As filed with the Securities and Exchange Commission on March 26, 2001
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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REPUBLIC FIRST BANCORP, INC.
(Exact name of issuer as specified in its charter)
Pennsylvania 23-0993790
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
REPUBLIC FIRST BANCORP, INC
1608 Walnut Street
Philadelphia, PA 19103
(215) 735-4422
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
AMENDED AND RESTATED STOCK OPTION PLAN AND RESTRICTED STOCK PLAN
OF REPUBLIC FIRST BANCORP, INC.
(Full title of the plan)
Robert Dobie
Corporate Secretary
Republic First Bancorp, Inc
1608 Walnut Street
Philadelphia, PA 19103
(215) 735-4422
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Arthur E. Vossberg III, Esquire
Spector Gadon & Rosen, P.C.
1635 Market Street, 7th Floor
Philadelphia, PA 19103
CALCULATION OF REGISTRATION FEE
- --------------------------- ---------------- ----------------------------- ---------------------------- -------------------------
Title of Securities Amount to be Proposed maximum offering Proposed maximum aggregate Amount of Registration
to be registered registered price per share offering price Fee
- --------------------------- ---------------- ----------------------------- ---------------------------- -------------------------
Common Stock 500,000 $ 5.00 $2,500,000.00 $695.00
$.01 par value
- --------------------------- ---------------- ----------------------------- ---------------------------- -------------------------
<FN>
(1) Estimated solely for the purpose of calculating the registration fee. The
proposed maximum aggregate offering price has been computed in accordance
with Rule 457(c) based on the average of the high and low prices of the
Common Stock on the NASDAQ on March 22, 2001.
</FN>
Page 1 of 9 Pages
Exhibit Index Appears on Page 9
Global: Company = Registrant
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission are
incorporated by reference in this Registration Statement:
(a) The Registrant's annual report on Form 10-KSB for the fiscal year
ended December 31, 2000,and the information presented under the Caption "Common
Stock" in the Registration Statement on Form SB-2 filed with the SEC on October
15, 1997 (Registration No. 333-37951).
(b) Proxy Statement dated March 23, 2001.
(a) Registration Statement on Form S-8, SEC File Number 333-60265,
filed on July 31, 1998 relating to the registration of 900,000
shares to be issued under the Amended and restated Stock Option
Plan and Resticted Stock Plan of the Registrant.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post effective amendment to this registration statement
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents. Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference shall be deemed to be modified or
superseded for purposes hereof 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 such
statement so modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 1741 through 1750 of Subchapter D of Chapter 17 of the
Pennsylvania Business Corporation Law of 1988, as amended, (the "PBCL") contain,
among other things, provisions for mandatory and discretionary indemnification
of a corporation's directors, officers, and other personnel.
Under Section 1741, unless otherwise limited by its by-laws, a
corporation has the power to indemnify directors and officers under certain
prescribed circumstances against expenses (including attorney's fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred in connection with a threatened, pending, or completed action or
proceeding, whether civil, criminal, administrative, or investigative (other
than an action by or in the right of the corporation) to which any of them is a
party or threatened to be made a party by reason of his being a representative,
director, or officer of the corporation or serving at the request of the
corporation as a representative of another domestic or foreign corporate for
profit or not-for-profit, partnership, joint venture, trust, or other enterprise
if he acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the corporation and, with respect to any
criminal proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action or proceeding by judgment, order,
settlement, or conviction or upon a plea of nolo contendere or its equivalent
does not of itself create a presumption that the person did not act in good
faith and in a manner that he reasonably believed to be in, or not opposed to,
the best interests of the corporation and, with respect to any criminal
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action or proceeding by judgment, order, settlement, or
conviction or upon a plea of nolo contendere or its equivalent does not of
itself create a presumption that the person did not act in good faith and in a
manner that he reasonably believed to be in, or not opposed to, the best
interests of the corporation and, with respect to any criminal proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 1742 provides for indemnification with respect to derivative
and corporate actions similar to that provided by Section 1741. However,
indemnification is not provided under Section 1742 with respect to any claim,
issue or matter as to which a director or officer has been adjudged to be liable
to the corporation unless and only to the extent that the proper court
determines upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, a director or officer is fairly and
reasonably entitled to indemnity for the expenses that the court deems proper.
Section 1743 provides that indemnification against expenses is
mandatory to the extent that the director or officer has been successful on the
merits or otherwise in defense of any such action or proceeding referred to in
Sections 1741 or 1742.
Section 1744 provides that unless ordered by a court, any
indemnification under Sections 1741 or 1742 shall be made by the corporation as
authorized in the specific case upon a determination that indemnification of
directors and officers is proper because the director or officer met the
applicable standard of conduct, and such determination will be made by the board
of directors by a majority vote of a quorum of directors not parties to the
action or proceeding; if a quorum is not obtainable or, if obtainable, and a
majority of disinterested directors so directs, by independent legal counsel or
by the shareholders.
Section 1745 provides that expenses incurred by a director or officer
in defending any action or proceeding referred to in the Subchapter may be paid
by the corporation in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation.
Section 1746 provides generally that except in any case where 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
indemnification and advancement of expenses provided by the Subchapter shall not
be deemed exclusive of any other rights to which a director or officer seeking
indemnification or advancement of expenses may be entitled under any by-law,
agreement, vote of shareholders, or disinterested directors or otherwise, both
as to action in his official capacity and as to action in another capacity while
holding that office.
Section 1747 also grants a corporation the power to purchase and
maintain insurance on behalf of any director or officer against any liability
incurred by him in his capacity as officer or director whether or not the
corporation would have the power to indemnify him against the liability under
the Subchapter of the PBCL.
-3-
Sections 1748 and 1749 apply to the indemnification and advancement of
expenses contained in the Subchapter to successor corporations resulting from
consolidation, merger, or division and to service as a representative of such
corporations or of employee benefit plans.
Section 1750 provides that the indemnification and advancement of
expenses granted pursuant to the Subchapter, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
representative of the corporation and shall inure to the benefit of the heirs
and personal representatives of that person.
Article V of the Company's By-Laws contains provisions allowing for
indemnification of directors and officers to the extent permitted under
Subchapter D of Chapter 17 of the PBCL.
Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the 1933 Act and is therefore
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
The following exhibits are filed herewith or incorporated by reference.
5-1 Opinion of Spector Gadon & Rosen, PC.
23-1 Consent of KPMG Peat Marwick LLP.
23-2 Consent of Spector Gadon & Rosen, PC.
(See Exhibit 5-1)
99-1. Republic First Bancorp, Inc.'s Amended and Restated Stock
Option Plan and Restricted Stock Plan.
Item 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
-4-
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(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 (ii) do not
apply if the registration statement is on Form S-3, and the
information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) 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.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any
financial statements required by Rule 3-19 of Regulation S-X at the
start of any delayed offering or throughout a continuous offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
-5-
SIGNATURES
The Registrant. 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 Philadelphia, PA, on the 22nd day of February, 2001.
REPUBLIC FIRST BANCORP, INC.
(Registrant)
Date: February 22, 2001 By: /s/ Jere A. Young
----------------------------------------
JERE A. YOUNG
President
Chief Executive Officer
----------------------------------------
In accordance with the requirements of the Securities Act of 1933, this
registration statement was signed by the following person in the capacities and
on the dates stated.
Date: February 22, 2001 By: /s/ Jere A. Young
----------------------------------------
JERE A. YOUNG
President
Chief Executive Officer
Date: February 22, 2001 By: /s/ Paul Frenkiel
----------------------------------------
PAUL FRENKIEL
Executive Vice President
Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jere A. Young and Paul Frenkiel, or each
of them, as true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and 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, and each of them, full power and authority to be done in an about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Date: February 22, 2001 By: /s/ Harry D. Madonna
-------------------------------------
HARRY D. MADONNA
Chairman of the Board
Date: February 22, 2001 By: /s/ Kenneth Adelberg
-------------------------------------
KENNETH ADELBERG
Director
Date: February 22, 2001 By: /s/ William Batoff
-------------------------------------
WILLIAM BATOFF
Director
Date: February 22, 2001 By: /s/ Daniel S. Berman
-------------------------------------
DANIEL S. BERMAN
Director
Date: February 22, 2001 By: /s/ Michael J. Bradley
-------------------------------------
MICHAEL J. BRADLEY
Director
Date: February 22, 2001 By: /s/ Sheldon E. Goldberg
-------------------------------------
SHELDON E. GOLDBERG
Director
Date: February 22, 2001 By: /s/ James E. Schleif
-------------------------------------
JAMES E. SCHLEIF
Director
-7-
Date: February 22, 2001 By: /s/ Steven J. Shotz
-------------------------------------
STEVEN J. SHOTZ
Director
Date: February 22, 2001 By: /s/ Harris Wildstein
-------------------------------------
HARRIS WILDSTEIN
Director
Date: February 22, 2001 By: /s/ Neal I. Rodin
-------------------------------------
NEAL I. RODIN
Director
-8-
EXHIBIT INDEX
Exhibit
Number
5-1 Opinion of Spector Gadon & Rosen PC
as to the legality of the shares registered
23-1 Consent of KPMG Peat Marwick LLP
23-2 Consent of Spector Gadon & Rosen
(See Exhibit 5-1)
99-1 Amended and Restated Stock Option Plan
and Restricted Stock Plan of Republic First Bancorp, Inc.
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