Unassociated Document
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM S-8
Registration
Statement Under
The Securities Act of
1933
SERVISFIRST
BANCSHARES, INC.
(Exact
Name of Registrant as Specified in its Charter)
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DELAWARE
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26-0734029
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(State
or Other Jurisdiction
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(I.R.S.
Employer
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of
Incorporation or Organization)
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Identification
Number)
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850
Shades Creek Parkway, Suite 200
Birmingham,
Alabama 35209
(Address
of Principal Executive Offices)
(Zip
Code)
SERVISFIRST
BANCSHARES, INC. 2009 STOCK INCENTIVE PLAN;
SERVISFIRST
BANCSHARES, INC. SECOND AMENDED AND RESTATED 2005 STOCK INCENTIVE
PLAN
(Full
Title of the Plans)
Thomas
A. Broughton, III
President
and Chief Executive Officer
ServisFirst
Bancshares, Inc.
850
Shades Creek Parkway, Suite 200
Birmingham,
Alabama 35209
(Name and
Address of Agent for Service)
(205)
949-0302
(Telephone
Number, including Area Code, of Agent for Service)
The
Commission is requested to send copies of all notices and other communications
to:
William
W. Horton, Esq.
Haskell
Slaughter Young & Rediker, LLC
2001
Park Place, Suite 1400
Birmingham,
Alabama 35203
Tel:
(205) 251-1000
Fax:
(205) 324-1133
Indicate
by check mark whether the registrant 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” in Rule 12b-2 of the
Exchange Act. (Check one):
Large
accelerated filer o Accelerated
filer R Non-accelerated
filer o
Smaller reporting company o
(Do
not check if a smaller reporting company)
CALCULATION OF REGISTRATION
FEE
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Proposed Maximum
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Proposed Maximum
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Title of Securities
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Amount to be
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Offering Price
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Aggregate Offering
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Amount of
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to
be Registered
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Registered(1)
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Per
Share (2)
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Price
(2)
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Registration
Fee
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Common
Stock, par value $.001 per share
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1,450,000 |
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$ |
17.633 |
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25,567,850.00 |
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$ |
1,822.99 |
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(1)
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Pursuant
to Rule 416(a) of the Securities Act of 1933 (the “Securities Act”), this
Registration Statement on Form S-8 shall also cover additional shares of
Common Stock that may be offered and issued to prevent dilution resulting
from any stock split, stock dividend, recapitalization or other similar
transactions as provided under either the: (i) ServisFirst Bancshares,
Inc. 2009 Stock Incentive Plan or (ii) ServisFirst Bancshares, Inc. Second
Amended and Restated 2005 Stock Incentive
Plan.
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(2)
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Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(h) under the Securities Act. Because there is no established
market for the shares being offered, the registration fee has been
calculated based on the book value of such shares, computed as of
September 30, 2010, the latest practicable
date.
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PART I
INFORMATION REQUIRED IN THE SECTION
10(a) PROSPECTUS
This Registration Statement on Form S-8
(this “Registration Statement”) registers 1,450,000 shares of Common Stock, par
value $.001 per share, of ServisFirst Bancshares, Inc. (the “Company”) reserved
for issuance under: (i) the ServisFirst Bancshares, Inc. 2009 Stock Incentive
Plan and (ii) the ServisFirst Bancshares, Inc. Second Amended and Restated 2005
Stock Incentive Plan (together, the “Plans”).
Item
1. Plan Information
The
document(s) containing the information specified in Part I of this
Registration Statement will be sent or given to participants in the Plans
pursuant to Rule 428(b)(1) of the Securities Act. The documents are not
required to be, and are not, filed with the Securities and Exchange Commission
(the “Commission”), either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 under the
Securities Act. The documents and the documents incorporated by reference in
this Registration Statement pursuant to Item 3 of Part II below, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
Item
2. Registrant Information and Employee Plan Annual
Information
Upon
written or oral request, the Company will provide, without charge, a copy of the
documents incorporated by reference in Item 3 of Part II of this Registration
Statement. These documents are incorporated by reference in the
Section 10(a) prospectus. Requests for the above-mentioned
information should be directed to William M. Foshee at 850 Shades Creek Parkway,
Suite 200, Birmingham, Alabama 35209; toll free telephone number: (866)
317-0810.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference
The following documents filed by the
Company with the Commission are hereby incorporated by reference in this
Registration Statement:
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(a)
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The
Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2009;
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(b)
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The
Company’s Quarterly Reports on Form 10-Q for the quarterly periods ended
March 31, 2010, June 30, 2010 and September 30,
2010;
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(c)
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The
Company’s Current Reports on Form 8-K filed on January 20, 2010,
February 3, 2010, March 19, 2010, April 20, 2010, May 5, 2010, July 21,
2010 and October 18, 2010; and
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(d)
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The
description of the Company’s Common Stock, par value $0.001 per share,
contained in the Company’s Registration Statement on Form 10 filed on
March 28, 2008, as amended by Post-Effective Amendment No. 1
filed on April 25, 2008 and Post-Effective Amendment No. 2 filed
on May 13, 2008, including all amendments and reports filed for the
purpose of updating such
description.
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All
reports and other documents the Company subsequently files with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934 prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, but excluding any information furnished to, rather than filed
with, the Commission, shall be deemed to be incorporated by reference herein and
to be part hereof from the date such reports or documents are filed. Information
contained herein modifies or supersedes, as applicable, the information
contained in earlier-dated documents incorporated by reference. Information
contained in later-dated documents incorporated by reference will automatically
supplement, modify or supersede, as applicable, the information contained herein
or in earlier-dated documents incorporated by reference. Any such statement so
modified or superseded shall not be deemed to constitute a part of this
Registration Statement, except as so modified or superseded.
Item 4. Description of
Securities
Not
applicable.
Item 5. Interests of Named
Experts and Counsel
The
validity of the issuance of the shares of the Company’s Common Stock offered by
this Registration Statement, pursuant to the Plans, has been passed upon by
Haskell Slaughter Young & Rediker, LLC, Birmingham, Alabama.
Item 6. Indemnification of
Directors and Officers
Section 102(b)(7)
of the Delaware General Corporation Law (“DGCL”) permits a Delaware corporation,
in its certificate of incorporation, to limit or eliminate, subject to certain
statutory limitations, the personal liability of their directors in certain
circumstances. The Company’s Certificate of Incorporation (the “Certificate”)
contains a provision eliminating or limiting director liability to the Company
and its stockholders for monetary damages arising from acts or omissions in the
director’s capacity as a director. The provision does not, however, eliminate or
limit the personal liability of a director (i) for any breach of such
director’s fiduciary duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL making directors personally liable, under a negligence standard, for
unlawful dividends or unlawful stock purchases or redemptions, or (iv) for
any transaction from which the director derived an improper personal benefit.
This provision offers persons who serve on the Board of Directors of the Company
protection against awards of monetary damages resulting from breaches of their
duty of care (except as indicated above). As a result of this provision, the
ability of the Company or a stockholder thereof to successfully prosecute an
action against a director for a breach of his duty of care is limited. However,
this provision does not affect the availability of equitable remedies such as an
injunction or rescission based upon a director’s breach of his duty of care. The
SEC has taken the position that the provision will have no effect on claims
arising under the federal securities laws.
Section 145
of the DGCL grants corporations the right to indemnify their directors,
officers, employees and agents in accordance with its provisions.
Section 9.2 of the Company’s Certificate provides for mandatory
indemnification rights, subject to limited exceptions, to any director, officer,
employee, or agent of the Company who, by reason of the fact that he or she is a
director, officer, employee, or agent of the Company, is involved in a legal
proceeding of any nature. Such indemnification rights include reimbursement for
expenses incurred by such director, officer, employee, or agent in advance of
the final disposition of such proceeding in accordance with the applicable
provisions of the DGCL. These rights are supplemented by the
Company’s Bylaws.
In
addition, the Company has purchased insurance containing customary terms and
conditions as permitted by Delaware law on behalf of its directors and executive
officers, which may cover liabilities under the Securities Act.
Item 7. Exemption From
Registration Claimed
Not
applicable.
Item 8.
Exhibits
Exhibit
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Number
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Description
of Exhibit
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4.1
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Certificate
of Incorporation of ServisFirst Bancshares, Inc., filed on March 28, 2008
as Exhibit 3.1 to the Company’s Registration Statement on Form 10,
and incorporated by reference herein.
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4.2
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Certificate
of Amendment to Certificate of Incorporation of ServisFirst Bancshares,
Inc., filed on March 28, 2008 as Exhibit 3.2 to the Company’s Registration
Statement on Form 10, and incorporated by reference
herein.
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4.3
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Bylaws
of ServisFirst Bancshares, Inc., filed on March 28, 2008 as Exhibit 3.3 to
the Company’s Registration Statement on Form 10, and incorporated by
reference herein.
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4.4
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ServisFirst
Bancshares, Inc. Second Amended and Restated 2005 Stock Incentive Plan,
filed on March 28, 2008 as Exhibit 10.1 to the Company’s Registration
Statement on Form 10, and incorporated by reference
herein.
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4.5
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ServisFirst
Bancshares, Inc. 2009 Stock Incentive Plan, filed on April 10, 2009 as
Annex A to the Company’s Definitive Proxy Statement on Schedule 14A, and
incorporated by reference herein.
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5.1*
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Opinion
of Haskell Slaughter Young & Rediker, LLC
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23.1*
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Consent
of Mauldin & Jenkins, LLC
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23.2
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Consent
of Haskell Slaughter Young & Rediker, LLC (included in
Exhibit 5.1).
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24.1
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Powers
of Attorney (set forth on the signature page of this Registration
Statement).
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* Filed
herewith
Item 9.
Undertakings
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(a)
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The
undersigned Registrant hereby
undertakes:
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(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933.
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of thisRegistration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar volume 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
a 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 this Registration Statement.
(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 this Registration Statement.
Provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if this Registration Statement is on Form S-8, and the information required to
be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the Registrant pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant’s annual
report pursuant to section 13(a) or section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan’s annual report
pursuant to section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions or, otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Birmingham, State of Alabama, on November 9, 2010.
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SERVISFIRST
BANCSHARES, INC.
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By
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/s/ Thomas A. Broughton,
III
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Thomas
A. Broughton, III
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President
and Chief Executive
Officer
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POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Thomas A. Broughton, III and William M. Foshee, and
each or any of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and any subsequent
registration statements relating to the offering to which this Registration
Statement relates, and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or either of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement has been
signed by the following persons in the capacities and on the dates
indicated.
Signature
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Title
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Date
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/s/
Thomas A. Broughton, III
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President
and Chief Executive Officer
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Thomas
A. Broughton, III
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And
Director (Principal Executive Officer)
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November
9, 2010
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/s/
William M. Foshee
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Executive
Vice President and
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William
M. Foshee
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Chief
Financial Officer(Principal
Financial
Officer and Principal
Accounting
Officer)
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/s/
Stanley M. Brock
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Chairman
of the Board
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Stanley
M. Brock
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/s/
Michael D. Fuller.
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Director
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Michael
D. Fuller.
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/s/
James J. Filler
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Director
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James
J. Filler
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/s/
J. Richard Cashio
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Director
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J.
Richard Cashio
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/s/
Hatton C. V. Smith
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Director
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Hatton
C. V. Smith
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EXHIBIT INDEX
Exhibit
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Number
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Description of Exhibit
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4.1
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Certificate
of Incorporation of ServisFirst Bancshares, Inc., filed on March 28, 2008
as Exhibit 3.1 to the Company’s Registration Statement on Form 10,
and incorporated by reference herein.
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4.2
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Certificate
of Amendment to Certificate of Incorporation of ServisFirst Bancshares,
Inc., filed on March 28, 2008 as Exhibit 3.2 to the Company’s Registration
Statement on Form 10, and incorporated by reference
herein.
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4.3
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Bylaws
of ServisFirst Bancshares, Inc., filed on March 28, 2008 as Exhibit 3.3 to
the Company’s Registration Statement on Form 10, and incorporated by
reference herein.
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4.4
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ServisFirst
Bancshares, Inc. Second Amended and Restated 2005 Stock Incentive Plan,
filed on March 28, 2008 as Exhibit 10.1 to the Company’s Registration
Statement on Form 10, and incorporated by reference
herein.
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4.5
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ServisFirst
Bancshares, Inc. 2009 Stock Incentive Plan, filed on April 10, 2009 as
Annex A to the Company’s Definitive Proxy Statement on Schedule 14A, and
incorporated by reference herein.
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5.1*
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Opinion
of Haskell Slaughter Young & Rediker, LLC
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23.1*
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Consent
of Mauldin & Jenkins, LLC
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23.2
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Consent
of Haskell Slaughter Young & Rediker, LLC (included in
Exhibit 5.1).
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24.1
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Powers
of Attorney (set forth on the signature page of this Registration
Statement).
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* Filed
herewith