UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
________________
SOUTHERN FIRST BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
South Carolina 58-2459561
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
100 Verdae Boulevard
Greenville, South Carolina 29607
(Address of Principal Executive Offices) (Zip Code)
2010 Southern First Bancshares, Inc. Stock Incentive Plan
(Full title of the plan)
R. Arthur Seaver, Jr.
Chief Executive Officer
100 Verdae Boulevard
Greenville, South Carolina 29607
(Name and address of agent for service)
(864) 679-9000
(Telephone number, including area code, of agent for service)
Copies of all communications, including communications sent to agent for service, should be sent to:
John M. Jennings
Nelson Mullins Riley & Scarborough LLP
104 South Main Street, Suite 900
Greenville, South Carolina 29601
(864) 250-2300
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.
Large accelerated filer o Accelerated filer o
Non-accelerated filer o (Do not check if a smaller reporting company) Smaller reporting company ý
CALCULATION OF REGISTRATION FEE
|
Title of securities to be registered |
Amount to be Registered (1) |
Proposed maximum offering price per share (2) |
Proposed maximum aggregate offering price |
Amount of registration fee (2) |
|
Common Stock, par value $0.01 per share |
335,000 |
$6.31 |
$2,113,850 |
$151 |
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of common stock which become issuable under the above-named plan by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of our outstanding shares of common stock.
(2) Estimated pursuant to Rule 457(h) solely for purposes of calculating the aggregate offering price and the amount of the registration fee based upon the average of the high and low prices reported on the Nasdaq Global Market on August 9, 2010. [This date must be within 5 days of filing the Form S-8.]
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*The documents containing the information specified in Part I will be delivered in accordance with Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). Such 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. These documents, and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3 . Incorporation of Documents by Reference.
The following documents, which have been filed by Southern First Bancshares, Inc. (the “Company”) with the Commission, are incorporated in this Registration Statement by reference:
(a) The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2009 filed on March 2, 2010, as amended on Form 10-K/A filed on March 9, 2010;
(b) The Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2010 filed on April 30, 2010;
(c) The Company’s Current Reports on Form 8-K filed on May 19, 2010, and June 14, 2010;
(d) The description of the Company’s capital stock contained in the Company’s Registration Statement on the 424(B)(4) prospectus filed on September 22, 2004, including any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company 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 hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4 . Description of Securities.
N/A
Item 5 . Interests of Named Experts and Counsel.
N/A
Item 6. Indemnification of Directors and Officers.
Our articles of incorporation contain a provision which, subject to certain exceptions described below, eliminates the liability of a director to the Company and its shareholders for monetary damages for any breach of duty as a director. This provision does not eliminate such liability for (i) any breach of the director’s duty of loyalty; (ii) acts or omissions not in good faith or which involve gross negligence, intentional misconduct, or a knowing violation of law; (iii) liability imposed under Section 33-8-330 of the South Carolina Business Corporation Act of 1988 (referred to in this Item 6 as the "Act"); and (iv) any transaction from which the director derived an improper personal benefit.
Under our bylaws, we must indemnify any person who becomes subject to a lawsuit or proceeding by reason of service as a director or officer of the Company or any other corporation which the person served as a director at the request of the company to the fullest extent permitted by law. Under our bylaws, our directors and officers are also entitled to have the Company advance expenses prior to final disposition of the proceeding, upon delivery of a written affirmation by the director or officer of his good faith belief that the standard of conduct necessary for indemnification has been met and a written undertaking to repay the amounts advanced if it is ultimately determined that the standard of conduct has not been met, if a determination is made in the manner specified in Section 33-8-550 of the Act that the facts then known to those making the determination would not preclude indemnification .
In addition to the articles of incorporation and bylaws, Section 33‑8‑520 of the Act requires that “a corporation indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he was a party because he is or was a director of the corporation against reasonable expenses incurred by him in connection with the proceeding.” The statute also provides that upon application of a director a court may order indemnification if it determines that the director is entitled to such indemnification under the applicable statutory standard.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers, and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
Item 7 . Exemption from Registration Claimed .
N/A
Item 8. Exhibits.
The following exhibits are filed with this Registration Statement.
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Exhibit Number |
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Description of Exhibit |
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4.1 |
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Articles of Incorporation, as amended (1) |
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4.2 |
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Articles of Amendment to the Articles of Incorporation establishing the terms of the Series T Preferred Stock(2) |
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4.3 |
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Amended and Restated Bylaws (3) |
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4.4 |
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Form of Certificate of Common Stock (1) |
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4.5 |
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2010 Southern First Bancshares, Inc. Stock Incentive Plan (4) |
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4.6 |
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Form of Award Agreement for Stock Options |
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4.7 |
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Form of Award Agreement for Restricted Stock |
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5.1 |
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Legal Opinion of Nelson Mullins Riley & Scarborough LLP |
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23.1 |
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Consent of Elliott Davis, LLC |
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23.2 |
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Consent of Nelson Mullins Riley & Scarborough LLP (contained in their opinion filed as Exhibit 5.1) |
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24 |
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Power of Attorney (contained on the signature pages of this registration statement) |
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(1) Incorporated by reference to the Company’s Registration Statement on Form SB-2 filed on July 27, 1999.
(2) Incorporated by reference to Exhibit 3.1 of the Company's Current Report on Form 8-K filed on March 3, 2009.
(3) Incorporated by reference to Exhibit 3.4 of the Company's Form 10-K filed March 24, 2008.
(4) Incorporated by reference to Appendix A of the Company’s Proxy Statement on Schedule 14A, filed April 6, 2010.
Item 9. Undertakings.
1. The undersigned registrant hereby undertakes:
(a) 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 set forth 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 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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 the registration statement;
provided, however , that paragraphs (a)(i) and (a)(ii) of this section do not apply if the 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 Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
(b) 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.
(c) 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.
(d) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchase in the initial distribution of securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
2. 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 Section 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 Section 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.
3. 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.
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 Greenville, State of South Carolina, as of July 20, 2010.
SOUTHERN FIRST BANCSHARES, INC.
By: /s/R. Arthur Seaver, Jr.
Name: R. Arthur Seaver, Jr.
Title: Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints R. Arthur Seaver, Jr. and James M. Austin, III, and each of them such person’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in such person’s name, place and stead, in any and all capacities (including such person’s capacity as a director and/or officer) to sign any and all amendments (including post-effective amendments) to this Registration Statement and any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission and any other regulatory authority, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute or substitutes, may lawfully 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 indicated as of the dates indicated:
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Signature |
Title |
Date |
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/s/ James M. Austin, III |
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July 20, 2010 |
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James M. Austin, III |
Chief Financial Officer and Executive Vice President (Principal Financial and Accounting Officer) |
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/s/ Andrew B. Cajka |
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July 20, 2010 |
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Andrew B. Cajka |
Director |
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/s/Mark A. Cothran |
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July 20, 2010 |
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Mark A. Cothran |
Director |
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/s/Leighton M. Cubbage |
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July 20, 2010 |
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Leighton M. Cubbage |
Director |
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/s/Anne S. Ellefson |
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July 20, 2010 |
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Anne S. Ellefson |
Director |
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/s/David G. Ellison |
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July 20, 2010 |
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David G. Ellison |
Director |
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/s/Fred Gilmer, Jr. |
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July 20, 2010 |
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Fred Gilmer, Jr. |
Director |
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/s/Tecumseh Hooper, Jr. |
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July 20, 2010 |
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Tecumseh Hooper, Jr. |
Director |
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/s/Rudolph G. Johnstone, III, M.D. |
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July 20, 2010 |
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Rudolph G. Johnstone, III, M.D. |
Director |
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/s/James B. Orders, III |
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July 20, 2010 |
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James B. Orders, III |
Director |
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/s/R. Arthur Seaver, Jr. |
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July 20, 2010 |
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R. Arthur Seaver, Jr. |
Chief Executive Officer and Director (Principal Executive Officer) |
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William B. Sturgis |
Director |
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Exhibit Index
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Exhibit Number |
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Description of Exhibit |
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Articles of Incorporation, as amended (1) |
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4.2 |
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Articles of Amendment to the Articles of Incorporation establishing the terms of the Series T Preferred Stock(2) |
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4.3 |
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Amended and Restated Bylaws (3) |
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4.4 |
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Form of Certificate of Common Stock (1) |
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4.5 |
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2010 Southern First Bancshares, Inc. Stock Incentive Plan (4) |
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4.6 |
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Form of Award Agreement for Stock Options |
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4.7 |
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Form of Award Agreement for Restricted Stock |
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5.1 |
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Legal Opinion of Nelson Mullins Riley & Scarborough LLP |
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23.1 |
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Consent of Elliott Davis, LLC |
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23.2 |
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Consent of Nelson Mullins Riley & Scarborough LLP (contained in their opinion filed as Exhibit 5.1) |
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24 |
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Power of Attorney (contained on the signature pages of this registration statement) |
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(1) Incorporated by reference to the Company’s Registration Statement on Form SB-2 filed on July 27, 1999.
(2) Incorporated by reference to Exhibit 3.1 of the Company's Current Report on Form 8-K filed on March 3, 2009.
(3) Incorporated by reference to Exhibit 3.4 of the Company's Form 10-K filed March 24, 2008.
(4) Incorporated by reference to Appendix A of the Company’s Proxy Statement on Schedule 14A, filed April 6, 2010.
Exhibit 4.6
SOUTHERN FIRST BANCSHARES, INC.
2010 STOCK INCENTIVE PLAN
Form of Stock Option Agreement
SOUTHERN FIRST BANCSHARES, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this “Agreement”) is entered into as of this [__] day of [_______], 2010, between Southern First Bancshares, Inc., a South Carolina corporation (the “Company”), and [__________] (the “Optionee”).
WHEREAS, on May 18, 2010, the Board of Directors of the Company adopted a Stock Incentive Plan known as the “Southern First Bancshares, Inc. 2010 Stock Incentive Plan” (the “Plan”), and recommended that the Plan be approved by the Company’s shareholders; and
WHEREAS, the Committee has granted the Optionee a stock option to purchase the number of shares of the Company’s common stock as set forth below, and in consideration of the granting of that stock option the Optionee intends to remain in the employ of the Company; and
WHEREAS, the Company considers it desirable and in its best interest that the Optionee be provided an inducement to acquire an ownership interest in the Company and an additional incentive to advance the interest of the Company through the grant of an option to purchase shares of common stock of the Company pursuant to the Plan; and
WHEREAS, the Company and the Optionee desire to enter into a written agreement with respect to such option in accordance with the Plan.
NOW, THEREFORE, as an employment incentive and to encourage stock ownership, and also in consideration of the mutual covenants contained herein, the Company and the Optionee agree as follows.
1. Incorporation of Plan . This option is granted pursuant to the provisions of the Plan and the terms and definitions of the Plan are incorporated herein by reference and made a part hereof. A copy of the Plan has been delivered to, and receipt is hereby acknowledged by, the Optionee.
2. Grant of Option . Subject to the provisions stated in this Agreement, the Company hereby evidences its grant to the Optionee, not in lieu of salary or other compensation, of the right and option (the “Option”) to purchase the number of shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), set forth below, exercisable in the amounts and at the time specified below. This Option is intended to be an Incentive Stock Option, as defined in the Code.
Number of Shares: [_____________]
Exercise Price: $ [_______] per share
Option Vesting Schedule: Options are exercisable with respect the shares of Common Stock as follows, subject in each case to continued employment by the Company or a subsidiary of the Company through such date, and subject to the provisions of Section 7 of this Agreement:
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No. of Shares |
Vesting Date |
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[_________], 2010 |
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[_________], 2011 |
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[_________], 2012 |
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[_________], 2013 |
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[_________], 2014 |
Option Exercise Period: All options expire and are void unless exercised on or before [___________], 20[__].
3. Exercise Terms . The Optionee must exercise the Option for at least the lesser of 100 shares or the number of shares of Stock as to which the Option remains unexercised but exercisable. If this Option is not exercised with respect to all or any part of the shares subject to this Option prior to its expiration, the shares with respect to which this Option was not exercised shall no longer be subject to this Option.
4. Restrictions on Transferability . No Option shall be transferable by an Optionee other than by will or the laws of descent and distribution or pursuant to a Qualified Domestic Relations Order. During the lifetime of an Optionee, Options shall be exercisable only by such Optionee (or by such Optionee’s guardian or legal representative, should one be appointed). The shares purchased pursuant to the exercise of an Incentive Stock Option shall not be transferred by the Optionee except pursuant to the Optionee’s will, or the laws of descent and distribution, until such date which is the later of two years after the grant of such Incentive Stock Option or one year after the transfer of the shares to the Optionee pursuant to the exercise of such Incentive Stock Option.
2
5. Notice of Exercise of Option . This Option may be exercised by the Optionee, or by the Optionee’s administrators, executors or personal representatives, by a written notice (in substantially the form of a Notice of Exercise approved by the Company) signed by the Optionee, or by such administrators, executors or personal representatives, and delivered or mailed to the Company as specified in this Agreement to the attention of the President or such other officer as the Company may designate. Any such notice shall (a) specify the number of shares of Common Stock which the Optionee or the Optionee’s administrators, executors or personal representatives, as the case may be, then elects to purchase hereunder, (b) contain such information as may be reasonably required by the Company pursuant to this Agreement, and (c) be accompanied by (i) a certified or cashier’s check payable to the Company in payment of the total Exercise Price applicable to such shares as provided herein, (ii) shares of stock owned by the Optionee and duly endorsed or accompanied by stock transfer powers, or constructively delivered through an attestation, having a Fair Market Value equal to the total Exercise Price applicable to such Shares purchased hereunder, or (iii) a certified or cashier’s check accompanied by the number of shares of stock where Fair Market Value when added to the amount of the check equal the total Exercise Price applicable to such shares purchased hereunder. Upon receipt of any such notice and accompanying payment, and subject to the terms hereof, the Company agrees to issue to the Optionee or the Optionee’s administrators, executors or personal representatives, as the case may be, stock certificates for the number of shares specified in such notice registered in the name of the person exercising this Option.
6. Adjustment in Option . The number of Shares subject to this Option, the Exercise Price, and other matters are subject to adjustment during the term of this Option in accordance with Section 4 of the Plan.
7. Termination of Employment .
(a) In the event of the termination of the Optionee’s employment (including due to retirement) with the Company or any of its Subsidiaries, other than a termination that is either (i) for Cause, or (ii) for reasons of death or Permanent and Total Disability, all vesting of the Option shall cease and the Optionee may exercise this Option at any time within a period ending on the earlier of (a) the last day of the period ending three months after such termination or (b) the expiration date of this Option, to the extent of the number of shares which were purchasable (vested) as of the date of such termination (and thereafter this Option shall be deemed terminated and shall not be or become exercisable).
(b) In the event of a termination of the Optionee’s employment for Cause, this Option, to the extent not previously exercised, shall terminate immediately and shall not thereafter be or become exercisable.
(c) In the event of termination of employment because of the Optionee’s Permanent and Total Disability, all vesting of the Option shall cease and the Optionee (or his or her personal representative) may exercise this Option, within a period ending on the earlier of (a) the last day of the one year period following the Optionee’s Permanent and Total Disability or (b) the expiration date of this Option, to the extent of the number of shares which were purchasable (vested) as of the date of such termination.
3
(e) In the event of the Optionee’s death while employed by the Company or any of its Subsidiaries or within three months after a termination of such employment (if such termination was not for Cause), the appropriate persons described in Section 5 hereof or persons to whom all or a portion of this Option is transferred in accordance with Section 4 hereof may exercise this Option, to the extent vested, at any time within a period ending on the earlier of (a) the last day of the one year period following the Optionee’s death or (b) the expiration date of this Option. If the Optionee was an employee of the Company at the time of death, all vesting of the Option shall cease as of the date of death, and, this Option may be so exercised to the extent of the number of shares that were purchasable (vested) as of the date of death. If the Optionee’s employment terminated prior to his or her death, all vesting of the Option shall have ceased as of the date of termination, and this Option may be exercised only to the extent of the number of shares covered by this Option which were purchasable (vested) as of the date of such termination.
This Option does not confer upon the Optionee any right with respect to continuance of employment by the Company or by any of its Subsidiaries. This Option shall not be affected by any change of employment so long as the Optionee continues to be an employee of the Company or one of its Subsidiaries.
8. Compliance with Regulatory Matters . The Optionee acknowledges that the issuance of capital stock of the Company is subject to limitations imposed by federal and state law and the Optionee hereby agrees that the Company shall not be obligated to issue any shares of Stock upon exercise of this Option that would cause the Company to violate law or any rule, regulation, order or consent decree of any regulatory authority (including without limitation the Securities and Exchange Commission) having jurisdiction over the affairs of the Company. The Optionee agrees that he or she will provide the Company with such information as is reasonably requested by the Company or its counsel to determine whether the issuance of Stock complies with the provisions described by this Section 8.
9. Forfeiture . The purpose of the Plan is to attract, retain, and reward employees, to increase stock ownership and identification with the Company’s interests, and to provide incentive for remaining with and enhancing the value of the Company over the long-term. Therefore, the Company and the Optionee agree as follows:
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(a) If, at any time within the later of (i) one year after termination of the Optionee’s employment or (ii) one year after the Optionee’s exercise of any portion of this Option, the Optionee engages in any activity which constitutes a violation of any confidentiality, noncompetition, nonsolicitation, or similar provision of any employment or other agreement between the Company and the Optionee (or, if no agreement is in place between the Company and the Optionee, any Company policies pertaining to such matters), or if the Optionee engages in any illegal or prohibited activity which is inimical, contrary, or harmful to the interests of the Company (including conduct related to the Optionee’s employment for which either criminal or civil penalties against the Optionee may be sought or violation of the Company’s policies, including the Company’s insider trading policy), then (1) this Option shall terminate effective the date on which the Optionee enters into such activity, unless terminating sooner by operation of another term or condition of this Option or the Plan, and (2) any Option Gain realized by the Optionee from exercising all or a portion of this Option shall be paid by the Optionee to the Company. “Option Gain” shall mean the gain represented by the mean market price on the date of exercise over the Exercise Price, multiplied by the number of shares purchased through exercise of the Option, without regard to any subsequent market price decrease or increase. The forfeiture provisions described in this Section shall apply even if the Company does not elect otherwise to enforce the employment agreement or take other action against the Optionee, but shall not apply if termination of the Optionee’s employment with the Company occurs in connection with or following a Change in Control involving the Company (as defined in the Plan).
(b) Section 12(d) of the Plan applies with respect to withholding tax payments (if any) with respect to this Option. The Optionee hereby appoints the Company as its attorney-in-fact to execute any documents or do any acts necessary to exercise its rights under this Section.
(c) The Optionee may be released from its obligations under this Section only if the Board of Directors (or its duly appointed agent) determines in its sole discretion that such action is in the best interests of the Company.
10. Miscellaneous .
(a) This Agreement shall be binding upon the parties hereto and their representatives, successors and assigns.
(b) Unless the context clearly indicates to the contrary, all capitalized terms used herein shall have the meanings as set forth in this Agreement, or in the event a capitalized term is not clearly described in this Agreement, the meanings as set forth in the Plan.
(c) This Agreement is executed and delivered in, and shall be governed by the laws of, the State of South Carolina.
(d) Income realized by the Optionee pursuant to this Agreement shall not be included in the Grantee’s earnings for the purpose of any benefit plan of the entity in which the Optionee may be enrolled or for which the Optionee may become eligible unless otherwise specifically provided for in such plan.
(e) Any requests or notices to be given hereunder shall be deemed given, and any elections or exercises to be made or accomplished shall be deemed made or accomplished, upon actual delivery thereof to the designated recipient, or three days after deposit thereof in the United States mail, registered, return receipt requested and postage prepaid, addressed, if to the Optionee, at the address set forth below and, if to the Company, to the executive offices of the Company at Post Office Box 17465, Greenville, South Carolina 29606.
(f) This Agreement may not be modified except in writing executed by each of the parties hereto.
IN WITNESS WHEREOF, the Board of Directors of the Company has caused this Stock Option Agreement to be executed on behalf of the Company and the Company’s seal to be affixed hereto and attested by the Secretary or an Assistant Secretary of the Company, and the Optionee has executed this Stock Option Agreement under seal, all as of the day and year first above written.
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SOUTHERN FIRST BANCSHARES, INC.
By: __________________________________
Name: R. Arthur Seaver, Jr.
Title: Chief Executive Officer
OPTIONEE
By: ________________________________
Name: _______________________________
Address:______________________________
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Exhibit 4.7
SOUTHERN FIRST BANCSHARES, INC.
2010 STOCK INCENTIVE PLAN
Form of Restricted Stock Award Agreement
SOUTHERN FIRST BANCSHARES, INC.
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT (the “Agreement”) is entered into as of this ___ day of _________, 20___, between Southern First Bancshares, Inc., a South Carolina corporation (the “Company”), and ____________________ (the “Grantee”).
Background:
A. The 2010 Southern First Bancshares, Inc. Stock Incentive Plan (the “Plan”) was approved and adopted by the Company’s shareholders at the annual meeting of shareholders on May 18, 2010.
B. The Committee of the Company’s Board of Directors duly approved the grant of restricted shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), to the Grantee on the terms described in this Agreement, and in consideration of the issuance of such restricted shares, the Grantee intends to remain in the employ of the Company.
NOW, THEREFORE, as an employment incentive and to encourage stock ownership, and also in consideration of the premises and the mutual covenants contained herein, the Company and the Grantee agree as follows.
1. RESTRICTED STOCK.
1.1 Grant of Restricted Stock.
(a) The Company hereby grants to the Grantee (________) shares of Common Stock (the “Restricted Stock”), subject to the restrictions described in Paragraph 1.2 of this Agreement. As the restrictions set forth in Paragraph 1.2 of this Agreement lapse in accordance with the terms of this Agreement as to all or a portion of the Restricted Stock, such shares shall no longer be considered Restricted Stock for purposes of this Agreement.
(b) The Company hereby directs that a stock certificate or certificates representing the shares of the Restricted Stock shall be registered in the name of and issued to the Grantee or that book entries shall be made with respect thereto. Such stock certificate or certificates or book entries shall be subject to such stop-transfer orders and other restrictions as the Company may deem necessary or advisable under applicable federal and state securities laws, and the Company may cause legends to be placed on any such certificate or certificates to make appropriate reference to such restrictions.
(c) The Company shall not be required to deliver any certificate for shares of Restricted Stock granted under this Plan until all of the following conditions have been fulfilled:
(i) the admission of such shares to listing on all stock exchanges on which the Common Stock is then listed (if required);
(ii) the completion of any registration or other qualification of such shares that the Company deems necessary or advisable under any federal or state law or under the rulings or regulations of the SEC or any other governmental regulatory body; and
(iii) the obtaining of any approval or other clearance from any federal or state governmental agency or body that the Company determines to be necessary or advisable.
1.2 Restrictions.
(a) The Grantee shall have all rights and privileges of a shareholder as to the Restricted Stock, including the right to vote, except that, subject to Paragraph 1.3(b) hereof, the following restrictions shall apply:
(i) None of the Restricted Stock may be sold, transferred, assigned, pledged or otherwise encumbered or disposed of during the Restricted Period (as defined below) applicable to such shares, except pursuant to rules adopted by the Company (if any).
(ii) Unless this subparagraph 1.2(a)(ii) is crossed out and initialed and other substitute provisions are added and initialed in the blank space below, the right to dividends on the Restricted Stock shall be treated as follows. Except as otherwise provided in this Agreement or the Plan, the Grantee shall, during the Restricted Period, have all of the other rights of a shareholder with respect to outstanding shares of unvested Restricted Stock awarded to the Grantee including, but not limited to, the right to receive such cash dividends, if any, as may be declared on such shares from time to time, and the right to vote (in person or by proxy) such shares at any meeting of shareholders of the Company; provided that, any stock dividends declared or stock distributions issued with respect to unvested Restricted Stock shall be subject to the same terms and conditions and risks of forfeiture as the unvested Restricted Stock with respect to which such stock dividends or distributions are issued.
(b) Any attempt to dispose of Restricted Stock in a manner contrary to the restrictions set forth in this Agreement shall be ineffective.
1.3 Restricted Period.
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(a) Unless this subparagraph 1.3(a) is crossed out and initialed and other substitute provisions are added and initialed in the blank space on the following page, the restrictions set forth in Paragraph 1.2 shall apply to the shares of Restricted Stock as follows:
[ Insert vesting/restriction provisions .]
Any date on which such restrictions lapse with respect to applicable shares of Restricted Stock being referred to in this Agreement as a “Restriction Termination Date,” with the period from issuance of the Restricted Stock to the Restriction Termination Date with respect to applicable shares of Restricted Stock being referred to in this Agreement as a “Restricted Period.” Any periods of leave without pay taken by the Grantee prior to an applicable Restriction Termination Date shall not be treated as credited service for purposes of vesting the stock, and the applicable Restricted Period shall be extended by the length of such periods of leave unless the Company, in its sole discretion, finds that a waiver of the extension would be in the best interests of the Company.
(b) Notwithstanding Paragraph 1.2, the Administrator may, in its sole discretion, when it finds that a waiver would be in the best interests of the Company, waive in whole or in part any or all remaining restrictions with respect to the Restricted Stock.
(c) Nothing in this Agreement shall preclude the Grantee from exchanging any Restricted Stock for any other shares of Common Stock that are similarly restricted.
1.4 Forfeiture. If the Grantee’s employment with the Company or any Subsidiary of the Company employing the Grantee on the date of this Agreement shall terminate for any reason during the Restricted Period with respect to applicable shares of Restricted Stock, all rights of the Grantee to the then remaining Restricted Stock (and, if applicable, any stock dividends or other stock distributions with respect to such Restricted Stock) shall terminate and be forfeited (except (i) as provided in Paragraph 1.3(b) or as otherwise determined by the Company pursuant to Paragraph 1.3(b), or (ii) if the Grantee is then employed by the company or any Subsidiary of the Company, in which event this Agreement shall remain in effect).
1.5 Withholding. The Grantee may elect, no later than the date (the "withholding date") as of which all or the applicable portion of the Restricted Stock vests (such that the value of such vested shares becomes includible in the gross income of the Grantee for Federal income tax purposes), to have the Company withhold vested whole shares of Common Stock deliverable upon vesting of the Restricted Stock to satisfy (in whole or in part) the amount, if any, that the Company or any Subsidiary is required to withhold for taxes with respect to such event; provided, however, that the amount of shares of Common Stock so withheld shall have a Fair Market Value (as of the withholding date) that is not in excess of the amount determined by the Company to be equal to the applicable minimum statutorily required withholding tax payments. Any such election shall be irrevocable.
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To the extent that the Grantee does not make such an election, or such election does not fully satisfy such minimum statutorily required withholding tax payments, then (x) the Company may withhold vested whole shares of Common Stock deliverable upon vesting of the Restricted Stock to satisfy (in whole or in part) the amount, if any, that the Company or any Subsidiary is required to withhold for taxes; provided, however, that the amount of shares of Common Stock so withheld shall have a Fair Market Value (as of the withholding date) that is not in excess of the amount determined by the Company to be equal to the applicable minimum statutorily required withholding tax payments, and (y) the Company shall have the right to deduct from any payment of any kind otherwise due to the Grantee up to an amount equal to any federal, state or local taxes of any kind required by law to be withheld in connection with the vesting of such shares of Restricted Stock (not to exceed the amount determined by the Company to be the applicable minimum statutorily required withholding tax payments). Upon request, the Grantee shall reimburse the Company for any taxes that the Company withholds that are not otherwise reimbursed as contemplated above in this Section 1.5.
1.6 2010 Southern First Bancshares, Inc. Stock Incentive Plan. The Grantee hereby agrees and acknowledges that the Restricted Stock and this Agreement shall be subject to the Plan, which is incorporated into this Agreement by reference in its entirety. To the extent the terms under this Agreement conflict with the terms of the Plan, the terms of the Plan shall control. Capitalized terms used but not otherwise defined in this Agreement have the meanings ascribed to them in the Plan.
2. NOTICES.
All notices or communications hereunder shall be in writing and addressed as follows:
To the Company:
Southern First Bancshares, Inc.
100 Verdae Boulevard
Greenville, South Carolina 29607
Attn: Corporate Secretary
To the Grantee:
To the last known address of the Grantee as appearing in the Grantee’s personnel records as maintained by the Company.
3. ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit of the heirs and representatives of the Grantee and the assigns and successors of the Company, but neither this Agreement nor any rights hereunder shall be assignable or otherwise subject to hypothecation by the Grantee except as permitted in the Plan.
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4. ENTIRE AGREEMENT; AMENDMENT; TERMINATION.
Except as provided in Section 1.6 with respect to the Plan, this Agreement represents the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior written or oral understandings and agreements. Subject to the provisions of the Plan, this Agreement may be amended or terminated at any time by written agreement of the parties to or as provided herein.
5. GOVERNING LAW.
This Agreement and its validity, interpretation, performance and enforcement shall be governed by the substantive laws of the State of South Carolina without regard to any rules regarding conflict-of-law or choice-of-law.
6. NO RIGHT TO CONTINUED EMPLOYMENT; EFFECT ON OTHER PLANS.
This Agreement shall not, of itself, confer upon the Grantee any right with respect to continuance of employment by the Company, nor shall it interfere in any way with the right of the Company to terminate the Grantee’s employment at any time. Income realized by the Grantee pursuant to this Agreement shall not be included in the Grantee’s earnings for the purpose of any benefit plan of the entity in which the Grantee may be enrolled or for which the Grantee may become eligible unless otherwise specifically provided for in such plan.
IN WITNESS HEREOF, the Company and the Grantee have duly executed this Agreement, as of the date written on the first page of this Agreement.
SOUTHERN FIRST BANCSHARES, INC.
By: ________________________________
Name: ______________________________
Title: _______________________________
GRANTEE
Signature:_____________________________
Please Print Name:
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Exhibit 5.1
Nelson
Mullins
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Nelson Mullins Riley & Scarborough LLP Attorneys and Counselors at Law 104 South Main Street / Ninth Floor / Greenville, SC 29601 Tel: 864.250.2300 Fax: 864.250.2332 www.nelsonmullins.com |
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Southern First Bancshares, Inc.
100 Verdae Boulevard
Greenville, South Carolina 29607
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Southern First Bancshares, Inc. (the “Company”) in connection with the proposed registration by the Company of up to 335,000 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), issuable under the Southern First Bancshares, Inc. 2010 Equity Incentive Plan (the “Plan”), pursuant to a Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”) (such Registration Statement, as amended or supplemented, is hereinafter referred to as the “Registration Statement”). We have been advised that the Plan was adopted and approved by the shareholders of the Company at the 2010 annual meeting.
The opinions contained in this letter (herein called “our opinions”) are based exclusively upon the South Carolina Business Corporation Act, as now constituted. We express no opinion as to the applicability of, compliance with, or effect of any other law or governmental requirement with respect to the Company.
For purposes of this opinion, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal capacity of all natural persons, the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto and the due authorization, execution and delivery of all documents by the parties thereto. We have not independently established or verified any facts relevant to the opinion expressed herein, but have relied upon (i) statements and representations of officers and other representatives of the Company, including its general counsel, and others and (ii) factual information we have obtained from such other sources as we have deemed reasonable.
For purposes of this opinion, we have relied without any independent verification upon factual information supplied to us by the Company. We have assumed without investigation that there has been no relevant change or development between the dates as of which the information cited in the preceding sentences was given and the date of this letter and that the information upon which we have relied is accurate and does not omit disclosure necessary to prevent such information from being misleading.
Atlanta • Boston • Charleston • Charlotte • Columbia • Greenville • Myrtle Beach • Raleigh • Washington, DC • Winston-Salem
Based upon and subject to the foregoing, we hereby advise you that in our opinion, each share of Common Stock registered under the Registration Statement and issuable under the Plan, when issued as authorized by the Company in accordance with the Plan, and when certificates representing such shares have been duly counter-signed by the Company’s transfer agent and registered by its registrar, upon receipt of the consideration to be received therefor (and provide that the board of directors shall have determined that such consideration is adequate), will be validly issued, fully paid and non-assessable.
Our opinion expressed above is subject to the qualifications that we express no opinion as to the applicability of, compliance with, or effect of (i) any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other similar law affecting the enforcement of creditors’ rights generally; (ii) general principals of equity (regardless of whether enforcement is considered in a proceeding in equity or at law); (iii) public policy considerations which may limit the rights of parties to
obtain certain remedies; and (iv) any laws except the South Carolina Business Corporation Act. Our advice on any legal issue addressed in this letter represents our opinion as to how that issue would be resolved were it to be considered by the highest court in the jurisdiction which enacted such law. The manner in which any particular issue would be treated in any actual court case would depend in part on facts and circumstances particular to the case, and this letter is not intended to guarantee the outcome of any legal dispute which may arise in the future.
This opinion is being rendered to be effective as of the effective date of the Registration Statement, and we hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or “Blue Sky” laws of the various states to the issuance and sale of each share of Common Stock registered under the Registration Statement.
This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. We assume no obligation to revise or supplement this opinion should the present South Carolina Business Corporation Act be changed by legislative action, judicial decision or otherwise, should there be factual developments which might affect any matters or opinions set forth herein or for any other reason. This opinion is furnished to you in connection with the filing of the Registration Statement and is not to be used, circulated, quoted or otherwise relied upon for any other purpose.
Very Truly Yours,
/s/ Nelson Mullins Riley & Scarborough LLP
NELSON MULLINS RILEY & SCARBOROUGH LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors
Southern First Bancshares, Inc. and Subsidiary
We consent to the incorporation by reference in the Registration Statement on Form S-8 of our report dated March 2, 2010 related to the consolidated balance sheet of Southern First Bancshares, Inc. and Subsidiary as of December 31, 2009 and the related consolidated statements of income, shareholders' equity and comprehensive income and cash flows for the year then ended, which report appears in the December 31, 2009 Annual Report on 10-K.
/s/ Elliott Davis, LLC
Greenville, South Carolina
August 12, 2010