As filed with the Securities and Exchange Commission on December 10, 1997.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
FIRST LEHIGH CORPORATION
(Exact name of registrant as specified in its charter)
Pennsylvania 23-2218479
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1620 Pond Road
Allentown, Pennsylvania 18104
(Address of Principal Executive Offices) (Zip Code)
--------------------
FIRST LEHIGH CORPORATION
1989 EQUITY INCENTIVE PLAN
1997 NONQUALIFIED STOCK OPTION PLAN
(Full title of the plans)
--------------------
James L. Leuthe, Chairman
First Lehigh Corporation
1620 Pond Road
Allentown, Pennsylvania 18104
(Name and address of agent for service)
(610) 398-6660
(Telephone number, including area code,
of agent for service)
--------------------
Copy to:
John W. Kauffman, Esquire
Duane, Morris & Heckscher LLP
One Liberty Place
Philadelphia, PA 19103-7396
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered(1) price per share(2) offering price(2) registration fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 159,000 shares $4.46 $709,140 $210
par value $.01
========================================================================================================================
</TABLE>
(1) In addition, this registration statement also registers such additional
shares as may be required to be issued under the plans listed above in the
event of a stock dividend, reverse stock split, split-up, reclassification
or other similar events.
(2) Estimated solely for the purpose of calculating the registration fee based
on (i) the average exercise price of $3.27 of the outstanding options to
purchase 110,000 shares of the Common Stock of the Company registered
hereunder and (ii) pursuant to Rule 457(c), $7.125 per share based upon
the average bid and asked price on December 8, 1997 with respect to 49,000
shares available for grant under the Plans.
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following material is incorporated herein by reference:
(a) The Annual Report on Form 10-KSB of First Lehigh Corporation (the
"Company") for the year ended December 31, 1996 as filed by the Company with the
Securities and Exchange Commission (the "Commission") on March 31, 1997.
(b) The Quarterly Report on Form 10-QSB of the Company for the quarter
ended March 31, 1997 as filed by the Company with the Commission on May 13,
1997.
(c) The Quarterly Report on Form 10-QSB of the Company for the quarter
ended June 30, 1997 as filed by the Company with the Commission on August 13,
1997.
(d) The Quarterly Report on Form 10-QSB of the Company for the quarter
ended September 30, 1997 as filed by the Company with the Commission on November
7, 1997.
(e) Form 8-K Current Report of the Company filed with the Commission on
July 3, 1997.
All reports or other documents filed pursuant to Sections 13, 14 and
15(d) of the Exchange Act subsequent to the date of this Registration Statement,
in each case filed by the Company prior to the filing of a post-effective
amendment that indicates that all securities offered have been sold or that
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such reports and documents. Any statement contained
in a document incorporated or deemed to be incorporated herein by reference
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
herein by reference, 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.
The authorized capital stock of the Company consists of 10,000,000
shares of Common Stock, $.01 par value, 1,000,000 shares of Series Preferred
Stock, $.01 par value (the "Series Preferred Stock"), and 1,500,000 shares of
Senior Preferred Stock, $.01 par value (the "Senior Preferred Stock"). As of the
date of this Registration Statement, 2,000,000 shares of Common Stock held by
approximately 130 holders of record, 682,000 shares of Series A Convertible
Preferred Stock, par value $.01 per share (the "Series A Preferred Stock") held
by approximately 20 holders of record and 900,363 shares of Senior Preferred
Stock held by approximately 60
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holders of record were issued and outstanding. The following statements are
brief summaries of certain provisions with respect to the Common Stock, the
Series A Preferred Stock and the Senior Preferred Stock contained in the
Company's Articles of Incorporation, a copy of which has been filed with the
Commission. The following summary is qualified in its entirety by reference
thereto.
The transfer agent and registrar for the Company's Common Stock, the
Series A Preferred Stock and the Senior Preferred Stock is First Lehigh Bank,
500 Main Street, Walnutport, Pennsylvania 18088.
Common Stock
Each outstanding share of Common Stock is entitled to one vote on all
matters submitted to a vote of shareholders, including the election of
directors. In general, the holders of the Common Stock and the holders of the
Series A Preferred Stock vote together as a single class on all matters
presented to the Company's shareholders for a vote, including the election of
directors. The holders of the Series A Preferred Stock currently are entitled to
four votes for each share held (subject to adjustment in certain instances). See
"Series A Preferred Stock" for a discussion of the voting rights of the holders
of the Company's outstanding Series A Preferred Stock. The holders of Common
Stock do not have cumulative voting rights or preemptive rights. Dividends may
be paid to the holders of Common Stock when and if declared by the Board of
Directors from funds legally available for dividends. All outstanding shares of
Common Stock are fully paid and non-assessable. In the event of any liquidation,
dissolution or winding-up of the affairs of the Company, the holders of Common
Stock will be entitled to share ratably in its assets remaining after provision
for payment of creditors and for the payment of the liquidation preference to
the holders of any outstanding Series A Preferred Stock, Senior Preferred Stock
and any other series of Series Preferred Stock that the Company may issue from
time to time.
Series A Preferred Stock
The Company's Board of Directors has designated an aggregate of 750,000
shares of the Series A Preferred Stock, of which 682,000 are currently
outstanding. The Board of Directors of the Company has the authority to issue an
additional 250,000 shares of the Company's Series Preferred Stock in one or more
series and to determine the designations, relative rights, preferences and
limitations of each series, without obtaining the approval of the Company's
shareholders, except in certain circumstances. The issuance of the Series
Preferred Stock, while providing flexibility in connection with possible
financings, acquisitions and other corporate purposes, could, among other
things, adversely affect the voting power of the holders of the Common Stock and
the Series A Preferred Stock and, under certain circumstances, make it more
difficult for a third party to gain control of the Company, deny shareholders
the receipt of a premium on their shares of capital stock and have a depressive
effect on the market price thereof. Management of the Company is not aware of
any such threatened transactions to obtain control of the Company. The Company
has no present plan to issue any new series of Series Preferred Stock or
additional shares of Series A Preferred Stock.
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<PAGE>
Voting Rights. In general, the holders of the Series A Preferred Stock
and the holders of the Common Stock vote together as a single class on all
matters presented to the Company's shareholders for a vote, including the
election of directors. The holders of the Common Stock are entitled to one vote
for each share held, and the holders of the Series A Preferred Stock currently
are entitled to four votes for each share held (subject to adjustment in certain
instances). No cumulative voting rights exist with respect to the election of
directors. Under the Company's Articles of Incorporation, the approval of the
holders of at least a majority of the shares of Series A Preferred Stock then
outstanding is required to approve any amendment, modification or waiver of the
terms of the Series A Preferred Stock, except that the approval of the holders
of at least 80% of the shares of Series A Preferred Stock then outstanding is
required to approve any change relating to (i) the terms of the Series A
Preferred Stock relating to dividends payable on the Series A Preferred Stock,
(ii) amounts payable on redemption or the time at which redemption of the Series
A Preferred Stock is to occur or (iii) the conversion rate of the Series A
Preferred Stock. The voting rights of the holders of each share of the Series A
Preferred Stock is determined by multiplying the number of shares of Common
Stock into which the Series A Preferred Stock is convertible times five.
Therefore, after March 31, 1996 the holders of Series A Preferred Stock are
entitled to 3.6 votes for each share held. The Board of Directors have prepared
an amendment to the Company's Articles of Incorporation that would retain the
pre-March 31, 1991 voting rate of four votes per share until March 31, 1999. See
"Conversion Rights" below.
Conversion Rights. Until March 31, 1996, the Series A Preferred Stock
was convertible into Common Stock at the option of each holder at any time at
the rate of .8 of a share of Common Stock for each share of Series A Preferred
Stock. After March 31, 1996, each share of Series A Preferred Stock is
convertible into .72 of a share of Common Stock, subject to adjustment in
certain circumstances. However, the Board of Directors of the Company has
approved an amendment to the Company's Articles of Incorporation that would
retain the .8 conversion rate until March 31, 1999, subject to stockholder
approval.
Dividends. The holders of shares of Series A Preferred Stock are
entitled to receive cash dividends at the rate of $.3255 per share per year
before any dividends are declared or paid on the Common Stock; however, the
aggregate dividends paid on the Series A Preferred Stock and the Senior
Preferred Stock in any calendar year may not exceed the Company's net income for
the preceding calendar year as shown on the Company's audited statement of
income for the preceding calendar year. For a summary of the restrictions and
limitations with respect to the declaration and payment of dividends by the
Company, see "Dividends." Holders of shares of Series A Preferred Stock will not
be entitled to any dividends, whether payable in cash, property or stock, in
excess of the cumulative dividends described above. Payment of dividends on the
Series A Preferred Stock is subordinate to the payment of all accrued but unpaid
dividends on the Senior Preferred Stock. See "Senior Preferred Stock" below.
Liquidation Preference and Redemption Provisions. In the event of the
liquidation, dissolution or winding up of the Company, the holders of the Series
A Preferred Stock then outstanding will be entitled to be paid out of the assets
of the Company available for distribution to its shareholders the amount of
$3.10 per share plus accrued but unpaid dividends before any payment may be made
to the holders of the Company's Common Stock. The Series A Preferred
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<PAGE>
Stock ranks on parity with the Senior Preferred Stock in the event of a
liquidation, dissolution or winding up of the Company. The Company has the
option to redeem for cash all or any part of the then outstanding shares of the
Series A Preferred Stock at any time after March 31, 1996 at a per share
redemption price of $3.50 plus any accrued but unpaid dividends provided that
the Company has funds legally available to be used by it to redeem its Series A
Preferred Stock. No sinking fund for the redemption of the Series A Preferred
Stock has been established. The Series A Preferred Stock is fully paid and
non-assessable. There are no preemptive rights applicable to the Series A
Preferred Stock.
Senior Preferred Stock
The Company is authorized to issue up to 1,500,000 shares of Senior
Preferred Stock of which 900,363 shares are currently outstanding, the relative
rights, powers and preferences of which are summarized as follows:
Dividends. The holders of Senior Preferred Stock will be entitled to be
paid, before any dividends are declared or paid upon or set aside for any Junior
Securities, as described below, when, as and if declared by the Board of
Directors out of funds legally available for that purpose, dividends in cash at
the rate of $.25 per share per annum. "Junior Securities" are defined as any
equity securities of the Company other than the Senior Preferred Stock.
Therefore, no dividends will be paid on the Company's Common Stock or Series A
Preferred Stock until all dividends that have accumulated on the Senior
Preferred Stock have been declared and paid, or declared and a sum sufficient
for payment thereof is set apart for such payment.
Dividends on shares of Senior Preferred Stock are cumulative from the
date of issuance of such shares. When, as and if declared by the Board of
Directors of the Company out of funds legally available for such purpose,
dividends on the Senior Preferred Stock are payable quarterly. The aggregate
amount of dividends paid on the Senior Preferred Stock and the Series A
Preferred Stock in any calendar year may not exceed the Company's net income for
the preceding calendar year as shown on the Company's audited statement of
income for such preceding calendar year. If the full amount of dividends on the
Senior Preferred Stock is not declared and paid or declared and a sum sufficient
for the payment thereof set apart, the amount of the deficiency in such
dividends must be fully paid, or dividends in such amount must be declared on
the shares of the Senior Preferred Stock and a sum sufficient for the payment
thereof must be set apart for such payment, before any dividend may be declared
or paid or any other distribution ordered or made upon any Junior Securities,
including the Common Stock and the Series A Preferred Stock. Holders of shares
of Senior Preferred Stock will not be entitled to any dividends, whether payable
in cash, profits or stock, in excess of the cumulative dividends described
above. The Company is subject to certain regulatory restrictions with respect to
the declaration and payment of dividends.
Conversion Rights. Each share of Senior Preferred Stock is convertible
at any time at the option of the holder thereof into one share of Common Stock,
subject to adjustment to protect against dilution in the event of a payment of a
stock dividend on the Common Stock, a stock split-up or combination or similar
event. The conversion rate of the Senior Preferred Stock will be
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<PAGE>
adjusted if the greater of book value or market value of the Company's Common
Stock is not equal to $5.00 (the "Base Value") or more per share at the close of
business on the last trading day of the New York Stock Exchange in October 1998
(the "Adjustment Date"), so that beginning November 1, 1998, one share of Senior
Preferred Stock will be convertible into that number of shares of Common Stock
equal to the then existing conversion rate multiplied by a fraction, the
numerator of which is the Base Value, and the denominator of which is the
greater of the book value or market value per share at the close of business on
the Adjustment Date, assuming that there have been no other adjustments to the
conversion rate or the Base Value due to other events such as stock dividends,
split-ups or combinations.
Liquidation Preference. In the event of any liquidation, dissolution or
winding up of the Company, the holders of Senior Preferred Stock will be
entitled to be paid the liquidation value of $5.00 per share plus accrued but
unpaid dividends before any distribution or payment is made upon any Common
Stock. The Senior Preferred Stock will rank on a parity with respect to rights
on liquidation with the Series A Preferred Stock. In the event that the
Company's assets to be distributed upon any such liquidation are insufficient to
permit payment of the full liquidation value to holders of the Senior Preferred
Stock and the Series A Preferred Stock, the assets will be distributed ratably
among such holders based on the respective liquidation preferences thereof.
Voting Rights. Except as otherwise provided by law, the holders of
Senior Preferred Stock will have no voting rights. Under the Company's Articles
of Incorporation, the approval of the holders of at least a majority of the
shares of Senior Preferred Stock outstanding is required to approve any
amendment, modification or waiver of the terms of the Senior Preferred Stock,
except that the approval of the holders of at least 66-2/3% of the shares of
Senior Preferred Stock outstanding is required to approve any change relating to
(i) the dividends payable on the Senior Preferred Stock, (ii) the conversion
rate of the Senior Preferred Stock or (iii) the preference on liquidation of the
Senior Preferred Stock.
Anti-Takeover Provisions
The Company's Articles of Incorporation contain certain provisions that
affect shareholder voting and other requirements. Those provisions include: (i)
a provision that requires the affirmative vote of the holders of at least 80% of
the outstanding shares of Common Stock before the Company can enter into any
merger, consolidation, liquidation, dissolution or sale of all or substantially
all of the assets of the Company and (ii) a provision that gives the Company's
Board of Directors authority to take any lawful action to oppose a tender offer
or similar transaction if the Board of Directors determines that the offer
should be rejected and that permits the Board of Directors to consider any
pertinent issue in determining whether to oppose any such offer. A vote of 80%
of the outstanding shares of Common Stock is required to amend the provision
that requires an 80% vote for mergers and other fundamental corporate changes.
The Company's Articles of Incorporation also contains a provision that
shareholders do not have cumulative voting rights with respect to election of
directors.
Also, the Company's Bylaws provide for the division of the Company's
Board of Directors into four classes. Only one class is elected each year, and
the regular term of each class is four
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years. The Company's Bylaws also require any shareholder who desires to nominate
a candidate for election as a director to provide certain information concerning
such person that is equivalent to that contained in the Company's proxy
materials for those candidates nominated by the Company's Board of Directors not
later than 120 days before the first anniversary of the date of the preceding
annual meeting of shareholders.
Pennsylvania has also adopted certain laws that may be deemed to be
"anti-takeover" in effect. One provision permits directors, in considering the
best interests of the Company, to consider the effects of any action upon its
employees, suppliers, customers, shareholders and creditors and the communities
in which the Company maintains facilities. The effect of this provision is to
put the considerations of these constituencies on parity with one another, with
the result that no one group, including shareholders, is required to be the
dominant or controlling concern of directors in determining what is in the best
interests of the Company. This provision applies to all Pennsylvania
corporations.
If any class of the Company's securities becomes registered under the
Securities Exchange Act of 1934 (the "Exchange Act"), which is unlikely to occur
until 120 days after the last day of its fiscal year on which the Company has
500 or more shareholders of any class, the Company will become subject to
certain additional anti-takeover provisions under Pennsylvania law. A summary of
these anti-takeover provisions is as follows:
Control Transactions. This provision requires any person or group that
acquires 20% of the voting power over shares entitled to cast votes in an
election of directors to offer to purchase all outstanding shares for cash at a
fair value.
Business Combinations. This provision prohibits any person or group
that acquires at least 20% of the voting power of a corporation from effecting a
business combination with the corporation, such as a merger, an asset sale and
certain recapitalizations, for a period of up to five years from the date such
control was acquired. A corporation may opt out of this provision on a
case-by-case basis by approving a particular business combination prior to the
date such person or group acquires 20% of the voting power.
Control-Share Acquisitions. This provision prevents a person or group
that crosses certain stock ownership thresholds of 20%, 33-1/3% or 50% for the
first time from voting certain shares beneficially owned by the person unless
voting power is restored to such shares by a vote of all shareholders and a vote
of disinterested shareholders at a shareholders meeting. Also, any business
combinations occurring after the restoration of voting power will require the
acquiring person to pay severance compensation to Pennsylvania employees of the
corporation whose employment is terminated, other than for wilful misconduct
connected with the work of the employee, within 90 days before or 24 months
after the restoration of voting power.
Disgorgement. This provision requires any person or group that acquires
20% or more of the voting power of a corporation to disgorge to the corporation
all profits realized from the sale of equity securities of the corporation
within 18 months after acquiring this control status
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if the person or group purchased equity securities of the corporation within 24
months prior to, or 18 months after, the acquisition of control status.
Each of these provisions would make it difficult and time-consuming for
any person or group to acquire the Company, if the Company were to become
subject to these provisions as a result of a registration of any class of its
securities under the Exchange Act. If the Company becomes subject to these
provisions, it would be able to opt out of one or more of these provisions only
by an amendment to the Company's Articles of Incorporation approved by both the
Board of Directors and the shareholders. With respect to the control-share
acquisition and disgorgement provisions, such amendment would be required to be
adopted within 90 days after the date any class of the Company's securities
first becomes registered under the Exchange Act. The Company will not make a
determination as to whether to opt out of any of these provisions until such
time, if any, it becomes subject to them.
Item 5. Interests of Named Experts and Counsel.
The consolidated financial statements of the Company and its
subsidiaries at December 31, 1996 and 1995 and for each of the two years in the
period ended December 31, 1996 incorporated into this Registration Statement by
reference the Company's Form 10-KSB Annual Report for the year ended December
31, 1996 have been examined by Parente, Randolph, Orlando, Carey & Associates,
certified public accountants, as set forth in their report appearing elsewhere
herein, and are included in reliance upon such report and upon the authority of
such firm as experts in auditing and accounting.
The validity of the issuance of the shares of Common Stock registered
hereby will be passed upon for the Company by Duane, Morris & Heckscher LLP,
Philadelphia, Pennsylvania. Members of Duane, Morris & Heckscher LLP and their
affiliates own 1,400 shares of the Company's Common Stock and 51,500 shares of
the Company's Series A Preferred Stock.
Item 6. Indemnification of Directors and Officers.
As permitted by the provisions for indemnification of directors and
officers in the Pennsylvania Business Corporation Law (the "BCL"), which applies
to the Company, the Company's Bylaws provide for indemnification of directors
and officers for all expense, liability and loss (including without limitation
attorney's fees, judgments, fines, taxes, penalties and amounts paid in
settlement) reasonably incurred or suffered by such person in any threatened,
pending or completed action, suit or proceeding (including without limitation an
action, suit or proceeding by or in the right of the Company), whether civil,
criminal, administrative, investigative, or through arbitration, unless the act
or failure to act giving rise to the claim for indemnification is determined by
a court to have constituted willful misconduct or recklessness. The right to
indemnification provided in the Company's Bylaws includes the right to have the
expenses incurred by such person in defending any proceeding paid by the Company
in advance of the final disposition of the proceeding to the fullest extent
permitted by Pennsylvania law; provided that, if Pennsylvania law continues so
to require, the payment of such expenses incurred by such person in advance of
the final disposition of a proceeding may be made only upon delivery to the
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Company of an undertaking, by or on behalf of such person, to repay all amounts
so advanced without interest if it is ultimately determined that such person is
not entitled to be indemnified under the Company's Bylaws or otherwise.
Indemnification under such provisions continues as to a person who has ceased to
be a director or officer of the Company and inures to the benefit of his or her
heirs, executors and administrators. The Bylaws for the Company also avail
directors of the Pennsylvania law limiting directors' liability for monetary
damages for any action taken or any failure to take any action to those cases
where they have breached their fiduciary duty under the BCL and such breach
constitutes self-dealing, willful misconduct or recklessness, provided, however,
that this limitation does not apply to the responsibilities or liabilities of a
director pursuant to any criminal statute, or to the liabilities of a director
for payment of taxes pursuant to local, Pennsylvania or federal law.
Item 7. Exemption from Registration Claimed.
No answer to this item is required because no restricted securities are
to be reoffered or resold pursuant to this Registration Statement.
Item 8. Exhibits.
4.1 First Lehigh Corporation 1989 Equity Incentive Plan. (Incorporated
by reference to Exhibit 10.10 to the Company's Form SB-2
Registration Statement (No. 33-71712)).
4.2 First Lehigh Corporation 1997 Nonqualified Option Plan.
5.1 Opinion of Duane, Morris & Heckscher LLP.
23.1 Consent of Duane, Morris & Heckscher LLP (included in their opinion
filed as Exhibit 5).
23.2 Consent of Parente, Randolph, Orlando, Carey & Associates.
24.1 Power of Attorney. (See page II-12 of this Registration Statement).
Item 9. Undertakings.
The Company 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 Act;
(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,
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<PAGE>
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 and 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 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(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)(1)(i)and (a)(1)(ii) herein do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the undersigned registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the registration
statement.
(b) that for the purpose of determining any liability under the Act,
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 offer
thereof; and
(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.
The undersigned registrant hereby further undertakes that, for purposes
of determining any liability under the Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby further undertakes that, insofar as
indemnification for liabilities arising under the Act may be permitted to
directors, officers and controlling persons of the registrant, the registrant
has been advised that in the opinion of the 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
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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.
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<PAGE>
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 Allentown, Pennsylvania on December 10, 1997.
FIRST LEHIGH CORPORATION
By: /s/ James L. Leuthe
---------------------------------------
James L. Leuthe, Chairman of the Board,
Acting President and Chief Executive
Officer
Know all men by these presents, that each person whose signature
appears below constitutes and appoints James L. Leuthe and Wilbur R. Roat, and
each or either of them, as such person's true and lawful attorneys-in-fact and
agents, with full power of substitution, for such person, and in such person's
name, place and stead, in any and all capacities to sign any or all amendments
or post-effective amendments to this Registration Statement, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as such person might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their substitutes, 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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ James L. Leuthe Chief Executive Officer and December 10, 1997
- ------------------------------------ Acting President and Director
James L. Leuthe (principal executive officer)
Kashmira K. Lodaya Treasurer (principal financial December 10, 1997
- ------------------------------------ and accounting officer)
Kashmira K. Lodaya
- ------------------------------------ Director December , 1997
Stephen M. Alinikoff
/s/ Peter Barter Director December 10, 1997
- ------------------------------------
Peter Barter
</TABLE>
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<TABLE>
<S> <C> <C>
Robert B. Colfer Director December 10, 1997
- ------------------------------------
Robert B. Colfer
/s/ Vincent Dieter Director December 10, 1996
- ------------------------------------
Vincent Dieter
Director December , 1997
- ------------------------------------
Charles D. Flack, Jr.
/s/ Harry J. Lentz Director December 10, 1997
- ------------------------------------
Harry J. Lentz
/s/ John H. McKeever Director December 10, 1997
- ------------------------------------
John H. McKeever
/s/ Wilbur R. Roat Director December 10, 1997
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Wilbur R. Roat
</TABLE>
II-12
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EXHIBIT INDEX
(Pursuant to Item 601 of Regulation S-K)
Exhibit No. Exhibit
4.1 First Lehigh Corporation 1989 Equity Incentive Plan. (Incorporated
by reference to Exhibit 10.10 to the Company's Form SB-2
Registration Statement (No. 33-71712)).
4.2 First Lehigh Corporation 1997 Nonqualified Option Plan.
5.1 Opinion of Duane, Morris & Heckscher LLP.
23.1 Consent of Duane, Morris & Heckscher LLP (included in their opinion
filed as Exhibit 5).
23.2 Consent of Parente, Randolph, Orlando, Carey & Associates.
24.1 Power of Attorney. (See page II-12 of this Registration
Statement).
FIRST LEHIGH CORPORATION
1997 NONQUALIFIED STOCK OPTION PLAN
1. Purpose. The purpose of the First Lehigh Corporation 1997 Nonqualified
Stock Option Plan (the "Plan") is to further the growth, development and
financial success of First Lehigh Corporation (the "Company") and the
subsidiaries of the Company by providing additional incentives to those officers
who are responsible for the management of the business affairs of the Company
and/or subsidiaries of the Company, which will enable them to participate
directly in the growth of the capital stock of the Company. The Company intends
that the Plan will facilitate securing, retaining and motivating management
employees of high caliber and potential. To accomplish these purposes, the Plan
provides a means whereby employees may receive stock options ("Options") to
purchase the Company's Common Stock, $.01 par value (the "Common Stock").
2. Administration.
(a) Administration by the Board. The Plan shall be administered by the
Company's Board of Directors (the "Board").
(b) Authority of the Board. The Board shall have full and final authority,
in its sole discretion, to interpret the provisions of the Plan and to decide
all questions of fact arising in its application; to determine the employees to
whom Options shall be granted and the type, amount, size and terms of each such
grant; to determine the time when Options shall be granted; and to make all
other determinations necessary or advisable for the administration of the Plan.
All decisions, determinations and interpretations of the Board shall be final
and binding on all optionees and all other holders of Options granted under the
Plan.
3. Stock Subject to the Plan. Subject to Section 16 hereof, the shares that
may be issued under the Plan shall not exceed in the aggregate 75,000 shares of
Common Stock. Such shares may be authorized and unissued shares or shares issued
and subsequently reacquired by the Company. Except as otherwise provided herein,
any shares subject to an Option that for any reason expires or is terminated
unexercised as to such shares shall again be available under the Plan.
4. Eligibility To Receive Options. Persons eligible to receive Options
under the Plan shall be limited to those officers and key employees of the
Company and any subsidiary of the Company (as defined in Section 425 of the Code
or any amendment or substitute thereto) who are in positions in which their
decisions, actions and counsel significantly impact upon the profitability and
success of the Company or any subsidiary of the Company. Directors of the
Company who are not also officers or employees of the Company or any subsidiary
of the Company shall not be eligible to participate in the Plan. Notwithstanding
anything to the contrary set forth in the Plan, the maximum number of shares of
Common Stock for which Options may be granted to any employee in any calendar
year shall be 50,000 shares.
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5. Type of Options. Grants may be made at any time and from time to time by
the Board in the form of stock options to purchase shares of Common Stock.
Options granted hereunder shall be Options that are not intended to qualify as
incentive stock options within the meaning of Section 422 of the Code or any
amendment or substitute thereto ("Nonqualified Stock Options").
6. Option Agreements. Options for the purchase of Common Stock shall be
evidenced by written agreements in such form not inconsistent with the Plan as
the Board shall approve from time to time. The Options granted hereunder may be
evidenced by a single agreement or by multiple agreements, as determined by the
Board in its sole discretion. Each option agreement shall contain in substance
the following terms and conditions:
(a) Type of Option. Each option agreement shall identify the Options
represented thereby either as Nonqualified Stock Options.
(b) Option Price. Each option agreement shall set forth the purchase price
of the Common Stock purchasable upon the exercise of the Option evidenced
thereby. Subject to the limitation set forth in Section 6(d)(ii) of the Plan,
the purchase price of the Common Stock subject to an Option shall be not less
than 50% of the fair market value of such stock on the date the Option is
granted, as determined by the Board, but in no event less than the par value of
such stock. For this purpose, fair market value on any date shall mean the
closing price of the Common Stock, as reported by the OTC Bulletin Board the
National Association of Securities Dealers, or if the Common Stock is not
reported by the OTC Bulletin Board, the fair market value shall be as determined
by the Board.
(c) Exercise Term. Each option agreement shall state the period or periods
of time within which the Option may be exercised, in whole or in part, as
determined by the Board, provided that no Option shall be exercisable after ten
years from the date of grant thereof. The Board shall have the power to permit
an acceleration of previously established exercise terms, subject to the
requirements set forth herein, upon such circumstances and subject to such terms
and conditions as the Board deems appropriate.
(d) Substitution of Options. Options may be granted under the Plan from
time to time in substitution for stock options held by employees of other
corporations who are about to become, and who do concurrently with the grant of
such options become, employees of the Company or a subsidiary of the Company as
a result of a merger or consolidation of the employing corporation with the
Company or a subsidiary of the Company, or the acquisition by the Company or a
subsidiary of the Company of the assets or capital stock of the employing
corporation. The terms and conditions of the substitute options so granted may
vary from the terms and conditions set forth in this Section 6 to such extent
as the Board at the time of grant may deem appropriate to conform, in whole or
in part, to the provisions of the stock options in substitution for which they
are granted.
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7. Date of Grant. The date on which an Option shall be deemed to have been
granted under the Plan shall be the date of the Board's authorization of the
Option or such later date as may be determined by the Board at the time the
Option is authorized. Notice of the determination shall be given to each
individual to whom an Option is so granted within a reasonable time after the
date of such grant.
8. Exercise and Payment for Shares. Options may be exercised in whole or in
part, from time to time, by giving written notice of exercise to the Secretary
of the Company, specifying the number of shares to be purchased. The purchase
price of the shares with respect to which an Option is exercised shall be
payable in full with the notice of exercise in cash, Common Stock at fair market
value, or a combination thereof, as the Board may determine from time to time
and subject to such terms and conditions as may be prescribed by the Board for
such purpose. The Board may also, in its discretion and subject to prior
notification to the Company by an optionee, permit an optionee to enter into an
agreement with the Company's transfer agent or a brokerage firm of national
standing whereby the optionee will simultaneously exercise the Option and sell
the shares acquired thereby through the Company's transfer agent or such a
brokerage firm and either the Company's transfer agent or the brokerage firm
executing the sale will remit to the Company from the proceeds of sale the
exercise price of the shares as to which the Option has been exercised.
9. Rights upon Termination of Employment. In the event that an optionee
ceases to be an employee of the Company or any subsidiary of the Company for any
reason other than death or disability (within the meaning of Section 22 of the
Code or any substitute therefor), the optionee shall have the right to exercise
the Option during its term within a period of three months after such
termination to the extent that the Option was exercisable at the time of
termination, or within such other period, and subject to such terms and
conditions, as may be specified by the Board. In the event that an optionee dies
or becomes disabled prior to the expiration of his Option and without having
fully exercised his Option, the optionee or his successor shall have the right
to exercise the Option during its term within a period of one year after
termination of employment due to death or disability to the extent that the
Option was exercisable at the time of termination, or within such other period,
and subject to such terms and conditions, as may be specified by the Board.
10. General Restrictions. Each Option granted under the Plan shall be
subject to the requirement that, if at any time the Board shall determine that
(i) the listing, registration or qualification of the shares of Common Stock
subject or related thereto upon any securities exchange or under any state or
federal law, or (ii) the consent or approval of any government regulatory body,
or (iii) the satisfaction of any tax payment or withholding obligation, or (iv)
an agreement by the recipient of an Option with respect to the disposition of
shares of Common Stock, is necessary or desirable as a condition of or in
connection with the granting of such Option or the issuance or purchase of
shares of Common Stock thereunder, such Option shall not be consummated in whole
or in part unless such listing, registration, qualification, consent, approval
or agreement shall have been effected or obtained free of any conditions not
acceptable to the Board.
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<PAGE>
11. Rights of a Shareholder. The recipient of any Option under the Plan,
unless otherwise provided by the Plan, shall have no rights as a shareholder
unless and until certificates for shares of Common Stock are issued and
delivered to him.
12. Right to Terminate Employment. Nothing contained in the Plan or in any
option agreement entered into pursuant to the Plan shall confer upon any
optionee the right to continue in the employment of the Company or any
subsidiary of the Company or affect any right that the Company or any subsidiary
of the Company may have to terminate the employment of such optionee.
13. Withholding. Whenever the Company proposes or is required to issue or
transfer shares of Common Stock under the Plan, the Company shall have the right
to require the recipient to remit to the Company an amount sufficient to satisfy
any federal, state or local withholding tax requirements prior to the delivery
of any certificate or certificates for such shares. If and to the extent
authorized by the Board, in its sole discretion, an optionee may make an
election, by means of a form of election to be prescribed by the Board, to have
shares of Common Stock that are acquired upon exercise of an Option withheld by
the Company or to tender other shares of Common Stock or other securities of the
Company owned by the optionee to the Company at the time of exercise of an
Option to pay the amount of tax that would otherwise be required by law to be
withheld by the Company as a result of any exercise of an Option. Any such
election shall be irrevocable and shall be subject to termination by the Board,
in its sole discretion, at any time. Any securities so withheld or tendered will
be valued by the Board as of the date of exercise.
14. Non-Assignability. No Option under the Plan shall be assignable or
transferable by the recipient thereof except by will or by the laws of descent
and distribution or by such other means as the Baord may approve. During the
life of the recipient, such Option shall be exercisable only by such person or
by such person's guardian or legal representative.
15. Non-Uniform Determinations. The Board's determinations under the Plan
(including without limitation determinations of the persons to receive Options,
the form, amount and timing of such grants, the terms and provisions of Options,
and the agreements evidencing same) need not be uniform and may be made
selectively among persons who receive, or are eligible to receive, grants of
Options under the Plan whether or not such persons are similarly situated.
16. Adjustments.
(a) Changes in Capitalization. Subject to any required action by the
shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option and the number of shares of Common Stock that have been
authorized for issuance under the Plan but as to which no Options have yet been
granted or which have been returned to the Plan upon cancellation or expiration
of an Option, as well as the price per share of Common Stock covered by each
such outstanding Option, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a stock
split, reverse stock split, stock dividend, combination or reclassification of
the Common Stock, or any other increase or
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<PAGE>
decrease in the number of issued shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, all outstanding Options will terminate immediately
prior to the consummation of such proposed action, unless otherwise provided by
the Board. The Board may, in the exercise of its discretion in such instances,
declare that any Option shall terminate as of a date fixed by the Board and give
each Option holder the right to exercise his Option as to all or any part of the
shares of Common Stock covered by the Option, including shares as to which the
Option would not otherwise be exercisable.
(c) Sale or Merger. In the event of a proposed sale of all or substantially
all of the assets of the Company, or the merger of the Company with or into
another corporation, the Board, in the exercise of its sole discretion, may take
such action as it deems desirable, including, but not limited to: (i) causing an
Option to be assumed or an equivalent option to be substituted by the successor
corporation or a parent or subsidiary of such successor corporation, (ii)
providing that each Option holder shall have the right to exercise his Option as
to all of the shares of Common Stock covered by the Option, including shares as
to which the Option would not otherwise be exercisable, or (iii) declaring that
an Option shall terminate at a date fixed by the Board provided that the Option
holder is given notice and opportunity to exercise the then exercisable portion
of his Option prior to such date.
17. Amendment. The Board may terminate or amend the Plan at any time, with
respect to shares as to which Options have not been granted, subject to any
required shareholder approval or any shareholder approval that the Board may
deem to be advisable for any reason, such as for the purpose of obtaining or
retaining any statutory or regulatory benefits under tax, securities or other
laws or satisfying any applicable stock exchange listing requirements. The Board
may not, without the consent of the holder of an Option, alter or impair any
Option previously granted under the Plan, except as specifically authorized
herein.
18. Reservation of Shares. The Company, during the term of the Plan, will
at all times reserve and keep available such number of shares as shall be
sufficient to satisfy the requirements of the Plan. Inability of the Company to
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any shares hereunder, shall relieve the Company of any liability for the
failure to issue or sell such shares as to which such requisite authority shall
not have been obtained.
19. Effect on Other Plans. Participation in the Plan shall not affect an
employee's eligibility to participate in any other benefit or incentive plan of
the Company or any subsidiary
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<PAGE>
of the Company. Any Options granted pursuant to the Plan shall not be used in
determining the benefits provided under any other plan of the Company or any
subsidiary of the Company unless specifically provided.
20. Duration of the Plan. The Plan shall remain in effect until all Options
granted under the Plan have been satisfied by the issuance of shares, but no
Option shall be granted more than ten years after the earlier of the date the
Plan is adopted by the Company or is approved by the Company's shareholders.
21. Forfeiture for Dishonesty. Notwithstanding anything to the contrary in
the Plan, if the Board finds, by a majority vote, after full consideration of
the facts presented on behalf of both the Company and any optionee, that the
optionee has been engaged in fraud, embezzlement, theft, commission of a felony
or dishonest conduct in the course of his employment or retention by the Company
or any subsidiary of the Company that damaged the Company or any subsidiary of
the Company or that the optionee has disclosed confidential information of the
Company or any subsidiary of the Company, the optionee shall forfeit all
unexercised Options and all exercised Options under which the Company has not
yet delivered the certificates. The decision of the Board in interpreting and
applying the provisions of this Section 21 shall be final. No decision of the
Board, however, shall affect the finality of the discharge or termination of
such optionee by the Company or any subsidiary of the Company in any manner.
22. No Prohibition on Corporate Action. No provision of the Plan shall be
construed to prevent the Company or any officer or director thereof from taking
any action deemed by the Company or such officer or director to be appropriate
or in the Company's best interest, whether or not such action could have an
adverse effect on the Plan or any Options granted hereunder, and no optionee or
optionee's estate, personal representative or beneficiary shall have any claim
against the Company or any officer or director thereof as a result of the taking
of such action.
23. Indemnification. With respect to the administration of the Plan, the
Company shall indemnify each present and future member of the Board against, and
each member of the Board shall be entitled without further action on his part to
indemnity from the Company for, all expenses (including the amount of judgments
and the amount of approved settlements made with a view to the curtailment of
costs of litigation, other than amounts paid to the Company itself) reasonably
incurred by him in connection with or arising out of, any action, suit or
proceeding in which he may be involved by reason of his being or having been a
member of the Board, whether or not he continues to be such member at the time
of incurring such expenses; provided, however, that such indemnity shall not
include any expenses incurred by any such member of the Board (i) in respect of
matters as to which he shall be finally adjudged in any such action, suit or
proceeding to have been guilty of gross negligence or willful misconduct in the
performance of his duty as such member of the Board; or (ii) in respect of any
matter in which any settlement is effected for an amount in excess of the amount
approved by the Company on the advice of its legal counsel; and provided further
that no right of indemnification under the provisions set forth herein shall be
available to or enforceable by any such member of the Board unless, within 60
days after institution of any such action, suit or proceeding, he shall have
offered the Company in writing the opportunity to handle and defend same at its
own expense. The
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foregoing right of indemnification shall inure to the benefit of the heirs,
executors or administrators of each such member of the Board and shall be in
addition to all other rights to which such member may be entitled as a matter of
law, contract or otherwise.
24. Miscellaneous Provisions.
(a) Compliance with Plan Provisions. No optionee or other person shall have
any right with respect to the Plan, the Common Stock reserved for issuance under
the Plan or in any Option until a written option agreement shall have been
executed by the Company and the optionee and all the terms, conditions and
provisions of the Plan and the Option applicable to such optionee (and each
person claiming under or through him) have been met.
(b) Approval of Counsel. In the discretion of the Board, no shares of
Common Stock, other securities or property of the Company or other forms of
payment shall be issued hereunder with respect to any Option unless counsel for
the Company shall be satisfied that such issuance will be in compliance with
applicable federal, state, local and foreign legal, securities exchange and
other applicable requirements.
(c) Compliance with Rule 16b-3. To the extent that Rule 16b-3 under the
Exchange Act applies to the Plan or to Options granted under the Plan, it is the
intention of the Company that the Plan comply in all respects with the
requirements of Rule 16b-3, that any ambiguities or inconsistencies in
construction of the Plan be interpreted to give effect to such intention and
that, if the Plan shall not so comply, whether on the date of adoption or by
reason of any later amendment to or interpretation of Rule 16b-3, the provisions
of the Plan shall be deemed to be automatically amended so as to bring them into
full compliance with such rule.
(d) Effects of Acceptance of Option. By accepting any Option or other
benefit under the Plan, each optionee and each person claiming under or through
him shall be conclusively deemed to have indicated his acceptance and
ratification of, and consent to, any action taken under the Plan by the Company
and/or the Board or its delegates.
(e) Construction. The masculine pronoun shall include the feminine and
neuter, and the singular shall include the plural, where the context so
indicates.
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EXHIBIT 5.1
December 10, 1997
The Board of Directors of
First Lehigh Corporation
Thirty Three Rock Hill Road
Bala Cynwyd, PA 19004
Gentlemen:
We have acted as counsel to First Lehigh Corporation (the "Company") in
connection with the preparation and filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, of a registration
statement on Form S-8 (the "Registration Statement") relating to the offer and
sale by the Company of up to 159,000 shares (the "Shares") of Common Stock, $.01
par value, of the Company, pursuant to the Company's 1989 Equity Incentive Plan
and the Company's Nonqualified Stock Option Plan (the "Plans").
As counsel to the Company, we have supervised all corporate proceedings in
connection with the preparation and filing of the Registration Statement. We
have also examined the Company's Articles of Incorporation and By-laws, as
amended to date, the corporate minutes and other proceedings and the records
relating to the authorization, sale and issuance of the Shares, and such other
documents and matters of law as we have deemed necessary or appropriate in order
to render this opinion.
Based upon the foregoing, it is our opinion that each of the Shares, when
issued in accordance with the terms and conditions of the respective Plans, will
be duly authorized, legally and validly issued and outstanding, fully paid and
nonassessable.
We hereby consent to the use of this opinion in the Registration Statement.
Sincerely,
/s/ DUANE, MORRIS & HECKSCHER LLP
--------------------------------------
Exhibit 23.1
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of First Lehigh Corporation on Form S-8 of our report dated February 14, 1997,
appearing in the Annual Report on Form 10-KSB of First Lehigh Corporation for
the year ended December 31, 1996 and to the reference to us under Item 5
"Interests of Named Experts and Counsel."
/s/ Parente, Randolph, Orlando, Carey & Associates
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Parente, Randolph, Orlando, Carey & Associates
Wilkes-Barre, Pennsylvania
December 10, 1997
