Atlantic to proceed without an adverse Atlantic recommendation change; and
​
•
after such three-day period, the board of directors of Atlantic again determines in good faith, after consultation with Atlantic’s financial advisor and outside legal counsel, that such acquisition proposal nonetheless continues to constitute a superior proposal and that failure to make an adverse Atlantic recommendation change would be reasonably likely to result in a breach of the fiduciary duties of the board of directors under applicable law.
​
If the board of directors of Atlantic makes an adverse Atlantic recommendation change, then Atlantic could be required to pay Ameris a termination fee of  $5.75 million in cash. See “— Termination Fee.”
Conditions to Completion of the Merger
The completion of the merger depends on a number of conditions being satisfied or, where permitted, waived, including:
•
receipt of the requisite Atlantic stockholder approval;
​
•
receipt of all required regulatory approvals without them containing or resulting in the imposition of any materially burdensome regulatory condition;
​
•
no order, injunction, decree or judgment preventing the completion of the merger or the other transactions contemplated by the Merger Agreement issued by any governmental authority of competent jurisdiction, or other legal restraint or prohibition preventing the completion of the merger or the other transactions contemplated by the Merger Agreement, is in effect;
​
•
no law has been enacted or enforced by any governmental authority which prohibits or makes illegal the completion of the merger;
​
•
the registration statement of which this proxy statement/prospectus forms a part has been declared effective by the SEC, and no stop order has been entered with respect thereto;
​
•
the accuracy in all respects, of the representations and warranties of eachthe other party contained in the Merger Agreement,merger agreement as of the date of the Merger Agreementmerger agreement and as of the closing date or(except to the extent such other date specifiedrepresentations and warranties speak as of a particular date), subject to the materiality standards provided in the Merger Agreement (without giving effectmerger agreement (and the receipt by such party of an officer’s certificate from the other party to any materiality orsuch effect);
​
•
the performance and compliance in all material adverse effect limitations), except whererespects by the failureother party of its covenants and obligations required by the merger agreement to be accurate is notperformed or complied with prior to or at the closing date (and the receipt by such party of an officer’s certificate from the other party to such effect);
​
•
receipt by such party of an opinion of legal counsel to the effect that on the basis of facts, representations, and assumptions set forth or referred to in such opinion, the merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code; and
​
•
the absence of any event, change, occurrence, circumstance, condition, effect or development that has had, or may reasonably likelybe expected to have, a material adverse effect on the other party to which such representation or warranty relates;
​
•
since the performance and compliance by each party in all material respectsdate of all agreements and covenants required to be performed by it at or prior to the closing date;
​
•
the delivery of officers’ certificates, secretary’s certificates and certificates of valid existence to Ameris and Atlantic by the other; and
​
•
receipt by each of Ameris and Atlantic of an opinion of its respective legal counsel as to certain tax matters.merger agreement.
​
No assurance is given as to when, or if, the conditions to the merger will be satisfied or waived, or that the merger will be completed.
Termination of the Merger Agreement
64
TABLE OF CONTENTS​
Termination; Merger Consideration Adjustments
Termination.   Ameris and AtlanticFidelity may mutually agree to terminate the Merger Agreement and abandon the merger agreement at any time prior to the effective time of the merger.closing date. Subject to conditions and circumstances described in the Merger Agreement,merger agreement, the Merger Agreementmerger agreement may also may be terminated as follows:
•
by either party, if events that have had, or would reasonably be expected to have, a material adverse effect on the other party have occurred and are continuing;
​
•
by either party, if the other party materially breaches any covenant, obligation or agreement in the Merger Agreement, which breach has not been cured within 20 days after the giving of written notice to the other party of such breach or, if such breach is not capable of being cured within 20 days, the other party has not actively and in good faith, within 20 days after such written notice, taken steps to cure such breach as promptly as practicable;
​
•
by Ameris, if Ameris learns of any fact or condition that would reasonably be expected to have a material adverse effect on Ameris or Atlantic and which Atlantic was required, but failed, to disclose;
​
•
by either party, if any required regulatory approval has been denied by the relevant governmental authority, or any governmental authority of competent jurisdiction has issued a final, nonappealable injunction permanently enjoining or otherwise prohibiting the completion of the transactions contemplated by the Merger Agreement;
​
•
by either party, if the closing date shalldoes not have occurredoccur on or before June 30, 2018 (subject to extension of such termination date as described below), providedDecember 31, 2019, except that neithera party may not terminate the Merger Agreementmerger agreement for this reason if the failure of the closing to occur by such date is due towas caused by or resulted from such party’s failure to perform or observe its covenants and agreementsfulfill any obligation under the Merger Agreement;merger agreement;
​
•
by either party in the event of a breach by the other party of any representation, warranty or obligation contained in the merger agreement, which breach cannot be or has not been cured within thirty days after the giving of written notice to the non-terminating party and which breach would be reasonably likely, either individually or together with all other breaches of the breaching party, to result in a failure to satisfy any applicable closing condition, provided that the terminating party is not then in material breach of the merger agreement;
​
•
by either party if the requisite Atlantic stockholderfinal action has been taken by a regulatory agency whose approval is required in connection with the merger agreement or the bank merger agreement, which final action has become final and nonappealable and does not obtained (provided, inapprove the casemerger agreement or the bank merger agreement or the transactions contemplated thereby, or a governmental authority enacts, issues, promulgates, enforces or enters any law or final nonappealable judgment which would make illegal the consummation of terminationthe transactions contemplated by Atlantic, it has complied with its obligations under the Merger Agreement regarding conveningmerger agreement or the special meeting, soliciting proxies with respect thereto and taking all other actions necessary or advisable to obtain such approval);bank merger agreement;
​
•
by Atlantic if, prior to obtaining the requisite Atlantic stockholder approval, the boardeither party (provided that such party is not in breach of directors of Atlantic has made an adverse Atlantic recommendation change and Atlantic has complied with its obligations under the Merger Agreement: (i) regarding conveningmerger agreement with respect to obtaining its shareholders’ approval), if the Ameris shareholder approval is not obtained at the Ameris special meeting soliciting proxies with respect thereto and taking all other actions necessary or advisablethe Fidelity shareholder approval is not obtained at the Fidelity special meeting by reason of the failure to obtain the required approval, and (ii)vote at a duly held meeting of such shareholders as described under “— Limitations on Discussions With Third Parties,” “— Atlantic Board Recommendation” and “— Changeit may be adjourned or postponed in Atlantic Board Recommendation;” and
​
•
by Atlantic, at any time during the four business-day period immediately following the determination date (as defined below), if:
​
◦
the average Ameris stock price (as defined below) is less than $39.91;
​
◦
the quotient of the average Ameris stock price (as defined below) divided by $46.95 (which was the closing price of Ameris common stock on November 15, 2017) is less than 85% of   the quotient of  (x) the average daily current market price of the KBW Nasdaq Regional Banking Index (KRX) during the determination period divided by (y) the daily current market price of the KBW Nasdaq Regional Banking Index (KRX) for November 15, 2017; and
​
◦
Ameris elects not to increaseaccordance with the merger consideration to be received by the Atlantic stockholders as discussed under “— Merger Consideration Adjustments” below.agreement;
​
​
65
TABLE OF CONTENTS
The June 30, 2018 termination date may be extended by Ameris or Atlantic for a period of three additional months, provided that neither party may extend the termination date if the failure of the closing to occur by such date is due to such party’s failure to perform or observe its covenants and agreements under the Merger Agreement. If the termination date is extended, then the aggregate cash consideration of the merger consideration will be increased as discussed under “— Merger Consideration Adjustments” below.
“Average Ameris stock price” means the average of the closing sale prices of Ameris common stock during the 20 consecutive full trading days (the “determination period”) preceding the later to occur of (such date, the “determination date”) the effective date of the last required regulatory approval and the date of receipt of the requisite Atlantic stockholder approval.
Merger Consideration Adjustments.   If the termination date is extended by either party as discussed under “— Termination” above, then provided that it will not cause the merger to fail to qualify as a tax-free reorganization within the meaning of Section 368(a) of the Code, the aggregate cash consideration payable as part of the merger consideration to be received by Atlantic stockholders will be increased by the amount of Atlantic’s after-tax net income for the period from January 1, 2018 through June 30, 2018.
The merger consideration may also be adjusted as a result of a decline in the Ameris stock price if:
•
the average Ameris stock price is less than $39.91;
​
•
the quotient of the average Ameris stock price divided by $46.95 (which was the closing price of Ameris common stock on November 15, 2017) is less than 85% of   the quotient of  (x) the average daily current market price of the KBW Nasdaq Regional Banking Index (KRX) during the determination period divided by (y) the daily current market price of the KBW Nasdaq Regional Banking Index (KRX) for November 15, 2017;
​
•
at any time during the four business-day period following the determination date, Atlantic provides (and does not withdraw) written notice to Ameris of Atlantic’s intention to terminate the Merger Agreement based on the two conditions described above being met; and
​
•
during the three business-day period commencing with Ameris’s receipt of Atlantic’s written notice, Ameris elects to increase the exchange ratio or (provided that it will not cause the merger to fail to qualify as a tax-free reorganization within the meaning of Section 368(a) of the Code) to pay, as part of the merger consideration, to each Atlantic stockholder, an additional cash payment (the “additional cash consideration”), such that the value of the consideration to be received by each Atlantic stockholder (calculated based on the average Ameris stock price and including any additional cash consideration but excluding the cash consideration of  $1.39 per share of Atlantic common stock) equals the minimum amount that, had the average Ameris stock price been equal to such amount, at least one of the first two conditions described above would not have been met.
​
Even if the first two conditions described above are met, the board of directors of Atlantic may elect not to terminate the Merger Agreement. Any decision to terminate the Merger Agreement will be made by the board of directors of Atlantic in light of all of the circumstances existing at the time. Prior to making any decision to terminate the Merger Agreement, the board of directors of Atlantic would consult with its financial and other advisors and would consider all financial and other information it deemed relevant to its decision, including whether the then-current consideration to be received in the merger would deliver more value to the Atlantic stockholders than the value that could be expected if Atlantic were to continue as an independent company (which would occur if the board of directors of Atlantic were to elect to abandon the merger and Ameris determined not to increase the exchange ratio or pay the additional cash consideration). In addition, the board of directors of Atlantic would consider whether, in light of market and other industry conditions at the time of such decision, the merger consideration continued to be fair from a financial point of view to Atlantic stockholders. If Atlantic elected not to terminate the Merger Agreement, which it could do without any action on the part of Atlantic stockholders, the exchange ratio would remain 0.17 and the cash consideration would remain $1.39 per share of Atlantic common stock.
66116
TABLE OF CONTENTS​​​​
If each of•
by Ameris prior to the first two conditions described above are met andtime the Fidelity shareholder approval is obtained if the Fidelity board of directors (or any committee thereof) fails to recommend that Fidelity shareholders approve the merger agreement or makes an adverse recommendation change, or Fidelity has materially breached its obligations with respect to obtaining the Fidelity shareholder approval or alternative acquisition proposals; or
​
•
by Fidelity, prior to obtaining the Fidelity shareholder approval, to enter into an agreement relating to a superior proposal, provided that Fidelity has complied in all material respects with its obligations with respect to obtaining the Fidelity shareholder approval and alternative acquisition proposals.
​
Effect of Atlantic elected to terminateTermination
If the Merger Agreement, then Ameris wouldmerger agreement is terminated, it will become void and have no further force or effect, except that: (i) each party will remain liable for any damages resulting from fraud or the optionwillful breach of increasingany of its representations, warranties, covenants or agreements contained in the consideration payable to Atlantic stockholders by either increasingmerger agreement; and (ii) designated provisions of the exchange ratio or paying the additional cash consideration as described above. Ameris is under no obligation to increase the exchange ratio or to pay any such additional cash consideration, and there can be no assurance that Ameris would elect to increase the exchange ratio or pay such additional cash consideration to preventmerger agreement will survive the termination, including those relating to any payment of a termination fee and the Merger Agreement. Any decision would be made by Ameris in lightconfidential treatment of the circumstances existing at the time. If Ameris elected to increase the exchange ratio or to pay the additional cash consideration as described above, then Atlantic could not terminate the Merger Agreement as a result of the above-described circumstances.information.
Termination Fee
Atlantic mustFidelity is required to pay to Ameris, within three business days of the termination of the merger agreement, a termination equalfee of  $29,000,000 (which we refer to $5.75 millionas the termination fee), if an acquisition proposal is outstanding, or has been accepted by Atlantic, and the Merger Agreementmerger agreement is terminated:
•
by either party becauseAmeris prior to the time the Fidelity shareholder approval is obtained if the Fidelity board of directors (or any committee thereof) fails to recommend that Fidelity shareholders approve the merger is not completed onagreement or before June 30, 2018;makes an adverse recommendation change, or Fidelity has materially breached its obligations with respect to obtaining the Fidelity shareholder approval or alternative acquisition proposals; or
​
•
by Atlantic, other than dueFidelity, prior to obtaining the Fidelity shareholder approval, to enter into an agreement relating to a terminationsuperior proposal, provided that Fidelity has complied in all material respects with its obligations with respect to (i) a material adverse effect on Ameris, or (ii) a material breach by Ameris of any covenant, obligation or agreementobtaining the Fidelity shareholder approval and alternative acquisition proposals.
​
In addition, in the Merger Agreement (subjectevent that:
•
a bona fide acquisition proposal with respect to applicable cure provisions).
​
Atlantic also must payFidelity is communicated to Amerisor otherwise made known to the termination fee of  $5.75 million if Ameris terminates the Merger Agreement as permitted under “Termination” aftersenior management or the board of directors of Atlantic makesFidelity or to Fidelity shareholders generally, or any person or entity (or group of persons or entities) publicly announces an adverse Atlantic recommendation change.intention to make an acquisition proposal with respect to Fidelity after the date of the merger agreement (which has not been publicly withdrawn):
The​
•
the merger agreement is thereafter terminated: (i) by Ameris or Fidelity on the basis that the closing date did not occur on or before December 31, 2019 (if the Fidelity shareholder approval has not been obtained and certain closing conditions had been satisfied or waived or were capable of being satisfied prior to such termination); or (ii) by Ameris on the basis that Fidelity breached its representations, warranties, covenants or obligations set forth in the merger agreement, which breach, among other things, would be reasonably likely to result in a failure to satisfy any applicable closing condition; and
​
•
prior to the date that is twelve months after the date of such termination, Fidelity completes a transaction with respect to an acquisition proposal or enters into an agreement with respect to an acquisition proposal (provided that the references to 25% in the definition of  “acquisition proposal” are deemed to be references to 50% for this purpose);
​
then Fidelity is required to pay Ameris the termination fee on the earlier of the date such transaction is completed or such agreement is entered into.
In addition, if Fidelity fails to pay timely any termination fee payable by it under the merger agreement, then Fidelity will be required to pay Ameris its reasonable costs and expenses (including reasonable attorneys’ fees) in connection with collecting such termination fee, together with interest on the
117
TABLE OF CONTENTS​​​
amount of the fee at a specified rate from the date such payment was due under the merger agreement until the date of payment. Other than in connection with fraud or a willful breach of the merger agreement, the payment of the termination fee will fully discharge Fidelity from, and be the sole and exclusive remedy of Ameris forwith respect to, all claims under the Merger Agreement, exceptlosses that Atlantic shall notmay be relievedsuffered by Ameris based upon, resulting from liabilityor arising from any willful breach of any provisionout of the Merger Agreement.circumstances giving rise to the termination of the merger agreement. In no event will Fidelity be required to pay the termination fee on more than one occasion.
Expenses and Fees
AllEach party has agreed to bear its own expenses incurred by each party in connection with the preparation, execution and performance of the merger agreement and the bank merger agreement and the transactions contemplated thereby, whether or not the transactions are consummated, including all fees and expenses of its agents, representatives, counselsuch party’s advisers and accountants, will be paid by such party.representatives.
Amendment and Modification
The Merger Agreementmerger agreement may not be amended or modified except by ana written agreement in writingexecuted by the parties, except that after the requisite Atlantic stockholder approval has been obtained, no amendment may be made which reduces or modifies the merger consideration.Ameris and Fidelity.
Voting Agreement
In connection with entering into the Merger Agreement, Ameris and Atlanticmerger agreement, each director of Fidelity who beneficially owns 1% or more of the outstanding Fidelity common stock has entered into a Voting Agreementvoting agreement with eachAmeris and Fidelity. The following description of the directors and certain executive officers of Atlantic, all of whom are Atlantic stockholders. The following summary of the Voting Agreementvoting agreement is subject to, and qualified in its entirety by reference to, the full text of the Voting Agreementvoting agreement, which is included inattached to this joint proxy statement/prospectus as AppendixAnnex B. and is incorporated by reference into this joint proxy statement/prospectus.
Pursuant to the Voting Agreement,voting agreement, each stockholder who is ashareholder party, thereto, in itshis capacity as an Atlantic stockholder,a shareholder of Fidelity, agreed to vote all shares of AtlanticFidelity common stock beneficially owned by such stockholder,shareholder, as follows:
•
in favor of the approval or adoption of the Merger Agreementmerger agreement and the transactions contemplated thereby;thereby (including any amendments or modifications of the terms thereof approved by the Fidelity board of directors and adopted in accordance with the terms thereof);
​
•
in favor of any proposal to adjourn or postpone the Fidelity special meeting to a later date if there are not sufficient votes to approve the Merger Agreement;merger agreement and such adjournment or postponement is in accordance with the merger agreement;
​
​
67
TABLE OF CONTENTS
•
against any action or agreement that would be reasonably likely to impair the ability of either Ameris or Atlantic to complete the merger or would otherwise be inconsistent with, prevent, materially impede or materially delay the consummationcompletion of the transactions contemplated by the Merger Agreement;merger agreement; and
​
•
against any proposal that relates to an acquisition proposal, other than the transactions contemplated by the Merger Agreement,merger agreement, without regard to the terms of such proposal.
​
The Voting Agreement provides thatSubject to certain conditions, each stockholdershareholder party willhas granted Ameris an irrevocable proxy to vote such shareholder’s shares of Fidelity common stock in accordance with the voting agreement. Each shareholder party has also agreed not to transfer such shareholder’s shares of Fidelity common stock prior to receipt of the Fidelity shareholder approval without Ameris’s and Fidelity’s consent, subject to certain exceptions, with respect to any shares of Atlantic common stock owned by such stockholder:
•
sell, transfer, assign, tender in any tender or exchange offer, pledge, encumber, hypothecate or similarly dispose of  (by merger, by testamentary disposition, by operation of law or otherwise), either voluntarily or involuntarily, any such shares;
​
•
enter into any swap or other arrangements that transfer to another, in whole or in part, any of the economic consequences of ownership of any such shares; or
​
•
enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, lien, hypothecation or other disposition of  (by merger, by testamentary disposition, by operation of law or otherwise), or otherwise convey or dispose of, any such shares, or any interest therein, including the right to vote any such shares.
​exceptions.
The Voting Agreementvoting agreement applies to each stockholdershareholder party in such party’sshareholder’s capacity as an Atlantic stockholdera shareholder of Fidelity and does not apply in any manner to any such party’sshareholder’s capacity as a director or officer of AtlanticFidelity or its subsidiaries or in any other capacity.capacity (and does not limit or affect any actions taken by any person in such person’s capacity of director or officer of Fidelity or its subsidiaries, including by causing Fidelity to exercise its rights under the merger agreement). The Voting Agreementvoting and support obligations of each shareholder party will terminate upon the earlier of: (i) the effective time of the merger; andtime; (ii) the termination of the Merger Agreementmerger agreement in accordance with its terms.terms; and (iii) the entry, without the prior written consent of such shareholder, into an amendment or modification of the merger agreement which results in a decrease or change in the composition of the merger consideration.
68118
TABLE OF CONTENTS​
ACCOUNTING TREATMENT
In accordance with current accounting guidance, the merger will be accounted for as a business combination using the acquisition method of accounting. As a result, the recorded assets and liabilities of Ameris will be carried forward at their recorded amounts, the historical operating results will be unchanged for the prior periods being reported on and the assets and liabilities of Fidelity will be adjusted to fair value at the date of the merger. In addition, all identified intangible assets will be recorded at fair value and included as part of the net assets acquired. To the extent that the purchase price exceeds the fair value of the net assets including identified intangible assets of Fidelity on the date the merger is completed, such amount will be reported as goodwill. In accordance with current accounting guidance, goodwill will not be amortized but will be evaluated for impairment annually. Identified finite life intangible assets will be amortized over their estimated lives. Further, the acquisition method of accounting will result in the operating results of Fidelity being included in the operating results of Ameris beginning from the date of completion of the merger.
119
TABLE OF CONTENTS​
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER
The following is a general discussion sets forth the anticipatedof material United StatesU.S. federal income tax consequences of the merger to U.S. holders (as defined below) of AtlanticFidelity common stock.stock that exchange their shares of Fidelity common stock for shares of Ameris common stock in the merger. The following discussion is based upon the Code, the U.S. Treasury regulations promulgated thereunder and judicial and administrative authorities, rulings and decisions, all as in effect as of the date of this joint proxy statement/prospectus. These authorities may change, possibly with retroactive effect, and any such change could affect the accuracy of the statements and conclusions set forth in this discussion. This discussion does not address any tax consequences arising under the unearned income Medicare contribution tax pursuant to the Health Care and Education Reconciliation Act of 2010, any withholding considerations under the Foreign Account Tax Compliance Act of 2010 (including the U.S. Treasury Regulations issued thereunder and intergovernmental agreements entered into pursuant thereto or in connection therewith) nor does it address any tax consequences arising under the laws of any state, local or foreign jurisdiction, or under any United StatesU.S. federal laws other than those pertaining to the income tax. This
The following discussion is based upon the Code, the regulations promulgated under the Code and court and administrative rulings and decisions, all as in effect on the dateapplies only to holders of this proxy statement/prospectus. These laws may change, possibly retroactively, and any change could affect the accuracy of the statements and conclusions set forth in this discussion.
This discussion addresses only those AtlanticFidelity common stockholders thatstock who hold theirsuch shares of Atlantic common stock as a capital asset within the meaning of Section 1221 of the Code (generally, property held for investment). Further, this discussion does not addresspurport to consider all aspects of United StatesU.S. federal income taxation that maymight be relevant to youholders in light of yourtheir particular circumstances or that may be applicableand does not apply to you if you areholders subject to special treatment under the United StatesU.S. federal income tax laws including if you are:
•
a financial institution;
​
•
a tax-exempt organization;
​
•
an S corporation(such as, for example, dealers or other pass-through entity (or an investorbrokers in an S corporationsecurities, commodities or other pass-through entity);
​
•
an insurance company;
​
•
a mutual fund;
​
•
a dealer or broker in stocks and securities, orforeign currencies;
​
•
a trader traders in securities that electselect to apply a mark-to-market treatment;
​
•
a holdermethod of Atlantic common stockaccounting; banks and certain other financial institutions; insurance companies; mutual funds; tax-exempt organizations; holders subject to the alternative minimum tax provisions of the Code;
​
•
a holder persons who are required to recognize income or gain with respect to the merger no later than such income or gain is required to be reported on an applicable financial statement under Section 451(b) of Atlanticthe Code; partnerships, S corporations or other pass-through entities (or investors therein); regulated investment companies; real estate investment trusts; former citizens or residents of the United States; U.S. expatriates; U.S. holders whose functional currency is not the U.S. dollar; holders who hold shares of Fidelity common stock that received Atlanticas part of a hedge, straddle, constructive sale or conversion transaction or other integrated investment; holders who acquired Fidelity common stock throughpursuant to the exercise of an employee stock option,options, through a tax qualified retirement plan or otherwise as compensation;
​
•
a person that is not a U.S. holder (as defined below);
​
•
a person that has a functional currency other than the U.S. dollar;
​
•
a holder holders who own both shares of AtlanticFidelity common stock that holds Atlanticand Ameris common stock as partstock; or holders who actually or constructively own more than 5% of a hedge, straddle, constructive sale, conversion or other integrated transaction; or
​
•
a United States expatriate.
​
In addition, the discussion does not address any alternative minimum tax or any state, local or foreign tax consequences of the merger, nor does it address any tax consequences arising under the unearned income Medicare contribution tax pursuant to the Health Care and Education Reconciliation Act of 2010. Determining the actual tax consequences of the merger to you may be complex. They will depend on your specific situation and on factors that are not within the control of Atlantic or Ameris. You should consult with your own tax advisor as to the tax consequences of the merger in your particular circumstances.Fidelity’s voting stock).
For purposes of this discussion, the term “U.S. holder” means a beneficial owner of AtlanticFidelity common stock that is, for United StatesU.S. federal income tax purposes:purposes, (i) an individual citizen or resident of the United States;States, (ii) a corporation, or entity treated as a corporation for U.S. federal income tax purposes, organized in or under the laws of the United States, or any state thereof or the District of Columbia;Columbia, (iii) a trust if  (a) a court within the United States is able to exercise primary supervision over the administration of the trust and one or more U.S. persons have the authority to control all substantial decisions of the trust or (b) such trust has made a valid election to be treated as a U.S. person for U.S. federal income tax purposes;purposes, or (iv) an estate, the income of which is includible in gross income for U.S. federal income tax purposes, regardless of its source.
69
TABLE OF CONTENTS
The United States federal income tax consequences to a partner inIf an entity or arrangement that is treated as a partnership for United StatesU.S. federal income tax purposes and that holds Atlanticis a holder of Fidelity common stock, the tax treatment of a partner in such partnership generally will depend on the status of the partner and the activities of the partnership. Partners inAny entity treated as a partnership holding Atlanticfor U.S. federal income tax purposes that is a holder of Fidelity common stock, and any partners in such partnership, should consult their tax advisors regarding the tax consequences of the merger to their specific circumstances.
All holders of Fidelity common stock should consult their own tax advisors.
Tax Consequencesadvisors regarding the specific tax consequences to them of the Merger Generally
The parties intend formerger in light of their particular facts and circumstances, including the merger to qualify as a “reorganization” within the meaning of Section 368(a)applicability and effect of the Code. alternative minimum tax and any state, local, foreign and other tax laws.
120
TABLE OF CONTENTS
General
It is a condition to Ameris’sthe obligation of Ameris to complete the merger that Ameris receive an opinion from Rogers & Hardin LLP, (“Rogers & Hardin”),counsel to Ameris, dated as of the closing date, of the merger, to the effect that the merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. It is a condition to Atlantic’sthe obligation of Fidelity to complete the merger that AtlanticFidelity receive an opinion from Igler and Pearlman, P.A.,Wachtell, Lipton, Rosen & Katz, counsel to Fidelity, dated as of the closing date, of the merger, to the effect that the merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. These opinions will be based on representation letters providedcustomary assumptions and representations from Ameris and Fidelity, as well as on certain covenants and undertakings by Ameris and AtlanticFidelity. If any of the representations, assumptions, covenants or undertakings upon which those opinions are based is incorrect, incomplete, inaccurate or violated, the validity of the opinions may be affected and on customary factual assumptions. the tax consequences of the merger could differ from those described in this joint proxy statement/prospectus.
Neither of the opinions described above will be binding on the IRS.IRS or any court. Ameris and AtlanticFidelity have not sought and will not seek any ruling from the IRS regarding any matters relating to the merger, and as a result, there iscan be no assurance that the IRS will not assert, or that a court would not sustain, a position contrary to any of the conclusions set forth below. The following is based on the receipt and accuracy of the above described opinions.
In addition, in connection with the effectiveness of this registration statement, each of Rogers & HardinAccordingly, and Igler has delivered its opinion to the effect that, on the basis of the facts, representations, assumptions and exclusions set forth in such opinion and certificates obtained from officers of Ameris and Atlantic: (i)that the merger will qualifyqualifies as a “reorganization”reorganization within the meaning of Section 368(a) of the Code; and (ii)Code, the following discussion constitutes their opinion as to the material U.S. federal income tax consequences of the merger to U.S. holders of AtlanticFidelity common stock. Neitherstock generally will be as follows:
•
a U.S. holder of these opinions is binding on the IRS or the courts, and neither Ameris nor Atlantic intends to request a ruling from the IRS regarding the United States federal income tax consequences of the merger. Consequently, no assurance is given that the IRSFidelity common stock generally will not assert,recognize gain or that a court would not sustain, a position contrary to anyloss upon the exchange of those set forth below. In addition, if anyshares of the representations or assumptions upon which such opinions are based are inconsistent with the actual facts, the United States federal income tax consequences of the merger could be adversely affected.
Upon exchanging your AtlanticFidelity common stock for shares of Ameris common stock and cash (other thanpursuant to the merger, except with respect to cash received in lieuinstead of fractional shares of Ameris common stock;
​
•
a fractional share), youU.S. holder of Fidelity common stock will recognize gain (but not loss)have an aggregate tax basis in an amount equal to the lesser of: (i) the amount of gain realized (i.e., the excess of the sum of the amount of cash and the fair market value of the Ameris common stock received pursuantin the merger (including any fractional shares deemed received and redeemed for cash as described below) equal to the merger over that holder’saggregate adjusted tax basis in its shares of Atlantic common stock surrendered); and (ii) the amount of cash received pursuant to the merger (excluding any cash received in lieu of a fractional share). If you acquired different blocks of Atlantic common stock at different times or different prices, you should consult your tax advisor regarding the manner in which gain or loss should be determined. Any recognized gain will be long-term capital gain if, as of the effective date of the merger, your holding period with respect to the Atlantic common stock surrendered exceeds one year. If, however, the cash received has the effect of the distribution of a dividend, the gain will be treated as a dividend to the extent of the holder’s ratable share of accumulated earnings and profits as calculated for United States federal income tax purposes. See “— Possible Treatment of Cash as a Dividend” below.
The aggregate tax basis in the shares of AmerisFidelity common stock that you receivesurrendered in the merger, including any fractional share interests deemed receivedmerger; and sold as described below, will equal your aggregate adjusted tax basis in the Atlantic
​
•
a U.S. holder of Fidelity common stock you surrender, reduced by the amount of cash received (excluding any cash received in lieu ofwill have a fractional share) and increased by the amount of gain, if any recognized by you (excluding any gain recognized with respect to cash received in lieu of a fractional share) on the exchange. Your holding period for the shares of Ameris common stock that you receivereceived in the merger (including aany fractional share interest deemed received and soldredeemed for cash as described below) will include yourthat includes the holding period forof the shares of AtlanticFidelity common stock that you surrendersurrendered in the exchange.
merger.
70
​
TABLE OF CONTENTS
Possible TreatmentIf a U.S. holder acquired different blocks of Cash as a Dividend
In general, the determination of whether the gain recognized in the exchange will be treated as capital gain or has the effect of a distribution of a dividend depends upon whether and to what extent the exchange reduces the holder’s deemed percentage stock ownership of Ameris. For purposes of this determination, the holder is treated as if it first exchanged all of its shares of AtlanticFidelity common stock solely for Ameris common stock and then Ameris immediately redeemed, which we refer to in this document as the “deemed redemption,” a portion ofat different times or at different prices, the Ameris common stock in exchange for the cash thethat such holder actually received. The gain recognized in the deemed redemptionreceives will be treated as capital gain ifallocated pro rata to each block of Fidelity common stock, and the deemed redemption is: (i) “substantially disproportionate” with respect tobasis and holding period of each block of Ameris common stock received will be determined on a block-for-block basis depending on the holder; or (ii) “not essentially equivalent to a dividend.”
The deemed redemption will generally be “substantially disproportionate” with respect to a holder if the percentage described in clause (ii) below is less than 80%basis and holding period of the percentage described in clause (i) below. Whether the deemed redemption is “not essentially equivalent to a dividend” with respect to ablocks of Fidelity common stock exchanged for such Ameris common stock.
A U.S. holder will depend upon the holder’s particular circumstances. At a minimum, however, in order for the deemed redemption to be “not essentially equivalent to a dividend,” the deemed redemption must result in a “meaningful reduction” in the holder’s deemed percentageof Fidelity common stock ownership of Ameris. In general, that determination requires a comparison of: (i) the percentage of the outstanding stock of Ameris that the holder is deemed actually and constructively to have owned immediately before the deemed redemption; and (ii) the percentage of the outstanding stock of Ameris that is actually and constructively owned by the holder immediately after the deemed redemption. In applying the above tests, a holder may, under the constructive ownership rules, be deemed to own stock that is owned by other persons or stock underlying a holder’s option to purchase in addition to the stock actually owned by the holder.
The IRS has ruled that a shareholder in a publicly held corporation whose relative stock interest is minimal (e.g., less than 1%) and who exercises no control with respect to corporate affairs is generally considered to have a “meaningful reduction” if that shareholder has a relatively minor (e.g., approximately 3%) reduction in its percentage stock ownership under the above analysis; accordingly, the gain recognized in the exchange by such a shareholder would be treated as capital gain.
These rules are complex and dependent upon the specific factual circumstances particular to each holder. Consequently, each holder that may be subject to these rules should consult its tax advisor as to the application of these rules to the particular facts relevant to such holder.
Cash Instead of a Fractional Share
If you receivereceives cash instead of a fractional share of Ameris common stock then yougenerally will be treated as having received thesuch fractional share of Ameris common stock pursuant to the merger and then as having sold thatreceived cash in redemption of such fractional share of Ameris common stock for cash. As a result, youstock. Any such holder generally will recognize gain or loss equal to the difference between the amount of cash received and the tax basis allocable to yourin the fractional share of Ameris common stock. Thisstock (as set forth above). Such gain or loss generally will be capital gain or loss, and will be long- termlong-term capital gain or loss if, as of the effective date of the merger, the holding period for the sharessuch fractional share (including the holding period of Atlanticshares of Fidelity common stock surrendered therefor) is greater thanexceeds one year. Long-term capital gains of certain non-corporate holders of Fidelity common stock, including individuals, are generally taxed at preferential rates. The deductibility of capital losses is subject to limitations.
BackupInformation Reporting and Withholding
If you arePayments of cash made pursuant to the merger to a non-corporateU.S. holder of AtlanticFidelity common stock you maygenerally will be subject to information reporting and may be subject to U.S. federal backup withholding (currently, at a rate of 24%, after recent reduction pursuant to the 2017 Tax Act) on any cash payments you receive. You generally will not be subject to backup withholding, however, if you:
•
furnish a correct taxpayer identification number, certify that you are not subject to backup withholding on the substitute Form W-9 or successor form included in the election form/letter of transmittal you will receive and otherwise comply with all the applicable requirements of the backup withholding rules; or
​
•
provide proof that you are otherwise exempt from backup withholding.
​).
​
71121
TABLE OF CONTENTS
To prevent backup withholding, U.S. holders of Fidelity common stock should provide the Exchange Agent with a properly completed IRS Form W-9. Backup withholding is not an additional tax. Any amountsamount withheld under the backup withholding rules will generallymay be allowed asrefunded or credited against a refund or credit against your United StatesU.S. holder’s U.S. federal income tax liability provided you timely furnishif the required information is supplied to the IRS.IRS in a timely manner.
This summarydiscussion of certain material United StatesU.S. federal income tax consequences is not intended to be, and should not be construed as, tax advice. You are urged toAll holders of Fidelity common stock should consult yourtheir tax advisoradvisors with respect to the application of United StatesU.S. federal income tax laws to yourtheir particular situationsituations as well as any tax consequences arising under the United StatesU.S. federal estate or gift tax rules, or under the laws of any state, local, foreign or other taxing jurisdiction.
jurisdiction or under any applicable tax treaty.
72
TABLE OF CONTENTS​
COMPARISON OF SHAREHOLDER RIGHTS
Atlantic is incorporated under the laws of the State of Maryland. Ameris is incorporated under the laws of the State of Georgia. The rights of holders of Atlantic capital stock are governed by Maryland law and Atlantic’s articles of incorporation and bylaws. The rights of holders of Ameris capital stock are governed by Georgia law and Ameris’s articles of incorporation and bylaws. Consequently, after the merger, the rights of former holders of Atlantic common stock will be determined by reference to Ameris’s articles of incorporation and bylaws and Georgia law. The following is a summary of the material differences between the rights of Atlantic stockholders and Ameris shareholders arising due to the difference in their respective articles of incorporation and bylaws. Atlantic and Ameris urge you to read the articles of incorporation and bylaws of each of Atlantic and Ameris in their entirety. Copies of the respective companies’ governing documents have been filed with the SEC. To find out where copies of these documents can be obtained, see the sections entitled “Where You Can Find More Information” and “Certain Documents Incorporated by Reference.”
​​​Atlantic​​Ameris​
Capital Stock​​Holders of Atlantic capital stock are entitled to all the rights and obligations provided to capital stockholders under Maryland law and Atlantic’s articles of incorporation and bylaws.​​Holders of Ameris capital stock are entitled to all the rights and obligations provided to capital shareholders under Georgia law and Ameris’s articles of incorporation and bylaws.​
Authorized, Issued and Outstanding​​
The authorized capital stock of Atlantic currently consists of 100,000,000 shares of common stock, $0.01 par value per share, and 25,000,000 shares of preferred stock, $0.01 par value per share. As of the date of this proxy statement/prospectus, 15,553,709 shares of common stock were issued and outstanding and no shares of preferred stock were issued and outstanding.
The board of directors of Atlantic, pursuant to a resolution approved by a majority of the total number of directors that Atlantic would have if there were no vacancies on the board of directors (which we refer to as the “Whole Board”), and without action by the stockholders, may amend Atlantic’s articles of incorporation to increase or decrease the aggregate number of shares of stock or the number of shares of stock of any class or series that Atlantic has authority to issue.
​​The authorized capital stock of Ameris currently consists of 100,000,000 shares of common stock, $1.00 par value per share, and 5,000,000 shares of preferred stock. As of the date of this proxy statement/prospectus, [•] shares of common stock were issued and outstanding and no shares of preferred stock were issued and outstanding.​
Preferred Stock​​The board of directors of Atlantic has not previously designated any series of preferred stock.​​The Ameris board of directors has previously designated 52,000 shares of the Ameris preferred stock as Fixed Rate Cumulative Perpetual Preferred Stock, Series A, par value $0.01 per share, all of which have been repurchased or redeemed pursuant to​
73
TABLE OF CONTENTS
​​​Atlantic​​Ameris​
​​​​​​
their terms and have been cancelled and are no longer outstanding.
In addition, the Ameris board of directors has previously designated 175,000 shares of Ameris preferred stock as Series A Junior Participating Preferred Stock, no par value, of which no shares are issued or outstanding, in connection with Ameris’s adoption of a shareholder rights plan, which expired pursuant to its terms on March 6, 2008.
​
Voting Rights​​
Subject to the restrictions described below, holders of Atlantic common stock generally are entitled to one vote per share in the election of directors and on all other matters submitted to a vote at a meeting of stockholders. Directors are elected by a plurality of the votes, and there is no right to cumulative voting.
Pursuant to Atlantic’s articles of incorporation, in no event shall the record owner (or if more than one record owner, all such record owners taken as a group) of any Atlantic common stock that is beneficially owned, directly or indirectly, by a person who, as of any record date for the determination of stockholders entitled to vote on any matter, beneficially owns in excess of 10% of the then-outstanding shares of Atlantic common stock, be entitled, or permitted to any vote in respect of the shares held in excess of such limit. The foregoing limitation may be waived by a majority of the “Unaffiliated Directors” (as such term is defined in Atlantic’s articles of incorporation).
​​Holders of Ameris common stock generally are entitled to one vote per share in the election of directors and on all other matters submitted to a vote at a meeting of shareholders. Directors are elected by a plurality of the votes, and there is no right to cumulative voting.​
Number of Directors​​Atlantic’s bylaws provide that the number of directors serving on the board of directors of Atlantic shall be fixed from time to time exclusively by vote of the board of directors, subject to any requirements of the Maryland General Corporation Law. There are currently seven directors serving on the board of directors.​​Ameris’s bylaws provide that the number of directors serving on the Ameris board of directors shall not be less than seven or more than fifteen. There are currently nine directors serving on the Ameris board of directors.​
74
TABLE OF CONTENTS
​​​Atlantic​​Ameris​
Term of Directors​​The board of directors of Atlantic is divided into three classes, with the members of each class of directors serving staggered terms of three years or such shorter period of time as the board of directors may determine, with approximately one-third of the directors being elected annually.​​The Ameris board of directors is divided into three classes, with the members of each class of directors serving staggered three-year terms, with approximately one-third of the directors being elected annually. Ameris’s bylaws require that each director retire at the annual meeting following the date such director attains the age of 75.​
Removal of Directors​​Atlantic’s bylaws provide that, subject to the rights of the holders of any series of preferred stock then outstanding, directors may be removed from office, with cause, by the vote of stockholders representing a majority of the issued and outstanding capital stock entitled to vote for the election of directors, voting together as a single class.​​Ameris’s bylaws provide that directors may be removed from office, with cause, by the vote of shareholders representing a majority of the issued and outstanding capital stock entitled to vote for the election of directors.​
Vacancies on the Board of Directors​​Atlantic’s bylaws provide that any vacancies in the board of directors of Atlantic resulting from an increase in the size of the board or the death, resignation or removal of a director may be filled only by the affirmative vote of two-thirds of the remaining directors in office, even if less than a quorum, and any director so chosen will hold office for the remainder of the full term of the class of directors in which the vacancy occurred and until a successor is elected and qualified.​​Ameris’s bylaws provide that any vacancies in the Ameris board of directors resulting from an increase in the size of the board or the death or resignation of a director may be filled by a majority vote of the directors then in office, even if less than a quorum, and any director so chosen will hold office for the remainder of the full term of the class of directors in which the vacancy occurred and until a successor is elected and qualified. Vacancies in the Ameris board of directors resulting from the removal of a director may be filled at the same meeting at which the removal occurred or any subsequent meeting of shareholders; provided that, to the extent a vacancy is not filled by an election within 60 days after the removal which caused such vacancy, the remaining directors shall, by majority vote, fill the vacancy.​
Director Qualifications​​Atlantic’s bylaws provide that a person is not qualified to serve as director if he or she: (i) is under indictment for, or has ever been convicted of, a criminal offense involving dishonesty or breach of trust and the penalty for such offense could be imprisonment for more than one year; (ii) is a person against whom a banking agency has, within the past ten years, issued a cease and desist order for conduct involving dishonesty or breach of trust and that order is final and not​​Ameris’s bylaws provide that directors must be natural persons who have attained the age of 18 years and that employees of subsidiary corporations shall not be eligible to serve as directors.​
75
TABLE OF CONTENTS
​​​Atlantic​​Ameris​
​​​subject to appeal; or (iii) has been found either by a regulatory agency whose decision is final and not subject to appeal or by a court to have (a) breached a fiduciary duty involving personal profit, or (b) committed a willful violation of any law, rule or regulation governing banking, securities, commodities or insurance, or any final cease and desist order issued by a banking, securities, commodities or insurance regulatory agency. Atlantic’s bylaws further provide that no person may serve on the board of directors of Atlantic and at the same time be a director or officer of another co-operative bank, credit union, savings bank, savings and loan association, trust company, bank holding company or banking association that has an office in any county in which Atlantic or any of its subsidiaries has an office, or in any county contiguous to any county in which Atlantic or any of its subsidiaries has an office.​​​​
Shareholder Action by Written Consent​​Atlantic’s bylaws do not expressly provide for stockholder action without a meeting.​​Ameris’s bylaws provide that any action required or permitted to be taken at a meeting of shareholders may be taken without a meeting if a unanimous consent which sets forth the action is given in writing by all of the shareholders.​
Advance Notice Requirements for Shareholder Nominations and Other Proposals​​Atlantic’s bylaws provide that a stockholder who desires to present a proposal at an annual meeting of stockholders and who is eligible to make such proposal must give written notice of such proposal in writing to Atlantic’s Corporate Secretary at Atlantic’s principal executive office not less than 80 days nor more than 90 days prior to any such meeting; provided, however, that if less than 90 days’ notice or prior public disclosure of the date of the meeting is given to stockholders, such written notice shall be delivered or mailed to and received by the Atlantic’s Corporate Secretary at Atlantic’s principal executive office not later than the tenth day following the day on which notice of the meeting was mailed to stockholders or such public disclosure was made. Such notice must​​Ameris’s bylaws provide that a shareholder who desires to nominate a person for election to the Ameris board of directors at a meeting of shareholders and who is eligible to make such nomination must give written notice of the proposed nomination to Ameris’s Corporate Secretary at Ameris’s principal executive office not fewer than 120 calendar days in advance of the date which is one year later than the date of the proxy statement released to shareholders in connection with the previous year’s annual meeting of shareholders of Ameris; provided, however, that if no annual meeting of shareholders was held in the previous year or if the date of the forthcoming annual meeting of shareholders has been changed by more than 30 calendar days from the date contemplated at the time of the previous year’s proxy​
76
TABLE OF CONTENTS
​​​Atlantic​​Ameris​
​​​
contain as to each matter such stockholder proposes to bring before the annual meeting: (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting; (ii) the name and address of such stockholder as they appear on Atlantic’s books and of the beneficial owner, if any; (iii) the class or series and number of shares of capital stock of Atlantic which are owned beneficially or of record by such stockholder and such beneficial owner; (iv) a description of all arrangements or understandings between such stockholder and any other person or persons (including their names) in connection with the proposal and any material interest of such stockholder in such business; and (v) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting.
Atlantic’s bylaws provide that at any special meeting of the stockholders, only such business shall be conducted as shall have been brought before the meeting pursuant to Atlantic’s notice of the meeting.
Atlantic’s bylaws provide that a stockholder who desires to nominate a person for election to the board of directors of Atlantic at a meeting of stockholders and who is eligible to make such nomination must give written notice of the proposed nomination to Atlantic’s Corporate Secretary at Atlantic’s principal executive office not less than 80 days nor more than 90 days prior to any such meeting; provided, however, that if less than 90 days’ notice or prior public disclosure of the date of the meeting is given to stockholders, such written notice shall be delivered or mailed, as prescribed, to Atlantic’s Corporate Secretary not later than the tenth day following the day on which notice of the meeting was mailed to stockholders or such public disclosure was made. Such notice must contain: (i) as to each person whom the
​​statement or if the forthcoming meeting is not an annual meeting of shareholders, then to be timely such shareholder’s notice must be so received not later than the close of business on the tenth day following the earlier of: (i) the day on which notice of the date of the forthcoming meeting was mailed or given to shareholders by or on behalf of Ameris; or (ii) the day on which public disclosure of the date of the forthcoming meeting was made by or on behalf of Ameris. Such notice shall contain, among other things, biographical information about the nominee, information regarding share ownership of Ameris capital stock by such nominee and a description of all arrangements between the nominee and the shareholder making the proposal.​
77
TABLE OF CONTENTS
​​​Atlantic​​Ameris​
​​​stockholder proposes to nominate for election as a director, (a) all information relating to such person that would indicate such person’s qualification to serve on the board of directors of Atlantic, (b) an affidavit that such person would not be disqualified under the provisions of Atlantic’s bylaws, (c) such information relating to such person that is required to be disclosed in connection with solicitations of proxies for election of directors under federal securities laws, and (d) a written consent of each proposed nominee to be named as a nominee and to serve as a director if elected; and (ii) as to the stockholder giving the notice: (a) the name and address of such stockholder as they appear on Atlantic’s books and of the beneficial owner, if any, (b) the class or series and number of shares of capital stock of Atlantic which are owned beneficially or of record by such stockholder and such beneficial owner, (c) a description of all arrangements or understandings between such stockholder and each proposed nominee and any other person or persons (including their names) pursuant to which the nomination(s) are to be made by such stockholder, (d) a representation that such stockholder intends to appear in person or by proxy at the meeting to nominate the persons named in its notice, and (e) any other information relating to such stockholder that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors under federal securities laws.​​​​
Notice of Shareholder Meeting​​Atlantic’s bylaws provide that notice of each stockholder meeting must be given to each stockholder entitled to vote at such meeting and each stockholder entitled to notice of such meeting not less than ten, nor more than 90, days before the date of the meeting.​​Ameris’s bylaws provide that notice of each shareholder meeting must be given to each shareholder entitled to vote at such meeting not less than ten, nor more than 60, days before the date of the meeting.​
78
TABLE OF CONTENTS
​​​Atlantic​​Ameris​
Amendments to Articles of Incorporation​​
Except as described below, Atlantic’s articles of incorporation may be amended upon the approval of the board of directors of Atlantic and at least two-thirds of all votes entitled to be cast by the holders of shares of capital stock of Atlantic entitled to vote on the matter; provided, however, that an amendment to Atlantic’s articles of incorporation need only be approved by the vote of a majority of all the votes entitled to be cast by the holders of shares of capital stock of Atlantic entitled to vote on the matter if the amendment is approved by the board of directors pursuant to a resolution approved by at least two-thirds of the Whole Board (rounded up to the nearest whole number).
The board of directors of Atlantic, pursuant to a resolution approved by a majority of the Whole Board (rounded up to the nearest whole number), and without action by the stockholders, may amend Atlantic’s articles of incorporation to increase or decrease the aggregate number of shares of stock or the number of shares of stock of any class or series that Atlantic has authority to issue.
Notwithstanding any other provision of Atlantic’s articles of incorporation, or any provision of law that might otherwise permit a lesser vote or no vote, but in addition to any vote of the holders of any class or series of the stock of Atlantic required by law or by Atlantic’s articles of incorporation, the affirmative vote of the holders of at least 80% of the voting power of all of the then-outstanding shares of the capital stock of Atlantic entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend Section C (Preferred Stock), Section D (Restrictions on Voting Rights of the Corporation’s Equity Securities), Section E (Majority Vote) or Section F (Quorum) of Article 5 (Capital Stock), Article 7 (Directors), Article 8 (Bylaws), Article 9 (Evaluation of Certain Offers),
​​Ameris’s articles of incorporation may be amended in accordance with the Georgia Business Corporation Code, which generally requires the approval of the Ameris board of directors and the holders of a majority of the votes entitled to be cast on the amendment. Amendment of provisions in Ameris’s articles of incorporation related to the filling of vacancies on the Ameris board of directors require the affirmative vote of the holders of at least 75% of the voting power of all outstanding shares of Ameris capital stock then entitled to vote in an election of directors of Ameris.​
79
TABLE OF CONTENTS
​​​Atlantic​​Ameris​
​​​
Article 10 (Indemnification, etc. of Directors and Officers), Article 11 (Limitation of Liability) or Article 12 (Amendment of the Articles of Incorporation) of Atlantic’s articles of incorporation.
Atlantic’s articles of incorporation provide that any amendment to the indemnification provisions thereof shall not in any way diminish any rights to indemnification or advancement of expenses of a director or officer or the obligations of Atlantic with respect to events occurring, or claims made, while such provisions are in force.
​​​​
Amendments to Bylaws​​Atlantic’s articles of incorporation provide that Atlantic’s bylaws may be amended with the approval of a majority of the Whole Board. Atlantic’s articles of incorporation further provide that the stockholders shall also have the power to amend Atlantic’s bylaws. In addition to any vote of the holders of any class or series of stock of Atlantic required by law or by Atlantic’s articles of incorporation, the affirmative vote of the holders of at least 80% of the voting power of all of the then-outstanding shares of the capital stock of Atlantic entitled to vote generally in the election of directors, voting together as a single class, is required for any amendment to Atlantic’s bylaws by the stockholders.​​
Ameris’s bylaws may be amended by the majority vote of all of the directors, but any bylaws adopted by the Ameris board of directors may be altered, amended or repealed and new bylaws adopted by the shareholders by majority vote of all of the shares having voting power.
Any amendment that limits or adversely affects any right to indemnification or advancement of expenses under Ameris’s bylaws shall apply only to proceedings based on actions, events or omissions occurring after such amendment and delivery of notice thereof to the indemnified person so affected. The provision in Ameris’s bylaws with respect to the foregoing may not be amended in a manner effective as to any indemnified person (except as to post-amendment events) without the prior written consent of such indemnified person.
​
Special Meeting of Shareholders​​Atlantic’s bylaws provide that special meetings of stockholders may be called by the President of Atlantic or by the board of directors of Atlantic pursuant to a resolution adopted by a majority of the Whole Board. In addition, Atlantic’s bylaws provide that special meetings of the stockholders shall be called by Atlantic’s Corporate Secretary at the request of stockholders only on the written request of stockholders entitled to cast at least a majority of all the votes entitled to be cast at the meeting.​​Ameris’s bylaws provide that special meetings of shareholders may be called by the Chairman or the Chief Executive Officer of Ameris. In addition, Ameris’s bylaws provide that a special meeting of shareholders shall be called by the Corporate Secretary or Chief Executive Officer of Ameris when so requested by the Ameris board of directors or upon the written request of shareholders owning at least 50% of the issued and outstanding capital stock of Ameris entitled to vote at such meeting.​
80
TABLE OF CONTENTS
​​​Atlantic​​Ameris​
Quorum​​The holders of record of a majority of all votes entitled to be cast by the holders of outstanding shares entitled to vote, represented in person or by proxy, constitutes a quorum at any stockholder meeting.​​The holders of a majority of the stock issued, outstanding and entitled to vote at the meeting, present in person or by proxy, constitutes a quorum at any shareholder meeting.​
Preemptive Rights​​Atlantic’s articles of incorporation provide that stockholders do not have preemptive rights, except for preemptive rights approved by the board of directors of Atlantic pursuant to a resolution approved by a majority of the directors then in office.​​Under the Georgia Business Corporation Code, shareholders do not have preemptive rights unless the corporation’s articles of incorporation provide otherwise. Ameris’s articles of incorporation do not provide for preemptive rights.​
Limitation of Personal Liability of Directors​​
State Law.   The Maryland General Corporation Law provides that a corporation’s articles of incorporation may include any provision expanding or limiting the liability of its directors and officers to the corporation and its stockholders for money damages, but may not include any provision that restricts or limits the liability of its directors or officers to the corporation or its stockholders: (i) to the extent that it is proved that the person actually received an improper benefit or profit in money, property, or services for the amount of the benefit or profit in money, property, or services actually received; (ii) to the extent that a judgment or other final adjudication adverse to the person is entered in a proceeding based on a finding in the proceeding that the person’s action, or failure to act, was the result of active and deliberate dishonesty and was material to the cause of action adjudicated in the proceeding; or (iii) with respect to certain actions brought by or on behalf of a state governmental entity, receiver, conservator or depositor against a director or officer of certain banking institutions, credit unions, savings and loan associations and the subsidiaries of the foregoing.
Articles of Incorporation Provision. Atlantic’s articles of incorporation provide that an officer or director of Atlantic, as such, shall not be liable to Atlantic or its stockholders for money damages, except: (i) to the extent that
​​
State Law.   The Georgia Business Corporation Code provides that a corporation’s articles of incorporation may set forth a provision eliminating or limiting the liability of a director to the corporation or its shareholders for monetary damages for any action taken, or any failure to take any action, as a director, except liability: (i) for any appropriation, in violation of his or her duties, of any business opportunity of the corporation; (ii) for acts or omissions which involve intentional misconduct or a knowing violation of law; (iii) for unlawful distributions; or (iv) for any transaction from which the director received an improper personal benefit; provided, in each case, that no such provision shall eliminate or limit the liability of a director for any act or omission occurring prior to the date when such provision becomes effective.
Bylaw Provision.   Ameris’s bylaws provide that no director of Ameris shall be personally liable to Ameris or its shareholders for monetary damages for breach of such person’s duty of care or other duty as a director except to the extent such liability cannot be eliminated or limited pursuant to the Georgia Business Corporation Code.
​
81
TABLE OF CONTENTS
​​​Atlantic​​Ameris​
​​​it is proved that such person actually received an improper benefit or profit in money, property or services, for the amount of the benefit or profit in money, property or services actually received; (ii) to the extent that a judgment or other final adjudication adverse to such person is entered in a proceeding based on a finding in the proceeding that such person’s action, or failure to act, was the result of active and deliberate dishonesty and was material to the cause of action adjudicated in the proceeding; or (iii) to the extent otherwise provided by the Maryland General Corporation Law. If the Maryland General Corporation law is amended to further eliminate or limit the personal liability of officers and directors, then the liability of officers and directors of Atlantic shall be eliminated or limited to the fullest extent permitted by the Maryland General Corporation law, as so amended.​​​​
Indemnification of Directors and Officers​​
Atlantic’s articles of incorporation provide that Atlantic shall indemnify: (i) its current and former directors and officers, whether serving Atlantic or at its request any other entity, to the fullest extent required or permitted by the Maryland General Corporation Law now or hereafter in force, including the advancement of expenses under the procedures and to the fullest extent permitted by law; and (ii) other employees and agents to such extent as shall be authorized by the board of directors of Atlantic and permitted by law; provided, however, that, except as provided in Atlantic’s articles of incorporation with respect to proceedings to enforce rights to indemnification, Atlantic shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the board of directors of Atlantic.
If a claim under the indemnification provisions summarized above is not paid in full by Atlantic within 60 days after a written claim has been received by Atlantic, except in the case of a
​​Ameris’s bylaws provide 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 it is in any way interested, may in accordance with Ameris’s bylaws, and to the extent permitted by the Georgia Business Corporation Code, be indemnified for any liability and expense that may be incurred by such person in connection with or resulting from any proceeding 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 such director or officer or as a member of any committee appointed by the Ameris board of directors to act for, in the interest of, or on behalf of Ameris, whether or not he or she continues to be such at the time such liability or expense shall have been incurred; provided such person (i) acted in good faith and​
82
TABLE OF CONTENTS
​​​Atlantic​​Ameris​
​​​claim for an advancement of expenses, in which case the applicable period shall be 20 days, the indemnitee may at any time thereafter bring suit against Atlantic to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by Atlantic to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall also be entitled to be reimbursed the expense of prosecuting or defending such suit. It shall be a defense to any action for advancement of expenses that Atlantic has not received both: (i) an undertaking as required by law to repay such advances in the event it shall ultimately be determined that the standard of conduct has not been met; and (ii) a written affirmation by the indemnitee of his good faith belief that the standard of conduct necessary for indemnification by Atlantic has been met. In (i) any suit brought by the indemnitee to enforce a right to indemnification (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) any suit by Atlantic to recover an advancement of expenses pursuant to the terms of an undertaking Atlantic shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met the applicable standard for indemnification set forth in the Maryland General Corporation Law.​​
(ii) reasonably believed (a) in the case of conduct in the person’s official capacity, that the conduct was in Ameris’s best interests; (b) in all other cases, that the conduct was at least not opposed to Ameris’s best interests; and (c) in the case of a criminal proceeding, that the person had no reasonable cause to believe that the conduct was unlawful.
Ameris’s bylaws further provide that those persons who may be entitled to indemnification under the bylaws who have been wholly successful, on the merits or otherwise, with respect to any claim for which indemnification is available shall be entitled to indemnification as of right without any further action or approval by the Ameris board of directors. Those officers and directors who have not been wholly successful with respect to any claim for which indemnification is available may be entitled to indemnification if the Ameris board of directors, acting by majority vote, finds the director or officer has met the required standard of conduct.
Pursuant to its bylaws, Ameris may advance to directors or officers expenses incurred with respect to any claim for which indemnification is available under the bylaws prior to the final disposition thereof upon Ameris’s receipt of an undertaking by, or on behalf of, the director or officer to repay such amount unless it shall ultimately be determined that he or she is entitled to indemnification.
​
Certain Business Combination Restrictions​​
State Law.   Subject to certain exceptions, the Maryland General Corporation Law provides that a “business combination” between a Maryland corporation and an “interested stockholder,” or an affiliate of an interested stockholder, is prohibited for five years after the most recent date on which the interested stockholder becomes an interested stockholder, and after the five-year prohibition, any business combination between a Maryland corporation and an interested stockholder generally must be recommended by the board of directors and approved by the
​​
State Law.   The Georgia Business Corporation Code contains a business combination statute that protects certain Georgia corporations from hostile takeovers, and from actions following the takeover, by prohibiting some transactions once an acquirer has gained a significant holding in the corporation. The Georgia Business Corporation Code prohibits “business combinations,” including mergers, sales and leases of assets, issuances or exchanges of securities, certain loans and other financial benefits and similar transactions by a corporation or a subsidiary with an interested
​
83
TABLE OF CONTENTS
​​​Atlantic​​Ameris​
​​​
affirmative vote of at least: (i) 80% of the votes entitled to be cast by holders of outstanding shares of voting stock, voting together as a single voting group; and (ii) two-thirds of the votes entitled to be cast by holders of voting stock other than the shares held by the interested stockholder or an affiliate or associate of the interested stockholder, voting together as a single voting group.
The supermajority vote requirements do not apply, however, if the corporation’s common stockholders receive a minimum price, as defined under the Maryland General Corporation Law, for their shares in the form of cash or other consideration in the same form as previously paid by the interested stockholder for its shares.
The Maryland General Corporation Law generally defines an interested stockholder as: (i) any person who beneficially owns 10% or more of the voting power of the voting stock after the date on which the corporation had 100 or more beneficial owners of its stock; or (ii) an affiliate or associate of the corporation who was the beneficial owner, directly or indirectly, of 10% or more of the voting power of the corporation’s then-outstanding voting stock at any time within the two-year period immediately prior to the date in question, and after the date on which it had 100 or more beneficial owners of its stock.
A person is not an interested stockholder under the statute if the board of directors approved in advance the transaction by which the person otherwise would have become an interested stockholder.
The business combinations covered by the Maryland General Corporation Law generally include mergers, consolidations, statutory share exchanges, or, in certain circumstances, certain transfers of assets, certain stock issuances and transfers, liquidation plans and reclassifications involving interested stockholders and their affiliates, or
​​
shareholder that beneficially owns 10% or more of a corporation’s voting stock, within five years after the person becomes an interested shareholder, unless:
•
prior to the time the person becomes an interested shareholder, the board of directors of the target corporation approved either the business combination or the transaction which will result in the person becoming an interested shareholder; after the completion of the transaction in which the person becomes an interested shareholder, the interested shareholder holds at least 90% of the voting stock of the corporation, excluding for purposes of determining the number of shares outstanding, those shares owned by (i) persons who are directors or officers or their affiliates or associates, (ii) subsidiaries of the corporation, and (iii) specific employee benefit plans; or
​
•
after the shareholder becomes an interested shareholder, the shareholder acquires additional shares such that the shareholder becomes the holder of at least 90% of the voting stock of the corporation, excluding for purposes of determining the number of shares outstanding, those shares owned by (i) persons who are directors or officers, their affiliates or associates, (ii) subsidiaries of the corporation, and (iii) specific employee benefit plans, and the business combination was approved by the shareholders of the corporation by holders of a majority of the stock entitled to vote on the transaction (with the number of shares outstanding calculated as above and further excluding shares held by the interested shareholder).
​
Articles of Incorporation Provision.   The business combination requirements under the Georgia Business Corporation Code do not apply to a
​
84
TABLE OF CONTENTS
​​​Atlantic​​Ameris​
​​​
issuances or reclassifications of equity securities.
Articles of Incorporation Provision. The business combination requirements under the Maryland General Corporation Law are applicable to a corporation unless a corporation has elected otherwise in its articles of incorporation or by resolution of its board of directors. Atlantic’s articles of incorporation do not contain any provision regarding such requirements, and the board of directors of Atlantic has not determined by resolution that such requirements shall not be applicable.
​​corporation unless the corporation’s bylaws provide that such requirements are applicable. Ameris’s articles of incorporation and bylaws do not contain any provision regarding business combinations between Ameris and significant shareholders.​
Certain Control Share Acquisition Restrictions​​
State Law.   The Maryland General Corporation Law provides that “control shares” of a Maryland corporation acquired in a “control share acquisition” have no voting rights except to the extent approved by a vote of the other stockholders. Two-thirds of the votes entitled to be cast on the matter must vote in favor of granting the “control shares” voting rights. “Control shares” are shares of stock that, taken together with all other voting shares of stock the acquirer previously acquired or in respect of which the acquirer is able to exercise or direct the exercise of voting power (except solely by virtue of a revocable proxy), would entitle the acquirer to exercise voting power in electing directors within one of the following ranges of voting power: (i) one-tenth or more but less than one-third of all voting power; (ii) one-third or more but less than a majority of all voting power; or (iii) a majority or more of all voting power.
Control shares do not include shares of stock the acquiring person is entitled to vote as a result of having previously obtained stockholder approval. A “control share acquisition” means the acquisition of control shares, subject to certain exceptions.
If a person who has made (or proposes to make) a control share acquisition satisfies certain conditions
​​
State Law.   The Georgia Business Corporation Code does not contain a “control share” acquisition statute.
​
85
TABLE OF CONTENTS
​​​Atlantic​​Ameris​
​​​
(including agreeing to pay expenses), such person may compel the corporation’s board of directors to call a special meeting of stockholders to consider the voting rights of the shares. If such a person makes no request for a meeting, the corporation has the option to present the question at any stockholders’ meeting.
If voting rights are not approved at a meeting of stockholders or the acquiring person does not deliver an acquiring person statement as required by the statute, then, subject to certain conditions and limitations, the corporation may redeem any or all of the control shares (except those for which voting rights have previously been approved) for fair value. The corporation will determine the fair value of the shares, without regard to the absence of voting rights, as of the date of either: (i) the last control share acquisition; or (ii) the meeting of stockholders where stockholders considered and did not approve voting rights of the control shares.
If voting rights for control shares are approved at a stockholders’ meeting and the acquirer becomes entitled to vote a majority of the shares of stock entitled to vote, all other stockholders may obtain rights as objecting stockholders and, thereunder, exercise appraisal rights. Under the Maryland General Corporation Law, the fair value may not be less than the highest price per share paid in the control share acquisition. Furthermore, certain limitations otherwise applicable to the exercise of dissenters’ rights would not apply in the context of a control share acquisition. The control share acquisition statute would not apply to shares acquired in a merger, consolidation or share exchange if the corporation were a party to the transaction.
Bylaw Provision.   Atlantic’s bylaws provide that the “control share” acquisition restrictions under the Maryland General Corporation Law shall not apply to any acquisition by any person of shares of stock of
​​​​
86
TABLE OF CONTENTS
​​​Atlantic​​Ameris​
​​​Atlantic. Such bylaw provision may be repealed by a majority of the Whole Board, in whole or in part, and, upon such repeal, may, to the extent provided by any successor bylaw, apply to any prior or subsequent “control share” acquisition.​​​​
Fundamental Business Transactions​​
State Law.   Under the Maryland General Corporation Law, a Maryland corporation generally cannot merge, convert, sell all or substantially all of its assets or engage in a statutory share exchange, unless declared advisable by the board of directors and approved by the affirmative vote of stockholders entitled to cast at least two-thirds of the votes entitled to be cast on the matter. However, a Maryland corporation may provide in its articles of incorporation for approval of these matters by a lesser percentage, but not less than a majority of all of the votes entitled to be cast on the matter.
​​
State Law.   Under the Georgia Business Corporation Code, subject to certain exceptions, a merger, share exchange or sale, lease, exchange or transfer of all or substantially all of the corporation’s assets generally must be approved at a meeting of a corporation’s shareholders by the: (i) affirmative vote of a majority of all the votes entitled to be cast on the matter; and (ii) in addition, with respect to a merger or share exchange, affirmative vote of a majority of all the votes entitled to be cast by holders of the shares of each voting group entitled to vote separately on the transaction as a group by the articles of incorporation.
​
​​​
Charter Provision.   Atlantic’s articles of incorporation provide that, notwithstanding any provision of the Maryland General Corporation Law requiring stockholder authorization of an action by a greater proportion than a majority of the total number of shares of all classes of capital stock or of the total number of shares of any class of capital stock, such action shall be valid and effective if authorized by the affirmative vote of the holders of a majority of the total number of shares of all classes outstanding and entitled to vote thereon.
​​
Charter Provision.   Ameris’s articles of incorporation do not contain any provision regarding approval of fundamental business transactions by the holders of Ameris common stock.
​
Non-Shareholder Constituency Provision​​Atlantic’s articles of incorporation provide that the board of directors of Atlantic, when evaluating: (i) any offer of another person to (a) make a tender or exchange offer for any equity security of Atlantic, (b) merge or consolidate Atlantic with another corporation or entity, or (c) purchase or otherwise acquire all or substantially all of the properties and assets of Atlantic; or (ii) any other actual or proposed transaction that would or may involve a change in control of Atlantic, may, in connection with the exercise of its business judgment in determining​​Ameris’s articles of incorporation do not contain a provision that expressly permits the Ameris board of directors to consider constituencies other than the shareholders when evaluating certain offers.​
87
TABLE OF CONTENTS
​​​Atlantic​​Ameris​
​​​what is in the best interests of Atlantic stockholders and in making any recommendation to Atlantic’s stockholders, give due consideration to all relevant factors, including: (A) the economic effect, both immediate and long-term, upon Atlantic’s stockholders, if any, who do not participate in the transaction; (B) the social and economic effect on the present and future employees, creditors and customers of, and others dealing with, Atlantic and its subsidiaries and on the communities in which Atlantic and its subsidiaries operate or are located; (C) whether the proposal is acceptable based on the historical, current or projected future operating results or financial condition of Atlantic; (D) whether a more favorable price could be obtained for Atlantic’s stock or other securities in the future; (E) the reputation and business practices of the other entity to be involved in the transaction and its management and affiliates as they would affect the employees of Atlantic and its subsidiaries; (F) the future value of the stock or any other securities of Atlantic or the other entity to be involved in the proposed transaction; (G) any antitrust or other legal and regulatory issues that are raised by the proposal; (H) the business and historical, current or expected future financial condition or operating results of the other entity to be involved in the transaction, including debt service and other existing financial obligations, financial obligations to be incurred in connection with the proposed transaction, and other likely financial obligations of the other entity to be involved in the proposed transaction; and (I) the ability of Atlantic to fulfill its objectives as a financial institution holding company and on the ability of its subsidiary financial institution(s) to fulfill the objectives of a federally insured financial institution under applicable statutes and regulations.   

Atlantic’s articles of incorporation further provide that, if the board of		​​​​
88
TABLE OF CONTENTS
​​​Atlantic​​Ameris​
​​​directors of Atlantic determines that any such proposed transaction should be rejected, the board of directors of Atlantic may take any lawful action to defeat such transaction, including any or all of the following: advising stockholders not to accept the proposal; instituting litigation against the party making the proposal; filing complaints with governmental and regulatory authorities; acquiring the stock or any of the securities of Atlantic; selling or otherwise issuing authorized but unissued stock or other securities or granting options or rights with respect thereto; and obtaining a more favorable offer from another individual or entity.​​​​
Dissenters’ Rights​​
Under the Maryland General Corporation Law, a stockholder has the right to demand and receive the fair value of the stockholder’s stock in connection with certain corporate actions, including some mergers, share exchanges, transfers of assets and conversions and certain amendments to the corporation’s articles of incorporation.
In general, a stockholder may not demand the fair value of the stockholder’s stock and is bound by the terms of the transaction if, among other things:
•
any shares of the class or series of the stock are listed on a national securities exchange, unless, among other things, stock of the corporation is required to be converted into or exchanged for anything of value except stock of the surviving corporation or any other corporation (or depository receipts for such stock) or cash in lieu of fractional shares (or factional depository receipts); or
​
•
the articles of incorporation provide that the holders of the stock are not entitled to exercise the rights of an objecting stockholder under the applicable provisions of the Maryland General Corporation law.
​
Atlantic’s articles of incorporation
​​
Under the Georgia Business Corporation Code, a shareholder is entitled to dissent from, and obtain the fair value in cash of his or her shares in connection with, certain corporate actions, including some mergers, share exchanges, sales or exchanges of all or substantially all of the corporation’s property other than in the usual and regular course of business and certain amendments to the corporation’s articles of incorporation.
A shareholder of a corporation is not entitled to dissent in connection with a merger under the Georgia Business Corporation Code if:
•
the corporation is a parent corporation merging into its 90% owned subsidiary;
​
•
each shareholder of the corporation whose shares were outstanding immediately prior to the merger will receive a like number of shares of the surviving corporation, with designations, preferences, limitations and relative rights identical to those previously held by each such shareholder; and
​
•
the number and kind of shares of the surviving corporation outstanding immediately following the merger, plus the number and kind of shares issuable as a result of the merger and by conversion of securities issued pursuant to the
​
​
89
TABLE OF CONTENTS
​​​Atlantic​​Ameris​
​​​provide that holders of shares of Atlantic stock shall not be entitled to exercise any rights of an objecting stockholder provided for under the applicable provisions of the Maryland General Corporation Law or any successor statute unless the board of directors of Atlantic, pursuant to a resolution approved by a majority of the directors then in office, shall determine that such rights apply with respect to all or any classes or series of stock, to one or more transactions occurring after the date of such determination in connection with which holders of such shares would otherwise be entitled to exercise such rights. No such rights have been granted by the board of directors of Atlantic.​​
merger, will not exceed the total number and kind of shares of the corporation authorized by its articles of incorporation immediately prior to the merger.
Additionally, except in limited circumstances, dissenters’ rights are not available to holders of shares: (i) listed on a national securities exchange; or (ii) held of record by more than 2,000 shareholders.
​
90122
TABLE OF CONTENTS​
UNAUDITED PRO FORMA CONDENSED COMBINED CONDENSED FINANCIAL INFORMATIONSTATEMENTS
During the nine months ended September 30, 2018, Ameris completed three acquisitions: US Premium Finance Holding Company, Atlantic Coast Financial Corporation and Hamilton State Bancshares, Inc.
US Premium Finance Holding Company (“USPF”)
On January 31, 2018, Ameris purchased the final 70% of the outstanding shares of common stock of USPF, completing its acquisition of USPF and making USPF a wholly owned subsidiary of Ameris. Through a series of three acquisition transactions that closed on each of January 18, 2017, January 3, 2018 and January 31, 2018, Ameris issued a total of 1,073,158 shares of Ameris common stock at a fair value of $55.9 million and paid $21.4 million in cash to the former shareholders of USPF. Pursuant to the terms of the Stock Purchase Agreement, dated January 25, 2018, under which Ameris purchased the final 70% of the outstanding shares of common stock of USPF, the shareholders of USPF may receive additional cash payments aggregating up to $5.8 million based on the achievement by Ameris’s premium finance division of certain income targets between January 1, 2018 and June 30, 2019. As of the January 31, 2018 acquisition date, the present value of the contingent earn-out consideration expected to be paid was $5.7 million. Including the fair value of the Ameris common stock issued, cash paid and the present value of the contingent earn-out consideration expected to be paid, the aggregate purchase price of USPF amounted to $83.0 million. The acquisition of USPF does not constitute a business acquisition at the significance level that would require the filing of financial statements as contemplated by Rule 3-05 of Regulation S-X.
Atlantic Coast Financial Corporation (“Atlantic”)
On May 25, 2018, Ameris acquired Atlantic. Upon consummation of the acquisition, Atlantic was merged with and into Ameris, with Ameris as the surviving entity in the merger. At that time, Atlantic’s wholly owned banking subsidiary, Atlantic Coast Bank, was also merged with and into Ameris Bank. The acquisition expanded Ameris’s existing market presence, as Atlantic Coast Bank had a total of 12 full-service branches located in Jacksonville and Jacksonville Beach, Duval County, Florida, Waycross, Georgia and Douglas, Georgia. Under the terms of the merger agreement with Atlantic, Atlantic shareholders received 0.17 shares of Ameris common stock and $1.39 in cash for each share of Atlantic common stock they previously held. As a result, Ameris issued 2,631,520 shares of Ameris common stock at a fair value of  $147.8 million and paid $21.5 million in cash to the former shareholders of Atlantic as consideration in the merger. The merger with Atlantic does not constitute a business acquisition at the significance level that would require the filing of financial statements as contemplated by Rule 3-05 of Regulation S-X.
Hamilton State Bancshares, Inc. (“Hamilton”)
On June 29, 2018, Ameris acquired Hamilton. Upon consummation of the acquisition, Hamilton was merged with and into Ameris, with Ameris as the surviving entity in the merger. At that time, Hamilton’s wholly owned banking subsidiary, Hamilton State Bank, was also merged with and into Ameris Bank. The acquisition expanded Ameris’s existing market presence, as Hamilton State Bank had a total of 28 full-service branches located in Atlanta, Georgia and the surrounding area as well as in Gainesville, Georgia. Under the terms of the merger agreement with Hamilton, Hamilton shareholders received 0.16 shares of Ameris common stock and $0.93 in cash for each share of Hamilton voting common stock or nonvoting common stock (which we refer to, collectively, as “Hamilton common stock”) they previously held. As a result, Ameris issued 6,548,385 shares of Ameris common stock at a fair value of  $349.4 million and paid $47.8 million in cash to the former shareholders and warrant holders of Hamilton as consideration in the merger. Certain financial statements with respect to the acquisition of Hamilton are included in Ameris’s Current Report Form 8-K/A filed on September 12, 2018, which is incorporated into this joint proxy statement/prospectus by reference.
Fidelity Southern Corporation (“Fidelity”)
On December 17, 2018, Ameris and Fidelity entered into an Agreement and Plan of Merger pursuant to which Fidelity will merge into Ameris, with Ameris continuing as the surviving corporation. Immediately following the merger, Fidelity Bank will merge with and into Ameris Bank, with Ameris Bank continuing as
123
TABLE OF CONTENTS
the surviving bank. Fidelity Bank operates 69 full-service banking locations, 50 of which are located in Georgia and 19 of which are located Florida, providing financial products and services to customers primarily in the metropolitan markets of Atlanta, Georgia, and Jacksonville, Orlando, Tallahassee, and Sarasota-Bradenton, Florida.
If the merger is completed, Fidelity shareholders will receive 0.80 shares of Ameris common stock for each share of Fidelity common stock, except for shares of Fidelity common stock held by Fidelity as treasury stock or shares owned by Ameris or by any wholly owned subsidiary of Ameris or Fidelity (other than (i) shares held in trust accounts, managed accounts and the like, or otherwise held in a fiduciary or agency capacity, that are beneficially owned by third parties and (ii) shares held, directly or indirectly, by Ameris, Fidelity or any wholly owned subsidiary of Ameris or Fidelity in respect of a debt previously contracted), they hold immediately prior to the effective time of the merger. At the effective time, each Fidelity option that is outstanding and unexercised immediately prior to the effective time will fully vest and be converted into an option to acquire, on the same terms and conditions as were applicable to such Fidelity option, the number of shares of Ameris common stock (rounded down to the nearest whole share), determined by multiplying (i) the number of shares of Fidelity common stock subject to such Fidelity option immediately prior to the effective time by (ii) the exchange ratio, at an exercise price per share of Ameris common stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Fidelity common stock subject to such Fidelity stock option divided by (y) the exchange ratio. In addition, at the effective time, each Fidelity restricted stock award that is outstanding immediately prior to the effective time will fully vest and be cancelled and converted into the right to receive the merger consideration in respect of each share of Fidelity common stock underlying such restricted stock award, including a payment in respect of any fractional shares (together with any accrued but unpaid dividends corresponding to the portion of the restricted stock award that vests).
The estimated purchase price for the merger is $750.7 million in the aggregate based upon the $34.02 per share closing price of the Ameris common stock as of December 14, 2018. The merger is subject to customary closing conditions, including the receipt of regulatory approvals and the approval of the Ameris share issuance by Ameris shareholders and the approval of the merger agreement by Fidelity shareholders. The transaction is expected to close during the second quarter of 2019, subject to the receipt of Ameris and Fidelity shareholder approval, regulatory approvals and other customary closing conditions.
The following unaudited pro forma condensed combined condensed financial information and accompanying notes show the impact on the historical financial conditions and results of operations of Ameris and Atlantic and have been prepared to illustrate the effects of the merger between Ameris and Fidelity under the acquisition method of accounting. See “The Merger — Accounting Treatment.”accounting and show the impact on the historical financial condition and results of operations of Ameris and Fidelity.
The unaudited pro forma condensed combined condensed balance sheet as of September 30, 2017,2018, is presented as if the merger with Fidelity had occurred on September 30, 2017.2018. The unaudited pro forma condensed combined condensed income statements for the nine months ended September 30, 2018 and for the year ended December 31, 2016, and the nine months ended September 30, 2017, are presented as if the mergerUSPF acquisition and mergers with Atlantic, Hamilton and Fidelity had occurred on January 1, 2016.2017. The historical combined condensed financial information has been adjusted to reflect factually supportable items that are directly attributable to the mergerUSPF acquisition and the mergers with Atlantic, Hamilton and Fidelity and, with respect to the income statements only, expected to have a continuing impact on consolidated results of operations.
The unaudited pro forma condensed combined condensed financial statements are provided for informational purposes only. The unaudited pro forma condensed combined condensed financial statements are not necessarily, and should not be assumed to be, an indication of the results that would have been achieved had the mergertransactions been completed as of the dates indicated above or that may be achieved in the future. The preparation of the unaudited pro forma condensed combined condensed financial statements and related adjustments required management to make certain assumptions and estimates. The unaudited pro forma condensed combined condensed financial statements should be read together with:
•
the accompanying notes to the unaudited pro forma condensed combined condensed financial statements;
​
•
Ameris’s audited consolidated financial statements and accompanying notes, as of and for the year ended December 31, 2016, included in Ameris’s Annual Report on Form 10-K for the year ended December 31, 2016,2017, which is incorporated by reference into this joint proxy statement/prospectus;prospectus by reference;
​
​
124
TABLE OF CONTENTS
•
Atlantic’sFidelity’s audited consolidated financial statements and accompanying notes, as of and for the year ended December 31, 2016, included in Atlantic’sFidelity’s Annual Report on Form 10-K for the year ended December 31, 2016,2017, which is incorporated by reference into this joint proxy statement/prospectus;prospectus by reference;
​
•
Ameris’s unaudited consolidated financial statements and accompanying notes as of and for the nine months ended September 30, 2017,2018, included in Ameris’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2017,2018, which is incorporated by reference into this joint proxy statement/prospectus;​prospectus by reference; and
​
•
Atlantic’sFidelity’s unaudited consolidated financial statements and accompanying notes as of and for the nine months ended September 30, 2017,2018, included in Fidelity’s Quarterly Report Form 10-Q for the quarter ended September 30, 2018, which is incorporated by reference into this joint proxy statement/prospectus; and​prospectus by reference.
​
​
•
other information pertaining to Ameris and Atlantic incorporated by reference into, or included in, this proxy statement/prospectus.
​
See “Selected Historical Consolidated Financial Data of Ameris,” “Selected Historical Consolidated Financial Data of Atlantic” and “Incorporation of Certain Documents by Reference.”
91125
TABLE OF CONTENTS
Unaudited Pro Forma Condensed Combined Balance Sheet
As of September 30, 20172018
(In thousands)
​​Ameris​Atlantic​​​Pro Forma​
​​September 30,
2017
(as reported)		​September 30,
2017
(as reported)		​Pro Forma
Adjustments		​​​September 30,
2017
Combined		​
​​(In thousands)​​Ameris
As Reported		​Fidelity
As Reported		​Fidelity
Pro Forma
Adjustments		​​​Ameris
Pro Forma
Total
Combined		​
Assets​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Cash and due from banks​​$131,071​​​$4,091​​​$(21,531)​​A​​$113,631​​​​$158,453​​​$52,125​​​$—​​​​​$210,578​​
Federal funds sold and interest bearing deposits in banks​​​112,844​​​​38,143​​​​—​​​​​​150,987​​
Federal funds sold and interest-bearing deposits in banks​​​470,804​​​​130,547​​​​—​​​​​​601,351​​
Time deposits in other banks​​​11,558​​​​—​​​​—​​​​​​11,558​​
Investment securities available for sale, at fair value​​​819,593​​​​39,113​​​​—​​​​​​858,706​​​​​1,162,570​​​​209,180​​​​19,383​​A​​​1,391,133​​
Investment securities held to maturity, at amortized cost​​​—​​​​20,383​​​​(20,383)​​B​​​—​​
Other investments​​​47,977​​​​7,228​​​​—​​​​​​55,205​​​​​35,929​​​​10,492​​​​—​​​​​​46,421​​
Loans held for sale, at fair value​​​137,392​​​​5,025​​​​—​​​​​​142,417​​
Loans​​​4,574,678​​​​793,927​​​​(13,063)​​B​​​5,355,542​​
Purchased loans​​​917,126​​​​—​​​​—​​​​​​917,126​​
Purchased loan pools​​​465,218​​​​—​​​​—​​​​​​465,218​​
Loans held for sale​​​130,179​​​​371,319​​​​—​​​​​​501,498​​
Loans held for investment​​​8,529,518​​​​3,706,953​​​​(39,257)​​C​​​12,197,214​​
Less allowance for loan losses​​​(25,966)​​​​(8,405)​​​​8,405​​C​​​(25,966)​​​​​(28,116)​​​​(31,157)​​​​31,157​​D​​​(28,116)​​
Loans, net​​​5,931,056​​​​785,522​​​​(4,658)​​​​​​6,711,920​​
Loans held for investment, net​​​8,501,402​​​​3,675,796​​​​(8,100)​​​​​​12,169,098​​
Other real estate owned, net​​​9,391​​​​188​​​​(47)​​D​​​9,532​​​​​17,067​​​​8,031​​​​(803)​​E​​​24,295​​
Purchased other real estate owned, net​​​9,946​​​​—​​​​—​​​​​​9,946​​
Total other real estate owned, net​​​19,337​​​​188​​​​(47)​​​​​​19,478​​
Premises and equipment, net​​​119,458​​​​14,360​​​​—​​​​​​133,818​​​​​145,885​​​​91,359​​​​30,900​​F​​​268,144​​
Goodwill​​​505,604​​​​5,164​​​​247,010​​G​​​757,778​​
Other intangible assets, net​​​14,437​​​​—​​​​7,121​​E​​​21,558​​​​​54,729​​​​6,310​​​​71,690​​H​​​132,729​​
Goodwill​​​125,532​​​​—​​​​59,586​​F​​​185,118​​
Deferred income taxes, net​​​39,365​​​​5,836​​​​(659)​​G​​​44,542​​
Deferred tax asset, net​​​38,217​​​​—​​​​(28,522)​​I​​​9,695​​
Cash value of bank owned life insurance​​​79,241​​​​17,887​​​​—​​​​​​97,128​​​​​103,588​​​​71,092​​​​—​​​​​​174,680​​
Other assets​​​72,517​​​​4,542​​​​—​​​​​​77,059​​​​​93,009​​​​160,258​​​​—​​​​​​253,267​​
Total assets​​$7,649,820​​​$921,935​​​$39,812​​​​​$8,611,567​​​​$11,428,994​​​$4,812,056​​​$311,175​​​​​$16,552,225​​
Liabilities​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Deposits:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Noninterest-bearing​​$1,718,022​​​$70,029​​​$—​​​​​$1,788,051​​​​$2,333,992​​​$1,249,391​​​$—​​​​​$3,583,383​​
Interest-bearing​​​4,177,482​​​​606,387​​​​—​​​​​​4,783,869​​​​​6,847,371​​​​2,800,578​​​​2,023​​J​​​9,649,972​​
Total deposits​​​5,895,504​​​​676,416​​​​—​​​​​​6,571,920​​​​​9,181,363​​​​4,049,969​​​​2,023​​​​​​13,233,355​​
Federal funds purchased & securities sold under agreements to repurchase​​​14,156​​​​—​​​​—​​​​​​14,156​​​​​14,071​​​​13,562​​​​—​​​​​​27,633​​
Other borrowings​​​808,572​​​​150,842​​​​4,298​​H​​​963,712​​​​​656,831​​​​224,287​​​​—​​​​​​881,118​​
Subordinated deferrable interest debentures​​​88,986​​​​46,393​​​​—​​​​​​135,379​​
FDIC loss-share payable, net​​​18,740​​​​—​​​​—​​​​​​18,740​​
Deferred tax liability, net​​​—​​​​9,483​​​​(9,483)​​K​​​—​​
Other liabilities​​​44,447​​​​3,283​​​​—​​​​​​47,730​​​​​64,026​​​​36,264​​​​—​​​​​​100,290​​
Subordinated deferrable interest debentures​​​85,220​​​​—​​​​—​​​​​​85,220​​
Total liabilities​​​6,847,899​​​​830,541​​​​4,298​​​​​​7,682,738​​​​​10,024,017​​​​4,379,958​​​​(7,460)​​​​​​14,396,515​​
Shareholders’ equity​​​​​​​​​​​​​​​​​​​​​​​​​​​
Preferred stock​​$—​​​$—​​​$—​​​​​$—​​​​​—​​​​—​​​​—​​​​​​—​​
Common stock​​​38,706​​​​156​​​​2,477​​I​​​41,339​​​​​49,012​​​​197,870​​​​(175,972)​​L​​​70,910​​
Capital surplus​​​506,779​​​​100,423​​​​23,852​​J​​​631,054​​​​​1,050,752​​​​28,735​​​​700,100​​M​​​1,779,587​​
Common stock held by ESOP and benefit plans​​​—​​​​(1,484)​​​​1,484​​K​​​—​​
Retained earnings​​​267,694​​​​(6,532)​​​​6,532​​L​​​267,694​​​​​338,350​​​​207,763​​​​(207,763)​​N​​​338,350​​
Accumulated other comprehensive income/(loss)​​​3,241​​​​(1,169)​​​​1,169​​M​​​3,241​​
Less treasury stock​​​(14,499)​​​​—​​​​—​​​​​​(14,499)​​
Accumulated other comprehensive loss, net of tax ​​​(16,576)​​​​(2,270)​​​​2,270​​O​​​(16,576)​​
Less treasury stock, at cost​​​(16,561)​​​​—​​​​—​​​​​​(16,561)​​
Total shareholders’ equity​​​801,921​​​​91,394​​​​35,514​​​​​​928,829​​​​​1,404,977​​​​432,098​​​​318,635​​​​​​2,155,710​​
Total liabilities and shareholders’ equity​​$7,649,820​​​$921,935​​​$39,812​​​​​$8,611,567​​​​$11,428,994​​​$4,812,056​​​$311,175​​​​​$16,552,225​​
​
​
See “Note 4 — Preliminary Unaudited Pro Forma and Acquisition Accounting Adjustments’’Adjustments” for explanation of acquisition accounting adjustments.
92126
TABLE OF CONTENTS
Unaudited Pro Forma Condensed Combined Income Statement of Income
Nine Months EndedFor the nine months ended September 30, 20172018
(In thousands, except share and per share data)
​​​Ameris​​Atlantic​​​​​​​​Pro Forma​​
​​​September 30,
2017
(as reported)		​​September 30,
2017
(as reported)		​​Pro Forma
Adjustments		​​​​​​​​September 30,
2017
Combined		​​
​​​(In thousands, except per share data)​
Interest income​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Interest and fees on loans​​​$197,447​​​​$23,861​​​​$1,306​​​​​A​​​​$222,614​​​
Interest on taxable securities​​​​15,057​​​​​889​​​​​—​​​​​​​​​​​15,946​​​
Interest on nontaxable securities​​​​1,209​​​​​84​​​​​—​​​​​​​​​​​1,293​​​
Interest on deposits in other banks and federal funds
sold		​​​​1,070​​​​​186​​​​​—​​​​​​​​​​​1,256​​​
Total interest income​​​​214,783​​​​​25,020​​​​​1,306​​​​​​​​​​​241,109​​​
Interest expense​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Interest on deposits​​​$13,479​​​​$3,712​​​​$—​​​​​​​​​​$17,191​​​
Interest on other borrowings​​​​10,702​​​​​1,532​​​​​(806)​​​​​B​​​​​11,428​​​
Total interest expense​​​​24,181​​​​​5,244​​​​​(806)​​​​​​​​​​​28,619​​​
Net interest income​​​​190,602​​​​​19,776​​​​​2,112​​​​​​​​​​​212,490​​​
Provision for loan losses​​​​5,828​​​​​458​​​​​—​​​​​​​​​​​6,286​​​
Net interest income after provision for loan losses​​​$184,774​​​​$19,318​​​​$2,112​​​​​​​​​​$206,204​​​
Noninterest income​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Service charges on deposit accounts​​​$31,714​​​​$2,299​​​​$—​​​​​​​​​​$34,013​​​
Mortgage banking activity​​​​38,498​​​​​1,347​​​​​—​​​​​​​​​​​39,845​​​
Other service charges, commissions and fees​​​​2,137​​​​​24​​​​​—​​​​​​​​​​​2,161​​​
Gain on sale of securities​​​​37​​​​​409​​​​​—​​​​​​​​​​​446​​​
Other noninterest income​​​​8,508​​​​​1,636​​​​​—​​​​​​​​​​​10,144​​​
Total noninterest income​​​​80,894​​​​​5,715​​​​​—​​​​​​​​​​​86,609​​​
Noninterest expense​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Salaries and employee benefits​​​$89,509​​​​$10,558​​​​$—​​​​​​​​​​$100,067​​​
Occupancy and equipment expenses​​​​18,059​​​​​1,745​​​​​—​​​​​​​​​​​19,804​​​
Data processing and communications expenses​​​​20,650​​​​​1,774​​​​​—​​​​​​​​​​​22,424​​​
Credit resolution-related expenses​​​​2,879​​​​​609​​​​​—​​​​​​​​​​​3,488​​​
Advertising and marketing expenses​​​​3,612​​​​​88​​​​​—​​​​​​​​​​​3,700​​​
Amortization of intangible assets​​​​2,990​​​​​—​​​​​534​​​​​C​​​​​3,524​​​
Merger and conversion charges​​​​494​​​​​—​​​​​—​​​​​​​​​​​494​​​
Other noninterest expenses​​​​34,406​​​​​4,417​​​​​—​​​​​​​​​​​38,823​​​
Total noninterest expense​​​​172,599​​​​​19,191​​​​​534​​​​​​​​​​​192,324​​​
Income before income tax expense​​​$93,069​​​​$5,842​​​​$1,578​​​​​​​​​​$100,489​​​
Income tax expense​​​​28,671​​​​​2,058​​​​​552​​​​​D​​​​​31,281​​​
Net income​​​$64,398​​​​$3,784​​​​$1,026​​​​​​​​​​$69,208​​​
Preferred stock dividends​​​​—​​​​​—​​​​​—​​​​​​​​​​​—​​​
Net income available to common shareholders​​​$64,398​​​​$3,784​​​​$1,026​​​​​​​​​​$69,208​​​
Basic earnings available to common shareholders per share​​​​1.76​​​​​0.25​​​​​—​​​​​​​​​​​1.76​​​
Diluted earnings available to common shareholders per
share		​​​​1.74​​​​​0.25​​​​​—​​​​​​​​​​​1.75​​​
Weighted average common shares outstanding​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Basic​​​​36,690​​​​​15,424​​​​​—​​​​​​​​​​​39,323​​​
Diluted​​​​37,017​​​​​15,424​​​​​—​​​​​​​​​​​39,650​​​
​​​Ameris
As
Reported		​​USPF
Pro Forma
Adjustments		​​​​​Atlantic
As
Reported		​​Atlantic
Pro Forma
Adjustments		​​​​​Hamilton
As
Reported		​​Hamilton
Pro Forma
Adjustments		​​​​​Ameris
USPF
Atlantic
Hamilton
Pro
Forma		​​Fidelity
As
Reported		​​Fidelity
Pro Forma
Adjustments		​​​​​Ameris
Pro Forma
Total
Combined
Interest income​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Interest and fees on loans​​​$266,460​​​​$—​​​​​​​$8,846​​​​$445​​​S​​​$17,657​​​​$690​​​V​​​$294,098​​​​$127,440​​​​$4,676​​​AA​​​$426,214
Interest on taxable
securities		​​​​20,320​​​​​—​​​​​​​​265​​​​​—​​​​​​​​1,488​​​​​—​​​​​​​​22,073​​​​​3,925​​​​​—​​​​​​​​25,998
Interest on nontaxable securities​​​​705​​​​​—​​​​​​​​29​​​​​—​​​​​​​​40​​​​​—​​​​​​​​774​​​​​250​​​​​—​​​​​​​​1,024
Interest on deposits in other
banks		​​​​3,020​​​​​—​​​​​​​​114​​​​​—​​​​​​​​426​​​​​—​​​​​​​​3,560​​​​​1,559​​​​​—​​​​​​​​5,119
Interest on federal funds
sold		​​​​72​​​​​—​​​​​​​​—​​​​​—​​​​​​​​11​​​​​—​​​​​​​​83​​​​​—​​​​​—​​​​​​​​83
Total interest income​​​​290,577​​​​​—​​​​​​​​9,254​​​​​445​​​​​​​​19,622​​​​​690​​​​​​​​320,588​​​​​133,174​​​​​4,676​​​​​​​​458,438
Interest expense​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Interest on deposits​​​$30,196​​​​$—​​​​​​​$1,438​​​​$—​​​​​​​$1,513​​​​$242​​​W​​​$33,389​​​​$14,791​​​​​(642)​​​BB​​​$47,538
Interest on other
borrowings		​​​​16,543​​​​​—​​​​​​​​688​​​​​—​​​​​​​​102​​​​​41​​​X​​​​17,374​​​​​8,396​​​​​—​​​​​​​​25,770
Total interest expense​​​​46,739​​​​​—​​​​​​​​2,126​​​​​—​​​​​​​​1,615​​​​​283​​​​​​​​50,763​​​​​23,187​​​​​(642)​​​​​​​​73,308
Net interest income​​​​243,838​​​​​—​​​��​​​​7,128​​​​​445​​​​​​​​18,007​​​​​407​​​​​​​​269,825​​​​​109,987​​​​​5,318​​​​​​​​385,130
Provision for loan losses​​​​13,006​​​​​—​​​​​​​​168​​​​​—​​​​​​​​(87)​​​​​—​​​​​​​​13,087​​​​​4,776​​​​​—​​​​​​​​17,863
Net interest income after provision for loan losses​​​$230,832​​​​$—​​​​​​​$6,960​​​​$445​​​​​​​$18,094​​​​$407​​​​​​​$256,738​​​​$105,211​​​​$5,318​​​​​​​$367,267
Noninterest income​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Service charges on deposit accounts​​​$33,531​​​​$—​​​​​​​$727​​​​$—​​​​​​​$952​​​​$—​​​​​​​$35,210​​​​$4,630​​​​$—​​​​​​​$39,840
Mortgage banking activity​​​​40,203​​​​​—​​​​​​​​—​​​​​—​​​​​​​​164​​​​​—​​​​​​​​40,367​​​​​81,465​​​​​—​​​​​​​​121,832
Other service charges, commissions and fees​​​​2,193​​​​​—​​​​​​​​19​​​​​—​​​​​​​​729​​​​​—​​​​​​​​2,941​​​​​7,148​​​​​—​​​​​​​​10,089
Net loss on securities​​​​(38)​​​​​—​​​​​​​​—​​​​​—​​​​​​​​(3)​​​​​—​​​​​​​​(41)​​​​​—​​​​​—​​​​​​​​(41)
Gain on sale of SBA and USDA loans​​​​2,246​​​​​—​​​​​​​​—​​​​​—​​​​​​​​—​​​​​—​​​​​​​​2,246​​​​​3,288​​​​​—​​​​​​​​5,534
Other non-interest income​​​​9,807​​​​​—​​​​​​​​490​​​​​—​​​​​​​​39​​​​​—​​​​​​​​10,336​​​​​11,241​​​​​—​​​​​​​​21,577
Total noninterest income​​​​87,942​​​​​—​​​​​​​​1,236​​​​​—​​​​​​​​1,881​​​​​—​​​​​​​​91,059​​​​​107,772​​​​​—​​​​​​​​198,831
Noninterest expense​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Salaries and employee benefits​​​$110,311​​​​$—​​​​​​​$3,600​​​​$—​​​​​​​$6,914​​​​$—​​​​​​​$120,825​​​​$112,852​​​​$—​​​​​​​$233,677
Occupancy and equipment expenses​​​​21,186​​​​​—​​​​​​​​585​​​​​—​​​​​​​​1,759​​​​​—​​​​​​​​23,530​​​​​9,895​​​​​648​​​CC​​​​34,073
Data processing and telecommunications expenses​​​​22,092​​​​​—​​​​​​​​582​​​​​—​​​​​​​​969​​​​​—​​​​​​​​23,643​​​​​7,095​​​​​—​​​​​​​​30,738
Legal and other professional
fees		​​​​4,618​​​​​(274)​​​P​​​​513​​​​​—​​​​​​​​445​​​​​—​​​​​​​​5,302​​​​​10,813​​​​​—​​​​​​​​16,115
Credit resolution-related expenses​​​​2,842​​​​​—​​​​​​​​9​​​​​—​​​​​​​​367​​​​​—​​​​​​​​3,218​​​​​978​​​​​—​​​​​​​​4,196
Advertising and marketing expenses​​​​3,938​​​​​—​​​​​​​​16​​​​​—​​​​​​​​20​​​​​—​​​​​​​​3,974​​​​​2,097​​​​​—​​​​​​​​6,071
Amortization of intangible assets​​​​5,862​​​​​250​​​Q​​​​—​​​​​148​​​T​​​​282​​​​​119​​​Y​​​​6,661​​​​​832​​​​​5,018​​​DD​​​​12,511
FDIC insurance​​​​2,378​​​​​—​​​​​​​​83​​​​​—​​​​​​​​125​​​​​—​​​​​​​​2,586​​​​​2,765​​​​​—​​​​​​​​5,351
Merger and conversion charges​​​​19,502​​​​​—​​​​​​​​233​​​​​—​​​​​​​​1,509​​​​​—​​​​​​​​21,244​​​​​—​​​​​—​​​​​​​​21,244
Other noninterest expenses​​​​25,108​​​​​—​​​​​​​​729​​​​​—​​​​​​​​1,815​​​​​—​​​​​​​​27,652​​​​​21,852​​​​​—​​​​​​​​49,504
Total noninterest expense​​​​217,837​​​​​(24)​​​​​​​​6,350​​​​​148​​​​​​​​14,205​​​​​119​​​​​​​​238,635​​​​​169,179​​​​​5,666​​​​​​​​413,480
​
See “Note 4 — Preliminary Unaudited Pro Forma and Acquisition Accounting Adjustments’’ for explanation of acquisition accounting adjustments.
93127
TABLE OF CONTENTS
Unaudited Pro Forma Condensed Combined Income Statement of Income– (continued)
Year Ended December 31, 2016For the nine months ended September 30, 2018
(In thousands, except share and per share data)
​​​Ameris​​Atlantic​​​​​​​​Pro Forma​​
​​​December 31,
2016
(as reported)		​​December 31,
2016
(as reported)		​​Pro Forma
Adjustments		​​​​​​​​December 31,
2016
Combined		​​
​​​(In thousands, except per share data)​
Interest income​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Interest and fees on loans​​​$218,659​​​​$31,681​​​​$1,742​​​​​A​​​​$252,082​​​
Interest on taxable securities​​​​17,824​​​​​1,989​​​​​—​​​​​​​​​​​19,813​​​
Interest on nontaxable securities​​​​1,722​​​​​103​​​​​—​​​​​​​​​​​1,825​​​
Interest on deposits in other banks​​​​827​​​​​116​​​​​—​​​​​​​​​​​943​​​
Interest on federal funds sold​​​​33​​​​​—​​​​​—​​​​​​​​​​​33​​​
Total interest income​​​​239,065​​​​​33,889​​​​​1,742​​​​​​​​​​​274,696​​​
Interest expense​​​​​​​
Interest on deposits​​​$12,410​​​​$3,607​​​​$—​​​​​​​​​​$16,017​​​
Interest on other borrowings​​​​7,284​​​​​3,810​​​​​(1,074)​​​​​B​​​​​10,020​​​
Total interest expense​​​​19,694​​​​​7,417​​​​​(1,074)​​​​​​​​​​​26,037​​​
Net interest income​​​​219,371​​​​​26,472​​​​​2,816​​​​​​​​​​​248,659​​​
Provision for loan losses​​​​4,091​​​​​619​​​​​—​​​​​​​​​​​4,710​​​
Net interest income after provision for loan losses​​​$215,280​​​​$25,853​​​​$2,816​​​​​​​​​​$243,949​​​
Noninterest income​​​​​​​​​​​​
Service charges on deposit accounts​​​$42,745​​​​$3,635​​​​$—​​​​​​​​​​$46,380​​​
Mortgage banking activity​​​​48,298​​​​​980​​​​​—​​​​​​​​​​​49,278​​​
Other service charges, commissions and fees​​​​3,575​​​​​41​​​​​—​​​​​​​​​​​3,616​​​
Gain on sale of securities​​​​94​​​​​1,321​​​​​—​​​​​​​​​​​1,415​​​
Gain on sale of SBA and USDA loans​​​​3,974​​​​​986​​​​​—​​​​​​​​​​​4,960​​​
Other noninterest income​​​​7,115​​​​​2,284​​​​​—​​​​​​​​​​​9,399​​​
Total noninterest income​​​​105,801​​​​​9,247​​​​​—​​​​​​​​​​​115,048​​​
Noninterest expense​​​​​​​​​​​​
Salaries and employee benefits​​​$106,837​​​​$13,703​​​​$—​​​​​​​​​​$120,540​​​
Occupancy and equipment expenses​​​​24,397​​​​​2,295​​​​​—​​​​​​​​​​​26,692​​​
Data processing and communications expenses​​​​24,591​​​​​2,209​​​​​—​​​​​​​​​​​26,800​​​
Credit resolution-related expenses​​​​6,172​​​​​838​​​​​—​​​​​​​​​​​7,010​​​
Advertising and marketing expenses​​​​4,181​​​​​139​​​​​—​​​​​​​​​​​4,320​​​
Amortization of intangible assets​​​​4,376​​​​​—​​​​​712​​​​​C​​​​​5,088​​​
Merger and conversion charges​​​​6,376​​​​​—​​​​​—​​​​​​​​​​​6,376​​​
Other noninterest expenses​​​​38,905​​​​​5,866​​​​​—​​​​​​​​​​​44,771​​​
Total noninterest expense​​​​215,835​​​​​25,050​​​​​712​​​​​​​​​​​241,597​​​
Income before income tax expense​​​$105,246​​​​$10,050​​​​$2,104​​​​​​​​​​$117,400​​​
Income tax expense​​​​33,146​​​​​3,632​​​​​736​​​​​D​​​​​37,514​​​
Net income​​​$72,100​​​​$6,418​​​​$1,368​​​​​​​​​​$79,886​​​
Preferred stock dividends​​​​—​​​​​—​​​​​—​​​​​​​​​​​—​​​
Net income available to common shareholders​​​$72,100​​​​$6,418​​​​$1,368​​​​​​​​​​$79,886​​​
Basic earnings available to common shareholders per share​​​​2.10​​​​​0.42​​​​​—​​​​​​​​​​​2.16​​​
Diluted earnings available to common shareholders per share​​​​2.08​​​​​0.42​​​​​—​​​​​​​​​​​2.14​​​
Weighted average common shares outstanding​​​​​​​
Basic​​​​34,347​​​​​15,417​​​​​—​​​​​​​​​​​36,980​​​
Diluted​​​​34,702​​​​​15,417​​​​​—​​​​​​​​​​​37,335​​​
​​​Ameris
As
Reported		​​USPF
Pro Forma
Adjustments		​​​​​Atlantic
As
Reported		​​Atlantic
Pro Forma
Adjustments		​​​​​Hamilton
As
Reported		​​Hamilton
Pro Forma
Adjustments		​​​​​Ameris
USPF
Atlantic
Hamilton
Pro
Forma		​​Fidelity
As
Reported		​​Fidelity
Pro Forma
Adjustments		​​​​​Ameris
Pro Forma
Total
Combined
Net income before income tax
expense		​​​$100,937​​​​$24​​​​​​​$1,846​​​​$297​​​​​​​$5,770​​​​$288​​​​​​​$109,162​​​​$43,804​​​​$(348)​​​​​​​$152,618
Income tax expense​​​​23,446​​​​​5​​​R​​​​430​​​​​62​​​U​​​​1,370​​​​​60​​​Z​​​​25,373​​​​​9,905​​​​​(73)​​​EE​​​​35,205
Net income​​​$77,491​​​​$19​​​​​​​$1,416​​​​$235​​​​​​​$4,400​​​​$228​​​​​​​$83,789​​​​$33,899​​​​$(275)​​​​​​​$117,413
Preferred stock dividends​​​​—​​​​​—​​​​​​​​—​​​​​—​​​​​​​​—​​​​​—​​​​​​​​—​​​​​—​​​​​—​​​​​​​​—
Net income available to common shareholders​​​$77,491​​​​$19​​​​​​​$1,416​​​​$235​​​​​​​$4,400​​​​$228​​​​​​​$83,789​​​​$33,899​​​​$(275)​​​​​​​$117,413
Basic earnings available to common shareholders per share​​​$1.86​​​​​​​​​​​​​$0.09​​​​​​​​​​​​​$0.11​​​​​​​​​​​​​$1.77​​​​$1.25​​​​​​​​​​​​​$1.69
Diluted earnings available to
common shareholders per
share		​​​$1.85​​​​​​​​​​​​​$0.09​​​​​​​​​​​​​$0.10​​​​​​​​​​​​​$1.76​​​​$1.25​​​​​​​​​​​​​$1.67
Weighted average common shares outstanding​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Basic​​​​41,673​​​​​​​​​​​​​​15,438​​​​​​​​​​​​​​40,411​​​​​​​​​​​​​​47,447​​​​​27,112​​​​​​​​​​​​​​69,345
Diluted​​​​41,845​​​​​​​​​​​​​​15,449​​​​​​​​​​​​​​42,478​​​​​​​​​​​​​​47,619​​​​​27,223​​​​​​​​​​​​​​70,251
​
See “Note 4 — Preliminary Unaudited Pro Forma and Acquisition Accounting Adjustments’’Adjustments” for explanation of acquisition accounting adjustments.
Atlantic columns presented above are for the three months ended March 31, 2018, the last quarterly reporting period prior to Atlantic’s acquisition date of May 25, 2018.
Hamilton columns presented above are for the three months ended March 31, 2018, the last quarterly reporting period prior to Hamilton’s acquisition date of June 29, 2018.
128
TABLE OF CONTENTS
Unaudited Pro Forma Condensed Combined Income Statement
For the year ended December 31, 2017
(In thousands, except share and per share data)
​​​Ameris
As
Reported		​​USPF
Pro Forma
Adjustments		​​​​​Atlantic
As
Reported		​​Atlantic
Pro Forma
Adjustments		​​​​​Hamilton
As
Reported		​​Hamilton
Pro Forma
Adjustments		​​​​​Ameris
USPF
Atlantic
Hamilton
Pro
Forma		​​Fidelity
As
Reported		​​Fidelity
Pro Forma
Adjustments		​​​​​Ameris
Pro Forma
Total
Combined
Interest income​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Interest and fees on loans​​​$270,887​​​​$—​​​​​​​$32,812​​​​$1,782​​​S​​​$74,483​​​​$2,761​​​V​​​$382,725​​​​$150,998​​​​$6,235​​​AA​​​$539,958
Interest on taxable
securities		​​​​20,154​​​​​—​​​​​​​​1,153​​​​​—​​​​​​​​6,430​​​​​—​​​​​​​​27,737​​​​​4,269​​​​​—​​​​​​​​32,006
Interest on nontaxable securities​​​​1,581​​​​​—​​​​​​​​113​​​​​—​​​​​​​​187​​​​​—​​​​​​​​1,881​​​​​135​​​​​—​​​​​​​​2,016
Interest on deposits in other
banks		​​​​1,725​​​​​—​​​​​​​​294​​​​​—​​​​​​​​1,234​​​​​—​​​​​​​​3,253​​​​​2,576​​​​​—​​​​​​​​5,829
Interest on federal funds sold ​​​​—​​​​​—​​​​​​​​—​​​​​—​​​​​​​​27​​​​​—​​​​​​​​27​​​​​—​​​​​—​​​​​​​​27
Total interest income​​​​294,347​​​​​—​​​​​​​​34,372​​​​​1,782​​​​​​​​82,361​​​​​2,761​​​​​​​​415,623​​​​​157,978​​​​​6,235​​​​​​​​579,836
Interest expense​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Interest on deposits​​​$19,877​​​​$—​​​​​​​$5,170​​​​$—​​​​​​​$5,499​​​​$1,001​​​W​​​$31,547​​​​$15,722​​​​​(1,231)​​​BB​​​$46,038
Interest on other
borrowings		​​​​14,345​​​​​—​​​​​​​​2,208​​​​​—​​​​​​​​469​​​​​191​​​X​​​​17,213​​​​​7,008​​​​​—​​​​​​​​24,221
Total interest expense​​​​34,222​​​​​—​​​​​​​​7,378​​​​​—​​​​​​​​5,968​​​​​1,192​​​​​​​​48,760​​​​​22,730​​​​​(1,231)​​​​​​​​70,259
Net interest income​​​​260,125​​​​​—​​​​​​​​26,994​​​​​1,782​​​​​​​​76,393​​​​​1,569​​​​​​​​366,863​​​​​135,248​​​​​7,466​​​​​​​​509,577
Provision for loan losses​​​​8,364​​​​​—​​​​​​​​693​​​​​—​​​​​​​​217​​​​​—​​​​​​​​9,274​​​​​4,275​​​​​—​​​​​​​​13,549
Net interest income after provision for loan losses​​​$251,761​​​​$—​​​​​​​$26,301​​​​$1,782​​​​​​​$76,176​​​​$1,569​​​​​​​$357,589​​​​$130,973​​​​$7,466​​​​​​​$496,028
Noninterest income​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Service charges on deposit accounts​​​$42,054​​​​$—​​​​​​​$3,049​​​​$—​​​​​​​$4,253​​​​$—​​​​​​​$49,356​​​​$6,019​​​​$—​​​​​​​$55,375
Mortgage banking activity​​​​48,535​​​​​—​​​​​​​​1,480​​​​​—​​​​​​​​524​​​​​—​​​​​​​​50,539​​​​​98,797​​​​​—​​​​​​​​149,336
Other service charges, commissions and fees​​​​2,872​​​​​—​​​​​​​​35​​​​​—​​​​​​​​2,964​​​​​—​​​​​​​​5,871​​​​​8,402​​​​​—​​​​​​​​14,273
Net gain on securities​​​​37​​​​​—​​​​​​​​409​​​​​—​​​​​​​​12​​​​​—​​​​​​​​458​​​​​—​​​​​—​​​​​​​​458
Gain on sale of SBA and USDA loans​​​​4,590​​​​​—​​​​​​​​748​​​​​—​​​​​​​​—​​​​​—​​​​​​​​5,338​​​​​4,540​​​​​—​​​​​​​​9,878
Other non-interest income​​​​6,369​​​​​—​​​​​​​​1,264​​​​​—​​​​​​​​299​​​​​—​​​​​​​​7,932​​​​​17,194​​​​​—​​​​​​​​25,126
Total noninterest income​​​​104,457​​​​​—​​​​​​​​6,985​​​​​—​​​​​​​​8,052​​​​​—​​​​​​​​119,494​​​​​134,952​​​​​—​​​​​​​​254,446
Noninterest expense​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Salaries and employee benefits​​​$120,016​​​​$—​​​​​​​$13,867​​​​$—​​​​​​​$27,511​​​​$—​​​​​​​$161,394​​​​$137,939​​​​$—​​​​​​​$299,333
Occupancy and equipment expenses​​​​24,069​​​​​—​​​​​​​​2,399​​​​​—​​​​​​​​7,132​​​​​—​​​​​​​​33,600​​​​​13,347​​​​​863​​​CC​​​​47,810
Data processing and telecommunications expenses​​​​27,869​​​​​—​​​​​​​​2,316​​​​​—​​​​​​​​3,930​​​​​—​​​​​​​​34,115​​​​​8,696​​​​​—​​​​​​​​42,811
Legal and other professional
fees		​​​​15,355​​​​​(5,542)​​​P​​​​2,035​​​​​—​​​​​​​​1,902​​​​​—​​​​​​​​13,750​​​​​32,545​​​​​—​​​​​​​​46,295
Credit resolution-related expenses​​​​3,493​​​​​—​​​​​​​​679​​​​​—​​​​​​​​769​​​​​—​​​​​​​​4,941​​​​​1,245​​​​​—​​​​​​​​6,186
Advertising and marketing expenses​​​​5,131​​​​​—​​​​​​​​113​​​​​—​​​​​​​​142​​​​​—​​​​​​​​5,386​​​​​2,059​​​​​—​​​​​​​​7,445
Amortization of intangible assets​​​​3,932​​​​​3,004​​​Q​​​​—​​​​​594​​​T​​​​1,309​​​​​291​​​Y​​​​9,130​​​​​1,343​​​​​6,457​​​DD​​​​16,930
FDIC insurance​​​​3,078​​​​​—​​​​​​​​384​​​​​—​​​​​​​​692​​​​​—​​​​​​​​4,154​​​​​3,430​​​​​—​​​​​​​​7,584
Merger and conversion charges​​​​915​​​​​—​​​​​​​​454​​​​​—​​​​​​​​—​​​​​—​​​​​​​​1,369​​​​​—​​​​​—​​​​​​​​1,369
Other noninterest expenses​​​​28,078​​​​​—​​​​​​​​3,312​​​​​—​​​​​​​​9,226​​​​​—​​​​​​​​40,616​​​​​10,266​​​​​—​​​​​​​​50,882
Total noninterest expense​​​​231,936​​​​​(2,538)​​​​​​​​25,559​​​​​594​​​​​​​​52,613​​​​​291​​​​​​​​308,455​​​​​210,870​​​​​7,320​​​​​​​​526,645
​
129
TABLE OF CONTENTS
Unaudited Pro Forma Condensed Combined Income Statement – (continued)
For the year ended December 31, 2017
(In thousands, except share and per share data)
​​​Ameris
As
Reported		​​USPF
Pro Forma
Adjustments		​​​​​Atlantic
As
Reported		​​Atlantic
Pro Forma
Adjustments		​​​​​Hamilton
As
Reported		​​Hamilton
Pro Forma
Adjustments		​​​​​Ameris
USPF
Atlantic
Hamilton
Pro
Forma		​​Fidelity
As
Reported		​​Fidelity
Pro Forma
Adjustments		​​​​​Ameris
Pro Forma
Total
Combined
Net income before income tax
expense		​​​$124,282​​​​$2,538​​​​​​​$7,727​​​​$1,188​​​​​​​$31,615​​​​$1,278​​​​​​​$168,628​​​​$55,055​​​​$146​​​​​​​$223,829
Income tax expense​​​​50,734​​​​​533​​​R​​​​4,559​​​​​249​​​U​​​​16,936​​​​​268​​​Z​​​​73,279​​​​​15,259​​​​​31​​​EE​​​​88,569
Net income​​​$73,548​​​​$2,005​​​​​​​$3,168​​​​$939​​​​​​​$14,679​​​​$1,010​​​​​​​$95,349​​​​$39,796​​​​$115​​​​​​​$135,260
Preferred stock dividends​​​​—​​​​​—​​​​​​​​—​​​​​—​​​​​​​​—​​​​​—​​​​​​​​—​​​​​—​​​​​—​​​​​​​​—
Net income available to common shareholders​​​$73,548​​​​$2,005​​​​​​​$3,168​​​​$939​​​​​​​$14,679​​​​$1,010​​​​​​​$95,349​​​​$39,796​​​​$115​​​​​​​$135,260
Basic earnings available to common shareholders per share​​​$2.00​​​​​​​​​​​​​$0.21​​​​​​​​​​​​​$0.36​​​​​​​​​​​​​$2.03​​​​$1.50​​​​​​​​​​​​​$1.96
Diluted earnings available to
common shareholders per
share		​​​$1.98​​​​​​​​​​​​​$0.21​​​​​​​​​​​​​$0.35​​​​​​​​​​​​​$2.02​​​​$1.49​​​​​​​​​​​​​$1.93
Weighted average common shares outstanding​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
Basic​​​​36,828​​​​​​​​​​​​​​15,425​​​​​​​​​​​​​​40,318​​​​​​​​​​​​​​46,959​​​​​26,602​​​​​​​​​​​​​​68,857
Diluted​​​​37,144​​​​​​​​​​​​​​15,425​​​​​​​​​​​​​​42,217​​​​​​​​​​​​​​47,275​​​​​26,722​​​​​​​​​​​​​​69,907
​
See “Note 4 — Preliminary Unaudited Pro Forma and Acquisition Accounting Adjustments” for explanation of acquisition accounting adjustments.
94130
TABLE OF CONTENTS
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
Note 1 — Basis of Pro Forma Presentation
The unaudited pro forma condensed combined balance sheet as of September 30, 2017,2018, and the unaudited pro forma condensed combined income statementsstatement for the nine months ended September 30, 2017,2018 and the year ended December 31, 2016,2017, are based on the historical financial statements of Ameris, USPF, Atlantic, Hamilton and AtlanticFidelity after giving effect to the completion of the mergeracquisitions and the assumptions and adjustments described in the accompanying notes. Such financial statements do not reflect cost savings or operating synergies expected to result from the merger,acquisitions, or the costs to achieve these cost savings or operating synergies, or any anticipated disposition of assets that may result from the integration of the operations of the twofour companies.
The transactiontransactions will be accounted for under the acquisition method of accounting in accordance with Accounting Standards Codification (“ASC”(which we refer to as “ASC”) Topic 805, Business Combinations (“ASC (which we refer to as “ASC 805”). In business combination transactions in which the consideration given is not in the form of cash (that is, in the form of non-cash assets, liabilities incurred, or equity interests issued), measurement of the acquisition consideration is based on the fair value of the consideration given or the fair value of the assetassets (or net assets) acquired, whichever is more clearly evident and, thus, more reliably measurable. Determining the fair value of assets and liabilities is a complicated process involving significant judgment regarding methods and assumptions used to calculate estimated fair values. Fair values are subject to refinement for up to one year after the closing date of the acquisition as additional information regarding the closing date fair values becomes available.
Under ASC 805, all of the assets acquired and liabilities assumed in a business combination are recognized at their acquisition-date fair value, while transaction costs and restructuring costs associated with the business combination are expensed as incurred. The excess of the acquisition consideration over the fair value of assets acquired and liabilities assumed, if any, is allocated to goodwill. Changes in deferred tax asset valuation allowances and income tax uncertainties after the acquisition date generally affect income tax expense. Subsequent to the completion of the merger,aquisition of USPF and the mergers with Atlantic, Hamilton and Fidelity, Ameris and Atlantic will finalize an integration plan,plans, which may affect how the assets acquired, including intangible assets, will be utilized by the combined company. For those assets in the combined company that will be phased out or will no longer be used, additional amortization, depreciation and possibly impairment charges will be recorded after management completes the integration plan.plans.
The unaudited pro forma information is presented solely for informational purposes and is not necessarily indicative of the combined results of operations or financial position that might have been achieved for the periods or dates indicated, nor is it necessarily indicative of the future results of the combined company.
Note 2 — Preliminary Estimated Acquisition Consideration
US Premium Finance Holding Company Acquisition
The acquisition consideration for USPF is summarized as follows (in thousands):
Acquisition Consideration — USPF
​Number of shares of Ameris common stock – as exchanged​​​​1,073​​
​Fair value of Ameris common stock issued (weighted average of  $52.047 per share)​​​$55,855​​
​Cash paid to former shareholders of USPF​​​$21,421​​
​Present value of contingent earn-out consideration expected to be paid out as of acquisition date​​​$5,705​​
​Total Acquisition Consideration – USPF​​​$82,981​​
131
TABLE OF CONTENTS
Atlantic Coast Financial Corporation Acquisition
Under the terms of the Merger Agreement,merger agreement with Atlantic, stockholders will receiveAtlantic shareholders received 0.17 shares of Ameris common stock plus $1.39 in cash without interest, for each share of Atlantic common stock.
Based on Atlantic’s estimatedthe number of shares of Atlantic common stock outstanding as of September 30, 2017, the preliminary estimatedacquisition date of May 25, 2018, the acquisition consideration is as follows assuming all shares of Atlantic common stock, with the exception of 63,474 unallocated shares of Atlantic common stock held by the Atlantic ESOP which are assumed to be cancelled for the repayment of the Atlantic ESOP Loan, are exchanged for the per share stock consideration (in thousands):
Preliminary Estimated Acquisition Consideration — Atlantic
​Total number of shares of Atlantic common stock outstanding at September 30, 2017 ​​​15,553​​Total number of shares of Atlantic common stock outstanding at May 25, 2018​​​15,541​​
​Less: Unallocated shares of Atlantic common stock held by ESOP​​​(63)​​Less: Unallocated shares of Atlantic common stock held by ESOP and benefit plans ​​​(61)​​
​Total number of shares of Atlantic common stock to be converted​​​15,490​​Total number of shares of Atlantic common stock converted​​​15,480​​
​Per share exchange ratio​​​0.17​​Per share exchange ratio for the merger with Atlantic​​​0.17​​
​Number of shares of Ameris common stock – as exchanged​​​2,633​​Number of shares of Ameris common stock – as exchanged​​​2,632​​
​Multiplied by Ameris common stock price on December 29, 2017​​$48.20​​Multiplied by Ameris common stock price on May 25, 2018​​$56.15​​
​Estimated fair value of Ameris common stock issued​​$126,908​​Fair value of Ameris common stock issued​​$147,760​​
​Per share cash exchange price​​$1.39​​Per share cash exchange price​​$1.39​​
​Estimated cash paid at acquisition​​$21,531​​Cash paid at acquisition to Atlantic shareholders​​$21,527​​
​Total Preliminary Estimated Acquisition Consideration​​$148,439​​Total Acquisition Consideration – Atlantic​​$169,287​​
Hamilton State Bancshares, Inc. Acquisition
Under the terms of the merger agreement with Hamilton, Hamilton shareholders received 0.16 shares of Ameris common stock plus $0.93 in cash for each share of Hamilton common stock. Based on the number of shares of Hamilton common stock outstanding as of the acquisition date of June 29, 2018, the acquisition consideration is as follows (in thousands):
Acquisition Consideration — Hamilton
​Total number of shares of Hamilton common stock outstanding at June 29, 2018, including restricted share units that automatically vest under a change in control​​​​40,927​​
​Per share exchange ratio for the merger with Hamilton​​​​0.16​​
​Number of shares of Ameris common stock – as exchanged​​​​6,548​​
​Multiplied by Ameris common stock price on June 29, 2018​​​$53.35​​
​Fair value of Ameris common stock issued​​​$349,356​​
​Per share cash exchange price​​​$0.93​​
​Cash paid at acquisition to Hamilton shareholders​​​$38,068​​
​Cash paid at acquisition to holders of Hamilton stock warrants​​​​9,711​​
​Total Acquisition Consideration – Hamilton​​​$397,135​​
95132
TABLE OF CONTENTS
Fidelity Southern Corporation
Under the terms of the merger agreement with Fidelity, Fidelity shareholders will receive 0.80 shares of Ameris common stock for each share of Fidelity common stock (except for certain excluded shares, as previously discussed). Outstanding Fidelity options will be converted into options to purchase shares of Ameris common stock, with the exercise price and the number of shares underlying each option adjusted to reflect the exchange ratio of 0.80, as previously discussed. Based on the number of shares of Fidelity common stock outstanding and the number of Fidelity options outstanding as of December 14, 2018, the acquisition consideration is as follows (in thousands):
Acquisition Consideration — Fidelity
​Total number of shares of Fidelity common stock outstanding at
December 14, 2018, including restricted shares that immediately vest on the merger date		​​​​27,372​​
​Per share exchange ratio for the merger with Fidelity​​​​0.80​​
​Number of shares of Ameris common stock – as exchanged​​​​21,898​​
​Muliplied by Ameris common stock price on December 14, 2018​​​$34.02​​
​Fair value of Ameris common stock issued​​​$744,955​​
​Total number of Fidelity options outstanding at December 14, 2018​​​​917​​
​Per option exchange ratio​​​​0.80​​
​Number of Ameris options – as exchanged​​​​734​​
​Weighted average fair value per option​​​$7.88​​
​Fair value of rolled over stock options​​​$5,778​​
​Total Acquisition Consideration – Fidelity​​​$750,733​​
Note 3 — Preliminary Estimated Acquisition Consideration Allocation
Under the acquisition method of accounting, the total acquisition consideration is allocated to the acquired tangible and intangible assets and assumed liabilities of USPF, Atlantic, Hamilton and Fidelity based on their estimated fair values as of the closing dates of the merger.respective acquisitions. The excess of the acquisition consideration over the fair value of assets acquired and liabilities assumed, if any, is allocated to goodwill.
The allocationallocations of the estimated acquisition consideration isfor Atlantic, Hamilton and Fidelity are considered preliminary because the proposed merger has not yet been completed. The preliminary allocation isallocations for Atlantic, Hamilton and Fidelity are based on estimates, assumptions, valuations, and other studies which have not progressed to a stage where there is sufficient information to make a definitive allocation. Accordingly, the acquisition consideration allocation unaudited pro forma adjustments for Atlantic, Hamilton and Fidelity will remain preliminary until AmerisAmeris’s management determines the final acquisition consideration and the fair values of assets acquired and liabilities assumed. The final determination of the acquisition consideration allocation is anticipated to be completed as soon as practicable after the completion of the mergereach acquisition and will be based on the value of the Ameris common stock at the closing date of the merger.respective acquisition. The final amounts allocated to assets acquired and liabilities assumed could differ significantly from the amounts presented in the unaudited pro forma condensed combined consolidated financial statements.
The allocations of the acquisition consideration for USPF are considered final as of the date of this filing, having crossed the one year anniversary of the USPF acquisition date of January 31, 2018. The allocations of the acquisition consideration for USPF remained the same from the preliminary estimated acquisition consideration allocation presented in the table below.
133
TABLE OF CONTENTS
The total preliminary estimated acquisition consideration as shown in the tabletables above is allocated to USPF’s, Atlantic’s, Hamilton’s and Fidelity’s tangible and intangible assets and liabilities as of September 30, 2017,2018, based on their preliminary estimated fair values as follows (in thousands):
Preliminary Estimated Acquisition Consideration Allocation
​Cash and due from banks​​$4,091​​​USPF​Atlantic​Hamilton​Fidelity​
​Federal funds sold and interest bearing deposits in banks​​​38,143​​
​Investment securities available for sale​​​39,113​​
​Other investments​​​7,228​​
​Loans held for sale​​​5,025​​
​Loans, net of unearned income​​​780,864​​
​Other real estate owned​​​141​​
​Premises and equipment​​​14,360​​
​Deferred income taxes​​​5,177​​
​Cash value of bank owned life insurance​​​17,887​​
​Other assets​​​4,542​​
​Deposits​​​(676,416)​​
​Other borrowings​​​(155,140)​​
​Other liabilities​​​(3,283)​​
​Intangible assets​​​7,121​​
​Goodwill​​​59,586​​
​Total Preliminary Estimated Acquisition Consideration​​$148,439​​
Cash and due from banks​​$—​​​$3,990​​​$13,927​​​$52,125​​
Federal funds sold and interest bearing balances​​​—​​​​22,149​​​​102,156​​​​130,547​​
Time deposits in other banks​​​—​​​​—​​​​11,558​​​​—​​
Investment securities available for sale​​​—​​​​35,126​​​​285,830​​​​228,563​​
Other investments​​​—​​​​9,576​​​​2,094​​​​10,492​​
Loans held for sale​​​—​​​​358​​​​—​​​​371,319​​
Loans held for investment​​​—​​​​755,704​​​​1,298,736​​​​3,667,696​​
Other real estate owned​​​—​​​​1,041​​​​847​​​​7,228​​
Premises and equipment​​​—​​​​10,896​​​​27,483​​​​122,259​​
Goodwill​​​65,457​​​​93,338​​​​221,277​​​​252,174​​
Other intangible assets​​​23,607​​​​7,488​​​​16,000​​​​78,000​​
Deferred income tax asset, net​​​(6,083)​​​​6,465​​​​6,137​​​​(28,522)​​
Cash value of bank owned life insurance​​​—​​​​18,182​​​​4,454​​​​71,092​​
Other assets​​​—​​​​2,970​​​​13,010​​​​160,258​​
Deposits​​​—​​​​(585,167)​​​​(1,580,467)​​​​(4,051,992)​​
Securities sold under agreements to repurchase​​​—​​​​—​​​​—​​​​(13,562)​​
Other borrowings​​​—​​​​(204,475)​​​​(10,621)​​​​(224,287)​​
Subordinated deferrable interest debentures​​​—​​​​—​​​​(2,435)​​​​(46,393)​​
Other liabilities​​​—​​​​(8,354)​​​​(12,851)​​​​(36,264)​​
Total Acquisition Consideration​​$82,981​​​$169,287​​​$397,135​​​$750,733​​
Approximately $7.1$23.6 million, $7.5 million, $16.0 million and $78.0 million has been preliminarily allocated to amortizable intangible assets acquired.acquired in the USPF, Atlantic, Hamilton and Fidelity acquisitions, respectively. The amortization related to the preliminary fair value of net amortizable intangible assets is reflected as a pro forma adjustment to the unaudited pro forma condensed combined financial statements.
Identifiable intangible assets.   Intangible Assets   
The preliminary fair values of intangible assets were determined based on the provisions of ASC 805, which defines fair value in accordance with ASC Topic 820, Fair Value Measurements and Disclosures (“ASC 820”). ASC 820 defines fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. Intangible assets were identified that met either the separability criterion or the contractual-legal criterion described in ASC 805. TheFor the USPF acquisition, the preliminary allocation to intangible assets is allocated to insurance agent relationships, trade name, and non-compete agreement intangibles. For the Atlantic, Hamilton and Fidelity mergers, the preliminary allocation to intangible assets is allocated to core deposit intangibles.
Goodwill   
96
TABLE OF CONTENTS
Goodwill.   Goodwill represents the excess of the preliminary estimated acquisition consideration over the preliminary fair value of the underlying net tangible and intangible assets. Among the factors that contributed to a purchase price in excess of the fair value of the net tangible and intangible assets are the skill sets, operations, customer base and organizational cultures that can be leveraged to enable the combined company to build an enterprise
134
TABLE OF CONTENTS
greater than the sum of its parts. In accordance with ASC Topic 350, Intangibles — Goodwill and Other, goodwill will not be amortized, but instead will be tested for impairment at least annually and whenever events or circumstances have occurred that may indicate a possible impairment. In the event management determines that the value of goodwill has become impaired, the combined company will incur an accounting charge for the amount of the impairment during the period in which the determination is made.
Note 4 — Preliminary Unaudited Pro Forma and Acquisition Accounting Adjustments
The unaudited pro forma financial information is not necessarily indicative of what the financial position actually would have been had the mergeracquisitions been completed at the date indicated. Such information includes adjustments which are preliminary and may be revised. Such revisions may result in material changes. The financial position shown herein is not necessarily indicative of what the past financial position of the combined companies would have been, nor necessarily indicative of the financial position of the post-merger periods. The unaudited pro forma financial information does not give consideration to the impact of possible expense efficiencies, synergies, strategy modifications, asset dispositions or other actions that may result from the merger.acquisitions.
The following unaudited pro forma adjustments result from accounting for the merger,acquisitions, including the determination of fair value of the assets, liabilities, and commitments which Ameris, as the acquirer for accounting purposes, acquired from USPF, Atlantic and Hamilton and will acquire from Atlantic.Fidelity. The descriptions related to these preliminary adjustments are as follows (in thousands):
Balance Sheet — Fidelity
​A​Adjustment to reflect estimated cash paid at closing to Atlantic shareholders​​$(21,531)​​​As of
September 30, 2018		​
​B​Adjustment to loans to reflect estimated fair value at acquisition date​​$(13,063)​​
​C​Adjustment to allowance for loan losses to reflect the reversal of Atlantic’s allowance for
loan losses		​​$8,405​​
​D​Adjustment to other real estate owned to reflect the fair value at acquisition date based on
Ameris’s more aggressive liquidation strategy		​​$(47)​​
​E​Adjustment to intangible assets to reflect the recording of core deposit intangible​​$7,121​​
​F​Adjustment to goodwill to reflect the goodwill generated as a result of consideration paid
being greater than the net assets acquired		​​$59,586​​
​G​Adjustment to deferred tax assets to reflect the recording of the deferred tax asset
generated by the net fair value adjustments using an estimated effective tax rate of 35%		​​$(659)​​
​H​Adjustment to other borrowings to reflect the fair value at acquisition​​$4,298​​
​I​Adjustment to common stock​​
​​​   To reflect the reversal of Atlantic’s September 30, 2017 common stock​​$(156)​​
​​​   To reflect the value of Ameris common stock issued to Atlantic stockholders​​​2,633​​
​​Total adjustment to common stock​​$2,477​​
​J​Adjustment to capital surplus​​
​​​   To reflect the reversal of Atlantic’s September 30, 2017 capital surplus​​$(100,423)​​
​​​   To reflect the value of Ameris common stock issued to Atlantic stockholders​​​124,275​​
​​​Total adjustment to capital surplus​​$23,852​​
​K​Adjustment to common stock held by Atlantic ESOP and benefit plans reflects the reversal
of Atlantic’s September 30, 2017 common stock held by Atlantic ESOP and benefits
plans		​​$1,484​​
​L​Adjustment to retained earnings reflects the reversal of Atlantic’s September 30, 2017
retained earnings		​​$6,532​​
​M​Adjustment to accumulated other comprehensive income reflects the reversal of Atlantic’s
September 30, 2017 accumulated other comprehensive loss		​​$1,169​​
A
Adjustment to investment securities available for sale
​
​​​​​​
To reclass at amortized cost investment securities designated as held to maturity by Fidelity to investment securities available for sale​​$20,383​​
To reflect fair value at acquisition date for investment securities designated as
held to maturity by Fidelity but will be designated as available for sale by
Ameris		​​$(1,000)​​
Total adjustment to investment securities available for sale​​$19,383​​
B
Adjustment to investment securities held to maturity to reclass at amortized cost investment securities designated as held to maturity by Fidelity to investment securities available for sale
​
​​$(20,383)​​
C
Adjustment to loans
​
​​​​​​
To reflect estimated credit mark adjustment for loans at acquisition date​​$(34,257)​​
To reflect estimated yield mark adjustment for indirect auto loans at acquisition date​​$(5,000)​​
Total adjustment to loans​​$(39,257)​​
D
Adjustment to allowance for loan losses to reflect the reversal of Fidelity’s September 30, 2018 allowance for loan losses
​
​​$31,157​​
E
Adjustment to other real estate owned to reflect the estimated fair value at acquisition date based on Ameris’s more aggressive liquidation strategy
​
​​$(803)​​
F
Adjustment to premises and equipment to reflect the estimated fair value at acquisition date
​
​​$30,900​​
G
Adjustment to goodwill
​
​​​​​​
To reflect reversal of Fidelity’s September 30, 2018 goodwill recorded from its prior acquisitions​​$(5,164)​​
Adjustment to goodwill to reflect the estimated goodwill generated as a result of consideration paid being greater than the net assets acquired​​$252,174​​
Total adjustment to goodwill​​$247,010​​
97135
TABLE OF CONTENTS
​​​As of
September 30, 2018		​
H
Adjustment to other intangible assets
​
​​​​​​​
To reflect reversal of Fidelity’s September 30, 2018 unamortized other intangibles from its prior acquisitions​​​$(6,310)​​
To reflect the recording of the estimated core deposit intangible​​​$78,000​​
Total adjustment to other intangible assets​​​$71,690​​
I
Adjustment to deferred tax asset, net
​
​​​​​​​
To reclass Fidelity’s September 30, 2018 net deferred tax liability position against Ameris’s net deferred tax asset position​​​$(9,483)​​
To reflect the deferred tax impact resulting from the net fair value adjustments based on assumed effective tax rate of 21%​​​$(19,039)​​
Total adjustment to deferred tax asset, net​​​$(28,522)​​
J
Adjustment to interest-bearing deposits
​
​​​​​​​
To reflect reversal of Fidelity’s September 30, 2018 unamortized fair value adjustment on certificates of deposit from its prior acquisitions​​​$(277)​​
To reflect the estimated fair value at acquisition date of certificate of deposits​​​$2,300​​
Total adjustment to interest-bearing deposits​​​$2,023​​
K
Adjustment to deferred tax liability, net to reflect reclass of Fidelity’s   September 30, 2018 net deferred tax liability position against Ameris’s net   deferred tax asset position
​
​​​$(9,483)​​
L
Adjustment to common stock
​
​​​​​​​
To reflect the reversal of Fidelity’s September 30, 2018 common stock​​​$(197,870)​​
To reflect the value of Ameris common stock issued to Fidelity shareholders​​​$21,898​​
Total adjustment to common stock​​​$(175,972)​​
M
Adjustment to capital surplus
​
​​​​​​​
To reflect the reversal of Fidelity’s September 30, 2018 capital surplus​​​$(28,735)​​
To reflect the value of Ameris common stock issued to Fidelity shareholders ​​​$723,057​​
To reflect the value of Ameris options issued to Fidelity optionholders​​​$5,778​​
Total adjustment to capital surplus​​​$700,100​​
N
Adjustment to retained earnings to reflect the reversal of Fidelity’s   September 30, 2018 retained earnings
​
​​​$(207,763)​​
O
Adjustment to accumulated other comprehensive loss to reflect the reversal   of Fidelity’s September 30, 2018 accumulated other comprehensive loss
​
​​​$2,270​​
136
TABLE OF CONTENTS
Income Statement — USPF
​​​Nine Months Ended
September 30, 2018		​​Year Ended
December 31, 2017		​
P
Adjustment to legal and other professional fees to reflect
  elimination of fees previously paid under the USPF
  Management and License Agreement that are no longer
  incurred after acquisition of the final 70% investment
  in USPF
​
​​​$(274)​​​​$(5,542)​​
Q
Adjustment to amortization of intangible assets to reflect   estimated amortization expense on the insurance agent   relationships, trade name, and non-compete intangible   assets
​
​​​$250​​​​$3,004​​
R
Adjustment to income tax expense to reflect the tax effect   of the USPF income statement pro forma adjustments   using an assumed effective tax rate of 21%
​
​​​$5​​​​$533​​
Income Statement — Atlantic
​​​Three Months Ended
March 31, 2018		​​Year Ended
December 31, 2017		​
S
Adjustment to interest income and fees on loans to   reflect estimated additional accretion on loan portfolio
​
​​​$445​​​​$1,782​​
T
Adjustment to amortization of intangible assets to   reflect the estimated amortization of the core deposit   intangible
​
​​​$148​​​​$594​​
U
Adjustment to income tax expense to reflect the tax effect
  of the Atlantic income statement pro forma adjustments
  using an assumed effective tax rate of 21%
​
​​​$62​​​​$249​​
Income Statement — Hamilton
​​​Three Months Ended
March 31, 2018		​​Year Ended
December 31, 2017		​
V
Adjustment to interest income and fees on loans to   reflect estimated additional accretion on loan portfolio
​
​​​$690​​​​$2,761​​
W
Adjustment to interest expense on deposits
​
​​​​​​​​​​​​​
To reflect the reversal of Hamilton’s amortization of fair
value adjustment on certificates of deposits resulting
from its prior acquisitions		​​​$6​​​​$56​​
To reflect the estimated amortization of the fair value adjustment on certificates of deposit​​​$236​​​​$945​​
Total adjustment to interest expense on deposits​​​$242​​​​$1,001​​
X
Adjustment to interest expense on other borrowings and   subordinated deferrable interest debentures
​
​​​​​​​​​​​​​
To reflect the reversal of Hamilton’s amortization of fair
value adjustment in other borrowings from its prior
acquisitions		​​​$32​​​​$154​​
To reflect the estimated amortization of the fair value adjustment on subordinated deferrable interest debentures​​​$9​​​​$37​​
Total adjustment to interest expense on other borrowings
and subordinated deferrable interest debentures		​​​$41​​​​$191​​
137
TABLE OF CONTENTS
​​​Three Months Ended
March 31, 2018		​​Year Ended
December 31, 2017		​
Y
Adjustment to amortization of intangible assets
​
​​​​​​​​​​​​​
To reflect the reversal of Hamilton’s amortization
expense on its existing core deposit intangible resulting
from its prior acquisitions		​​​$(281)​​​​$(1,309)​​
To reflect the estimated amortization expense on the core
deposit intangible		​​​$400​​​​$1,600​​
Total adjustment to amortization of intangible assets​​​$119​​​​$291​​
Z
Adjustment to income tax expense to reflect the tax effect   of the Hamilton income statement pro forma   adjustments using an assumed effective tax rate of 21%
​
​​​$60​​​​$268​​
Income Statement — Fidelity
​​​Nine Months Ended
September 30, 2018		​​Year Ended
December 31, 2017		​
AA
Adjustment to interest income and fees on loans to reflect   estimated additional accretion on loan portfolio
​
​​​$4,676​​​​$6,235​​
BB
Adjustment to interest expense on deposits
​
​​​​​​​​​​​​​
To reflect the reversal of Fidelity’s amortization of fair value adjustment on certificates of deposits resulting from its prior acquisitions​​​$125​​​​$302​​
To reflect the estimated amortization of the fair value adjustment on certificates of deposit​​​$(767)​​​​$(1,533)​​
Total adjustment to interest expense on deposits​​​$(642)​​​​$(1,231)​​
CC
Adjustment to occupancy and equipment expense to reflect
  estimated additional depreciation resulting from fair
  value adjustment on premises and equipment
​
​​​$648​​​​$863​​
DD
Adjustment to amortization of intangible assets
​
​​​​​​​​​​​​​
To reflect the reversal of Fidelity’s amortization expense
on its existing core deposit intangible resulting from its
prior acquisitions		​​​$(832)​​​​$(1,343)​​
To reflect the estimated amortization expense on the core
deposit intangible		​​​$5,850​​​​$7,800​​
Total adjustment to amortization of intangible assets​​​$5,018​​​​$6,457​​
EE
Adjustment to income tax expense to reflect the tax effect
  of the Fidelity income statement pro forma adjustments
  using an assumed effective tax rate of 21%
​
​​​$(73)​​​​$31​​
The estimated transaction costs included as part of the unaudited pro forma condensed combined balance sheet as of September 30, 2018, have not been included in the above unaudited pro forma condensed combined income statements.
Pursuant to the acquisition method of accounting, the final acquisition consideration will bewas based on the price of the Ameris common stock immediately prior to the effective time of the merger. A 20% difference in per share price at the closing of the merger compared to the amount used in these unaudited pro forma condensed combined financial statements would increase or decrease total acquisition consideration and goodwill by approximately $25.4 million.
Income Statements
​​​​​​Nine Months
Ended
September 30,
2017		​​Year Ended
December 31,
2016		​
A​​Adjustment to reflect additional accretion of loan portfolio​​​​1,306​​​​​1,742​​
B​​Adjustment to reflect amortization of fair value adjustment of other
borrowings		​​​​(806)​​​​​(1,074)​​
C​​Adjustment to reflect amortization of core deposit intangible​​​​534​​​​​712​​
D​​Adjustment to reflect income tax effect of pro forma adjustments at an
estimated effective tax rate of 35%		​​​​552​​​​​736​​
The estimated transaction costs included as part of the unaudited pro forma condensed balance sheet as of September 30, 2017, have not been included in the above unaudited pro forma condensed income statements.applicable transactions.
Note 5 — Earnings Per Common Share
Unaudited total combined pro forma earnings per common share for Ameris including USPF, Atlantic, Hamilton and Fidelity for the nine months ended September 30, 2017,2018 and for the year ended December 31, 2016,2017 have been calculated using Ameris’s historic weighted average common shares outstanding plus the shares of Ameris common shares assumedstock issued to the shareholders of USPF, Atlantic and Hamilton, and to be issued to Atlantic stockholdersFidelity shareholders, in the merger.respective acquisitions.
138
TABLE OF CONTENTS
The following table sets forth the calculation of basic and diluted unaudited total combined pro forma earnings per common share for Ameris, including USPF, Atlantic, Hamilton and Fidelity for the nine months ended September 30, 2017,2018 and the year ended December 31, 20162017 (in thousands, except share and per share data).
​​Nine Months Ended
September 30, 2017		​Year Ended
December 31, 2016		​​Nine Months Ended
September 30, 2018		​Year Ended
December 31, 2017		​
​​Basic​Diluted​Basic​Diluted​​Basic​Diluted​Basic​Diluted​
Pro forma net income available to common shareholders​​$69,208​​​$69,208​​​$79,886​​​$79,886​​​​$117,413​​​$117,413​​​$135,260​​​$135,260​​
Weighted average common shares outstanding:​​​​​​​​​​​​​​​​​​​​​​​
Ameris​​​36,690​​​​37,017​​​​34,347​​​​34,702​​​​​41,673​​​​41,845​​​​36,828​​​​37,144​​
Common shares issued to Atlantic stockholders​​​2,633​​​​2,633​​​​2,633​​​​2,633​​
Shares of Ameris common stock issued to USPF shareholders​​​92​​​​92​​​​951​​​​951​​
Shares of Ameris common stock issued to Atlantic shareholders​​​1,388​​​​1,388​​​​2,632​​​​2,632​​
Shares of Ameris common stock issued to Hamilton shareholders​​​4,294​​​​4,294​​​​6,548​​​​6,548​​
Shares of Ameris common stock issued to Fidelity shareholders​​​21,898​​​​22,632​​​​21,898​​​​22,632​​
Pro forma​​​39,323​​​​39,650​​​​36,980​​​​37,335​​​​​69,345​​​​70,251​​​​68,857​​​​69,907​​
Pro forma net income per common share​​$1.76​​​$1.75​​​$2.16​​​$2.14​​​​$1.69​​​$1.67​​​$1.96​​​$1.93​​
139
TABLE OF CONTENTS​
DESCRIPTION OF AMERIS CAPITAL STOCK
As a result of the merger, each Fidelity shareholder immediately prior to the effective time will become an Ameris shareholder at the effective time. Following the merger, the rights of former Fidelity shareholders will be governed by the GBCC and Ameris’s articles of incorporation and bylaws. The following briefly summarizes the material terms of the Ameris common stock that will be issued in connection with the merger. We urge you to read the applicable provisions of the GBCC and Ameris’s articles of incorporation and bylaws. Copies of Fidelity’s and Ameris’s articles of incorporation and bylaws have been filed with the SEC as exhibits to the registration statement of which this joint proxy statement/prospectus forms a part. For information on how copies of these documents can be obtained, see “References to Additional Information” and “Where You Can Find More Information.”
Description of Capital Stock
The following is a summary of Ameris’s capital stock and certain terms of Ameris’s articles of incorporation and bylaws. This discussion summarizes some of the important rights of Ameris shareholders but does not purport to be a complete description of these rights and may not contain all of the information regarding Ameris’s capital stock that is important to you. These rights can only be determined in full, and the descriptions herein are qualified in their entirety, by reference to federal and state banking laws and regulations, the GBCC and other applicable law, and Ameris’s articles of incorporation and bylaws, copies of which are filed with the SEC as exhibits to the registration statement of which this joint proxy statement/prospectus forms a part.
General
As of the date of this joint proxy statement/prospectus, Ameris’s authorized capital stock consisted of:
•
100,000,000 shares of common stock, par value $1.00 per share, [•] of which were issued and outstanding; and
​
•
5,000,000 shares of preferred stock, of which 52,000 shares have been designated as Fixed Rate Cumulative Perpetual Preferred Stock, Series A, par value $0.01 per share, and of which 175,000 shares have been designated as Series A Junior Participating Preferred Stock, no par value per share, none of which were issued and outstanding.
​
Common Stock
Voting Rights
Each holder of Ameris common stock is entitled to one vote per share held on any matter submitted to a vote of shareholders. There are no cumulative voting rights in the election of directors.
Dividends
Holders of Ameris common stock are entitled to receive dividends only if, as and when declared by the Ameris board of directors out of funds legally available, subject to certain restrictions imposed by state and federal laws and the preferential dividend rights of any preferred stock then outstanding.
No Preemptive or Conversion Rights
Holders of Ameris common stock do not have preemptive rights to purchase additional shares of any class of capital stock, nor do they have conversion or redemption rights.
Calls and Assessments
All of the issued and outstanding shares of Ameris common stock are fully paid and non-assessable.
Liquidation Rights
In the event of the liquidation, dissolution or winding up of Ameris, the holders of Ameris common stock (and the holders of any class or series of stock entitled to participate with the common stock in the distribution of assets) will be entitled to receive, in cash or in kind, Ameris’s assets available for distribution
98140
TABLE OF CONTENTS
remaining after payment or provision for payment of Ameris’s debts and liabilities and distributions or provision for distributions to holders of Ameris preferred stock having preference over Ameris common stock.
Preferred Stock
The Ameris board of directors may, from time to time, issue shares of the authorized, undesignated preferred stock in one or more classes or series without shareholder approval. In connection with any such issuance, the Ameris board of directors may by resolution determine the designation, preferences, limitations, conversion rights, cumulative, relative, participating, optional or other rights, including voting rights, qualifications, limitations or restrictions, of such shares of preferred stock.
Certain Provisions of Ameris’s Charter Documents and the GBCC
Ameris’s articles of incorporation and bylaws contain provisions that could make more difficult an acquisition of Ameris by means of a tender offer, a proxy contest or otherwise. These provisions are expected to discourage specific types of coercive takeover practices and inadequate takeover bids as well as to encourage persons seeking to acquire control to first negotiate with the Ameris board of directors.
The GBCC also provides additional provisions which, if adopted by the Ameris board of directors, would further inhibit certain unsolicited acquisition proposals.
Classified Board of Directors
Ameris’s bylaws provide that the Ameris board of directors shall consist of not less than seven and not more than fifteen members. Ameris’s bylaws provide for a classified board of directors, divided into three classes, with each class consisting as nearly as possible of one-third of the total number of directors, and with shareholders electing one class each year for a three-year term. Between shareholders’ meetings, only the Ameris board of directors is permitted to appoint new directors to fill vacancies or newly created directorships.
Shareholder Action Through Written Consent
Ameris’s bylaws only provide for shareholder action by written consent in lieu of a meeting if all shareholders entitled to vote on such action sign such consent.
Nominations to Board of Directors
Ameris’s bylaws provide that nominations for the election of directors may be made by the Ameris board of directors or any committee appointed by the Ameris board of directors or by any shareholder entitled to vote generally in the election of directors. Ameris’s bylaws establish an advance notice procedure for shareholder nominations to the Ameris board of directors. A shareholder may only make a nomination to the Ameris board of directors if he or she complies with the advance notice and other procedural requirements of Ameris’s bylaws and is entitled to vote on such nomination at the meeting.
Removal of Directors; Board of Directors Vacancies
Ameris’s articles of incorporation provide that members of the Ameris board of directors may only be removed for cause and then only with a vote of at least a majority of the outstanding shares entitled to vote in the election of directors. Any vacancies in the Ameris board of directors resulting from an increase in the size of the board or the death or resignation of a director may be filled by a majority vote of the directors then in office, even if less than a quorum, and any director so chosen will hold office for the remainder of the full term of the class of directors in which the vacancy occurred and until a successor is elected and qualified. Vacancies in the Ameris board of directors resulting from the removal of a director may be filled at the same meeting at which the removal occurred or any subsequent meeting of shareholders; provided that, to the extent a vacancy is not filled by an election within sixty days after the removal which caused such vacancy, the remaining directors shall, by majority vote, fill the vacancy. These provisions are intended to prevent a shareholder from gaining control of the Ameris board of directors by removing incumbent directors and filling the resulting vacancies with such shareholder’s own nominees.
141
TABLE OF CONTENTS
Authorized But Unissued Stock
The authorized but unissued shares of Ameris common stock and preferred stock are available for future issuance without shareholder approval, subject to applicable Nasdaq listing rules. These additional shares may be used for a variety of corporate purposes, including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved shares of Ameris common stock and preferred stock may enable the Ameris board of directors to issue shares to persons friendly to current management, which could render more difficult or discourage any attempt to obtain control of Ameris by means of a proxy contest, tender offer, merger or otherwise, and thereby protect the continuity of Ameris’s management.
Georgia “Fair Price” Statute and “Business Combination” Statute
The GBCC contains a “fair price statute,” which generally restricts a company from entering into certain business combinations (as defined in the GBCC) with an interested shareholder unless:
•
the transaction is unanimously approved by the continuing directors who must constitute at least three members of the board of directors at the time of such approval; or
​
•
the transaction is recommended by at least two-thirds of the continuing directors and approved by a majority of the shareholders excluding the interested shareholder.
​
Such statute further provides that the approval requirements described above do not apply to a business combination if the terms of the transaction meet specified fair pricing criteria and certain other tests.
The GBCC also contains a “business combination statute,” which generally restricts a company from entering into certain business combinations (as defined in the GBCC) with an interested shareholder for a period of five years after the date on which such shareholder became an interested shareholder unless:
•
the transaction is approved by the board of directors of the company prior to the date the person became an interested shareholder;
​
•
the interested shareholder acquires at least 90% of the company’s voting stock in the same transaction (calculated as provided in the GBCC) in which such person became an interested shareholder; or
​
•
subsequent to becoming an interested shareholder, the shareholder acquires at least 90% (calculated as provided in the GBCC) of the company’s voting stock and the business combination is approved by the holders of a majority of the voting stock entitled to vote on the matter (excluding the stock held by the interested shareholder and certain other persons).
​
The GBCC provides that the restrictions set forth in the fair price statute and the business combination statute will not apply unless the bylaws of the corporation specifically provide that these provisions of the GBCC are applicable to the corporation (and in certain other situations). Ameris has not elected to be covered by such statutes, but Ameris could do so by action of the Ameris board of directors, without a vote by shareholders except as may be prohibited by law, at any time.
Transfer Agent and Registrar
The transfer agent and registrar for the Ameris common stock is Computershare Investor Services.
142
TABLE OF CONTENTS​
COMPARISON OF SHAREHOLDERS’ RIGHTS
Each of Fidelity and Ameris is incorporated under the laws of the State of Georgia. The rights of holders of Fidelity capital stock are governed by Georgia law and Fidelity’s articles of incorporation and bylaws. The rights of holders of Ameris capital stock are governed by Georgia law and Ameris’s articles of incorporation and bylaws. Consequently, after the merger, the rights of former holders of Fidelity common stock will be determined by Ameris’s articles of incorporation and bylaws and Georgia law. The following is a summary of the material differences between the rights of Fidelity shareholders and Ameris shareholders arising due to the differences in their respective articles of incorporation and bylaws. The following summary does not purport to be a complete statement of the rights of holders of Fidelity capital stock under applicable Georgia law and Fidelity’s articles of incorporation and bylaws, or the rights of holders of Ameris capital stock under applicable Georgia law and Ameris’s articles of incorporation and bylaws, or a complete description of the specific provisions referred to below. Fidelity and Ameris urge you to read the articles of incorporation and bylaws of each of Fidelity and Ameris in their entirety. Copies of Fidelity’s and Ameris’s charter documents have been filed with the SEC. For information on how copies of these documents can be obtained, see “References to Additional Information” and “Where You Can Find More Information.”
​​​Fidelity​​Ameris​
Capital Stock​​Holders of Fidelity capital stock are entitled to all the rights and obligations provided to capital shareholders under Georgia law and Fidelity’s articles of incorporation and bylaws.​​Holders of Ameris capital stock are entitled to all the rights and obligations provided to capital shareholders under Georgia law and Ameris’s articles of incorporation and bylaws.​
Authorized, Issued and
Outstanding Capital
Stock		​​The authorized capital stock of Fidelity consists of 50,000,000 shares of common stock, no par value per share, and 10,000,000 shares of preferred stock, no par value per share. As of the date of this joint proxy statement/prospectus, [•] shares of Fidelity common stock were issued and outstanding, and no shares of Fidelity preferred stock were issued and outstanding.​​The authorized capital stock of Ameris currently consists of 100,000,000 shares of common stock, par value $1.00 per share, and 5,000,000 shares of preferred stock. As of the date of this joint proxy statement/prospectus, [•] shares of Ameris common stock were issued and outstanding, and no shares of Ameris preferred stock were issued and outstanding.​
Preferred Stock​​The Fidelity board of directors has previously designated 48,200 shares of Fidelity preferred stock as Fixed Rate Cumulative Perpetual Preferred Stock, Series A, no par value per share, and 1,000 shares of Fidelity preferred stock as Series B Participating Cumulative Preferred Stock, no par value per share.​​The Ameris board of directors has previously designated 52,000 shares of Ameris preferred stock as Fixed Rate Cumulative Perpetual Preferred Stock, Series A, par value $0.01 per share, and 175,000 shares of Ameris preferred stock as Series A Junior Participating Preferred Stock, no par value per share.​
Voting Rights​​Holders of Fidelity common stock generally are entitled to one vote per share in the election of directors and on all other matters submitted to a vote at a meeting of shareholders.​​Holders of Ameris common stock generally are entitled to one vote per share in the election of directors and on all other matters submitted to a vote at a meeting of shareholders.​
143
TABLE OF CONTENTS
​​​Fidelity​​Ameris​
Number of Directors​​Fidelity’s bylaws provide that the Fidelity board of directors shall consist of not less than three or more than twenty-four members, except that if all of the shares of Fidelity are owned beneficially and of record by less than three shareholders, the number of directors may be less than three but not less than the number of shareholders. Fidelity’s bylaws further provide that at each annual meeting the Fidelity shareholders shall fix the number of directors; provided that the shareholders may, by the affirmative vote of the holders of a majority of the shares entitled to vote at an election of directors, increase or reduce the number of directors and add or remove directors with or without cause at any time. The Fidelity board of directors may, by its action, increase the number of directors by two and elect directors to fill those positions provided the number of directors does not exceed the number permitted by Fidelity’s bylaws.​​Ameris’s bylaws provide that the number of directors serving on the Ameris board of directors shall not be less than seven or more than fifteen. There are currently nine directors serving on the Ameris board of directors. In connection with the merger, the Ameris board of directors will be increased in size by five to fourteen members at the effective time.​
Election of Directors​​Directors are elected by a majority of the shares present and entitled to vote.​​Directors are elected by a majority of the votes cast in an uncontested election and a plurality of the votes cast in a contested election.​
Term of Directors​​Directors are elected at each annual meeting of shareholders to serve until their successors are elected and qualified.​​The Ameris board of directors is divided into three classes, with the members of each class of directors serving staggered three-year terms, with approximately one-third of the directors being elected annually. Ameris’s bylaws require that each director retire at the annual meeting following the date such director attains the age of 75. The merger agreement provides that Ameris’s bylaws will be amended at or prior to the effective time so that the mandatory retirement age will be inapplicable to James B. Miller, Jr.​
Removal of Directors​​Directors may be removed from office, with or without cause, by the affirmative vote of the holders of a majority of the shares entitled to vote at an election of directors.​​Directors may be removed from office, with cause, by the vote of shareholders representing a majority of the issued and outstanding capital stock entitled to vote for the election of directors.​
144
TABLE OF CONTENTS
​​​Fidelity​​Ameris​
Vacancies on the Board
of Directors		​​A vacancy occurring in the Fidelity board of directors by reason of removal of a director by the shareholders shall be filled by the shareholders, or, if authorized by the shareholders, by the remaining directors. Any other vacancy occurring in the Fidelity board of directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the Fidelity board of directors. A director elected to fill a vacancy shall serve for the unexpired term of his or her predecessor in office.​​Any vacancies in the Ameris board of directors resulting from an increase in the size of the board or the death or resignation of a director may be filled by a majority vote of the directors then in office, even if less than a quorum, and any director so chosen will hold office for the remainder of the full term of the class of directors in which the vacancy occurred and until a successor is elected and qualified. Vacancies in the Ameris board of directors resulting from the removal of a director may be filled at the same meeting at which the removal occurred or any subsequent meeting of shareholders; provided that, to the extent a vacancy is not filled by an election within sixty days after the removal which caused such vacancy, the remaining directors shall, by majority vote, fill the vacancy.​
Director Qualifications​​Directors must be natural persons eighteen years of age or over.​​Directors must be natural persons eighteen years of age or over. Employees of subsidiary corporations (who are not also officers of Ameris) are not eligible to serve as directors.​
Shareholder Action by
Written Consent		​​Any action required or permitted to be taken at a meeting of Fidelity shareholders may be taken without a meeting if a unanimous consent which sets forth the action is given in writing by all of the shareholders entitled to vote on the subject matter. With respect to approval of a plan of merger or consolidation by written consent, the information required by the GBCC must be delivered to the shareholders prior to their execution of the consent or the consent must conspicuously and specifically waive the right to such information.​​Any action required or permitted to be taken at a meeting of Ameris shareholders may be taken without a meeting if a unanimous consent which sets forth the action is given in writing by all of the shareholders.​
Advance Notice
Requirements for
Shareholder
Nominations and
Other Proposals		​​Fidelity’s articles of incorporation and bylaws do not contain advance notice provisions applicable to shareholder nominations and other proposals.​​An Ameris shareholder who desires to nominate a person for election to the Ameris board of directors at a meeting of shareholders and who is eligible to make such nomination must give written notice of the proposed nomination to the Corporate Secretary at Ameris’s principal executive office not fewer than one hundred twenty calendar days in advance of the date​
145
TABLE OF CONTENTS
​​​Fidelity​​Ameris​
​​​​​​which is one year later than the date of the proxy statement released to shareholders in connection with the previous year’s annual meeting of shareholders; provided, however, that if no annual meeting of shareholders was held in the previous year or if the date of the forthcoming annual meeting of shareholders has been changed by more than thirty calendar days from the date contemplated at the time of the previous year’s proxy statement or if the forthcoming meeting is not an annual meeting of shareholders, then to be timely such shareholder’s notice must be so received not later than the close of business on the tenth day following the earlier of: (i) the day on which notice of the date of the forthcoming meeting was mailed or given to shareholders by or on behalf of Ameris; or (ii) the day on which public disclosure of the date of the forthcoming meeting was made by or on behalf of Ameris. Such notice shall contain, among other things, biographical information about the nominee, information regarding share ownership of Ameris capital stock by such nominee and a description of all arrangements between the nominee and the shareholder making the proposal.​
Notice of Shareholder
Meeting		​​Written notice of each shareholder meeting must be mailed to each shareholder entitled to vote at or to notice of such meeting at his address shown on the books of Fidelity not less than ten nor more than seventy days prior to such meeting unless such shareholder waives notice of the meeting.​​Notice of each shareholder meeting must be given to each shareholder entitled to vote at such meeting not less than ten, nor more than sixty, days before the date of the meeting.​
Amendments to Charter​​Fidelity’s articles of incorporation may be amended in accordance with the GBCC, which generally requires the approval of the Fidelity board of directors and the holders of a majority of the votes entitled to be cast on the amendment. Any amendment or repeal of Article VI (approval of fundamental corporate transactions) or Article VII (tender offers) of Fidelity’s articles of​​Ameris’s articles of incorporation may be amended in accordance with the GBCC, which generally requires the approval of the Ameris board of directors and the holders of a majority of the votes entitled to be cast on the amendment. Amendment of provisions in Ameris’s articles of incorporation related to the filling of vacancies on the Ameris board of directors requires the affirmative vote of the holders of at​
146
TABLE OF CONTENTS
​​​Fidelity​​Ameris​
​​​incorporation requires the affirmative vote of holders of 662∕3% of the shares of capital stock of Fidelity then entitled to vote on such matters.​​least 75% of the voting power of all outstanding shares of Ameris capital stock then entitled to vote in an election of directors of Ameris.​
Amendments to Bylaws​​The Fidelity board of directors may alter, amend or repeal Fidelity’s bylaws or adopt new bylaws, but any bylaws adopted by the Fidelity board of directors may be altered, amended or repealed by the shareholders, and new bylaws may be adopted by the shareholders. Fidelity shareholders may prescribe that any bylaw adopted by them shall not be altered, amended or repealed by the Fidelity board of directors. Action by the directors with respect to the bylaws shall be taken by an affirmative vote of a majority of all the directors then in office. Action by the shareholders with respect to the bylaws shall be taken by an affirmative vote of a majority of all shares outstanding and entitled to vote.​​Ameris’s bylaws may be amended by the majority vote of all of the directors, but any bylaws adopted by the Ameris board of directors may be altered, amended or repealed and new bylaws adopted by the shareholders by majority vote of all of the shares having voting power. Any amendment that limits or adversely affects any right to indemnification or advancement of expenses under Ameris’s bylaws shall apply only to proceedings based on actions, events or omissions occurring after such amendment and delivery of notice thereof to the indemnified person so affected. The provision in Ameris’s bylaws with respect to the foregoing may not be amended in a manner effective as to any indemnified person (except as to post-amendment events) without the prior written consent of such indemnified person.​
Special Meeting of
Shareholders		​​A special meeting of Fidelity shareholders may be called at any time by the Fidelity board of directors, Fidelity’s President, or upon written request of the holders of at least 25% of the outstanding Fidelity common stock. Fidelity’s bylaws provide that the Fidelity board of directors may specify by resolution prior to any special meeting of shareholders held within the year that such meeting shall be in lieu of the annual meeting.​​A special meeting of Ameris shareholders may be called by the Chairman or the Chief Executive Officer of Ameris. In addition, Ameris’s bylaws provide that a special meeting of shareholders shall be called by the Corporate Secretary or Chief Executive Officer of Ameris when so requested by the Ameris board of directors or upon the written request of shareholders owning at least 50% of the issued and outstanding capital stock of Ameris entitled to vote at such meeting.​
Quorum​​The holders of a majority of the outstanding shares entitled to vote, represented either in person or by proxy, constitute a quorum at any meeting of Fidelity shareholders.​​The holders of a majority of the stock issued, outstanding and entitled to vote at the meeting, present in person or by proxy, constitute a quorum at any meeting of Ameris shareholders.​
147
TABLE OF CONTENTS
​​​Fidelity​​Ameris​
Preemptive Rights​​
State Law.   Under the GBCC, a corporation’s shareholders do not have preemptive rights unless the corporation’s articles of incorporation provide otherwise.
Charter Provision.   Fidelity’s articles of incorporation provide that no shareholder shall, because of his ownership of stock, have any preemptive or other right to purchase, subscribe for, or take any part of shares of Fidelity issued, optioned, or sold by Fidelity.
​​
State Law.   The provisions of the GBCC are also applicable to Ameris and its shareholders.
Charter Provision.   Ameris’s articles of incorporation do not provide for preemptive rights.
​
Limitation of Personal
Liability of Directors		​​
State Law.   The GBCC provides that a corporation’s articles of incorporation may set forth a provision eliminating or limiting the liability of a director to the corporation or its shareholders for monetary damages for any action taken, or any failure to take any action, as a director, except liability: (i) for any appropriation, in violation of his or her duties, of any business opportunity of the corporation; (ii) for acts or omissions which involve intentional misconduct or a knowing violation of law; (iii) for unlawful distributions; or (iv) for any transaction from which the director received an improper personal benefit; provided, in each case, that no such provision shall eliminate or limit the liability of a director for any act or omission occurring prior to the date when such provision becomes effective.
Charter.   Fidelity’s articles of incorporation provide that, to the extent permitted by law, a director shall not be liable to Fidelity or its shareholders for monetary damages for breach of the duty of care or other duty as a director; provided, however, that a director may be liable: (i) for any appropriation, in violation of his duties, of any business opportunity of Fidelity; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) for the types of liability set forth in
​​
State Law.   The provisions of the GBCC are also applicable to Ameris and its shareholders.
Bylaw Provision.   Ameris’s bylaws provide that no director of Ameris shall be personally liable to Ameris or its shareholders for monetary damages for breach of such person’s duty of care or other duty as a director except to the extent such liability cannot be eliminated or limited pursuant to the GBCC.
​
148
TABLE OF CONTENTS
​​​Fidelity​​Ameris​
​​​Section 14-2-154 of the GBCC [now Section 14-2-832]; or (iv) for any transaction from which the director derived an improper personal benefit.​​​​
Indemnification of
Directors and
Officers		​​Pursuant to Fidelity’s bylaws, Fidelity will indemnify and hold harmless any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of Fidelity) by reason of the fact that he is or was a director, officer, employee or agent of Fidelity, or is or was serving at the request of Fidelity as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in a manner he reasonably believed to be in or not opposed to the best interests of Fidelity, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Fidelity will indemnify and hold harmless any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of Fidelity to procure a judgment in its favor by reason of the fact he is or was a director, officer, employee or agent of Fidelity, or is or was serving at the request of Fidelity as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of Fidelity; provided, however, that​​
Ameris’s bylaws provide 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 it is in any way interested, may in accordance with Ameris’s bylaws, and to the extent permitted by the GBCC, be indemnified for any liability and expense that may be incurred by such person in connection with or resulting from any proceeding 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 such director or officer or as a member of any committee appointed by the Ameris board of directors to act for, in the interest of, or on behalf of Ameris, whether or not he or she continues to be such at the time such liability or expense shall have been incurred; provided such person: (i) acted in good faith; and (ii) reasonably believed (a) in the case of conduct in the person’s official capacity, that the conduct was in Ameris’s best interests, (b) in all other cases, that the conduct was at least not opposed to Ameris’s best interests, and (c) in the case of a criminal proceeding, that the person had no reasonable cause to believe that the conduct was unlawful.
Ameris’s bylaws further provide that those persons who may be entitled to indemnification under the bylaws who have been wholly successful, on the merits or otherwise, with respect to any claim for which indemnification is available shall be entitled to indemnification as of right without any further action or approval by the
​
149
TABLE OF CONTENTS
​​​Fidelity​​Ameris​
​​​no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to Fidelity, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. To the extent that a director, officer, employee or agent of Fidelity has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to above, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by Fidelity in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by Fidelity. If any expenses or other amounts are paid by way of indemnification, otherwise than by court order or by an insurance carrier pursuant to insurance maintained by the corporation, Fidelity shall, not later than the next annual meeting of shareholders, unless such meeting is held within three months from the date of such payment, and, in any event, within fifteen months from the date of such payment, send by delivery or first class mail, or such other means as is authorized by law, to its shareholders of record at the same time entitled to vote for the election of directors, a statement specifying the persons paid, the amounts paid, and the nature and​​
Ameris board of directors. Those officers and directors who have not been wholly successful with respect to any claim for which indemnification is available may be entitled to indemnification if the Ameris board of directors, acting by majority vote, finds the director or officer has met the required standard of conduct.
Pursuant to its bylaws, Ameris may advance to directors or officers expenses incurred with respect to any claim for which indemnification is available under the bylaws prior to the final disposition thereof upon Ameris’s receipt of an undertaking by, or on behalf of, the director or officer to repay such amount unless it shall ultimately be determined that he or she is entitled to indemnification.
​
150
TABLE OF CONTENTS
​​​Fidelity​​Ameris​
​​​status at the time of such payment of the litigation or threatened litigation.​​​​
Certain Business
Combination
Restrictions		​​
State Law.   The GBCC contains a business combination statute that protects certain Georgia corporations from hostile takeovers, and from actions following the takeover, by prohibiting some transactions once an acquiror has gained a significant holding in the corporation. The GBCC prohibits “business combinations,” including mergers, sales and leases of assets, issuances or exchanges of securities, certain loans and other financial benefits and similar transactions by a corporation or a subsidiary with an interested shareholder that beneficially owns 10% or more of a corporation’s voting stock, within five years after the person becomes an interested shareholder, unless:
•
prior to the time the person becomes an interested shareholder, the board of directors of the target corporation approved either the business combination or the transaction which will result in the person becoming an interested shareholder; after the completion of the transaction in which the person becomes an interested shareholder, the interested shareholder holds at least 90% of the voting stock of the corporation, excluding for purposes of determining the number of shares outstanding, those shares owned by: (i) persons who are directors or officers or their affiliates or associates; (ii) subsidiaries of the corporation; and (iii) specific employee benefit plans; or
​
•
after the shareholder becomes an interested shareholder, the shareholder acquires additional shares such that the shareholder becomes the holder of at least 90% of the voting stock of the corporation, excluding for
​
​​
State Law.   The provisions of the GBCC are also applicable to Ameris and its shareholders. However, the GBCC’s business combination statute does not apply to a corporation unless the corporation’s bylaws provide that such requirements are applicable.
Bylaw Provision.   Ameris has not elected to be covered by the GBCC’s business combination statute, but Ameris could do so by action of the Ameris board of directors, without a vote by shareholders except as may be prohibited by law.
​
151
TABLE OF CONTENTS
​​​Fidelity​​Ameris​
​​​
purposes of determining the number of shares outstanding, those shares owned by: (i) persons who are directors or officers, their affiliates or associates; (ii) subsidiaries of the corporation; and (iii) specific employee benefit plans, and the business combination was approved by the shareholders of the corporation by holders of a majority of the stock entitled to vote on the transaction (with the number of shares outstanding calculated as above and further excluding shares held by the interested shareholder).
Bylaw Provision.   The GBCC’s business combination statute does not apply to a corporation unless the corporation’s bylaws provide that such requirements are applicable. Fidelity’s bylaws provide that the requirements of the GBCC’s business combination statute shall apply to all “business combinations” (as defined in such statute) involving Fidelity.
​​​​
Certain Fair Price
Requirements		​​
State Law.   The GBCC also contains a fair price statute, which imposes certain fair pricing and procedural requirements on certain “business combinations” with an interested shareholder that beneficially owns 10% or more of a corporation’s voting stock. The GBCC’s fair price statute prohibits business combinations with an interested shareholder unless:
•
the transaction is unanimously approved by the continuing directors who must constitute at least three members of the board of directors at the time of such approval; or
​
•
the transaction is recommended by at least two-thirds of the continuing directors and approved by a majority of the shareholders excluding the interested shareholder.
​
Such statute further provides that the approval requirements described
​​
State Law.   The provisions of the GBCC are also applicable to Ameris and its shareholders. The GBCC’s fair price statute does not apply to a corporation unless the corporation’s bylaws provide that such requirements are applicable.
Bylaw Provision.   Ameris has not elected to be covered by the GBCC’s fair price statute, but Ameris could do so by action of the Ameris board of directors, without a vote by shareholders except as may be prohibited by law.
​
152
TABLE OF CONTENTS
​​​Fidelity​​Ameris​
​​​
above do not apply to a business combination if the terms of the transaction meet specified fair pricing criteria and certain other tests which are intended to assure that all shareholders receive a fair price for their shares regardless of which point in time they sell to the acquiring party.
Bylaw Provision.   The GBCC’s fair price statute does not apply to a corporation unless the corporation’s bylaws provide that such statute is applicable. Fidelity has not elected to be covered by the GBCC’s fair price statute, but Fidelity could do so by action of the Fidelity board of directors, without a vote by shareholders except as may be prohibited by law. 
​​​​
Fundamental Business
Transactions		​​
State Law.   Under the GBCC, subject to certain exceptions, a merger, share exchange or sale, lease, exchange or transfer of all or substantially all of the corporation’s assets generally must be approved at a meeting of a corporation’s shareholders by the: (i) affirmative vote of a majority of all the votes entitled to be cast on the matter; and (ii) in addition, with respect to a merger or share exchange, affirmative vote of a majority of all the votes entitled to be cast by holders of the shares of each voting group entitled to vote separately on the transaction as a group by the articles of incorporation.
Charter Provision.   Fidelity’s articles of incorporation provide that any merger, liquidation or dissolution of Fidelity, or any action that would result in the same or other disposition of all or substantially all of the assets of Fidelity (other than a mortgage or pledge of or creation of a security interest in or conveyance of title to all or part of the property and assets of Fidelity or any interest therein for the purpose of securing the payment or performance of any contract, note, bond or any other obligation of
​​
State Law.   The provisions of the GBCC are also applicable to Ameris and its shareholders.
Charter Provision.   Ameris’s articles of incorporation do not contain any provision regarding approval of fundamental business transactions by the holders of Ameris common stock.
​
153
TABLE OF CONTENTS
​​​Fidelity​​Ameris​
​​​Fidelity), shall require approval by the affirmative vote of the holders of at least 662∕3% of the issued and outstanding shares of capital stock then entitled to vote on such matters.​​​​
Non-Shareholder
Constituency
Provision		​​Fidelity’s articles of incorporation provide that the Fidelity board of directors may, if it deems it advisable, oppose a tender or other offer for Fidelity’s securities, whether the offer is in cash or in securities or otherwise, and that when considering whether to oppose an offer, the Fidelity board of directors may, but is not legally obligated to, consider any pertinent issues, including, by way of illustration but not of limitation: (i) whether the offer price is acceptable based on the historical and present operating results or financial condition of Fidelity; (ii) whether a more favorable price could be obtained for Fidelity’s securities in the future; (iii) the impact which an acquisition of Fidelity would have on the employees, depositors and customers of Fidelity and the communities which it and its subsidiaries serve; (iv) the reputation and business practices of the offeror and its management and affiliates as they would affect the employees, depositors and customers of Fidelity and its subsidiaries and the future value of the Corporation’s stock; (v) the value of the securities, if any, that the offeror is offering in exchange for Fidelity’s securities, based on an analysis of the worth of Fidelity compared to the entity whose securities are being offered; and (vi) any antitrust or other legal regulatory issues that are raised by the offer.​​Ameris’s articles of incorporation do not contain a provision that expressly permits the Ameris board of directors to consider constituencies other than the shareholders when evaluating certain offers.​
154
TABLE OF CONTENTS
​​​Fidelity​​Ameris​
Dissenters’ Rights​​
State Law.   Under the GBCC, a shareholder is entitled to dissent from, and obtain the fair value in cash of his or her shares in connection with, certain corporate actions, including some mergers, share exchanges, sales or exchanges of all or substantially all of the corporation’s property other than in the usual and regular course of business, and certain amendments to the corporation’s articles of incorporation, subject to specified exceptions.
However, a shareholder is not entitled to appraisal rights or dissenters’ rights in connection with such corporate actions if his or her shares are listed on a national securities exchange or held of record by more than 2,000 shareholders, and such shareholder accepts as consideration for his or her shares the shares of the surviving corporation or another publicly held corporation which at the effective date of the merger is either listed on a national securities exchange or held by more than 2,000 shareholders, except for cash paid in lieu of fractional shares. Accordingly, Fidelity shareholders are not entitled to appraisal or dissenters’ rights in connection with the merger.
​​State Law.   The provisions of the GBCC are also applicable to Ameris and its shareholders.​
155
TABLE OF CONTENTS​
COMPARATIVE MARKET PRICES AND DIVIDENDS
Shares of Ameris common stock and Fidelity common stock are listed on the Nasdaq under the symbols “ABCB” and “LION,” respectively. The following table sets forth for the periods indicated the high and low reported intraday sales prices per share of Ameris common stock and Fidelity common stock on the Nasdaq and the cash dividends declared per share.
​​​Ameris Common Stock​​Fidelity Common Stock​
​​​High​​Low​​Dividend​​High​​Low​​Dividend​
Quarter Ended:​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​
March 31, 2019 (through February 8,
2019)		​​​$39.11​​​​$31.27​​​​​—​​​​$31.19​​​​$25.64​​​​$0.12​​
December 31, 2018​​​​47.25​​​​​29.97​​​​$0.10​​​​​26.56​​​​​21.18​​​​​0.12​​
September 30, 2018​​​​54.35​​​​​45.15​​​​​0.10​​​​​26.71​​​​​23.44​​​​​0.12​​
June 30, 2018​​​​58.10​​​​​50.20​​​​​0.10​​​​​27.05​​​​​22.09​​​​​0.12​​
March 31, 2018​​​​59.05​​​​​47.90​​​​​0.10​​​​​24.96​​​​​21.77​​​​​0.12​​
December 31, 2017​​​​51.30​​​​​44.75​​​​​0.10​​​​​23.94​​​​​20.28​​​​​0.12​​
September 30, 2017​​​​51.28​​​​​41.05​​​​​0.10​​​​​23.78​​​​​20.51​​​​​0.12​​
June 30, 2017​​​​49.80​​​​​42.60​​​​​0.10​​​​​23.96​​​​​20.08​​​​​0.12​​
March 31, 2017​​​​49.50​​​​​41.60​​​​​0.10​​​​​24.95​​​​​20.30​​​​​0.12​​
On December 14, 2018, the last trading day before the public announcement of the merger, the closing sale price of shares of Ameris common stock as reported on the Nasdaq was $34.02. On [•], the last practicable trading day before the date of this joint proxy statement/prospectus, the closing sale price of shares of Ameris common stock as reported on the Nasdaq was $[•].
On December 14, 2018, the last trading day before the public announcement of the merger, the closing sale price of shares of Fidelity common stock as reported on the Nasdaq was $21.42. On [•], the last practicable trading day before the date of this joint proxy statement/prospectus, the closing sale price of shares of Fidelity common stock as reported on the Nasdaq was $[•].
As of  [•], the last date prior to printing this joint proxy statement/prospectus for which it was practicable to obtain this information for Ameris and Fidelity, there were approximately [•] registered holders of Ameris common stock and approximately [•] registered holders of Fidelity common stock.
The following table shows the closing sale prices of Ameris common stock and Fidelity common stock as reported on the Nasdaq on December 14, 2018, the last trading day before the public announcement of the merger, and on [•] the last practicable trading day before the date of this joint proxy statement/​prospectus. The table also shows the implied value of the merger consideration payable for each share of Fidelity common stock, which we calculated by multiplying the closing price of Ameris common stock on those dates by the exchange ratio of 0.80.
​​​Ameris
Common
Stock		​​Fidelity
Common
Stock		​​Implied
Value of
One Share
of Fidelity
Common
Stock		​
December 14, 2018​​​$34.02​​​​$21.42​​​​$27.22​​
[•]​​​$[•]​​​​$[•]​​​​$[•]​​
Ameris and Fidelity shareholders are advised to obtain current market quotations for Ameris common stock and Fidelity common stock. The market price of Ameris common stock and Fidelity common stock will fluctuate between the date of this joint proxy statement/prospectus and the date of completion of the merger. No assurance can be given concerning the market price of Fidelity common stock before the effective time or Ameris common stock before or after the effective time. Changes in the market price of Ameris common stock prior to the completion of the merger will affect the market value of the merger consideration that Fidelity shareholders receive upon completion of the merger.
156
TABLE OF CONTENTS​​​
LEGAL MATTERS
Rogers & Hardin LLP and Igler and Pearlman, P.A. will deliver, prior to the effective time of the merger their opinions to Ameris and Atlantic, respectively, as to certain United States federal income tax consequences of the merger. See the section entitled “Material U.S. Federal Income Tax Consequences.” The validity of the shares of Ameris common stock to be issued in connection with the merger will be passed upon for Ameris by Rogers & Hardin LLP. Certain U.S. federal income tax matters relating to the merger will also be passed upon for Ameris by Rogers & Hardin LLP and for Fidelity by Wachtell, Lipton, Rosen & Katz.
EXPERTS
The consolidated financial statements of Ameris Bancorp as of December 31, 2016, and 2015, and for each of the three years in the period ended December 31, 2016, and the effectiveness of Ameris Bancorp’s internal control over financial reporting as of December 31, 2016, have been audited by Crowe Horwath LLP, an independent registered public accounting firm, as set forthhas audited Ameris Bancorp and subsidiaries’ consolidated financial statements included in its report appearing in Ameris’s Annual Report on Form 10-K for the year ended December 31, 2016, and incorporated into this proxy statement/prospectus by reference. Such consolidated financial statements have been so incorporated in reliance upon the report of such firm given upon its authority as experts in accounting and auditing.
The consolidated financial statements of Atlantic Coast Financial Corporation as of December 31, 2016, and for the year ended December 31, 2016,2017, and the effectiveness of Atlantic Coast Financial Corporation’sAmeris Bancorp and subsidiaries’ internal control over financial reporting as of December 31, 2016, have been audited by Dixon Hughes Goodman LLP, an independent registered public accounting firm,2017, as set forth in its reports, appearingwhich are incorporated by reference into this joint proxy statement/prospectus. Ameris Bancorp and subsidiaries’ financial statements as of December 31, 2017 are incorporated by reference in Atlantic Coast Financial Corporation’sreliance on Crowe LLP’s reports, given on its authority as an expert in accounting and auditing.
Ernst & Young LLP, independent registered public accounting firm, has audited Fidelity Southern Corporation and subsidiaries’ consolidated financial statements included in its Annual Report on Form 10-K for the year ended December 31, 2016,2017, and the effectiveness of Fidelity Southern Corporation and subsidiaries’ internal control over financial reporting as of December 31, 2017, as set forth in their reports, which are incorporated by reference into this joint proxy statement/prospectus by reference. Such consolidatedprospectus. Fidelity Southern Corporation and subsidiaries’ financial statements have been soand management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2017 are incorporated by reference in reliance upon the report of such firmon Ernst & Young LLP’s reports, given upon itson their authority as experts in accounting and auditing.
TheCrowe LLP, independent auditors, has audited Hamilton State Bancshares, Inc. and subsidiaries’ consolidated financial statements of Atlantic Coast Financial Corporation as of December 31, 2015, and for each of the two yearsincluded in the period ended December 31, 2015, have been audited by RSM US LLP, an independent registered public accounting firm, as stated in their report thereon which report expresses an unqualified opinion appearing in Atlantic Coast Financial Corporation’s AnnualAmeris’s Amendment No. 1 to Current Report on Form 10-K for8-K, filed with the year ended December 31, 2016, andSEC on September 12, 2018, as set forth in its report, which is incorporated by reference into this joint proxy statement/prospectus by reference. Such consolidatedprospectus. Hamilton State Bancshares, Inc. and subsidiaries’ financial statements have been soare incorporated by reference in reliance upon the 2015on Crowe LLP’s report, of such firm given uponon its authority as expertsan expert in accounting and auditing.
FUTURE ATLANTIC STOCKHOLDER PROPOSALS
Advanced Notice of Business to be Conducted at an Atlantic Annual Meeting
Atlantic’s bylaws provide an advance notice procedure for stockholder proposals and nominations for director to be brought before an annual meeting of stockholders of Atlantic. In order for a stockholder to properly bring business before an annual meeting, or to propose a nominee for director, Atlantic’s Corporate Secretary must receive written notice at Atlantic’s principal executive office not less than 80 days nor more than 90 days prior to date of the annual meeting; provided, however, that in the event that less than 90 days’ notice or prior public disclosure of the date of the annual meeting is provided to stockholders, then, to be timely, written notice by the stockholder must be received not later than the tenth day following the day on which notice of the meeting was mailed to stockholders or public announcement of the date of such annual meeting was made. A stockholder may submit a stockholder proposal and/or nominate someone for director if the stockholder is: (i) a stockholder of record on the date such stockholder gives the notice described herein and on the record date for the determination of stockholders entitled to vote at such annual meeting; and (ii) complies with the notice procedures described herein and in Atlantic’s bylaws.
The notice with respect to stockholder proposals that are not nominations for director must set forth as to each matter such stockholder proposes to bring before the annual meeting: (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting; (ii) the name and address of such stockholder as they appear on Atlantic’s books and of the beneficial owner, if any, on whose behalf the proposal is made; (iii) the class or series and number of shares of Atlantic capital stock which are owned beneficially or of record by such stockholder and such
99
TABLE OF CONTENTS
beneficial owner; (iv) a description of all arrangements or understandings between such stockholder and any other person(s) (including their names) in connection with the proposal of such business by such stockholder and any material interest of such stockholder in such business; and (v) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting. Any business proposed to be brought before an annual meeting by a stockholder must be a proper matter for action by stockholders.
The notice with respect to director nominations must include: (i) as to each individual whom the stockholder proposes to nominate for election as a director, all information relating to such person that would indicate such person’s qualification to serve on the board of directors of Atlantic, including an affidavit that such person would not be disqualified under the provisions of Article 2, Section 12 of Atlantic’s bylaws and all other information relating to such individual that is required to be disclosed in connection with solicitations of proxies for election of directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act or any successor rule or regulation; and (ii) as to the stockholder giving the notice, the name and address of such stockholder as they appear on Atlantic’s books and of the beneficial owner, if any, on whose behalf the nomination is made; the class or series and number of shares of Atlantic capital stock which are owned beneficially or of record by such stockholder and such beneficial owner; a description of all arrangements or understandings between such stockholder and each proposed nominee and any other person(s) (including their names) pursuant to which the nomination(s) are to be made by such stockholder; a representation that such stockholder intends to appear in person or by proxy at the meeting to nominate the person(s) named in its notice; and any other information relating to such stockholder that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Regulation 14A under the Exchange Act or any successor rule or regulation. Such notice must be accompanied by a written consent of each proposed nominee to be named as a nominee and to serve as a director, if elected.
Nothing in this proxy statement/prospectus shall be deemed to require Atlantic to include in its proxy statement and proxy relating to an annual meeting any stockholder proposal that does not meet all of the requirements for inclusion established by the SEC in effect at the time such proposal is received.
Atlantic intends to hold an annual meeting during the year ending December 31, 2018, only if the merger is not completed. If the merger is not completed, Atlantic’s 2018 Annual Meeting of Stockholders is expected to be held in the third quarter of 2018. Accordingly, advance written notice for stockholder proposals and nominations for director, to be brought before that annual meeting must be received by Atlantic’s Corporate Secretary no earlier than 80 days and no later than 90 days prior to such meeting. However, if less than 90 days’ notice or prior public disclosure of the date of such meeting is given to stockholders, any such notice must be delivered or mailed to Atlantic’s Corporate Secretary not later than the 10th day after the notice or prior public disclosure of the meeting date. If notice is received outside of these dates, it will be considered untimely, and we will not be required to present the matter at the stockholders meeting.
Atlantic Stockholder Proposals
In order to be eligible for inclusion in Atlantic’s proxy materials for its 2018 Annual Meeting of Stockholders, any stockholder proposal to take action at such meeting must have been received at Atlantic’s principal executive office, 4655 Salisbury Road, Suite 110, Jacksonville, Florida 32256, Attention: Corporate Secretary, no later than [•]. Any such proposals will need to be in writing and shall be subject to the requirements of the proxy rules adopted under the Exchange Act.
100157
TABLE OF CONTENTS​
CERTAIN DOCUMENTS INCORPORATED BY REFERENCEDEADLINES FOR SUBMITTING SHAREHOLDER PROPOSALS
Ameris
Ameris held its 2018 annual meeting of shareholders on May 15, 2018 and began mailing its proxy materials for such meeting on or about April 2, 2018.
In order to present a proposal for inclusion in Ameris’s proxy materials pursuant to Rule 14a-8 of the Exchange Act, an Ameris shareholder must submit his or her proposal to the Company at its principal executive offices located at 310 First Street, S.E., Moultrie, Georgia 31768, directed to the attention of the Corporate Secretary. Such proposals were required to be received by Ameris on or before December 3, 2018 to be eligible for inclusion in Ameris’s proxy materials for Ameris’s 2019 annual meeting of shareholders. However, if Ameris’s 2019 annual meeting of shareholders is held on a date more than thirty calendar days from May 15, 2019, such proposals must instead be received by a reasonable time before Ameris begins to print and mail its proxy materials for such meeting. Upon timely receipt of any such proposal, Ameris determines whether or not to include such proposal in its proxy materials in accordance with applicable rules and regulations governing the solicitation of proxies.
In accordance with Ameris’s bylaws, any Ameris shareholder wishing to nominate a candidate for election to the Ameris board of directors at Ameris’s 2019 annual meeting of shareholders was required to deliver notice of such nomination to the Company at its principal executive offices on or before December 3, 2018. However, if Ameris’s 2019 annual meeting of shareholders is held on a date more than thirty calendar days from May 15, 2019, then Ameris’s bylaws require that such shareholder’s notice be received not later than the close of business on the tenth day following the earlier of: (i) the day on which notice of the date of the forthcoming meeting was mailed or given to shareholders by or on behalf of Ameris; or (ii) the day on which public disclosure of the date of the forthcoming meeting was made by or on behalf of Ameris. In order to nominate a candidate for election to the Ameris board of directors at any shareholder meeting other than an annual meeting of shareholders, the shareholder wishing to make such nomination must provide notice thereof not later than the close of business on the tenth day following the earlier of: (i) the day on which notice of the date of the forthcoming meeting was mailed or given to shareholders by or on behalf of Ameris; or (ii) the day on which public disclosure of the date of the forthcoming meeting was made by or on behalf of Ameris. Any such shareholder notice is required to include specified information set forth in Ameris’s bylaws.
Fidelity
If the merger is completed in the expected timeframe, Fidelity does not expect to hold a 2019 annual meeting of shareholders. However, if the merger is not completed in the expected timeframe, or at all, Fidelity may hold a 2019 annual meeting of shareholders.
As described in Fidelity’s annual meeting proxy statement for the 2018 annual meeting of Fidelity shareholders filed on April 3, 2018, in order to submit shareholder proposals for the 2019 annual meeting of Fidelity shareholders, if one will be held, for inclusion in Fidelity’s annual meeting proxy statement pursuant to Rule 14a-8 under the Exchange Act, materials must be received by Fidelity’s offices at 3490 Piedmont Road NE, Suite 1550, Atlanta, Georgia 30305, Attention: Corporate Secretary, on or before November 22, 2018. Any proposed director nomination by a shareholder must be submitted on or before November 1 immediately preceding the next annual meeting of shareholders.
Proposals must comply with the applicable rules and regulations of the SEC and should be addressed to 3490 Piedmont Road NE, Suite 1550, Atlanta, Georgia 30305, Attention: Corporate Secretary, Fidelity Southern Corporation.
Additional information regarding the procedures to submit a shareholder proposal at the 2019 annual meeting, if one will be held, is included in Fidelity’s proxy statement for its 2018 annual meeting of shareholders, filed on April 3, 2018.
158
TABLE OF CONTENTS​
WHERE YOU CAN FIND MORE INFORMATION
Ameris is filing with the SEC this registration statement under the Securities Act to register the issuance of the shares of Ameris common stock to be issued in connection with the merger. This joint proxy statement/prospectus forms a part of that registration statement and constitutes the prospectus of Ameris in addition to being a proxy statement for Ameris shareholders and Fidelity shareholders. The registration statement, including this joint proxy statement/prospectus and the attached annexes and exhibits, contains additional relevant information about Ameris, including information about the Ameris common stock.
Ameris and Fidelity also file reports, proxy statements and other information with the SEC under the Exchange Act. The SEC also maintains an Internet website that contains reports, proxy statements and other information about issuers, such as Ameris and Fidelity, who file electronically with the SEC. The address of the site is http://www.sec.gov. The reports, proxy statements and other information filed by Ameris with the SEC are also available at Ameris’s website at http://www.amerisbank.com under the tab “Investor Relations,” and then under the heading “SEC Filings.” The reports, proxy statements and other information filed by Fidelity with the SEC are available at Fidelity’s website at http://www.FidelitySouthern.com under the tab “Investor Relations,” and then under the heading “SEC Filings.” The web addresses of the SEC, Ameris and Fidelity are included as inactive textual references only. Except as specifically incorporated by reference into this joint proxy statement/prospectus, information on those web sites is not part of this joint proxy statement/​prospectus.
The SEC allows Ameris and AtlanticFidelity to “incorporateincorporate by reference”reference information into this joint proxy statement/prospectus, whichprospectus. This means that Ameris and AtlanticFidelity can disclose important information to you by referring you to another document filed separately by it with the SEC. The information incorporated by reference is deemedconsidered to be a part of this joint proxy statement/prospectus, except for any information that is superseded by any information that is included directly in this joint proxy statement/prospectus.
This documentjoint proxy statement/prospectus incorporates by reference the documents listed below that Ameris and Fidelity previously filed with the SEC. They contain important information about the companies and their financial condition.
Ameris SEC Filings (File No. 001-13901)​​Period or Date Filed​
Annual Report on Form 10-K​​Year ended December 31, 2017​
Quarterly Report on Form 10-Q​​Quarters ended March, 31, 2018, June 30, 2018 and September 30, 2018​
Current Reports on Form 8-K​​Filed on January 2, 2018, January 19, 2018, January 26, 2018 (with respect to Items 1.01, 1.02 and 3.02 and Exhibits 2.1, 2.2, 99.1, 99.3, 99.4 and 99.5 only), February 6, 2018, April 25, 2018, May 16, 2018, June 6, 2018, July 2, 2018 (and as amended September 12, 2018), July 6, 2018, October 25, 2018, December 17, 2018, and December 20, 2018 (other than those portions of the documents deemed to be furnished and not filed)​
Definitive Proxy Statement on Schedule 14A​​Filed on April 2, 2018​
The description of the Ameris common stock set forth under the caption “Description of Capital Stock” found in Ameris’s Preliminary Prospectus dated as of April 21, 1994, filed as part of Ameris’s Registration Statement on Form SB-2 (Registration No. 33-77930) on April 21, 1994, including any amendment or report filed with the SEC for purposes of updating this description​​​​
159
TABLE OF CONTENTS
Fidelity SEC Filings (File No. 001-34981)​​Period or Date Filed​
Annual Report on Form 10-K​​Year ended December 31, 2017​
Quarterly Report on Form 10-Q​​Quarters ended March, 31, 2018, June 30, 2018 and September 30, 2018​
Current Reports on Form 8-K​​Filed on January 19, 2018, February 16, 2018, March 14, 2018, April 20, 2018, April 27, 2018, July 20, 2018, August 31, 2018, October 19, 2018 December 17, 2018 and January 18, 2019 (other than those portions of the documents deemed to be furnished and not filed)​
Definitive Proxy Statement on Schedule 14A​​Filed on April 3, 2018​
The description of the Fidelity common stock set forth in its registration statement on Form 10 filed on August 27, 1993, including any amendment or report filed with the SEC for purposes of updating this description​​​​
Except where the context otherwise indicates, Ameris has supplied all information contained or incorporated by reference in this joint proxy statement/prospectus relating to Ameris, and Fidelity has supplied all information contained or incorporated by reference relating to Fidelity.
Documents incorporated by reference are available from Ameris and Fidelity without charge, excluding any exhibits to those documents unless the exhibit is specifically incorporated by reference as an exhibit in this joint proxy statement/prospectus. You can obtain documents incorporated by reference into this joint proxy statement/prospectus by requesting them in writing or by telephone from the appropriate company at the following address and phone number:
​
Ameris Bancorp.
310 First Street SE
Moultrie, Georgia 31768
Attention: Corporate Secretary
Telephone: (229) 890-1111
​​
Fidelity Southern Corporation
3490 Piedmont Road, Suite 1550
Atlanta, Georgia 30305
Attention: Corporate Secretary
Telephone: (404) 248-5466
​
Ameris shareholders requesting documents must do so by [•] and Fidelity shareholders requesting documents must do so by [•] to receive them before their respective special meetings. You will not be charged for any of these documents that you request. If you request any incorporated documents from Ameris or Fidelity, then Ameris and Fidelity, respectively, will mail them to you by first class mail, or another equally prompt means, within one business day after receiving your request.
Neither Ameris nor Fidelity has authorized anyone to give any information or make any representation about the merger or the companies that is different from, or in addition to, that contained in this joint proxy statement/prospectus or in any of the materials that have been filed previously withincorporated in this joint proxy statement/​prospectus. Therefore, if anyone does give you information of this sort, you should not rely on it. If you are in a jurisdiction where offers to exchange or sell, or solicitations of offers to exchange or purchase, the SECsecurities offered by Ameris and Atlantic:
Ameris SEC Filings (SEC File Number 001-13901)
•
Annual Report on Form 10-K forthis joint proxy statement/prospectus or the year ended December 31, 2016;
​
•
Quarterly Reports on Form 10-Q forsolicitation of proxies is unlawful, or if you are a person to whom it is unlawful to direct these types of activities, then the quarters ended March 31, 2017, June 30, 2017 and September 30, 2017;
offer presented in this joint proxy statement/​
•
prospectus does not extend to you. The information contained in Ameris’s Definitive Proxy Statement on Schedule 14A filed on April 3, 2017, and specifically incorporated by reference into Ameris’s Annual Report on Form 10-K for the year ended December 31, 2016;
​
•
Current Reports on Form 8-K filed on January 23, 2017, February 8, 2017, March 2, 2017, March 13, 2017, May 16, 2017, July 21, 2017 (Items 5.03 and 9.01 only), October 6, 2017, October 23, 2017, November 17, 2017, December 11, 2017, December 14, 2017, and January 2, 2018;
​
•
The description of the Ameris common stock contained under the caption “Description of Capital Stock” found in Ameris’s Preliminary Prospectus datedthis joint proxy statement/prospectus speaks only as of April 21, 1994, filed as part of Ameris’s Registration Statement on Form SB-2 (Registration No. 33-77930) on April 21, 1994, and any amendments or reports filed for the purpose of updating such description.
​
Atlantic SEC Filings (SEC File Number 001-35072)
•
Annual Report on Form 10-K for the year ended December 31, 2016;
​
•
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2017, June 30, 2017, and September 30, 2017;
​
•
The information contained in Atlantic’s Definitive Proxy Statement on Schedule 14A filed on April 18, 2017, and specifically incorporated by reference into Atlantic’s Annual Report on Form 10-K for the year ended December 31, 2016;
​
•
Current Reports on Form 8-K filed on January 3, 2017, May 23, 2017, and November 17, 2017; and
​
•
The description of the Atlantic common stock contained in Atlantic’s Registration Statement on Form S-1/A (Registration No. 333-191079), filed with the SEC on November 22, 2013, including any amendments or reports filed for the purpose of updating such description.
​
In addition, each of Ameris and Atlantic are incorporating by reference any documents it may file under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this joint proxy statement/​prospectus and prior to the date of the special meeting of Atlantic stockholders provided, however, that neither Ameris nor Atlantic is incorporating by reference any information furnished (but not filed), except as otherwise specified herein.
Ameris and Atlantic file annual, quarterly and special reports, proxy statements and other business and financial information with the SEC. You may obtainunless the information incorporated by reference and any other materials Ameris and Atlantic file with the SEC without charge by following the instructions in the section entitled “Where You Can Find More Information.”specifically indicates that another date applies.
101160
TABLE OF CONTENTS​
APPENDIXANNEX A​
AGREEMENT AND PLAN OF MERGER
by and between
AMERIS BANCORP
and
ATLANTIC COAST FINANCIALFIDELITY SOUTHERN CORPORATION
Dated as of November 16, 2017
A-1December 17, 2018
TABLE OF CONTENTS​​
TABLE OF CONTENTS
​​​Page​
ARTICLE I MERGERDEFINITIONS
​​​​A-7A-1​​
​
1.1
The MergerCertain Definitions
​
​​​​A-1​​
1.2
Other Defined Terms
​
​​​​A-7​​
​
1.2
Merger Consideration
​
​​​​A-8​​
​
1.3
Delivery of the Merger ConsiderationOther Definitional Provisions
​
​​​​A-9​​
ARTICLE II THE MERGER
​​​​A-9​​
1.42.1
The Merger
​
​​​​A-9​​
2.2
The Bank Merger
​
​​​​A-9​​
2.3
Closing
​
​​​​A-9​​
2.4
Effective Time; Effects of the Merger
​
​​​​A-10​​
2.5
Certain Corporate Governance Matters
​
​​​​A-10​​
2.6
Conversion of Securities
​
​​​​A-11​​
​
1.52.7
ArticlesTreatment of Incorporation and Bylaws of AmerisFSC Equity Awards
​
​​​​A-11​​
​
1.62.8
Officers and DirectorsExchange of Ameris
​
​​​​A-11​​
​
1.7
Tax-Free Reorganization
​
​​​​A-11​​
​
1.8
Bank MergerFSC Common Stock
​
​​​​A-12​​
​
1.92.9
Reservation of Right to Revise Structure
​
​​​​A-12​​
​
1.10
Additional Actions
​
​​​​A-12​​
​
ARTICLE II REPRESENTATIONS AND WARRANTIES OF ATLANTIC
​​​​A-12​​
​
2.1
Disclosure Schedule
​
​​​​A-12​​
​
2.2
Corporate Status
​
​​​​A-12​​
​
2.3
Authority; Enforceability
​
​​​​A-13​​
​
2.4
Capital StructureCertain Adjustments
​
​​​​A-14​​
​
2.52.10
Atlantic SubsidiariesTransfer Books; No Further Ownership Rights in FSC Common Stock
​
​​​​A-14​​
2.11
Proxy and Registration Statement
​
​​​​A-14​​
2.12
FSC Shareholder Approval
​
​​​​A-15​​
​
2.62.13
Corporate RecordsABCB Shareholder Approval
​
​​​​A-15A-16​​
​
2.7
Tax Returns; Taxes
​ARTICLE III representations and warranties of FSC
​​​​A-15A-17​​
​
2.83.1
Financial StatementsMaking of Representations and Warranties
​
​​​​A-17​​
​
2.93.2
Disclosure ReportsOrganization
​
​​​​A-17​​
3.3
Authority; Binding Nature
​
​​​​A-18​​
​
2.103.4
Regulatory ReportsNo Conflicts
​
​​​​A-18​​
​
2.113.5
Enforcement ActionsConsents and Approvals
​
​​​​A-18​​
​
2.123.6
AccountsRegulatory Matters
​
​​​​A-19​​
​
2.133.7
Loans; Nonperforming and Classified Assets; AllowanceCapitalization
​
​​​​A-19​​
​
2.143.8
Liabilities
​
​​​​A-19​​
​
2.15
Absence of ChangesDeposits
​
​​​​A-20​​
​
2.163.9
Litigation and ProceedingsFSC SEC Filings
​
​​​​A-20​​
3.10
Financial Statements
​
​​​​A-20​​
3.11
Ordinary Course; Lack of Material Adverse Change
​
​​​​A-21​​
​
2.173.12
Permits; Compliance with LawReorganization
​
​​​​A-21​​
​
2.183.13
Investment Management and Related Activities
​
​​​​A-21​​
​
2.19
EnvironmentalTaxes
​
​​​​A-22​​
​
2.203.14
InsuranceReal Property
​
​​​​A-23​​
​
2.213.15
Trust Business; Administration of Fiduciary AccountsLitigation; Orders
​
​​​​A-23​​
​
2.223.16
Compliance
​
​​​​A-23​​
​
2.233.17
Contracts and CommitmentsLoans
​
​​​​A-23​​
3.18
Regulatory Capital; CRA Compliance
​
​​​​A-24​​
​
2.243.19
Licenses; Intellectual PropertyInvestment Securities and Commodities
​
​​​​A-24A-25​​
​
2.253.20
Personal PropertyDerivative Transactions
​
​​​​A-24A-25​​
A-i
TABLE OF CONTENTS​
2.26
Atlantic Leases
​
​​​​A-24​Page​
​
2.273.21
RealIntellectual Property
​
​​​​A-25​​
​
2.283.22
Employee BenefitsEnvironmental Matters
​
​​​​A-25​​
​
2.293.23
Certain Contracts
​
​​​​A-26​​
3.24
Employee Benefit Matters
​
​​​​A-26​​
3.25
Labor Relations; Employment and Labor Matters
​
​​​​A-27​​
​
2.303.26
Related-Party Transactions
​
​​​​A-27​​
3.27
Insurance
​
​​​​A-28​​
​
2.313.28
Approvals, Consents and FilingsNo Investment Advisor
​
​​​​A-28​​
​
2.323.29
Absence of BrokersInformation Security
​
​​​​A-28​​
A-2
TABLE OF CONTENTS​
​
2.333.30
Brokers; Fairness Opinion
​
​​​​A-28​​
​
2.343.31
Takeover Laws and ProvisionsInformation Supplied
​
​​​​A-28​​
​
2.353.32
Information SuppliedNo Other Representations or Warranties
​
​​​​A-28​​
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF ABCB
​​​​A-29​​
4.1
Making of Representations and Warranties
​
​​​​A-29​​
​
ARTICLE III   REPRESENTATIONS AND WARRANTIES OF AMERIS
​​​​A-29​​
​
3.14.2
Corporate StatusOrganization
​
​​​​A-29​​
​
3.24.3
Authority; EnforceabilityBinding Nature
​
​​​​A-29​​
​
3.34.4
Capital StructureNo Conflicts
​
​​​​A-30​​
​
3.44.5
Financial StatementsConsents and Approvals
​
​​​​A-30​​
​
3.54.6
Disclosure ReportsRegulatory Matters
​
​​​​A-30​​
​
3.64.7
Regulatory ReportsCapitalization
​
​​​​A-31​​
​
3.74.8
Enforcement ActionsDeposits
​
​​​​A-31​​
​
3.84.9
Absence of ChangesABCB SEC Filings
​
​​​​A-31​​
​
3.94.10
Litigation and Proceedings
​
​​​​A-31​​
​
3.10
Compliance
​
​​​​A-31​​
​
3.11
Approvals, Consents and FilingsFinancial Statements
​
​​​​A-32​​
​
3.124.11
AbsenceOrdinary Course; Lack of Brokers
​
​​​​A-32​​
​
3.13
Tax Returns; Taxes
​
​​​​A-32​​
​
3.14
Financing
​
​​​​A-32​​
​
3.15
Information Supplied
​
​​​​A-32​​
​
ARTICLE IV   CONDUCT OF BUSINESS OF ATLANTIC PENDING CLOSING
​​​​A-33​​
​
4.1
Conduct of BusinessMaterial Adverse Change
​
​​​​A-33​​
​
4.24.12
Maintenance of PropertiesReorganization
​
​​​​A-33​​
​
4.34.13
InsuranceTaxes
​
​​​​A-33​​
​
4.44.14
Capital Structure
​
​​​​A-33​​
​
4.5
Dividends
​
​​​​A-33​​
​
4.6
Amendment of Articles of Incorporation or Bylaws; Corporate Existence
​
​​​​A-33​​
​
4.7
No Acquisitions
​
​​​​A-33​​
​
4.8
No Real Estate Acquisitions or Dispositions
​
​​​​A-33​​
​
4.9
Loans
​
​​​​A-33​​
​
4.10
AllowanceProperty
​
​​​​A-34​​
​
4.114.15
Banking ArrangementsLitigation; Orders
​
​​​​A-34​​
​
4.124.16
Atlantic OfficesCompliance
​
​​​​A-34​​
​
4.13
Contracts
​
​​​​A-34​​
​
4.14
Books and Records
​
​​​​A-34��​
​
4.15
Taxes and Tax Returns
​
​​​​A-34​​
​
4.16
Advice of Changes
​
​​​​A-34​​
​
4.17
Reports
​
​​​​A-34​​
​
4.18
Benefit Plans and Programs; Severance or Termination Payments
​
​​​​A-34​​
​
4.19
Limitation on Discussion with Others
​
​​​​A-12​​
​
ARTICLE V   ADDITIONAL AGREEMENTS
​​​​A-35​​
​
5.1
Registration and Listing of Ameris Common StockLoans
​
​​​​A-35​​
​
5.24.18
Meeting of Atlantic StockholdersInvestment Securities and Commodities
​
​​​​A-35​​
4.19
Derivative Transactions
​
​​​​A-36​​
​
5.34.20
Access to Properties, Books and RecordsRegulatory Capital; CRA Compliance
​
​​​​A-36​​
4.21
Intellectual Property
​
​​​​A-36​​
4.22
Environmental Matters
​
​​​​A-36​​
4.23
Certain Contracts
​
​​​​A-36​​
4.24
Employee Benefit Matters
​
​​​​A-37​​
​
5.44.25
Confidentiality
​
​​​​A-37​​
A-3
TABLE OF CONTENTS​
​
5.5
CooperationLabor Relations; Employment Matters
​
​​​​A-38​​
​
5.64.26
ExpensesRelated-Party Transactions
​
​​​​A-38​​
​
5.74.27
Preservation of Business and GoodwillInsurance
​
​​​​A-38​​
A-ii
TABLE OF CONTENTS​
​​​Page​
4.28
Information Security
​
​​​​A-38​​
​
5.84.29
Approvals and ConsentsBrokers; Fairness Opinion
​
​​​​A-38​​
​
5.94.30
Press Releases
​
​​​​A-38​​
​
5.10
Employee Benefits and AgreementsInformation Supplied
​
​​​​A-39​​
​
5.114.31
Directors’ and Officers’ Tail CoverageNo Other Representations or Warranties
​
​​​​A-40A-39​​
ARTICLE V covenants
​​​​A-39​​
5.125.1
IndemnificationConduct of Business of FSC
​
​​​​A-40A-39​​
​
5.135.2
Certain LitigationConduct of Business of ABCB
​
​​​​A-41A-42​​
​
5.145.3
Approvals and Filings
​
​​​​A-43​​
5.4
Access; Current Information Systems
​
​​​​A-44​​
5.5
Notification of Certain Changes
​
​​​​A-44​​
5.6
Public Announcements
​
​​​​A-45​​
5.7
Employee Benefit Matters
​
​​​​A-45​​
5.8
No Solicitation of Transaction by FSC
​
​​​​A-46​​
5.9
Indemnification; Directors’ and Officers’ Insurance
​
​​​​A-47​​
5.10
Efforts to Consummate
​
​​​​A-48​​
5.11
Data Conversion
​
​​​​A-41A-48​​
​
5.155.12
No Control of Other Party’s Business
​
​​​​A-42A-48​​
​
5.165.13
Director ResignationsTax Matters
​
​​​​A-42A-48​​
​
5.175.14
Restrictive Covenants AgreementsNasdaq Listing
​
​​​​A-42A-49​​
​
ARTICLE VI   CONDITIONS PRECEDENT5.15
Litigation and Claims
​
​​​​A-42A-49​​
5.16
Trust Preferred Securities
​
​​​​A-49​​
5.17
Exemption from Liability Under Section 16(b)
​
​​​​A-49​​
5.18
Takeover Statutes
​
​​​​A-50​​
ARTICLE VI conditions to close
​​​​A-50​​
6.1
Conditions to Each Party’s Obligations
​
​​​​A-42A-50​​
​
6.2
Conditions to Obligations of AmerisABCB
​
​​​​A-42A-50​​
​
6.3
Conditions to the Obligations of AtlanticFSC
​
​​​​A-43A-51​​
​
ARTICLE VII TERMINATION
​​​​A-44A-52​​
​
7.1
Material Adverse EffectTermination
​
​​​​A-44A-52​​
​
7.2
Noncompliance
​
​​​​A-44​​
​
7.3
Failure to Disclose
​
​​​​A-45​​
​
7.4
Regulatory Approval
​
​​​​A-45​​
​
7.5
Termination Date
​
​​​​A-45​​
​
7.6
Stockholder Vote
​
​​​​A-45​​
​
7.7
Acquisition Proposal
​
​​​​A-45​​
​
7.8
Ameris Stock Price Decline
​
​​​​A-46​​
​
7.9
Effect of Termination
​
​​​​A-47A-53​​
​
ARTICLE VIII MISCELLANEOUS
​​​​A-47A-54​​
8.1
Nonsurvival of Representations, Warranties and Agreements
​
​​​​A-54​​
8.18.2
Notices
​
​​​​A-47A-54​​
​
8.28.3
Entire Agreement
​
​​​​A-48A-54​​
​
8.38.4
SurvivalAmendments
​
​​​​A-48A-55​​
​
8.48.5
Waiver; AmendmentWaivers
​
​​​​A-48A-55​​
​
8.5
Counterparts
​
​​​​A-49​​
​
8.6
No Third-Party Beneficiaries
​
​​​​A-49​​
​
8.7
Binding Effect; Assignment
​
​​​​A-49A-55​​
​
8.88.7
Governing Law; VenueJurisdiction
​
​​​​A-49A-55​​
​
8.98.8
WAIVER OF JURY TRIALWaiver of Jury Trial
​
​​​​A-49A-55​​
​
8.10
Severability
​
​​​​A-49​​
​
8.118.9
Cumulative Remedies; Specific Performance
​
​​​​A-49A-56​​
A-iii
TABLE OF CONTENTS​
​​​Page​
8.128.10
InterpretationExpenses
​
​​​​A-49A-56​​
8.11
Counterparts
​
​​​​A-56​​
8.12
Severability
​
​​​​A-56​​
Exhibit A –— Form of Bank Plan of Merger and Merger Agreement
Exhibit B –— Form of FSC Voting and Support Agreement
Exhibit C – Form of Director Non-Solicitation Agreement
Exhibit D – Form of Executive Non-Competition Agreement
A-4A-iv
TABLE OF CONTENTS
INDEX OF DEFINED TERMS
Defined Term​​Section​
Acquisition Proposal​​5.2(c)(i)​
Additional Cash Consideration​​7.8​
Adverse Recommendation Change​​5.2(b)​
Agreement​​Preamble​
Allowance​​2.13(d)​
Ameris​​Preamble​
Ameris 401(k) Plan​​5.10(b)​
Ameris Bank​​Recitals​
Ameris Exchange Act Reports​​3.5(a)​
Ameris Ratio​​7.8(a)​
Ameris Registration Statement​​5.1(a)​
Ameris Common Stock​​1.2(a)​
Applicable Law​​2.17(d)​
Articles of Merger​​1.1​
Atlantic​​Preamble​
Atlantic 401(k) Plan​​2.14​
Atlantic Coast Bank​​Recitals​
Atlantic Common Stock​​1.2(b)​
Atlantic Continuing Employees​​5.10(a)​
Atlantic ESOP​​2.28(n)​
Atlantic ESOP Loan​​5.10(d)​
Atlantic Exchange Act Reports​​2.9​
Atlantic Financial Statements​​2.8(a)​
Atlantic Leased Real Properties​​2.27(c)​
Atlantic Leases​​2.26(a)​
Atlantic Loans​​2.13(a)​
Atlantic Plan​​2.28(a)​
Atlantic Plans​​2.28(a)​
Atlantic Proxy Materials​​5.2(a)​
Atlantic Realty​​2.27(a)​
Atlantic Recommendation​​5.2(b)​
Atlantic Reports​​2.10​
Atlantic Restricted Share Award​​1.2(e)​
Atlantic Stock​​2.4(a)​
Atlantic Stock Option​​1.2(d)​
Atlantic Stock Plans​​1.2(d)​
Average Ameris Stock Price​​7.8​
Average Index Price​​7.8​
Bank Merger​​Recitals​
Bank Merger Agreement​​Recitals​
B. Riley FBR​​2.32​
Defined Term​​Section​
Burdensome Regulatory Condition​​5.8​
Business Day​​1.3(b)​
Cancelled Shares​​1.2(b)​
Cash Consideration​​1.2(c)​
Cash-Out Amount​​1.2(d)​
Certificate​​1.2(c)​
Certificate of Merger​​1.1​
Claim​​5.12(a)​
Classified Asset​​4.9​
Closing​​1.4​
Closing Date​​1.4​
Code​​Recitals​
Determination Date​​7.8​
Director Non-Solicitation Agreements​​Recitals​
Disclosure Schedule​​2.1​
DOJ​​2.10​
Effective Time​​1.1​
Employee Benefits​​5.10(a)​
Environmental Law​​2.19(a)​
ERISA​​2.28(b)​
ERISA Affiliate​​2.28(c)​
ERISA Plans​​2.28(b)​
ESOP Termination Date​​5.10(d)​
Exchange Act​​2.8(b)​
Exchange Agent​​1.3(a)​
Exchange Fund​​1.3(a)​
Exchange Ratio​​1.2(c)​
Executive Non-Competition Agreement​​Recitals​
FDIC​​2.10​
Federal Reserve​​2.10​
FOFR​​2.10​
GAAP​​2.3(c)​
GDBF​​3.6​
General Enforceability Exceptions​​2.3(b)​
Governmental Authority​​1.3(e)​
Hazardous Substance​​2.19(f)​
Hovde​​2.32​
Indemnified Party​​5.12(a)​
Index​​7.8​
Index Price​​7.8​
Index Ratio​​7.8(b)​
​
A-5
TABLE OF CONTENTS
Defined Term​​Section​
Information Systems Conversion​​5.14​
IRS​​2.28(b)​
knowledge​​8.12(b)​
Law​​2.17(d)​
Leased Property​​2.26(a)​
Letter of Transmittal​​1.3(b)​
Liens​​2.7(b)​
Mailing Date​​1.3(b)​
Material Adverse Effect​​2.3(c)​
Material Contracts​​2.23​
Maximum Amount​​5.11​
Merger​​Recitals​
Merger Consideration​​1.2(c)​
Merger Consideration Price​​1.2(d)​
MOFR​​2.10​
NASDAQ​​5.1(b)​
NDA​​4.19(b)(iv)​
New Certificates​​1.3(a)​
Notice of Recommendation Change​​5.2(b)​
OCC​​2.10​
Defined Term​​Section​
Per Share Purchase Price​​1.2(c)​
Permits​​2.17(a)​
Person​​1.3(g)​
Preferred Stock​​2.4(a)​
Regulatory Agreement​​2.11​
Required Regulatory Approvals​​5.8​
Requisite Atlantic Stockholder Approval​​6.1(a)​
SEC​​2.7(g)​
Securities Act​​2.9​
Special Meeting​​5.2(a)​
Starting Date​​7.8​
Starting Price​​7.8​
Stock Consideration​​1.2(c)​
Subsidiary​​2.5(b)​
Superior Proposal​​5.2(c)(ii)​
Tax​​2.7(a)​
Tax Returns​​2.7(a)​
Termination Date​​7.5​
Voting Agreement​​Recitals​
​
A-6
TABLE OF CONTENTS​​
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this, dated as of December 17, 2018 (the “Agreement”), is made and entered into as of this 16th day of November, 2017, by and between AMERIS BANCORP, a Georgia corporation (“AmerisABCB”), and ATLANTIC COAST FINANCIALFIDELITY SOUTHERN CORPORATION, a MarylandGeorgia corporation (“AtlanticFSC”).
WITNESSETH:
WHEREAS, the boards of directors of AtlanticFSC and AmerisABCB have determined that it is in the best interests of their respective corporations and stockholdersshareholders to consummate the business combination transaction provided for herein in which AtlanticFSC will, subject to the terms and conditions set forth herein, merge with and into Ameris,ABCB, with AmerisABCB being the surviving entity (the “Merger”);
WHEREAS, it is contemplated that the business combination contemplated herein shall be immediately followed by a merger of Atlantic’s wholly ownedFSC’s banking subsidiary, Atlantic CoastFidelity Bank (“Atlantic Coast BankFidelity”), with and into Ameris’s wholly ownedABCB’s banking subsidiary, Ameris Bank (“Ameris Bank”), with Ameris Bank being the surviving entity (the(such merger, the “Bank Merger,” and such surviving entity referred to herein for the period at and after the effective time of the Bank Merger as the “Surviving Bank”), upon the terms and with the effect set forth in the Bank Plan of Merger and Merger Agreement by and between Atlantic Coast BankFidelity and Ameris, Bank, substantially in the form attached hereto as Exhibit A (the “Bank Merger Agreement”);
WHEREAS, the board of directors of each of AtlanticFSC and AmerisABCB has (i) adopted this Agreement and approved the transactions contemplated by this Agreement, including the Merger, and (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby;
WHEREAS, the board of directors of AtlanticFSC has resolved and agreed, upon the terms and subject to the conditions set forth herein, to recommend that Atlantic’s stockholdersFSC’s shareholders (the “FSC Shareholders”) approve this Agreement;
WHEREAS, the board of directors of ABCB has resolved and agreed, upon the terms and subject to the conditions set forth herein, to recommend that ABCB’s shareholders (the “ABCB Shareholders”) approve the issuance of shares of ABCB Common Stock in connection with the Merger pursuant to this Agreement (the “ABCB Common Stock Issuance”);
WHEREAS, as a material inducement for each of the parties to enter into this Agreement, (i)certain directors of FSC have each of the directors and certain officers of Atlantic has entered into a Voting and Support Agreement with AmerisABCB and AtlanticFSC dated as of the date hereof, the form of which is attached hereto as Exhibit B (the “FSC Voting Agreement”), pursuant to which each such Persondirector, in his or her capacity as an FSC Shareholder, has agreed, among other things, to vote in favor of the approval of this Agreement and the transactions contemplated hereby, (ii) each of the non-employee directors of Atlantic and Atlantic Coast Bank has entered into a Director Non-Solicitation Agreement dated as of the date hereof, the form of which is attached hereto as Exhibit C (the “Director Non-Solicitation Agreements”), and (iii) the Chief Executive Officer of Atlantic and Atlantic Coast Bank has entered into an Executive Non-Competition Agreement dated as of the date hereof, the form of which is attached hereto as Exhibit D (the “Executive Non-Competition Agreement”);hereby; and
WHEREAS, for U.S. federal income tax purposes, it is intended that the Merger shall qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”), and this Agreement is intended to be and is adopted as a plan of reorganization for purposes of Sections 354 and 361 of the Code;
NOW, THEREFORE, for and in consideration of the premisesrepresentations and the mutualwarranties, covenants and agreements, hereinand subject to the conditions contained and other good and valuable consideration, the receipt and adequacy of which as legally sufficient consideration are hereby acknowledged,herein, the parties heretohereby agree as follows:
ARTICLE I
MERGERdefinitions
1.1 1.1The MergerCertain Definitions.   Subject toAs used herein, the following terms and conditions of this Agreement, atshall have the Effective Time, Atlantic shall merge with and into Ameris in accordance with Section 3-102 of the Maryland General Corporation Law and Section 14-2-1107 of the Georgia Business Corporation Code. Upon consummation of the Merger, the separate corporate existence of Atlantic shall cease, and Ameris shall survive and continue to exist as a corporation incorporated under the Laws of the State of Georgia and shall continue under the name “Ameris Bancorp.” The “Effective Time” shall mean the date and time at which the Merger shall be effective, which shall be the later of: (a) the filing of the certificate of merger (the “Certificate of
A-7
TABLE OF CONTENTS​
Merger”) with the Georgia Secretary of State and the articles of merger (the “Articles of Merger”) with the Maryland State Department of Assessments and Taxation pursuant to Section 1.4; and (b) such later date and time to which Ameris and Atlantic shall agree and as may be specified in accordance with the Georgia Business Corporation Code.
1.2Merger Consideration.   Subject to the provisions of this Agreement, at the Effective Time, automatically by virtue of the Merger and without any action on the part of Ameris, Atlantic or the stockholders of either of the foregoing:following meanings:
(a) Each share of Ameris“ABCB Common Stock” means the common stock, $1.00 par value per share, (“Ameris Common Stock”), that is issued and outstanding immediately prior to the Effective Time shall remain outstanding following the Effective Time and shall be unchanged by the Merger.of ABCB.
(b) Each share of Atlantic common stock, $0.01 par value per share (“Atlantic Common Stock”), owned directly by Ameris, Atlantic or any of their respective Subsidiaries (other than shares in trust accounts, managed accounts or other similar accounts for the benefit of customers or shares held as collateral for outstanding debt previously contracted) immediately prior to the Effective Time, and each share of Atlantic Common Stock that is remitted to Atlantic prior to the Effective Time for purposes of repayment of the Atlantic ESOP Loan as contemplated by Section 5.10(d), shall be cancelled and retired at the Effective Time without any conversion thereof, and no payment shall be made with respect thereto. Such cancelled and retired shares of Atlantic Common Stock are referred to collectively as the “Cancelled Shares”.
(c)   Subject to Section 1.2(f), each share of Atlantic Common Stock issued and outstanding immediately prior to the Effective Time (other than treasury stock and the Cancelled Shares) shall become and be converted into the right to receive the following consideration, in each case without interest: (i) an amount of cash equal to $1.39 (the “Cash Consideration”); and (ii) 0.17 validly issued, fully paid and nonassessable shares (the “Exchange Ratio”) of Ameris Common Stock together with cash in lieu of any fractional shares in accordance with the provisions of Section 1.2(f) (the “Stock Consideration”, and together with the Cash Consideration, per share, the “Per Share Purchase Price” and, in the aggregate, as adjusted in accordance with the terms hereof, the “Merger Consideration”). Each certificate previously representing such shares of Atlantic Common Stock (each, a “Certificate”) shall thereafter represent, subject to Section 1.3(d), only the right to receive the Merger Consideration. Any reference herein to “Certificate” shall be deemed, as appropriate, to include reference to book-entry account statements relating to the ownership of shares of Atlantic Common Stock, and it being further understood that provisions herein relating to Certificates shall be interpreted in a manner that appropriately accounts for book-entry shares, including that, in lieu of delivery of a Certificate and a Letter of Transmittal, shares held in book-entry form may be transferred by means of an “agent’s message” to the Exchange Agent or such other evidence of transfer as the Exchange Agent may reasonably request.
(d)   At the Effective Time, each option to acquire shares of Atlantic Common Stock (an “Atlantic Stock Option”) issued pursuant to Atlantic’s equity-based compensation plans identified in Section 2.28(a) of the Disclosure Schedule (the “Atlantic Stock Plans”), whether vested or unvested, that is outstanding as of immediately prior to the Effective Time, shall become fully vested and shall be cancelled and converted automatically into the right to receive a cash payment from Ameris or Ameris Bank (the “Cash-Out Amount”) in an amount equal to the product of: (i) the excess, if any, of the Merger Consideration Price over the exercise price of each such Atlantic Stock Option; and (ii) the number of shares of Atlantic Common Stock subject to such Atlantic Stock Option to the extent not previously exercised. After the Effective Time, any such cancelled Atlantic Stock Option shall no longer be exercisable by the former holder thereof, but shall only entitle the holder to the payment of the Cash-Out Amount, without interest. In the event the exercise price per share of Atlantic Common Stock subject to an Atlantic Stock Option is equal to or greater than the Merger Consideration Price, such Atlantic Stock Option shall be cancelled without consideration and have no further force or effect. For purposes of this Agreement, the term “Merger Consideration PriceABCB Employee Benefit Plan” means the sum of: (x) the Exchange Ratio multiplied by the Average Ameris Stock Price;any plan, agreement or arrangement (including any “employee benefit plan” as defined in Section 3(3) of ERISA) and (y) $1.39.
(e)   At the Effective Time, each award of shares of Atlantic Common Stock subject to vesting, repurchaseany trust or other lapse restriction (an “Atlantic Restricted Share Award”) granted pursuant to the
A-8
TABLE OF CONTENTS​
Atlantic Stock Plans, whether vested or unvested, that is outstanding as of immediately prior to the Effective Time, shall become fully vested and shall be converted automatically into the right to receive the Merger Consideration in respect of each share of Atlantic Common Stock underlying such Atlantic Restricted Share Award. Prior to the Effective Time, Atlantic shall: (i) obtain any necessary consents or make any necessary amendments to the terms of any outstanding Atlantic Restricted Share Awards or Atlantic Stock Plans to give effect to the transactions contemplated by this Section 1.2(e); (ii) take all actions as may be necessary to terminate (and, except as provided in this Section 1.2(e), ensure that neither Atlantic nor Atlantic Coast Bank remains bound by or liable for) any outstanding Atlantic Restricted Share Awards or other rights to acquire Atlantic Common Stock; and (iii) ensure that the Atlantic Stock Plans which allow the grant of Atlantic Restricted Share Awards or other rights to acquire Atlantic Common Stock, if any, will be amended to eliminate the ability to grant any such Atlantic Restricted Share Awards or other rights to acquire Atlantic Common Stock effective as of immediately after the Effective Time. At or as promptly as practicable following the Effective Time (which may be in connection with the payment of the first regular base salary payment due to such holder following the Closing, but in any event shall occur within thirty (30) days after the Effective Time), Ameris or Ameris Bank shall deliver the Merger Consideration to the holders of Atlantic Restricted Share Awards, without interest. Such payments may be reduced by any Taxes withheld pursuant to Section 1.3(g).
(f)   No scrip or fractional share certificates of Ameris Common Stock shall be issued in connection with the Merger, and an outstanding fractional share interest will not entitle the owner thereof to vote, to receive dividends or to have any of the rights of a shareholderfunding medium relating thereto with respect to such fractional interest. In lieu ofwhich ABCB has or may have any fractional interest, there shall be paid in cash, without interest, an amount (computed to the nearest cent) equal to such fraction multiplied by the purchase price per share of Atlantic Common Stock as determined by multiplying: (i) the Exchange Ratio; by (ii) the Average Ameris Stock Price.
(g)   If either party should change the numberliability or whereby ABCB and any of its outstanding shares as a resultAffiliates provides or is obligated to provide any benefit, to any current or former officer, director, employee or individual independent contractor of a stock split, reverse stock split, stock dividend, recapitalization, reclassificationABCB or similar transaction with respect to such shares prior to the Effective Time, then the shares to be issued hereunder to holders of Atlantic Common Stock shall be proportionately and appropriately adjusted; provided, however, that, for the avoidance of doubt, no such adjustment shall be made with regard to Ameris Common Stock if: (i) Ameris issues additional shares of Ameris Common Stock and receives consideration for such shares in a bona fide merger, acquisition or other business combination or third-party transaction or inits Affiliates, including any issuance of securities in a capital-raising transaction; or (ii) Ameris issues stock options, restricted stock or restricted stock units or grants or similar equity awards or Ameris Common Stock upon exercise or vesting of any such grants or awards.
1.3Delivery of the Merger Consideration.
(a)   At or prior to the Effective Time, Ameris shall appoint Computershare Inc. to act as exchange agent (the “Exchange Agent”) and shall deposit, or cause to be deposited, for the benefit of the holders of Atlantic Common Stock, for exchange in accordance with this Section 1.3, through the Exchange Agent: (i) certificates of Ameris Common Stock or, at Ameris’s option, evidence of shares of Ameris Common Stock in book-entry form (collectively, “New Certificates”) to be issued in exchange for the Stock Consideration; and (ii) cash in an amount sufficient to pay (A) the aggregate cash portion of the Merger Consideration and (B) cash sufficient to pay cash in lieu of fractional shares in accordance with Section 1.2(f) (such cash and New Certificates described in the foregoing clauses (i) and (ii), together with any dividends or distributions with respect thereto, being hereinafter referred to as the “Exchange Fund”). Ameris shall, after the Effective Time on the appropriate payment date, if applicable, provide or cause to be provided to the Exchange Agent any dividends or other distributions represented by such deposited shares. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Ameris for Ameris’s benefit pending payment thereof by the Exchange Agent to the holders of Atlantic Common Stock pursuant to this Article I; provided, however, that no investment of such deposited funds directed by Ameris shall relieve Ameris or the Exchange Agent from promptly making the payments required by this Article I, and following any losses from any such investment, Ameris shall promptly provide additional funds to the Exchange Agent, for the benefit ofprofit
A-9A-1
TABLE OF CONTENTS
sharing, “golden parachute,” deferred compensation, incentive compensation, stock option, stock purchase, Code Section 125 cafeteria plan or flexible benefit arrangement, rabbi trust, severance, retention, supplemental income, change in control, fringe benefit, perquisite, pension, retirement, health or insurance plans, agreements or arrangements.
(c) “ABCB Equity Award” means each stock option, stock unit, stock award (including each award of restricted shares), stock appreciation right or other stock-based award granted by ABCB from time to time pursuant to the holders of Atlantic Common Stock,Ameris Bancorp 2014 Omnibus Equity Compensation Plan.
(d) “ABCB Intellectual Property” means the Intellectual Property used or held for use in the amountconduct of the business of ABCB and its Subsidiaries.
(e) “Acquisition Proposal” means (i) a tender or exchange offer, proposal for a merger, consolidation or other business combination involving FSC or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of FSC and its Subsidiaries, or (ii) any proposal or offer to acquire in any manner in a single transaction or series of transactions (A) more than twenty-five percent (25%) of the voting power in FSC or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of FSC and its Subsidiaries, or (B) more than twenty-five percent (25%) of the consolidated assets of FSC and its Subsidiaries, other than, in each case, the transactions contemplated by this Agreement or the Bank Merger Agreement.
(f) “Affiliate” means, with respect to any Person, any other Person that, alone or together with any other Person, directly or indirectly controls, is controlled by or is under common control with, such Person. For the purpose of this definition, “control” (including the terms “controlling,” “controlled by” and “under common control with”), shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such losses,Person, whether through the ownership of voting securities, by contract, agency or otherwise. In addition, references to “controlled Affiliate” shall mean, with respect to any Person, any Affiliate of such Person which additional funds will be held and disbursed in the same manneris controlled by such Person (without regard to any other Affiliates except its Subsidiaries) as funds initially deposited with the Exchange Agent. Ameris shall direct the Exchange Agent to hold the Exchange Fund for the benefit of the former holders of Atlantic Common Stock and to make payments from the Exchange Funddetermined in accordance with this the preceding sentence.
(g) “Article IAffiliated Group. The Exchange Fund shall not be used for” means any purposeaffiliated group within the meaning of Section 1504(a) of the Code or any similar group defined under a similar provision of any Applicable Law.
(h) “Applicable Law(s)” or “Law(s)” means and includes: (i) any statute, decree, constitution, rule, regulation, ordinance, code, requirement, order, judgment, decree, directive or other thanbinding action of or by any Governmental Authority as to fund payments pursuantwhich a party is subject; (ii) any treaty, pact, compact or other legally binding agreement to this Article I, exceptwhich any Governmental Authority is a signatory or party as expressly provided forto which a party is subject; and (iii) any legally binding judicial or administrative interpretation of the application of any Applicable Law described in this Agreement.
(b)   Ameris shall direct the Exchange Agentimmediately preceding clause (i) or (ii) as to mail no later than five (5) Business Days after the Effective Time (the mailing date of such letter of transmittal being referred to hereinwhich a party is subject, in each case as the “Mailing Date”) to each holder of record of Atlantic Common Stockin effect as of the Effective Time: applicable time.
(i) a letter“Average ABCB Closing Stock Price” means the average price of transmittal, which shall specify that delivery shall be effected, and riskABCB Common Stock on Nasdaq as reported by Bloomberg L.P. for the five (5) consecutive full trading days ending at the closing of loss and titletrading on the trading day immediately prior to the holder’s Certificate or Certificates shall pass, only upon delivery of such Certificates (or affidavits of loss in lieu thereof)Closing Date, rounded to the Exchange Agent, and shall otherwise be in such form and have such other provisions as Ameris may reasonably specify (thenearest cent.
(j) “Letter of TransmittalBalance Sheet Date”); and (ii) instructions for effecting the surrender of the Certificates in exchange for payment of the Merger Consideration. Upon the surrender of Certificates (or affidavits of loss in lieu thereof) for cancellation to the Exchange Agent, and delivery of a Letter of Transmittal, duly executed and properly completed, with respect to such Certificates, the record holder of such Certificates shall be entitled to receive in exchange therefor the Merger Consideration to be paid therefor pursuant to this Article I. No interest shall be paid or accrue on any cash payable upon surrender of any Certificate. For purposes of this Agreement, a means December 31, 2017.
(k) “Business Day” ismeans any day other than Saturday, Sunday, a day which is a legal holiday in Florida or Georgia or a day on which commercial banks in Florida or Georgia are authorized or required by Applicable Law to close.
(c)   As of the Effective Time, the stock transfer books of Atlantic shall be closed and thereafter there shall be no further registration of transfers of Atlantic Common Stock on the records of Atlantic. The Merger Consideration paid in accordance with the terms of this (l) “Article ICharter Documents” means with respect to any Atlanticentity, the certificate of formation, certificate of incorporation, articles of organization, articles of incorporation, bylaws, regulations, operating agreement, limited liability company agreement or other organizational document of such entity and any amendments thereto.
A-2
TABLE OF CONTENTS
(m) “COBRA” means Section 4980B of the Code, Part 6 of Subtitle B of Title I of ERISA, and any similar state Law.
(n) “Derivative Transaction” means any swap transaction, option, warrant, forward purchase or sale transaction, futures transaction, cap transaction, floor transaction or collar transaction relating to one or more currencies, commodities, bonds, equity securities, loans, interest rates, catastrophe events, weather-related events, credit-related events or conditions or any indexes, or any other similar transaction (including any option with respect to any of these transactions) or combination of any of these transactions, including collateralized mortgage obligations or other similar instruments or any debt or equity instruments evidencing or embedding any such types of transactions, and any related credit support, collateral or other similar arrangements related to any such transaction or transactions.
(o) “Environmental Law” means all Laws of any Governmental Authority relating to pollution or the protection of the environment, including Laws relating to releases, discharges or disposal of hazardous, toxic or radioactive substances, oils, pollutants or contaminants into the environment or otherwise relating to the distribution, use, treatment, storage, transport or handling of such substances, oils, pollutants or contaminants.
(p) “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
(q) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(r) “FDIC” means the Federal Deposit Insurance Corporation.
(s) “Federal Reserve Board” means the Board of Governors of the Federal Reserve System.
(t) “FSC Common Stock shall be deemed” means the common stock, no par value per share, of FSC.
(u) “FSC Employee Benefit Plan” means any plan, agreement or arrangement (including any “employee benefit plan” as defined in Section 3(3) of ERISA) and any trust or other funding medium relating thereto with respect to which FSC has or may have been paidany liability or whereby FSC and any of its Affiliates provides or is obligated to provide any benefit, to any current or former officer, director, employee or individual independent contractor of FSC or its Affiliates, including any profit sharing, “golden parachute,” deferred compensation, incentive compensation, stock option, stock purchase, Section 125 of the Code cafeteria plan or flexible benefit arrangement, rabbi trust, severance, retention, supplemental income, change in full satisfactioncontrol, fringe benefit, perquisite, pension, retirement, health or insurance plans, agreements or arrangements.
(v) “FSC Incentive Plan(s)” means the Fidelity Southern Corporation Equity Incentive Plan, as amended, and the Fidelity Southern Corporation 2018 Omnibus Incentive Plan.
(w) “FSC Intellectual Property” means the Intellectual Property used or held for use in the conduct of all rights pertaining thereto. Fromthe business of FSC and after the Effective Time, the holdersits Subsidiaries.
(x) “FSC Restricted Stock Award” means each award of shares of AtlanticFSC Common Stock subject to vesting, repurchase or other lapse restriction granted under either of the FSC Incentive Plans, or as an inducement award, that is outstanding immediately prior thereto shall cease to have any rights with respect thereto exceptthe Effective Time.
(y) “FSC Stock Option” means each option granted under either of the FSC Incentive Plans, or as otherwise provided for herein or by Applicable Law.
(d)   No dividends or other distributions with respectan inducement award, to Atlanticacquire shares of FSC Common Stock shall be paid to the holder of any unsurrendered Atlantic Common Stock with respect to the shares of Ameris Common Stock represented thereby, in each case unlessthat is outstanding and until the surrender of each outstanding share of such Atlantic Common Stock in accordance with this Section 1.3. Subject to the effect of applicable abandoned property, escheat or similar Laws, following surrender of any such share of such Atlantic Common Stock in accordance with this Section 1.3, the record holder thereof shall be entitled to receive, without interest: (i) the amount of dividends or other distributions with a record date after the Effective Time theretofore payable with respect to the whole shares of Ameris Common Stock represented by such Atlantic Common Stock and paid prior to such surrender date; and (ii) at the appropriate payment date, the amount of dividends or other distributions payable with respect to shares of Ameris Common Stock represented by such Atlantic Common Stock with a record date after the Effective Time (but before such surrender date) and with a payment date subsequent to the issuance of the Ameris Common Stock issuable with respect to such Atlantic Common Stock.
(e)   At any time following the first anniversary of the Effective Time (or such earlier dateunexercised immediately prior to suchthe Effective Time.
(z) “GAAP” means generally accepted accounting principles in the United States, consistently applied, as in effect from time whento time.
(aa) “GBCC” means the amounts would otherwise escheat to or become propertyGeorgia Business Corporation Code.
(bb) “GDBF” means the Georgia Department of any Governmental Authority), Ameris shall be entitled to require the Exchange Agent to deliver to it any portion of the Exchange Fund (including any interest or investment income received with respect thereto) not disbursed to holders of Atlantic Common Stock,Banking and thereafter such holders shall be entitled to look only to Ameris (subject to abandoned property, escheat or other similar Laws) as general creditors thereof with respect to the Merger Consideration payable upon due surrender of their Certificates and compliance with the procedures set forth in this Section 1.3, without interest. Notwithstanding the foregoing, neither Ameris nor the Exchange Agent shall be liable to any holder of Atlantic Common Stock for Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. For purposes of this Agreement,Finance.
(cc) “Governmental Authority” means any governmental, regulatory or administrative body, agency,
A-10
TABLE OF CONTENTS​​​​
commission, board or authority, including any Regulatory Agency, or any court or judicial authority, to which a party is subject, whether international, national, federal, state or local.
(f)   If
A-3
TABLE OF CONTENTS
(dd) “Hazardous Substance” means: (i) any Certificatematerial, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid, mineral or gas, in each case, whether naturally occurring or man-made, that is hazardous, acutely hazardous, toxic or words of similar import or regulatory effect under Environmental Laws; and (ii) any petroleum or petroleum-derived products, radon, radioactive materials or wastes, asbestos in any form, lead or lead-containing materials, urea formaldehyde foam insulation and polychlorinated biphenyls in concentrations regulated by Environmental Law.
(ee) “Intellectual Property” means trademarks, service marks, brand names, internet domain names, logos, symbols, certification marks, trade dress and other indications of origin, the goodwill associated with the foregoing and registrations in any jurisdiction of, and applications in any jurisdiction to register, the foregoing, including any extension, modification or renewal of any such registration or application; inventions, discoveries and ideas, whether patentable or not, in any jurisdiction; patents, applications for patents (including divisions, continuations, continuations in part and renewal applications), all improvements thereto, and any renewals, extensions or reissues thereof, in any jurisdiction; trade secrets, including processes, technologies, protocols, formulae, prototypes and confidential information and rights in any jurisdiction to limit the use or disclosure thereof by any Person; Software; and registrations or applications for registration of copyrights in any jurisdiction, and any renewals or extensions thereof.
(ff) “Interim Balance Sheet Date” shall have been lost, stolenmean September 30, 2018.
(gg) “IRS” means the Internal Revenue Service.
(hh) “Knowledge” means: (i) with respect to FSC or destroyed,Fidelity, the Exchange Agentactual knowledge of any of the officers of FSC or Fidelity listed on FSC Disclosure Schedule Section 1.1(hh); and (ii) with respect to ABCB or Ameris, the actual knowledge of any of the officers of ABCB or Ameris listed on ABCB Disclosure Schedule Section 1.1(hh).
(ii) “Lien” means any mortgage, lien, pledge, charge, encumbrance, security interest, easement, encroachment or other similar encumbrance or claim.
(jj) “Material Adverse Change” or “Material Adverse Effect” means, with respect to FSC and its Subsidiaries, on the one hand, or ABCB and its Subsidiaries, on the other, any event, change, occurrence, effect or development that has a material adverse effect on (i) the financial condition, results of operations, assets or deposit liabilities, business, property or assets of FSC and its Subsidiaries, taken as applicable, shall issue in exchange therefor upona whole, or ABCB and its Subsidiaries, taken as a whole, as the makingcase may be, or (ii) the ability of an affidavit of that factFSC, on the one hand, or ABCB, on the other, as the case may be, to timely consummate the transactions contemplated by this Agreement or the holder thereof, theBank Merger Consideration into which such shares of Atlantic Common Stock formerly represented thereby were converted pursuant to thisAgreement; Article I; provided,, however, that in the Exchange Agent,case of clause (i) only, a “Material Adverse Change” or Ameris, as applicable, may,“Material Adverse Effect” shall not be deemed to include events, changes, occurrences, effects or developments resulting from or arising out of: (A) changes after the date of this Agreement in its reasonable discretion and as a condition precedentGAAP or regulatory accounting requirements or principles (except to the paymentextent FSC and its Subsidiaries, on the one hand, or ABCB and its Subsidiaries, on the other, as the case may be, are disproportionately affected thereby as compared to other companies in the industry in which such party and its Subsidiaries operate); (B) changes after the date of this Agreement in Laws of general applicability to financial institutions (except to the extent that FSC and its Subsidiaries, on the one hand, or ABCB and its Subsidiaries, on the other, as the case may be, are disproportionately affected thereby as compared to other companies in the industry in which such party and its Subsidiaries operate); (C) changes after the date of this Agreement in global, national or regional political conditions (including the outbreak of war or acts of terrorism) or in economic or market conditions affecting financial institutions generally, including changes in prevailing interest rates, credit availability and liquidity, currency exchange rates and price levels or trading volumes in securities markets (except to the extent that FSC and its Subsidiaries, on the one hand, or ABCB and its Subsidiaries, on the other, as the case may be, are disproportionately affected thereby as compared to other companies in the industry in which such party and its Subsidiaries operate); (D) floods, hurricanes, tornados, earthquakes, fires or other natural disasters; (E) the impact of the public disclosure, pendency or performance of this Agreement or the Bank Merger Consideration, as applicable, requireAgreement or the ownertransactions contemplated hereby or thereby; (F) any failure by FSC or
A-4
TABLE OF CONTENTS
ABCB to meet any internal or published industry analyst projections or forecasts or estimates of revenues or earnings for any period (it being understood and agreed that the facts and circumstances giving rise to such lost, stolen or destroyed Certificate to deliver a customary indemnity agreement or provide a bond in a customary amount.
(g)   Ameris and Ameris Bankfailure that are entitled to deduct and withhold, or cause the Exchange Agent to deduct and withhold,not otherwise excluded from the Merger Consideration and any other amounts otherwise payable pursuant to this Agreement to any Person such amounts, if any, as it is required to deduct and withholddefinition of Material Adverse Change or Material Adverse Effect may be taken into account in determining whether there has been a Material Adverse Change or a Material Adverse Effect); (G) changes in the trading price or trading volume of ABCB Common Stock or the FSC Common Stock; or (H) with respect to FSC and its Subsidiaries, actions taken or omitted to be taken with the makingprior written consent of such payment underABCB or required by this Agreement or the Code. ToBank Merger Agreement, or with respect to ABCB and its Subsidiaries, actions taken or omitted to be taken with the extentprior written consent of FSC or required by this Agreement or the Bank Merger Agreement.
(kk) “Nasdaq” means the Nasdaq Global Select Market.
(ll) “Nondisclosure Agreement” means that amounts are so withheldcertain Nondisclosure Agreement, dated as of October 4, 2018, between ABCB and remitted on a timely basis to the appropriateFSC.
(mm) “Order” means any writ, judgment, injunction, determination, consent, order, decree, stipulation, award or executive order of or by any Governmental Authority applicable to ABCB, FSC or an Affiliate thereof, as the case may be.
(nn) “Permit” means any permit, license, registration, authorization, certificate or approval of or from any Governmental Authority or any Order.
(oo) “Permitted Lien” means (i) Liens for current Taxes and assessments not yet past due; (ii) mechanics’, materialmen’s, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens and similar Liens arising in the ordinary course of business and (iii) other Liens and imperfections of title that do not materially detract from the current value of the property subject thereto or materially interfere with the current use by FSC or on behalfABCB, as the case may be, of Ameris or Ameris Bank, such amounts withheld shall be treated for all purposes of this Agreement as having been paid to such Person in respect of which such deduction and withholding was made. For purposes of this Agreement,the property subject thereto.
(pp) “Person” means any natural person, bank, corporation, association, partnership, limited liability company, organization, business, firm, trust, joint venture, unincorporated organization or any other entity or organization, including a Governmental Authority.
(qq) “1.4Proceeding” means any action, arbitration, audit, hearing, investigation, litigation, suit, subpoena or summons issued, commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Authority or arbitrator.
(rr) “Proxy Statement/Prospectus” means the prospectus in connection with the issuance of shares of ABCB Common Stock pursuant to the Merger, and the joint proxy statement of FSC and ABCB relating to the FSC Shareholders’ Meeting and the ABCB Shareholders’ Meeting, as applicable, including any amendments or supplements thereto.
(ss) “Registration Statement” means the registration statement on Form S-4 to be filed with the SEC by ABCB in connection with the issuance of shares of ABCB Common Stock in the Merger (including the Proxy Statement/Prospectus constituting a part thereof).
(tt) “Regulatory Approval” means the following approvals of, or actions taken with respect to, any Regulatory Agency or Governmental Authority that are required to consummate the transactions contemplated hereby or by the Bank Merger Agreement: (i) the filing of applications, filings and notices, as applicable, with the Nasdaq by ABCB; (ii) the filing of applications, filings and notices, as applicable, with the Federal Reserve Board under the BHCA and approval of such applications, filings and notices; (iii) the filing of applications, filings and notices, as applicable, with the FDIC and the GDBF, as required, in connection with the Merger or the Bank Merger, and approval of such applications, filings and notices; (iv) the filing with the SEC of the Proxy Statement/Prospectus and the Registration Statement by ABCB and the declaration of effectiveness of the Registration Statement by the SEC; (v) the filing of the Certificate of Merger with the Georgia Secretary pursuant to the GBCC and the filing of the applicable certificates or articles of merger for the Bank Merger; and (vi) such filings and approvals, if any, as are required to be made or obtained under the securities or “Blue Sky” Laws of various states in connection with the issuance of shares of ABCB Common Stock pursuant to this Agreement and the approval of the listing of such ABCB Common Stock on the Nasdaq.
A-5
TABLE OF CONTENTS
(uu) “Representatives” means, with respect to any Person, such Person’s directors, managers, officers, employees, agents, consultants, advisors or other representatives, including legal counsel, accountants and financial advisors.
(vv) “Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.
(ww) “SEC” means the United States Securities and Exchange Commission or any successor thereto.
(xx) “Securities Act” means the Securities Act of 1933, as amended.
(yy) “Software” means computer programs, whether in source code or object code form (including any and all software implementation of algorithms, models and methodologies), databases and compilations (including any and all data and collections of data), and all documentation (including user manuals and training materials) related to the foregoing.
(zz) “Subsidiary” means, with respect to any party, any corporation or other entity of which a majority of the capital stock or other ownership interest having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such party. Any reference in this Agreement to a Subsidiary of FSC means, unless the context otherwise requires, any current or former Subsidiary of FSC.
(aaa) “Superior Proposal” means a bona fide written Acquisition Proposal made by a third Person (or group of Persons acting in concert within the meaning of Rule 13d-5 under the Exchange Act) which FSC’s board of directors determines in its good faith judgment to be more favorable, from a financial point of view, to the shareholders of FSC than the Merger after (i) consultation with its financial advisors and outside counsel and (ii) taking into account the likelihood of consummation of such transaction on the terms set forth therein, the anticipated timing of such consummation relative to the anticipated timing of the Merger, all other legal (with the advice of outside counsel), financial (including the financing terms of any such proposal), regulatory and other aspects of such proposal (including any expense reimbursement provisions and conditions to closing and the Person or Persons making such proposal) and any other relevant factors permitted under Applicable Law, and after giving effect to any changes to this Agreement that may be proposed by ABCB in response to such Acquisition Proposal; provided, however, that for purposes of the definition of  “Superior Proposal,” the references to twenty-five percent (25%) in the definition of Acquisition Proposal shall be deemed to be references to fifty percent (50%).
(bbb) “Tax” or “Taxes” means any tax, charge, fee, levy, impost, duty or other assessment, including income, gross receipts, margin, net margin, transfer, premium, excise, employment, sales, use, transfer, recording, license, payroll, franchise, severance, documentary, stamp, occupation, windfall profits, escheat, unclaimed property, abandoned property, environmental, federal highway use, commercial rent, customs duty, capital stock, paid-up capital, profits, withholding, social security (or similar), single business and unemployment, disability, real property, personal property, registration, ad valorem, value added, alternative or add-on minimum, estimated or other tax or governmental fee of any kind whatsoever imposed or required to be withheld by any Governmental Authority, including any interest, penalties and additions imposed thereon or with respect thereto, and including liability for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of applicable Law) as a transferee or successor, by contract, or otherwise.
(ccc) “Taxing Authority” means any Governmental Authority having any responsibility (including administrative responsibility) for (i) the determination, assessment or collection or payment of any Tax, (ii) the administration, implementation or enforcement of or compliance with any Law relating to any Tax or (iii) the determination of any exemption, exclusion or other reduction of any Tax.
(ddd) “Tax Return” means any return, declaration, report, claim for refund or information return or statement relating to any Tax, including any schedule or attachment thereto and including any amendment thereof.
(eee) “Treasury Regulations” means the Income Tax Regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
A-6
TABLE OF CONTENTS​
(fff) “WARN Act” means the federal Worker Adjustment and Retraining Notification Act of 1988, and similar state, local and foreign Laws related to plant closings, relocations, mass layoffs and employment losses.
(ggg) “Well-Capitalized” means “well-capitalized” as that term is defined in the rules and regulations promulgated by the Federal Reserve Board, the FDIC or the GDBF, as applicable.
(hhh) “Willful Breach” shall mean a material breach of, or material failure to perform any of the covenants or other agreements contained in, this Agreement, that is a consequence of an act or failure to act by the breaching or the non-performing party with actual knowledge that such party’s act or failure to act would, or would reasonably be expected to, result in or constitute a breach of or failure of performance under this Agreement.
1.2 Other Defined Terms.   The following capitalized terms have the meanings in the Sections indicated below:
Defined Term​​Section Reference​
ABCB​​Preamble​​
ABCB 401(k) Plan​​5.7(e)​​
ABCB Capitalization Date​​4.7(a)​​
ABCB Common Stock Issuance​​Recitals​​
ABCB Contract​​4.23(a)​​
ABCB Disclosure Schedule​​4.1(a)​​
ABCB Financial Advisor​​4.29​​
ABCB Financial Statements​​4.10(a)​​
ABCB Loans​​4.17(a)​​
ABCB Recommendation​​2.13​​
ABCB Regulatory Agencies​​4.6​​
ABCB Regulatory Agreement​​4.6​​
ABCB SEC Filings​​4.9​​
ABCB Shareholder Approval​​4.3(a)​​
ABCB Shareholders​​Recitals​​
ABCB Shareholders’ Meeting​​2.13​​
ABCB Stock Option​​2.7(a)​​
Acquisition Agreement​​5.8(a)​​
Adverse Recommendation Change​​2.12(b)​​
Agreement​​Preamble​​
Ameris​​Recitals​​
Bank Merger​​Recitals​​
Bank Merger Agreement​​Recitals​​
BHCA​​3.2(a)​​
Book-Entry Shares​​2.8(b)(i)​​
Certificate of Merger​​2.4(a)​​
Certificates​​2.8(b)(i)​​
Chosen Courts​​8.7(b)​​
Claim​​5.9(a)​​
Closing​​2.3​​
Closing Date​​2.3​​
Code​​Recitals​​
Continuing Employee​​5.7(a)​​
A-7
TABLE OF CONTENTS
Defined Term​​Section Reference​
CRA​​3.18​​
Data Conversion​​5.11​​
Discontinued Employee​​5.7(b)​​
Effective Time​​2.4(a)​​
Exchange Agent​​2.8(a)​​
Exchange Agent Agreement​​2.8(a)​​
Exchange Fund​​2.8(a)​​
Exchange Ratio​​2.6(a)​​
Excluded Shares​​2.6(c)​​
Fidelity​​Recitals​​
FSC​​Preamble​​
FSC 401(k) Plan​​5.7(e)​​
FSC Capitalization Date​​3.7(a)​​
FSC Contract​​3.23(a)​​
FSC Disclosure Schedule​​3.1(a)​​
FSC Financial Advisor​​3.30​​
FSC Financial Statements​​3.10(a)​​
FSC Insiders​​5.17​​
FSC Loans​​3.17(a)​​
FSC Recommendation​​2.12(a)​​
FSC Regulatory Agencies​​3.6​​
FSC Regulatory Agreement​​3.6​​
FSC SEC Filings​​3.9​​
FSC Shareholder Approval​​3.3(a)​​
FSC Shareholders​​Recitals​​
FSC Shareholders’ Meeting​​2.12(a)​​
FSC Voting Agreement​​Recitals​​
Georgia Secretary​​2.4(a)​​
Indemnitees​​5.9(a)​​
Letter of Transmittal​​2.8(b)(i)​​
Materially Burdensome Regulatory Condition​​5.3(a)​​
Merger​​Recitals​​
Merger Consideration​​2.6(a)​​
Notice of Recommendation Change​​2.12(b)(iii)​​
Premium Cap​​5.9(b)​​
Providing Party​​5.4(a)​​
Regulatory Agencies​​4.6​​
Requesting Party​​5.4(a)​​
Surviving Bank​​Recitals​​
Surviving Corporation​​2.1(a)​​
Takeover Statutes​​3.3(b)​​
Termination Fee​​7.2(b)​​
Transition Plan Year​​5.7(c)​​
Trust Preferred Securities​​5.16​​
A-8
TABLE OF CONTENTS​​​​​
1.3 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the meanings specified herein when used in any certificates or other documents made or delivered pursuant hereto or thereto, unless expressly stated otherwise therein or the context otherwise requires.
(b) The meaning assigned to each term defined herein shall be equally applicable to both the singular and the plural forms of such term, and words denoting any gender shall include all genders. Where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning.
(c) The words “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement. When a reference is made in this Agreement to articles, sections, exhibits or schedules, such reference shall be to an article or section of or exhibit or schedule to this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
(d) The words “include,” “includes” and “including” as used in this Agreement shall be deemed to be followed by the words “without limitation” whether or not such words appear.
(e) The word “or” as used in this Agreement shall not be exclusive.
(f) Any document shall include that document as amended, notated, supplemented or otherwise modified from time to time and includes all exhibits, appendices, schedules, attachments and supplements thereto.
(g) A reference to any statute or to any provision of any statute shall include any amendment thereto, and any modification or re-enactment thereof, and all regulations and statutory instruments issued thereunder or pursuant thereto.
ARTICLE II
THE MERGER
2.1 The Merger.
(a) Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, FSC shall merge with and into ABCB. ABCB shall be the surviving entity in the Merger (referred to herein for the period at and after the Effective Time as the “Surviving Corporation”). The Surviving Corporation shall continue to exist as a Georgia corporation under the name “Ameris Bancorp.” Upon consummation of the Merger, the separate legal existence of FSC shall terminate.
(b) ABCB may at any time change the method of effecting the combination contemplated hereby (including by providing for the merger of FSC with a wholly owned Subsidiary of ABCB) if and to the extent requested by ABCB, and FSC agrees to enter into such amendments to this Agreement as ABCB may reasonably request in order to give effect to such restructuring; provided, however, that no such change or amendment shall (i) alter or change the amount or kind of the Merger Consideration provided for in this Agreement, (ii) adversely affect the Tax treatment of the Merger with respect to the FSC Shareholders or (iii) be reasonably likely to adversely affect or materially delay the receipt of any necessary Regulatory Approvals or the consummation of the transactions contemplated hereby.
2.2 The Bank Merger.   Immediately after the Effective Time, the Bank Merger shall be consummated in accordance with the provisions of applicable federal and state Law. The Bank Merger shall have the effects as set forth under applicable federal and state Law, and the boards of directors of the parties shall approve, and shall cause the boards of directors of Fidelity and Ameris, respectively, to approve the Bank Merger Agreement and cause the Bank Merger Agreement to be executed and delivered promptly following the execution of this Agreement.
2.3 Closing.   The transactions contemplated herein shall be consummatedclosing of the Merger (the “Closing”) shall take place at 10:00 a.m., local time, at the offices of Rogers & Hardin LLP, 2700 International Tower, 229 Peachtree Street, N.E., Atlanta, Georgia 30303, on a date to be specified by the parties, which date shall be no later than five (5) Business Days after satisfaction or waiver of the conditions set forth in ArticleARTICLE VI (other
A-9
TABLE OF CONTENTS​​
than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions), unless another time, place or date, or any or all, are agreed to in writing by the parties hereto. The date on which the Closing occurs is herein referred to herein as the “Closing Date.” On
2.4 Effective Time; Effects of the Merger.
(a) Subject to the terms and conditions of this Agreement, on the Closing Date, Ameristhe Surviving Corporation shall file a certificate of merger complying with the requirements of the GBCC (the “Certificate of Merger”) with the Secretary of State of the State of Georgia (the “Georgia Secretary”). The term “Effective Time” shall mean the date and time upon which the Merger shall be effective, which shall be the later of  (i) the date and time upon which the Certificate of Merger is filed with the Georgia Secretary of State and the Articles of Merger(ii) such later date and time to which ABCB and FSC shall agree and as may be specified in accordance with the Maryland State Department of AssessmentsGBCC.
(b) From and Taxation.
1.5Articles of Incorporation and Bylaws of Ameris.   Atafter the Effective Time, the articlesMerger shall have the effects set forth in the GBCC. Without limiting the generality of incorporationthe foregoing, and subject thereto, at the Effective Time, all the properties, rights, privileges, powers and franchises of Ameris,FSC shall vest in the Surviving Corporation, and all debts, duties and liabilities of FSC shall become the debts, liabilities and duties of the Surviving Corporation.
2.5 Certain Corporate Governance Matters.
(a) The Charter Documents of ABCB, as in effect immediately prior to the Effective Time, shall bebecome and remain the articlesCharter Documents of incorporation of Ameristhe Surviving Corporation until thereafter amended in accordance with the respective terms thereof and Applicable Law.Laws; provided, however, that the bylaws of ABCB in effect on the date of this Agreement shall be amended at or prior to the Effective Time to the effect set forth in ABCB Disclosure Schedule Section 2.5(a).
(b) The boards of directors of ABCB and Ameris shall take all appropriate action so that at and after the Effective Time the respective board of directors of the Surviving Corporation and the Surviving Bank are increased to fourteen (14) members, (x) nine (9) of whom shall be the directors of ABCB and Ameris immediately prior to the Effective Time and (y) five (5) of whom shall be the members of the board of directors of FSC who are set forth on Section 2.5(b) of the FSC Disclosure Schedule (or if, prior to the Effective Time, any such person becomes unable or unwilling to serve in such position, a replacement mutually acceptable to FSC and ABCB), each of whom shall serve as the directors of the Surviving Corporation and the Surviving Bank until their respective successors have been duly elected and qualified, or until their earlier death, resignation or removal from office in accordance with the Charter Documents of the Surviving Corporation and the Surviving Bank, as applicable.
(c) ABCB’s and Ameris’s Board of Directors shall take all appropriate action so that at and after the Effective Time, (i) James B. Miller, Jr. shall serve as Executive Chairman of the Surviving Corporation and the Surviving Bank, (ii) Dennis J. Zember Jr. shall serve as Chief Executive Officer of the Surviving Corporation, (iii) H. Palmer Proctor, Jr. shall serve as President of the Surviving Corporation and Chief Executive Officer of the Surviving Bank and (iv) the other officers of the Surviving Corporation and Surviving Bank, as the case may be, shall be the officers of ABCB and Ameris immediately prior to the Effective Time, in each case until their respective successors are duly appointed and qualified, or until their earlier death, resignation or removal from office in accordance with the Charter Documents of the Surviving Corporation or the Surviving Bank, as the case may be.
(d) At and after the Effective Time, the headquarters and operations center for the Surviving Bank will be located in Atlanta, Georgia.
(e) Commencing no later than the first quarterly dividend payable on shares of ABCB Common Stock following the Effective Time and subject to Applicable Law, the Surviving Corporation will effect an increase in the amount of ABCB’s regular quarterly dividend on shares of ABCB Common Stock to $0.15 per share.
(f) Prior to the Effective Time, ABCB and FSC shall cooperate with one another in good faith to develop a primary corporate and marketing logo to be used by the Surviving Corporation and the Surviving Bank after the Effective Time that incorporates the FSC lion and other agreed upon elements of both parties’ primary logos as of the date of this Agreement.
A-10
TABLE OF CONTENTS​​
2.6 Conversion of Securities.
(a) Merger Consideration.   At the Effective Time, subject to the bylawsother provisions of Ameris,this Agreement, each share of FSC Common Stock issued and outstanding immediately prior to the Effective Time, but excluding any Excluded Shares, shall, by virtue of the Merger, be converted into and shall thereafter represent the right to receive 0.80 shares (the “Exchange Ratio”) of validly issued, fully paid and nonassessable shares of ABCB Common Stock, together with cash in lieu of any fractional shares in accordance with the provisions of Section 2.8(d) (the “Merger Consideration”).
(b) Cancellation of Shares.   Shares of FSC Common Stock, when converted in accordance with Section 2.6(a), shall cease to be outstanding and shall automatically be canceled and cease to exist, and each holder of a Certificate or Book-Entry Share shall cease to have any rights with respect thereto, except the right to receive in respect of each share of FSC Common Stock previously represented thereby (i) the consideration set forth in Section 2.6(a), (ii) any dividends or other distributions in accordance with Section 2.8(c) and (iii) any cash to be paid in lieu of any fractional shares of ABCB Common Stock in accordance with Section 2.8(d), in each case without interest, and in each case to be issued or paid in consideration therefor upon the surrender of such Certificate or Book-Entry Share in accordance with Section 2.8.
(c) Treasury Stock; Excluded Shares.   All shares of FSC Common Stock held by FSC as treasury shares, or by ABCB or by any wholly owned Subsidiary of ABCB or FSC, immediately prior to the Effective Time (other than (i) shares held in effecttrust accounts, managed accounts and the like, or otherwise held in a fiduciary or agency capacity, that are beneficially owned by third parties and (ii) shares held, directly or indirectly, by ABCB, FSC or any wholly owned Subsidiary of ABCB or FSC in respect of a debt previously contracted) shall automatically be canceled and cease to exist as of the Effective Time and no consideration shall be delivered or deliverable therefor (all such shares, the “Excluded Shares”).
(d) No Effect on ABCB Common Stock.   Each share of ABCB Common Stock outstanding immediately prior to the Effective Time shall remain issued and outstanding and shall not be affected by the bylawsconsummation of Ameris until thereafter amended in accordance with Applicable Law.the Merger.
1.62.7 Officers and DirectorsTreatment of AmerisFSC Equity Awards.
(a) FSC Stock Options.   At the Effective Time, each FSC Stock Option, whether or not then exercisable, shall fully vest and immediately be converted into an option to acquire, on the officerssame terms and directorsconditions as were applicable to such FSC Stock Option, the number of Ameris asshares of ABCB Common Stock (rounded down to the nearest whole share), determined by multiplying (i) the number of shares of FSC Common Stock subject to such FSC Stock Option immediately prior to the Effective Time by (ii) the Exchange Ratio, at an exercise price per share of ABCB Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of FSC Common Stock subject to such FSC Stock Option divided by (y) the Exchange Ratio (any such option, an “ABCB Stock Option”).
(b) FSC Restricted Stock Awards.   At the Effective Time, each FSC Restricted Stock Award shall continue asfully vest and immediately be canceled and converted into the officers andright to receive the Merger Consideration with respect to each share of FSC Common Stock underlying such FSC Restricted Stock Award (including a payment in respect of any fractional shares calculated in accordance with Section 2.8(d)). ABCB shall issue the Merger Consideration contemplated by this Section 2.7(b) (together with any accrued but unpaid dividends corresponding to the FSC Restricted Stock Awards that vest in accordance with this Section 2.7(b)), less applicable Tax withholdings, within three (3) Business Days following the Closing Date.
(c) FSC Actions.   At or prior to the Effective Time, the board of directors of Ameris.FSC and its compensation committee, as applicable, shall adopt any resolutions that are necessary to effectuate the provisions of this Section 2.7.
1.7(d) Tax-Free ReorganizationABCB Actions.   On the Closing Date, ABCB shall file a registration statement on Form S-8 (or any successor or other appropriate form) with respect to the shares of ABCB Common Stock issuable pursuant to the ABCB Stock Options contemplated by Section 2.7(a) and shall maintain the
A-11
TABLE OF CONTENTS​
effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such ABCB Stock Options remain outstanding.
2.8 Exchange of FSC Common Stock.
(a) EachExchange Agent.   At or prior to the Closing, ABCB shall deposit, or shall cause to be deposited, with ABCB’s transfer agent or an unrelated bank or trust company reasonably acceptable to FSC (the “Exchange Agent”), for the benefit of Ameristhe holders of shares of FSC Common Stock, for exchange in accordance with this ARTICLE II, through the Exchange Agent, sufficient cash and Atlantic shall use its commercially reasonable effortsABCB Common Stock to causemake all deliveries of cash and ABCB Common Stock as required by this ARTICLE II, including the Merger Consideration, pursuant to qualify asan exchange agent agreement between ABCB and the Exchange Agent in a “reorganization” within the meaning of Section 368(a) of the Code. None of Ameris, Atlantic or their respective Subsidiaries shall: (i) take, or agree to take, any action that wouldform reasonably be expected to prevent or impede the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code; or (ii) fail to take, or agree to fail to take, any action that would reasonably be expected to be necessary to permit the Merger to qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Pursuantacceptable to the foregoing, each of Ameris and Atlanticparties hereto (the “Exchange Agent Agreement”). ABCB agrees to make such commercially reasonable additions or modificationsavailable to the termsExchange Agent, from time to time as needed, cash sufficient to pay any dividends and other distributions pursuant to Section 2.8(c) and to make payments in lieu of fractional shares pursuant to Section 2.8(d). Any cash and ABCB Common Stock deposited with the Exchange Agent (including as payment for any dividends or other distributions in accordance with Section 2.8(c) and fractional shares in accordance with Section 2.8(d)) shall hereinafter be referred to as the “Exchange Fund.” The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be paid for shares of FSC Common Stock pursuant to this Agreement out of the Exchange Fund. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by ABCB, provided that no such investment or losses thereon shall affect the amount of Merger Consideration payable to the holders of shares of FSC Common Stock. Any interest and other income resulting from such investments shall be paid to ABCB. Except as contemplated by this Agreement and the Exchange Agent Agreement, the Exchange Fund shall not be used for any other purpose.
(b) Exchange Procedures.
(i) ABCB shall instruct the Exchange Agent to mail, as promptly as practicable after the Effective Time (and in any event no later than three (3) Business Days after the Effective Time), to each record holder, as of the Effective Time, of an outstanding Certificate or Book-Entry Share that immediately prior to the Effective Time represented shares of FSC Common Stock (A) a letter of transmittal in customary form as directed by ABCB and reasonably acceptable to FSC (which shall specify that delivery shall be effected, and risk of loss and title to the shares of FSC Common Stock shall pass, only upon proper delivery of the corresponding certificates (the “Certificates”) representing such shares to the Exchange Agent or receipt by the Exchange Agent of an “agent’s message” with respect to non-certificated shares represented by book entry (“Book-Entry Shares”)), and (B) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration payable in respect of the shares of FSC Common Stock represented thereby (collectively, the “Letter of Transmittal”).
(ii) Promptly after the Effective Time, upon surrender of Certificates or Book-Entry Shares for cancellation to the Exchange Agent together with, in each case, a properly completed and executed Letter of Transmittal and such other documents as may be required pursuant to the exchange instructions, the holders of such Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor, the Merger Consideration, including any cash payable in lieu of any fractional shares of ABCB Common Stock pursuant to Section 2.8(d). No interest shall be paid or accrued on any Merger Consideration. In the event of a transfer of ownership of shares of FSC Common Stock which is not registered in the transfer records of FSC, the Merger Consideration payable in respect of such shares of FSC Common Stock may be paid to a transferee if the Certificate representing such shares of FSC Common Stock is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and the Person requesting such exchange shall pay to the Exchange Agent in advance any transfer or other Taxes required by reason of the delivery of the Merger Consideration in any name other than that of the registered holder of the Certificate surrendered, or shall establish to the satisfaction of the Exchange Agent that such Taxes have been paid or are not payable.
A-12
TABLE OF CONTENTS
(c) Distributions with Respect to Unexchanged FSC Common Stock.   No dividends or other distributions declared or made with respect to ABCB Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate or Book-Entry Share with respect to the ABCB Common Stock that such holder would be entitled to receive upon surrender of such Certificate or Book-Entry Share and no cash payment in lieu of fractional shares of ABCB Common Stock shall be paid to any such holder until such holder shall surrender such Certificate or Book-Entry Share in accordance with this Section 2.8. Subject to Applicable Law, following surrender of any such Certificate or Book-Entry Share, there shall be paid to such holder of ABCB Common Stock issuable in exchange therefor, without interest, (i) promptly after the time of such surrender, the amount of any cash payable in lieu of fractional shares of ABCB Common Stock to which such holder is entitled pursuant to Section 2.8(d) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such holder’s whole shares of ABCB Common Stock, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to such surrender and a payment date subsequent to such surrender payable with respect to such holder’s whole shares of ABCB Common Stock.
(d) Fractional Shares.   No certificates or scrip or ABCB Common Stock representing fractional shares of ABCB Common Stock or book-entry credit of the same shall be issued upon the surrender for exchange of Certificates or Book-Entry Shares, no dividend or other distribution, stock split or interest shall relate to any such fractional share and such fractional share shall not entitle the owner thereof to vote or to have any rights as a holder of any ABCB Common Stock. Notwithstanding any other provision of this Agreement, as may be reasonably necessary to permiteach holder of shares of FSC Common Stock exchanged in the Merger who would otherwise have been entitled to so qualify.receive a fraction of a share of ABCB Common Stock (after taking into account all Certificates and Book-Entry Shares delivered by such holder) shall receive, in lieu thereof, cash (without interest) in an amount, rounded to the nearest whole cent, equal to the product of  (i) the Average ABCB Closing Stock Price and (ii) the fraction of a share (after taking into account all shares of FSC Common Stock held by such holder at the Effective Time and rounded to three decimal places) of ABCB Common Stock that such holder would otherwise be entitled to receive pursuant to Section 2.6.
(b)   Unless(e) Termination of Exchange Fund.   Any portion of the Exchange Fund that remains undistributed to the holders of FSC Common Stock after one (1) year following the Effective Time shall be delivered to ABCB upon demand and, from and after such delivery to ABCB, any former holders of FSC Common Stock who have not theretofore complied with this ARTICLE II shall thereafter look only to ABCB for the Merger Consideration payable in respect of such shares of FSC Common Stock. Any amounts remaining unclaimed by holders of shares of FSC Common Stock immediately prior to such time as such amounts would otherwise requiredescheat to or become the property of any Governmental Authority shall, to the extent permitted by Applicable Law, eachthereupon become the property of AmerisABCB free and Atlantic: (i)clear of any Liens, claims or interest of any Person previously entitled thereto.
(f) No Liability.   Neither ABCB nor any of ABCB’s Subsidiaries shall reportbe liable to any holder of shares of FSC Common Stock for any shares of ABCB Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official or Governmental Authority in the reasonable belief that such delivery was required pursuant to any abandoned property, escheat or similar Law.
(g) Lost Certificates.   If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed in form and substance acceptable to ABCB and, if required by ABCB, the posting by such Person of a bond, in such reasonable amount as ABCB may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent shall pay in exchange for such lost, stolen or destroyed Certificate the Merger as a “reorganization” within the meaning of Section 368(a)Consideration payable in respect of the Code; (ii) shall not take any Tax reporting position inconsistent withshares of FSC Common Stock represented by such characterization; and (iii) shall properly file with its federal income Tax Returns all information required by Treasury Regulations Section 1.368-3.Certificate.
A-11A-13
TABLE OF CONTENTS​​​​​​
(c)(h) Withholding.   Each of AmerisABCB and Atlanticthe Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of FSC Common Stock such amounts as ABCB or the Exchange Agent is required to deduct and withhold under the Code or any provision of state, local or foreign Tax Law, with respect to the making of such payment. To the extent that amounts are so withheld by ABCB or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of FSC Common Stock in good faith, cooperaterespect of whom such deduction and use its commercially reasonable efforts to: withholding was made by ABCB or the Exchange Agent, as the case may be.
(i) obtain the Tax opinionsBook Entry.   All shares of ABCB Common Stock to be issued in the Merger shall be issued in book-entry form, without physical certificates.
2.9 Certain Adjustments.   If, after the date of this Agreement and at or prior to the Effective Time, the outstanding shares of ABCB Common Stock or FSC Common Stock are changed into a different number of shares or type of securities by its respective Tax counsel underreason of any stock split, stock combination, stock dividend, reclassification, recapitalization or similar transaction with respect to such stock, and the record date therefor shall be prior to the Effective Time, then the Merger Consideration will be proportionately adjusted as necessary to provide to the holders thereof the same economic effect as contemplated by this Agreement prior to such adjustment event.
2.10 Section 6.2(e)Transfer Books; No Further Ownership Rights in FSC Common Stock.   At the Closing Date, the stock transfer books of FSC shall be closed and Section 6.3(e) andthereafter there shall be no further registration of transfers of shares of FSC Common Stock on the records of FSC, except for the cancellation of such shares in connection with the Merger. From and after the Effective Time, the holders of Certificates or Book-Entry Shares that evidenced ownership of shares of FSC Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares, except as otherwise provided for herein or by Applicable Law. If, after the Effective Time, bona fide Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be canceled and exchanged as provided in this ARTICLE II.
2.11 Proxy and Registration Statement.
(a) ABCB and FSC shall promptly prepare the Registration Statement on Form S-4 or other applicable form, which ABCB shall file with the SEC as promptly as reasonably practicable following the date of this Agreement (and in any event no later than sixty (60) days following the date of this Agreement) and which will include the Proxy Statement/Prospectus. Each of ABCB and FSC shall use its reasonable best efforts to have the Registration Statement declared effective under the Securities Act as promptly as reasonably practicable after such filing and to keep the Registration Statement effective as long as necessary to consummate the Merger, the Bank Merger and the other transactions contemplated hereby and by the Bank Merger Agreement. Each of FSC and ABCB will cause the Form S-4;Proxy Statement/Prospectus to be filed with the SEC and (ii) delivermailed to its respective Tax counselthe FSC Shareholders and Tax advisors certificates containing representations and covenantsthe ABCB Shareholders, respectively, as soon as reasonably requested by such counsel or advisorspracticable after the Registration Statement is declared effective under the Securities Act. ABCB shall also take any action required to be taken under any applicable state securities Laws in connection with the renderingissuance and reservation of such opinions or otherwise. Ameris’sABCB Common Stock in the Merger, and Atlantic’s respective Tax counselFSC shall furnish all information concerning FSC and Tax advisors shall be entitled to rely upon such certificates and the representations and covenants contained therein in rendering any such opinions or otherwise.
1.8Bank Merger.   Concurrently with the execution and delivery of this Agreement, Ameris Bank and Atlantic Coast Bank are entering into the Bank Merger Agreement, providing for the consummation of the Bank Merger. The Bank Merger shall not occur prior to the Effective Time.
1.9Reservation of Right to Revise Structure.   Ameris may at any time and without the approval of Atlantic change the method of effecting the business combination contemplated by this Agreement (including by providing for the merger of Atlantic with a wholly owned Subsidiary of Ameris) if and to the extent that it deems such a change to be desirable; provided, however, that no such change shall (a) alter or change the amount or kind of the consideration to be issued to either the stockholders of Atlantic as Merger Consideration or the holders of AtlanticFSC Common Stock, Options, eachor holders of a beneficial interest therein, as currently contemplatedmay be reasonably requested in this Agreement, connection with any such action.
(b) reasonably be expected to materially impedeABCB will advise FSC promptly after it receives oral or delay consummationwritten notice of the Merger, (c) adversely affecttime when the federal income Tax treatmentRegistration Statement has become effective or any supplement or amendment has been filed, the issuance of stockholdersany stop order, the suspension of Atlanticthe qualification of ABCB Common Stock issuable in connection with the Merger for offering or adversely limitsale in any jurisdiction, the initiation or impactthreat of any proceeding for any such purpose, or any oral or written request by the qualificationSEC for amendment of the Merger as a reorganization underProxy Statement/Prospectus or the provisions of Section 368(a) of the Code,Registration Statement or (d) require submission, tocomments thereon and responses thereto or approval of, the stockholders of Atlantic after this Agreement has been approvedrequests by the stockholdersSEC for additional information, and will promptly provide FSC with copies of Atlantic. Inany written communication from the event that Ameris elects to make such a change, Ameris and Atlantic agree to execute appropriate documents to reflect the change.SEC or any state securities commission.
1.10Additional Actions.
A-14
TABLE OF CONTENTS​
(c) If at any time afterprior to the Effective Time Ameris shall considerany information relating to ABCB or be advised that any further deeds, documents, assignments or assurances in lawFSC, or any other acts are necessaryof their respective Affiliates, officers or desirabledirectors, is discovered by ABCB or FSC which should be set forth in an amendment or supplement to (a) vest, perfect or confirm, of record or otherwise, in Ameris its right, title or interest in, to or under any of the rights, propertiesRegistration Statement or assetsthe Proxy Statement/​Prospectus, so that any of Atlanticsuch documents would not include any misstatement of a material fact or (b) otherwise carry out the purposes of this Agreement, then the proper officers and directors of each party to this Agreement and their respective Subsidiaries shall take all such necessary action as may be reasonably requested by Ameris.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ATLANTIC
As an inducement to Ameris to enter into this Agreement and to consummate the transactions contemplated hereby, Atlantic represents and warrants as follows:
2.1Disclosure Schedule.   Atlantic has delivered to Ameris a disclosure schedule (the “Disclosure Schedule”) containing certain information regarding Atlantic as indicated at various places in this Agreement. All information set forth in the Disclosure Schedule or in documents incorporated by reference in the Disclosure Schedule is true, correct and complete, does not omit to state any material fact necessary in order to make the statements therein, in light of the circumstances inunder which they were made, not misleading, the party that discovers such information shall promptly notify the other party hereto and an appropriate amendment or supplement describing such information shall be deemedpromptly filed with the SEC and, to the extent required by Law, disseminated to the FSC Shareholders and the ABCB Shareholders.
2.12 FSC Shareholder Approval.
(a) FSC shall take all action necessary in accordance with Applicable Laws, applicable rules of Nasdaq and FSC’s current Charter Documents to duly give notice of, convene and hold a meeting of the FSC Shareholders (including any adjournment or postponement thereof in accordance with this Agreement, the “FSC Shareholders’ Meeting”), to be held as promptly as practicable after the Registration Statement is declared effective under the Securities Act, for all purposesthe purpose of obtaining the FSC Shareholder Approval. The board of directors of FSC has resolved to recommend to the FSC Shareholders that they approve this Agreement and except to the extent FSC’s board of directors has effected an Adverse Recommendation Change in accordance with the terms of this Agreement, FSC shall, acting through its board of directors, (i) recommend that the FSC Shareholders approve this Agreement (the “FSC Recommendation”), (ii) include the FSC Recommendation in the Proxy Statement/Prospectus and (iii) use reasonable best efforts to solicit from the FSC Shareholders proxies in favor of the approval of this Agreement, including by communicating to the FSC Shareholders the recommendation of the board of directors of FSC that they approve this Agreement and engaging a proxy solicitor reasonably acceptable to ABCB to assist in the solicitation of proxies from FSC Shareholders. FSC may adjourn or postpone the FSC Shareholders’ Meeting (x) to allow time for the filing and dissemination of any supplemental or amended disclosure document that the board of directors of FSC has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under Applicable Law or (y) if as of the time that the FSC Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement/Prospectus) there are insufficient shares of FSC Common Stock represented (either in person or by proxy) to constitute parta quorum necessary to conduct the business of the FSC Shareholders’ Meeting, or if on the date thereof FSC has not received proxies representing a sufficient number of shares of FSC Common Stock necessary to obtain the FSC Shareholder Approval. In the event of such an adjournment or postponement, FSC shall continue to use reasonable best efforts to solicit proxies from the FSC Shareholders in order to obtain the FSC Shareholder Approval, except to the extent FSC’s board of directors has effected an Adverse Recommendation Change in accordance with the terms of this Agreement and otherwise subject to the terms and conditions of this Agreement. Except with the prior approval of ABCB (which shall not be unreasonably withheld, conditioned or delayed), no other matters shall be submitted for the approval of the FSC Shareholders at the FSC Shareholders’ Meeting. FSC shall cooperate with ABCB and use its reasonable best efforts to hold the FSC Shareholders’ Meeting on the same date and at the same time as the ABCB Shareholders’ Meeting.
(b) Neither FSC’s board of directors nor any committee thereof shall (x) except as expressly permitted by this Section 2.12(b), withdraw, qualify or modify, or publicly propose to withdraw, qualify or modify, in a manner adverse to ABCB or any of ABCB’s Subsidiaries, the FSC Recommendation or (y) approve or recommend to the FSC Shareholders, or publicly propose to approve or recommend to the FSC Shareholders, any Acquisition Proposal (each, an “Adverse Recommendation Change”). Notwithstanding the foregoing or any other provision of this Agreement, FSC’s board of directors may at any time prior to the FSC Shareholders’ Meeting (i) effect an Adverse Recommendation Change or (ii) terminate this Agreement to enter into a definitive agreement with respect to a Superior Proposal, if and only if:
(i) FSC’s board of directors determines in good faith, after consultation with its outside legal counsel and independent financial advisor, that it has received an unsolicited, bona fide Acquisition Proposal (that did not result from a breach of Section 5.8) that constitutes, or is reasonably likely to result in, a Superior Proposal and that has not been withdrawn;
A-15
TABLE OF CONTENTS​
(ii) FSC’s board of directors determines in good faith, after consultation with such outside legal counsel, that a failure to take such actions would be reasonably likely to result in a violation of its fiduciary duties to FSC and its shareholders under Applicable Law;
(iii) FSC’s board of directors provides written notice (a “Notice of Recommendation Change”) to ABCB of its receipt of the Acquisition Proposal and its intent to withdraw the FSC Recommendation on the fifth (5th) Business Day following delivery of such notice, which notice shall specify in reasonable detail the material terms and conditions of the Acquisition Proposal (it being understood that any amendment (and each successive amendment) to any financial or other material term of such Acquisition Proposal shall require a new Notice of Recommendation Change, except that the five Business Day period referenced in clauses (iii), (iv) and (v) of this Section 2.12(b) shall be three (3) Business Days);
(iv) after providing such Notice of Recommendation Change, FSC shall negotiate in good faith with ABCB (if requested by ABCB) and provide ABCB reasonable opportunity during the subsequent five (5)-Business Day (or three (3)-Business Day) period(s) to make such changes in the terms and conditions of this Agreement as would enable FSC’s board of directors to proceed without withdrawing the FSC Recommendation; provided, however, that ABCB shall not be required to propose any such changes; and
(v) FSC’s board of directors, following the final such five (5)-Business Day (or three (3)-Business Day) period, again determines in good faith, after consultation with such outside legal counsel and such independent financial advisor, that such Acquisition Proposal would continue to constitute a Superior Proposal if such proposed revisions were to be given effect.
(c) Nothing contained in this Section 2.12 shall prohibit FSC or the board of directors of FSC from complying with Rules 14d-9 and 14e-2 under the Exchange Act or Item 1012(a) of Regulation M-A with respect to an Acquisition Proposal or from making any legally required disclosure to the FSC Shareholders; provided, however, that such Rules (other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) will in no way eliminate or modify the effect that any action pursuant to such Rules would otherwise have under this Agreement.
2.13 ABCB Shareholder Approval.   ABCB shall take all action necessary in accordance with Applicable Laws, applicable rules of Nasdaq and ABCB’s current Charter Documents to duly give notice of, convene and hold a meeting of the ABCB Shareholders (including any adjournment or postponement thereof in accordance with this Agreement, the “ABCB Shareholders’ Meeting”), to be held as promptly as practicable after the Registration Statement is declared effective under the Securities Act, for the purpose of obtaining the ABCB Shareholder Approval. The board of directors of ABCB has resolved to recommend to the ABCB Shareholders that they approve the ABCB Common Stock Issuance and ABCB shall, acting through its board of directors, (i) recommend that the ABCB Shareholders approve the ABCB Common Stock Issuance (the “ABCB Recommendation”), (ii) include the ABCB Recommendation in the Proxy Statement/Prospectus and (iii) use reasonable best efforts to solicit from the ABCB Shareholders proxies in favor of the approval of the ABCB Common Stock Issuance, including by communicating to the ABCB Shareholders the recommendation of the board of directors of ABCB that they approve the ABCB Common Stock Issuance and engaging a proxy solicitor reasonably acceptable to FSC to assist in the solicitation of proxies from ABCB shareholders. ABCB may adjourn or postpone the ABCB Shareholders’ Meeting (x) to allow time for the filing and dissemination of any supplemental or amended disclosure document that the board of directors of ABCB has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under Applicable Law or (y) if as of the time that the ABCB Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement/​Prospectus) there are insufficient shares of ABCB Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the ABCB Shareholders’ Meeting, or if on the date thereof ABCB has not received proxies representing a sufficient number of shares of ABCB Common Stock necessary to obtain the ABCB Shareholder Approval. In the event of such an adjournment or postponement, ABCB shall continue to use reasonable best efforts to solicit proxies from the ABCB Shareholders in order to obtain the ABCB Shareholder Approval, subject to the terms and conditions of
A-16
TABLE OF CONTENTS​​​
this Agreement. Except with the prior approval of FSC (which shall not be unreasonably withheld, conditioned or delayed), no other matters shall be submitted for the approval of the ABCB Shareholders at the ABCB Shareholders’ Meeting. ABCB shall cooperate with FSC and use its reasonable best efforts to hold the ABCB Shareholders’ Meeting on the same date and at the same time as the FSC Shareholders’ Meeting.
ARTICLE III
representations and warranties of Atlantic under thisFSC
3.1 Article IIMaking of Representations and Warranties. The information
(a) On or prior to the date hereof, FSC has delivered to ABCB a schedule (the “FSC Disclosure Schedule”) setting forth, among other things, items the disclosure of which is necessary or appropriate either in response to an express disclosure requirement contained in a provision hereof or as an exception to one or more representations or warranties contained in ARTICLE III or to one or more of its covenants contained in Section 5.1; provided, however, that disclosure of any item in any section or subsection of the Atlantic Exchange Act Reports or theFSC Disclosure Schedule shall be deemed disclosed only with respect to qualify all representations and warranties contained inthe corresponding section or subsection or any other section or subsection of this Article IIAgreement to the extent applicable. Atlantic shall promptly provide Ameris with written notificationthat the relevance of any event, occurrencesuch disclosure to such other section or other information necessary to maintainsubsection is reasonably apparent on its face.
(b) Except as disclosed in the FSC Disclosure Schedule and all other documents and writings furnished to Ameris pursuant to this Agreement as true, correct and completeor in all material respects at all timesany FSC SEC Filings filed by FSC after January 1, 2017 and prior to the date hereof  (but disregarding risk factor disclosures contained under the heading “Risk Factors,” or disclosures of risks set forth in any “forward-looking statements” disclaimer or any other statements that are similarly non-specific or cautionary, predictive or forward-looking in nature), FSC hereby represents and including the Closing.warrants to ABCB as follows.
3.2 2.2Corporate StatusOrganization.   Atlantic
(a) FSC is a Georgia corporation (i) duly organized, validly existing and in good standing under the Laws of the State of Maryland. Atlantic Coast BankGeorgia, (ii) which is a Florida bank holding company duly registered under the Bank Holding Company Act of 1956, as amended (the “BHCA”), (iii) with all requisite corporate power and authority to own or lease and operate its properties and to carry on its business as presently conducted and (iv) duly qualified and in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its activities or the character of the properties it owns or leases make such qualification necessary, except in the case of  (iii) or (iv) where the lack of such corporate power, authority, authorization or qualification has not had and would not reasonably be expected to have a Material Adverse Effect on FSC. True, complete and correct copies of the Charter Documents of FSC, as in effect as of the date of this Agreement, have previously been made available to ABCB.
(b) FSC Disclosure Schedule Section 3.2(b) sets forth a true and complete list of each Subsidiary of FSC. Other than as set forth on FSC Disclosure Schedule Section 3.2(b), there are no corporations, partnerships, limited liability companies, associations or other entities in which FSC owns, directly or indirectly, any equity interest. All outstanding shares or equity interests of FSC’s Subsidiaries are validly issued, fully paid and nonassessable and owned by FSC (or another Subsidiary of FSC) free and clear of any Liens other than Permitted Liens.
(c) Each Subsidiary of FSC that is set forth on FSC Disclosure Schedule Section 3.2(b) (i) is duly organized, validly existing and in good standing under the Laws of the Statejurisdiction of Florida. Atlantic and Atlantic Coast Bank haveits incorporation or formation, as applicable, (ii) with all of the requisite corporate power and authority and are entitled to own or lease their respectiveand operate its properties and assets and to carry on their businessesits business as presently conducted and (iii) duly qualified and in good standing in each jurisdiction in which the places where such propertiesnature of its activities or assets are now owned, leased or operated and such businesses are now conducted.
A-12
TABLE OF CONTENTS​
2.3Authority; Enforceability.
(a)   Subject to receiptthe character of the Required Regulatory Approvals and the approval of Atlantic stockholders, the execution, delivery and performance of this Agreement and the other transactions contemplatedproperties it owns or required in connection herewith will not, with or without the giving of notice or the passage of time, or both:
(i)   violate any provision of Law applicable to Atlantic or any of its Subsidiaries, the violation of which, individually orleases make such qualification necessary, except in the aggregate,case of  (ii) or (iii) where the lack of such corporate power, authority, authorization or qualification has not had and would reasonably be expected to have a Material Adverse Effect;
(ii)   violate any provision of the articles of incorporation or bylaws of Atlantic or the comparable governing documents of any of its Subsidiaries;
(iii)   conflict with or result in a breach of any provision of, or termination of, or constitute a default under, (A) any instrument, license, agreement or commitment to which Atlantic or any of its Subsidiaries is a party, which, individually or in the aggregate, wouldnot reasonably be expected to have a Material Adverse Effect or (B) any Material Contract;on FSC. True, complete and correct copies of the Charter Documents of each Subsidiary of FSC, as in effect as of the date of this Agreement, have previously been made available to ABCB.
(iv)   constitute(d) Fidelity is a violationmember of any order, judgment or decree to which Atlantic or anythe Federal Home Loan Bank of Atlanta.
A-17
TABLE OF CONTENTS​​​
3.3 Authority; Binding Nature.
(a) Each of FSC and its Subsidiaries, is a party, or by which Atlantic or any of its Subsidiaries, or any of their respective assets or properties, is bound, which, individually or into the aggregate, would reasonably be expected to have a Material Adverse Effect; or
(v)   result in the creation or imposition of any Lien, security interest, equity or restriction of any nature whatsoever in favor of any third party upon any assets or properties of Atlantic or any of its Subsidiaries.
(b)   Atlantic and Atlantic Coast Bank each have the fullextent applicable, has all requisite corporate power and authority to enter into and perform this Agreement and the Bank Merger Agreement, to perform its obligations hereunder and thereunder and, subject to the receipt of the FSC Shareholder Approval, to consummate the transactions contemplated by this Agreement and the Bank Merger Agreement. The execution, delivery and performance by FSC of this Agreement and by Fidelity of the Bank Merger Agreement, and the consummation by FSC and each of its Subsidiaries of the transactions contemplated by this Agreement and the Bank Merger Agreement, have been duly and validly approved by the board of directors (or comparable governing body) of FSC and each applicable Subsidiary. Subject to the approval of this Agreement and the transactions contemplated hereby (including the Merger) by the affirmative vote of the holders of at least sixty-six and two-thirds percent (662∕3%) of the issued and outstanding shares of FSC Common Stock entitled to vote (the “FSC Shareholder Approval”) and the approval of the Bank Merger Agreement by FSC as the sole shareholder of Fidelity, no other corporate proceedings on the part of FSC are necessary to authorize this Agreement or to consummate the transactions contemplated hereby or by the Bank Merger Agreement. This Agreement has been, and the Bank Merger Agreement will be, duly executed and delivered by FSC and Fidelity, as applicable, and constitutes or, in the case of the Bank Merger Agreement, will constitute (in each case assuming due authorization, execution and delivery by ABCB and Ameris, as applicable) the legal, valid and binding obligations of FSC and Fidelity enforceable against FSC and Fidelity, as applicable, in accordance with its terms, except as such enforceability may be limited by Applicable Laws related to safety and soundness of insured depository institutions as set forth in 12 U.S.C. §1818(b), the appointment of a conservator or receiver, bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws affecting creditors’ rights and remedies generally and general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(b) FSC and its Subsidiaries have taken all reasonable actions by them in order to exempt this Agreement and the Bank Merger Agreement and the transactions contemplated hereby and thereby. Other thanthereby from the approvalrequirements of any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “anti-greenmail,” “business combination” or other antitakeover Laws of the Atlantic stockholdersState of Georgia (any such Laws, “Takeover Statutes”) to the extent such Takeover Statutes are applicable to the transactions contemplated by this Agreement. FSC and Atlantic Coastits Subsidiaries have taken all action required to be taken by them in order to make this Agreement and the Bank stockholder,Merger Agreement and the transactions contemplated hereby and thereby comply with, and the transactions contemplated hereby and thereby do comply with, the requirements of any provisions of their respective Charter Documents concerning “business combination,” “fair price,” “voting requirement,” “constituency requirement” or other related provisions.
3.4 No Conflicts.   The execution, delivery and performance of this Agreement by FSC and as applicable,of the Bank Merger Agreement by Atlantic and Atlantic Coast BankFidelity, and the consummation by Atlantic and Atlantic Coast Bank of the transactions contemplated hereby and thereby have been dulyby FSC and validly approved by Atlanticits Subsidiaries, including the Merger and Atlantic Coast Bank, including all necessary action by the boards of directors of Atlantic and Atlantic Coast Bank. Other than the approval of the Atlantic stockholders and Atlantic Coast Bank stockholder, no other corporate proceedings are necessary on the part of Atlantic and Atlantic Coast Bank to authorize the execution, delivery and performance of this Agreement and, as applicable, the Bank Merger, Agreement, by Atlanticdo not and Atlantic Coast Bank and the consummation by Atlantic and Atlantic Coast Bankwill not (i) conflict with, or result in a breach or violation of or default under, any terms or conditions of the transactions contemplated herebyCharter Documents of FSC or any of its Subsidiaries or (ii) assuming that the consents and thereby. Assuming this Agreement constitutesapprovals referred to in Section 3.5 hereof are duly obtained, (A) conflict with or violate in any material respect any Applicable Law as to FSC or any of its Subsidiaries, (B) result in any breach of, or constitute a default (or event which with the valid and binding obligationgiving of Ameris, this Agreement constitutes the valid and binding obligationnotice or lapse of Atlantic and is enforceable in accordance with its terms,time, or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation pursuant to, any FSC Contract, except as limited by: (i) Laws relatingset forth on FSC Disclosure Schedule Section 3.4, or (C) result in the creation or imposition of any Lien other than Permitted Liens on any of the assets of FSC or its Subsidiaries except, in the case of (B) and (C), as would not reasonably be expected to bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, fraudulent conveyance, moratorium or other Laws affecting or relating to the rights of creditors generally; or (ii) the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at Law (collectively, the “General Enforceability Exceptions”).
(c)   For purposes of this Agreement, “Material Adverse Effect” means any change, event, occurrence, development, violation, effect or circumstance which,have, either individually or in the aggregate, with respect to Ameris and its Subsidiaries, on the one hand, or Atlantic and its Subsidiaries, on the other: (i) has, or is reasonably likely to have, a material adverse effect on the business, operations, properties, assets, liquidity, deposit liabilities, condition (financial or otherwise) or prospects of such party on a consolidated basis; or (ii) prevents or materially impairs, or would be reasonably likely to prevent or materially impair, the ability of such party to timely consummate the transactions contemplated by this Agreement or the Bank Merger Agreement or to perform its agreements or covenants under this Agreement; provided, however, that, for purposes of the immediately preceding clause (i) only, Material Adverse Effect shall specifically exclude any adverse effect attributable toon FSC.
3.5 Consents and Approvals.   Other than (i) the Regulatory Approvals, (ii) the FSC Shareholder Approval and (iii) such other filings, authorizations, consents, notices or resulting from:approvals as may be set forth on FSC Disclosure Schedule Section 3.5, no consents, approvals, authorizations or other actions by, or filings
A-13A-18
TABLE OF CONTENTS​​
(A)with or notifications to, any change in banking LawsPerson or any Governmental Authority on the part of general applicability (so long as Ameris andFSC or any of its Subsidiaries on the one hand, or Atlantic and its Subsidiaries, on the other, as the case may be, are not disproportionately affected thereby); (B) any changerequired in U.S. generally accepted accounting principles (“GAAP”) or regulatory accounting principles applicable to banks or their holding companies generally (so long as Ameris and its Subsidiaries, on the one hand, or Atlantic and its Subsidiaries, on the other, as the case may be, are not disproportionately affected thereby); (C) any action or omission expressly required by this Agreement or takenconnection with the express prior written consent of the other party to this Agreement; (D) general changes in national economic, monetary, market or financial conditions affecting financial institutions, including changes in prevailing interest rates, inflation, credit markets or capital market conditions (so long as Amerisexecution, delivery and its Subsidiaries, on the one hand, or Atlantic and its Subsidiaries, on the other, as the case may be, are not disproportionately affected thereby); (E) changes in national political conditions, including the outbreak or escalation of acts of terrorism; (F) the public disclosureperformance by FSC of this Agreement or by Fidelity of the Bank Merger Agreement, and the consummation of the transactions contemplated hereby;hereby and thereby.
3.6 Regulatory Matters.   Except as would not reasonably be expected to have, either individually or (G) changes in the trading priceaggregate, a Material Adverse Effect on FSC, FSC and each of its Subsidiaries have timely filed all reports, registrations and statements, together with any amendments required to be made with respect thereto, that it was required to file since January 1, 2016 with, as applicable, (i) the Federal Reserve Board, (ii) the FDIC, (iii) the GDBF and (iv) any other applicable bank regulatory agencies (collectively, the “FSC Regulatory Agencies”), and any other applicable Governmental Authority, and have paid all applicable fees, premiums and assessments due and payable thereto, and each such report, registration and statement, including financial statements, exhibits and schedules thereto, complied with Applicable Law. Neither FSC nor any of its Subsidiaries is subject to any cease-and-desist or trading volumeother formal or informal order or enforcement action issued by, or is a party to any written agreement, consent agreement, operating agreement or memorandum of Ameris Common Stockunderstanding with, or is a party to any commitment letter, regulatory directive or similar undertaking with, or is subject to any capital directive by, or since January 1, 2015 has been ordered to pay any civil money penalty by, or has adopted any board resolutions at the request of, Atlantic Common Stock.
2.4any FSC Regulatory Agency or other Governmental Authority of any kind that currently restricts in any material respect the conduct of its business or that in any material manner relates to its capital adequacy, its ability to pay dividends, its credit or risk management policies, its management or its business (each, an “Capital StructureFSC Regulatory Agreement.
(a)”), nor has FSC or any of its Subsidiaries been advised since January 1, 2015 by any FSC Regulatory Agency or other Governmental Authority that it is considering issuing, initiating, ordering or requesting any such FSC Regulatory Agreement. Except for normal examinations conducted by a FSC Regulatory Agency in the ordinary course of business of FSC and its Subsidiaries, to FSC’s Knowledge, there is no unresolved written violation, criticism, comment or exception by any FSC Regulatory Agency or other Governmental Authority relating to FSC or any of its Subsidiaries, which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on FSC. As of the date hereof, FSC is not aware of this Agreement, Atlantic hasany reason attributable to FSC or Fidelity why all required Regulatory Approvals would not be received on a timely basis without undue delay.
3.7 Capitalization.
(a) The authorized capital stock consisting solely of:of FSC consists only of  (i) 100,000,00050,000,000 shares of AtlanticFSC Common Stock, of which 15,553,70927,298,456 shares (including 277,968 shares granted in respect of FSC Restricted Stock Awards) are issued and outstanding as of December 14, 2018 (the “FSC Capitalization Date”), and (ii) 10,000,000 shares of preferred stock, no par value per share, of which no shares are issued and outstanding as of the FSC Capitalization Date. Such issued and outstanding shares of FSC Common Stock constitute all of the issued and outstanding capital stock of FSC as of the FSC Capitalization Date, and have been duly authorized, validly issued and are fully paid and nonassessable. None of the shares of FSC Common Stock have been issued or disposed of in violation of any preemptive rights of any Person. As of the date hereof  (exclusive of 20,776this Agreement, 916,994 shares of FSC Common Stock were reserved for issuance upon the exercise of outstanding options to acquireFSC Stock Options and 1,224,332 shares of AtlanticFSC Common Stock);Stock were available for future grants of equity awards under the FSC Incentive Plans. Except as disclosed on FSC Disclosure Schedule Section 3.7(a), as of the date of this Agreement, no trust preferred or subordinated debt securities of FSC or any of its Subsidiaries are issued or outstanding, and FSC currently has no election in effect to defer interest payments with respect to any trust preferred securities or related debentures issued by it or any of its Affiliates.
(b) FSC Disclosure Schedule Section 3.7(b) sets forth the following for each grant or award of FSC Stock Options, FSC Restricted Stock Awards or other outstanding rights, plans, options, warrants, calls, conversion rights or other arrangements or commitments that obligate FSC or any of its Subsidiaries to issue or dispose of any of its capital stock or other ownership interests (in each case, to the extent applicable): (i) the name of the grantee; (ii) 25,000,000the date of the grant; (iii) the expiration date; (iv) the vesting schedule; (v) the exercise price; (vi) the number of shares of preferred stock, $0.01 par valueFSC Common Stock, or any other security of FSC or any of its Subsidiaries, subject to such award; and (vii) the number of shares subject to such award that are exercisable as of the date of this Agreement. Except as set forth
A-19
TABLE OF CONTENTS​​​
on FSC Disclosure Schedule Section 3.7(b), all shares of FSC Common Stock and FSC Restricted Stock Awards issuable upon exercise of FSC Stock Options, upon their issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights and will not be issued in violation of preemptive rights or any Law. Each grant of FSC Stock Options was appropriately authorized by the board of directors of FSC or the compensation committee thereof, was made in accordance with the terms of the applicable FSC Incentive Plan and any Applicable Law and has a grant date identical to (or later than) the date on which it was actually granted or awarded. The per share (the “Preferredexercise price of each FSC Stock”, together Option was determined in accordance with the Atlanticapplicable FSC Incentive Plan and was not less than the fair market value of a share of FSC Common Stock on the “applicable date on which the related grant was by its terms to be effective.
(c) Except as disclosed on Atlantic StockFSC Disclosure Schedule Section 3.7(c)”), noneas of the date hereof there are no outstanding (i) rights, plans, options, warrants, calls, conversion rights or any agreements, arrangements or commitments of any kind or character (either firm or conditional) obligating FSC or any of its Affiliates to issue, deliver or sell, or cause to be delivered or sold, any capital stock of FSC or any of its Subsidiaries, or any securities exchangeable for or convertible into the capital stock of FSC or any of its Subsidiaries, (ii) contractual obligations of FSC or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of FSC or any of its Subsidiaries or (iii) proxies, voting agreements, voting trusts, preemptive rights, rights of first refusal, rights of first offer, rights of co-sale or tag-along rights, shareholder agreements or other rights, understandings or arrangements to which areFSC or any of its Subsidiaries is a party regarding the voting or disposition of the shares of FSC Common Stock or capital stock of its Subsidiaries (other than the FSC Voting Agreement). No bonds, debentures, notes or other indebtedness having the right to vote on any matters on which the holders of capital stock may vote have been issued by FSC or any of its Subsidiaries and are outstanding as of the date hereof. All of the issued and outstanding shares of the Atlantic Stock are duly and validly issued, fully paid and nonassessable and were offered, issued and sold in compliance with all Applicable Law. To the knowledge of Atlantic, no Person has any right of rescission or claim for damages under Applicable Laws with respect to the issuance of any shares of the Atlantic Stock previously issued. None of the shares of the Atlantic Stock has been issued in violation of any preemptive or other rights of its respective stockholders.
(b)(d) All of the issued and outstanding shares of capital stock of Atlantic Coast BankFidelity are, on the date of this Agreement, and on the Closing Date will be, held by Atlantic.FSC.
(c)   Except as set forth in Section 2.4(c)(e) No Subsidiary of the Disclosure Schedule, neither Atlantic norFSC owns any of its Subsidiaries has outstanding any options or other securities which are either by their terms or by contract convertible or exchangeable into capital stock of AtlanticFSC except for shares held in a fiduciary capacity or anyin respect of a debt previously contracted.
3.8 Deposits.   The deposit accounts of Fidelity are insured by the FDIC to the fullest extent permitted by Applicable Law, and all premiums and assessments required to be paid in connection therewith have been duly, timely and fully paid. No proceedings for the revocation or termination of such Subsidiary, or any other securities or debt of Atlantic or any such Subsidiary, or any preemptive or similar rights to subscribe fordeposit insurance are pending or, to purchase, or any options or warrants or agreements or understandings for the purchase or the issuance (contingent or otherwise) of, rights to acquire or vest in, or any calls, commitments or claims of any character relating to, its capital stock or securities convertible into its capital stock. Except as set forth inFSC’s Knowledge, threatened.
3.9 Section 2.4(c) of the Disclosure Schedule, neither Atlantic nor any of its Subsidiaries is subject to any obligation (contingent or otherwise) to issue, repurchase or otherwise acquire or retire, or to register, any shares of its capital stock. There are no outstanding or authorized phantom stock, stock appreciation, profit participation or similar rights with respect to any shares of Atlantic Stock.
(d)   Except for restrictions required by applicable securities Laws and as set forth in the Voting Agreement or Section 2.4(d) of the Disclosure Schedule, there is no agreement, arrangement or understanding to which Atlantic is a party restricting or otherwise relating to the transfer of any shares of capital stock of Atlantic.
(e)   All shares of Atlantic Stock or other capital stock, or any other securities or debt, of Atlantic, which have been purchased or redeemed by Atlantic have been purchased or redeemed in accordance with all Applicable Law, including all federal and state securities Laws, and no such purchase or redemption has resulted or will, with the giving of notice or lapse of time, or both, result in a default or acceleration of the maturity of, or otherwise modify, any agreement, note, mortgage, bond, security agreement, loan agreement or other contract or commitment of Atlantic.
(f)   Except as set forth in Section 2.4(f) of the Disclosure Schedule, no Person beneficially owns more than five percent (5%) of the issued and outstanding shares of Atlantic Common Stock.
A-14
TABLE OF CONTENTS​​​
2.5 Atlantic Subsidiaries.
(a)   Except as set forth in Section 2.5(a) of the Disclosure Schedule, Atlantic has no Subsidiaries other than Atlantic Coast Bank, and Atlantic Coast Bank has no Subsidiaries. No Subsidiary of Atlantic has outstanding any securities which are either by their terms or by contract convertible or exchangeable into capital stock of such Subsidiary, or any other securities or debt of such Subsidiary, or any preemptive or similar rights to subscribe for or to purchase, or any options or warrants or agreements or understandings for the purchase or the issuance (contingent or otherwise) of, rights to acquire or vest in, or any calls, commitments or claims of any character relating to, its capital stock or securities convertible into its capital stock.
(b)   For purposes of this Agreement, “Subsidiary” means, with respect to any party, any corporation or other entity of which a majority of the capital stock or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such party.
2.6Corporate RecordsFSC SEC Filings.   The stock recordsFSC has filed (or furnished) all registration statements, prospectuses, forms, reports, definitive proxy statements, schedules and minute books of Atlantic: (a) fully and accurately reflect all issuances, transfers and redemptions of the Atlantic Stock; (b) to Atlantic’s knowledge, correctly show the record addresses and the number of shares of such stock issued and outstanding on the date hereof held by the stockholders of Atlantic; (c) correctly show all material corporate actions taken by the directors and stockholders of Atlantic (including actions taken by consent without a meeting); and (d) contain true and correct copies or originals of the articles of incorporation and all amendments thereto, bylaws as amended and currently in force and the minutes of all meetings or consent actions of its directors and stockholders approved for inclusion by the board of directors. No material resolutions, regulations or bylaws have been passed, enacted, consented to or adopted by such directors or stockholders except those contained in the minute books. All corporate records have been maintained in accordance with all applicable statutory requirements and are materially complete and accurate.
2.7Tax Returns; Taxes.
(a)   As used in this Agreement, the term “Tax” or “Taxes” means: (i) all federal, state, local and foreign income, excise, gross receipts, gross income, ad valorem, profits, gains, property, capital, sales, transfer, use, payroll, employment, severance, withholding, duties, intangibles, franchise, backup withholding and other taxes, charges, levies or like assessments, together with all penalties and additions to tax and interest thereon; and (ii) any liability for Taxes described in clause (a) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law). “Tax Returns” means any report, return (including information return or declaration of estimated Taxes), claim for refund, statement, disclosure or form relating to Taxes filed ordocuments required to be filed with any Governmental Authority, including any schedule or attachment thereto, and including any amendments thereof.
(b)   Each of Atlantic and Atlantic Coast Bank has: (i) duly and timely filed(or furnished) with the appropriate Governmental Authority all Tax Returns required to be filedSEC by it (taking into account anyunder Section 5 of the Securities Act or Sections 13(a), 14 or 15(d) of the Exchange Act, as the case may be, from and after January 1, 2016 (collectively, the “FSC SEC Filings”). Each FSC SEC Filing, as amended or supplemented if applicable, extensions) and all such Tax Returns are true, correct and complete(i) as of its date, or, if amended or supplemented, as of the date of the most recent amendment or supplement thereto, complied in all material respects and were prepared in compliance with all Applicable Laws;the requirements of the Securities Act or the Exchange Act, as the case may be, and (ii) timely paid all Taxes due and owing fromdid not, at the time it (whetherwas filed (or became effective in the case of registration statements), or, not shown due onif amended or supplemented, as of the date of the most recent amendment or supplement thereto, contain any Tax Returns). Neither Atlantic nor Atlantic Coast Bank is currently the beneficiary of any extension of time within which to file any Tax Return. To the knowledge of Atlantic, no claim has ever been made by a Governmental Authority in a jurisdiction where Atlantic and Atlantic Coast Bank do not file Tax Returns that Atlantic or Atlantic Coast Bank is or may be subject to taxation by that jurisdiction. Neither Atlantic nor Atlantic Coast Bank has commenced activities in any jurisdiction which will result in an initial filinguntrue statement of a Tax Return with respectmaterial fact or omit to Taxes imposed bystate a Governmental Authority that it had not previously been required to file in the immediately preceding taxable period. There are no liens, charges, restrictions, encumbrances or claims of any kind (collectively, “Liens”) for Taxes (other than Taxes not yet due and payable) upon any of the assets of Atlantic or Atlantic Coast Bank.
A-15
TABLE OF CONTENTS
(c)   Each of Atlantic and Atlantic Coast Bank has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party, and all Tax Returns (including all IRS Forms W-2 and 1099) required with respect thereto have been properly completed and timely filed with, and supplied to, the appropriate parties.
(d)   Neither Atlantic nor Atlantic Coast Bank has waived any statute of limitations with respect to Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
(e)   The unpaid Taxes of Atlantic and Atlantic Coast Bank: (i) did not, as of December 31, 2016, exceed the reserve for Tax liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the balance sheet contained in the Atlantic Financial Statements; and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Atlantic and Atlantic Coast Bank in filing their Tax Returns.
(f)   No foreign, federal, state or local Tax audits or administrative or judicial Tax proceedings are pending or being conducted with respect to Atlantic or Atlantic Coast Bank. Neither Atlantic nor Atlantic Coast Bank has received from any Governmental Authority (including jurisdictions where Atlantic or Atlantic Coast Bank has not filed Tax Returns) any: (i) notice indicating an intent to open an audit or other review; (ii) request for information related to Tax matters; or (iii) notice of deficiency or proposed adjustment for any amount of Tax proposed, asserted or assessed by any Governmental Authority against Atlantic or Atlantic Coast Bank. No federal, state, local or foreign income Tax Returns filed with respect to Atlantic or Atlantic Coast Bank for taxable periods ended on or after December 31, 2013 have been audited. Atlantic has made available to Ameris complete and accurate copies of all federal income Tax Returns, examination reports and statements of deficiencies assessed against or agreed to by Atlantic or Atlantic Coast Bank filed or received since January 1, 2014. Atlantic has delivered or made available to Ameris the amount of any net operating loss, net capital loss, unused investment or other credit, unused foreign Tax or excess charitable deduction available for use by Atlantic or Atlantic Coast Bank. Except as set forth in Section 2.7(f) of the Disclosure Schedule, there is currently no limitation on the use of the Tax attributes of Atlantic and Atlantic Coast Bank under Sections 269, 382, 383, 384 or 1502 of the Code (and similar provisions of state, local or foreign Tax Law).
(g)   Except as set forth in Section 2.7(g) of the Disclosure Schedule, neither Atlantic nor Atlantic Coast Bank is party to any agreement, contract, arrangement or plan that has resulted or could result, separately or in the aggregate, in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code (or any corresponding provision of state, local or foreign Tax Law) (including any paymentmaterial fact required to be stated therein or necessary in order to make the statements made therein, in connection with the transactions contemplated hereby) or cause the imposition of any excise Tax or penalty under Section 4999light of the Code as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. Neither Atlantic nor Atlantic Coast Bank is party to any agreement, contract, arrangement or plan that has resulted or could result, separately or in the aggregate, in the payment of any amount that willcircumstances under which they were made, not be fully deductible as a result of Section 162(m) of the Code (or any corresponding provision of state, local or foreign Tax Law) (including any payment required to be made in connection with the transactions contemplated hereby). No Atlantic Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code, or otherwise. Atlantic has made available to Ameris preliminary copies of Section 280G calculations (whether or not final), which, to the knowledge of Atlantic, are true, correct and complete, with respect to any disqualified individual who is a “named executive officer” of Atlantic as defined in Item 402 of Regulation S-K of the Securities and Exchange Commission (the “SEC”) in connection with the transactions contemplated hereby.misleading.
(h)   Except for: (i) any customary agreements with customers, vendors, lenders, lessors or the like entered into in the ordinary course of business; or (ii) any agreement or arrangement exclusively between Atlantic and its Subsidiaries, neither Atlantic nor any Subsidiary of Atlantic is a party to or bound by any Tax sharing, allocation or indemnification agreement or arrangement with any other party.
A-16
TABLE OF CONTENTS​
(i)   Neither Atlantic nor Atlantic Coast Bank: (i) is or has ever been a member of an “affiliated group” within the meaning of Section 1504(a) of the Code filing a consolidated federal income Tax Return or member of any an affiliated, consolidated, combined or unitary group with respect to any state, local or foreign Taxes other than the group of which Atlantic is the common parent; or (ii) has any liability for the Taxes of any Person (other than Atlantic and Atlantic Coast Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign Taw Law), as a transferee or successor, by contract, or otherwise.
(j)   Neither Atlantic nor Atlantic Coast Bank has been within the past two (2) years a part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger or the Bank Merger is also a part, a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(k)   Neither Atlantic nor Atlantic Coast Bank has ever been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code.
(l)   Except to the extent shown in the reserve for Tax liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Atlantic Financial Statements, as such reserve is adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Atlantic and Atlantic Coast Bank in filing their Tax Returns, neither Atlantic nor Atlantic Coast Bank will be required to include any item of income in, or to exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting for a taxable period ending on prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date; (iii) intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or foreign Tax Law); (iv) election under Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax Law); (v) installment sale or open transaction disposition made on or prior to the Closing Date; or (vi) prepaid amount received on or prior to the Closing Date.
(m)   Atlantic has made available to Ameris true, correct and complete copies of any private letter ruling requests, technical advice memorandum received, voluntary compliance program statement or similar agreement, closing agreements or gain recognition agreements with respect to Taxes requested or executed in the last six (6) years.
(n)   Neither Atlantic nor Atlantic Coast Bank has taken any action, failed to take any action or knows of any fact that would be reasonably expected to prevent the Merger or the Bank Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
(o)   Neither Atlantic nor Atlantic Coast Bank has participated in a “reportable transaction” within the meaning of Section 6707A(c)(1) of the Code and Treasury Regulations Section 1.6011-4(b)(1).
(p)   Neither Atlantic nor Atlantic Coast Bank has a (i) permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a jurisdiction outside of the United States, (ii) Subsidiary that is treated as a “controlled foreign corporation” as defined in Section 957 or (iii) Subsidiary that is treated as a “passive foreign investment company” as defined in Section 1297.
2.83.10 Financial Statements.
(a) The financial statements of AtlanticFSC and its Subsidiaries included (or incorporated by reference) in the Atlantic Exchange Act Reports,FSC SEC Filings, including the related notes, where applicable (the “AtlanticFSC Financial Statements”), (i) have been prepared from, and are in accordance with, the books and records of AtlanticFSC and its Subsidiaries, (ii) fairly present in all material respects the consolidated results of operations, cash flows, changes in stockholders’shareholders’ equity and consolidated financial position of AtlanticFSC and its Subsidiaries for the respective fiscal periods or as of the respective dates therein set forth (subject in the case of unaudited
A-17A-20
TABLE OF CONTENTS​​​
forth (subject in the case of unaudited statements to recurring year-end audit adjustments normal in nature and amount), (iii) complied as to form, as of their respective dates of filing with the SEC, in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto and (iv) have been prepared in accordance with GAAP consistently applied during the periods involved, except, in each case, as indicated in such statements or in the notes thereto.
(b) Atlantic As of the date hereof, the books and records of FSC and its Subsidiaries have maintained a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. No changes have been made to Atlantic’s internal control over financial reporting, as defined in Rule 13a-15(f) and Rule 15d-15(f) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since December 31, 2016 that materially affected, or are reasonably likely to materially affect, its internal control over financial reporting.
2.9Disclosure Reports.   Atlantic has a class of securities registered pursuant to Section 12(b) of the Exchange Act. Atlantic has timely filed all forms, proxy statements, reports, schedules and other documents, including all certifications and statements required by the Exchange Act or Section 906 of the Sarbanes-Oxley Act, required to be filed by the Exchange Act since January 1, 2015 (the “Atlantic Exchange Act Reports”). The Atlantic Exchange Act Reports: (a) at the time filed (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing) complied in all material respects with the applicable requirements of the securities Laws and other Applicable Laws; and (b) did not, at the time they were filed (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing) contain any untrue statement of a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Each offering or sale of securities by Atlantic: (x) was either registered under the Securities Act of 1933, as amended (the “Securities Act”), or made pursuant to a valid exemption from registration; (y) complied in all material respects with the applicable requirements of the securities Laws and other Applicable Laws, except for immaterial late “blue sky” filings, including disclosure and broker/dealer registration requirements; and (z) was made pursuant to offering documents which did not, at the time of the offering (or, in the case of registration statements, at the effective date thereof) contain any untrue statement of a material fact or omit to state a material fact required to be stated in the offering documents or necessary to make the statements in such documents, in light of the circumstances under which they were made, not misleading.
2.10Regulatory Reports.   Atlantic has made available to Ameris for review and inspection all reports, registrations and statements, together with any amendments required to be made with respect thereto, that were required to be filed by Atlantic or any of its Subsidiaries since January 1, 2014 with: (a) the Board of Governors of the Federal Reserve System (the “Federal Reserve”); (b) the Federal Deposit Insurance Corporation (the “FDIC”); (c) the Office of the Comptroller of the Currency (the “OCC”); (d) the Maryland Office of the Commissioner of Financial Regulation (the “MOFR”); (e) the Florida Office of Financial Regulation (the “FOFR”); (f) the Department of Justice (the “DOJ”); and (g) any other applicable Governmental Authority (collectively, the “Atlantic Reports”). All of the Atlantic Reports have been preparedmaintained in all material respects in accordance with Applicable Laws appliedGAAP and any other applicable legal and accounting requirements and reflect only actual transactions. As of the date hereof, Ernst & Young LLP has not resigned (or informed FSC that it intends to resign) or been dismissed as independent public accountants of FSC as a result of or in connection with any disagreements with FSC on a basismatter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on FSC, neither FSC nor any of its Subsidiaries has incurred any liability or obligation of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether due or to become due) required by GAAP to be included in the consolidated balance sheet of FSC, except for (i) those liabilities that are reflected or reserved against on the consolidated balance sheet of FSC included in its Quarterly Report on Form 10-Q for the fiscal quarter ended the Interim Balance Sheet Date (including any notes thereto), (ii) liabilities or obligations incurred in the ordinary course of business consistent with past practice since the end of such fiscal quarter or (iii) liabilities or obligations incurred in connection with this Agreement and the transactions contemplated hereby.
(c) The records, systems, controls, data and information of FSC and its Subsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of FSC or its Subsidiaries or accountants (including all means of access thereto and therefrom) except as would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect on FSC. FSC (i) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) to ensure that material information relating to FSC, including its Subsidiaries, is made known to the chief executive officer and the chief financial officer of FSC by others within those entities as appropriate to allow timely decisions regarding required disclosures and to make the certifications required by the Exchange Act and Sections 302 and 906 of the Sarbanes-Oxley Act and (ii) has disclosed, based on its most recent evaluation prior periodsto the date hereof, to FSC’s outside auditors and containthe audit committee of FSC’s board of directors (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) which are reasonably likely to adversely affect FSC’s ability to record, process, summarize and report financial information and (B) to FSC’s Knowledge, any fraud, whether or not material, that involves management or other employees who have a significant role in FSC’s internal controls over financial reporting. To FSC’s Knowledge, there is no reason to believe that FSC’s outside auditors and its chief executive officer and chief financial officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 404 of the Sarbanes-Oxley Act, without qualification, when next due.
3.11 Ordinary Course; Lack of Material Adverse Change.   Since the Balance Sheet Date through the date of this Agreement, except as reflected in the FSC SEC Filings, as disclosed on FSC Disclosure Schedule Section 3.11 or as otherwise specifically provided by this Agreement, (a) FSC and its Subsidiaries have operated in all informationmaterial respects in the ordinary course of business consistent with past practice and (b) there has not been any Material Adverse Change in FSC or any event, change, occurrence, effect or development that would reasonably be expected to have a Material Adverse Effect on FSC.
3.12 Reorganization.   Neither FSC nor any of its Subsidiaries has taken any action, nor are they aware of any fact or circumstance, that would reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
A-21
TABLE OF CONTENTS​
3.13 Taxes.   Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on FSC:
(a) (i) All Tax Returns that were or are required to be presented thereinfiled on or before the Closing Date by FSC or its Subsidiaries have been or will be timely filed on or before the Closing Date, and all such Tax Returns are or will be true, correct and complete and were or will be prepared in compliance with all Applicable Laws; (ii) all Taxes due and owing by FSC or its Subsidiaries (whether or not shown on the Tax Returns referred to in clause (i)) have been or will be timely paid in full on or before the Closing Date; (iii) all deficiencies asserted in writing or assessments made in writing by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) have been or will be timely paid in full on or before the Closing Date; and (iv) no issues that have been raised in writing by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) are pending as of the date of this Agreement, or, if pending, have been specifically identified by FSC to ABCB in writing and adequately reserved for in the FSC Financial Statements. Neither FSC nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return.
(b) No Tax audits or administrative or judicial Tax proceedings are pending or being conducted with respect to FSC or any of its Subsidiaries. Neither FSC nor its Subsidiaries has received from any Taxing Authority (including jurisdictions where FSC or its Subsidiaries have not filed Tax Returns) any (i) written notice indicating an intent to open an audit or other review, (ii) written request for information related to Tax matters or (iii) written notice of deficiency or proposed adjustment for any amount of Tax proposed, asserted or assessed by any Taxing Authority against FSC or any of its Subsidiaries. FSC has provided ABCB with correct and complete copies of all federal and state income Tax Returns filed by FSC and each of its Subsidiaries for taxable periods ended on or after December 31, 2015 and all examination reports and statements of deficiency related to federal and state income Tax assessed against or agreed to by FSC or any of its Subsidiaries with respect to those taxable periods.
(c) There are no Liens on FSC’s or any of its Subsidiaries’ assets that arose in connection with any failure (or alleged failure) to pay any Tax other than Permitted Liens or Liens the validity of which is being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established in accordance with such Applicable Laws.GAAP in the FSC Financial Statements.
2.11Enforcement Actions.(d) Neither AtlanticFSC nor any of its Subsidiaries has waived any statute of limitations in respect of income Taxes or agreed to any extension of time with respect to an income Tax assessment or deficiency.
(e) FSC and its Subsidiaries have withheld and timely paid all Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(f) Neither FSC nor any of its Subsidiaries is subject to any cease-and-desist or other similar order or enforcement action issued by, or is(or has been) a party to any writtenTax allocation or sharing agreement consent(other than such an agreement or memorandumarrangement exclusively between or among FSC and its Subsidiaries). Neither FSC nor any of understanding with,its Subsidiaries (i) has been a member of an Affiliated Group filing a consolidated federal Tax Return (other than a group the common parent of which was FSC or is a party to any commitment letterof its Subsidiaries) or similar undertaking to, or is a recipient(ii) has any liability for Taxes of any extraordinary supervisory letter from,Person (other than FSC or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Tax Law) as a transferee, successor, by contract or otherwise.
(g) No claim has been made in the last five (5) years by a Taxing Authority in a jurisdiction where FSC or any Subsidiary does not file Tax Returns that FSC (or such Subsidiary) is or may be subject to taxation by that jurisdiction.
(h) Neither FSC nor any capital directiveSubsidiary has, in the last five (5) years, distributed stock of another corporation, or had its stock distributed by another corporation, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or 361 of the Code.
(i) Neither FSC nor any Subsidiary is or has adopted any board resolutions at the requestbeen a United States real property holding corporation (as defined in Section 897(c)(2) of the Federal Reserve,Code) during the FDIC,applicable period specified in Section 897(c)(1)(A)(ii) of the OCC, the MOFR, the FOFR, the DOJ or any other applicable Governmental AuthorityCode.
A-18A-22
TABLE OF CONTENTS​​​​
(a “Regulatory Agreement”), and neither Atlantic(j) Neither FSC nor any Subsidiary has engaged in any transaction that, as of the date hereof, is a “listed transaction” under Treasury Regulations Section 1.6011-4(b)(2).
3.14 Real Property.   Except as set forth on FSC Disclosure Schedule Section 3.14 or as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on FSC, as of the date of this Agreement, FSC or one of its Subsidiaries (a) has been advisedgood and marketable title to all the real property reflected in the latest balance sheet included in the FSC SEC Filings as being owned by FSC or one of its Subsidiaries or acquired after the date thereof  (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business) free and clear of all Liens, except for Permitted Liens, and (b) is the lessee of all leasehold estates reflected in the latest financial statements included in the FSC SEC Filings or acquired after the date thereof  (except for leases that have expired by their terms since the date thereof), free and clear of all Liens, except for Permitted Liens, and is in possession of the properties purported to be leased thereunder, and each such lease is valid without default thereunder by the Federal Reserve,lessee or, to the FDIC,FSC’s Knowledge, the OCC,lessor.
3.15 Litigation; Orders.
(a) Except as would not reasonably be expected, either individually or in the MOFR, the FOFR, the DOJaggregate, to have a Material Adverse Effect on FSC, there is no Proceeding pending or, any other applicable Governmental Authority that it is considering issuing, initiating, ordering or requesting any such Regulatory Agreement.
2.12Accounts.   Section 2.12 of the Disclosure Schedule contains a list of each and every bank and other institution in which Atlanticto FSC’s Knowledge, threatened either (i) against FSC or any of its Subsidiaries maintains an account or safety deposit box,(ii) seeking to prevent, alter or delay any of the account numbers andtransactions contemplated by this Agreement or the namesBank Merger Agreement.
(b) There is no Order outstanding against FSC or any of all Persons who are presently authorizedits Subsidiaries, or to draw thereon,which any assets, interest or right of any of them may be subject, that would reasonably be expected to have, access theretoeither individually or give instructions regarding distribution of funds or assets therein.in the aggregate, a Material Adverse Effect on FSC.
2.133.16 Loans; Nonperforming and Classified Assets; AllowanceCompliance.
(a) Except as provided forwould not reasonably be expected to have, either individually or in the Allowance describedaggregate, a Material Adverse Effect on FSC, FSC and each of its Subsidiaries is, and has been since January 1, 2015, inSection 2.13(d), all loans, lines of credit, letters of credit and other extensions of credit made by Atlantic Coast Bank or due to it (“Atlantic Loans”) are shown in the Atlantic Financial Statements and such Atlantic Loans: (i) are genuine, legal, valid and enforceable (except as enforceability may be limited by the General Enforceability Exceptions) obligations of the respective makers thereof; and (ii) to the knowledge of Atlantic, are not subject to any right of offset, rescission or set-off or any counterclaim or defense for which there is a reasonable possibility of an adverse determination to Atlantic Coast Bank.
(b)   All of the Atlantic Loans are evidenced by written agreements, true and correct copies of which will be made available to Ameris for examination prior to the Closing Date. All currently outstanding Atlantic Loans were solicited, originated and currently exist in material compliance with all Applicable Laws and Atlantic Coast Bank’sOrders, including all Laws related to data protection or privacy, the USA PATRIOT Act, the Bank Secrecy Act, the Equal Credit Opportunity Act and Regulation B, the Fair Housing Act, the Community Reinvestment Act, the Fair Credit Reporting Act, the Truth in Lending Act and Regulation Z, the Home Mortgage Disclosure Act, the Fair Debt Collection Practices Act, the Electronic Fund Transfer Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, any regulations promulgated by the Consumer Financial Protection Bureau, the Interagency Policy Statement on Retail Sales of Nondeposit Investment Products, the SAFE Mortgage Licensing Act of 2008, the Real Estate Settlement Procedures Act and Regulation X, and any other Law relating to bank secrecy, discriminatory lending, financing or leasing practices, money laundering prevention, Sections 23A and 23B of the Federal Reserve Act, the Sarbanes-Oxley Act, and all agency requirements relating to the origination, sale and servicing of mortgage and consumer loans.
(b) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on FSC, FSC and each of its Subsidiaries have all Permits of, and have made all required filings, applications and registrations with, all applicable Governmental Authorities necessary to permit it to own or lease its properties and to carry on its business as presently conducted, and all such Permits are in full force and effect. To FSC’s Knowledge, no suspension or cancellation of any material Permit is threatened.
3.17 Loans.
(a) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on FSC, each loan, revolving credit facility, letter of credit or other extension of credit (including guarantees) or commitment to extend credit originated or acquired by FSC and its Subsidiaries (collectively, “FSC Loans”) (i) complies with Applicable Laws, (ii) has been made, entered into or acquired by FSC or one of its Subsidiaries in accordance with customary board of director-approved loan policies, at the time(iii) is evidenced by promissory notes or other evidences of origination of such Atlantic Loans, and the loan documents with respect to each such Atlantic Loanindebtedness, which are completetrue, genuine and correct, inand which, together with all material respects. There are no oral modifications or amendments or additionalsecurity agreements related to the Atlantic Loans that are not reflected in the written records of Atlantic Coast Bank. Alland guarantees, constitute a valid and legally binding obligation of the Atlantic Loansobligor named therein, and as
A-23
TABLE OF CONTENTS​
applicable, FSC or one of its Subsidiaries and are enforceable in accordance with their terms, (iv) is owned by Atlantic Coast BankFSC or Fidelity free and clear of any Liens except for(other than blanket Liens granted toby the Federal Home Loan Bank. ExceptBank of Atlanta), (v) is in full force and effect and (vi) to FSC’s Knowledge, is not subject to any offset, recoupment, adjustment or any other valid or cognizable claim or defense by the applicable borrower; provided, however, that the enforcement of each of the immediately preceding clauses (iii) and (v) may be limited by Applicable Laws related to safety and soundness of insured depository institutions as set forth in Section 2.13(b)12 U.S.C. §1818(b), the appointment of a conservator or receiver, bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws affecting creditors’ rights and remedies generally and general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). True, correct and complete copies of the currently effective lending policies of FSC and each of its Subsidiaries have been made available to ABCB.
(b) FSC Disclosure Schedule Section 3.17(b), none sets forth a complete and correct list of the Atlanticall FSC Loans are presently serviced by third parties, and there is no obligation which could result in any Atlantic Loan becoming subject to any third-party servicing.
(c)   Except as set forth in Section 2.13(c) of the Disclosure Schedule,that, as of the date hereof, no Atlantic LoansInterim Balance Sheet Date had an outstanding balance of  $1,000,000 or more and (i) were overcontractually past due ninety (90) days delinquentor more in the payment of principal or interest. Section 2.13(c) of the Disclosure Schedule contains a complete list of: (i) each Atlantic Loan that as of December 31, 2016 wasinterest, (ii) were on nonaccrual status or (iii) were classified as “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “Credit Risk Assets,” “Concerned Loans,” or “Watch List”List,” as such terms are defined by the FDIC’s uniform loan classification standards, or words of similar import, by Atlantic Coast Bank or any bank examiner, together with the principal amount of and accrued and unpaid interest on each such AtlanticFSC Loan and the identity of the borrower thereunder; and (ii) each asset of Atlantic Coast Bank that as of December 31, 2016 was classified as other real estate owned and the book value thereof as of December 31, 2016.obligor thereunder.
(d)   The allowance for loan and lease losses shown on the balance sheet of Atlantic included in the most recent Atlantic Financial Statements dated prior to the date of this Agreement (the “Allowance”) was, and the Allowance shown on the balance sheets of Atlantic included in the Atlantic Financial Statements as of dates subsequent to the execution of this Agreement will be, as of the dates thereof, adequate (within the meaning of GAAP and applicable regulatory requirements or guidelines) to provide for all known or reasonably anticipated losses relating to, or inherent in, the loan and lease portfolios (including accrued interest receivables, letters of credit and commitments to make loans or extend credit) by Atlantic as of the dates thereof.
2.14Liabilities.   Except: (a) those reflected in the Atlantic Financial Statements; (b) liabilities incurred since December 31, 2016 in the ordinary course of business; (c) liabilities incurred in connection with this Agreement and the transactions contemplated by this Agreement; and (d) as disclosed in Section 2.14 of the Disclosure Schedule, neither Atlantic nor any of its Subsidiaries has any debt, liability or obligation of any kind required to be shown pursuant to GAAP on the consolidated balance sheet of Atlantic, whether accrued, absolute, known or unknown, contingent or otherwise, including: (i) liability or obligation on account of any federal, state or local Taxes or penalty, interest or fines with respect to such
A-19
TABLE OF CONTENTS​
Taxes; (ii) liability arising from, or by virtue of, the distribution, delivery or other transfer or disposition of goods, personal property or services of any type, kind or variety; (iii) unfunded liability with respect to The Wealthy and Wise 401(k) Plan adopted by Atlantic Coast Bank (the “Atlantic 401(k) Plan”) or any other post-retirement life insurance, pension, profit sharing or employee stock ownership plan, whether operated by Atlantic or any other Person covering employees of Atlantic; or (iv) environmental liability.
2.15Absence of Changes. Except as specifically provided for in this Agreement or specifically set forth in Section 2.15 of the Disclosure Schedule, since December 31, 2016:
(a)   there has been no change in any of Atlantic’s or any of its Subsidiaries’ relationships with customers, employees, lessors or others, other than changes in the ordinary course of business, none of which individually or in the aggregate has had, or which would reasonably be expected to have, a Material Adverse Effect;
(b)   there has been no damage, destruction or loss to the assets, properties or business of Atlantic or any of its Subsidiaries, whether or not covered by insurance, which has had, or which would reasonably be expected to have, a Material Adverse Effect;
(c)   the businesses of Atlantic and its Subsidiaries have been operated in the ordinary course;
(d)   the material properties and assets of Atlantic and its Subsidiaries used in their businesses have been maintained in good order, repair and condition, ordinary wear and tear excepted, except in such instances, individually or in the aggregate, which would not have, nor which would reasonably be expected to have, a Material Adverse Effect;
(e)   the books, accounts and records of Atlantic and its Subsidiaries have been maintained in the ordinary course of business and consistent with past practice;
(f)   there has been no declaration, setting aside or payment of any dividend or other distribution on or in respect of the capital stock of Atlantic or any of its Subsidiaries other than in the ordinary course of business and consistent with past practice;
(g)   there has been no increase in any payment of or commitment to pay any bonus, profit sharing or other extraordinary compensation to any employee, officer, director or other service provider or any of their spouses, dependents or beneficiaries or any increase in the level of wages, salaries, bonus opportunities or employee benefits, or the adoption of new employee benefits to any employee, officer, director or other service provider or any of their spouses, dependents or beneficiaries;
(h)   there has been no change in the articles of incorporation or bylaws of Atlantic or the comparable governing documents of any of its Subsidiaries;
(i)   there has been no labor dispute, unfair labor practice charge or employment discrimination charge or, to the knowledge of Atlantic, any organizational effort by any union, or institution or threatened institution, of any effort, complaint or other proceeding in connection therewith, involving Atlantic or any of its Subsidiaries or affecting their operations;
(j)   there has been no issuance, sale, repurchase, acquisition or redemption by Atlantic or any of its Subsidiaries of any of its respective capital stock, bonds, notes, debt or other securities, or the issuance, sale, repurchase, acquisition or redemption by Atlantic or any of its Subsidiaries of any outstanding rights to acquire any of its respective capital stock, bonds, notes, debt or other securities, and there has been no modification or amendment of the rights of the holders of any outstanding capital stock, bonds, notes, debt or other securities thereof or of any outstanding rights to acquire any of its capital stock, bonds, notes, debt or other securities;
(k)   there have been no Liens or security interests (other than purchase money security interests arising in the ordinary course of business) created on or in (including any deposit for security) any asset or assets of Atlantic or any of its Subsidiaries or assumed by Atlantic or any of its Subsidiaries with respect to any asset or assets;
A-20
TABLE OF CONTENTS​​​
(l)   there has been no indebtedness or other liability or obligation (whether absolute, accrued, contingent or otherwise) incurred by Atlantic or any of its Subsidiaries which would be required to be reflected on a balance sheet of Atlantic prepared as of the date hereof in accordance with GAAP, except as incurred in the ordinary course of business and consistent with past practice;
(m)   no material obligation or liability of Atlantic or any of its Subsidiaries has been discharged or satisfied, other than in the ordinary course of business and consistent with past practice;
(n)   there have been no sales, transfers or other dispositions of any material asset or assets of Atlantic or any of its Subsidiaries, other than sales in the ordinary course of business and consistent with past practice; and
(o)   there has been no amendment, termination or waiver of any right of Atlantic or any of its Subsidiaries under any contract or agreement or governmental license, permit or permission which has had, or would reasonably be expected to have, a Material Adverse Effect.
2.16Litigation and Proceedings.   Except as set forth in Section 2.16 of the Disclosure Schedule, there are no actions, decrees, suits, counterclaims, claims, proceedings or governmental actions or investigations, pending or, to the knowledge of Atlantic, threatened against, by or affecting Atlantic or any of its Subsidiaries, or any officer, director, employee or agent in such person’s capacity as an officer, director, employee or agent of Atlantic or any of its Subsidiaries or relating to the business or affairs of Atlantic or its Subsidiaries, before any arbitrator or Governmental Authority, and no judgment, award, order or decree of any nature has been rendered against or with respect thereto by any arbitrator or Governmental Authority, nor does Atlantic or any of its Subsidiaries have, to the knowledge of Atlantic, any unasserted contingent liabilities.
2.17Permits; Compliance with Law.
(a)   Atlantic and its Subsidiaries have all permits, licenses, approvals, authorizations and registrations under all Applicable Law required for them to carry on their respective businesses as presently conducted (collectively, the “Permits”), except where the failure to obtain such Permits would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. AtlanticEffect on FSC, (i) each outstanding FSC Loan (including FSC Loans held for resale or previously sold to investors) has been solicited and originated and is administered and, where applicable, serviced, and the relevant files are being maintained, in accordance with the relevant loan documents, FSC’s underwriting and servicing standards (and, in the case of FSC Loans held for resale or previously sold to investors, the underwriting standards, if any, of the applicable investors) and with Applicable Laws and applicable requirements of any government-sponsored enterprise program; and (ii) FSC and its Subsidiaries have properly fulfilled their contractual responsibilities and duties with respect to any FSC Loan in which they act as applicable, are in compliance in all material respects with the terms and conditionslead lender or servicer.
(d) None of each such Permit, and neither Atlantic northe agreements pursuant to which FSC or any of its Subsidiaries has receivedsold FSC Loans or pools of FSC Loans or participations in FSC Loans or pools of FSC Loans contains any written noticeobligation to repurchase such FSC Loans or interests therein, other than repurchase obligations arising upon breach of representations and warranties, covenants and other obligations of FSC or its Subsidiaries, as applicable.
(e) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on FSC, as to each FSC Loan that itis secured, whether in whole or in part, by a guaranty of the United States Small Business Administration or any other Governmental Authority, such guaranty is in violation offull force and effect, and to FSC’s Knowledge, will remain in full force and effect following the Closing Date, in each case, without any of the termsfurther action by FSC or conditions of such Permits.
(b)   Atlantic and eachany of its Subsidiaries has complied in all material respects with all Laws applicablesubject to it or its business. Section 2.17(b)the fulfillment of their obligations under the Disclosure Schedule contains a list of any known violations of such LawsSmall Business Administration Agreement that arise after the date hereof.
(f) There are no outstanding FSC Loans made by any present officer, director or employee of Atlantic, and which resulted in any order, proceeding, judgment or decree which would be required to be disclosed pursuant to Item 401(f) of Regulation S-K promulgated by the SEC. No past violation of any such Law has occurred which could impair the right or ability of AtlanticFSC or any of its Subsidiaries to conduct its respective business.
(c)   Except as set forthany “executive officer” or other “insider” (as each such term is defined in Section 2.17(c)Regulation O promulgated by the Federal Reserve Board) of the Disclosure Schedule, no notice, inquiryFSC or warning from any Governmental Authority with respect to any failure or alleged or possible failure of Atlantic or any of its Subsidiaries, other than FSC Loans that are subject to comply in any respect with any Law or order has been received, nor, to the knowledge of Atlantic, is any such notice or warning proposed or threatened.
(d)   For purposes of this Agreement, “Applicable Law” or “Law” means and includes: (i) any statute, decree, constitution, rule, regulation, ordinance, code, requirement, order, judgment, decree, directive or other binding action of or by any Governmental Authority as to which a party is subject; (ii) any treaty, pact, compact or other agreement to which any Governmental Authority is a signatory or party as to which a party is subject; (iii) any judicial or administrative interpretation of the application of any Applicable Law described in the immediately preceding clause (i) or (ii);that were made and (iv) any amendment or revision of any Applicable Law described in the immediately preceding clause (i), (ii) or (iii).
2.18 Investment Management and Related Activities.   Except as set forth in Section 2.18 of the Disclosure Schedule, none of Atlantic, any of its Subsidiaries or any of their respective directors, officers or employees is requiredcontinue to be registered, licensed or authorized under the Laws of any Governmental
A-21
TABLE OF CONTENTS​
Authority as an investment adviser, a broker or dealer, an insurance agency or company, a commodity trading adviser, a commodity pool operator, a futures commission merchant, an introducing broker, a registered representative or associated person, investment adviser, representative or solicitor, a counseling officer, an insurance agent, a sales person or in any similar capacity with a Governmental Authority.
2.19Environmental.
(a)   Except as set forth in Section 2.19(a) of the Disclosure Schedule:
(i)   Neither Atlantic nor any of its Subsidiaries has caused or permitted the generation, manufacture, use, handling, release or presence of any Hazardous Substance on, in under or from any properties or facilities owned or leased by Atlantic or any of its Subsidiaries, or, to the knowledge of Atlantic, adjacent to any properties so owned or leased, in each case that requires notification, investigation or remediation pursuant to any Law of any Governmental Authority relating to pollution or the protection of the environment, including any Law relating to releases, discharges or disposal of hazardous, toxic or radioactive substances, oils, pollutants or contaminants into the environment or otherwise relating to the distribution, use, treatment, storage, transport or handling of such substances, oils, pollutants or contaminants (each, an “Environmental Law”).
(ii)   there are no non-compliance orders, warning letters or notices of violations, actions, suits or other claims asserted or, to its knowledge, threatened against Atlantic or any of its Subsidiaries or administrative or judicial investigations arising from or relating to the environmental condition of any properties or facilities owned or leased by Atlantic or any of its Subsidiaries or the generation, manufacture, use, handling, release or presence of, any Hazardous Substance at any properties or facilities owned or leased by Atlantic or any of its Subsidiaries;
(iii)   Atlantic and its Subsidiaries have complied in all material respects with, and have kept all records and made all filings or reports required by, and are otherwise in compliance with all Applicable Laws relating toRegulation O or that are exempt therefrom.
3.18 Regulatory Capital; CRA Compliance.   Each of FSC and Fidelity is Well-Capitalized, and Fidelity’s most recent examination rating under the generation, manufacture, use, handling, releaseFederal Community Reinvestment Act, as amended (“CRA”), was “satisfactory” or presence of any Hazardous Substance on, in, under or from any properties or facilities owned or leased by Atlantic or any of its Subsidiaries;
(iv)   to the knowledge of Atlantic, the improvements on the properties or facilities owned or leased by Atlantic or any of its Subsidiaries are free from the presence or growth of mold, fungi, spores or bacteria that could be reasonably expected to cause material property damage or personal injury, and the improvements on the properties or facilities owned or leased or leased by Atlantic or any of its Subsidiaries are, and have been, reasonably free of conditions that could lead to the growth or presence of mold, fungi, spores or bacteria, including air conditioner malfunction, water intrusion, water leaks, sewage backflows and construction defects; and
(v)   to the knowledge of Atlantic, there are not now nor have there ever been any underground storage tanks for the storage of any Hazardous Substance on, in or under any properties or facilities owned or leased by Atlantic or any of its Subsidiaries.
(b)   Neither Atlantic nor, to the knowledge of Atlantic, any of its Subsidiaries, officers, directors, employees or agents, or any of such Subsidiaries’ officers, directors, employees or agents, in the course of such individual’s employment by Atlantic or any of its Subsidiaries, has given advice with respect to, or participated in any respect in, the management or operation of any Person regarding the generation, storage, handling, disposal, transfer, production, use or processing of any Hazardous Substance.
(c)better. To the knowledge of Atlantic, neither Atlantic nor Atlantic Coast Bank has foreclosed on any property on whichFSC’s Knowledge, there is a threatened releaseno fact or circumstance or set of any Hazardous Substance or on which there has been a release and remediation has not been completed to the extent required by Environmental Laws.
(d)   Neither Atlantic nor, to the knowledge of Atlantic, any of its Subsidiaries, officers, directors, employees or agents, or any of such Subsidiaries’ officers, directors, employees or agents, has been told of or has observed the presence of any Hazardous Substance on, in, under or around property on which Atlantic or any of its Subsidiaries holds a legal or security interest, in violation of, or creating a liability under, any Environmental Law.
A-22
TABLE OF CONTENTS​​​
(e)   Atlantic has delivered to Ameris true, correct and complete copies of all reports or tests with respect to compliance of any of the properties or facilities owned or leased by Atlantic or any of its Subsidiaries with any Environmental Laws or the presence of Hazardous Substances that were prepared for Atlantic or any of its Subsidiaries or prepared for other Persons and are in the possession, custody or control of Atlantic or any of its Subsidiaries.
(f)   For purposes of this Agreement, the term “Hazardous Substance” means (i) any material, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid, mineral or gas, in each case, whether naturally occurring or man-made, that is hazardous, acutely hazardous, toxic or words of similar import or regulatory effect under Environmental Laws, and (ii) any petroleum or petroleum-derived products, radon, radioactive materials or wastes, asbestos in any form, lead or lead-containing materials, urea formaldehyde foam insulation and polychlorinated biphenyls in concentrations regulated by Environmental Law; provided, however, that the term “Hazardous Substance” shall not include those substances which are normally and reasonably used or present in connection with the development, occupancy or operation of office buildings (such as cleaning fluids and supplies normally used in the day-to-day operation of business offices) in quantities reasonable in relation to such use and in compliance with Applicable Law or such that may be naturally occurring in any ambient air, surface water, ground water, land surface or subsurface strata.
2.20Insurance.
(a)   Section 2.20(a) of the Disclosure Schedule contains a complete list and description (including the expiration date, premium amount, deductibles and coverage thereunder) of all policies of insurance and bonds presently maintained by, or providing coverage for, Atlantic or any of its Subsidiaries or through Atlantic or any of its Subsidiaries for any of such party’s officers, directors and employees, that are in full force and effect, together with a complete list of all pending claims under any of such policies or bonds. All material terms, obligations and provisions of each of such policies and bonds have been complied with, all premiums due thereon have been paid and no notice of cancellation with respect thereto has been received. Such policies and bonds provide adequate coverage to insure the properties and businesses of Atlantic and its Subsidiaries and the activities of the officers, directors and employees of Atlantic and its Subsidiaries against such risks and in such amounts as are reasonable and customary. Neither Atlantic nor any of its Subsidiaries, as of the Closing Date, will have any liability for premiums or for retrospective premium adjustments for any period prior to the Closing Date. Atlantic has heretofore made available to Ameris a true, correct and complete copy of each insurance policy and bond currently in effect with respect to the business and affairs of Atlantic or any of its Subsidiaries.
(b)   The value of all bank-owned life insurance owned by Atlantic or Atlantic Coast Bank is and has been fairly and accurately reflected in the balance sheets included in the Atlantic Financial Statements in accordance with GAAP.
2.21Trust Business; Administration of Fiduciary Accounts.   Atlantic and each of its Subsidiaries has properly administered all accounts for which it acts as a fiduciary, including accounts for which it serves as a trustee, agent, custodian, personal representative, guardian, conservator or investment advisor, in all material respects in accordance with the terms of the governing documents and Applicable Laws. Neither Atlantic nor any of its Subsidiaries, nor any of their respective directors, officers or employees, has committed any breach of trust with respect to any fiduciary account, and the records for each such fiduciary account are true and correct and accurately reflect the assets of such fiduciary account.
2.22Compliance.   To the knowledge of Atlantic, no facts or circumstances exist which would be reasonably likely to cause Atlantic Coast Bank: (a)Fidelity’s CRA rating to be deemed not to be in satisfactory compliance withdecrease below the Community Reinvestment Act, and the regulations promulgated thereunder, or to be assigned a rating for Community Reinvestment Act purposes by federal or state bank regulators of lower than “satisfactory”; (b) to be deemed to be operating in violation of the Bank Secrecy Act and its implementing regulations (31 C.F.R. Part 103), the USA PATRIOT Act, any order issued with respect to anti-money laundering by the U.S.Department of the Treasury’s Office of Foreign Assets Control, or any other applicable anti-money laundering Law, the Truth in Lending Act and Regulation Z, the Dodd-Frank Wall Street Reform and Consumer Protection Act, any regulations promulgated by the Consumer Financial Protection Bureau or level.
A-23A-24
TABLE OF CONTENTS​​​​
3.19 Investment Securities and Commodities.
(a) Each of FSC and its Subsidiaries has good title in all material respects to all securities and commodities owned by it (except those sold under repurchase agreements), free and clear of any regulations relatingLien, except as set forth in the financial statements included in the FSC SEC Filings or to unfair, deceptivethe extent such securities or abusive acts and practices under Applicable Law; or (c) to be deemed not to be in satisfactory compliance with the applicable privacy of customer information requirements contained in any federal and state privacy Laws, including in Title V of the Gramm-Leach-Bliley Act of 1999 and regulations promulgated thereunder, as well as the provisions of the information security program adopted by Atlantic Coast Bank pursuant to 12 C.F.R. Part 364. Furthermore, the board of directors of Atlantic Coast Bank has adopted and Atlantic Coast Bank has implemented an anti-money laundering program that contains adequate and appropriate customer identification verification procedures and that meets the requirements of Sections 352 and 326 of the USA PATRIOT Act. Other than investments to satisfy regulatory requirements, neither Atlantic nor Atlantic Coast Bank is a party to any agreement with any Person regarding Community Reinvestment Act matters.
2.23Contracts and Commitments.   Section 2.23 of the Disclosure Schedule contains a list identifying all written contracts, purchase orders, agreements, security deeds, guaranties or commitments (other than loans, loan commitments and deposits made by or with Atlantic Coast Bankcommodities are pledged in the ordinary course of business)business to which Atlanticsecure obligations of FSC or anyits Subsidiaries. Such securities and commodities are valued on the books of its Subsidiaries is a party or by which Atlantic or any of its Subsidiaries may be bound involving the payment or receipt, actual or contingent, of more than $100,000 or having a term or requiring performance over a period of more than one (1) year and requiring payment of more than $50,000 per year (collectively, the “Material Contracts”). Each Material Contract is in full force and effect and is valid and enforceableFSC in accordance with GAAP in all material respects.
(b) FSC and its terms, subject toSubsidiaries and their respective businesses employ investment, securities, commodities, risk management and other policies, practices and procedures that FSC believes are prudent and reasonable in the General Enforceability Exceptions, and, to the knowledgecontext of Atlantic, constitutes a legal and binding obligation of the respective parties thereto and issuch businesses.
3.20 Derivative Transactions.   Except as would not the subject of any notice of default, termination, partial termination or of any ongoing, pending, completed or threatened investigation, inquiry or other proceeding or action that may give rise to any notice of default, termination or partial termination that wouldreasonably be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect. A true and complete copy of each Material Contract has been made available to Ameris.
2.24Licenses; Intellectual Property.   Atlantic and its Subsidiaries haveEffect on FSC, all patents, trademarks, trade names, service marks, copyrights, trade secrets and know-how reasonably necessary to conduct their respective businesses as presently conducted. To the knowledge of Atlantic, there are no rights of third parties with respect to any trademark, service mark, trade secrets, confidential information, trade name, patent, patent application, copyright, invention, device or process owned or usedDerivative Transactions entered into by AtlanticFSC or any of its Subsidiaries or presently expected to be used by Atlantic orfor the account of any of its Subsidiaries in the future. All patents, copyrights, trademarks, service marks, trade names and applications therefor or registrations thereof, owned or used by Atlantic or any of its Subsidiaries, are listed in Section 2.24 of the Disclosure Schedule. Atlantic and its Subsidiaries have complied with all Applicable Laws relating to the filing or registration of fictitious names or trade names.
2.25Personal Property.   Either Atlantic or a Subsidiary of Atlantic has good and marketable title to all material personal property, tangible and intangible, reflected in the most recent Atlantic Financial Statements (except as since sold or otherwise disposed of by itcustomers were entered into in the ordinary course of business)business and in accordance with applicable rules, regulations and policies of any FSC Regulatory Agency and with counterparties believed to be financially responsible at the time and are legal, valid and binding obligations of FSC or one of its Subsidiaries enforceable in accordance with their terms except as such enforceability may be limited by Applicable Laws related to safety and soundness of insured depository institutions as set forth in 12 U.S.C. §1818(b), the appointment of a conservator or receiver, bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws affecting creditors’ rights and remedies generally and general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), and are in full force and effect. FSC and each of its Subsidiaries have duly performed in all material respects all of their material obligations thereunder to the extent that such obligations to perform have accrued, and, to FSC’s Knowledge, there are no material breaches, violations or defaults or allegations or assertions of such by any party thereunder.
3.21 Intellectual Property.   FSC or its Subsidiaries owns or has a valid license to use all FSC Intellectual Property necessary for the conduct of its businesses as currently conducted, free and clear of all Liens (other than Permitted Liens), royalty or other payment obligations (except for royalties or payments with respect to off-the-shelf Software at standard commercial rates). Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on FSC, (i) the FSC Intellectual Property is valid and enforceable and has not been cancelled, forfeited, expired or abandoned, (ii) neither FSC nor any of its Subsidiaries has received notice challenging the validity or enforceability of any kind or character, except: (a) those referred to in the notes to the Atlantic Financial Statements as securing specified liabilities (with respect to which no default exists or, to the knowledgematerial FSC Intellectual Property and (iii) none of Atlantic, is claimed to exist); and (b) those described in Section 2.25 of the Disclosure Schedule.
2.26Atlantic Leases.
(a)   All leases (the “Atlantic Leases”) pursuant to which AtlanticFSC or any of its Subsidiaries is, lessornor will any of them be as a result of the execution and delivery of this Agreement or lesseethe performance by FSC of its obligations hereunder, in violation of any real or material personal property (such property, the “Leased Property”) are set forth in Section 2.26(a) of the Disclosure Schedule. All Atlantic Leases are validlicenses, sublicenses and enforceable in accordance with their terms, subjectother agreements as to the General Enforceability Exceptions; there is not under any of the Atlantic Leases any material default or any claimed default by Atlantic or any of its Subsidiaries, the lessor (where Atlanticwhich FSC or any of its Subsidiaries is the lessee under an Atlantic Lease) or the lessee (where Atlantica party and pursuant to which FSC or any of its Subsidiaries is authorized to use any third-party patents, trademarks, service marks, copyrights, trade secrets or Software, and neither FSC nor any of its Subsidiaries has received notice challenging FSC’s or any of its Subsidiaries’ license or legally enforceable right to use any such third-party Intellectual Property rights.
3.22 Environmental Matters.   Except as would not reasonably be expected to have, either individually or in the lessor under an Atlantic Lease),aggregate, a Material Adverse Effect on FSC, (i) no notice, notification, demand, request for information, citation, summons or event of material default or event which with notice or lapse of time, or both, would constitute a material defaultorder has been received by AtlanticFSC or any of its Subsidiaries, the lessor (where Atlanticno complaint has been filed against FSC or any of its Subsidiaries, is the lessee under an Atlantic Lease) or the lessee (where Atlanticno penalty has been assessed against FSC or any of its Subsidiaries, and no investigation, action, claim or suit is the lessor under an Atlantic Lease) andpending or, to FSC’s Knowledge, threatened in respect of which adequate steps have not been taken to prevent a default from occurring if Atlanticwriting against FSC or any of its Subsidiaries by any Governmental Authority or other Person, in each case relating to or arising out of any Environmental Law or the presence or release into the environment of any Hazardous Substance, (ii) FSC and each of its Subsidiaries is thein compliance with all Environmental Laws and all Permits relating to Environmental Law matters, (iii) neither FSC nor any of its Subsidiaries is conducting or paying for any response or corrective action under any Environmental Law at any location and (iv) neither FSC nor any of its Subsidiaries is party in breach.to any Order that imposes any obligations under any Environmental Law.
A-24A-25
TABLE OF CONTENTS​​
(b)   Copies of the Atlantic Leases have been furnished or made available by Atlantic to Ameris and such copies are true, correct and complete in all material respects, and the Atlantic Leases have not been modified other than pursuant to amendments, copies of which have been concurrently delivered or made available to Ameris, and which are in full force and effect in accordance with their terms.
(c)   There are no contractual obligations, agreements in principle or present plans for Atlantic or any of its Subsidiaries to enter into new leases of real property or to renew or amend existing Atlantic Leases prior to the Closing Date.
2.273.23 Real PropertyCertain Contracts.
(a)   Neither Atlantic nor any of its Subsidiaries owns any interest in any real property (other than as lessee) except as set forth in Section 2.27(a) of the Disclosure Schedule (such properties being referred to herein as “Atlantic Realty”). Either Atlantic or a Subsidiary of Atlantic has good title to the Atlantic Realty, and neither Atlantic nor any of its Subsidiaries has encumbered any of the Atlantic Realty with a mortgage, deed of trust or other monetary lien that has not been satisfied or cancelled.
(b)   The interests of Atlantic or its Subsidiaries in the Atlantic Realty and in and under each of the Atlantic Leases are free and clear of any and all Liens and are subject to no present claim, contest, dispute, action or, to the knowledge of Atlantic, threatened action at law or in equity.
(c)   The present use and operations of, and improvements upon, the Atlantic Realty and all real properties included in the Leased Properties (the “Atlantic Leased Real Properties”) are in material compliance with all applicable building, fire, zoning and other Applicable Laws and with all matters of record, no notice of any violation or alleged violation thereof has been received and there are no proposed changes therein that would affect the Atlantic Realty, the Atlantic Leased Real Properties or their uses.
(d)   No rent has been paid in advance and no security deposit has been paid by, nor is any brokerage commission payable by or to, Atlantic or any of its Subsidiaries with respect to any Atlantic Lease, in each case, in any material amount.
(e)   Atlantic is not aware of any proposed or pending change in the zoning of, or of any proposed or pending condemnation proceeding with respect to, any of the Atlantic Realty or the Atlantic Leased Real Properties which may adversely affect the Atlantic Realty or the Atlantic Leased Real Properties, or their current use or the use currently contemplated by Atlantic or any of its Subsidiaries.
(f)   Except as set forth in Section 2.27(f) of the Disclosure Schedule, the buildings and structures owned, leased or used by Atlantic or any of its Subsidiaries are, taken as a whole, in good operating order (except for ordinary wear and tear), usable in the ordinary course of business, and are sufficient and adequate to carry on the business and affairs of Atlantic and its Subsidiaries.
2.28Employee Benefits.
(a) Except as set forth in Section 2.28(a)FSC Disclose Schedule 3.23(a), as of the Disclosure Schedule,date hereof, neither AtlanticFSC nor any of its Subsidiaries providesis a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) which contains a provision that limits (or purports to limit) in any material respect the ability of FSC to engage or compete in any business (including geographic restrictions and exclusive or preferential arrangements), (iii) with or to a labor union or guild (including any collective bargaining agreement), (iv) other than extensions of credit, other banking products offered by FSC and its Subsidiaries or derivatives, which creates future payment obligations in excess of  $1,000,000 and that by its terms does not terminate or is obligatednot terminable without penalty upon notice of sixty (60) days or less or (v) that grants any right of first refusal, right of first offer or similar right with respect to provide, contributes to or is obligated to contribute to, directly or indirectly, nor has any material liability (direct, indirect, contingent,assets, rights or properties of FSC or its Subsidiaries, taken as a whole. Each contract, arrangement, commitment or understanding of the resulttype described in this Section 3.23(a) (excluding any FSC Employee Benefit Plan), whether or not set forth in the FSC Disclosure Schedule, is referred to herein as an “FSC Contract,” and neither FSC nor any of its Subsidiaries has actual knowledge of, or has received written notice of, any indemnityviolation of any FSC Contract by any of the other parties thereto which would reasonably be expected to have, either individually or guarantyin the aggregate, a Material Adverse Effect on FSC.
(b) In each case, except as, either individually or ERISA Affiliatein the aggregate, would not reasonably be expected to have a Material Adverse Effect on FSC, (i) each FSC Contract is valid and binding on FSC or otherwise) for,one of its Subsidiaries, as applicable, and in full force and effect, (ii) FSC and each of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date under each FSC Contract, (iii) to FSC’s Knowledge each third-party counterparty to each FSC Contract has in all material respects performed all obligations required to be performed by it to date under such FSC Contract and (iv) no event or condition exists which constitutes or, after notice or lapse of time or both, will constitute, a material default on the part of FSC or any compensation, bonuses, incentivesof its Subsidiaries under any such FSC Contract.
3.24 Employee Benefit Matters.
(a) FSC Disclosure Schedule Section 3.24(a) sets forth a true and complete list of each material FSC Employee Benefit Plan.
(b) With respect to each material FSC Employee Benefit Plan, complete and correct copies of the following documents (to the extent applicable) have been made available to ABCB: (i) the most recent plan documents or benefits for any current or former employees, officers, directors or independent contractors or their spouses, dependents or beneficiaries, including: (i) any “employee benefit plan” as defined in Section 3(3) of ERISA (whether or not subject to ERISA); (ii) any employment, consulting, severance, change in control, transaction bonus, retentionwritten agreements thereof, and all amendments thereto and all related trust or other similar agreementfunding vehicles (including contracts with service providers and insurers) and, in the case of any FSC Employee Benefit Plan that is not in written form, a written description of all material aspects of such plan; (ii) the most recent summary plan description, and all related summaries of material modifications thereto, if applicable; (iii) Forms 5500 (including schedules and attachments), financial statements and actuarial reports for the past year, if applicable; and (iv) the most recent IRS determination letter or plan;opinion letter.
(c) With respect to each FSC Employee Benefit Plan, (i) such FSC Employee Benefit Plan has been administered in all material respects in compliance with its terms and with all Applicable Laws, including ERISA, the Code, the Health Insurance Portability and Accountability Act and the Patient Protection and Affordable Care Act, (ii) no Proceedings (other than routine claims for benefits) are pending, or to FSC’s Knowledge, threatened, (iii) any post-retirement life insurance, pension, profit sharing, stock option, restricted stock or units, equity or equity-based compensation or other forms of incentive or deferred compensation, retirement, bonus, hospitalization, severance, medical, insurance, life, vacation, fringe benefits, perksall premiums, contributions or other material employee benefitspayments required to have been made by Applicable Law or under the terms of any plan, practice, agreementsuch FSC Employee Benefit Plan or understanding (individually an “Atlantic Plan”any contract relating thereto have been made, (iv) all material reports, returns and collectively,similar documents required to be filed with any Governmental Authority have been duly filed and (v) no non-exempt “prohibited transaction” or “reportable event” has occurred within the “Atlantic Plans”).meaning of the applicable provisions of ERISA or the Code, in the case of each of clauses (i) through (v), except as would not reasonably be expected to result in material liability to FSC or its Affiliates.
A-25A-26
TABLE OF CONTENTS​​
(b)   (d) With respect to each FSC Employee Benefit Plan intended to qualify under Section 2.28(b)401(a) of the Disclosure Schedule lists separatelyCode, the IRS has issued a favorable determination letter or opinion letter or advisory letter, no such determination letter, opinion letter or advisory letter has been revoked nor, to FSC’s Knowledge, has revocation been threatened, and no circumstance exists that would reasonably be expected to result in the loss of such qualification.
(e) Neither FSC nor any employee benefit plan within the meaningFSC Employee Benefit Plan provides (or will provide) health or other welfare benefits to one or more former employees, officers, directors or other individuals (including dependents of Section 3(3)any of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (whether or not subjectforegoing) other than benefits that are required to ERISA), sponsored, maintained or contributed to by Atlantic or its ERISA Affiliates or with respect to which Atlantic or any of its ERISA Affiliates has any liability (direct or indirect, contingent, as the result of any indemnity or guaranty or otherwise) (collectively, “ERISA Plans”). True, correct and complete copies of all ERISA Plans and,be provided pursuant to the extent applicable all related trust agreements, insurance contracts, summary plan descriptions, Internal Revenue Service (the “IRS”) determination lettersrequirements of COBRA or similar law.
(f) No FSC Employee Benefit Plan is, and filings, the past three (3) years of actuarial reports and valuations, the three (3) most recent annual reports and Form 5500 filings (including attachments) and all material correspondence relatingneither FSC nor any Affiliate maintains or contributes to, any ERISA Plan from or with any Governmental Authority in the last three (3) years, have been delivered to Ameris.
(c)   Atlantic and its ERISA Affiliates are not currently and have never inhas within the past six (6) years, been required to contributemaintained or contributed to, or hadhas any material liability, (directwhether actual or indirect, contingent, as the result of any indemnity or guaranty or otherwise) with respect to: (i)under a multiemployer plan as defined in Section 3(37)(A) or 4001(a)(3) of ERISA; (ii) an employee benefit plan within the meaning of Section 3(3) of ERISA that is subject to Section 302 or Title IV of ERISA or to Section 412 or 430 of the Code; (iii) a multiple employer planCode. No FSC Employee Benefit Plan is or was within the meaningpast six (6) years, a multiemployer plan, as defined in Section 3(37) of Section 413(c) of the Code or Sections 4063, 4064 or 4066 of ERISA; or (iv) a multiple employer welfare planERISA, and neither FSC nor any Affiliate, within the meaning ofpast six (6) years, has contributed to, or had an obligation to contribute to, or incurred any liability with respect to, any such multiemployer plan.
(g) Except as provided in FSC Disclosure Schedule Section 3(40)(A) of ERISA. For purposes3.24(g), neither the execution and delivery of this Agreement or the term “ERISA Affiliate” meansBank Merger Agreement nor the consummation of the transactions contemplated by this Agreement or the Bank Merger Agreement will (whether alone or in conjunction with any Person withinother event) (i) increase the meaningamount of Section 3(9) of ERISA,any compensation, equity award or any trade or business (whether or not incorporated), that, together with Atlanticother benefits otherwise payable by FSC or any of its Subsidiaries would be treated at the relevant time as a single employer within the meaning of Section 414 of the Codeunder any FSC Employee Benefit Plan or 4001(a) of ERISA.
(d)   Each Atlantic Plan has been established, operated and administered in all material respects in accordance with its terms and in accordance with, and has been amended to comply with (unless such amendment is not yet required), all Applicable Laws, including ERISA, the Code and the regulations issued under ERISA and the Code. With respect to each Atlantic Plan, other than routine claims for benefits submitted(ii) result in the ordinary courseacceleration of the benefits process and in accordance with the express terms of such Atlantic Plans, no litigation or administrative or other proceeding is pending or, to the knowledge of Atlantic, threatened involving such Atlantic Plan or any of its assets or fiduciaries. With respect to each Atlantic Plan, neither Atlantic nor any of its Subsidiaries or any of their respective directors, officers, employees or agents or any fiduciary of any Atlantic Plan has been engaged in or been a party to any transaction relating to the Atlantic Plan which could reasonably be expected to constitute a breach of fiduciary duty under ERISA or a “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code), unless such transaction is specifically permitted under Sections 407 or 408 of ERISA, Section 4975 of the Code or a class or administrative exemption issued by the Department of Labor. Each Atlantic Plan that is a group health plan within the meaning of Section 607(l) of ERISA and Section 4980B of the Code is in material compliance with: (i) the continuation coverage requirements of Section 501 of ERISA and Section 4980B of the Code and other Applicable Laws; and (ii) the applicable requirements of the Patient Protection and Affordable Care Act, as amended.
(e)   With respect to each Atlantic Plan, all contributions or other remittances required by such plan or Applicable Law have been made, or will be made, on a timely basis.
(f)   Each Atlantic Plan that is intended to be qualified under Section 401(a) of the Code, and its related trust, respectively, has received a favorable determination letter (or opinion letter) from the IRS as to the qualification of such plan and the tax-exempt status of the related trust (or has filed with the IRS a request for such a determination letter within the applicable remedial amendment period or is a prototype plan for which the prototype plan sponsor has received a favorable opinion letter or advisory opinion from the IRS as to the qualification of the prototype plan on which Atlantic or its applicable Subsidiary may rely) and, to the knowledge of Atlantic, no event has occurred, and no condition exists, that would reasonably be expected to cause the loss of such qualified or tax-exempt status or the imposition of any liability, tax or penalty under ERISA or the Code.
(g)   Neither Atlantic nor any of its Subsidiaries provides or has any obligation to provide benefits, including death, health, post-retirement life insurance or medical benefits (whether or not
A-26
TABLE OF CONTENTS​
insured), with respect to current or former employees of Atlantic or any of its Subsidiaries or their spouses, dependents or beneficiaries beyond the employees’ retirement or other termination of employment or service with Atlantic or any of its Subsidiaries, other than coverage mandated by Applicable Law and at the sole expense of such employees or their spouses, dependents or beneficiaries.
(h)   Except as set forth in Section 2.28(h) of the Disclosure Schedule, neither this Agreement nor any transaction contemplated hereby (either alone or in combination with any other event) will: (i) entitle any current or former employee, officer, director or other service provider of Atlantic or any of its Subsidiaries to any payment or benefit, including any bonus, retention, severance pay, retirement pay, unemployment compensation or any similar or other payment; (ii) accelerate the time of payment or vesting of or increase the amount ofany compensation, or benefits due any such employee, officer, directorequity award or other service provider; (iii) increasebenefit under any benefits,FSC Employee Benefit Plan.
(h) No participants in any FSC Employee Benefit Plan participate in such plan pursuant to the terms of a collective bargaining agreement.
3.25 Labor Relations; Employment Matters.
(a) There is no material labor strike, dispute, slowdown, stoppage or accelerate the time of paymentlockout actually pending or, to FSC’s Knowledge, threatened against FSC or any benefits, otherwise payable underof its Subsidiaries. Neither FSC nor any Atlantic Plan; (iv) triggerof its Subsidiaries is a party to any material obligation undercollective bargaining agreements or similar labor agreements and, to FSC’s Knowledge, there are no organizing efforts by any Atlantic Plan, includingunion or other group seeking to represent any funding thereof;employees of FSC or (v) cause the paymentany of any “excess parachute payment” (as defined in Section 280Gits Subsidiaries. FSC and each of the Code). No Atlantic Plan provides for the gross up of Taxes under Code Sections 409A or 4999.
(i)   Each Atlantic Plan thatits Subsidiaries is, subject to Section 409A of the Codeand has at all relevant times been, maintained in written form, and administered and operated, in compliance in all material respects with Section 409Aall Applicable Laws respecting employment and employment practices, terms and conditions of the Codeemployment, equal opportunity, nondiscrimination, immigration, labor, wages, hours of work and the regulationsoccupational safety and rulings thereunder.
(j)   Therehealth, and is no audit or investigation pending with respect tonot engaged in any Atlantic Plan before any Governmental Authority and, to the knowledge of Atlantic, no such audit or investigation is threatened.
(k)   Atlantic has properly accrued on its financial statements in all material respects the correct number of days for all vacation, sick leave, personal time and paid time off credited to employees and individual consultants of Atlantic or any of its Subsidiaries as of the date of such financial statements. Atlantic or its applicable Subsidiary has, for each Atlantic Plan and all other purposes, including Taxes and participation in Atlantic Plans, correctly classified all natural persons and, if applicable, their disregarded entities providing services to Atlantic or any of its Subsidiaries as common law employees or independent contractors, as appropriate.
(l)   Neither Atlantic nor any of its Subsidiaries has entered into any commitment to modify or amend any Atlantic Plan (other thanunfair labor practices defined in the ordinary course and consistent with past practiceNational Labor Relations Act or as required byother Applicable Law) or to establish any new benefit plan, program or arrangement. There has been no amendment to any Atlantic Plan, interpretation or announcement by Atlantic or any of its Subsidiaries relating to any Atlantic Plan or written notice or arrangement, or change in eligibility, participation or coverage under any Atlantic Plan, that would increase the expense of maintaining any such Atlantic Plan above the level of expense incurred or with respect to such Atlantic Plan for the most-recently completed fiscal year of Atlantic and its Subsidiaries.
(m)   Each pension plan, within the meaning of Section 3(2) of ERISA, that is not intended to be qualified under Section 401(a) of the Code is exempt from Parts 2, 3 and 4 of ERISA as an unfunded plan that is maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees pursuant to Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. No assets of any such pension plan have been set aside to pay the obligations under such pension plan in a rabbi trust or otherwise.
(n)   The Atlantic Coast Financial Corporation Employee Stock Ownership Plan (the “Atlantic ESOP”) grants to its participants full voting rights as to all shares of Atlantic Common Stock held by the Atlantic ESOP on behalf of such participants and that have been allocated to their accounts.
2.29Employment and Labor Matters.Law. Neither Atlantic nor any of its Subsidiaries is, or has been, a party to any collective bargaining agreement or agreement of any kind with any union or labor organization or to any agreement with any of its employees which is not terminable at will or upon ninety (90) days’ notice at the election of, and without cost or penalty to, Atlantic or any of its Subsidiaries. Neither AtlanticFSC nor any of its Subsidiaries has received at any timewritten notice that any Governmental Authority responsible for the enforcement of labor or employment Laws intends to conduct an investigation with respect to or relating to FSC and its Subsidiaries and, to FSC’s Knowledge, no such investigation is in progress.
(b) Since the Balance Sheet Date, FSC has not effectuated a “mass layoff” or “plant closing” as defined in the pastWARN Act affecting any site of employment or facility of FSC or its Subsidiaries.
(c) FSC and each of its Subsidiaries have made all required payments due to employees and to its respective unemployment compensation reserve accounts with the appropriate Governmental Authorities of the jurisdictions where either FSC or the respective Subsidiary is required to maintain such accounts.
3.26 Related-Party Transactions.   There are no outstanding amounts payable to or receivable from, or advances by FSC or any of its Subsidiaries to, and neither FSC nor any of its Subsidiaries is otherwise a creditor or debtor to, any director, executive officer, five (5) yearspercent (5%) or greater shareholder of FSC or any demandof its Subsidiaries or to any of their respective Affiliates, other than part of the normal and customary terms of such person’s employment or service as a director with FSC or any of its Subsidiaries and other
A-27
TABLE OF CONTENTS​​​​​​
for recognition from any union, and no attempt has beenthan deposits held by Fidelity or loans made during such time to organizeby Fidelity, in each case, in the ordinary course of business. All agreements between FSC or any of its employees. AtlanticFSC’s Subsidiaries and its Subsidiaries have compliedany of their respective Affiliates comply in all material respects, to the extent applicable, with all obligations underRegulation O and Regulation W of the National Labor Relations Act, as amended, the Age Discrimination in Employment Act, as amended, and all other federal, state and local labor Laws applicable to employees.Federal Reserve Board.
3.27 Insurance.   Except as describedwould not reasonably be expected to have, either individually or in Section 2.29the aggregate, a Material Adverse Effect on FSC, FSC and each of its Subsidiaries is insured with reputable insurers against such risks and in such amounts as the Disclosure Schedule: (a) there are no unfair labor practice charges pending or,management of FSC and Fidelity reasonably have determined to the knowledge of Atlantic, threatened against Atlanticbe prudent in accordance with industry practices, all insurance policies maintained by FSC or any Subsidiary are in full force and effect, neither FSC nor any Subsidiary has received notice of its Subsidiaries;cancellation of any such insurance policies or is otherwise aware that any insurer under any such insurance policies has expressed an intent to cancel any such insurance policies, and (b) there are, and in the past three (3) years there have been, no charges, complaints, claims or proceedings, pending, or to the knowledge of Atlantic, threatened against, or involving, as the case may be, Atlantic orneither FSC nor any of its Subsidiaries with respect to any alleged violation of any wageis in material default thereunder, and hour Laws, age discrimination act Laws, employment discrimination Laws or any otherall claims arising out of any employment relationship as to any of employee of Atlantic orthereunder have been filed in due and timely fashion.
3.28 No Investment Advisor.   Neither FSC nor any of its Subsidiaries serves in a capacity described in Section 9(a) or 9(b) of the Investment Company Act of 1940, as amended, nor acts as an “investment adviser” required to any person seeking employment therefrom, and no such violations exist. All employees and independent contractors of Atlantic and its Subsidiaries are properly classifiedregister as such for all purposes, includingunder the Atlantic Plans.
2.30Related-Party Transactions.   Except for: (a) loansInvestment Advisers Act of 1940, as amended, and extensions of credit made on substantially the same terms, including interest rates and collateral, as those prevailing at the time for comparable transactions by Atlantic orneither FSC nor any of its Subsidiaries with other Persons who areis a broker-dealer under Section 15(b) of the Exchange Act.
3.29 Information Security.   Except as would not affiliated with Atlanticreasonably be likely, either individually or in the aggregate, to have a Material Adverse Effect on FSC, to FSC’s Knowledge, since January 1, 2016, no third party has gained unauthorized access to any information technology networks controlled by and material to the operation of the business of FSC and its Subsidiaries.
3.30 Brokers; Fairness Opinion.   Neither FSC nor any of its officers, directors or Subsidiaries and which do not involve more than the normal risk of repayment(including Fidelity) has employed any broker or present other unfavorable features; (b) deposits, all of which are on terms and conditions identical to those made available to all customers of Atlantic Coast Bank at the time such deposits were entered into; and (c) transactions specifically described in Section 2.30 of the Disclosure Schedule, there are no contracts with or commitments to present or former five percent (5%) or greater stockholders, directors, officers or employees involving the expenditure of more than $50,000 as to any one individual, including with respect to any business directly or indirectly controlled by any such Person, or $100,000 for all such contracts or commitments in the aggregate for all such individuals (other than contracts or commitments relating to services to be performed by any officer, director or employee as a currently-employed employee of Atlantic or any of its Subsidiaries).
2.31Approvals, Consents and Filings.   Except for the Required Regulatory Approvals, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will: (a) require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority; or (b) violate any Law applicable to Atlantic or any of its Subsidiaries or any assets or properties of Atlantic or any of its Subsidiaries. Atlantic has no knowledge of any fact or condition that would prevent or materially impede or delay Ameris and Atlantic from obtaining the Required Regulatory Approvals without the imposition of any Burdensome Regulatory Condition.
2.32Absence of Brokers.   Except for Hovde Group, LLC (“Hovde”) and B. Riley FBR, Inc. (“B. Riley FBR”), which have provided financial advisory services to Atlantic, no broker, finder or other financial consultant has acted on behalf of Atlanticincurred, nor will it incur, any liability for any broker’s fees, commissions or any of its Subsidiariesfinder’s fees in connection with this Agreement or the transactions contemplated hereby. Section 2.32 of the Disclosure Schedule sets forth the fees and expenses that that are currently owed to Hovde and to B. Riley FBR and that will be owed to Hovde and to B. Riley FBR as a result of the consummationany of the transactions contemplated by this Agreement.
2.33Fairness Opinion.   PriorAgreement, except that FSC has engaged, and will pay a fee or commission to Sandler O’Neill & Partners, L.P. and FIG Partners, LLC (each a “FSC Financial Advisor”), in accordance with the executionterms of this Agreement, Atlantica letter agreement between such FSC Financial Advisor and FSC, a true, complete and correct copy of which has been previously delivered by FSC to ABCB. FSC has received anthe opinion from Hovdeof each FSC Financial Advisor (and, when it is delivered in writing, a copy of such opinion will be promptly provided to ABCB) to the effect that, as of the date of such opinionthis Agreement and based onupon and subject to the mattersqualifications and assumptions set forth in such opinion,therein, the Merger Consideration is fair, to the stockholders of Atlantic from a financial point of view. Such opinion has not been amended or rescindedview, to the holders of shares of FSC Common Stock, and, as of the date of this Agreement. Atlantic has provided Ameris with a true and complete copy ofAgreement, such opinion for informational purposes.has not been withdrawn, revoked or modified.
2.34Takeover Laws and Provisions.   Atlantic has taken all necessary action, if any, to render inapplicable to this Agreement, the Merger and the other transactions contemplated in this Agreement the provisions of any potentially applicable anti-takeover, control share, fair price, moratorium, interested stockholder or similar Law or, if applicable, any shareholder rights or poison pill agreement or similar agreement applicable with respect to Atlantic. No “fair price” Law or similar provision of the articles of incorporation of Atlantic or bylaws of Atlantic is applicable to this Agreement and the transactions contemplated hereby.
A-28
TABLE OF CONTENTS​​​​
2.35 3.31 Information Supplied.   None of the information supplied or to be supplied by Atlantic or any of its SubsidiariesFSC specifically for inclusion or incorporation by reference in (a)(i) the Atlantic Proxy Materials,Statement/Prospectus, on the date such Atlantic Proxy Materialsit (or any amendment or supplement thereto) areis first mailed to the stockholders of AtlanticFSC Shareholders or the ABCB Shareholders, or at the time of the SpecialFSC Shareholders’ Meeting (b)or the Ameristime of the ABCB Shareholders’ Meeting, (ii) the Registration Statement, when it or any amendment thereto becomes effective under the Securities Act, or (c)(iii) the documents and financial statements of AtlanticFSC incorporated by reference in the Atlantic Proxy Materials,Statement/​Prospectus, the Ameris Registration Statement or any amendment or supplement thereto, will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing, no representation or warranty is made by AtlanticFSC with respect to statements made or incorporated by reference therein based on information supplied by or on behalf of AmerisABCB or its Subsidiaries for inclusion in the Atlantic Proxy MaterialsStatement/Prospectus or the Ameris Registration Statement.
3.32 No Other Representations or Warranties.   Except for the representations and warranties made by FSC in this ARTICLE III, neither FSC nor any other Person makes any express or implied representation or warranty with respect to FSC, its Subsidiaries or their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects, and FSC hereby disclaims any such other representations or warranties. In particular, without limiting the foregoing disclaimer, neither FSC nor any other Person makes or has made any representation or warranty to ABCB or any of its Affiliates or Representatives with respect to (i) any financial projection, forecast, estimate, budget or prospective information relating to FSC,
A-28
TABLE OF CONTENTS​​​​
any of its Subsidiaries or their respective businesses or (ii) except for the representations and warranties made by FSC in this ARTICLE III, any oral or written information presented to ABCB or any of its Affiliates or Representatives in the course of their due diligence investigation of FSC or the negotiation of this Agreement or in the course of the transactions contemplated hereby. FSC acknowledges and agrees that neither ABCB nor any other Person has made or is making any express or implied representation or warranty other than those contained in ARTICLE IV.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF AMERISABCB
As4.1 Making of Representations and Warranties.
(a) On or prior to the date hereof, ABCB has delivered to FSC a schedule (the “ABCB Disclosure Schedule”) setting forth, among other things, items the disclosure of which is necessary or appropriate either in response to an inducementexpress disclosure requirement contained in a provision hereof or as an exception to Atlanticone or more representations or warranties contained in ARTICLE IV or to enter intoone or more of its covenants contained in Section 5.2; provided, however, that disclosure of any item in any section or subsection of the ABCB Disclosure Schedule shall be deemed disclosed only with respect to the corresponding section or subsection or any other section or subsection of this Agreement to the extent that the relevance of such disclosure to such other section or subsection is reasonably apparent on its face.
(b) Except as disclosed in the ABCB Disclosure Schedule or in any ABCB SEC Filings filed by ABCB after January 1, 2017 and prior to consummate the transactions contemplateddate hereof  (but disregarding risk factor disclosures contained under the heading “Risk Factors,” or disclosures of risks set forth in any “forward-looking statements” disclaimer or any other statements that are similarly non-specific or cautionary, predictive or forward-looking in nature), ABCB hereby Ameris represents and warrants to FSC as follows:follows.
4.2 3.1Corporate StatusOrganization.   Ameris
(a) ABCB is a Georgia corporation (i) duly organized, validly existing and in good standing under the Laws of the State of Georgia. Ameris BankGeorgia, (ii) which is a Georgia bank holding company duly registered under the BHCA, (iii) with all requisite corporate power and authority to own or lease and operate its properties and to carry on its business as presently conducted and (iv) duly qualified and in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its activities or the character of the properties it owns or leases make such qualification necessary, except in the case of  (iii) or (iv) where the lack of such corporate power, authority, authorization or qualification has not had and would not reasonably be expected to have a Material Adverse Effect on ABCB. True, complete and correct copies of the Charter Documents of ABCB, as in effect as of the date of this Agreement, have previously been made available to FSC.
(b) Ameris (i) is duly organized, validly existing and in good standing under the Laws of the State of Georgia. Ameris and Ameris Bank haveGeorgia, (ii) with all of the requisite corporate power and authority and are entitled to own or lease their respectiveand operate its properties and assets and to carry on their businessesits business as presently conducted and (iii) duly qualified and in good standing in each jurisdiction in which the places where such propertiesnature of its activities or assets are now owned, leased or operated and such businesses are now conducted.
3.2Authority; Enforceability.
(a)   Subject to receiptthe character of the Required Regulatory Approvals and the approval of the Atlantic stockholders, the execution, delivery and performance of this Agreement and the other transactions contemplatedproperties it owns or required in connection herewith will not, with or without the giving of notice or the passage of time, or both:
(i)   violate any provision of federal or state Law applicable to Ameris or any of its Subsidiaries, the violation of which would be reasonably expected to have a Material Adverse Effect;
(ii)   violate any provision of the articles of incorporation or bylaws of Ameris or the comparable governing documents of any of its Subsidiaries;
(iii)   conflict with or result in a breach of any provision of, or termination of, or constitute a default under any instrument, license, agreement or commitment to which Ameris or any of its Subsidiaries is a party, which, individually orleases make such qualification necessary, except in the aggregate,case of  (ii) or (iii) where the lack of such authorization or qualification has not had and would not reasonably be expected to have a Material Adverse Effect;Effect on ABCB.
(iv)   constitute a violation4.3 Authority; Binding Nature.
(a) Each of any order, judgment or decreeABCB and, to which Ameris or any ofthe extent applicable, its Subsidiaries is a party, or by which Ameris or any of its Subsidiaries, or any of their respective assets or properties, is bound, which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; or
(v)   result in the creation or imposition of any Lien, security interest, equity or restriction of any nature whatsoever in favor of any third party upon any assets or properties of Ameris or any of its Subsidiaries.
(b)   Ameris and Ameris Bank each have the fullhas all requisite corporate power and authority to enter into and perform this Agreement and as applicable, the Bank Merger Agreement, to perform its obligations hereunder and thereunder and, subject to the receipt of the ABCB Shareholder Approval, to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by ABCB of this Agreement and as applicable,by Ameris of the Bank Merger Agreement, by Ameris and Ameris Bank and the consummation by Ameris and Ameris Bank of the transactions contemplated hereby and thereby, have been duly and validly approved by the board of directors of ABCB and Ameris. Subject to the approval of the ABCB Common Stock Issuance by the affirmative vote of the ABCB Shareholders holding a majority of the
A-29
TABLE OF CONTENTS​​​
Ameristotal votes cast thereon (the “ABCB Shareholder Approval”) and Ameristhe approval of the Bank including all necessary actionMerger Agreement by ABCB as the boards of directorssole shareholder of Ameris, and Ameris Bank. Nono other corporate proceedings are necessary on the part of Ameris or Ameris BankABCB are necessary to authorize this Agreement or to consummate the transactions contemplated hereby or by the Bank Merger Agreement. This Agreement has been, and the Bank Merger Agreement will be, duly executed and delivered by ABCB and Ameris, as applicable, and constitutes or, in the case of the Bank Merger Agreement, will constitute (in each case assuming due authorization, execution and delivery by FSC and Fidelity, as applicable) the legal, valid and binding obligations of ABCB and Ameris enforceable against ABCB and Ameris, as applicable, in accordance with its terms, except as such enforceability may be limited by Applicable Laws related to safety and soundness of insured depository institutions as set forth in 12 U.S.C. §1818(b), the appointment of a conservator or receiver, bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws affecting creditors’ rights and remedies generally and general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(b) ABCB and Ameris have taken all reasonable actions by them in order to exempt this Agreement and the Bank Merger Agreement and the transactions contemplated hereby and thereby from the requirements of any Takeover Statutes to the extent such Takeover Statutes are applicable to the transactions contemplated by this Agreement. ABCB and Ameris have taken all action required to be taken by them in order to make this Agreement and the Bank Merger Agreement and the transactions contemplated hereby and thereby comply with, and the transactions contemplated hereby and thereby do comply with, the requirements of any provisions of their respective Charter Documents concerning “business combination,” “fair price,” “voting requirement,” “constituency requirement” or other related provisions.
4.4 No Conflicts.   The execution, delivery and performance of this Agreement by ABCB and of the Bank Merger Agreement by Ameris, and the consummation of the transactions contemplated hereby and thereby by ABCB and its Subsidiaries, including the Merger and the Bank Merger, do not and will not (i) conflict with, or result in a breach or violation of or default under, any terms or conditions of the Charter Documents of ABCB or any of its Subsidiaries or (ii) assuming that the consents and approvals referred to in Section 4.5 hereof are duly obtained, (A) conflict with or violate in any material respect any Applicable Law as to ABCB or any of its Subsidiaries, (B) result in any breach of, or constitute a default (or event which with the giving of notice or lapse of time, or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation pursuant to any ABCB Contract or (C) result in the creation or imposition of any Lien other than Permitted Liens on any of the assets of ABCB or its Subsidiaries except, in the case of  (B) and (C), as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on ABCB.
4.5 Consents and Approvals.   Other than the Regulatory Approvals and the ABCB Shareholder Approval, no consents, approvals, authorizations or other actions by, or filings with or notifications to, any Person or any Governmental Authority on the part of ABCB or any of its Subsidiaries are required in connection with the execution, delivery and performance of this Agreement and, as applicable,by ABCB or by Ameris of the Bank Merger Agreement, by Ameris and Ameris Bank and the consummation by Ameris and Ameris Bank of the transactions contemplated hereby and thereby. Assuming this
4.6 Regulatory Matters.   Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on ABCB, ABCB and each of its Subsidiaries have timely filed all reports, registrations and statements, together with any amendments required to be made with respect thereto, that it was required to file since January 1, 2016 with, as applicable, (i) the Federal Reserve Board, (ii) the FDIC, (iii) the GDBF and (iv) any other applicable bank regulatory agencies (collectively, the “ABCB Regulatory Agencies” and, together with the FSC Regulatory Agencies, the “Regulatory Agencies”), and any other applicable Governmental Authority, and have paid all applicable fees, premiums and assessments due and payable thereto, and each such report, registration and statement, including financial statements, exhibits and schedules thereto, complied with Applicable Law. Neither ABCB nor any of its Subsidiaries is subject to any cease-and-desist or other formal or informal order or enforcement action issued by, or is a party to any written agreement, consent agreement, operating agreement or memorandum of understanding with, or is a party to any commitment letter, regulatory directive or similar undertaking with, or is subject to any capital directive by, or since January 1, 2015 has been ordered to pay any civil money penalty by, or has adopted any board resolutions at the request of, any ABCB Regulatory Agency or
A-30
TABLE OF CONTENTS​​​
other Governmental Authority of any kind that currently restricts in any material respect the conduct of its business or that in any material manner relates to its capital adequacy, its ability to pay dividends, its credit or risk management policies, its management or its business (each, a “ABCB Regulatory Agreement constitutes”), nor has ABCB or any of its Subsidiaries been advised since January 1, 2015 by any ABCB Regulatory Agency or other Governmental Authority that it is considering issuing, initiating, ordering or requesting any such ABCB Regulatory Agreement. Except for normal examinations conducted by an ABCB Regulatory Agency in the validordinary course of business of ABCB and binding obligationits Subsidiaries, to ABCB’s Knowledge, there is no unresolved written violation, criticism, comment or exception by any ABCB Regulatory Agency or other Governmental Authority relating to ABCB or any of Atlantic, this Agreement constitutesits Subsidiaries, which would reasonably be expected to have, either individually or in the valid and binding obligation of Ameris and is enforceable in accordance with its terms, except as limited by the General Enforceability Exceptions.
3.3Capital Structure.
(a)aggregate, a Material Adverse Effect on ABCB. As of the date hereof, ABCB is not aware of this Agreement,any reason attributable to ABCB or Ameris haswhy all required Regulatory Approvals would not be received on a timely basis without undue delay.
4.7 Capitalization.
(a) The authorized capital stock consisting solely of:of ABCB consists only of  (i) 100,000,000 shares of AmerisABCB Common Stock, of which 37,231,04947,502,824 shares were issued and outstanding as of November 3, 2017 (exclusiveDecember 14, 2018 (the “ABCB Capitalization Date”), and 1,514,984 of 92,000 shares reserved for issuance upon exercisewhich were held in treasury as of outstanding options to acquire shares of Ameris Common Stock);the ABCB Capitalization Date, and (ii) 5,000,000 shares of preferred stock, none of which arewere issued and outstanding as of the date hereof.ABCB Capitalization Date. Such shares constitute all of the issued and outstanding shares of ABCB Common Stock as of the ABCB Capitalization Date. All of the issued and outstanding shares of AmerisABCB Common Stock and shares of ABCB’s preferred stock have been duly authorized, validly issued and are fully paid and nonassessable. None of such shares have been issued or disposed of in violation of any preemptive rights of any Person. The ABCB Common Stock to be issued in exchange for FSC Common Stock in the Merger, when issued in accordance with the terms of this Agreement, will be duly andauthorized, validly issued, fully paid and nonassessablenon-assessable and were offered, issuedwill not be subject to any preemptive rights. As of the date hereof, there are, and sold in compliance with all Applicable Law. No Person has any rightas of rescission or, to the knowledge of Ameris, claim for damages under Applicable Laws with respect to the issuance of anyEffective Time there will be, sufficient authorized and unissued shares of AmerisABCB Common Stock previously issued. None ofto enable ABCB to issue the shares of Ameris Common Stock has been issuedMerger Consideration as contemplated in violation of any preemptive or other rights of its respective stockholders.this Agreement.
(b) All of the issued and outstanding shares of capital stock of Ameris Bank are, on the date of this Agreement, and on the Closing Date will be, held by Ameris.ABCB.
3.4(c) Except as disclosed in the ABCB SEC Filings, as of the date hereof, there are no outstanding (i) rights, plans, options, warrants, calls, conversion rights or any agreements, arrangements or commitments of any kind or character (either firm or conditional) obligating ABCB or any of its Affiliates to issue, deliver or sell, or cause to be delivered or sold, any capital stock of ABCB or its Subsidiaries, or any securities exchangeable for or convertible into the capital stock of ABCB or its Subsidiaries, (ii) contractual obligations of ABCB or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of ABCB or any of its Subsidiaries or (iii) proxies, voting agreements, voting trusts, preemptive rights, rights of first refusal, rights of first offer, rights of co-sale or tag-along rights, shareholder agreements or other rights, understandings or arrangements to which ABCB or any of its Subsidiaries is a party regarding the voting or disposition of the shares of ABCB Common Stock or capital stock of its Subsidiaries. No bonds, debentures, notes or other indebtedness having the right to vote on any matters on which the holders of capital stock may vote have been issued by ABCB or any of its Subsidiaries and are outstanding as of the date hereof.
4.8 Deposits.   The deposit accounts of Ameris are insured by the FDIC to the fullest extent permitted by Applicable Law, and all premiums and assessments required to be paid in connection therewith have been duly, timely and fully paid. No proceedings for the revocation or termination of such deposit insurance are pending or, to ABCB’s Knowledge, threatened.
4.9 ABCB SEC Filings.   ABCB has filed (or furnished) all registration statements, prospectuses, forms, reports, definitive proxy statements, schedules and documents required to be filed (or furnished) with the SEC by it under Section 5 of the Securities Act or Sections 13(a), 14 or 15(d) of the Exchange Act, as the case may be, from and after January 1, 2016 (collectively, the “ABCB SEC Filings”). Each ABCB SEC Filing, as amended or supplemented if applicable, (i) as of its date, or, if amended or supplemented, as of the date of the most recent amendment or supplement thereto, complied in all material respects with the
A-31
TABLE OF CONTENTS​
requirements of the Securities Act or the Exchange Act, as the case may be, and (ii) did not, at the time it was filed (or became effective in the case of registration statements), or, if amended or supplemented, as of the date of the most recent amendment or supplement thereto, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
4.10 Financial Statements.
(a) The financial statements of AmerisABCB and its Subsidiaries included (or incorporated by reference) in the Ameris Exchange Act Reports,ABCB SEC Filings, including the related notes, where applicable (the “ABCB Financial Statements”), (i) have been prepared from, and are in accordance with, the books and records of AmerisABCB and its Subsidiaries, (ii) fairly present in all material respects the consolidated results of operations, cash flows, changes in shareholders’ equity and consolidated financial position of AmerisABCB and its Subsidiaries for the respective fiscal periods or as of the respective dates therein set forth (subject in the case of unaudited statements to recurring year-end audit adjustments normal in nature and amount), (iii) complied as to form, as of their respective dates of filing with the SEC, in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto and (iv) have been prepared in accordance with GAAP consistently applied during the periods involved, except, in each case, as indicated in such statements or in the notes thereto.
(b)   Ameris As of the date hereof, the books and records of ABCB and its Subsidiaries have been maintained a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executedin all material respects in accordance with management’s generalGAAP and any other applicable legal and accounting requirements and reflect only actual transactions. As of the date hereof, Crowe Horwath LLP has not resigned (or informed ABCB that it intends to resign) or specific authorizations;been dismissed as independent public accountants of ABCB as a result of or in connection with any disagreements with ABCB on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on ABCB, neither ABCB nor any of its Subsidiaries has incurred any liability or obligation of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether due or to become due) required by GAAP to be included in the consolidated balance sheet of ABCB, except for (i) those liabilities that are reflected or reserved against on the consolidated balance sheet of ABCB included in its Quarterly Report on Form 10-Q for the fiscal quarter ended the Interim Balance Sheet Date (including any notes thereto), (ii) liabilities or obligations incurred in the ordinary course of business consistent with past practice since the end of such fiscal quarter or (iii) liabilities or obligations incurred in connection with this Agreement and the transactions contemplated hereby.
(c) The records, systems, controls, data and information of ABCB and its Subsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of ABCB or its Subsidiaries or accountants (including all means of access thereto and therefrom) except as necessarywould not reasonably be expected to, permit preparationindividually or in the aggregate, have a Material Adverse Effect on ABCB. ABCB (i) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) to ensure that material information relating to ABCB, including its Subsidiaries, is made known to the chief executive officer and the chief financial statements in conformity with GAAPofficer of ABCB by others within those entities as appropriate to allow timely decisions regarding required disclosures and to maintain accountability for assets; (iii) accessmake the certifications required by the Exchange Act and Sections 302 and 906 of the Sarbanes-Oxley Act and (ii) has disclosed, based on its most recent evaluation prior to assets is permitted onlythe date hereof, to ABCB’s outside auditors and the audit committee of ABCB’s board of directors (A) any significant deficiencies and material weaknesses in accordance with management’s generalthe design or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. No changes have been made to Ameris’soperation of internal control over financial reporting as(as defined in Rule 13a-15(f) and Rule 15d-15(f) of the Exchange Act, since December 31, 2016 that materially affected, orAct) which are reasonably likely to materiallyadversely affect itsABCB’s ability to record, process, summarize and report financial information and (B) to ABCB’s Knowledge, any fraud, whether or not material, that involves management or other employees who have a significant role in ABCB’s internal controlcontrols over financial reporting.
3.5Disclosure Reports.
(a)   Ameris has a class of securities registered To ABCB’s Knowledge, there is no reason to believe that ABCB’s outside auditors and its chief executive officer and chief financial officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 12(b) of the Exchange Act. Ameris has timely filed all forms, proxy statements, reports, schedules and other documents, including all certifications and statements required by the Exchange Act or Section 906404 of the Sarbanes-Oxley Act, required to be filed by the Exchange Act since January 1, 2015 (the “Ameris Exchange Act Reports”). The Ameris Exchange Act Reports: (a) at the time filed (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing) complied in all materialwithout qualification, when next due.
A-30A-32
TABLE OF CONTENTS​​​​​
respects with4.11 Ordinary Course; Lack of Material Adverse Change.   Since the applicable requirements of the securities Laws and other Applicable Laws; and (b) did not, at the time they were filed (or, if amended or superseded by a filing prior toBalance Sheet Date through the date of this Agreement, then onexcept as reflected in the date of such filing) contain any untrue statement of a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Each offeringABCB SEC Filings or sale of securitiesas specifically provided by Ameris: (x) was either registered under the Securities Act or made pursuant to a valid exemption from registration; (y) compliedthis Agreement, (a) ABCB and its Subsidiaries have operated in all material respects with the applicable requirements of the securities Laws and other Applicable Laws, except for immaterial late “blue sky” filings, including disclosure and broker/dealer registration requirements; and (z) was made pursuant to offering documents which did not, at the time of the offering (or, in the case of registration statements, at the effective date thereof) contain any untrue statement of a material fact or omit to state a material fact required to be stated in the offering documents or necessary to make the statements in such documents, in light of the circumstances under which they were made, not misleading.
(b)   The information contained in the Ameris Exchange Act Reports shall be deemed to qualify all representations and warranties contained in this Article III to the extent applicable.
3.6Regulatory Reports.   The year-end Reports of Condition and Income filed by Ameris Bank with the FDIC and the Forms F.R. Y-6 and F.R. Y-9SP filed by Ameris with the Federal Reserve for or during each of the three (3) years ended December 31, 2016, 2015 and 2014, together with all such other reports filed by Ameris and Ameris Bank for or during the same three (3)-year period with the Georgia Department of Banking and Finance (the “GDBF”), if any, and with any other applicable Governmental Authorities, have been prepared in all material respects in accordance with Applicable Laws applied on a basis consistent with prior periods and contain all information required to be presented therein in accordance with such Applicable Laws.
3.7Enforcement Actions.   Except for a Consent Order issued by the FDIC and the GDBF, dated December 16, 2016, neither Ameris nor any of its Subsidiaries is subject to, bound by or a party to any Regulatory Agreement with or issued by the Federal Reserve, the FDIC, the GDBF, the FOFR, the DOJ or any other applicable Governmental Authority, and neither Ameris nor any of its Subsidiaries has been advised by the Federal Reserve, the FDIC, the GDBF, the FOFR, the DOJ or any other applicable Governmental Authority that it is considering issuing, initiating, ordering or requesting any such Regulatory Agreement.
3.8Absence of Changes.   Since December 31, 2016, there has been no change in the business, assets, liabilities, results of operations or financial condition of Ameris or any of its Subsidiaries, or in any of Ameris’s or any of its Subsidiaries’ relationships with customers, employees, lessors or others, other than changes in the ordinary course of business none of which individuallyconsistent with past practice and (b) there has not been any Material Adverse Change in ABCB or in the aggregate has had,any event, change, occurrence, effect or whichdevelopment that would reasonably be expected to have a Material Adverse Effect.Effect on ABCB.
4.12 3.9Reorganization.   Neither ABCB nor any of its Subsidiaries has taken any action, nor are they aware of any fact or circumstance, that would reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
4.13 Litigation and ProceedingsTaxes.   Except as would not reasonably be reasonably likelyexpected to have, either individually or in the aggregate, a Material Adverse Effect there are no actions, decrees, suits, counterclaims, claims, proceedings or governmental actions or investigations pending or, to the knowledge of Ameris, threatened against, by or affecting Ameris or any of its Subsidiaries, or any officer, director, employee or agent in such person’s capacity as an officer, director, employee or agent of Ameris or any of its Subsidiaries or relating to the business or affairs of Ameris or its Subsidiaries, in any court or before any arbitrator or Governmental Authority, and no judgment, award, order or decree of any nature has been rendered against or with respect thereto by any arbitrator or Governmental Authority, nor does Ameris or any of its Subsidiaries have, to the knowledge of Ameris, any unasserted contingent liabilities.
3.10Compliance.   To the knowledge of Ameris, no facts or circumstances exist which would cause Ameris Bank: (a) to be deemed not to be in satisfactory compliance with the Community Reinvestment Act, and the regulations promulgated thereunder, or to be assigned a rating for Community Reinvestment Act purposes by federal or state bank regulators of lower than “satisfactory”; (b) to be deemed to be operating in violation of the Bank Secrecy Act and its implementing regulations (31 C.F.R. Part 103), the USA PATRIOT Act, any order issued with respect to anti-money laundering by the U.S. Department of the Treasury’s Office of Foreign Assets Control, or any other applicable anti-money laundering Law, the Truth in Lending Act and Regulation Z, the Dodd-Frank Wall Street Reform and Consumer Protection Act, any
A-31
TABLE OF CONTENTS​​​​​
regulations promulgated by the Consumer Financial Protection Bureau or any regulations relating to unfair, deceptive or abusive acts and practices under federal or state Law; or (c) to be deemed not to be in satisfactory compliance with the applicable privacy of customer information requirements contained in any federal and state privacy Laws and regulations, including in Title V of the Gramm-Leach-Bliley Act of 1999 and regulations promulgated thereunder, as well as the provisions of the information security program adopted by Ameris Bank pursuant to 12 C.F.R. Part 364. Furthermore, the board of directors of Ameris Bank has adopted and Ameris Bank has implemented an anti-money laundering program that contains adequate and appropriate customer identification verification procedures and that meets the requirements of Sections 352 and 326 of the USA PATRIOT Act. Other than investments to satisfy regulatory requirements, neither Ameris nor Ameris Bank is a party to any agreement with any Person regarding Community Reinvestment Act matters.
3.11Approvals, Consents and Filings.   Except for the Required Regulatory Approvals, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will: (a) require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority; or (b) violate any Law applicable to Ameris or any of its Subsidiaries or any assets or properties of Ameris or any of its Subsidiaries. Ameris has no knowledge of any fact or condition that would prevent or materially impede or delay Ameris and Atlantic from obtaining the Required Regulatory Approvals without the imposition of any Burdensome Regulatory Condition.
3.12Absence of Brokers.   Except for Keefe, Bruyette & Woods, Inc., which has provided financial advisory services to Ameris, no broker, finder or other financial consultant has acted on behalf of Ameris or any of its Subsidiaries in connection with this Agreement or the transactions contemplated hereby.
3.13Tax Returns; Taxes.ABCB:
(a) Each of Ameris and Ameris Bank has: (i) duly and timely filed with the appropriate Governmental Authority allAll Tax Returns that were or are required to be filed on or before the Closing Date by it (taking into account any applicable extensions)ABCB or its Subsidiaries have been or will be timely filed on or before the Closing Date, and all such Tax Returns are or will be true, correct and complete in all material respects and were or will be prepared in compliance with all Applicable Laws; and (ii) timely paid all Taxes due and owing from itby ABCB or its Subsidiaries (whether or not shown due on the Tax Returns referred to in clause (i)) have been or will be timely paid in full on or before the Closing Date; (iii) all deficiencies asserted in writing or assessments made in writing by the relevant Taxing Authority in connection with any of the Tax Returns).Returns referred to in clause (i) have been or will be timely paid in full on or before the Closing Date; and (iv) no issues that have been raised in writing by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) are pending as of the date of this Agreement, or, if pending, have been specifically identified by ABCB to FSC in writing and adequately reserved for in the ABCB Financial Statements. Neither AmerisABCB nor Ameris Bankany of its Subsidiaries currently is currently the beneficiary of any extension of time within which to file any Tax Return. To the knowledge of Ameris, no claim has ever been made by a Governmental Authority in a jurisdiction where Ameris and Ameris Bank do not file Tax Returns that Ameris or Ameris Bank is or may be subject to taxation by that jurisdiction. There are no Liens for Taxes (other than Taxes not yet due and payable) upon any of the assets of Ameris or Ameris Bank.
(b) Neither Ameris nor Ameris Bank has waived any statute of limitations with respect to Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
(c)   No foreign, federal, state or local Tax audits or administrative or judicial Tax proceedings are pending or being conducted with respect to AmerisABCB or Ameris Bank.any of its Subsidiaries. Neither AmerisABCB nor Ameris Bankits Subsidiaries has received from any GovernmentalTaxing Authority (including jurisdictions where AmerisABCB or Ameris Bank hasits Subsidiaries have not filed Tax Returns) any:any (i) written notice indicating an intent to open an audit or other review;review, (ii) written request for information related to Tax matters;matters or (iii) written notice of deficiency or proposed adjustment for any amount of Tax proposed, asserted or assessed by any GovernmentalTaxing Authority against AmerisABCB or Ameris Bank.
(d)   Neither Ameris nor Ameris Bankany of its Subsidiaries. ABCB has taken any action, failedprovided FSC with correct and complete copies of all federal and state income Tax Returns filed by ABCB and each of its Subsidiaries for taxable periods ended on or after December 31, 2015 and all examination reports and statements of deficiency related to take any actionfederal and state income Tax assessed against or knows of any fact that would be reasonably expectedagreed to prevent the Merger or the Bank Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
3.14Financing.   Ameris has, or will have available to it, prior to the Closing Date, all funds necessary to satisfy its obligations hereunder.
3.15Information Supplied.   None of the information supplied or to be supplied by AmerisABCB or any of its Subsidiaries with respect to those taxable periods.
(c) There are no Liens on ABCB’s or any of its Subsidiaries’ assets that arose in connection with any failure (or alleged failure) to pay any Tax other than Permitted Liens or Liens the validity of which is being contested in good faith by appropriate proceedings and for inclusionwhich adequate accruals or incorporationreserves have been established in accordance with GAAP in the ABCB Financial Statements.
(d) Neither ABCB nor any of its Subsidiaries has waived any statute of limitations in respect of income Taxes or agreed to any extension of time with respect to an income Tax assessment or deficiency.
(e) ABCB and its Subsidiaries have withheld and timely paid all Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(f) Neither ABCB nor any of its Subsidiaries is (or has been) a party to any Tax allocation or sharing agreement (other than such an agreement or arrangement exclusively between or among ABCB and its Subsidiaries). Neither ABCB nor any of its Subsidiaries (i) has been a member of an Affiliated Group filing a consolidated federal Tax Return (other than a group the common parent of which was ABCB or any of its Subsidiaries) or (ii) has any liability for Taxes of any Person (other than ABCB or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Tax Law) as a transferee, successor, by referencecontract or otherwise.
A-33
TABLE OF CONTENTS​​​
(g) No claim has been made in the last five (5) years by a Taxing Authority in a jurisdiction where ABCB or any Subsidiary does not file Tax Returns that ABCB (or such Subsidiary) is or may be subject to taxation by that jurisdiction.
(h) Neither ABCB nor any Subsidiary has, in the last five (5) years, distributed stock of another corporation, or had its stock distributed by another corporation, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or 361 of the Code.
(i) Neither ABCB nor any Subsidiary is or has been a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(j) Neither ABCB nor any Subsidiary has engaged in any transaction that, as of the date hereof, is a “listed transaction” under Treasury Regulations Section 1.6011-4(b)(2).
4.14 Real Property.   Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on ABCB, as of the date of this Agreement, ABCB or one of its Subsidiaries (a) has good and marketable title to all the Atlantic Proxy Materials,real property reflected in the latest balance sheet included in the ABCB SEC Filings as being owned by ABCB or one of its Subsidiaries or acquired after the date thereof  (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business) free and clear of all Liens, except for Permitted Liens, and (b) is the lessee of all leasehold estates reflected in the latest financial statements included in the ABCB SEC Filings or acquired after the date thereof  (except for leases that have expired by their terms since the date thereof), free and clear of all Liens, except for Permitted Liens, and is in possession of the properties purported to be leased thereunder, and each such lease is valid without default thereunder by the lessee or, to the ABCB’s Knowledge, the lessor.
4.15 Litigation; Orders.
(a) Except as would not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect on ABCB, there is no Proceeding pending or, to ABCB’s Knowledge, threatened either (i) against ABCB or any of its Subsidiaries or (ii) seeking to prevent, alter or delay any of the transactions contemplated by this Agreement or the Bank Merger Agreement.
(b) There is no Order outstanding against ABCB or any of its Subsidiaries, or to which any assets, interest or right of any of them may be subject, that would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on ABCB.
4.16 Compliance.
(a) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on ABCB, ABCB and each of its Subsidiaries is, and has been since January 1, 2015, in compliance with all Applicable Laws and Orders, including all Laws related to data protection or privacy, the USA PATRIOT Act, the Bank Secrecy Act, the Equal Credit Opportunity Act and Regulation B, the Fair Housing Act, the Community Reinvestment Act, the Fair Credit Reporting Act, the Truth in Lending Act and Regulation Z, the Home Mortgage Disclosure Act, the Fair Debt Collection Practices Act, the Electronic Fund Transfer Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, any regulations promulgated by the Consumer Financial Protection Bureau, the Interagency Policy Statement on Retail Sales of Nondeposit Investment Products, the SAFE Mortgage Licensing Act of 2008, the Real Estate Settlement Procedures Act and Regulation X, and any other Law relating to bank secrecy, discriminatory lending, financing or leasing practices, money laundering prevention, Sections 23A and 23B of the Federal Reserve Act, the Sarbanes-Oxley Act, and all agency requirements relating to the origination, sale and servicing of mortgage and consumer loans.
(b) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on ABCB, ABCB and each of its Subsidiaries have all Permits of, and have made all required filings, applications and registrations with, all applicable Governmental Authorities necessary to permit it to own or lease its properties and to carry on its business as presently conducted, and all such Permits are in full force and effect. To ABCB’s Knowledge, no suspension or cancellation of any material Permit is threatened.
A-34
TABLE OF CONTENTS​​
4.17 Loans.
(a) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on ABCB, each loan, revolving credit facility, letter of credit or other extension of credit (including guarantees) or commitment to extend credit originated or acquired by ABCB and its Subsidiaries (collectively, “ABCB Loans”) (i) complies with Applicable Laws, (ii) has been made, entered into or acquired by ABCB or one of its Subsidiaries in accordance with customary board of director-approved loan policies, (iii) is evidenced by promissory notes or other evidences of indebtedness, which are true, genuine and correct, and which, together with all security agreements and guarantees, constitute a valid and legally binding obligation of the obligor named therein, and as applicable, ABCB or one of its Subsidiaries and are enforceable in accordance with their terms, (iv) is owned by ABCB or Ameris free and clear of any Liens (other than blanket Liens by the Federal Home Loan Bank of Atlanta), (v) is in full force and effect and (vi) to ABCB’s Knowledge, is not subject to any offset, recoupment, adjustment or any other valid or cognizable claim or defense by the applicable borrower; provided, however, that the enforcement of each of the immediately preceding clauses (iii) and (v) may be limited by Applicable Laws related to safety and soundness of insured depository institutions as set forth in 12 U.S.C. §1818(b), the appointment of a conservator or receiver, bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws affecting creditors’ rights and remedies generally and general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). True, correct and complete copies of the currently effective lending policies of ABCB and each of its Subsidiaries have been made available to FSC.
(b) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on ABCB, (i) each outstanding ABCB Loan (including ABCB Loans held for resale or previously sold to investors) has been solicited and originated and is administered and, where applicable, serviced, and the relevant files are being maintained, in accordance with the relevant loan documents, ABCB’s underwriting and servicing standards (and, in the case of ABCB Loans held for resale or previously sold to investors, the underwriting standards, if any, of the applicable investors) and with Applicable Laws and applicable requirements of any government-sponsored enterprise program; and (ii) ABCB and its Subsidiaries have properly fulfilled their contractual responsibilities and duties with respect to any ABCB Loan in which they act as the lead lender or servicer.
(c) None of the agreements pursuant to which ABCB or any of its Subsidiaries has sold ABCB Loans or pools of ABCB Loans or participations in ABCB Loans or pools of ABCB Loans contains any obligation to repurchase such ABCB Loans or interests therein, other than repurchase obligations arising upon breach of representations and warranties, covenants and other obligations of ABCB or its Subsidiaries, as applicable.
(d) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on ABCB, as to each ABCB Loan that is secured, whether in whole or in part, by a guaranty of the United States Small Business Administration or any other Governmental Authority, such guaranty is in full force and effect, and to ABCB’s Knowledge, will remain in full force and effect following the Closing Date, in each case, without any further action by ABCB or any of its Subsidiaries subject to the fulfillment of their obligations under the Small Business Administration Agreement that arise after the date hereof.
(e) There are no outstanding ABCB Loans made by ABCB or any of its Subsidiaries to any “executive officer” or other “insider” (as each such term is defined in Regulation O promulgated by the Federal Reserve Board) of ABCB or its Subsidiaries, other than ABCB Loans that are subject to and that were made and continue to be in compliance with Regulation O or that are exempt therefrom.
4.18 Investment Securities and Commodities.
(a) Each of ABCB and its Subsidiaries has good title in all material respects to all securities and commodities owned by it (except those sold under repurchase agreements), free and clear of any Lien, except as set forth in the financial statements included in the ABCB SEC Filings or to the extent such securities or commodities are pledged in the ordinary course of business to secure obligations of ABCB or its Subsidiaries. Such securities and commodities are valued on the date such Atlantic Proxy Materials (or any amendment or supplement thereto) are first mailed to the stockholdersbooks of Atlantic or at the time of the Special Meeting, (b) the Ameris Registration Statement, whenABCB in accordance with GAAP in all material respects.
A-32A-35
TABLE OF CONTENTS​​​​​
(b) ABCB and its Subsidiaries and their respective businesses employ investment, securities, commodities, risk management and other policies, practices and procedures that ABCB believes are prudent and reasonable in the context of such businesses.
4.19 Derivative Transactions.   Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on ABCB, all Derivative Transactions entered into by ABCB or any of its Subsidiaries or for the account of any of its customers were entered into in the ordinary course of business and in accordance with applicable rules, regulations and policies of any ABCB Regulatory Agency and with counterparties believed to be financially responsible at the time and are legal, valid and binding obligations of ABCB or one of its Subsidiaries enforceable in accordance with their terms except as such enforceability may be limited by Applicable Laws related to safety and soundness of insured depository institutions as set forth in 12 U.S.C. §1818(b), the appointment of a conservator or receiver, bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws affecting creditors’ rights and remedies generally and general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), and are in full force and effect. ABCB and each of its Subsidiaries have duly performed in all material respects all of their material obligations thereunder to the extent that such obligations to perform have accrued, and, to ABCB’s Knowledge, there are no material breaches, violations or defaults or allegations or assertions of such by any party thereunder.
4.20 Regulatory Capital; CRA Compliance.   Each of ABCB and Ameris is, and will be upon the consummation of the transactions contemplated by this Agreement, Well-Capitalized, and Ameris’s most recent examination rating under the CRA was “satisfactory” or better. To ABCB’s Knowledge, there is no fact or circumstance or set of facts or circumstances which would be reasonably likely to cause Ameris’s CRA rating to decrease below the “satisfactory” level.
4.21 Intellectual Property.   ABCB or its Subsidiaries owns or has a valid license to use all ABCB Intellectual Property necessary for the conduct of its businesses as currently conducted, free and clear of all Liens (other than Permitted Liens), royalty or other payment obligations (except for royalties or payments with respect to off-the-shelf Software at standard commercial rates). Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on ABCB, (i) the ABCB Intellectual Property is valid and enforceable and has not been cancelled, forfeited, expired or abandoned, (ii) neither ABCB nor any of its Subsidiaries has received notice challenging the validity or enforceability of any material ABCB Intellectual Property and (iii) none of ABCB or any of its Subsidiaries is, nor will any of them be as a result of the execution and delivery of this Agreement or the performance by ABCB of its obligations hereunder, in violation of any material licenses, sublicenses and other agreements as to which ABCB or any of its Subsidiaries is a party and pursuant to which ABCB or any of its Subsidiaries is authorized to use any third-party patents, trademarks, service marks, copyrights, trade secrets or Software, and neither ABCB nor any of its Subsidiaries has received notice challenging ABCB’s or any of its Subsidiaries’ license or legally enforceable right to use any such third-party Intellectual Property rights.
4.22 Environmental Matters.   Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on ABCB, (i) no notice, notification, demand, request for information, citation, summons or order has been received by ABCB or any of its Subsidiaries, no complaint has been filed against ABCB or any of its Subsidiaries, no penalty has been assessed against ABCB or any of its Subsidiaries, and no investigation, action, claim or suit is pending or, to ABCB’s Knowledge, threatened in writing against ABCB or any of its Subsidiaries by any Governmental Authority or other Person, in each case relating to or arising out of any Environmental Law or the presence or release into the environment of any Hazardous Substance, (ii) ABCB and each of its Subsidiaries is in compliance with all Environmental Laws and all Permits relating to Environmental Law matters, (iii) neither ABCB nor any of its Subsidiaries is conducting or paying for any response or corrective action under any Environmental Law at any location and (iv) neither ABCB nor any of its Subsidiaries is party to any Order that imposes any obligations under any Environmental Law.
4.23 Certain Contracts.
(a) Each contract, arrangement, commitment or understanding (whether written or oral) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to which ABCB or any of its Subsidiaries is a party or by which ABCB or any of its Subsidiaries is bound
A-36
TABLE OF CONTENTS​
as of the date hereof has been filed as an exhibit to the most recent Annual Report on Form 10-K filed by ABCB, or a Quarterly Report on Form 10-Q or Current Report on Form 8-K subsequent thereto, including any such contract, arrangement or understanding which contains a provision that limits (or purports to limit) in any material respect the ability of ABCB to engage or compete in any business (including geographic restrictions and exclusive or preferential arrangements) (each, an “ABCB Contract”), and neither ABCB nor any of its Subsidiaries has actual knowledge of, or has received written notice of, any violation of any ABCB Contract by any of the other parties thereto which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on ABCB.
(b) In each case, except as, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on ABCB, (i) each ABCB Contract is valid and binding on ABCB or one of its Subsidiaries, as applicable, and in full force and effect, (ii) ABCB and each of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date under each ABCB Contract, (iii) to ABCB’s Knowledge each third-party counterparty to each ABCB Contract has in all material respects performed all obligations required to be performed by it to date under such ABCB Contract and (iv) no event or condition exists which constitutes or, after notice or lapse of time or both, will constitute, a material default on the part of ABCB or any of its Subsidiaries under any such ABCB Contract.
4.24 Employee Benefit Matters.
(a) With respect to each ABCB Employee Benefit Plan, (i) such ABCB Employee Benefit Plan has been administered in all material respects in compliance with its terms and with all Applicable Laws, including ERISA, the Code, the Health Insurance Portability and Accountability Act and the Patient Protection and Affordable Care Act, (ii) no Proceedings (other than routine claims for benefits) are pending, or to ABCB’s Knowledge, threatened, (iii) all premiums, contributions or other material payments required to have been made by Applicable Law or under the terms of any such ABCB Employee Benefit Plan or any contract relating thereto have been made, (iv) all material reports, returns and similar documents required to be filed with any Governmental Authority have been duly filed and (v) no non-exempt “prohibited transaction” or “reportable event” has occurred within the meaning of the applicable provisions of ERISA or the Code, in the case of each of clauses (i) through (v), except as would not reasonably be expected to result in material liability to ABCB or its Affiliates.
(b) With respect to each ABCB Employee Benefit Plan intended to qualify under Section 401(a) of the Code, the IRS has issued a favorable determination letter or opinion letter or advisory letter, no such determination letter, opinion letter or advisory letter has been revoked nor, to ABCB’s Knowledge, has revocation been threatened, and no circumstance exists that would reasonably be expected to result in the loss of such qualification.
(c) Neither ABCB nor any ABCB Employee Benefit Plan provides (or will provide) health or other welfare benefits to one or more former employees, officers, directors or other individuals (including dependents of any of the foregoing) other than benefits that are required to be provided pursuant to the applicable requirements of COBRA or similar law.
(d) No ABCB Employee Benefit Plan is, and neither ABCB nor any Affiliate maintains or contributes to, or has within the past six (6) years, maintained or contributed to, or has any material liability, whether actual or contingent, under a plan subject to Section 302 or Title IV of ERISA or to Section 412 of the Code. No ABCB Employee Benefit Plan is or was within the past six (6) years, a multiemployer plan, as defined in Section 3(37) of ERISA, and neither ABCB nor any Affiliate, within the past six (6) years, has contributed to, or had an obligation to contribute to, or incurred any liability with respect to, any such multiemployer plan.
(e) Neither the execution and delivery of this Agreement or the Bank Merger Agreement nor the consummation of the transactions contemplated by this Agreement or the Bank Merger Agreement will (whether alone or in conjunction with any other event) (i) increase the amount of any compensation, equity award or other benefits otherwise payable by ABCB or any of its Subsidiaries under any ABCB Employee Benefit Plan or (ii) result in the acceleration of the time of payment or vesting of any compensation, equity award or other benefit under any ABCB Employee Benefit Plan.
A-37
TABLE OF CONTENTS​​​​​
(f) No participants in any ABCB Employee Benefit Plan participate in such plan pursuant to the terms of a collective bargaining agreement.
4.25 Labor Relations; Employment Matters.
(a) There is no material labor strike, dispute, slowdown, stoppage or lockout actually pending or, to ABCB’s Knowledge, threatened against ABCB or any of its Subsidiaries. Neither ABCB nor any of its Subsidiaries is a party to any collective bargaining agreements or similar labor agreements and, to ABCB’s Knowledge, there are no organizing efforts by any union or other group seeking to represent any employees of ABCB or any of its Subsidiaries. ABCB and each of its Subsidiaries is, and has at all relevant times been, in compliance in all material respects with all Applicable Laws respecting employment and employment practices, terms and conditions of employment, equal opportunity, nondiscrimination, immigration, labor, wages, hours of work and occupational safety and health, and is not engaged in any unfair labor practices defined in the National Labor Relations Act or other Applicable Law. Neither ABCB nor any of its Subsidiaries has received any written notice that any Governmental Authority responsible for the enforcement of labor or employment Laws intends to conduct an investigation with respect to or relating to ABCB and its Subsidiaries and, to ABCB’s Knowledge, no such investigation is in progress.
(b) Since the Balance Sheet Date, ABCB has not effectuated a “mass layoff” or “plant closing” as defined in the WARN Act affecting any site of employment or facility of ABCB or its Subsidiaries.
(c) ABCB and each of its Subsidiaries have made all required payments due to employees and to its respective unemployment compensation reserve accounts with the appropriate Governmental Authorities of the jurisdictions where either ABCB or the respective Subsidiary is required to maintain such accounts, except as would not reasonably be expected to result in material liability to ABCB or its Affiliates.
4.26 Related-Party Transactions.   There are no outstanding amounts payable to or receivable from, or advances by ABCB or any of its Subsidiaries to, and neither ABCB nor any of its Subsidiaries is otherwise a creditor or debtor to, any director, executive officer, five percent (5%) or greater shareholder of ABCB or any of its Subsidiaries or to any of their respective Affiliates, other than part of the normal and customary terms of such person’s employment or service as a director with ABCB or any of its Subsidiaries and other than deposits held by Ameris or loans made by Ameris, in each case, in the ordinary course of business. All agreements between ABCB or any of ABCB’s Subsidiaries and any of their respective Affiliates comply in all material respects, to the extent applicable, with Regulation O and Regulation W of the Federal Reserve Board.
4.27 Insurance.   Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on ABCB, ABCB and each of its Subsidiaries is insured with reputable insurers against such risks and in such amounts as the management of ABCB and Ameris reasonably have determined to be prudent in accordance with industry practices, all insurance policies maintained by ABCB or any Subsidiary are in full force and effect, neither ABCB nor any Subsidiary has received notice of cancellation of any such insurance policies or is otherwise aware that any insurer under any such insurance policies has expressed an intent to cancel any such insurance policies, and neither ABCB nor any of its Subsidiaries is in material default thereunder, and all claims thereunder have been filed in due and timely fashion.
4.28 Information Security.   Except as would not reasonably be likely, either individually or in the aggregate, to have a Material Adverse Effect on ABCB, to ABCB’s Knowledge, since January 1, 2016, no third party has gained unauthorized access to any information technology networks controlled by and material to the operation of the business of ABCB and its Subsidiaries.
4.29 Brokers; Fairness Opinion.   Except for Stephens Inc. (“ABCB Financial Advisor”), no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement or by the Bank Merger Agreement based upon arrangements made by or on behalf of ABCB or its Subsidiaries. ABCB has received the opinion of ABCB Financial Advisor (and, when it is delivered in writing, a copy of such opinion will be promptly provided to
A-38
TABLE OF CONTENTS​​​​
FSC) to the effect that, as of the date of this Agreement and based upon and subject to the qualifications and assumptions set forth therein, the Merger Consideration is fair, from a financial point of view, to ABCB, and, as of the date of this Agreement, such opinion has not been withdrawn, revoked or modified.
4.30 Information Supplied.   None of the information supplied or to be supplied by ABCB specifically for inclusion or incorporation by reference in (i) the Proxy Statement/Prospectus, on the date it (or any amendment or supplement thereto) is first mailed to the FSC Shareholders or the ABCB Shareholders, or at the time of the FSC Shareholders’ Meeting or the time of the ABCB Shareholders’ Meeting, (ii) the Registration Statement, when it or any amendment thereto becomes effective under the Securities Act, or (c)(iii) the documents and financial statements of AmerisABCB incorporated by reference in the Atlantic Proxy Materials,Statement/​Prospectus, the Ameris Registration Statement or any amendment or supplement thereto, will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing, no representation or warranty is made by AmerisABCB with respect to statements made or incorporated by reference therein based on information supplied by or on behalf of AtlanticFSC or its Subsidiaries for inclusion in the Atlantic Proxy MaterialsStatement/Prospectus or the Ameris Registration Statement. The Proxy Statement/Prospectus and Registration Statement will, when filed by ABCB in final form with the SEC, comply as to form in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder.
4.31 No Other Representations or Warranties.   Except for the representations and warranties made by ABCB in this ARTICLE IV, neither ABCB nor any other Person makes any express or implied representation or warranty with respect to ABCB, its Subsidiaries or their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects, and ABCB hereby disclaims any such other representations or warranties. In particular, without limiting the foregoing disclaimer, neither ABCB nor any other Person makes or has made any representation or warranty to FSC or any of its Affiliates or Representatives with respect to (i) any financial projection, forecast, estimate, budget or prospective information relating to ABCB, any of its Subsidiaries or their respective businesses or (ii) except for the representations and warranties made by ABCB in this ARTICLE IV, any oral or written information presented to FSC or any of its Affiliates or Representatives in the course of their due diligence investigation of ABCB or the negotiation of this Agreement or in the course of the transactions contemplated hereby. ABCB acknowledges and agrees that neither FSC nor any other Person has made or is making any express or implied representation or warranty other than those contained in ARTICLE III.
ARTICLE IVV
CONDUCT OF BUSINESS OF ATLANTIC PENDING CLOSINGcovenants
5.1 Conduct of Business of FSC.   During the period from the date of this Agreement to the Effective TimeClosing Date or earlier termination of this Agreement, except (a) as otherwise expressly contemplated or permitted by this Agreement or the Bank Merger Agreement, (b) as required by any Governmental Authority or Applicable Law, or consented to in writing by Ameris(c) with the written consent of ABCB (which consent shall not be unreasonably withheld, conditioned or delayed):
or (d) as set forth on 4.1FSC Disclosure Schedule Section 5.1Conduct of Business.   Atlantic will,, FSC shall, and willshall cause its Subsidiaries to (x) conduct its business onlyand operations in the ordinary and usual course of business in accordance with Applicable Law, and in a manner consistent with prior practice, in each case in all material respects, and (y) use commercially reasonable efforts to maintain and preserve intact its business organization and keep available the services of its current officers and employees and preserve the rights, franchises, goodwill and relations of its customers, clients, lessors and others with whom business relationships exist. Without limiting the foregoing, FSC covenants and agrees that between the date of this Agreement and the Closing Date or earlier termination of this Agreement, without the prior written consent of ABCB (which consent shall not incurbe unreasonably withheld, conditioned or delayed) or as expressly contemplated or permitted by this Agreement or the Bank Merger Agreement, as required by any indebtedness for borrowed moneyGovernmental Authority or Applicable Law or as set forth on FSC Disclosure Schedule Section 5.1, it shall not, and shall cause its Subsidiaries not to, directly or indirectly:
(i) amend its Charter Documents;
(ii) adjust, split, combine or reclassify any shares of its capital stock or other equity interests or declare, set aside, make or pay any dividend or other distribution (whether in cash, shares, equity interests or property or any combination thereof) in respect of its capital stock or equity
A-39
TABLE OF CONTENTS
interests (other than depositto a wholly owned Subsidiary of FSC), or redeem, repurchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire any of its securities (other than (A) regular quarterly cash dividends by FSC at a rate not in excess of  $0.12 per share of FSC Common Stock, (B) dividends paid by any of the Subsidiaries of FSC to FSC or any of its wholly owned Subsidiaries, respectively, (C) regular distributions on FSC’s outstanding Trust Preferred Securities, (D) the withholding, repurchase or acceptance of shares of FSC Common Stock as payment for the exercise price of FSC Stock Options or for withholding Taxes incurred in connection with the exercise of FSC Stock Options or vesting of FSC Restricted Stock Awards in accordance with past practice and similar accounts and customary credit arrangements between banksthe terms of the applicable award agreements or pursuant to the terms of a FSC 401(k) Plan), or (E) the issuance, acquisition or delivery of shares of FSC Common Stock in connection with FSC’s dividend reinvestment plan or employee stock purchase plan;
(iii) except for transactions in the ordinary course of business includingconsistent with past practice or pursuant to contracts or agreements in force at the date of this Agreement and disclosed to ABCB, make any credit arrangements withmaterial investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any Federal Home Loan Bankproperty or assets of any Person other than a wholly owned Subsidiary of FSC;
(iv) sell, lease, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any Person (except for sales of properties or assets in the ordinary course of business). Furthermore, Atlantic shall not, and shall not permitbusiness consistent with past practice) or merge or consolidate with any Person;
(v) other than in the ordinary course of business, incur any indebtedness (excluding bank deposits) for borrowed money (other than indebtedness of FSC or any of its wholly owned Subsidiaries to FSC or any of its Subsidiaries), assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person, in each case, in excess of  $10,000,000;
(vi) make any material change to its accounting methods, principles or practices, except as required by GAAP or Applicable Law;
(vii) except as contemplated by any FSC Employee Benefit Plan, (A) increase the compensation, severance, benefits, change of control payments or any other amounts payable, or pay or award, or commit to pay or award, any bonuses or incentive compensation, to its present or former employees or directors, other than, in each case, increases in compensation or benefits for employees made in the ordinary course of business consistent with past practice, payment of earned but unpaid bonuses or other incentive awards with respect to any performance period ending before the Effective Time, and payment of prorated bonuses with respect to that portion of the then-current fiscal year of FSC ending at the Effective Time (the amount of which prorated bonuses would be, on an annualized basis, consistent with past practice), (B) establish, adopt, enter into, amend or terminate any collective bargaining agreement or FSC Employee Benefit Plan, other than any amendments in the ordinary course of business consistent with past practice that do not materially increase the cost to FSC, in the aggregate, of maintaining such FSC Employee Benefit Plan, or any amendments required by Applicable Law, (C) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable to any employee or director or (D) hire any employee having expected total annual compensation in excess of  $300,000, other than to fill vacant positions;
(viii) (A) grant any stock appreciation rights, options, restricted stock, restricted stock units, awards based on the value of FSC’s capital stock or other equity-based compensation or grant to any Person any right to acquire any shares of its capital stock or (B) issue or commit to issue any additional shares of capital stock of FSC, other than the issuance of shares of FSC Common Stock upon the exercise of any FSC Stock Options in accordance with the terms of the applicable award agreement or pursuant to the terms of a FSC 401(k) Plan; (C) issue, sell, lease, transfer, mortgage, encumber or otherwise dispose of any capital stock in any of FSC’s Subsidiaries; or (D) enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stock;
A-40
TABLE OF CONTENTS
(ix) make or change any material Tax election, settle or compromise any material Tax liability, fail to file any material Tax Return when due (taking extensions into account), enter into any material closing agreement, file any material amended Tax Return or surrender any right to claim a material Tax refund, offset or other reduction in Tax liability;
(x) fail to use commercially reasonable efforts to maintain existing material insurance policies or comparable replacement policies to the extent available for a reasonable cost;
(xi) enter into any material new line of business or change in any material respect its lending, investment, underwriting, risk and asset liability management, interest rate or fee pricing with respect to depository accounts, hedging and other material banking and operating securitization and servicing policies (includingor practices except as required by Applicable Law;
(xii) file any changeapplication to establish, or to relocate or terminate the operations of, any banking office;
(xiii) make, or commit to make, any capital expenditures in the maximum ratio or similar limits as a percentageexcess of  its capital exposure applicable with respect to its loan portfolio or any segment thereof).
4.2Maintenance of Properties.   Atlantic will, and will cause its Subsidiaries to, maintain its properties and assets in good operating condition, ordinary wear and tear excepted.
4.3Insurance.   Atlantic will, and will cause its Subsidiaries to, maintain and keep in full force and effect all of the material insurance referred to in Section 2.20(a) or other insurance equivalent thereto.
4.4Capital Structure.   Except upon the exercise of Atlantic Stock Options, Atlantic shall not make a change in the authorized or issued capital stock or other securities of Atlantic or any of its Subsidiaries. Atlantic shall not issue or grant any right or option to purchase or otherwise acquire any of the capital stock or other securities of Atlantic or any of its Subsidiaries.
4.5Dividends.   No dividend, distribution or payment will be declared or made in respect of the Atlantic Stock.
4.6Amendment of Articles of Incorporation or Bylaws; Corporate Existence.   Atlantic shall not amend its articles of incorporation or bylaws, or permit any of its Subsidiaries to amend any comparable governing document, and Atlantic will maintain its corporate existence and powers, and that of its Subsidiaries.
4.7No Acquisitions.   Atlantic shall not, and shall not permit any of its Subsidiaries to, acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or division thereof or otherwise acquire or agree to acquire any assets which are material,$500,000 individually or $2,500,000 in the aggregate unless required by Law or incurred in connection with the repair or replacement of facilities destroyed or damaged due to Atlantic.casualty or accident (whether or not covered by insurance);
4.8No Real Estate Acquisitions or Dispositions.   Atlantic shall not, and shall not permit any of its Subsidiaries to, sell, mortgage, lease, buy or otherwise acquire, transfer or dispose of any real property or interest therein (except(xiv) except for salestransactions in the ordinary course of business, including sales of other real estate owned and properties under contract at or above Atlantic’s carrying value as of the date hereof), and Atlantic shall not, and shall not permit any of its Subsidiaries to, except in the ordinary course of business, sell or transfer, mortgage, pledge or subject to any Lien any other tangible or intangible asset.
4.9Loans.   Atlantic shall provide Ameris with five (5) Business Days’ prior notice before Atlantic Coast Bank’s execution of an agreement to make any loan or extension of credit in an amount in excess of $1,000,000 (excluding any loan or extension of credit of a smaller amount on an outstanding loan or line of
A-33
TABLE OF CONTENTS​​​​​​​​​​
credit in excess of  $1,000,000). Atlantic shall not, and shall not permit Atlantic Coast Bank to, renew or amend any existing loan or extension of credit that is characterized as “Special Mention”, “Substandard”, “Doubtful” or “Loss” in the books and records of Atlantic (each a “Classified Asset”); provided, however, that, if Atlantic shall request the prior approval of Ameris in accordance with this Section 4.9 to amend or renew any existing loan that is a Classified Asset, and Ameris shall not have disapproved such request in writing within five (5) Business Days upon receipt of such request from Atlantic, then such request shall be deemed to be approved by Ameris and Atlantic may make the loan or extend the credit referenced in such request on the terms described in such request.
4.10Allowance.   Atlantic shall not make a material change to its methodology for determining the Allowance.
4.11Banking Arrangements.   Atlantic shall not, and shall not permit any of its Subsidiaries to, make any change in the banking and safe deposit arrangements referred to in Section 2.12, other than in the ordinary course of business, consistent with past practice.
4.12Atlantic Offices.   Atlantic shall not, and shall not permit any of its Subsidiaries to, make application for the opening, relocation or closing of any, or open, relocate or close any, branch office, loan production office or other significant office or operations facility of Atlantic or any of its Subsidiaries.
4.13Contracts.   Except in the ordinary course of business, Atlantic shall not, and shall not permit any of its Subsidiaries to, terminate, materially amend or waive any material right underprovision of, any MaterialFSC Contract, or make any change in any instrument or agreement governing the terms of any of its securities, or enter into any contract that would constitute a Materialan FSC Contract if it were in effect on the date of this Agreement.Agreement;
4.14Books(xv) settle any claims, actions or proceedings (other than claims, actions or proceedings in the ordinary course of business consistent with past practice and Records.   The booksinvolving solely money damages) in excess of  $1,000,000 in the aggregate;
(xvi) materially restructure or materially change its investment securities portfolio, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(xvii) change in any material respect its credit policies and recordscollateral eligibility requirements and standards, in each case except as may be required by such policies and standards or by any Applicable Laws, guidelines or policies imposed by any Governmental Authority;
(xviii) make or acquire any FSC Loan or issue a commitment (including a letter of Atlanticcredit) or renew or extend an existing commitment for any FSC Loan, or amend or modify in any material respect any FSC Loan (including in any manner that would result in any additional extension of credit or principal forgiveness or effect any uncompensated release of collateral), outside the ordinary course of business consistent with past practice or in excess of the limitations contained in FSC’s loan policy; provided that ABCB shall be required to respond to any request for consent to take such action with respect to an FSC Loan or extension of credit within three (3) business days after the loan package is delivered to ABCB and any non-response shall be deemed to constitute consent pursuant to this clause (xviii);
(xix) adopt a plan of complete or partial liquidation or dissolution;
(xx) take any action or knowingly fail to take any action, which action or failure to act would reasonably be expected to prevent or impede the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(xxi) agree to take, make any commitments to take, or adopt any resolutions of the board of directors or shareholders in support of, any of the actions prohibited by this Section 5.1;
(xxii) take any action that is intended to or would reasonably be likely to result in any of the conditions set forth in ARTICLE VI not being satisfied or prevent or materially delay the consummation of the transactions contemplated hereby or by the Bank Merger Agreement; or
A-41
TABLE OF CONTENTS​
(xxiii) take any action that is intended to or would reasonably be expected to adversely affect or materially delay the ability of FSC or its Subsidiaries willto obtain any necessary approvals of any Governmental Authority required for the transactions contemplated hereby or by the Bank Merger Agreement or to perform its covenants and agreements under this Agreement or the Bank Merger Agreement or to consummate the transactions contemplated hereby or thereby.
5.2 Conduct of Business of ABCB.   During the period from the date of this Agreement to the Closing Date or earlier termination of this Agreement, except (a) as otherwise expressly contemplated or permitted by this Agreement or the Bank Merger Agreement, (b) as required by any Governmental Authority or Applicable Law, (c) with the written consent of FSC (which consent shall not be maintainedunreasonably withheld, conditioned or delayed) or (d) as set forth on ABCB Disclosure Schedule Section 5.2, ABCB shall, and shall cause its Subsidiaries to (x) conduct its business and operations in the ordinary and usual regularcourse of business in accordance with Applicable Law, and ordinary course.
4.15Taxesin a manner consistent with prior practice, in each case in all material respects, and Tax Returns.   Atlantic(y) use commercially reasonable efforts to maintain and preserve intact its business organization and keep available the services of its current officers and employees and preserve the rights, franchises, goodwill and relations of its customers, clients, lessors and others with whom business relationships exist. Without limiting the foregoing, ABCB covenants and agrees that during the period from the date of this Agreement to the Closing Date or earlier termination of this Agreement, except (a) as otherwise expressly contemplated or permitted by this Agreement or the Bank Merger Agreement, (b) as required by any Governmental Authority or Applicable Law or (c) with the written consent of FSC (which consent shall not be unreasonably withheld, conditioned or delayed), ABCB shall not, and shall cause its Subsidiaries not permitto, directly or indirectly:
(i) amend its Charter Documents;
(ii) adjust, split, combine or reclassify any shares of its Subsidiaries to, preparecapital stock or fileother equity interests or declare, set aside, make or pay any Tax Return inconsistentdividend or other distribution (whether in cash, shares, equity interests or property or any combination thereof) in respect of ABCB Common Stock (except regular quarterly cash dividends by ABCB at a rate not in excess of  $0.10 per share of ABCB Common Stock);
(iii) except for transactions in the ordinary course of business consistent with past practice or pursuant to contracts or agreements in force at the date of this Agreement and disclosed to FSC, make any investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any Person other than a wholly owned Subsidiary of ABCB, in excess of  $50,000,000 in the aggregate;
(iv) sell, lease, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any Person (except for sales of properties or assets in the ordinary course of business consistent with past practice) or merge or consolidate with any Person;
(v) other than in the ordinary course of business, incur any indebtedness (excluding bank deposits) for borrowed money (other than indebtedness of ABCB or any of its wholly owned Subsidiaries to ABCB or any of its Subsidiaries), assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person, in each case in excess of  $10,000,000;
(vi) (A) issue or commit to issue any additional shares of capital stock of ABCB, other than in any transaction permitted under clause (iii) of this Section 5.2 (with such shares to have no greater aggregate value at the time of issuance than as set forth therein), the granting of ABCB Equity Awards in the ordinary course of business consistent with past practice, the issuance of shares of ABCB Common Stock upon the exercise or vesting of ABCB Equity Awards in accordance with the terms of the applicable award agreement or pursuant to an ABCB 401(k) Plan or the issuance, acquisition or delivery of shares of ABCB Common Stock in connection with ABCB’s dividend reinvestment plan or employee stock purchase plan; (B) issue, sell, lease, transfer, mortgage, encumber or otherwise dispose of any capital stock in any of ABCB’s Subsidiaries or (C) grant any stock appreciation rights, options, restricted stock, restricted stock units, awards based on any Tax Return,the value of ABCB’s capital stock or other equity-based compensation except in the ordinary course of business consistent with past practice;
A-42
TABLE OF CONTENTS​
(vii) adopt a plan of complete or partial liquidation or dissolution;
(viii) take any position,action or knowingly fail to take any action, which action or failure to act would reasonably be expected to prevent or impede the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(ix) agree to take, make any electioncommitments to take, or adopt any method inconsistentresolutions of the board of directors or shareholders in support of, any of the actions prohibited by this Section 5.2;
(x) take any action that is intended to or would reasonably be likely to result in any of the conditions set forth in ARTICLE VI not being satisfied or prevent or materially delay the consummation of the transactions contemplated hereby or by the Bank Merger Agreement, except as required by Applicable Law; or
(xi) take any action that is intended to or would reasonably be expected to adversely affect or materially delay the ability of ABCB or its Subsidiaries to obtain any necessary approvals of any Governmental Authority required for the transactions contemplated hereby or by the Bank Merger Agreement or to perform its covenants and agreements under this Agreement or the Bank Merger Agreement or to consummate the transactions contemplated hereby or thereby.
5.3 Approvals and Filings.
(a) Upon the terms and subject to the conditions set forth in this Agreement, each of FSC and ABCB agrees to use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with positions taken, elections madethe other party in doing, all things necessary, proper or methods usedadvisable to fulfill all conditions applicable to such party and its respective Subsidiaries pursuant to this Agreement and the Bank Merger Agreement and to consummate and make effective, in preparingthe most expeditious manner practicable, the transactions contemplated by this Agreement and the Bank Merger Agreement, including: (i) obtaining all Regulatory Approvals and all other necessary, proper or filing similar Tax Returns in prior periods; makeadvisable actions or changenon-actions, waivers, consents, qualifications and approvals from Governmental Authorities and making all necessary, proper or advisable registrations, filings and notices and taking all steps as may be necessary to obtain an approval, waiver or exemption from any expressGovernmental Authority; provided, however, that nothing contained herein shall be deemed to require ABCB, or deemed election relatedrequire or permit FSC, to Taxes; change an annual accounting period; adopttake any action, or changecommit to take any method of accounting; file an amended Tax Return; surrender any right to claim a refund of Taxes; enter into any closing agreements with respect to Tax;action, or consentagree to any extensioncondition or waiver ofrestriction, in connection with obtaining the limitation period applicable to any Tax proceedings relating to Atlantic.
4.16Advice of Changes.   Atlantic shall promptly advise Ameris orallypermits, consents, approvals and in writingauthorizations of any change or event having, or whichGovernmental Authority that would reasonably be expected to have a Material Adverse Effect.
4.17Reports.   Atlanticmaterial adverse effect (measured on a scale relative to FSC and its Subsidiaries taken as a whole) on the Surviving Corporation and its Subsidiaries, after giving effect to the Merger (a “Materially Burdensome Regulatory Condition”); (ii) obtaining all necessary, proper or advisable consents, qualifications, approvals, waivers or exemptions from nongovernmental Persons; and (iii) executing and delivering any additional documents or instruments necessary, proper or advisable to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement or the Bank Merger Agreement.
(b) Without limiting the generality of the foregoing, ABCB and FSC shall file all reportsmake any required to be filedfilings of applications, filings and notices with any Governmental Authorities betweenthe Federal Reserve Board, the FDIC and the GDBF in connection with the Merger or the Bank Merger within forty-five (45) days after the date of this Agreement and the Closing Dateshall each use, and shall delivercause their applicable Subsidiaries to Amerisuse, reasonable best efforts to prepare and file any applications, notices and filings required in order to obtain the Regulatory Approvals as promptly as practicable after the date of this Agreement. ABCB and FSC shall each use, and shall each cause their applicable Subsidiaries to use, reasonable best efforts to obtain each such approval as promptly as reasonably practicable. The parties shall cooperate with each other in connection therewith (including the furnishing of any information and any reasonable undertaking or commitments that may be required to obtain the Regulatory Approvals). Each party will provide the other with copies of  (i) any applications and all such reports promptly after the same are filed.
4.18Benefit Planscorrespondence relating thereto prior to filing, other than material filed in connection therewith under a claim of confidentiality, and Programs; Severance or Termination Payments.   Atlantic shall not, and shall not permit any(ii) copies of its Subsidiaries to, adopt any new benefit plans or programs or amend any existing benefit plans or programs, the effect of which is to increase benefits to any current or former employees, directors, officers or independent contractors or their spouses, dependents or beneficiaries or otherwise increase the costs or liabilities of Atlantic or its Subsidiaries or successors. Except as described in Section 4.18 of the Disclosure Schedule, Atlantic shall not, and shall not permit any of its Subsidiaries to, grant or enter into any new employment agreement, retention arrangement, severance pay, termination pay, retention pay, change in control or transaction or deal bonus or arrangement or other Atlantic Plan.
4.19Limitation on Discussion with Others.
(a)   Atlantic shall not, and shall not authorize or permit any of its Subsidiaries, affiliates, officers, directors, employees, agents or advisors to, directly or indirectly, solicit, initiate or entertain offerscorrespondence from negotiate with or in any manner encourage, discuss, accept or consider an Acquisition Proposal of, any other Person. In addition, Atlantic agrees to immediately cease and cause to be terminated any previously undertaken or ongoing activities, discussions or negotiations with any other Person withall Regulatory Agencies.
A-34A-43
TABLE OF CONTENTS​​
(c) Subject to Applicable Law (including Applicable Law relating to the exchange of information), the parties shall advise each other promptly after receiving any communication from any Governmental Authority whose consent or approval is required for consummation of the transactions contemplated by this Agreement or by the Bank Merger Agreement that causes such party to believe that there is a reasonable likelihood that the Regulatory Approvals or any other consent or approval required hereunder will not be obtained or that the receipt of any such approval will be materially delayed.
5.4 Access; Current Information.
(a) In order to facilitate the consummation of the transactions contemplated hereby and by the Bank Merger Agreement, the verification of representations and warranties and the integration of the business and operations of FSC and its Subsidiaries, subject to Section 5.4(d) and Applicable Laws (including those relating to confidentiality and the exchange of information), each of FSC and ABCB (in such capacity, the “Providing Party”) shall permit the other party (in such capacity, the “Requesting Party”) and its Subsidiaries and their respective officers, employees, counsel, accountants and other authorized Representatives, reasonable access, throughout the period before the Closing Date, upon reasonable notice and at the Requesting Party’s sole expense:
(i) during customary business hours, to all books, papers and records relating to the assets, properties, operations, obligations and liabilities of the Providing Party and its Subsidiaries; provided, however, that the Providing Party shall not be required to take any action that would provide access to or to disclose information (x) where such access or disclosure would result in the waiver by it of the privilege protecting communications between it and any of its counsel or where such access or disclosure would contravene any Applicable Law or Order or binding agreement entered into prior to the date of this Agreement or (y) relating to the Providing Party’s or its directors’, officers’, employees’, accountants’, counsels’, advisors’ (including investment bankers), agents’ or other representatives’ consideration of, or deliberations regarding, the transactions contemplated by this Agreement; provided, further, that in any such event in which the restrictions of clause (x) of this sentence apply, the parties shall attempt to make appropriate substitute disclosure arrangements; and
(ii) during and, as reasonably required, outside of customary business hours, to telecommunications, data processing and related electronic information systems, facilities and personnel of the Providing Party and its Subsidiaries for the purpose of performing activities related to the Data Conversion.
(b) During the period from the date of this Agreement to the Effective Time, each of FSC and ABCB will cause one or more of its designated representatives to confer on a regular basis with representatives of the other party and to report the general status of the ongoing operations of FSC and its Subsidiaries and ABCB and its Subsidiaries, respectively.
(c) Prior to the execution of this Agreement and prior to the consummation of the Merger, each of FSC and ABCB and their respective Subsidiaries, Affiliates and Representatives have provided, and will continue to provide, one another with information, to the extent permitted by Applicable Law, which may be deemed by the party providing such information to be non-public, proprietary or confidential, including trade secrets of the disclosing party.
(d) Each of FSC and ABCB agrees that it will, and will use commercially reasonable efforts to cause its Representatives to, hold any information obtained pursuant to this Agreement in accordance with the terms of the Nondisclosure Agreement, which shall survive the execution of this Agreement and, if this Agreement shall be terminated for any reason prior to the Closing Date, such termination of this Agreement.
5.5 Notification of Certain Changes.   FSC, on the one hand, and ABCB, on the other, shall promptly notify the other in writing (i) if such party believes that it has materially breached any representation, warranty, covenant or agreement contained in this Agreement or (ii) if such party believes that any event shall have occurred that might reasonably be expected to result, individually or in the aggregate, in a failure of a condition set forth in Section 6.2 or Section 6.3 if continuing on the Closing Date; provided that any
A-44
TABLE OF CONTENTS​​
failure to give notice in accordance with the foregoing with respect to any Acquisition Proposal. Furthermore, if Atlanticbreach shall not be deemed to constitute a violation of this Section 5.5 or a failure of any condition set forth in Section 6.2 or Section 6.3 to be satisfied, or otherwise constitute a breach of this Agreement by the party failing to give such notice, in each case unless the underlying breach would independently result in a failure of the conditions set forth in Section 6.2 or Section 6.3 to be satisfied.
5.6 Public Announcements.   FSC and ABCB shall consult with each other before issuing any press release or otherwise making any public statements or filings with respect to this Agreement or any of the transactions contemplated hereby or by the Bank Merger Agreement and shall not issue, and shall not permit any of their Subsidiaries to issue, any such press release or make any such public statement without the prior written consent of the other party (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that a party may, without the prior written consent of the other party, issue such press release or make such public statement or filing as may be required by Applicable Law or Order or any listing agreement with a national stock exchange or automated quotation system.
5.7 Employee Benefit Matters.
(a) From the Effective Time until the first anniversary thereof, ABCB shall, or shall cause its applicable Subsidiary to, provide to each employee of FSC or its Subsidiaries who, as decided by ABCB in its sole discretion, shall continue employment with the Surviving Corporation or any of its Subsidiaries affiliates, officers,following the Closing Date (a “Continuing Employee”) (i) base hourly wages or salaries, as applicable, that are no less favorable than was provided to each such Continuing Employee immediately prior to the Closing Date and (ii) employee benefit plans, programs, policies and arrangements that are no less favorable, in the aggregate, to the FSC Employee Benefit Plans provided to each such Continuing Employee immediately prior to the Closing Date.
(b) Employees of FSC or its Subsidiaries (other than those listed in FSC Disclosure Schedule Section 5.7(b) who are parties to an employment, change-of-control or other type of agreement which provides for severance) who remain employed by FSC or any of its Subsidiaries as of the Effective Time and whose employment is terminated by ABCB or its Subsidiaries following the Closing Date (each, a “Discontinued Employee”) shall be provided by ABCB or its Subsidiaries with severance benefits under the existing severance policies of ABCB and its Subsidiaries; provided, however, that any such Discontinued Employee shall be credited with his or her years of service with FSC or its Subsidiaries (prior to the Effective Time) and ABCB or its Subsidiaries (following the Effective Time) for all purposes under such severance policies; and provided, further, that such benefit payments shall be conditioned on execution of a customary release of claims in a form satisfactory to ABCB.
(c) With respect to any ABCB Employee Benefit Plan in which any Continuing Employee becomes eligible to participate on or after the Closing Date, ABCB shall (i) waive all preexisting conditions, actively at work requirements, exclusion and waiting periods with respect to participation and coverage requirements under any such ABCB Employee Benefit Plan to the extent they were inapplicable to, or were satisfied under, any FSC Employee Benefit Plan in which such Continuing Employee participated prior to the Closing Date and (ii) ensure that each Continuing Employee receives full credit (including eligibility to participate, vesting, vacation entitlement and severance benefits, but excluding benefit accrual under any defined benefit ABCB Employee Benefit Plan or any such credit that would result in a duplication of benefits) under each ABCB Employee Benefit Plan in which such Continuing Employee becomes or may become a participant for service with the Surviving Corporation (or any predecessor to the Surviving Corporation and its Affiliates), to the same extent such service was credited under the FSC Employee Benefit Plans. As of the Closing Date, ABCB shall, and shall cause its applicable Subsidiaries to, credit Continuing Employees the amount of vacation time that such employees had accrued under any vacation policy or arrangement as of the Closing Date. With respect to each ABCB Employee Benefit Plan that is a health plan in which Continuing Employees participate after Closing, ABCB shall (A) cause to be waived any eligibility waiting period, any evidence of insurability requirement and the application of any pre-existing condition limitation under such plan to the extent such requirements or limitations were inapplicable to, or were satisfied under, any FSC Employee Benefit Plan in which such Continuing Employee participated prior to the Closing Date and (B) cause each Continuing Employee to be given credit with respect to the plan year in which the
A-45
TABLE OF CONTENTS​
Closing Date occurs (or, if later, the plan year in which such Continuing Employee becomes eligible to participate in such ABCB Employee Benefit Plan) (the “Transition Plan Year”) for amounts (such as deductibles and co-payments) paid under any similar FSC Employee Benefit Plan by such Continuing Employee, with respect to the Transition Plan Year, as though such amounts had been paid in accordance with the terms and conditions of any applicable ABCB Employee Benefit Plan.
(d) ABCB and FSC acknowledge and agree that all provisions contained in this Section 5.7 are included for the sole benefit of ABCB and FSC and nothing contained herein shall (i) be construed as an amendment to any FSC Employee Benefit Plan or ABCB Employee Benefit Plan or the creation of any new employee benefit plan, (ii) create any third-party beneficiary or other rights in any other Person, including any employee or former employee of any of ABCB or FSC or their respective Subsidiaries, or any dependent or beneficiary thereof, or (iii) otherwise obligate ABCB or any of its Affiliates to maintain any particular FSC Employee Benefit Plan, ABCB Employee Benefit Plan or other employee benefit plan or retain the employment of any particular employee following the Closing Date.
(e) If requested in writing delivered by ABCB as of no later than ten (10) Business Days prior to the Closing Date, FSC shall terminate any 401(k) plan sponsored or maintained by FSC (each, an “FSC 401(k) Plan”), effective as of immediately prior to the Closing, by resolution adopted by the board of directors employees, agentsof FSC, in a form reasonably acceptable to ABCB (whose approval shall not be unreasonably withheld or advisors receivesdelayed). In such event, ABCB shall permit each participant in the FSC 401(k) Plan prior to the Closing Date to immediately participate in a 401(k) plan sponsored or maintained by ABCB or one of its Subsidiaries (each, an “ABCB 401(k) Plan”) and roll over his or her account balance (including any communicationoutstanding loans and any shares of ABCB Common Stock issued in respect of shares of FSC Common Stock in accordance with Section 2.7) under the FSC 401(k) Plan into the ABCB 401(k) Plan.
5.8 No Solicitation of Transaction by FSC.
(a) From the date hereof until the Closing Date, or, if earlier, the date on which this Agreement is terminated in accordance with ARTICLE VII, except as expressly permitted by this Section 5.8, FSC shall not, and shall cause all of its Subsidiaries and its and their respective Representatives to not, directly or indirectly, (i) take any action to solicit, initiate, seek, knowingly facilitate or encourage any inquiries or expressions of interest or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal or furnish, or otherwise afford access, to any Person (other than ABCB and its Subsidiaries) any nonpublic information or data with respect to FSC or any of its Subsidiaries or otherwise relating to an Acquisition Proposal, between(iii) approve, endorse or recommend any Acquisition Proposal (other than the date hereofMerger) or (iv) enter into any agreement in principle, arrangement, understanding, contract or agreement (other than a confidentiality agreement which expressly permits FSC to comply with its obligations pursuant to this Section 5.8) relating to an Acquisition Proposal (an “Acquisition Agreement”). Upon its execution of this Agreement, FSC shall, and the Closing Date, then Atlantic shall cause each of its Subsidiaries and all of its and their respective Representatives to, immediately (but in no event later than twenty-four (24) hours) notify Ameriscease any discussions, negotiations or communications with any Persons with respect to any Acquisition Proposal; provided, however, that this Section 5.8 shall not prohibit FSC or any of its respective Representatives from informing any Person of the receipt ofrestrictions contained in this Section 5.8 (including by providing a copy hereof to such Acquisition Proposal.Person).
(b) Notwithstanding Section 5.8(a) or any other provision of this Agreement, FSC may, provided that it shall comply with the foregoing,requirements of Section 2.12(b), take any of the actions described in Section 5.8(a) with respect to an unsolicited, bona fide written Acquisition Proposal received by FSC prior to the Requisite Atlantic Stockholder Approval, Atlantic shall be permitted to furnish nonpublic information regarding Atlantic to, or enter into a confidentiality agreement or discussions or negotiations with, any Person in response to a bona fide, unsolicited written Acquisition Proposal submitted by such Person if:
(i)   theFSC Shareholders’ Meeting, which Acquisition Proposal did not result from a breach of this Section 4.195.8;
(ii)   Atlantic’s, if, but only if, (i) FSC’s board of directors determines in good faith (in accordance with this Agreement and after consultation with Atlantic’s financial advisor andits outside legal counsel and independent financial advisor) that (A) such Acquisition Proposal constitutes, or is reasonably likely to result in, a Superior Proposal;
(iii)   Atlantic’s board of directors determines in good faith, after consultation with Atlantic’s outside counsel, thatProposal and (B) a failure to take such actionactions would be reasonably likely to result in a breachviolation of theits fiduciary duties of the members of the Atlantic board of directors;
(iv)   (A) Atlantic gives Ameris prompt (but in no event later than twenty-four (24) hours) notice (which notice may be oral, but, if oral, shall be subsequently confirmed in writing): (1) of receipt of any Acquisition Proposal by Atlantic or any ofto FSC and its Subsidiaries, affiliates, officers, directors, employees, agents or advisors (which notice shall include the identity of such Person or group and the material terms and conditions of any proposals or offers, including, if applicable, copies of any written requests, proposals or offers, including proposed agreements); and (2) of Atlantic’s furnishing nonpublic information to, or entering into discussions or negotiationsshareholders under Applicable Law, (ii) FSC provides ABCB with such Person or group; and (B) Atlantic receives from such Person or group an executed confidentiality agreement containing terms no less favorable to Atlantic than the terms of the confidentiality agreement entered into between Atlantic and Ameris and dated as of July 10, 2017 (the “NDA”); and
(v)   contemporaneously with, or promptly after, furnishing any such nonpublic information to such Person or group, Atlantic furnishes such nonpublic information to Ameris (to the extent such nonpublic information has not been previously furnished by Atlantic to Ameris).
(c)   In addition to the foregoing, Atlantic shall keep Ameris reasonably informed on a prompt basis of the status and material terms of any such Acquisition Proposal, including any material amendments or proposed amendments as to price and other material terms thereof and any change in Atlantic’s intentions with respect to the transactions contemplated hereby.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1Registration and Listing of Ameris Common Stock.
(a)   Ameris agrees to file with the SEC as promptly as reasonably practicable after the date of this Agreement (and in any event, within sixty (60) days) a registration statement (the “Ameris Registration Statement”) under the Securities Act on Form S-4 (or other applicable form) covering the issuance of the shares of Ameris Common Stock to the stockholders of Atlantic pursuant to this Agreement and to use its commercially reasonable efforts to cause the Ameris Registration Statement to become effective and to remain effective through the Effective Time. Ameris agrees to take any action required to be taken under the applicable state securities Laws in connection with the issuance of shares of Ameris Common Stock upon consummation of the Merger. Atlantic agrees to provide Ameris reasonable assistance as necessary in the preparation of the Ameris Registration Statement, including providing Ameris with all material facts regarding the operations, business, assets, liabilities and personnel of Atlantic, together with the audited financial statements of Atlantic, all as and to the extent required by the Securities Act and the rules, regulations and practices of the SEC, for inclusion in the Ameris Registration Statement. The Ameris Registration Statement shall not cover resales of
A-35A-46
TABLE OF CONTENTS​
Ameris Common Stock byprompt (and in any of the stockholders of Atlantic, and Ameris shall have no obligation to cause the Ameris Registration Statement to continue to be effective after the Effective Time or to prepare or file any post-effective amendments to the Ameris Registration Statement after the Effective Time.
(b)   Ameris agrees to list on The NASDAQ Global Select Market (“NASDAQ”), by the Closing Date, the shares of Ameris Common Stock to be issued to the stockholders of Atlantic pursuant to this Agreement.
5.2Meeting of Atlantic Stockholders.
(a)   Atlantic shall call, giveevent within twenty-four (24) hours) notice of convenesuch determination and hold a special meeting of its stockholders (the “Special Meeting”) as promptly as reasonably practicable after the Ameris Registration Statement becomes effective under the Securities Act for the purpose of submitting the Merger and this Agreement(iii) prior to such stockholders for their approval. Except with the prior approval of Ameris, no other matters shall be submitted for the approval of the stockholders of Atlantic at the Special Meeting. In connection with the Special Meeting, Ameris and Atlantic shall together prepare and submitfurnishing or affording access to the Atlantic stockholders a notice of meeting, proxy statement and proxy (the “Atlantic Proxy Materials”), which shall include the final prospectus from the Ameris Registration Statement in the form filed with the SEC. Atlantic shall use reasonable best efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement and approval of the Merger and shall take all other actions necessaryany information or advisable to secure the vote or consent of the stockholders of Atlantic required by Applicable Law to obtain such approval. Atlantic shall keep Ameris updateddata with respect to proxy solicitation results as reasonably requested by Ameris. Once the Special Meeting has been called and noticed, Atlantic shall not postpone or adjourn the Special Meeting without the consent of Ameris (other than in order to obtain a quorum of the stockholders of Atlantic or as reasonably determined by Atlantic to comply with Applicable Law).
(b)   Except as provided in this Section 5.2(b), the board of directors Atlantic shall communicate to the stockholders of Atlantic the board’s recommendation that the stockholders adopt and approve this Agreement and the transactions contemplated hereby, including the Merger (the “Atlantic Recommendation”), and include the Atlantic Recommendation in the Atlantic Proxy Materials. Neither the Atlantic board of directors nor any committee thereof shall: (i) withdraw, qualify or modify, or propose publicly to withdraw, qualify or modify, in a manner adverse to AmerisFSC or any of Ameris’sits Subsidiaries or otherwise relating to such Acquisition Proposal, FSC receives from such Person a confidentiality agreement with terms no less favorable to FSC than those contained in the Atlantic Recommendation;Nondisclosure Agreement. FSC shall promptly provide to ABCB any non-public information regarding FSC or (ii) approveits Subsidiaries provided to any other Person that was not previously provided to ABCB, such additional information to be provided no later than the date of provision of such information to such other party.
(c) FSC shall promptly (and in any event within twenty-four (24) hours) notify ABCB in writing if any proposals or recommend,offers (or modified offers or propose publiclyproposals) are received by, any information is requested from, or any negotiations or discussions are sought to approvebe initiated or recommend,continued with, FSC or any of its Subsidiaries or any of their respective Representatives, in each case constituting or in connection with any Acquisition Proposal, (each, an “Adverse Recommendation Change”); provided, however, that, prior to the Requisite Atlantic Stockholder Approval, Atlantic’s board of directors may make an Adverse Recommendation Change if: (A) Atlantic’s board of directors determines in good faith, after consultation with Atlantic’s financial advisor and outside counsel, that it has received an Acquisition Proposal (that did not result from a breach of Section 4.19) that is a Superior Proposal and such Superior Proposal has not been withdrawn; (B) Atlantic’s board of directors determines in good faith, after consultation with Atlantic’s outside counsel, that a failure to accept such Superior Proposal would be reasonably likely to result in a breachnotice shall indicate the name of the fiduciary duties of the members of the board of directors of Atlantic under Applicable Law; (C) Atlantic’s board of directors provides written notice (a “Notice of Recommendation Change”) to Ameris of its receipt of the Superior ProposalPerson initiating such discussions or negotiations or making such proposal, offer or information request and its intent to announce an Adverse Recommendation Change on the third (3rd) Business Day following delivery of such notice, which notice shall specify the material terms and conditions of the Superior Proposal (it being understood that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change); (D) after providing such Notice of Recommendation Change, Atlantic negotiates in good faith with Ameris (if requested by Ameris) and provides Ameris reasonable opportunity during the three (3)-Business Day period following the Notice of Recommendation Change to make such adjustments in the terms and conditions of this Agreement as would enable Atlantic’s board of directors to proceed without an Adverse Recommendation Change; provided, however, that Ameris shall not be required to propose any such adjustments;proposals, offers or information requests.
5.9 Indemnification; Directors’ and (E) Atlantic’s boardOfficers’ Insurance.
(a) For a period of directors, followingsix (6) years from and after the final such three (3)-Business Day period, again determines in good faith, after consultation with Atlantic’s financial advisorEffective Time, ABCB shall (i) indemnify and
A-36
TABLE OF CONTENTS​​
outside counsel, that such Acquisition Proposal nonetheless continues to constitute a Superior Proposal and that failure to take such action would be reasonably likely to result in a breach of hold harmless each individual who at the fiduciary duties of the members of the board of directors of Atlantic under Applicable Law.
(c)   For purposes of this Agreement:
(i)   The term “Acquisition Proposal” means: (A) any proposal or offer with respect to a merger, joint venture, partnership, consolidation, dissolution, liquidation, tender offer, recapitalization, reorganization, rights offering, share exchange, business combination or similar transaction involving AtlanticEffective Time is, or any time prior to the Effective Time was, a director, officer or employee of its Subsidiaries; or (B) any acquisition by any Person resulting in, or proposal or offer, which, if consummated, would result in, any Person becoming the beneficial owner, directly or indirectly, of more than twenty percent (20%) of the total voting power of any class of equity securities of AtlanticFSC or any of its Subsidiaries and each individual who served as a director, officer, member, trustee or more than twenty percent (20%)fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise if such service was at the consolidated total assetsrequest or for the benefit of AtlanticFSC or any of its Subsidiaries in each case, other than the transactions contemplated by this Agreement.
(ii)   The term(the “Superior ProposalIndemnitees” means any bona fide written Acquisition Proposal with respect to which the board of directors of Atlantic: (A) determines in good faith that such Acquisition Proposal, if accepted, is reasonably likely to be consummated on a timely basis, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal; and (B) determines in good faith (based on, among other things, the advice of Atlantic’s financial advisor) to be more favorable to Atlantic’s stockholders than the Merger taking into account all relevant factors (including whether, in the good faith judgment of the board of directors of Atlantic, after obtaining the advice of the Atlantic’s financial advisor, the Person making such Acquisition Proposal is reasonably able to finance the transaction and close it timely, and any proposed changes to this Agreement that may be proposed by Ameris in response to such Acquisition Proposal); provided, however that for purposes of the definition of Superior Proposal, the references to twenty percent (20%) in respect of all claims, liabilities, losses, damages, judgments, fines, penalties costs and expenses (including reasonable attorneys’ fees) in connection with any claim, suit, action, proceeding or investigation (each a “Claim”), whenever asserted, based on or arising out the definitionfact that the Indemnitee was an officer, director or employee of Acquisition Proposal shall be deemed to be references to fifty percent (50%).
5.3Access to Properties, Books and Records.   Atlantic shall allow Ameris andFSC or any Subsidiary (or fiduciary of any benefit plan of FSC or its authorized representatives full access, upon reasonable prior notice, during normal business hours from and afterSubsidiaries) for acts or omissions by the date hereof andIndemnitee in such capacity or taken at the request of FSC or any Subsidiary, at or any time prior to the Closing Date to all of Atlantic’s properties, books, contracts, commitments and records and those of its Subsidiaries and shall furnish Ameris and its authorized representatives such information concerning its affairs and the affairs of its Subsidiaries as Ameris may reasonably request; provided, however, that such request shall be reasonably relatedEffective Time (including any Claim relating to the transactions contemplated by this Agreement or the Bank Merger Agreement), to the fullest extent permitted by Law and shall not interfere unreasonably with normal operations. Atlantic shall cause its(ii) assume all obligations of FSC and its Subsidiaries’ personnel, employeesSubsidiaries to the Indemnitees in respect of indemnification and other representativesexculpation from liabilities for acts or omissions occurring at or prior to assist Ameristhe Effective Time as provided in makingFSC’s Charter Documents and the organizational documents of FSC’s Subsidiaries. In addition, ABCB, from and after the Effective Time, shall advance any such investigation. During such investigation, Ameris and its authorized representatives shall have the right to make copiesexpenses (including reasonable attorneys’ fees) of such records, files, Tax Returns and other materials as it may deem advisable and shall advise Atlantic of those items of which copies are made. No investigation made heretofore or hereafter by Ameris and its authorized representatives shall affect the representations and warranties of Atlantic hereunder.
5.4Confidentiality.   Prior to consummation of the Merger, the parties to this Agreement have provided and will provide one another with information which may be deemed by the party providing the information to be confidential, including information regarding such party’s operations, customers (including consumer financial information), business and financial condition. Each party agrees that it will hold confidential and protect all information provided to it by each other party or such party’s affiliates or representatives, except that the obligations contained inany Indemnitee under this Section 5.45.9(a) as incurred to the fullest extent permitted by Applicable Law, provided that the Indemnitee to whom expenses are advanced provides an undertaking to repay advances if it shall be determined that such Indemnitee is not in any way restrictentitled to be indemnified pursuant to this Section 5.9(a). In the rightsevent of any party to use information that: (a) was knownsuch Claim, ABCB shall reasonably cooperate with the Indemnitee, and the Indemnitee shall reasonably cooperate with ABCB, in the defense of any such Claim.
(b) ABCB shall maintain in effect for six (6) years after the Effective Time, the current directors’ and officers’ liability insurance policies maintained by FSC (provided that ABCB may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are no less advantageous to such partyofficers and directors so long as substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the disclosure byEffective Time; provided, however, that in no event shall ABCB be required to expend annually in the other party; (b) is or becomes generally available toaggregate an amount in excess of three hundred percent (300%) of the public other than by breachannual premium payment on FSC’s current policy in effect as of the date of this Agreement; (c) is provided by one party for disclosure concerning such partyAgreement (the “Premium Cap”) and, in the Ameris Registration Statement;event the cost of such coverage shall exceed that amount, ABCB shall purchase as much coverage as possible for such amount. In lieu of the foregoing, ABCB may obtain at or (d) otherwise becomes lawfully available to a party to this Agreement on a non-confidential basis from a third party who is not under an obligation of confidence to the other party to this Agreement. If this Agreement is terminated prior to the Closing, then, upon request,Effective Time a prepaid “tail” policy providing coverage equivalent to that described in the preceding sentence for an aggregate price of no more than the Premium Cap.
(c) The provisions of this Section 5.9 are intended for the benefit of, and shall be enforceable by, each party hereto agreesIndemnitee, his or her heirs and his or her representatives and are in addition to, return all documents, statements and not in substitution for, any other written materials, whetherrights to indemnification or not confidential, and all copies thereof,contribution that any Indemnitee may have
A-37A-47
TABLE OF CONTENTS​​​​​
providedunder FSC Charter Documents, by contract or otherwise. In the event ABCB or any of its successors or assigns: (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger; or (ii) transfers all or substantially all of its properties and assets to it byany Person, then, and in each such case, proper provision shall be made so that the successors and assigns of ABCB or on behalfthe purchaser of its assets and properties shall assume the other partyobligations set forth in this Section 5.9. Notwithstanding anything in this Agreement to the contrary, the Indemnitees to whom this Agreement. The provisionsSection 5.9 applies shall be third-party beneficiaries of this Section 5.45.9, and this Section 5.9 shall survive termination, for any reason whatsoever, of this Agreement, and, without limiting the remedies of the parties hereto in the event of any breach of thisEffective Time.
5.10 Section 5.4, the parties hereto will be entitledEfforts to seek injunctive relief against the other party in the event of a breach or threatened breach of this Section 5.4.
5.5CooperationConsummate.   Subject to the terms and conditions of this Agreement, the parties hereto shalleach of FSC and ABCB agrees to use commerciallyits reasonable best efforts in good faith to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under Applicable Laws, so as to permit consummation of the Mergertransactions contemplated hereby as promptly as practicable, including the satisfaction of the conditions set forth in ARTICLE VI hereof, and shall cooperate fully with eachthe other party hereto to that end.
5.11 5.6Expenses.   All of the expenses incurred by Ameris in connection with the authorization, preparation, execution and performance of this Agreement and the Bank Merger Agreement, including all fees and expenses of its agents, representatives, counsel and accountants and the fees and expenses related to filing the Ameris Registration Statement and all regulatory applications with state and federal authorities in connection with the transactions contemplated hereby and thereby, shall be paid by Ameris. All expenses incurred by Atlantic in connection with the authorization, preparation, execution and performance of this Agreement and the Bank Merger Agreement, including all fees and expenses of its agents, representatives, counsel and accountants in connection with all regulatory applications to be filed with state and federal authorities in connection with the transactions contemplated hereby and thereby and the cost of reproducing and mailing the Atlantic Proxy Materials, shall be paid by Atlantic.
5.7Preservation of Business and Goodwill.   Each party hereto shall, and shall cause each of its Subsidiaries to, during the period from the date of this Agreement until the Effective Time, conduct its business in the ordinary course of business consistent with past practice, except as expressly contemplated by this Agreement or as required by Applicable Law or with the prior written consent of the other party, and use its commercially reasonable efforts to preserve its business organization, to keep available the services of its present employees and to preserve the goodwill of customers and others having business relations with it.
5.8Approvals and Consents.   Each party hereto represents and warrants to and covenants with the other that it will use its commercially reasonable efforts, and will cause its officers, directors, employees and agents and its Subsidiaries and any Subsidiary’s officers, directors, employees and agents to use their commercially reasonable efforts, to obtain as promptly as is reasonably practicable all regulatory authorizations, consents, orders or approvals from: (a) the Federal Reserve, the FDIC and the GDBF; and (b) any other approvals set forth in Section 2.31 that are necessary to consummate the transactions contemplated by this Agreement, including the Merger and the Bank Merger, or those the failure of which to be obtained would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Ameris or Atlantic (collectively, the “Required Regulatory Approvals”). Ameris shall file all applications or notices for Required Regulatory Approvals within forty-five (45) days. Notwithstanding the foregoing, nothing contained herein shall be deemed to require Ameris, or require or permit Atlantic, to take any action, or commit to take any action, or agree to any condition or restriction, in connection with obtaining the Required Regulatory Approvals that would: (i) reasonably be expected to result in Ameris or Ameris Bank becoming subject to any cease-and-desist order or other order, formal or informal enforcement action issued by, or written agreement, consent agreement, operating agreement, memorandum of understanding, commitment letter or similar undertaking with, or any request to adopt any board resolutions by, any Governmental Authority; or (ii) reasonably be expected to have a Material Adverse Effect on Ameris and its Subsidiaries, taken as a whole, after giving effect to the Merger (including, for the avoidance of doubt, any determination by any Governmental Authority that the Bank Merger may not be consummated as contemplated in the Bank Merger Agreement or in a substantially similar manner immediately following the Effective Time) (any of the foregoing matters in clauses (i) and (ii), a “Burdensome Regulatory Condition”).
5.9Press Releases.   Prior to the Closing Date, Ameris and Atlantic must each approve the form, substance and timing of any press release or other public disclosure materially related to this Agreement or any other transaction contemplated hereby; provided, however, that nothing in this Section 5.9 shall be deemed to prohibit Ameris or Atlantic from making any disclosure which its counsel deems necessary or advisable in order to satisfy Ameris’s or Atlantic’s, as the case may be, disclosure obligations imposed by any Applicable Law or stock exchange listing requirement.
A-38
TABLE OF CONTENTS​
5.10Employee Benefits and Agreements.
(a)   Following the Closing Date, Ameris shall, or shall cause its applicable Subsidiary to, provide generally to employees of Atlantic and its Subsidiaries who continue employment with Ameris or any of its Subsidiaries following the Closing Date (“Atlantic Continuing Employees”) medical, dental, vacation and long-term disability benefits, medical and dependent care flexible spending accounts, severance and life insurance (collectively, “Employee Benefits”), on terms and conditions consistent in all material respects with those then currently provided by Ameris or its Subsidiaries to its other similarly-situated employees. For purposes of eligibility to participate and any vesting determinations (but not benefit accruals) in connection with the provision of any such Employee Benefits by Ameris or its Subsidiaries to the Atlantic Continuing Employees, service with Atlantic or any of its Subsidiaries prior to the Closing Date shall be counted to the extent such service was counted under the similar plan of Atlantic or its Subsidiary. The Atlantic Continuing Employees’ prior service with Atlantic or any of its Subsidiaries shall also be credited for purposes of all waiting periods for participation in any of such Employee Benefits to the extent such service was counted under the similar plan of Atlantic or its Subsidiary. Ameris or its applicable Subsidiary shall also waive all restrictions and limitations for preexisting conditions under Ameris’s Employee Benefit plans, to the extent such restrictions or limitations would not apply to the Atlantic Continuing Employees under the similar plan of Atlantic or its Subsidiary. Ameris or its applicable Subsidiary shall use commercially reasonable efforts to provide the Atlantic Continuing Employees with credit under Ameris’s group health Employee Benefit plans, for the plan year of such plans which includes the Closing Date, towards any applicable deductibles under Ameris’s group health Employee Benefit plans for the aggregate amounts paid by such employees toward applicable deductibles under Atlantic’s group health Employee Benefit plans for the plan year of such plans which includes the Closing Date.
(b)   Subject to applicable legal requirements, Ameris and Atlantic shall take such other actions prior to the Closing Date as may be reasonably necessary to enable the employees of Atlantic and its Subsidiaries after the Closing Date to rollover the amount credited to their accounts under the Atlantic 401(k) Plan through a rollover contribution into a defined contribution retirement plan with a 401(k) feature of Ameris or its Subsidiaries (the “Ameris 401(k) Plan”), if such employees are Atlantic Continuing Employees, or to transfer the amount credited to their accounts through an eligible rollover contribution to a separate third-party individual retirement account (after the deemed distribution of any participant loans as reflected in such accounts), or to take a cash distribution from the Atlantic 401(k) Plan (after the deemed distribution of any participant loans as reflected in such accounts), provided that: (i) Atlantic’s board of directors shall adopt resolutions to terminate the Atlantic 401(k) Plan and cease all further deferrals with respect to eligible compensation no later than the Business Day immediately prior to the Closing Date; and (ii) the foregoing shall be subject to the receipt of a final favorable IRS determination letter (or prototype sponsor letter) with respect to the Atlantic 401(k) Plan to the extent reasonably required by Ameris and completion of such other actions as may be required by applicable legal requirements. For purposes of any vesting determinations (but not benefit accruals) in connection with the Ameris 401(k) Plan in which any Atlantic Continuing Employees may participate after the Closing Date, service with Atlantic or any of its Subsidiaries prior to the Closing Date shall be counted to the extent such service was counted under the Atlantic 401(k) Plan. For purposes of eligibility to participate in any matching contribution under the Ameris 401(k) Plan, Atlantic Continuing Employees shall be eligible on terms and conditions consistent with those then currently provided by Ameris to its other similarly-situated employees as of their employment date with Ameris or any of its Subsidiaries. Prior to the Closing Date, Atlantic shall make any necessary employer contributions to the Atlantic 401(k) Plan due such Atlantic Continuing Employees for compensation paid by Atlantic prior to termination of the Atlantic 401(k) Plan.
(c)   Subject to applicable legal requirements, Ameris and Atlantic shall take such other commercially reasonable actions prior to the Closing Date as may be necessary to terminate or amend the agreements as so designated (and with respect to an amendment, in the manner specified) on Section 2.28(a) of the Disclosure Schedule effective as of the Closing Date and any other Atlantic Plans that Ameris directs Atlantic or Atlantic Coast Bank to terminate or amend prior to the Closing. In connection with such terminations, any compensation to be provided thereunder shall be paid in full in exchange for a settlement and release agreement in a form reasonably acceptable to Ameris to the
A-39
TABLE OF CONTENTS​​
extent requested by Ameris. Atlantic shall: (i) permit Ameris to review, comment on and approve in advance any documents or notices required to effect any of the foregoing; and (ii) provide to Ameris prior to the Closing written evidence as to satisfaction of the requirements of this Section 5.10(c) as Ameris may reasonably request. Unless terminated prior to Closing pursuant to this Section 5.10(c), Ameris shall honor any existing employment agreements with any Atlantic Continuing Employees in accordance with their terms or as otherwise amended by the parties.
(d)   The Atlantic ESOP shall be terminated immediately prior to the Effective Time (the “ESOP Termination Date”). On the ESOP Termination Date, Atlantic shall direct the Atlantic ESOP trustee to remit to Atlantic a sufficient number of shares of Atlantic Common Stock held by the Atlantic ESOP’s unallocated suspense account to repay in full the outstanding balance of the loan between the Atlantic ESOP and Atlantic (the “Atlantic ESOP Loan”) (with such Atlantic Common Stock valued as of the ESOP Termination Date). If after remitting all such unallocated shares there remains any unpaid amount outstanding under the Atlantic ESOP Loan, such unpaid amount, including any unpaid but accrued interest, shall be forgiven by Atlantic at the Effective Time. All remaining shares of Atlantic Common Stock held by the Atlantic ESOP as of the Effective Time shall be converted into the right to receive the Merger Consideration. Within thirty (30) days following the date of this Agreement, Atlantic shall file or cause to be filed all necessary documents with the IRS for a determination letter for termination of the Atlantic ESOP. As soon as practicable following the receipt of a favorable determination letter from the IRS regarding the qualified status of the Atlantic ESOP upon its termination, the account balances in the Atlantic ESOP shall either be distributed to participants and beneficiaries or transferred to an eligible tax-qualified retirement plan or individual retirement account as a participant or beneficiary may direct. Atlantic shall adopt such amendments, board resolutions and other documentation as may be necessary to effect the provisions of this Section 5.10(d).
5.11Directors’ and Officers’ Tail Coverage.   Prior to the Closing Date, Ameris shall have, at Ameris’s expense, amended, modified or obtained directors’ and officers’ liability insurance (either through its existing directors’ and officers’ liability insurance policies or under Atlantic’s existing directors’ and officers’ liability insurance policies, in which event Atlantic will designate Ameris’s insurance broker as Atlantic’s broker-of-record, as determined by Ameris in its sole discretion) for a period of six (6) years after the Closing Date, covering any person who is now, or has been at any time prior to the date hereof or who becomes prior to the Closing Date, a director or officer of Atlantic or any of its Subsidiaries, who are currently covered by Atlantic’s policies on terms similar to such existing insurance; provided, however, that Ameris shall not be obligated to make aggregate annual premium payments for such six (6)-year period in respect of such policy which exceed two hundred percent (200%) of the annual premium payments on Atlantic’s current policy in effect as of the date of this Agreement (the “Maximum Amount”). If the amount of the premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, then Ameris shall use its reasonable best efforts to maintain the most advantageous policies of directors’ and officers’ liability insurance obtainable for a premium equal to the Maximum Amount. The directors and officers of Atlantic and its Subsidiaries shall take all reasonable actions required by the insurance carrier necessary to procure such endorsement.
5.12Indemnification.
(a)   For a period of six (6) years after the Effective Time (or, in the case of Claims that have not been resolved prior to the sixth (6th) anniversary of the Effective Time, until such Claims are finally resolved), Ameris shall indemnify, defend and hold harmless the present and former directors and executive officers of Atlantic and each of its Subsidiaries (each, an “Indemnified Party”) against all liabilities arising out of, resulting from or related to any claim, action, suit, proceeding, investigation or other legal proceeding, whether civil, criminal, administrative or investigative (each, a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness arising out of the fact that such Indemnified Party is or was a director or officer of Atlantic or any of its Subsidiaries (or, at Atlantic’s request, was a director, officer, manager or trustee of, or in a similar capacity with, another Atlantic entity or Atlantic Plan) prior to the Effective Time if such Claim pertains to any matter of fact arising, existing or occurring on or prior to the Effective Time (including the Merger and the other transactions contemplated hereby), regardless of whether such Claim is asserted or claimed before, or
A-40
TABLE OF CONTENTS​​
after, the Effective Time, to the fullest extent permitted by Applicable Law. Ameris shall promptly pay reasonable expenses (including reasonable attorneys’ fees) in advance of the final disposition of any such Claim to each Indemnified Party to the fullest extent permitted by Applicable Law upon receipt of an undertaking to repay such advance payments if he or she shall be adjudicated not to be entitled to indemnification under this Section 5.12(a). Ameris shall not have any obligation hereunder to any Indemnified Party when and if a federal or state banking agency or other Governmental Authority shall determine that indemnification of an Indemnified Party in the manner contemplated hereby is prohibited by Applicable Law (including any Law promulgated, interpreted or enforced by any federal or state banking agency or other Governmental Authority).
(b)   Any Indemnified Party wishing to claim indemnification under Section 5.12(a), upon learning of any such Claim, shall promptly notify Ameris thereof in writing (provided that a failure to timely provide such notice shall not relieve Ameris of any indemnification obligation unless, and to the extent that, Ameris is materially prejudiced by such failure). In the event of any such Claim (whether arising before or after the Effective Time): (i) Ameris shall have the right to assume the defense thereof and Ameris shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Ameris elects not to assume such defense for the Indemnified Parties, or if there are substantive issues which raise conflicts of interest between Ameris and the Indemnified Parties, then the Indemnified Parties may retain counsel satisfactory to them, and Ameris shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that Ameris shall be obligated pursuant to this Section 5.12(b) to pay for only one firm of counsel for any Indemnified Party in any jurisdiction; (ii) each Indemnified Party will cooperate in good faith in the defense of any such Claim; (iii) Ameris shall not be liable for any settlement effected without its prior written consent (which shall not be unreasonably withheld or delayed); and (iv) without the prior written consent of the Indemnified Party (which shall not be unreasonably withheld or delayed) Ameris shall not agree to any settlement which does not provide for a release of the Indemnified Party.
(c)   Ameris covenants and agrees that neither it, nor any successors or assigns, shall consolidate with or merge into any other Person where Ameris or any such successor or assign shall not be the continuing or surviving Person of such consolidation or merger, or transfer all or substantially all of its assets to any Person, unless, in each case, proper provision shall have been made to ensure that the successors and assigns of Ameris shall assume the obligations set forth in this Section 5.12.
(d)   The provisions of this Section 5.12 are intended to be for the benefit of and shall be enforceable by, each Indemnified Party and their respective heirs and legal and personal representatives.
5.13Certain Litigation.   Each party shall promptly advise the other party orally and in writing of any actual or threatened stockholder litigation against such party or the members of such party’s board of directors related to this Agreement or the Merger and the other transactions contemplated by this Agreement. Atlantic shall: (a) permit Ameris to review and discuss in advance, and shall consider in good faith the view of Ameris in connection with, any proposed written or oral response to such stockholder litigation; (b) furnish Ameris’s outside legal counsel with all non-privileged information and documents which outside legal counsel may reasonably request in connection with such stockholder litigation; (c) consult with Ameris regarding the defense or settlement of any such stockholder litigation; and (d) not settle any such litigation prior to such consultation and consideration; provided, however, that Atlantic shall not settle any such stockholder litigation if such settlement requires the payment of money damages without the written consent of Ameris (such consent not to be unreasonably withheld) unless the payment of any such damages by Atlantic is reasonably expected by Atlantic, following consultation with outside counsel, to be fully covered (disregarding any deductible to be paid by Atlantic) under Atlantic’s existing director and officer insurance policies, including any tail policy.
5.14Information SystemsData Conversion.   From and after the date hereof, AmerisABCB and AtlanticFSC shall use their commercially reasonable efforts to facilitate the integration of AtlanticFSC with the business of AmerisABCB following consummation of the transactions contemplated hereby and shall meet on a regular basis
A-41
TABLE OF CONTENTS​​​​​​
to discuss and plan for the conversion of the telecommunications, data processing and related electronic information systems of Atlantic and each of its Subsidiariestechnology system (the “Information SystemsData Conversion”) to those used by Ameris, which planningABCB. ABCB and FSC agree to use all commercially reasonable efforts to promptly commence preparations for implementation of the Data Conversion, with the goal of effecting the Data Conversion after the Effective Time and at such later time as mutually agreed upon by the parties. ABCB and FSC agree to cooperate in preparing for the Data Conversion, including by providing reasonable access to data, information systems and personnel having expertise with their and their respective Subsidiaries’ information and data systems; provided, however, that neither party shall include the following: (a) discussion ofbe required to terminate any third-party service provider arrangements of Atlantic and each of its Subsidiaries; (b) non-renewal or changeover, afterprior to the Effective Time of personal property leases and software licenses used by Atlantic and any of its Subsidiaries in connection with their systems operations; (c) retention of outside consultants and additional employees to assist with such conversion; (d) outsourcing, as appropriate after the Effective Time, of proprietary or self-provided system services; and (e)take any other actions necessary and appropriate to facilitateaction that would prejudice or adversely affect in any material respect its rights under any such conversion, as soon as practicable followingarrangements or contracts in the Effective Time. Amerisevent the Closing does not occur. ABCB shall promptly reimburse AtlanticFSC on request for any reasonable and documented out-of-pocket fees, expenses or charges that AtlanticFSC may incur as a result of taking, at the request of Ameris,ABCB, any action prior to the Effective Time to facilitate the Information SystemsData Conversion.
5.155.12 No Control of Other Party’s Business.   Nothing contained in this Agreement shall give Ameris,ABCB, directly or indirectly, the right to control or direct the operations of AtlanticFSC or its Subsidiaries prior to the Effective Time, and nothing contained in this Agreement shall give Atlantic,FSC, directly or indirectly, the right to control or direct the operations of AmerisABCB or its Subsidiaries prior to the Effective Time. Prior to the Effective Time, each of AtlanticFSC and AmerisABCB shall exercise, consistent with the terms and conditions of this Agreement, control and supervision over its and its Subsidiaries’ respective operations.
5.13 5.16Tax Matters.
(a) For U.S. federal income tax purposes, the Merger is intended to qualify as a “reorganization” within the meaning of Section 368(a) of the Code, and this Agreement is intended to be, and is adopted as, a “plan of reorganization” within the meaning of Treasury Regulations Section 1.368-2(g) and for purposes of Sections 354 and 361 of the Code. After the date of this Agreement (including after the Effective Time) subject to the other terms and conditions in this Agreement, each party hereto shall take any action that is required to cause the Merger to qualify, and will not take any actions or cause any actions to be taken which would reasonably be likely to prevent the Merger from qualifying, as a “reorganization” within the meaning of Section 368(a) of the Code. All parties hereto shall report the Merger as a “reorganization” within the meaning of Section 368(a) of the Code, unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code.
(b) The chief financial officer of each of ABCB and FSC shall execute and deliver to Rogers & Hardin LLP and Wachtell, Lipton, Rosen & Katz certificates substantially in the form agreed to by the parties and such firms at such time or times as may reasonably be requested by such firms, including at the time the Registration Statement is filed with the SEC and the Effective Time, in connection with each firm’s delivery of its tax opinion pursuant to Director ResignationsSection 6.2(d) and Section 6.3(d). AtlanticEach of ABCB and FSC shall use commercially reasonable efforts to cause such opinions to be delivered to Ameris resignations, to be effective as of the Effective Time, of all the directors of Atlantic and its Subsidiaries.
5.17Restrictive Covenants Agreements.   Concurrently with the execution and delivery of this Agreement and effective at the Effective Time, Atlantic has caused all of the non-employee directors of Atlantic and Atlantic Coast Banknot to execute and deliver the Director Non-Solicitation Agreements and the Chief Executive Officer of Atlantic and Atlantic Coast Bank to execute and deliver the Executive Non-Competition Agreement.
ARTICLE VI
CONDITIONS PRECEDENT
6.1Conditions to Each Party’s Obligations.   The obligations of both parties to effect the Merger are subject to the fulfillment on or prior to the Closing Date of each of the following conditions, any one or more of which may be waived by the parties:
(a)   Stockholder Approval.   This Agreement and the Merger shall have been approved by the vote of the holders of at least a majority of the issued and outstanding shares of Atlantic Common Stock (the “Requisite Atlantic Stockholder Approval”).
(b)   No Injunctions or Restraints; Illegality.   No order, injunction, decree or judgment preventing the consummation of the Merger or the other transactions contemplated by this Agreement issued by any Governmental Authority of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger or the other transactions contemplated by this Agreement shall be in effect. No Law shall have been enacted, entered, promulgated or enforced by any Governmental Authority which prohibits or makes illegal consummation of the Merger.
(c)   Effective Registration Statement.   The Ameris Registration Statement shall have been declared effective by the SEC and no stop order shall have been entered with respect thereto.
6.2Conditions to Obligations of Ameris.   The obligation of Ameris to effect the Merger is subject to the fulfillment on or prior to the Closing Date of each of the following conditions, any one or more of which may be waived by Ameris:
(a)   Representations and Warranties.   The representations and warranties of Atlantic contained herein shall be true and correct in all respects (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date (unless any such representation or warranty is made only as of a specific date, in which case as of such specific date), except, at each such
A-42A-48
TABLE OF CONTENTS​​​​
time, as a result of changestake or events expressly permitted or contemplated herein or where the failurecause to be so truetaken any action that would cause to be untrue (or fail to take or cause not to be taken any action which would cause to be untrue) any of the certifications and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein), either individually orrepresentations included in the aggregate,certificates described in this Section 5.13(b).
5.14 Nasdaq Listing.   ABCB shall cause the shares of ABCB Common Stock to be issued in the Merger as Merger Consideration to be approved for listing on the Nasdaq, subject to official notice of issuance, prior to the Effective Time.
5.15 Litigation and Claims.
(a) ABCB shall promptly notify FSC in writing of any Proceeding, or of any claim, controversy or contingent liability that might reasonably be expected to become the subject of a Proceeding, against ABCB or its Subsidiaries, if such Proceeding or potential Proceeding is not reasonably likely to haveresult in a Material Adverse Effect on Atlantic.Change in ABCB. ABCB shall promptly notify FSC in writing of any Proceeding, pending or, to ABCB’s Knowledge, threatened against ABCB or its Subsidiaries, that (i) questions or would reasonably be expected to question the validity of this Agreement, the Bank Merger Agreement or the other agreements contemplated hereby or thereby or any actions taken or to be taken by ABCB or Ameris with respect hereto or thereto or (ii) seeks to enjoin or otherwise restrain the transactions contemplated hereby or thereby.
(b) PerformanceFSC shall promptly notify ABCB in writing of Agreementsany Proceeding, or of any claim, controversy or contingent liability that might reasonably be expected to become the subject of a Proceeding, against FSC or any of its Subsidiaries, if such Proceeding or potential Proceeding is reasonably likely to result in a Material Adverse Change in FSC. FSC shall promptly notify ABCB in writing of any Proceeding, pending or, to FSC’s Knowledge, threatened against FSC or any of its Subsidiaries, that (i) questions or would reasonably be expected to question the validity of this Agreement, the Bank Merger Agreement or the other agreements contemplated hereby or thereby or any actions taken or to be taken by FSC or its Subsidiaries with respect hereto or thereto or (ii) seeks to enjoin or otherwise restrain the transactions contemplated hereby or thereby. FSC shall give ABCB the opportunity to participate at its own expense in the defense or settlement of any shareholder litigation against FSC or its directors or Affiliates relating to the transactions contemplated by this Agreement, and no such settlement shall be agreed to without ABCB’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).
5.16 Trust Preferred Securities.   AtlanticUpon the Effective Time, ABCB, or a Subsidiary of ABCB, shall haveassume the performance and observance of the covenants and conditions to be performed by FSC relating to the trust preferred securities of its Subsidiaries, Fidelity Southern Statutory Trust I, Fidelity Southern Statutory Trust II and compliedFidelity Southern Statutory Trust III (collectively, the “Trust Preferred Securities”), including the execution and delivery of any supplemental indentures, guarantees and other instruments required to make such assumptions effective.
5.17 Exemption from Liability Under Section 16(b).   FSC and ABCB agree that, in order to most effectively compensate and retain those officers and directors of FSC subject to the reporting requirements of Section 16(a) of the Exchange Act (the “FSC Insiders”), both prior to and after the Effective Time, it is desirable that the FSC Insiders not be subject to a risk of liability under Section 16(b) of the Exchange Act to the fullest extent permitted by Applicable Law in connection with the conversion of shares of FSC Common Stock, FSC Stock Options and FSC Restricted Stock Awards in the Merger, and for that compensatory and retentive purpose agree to the provisions of this Section 5.17. The board of directors of ABCB and of FSC, or a committee of non-employee directors thereof  (as such term is defined for purposes of Rule 16b-3(d) under the Exchange Act), shall reasonably promptly, and in any event prior to the Effective Time, take all material respects with all agreementssuch steps as may be required to cause (in the case of FSC) any dispositions of FSC Common Stock, FSC Stock Options or FSC Restricted Stock Awards by the FSC Insiders, and covenants required(in the case of ABCB) any acquisitions of ABCB Common Stock by any FSC Insiders who, immediately following the Merger, will be officers or directors of the Surviving Corporation subject to the reporting requirements of Section 16(a) of the Exchange Act, in each case pursuant to the transactions contemplated by this Agreement, to be performedexempt from liability pursuant to Rule 16b-3 under the Exchange Act to the fullest extent permitted by Applicable Law.
A-49
TABLE OF CONTENTS​​​​
5.18 Takeover Statutes.   None of FSC, ABCB or complied withtheir respective boards of directors shall take any action that would cause any Takeover Statute to become applicable to this Agreement, the Merger, or any of the other transactions contemplated hereby, and each shall take all necessary steps to exempt (or ensure the continued exemption of) the Merger and the other transactions contemplated hereby from any applicable Takeover Statute now or hereafter in effect. If any Takeover Statute may become, or may purport to be, applicable to the transactions contemplated hereby, each party and the members of their respective boards of directors will grant such approvals and take such actions as are necessary so that the transactions contemplated by itthis Agreement may be consummated as promptly as practicable on the terms contemplated hereby and thereby and otherwise act to eliminate or minimize the effects of any Takeover Statute on any of the transactions contemplated by this Agreement, including, if necessary, challenging the validity or applicability of any such Takeover Statute.
ARTICLE VI
conditions to close
6.1 Conditions to Each Party’s Obligations.   Each party’s obligation to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment at or prior to the Closing Date.Date of the following conditions, any or all of which may be waived in whole or in part by the party entitled to the benefit thereof:
(c)(a) Certificates; ResolutionsNo Orders.   AtlanticNo Governmental Authority shall have delivered to Ameris:
(i)   a certificate executed byenacted, issued, promulgated, enforced or entered any Applicable Law or Order (whether temporary, preliminary or permanent) which has the Chief Executive Officereffect of Atlantic, dated as of the Closing Date, and certifying in such detail as Ameris may reasonably request to the fulfillment of the conditions specified in Section 6.2(a) and Section 6.2(b);
(ii)   a certificate executed by the Secretarymaking illegal or an Assistant Secretary of Atlantic, dated as of the Closing Date, certifying and attesting to the: (A) articles of incorporation of Atlantic; (B) bylaws of Atlantic; and (C) duly adopted resolutions of the board of directors and stockholders of Atlantic: (1) authorizing and approving the execution of this Agreement andpreventing or prohibiting the consummation of the transactions contemplated herein in accordance with its terms; and (2) authorizing all other necessary and proper corporate action to enable Atlantic to comply withby this Agreement.
(b) Shareholder Approvals.   Both the terms hereof;
(iii)   a certificate executed by the Secretary or an Assistant Secretary of Atlantic Coast Bank, dated as of the Closing Date, certifying and attesting to the: (A) articles of incorporation of Atlantic Coast Bank; (B) bylaws of Atlantic Coast Bank; and (C) duly adopted resolutions of the board of directors and sole stockholder of Atlantic Coast Bank: (1) authorizing and approving the execution of the Bank Merger AgreementFSC Shareholder Approval and the consummation of the transactions contemplated therein in accordance with its terms; and (2) authorizing all other necessary and proper corporate action to enable Atlantic Coast Bank to comply with the terms thereof; andABCB Shareholder Approval shall have been obtained.
(iv)   a certificate of the valid existence of Atlantic under the Laws of the State of Maryland, executed by the Maryland State Department of Assessments and Taxation, and dated not more than ten (10) Business Days prior to the Closing Date.
(d)(c) Regulatory Approvals.   All Required Regulatory Approvals shall have been obtained and shall remain in full force and effect and shall not contain or result in the imposition of any Materially Burdensome Regulatory Condition as contemplated by Section 5.3(a), and all statutory waiting periods in respect thereof shall have expired or been terminated.
(e)(d) Tax OpinionRegistration Statement.   AmerisThe Registration Statement shall have receivedbeen effective under the written opinionSecurities Act, no stop orders suspending the effectiveness of its counsel, Rogers & Hardin LLP,the Registration Statement shall have been issued, no action, suit, proceeding or investigation by the SEC to suspend the effectiveness thereof shall have been initiated and be continuing, and all necessary approvals under state securities Laws or the Securities Act relating to the issuance of the shares of ABCB Common Stock issuable pursuant to the Merger shall have been received.
(e) Nasdaq Listing.   The shares of ABCB Common Stock to be issued in form and substance reasonably satisfactory to Ameris,the Merger as Merger Consideration shall have been approved for listing on the basisNasdaq, subject to official notice of facts, representations and assumptions set forth in such opinion and datedissuance.
(f) Bank Merger.   The parties shall stand ready to consummate the Closing Date, toBank Merger immediately after the effect that the Merger will be treated as a “reorganization” described in Section 368(a) of the Code. In rendering such opinion, counsel may require and rely upon representations contained in letters or certificates of officers of Ameris and Atlantic, reasonably satisfactory in form and substance to such counsel.Merger.
6.36.2 Conditions to Obligations of AtlanticABCB.   The obligationobligations of AtlanticABCB to effectconsummate the Merger istransactions contemplated hereby are also subject to the fulfillment onsatisfaction, or waiver by ABCB, at or prior to the Closing Date of each of the following conditions, any one or more of which may be waived by Atlantic:conditions:
(a) Accuracy of Representations and Warranties.   TheEach of the representations and warranties of Ameris contained hereinFSC set forth in this Agreement (other than in Sections 3.3(a), 3.7(a) and 3.11(b)) shall be true and correct in all respects (without giving effect to any limitation as to “materiality” set forth therein)indicated by the words “Material Adverse Change,” “Material Adverse Effect,” “in all material respects,” “in any material respect,” “material,” “materially” or words of similar import) as of the date of this Agreement and atas of the Closing Date, with the same effect as though all such representations and warranties had been made on and as of such date (except to the extent such representations and warranties speak as of a particular date, in which case they shall be true and correct in all respects as of that date), except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on FSC; provided, however, that (i) the
A-50
TABLE OF CONTENTS​
representations and warranties in Section 3.3(a) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made aton and as of the Closing Date except, at each(except to the extent such time,representations and warranties speak as of a resultparticular date, in which case they shall be true and correct in all material respects as of changes or events expressly permitted or contemplated herein or wherethat date) and (ii) the failurerepresentations and warranties in Sections 3.7(a) and 3.11(b) shall be true and correct in all respects (other than, in the case of Section 3.7(a), such failures to be so true and correct (without giving effect to any limitation as to “materiality” set forth therein), either individually or inare de minimis) as of the aggregate, is not reasonably likely to have a Material Adverse Effectdate of this Agreement and as of the Closing Date as though made on Ameris.and as of the Closing Date.
A-43
TABLE OF CONTENTS​​​
(b) Performance of AgreementsCompliance with Covenants and Obligations.   AmerisFSC shall have performed and complied in all material respects with all agreementsof its covenants and covenantsobligations required by this Agreement to be performed or complied with by it onprior to or prior toat the Closing Date.
(c) Certificates; ResolutionsFSC Closing Deliverables.   AmerisFSC shall have delivered to Atlantic:
(i)ABCB a certificate, executed by the Chief Executive Officer of Ameris, dated the Closing Date, certifying in such detail as Atlantic may reasonably request to the fulfillment of the conditions specified in Section 6.3(a) and Section 6.3(b);
(ii)   a certificate executed by the Secretary or an Assistant Secretary of Ameris, dated as of the Closing Date and signed by a duly authorized officer of FSC, certifying and attesting to the: (A) articles of incorporation of Ameris; (B) bylaws of Ameris; and (C) duly adopted resolutionsthat each of the board of directors of Ameris: (1) authorizingconditions set forth in Sections 6.2(a) and approving the execution of this Agreement on behalf of Ameris and the consummation of the transactions contemplated herein in accordance with its term; and (2) authorizing all other necessary and proper corporate actions to enable Ameris to comply with the terms hereof; and
(iii)   a certificate of the valid existence of Ameris, under the Laws of the State of Georgia, executed by the Georgia Secretary of State, and dated not more than ten (10) Business Days prior to the Closing Date.
(d)   Regulatory Approvals6.2(b).   All Required Regulatory Approvals shall have been obtained and shall remain in full force and effect, and all statutory waiting periods in respect thereof shall have expired or been terminated.satisfied.
(e)(d) Tax Opinion.   AtlanticABCB shall have received thea written opinion of its counsel, IglerRogers & Hardin LLP dated as of the Closing Date and Pearlman, P.A., in form and substance reasonably satisfactory to Atlantic,based on the basis of facts, representations and assumptions set forthdescribed in such opinion, and dated the Closing Date, to the effect that the Merger will be treatedqualify as a “reorganization” described inwithin the meaning of Section 368(a) of the Code. In rendering such opinion, counsel may requireRogers & Hardin LLP will be entitled to receive and rely upon customary certificates and representations containedof the chief financial officer of each of FSC and ABCB as referenced in letters or certificates of officers of Ameris and Atlantic, reasonably satisfactory in form and substance to such counsel.Section 5.13(b).
ARTICLE VII
(e) TERMINATION
7.1No Material Adverse Effect.
(a)   This   Since the date of this Agreement, may be terminated at any time(i) no event, change, occurrence, circumstance, condition, effect or development has occurred that has had a Material Adverse Effect on, or prior to the Closing Date by Ameris upon written notice to Atlantic, if, after the date hereof, there shall havethat has resulted in a Material Adverse Change in, FSC and (ii) no event, change, occurrence, circumstance, condition, effect or development has occurred and be continuing any events or occurrences that individually or in the aggregate, have had or wouldmay reasonably be expected to have a Material Adverse Effect on Atlantic.FSC.
(b)   This Agreement may be terminated6.3 Conditions to the Obligations of FSC.   The obligation of FSC to consummate the transactions contemplated by this transaction is also subject to the satisfaction, or waiver by FSC, at any time on or prior to the Closing Date of the following conditions:
(a) Accuracy of Representations and Warranties.   Each of the representations and warranties of ABCB set forth in this Agreement (other than in Sections 4.3(a), 4.7(a) and 4.11(b)) shall be true and correct in all respects (without giving effect to any limitation indicated by Atlantic upon written notice to Ameris, if, afterthe words “Material Adverse Change,” “Material Adverse Effect,” “in all material respects,” “in any material respect,” “material,” “materially” or words of similar import) as of the date hereof, thereof this Agreement and as of the Closing Date, with the same effect as though all such representations and warranties had been made on and as of such date (except to the extent such representations and warranties speak as of a particular date, in which case they shall have occurredbe true and correct in all respects as of that date), except where the failure of such representations and warranties to be continuing any events or occurrences that,so true and correct would not, individually or in the aggregate, have had or would reasonably be expected to have a Material Adverse Effect on Ameris.
7.2ABCB; Noncomplianceprovided, however, that (i) the representations and warranties in .Section 4.3(a)
(a)   This shall be true and correct in all material respects as of the date of this Agreement may be terminated at any time on or prior toand as of the Closing Date by Ameris upon written noticeas though made on and as of the Closing Date (except to Atlantic: (i) if the terms,extent such representations and warranties speak as of a particular date, in which case they shall be true and correct in all material respects as of that date) and (ii) the representations and warranties in Sections 4.7(a) and 4.11(b) shall be true and correct in all respects (other than, in the case of Section 4.7(a), such failures to be so true and correct as are de minimis) as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date.
(b) Compliance with Covenants and Obligations.   ABCB shall have performed and complied in all material respects with all of its covenants or conditions ofand obligations required by this Agreement to be performed or complied with prior to or performed by Atlantic beforeat the Closing Date.
(c) ABCB Closing Deliverables.   ABCB shall not have been substantially complied with or substantially performed on or priordelivered to FSC a certificate, dated as of the Closing Date and such noncompliance or nonperformance shall notsigned by a duly authorized officer of ABCB, certifying that each of the conditions set forth in Sections 6.3(a) and 6.3(b) have been waived by Ameris; or (ii) insatisfied, and shall have provided evidence reasonably satisfactory to FSC of the eventdelivery of a material breach by Atlantic of any covenant, agreement or obligation contained in this Agreement which breach has not been cured within twenty (20) days after the giving of written notice by Ameris of such breach or, if such breach is not capable of being cured within twenty (20) days, Atlantic has not actively and inMerger Consideration to the Exchange Agent.
A-44A-51
TABLE OF CONTENTS​​​​​
good faith, within twenty (20) days after such(d) Tax Opinion.   FSC shall have received a written notice, taken steps to cure such breachopinion of Wachtell, Lipton, Rosen & Katz dated as promptly as practicable; provided, however, that in no event shall the cure periods provided in this Section 7.2(a), without the consent of Ameris, extend past June 30, 2018 or otherwise limit Ameris’s rights under Section 7.5.
(b)   This Agreement may be terminated at any time on or prior to the Closing Date by Atlantic upon written notice to Ameris: (i) if the terms, covenants or conditions of this Agreement to be complied with or performed by Ameris before the Closing shall not have been substantially complied with or substantially performed on or prior to the Closing Date and based on facts, representations and assumptions described in such noncompliance or nonperformance shall not have been waived by Atlantic; or (ii) in the event of a material breach by Ameris of any covenant, agreement or obligation contained in this Agreement which breach has not been cured within twenty (20) days after the giving of written notice by Atlantic of such breach or, if such breach is not capable of being cured within twenty (20) days, Ameris has not actively and in good faith, within twenty (20) days after such written notice, taken steps to cure such breach as promptly as practicable; provided, however, that in no event shall the cure periods provided in this Section 7.2(b), without the consent of Atlantic, extend past June 30, 2018 or otherwise limit Atlantic’s rights under Section 7.5.
7.3Failure to Disclose.   This Agreement may be terminated at any time on or prioropinion, to the Closing Date by Ameris upon written notice to Atlantic, if Ameris learns of any fact or conditioneffect that would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Atlantic or Ameris, which fact or condition was required to be disclosed by Atlantic pursuant to the provisions of this Agreement and was not disclosed in this Agreement, the Disclosure Schedule or the Atlantic Financial Statements.
7.4Regulatory Approval.   This Agreement may be terminated at any time on or prior to the Closing Date by either party upon written notice to the other party, if any Required Regulatory Approval has been denied by the relevant Governmental Authority or any Governmental Authority of competent jurisdiction shall have issued a final, nonappealable injunction permanently enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement.
7.5Termination Date.   This Agreement may be terminated at any time on or prior to the Closing Date by either party upon written notice to the other party, if the Closing Date shall not have occurred on or before June 30, 2018 (the “Termination Date”), which Termination Date may be extended for a period of three (3) additional months by either party upon written notice to the other party given on or prior to June 30, 2018; provided, however, that neither party shall have the right under this Section 7.5 to terminate this Agreement or to extend the Termination Date if the failure of the Closing to occur by June 30, 2018 shall be due to the failure of such party to perform or observe the covenants and agreements of such party under this Agreement. If the Termination Date is extended in accordance with this Section 7.5, then, provided that it does not, and will not, prevent or impede the Merger from qualifyingwill qualify as a “reorganization” within the meaning of Section 368(a) of the Code the aggregate Cash Consideration payable hereunderand to include such other matters as partsuch firm and FSC shall mutually agree upon. In rendering such opinion, Wachtell, Lipton, Rosen & Katz will be entitled to receive and rely upon customary certificates and representations of the Merger Consideration shallchief financial officer of each of FSC and ABCB as referenced in Section 5.13(b).
(e) No Material Adverse Effect.   Since the date of this Agreement, (i) no event, change, occurrence, circumstance, condition, effect or development has occurred that has had a Material Adverse Effect on, or that has resulted in a Material Adverse Change in, ABCB and (ii) no event, change, occurrence, circumstance, condition, effect or development has occurred that may reasonably be increased by the amount of Atlantic’s after-tax net income (calculated in accordance with GAAP consistently applied and consistent with the preparation of the Atlantic Financial Statements) for the interim period of January 1, 2018 through June 30, 2018.expected to have a Material Adverse Effect on ABCB.
ARTICLE VII
TERMINATION
7.1 7.6Stockholder VoteTermination.   This Agreement may be terminated at any time prior to the Closing Date:
(a) by the mutual written consent of FSC and ABCB;
(b) by either FSC, on the one hand, or ABCB, on the other, if the Closing Date shall not have occurred on or before December 31, 2019; provided, however, that the right to terminate this Agreement under this Section 7.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing Date to occur on or prior to the Closing Datesuch date;
(c) by either FSC, on the one hand, or ABCB, on the other, in the event of a breach by the non-terminating party uponof any of its representations, warranties, covenants or obligations set forth in this Agreement, in each case, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the non-terminating party of such breach, and which breach or breaches, either individually or in the aggregate with all other breaches by such party (provided,of any of its representations, warranties, covenants and obligations set forth in this Agreement, would be reasonably likely to result in a failure to satisfy any condition to ABCB’s or FSC’s obligations set forth in Section 6.2 or Section 6.3, respectively (provided, in each case, that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein);
(d) by either FSC, on the one hand, or ABCB, on the other, if  (i) final action has been taken by a Regulatory Agency whose approval is required in connection with this Agreement or the Bank Merger Agreement and the transactions contemplated hereby or thereby, which final action (x) has become final and nonappealable and (y) does not approve this Agreement or the Bank Merger Agreement or the transactions contemplated hereby or thereby, or (ii) any Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law or final nonappealable judgment which has the effect of making illegal the consummation of the transactions contemplated by this Agreement or the Bank Merger Agreement;
(e) by either ABCB or FSC (provided, in the case of termination by Atlantic,FSC, that it has complied withshall not be in breach of any of its obligations under Section 5.2(a)2.12 and, in the case of ABCB, that it shall not be in breach of any of its obligations under Section 2.13), if Atlanticthe FSC Shareholder Approval at the FSC Shareholders’ Meeting or the ABCB Shareholder Approval at the ABCB Shareholders’ Meeting, respectively, shall not have failedbeen obtained by reason of the failure to obtain the Requisite Atlantic Stockholder Approvalrequired vote at thea duly convened Special Meeting or at any adjournment thereof at which a vote on the approvalheld meeting of this Agreement and the Merger was taken.
7.7Acquisition Proposal.
(a)   This Agreementsuch shareholders as it may be terminatedadjourned or postponed in accordance with this Agreement;
(f) by Atlantic upon written notice to Ameris, if,ABCB prior to obtainingsuch time as the Requisite Atlantic Stockholder Approval:FSC Shareholder Approval is obtained if  (i) the board of directors of AtlanticFSC (or any committee thereof) shall have effectedfailed to make the FSC Recommendation or shall have made an Adverse Recommendation Change; and (ii) Atlantic has complied withChange (including by, in the requirementscase of Section 4.19 and Section 5.2.
(b)   If: (i) whilea tender or exchange offer that constitutes an Acquisition Proposal is outstanding or after an Acquisition Proposaland has been accepted: (A) either party terminates this Agreement pursuantpublicly disclosed, failing to recommend rejection of such offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act) or (ii) FSC shall have materially breached any of the provisions set forth in Section 7.52.12 or Section 5.8; or (B) Atlantic
A-45A-52
TABLE OF CONTENTS​
terminates(g) by FSC, prior to such time as the FSC Shareholder Approval is obtained, and provided that FSC has complied in all material respects with Sections 2.12 and 5.8, in order to enter into an agreement relating to a Superior Proposal.
7.2 Effect of Termination.
(a) In the event of termination of this Agreement by a party pursuant to Section 7.1, written notice thereof shall promptly be given to the other thanparty hereto, and upon such notice this Agreement shall terminate. Except as provided under this Section 7.2 or otherwise expressly in accordance with the terms of this Agreement, upon termination of this Agreement pursuant to Section 7.1, this Agreement shall forthwith become void and of no further force and effect, there shall be no liability on the part of any party hereto to the other party, and all rights and obligations of any party hereto shall cease and the parties shall be released from any and all obligations hereunder; provided, however, that (i) the provisions of Section 5.4(d), this Section 7.2 and ARTICLE VIII shall survive any such termination and (ii) nothing herein shall relieve any party from liability for damages resulting from fraud or the Willful Breach of any of its representations, warranties, covenants or agreements contained in this Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, if this Agreement is terminated pursuant to Section 7.1(f) or Section 7.1(g), then FSC shall, within three (3) Business Days of such termination, pay to ABCB the sum of  $29,000,000 (the “Termination Fee”) by wire transfer of immediately available funds.
(c) Notwithstanding anything to the contrary in this Agreement, in the event that (i) a bona fide Acquisition Proposal with respect to FSC shall have been communicated to or otherwise made known to the senior management or board of directors of FSC or to the FSC Shareholders generally, or any Person or group of Persons shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to FSC after the date of this Agreement, and shall not have been publicly withdrawn, (ii) thereafter this Agreement is terminated (A) by ABCB or FSC pursuant to Section 7.1(b) (if the FSC Shareholder Approval has not theretofore been obtained and all other conditions set forth in Sections 6.1 and 6.3 had been satisfied or waived or were capable of being satisfied prior to such termination) or (B) by ABCB pursuant to Section 7.2(b)7.1(c); and (iii) prior to the date that is twelve (12) months after the date of such termination FSC consummates a transaction with respect to an Acquisition Proposal or (ii) Ameris terminatesenters into an Acquisition Agreement, then FSC shall, on the earlier of the date such transaction is consummated or any such Acquisition Agreement is entered into, pay to ABCB the Termination Fee by wire transfer of immediately available funds; provided that for purposes of this Section 7.2(c), the references to twenty-five percent (25%) in the definition of Acquisition Proposal shall be deemed to be references to fifty percent (50%).
(d) The parties acknowledge that the agreements contained in this Section 7.2 are an integral part of the transactions contemplated by this Agreement, and that without these agreements, they would not enter into this Agreement. Accordingly, if FSC fails to pay timely any Termination Fee payable by it pursuant to this Article VIISection 7.2 after an Adverse Recommendation Change,, then AtlanticFSC shall pay or cause to be paid to Ameris,ABCB its reasonable costs and expenses (including reasonable attorneys’ fees) in connection with collecting such Termination Fee, together with interest on the amount of the fee at the prime annual rate of interest (as published in The Wall Street Journal) plus two percent (2%) as the same is in effect from time to time from the date such payment was due under this Agreement until the date of payment.
(e) Notwithstanding anything to the terminationcontrary in this Agreement, other than in connection with fraud or a Willful Breach of this Agreement, an amount equalthe payment of the Termination Fee pursuant to $5,750,000, whichthis Section 7.2 shall fully discharge FSC from, and be the sole and exclusive remedy of Ameris forABCB with respect to, any and all claims under this Agreementlosses that may be suffered by ABCB based upon, resulting from or arising out of the circumstances giving rise to the termination of this Agreement, except that AtlanticAgreement. In no event shall notFSC be relieved from liability arising from any willful breach of any provision of this Agreement.
7.8Ameris Stock Price Decline.   This Agreement may be terminated by Atlantic, at any time duringrequired to pay the four (4) Business Day period immediately following the Determination Date, if both of the following conditions are satisfied:
(a)   the quotient obtained by dividing the Average Ameris Stock Price by the Starting Price (such quotient being the “Ameris Ratio”) shall be lessTermination Fee on more than 0.85; and
(b)   the Ameris Ratio shall be less than eighty-five percent (85%) of the quotient of  (i) the Average Index Price divided by (ii) the Index Price on the Starting Date (such quotient being the “Index Ratio”);
The following examples are provided only for purposes of illustrating the foregoing conditions:
Example 1: If the Ameris Ratio = 0.80 and the Index Ratio = 0.90, then 85% of the Index Ratio would be 0.85 x 0.90, or 76.5%, and condition 7.8(a) above would be satisfied, but condition 7.8(b) above would not be satisfied.
Example 2: If the Ameris Ratio = 0.70 and the Index Ratio = 0.84, then 85% of the Index Ratio would be 0.85 x 0.84, or 71.4%, and both conditions 7.8(a) and 7.8(b) above would be satisfied.
provided, however, that if Atlantic refuses to consummate the Merger pursuant to this Section 7.8, then it shall give prompt written notice thereof to Ameris (and provided that such Atlantic notice of election to terminate may be withdrawn at any time within the aforementioned four (4) Business Day period). During the three (3) Business Day period commencing with its receipt of such notice, Ameris shall have the option to increase the consideration to be received by the holders of Atlantic Common Stock hereunder by either:
(i)   increasing the Exchange Ratio (calculated to the nearest one one-thousandth); or
(ii)   provided that it does not, and will not, prevent or impede the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code, paying, as part of the Merger Consideration, to each recipient of the Per Share Purchase Price, a cash payment (in addition to, and not in lieu of, issuing the Per Share Purchase Price to such recipients in accordance with this Agreement) (such cash payment, the “Additional Cash Consideration”);
in each case of the immediately preceding clauses (i) and (ii), such that the value of the consideration (calculated based on the Average Ameris Stock Price and including any Additional Cash Consideration) to be received by each holder of Atlantic Common Stock hereunder, exclusive of Cash Consideration, equals the lesser of the following: (A) an amount equal to the product of the Starting Price, 0.85 and the Exchange Ratio (as in effect immediately prior to any increase in the Exchange Ratio pursuant to this Section 7.8); and (B) an amount equal to (1) the product of the Index Ratio, 0.85, the Exchange Ratio (as in effect immediately prior to any increase in the Exchange Ratio pursuant to this Section 7.8) and the Average Ameris Stock Price, divided by (2) the Ameris Ratio.
If Ameris so elects within such three (3) Business Day period, then it shall give prompt written notice to Atlantic of such election and the revised Exchange Ratio or the Additional Cash Consideration, as applicable, whereupon no termination shall have occurred pursuant to this Section 7.8 and this Agreement shall remain in effect in accordance with its terms, provided that any references in this Agreement to the “Exchange Ratio” shall thereafter be deemed to refer to the Exchange Ratio as increased pursuant to this Section 7.8, if applicable, and any references in this Agreement to the Per Share Stock Purchase Price shall thereafter include the Additional Cash Consideration as set forth in this Section 7.8, if applicable.occasion.
A-46A-53
TABLE OF CONTENTS​​​​
For purposesARTICLE VIII
MISCELLANEOUS
8.1 Nonsurvival of this Section 7.8,Representations, Warranties and Agreements the following terms shall have the meanings indicated below:
“Average Ameris Stock Price” shall mean the average.   None of the closing sale prices of Ameris Common Stock as reported on the NASDAQ during the twenty (20) consecutive full trading days ending at the closing of trading on the trading day immediately prior to the Determination Date; provided, however, that in the event Ameris Common Stock does not trade on any one or more of the trading days during the twenty (20) consecutive full trading days ending at the closing of trading on the trading day immediately prior to the Determination Date, any such date shall be disregarded in computing the average closing sales pricerepresentations, warranties, covenants and the average shall be based upon the closing sales prices and number of days on which Ameris Common Stock actually traded during the twenty (20) consecutive full trading days ending at the closing of trading on the trading day immediately prior to the Determination Date.
“Average Index Price” shall mean the average of the daily current market prices of the Index for the twenty (20) consecutive full trading days ending at the closing of trading on the trading day immediately prior to the Determination Date.
“Determination Date” shall mean the last of the following dates to occur: (i) the effective date (including expiration of any applicable waiting period) of the last Required Regulatory Approval necessary to consummate the transactions contemplated hereby; and (ii) the date of the receipt of the Requisite Atlantic Stockholder Approval.
“Index” shall mean the KBW NASDAQ Regional Banking Index (KRX).
“Index Price” on a given date shall mean the current market price of the Index for that day.
“Starting Date” shall mean November 15, 2017.
“Starting Price” shall mean $46.95 per share.
If Ameris declares or effects a stock dividend, reclassification, recapitalization, split up, combination, exchange of shares or similar transaction between the date of this Agreement and the Determination Date, then the prices for Ameris Common Stock shall be appropriately adjusted for the purposes of applying this Section 7.8.
7.9Effect of Termination.   Except asagreements set forth in Section 7.7, in the event of the termination of this Agreement pursuant to this Article VII, this Agreement shall become voidsurvive the Effective Time, except for those covenants and have no effect, and neither party shall have any liability of any nature whatsoever underagreements contained in this Agreement that by their terms apply or are to be performed in whole or in connection withpart after the transactions contemplated by this Agreement, except that: (a) the provisions of this Article VII and Section 5.4 shall survive any such termination; and (b) such termination shall not relieve any party from liability arising from any willful breach of any provision of this Agreement.Effective Time.
ARTICLE VIII
MISCELLANEOUS
8.18.2 Notices.   All notices, requests, consents, claims, demands waivers and other communications hereunderunder this Agreement shall be in writing and shall be deemed to have been given:properly given if delivered (a) when deliveredpersonally, (b) by hand (with written confirmation of receipt); (b) when receivedregistered or certified mail (return receipt requested), with adequate postage prepaid thereon, (c) by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or email of a PDF documentproperly addressed electronic mail delivery (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient;delivery receipt) or (d) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sentreputable courier service to the respective partiesapplicable party at the following addresses (orits address set forth below, or at such other address for aor addresses as such party asmay specify from time to time by notice in like manner to the other party hereto. All notices shall be specified in a notice given in accordance with this Section 8.1):deemed effective upon delivery.
ifIf to Ameris,ABCB, to:
Ameris Bancorp
310 First Street, S.E.1301 Riverplace Boulevard
Moultrie, Georgia 31768Suite 2600
Jacksonville, Florida 32207
Attn: Mr. Edwin W. Hortman,Dennis J. Zember Jr.
Fax: (229) 890-2235
Email: edwin.hortman@amerisbank.comdennis.zember@amerisbank.com
A-47
TABLE OF CONTENTS​​​
with a copy (which shall not constitute notice to Ameris)ABCB) to:
Rogers & Hardin LLP
2700 International Tower
229 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Jody L. Spencer, Esq.
Fax: (404) 230-0972
Email: jspencer@rh-law.com
ifIf to Atlantic,FSC, to:
Atlantic Coast FinancialFidelity Southern Corporation
4655 Salisbury3490 Piedmont Road
Suite 1101550
Jacksonville, Florida 32256Atlanta, Georgia 30305
Attn: John K. StephensMr. H. Palmer Proctor, Jr.
Email: StephensJ@atlanticcoastbank.netpalmer.proctor@lionbank.com
with a copy (which shall not constitute notice to Atlantic)FSC) to:
Igler and Pearlman, P.A.Wachtell, Lipton, Rosen & Katz
2075 Centre Pointe Boulevard, Suite 10051 West 52nd Street
Tallahassee, Florida 32308New York, New York 10019
Attn: A. George Igler and Richard PearlmanEdward D. Herlihy, Esq.
Fax: (850) 878-1230Brandon C. Price, Esq.
Email: george.igler@iglerlaw.com and richard.pearlman@iglerlaw.comEDHerlihy@wlrk.com
BCPrice@wlrk.com
8.28.3 Entire Agreement.   This Agreement (including the Disclosure ScheduleSchedules hereto), together with the FSC Voting Agreement, the Bank Merger Agreement and the other documents and agreements delivered prior to or at the Closing Date pursuant to the provisions hereof, constituteconstitutes the full and entire understanding and agreement of the parties hereto in respect of its subject matter, and supersedesupersedes all prior agreements, understandings (oral and written) and negotiations between or among the parties with regard to such subject matter. The Disclosure ScheduleSchedules and the NDANondisclosure Agreement constitute a part hereof as though set forth in full herein.
8.3Survival.   None of the representations and warranties contained in this Agreement or in any instrument delivered under this Agreement will survive the Effective Time. This Section 8.3 does not limit any covenant or agreement of the parties contained in this Agreement which, by its terms, contemplates performance after the Effective Time. The NDA will survive termination of this Agreement in accordance with its terms.
8.4Waiver; Amendment.
(a)   On or prior to the Closing Date, Ameris shall have the right to waive any default in the performance of any term of this Agreement by Atlantic, to waive or extend the time for the fulfillment by Atlantic of any or all of Atlantic’s obligations under this Agreement and to waive any or all of the conditions precedent to the obligations of Ameris under this Agreement, except any condition which, if not satisfied, would result in the violation of any Applicable Law. On or prior to the Closing Date, Atlantic shall have the right to waive any default in the performance of any term of this Agreement by Ameris, to waive or extend the time for the fulfillment by Ameris of any or all of Ameris’s obligations under this Agreement and to waive any or all of the conditions precedent to the obligations of Atlantic under this Agreement, except any condition which, if not satisfied, would result in the violation of any Applicable Law.
(b)   This Agreement may be amended by a subsequent writing signed by the parties hereto. An amendment to this Agreement may be made after stockholder approval of this Agreement has been obtained; provided, however, that after any such approval by the holders of Atlantic Common Stock, no amendment shall be made that reduces or modifies in any respect the consideration to be received by holders of Atlantic Common Stock.
A-48A-54
TABLE OF CONTENTS​​​​​​​​
8.4 8.5CounterpartsAmendments.   This Agreement (including the Disclosure Schedules attached hereto) may not be modified, amended, supplemented, canceled or discharged, except by a written instrument executed simultaneouslyby all parties hereto.
8.5 Waivers.   No failure to exercise, and no delay in exercising, any numberright, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise of counterparts, eachany right, power or privilege hereunder preclude the exercise of whichany other right, power or privilege. No waiver of any breach of any provision shall be deemed an original, but allto be a waiver of which shall constitute one andany preceding or succeeding breach of the same instrument. Thisor any other provision, nor shall any waiver be implied from any course of dealing between the parties. No extension of time for performance of any obligations or other acts hereunder or under any other agreement shall be deemed to be an extension of the time for performance of any other obligations or any other acts. Any waiver, permit, consent or approval of any kind or character by any party of any breach or default under this Agreement, maymust be executed by facsimile, photo or electronic signaturein writing and such facsimile, photo or electronic signature shall constitute an original for all purposes.
8.6No Third-Party Beneficiaries.   Except asbe effective only to the extent specifically set forth in such writing.
8.6 Section 5.11Binding Effect; Assignment.   The rights and Section 5.12, no provisionobligations of this Agreement shall be deemed to create any third-party beneficiary rights in anyone, including any employee or former employee of Atlantic (including any beneficiary or dependent thereof).
8.7Binding Effect; Assignment.   This Agreement shall be binding uponon and shall inure to the benefit ofenforceable by the parties hereto and their respective successors and assigns; provided, however, that, exceptpermitted assigns. Except as expressly provided herein, the rights and obligations of this Agreement may not be assigned by either partyFSC or ABCB without the express prior written consent of the other party. Except for Section 5.9, which is intended to benefit each Indemnitee and his or her heirs and representatives, or as otherwise specifically provided herein, nothing in this Agreement, expressed or implied, is intended or shall be construed to confer upon any Person other than the parties hereto and their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
8.88.7 Governing Law; VenueJurisdiction.
(a) This Agreement shall be governed by and construed in accordance with the lawsLaws of the State of Georgia,Delaware applicable to contracts made and performed entirely within such state, without giving effect to its principles of conflicts of laws; provided, however, that the Maryland General Corporation Law shall governmatters relating to the extent mandatorily applicablefiduciary duties of the board of directors of FSC shall be subject to Maryland corporations. Venue forthe Laws of the State of Georgia.
(b) Each party agrees that it will bring any action hereunder shall lieor proceeding in respect of any claim arising out of or related to this Agreement or the transactions contemplated hereby exclusively in the Federal orCourt of Chancery of the State Courtsof Delaware (or, if the Court of Chancery determines that it lacks subject matter jurisdiction, any federal court sitting in the State of Delaware and, if both the Court of Chancery and the federal courts sitting in the State of Delaware determine that they lack subject matter jurisdiction, any state court located in Duval County, Florida.the State of Delaware) (and any courts from which appeals may be taken) (the “Chosen Courts”), and, solely in connection with claims arising under this Agreement or the transactions that are the subject of this Agreement, (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party and (iv) agrees that service of process upon such party in any such action or proceeding will be effective if notice is given in accordance with Section 8.2.
8.8 8.9WAIVER OF JURY TRIALWaiver of Jury Trial.   EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICHTHAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE EXTENT PERMITTED BY LAW AT THE TIME OF INSTITUTION OF THE APPLICABLE LITIGATION, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BANK MERGER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT: (I)THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II)WAIVER, (B) EACH SUCH PARTY UNDERSTANDS AND HAS
A-55
TABLE OF CONTENTS​​​​
CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (III)WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY;VOLUNTARILY AND (IV)(D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.98.8.
8.10Severability.   If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
8.118.9 Cumulative Remedies; Specific Performance.   All rights and remedies under this Agreement or otherwise afforded by Applicable Law to any party, shall be cumulative and not alternative. Without limiting the rights of a party hereto to pursue all other legal and equitable rights available to such party for another party’s failure to perform its obligations under this Agreement in accordance with its specific terms, the parties hereto acknowledge and agree that the remedy at law for any failure to perform their respective obligations hereunder would be inadequate and irreparable damage would occur and that each party shall be entitled to specific performance, injunctive relief or other equitable remedies in the event of any such failure. Each of the parties hereby further waives any requirement under Applicable Law to post security as a prerequisite to obtaining equitable relief.
8.128.10 InterpretationExpenses.
(a)   For the purposes of this Agreement: (i) words in the singular shall be held to include the plural and vice versa and words of one gender shall be held to include the other gender as the context requires; (ii) the terms “hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer   Each party to this Agreement shall bear its own expenses incurred in connection with the preparation, execution and performance of this Agreement and the Bank Merger Agreement and the transactions contemplated hereby and thereby, whether or not such transactions are consummated, including all fees and expenses of such party’s Representatives.
8.11 Counterparts.   This Agreement may be executed in counterparts, delivery of which may be by facsimile or other electronic transmission, including in “portable document format” (.pdf), and each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
8.12 Severability.   Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as a whole (includingto be effective and valid under applicable law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction such that the Disclosure Scheduleinvalid, illegal or unenforceable provision or portion thereof shall be interpreted to be only so broad as is enforceable.
[Remainder of page intentionally left blank; signature page follows.]
A-49A-56
TABLE OF CONTENTS
IN WITNESS WHEREOF, the parties have executed this Agreement and Plan of Merger on the day and year first above written.
AMERIS BANCORP
By:
/s/ Dennis J. Zember Jr.
​
​
Dennis J. Zember Jr.
President and Chief Executive Officer
FIDELITY SOUTHERN CORPORATION
By:
/s/ James B. Miller, Jr.
​
​
James B. Miller, Jr.
Chairman and Chief Executive Officer
[Signature Page to Agreement and Plan of Merger]
A-57
TABLE OF CONTENTS
EXHIBIT A​
BANK PLAN OF MERGER AND MERGER AGREEMENT
THIS BANK PLAN OF MERGER AND MERGER AGREEMENT (this “Agreement”) is made and entered into as of the 17th day of December, 2018, by and between AMERIS BANK, a Georgia state-chartered bank (the “Surviving Bank”), and FIDELITY BANK, a Georgia state-chartered bank (the “Merging Bank”) (the Merging Bank and the Surviving Bank are hereinafter collectively referred to as the “Constituent Banks”).
WITNESSETH:
WHEREAS, Ameris Bancorp, a Georgia corporation and the sole shareholder of the Surviving Bank (“Ameris”), and Fidelity Southern Corporation, a Georgia corporation and the sole shareholder of the Merging Bank (“Fidelity”), have entered into that certain Agreement and Plan of Merger dated as of December 17, 2018 (the “Holding Company Agreement”), which provides for the merger of Fidelity with and into Ameris (the “Company Merger”);
WHEREAS, the boards of directors of the Constituent Banks deem it advisable and for the benefit of the Constituent Banks that the Merging Bank merge with and into the Surviving Bank immediately upon, and subject to, the consummation of the Company Merger (the “Merger”);
WHEREAS, the Financial Institutions Code of Georgia (the “Code”) authorizes the merger of banks organized under the Code, subject to applicable provisions of the Code and the approval of such merger by the Department of Banking and Finance of the State of Georgia (the “Department”); and
WHEREAS, it is intended that the Merger for federal income tax purposes shall qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, for and in consideration of the premises and other mutual agreements, covenants, representations and warranties contained herein, the parties hereto agree as follows:
I.
MERGER; EFFECTIVE TIME
1.1 Merger.   At the Effective Time (as hereinafter defined), the Merging Bank shall be merged with and into the Surviving Bank, in accordance with the Code. The Surviving Bank shall survive the Merger, the separate existence of the Merging Bank shall cease and the Merger shall in all respects have the effects provided for in the applicable provisions of the Code.
1.2 Effective Time.   Articles of Merger evidencing the transactions contemplated herein shall be delivered to the Department for filing, subject to the consummation of the Company Merger in accordance with the Holding Company Agreement, in accordance with the Code. The Merger shall be effective as of the issuance of a certificate of merger with respect thereto by the Secretary of State of the State of Georgia or such other date and time as the parties shall agree consistent with applicable provisions of the Code (the “Effective Time”). Unless the parties otherwise mutually agree, they intend that the Effective Time occur immediately following the effective time of the Company Merger in accordance with the Holding Company Agreement.
II.
NAME OF SURVIVING BANK; ARTICLES OF
INCORPORATION; BYLAWS; DIRECTORS; OFFICERS
2.1 Name of Surviving Bank.   The name of the Surviving Bank shall be “Ameris Bank”.
2.2 Articles of Incorporation of the Surviving Bank.   The Articles of Incorporation of the Surviving Bank in effect at the Effective Time shall (until further amended) continue to be the Articles of Incorporation of the Surviving Bank, except that paragraph 2 thereof shall be amended at or immediately prior to the Effective Time by replacing the second sentence thereof with the following: “The main office of the Bank is located at 3490 Piedmont Road, Suite 1550, Atlanta, Fulton County, Georgia 30305.”
Exhibit A-1
TABLE OF CONTENTS
2.3 Bylaws of the Surviving Bank.   The Bylaws of the Surviving Bank in effect at the Effective Time shall (until further amended) continue to be the Bylaws of the Surviving Bank.
2.4 Directors of the Surviving Bank.   The board of directors of the Surviving Bank shall take all appropriate action so that at and after the Effective Time the board of directors of the Surviving Bank is increased to fourteen (14) members, (i) nine (9) of whom shall be the directors of the Surviving Bank immediately prior to the Effective Time and (ii) five (5) of whom shall be the members of the board of directors of the Merging Bank who are set forth on Schedule 2.4 (or if, prior to the Effective Time, any such person becomes unable or unwilling to serve in such position, a replacement mutually acceptable to the Merging Bank and the Surviving Bank), each of whom shall serve as the directors of the Surviving Bank until their respective successors have been duly elected and qualified, or until their earlier death, resignation or removal from office in accordance with the Articles of Incorporation and Bylaws of the Surviving Bank.
2.5 Executive Officers of the Surviving Bank.   The board of directors of the Surviving Bank shall take all appropriate action so that at and after the Effective Time, (i) James B. Miller, Jr. shall serve as Executive Chairman of the Surviving Bank, (ii) H. Palmer Proctor, Jr. shall serve as Chief Executive Officer of the Surviving Bank and (iii) the other officers of the Surviving Bank shall be the officers thereof immediately prior to the Effective Time, in each case until their respective successors are duly appointed and qualified, or until their earlier death, resignation or removal from office in accordance with the Articles of Incorporation and Bylaws of the Surviving Bank.
III.
SECURITIES
The shares of the capital stock of the Constituent Banks shall be converted as follows:
3.1 Stock of the Surviving Bank.   At the Effective Time, each share of the common stock of the Surviving Bank issued and outstanding immediately prior to the Effective Time shall remain outstanding, shall be unaffected by the consummation of the Merger and shall continue to be held by Ameris.
3.2 Stock of the Merging Bank.   At the Effective Time, each share of the common stock of the Merging Bank issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without any action by the holder thereof, be cancelled, and no consideration shall be delivered in exchange therefor.
IV.
GENERAL
4.1 Approval of Shareholders and the Department.   This Agreement, and the consummation of the Merger contemplated hereby, is subject to approval by the shareholders of the Constituent Banks and by the Department and all Exhibitsother applicable regulatory authorities.
4.2 Necessary Action.   The directors and officers of the Constituent Banks shall carry out and consummate this Agreement and shall have the power to adopt all resolutions, execute and file all documents and take all other actions that they may deem necessary or desirable for the purpose of effecting the Merger in accordance with this Agreement)Agreement and not tothe Code.
4.3 Counterparts.   This Agreement may be executed in counterparts, delivery of which may be by facsimile or other electronic transmission, including in “portable document format” (.pdf), and each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
4.4 Termination.
(a) Notwithstanding any particularother provision of this Agreement, and Article, Section, paragraph and Exhibit references are tonotwithstanding the Articles, Sections, paragraphs and Exhibits to this Agreement unless otherwise specified; (iii) the table of contents and headings contained in this Agreement are for reference purposes only and shall not be deemed a partapproval of this Agreement nor shall they affect in any wayby the meaningshareholders of the Merging Bank or interpretation of this Agreement; (iv) whenever the words “include,” “includes” or “including” are used inSurviving Bank, this Agreement they shall be deemed to be followed byterminated and the words “without limitation”: (v) the word “or” shall not be exclusive; (vi) all references to any period of daysMerger shall be deemed to be toabandoned automatically and without the relevant number of calendar days unless otherwise specified; (vii) where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning; and (viii) a reference to any statute or to any provisionnecessity of any statute shall include any amendment thereto, and any modification or re-enactment thereof, and all regulations and statutory instruments issued thereunder or pursuant thereto. It is understood and agreed that the specification of any dollar amount in the representations and warranties contained in this Agreement or the inclusion of any specific item in the Disclosure Schedule is not intended to imply that such amounts or higher or lower amounts, or the items so included or other items, are or are not material, and neither party shall use the fact of the setting of such amounts or the fact of the inclusion of any such item in the Disclosure Schedule in any dispute or controversy between the parties as to whether any obligation, item or matter not described in this Agreement or included in the Disclosure Schedule is or is not material for purposes of this Agreement. This Agreement shall not be interpreted or construed to require any party or other Person to take anyfurther action or fail to take any action, if to do so would violate Applicable Law.
(b)   For purposes of this Agreement: (i) “knowledge” as to Atlantic, and any other phrase of similar import, means, with respect to any matter in question relating to Atlantic, the actual knowledge of an executive officer of Atlantic or Atlantic Coast Bank after reasonable inquiry of subordinate officers who would reasonably be expected to have knowledge of such facts, events or circumstances; and (ii) “knowledge” as to Ameris, and any other phrase of similar import, means, with respect to any matter in question relating to Ameris, the actual knowledge of an executive officer of Ameris or Ameris Bank after reasonable inquiry of subordinate officers who would reasonably be expected to have knowledge of such facts, events or circumstances.
(c)   No disclosure, representation or warranty shall be required to be made (or any other action taken) pursuant to this Agreement that would involve the disclosure of confidential supervisory information of a Governmental Authority by any party heretoin the event of the termination of the Holding Company Agreement, and this Agreement otherwise may be terminated and the Merger abandoned at any time prior to the extent prohibitedEffective Time by Applicable Law,mutual consent of the boards of directors of the Constituent Banks.
Exhibit A-2
TABLE OF CONTENTS
(b) In the event of the termination and to the extent legally permissible, appropriate substitute disclosures or actions shall be made or taken under circumstances in which the limitationsabandonment of this sentence apply.Agreement pursuant to Section 4.4(a) hereof, this Agreement shall become void and of no effect.
[SignatureRemainder of page intentionally left blank; signature page follows.]
A-50Exhibit A-3
TABLE OF CONTENTS
IN WITNESS WHEREOF, each of the parties to this Agreement has caused this Agreement to be executed on its behalfsigned and delivered by its duly authorized officersofficer, as of the daydate first written above.
AMERIS BANK
By:
​
Dennis J. Zember Jr.
Chief Executive Officer
FIDELITY BANK
By:
​
H. Palmer Proctor, Jr.
President and year first above written.
​​​​AMERIS BANCORP​
​​​​
By:Chief Executive Officer
/s/ Edwin W. Hortman, Jr.
​
​
Edwin W. Hortman, Jr.
President and Chief Executive Officer
​
​​​​ATLANTIC COAST FINANCIAL CORPORATION​
​​​​
By:
/s/ John K. Stephens, Jr.
​
​
John K. Stephens, Jr.
President and Chief Executive Officer
​
A-51[Signature Page to Bank Plan of Merger and Merger Agreement]
Exhibit A-4
TABLE OF CONTENTS
Schedule 2.4
•
James B. Miller, Jr.
​
•
H. Palmer Proctor, Jr.
​
•
Gloria A. O’Neal
​
•
Rodney D. Bullard
​
•
Wm. Millard Choate
​
​
Exhibit A-5
TABLE OF CONTENTS​​
APPENDIXANNEX B​
FORM OF
VOTING AND SUPPORT AGREEMENT
THIS VOTING AND SUPPORT AGREEMENT (this “Agreement”), dated as of November 16, 2017,December 17, 2018, is entered into by and among Ameris Bancorp, a Georgia corporation (“AmerisABCB”), Atlantic Coast FinancialFidelity Southern Corporation, a MarylandGeorgia corporation (“AtlanticFSC”), and each person or entity executing this Agreement or a counterpart to this Agreement as a stockholdershareholder of AtlanticFSC (each, a “StockholderShareholder”).
WITNESSETH:
WHEREAS, pursuant to the terms of the Agreement and Plan of Merger (as the same may be amended or supplemented, the “Merger Agreement”), dated as of the date hereof and to be executed by AmerisABCB and AtlanticFSC concurrently with the execution of this Agreement by the parties hereto, AtlanticFSC will, subject to the terms and conditions set forth therein, merge with and into Ameris,ABCB, with AmerisABCB being the surviving entity (the “Merger”); and
WHEREAS, as an inducement for AmerisABCB to enter into the Merger Agreement, AmerisABCB has required that each StockholderShareholder enter into this Agreement;
NOW, THEREFORE, in consideration of, and as a material inducement to, the parties entering into the Merger Agreement and proceeding with the transactions contemplated thereby, and in consideration of the expenses incurred and to be incurred by them in connection therewith, the parties hereto agree as follows:
1.Definitions.   Capitalized terms not defined in this Agreement have the respective meanings assigned to them in the Merger Agreement.
2. Effectiveness.   The effectiveness of this Agreement shall be conditioned upon the execution and delivery of the Merger Agreement by the parties thereto. If the Merger Agreement is terminated for any reason in accordance with its terms, this Agreement shall automatically terminate and be null and void and of no effect. The effectiveness of this Agreement shall be conditioned upon the execution and delivery of the Merger Agreement by the parties thereto.
3. Voting Agreement.
(a) From the date hereof until the earlierearliest to occur of  (x) the Effective Time, and (y) the termination of the Merger Agreement in accordance with its terms and (z) the entry without the prior written consent of such Shareholder into any amendment or modification of the Merger Agreement which results in a decrease in, or change in the composition of, the Merger Consideration (the “Support Period”), each StockholderShareholder irrevocably and unconditionally agrees that at any stockholdershareholder meeting of AtlanticFSC to approve the Merger Agreement or any adjournment or postponement thereof, such StockholderShareholder shall be present (in person or by proxy) and shall vote (or cause to be voted) all shares of AtlanticFSC Common Stock beneficially owned by such StockholderShareholder as of the date hereof, together with all shares of AtlanticFSC Common Stock over which such StockholderShareholder may acquire beneficial ownership from time to time after the date hereof, in each case that are entitled to vote at such meeting (collectively, the “Owned Shares”), as follows:
(i) in favor of  (A) the approval or adoption of the Merger Agreement and the transactions contemplated thereby (including any amendments or modifications of the terms thereof approved by the board of directors of AtlanticFSC and adopted in accordance with the terms thereof) and (B) the approval of any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes to approve the Merger Agreement and such adjournment or postponement is in accordance with the Merger Agreement; and
(ii) against (A) any action or agreement that would be reasonably likely to impair the ability of either Amerisprevent, materially impede or Atlantic to complete the Merger, or that would otherwise be inconsistent with, prevent, impede ormaterially delay the consummation of the transactions contemplated by the Merger Agreement, and (B) other than the transactions contemplated by the Merger Agreement, any proposal that relates to an Acquisition Proposal, without regard to the terms of such proposal.
B-1
TABLE OF CONTENTS
(b) Each StockholderShareholder further agrees not to vote or execute any written consent to rescind or amend in any manner any prior vote or written consent, as a stockholdershareholder of Atlantic,FSC, to approve or adopt the Merger Agreement unless this Agreement shall have been terminated in accordance with its terms.
B-1
TABLE OF CONTENTS
(c) Each StockholderShareholder represents and warrants and covenants and agrees that, except for this Agreement, such StockholderShareholder (i) has not entered into, and shall not enter into during the Support Period, any voting agreement or voting trust with respect to the Owned Shares and (ii) has not granted, and shall not grant during the Support Period, a proxy, consent or power of attorney with respect to the Owned Shares except any proxy to carry out the intent of this Agreement.
(d)   With respect to any Stockholder that is an officer, director or other representative of Atlantic or any of Subsidiary of Atlantic, such Stockholder, in its capacity as a stockholder of Atlantic, hereby acknowledges that such Stockholder is bound by the restrictions set forth in Section 4.19 of the Merger Agreement and agrees consistent therewith not to solicit or facilitate any Acquisition Proposal.
4.Grant of Irrevocable Proxy; Appointment of Proxy.   During the Support Period, each StockholderShareholder hereby irrevocably and unconditionally grants to, and appoints, AmerisABCB and any designee thereof as such Stockholder’sShareholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Stockholder,Shareholder, to vote or cause to be voted (including by proxy or written consent, if applicable) the Owned Shares owned by such StockholderShareholder as of the applicable record date in accordance with Section 3 of this Agreement;Agreement, and each Shareholder shall retain the authority to vote on all other matters; provided,, however, that each Stockholder’sShareholder’s grant of the proxy contemplated by this Section 4 shall be effective if, and only if, such StockholderShareholder has not delivered to AtlanticFSC prior to the meeting at which any of the matters described in Section 3 are to be considered, a duly executed irrevocable proxy card directing that the Owned Shares of such StockholderShareholder be voted in accordance with Section 3 of this Agreement. Each StockholderShareholder hereby affirms that the irrevocable proxy set forth in this Section 4, if it becomes effective, is coupled with an interest and is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such StockholderShareholder under this Agreement. The parties hereby further affirm that the irrevocable proxy, if it becomes effective, is intended to be irrevocable until the end of the Support Period, at which time it will terminate automatically. If for any reason any proxy granted herein is not irrevocable after it becomes effective, then the StockholderShareholder granting such proxy agrees, until the end of the Support Period, to vote the Owned Shares in accordance with Section 3 of this Agreement. The parties agree that the foregoing is a voting agreement. Notwithstanding anything contained herein to the contrary, this proxy shall automatically terminate and be revoked upon the termination of this Agreement in accordance with its terms.
5.Transfer Restrictions Prior to Merger.   Each StockholderShareholder agrees that, absent the prior written consent of ABCB and FSC, it will not, duringuntil the earlier of  (x) the end of the Support Period and (y) the time at which the FSC Shareholder Approval is obtained, sell, transfer, assign, tender in any tender or exchange offer, pledge, encumber, hypothecate or similarly dispose of  (by merger, by testamentary disposition, by operation of law or otherwise), either voluntarily or involuntarily, enter into any swap or other arrangements that transfers to another, in whole or in part, any of the economic consequences of ownership of, enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, lien, hypothecation or other disposition of  (by merger, by testamentary disposition, by operation of law or otherwise) or otherwise convey or dispose of, any of such Stockholder’sShareholder’s Owned Shares, or any interest therein, including the right to vote any Owned Shares, as applicable (a “Transfer”); provided,, however, that such StockholderShareholder may Transfer Owned SharesShares: (i) (A) for estate planning or to a charitable institution for philanthropic purposes, (B) pursuant to any trust or will of such Shareholder, or by the Laws of intestate succession, or (C) pursuant to a qualified domestic order or as required by a divorce settlement, in each such case, so long as the transferee, prior to the date of Transfer, agrees in a signed writing to be bound by and comply with the provisions of this Agreement with respect to such Owned Shares.Shares; or (ii) solely in connection with the payment of the exercise price and/or the satisfaction of any tax withholding obligations arising from the exercise of any stock options, the vesting of any restricted shares or other equity awards or the conversion of any convertible securities. Following a Transfer of Owned Shares by a Shareholder in accordance with this Section 5, such Transferred Owned Shares shall no longer constitute Owned Shares of such Transferring Shareholder for purposes of this Agreement.
6.Cooperation.   From time to time, at the reasonable request of Ameris or Atlantic and without further consideration, each Stockholder shall cooperate with Ameris and Atlantic, at Atlantic’s expense, to make all filings and obtain all consents of Governmental Authorities and third parties and execute and deliver such additional documents and take all such further actions as may be necessary or desirable to effect the actions contemplated by this Agreement. Without limiting the foregoing, each StockholderEach Shareholder hereby: (i) authorizes AmerisABCB and AtlanticFSC to publish and disclose in any public announcement, disclosure required by the SEC or by Applicable Law or the Atlantic Proxy MaterialsStatement/​Prospectus (and, if applicable, the Ameris Registration Statement), such Stockholder’sShareholder’s identity and ownership of the Owned Shares, the nature of such Stockholder’sShareholder’s obligations under this Agreement and any other
B-2
TABLE OF CONTENTS
information that AmerisABCB or AtlanticFSC reasonably determines is required to be disclosed by the SEC or Applicable Law in connection with the Merger and the transactions contemplated by the Merger Agreement; (ii) agrees to promptly give to AmerisABCB and AtlanticFSC any information AmerisABCB or AtlanticFSC may reasonably require for the preparation of any such disclosure documents; and (iii) agrees to promptly notify AmerisABCB and AtlanticFSC of any required corrections with respect
B-2
TABLE OF CONTENTS
to any information supplied by such Stockholder,Shareholder, if and to the extent that such information shall have become false or misleading in any material respect.
7.Representations and Warranties.   Each StockholderShareholder represents and warrants to AmerisABCB that:
(a) such StockholderShareholder has all requisite capacity and authority to enter into and perform its obligations under this Agreement;
(b) this Agreement has been duly and validly executed and delivered by such StockholderShareholder and, assuming the due authorization, execution and delivery of this Agreement by AmerisABCB and Atlantic,FSC, constitutes a valid and legally binding agreement of such Stockholder,Shareholder, enforceable against such StockholderShareholder in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and subject to the general principles of equity, and no other action is necessary to authorize the execution and delivery by such StockholderShareholder or the performance of its obligations hereunder;
(c) the execution and delivery of this Agreement by such StockholderShareholder does not, and the performance by such StockholderShareholder of its obligations hereunder and the consummation by such StockholderShareholder of the transactions contemplated hereby will not, violate or conflict with, or constitute a default under, any agreement, instrument, contract or other obligation or any order, arbitration award, judgment or decree to which such StockholderShareholder is a party or by which such StockholderShareholder is bound, or any statute, rule or regulation to which such StockholderShareholder is subject or, in the event that such StockholderShareholder is a corporation, partnership, trust or other entity, any charter, bylaw or other organizational document of such Stockholder;Shareholder;
(d) if such StockholderShareholder is married and any of the Owned Shares constitute community property or spousal approval is otherwise necessary for this Agreement to be legal, binding and enforceable, this Agreement has been (or promptly shall be) duly and validly executed and delivered by, and constitutes (or will constitute) a valid and legally binding agreement of, such Stockholder’sShareholder’s spouse, enforceable in accordance with its terms;
(e) the Owned Shares as of the date hereof are equal to the number of shares set forth next to such Stockholder’sShareholder’s name on Exhibit A hereto; and
(f) except as noted on Exhibit A hereto, such StockholderShareholder has, and at all times during the term of this Agreement shall have, beneficial ownership of, good and valid title to and full and exclusive power to vote, without restriction or limitation, the Owned Shares (other than any such shares that are Transferred in the manner permitted by this Agreement).
8.Waiver of Certain Rights.   To the extent permitted by Applicable Law, each Stockholder hereby waives any rights of appraisal or rights to dissent from the Merger or to demand fair value for such Stockholder’s Owned Shares in connection with the Merger, in each case, that such Stockholder may have under Applicable Law. Each Stockholder furtherShareholder agrees not to commence or participate in, and to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Ameris, AtlanticABCB, FSC or any of their respective Subsidiaries, Affiliates or successors relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the consummation of the Merger.
9.Entire Agreement; Assignment.   This Agreement is irrevocable. The exhibits hereto are incorporated as a part of this Agreement. This Agreement (and, to the extent referenced herein, the Merger Agreement) constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other personPerson any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. This Agreement shall not be assigned by operation of law or otherwise and shall be binding upon and inure solely to the benefit of each party hereto; provided,, however, that the rights under this Agreement are assignable by AmerisABCB or AtlanticFSC to any successor-in-interest.
B-3
TABLE OF CONTENTS
10.Remedies/Specific Enforcement.   Each of the parties hereto agrees that this Agreement is intended to be legally binding and specifically enforceable pursuant to its terms and that each of AmerisABCB and AtlanticFSC would be irreparably harmed if any of the provisions of this Agreement are not performed in accordance with their specific terms and that monetary damages would not provide adequate remedy in such event. Accordingly, in the event of any breach or threatened breach by any StockholderShareholder of any covenant or obligation contained in this Agreement, in addition to any other remedy to which AmerisABCB or AtlanticFSC may be entitled (including monetary damages), each of AmerisABCB and AtlanticFSC shall be entitled to injunctive relief to prevent breaches of this Agreement and to specifically enforce the terms and provisions hereof. Each StockholderShareholder further agrees that none of Ameris, AtlanticABCB, FSC or any other person or entityPerson shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 10, and each StockholderShareholder irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument. If any legal action or other proceeding is brought against any party hereto to enforce any provision of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover all reasonable expenses relating thereto (including reasonable attorneys’ fees and expenses, court costs and expenses incident to arbitration, appellate and post-judgment proceedings) from the party against which such action or proceeding is brought, in addition to any other relief to which such prevailing party may be entitled.
11.Governing Law and Enforceability; VenueLaw; Jurisdiction.
(a) This Agreement shall be governed by and construed in accordance with the lawsLaws of the State of Georgia,Delaware applicable to contracts made and performed entirely within such state, without giving effect to its principles of conflicts of laws; provided, however,Laws.
(b) Each party agrees that the Maryland General Corporation Law shall governit will bring any action or proceeding in respect of any claim arising out of or related to the extent mandatorily applicable to Maryland corporations. If any court determines that the restrictions set forth in this Agreement are unenforceable, thenor the parties request such court to reform these provisions to the maximum restrictions, term or scope that such court finds enforceable. Venue for any action hereunder shall lietransactions contemplated hereby exclusively in the Federal orCourt of Chancery of the State Courtsof Delaware (or, if the Court of Chancery determines that it lacks subject matter jurisdiction, any federal court sitting in the State of Delaware and, if both the Court of Chancery and the federal courts sitting in the State of Delaware determine that they lack subject matter jurisdiction, any state court located in Duval County, Florida.the State of Delaware) (and any courts from which appeals may be taken) (the “Chosen Courts”), and, solely in connection with claims arising under this Agreement or the transactions that are the subject of this Agreement, (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party and (iv) agrees that service of process upon such party in any such action or proceeding will be effective if notice is given in accordance with Section 8.2 of the Merger Agreement, at the address of ABCB or FSC, as the case may be, as set forth therein or, with respect to a Shareholder, at the address set forth below such Shareholder’s name on the signature pages hereto.
12.Waiver of Jury Trial.   EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN THIS SECTION 12.12.
B-4
TABLE OF CONTENTS
13.Individual Obligations.   The obligations of each of the Stockholders under this Agreement are several and not joint.   This Agreement is binding on each StockholderShareholder that executes this Agreement regardless of whether any other Stockholder(s)Shareholder(s) also executed this Agreement. The obligations of each of the Shareholders under this Agreement are several and not joint, and all references to actions to be taken by the Shareholders, or representations and warranties to be made, under this Agreement refer to actions to be taken or representations and warranties to be made by Shareholders acting severally and not jointly.
14.Amendments; Waivers.   Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed (i) in the case of an amendment, by Ameris, AtlanticABCB, FSC and the applicable Stockholder(s)Shareholder(s), and (ii) in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
15.Number; Gender.   Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa.
16.Construction.   The words “include,” “includes” and “including” as used in this Agreement shall be deemed to be followed by the words “without limitation” whether or not such words appear.
B-4
TABLE OF CONTENTS
17.Capacity as StockholderShareholder.   This Agreement shall apply to each StockholderShareholder solely in such Stockholder’sShareholder’s capacity as a stockholdershareholder of AtlanticFSC and shall not apply in any manner to any StockholderShareholder in any capacity as a director or officer of AtlanticFSC or its Subsidiaries or in any other capacity (and shall not limit or affect any actions taken by any StockholderShareholder in the capacity of director or officer of AtlanticFSC or its Subsidiaries)Subsidiaries, and no such action taken by such Shareholder in the capacity of director or officer of FSC or its Subsidiaries shall be deemed to constitute a breach of this Agreement).
18.Headings.   The headings in this Agreement are inserted for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof.
19.Counterparts.   This Agreement may be executed in counter-parts,counterparts, delivery of which may be by facsimile or other electronic transmission, including in “portable document format” (.pdf), and each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
[Remainder of page intentionally left blank; signature pages follow.]
B-5
TABLE OF CONTENTS
SIGNEDIN WITNESS WHEREOF, the parties have executed this Voting and Support Agreement as of the dateday and year first set forth above:above written.
​AMERIS BANCORP​​ATLANTIC COAST FINANCIAL CORPORATION​
​
AMERIS BANCORP
By:
/s/ Dennis J. Zember Jr. 
Dennis J. Zember Jr.
President and Chief Executive Officer
FIDELITY SOUTHERN CORPORATION
By:
/s/ James B. Miller, Jr.
​
​
James B. Miller, Jr.
Chairman and Chief Executive Officer
[Shareholder signatures follow.]
[Signature Page to Voting and Support Agreement]
/s/ Edwin W. Hortman, Jr.
​
​
Edwin W. Hortman, Jr.
President and Chief Executive Officer
​​
By:
/s/ John K. Stephens, Jr.
​
​
John K. Stephens, Jr.
President and Chief Executive Officer
​
B-6
TABLE OF CONTENTS
​​​​STOCKHOLDER:​
​​​​
​
Printed or Typed Name of Stockholder
​
​​​​Signature/By:  ​
​​​​Name:  ​
​​​​
Title:  
(Provide Name and Title if signing in a representative capacity for a Stockholder that is not an individual)
​
SHAREHOLDER:
​
Printed or Typed Name of Shareholder
Signature/By:  
Name:  
Title:  
(Provide Name and Title if signing in a representative capacity for a Shareholder that is not an individual)
Address:  
​
​
Email:     
[Signature Page to Voting and Support Agreement]
B-7
TABLE OF CONTENTS
Exhibit A
​Director, Executive
Officer or Stockholder​		Shareholder​​​Name(s) in Which Shares are Registered​​​Number of Owned Shares​​
​​​​​​​​​​​​​
​​​​​​​​​​​​​
​​​​​​​​​​​​​
​​​​​​​​​​​​​
​​​​​​​​​​​​​
​​​​​​​​​​​​​
​​​​​​​​​​​​​
​​​​​​​​​​​​​
​​​​​​​​​​​​​
​​​​​​​​​​​​​
​​​​​​​​​​​​​
​​​​​​​​​​​​​
​​​​​​​​​​​​​
​​​​​​​​​​​​​
​​​​​​​​​​​​​
​​​​​​​​​​​​​
​​​​​​​​​​​​​
B-8
TABLE OF CONTENTS​
APPENDIX
ANNEX C​
[MISSING IMAGE: lg_hovde2-group.jpg][MISSING IMAGE: lg_sandler-oneillpartners.jpg]
November 15, 2017December 16, 2018​
Board of Directors
Atlantic Coast FinancialFidelity Southern Corporation
4655 Salisbury3490 Piedmont Road, Suite 1101550
Jacksonville, FL 32256Atlanta, GA 30305
Ladies and Gentlemen:
Hovde Group, LLCFidelity Southern Corporation (“we” or “Hovde”FSC”) understand thatand Ameris Bancorp a Georgia corporation (“Ameris”ABCB”) and Atlantic Financial Corporation, a Maryland corporation (“Atlantic” and, together with Ameris, the “Parties” and each a “Party”), are aboutproposing to enter into an Agreement and Plan of Merger (the “Agreement”) pursuant to be dated on or about November 15, 2017 (the “Agreement”). Pursuant andwhich FSC will, subject to the terms ofand conditions set forth in the Agreement, Atlantic shall merge with and into Ameris,ABCB with AmerisABCB being the surviving entity (the “Merger”“Merger”). Further, it is contemplated that the Merger will be immediately followed by a merger of Atlantic’s wholly owned banking subsidiary, Atlantic Coast Bank (“Atlantic Coast Bank”), with and into Ameris’s wholly owned banking subsidiary, Ameris Bank (“Ameris Bank”), with Ameris Bank being the surviving entity (the “Bank Merger”). The Merger and the Bank Merger are collectively referred to in the Agreement as the Merger. Capitalized terms used herein that are not otherwise defined shall have the same meanings attributed to them in the Agreement. For purposes of our analysis and opinion, Agreement as used herein shall referPursuant to the draft Agreement dated November 10, 2017 provided to Hovde by Atlantic.
Pursuantterms and subject to the termsconditions of the Agreement, at the Effective Time, automatically by virtue of the Merger and without any action on the part of the Parties or any stockholder of Atlantic, each share of AtlanticFSC’s common stock, no par value (“FSC Common StockStock”), issued and outstanding immediately prior to the Effective Time, (other than treasury stock and the Cancelled Shares), shall be converted, in accordance with the termsexcept for certain shares of the Agreement, into the right to receive the following consideration, in each case without interest: (i) an amount of cash equal to $1.39 (the “Cash Consideration”); and (ii) 0.17 validly issued, fully paid and nonassessable shares (the “Exchange Ratio”) of AmerisFSC Common Stock together with cash in lieu of any fractional shares in accordance with the provisions of Section 1.2(f) of the Agreement (the “Stock Consideration”, and together with the Cash Consideration, per share, the “Per Share Purchase Price”, as may be adjusted in accordance with Section 7.8 the Agreement, and in the aggregate, the “Merger Consideration”). As usedspecified in the Agreement, the term “Merger Consideration Price” means the sum of: (x) the Exchange Ratio multiplied by the Average Ameris Stock Price; and (y) $1.39.
We note that pursuant to the Agreement, each option to acquire shares of Atlantic Common Stock (an “Atlantic Stock Option”) issued pursuant to Atlantic’s equity-based compensation plans (the “Atlantic Stock Plans”), whether vested or unvested, that is outstanding as of immediately prior to the Effective Time, shall become fully vested and shall be cancelled and converted automatically into the rightentitled to receive a cash payment from Ameris or Ameris Bank0.80 shares (the “Cash-Out Amount”“Exchange Ratio”) of common stock, $1.00 par value per share, of ABCB (“ABCB Common Stock”). Capitalized terms used herein without definition shall have the meanings assigned to them in an amount equal to the product of: (i) the excess, if any,Agreement. The terms and conditions of the Merger Consideration Price over the exercise price of each such Atlantic Stock Option; and (ii) the number of shares of Atlantic Common Stock subject to such Atlantic Stock Option to the extent not previously exercised. After the Effective Time, any such cancelled Atlantic Stock Option shall no longer be exercisable by the former holder thereof, but shall only entitle the holder to the payment of the Cash-Out Amount, without interest. In the event the exercise price per share of Atlantic Common Stock subject to an Atlantic Stock Option is equal to or greater than the Merger Consideration Price, such Atlantic Stock Option shall be cancelled without consideration and have no further force or effect. We have been advised by you that as of November 8, 2017 there are 20,776 Atlantic Stock Options outstanding with a weighted average exercise price of  $14.95 per share, and therefore, with your consent, we have assumed for our opinion that all such outstanding options will be canceled and not entitled to receive the Merger Consideration Price.
C-1
TABLE OF CONTENTS
Further, we note that, at the Effective Time, each award of shares of Atlantic Common Stock subject to vesting, repurchase or other lapse restriction (an “Atlantic Restricted Share Award”) granted pursuant to the Atlantic Stock Plans, whether vested or unvested, that is outstanding as of immediately prior to the Effective Time, shall becomemore fully vested and shall be converted automatically into the right to receive the Merger Consideration Price in respect of each share of Atlantic Common Stock underlying such Atlantic Restricted Share Award. For purposes of the foregoing, you have advised us that there are 63,475 unallocated shares of Atlantic restricted stock outstanding held by the ESOP as of November 13, 2017, all of which will be cancelled for the repayment of the Atlantic ESOP Loan (as provided in the Agreement), and we have relied on such amounts for purposes of our analysis and opinion. Accordingly, you have advised us that there are a total of 15,490,234 shares of Atlantic Common Stock outstanding as of November 13, 2017 eligible to receive the Merger Consideration Price, and therefore, based upon the closing price of Ameris Common Stock as of November 13, 2017 of  $46.75, we have assumed for purposes of our analysis and opinion that the aggregate Merger Consideration payable by Ameris to the holders of Atlantic Common Stock is $144,640,060.
We note that pursuant to Section 7.8 of the Agreement, in the event that the Ameris Stock Price declines at any time during the four Business Day period immediately following the Determination Date as set forth in such Section, the Agreement may be terminated by Atlantic or, alternatively, either (i) the Exchange Ratio may be increased by Ameris or (ii) Ameris paying as part of the Merger Consideration a cash payment in addition to the Per Share Purchase Price (such cash payment being the “Additional Cash Consideration”) provided that the Additional Cash Consideration complies with the provisions for such Additional Cash Consideration set forth in the Agreement. For purposes of our analysis and opinion, we have assumed, with your consent, that the provisions of Section 7.8 will not be triggered and that the Exchange Ratio, the Per Share Purchase Price, the Merger Consideration Price and the aggregate Merger Consideration will not be adjusted and remain as set forth herein above.
You have requested our opinion as to the fairness, from a financial point of view, of the Merger ConsiderationExchange Ratio to the stockholdersholders of Atlantic. This opinion addresses onlyFSC Common Stock.
Sandler O’Neill & Partners, L.P. (“Sandler O’Neill”, “we” or “our”), as part of its investment banking business, is regularly engaged in the fairnessvaluation of the Merger Consideration to be paidfinancial institutions and their securities in connection with the Merger,mergers and acquisitions and other corporate transactions. In connection with this opinion, we are not opining on any individual stock, cash, option, orhave reviewed and considered, among other components of the consideration.
During the course of our engagement and for the purposes of the opinion set forth herein, we have:
things: (i)
reviewed a draft of the Agreement, dated November 10, 2017, as provided to Hovde by Atlantic;
​
December 14, 2018; (ii)
reviewed unaudited financial statements for Atlantic and Ameris for the nine-month period ended September 30, 2017;
​
(iii)
reviewed certain historical annual reports of each of Atlantic and Ameris, including audited annual reports for the year ending December 31, 2016;
​
(iv)
reviewed certain historical publicly available business and financial information concerning each of Atlantic and Ameris;
​
(v)
reviewed certain internal financial statements and other historical financial information of FSC that we deemed relevant; (iii) certain publicly available financial statements and operating data concerning Atlantic;
​
(vi)
reviewedother historical financial projections preparedinformation of ABCB that we deemed relevant; (iv) publicly available consensus mean analyst earnings per share and dividends per share estimates for FSC for the years ending December 31, 2018 and December 31, 2019, as well as an estimated long-term earnings per share growth rate and estimated dividends per share for the years thereafter, as provided by certain members ofthe senior management of Atlantic;
​
(vii)
discussed with certain members of senior management of Atlantic and Ameris the business, financial condition, results of operations and future prospects of each entity; the history and past and current operations of Atlantic and Ameris; Atlantic’s and Ameris’s historical financial performance; and their assessment of the rationale for the Merger;
​
(viii)
reviewed and analyzed materials detailing the Merger prepared by Atlantic and Ameris and by their respective legal and financial advisors, including the estimated amount and timing of the cost savings and related expenses, purchase accounting adjustments and synergies expected to result from the Merger (the “Synergies”);
​
(ix)
analyzed the pro forma financial impact of the Merger on the combined company’s earnings, tangible book value, financial ratios and other such metrics we deemed relevant, giving effect to the Merger based on assumptions relating to the Synergies;
​
​
C-2
TABLE OF CONTENTS
(x)
reviewedFSC; (v) publicly available consensus mean analyst earnings per share estimates for Atlantic and AmerisABCB for the years ending December 31, 20172018 and December 31, 2018;2019, as confirmed by the senior management of ABCB, as well as an estimated long-term earnings per share growth rate for the years thereafter and estimated dividends per share for the years ending December 31, 2018 through December 31, 2022, as provided by the senior management of ABCB; (vi) the relative contributions of assets, liabilities, equity and earnings of FSC and ABCB to the combined entity; (vii) the pro forma financial impact of the Merger on ABCB based on certain assumptions relating to purchase accounting adjustments, cost savings and transaction expenses, as provided by the senior management of ABCB, as well as the publicly available consensus mean analyst earnings per share estimate for FSC for the year ending December 31, 2018 with estimated earnings per share for FSC for the years thereafter, as provided by the senior management of ABCB; (viii) the publicly reported historical price and trading activity for FSC Common Stock and ABCB Common Stock, including a comparison of certain stock market information for FSC Common Stock and ABCB Common Stock and certain stock indices as well as publicly available information for certain other similar companies, the securities of which are publicly traded; (ix) a comparison of certain financial information for FSC and ABCB with similar
​
[MISSING IMAGE: ft_sandler.jpg]
(xi)
C-1
assessed current general economic, market and
TABLE OF CONTENTS
[MISSING IMAGE: lg_sandler-oneillpartners.jpg] 
financial conditions;
​
(xii)
reviewedinstitutions for which information is publicly available; (x) the financial terms of certain recent merger, acquisitionpending and control investment transactions,completed business combinations in the bank and thrift industry (on a regional and nationwide basis), to the extent publicly available, involvingavailable; (xi) the current market environment generally and the banking environment in particular; and (xii) such other information, financial institutionsstudies, analyses and investigations and financial, institution holding companies thateconomic and market criteria as we considered relevant;
​
(xiii)
taken into consideration our experience in other similar transactions and securities valuations as well as our knowledgerelevant. We also discussed with certain members of the bankingmanagement of FSC and financial services industry;
​
(xiv)
reviewed historical market prices and trading volumes of Ameris’ common stock;
​
(xv)
reviewed certain publicly available financial and stock market data relating to selected public companies that we deemed relevant to our analysis; and
​
(xvi)
performed such other analyses and considered such other factors as we have deemed appropriate.
​
We have assumed, without investigation, that there have been, and fromits representatives the date hereof through the Effective Date will be, no material changes in thebusiness, financial condition, and results of operations and prospects of Atlantic or Ameris since the dateFSC and held similar discussions with certain members of the latest financial information described above. We have further assumed, without independent verification, that the representations and financial and other information included in the Agreement and all other related documents and instruments that are referred to therein or otherwise provided to us by Atlantic and Ameris are true and complete. We have relied upon the management of AtlanticABCB and Ameris as toits representatives regarding the reasonablenessbusiness, financial condition, results of operations and achievabilityprospects of the financial forecasts, projections and other forward-looking information provided to Hovde by Atlantic and Ameris, and we assumed such forecasts, projections and other forward-looking information have been reasonably prepared by Atlantic and Ameris on a basis reflecting the best currently available information and Atlantic’s and Ameris’ judgments and estimates. We have assumed that such forecasts, projections and other forward-looking information would be realized in the amounts and at the times contemplated thereby, and we do not assume any responsibility for the accuracy or reasonableness thereof. We have been authorized by Atlantic to rely upon such forecasts, projections and other information and data, and we express no view as to any such forecasts, projections or other forward-looking information or data, or the bases or assumptions on which they were prepared.ABCB.
In performing our review, we have assumed and relied upon the accuracy and completeness of all of the financial and other information that was available to and reviewed by us from public sources, that was provided to us by AtlanticFSC or AmerisABCB or their respective representatives, or that was otherwise reviewed by us, and we have assumed such accuracy and completeness for purposes of rendering this opinion.opinion without any independent verification or investigation. We have further relied on the assurances of the respective managements of AtlanticFSC and AmerisABCB that they are not aware of any facts or circumstances that would make any of such information inaccurate or misleading. We have not been asked to undertake, and have not undertaken an independent verification of any of such information and we do not assume any responsibility or liability for the accuracy or completeness thereof. We did not make an independent evaluation or perform an appraisal of the specific assets, the collateral securing assets or the liabilities (contingent or otherwise) of FSC or ABCB or any of their respective subsidiaries, nor have we been furnished with any such evaluations or appraisals. We render no opinion or evaluation on the collectability of any assets or the future performance of any loans of FSC or ABCB. We did not make an independent evaluation of the adequacy of the allowance for loan losses of FSC or ABCB, or of the combined entity after the Merger, and we have not reviewed any individual credit files relating to FSC or ABCB. We have assumed, with your consent, that the respective allowances for loan losses for both FSC and ABCB are adequate to cover such losses and will be adequate on a pro forma basis for the combined entity.
In preparing its analyses, Sandler O’Neill used publicly available consensus mean analyst earnings per share and dividends per share estimates for FSC for the years ending December 31, 2018 and December 31, 2019, as well as an estimated long-term earnings per share growth rate and estimated dividends per share for the years thereafter, as provided by the senior management of FSC. In addition, Sandler O’Neill used publicly available consensus mean analyst earnings per share estimates for ABCB for the years ending December 31, 2018 and December 31, 2019, as confirmed by the senior management of ABCB, as well as an estimated long-term earnings per share growth rate for the years thereafter and estimated dividends per share for the years ending December 31, 2018 through December 31, 2022, as provided by the senior management of ABCB. Sandler O’Neill also received and used in its pro forma analyses certain assumptions relating to purchase accounting adjustments, cost savings and transaction expenses, as provided by the senior management of ABCB, as well as the publicly available consensus mean analyst earnings per share estimate for FSC for the year ending December 31, 2018 with estimated earnings per share for FSC for the years thereafter, as provided by the senior management of ABCB. With respect to the foregoing information, the respective managements of FSC and ABCB confirmed to us that such information reflected (or, in the case of the publicly available analyst estimates referred to above, were consistent with) the best currently available estimates and judgments of those respective managements as to the future financial performance of FSC and ABCB, respectively, and the other matters covered thereby, and we assumed that the future financial performance reflected in such information would be achieved. We express no opinion as to such information, or the assumptions on which such information is based. We have also assumed that there has been no material change in the respective assets, financial condition, results of
C-2
TABLE OF CONTENTS
[MISSING IMAGE: lg_sandler-oneillpartners.jpg] 
operations, business or prospects of FSC or ABCB since the date of the most recent financial statements made available to us. We have assumed in all respects material to our analysis that FSC and ABCB will remain as going concerns for all periods relevant to our analysis.
We have also assumed, with your consent, that (i) each of the parties to the Agreement will comply in all material respects with all material terms and conditions of the Agreement and all related agreements, that all of the representations and warranties contained in such agreements are true and correct in all material respects, that each of the parties to such agreements will perform in all material respects all of the covenants and other obligations required to be performed by such party under such agreements and that the conditions precedent in such agreements are not and will not be waived, (ii) in the course of obtaining the necessary regulatory or third party approvals, consents and releases with respect to the Merger, no delay, limitation, restriction or condition will be imposed that would have an adverse effect on FSC, ABCB, the Merger or any related transactions, and (iii) the Merger and any related transactions will be consummated in accordance with the terms of the Agreement without any waiver, modification or amendment of any material term, condition or agreement thereof and in compliance with all applicable laws and other requirements. Finally, with your consent, we have relied upon the advice that FSC has received from its legal, accounting and tax advisors as to all legal, accounting and tax matters relating to the Merger and the other transactions contemplated by the Agreement. We express no opinion as to any such matters.
Our opinion is necessarily based on financial, regulatory, economic, market and other conditions as in effect on, and the information made available to us as of, the date hereof. Events occurring after the date hereof could materially affect this opinion. We have not undertaken to update, revise, reaffirm or withdraw this opinion or otherwise comment upon events occurring after the date hereof. We express no opinion as to the trading values of FSC Common Stock or ABCB Common Stock at any time or what the value of ABCB Common Stock will be once it is actually received by the holders of FSC Common Stock.
We have acted as FSC’s financial advisor in connection with the Merger and will receive a fee for our services, which fee is contingent upon closing of the Merger. We will also receive a fee for rendering this opinion, which opinion fee will be credited in full towards the transaction fee which will become payable upon closing of the Merger. FSC has also agreed to indemnify us against certain claims and liabilities arising out of our engagement and to reimburse us for certain of our out-of-pocket expenses incurred in connection with our engagement. We did not provide any other investment banking services to FSC in the two years preceding the date hereof. As we have previously informed the Board of Directors of FSC, in the two years preceding the date hereof, we have provided certain investment banking services to ABCB. Most recently, Sandler O’Neill acted as co-manager in connection with the offer and sale of ABCB subordinated debt, which transaction closed in March 2017. In addition, in the ordinary course of our business as a broker-dealer, we may purchase securities from and sell securities to FSC, ABCB and their respective affiliates. We may also actively trade the equity and debt securities of FSC, ABCB and their respective affiliates for our own account and for the accounts of our customers.
Our opinion is directed to the Board of Directors of FSC in connection with its consideration of the Agreement and the Merger and does not constitute a recommendation to any shareholder of FSC as to how any such shareholder should vote at any meeting of shareholders called to consider and vote upon the approval of the Agreement and the Merger. Our opinion is directed only to the fairness, from a financial point of view, of the Exchange Ratio to the holders of FSC Common Stock and does not address the underlying business decision of FSC to engage in the Merger, the form or structure of the Merger or any other transactions contemplated in the Agreement, the relative merits of the Merger as compared to any other alternative transactions or business strategies that might exist for FSC or the effect of any other transaction in which FSC might engage. We also do not express any opinion as to the fairness of the amount or nature of the compensation to be received in the Merger by any officer, director or employee of
C-3
TABLE OF CONTENTS
[MISSING IMAGE: lg_sandler-oneillpartners.jpg] 
FSC or ABCB, or any class of such persons, if any, relative to the compensation to be received in the Merger by any other shareholder. This opinion has been approved by Sandler O’Neill’s fairness opinion committee. This opinion may not be reproduced without Sandler O’Neill’s prior written consent; provided, however, Sandler O’Neill will provide its consent for the opinion to be included in regulatory filings (including the proxy statement to be sent to shareholders of FSC) to be completed in connection with the Merger.
Based upon and subject to the foregoing, it is our opinion that, as of the date hereof, the Exchange Ratio is fair to holders of FSC Common Stock from a financial point of view.
Very truly yours,

[MISSING IMAGE: sg_sandleroneill.jpg]
​
C-4
TABLE OF CONTENTS​
 ​
ANNEX D​
[MISSING IMAGE: lg_figpartners.jpg]
December 17, 2018
Board of Directors
Fidelity Southern Corporation
3490 Piedmont Road
Suite 1550
Atlanta, GA 30305
Dear Members of the Board of Directors:
We understand that Fidelity Southern Corporation (or the “FSC”) has entered into an Agreement and Plan of Merger with Ameris Bancorp (“ABCB”), dated as of December 17, 2018 (the “Agreement”), pursuant to which, among other things, the FSC will merge with and into the ABCB (the “Merger”), and FSC’s bank subsidiary will merge with and into ABCB’s bank subsidiary. Pursuant to the terms detailed in the Agreement, upon the effective date of such Merger, each share of FSC Common Stock shall be converted into the right to receive 0.80 shares (the “Exchange Ratio”) of ABCB common stock (the “Merger Consideration”). In connection therewith, you have requested our opinion as to the fairness (the “Opinion”), from a financial point of view, of the Merger Consideration to be paid to the shareholders of FSC pursuant to the Agreement. Unless otherwise defined in this letter, capitalized terms used herein will have the same meaning as in the Agreement.
FIG Partners LLC (or “FIG”), as part of its investment banking business, is continually engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, negotiated underwritings, competitive bidding, secondary distributions of listed and unlisted securities, private placements and valuations for estate, corporate and other purposes. As specialists in the securities of banking companies, we have experience and knowledge of the valuation of banking institutions. This opinion has been reviewed by FIG’s compliance officer consistent with internal policy and it has been reviewed by a fairness committee. In addition, FIG has not had a material relationship with any party to the transaction for which we have received compensation during the prior two years.
We were retained exclusively by FSC to act as its financial advisor in connection with the Merger and in rendering this fairness opinion. We will receive compensation from FSC in connection with our services consisting of  $265,000 upon delivery of the fairness opinion dated December 17, 2018. FSC has agreed to indemnify us for certain liabilities arising out of our engagement.
During the course of our engagement and for the purposes of the opinion set forth herein, we have:
(i)
reviewed the Agreement;
​
(ii)
reviewed certain historical, publicly available business and financial information concerning FSC and ABCB including, among other things, quarterly and annual reports filed by the parties with the U.S. Securities and Exchange Commission;
​
(iii)
held discussions with members or representatives of the senior management of FSC for the purpose of reviewing future prospects of the potential pro forma institution related to the respective businesses, earnings, assets, liabilities and the amount of and timing of cost savings expected to be achieved as a result of the Merger;
​
(iv)
reviewed the terms of recent merger and acquisition transactions, to the extent publicly available, involving banks, thrifts and bank and thrift holding companies that we considered relevant;
​
(v)
reviewed the current and historical financial results of FSC and ABCB;
​
​
D-1
TABLE OF CONTENTS
Fidelity Southern Corporation
December 17, 2018
Page 2 of 3
(vi)
performed a comparison of certain FSC and ABCB operating and trading information with other similar publicly traded companies;
​
(vii)
Reviewed publicly-available consensus earnings estimates for FSC and ABCB and assumed estimated long term growth rates provided to us by FSC and ABCB representatives;
​
(viii)
performed such other analyses and considered such other factors as we have deemed appropriate.
​
We also took into account our assessment of general economic, market and financial conditions and our experience in other transactions as well as our knowledge of the banking industry and our general experience in securities valuations.
In rendering this opinion, we have assumed, without independent verification, the accuracy and completeness of the financial and other information and representations contained in the materials provided to us by FSC and ABCB and in the discussions with the respective management teams or representatives of FSC and ABCB. In that regard, we have assumed that each party toany financial forecasts, including, without limitation, the Agreement would advise us promptly if anysynergies and FSC projections of the pro forma institution have been reasonably prepared on a basis reflecting the best currently available information previously provided to us became inaccurate or was required toand judgments and estimates of FSC and ABCB and that such financial results will be updated duringrealized in the period of our review.
amounts and at the times contemplated thereby. We are not experts in the evaluation of loan and lease portfolios for purposes of assessing the adequacy of the allowances for losses with respect thereto. Wethereto and have assumed that such allowances for Atlantic and Ameris are, in the aggregate, adequate to cover such lossesrelied upon management’s estimates and will be adequate on a pro forma basis for the combined entity.projections. We were not requestedretained to make, and did not conduct a physical inspection of any of the properties or facilities FSC and ABCB or their respective subsidiaries. In addition, we have not reviewed individual credit files nor have we made an independent evaluation physical inspection or appraisal of the assets properties, facilities,and liabilities of FSC and ABCB or liabilities (contingent or otherwise)any of Atlantic or Ameris, the collateral securing any such assets or liabilities, or the collectability of any such assets,their respective subsidiaries, and we were not furnished with any such evaluations or appraisals; nor did we review any loan or credit files of Atlantic or Ameris.appraisals.
We have undertaken no independent analysis of any pending or threatened litigation, regulatory action, possible unasserted claims or other contingent liabilities to which Atlantic or Ameris is a party or may be subject, and our opinion makes no assumption concerning, and therefore does not consider, the possible
C-3
TABLE OF CONTENTS
assertion of claims, outcomes or damages arising out of any such matters. We have also assumed with your consent, that neither Atlantic nor Ameris is party to any material pending transaction, including without limitation any financing, recapitalization, acquisition or merger, divestiture or spin-off, other than the Merger contemplated by the Agreement; however, we have been informed by Ameris that it is currently a party to a non-binding Letter of Intent (the “LOI”) with a third party financial institution that contemplates the potential acquisition of such financial institution by Ameris the outcome of which, if any, cannot be predicted at this time. Consequently, we have assumed, with your consent, that the existence of the LOI would result in no impact upon the assumptions, facts and circumstances stated herein that serve as the basis of our analysis and opinion regarding the Merger as set forth in the Agreement.
We have relied upon and assumed with your consent and without independent verification, that the Merger will be consummated substantially in accordance with the terms set forth in the Agreement, without any waiver of material terms or conditions by Atlantic or any other party to the Agreement andAgreement. We have further assumed that the final AgreementMerger will not differ materially from the draft we reviewed.be accounted for as a purchase under generally accepted accounting principles. We have assumed that the Merger is, and will be, consummated in compliance with all applicable laws and regulations. Atlantic hasregulations that are applicable to FSC and ABCB. In rendering this Opinion, we have been advised usby FSC and ABCB, and we have assumed that theythere are not aware of anyno factors that would impede any necessary regulatory or governmental approval of the Merger. We have assumed that the necessary regulatory and governmental approvals as granted will not be subject to any conditions that would be unduly burdensome on Atlantic or Ameris or would have a material adverse effect on the contemplated benefits of the Merger. Additionally, we have assumed, with your consent, that the Consent Order issued by the FDIC and the GDBF will either be removed by such regulatory authorities prior to the Effective Time, or in the absence of such regulatory action, will not impede or prevent the consummation of the Merger as set forth in the Agreement.
Our opinion does not consider, include or address: (i) the legal, tax, accounting, or regulatory consequences of the Merger on Atlantic, or its stockholders; (ii) any advice or opinions provided by any other advisor to the Board or Atlantic; (iii) any other strategic alternatives that might be available to Atlantic; or (iv) whether Ameris has sufficient cash or other sources of funds to enable it to pay the consideration contemplated by the Merger.
Our opinion does not constitute a recommendation to Atlantic as to whether or not Atlantic should enter into the Agreement or to any stockholders of Atlantic as to how such stockholders should vote at any meetings of stockholders called to consider and vote upon the Merger. Our opinion does not address the underlying business decision to proceed with the Merger or the fairness of the amount or nature of the compensation, if any, to be received by any of the officers, directors or employees of Atlantic relative to the amount of consideration to be paid with respect to the Merger. Our opinion should not be construed as implying that the Merger Consideration is necessarily the highest or best price that could be obtained in a sale, merger, or combination transaction with a third party. We do not express any opinion as to the value of Ameris’ common stock following the announcement of the proposed Merger, or the value of Ameris’ common stock following the consummation of the Merger, or the prices at which shares of Ameris’ common stock may be purchased or sold at any time. Other than as specifically set forth herein, we are not expressing any opinion with respect to the terms and provisions of the Agreement or the enforceability of any such terms or provisions. Our opinion is not a solvency opinion and does not in any way address the solvency or financial condition of Atlantic or Ameris.
This opinion was approved by Hovde’s fairness opinion committee. This letter is directed solely to the board of directors of Atlantic and is not to be used for any other purpose or quoted or referred to, in whole or in part, in any registration statement, prospectus, proxy statement, or any other document, except in each case in accordance with our prior written consent; provided, however, that we hereby consent to the inclusion and reference to this letter in any registration statement, proxy statement or information statement to be delivered to the holders of Atlantic Common Stock in connection with the Merger if, and only if, (i) this letter is quoted in full or attached as an exhibit to such document, (ii) this letter has not been withdrawn prior to the date of such document, and (iii) any description of or reference to Hovde or the analyses performed by Hovde or any summary of this opinion in such filing is in a form acceptable to Hovde and its counsel in the exercise of their reasonable judgment.
Our opinionOpinion is based solely upon the information available to us and described above, and the economic, market and other circumstances, as they exist as of the date hereof. Events occurring and information that becomes available after the date hereof could materially affect the assumptions and
C-4
TABLE OF CONTENTS
analyses used in preparing this opinion. We have not undertaken to update, revise, reaffirm or withdrawrevise this opinion or to otherwise comment upon any events occurring or information that becomes available after the date hereof.hereof, except as otherwise agreed in our engagement letter.
In arriving at this opinion, Hovde didThis letter is solely for the information of the Board of Directors of FSC and is not attributeto be used, circulated, quoted or otherwise referred to for any particular weightother purpose, nor is it to be filed with, included in or referred to in whole or in part in any single analysisproxy statement or factor considered by it, but rather made qualitative judgments asany other document, except in each case in accordance with our prior written consent, which shall not be unreasonably withheld; provided, however, that we hereby consent to the significanceinclusion and relevancereference to this letter in any proxy statement, information statement or tender offer document to be delivered to the holders of each analysis and factor. Accordingly, Hovde believes that its analyses must be considered as a whole and that selecting portions of its analyses, without considering all analyses, would create an incomplete view of the process underlying this opinion.
Hovde, as part of its investment banking business, regularly performs valuations of businesses and their securities in connection with mergers and acquisitions and other corporate transactions. In addition to being retained to render this opinion letter, we were retained by Atlantic to act as its financial advisorFSC Common Stock in connection with the Merger. In connection with our services, we will receive from Atlantic a fairness opinion fee thatMerger if and only if this letter is contingent upon the issuance of this opinion letter and a completion fee that is contingent upon the consummation of the Merger; the opinion fee will be creditedquoted in full towards the portion of the completion fee which will become payableor attached as an exhibit to Hovde upon the consummation of the Merger. Atlantic has also agreed to indemnify us and our affiliates for certain liabilities that may arise out of our engagement.such document.
Other than in connection with this present engagement, in the past two years, Hovde has not provided investment banking or financial advisory services to Atlantic. During the past three years preceding the date of this opinion, Hovde has provided investment banking services to, and received fees from, two banks in connection with their respective sales to Ameris. During the past two years preceding the date of this opinion Hovde has not provided any investment banking or financial advisory services to Ameris. We or our affiliates may presently or in the future seek or receive compensation from Ameris in connection with future transactions, or in connection with potential advisory services and corporate transactions, although to our knowledge none are expected at this time. In the ordinary course of our business as a broker/dealer, we may from time to time purchase securities from, and sell securities to, Atlantic or Ameris or their affiliates, and as a market maker in securities, Hovde may from time to time have a long or short position in, and buy or sell, debt or equity securities of Atlantic or Ameris for its own accounts and for the accounts of customers. Except for the foregoing, during the past two years there have not been, and there currently are no mutual understandings contemplating in the future, any material relationships between Hovde and Atlantic or Ameris.
Based upon and subjectSubject to the foregoing review,and based on our experience as investment bankers, our activities and assumptions as described above, and limitations,other factors we have deemed relevant, we are of the opinion as of the date hereof that the Merger Consideration to be paidreceived by the holders of FSC Common Stock pursuant to the Agreement is fair, from a financial point of view, to the shareholders of the FSC.
[Signature on next page]
[MISSING IMAGE: lg_figpartners.jpg]
D-2
TABLE OF CONTENTS
Fidelity Southern Corporation
December 17, 2018
Page 3 of 3
Sincerely,
[MISSING IMAGE: sg_figpartners.jpg]

FIG PARTNERS, LLC
[MISSING IMAGE: lg_figpartners.jpg]
D-3
TABLE OF CONTENTS​
ANNEX E​
[MISSING IMAGE: tv511559_header.jpg]
December 16, 2018
The Board of Directors
of Ameris Bancorp
24 Second Avenue, SE
Moultrie, GA 31768
Members of the Board:
You have engaged us to serve as financial advisor in connection with the Mergerproposed acquisition of Fidelity Southern Corporation (“Target”) by Ameris Bancorp (the “Company”) (the “Transaction”) and to provide our opinion to the Board of Directors of the Company as to whether the Transaction is fair to the Company from a financial point of view. The terms and conditions of the Transaction are set forth in a definitive purchase agreement (the “Agreement”) among the Company and the Target. Pursuant to the Agreement, in connection with the closing of the Transaction, the Target will merge with and into the Company, and all outstanding shares of stock of the Target (other than certain shares held by the Target or the Company) will be cancelled and converted into the right to receive the merger consideration as set forth in the Agreement based upon a fixed exchange ratio of 0.80 shares of the Company’s common stock for each share of the Target’s common stock. Based upon the Company’s closing stock price of  $34.02 per share on December 14, 2018, and on the number of outstanding shares and awards of the common stock of the Target, we understand that the Company would issue approximately million shares of its common stock, worth approximately $750.7 million in the aggregate, to acquire the Target.
In connection with rendering our opinion we have:
(i)
analyzed certain publicly available financial statements and reports regarding the Company and the Target;
​
(ii)
Reviewed and considered publicly available consensus mean analyst earnings per share estimates for the Company and the Target for the years ending December 31, 2018 and December 31, 2019, publicly available consensus mean analyst earnings per share estimates for the Target for the year ending December 31, 2020 and estimated long-term annual earnings and balance sheet growth rates and dividends per share for the Company and the Target for the years thereafter, as provided by the senior management of the Company;
​
(iii)
analyzed, on a pro forma basis in reliance upon financial projections and other information and assumptions provided by the management teams of the Company and the Target, the effect of the Transaction on the balance sheet, earnings, tangible book value per share and earnings per share of the Company;
​
(iv)
reviewed the reported prices and trading activity for the common stock of the Company and the Target;
​
(v)
compared the financial performance of the Company and the Target with that of certain publicly-traded companies that we deemed relevant to our analysis of the Transaction, and their securities;
​
(vi)
reviewed the financial terms, to the extent publicly available, of certain merger or acquisition transactions that we deemed relevant to our analysis of the Transaction;
​
[MISSING IMAGE: tv511559_footer.jpg]
E-1
TABLE OF CONTENTS
​December 16, 2018
page 2		​​
[MISSING IMAGE: tv511559_header.jpg]
​
(vii)
reviewed the most recent draft of the Agreement and related documents provided to us by the Company;
​
(viii)
discussed with management of the Company the operations of and future business prospects for the Company and the Target and the anticipated cost savings and financial consequences of the Transaction to the Company; and
​
(ix)
performed such other analyses and provided such other services as we have deemed appropriate.
​
We have relied on the accuracy and completeness of the information and financial data provided to us by the Company and the Target and of the other information reviewed by us in connection with the preparation of our opinion, and our opinion is based upon such information. We have not assumed any responsibility for independent verification of the accuracy or completeness of any of such information or financial data. Management of the Company has assured us that they are not aware of any relevant information that has been omitted or remains undisclosed to us. We have not assumed any responsibility for making or undertaking an independent evaluation or appraisal of any of the assets or liabilities of the Company or the Target; nor have we evaluated the solvency or fair value of the Company or the Target under any laws relating to bankruptcy, insolvency or similar matters. We have not assumed any obligation to conduct any physical inspection of the properties or facilities of the Company or the Target. We have not received or reviewed any individual credit files nor have we made an independent evaluation of the adequacy of the allowance for loan losses of the Company or the Target. With respect to any financial forecasts prepared by the management of the Company, including forecasts of potential cost savings and of potential synergies, we have assumed that such financial forecasts have been reasonably prepared and reflect the best currently available estimates and judgments of the management of the Company as to the future financial performance of the Company and the Target and that the financial results reflected by such projections will be realized as predicted. We have also assumed that the representations and warranties contained in the Agreement and all related documents are true, correct and complete in all respects material to our analysis.
As part of our investment banking business, we regularly issue fairness opinions and are continually engaged in the valuation of companies and their securities in connection with business reorganizations, private placements, negotiated underwritings, mergers and acquisitions and valuations for estate, corporate and other purposes. We are familiar with the Company and the Target. We regularly provide investment banking services to the Company, and we expect to provide similar services in the future. Our firm also issues periodic research reports regarding the Company’s business activities and prospects and periodic research reports regarding the Target’s business activities and prospects. During the two years preceding the date of this letter we have received fees from the Company totaling approximately $6.1 million in connection with investment banking services that we provided to assist the Company with two other acquisition transactions, with a follow-on stock offering and with an offering of subordinated notes. We are entitled to receive from the Company reimbursement of our expenses and a fee for our services as financial adviser to the Company, a significant portion of which is contingent upon the consummation of the Transaction. We are also entitled to receive a fee from the Company for rendering this fairness opinion to the Board of Directors. The Company has also agreed to indemnify us for certain liabilities arising out of our engagement, including certain liabilities that could arise out of our providing this opinion letter. Stephens expects to pursue future investment banking services assignments from the Company. In the ordinary course of business, Stephens Inc. and its affiliates at any time may hold long or short positions,
[MISSING IMAGE: tv511559_footer.jpg]
E-2
TABLE OF CONTENTS
​December 16, 2018
page 3		​​
[MISSING IMAGE: tv511559_header.jpg]
​
and may trade or otherwise effect transactions as principal or for the accounts of customers, in debt or equity securities or options on securities of the Company or of any other participant in the Transaction.
We are not legal, regulatory, accounting or tax experts, and we have relied solely, and without independent verification, on the assessments of the Company and its other advisors with respect to such matters. We have assumed, with your consent, that the Transaction will not result in any materially adverse legal, regulatory, accounting or tax consequences for the Company.
Our opinion is necessarily based upon market, economic and other conditions as they exist and can be evaluated on, and on the information made available to us as of, the date hereof. It should be understood that subsequent developments may affect this opinion and that we do not have any obligation to update, revise or reaffirm this opinion. We have assumed that the Transaction will be consummated on the terms of the latest draft of the Agreement provided to us, without material waiver or modification. We have assumed that in the course of obtaining the necessary regulatory, lending or other consents or approvals (contractual or otherwise) for the Transaction, no restrictions, including any divestiture requirements or amendments or modifications, will be imposed that would have a material adverse effect on the contemplated benefits of the Transaction to the Company. We are not expressing any opinion herein as to the price at which the common stock or any other securities of the Company will trade following the announcement of the Transaction.
This opinion is for the use and benefit of the Board of Directors of the Company for purposes of assisting with its evaluation of the Transaction. Our opinion does not address the merits of the underlying decision by the Company to engage in the Transaction, the merits of the Transaction as compared to other alternatives potentially available to the Company or the relative effects of any alternative transaction in which the Company might engage, nor is it intended to be a recommendation to any person as to any specific action that should be taken in connection with the Transaction. This opinion is not intended to confer any rights or remedies upon any other person. In addition, except as explicitly set forth in this letter, you have not asked us to address, and this opinion does not address, the fairness to, or any other consideration of, the holders of Atlantic Common Stockany class of securities, creditors or other constituencies of the Company. We have not been asked to express any opinion, and do not express any opinion, as to the fairness of the amount or nature of the compensation to any of the Company’s officers, directors or employees, or to any group of such officers, directors or employees, relative to the compensation to other stockholders of the Company. Our fairness opinion committee has approved the opinion set forth in this letter. Neither this opinion nor its substance may be disclosed by you to anyone other than your advisors without our written permission; however, this opinion letter and a summary discussion of our underlying analyses and role as financial adviser to the Company may be included in communications to stockholders of the Company, provided that we approve of the content of such disclosures prior to any filing or publication of such stockholder communications.
[MISSING IMAGE: tv511559_footer.jpg]
E-3
TABLE OF CONTENTS
​December 16, 2018
page 4		​​
[MISSING IMAGE: tv511559_header.jpg]
​
Based on the foregoing and our general experience as investment bankers, and subject to the assumptions and qualifications stated herein, we are of the opinion on the date hereof that the consideration to be given by the Company in the Transaction is fair to the Company from a financial point of view.
​Very truly yours,​
​STEPHENS INC.​
​
[MISSING IMAGE: sg_stephens-inc.jpg]
​
Sincerely,

HOVDE GROUP, LLC
[MISSING IMAGE: sg_hovde-group.jpg][MISSING IMAGE: tv511559_footer.jpg]
C-5E-4
TABLE OF CONTENTS
PART II
 
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20.   Indemnification of Directors and Officers.
Subsection (a) of Section 14-2-851 of the Georgia Business Corporation Code (the “GBCC”(“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, consistent with public policy, that 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 as amended, of the Registrantregistrant provides that, except as may be limited by the GBCC or any successor law, no director shall be personally liable to the Registrantregistrant 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 amended and restated bylaws of the Registrantregistrant provides that every person (and the heirs and legal representatives of such person) who is or was a director or officer of the Registrantregistrant or any other corporation of which he or she served as such at the request of the Registrantregistrant and of which the Registrantregistrant directly or
II-1
TABLE OF CONTENTS
indirectly is a shareholder or creditor, or in which or in the stocks, bonds, securities or other obligations of which the Registrantregistrant is in any way interested, may be indemnified for any liability and
II-1
TABLE OF CONTENTS
expense resulting from any threatened, pending or completed action, suit or proceeding, civil, criminal, administrative, arbitrative or investigative or derivative 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 the Registrantregistrant to act for, in the interest of, or on behalf of the Registrant,registrant, 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 in a manner he or she(i) reasonably believed, to be in orthe case of conduct in the person’s official capacity, that the conduct was in the registrant’s best interests; (ii) reasonably believed, in all other cases, that the conduct was at least not opposed to the registrant’s best interestsinterests; and (iii) in the case of the Registrant and, in addition, with respect to anya 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 amended and restated bylaws. Expenses incurred with respect to any claim, action, suit or proceeding of the character described in Article VII of the bylaws of the Registrantregistrant may be advanced by the Registrantregistrant 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 the Registrant’sregistrant’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 the Registrantregistrant to procure a judgment in its favor by reason of the fact that he or she is or was an officer or director of the Registrantregistrant 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 the Registrant,registrant, 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 the Registrant’sregistrant’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 the Registrant,registrant, and any indemnification otherwise pursuant to the bylaws of the Registrantregistrant will be made at the discretion of the Registrantregistrant, but only if: (1)pursuant to a determination made in the boardmanner set forth in Section 14-2-855 of directors, actingthe 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 who were not parties to such claim, action, suit or proceeding, present or voting, finds that the director or officer met the standard of conduct set forth in the bylaws; or (2) no such quorum of the board of directors, exists,by duly selected independent legal counsel at the request of either the Registrant or the person seeking indemnification, delivers to the Registrant such counsel’s written opinion that such director or officer met such standards; or (3) the holders ofby a majority vote of stock then entitled to vote for the electiondisinterested shareholders. The board of directors determines by affirmative vote that such directoralso may designate a special committee of two or officer met such standards.more disinterested directors to make this determination.
The rights of indemnification provided in Article VII of the Registrant’sregistrant’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 the Registrantregistrant 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 the Registrantregistrant would have the power to indemnify against such liability under the amended and restated bylaws or otherwise.
The Registrant’sregistrant’s bylaws further provide that any repealamendment to Article VII thereof that limits or modificationotherwise adversely affects the right of the bylaws by the shareholdersindemnification, advancement of the Registrant cannot adversely affectexpenses or other rights of any rightindemnified person thereunder shall, as to such indemnified person, apply only to proceedings based on actions, events or protectionomissions occurring after such amendment and after delivery of a director of the Registrant existing at the timenotice of such repealamendment to the indemnified person so affected. Any indemnified person shall, as to any proceeding based on actions, events or modification.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.
II-2
TABLE OF CONTENTS
Item 21.   Exhibits and Financial Statement Schedules.
(a)
Exhibits.
​
​2.1​​
Agreement and Plan of Merger, dated as of November 16, 2017,December 17, 2018, by and between Ameris Bancorp and Atlantic Coast FinancialFidelity Southern Corporation (attached as AppendixAnnex A to the proxy statement/prospectus forming a part of this Registration Statement)registration statement). Certain exhibits and schedules to the Agreement and Plan of Merger have been omitted. Such exhibits and schedules are described in the Agreement and Plan of Merger. Ameris Bancorp hereby agrees to furnish to the SEC, upon its request, any or all of such omitted exhibits or schedules.
​
​2.2​​
Form of Voting and Support Agreement, dated November 16, 2017,as of December 17, 2018, by and among Ameris Bancorp, Atlantic Coast FinancialFidelity Southern Corporation and the Atlantic Coast FinancialFidelity Southern Corporation stockholdersshareholders party thereto (attached as AppendixAnnex B to the proxy statement/prospectus forming a part of this Registration Statement)registration statement).
​
​3.1​​Articles of Incorporation of Ameris Bancorp, as amended (incorporated herein by reference to Exhibit 2.1 to Ameris Bancorp’s Regulation A Offering Statement on Form 1-A filed with the SEC on August 14, 1987).​
​3.2​​
Articles of Amendment to the Articles of Incorporation of Ameris Bancorp (incorporated by reference to Exhibit 3.7 to Ameris Bancorp’s Annual Report on Form 10-K (File No. 001-13901) filed with the SEC on March 26, 1999).
​
​3.3​​
Articles of Amendment to the Articles of Incorporation of Ameris Bancorp (incorporated by reference to Exhibit 3.9 to Ameris Bancorp’s Annual Report on Form 10-K (File No. 001-13901) filed with the SEC on March 31, 2003).
​
​3.4​​
Articles of Amendment to the Articles of Incorporation of Ameris Bancorp (incorporated by reference to Exhibit 3.1 to Ameris Bancorp’s Current Report on Form 8-K (File No. 001-13901) filed with the SEC on December 1, 2005).
​
​3.5​​
Articles of Amendment to the Articles of Incorporation of Ameris Bancorp (incorporated by reference to Exhibit 3.1 to Ameris Bancorp’s Current Report on Form 8-K (File No. 001-13901) filed with the SEC on November 21, 2008).
​
​3.6​​
Articles of Amendment to the Articles of Incorporation of Ameris Bancorp (incorporated by reference to Exhibit 3.1 to Ameris Bancorp’s Current Report on Form 8-K (File No. 001-13901) filed with the SEC on June 1, 2011).
​
​3.7​​
Bylaws of Ameris Bancorp, as amended and restated effective July 18, 2017January 16, 2018 (incorporated by reference to Exhibit 3.1 to Ameris Bancorp’s Current Report on Form 8-K (File No. 001-13901) filed with the SEC on July 21, 2017)January 19, 2018).
​
​4.1​​See Exhibits 3.1 through 3.7 for provisions of the Articles of Incorporation of Ameris Bancorp, as amended, and Bylaws of Ameris Bancorp, as amended and restated effective July 18, 2017,January 16, 2018, which define the rights of security holders.​
​4.2​​Specimen Common Stock Certificate (incorporated by reference to Exhibit 1 to Ameris Bancorp’s Registration Statement on Form 8-A filed with the SEC on September 2, 1987).​
​4.3​​
Indenture between Ameris Bancorp and Wilmington Trust Company dated September 20, 2006 (incorporated by reference to Exhibit Exhibit��4.4 to Ameris Bancorp’s Registration Statement on Form S-4 (Registration No. 333-138252) filed with the SEC on October 27, 2006).
​
​4.4​​
Floating Rate Junior Subordinated Deferrable Interest Debenture dated September 20, 2006 issued to Ameris Statutory Trust I (incorporated by reference to Exhibit 4.7 to Ameris Bancorp’s Registration Statement on Form S-4 (Registration No. 333-138252) filed with the SEC on October 27, 2006).
​
​4.5​​
Indenture between Ameris Bancorp (as successor to The Prosperity Banking Company) and U.S. Bank National Association dated as of March 26, 2003 (incorporated by reference to Exhibit 4.3 to Ameris Bancorp’s Annual Report on Form 10-K (File No. 001-13901) filed with the SEC on March 14, 2014).
​
II-3
TABLE OF CONTENTS
​4.6​​
First Supplemental Indenture dated as of December 23, 2013 by and among Ameris Bancorp, The Prosperity Banking Company and U.S. Bank National Association (incorporated by reference to Exhibit 4.4 to Ameris Bancorp’s Annual Report on Form 10-K (File No. 001-13901) filed with the SEC on March 14, 2014).
​
​4.7​​
Form of Floating Rate Junior Subordinated Deferrable Interest Debenture Due 2033 (incorporated by reference to, and included as, Exhibit A to the Indenture filed as Exhibit 4.3 to Ameris Bancorp’s Annual Report on Form 10-K (File No. 001-13901) filed with the SEC on March 14, 2014).
​
​4.8​​
Indenture between Ameris Bancorp (as successor to The Prosperity Banking Company) and Deutsche Bank Trust Company Americas dated as of June 24, 2004 (incorporated by reference to Exhibit 4.6 to Ameris Bancorp’s Annual Report on Form 10-K (File No. 001-13901) filed with the SEC on March 14, 2014).
​
​4.9​​
First Supplemental Indenture dated as of December 23, 2013 by and among Ameris Bancorp, The Prosperity Banking Company and Deutsche Bank Trust Company Americas (incorporated by reference to Exhibit 4.7 to Ameris Bancorp’s Annual Report on Form 10-K (File No. 001-13901) filed with the SEC on March 14, 2014).
​
​4.10​​
Form of Floating Rate Junior Subordinated Deferrable Interest Note Due 2034 (incorporated by reference to Exhibit 4.8 to Ameris Bancorp’s Annual Report on Form 10-K (File No. 001-13901) filed with the SEC on March 14, 2014).
​
​4.11​​
Indenture between Ameris Bancorp (as successor to The Prosperity Banking Company) and Wilmington Trust Company dated as of January 31, 2006 (incorporated by reference to Exhibit 4.9 to Ameris Bancorp’s Annual Report on Form 10-K (File No. 001-13901) filed with the SEC on March 14, 2014).
​
​4.12​​
First Supplemental Indenture dated as of December 23, 2013 by and among Ameris Bancorp, The Prosperity Banking Company and Wilmington Trust Company (pertaining to Indenture dated as of January 31, 2006) (incorporated by reference to Exhibit 4.10 to Ameris Bancorp’s Annual Report on Form 10-K (File No. 001-13901) filed with the SEC on March 14, 2014).
​
​4.13​​
Form of Floating Rate Junior Subordinated Deferrable Interest Debenture Due 2036 (incorporated by reference to, and included as, Exhibit A to the Indenture filed as Exhibit 4.9 to Ameris Bancorp’s Annual Report on Form 10-K (File No. 001-13901) filed with the SEC on March 14, 2014).
​
​4.14​​
Indenture between Ameris Bancorp (as successor to The Prosperity Banking Company) and Wilmington Trust Company dated as of September 20, 2007 (incorporated by reference to Exhibit 4.18 to Ameris Bancorp’s Annual Report on Form 10-K (File No. 001-13901) filed with the SEC on March 14, 2014).
​
​4.15​​
First Supplemental Indenture dated as of December 23, 2013 by and among Ameris Bancorp, The Prosperity Banking Company and Wilmington Trust Company (pertaining to the Indenture dated as of September 20, 2007) (incorporated by reference to Exhibit 4.19 to Ameris Bancorp’s Annual Report on Form 10-K (File No. 001-13901) filed with the SEC on March 14, 2014).
​
​4.16​​
Form of Fixed/Floating Rate Junior Subordinated Deferrable Interest Debenture Due 2037 (incorporated by reference to, and included as, Exhibit A to the Indenture filed as Exhibit 4.18 to Ameris Bancorp’s Annual Report on Form 10-K (File No. 001-13901) filed with the SEC on March 14, 2014).
​
​4.17​​
Indenture between Ameris Bancorp (as successor to Coastal Bankshares, Inc.) and Wells Fargo Bank, National Association dated as of August 27, 2003 (incorporated by reference to Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K (File No. 001-13901) filed with the SEC on July 1, 2014).
​
​4.18​​
First Supplemental Indenture dated as of June 30, 2014 by and among Ameris Bancorp and Wells Fargo Bank, National Association (pertaining to Indenture dated as of August 27, 2003) (incorporated by reference to Exhibit 4.2 to Ameris Bancorp’s Current Report on Form 8-K (File No. 001-13901) filed with the SEC on July 1, 2014).
​
II-4
TABLE OF CONTENTS
​4.19​​
Form of Junior Subordinated Debt Security Due 2033 (included as Exhibit A to the Indenture filed as Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K (File No. 001-13901) filed with the SEC on July 1, 2014).
​
​4.20​​
Indenture between Ameris Bancorp (as successor to Coastal Bankshares, Inc.) and U.S. Bank National Association dated as of December 14, 2005 (incorporated by reference to Exhibit 4.4 to Ameris Bancorp’s Current Report on Form 8-K (File No. 001-13901) filed with the SEC on July 1, 2014).
​
​4.21​​
First Supplemental Indenture dated as of June 30, 2014 by and among Ameris Bancorp, Coastal Bankshares, Inc. and U.S. Bank National Association (pertaining to Indenture dated as of December 14, 2005) (incorporated by reference to Exhibit 4.5 to Ameris Bancorp’s Current Report on Form 8-K (File No. 001-13901) filed with the SEC on July 1, 2014).
​
​4.22​​
Form of Junior Subordinated Debt Security Due 2035 (included as Exhibit A to the Indenture filed as Exhibit 4.4 to Ameris Bancorp’s Current Report on Form 8-K (File No. 001-13901) filed with the SEC on July 1, 2014).
​
​4.23​​
Indenture between Ameris Bancorp (as successor to Merchants & Southern Banks of Florida, Incorporated) and Wilmington Trust Company dated as of March 17, 2005 (incorporated by reference to Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K (File No. 001-13901) filed with the SEC on May 27, 2015).
​
​4.24​​
First Supplemental Indenture dated as of May 22, 2015 by and among Ameris Bancorp, Merchants & Southern Banks of Florida, Incorporated and Wilmington Trust Company (pertaining to the Indenture dated as of March 17, 2015) (incorporated by reference to Exhibit 4.2 to Ameris Bancorp’s Current Report on Form 8-K (File No. 001-13901) filed with the SEC on May 27, 2015).
​
​4.25​​
Form of Floating Rate Junior Subordinated Deferrable Interest Debenture Due 2035 (incorporated by reference to, and included as, Exhibit A to the Indenture filed as Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K (File No. 001-13901) filed with the SEC on May 27, 2015).
​
​4.26​​
Indenture between Ameris Bancorp (as successor to Merchants & Southern Banks of Florida, Incorporated) and Wilmington Trust Company dated as of March 30, 2006 (incorporated by reference to Exhibit 4.4 to Ameris Bancorp’s Current Report on Form 8-K (File No. 001-13901) filed with the SEC on May 27, 2015).
​
​4.27​​
First Supplemental Indenture dated as of May 22, 2015 by and among Ameris Bancorp, Merchants & Southern Banks of Florida, Incorporated and Wilmington Trust Company (pertaining to the Indenture dated as of March 30, 2006) (incorporated by reference to Exhibit 4.5 to Ameris Bancorp’s Current Report on Form 8-K (File No. 001-13901) filed with the SEC on May 27, 2015).
​
​4.28​​
Form of Floating Rate Junior Subordinated Deferrable Interest Debenture Due 2036 (incorporated by reference to, and included as, Exhibit A to the Indenture filed as Exhibit 4.4 to Ameris Bancorp’s Current Report on Form 8-K (File No. 001-13901) filed with the SEC on May 27, 2015).
​
​4.29​​
Indenture between Ameris Bancorp (as successor to Jacksonville Bancorp, Inc.) and Wilmington Trust Company dated as of June 17, 2004 (incorporated by reference to Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016).
​
​4.30​​
First Supplemental Indenture dated as of March 11, 2016 by and among Ameris Bancorp, Jacksonville Bancorp, Inc. and Wilmington Trust Company (incorporated by reference to Exhibit 4.2 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016).
​
​4.31​​
Form of Floating Rate Junior Subordinated Deferrable Interest Debenture Due 2034 (incorporated by reference to, and included as, Exhibit A to the Indenture filed as Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016).
​
II-5
TABLE OF CONTENTS
​4.32​​
Indenture between Ameris Bancorp (as successor to Jacksonville Bancorp, Inc.) and Wilmington Trust Company dated as of September 15, 2005 (incorporated by reference to Exhibit 4.4 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016).
​
​4.33​​
Second Supplemental Indenture dated as of March 11, 2016 by and among Ameris Bancorp, Jacksonville Bancorp, Inc. and Wilmington Trust (incorporated by reference to Exhibit 4.5 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016).
​
​4.34​​
Form of Fixed/Floating Rate Junior Subordinated Deferrable Interest Debenture Due 2035 (incorporated by reference to, and included as, Exhibit A to the Indenture filed as Exhibit 4.4 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016).
​
​4.35​​
Indenture between Ameris Bancorp (as successor to Jacksonville Bancorp, Inc.) and Wilmington Trust Company dated as of December 14, 2006 (incorporated by reference to Exhibit 4.7 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016).
​
​4.36​​
First Supplemental Indenture dated as of March 11, 2016 by and among Ameris Bancorp, Jacksonville Bancorp, Inc. and Wilmington Trust Company (incorporated by reference to Exhibit 4.8 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016).
​
​4.37​​
Form of Floating Rate Junior Subordinated Deferrable Interest Debenture Due 2036 (incorporated by reference to, and included as, Exhibit A to the Indenture filed as Exhibit 4.7 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016).
​
​4.38​​
Indenture between Ameris Bancorp (as successor to Jacksonville Bancorp, Inc.) and Wells Fargo Bank, National Association dated as of June 20, 2008 (incorporated by reference to Exhibit 4.10 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016).
​
​4.39​​
First Supplemental Indenture dated as of March 11, 2016 by and between Ameris Bancorp and Wells Fargo Bank, National Association (incorporated by reference to Exhibit 4.11 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016).
​
​4.40​​
Form of Junior Subordinated Debt Security Due 2038 (incorporated by reference to, and included as, Exhibit A to the Indenture filed as Exhibit 4.10 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 14, 2016).
​
​ 5.14.41​​OpinionSubordinated Debt Indenture dated as of Rogers & Hardin LLP.March 13, 2017 by and between Ameris Bancorp and Wilmington Trust, National Association (incorporated by reference to Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 13, 2017).​
​ 8.14.42​​First Supplemental Indenture, dated as of March 13, 2017, by and between Ameris Bancorp and Wilmington Trust, National Association (incorporated by reference to Exhibit 4.2 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 13, 2017).​
​4.43​​Form of 5.75% Fixed-to-Floating Rate Subordinated Note due 2027 (included as Exhibit A to the First Supplemental Indenture filed as Exhibit 4.2 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on March 13, 2017).​
​4.44​​Registration Rights Agreement dated as of January 3, 2018 by and between Ameris Bancorp and William J. Villari (incorporated by reference to Exhibit 4.9 to Ameris Bancorp’s Registration Statement on Form S-3 (Registration No. 333-223080) filed with the SEC on February 16, 2018).​
​4.45​​Registration Rights Agreement dated as of January 31, 2018 by and among Ameris Bancorp, William J. Villari and The Villari Family Gift Trust (incorporated by reference to Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on February 6, 2018).​
​4.46​​Indenture dated as of November 10, 2005 by and between Ameris Bancorp (as successor to Hamilton State Bancshares, Inc.) and Wilmington Trust Company (incorporated by reference to Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 2, 2018).​
​4.47​​Second Supplemental Indenture dated as of June 29, 2018 by and among Ameris Bancorp, Hamilton State Bancshares, Inc. and Wilmington Trust Company (incorporated by reference to Exhibit 4.2 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 2, 2018).​
II-6
TABLE OF CONTENTS
​4.48​​Form of Fixed/Floating Rate Junior Subordinated Deferrable Interest Debenture (included as Exhibit A to the Indenture filed as Exhibit 4.1 to Ameris Bancorp’s Current Report on Form 8-K filed with the SEC on July 2, 2018).​
​5.1​​Opinion of Rogers & Hardin LLP as to the federal income tax consequencesvalidity of the merger.common stock offered hereby.​
​ 8.28.1​​Form of Opinion of Igler and Pearlman, P.A. as to the federal incomeRogers & Hardin LLP regarding certain tax consequences of the merger.matters.​
​218.2​​
Form of Opinion of Wachtell, Lipton, Rosen & Katz regarding certain tax matters.
​
​21.1​​Subsidiaries of Ameris Bancorp (incorporated herein by reference to Exhibit 21.1 to Ameris Bancorp’s Annual Report on Form 10-K for the year ended December 31, 2016,(File No. 001-13901) filed with the SEC on February 27, 2017)March 1, 2018).​
​23.1​​Consent of Rogers & Hardin LLP (included in Exhibit 5.1).​
​23.2​​Consent of Rogers & Hardin LLP (included in Exhibit 8.1).​
​23.3​​Consent of Igler and Pearlman, P.A.Wachtell, Lipton, Rosen & Katz (included in Exhibit 8.2).​
​23.4​​Consent of Crowe Horwath LLP.LLP regarding Ameris Bancorp.​
​23.5​​Consent of Dixon Hughes Goodman LLP.Crowe LLP regarding Hamilton State Bancshares, Inc.​
​23.6​​Consent of RSM US LLP.​
​23.7​​Consent of Hovde Group, LLC.Ernst & Young LLP regarding Fidelity Southern Corporation.​
​24.1​​Power of Attorney (included on the Signature Pagesignature page to the Registration Statement)registration statement).​
​99.1​​FormConsent of Proxy.Sandler O’Neill & Partners, L.P.​
​99.2​​
OpinionConsent of Hovde Group, LLC (attachedFIG Partners, LLC.
​
​99.3​​Consent of Stephens Inc.​
​99.4​​Form of Proxy to be used in Ameris Bancorp Special Meeting.*​
​99.5​​Form of Proxy to be used in Fidelity Southern Corporation Special Meeting.*​
​99.6​​Consent of James B. Miller, Jr. to be named as Appendix Cdirector.​
​99.7​​Consent of H. Palmer Proctor, Jr. to the proxy statement/prospectus forming a partbe named as director.​
​99.8​​Consent of this Registration Statement).Gloria A. O’Neal to be named as director.​
​99.9​​Consent of Rodney D. Bullard to be named as director.​
​99.10​​Consent of Wm. Millard Choate to be named as director.​
​
II-6
TABLE OF CONTENTS
(b)*
To be filed by amendment to this registration statement.
​
(b)   Financial Statement Schedules.
​
Schedules are omitted because they are not required or not applicable, or the required information inis included in the financial statements or notes thereto which are included or incorporated by reference into the proxy statement/​prospectus which forms a part of this Registration Statement: No financial statements schedules are required to be filed as part of this Registration Statement.
(c)
Report, Opinion or Appraisal.
​
The opinion of Hovde Group, LLC is attached as Appendix C to thejoint proxy statement/prospectus which forms a part of this Registration Statement.registration statement.
Item 22.   UndertakingsUndertakings.
(a)The undersigned registrant hereby undertakes 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 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 a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
​
​
II-7
TABLE OF CONTENTS
(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.
​
The undersigned registrant hereby undertakes that, for the purpose of determining any liability under the Securities Act of 1933, 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.
The undersigned registrant hereby undertakes 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.
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to sectionSection 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to sectionSection 15(d) of the Securities Exchange Act of 1934) 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.
​
(b)
The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information.
​
(c)
The undersigned registrant hereby undertakes as follows: that prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of the Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form.
​
(d)
The undersigned registrant undertakes that every prospectus (i) that is filed pursuant to paragraph (c)the immediately preceding paragraph, or (ii) that purports to meet the requirements of sectionSection 10(a)(3) of the Securities Act of 1933 and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act of 1933, 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.
​
(e)
The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form S-4, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
​
(f)
The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
​
​
II-7
TABLE OF CONTENTS
(g)
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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue.
​
The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this registration statement, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
​The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
II-8
TABLE OF CONTENTS​
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Moultrie, State of Georgia, on this 16th12th day of January 2018.February, 2019.
AMERIS BANCORP
By:
/s/ Edwin W. Hortman,Dennis J. Zember Jr.
​
​
Dennis J. Zember Jr.
Edwin W. Hortman, Jr.
Executive Chairman, President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and directors of Ameris Bancorp hereby constitutes and appoints each of Edwin W. Hortman,Dennis J. Zember Jr. and Nicole S. Stokes, his or her attorney-in-fact and agent, each with full power of substitution and resubstitution for him or her in any and all capacities, to sign any or all amendments or post-effective amendments to this registration statement, and to file the same, with exhibits thereto and other documents in connection therewith, in connection with the registration of the shares of the registrant’s common stock under the Securities Act of 1933, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary in connection with such matters as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that such attorney-in-fact and agent or his or her substitute may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.
Name​​Title​​Date​
/s/ Edwin W. Hortman,Dennis J. Zember Jr.
​
Edwin W. Hortman,Dennis J. Zember Jr.
​​Executive Chairman, President and Chief Executive Officer (Principal Executive Officer)Officer and Director)​​January 16, 2018February 12, 2019​
/s/ Nicole S. Stokes
​
Nicole S. Stokes
​​Executive Vice President and Chief Financial Officer (Principal Financial and Principal Accounting Officer)​​January 16, 2018February 12, 2019​
/s/ William I. Bowen, Jr.
​
William I. Bowen, Jr.
​​Director​​January 16, 2018February 12, 2019​
/s/ R. Dale Ezzell
​
R. Dale Ezzell
​​Director​​January 16, 2018February 12, 2019​
/s/ Leo J. Hill
​
Leo J. Hill
​​Director​​January 16, 2018February 12, 2019​
/s/ Daniel B. Jeter
​
Daniel B. Jeter
​​Director​​January 16, 2018February 12, 2019​
/s/ Robert P. Lynch
​
Robert P. Lynch
​​Director​​January 16, 2018February 12, 2019​
/s/ Elizabeth A. McCague
​
Elizabeth A. McCague
​​Director​​January 16, 2018February 12, 2019​
/s/ William H. Stern
​
William H. Stern
​​Director​​January 16, 2018February 12, 2019​
/s/ Jimmy D. Veal
​
Jimmy D. Veal
​​Director​​January 16, 2018February 12, 2019​
II-9