EXHIBIT
4.8
SERVISFIRST
BANK
8.25%
Subordinated Note due June 1, 2016
THIS
OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION.
THIS
SECURITY IS SUBORDINATED AND JUNIOR IN RIGHT OF PAYMENT UPON ANY LIQUIDATION OF
SERVISFIRST BANK (THE “ISSUER”) AS TO PRINCIPAL, INTEREST AND PREMIUM TO
OBLIGATIONS TO THE ISSUER’S DEPOSITORS AND TO THE ISSUER’S OTHER OBLIGATIONS TO
ITS GENERAL AND SECURED CREDITORS.
THIS
SECURITY IS UNSECURED AS TO THE ISSUER’S ASSETS OR THE ASSETS OF ANY AFFILIATE
OF THE ISSUER, INCLUDING, BUT NOT LIMITED TO, SERVISFIRST BANCSHARES, INC., AND
IS INELIGIBLE AS COLLATERAL FOR A LOAN BY THE ISSUER.
THE
ISSUER SHALL NOT PAY ANY DIVIDENDS OR INTEREST ON THIS SECURITY (IF SUCH
INTEREST IS REQUIRED TO BE PAID ONLY OUT OF NET PROFITS) OR DISTRIBUTE ANY
CAPITAL ASSETS IF IT IS IN DEFAULT IN THE PAYMENT OF ANY ASSESSMENT DUE TO THE
FEDERAL DEPOSIT INSURANCE CORPORATION (THE “FDIC”); PROVIDED, HOWEVER, THAT, IF
SUCH DEFAULT IS DUE TO A DISPUTE BETWEEN THE ISSUER AND THE FDIC OVER THE AMOUNT
OF SUCH ASSESSMENT, SUCH PROHIBITION ON THE PAYMENT OF DIVIDENDS OR INTEREST
SHALL NOT APPLY IF THE ISSUER DEPOSITS SECURITY SATISFACTORY TO THE FDIC FOR
PAYMENT UPON FINAL DETERMINATION OF THE ISSUE.
IF THE
ISSUER BECOMES CRITICALLY UNDERCAPITALIZED, THEN IT IS PROHIBITED, BEGINNING 60
DAYS AFTER BECOMING CRITICALLY UNDERCAPITALIZED, FROM MAKING ANY PAYMENT OF
PRINCIPAL OR INTEREST ON THIS SECURITY UNLESS SUCH PAYMENT IS APPROVED BY THE
FDIC.
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No.
1
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Principal
Amount:
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$5,000,000
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Date
of Issue: June 23, 2009
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ServisFirst
Bank
8.25%
Subordinated Note due June 1, 2016
THIS NOTE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND NEITHER THIS NOTE
NOR ANY INTEREST THEREIN MAY BE TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED
OF WITHOUT (A) REGISTRATION UNDER THAT ACT OR (B) AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED.
1. Payment.
(a) SERVISFIRST BANK, an Alabama
banking corporation (the “Issuer”), for value
received, hereby promises to pay to ALABAMA HOME BUILDERS
SELF INSURERS FUND, a statutory
trust, or its registered assigns (the “Noteholder”), the
principal sum of $5,000,000 on June 1, 2016 (the “Maturity
Date”) and to pay interest thereon at the rate of 8.25% per
annum (computed on the basis of a 360-day year of twelve 30-day months) from the
date of issuance of this 8.25% Subordinated Note due June 1, 2016 (this “Note”) or from the
most recent Interest Payment Date to which interest has been paid or duly
provided, on March 1, June 1, September 1, and December 1 of each year
(each, an “Interest
Payment Date”), commencing September 1, 2009, until the principal
hereof is paid or made available for payment.
(b) Any
payment of principal of or interest on this Note that would otherwise become due
and payable on a day which is not a Business Day shall become due and payable on
the next succeeding Business Day, with the same force and effect as if made on
the scheduled date for payment, and no interest shall accrue in respect of such
payment for the period after such scheduled date. The term “Business
Day” means any day that is not a Saturday or Sunday and that is not
a day on which banks in Birmingham, Alabama or any city where payment is to
be made hereunder are generally authorized or required by law or executive order
to be closed.
2. Optional Redemption. From
and after June 1, 2012, the Issuer may, at its sole option and subject to
obtaining prior approval, if required at the time, of the Federal Deposit
Insurance Corporation (the “FDIC”) or other
applicable bank regulatory authorities (collectively with the FDIC, the “Bank Regulatory
Authorities”), redeem this Note in whole or in part on any Interest
Payment Date at a redemption price of 100% of the principal amount of this Note
(or so much thereof as is being redeemed), plus any accrued but unpaid interest;
provided, however, that any amount called for redemption shall be at least
$50,000 or an integral multiple of $1,000 in excess thereof.
When any
portion of this Note has been called for redemption as provided hereby, such
portion of this Note shall cease to be outstanding and to bear interest from and
after the redemption date, provided that the redemption price, plus any accrued
but unpaid interest, has been paid to the Noteholder.
3. Subordination.
The indebtedness of the Issuer evidenced by this Note, including the
principal and interest on this Note, shall be subordinate and junior in right of
payment to the Issuer’s obligations to its depositors, its obligations under
bankers’ acceptances and letters of credit, and its obligations to its other
creditors, including its obligations to The Federal Reserve Bank of Atlanta and
the FDIC, and any to any rights acquired by the FDIC as a result of loans made
by the FDIC to the Issuer or the purchase or guarantee of any of its assets by
the FDIC, pursuant to the provisions of 12 U.S.C. 1823 (c), (d) or (e), whether
now outstanding or hereafter incurred (except any other obligations which by
their terms rank on a parity with or subordinate to this Note). In the
event of any insolvency, receivership, conservatorship, reorganization,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or any liquidation or winding up of or relating to the Issuer,
whether voluntary or involuntary, all obligations of the Issuer (except any
other obligations which by their terms rank on a parity with or subordinate to
this Note) shall be entitled to be paid in full before any payment shall be made
on account of the principal of or interest on this Note. In the event
of any such proceeding, after payment in full of all sums owing with respect to
such prior obligations, the Noteholder, together with the holders of any
obligations of the Issuer ranking on a parity with this Note, shall be entitled
to be paid from the remaining assets of the Issuer the unpaid principal thereof
and the accrued but unpaid interest thereon before any payment or other
distribution, whether in cash, property or otherwise, shall be made on account
of any capital stock or any obligations of the Issuer ranking junior to this
Note.
Nothing
herein shall impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of and interest on this Note in accordance
with its terms.
4. Consolidation, Merger and
Sale of Assets. The Issuer shall not consolidate with or merge
into another entity or convey, transfer or lease its properties and assets
substantially as an entirety to any person, unless:
(a) the
continuing entity formed by such consolidation or into which the Issuer is
merged or the person which acquires by conveyance or transfer or which leases
the properties and assets of the Issuer substantially as an entirety shall be a
corporation, association or general partnership or other legal entity organized
and existing under the laws of the United States of America, any State thereof
or the District of Columbia and expressly shall assume, by a supplemental
agreement executed and delivered to the Noteholder in form reasonably
satisfactory to the Noteholder, the due and punctual payment of the principal of
and any premium and interest on this Note according to its terms, and the due
and punctual performance of all covenants and conditions hereof on the part of
the Issuer to be performed or observed; and
(b) immediately
after giving effect to such transaction, no Event of Default (as defined
hereinbelow), and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing.
5. Events of Default;
Acceleration If any of the following events shall occur and be
continuing (each, an “Event of
Default”):
(a) the
Issuer shall consent to the appointment of a receiver, liquidator, trustee or
other similar official in any liquidation, insolvency or similar proceeding with
respect to the Issuer or all or substantially all of its property;
or
(b) a
court or other governmental agency or body having jurisdiction in the matter
shall enter a decree or order for the appointment of a receiver, liquidator,
trustee or other similar official in any liquidation, insolvency or similar
proceeding with respect to the Issuer or all or substantially all of the
property of the Issuer, or for the winding up of the affairs or business of the
Issuer, and such decree or order shall have remained in force for 60 days
without being dissolved or stayed;
then, and
in each such case, unless the principal of this Note already shall have become
due and payable, the Noteholder may, by notice in writing to the Issuer, declare
the principal amount of this Note to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable. The Issuer waives demand, presentment for payment, notice of
nonpayment, notice of protest, notice of default, and all other
notices. The Issuer also waives the benefit of any exemptions under
the Constitution and laws of the State of Alabama and the United States of
America that are not specifically preserved herein.
Promptly
after the occurrence of an Event of Default, the Issuer shall mail to the
Noteholder, at its address shown on the Issuer’s records, written notice of such
Event of Default, unless such Event of Default shall have been cured or waived
before the giving of such notice.
THIS NOTE
MAY NOT BE REPAID PRIOR TO THE MATURITY DATE, WHETHER PURSUANT TO AN
ACCELERATION UPON AN EVENT OF DEFAULT OR OTHERWISE, WITHOUT THE PRIOR APPROVAL
OF THE FDIC AND ANY OTHER REQUIRED APPROVALS BY BANK REGULATORY
AUTHORITIES.
6. Failure to Make
Payment. In the event of the Issuer’s failure to make any
payment of principal of or interest on this Note (and, in the case of any
payment of interest, such failure to pay shall have continued for 30 days), the
Issuer will, upon demand of the Noteholder, pay to such Noteholder the
whole amount then due and payable on this Note for principal and interest
(without acceleration), with interest on the overdue principal and interest at
the rate borne by this Note (the “Default Rate”), to
the extent permitted by applicable law. If the Issuer fails to pay
such amount upon such demand, the Noteholder may, among other things, institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Issuer and collect the amounts adjudged or decreed to be payable in
the manner provided by law out of the property of the Issuer. The
Issuer agrees to pay all costs, expenses and attorneys’ fees actually and
reasonably incurred by the Noteholder in connection with the enforcement of the
payment of this Note.
7. Payment
Procedures. Payment of the principal and interest payable on
the Maturity Date will be made by wire transfer in immediately available funds
to a bank account in the United States designated by the Noteholder, upon
presentation and surrender of this Note at the office of the Issuer in
Birmingham, Alabama, or at such other place or places as the Noteholder may
reasonably request, provided that this Note is presented to the Issuer in time
for the Issuer to make such payments in such funds in accordance with its normal
procedures. Payments of interest (other than interest payable on the
Maturity Date) shall be made by check or wire transfer, at the sole discretion
of the Issuer, to the Noteholder. Interest payable on any Interest
Payment Date shall be payable to the Noteholder in whose name this Note is
registered at the close of business on February 15, May 15, August 15, or
November 15, as the case may be, next preceding such Interest Payment Date (each
such date being referred to herein as the “Regular Record Date”
for the corresponding Interest Payment Date), except that interest not so
punctually paid, if any, will be paid to the Noteholder in whose name this Note
is registered at the close of business on a Special Record Date fixed by the
Issuer (a “Special
Record Date”), notice of which shall be given to the Noteholder not
less than 10 calendar days prior to such Special Record Date. (The
Regular Record Dates and the Special Record Dates, if any, are referred to
herein collectively as the “Record Dates”).
To the extent permitted by applicable law, interest shall accrue at the Default
Rate on any amount of principal of or interest on this Note not paid when
due. All payments on this Note shall be applied first to accrued but
unpaid interest and then the balance, if any, to principal.
8. Form of Payment.
Payments of principal of and interest on this Note shall be made in such
coin or currency of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts.
9. Registration of Transfer,
Subordinated
Note Register. This Note is transferable in whole or in part,
and may be exchanged for a like aggregate principal amount of Notes of other
authorized denominations, by the Noteholder in person, or by his attorney duly
authorized in writing, at the principal office of the Issuer in the City of
Birmingham, Alabama. The Issuer shall maintain a register providing for
the registration of this Note and any exchange or transfer thereof (the “Subordinated Note
Register”). Upon surrender or presentation of this Note for
exchange or registration of transfer, the Issuer shall execute and the Issuer
shall deliver in exchange therefor a Note or Notes of like aggregate principal
amount, each in a denomination of $1,000,000 or any amount in excess thereof
which is an integral multiple of $1,000 and that is or are registered in such
name or names requested by the Noteholder. Any Note presented or
surrendered for registration of transfer or for exchange shall (if so required
by the Issuer) be duly endorsed, or accompanied by a written instrument of
transfer with such evidence of due authorization and guarantee of signature as
may reasonably be required by the Issuer in form satisfactory to the Issuer,
duly executed by the Noteholder or his attorney duly authorized in writing, and
with such tax identification number or other information for each person in
whose name a Subordinated Note is to be issued as the Issuer may reasonably
request to comply with applicable law, and accompanied by a legal opinion of
counsel reasonably satisfactory to the Issuer that the transfer of the Note does
not violate any requirements of federal or applicable state securities
law. No exchange or registration of transfer of this Note shall be made on
or after the fifteenth day immediately preceding the Maturity Date.
10. Charges and Transfer
Taxes. No service charge (other than any cost of delivery)
shall be imposed for any exchange or registration of transfer of this Note, but
the Issuer may require the payment of a sum sufficient to cover any
stamp or other tax or governmental charge that may be imposed in connection
therewith (or presentation of evidence that such tax or charge has been
paid).
11. Ownership. Prior
to due presentment of this Note for registration of transfer, the Issuer may
treat the Noteholder in whose name this Note is registered in the Subordinated
Note Register as the absolute owner of this Note for the purpose of receiving
payments of principal of and interest on this Note and for all other purposes
whatsoever, whether or not this Note is then overdue, and the Issuer and the
Note shall not be affected by any notice to the contrary.
12. Priority. This
Note ranks pari
passu in the event of any insolvency proceeding, receivership,
conservatorship, reorganization, readjustment of debt, marshalling of assets and
liabilities or similar proceeding with respect to, or any liquidation or winding
up of, the Issuer, with all other present or future unsecured subordinated debt
obligations of the Issuer, except any unsecured subordinated debt which may be
expressly stated to be senior to or subordinate to the Notes.
13. Notices. All
notices to the Issuer under this Note shall be in writing and addressed to the
Issuer at
ServisFirst
Bank
Attention:
William M. Foshee
Executive
Vice President and Chief Financial Officer
Post
Office Box 1508
Birmingham,
Alabama 35201-1508
(If by
overnight courier:)
850
Shades Creek Parkway, Suite 100
Birmingham,
Alabama 35209)
or at
such other address as the Issuer may notify the Noteholder in writing from time
to time. All notices to the Noteholder shall be in writing and sent by
United States First Class Mail or overnight courier to each Subordinated
Noteholder at his, her or its address as set forth in the Subordinated Note
Register. All such notices shall be deemed to have been given five
Business Days after having been deposited in United States Mail, First Class
postage prepaid, or one Business Day after having been delivered to an overnight
courier.
14. Modification. This
Note may not be amended or modified by the Issuer without the consent of the
Noteholder. This Note may not be amended or modified by the Issuer
for the purpose of changing the Maturity Date or other terms of the Subordinated
Notes without the prior consent of the FDIC and any other required approvals by
Bank Regulatory Authorities.
15. Absolute and Unconditional
Obligation of the Issuer. No provisions of this Note shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to pay
the principal of and interest on this Note at the times, places and rate, and in
the coin or currency, herein prescribed.
16. Waiver and
Consent.
(a) Any
consent or waiver given by the Noteholder shall be conclusive and binding upon
such Noteholder and upon all future holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
(b) No
delay or omission of the Noteholdere to exercise any right or remedy accruing
upon any Event of Default shall impair such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
17. Further
Issues. The Issuer may, without the consent of the Noteholder,
create and issue additional notes having the same terms and conditions
as this Note (except for the issue date and issue price) so that such
further notes shall be consolidated and form a single series with this
Note. Any such issuance will either be registered or issued pursuant
to an exemption from registration under the Securities Act of 1933, as then in
effect, or similar laws or regulations issued by the applicable banking
agency.
18. Governing
Law. This Note shall be governed by and construed in accordance with
applicable federal law and the laws of the State of Alabama, applied without
giving effect to any conflicts-of-law principles.
IN
WITNESS WHEREOF, the undersigned has caused this Subordinated Note to be duly
executed and delivered as of the Date of Issue shown hereon.
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SERVISFIRST
BANK
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By:
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/s/ Thomas A Broughton
III
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Name:
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Thomas A Broughton III
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Title:
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President &
CEO
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