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Exhibit
10.1
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EXECUTIVE EMPLOYMENT
AGREEMENT (the “Agreement”), is entered into as of
the 31st day of May, 2007, by and between AMERIS BANCORP , a
Georgia corporation (“Employer”), and MARC J.
BOGAN , an individual resident of the State of South Carolina
(“Executive”).
W I T N E S S E T
H:
WHEREAS , Employer
wishes to employ Executive as its Regional Executive for the
Coastal Region of South Carolina, and Executive wishes to serve in
such position, on the terms and conditions set forth
herein;
WHEREAS , Executive
desires to be assured of a secure minimum compensation from
Employer for his services over a defined term;
WHEREAS , Employer
desires to assure the continued services of Executive on behalf of
Employer on an objective and impartial basis and without
distraction or conflict of interest in the event of an attempt by
any person or entity to obtain control of Employer;
WHEREAS , Employer
desires to provide fair and reasonable benefits to Executive on the
terms and subject to the conditions set forth in this Agreement;
and
WHEREAS , Employer
desires reasonable protection of its confidential business and
customer information which it has developed over the years at
substantial expense and assurance that Executive will not compete
with Employer for a reasonable period of time after termination of
his employment with Employer, except as otherwise provided
herein;
NOW, THEREFORE , in
consideration of these premises, the mutual covenants and
undertakings herein contained, Employer and Executive, each
intending to be legally bound, covenant and agree as
follows:
1. Employment .
Upon the terms and subject to the conditions set forth in this
Agreement, Employer employs Executive as its Regional Executive for
the Coastal Region of South Carolina, and Executive hereby accepts
such employment.
2. Position and
Duties . Executive agrees to serve as the Regional
Executive for the Coastal Region of South Carolina of Employer as
set forth in Section 1 hereof and to perform such duties as
may reasonably be assigned to him by the Board of Directors (the
“Board”) or the Chief Executive Officer of Employer;
provided , however , that such duties shall be of the
same character as those generally associated with the office held
by Executive. Employee shall be based, and shall perform his
duties, at Employer’s regional executive office for South
Carolina, which will be located in Charleston, South Carolina, and
Employer shall not, without the written consent of Executive,
relocate or transfer Executive to a location other than its South
Carolina regional executive office. During the Term (as hereinafter
defined) of this Agreement, Executive agrees that he will serve
Employer faithfully and to the best of his ability and that he will
devote his full business time, attention and skills to
Employer’s business; provided , however , that
the
foregoing shall not be deemed to
restrict Executive from devoting a reasonable amount of time and
attention to the management of his personal affairs and
investments, so long as such activities do not interfere with the
responsible performance of Executive’s duties hereunder; and
provided further , however , that Executive may serve
as a director or officer of any charitable, religious, civic,
educational, or trade organizations to the extent that such
activities, individually or in the aggregate, do not interfere with
the performance of Executive’s duties and responsibilities
under this Agreement.
3. Term . This
Agreement shall commence as of May 31, 2007 (the
“Effective Date”) and shall continue in effect until
May 31, 2008 (such period, the “Term”);
provided , however , that commencing on May 31,
2008, and on each May 31st thereafter, the Term shall
automatically be extended for one (1) year unless either the
Company or the Executive shall have given written notice to the
other at least ninety (90) days prior thereto that the Term
shall not be so extended. Notwithstanding the foregoing, this
Agreement may be earlier terminated by Employer or Executive in
accordance with the terms of Section 8 hereof; provided
, however , that, notwithstanding any notice by Employer not
to extend, the Term shall not expire prior to the expiration of
twelve (12) months after the occurrence of a Change of Control
(as defined in Subsection 23(B) hereof).
4. Compensation
.
(A) Executive shall receive
an annual salary of One Hundred Sixty-Five Thousand and no/100
Dollars ($165,000.00) (“Base Compensation”) payable at
regular intervals in accordance with Employer’s normal
payroll practices now or hereafter in effect. Employer may consider
and declare from time to time increases in the salary it pays
Executive and thereby increase the Base Compensation. Any and all
increases in Executive’s salary pursuant to this
Section 4(A) shall cause the level of Base Compensation to be
increased by the amount of each such increase for purposes of this
Agreement. The increased level of Base Compensation as provided in
this Section 4(A) shall become the level of Base Compensation
for the remainder of the Term until there is a further increase in
Base Compensation as provided herein.
(B) In addition to his Base
Compensation, Executive shall be awarded, during each calendar year
during the Term hereof, an annual bonus (an “Annual
Bonus”) either pursuant to a bonus or incentive plan of
Employer or otherwise on terms no less favorable than those awarded
to other executive officers of Employer.
5. Other
Benefits . So long as Executive is employed by Employer
pursuant to this Agreement, he shall be included as a participant
in all present and future employee benefit, retirement and
compensation plans of Employer generally available to its
employees, consistent with his Base Compensation and his position
with Employer, including, without limitation, Employer’s
401(k) Profit Sharing Plan, and Executive and his dependents shall
be included in Employer’s hospitalization, major medical,
disability and group life insurance plans. Executive acknowledges
that, notwithstanding any of the provisions of this Agreement, any
of Employer’s benefit plans and programs may be modified from
time to time and that Employer is not required to continue any plan
or program currently in effect or adopted hereafter;
provided , however , that each of the above benefits
shall continue in effect on terms no less favorable than those for
other executive officers of Employer (as permitted by law) during
the Term hereof.
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6. Expenses .
So long as Executive is employed by Employer pursuant to this
Agreement, Executive shall receive reimbursement from Employer for
all reasonable business expenses incurred in the course of his
employment by Employer upon proper submission to Employer of
written vouchers and statements for reimbursement. In addition,
Employer shall (A) provide to Executive an automobile
allowance or an automobile (and pay for all costs associated
therewith) during the Term hereof, and (B) reimburse Executive
for all mileage driven by Executive in his personal automobile in
connection with his duties hereunder in accordance with
Employer’s mileage reimbursement policy as in effect from
time to time. Employer shall also use its reasonable best efforts
to provide to Executive a country club membership for business and
personal use and shall pay for all initiation fees and monthly dues
related thereto for business purposes; provided ,
however , that, if such membership is not already owned by
Executive as of the date hereof, then such membership shall be and
remain the sole property of Employer.
7. Vacation .
Executive shall be entitled to four (4) weeks paid vacation
during each calendar year of Executive’s employment
hereunder.
8. Termination
. Subject to the respective continuing obligations of the parties
hereto, including, without limitation, those set forth in
Subsections 10(A), 10(B), 10(C) and 10(D) hereof, Executive’s
employment by Employer hereunder may be terminated prior to the
expiration of the Term hereof as follows:
(A) Employer, by action of
the Board and upon written notice to Executive, may terminate
Executive’s employment with Employer immediately for cause.
For purposes of this Subsection 8(A), “cause” for
termination of Executive’s employment shall exist (a) if
Executive is convicted of (from which no appeal may be taken), or
pleads guilty or nolo contendere to, any act of fraud,
misappropriation or embezzlement, or any felony, (b) if, in
the determination of the Board, Executive has engaged in gross or
willful misconduct materially damaging to the business of Employer
(it being understood, however, that neither conduct pursuant to
Executive’s exercise of his good faith business judgment nor
unintentional physical damage to any property of Employer by
Executive shall be a ground for such a determination by the Board),
or (c) if Executive has failed, without reasonable cause, to
follow reasonable written instructions of the Board consistent with
Executive’s position with Employer and, after written notice
from the Board of such failure, Executive at any time thereafter
again so fails.
(B) Executive, upon sixty
(60) days written notice to Employer, may terminate his
employment with Employer for good reason, unless the grounds for
such termination shall have been cured by Employer within thirty
(30) days after receipt of Executive’s written notice of
termination describing specifically the particular circumstance he
believes constituted grounds for a termination for good reason and
requesting cure. For purposes of this Subsection 8(B), “good
reason” for termination shall mean a good faith determination
by Executive that any one or more of the following events has
occurred, without Executive’s express written
consent:
(1) after a Change of
Control, a change in Executive’s reporting responsibilities,
titles or offices as in effect immediately prior to the Change of
Control, or any removal of Executive from, or any failure to
re-elect Executive to, any of
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Executive’s positions
that he held immediately prior to the Change of Control, which has
the effect of diminishing Executive’s responsibility or
authority;
(2) after a Change of
Control, a reduction by Employer in Executive’s Base
Compensation as in effect immediately prior to the Change of
Control or as the same may be increased from time to time or a
change in the eligibility requirements or performance criteria
under any bonus, incentive or compensation plan, program or
arrangement under which Executive is covered immediately prior to
the Change of Control which adversely affects Executive;
(3) at the time of a Change
of Control, Employer requires Executive to be based anywhere other
than within a fifty (50) mile radius of Employer’s
regional executive office in Charleston, South Carolina;
(4) after a Change of Control
and without replacement by a plan providing benefits to Executive
substantially equal to or greater than those discontinued, the
failure by Employer to continue in effect, within its maximum
stated term, any pension, bonus, incentive, stock ownership,
purchase, option, life insurance, health, accident, disability, or
any other employee benefit plan, program or arrangement in which
Executive is participating at the time of the Change of Control, or
the taking of any action by Employer after a Change of Control that
would adversely affect Executive’s participation or
materially reduce Executive’s benefits under any of such
plans;
(5) after a Change of
Control, the taking of any action by Employer that would materially
adversely affect the physical conditions existing at the time of
the Change of Control in or under which Executive performs his
employment duties, provided that Employer may take action
with respect to such conditions after a Change of Control so long
as such conditions are at least commensurate with the conditions in
or under which an officer of Executive’s status would
customarily perform his employment duties; or
(6) after a Change of
Control, a material change in the fundamental business philosophy,
direction and precepts of Employer and its subsidiaries, considered
as a whole, as the same existed prior to the Change of
Control.
Any event described in Subsection
8(B)(1) through (6) hereof which occurs prior to a Change of
Control but which Executive reasonably demonstrates (x) was at
the request of a third party who has indicated an intention, or
taken steps reasonably calculated, to effect a Change of Control or
(y) otherwise arose in connection with, or in anticipation of,
a Change of Control which actually occurs, shall constitute good
reason for purposes hereof, notwithstanding that it occurred prior
to a Change of Control.
(C) Executive, upon ninety
(90) days written notice to Employer, may terminate his
employment with Employer without good reason.
(D) Employer, upon ninety
(90) days written notice to Executive, may terminate
Executive’s employment with Employer without
cause.
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(E) Executive’s
employment with Employer shall terminate in the event of
Executive’s death or disability. For purposes of this
Agreement, “disability” shall be defined as
Executive’s inability by reason of illness or other physical
or mental incapacity to perform the duties required by his
employment for any consecutive one hundred eighty (180) day
period.
9. Compensation Upon
Termination . In the event of termination of
Executive’s employment with Employer pursuant to
Section 8 hereof, compensation shall continue to be paid by
Employer to Executive as follows:
(A) In the event of a
termination pursuant to Subsection 8(A) or Subsection 8(C) hereof,
compensation provided for herein (including, without limitation,
Base Compensation and an Annual Bonus) shall continue to be paid,
and Executive shall continue to participate in the employee
benefit, retirement, compensation plans and other perquisites as
provided in Section 5 hereof, through and including the Date
of Termination (as hereinafter defined) specified in the Notice of
Termination (as hereinafter defined). Any benefits payable under
insurance, health, retirement and bonus plans as a result of
Executive’s participation in such plans through the Date of
Termination specified in the Notice of Termination shall be paid
when due under such plans.
(B) In the event of a
termination pursuant to Subsection 8(B) or Subsection 8(D) hereof,
compensation provided for herein (including, without limitation,
Base Compensation and an Annual Bonus) shall continue to be paid,
and Executive shall continue to participate in the employee
benefit, retirement, compensation plans and other perquisites as
provided in Section 5 hereof, through the Date of Termination
specified in the Notice of Termination, and any benefits payable
under insurance, health, retirement and bonus plans as a result of
Executive’s participation in such plans through the Date of
Termination specified in the Notice of Termination shall be paid
when due under such plans. In addition, if the event of termination
pursuant to Subsection 8(B) hereof occurs within twelve
(12) months after the date of a Change of Control, then,
subject to the terms of Section 12 hereof, (1) Executive
shall be entitled to continue to receive from Employer for one
(1) additional 12-month period his Base Compensation at the
rates in effect at the time of termination plus an Annual Bonus in
accordance with the Company’s Incentive Plan as of the date
of the event of termination, payable in accordance with
Employer’s standard payment practices then existing;
(2) Executive shall be entitled to continue to participate for
one (1) additional 12-month period in each employee welfare
benefit plan (as such term is defined in the Employment Retirement
Income Security Act of 1974, as amended) in which Executive was
entitled to participate immediately prior to the date of his
termination, unless an essentially equivalent and no less favorable
benefit is provided by a subsequent employer of Executive,
provided that if the terms of any such employee welfare
benefit plan or applicable laws do not permit continued
participation by Executive, Employer will arrange to provide to
Executive a benefit substantially similar to, and no less favorable
than, the benefit he was entitled to receive under such plan at the
end of the period of coverage; and (3) Employer shall
contribute the maximum contributions allowable under
Employer’s 401(k) Profit Sharing Plan, or any successor plans
thereto, for the benefit of Executive.
(C) In the event of a
termination pursuant to Subsection 8(E) hereof, compensation
provided for herein (including, without limitation, Base
Compensation and an Annual Bonus) shall continue to be paid, and
Executive shall continue to participate in the employee
benefit,
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retirement, and compensation plans and
other perquisites as provided in Section 5 hereof, (1) in
the event of Executive’s death, through the date of death, or
(2) in the event of Executive’s disability, through the
Date of Termination specified in the Notice of Termination. Any
benefits payable under insurance, health, retirement and bonus
plans as a result of Executive’s participation in such plans
through the date of death or the Date of Termination specified in
the Notice of Termination, as the case may be, shall be paid when
due under those plans.
(D) Employer will permit
Executive or his personal representative(s) or heirs, during a
period of ninety (90) days following the Date of Termination
of Executive’s employment by Employer (as specified in the
Notice of Termination) for the reasons set forth in Subsection 8(B)
or Subsection 8(D) hereof, to purchase all of the stock of Employer
that would be issuable under all outstanding stock options, if any,
previously granted by Employer to Executive under any Employer
stock option plan then in effect, whether or not such options are
then exercisable, at a cash purchase price equal to the purchase
price as set forth in such outstanding stock options.
10. Restrictive
Covenants .
(A) Executive acknowledges
that (1) Employer has separately bargained and paid additional
consideration for the restrictive covenants herein; and
(2) Employer will provide certain benefits to Executive
hereunder in reliance on such covenants in view of the unique and
essential nature of the services Executive will perform on behalf
of Employer and the irreparable injury that would befall Employer
should Executive breach such covenants.
(B) Executive further
acknowledges that his services are of a special, unique and
extraordinary character and that his position with Employer will
place him in a position of confidence and trust with employees of
Employer and its subsidiaries and affiliates and with
Employer’s other constituencies and will allow him access to
trade secrets and confidential information concerning Employer and
its subsidiaries and affiliates.
(C) Executive further
acknowledges that the type and periods of restrictions imposed by
the covenants in this Section 10 are fair and reasonable and
that such restrictions will not prevent Executive from earning a
livelihood.
(D) Having acknowledged the
foregoing, Executive covenants and agrees with Employer as
follows:
(1) For a period of one
(1) year after the termination of Executive’s employment
by Employer for any reason or for no reason, Executive shall not
divulge or furnish any confidential information of Employer
acquired by him while employed by Employer to any person, firm or
corporation, other than to Employer or upon its written request, or
use any such confidential information (which shall at all times
remain the property of Employer) directly or indirectly for
Executive’ own benefit or for the benefit of any person, firm
or corporation other than Employer. For purposes hereof, the term
“confidential information” means data and information
relating to the Banking Business (as hereinafter defined) which is
or has been disclosed to Executive or of which Executive became
aware as a consequence of or through Executive’s relationship
to Employer and which has value to Employer and is not generally
known to its
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competitors. Without
limiting
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