As filed with the Securities and Exchange Commission on June 17, 2014.
Registration No. 333-___________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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 of
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(I.R.S. Employer
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incorporation or organization)
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Identification No.)
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850 Shades Creek Parkway, Suite 200
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Birmingham, Alabama
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35209
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(Address of Principal Executive Offices)
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(Zip Code)
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ServisFirst Bancshares, Inc.
2009 Amended and Restated Stock Incentive
Plan
(Full title of the plan)
___________________
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)
With a copy to:
Laura P. Washburn
Bradley Arant Boult Cummings LLP
1819 5
th
Avenue North
Birmingham, Alabama 35203
(205) 521-8000
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):
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Large accelerated filer
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Accelerated filer
x
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Non-accelerated filer
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Smaller reporting company
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
Title of
Securities to
be Registered
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Amount to be
Registered(1)
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Proposed
Maximum Offering
Price per
Share(1)(2)
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Proposed Maximum
Aggregate Offering
Price(2)
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Amount of
Registration
Fee(2)
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Common Stock, $0.001 par value (1)(2)
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500,000 shares
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$
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86.48
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$
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43,240,000
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$
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5,569.32
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(1)
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In addition to the shares set forth in the table, pursuant to Rule 416(a) under the Securities
Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover an indeterminable
number of shares of common stock issuable under the Plan to prevent dilution resulting from stock splits, stock dividends, recapitalizations
or similar transactions effected without the receipt of consideration that results in an increase in the number of shares of the
Registrant’s outstanding Common Stock.
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(2)
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Estimated pursuant to Rule 457(c) and Rule 457(h) under the Securities Act solely for the purpose
of computing the registration fee and based upon the average of the high and low prices per share of the Common Stock reported
on The Nasdaq Global Market on June 13, 2014.
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PART I
INTRODUCTION
This Registration Statement on Form S-8
is filed by ServisFirst Bancshares, Inc., a Delaware corporation (the “Registrant” or the “Company”), relating
to an additional 500,000 shares of the Company’s Common Stock, par value $0.001 per share (the “Common Stock”),
to be issued under the Company’s 2009 Amended and Restated Stock Incentive Plan (the “2009 Plan”). The Company
previously filed a Form S-8 (File No. 333-170507) registering 425,000 shares of Common Stock under the 2009 Plan on November 10,
2010 (the “Prior Registration Statement”).
As discussed more fully in the Company’s
definitive proxy materials for the Company’s 2014 Annual Meeting of Stockholders, the 500,000 shares of Common Stock registered
on this Form S-8 will be added to the reserve of shares available under the 2009 Plan pursuant to the amendment and restatement
thereof.
This Registration Statement relates to
securities of the same class as that to which the Prior Registration Statement relates, and is submitted in accordance with General
Instruction E to Form S-8 regarding Registration of Additional Securities. Pursuant to Instruction E of Form S-8, the contents
of the Prior Registration Statement are incorporated herein by reference and made part of this Registration Statement, except as
amended hereby.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The Company hereby incorporates
by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission
(the “Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”):
(1) The
Company’s Annual Report on Form 10-K/A for the fiscal year ended December 31, 2013, filed with the Commission on March 17,
2014.
(2) The
Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2014, filed with the Commission on April 25, 2014.
(3) The
Company’s Current Reports on Form 8-K filed with the Commission on March 20, 2014, April 4, 2014, April 28, 2014, May 14,
2014 and May 19, 2014.
(4) The
description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A (File
No. 001-36452) filed with the Commission on May 9, 2014, pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.
Notwithstanding the
foregoing, the Company is not incorporating any document or information deemed to have been furnished and not filed in accordance
with the Commission’s rules.
All documents subsequently
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 in this Registration Statement and to be part hereof from the date of the
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 the 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.
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Item 6.
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Indemnification of Directors and Officers.
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Under the provisions
of Section 145 of the Delaware General Corporation Law, the Registrant may indemnify any present or former officer or director
against expenses arising out of legal proceedings in which the director or officer becomes involved by reason of being a director
or officer if the director or officer is successful in the defense of such proceedings. Section 145 also provides that the Registrant
may indemnify a director or officer in connection with a proceeding in which he is not successful in defending if it is determined
that he acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the Registrant
or, in the case of a criminal action, if it is determined that he had no reasonable cause to believe his conduct was unlawful.
Liabilities for which a director or officer may be indemnified include amounts paid in satisfaction of settlements, judgments,
fines and other expenses (including attorneys’ fees incurred in connection with such proceedings).
The Registrant’s
bylaws provide for indemnification of directors and officers of the registrant to the full extent permitted by applicable law.
In accordance with the Delaware General Corporation Law, the Registrant’s certificate of incorporation, as amended, contains
a provision to limit the personal liability of the directors of the registrant for violations of their fiduciary duty. This provision
eliminates each director’s liability to the Registrant or its stockholders for monetary damages except (i) for breach of
the director’s duty of loyalty to the Registrant 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 Delaware General Corporation Law providing
for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions or (iv) for any transaction
from which a director derived an improper personal benefit. The effect of this provision is to eliminate the personal liability
of directors for monetary damages for actions involving a breach of their fiduciary duty.
The above is a general
summary of certain indemnity provisions of the Delaware General Corporation Law and is subject, in all cases, to the specific and
detailed provisions of the sections referenced herein.
The Registrant maintains
directors’ and officers’ liability insurance against any actual or alleged error, misstatement, misleading statement,
act, omission, neglect or breach of duty by any director or officer of itself or any direct or indirect subsidiary, excluding certain
matters including fraudulent, dishonest or criminal acts or self-dealing.
Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling us under
any of the foregoing provisions, in the opinion of the Securities and Exchange Commission, that indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable. Finally, the Registrant’s ability to provide indemnification
to its directors and officers is limited by federal banking laws and regulations, including, but not limited to, 12 U.S.C. 1828(k).
The following Exhibits
are filed as a part of the Registration Statement:
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4.1
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Certificate of Incorporation of ServisFirst Bancshares, Inc., as amended (restated for Commission
filing purposes only), incorporated by reference to Exhibit 3.01 to the Registrant’s Quarterly Report on Form 10-Q filed
on October 31, 2012.
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4.2
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Bylaws of ServisFirst Bancshares, Inc., as amended (restated for Commission filing purposes only),
incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on April 4, 2014.
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4.3
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Form of Stock Option Award Agreement.
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4.4
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Form of Restricted Stock Award Agreement.
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5.1
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Opinion of Bradley Arant Boult Cummings LLP.
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23.1
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Consent of KPMG LLP.
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23.2
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Consent of Bradley Arant Boult Cummings LLP (contained in Exhibit 5.1).
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24
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Powers of Attorney (contained on signature page hereto).
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SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, as amended, 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 June 17, 2014.
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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 PERSONS BY
THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Thomas A. Broughton, III and William
M. Foshee, and each of them, as his true and lawful attorney in fact and agent with full power of substitution, for him in any
and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (including post-effective amendments),
and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney in fact, proxy 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 for all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney in fact, proxy and agent, or his substitute, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities
and on the dates indicated.
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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, Chief Executive
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June 17, 2014
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Thomas A. Broughton, III
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Officer and Director
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(Principal Executive Officer)
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/s/ William M. Foshee
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Vice President, Secretary, Chief Financial
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June 17, 2014
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William M. Foshee
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Officer and Treasurer
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(Principal Financial Officer and
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Principal Accounting Officer)
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/s/ Stanley M. Brock
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Chairman of the Board and Director
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June 17, 2014
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Stanley M. Brock
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/s/ J. Richard Cashio
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Director
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June 17, 2014
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J. Richard Cashio
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/s/ James J. Filler
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Director
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June 17, 2014
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James J. Filler
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/s/ Michael D. Fuller
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Director
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June 17, 2014
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Michael D. Fuller
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/s/ Hatton C.V. Smith
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Director
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June 17, 2014
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Hatton C.V. Smith
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INDEX TO EXHIBITS
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Exhibit Number
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Description
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4.3
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Form of Stock Option Award Agreement.
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4.4
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Form of Restricted Stock Award Agreement.
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5.1
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Opinion of Bradley Arant Boult Cummings LLP.
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23.1
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Consent of KPMG LLP.
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Powers of Attorney (contained on signature page hereto).
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NONQUALIFIED STOCK OPTION AWARD
PURSUANT TO THE SERVISFIRST BANCSHARES,
INC.
AMENDED AND RESTATED 2009 STOCK INCENTIVE
PLAN
THIS AWARD (the “Award”)
is made as of the Grant Date by ServisFirst Bancshares, Inc., a Delaware corporation, (the “Company”) to the Optionee
designated below pursuant to the ServisFirst Bancshares, Inc. Amended and Restated 2009 Stock Incentive Plan (the “Plan”).
Upon and subject to
the restrictions, terms and conditions set forth in the Plan, the Company hereby awards as of the Grant Date to Optionee a Nonqualified
Stock Option (the “Option”), as described below, to purchase the Option shares. The Option is governed by the terms
of this Award and the Plan.
A. Optionee: _________________________.
B. Grant
Date: ________________________.
C. Type of Option: Nonqualified
Stock Option.
D. Option Shares: All or any
part of _______ shares of the Company's $.001 par value common stock (the “Common Stock”), subject to adjustment as
provided in the Plan.
E. Exercise Price: $ _______
per share, subject to adjustment as provided in the Plan. The Exercise Price is, in the judgment of the Committee, not less than
100% of the Fair Market Value of a share of Common Stock on the Grant Date.
F. Vesting Schedule: The Option
shares shall become vested in accordance with Schedule 1 hereto.
G. Acceleration of Vesting:
Unvested Options may become vested before the time at which such Options would normally become vested by the passage of time –
that is, the vesting may accelerate. The instances in which Option shares accelerate are detailed in Schedule 1 hereto.
H. Option Period: The Option
may be exercised only during the Option Period that commences on the Grant Date and ends, subject to earlier termination as provided
in the Plan, on the tenth (10
th
) anniversary of the Grant Date.
Note that other limitations to exercising the Option,
as described in the Plan, may apply.
I. Exercise: Subject to the
provisions of the Plan, the Option may be exercised with respect to all or a portion of the vested Option shares at any time during
the Option Period by delivery to the Company, at its principal place of business, of:
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a.
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a written notice of exercise in substantially the form attached hereto as Exhibit 1, which shall
be actually delivered to the Company no earlier than thirty (30) days and no later than ten (10) days prior to the date upon which
the Optionee desires to exercise all or any portion of the Option;
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b.
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payment to the Company of the Exercise Price multiplied by the number of Option shares being purchased
(the “Purchase Price”); and
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c.
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if not delivered previously, a written Notice of Withholding Election in substantially the form
attached hereto as Exhibit 2.
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J. Capitalized Terms. Capitalized
terms not otherwise defined in this Award will have the meaning set forth in the Plan.
[Signature Page Follows]
IN WITNESS WHEREOF,
the Company has executed and sealed this Award as of the Grant Date set forth above.
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ServisFirst Bancshares, Inc.
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Optionee
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By:
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Signature:
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Its:
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Name:
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EXHIBIT 1
NOTICE OF EXERCISE OF
STOCK OPTION TO PURCHASE
COMMON STOCK OF
SERVISFIRST BANCSHARES, INC.
ServisFirst Bancshares, Inc.
__________________________
__________________________
Attn: Chief Executive Officer
Re: Exercise of Nonqualified Stock Option
Gentlemen:
Subject to acceptance hereof by ServisFirst
Bancshares, Inc., a Delaware corporation, (the “Company”) and pursuant to the provisions of the ServisFirst Bancshares,
Inc. Amended and Restated 2009 Stock Incentive Plan (the “Plan”), I hereby give notice of my election to exercise options
granted to me to purchase ___________ shares of Common Stock of the Company under the Nonqualified Stock Option Award (the “Award”)
dated as of _________________. The purchase shall take place as of _________________ (the “Exercise Date”).
On or before the Exercise Date, I will
pay the applicable Purchase Price as follows:
¨
by delivery of cash or a certified check in the amount of $___________ for the full Purchase Price payable to the order of ServisFirst
Bancshares, Inc.
¨
by delivery of shares of the Common Stock of the Company owned by me and acceptable to the Committee having an aggregate Fair Market
Value (valued at the date of exercise) that is equal to the Purchase Price.
The required federal, state and local income
tax withholding obligations, if any, on the exercise of the Award shall also be paid on or before the Exercise Date in cash or
with previously owned shares of Common Stock, as provided in the Award, or in the manner provided in the Withholding Election previously
tendered or to be tendered to the Company no later than the Exercise Date.
As soon as the stock certificate is registered
in my name, please deliver it to me at the above address.
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Very truly yours,
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Signature
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Number of Shares Exercised:
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Number of Shares Remaining:
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Date:
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AGREED TO AND ACCEPTED:
ServisFirst
Bancshares, Inc.
EXHIBIT 2
NOTICE OF WITHHOLDING ELECTION
SERVISFIRST BANCSHARES, INC.
ServisFirst Bancshares, Inc.
__________________________
__________________________
Attn: Chief Executive Officer
RE: Withholding Election
This election relates to the Option identified
in Paragraph 3 below. I hereby certify that:
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1.
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My correct name and social security number and my current address are set forth at the end of this
document.
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2.
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I am (check one, whichever is applicable).
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¨
the original recipient of the Option.
¨
the legal representative of the estate of the original recipient of the Option.
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3.
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The Option to which this election relates was issued under the ServisFirst Bancshares, Inc. Amended
and Restated 2009 Stock Incentive Plan (the “Plan”) in the name of _____________________ for the purchase of a total
of _________ shares of Common Stock of the Company. This election relates to shares of Common Stock issuable upon exercise of the
Option, provided that the numbers set forth above shall be deemed changed as appropriate to reflect the applicable Plan provisions.
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4.
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In connection with any exercise of the Option with respect to the Common Stock, I hereby elect:
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to remit to the Company an amount, payable in cash or by check, sufficient to satisfy federal, state, and local, if any, taxes
arising from the exercise.
¨
to have certain of the shares issuable pursuant to the exercise withheld by the Company for the purpose of having the value of
the shares applied to pay federal, state, and local, if any, taxes arising from the exercise.
¨
to
tender shares held by me for a period of at least six (6) months prior to the exercise of the Option for the purpose of having
the value of the shares applied to pay such taxes.
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5.
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The shares to be withheld or tendered, as applicable, shall have, as of the Tax Date, a Fair Market
Value equal to the statutory tax withholding requirement under federal, state, and local law in connection with the exercise.
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6.
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This Withholding Election is made no later than the Tax Date and is otherwise timely made pursuant
to the Plan.
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7.
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I understand that this Withholding Election may not be revised, amended or revoked by me.
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8.
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I further understand that, if applicable, the Company shall withhold from the shares a whole number
of shares having a value sufficient to pay federal, state and local, if any, taxes arising from the exercise.
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9.
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The Plan has been made available to me by the Company. I have read and understand the Plan and
I have no reason to believe that any of the conditions to the making of this Withholding Election have not been met.
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10.
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Capitalized terms used in this Notice of Withholding Election without definition shall have the
meanings given to them in the Plan.
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Signature
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Name (Printed)
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Social Security Number
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SCHEDULE 1
VESTING SCHEDULE
NONQUALIFIED STOCK OPTION AWARD
ISSUED PURSUANT TO THE
SERVISFIRST BANCSHARES, INC.
AMENDED AND RESTATED 2009 STOCK INCENTIVE
PLAN
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A.
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The Option shares shall become vested Option shares following completion of the years of service
as an employee of the Company or any Subsidiary as indicated in the schedule below.
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Number of Option Shares
which are Vested Shares
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Years of Service
after the Grant Date
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B.
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Notwithstanding Part A, accelerated vesting may apply in the following circumstances:
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Event
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Condition for Acceleration
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Effective Date of Acceleration
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Death
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If you die.
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Death
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Disability
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If your employment is terminated due to your Disability as defined in the Plan.
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Your termination date
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Change in Control
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A Change in Control, as defined by the Plan, occurs.
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The date of the Change in Control
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C.
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For purposes of the Vesting Schedule, Optionee shall be granted a year of service for each twelve-consecutive-month
period following the Grant Date and during which Optionee continues, at all times, as an employee of the Company or any Subsidiary.
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EXHIBIT 4.4
SERVISFIRST BANCSHARES, INC.
AMENDED AND RESTATED 2009 STOCK INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT is made
and entered into effective as of ______________ (the “
Grant Date
”), by and between ServisFirst Bancshares, Inc.,
a Delaware corporation (the “
Company
”), and ______________ (the “
Grantee
”).
W I T N E S S E T H:
WHEREAS, the Company
maintains the ServisFirst Bancshares, Inc. Amended and Restated 2009 Stock Incentive Plan (the “
Plan
”), and
the Grantee has been selected by the Compensation Committee to receive a grant of Restricted Stock under the Plan;
WHEREAS, all terms
not defined herein shall have the meaning set forth in the Plan.
NOW, THEREFORE, IT
IS AGREED, by and between the Company and the Grantee, as follows:
1. Award of
Restricted Stock
1.1 The Company hereby
grants to the Grantee as of the date of this Agreement an award of ______________ (______________) shares of restricted Common
Stock (“
Restricted Stock
”), for a purchase price of $0.00, subject to, and in accordance with, the restrictions,
terms and conditions set forth in this Agreement and in the Plan.
1.2 This Award is
conditioned on the Grantee’s execution of this Agreement and the delivery of the stock power described in Section 3
below. If such documentation is not executed by the Grantee and returned to the Company within one week of the Grant Date, it may
be canceled by the Compensation Committee resulting in the immediate forfeiture of all Restricted Stock.
2. Restrictions;
Vesting
2.1 Subject to Section
2.2 below if the Grantee remains employed by the Company, the Grantee shall become vested in the Restricted Stock as follows:
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Date
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Percent Vested
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Cumulative Vesting
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1
st
Anniversary of Grant Date
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%
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%
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2
nd
Anniversary of Grant Date
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%
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%
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3
rd
Anniversary of Grant Date
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%
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%
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4
th
Anniversary of Grant Date
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%
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%
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5
th
Anniversary of Grant Date
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%
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%
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2.2 In accordance
with Section 10(c) of the Plan, in the event Grantee’s employment terminates as a result of Grantee’s death (other
than as a result of suicide), Disability or Change in Control, Grantee shall become fully vested in the Restricted Stock. In the
event Grantee’s employment terminates for any other reason (including as a result of suicide), all unvested Restricted Stock
shall be forfeited.
2.3 Notwithstanding
the foregoing, in the event that the above vesting schedule results in the vesting of any fractional shares of Stock, such fractional
shares shall not be deemed vested
hereunder but
shall vest and become nonforfeitable when such fractional shares aggregate whole shares of Common Stock.
3. Certificates
Certificates evidencing
the Restricted Stock shall be issued by the Company and shall be registered in the Grantee’s name on the stock transfer books
of the Company promptly after the date hereof, but such certificates shall remain in the physical custody of the Company or its
designee at all times prior to the vesting of such Restricted Stock pursuant to Section 2. As a condition to the receipt of
this Restricted Stock Award, the Grantee shall deliver to the Company a stock power, duly endorsed in blank, relating to the Restricted
Stock. No certificates shall be issued for fractional shares of Common Stock.
4. Stock; Dividends;
Voting
4.1 The Grantee shall
be the record owner of the Restricted Stock until or unless such Restricted Stock is forfeited pursuant to Section 2.2 hereof,
and as record owner shall be entitled to all rights of a common stockholder of the Company, including without limitation, voting
rights with respect to the Restricted Stock (subject to any voting rights restrictions set forth in the Stock Transfer Agreement),
and the Grantee shall receive, when paid, any dividends on all of the Restricted Stock granted hereunder as to which the Grantee
is the record holder on the applicable record date;
provided
that the Restricted Stock shall be subject to the limitations
on transfer and encumbrance set forth in Section 5.
4.2 In the event of
any adjustments in outstanding shares of Common Stock as provided in Section 3 of the Plan, the number and class of shares of Restricted
Stock or other securities to which the Grantee shall be entitled pursuant to this Agreement shall be appropriately adjusted or
changed to reflect such change, provided that any such additional Restricted Stock or additional or different shares or securities
shall remain subject to the restrictions in this Agreement.
4.3 The Grantee represents
and warrants that he is acquiring the Restricted Stock under this Agreement for investment purposes only, and not with a view to
distribution thereof. The Grantee is aware that the Restricted Stock may not be registered under the federal or any state securities
laws and that, in addition to the other restrictions on the Restricted Stock, the Restricted Stock will not be able to be transferred
unless an exemption from registration is available. By making this award of Restricted Stock, the Company is not undertaking any
obligation to register the Restricted Stock under any federal or state securities laws.
5. Nontransferability
Unless the Compensation
Committee specifically determines otherwise, this award of Restricted Stock is personal to the Grantee, and the Restricted Stock
may not be sold, assigned, transferred, pledged or otherwise encumbered. Any such purported transfer or assignment shall be null
and void.
6. No Right
to Continued Employment
Nothing in this Agreement
or the Plan shall be interpreted or construed to confer upon the Grantee any right with respect to continuance of employment by
the Company, nor shall this Agreement or the Plan interfere in any way with the right of the Company to terminate at any time the
Grantee’s employment, subject to Grantee’s rights under this Agreement.
7. Taxes and
Withholding
7.1 The Grantee agrees
that, no later than the first to occur of (i) the date as of which the restrictions on the Restricted Stock shall lapse with respect
to all or any of the Restricted Stock covered by this Agreement or (ii) the date required by Section 7.2 below, the Grantee
shall pay to the Company (in cash or to the extent permitted by the Compensation Committee, by tendering Common Stock held by the
Grantee, including shares of Restricted Stock held in escrow that become vested, with a Fair Market Value on the date the Restricted
Stock vests equal to the amount of the Grantee’s statutory tax withholding liability, or to the extent permitted by the Compensation
Committee, a combination thereof) any federal, state or local taxes of any kind required by law to be withheld, if any, with respect
to the Restricted Stock for which the restrictions shall lapse. The Company shall, to the extent permitted by law, have the right
to deduct from any payment of any kind otherwise due to the Grantee any federal, state or local taxes of any kind required by law
to be withheld with respect to the shares of such Restricted Stock.
7.2 The Grantee may
elect, within thirty (30) days of the Grant Date, to include in gross income for federal income tax purposes an amount equal to
the Fair Market Value of the Restricted Stock less the amount, if any, paid by the Grantee (other than by prior services) for the
Restricted Stock granted hereunder pursuant to Section 83(b) of the Code. In connection with any such Section 83(b) election,
the Grantee shall pay to the Company, or make such other arrangements satisfactory to the Compensation Committee to pay to the
Company based on the Fair Market Value of the Restricted Stock on the Grant Date, any federal, state or local taxes required by
law to be withheld with respect to such Restricted Stock at the time of such election. If the Grantee fails to make such payments,
the Company shall, to the extent permitted by law, have the right to deduct from any payment of any kind otherwise due to the Grantee
any federal, state or local taxes required by law to be withheld with respect to such Restricted Stock.
8. Grantee
Bound By The Plan
The Grantee hereby
acknowledges receipt of a copy of the Plan and, except as otherwise provided herein, agrees to be bound by all the terms and provisions
thereof.
9. Modification
of Agreement
This Agreement may
be modified, amended, suspended or terminated, and any terms or conditions may be waived, but only by a written instrument executed
by the parties hereto.
10. Severability
Should any provision
of this Agreement be held by a court of competent jurisdiction to be unenforceable or invalid for any reason, the remaining provisions
of this Agreement shall not be affected by such holding and shall continue in full force in accordance with their terms.
11. Governing
Law
The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of the State of Delaware without giving effect to
the conflicts of laws principles thereof.
12. Successors
in Interest
This Agreement shall
inure to the benefit of, and be binding upon, the Company and its successors and assigns, and upon any person acquiring, whether
by merger, consolidation, reorganization, purchase of stock or assets, or otherwise, all or substantially all of the Company’s
assets and business. This Agreement shall inure to the benefit of the Grantee’s legal representatives. All obligations imposed
upon the Grantee and all rights granted to the Company under this Agreement shall be final, binding and conclusive upon the Grantee’s
heirs, executors, administrators and successors.
13. Resolution
of Disputes
Any dispute or disagreement
that may arise under, or as a result of, or in any way relate to the interpretation, construction or application of this Agreement
shall be determined by the Compensation Committee. Any determination made hereunder shall be final, binding and conclusive on the
Grantee and the Company for all purposes.
14. Securities
Laws
Upon the vesting of
any Restricted Stock, the Grantee will make or enter into such written representations, warranties and agreements as the Compensation
Committee may reasonably request in order to comply with applicable securities law or with this Agreement. Grantee understands
that Rule 144 promulgated under the Securities Act of 1933, as amended, may indefinitely restrict transfer of the Restricted Stock
so long as Grantee remains an “affiliate” of the Company or if “current public information” (as defined
in Rule 144) about the Company is not publicly available.
15. Restrictive
Legends and Stop-Transfer Orders
15.1
Legends
.
To the extent that stock certificate(s) representing unvested Restricted Stock are issued in physical form rather than through
book entry with the Company’s transfer agent, Grantee understands and agrees that the Company will place the legends set
forth below or similar legends on any stock certificate(s) evidencing the Restricted Stock, together with any other legends that
may be required by federal or state securities laws, the Company’s Certificate of Incorporation or Bylaws, any other agreement
between Grantee and the Company or any agreement between Grantee and any third party:
THE SHARES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO CERTAIN RESTRICTIONS ON PUBLIC RESALE AND TRANSFER, AS SET FORTH IN A RESTRICTED STOCK AWARD AGREEMENT BETWEEN THE
ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES. SUCH PUBLIC SALE AND TRANSFER RESTRICTIONS ARE BINDING ON TRANSFEREES OF THESE
SHARES.
The above legend shall be removed at such
time as the Restricted Stock in question is no longer subject to restrictions on public resale and transfer pursuant to this Agreement.
Any legends required by applicable federal or state securities laws shall be removed at such time as such legends are no longer
required. Any legends required by any stock transfer agreement, or any other agreement of similar nature, shall be removed at such
time as such legends are no longer required.
15.2
Stop-Transfer
Instructions
. Grantee agrees that, to ensure compliance with the restrictions imposed by this Agreement, the Company may issue
appropriate “stop-transfer” instructions to its transfer agent, if any, and if the Company transfers its own securities,
it may make appropriate notations to the same effect in its own records.
15.3
Refusal to
Transfer
. The Company will not be required (i) to transfer on its books any shares of Restricted Stock that have been sold
or otherwise transferred in violation of any of the provisions of this Agreement or (ii) to treat as owner of such shares, or to
accord the right to vote or pay dividends to any purchaser or other transferee to whom such shares have been so transferred.
16. Signature
in Counterparts
This Agreement may
be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
[Signature Page Follows.]
IN WITNESS WHEREOF,
the parties have executed this Agreement effective as of the date first above written.
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COMPANY:
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SERVISFIRST BANCSHARES, INC.
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By:
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Its:
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Date:
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GRANTEE:
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Exhibit 5.1
June 17,
2014
ServisFirst Bancshares,
Inc.
850 Shades Crest Parkway, Suite 200
Birmingham, Alabama 35209
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Re:
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ServisFirst Bancshares, Inc.
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Registration Statement on Form S-8
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Ladies and Gentlemen:
In our capacity as
counsel for ServisFirst Bancshares, Inc., a Delaware corporation (the “Company”), we have examined the Registration
Statement on Form S-8 (the “Registration Statement”), in form as proposed to be filed by the Company with the Securities
and Exchange Commission under the provisions of the Securities Act of 1933, as amended (the “Securities Act”), in connection
with the offering by the Company of up to 500,000 shares of the Company’s Common Stock, par value $0.001 per share (the “Shares”),
issuable under the ServisFirst Bancshares, Inc. Amended and Restated 2009 Stock Incentive Plan (the “Plan”).
We
have examined the Plan and the originals, or photostatic or certified copies, of such records of the Company and certificates of
officers of the Company and of public officials and such other documents as we have deemed relevant and necessary as the basis
for the opinions set forth below. We have also made such other investigations as we have deemed relevant and necessary or appropriate
in connection with the opinion hereinafter set forth. In our examination, we have assumed the genuineness of all signatures, the
legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity
to original documents of all documents submitted to us as copies. We have also assumed that there are no agreements or understandings
between or among the Company and any participants in the Plan that would expand, modify or otherwise affect the terms of the Plan
or the respective rights or obligations of the participants thereunder. Finally, we have assumed the accuracy of all other information
provided to us by the Company during the course of our investigations, on which we have relied in issuing the opinion expressed
below.
It is understood that
this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect.
Based upon the foregoing
and in reliance thereon, we are of the opinion that the Shares to be issued by the Company under the Plan have been duly authorized
for issuance and, when issued and delivered in accordance with the terms and conditions of the Plan, will be validly issued, fully
paid and nonassessable.
We hereby consent to
the filing of this opinion with the Securities and Exchange Commission as an Exhibit to the Registration Statement. In giving such
consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Securities and Exchange Commission.
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Yours very truly,
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/s/ Bradley Arant Boult Cummings LLP
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EXHIBIT 23.1
Consent of Independent Registered Public
Accounting Firm
We consent to the incorporation by reference
in the Registration Statement on Form S-8 pertaining to the ServisFirst Bancshares, Inc. 2009 Amended and Restated
Stock Incentive Plan of our reports dated March 7, 2014, with respect to the consolidated balance sheets of ServisFirst Bancshares,
Inc. and subsidiaries as of December 31, 2013 and 2012, and the related consolidated statements of income, comprehensive income,
changes in stockholders’ equity, and cash flows for each of the years in the three-year period ended December 31, 2013, and
the effectiveness of internal control over financial reporting as of December 31, 2013, which reports appear in the Amendment No.
1 to the December 31, 2013 Annual Report on Form 10-K of ServisFirst Bancshares, Inc.
Birmingham, Alabama
June 13, 2014