Registration No. 333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PENN TREATY AMERICAN CORPORATION
(Exact name of registrant as specified in its charter)
Pennsylvania 23-1664166
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3440 Lehigh Street
Allentown, Pennsylvania 18103
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(Address of Principal Executive Offices) (Zip Code)
Penn Treaty American Corporation
2002 Employee Incentive Stock Option Plan
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(Full title of the plan)
Irving Levit
Chairman of the Board and Chief Executive Officer
Penn Treaty American Corporation
3440 Lehigh Street
Allentown, Pennsylvania 18103
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(Name and address of agent for service)
(610) 965-2222
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(Telephone number, including area code, of agent for service)
with a copy to:
Justin P. Klein, Esquire
Ballard Spahr Andrews & Ingersoll, LLP
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103-7599
(215) 665-8500
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered(1) share(2) price(2) fee
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Common Stock,
par value $.10
per share 2,000,000 $3.93 $7,860,000 $723.00
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(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this
registration statement shall be deemed to cover an indeterminate number of
additional shares of Penn Treaty American Corporation common stock issuable
in the event the number of outstanding shares of Penn Treaty is increased
by stock split, reclassification, stock dividend or the like.
(2) Estimated solely for the purpose of calculating the registration fee. In
accordance with Rule 457(h), the price shown is based upon the average of
the high and low price of Penn Treaty's common stock on August 12, 2002,
$3.93, as reported on the New York Stock Exchange for Penn Treaty's common
stock.
Part I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
will be given or sent to all employees who participate in the Penn Treaty
American Corporation 2002 Employee Incentive Stock Option Plan as specified by
Rule 428 under the Securities Act of 1933, as amended.
Part II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), by Penn Treaty American Corporation (File No. 0-15972) ("Penn Treaty")
are incorporated herein by reference:
(a) Penn Treaty's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001;
(b) Penn Treaty's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2002;
(c) Penn Treaty's Current Report on Form 8-K filed February 21, 2002; and
(d) The description of Penn Treaty's common stock contained in Penn
Treaty's registration statement on Form 8-A, including any amendments
or reports filed for the purpose of updating such description.
All documents filed by Penn Treaty pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, after the date of this Registration Statement and
prior to the termination of the offering, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of filing such documents.
Any statement contained herein or in a document incorporated by reference or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that such
statement is modified or superseded by any other subsequently filed document
which is incorporated or is deemed to be incorporated by reference herein. Any
such 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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Officers and Directors.
Sections 1741 to 1750 of the Pennsylvania Business Corporation Law of 1988,
as amended, permit indemnification of directors, officers, employees and agents
of a corporation under certain conditions and subject to certain limitations.
Under the provisions of Penn Treaty's Amended and Restated Bylaws, as
amended, each person who is or was a director, officer, employee or agent of
Penn Treaty shall be indemnified by Penn Treaty against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding (other than an action by or in right of Penn Treaty) if he or she
acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to, Penn Treaty's best interests, and, with respect to any criminal
action or proceedings, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit or proceedings by judgment, order,
settlement, conviction, or upon a plea of nolo contendre or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in, or not
opposed to, Penn Treaty's best interests and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his or her conduct
was unlawful.
In connection with the defense or settlement of a suit brought by or in the
right of Penn Treaty, Penn Treaty's bylaws provide that each person who is or
was a director, officer, employee or agent of Penn Treaty shall be indemnified
only against expenses, including attorney's fees incurred in the defense or
settlement of such suit if he or she acted in good faith and in a manner he or
she reasonably believed to be in, or not opposed to, Penn Treaty's best
interest, except that if such a person is adjudged to be liable in such a suit
for negligence or misconduct in the performance of his or her duty to Penn
Treaty, he or she cannot be indemnified unless the Court of Common Pleas of the
county in which Penn Treaty registered office is located or any other court in
which such action or suit was brought determines that he or she is fairly and
reasonably entitled to indemnity for such expenses.
Under the provisions of Penn Treaty's bylaws, Penn Treaty's directors shall
have no personal liability to Penn Treaty or Penn Treaty's shareholders for
monetary damages for any action taken unless they have breached their duty of
good faith or duty of loyalty or failed to perform the duties of their offices
and/or their breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness.
Penn Treaty's bylaws provide that expenses incurred by an officer,
director, employee or agent of Penn Treaty in defending a civil or criminal
action, suit or proceeding may be paid by Penn Treaty in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of the director, officer, employee or agent to repay such amount if
it shall ultimately be determined that he or she is not entitled to be
indemnified by Penn Treaty.
In addition, to the extent that an officer, director, employee or agent of
Penn Treaty is successful on the merits or otherwise in defense of any action,
suit or proceeding brought against him or her by reason of the fact that he or
she is Penn Treaty's director, officer, employee or agent, Penn Treaty's bylaws
provide that he or she shall be indemnified against expenses, including
attorneys' fees actually and reasonably incurred in connection therewith.
Penn Treaty maintains director and officer insurance with respect to those
claims described above in customary amounts.
The foregoing summaries are necessarily subject to the complete text of the
relevant document or statute.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Penn Treaty American Corporation 2002 Employee Incentive Stock
Option Plan (incorporated by reference to Appendix A to Penn
Treaty American Corporation's Proxy Statement dated April 30,
2002 filed pursuant to Section 14(a) of the Securities Exchange
Act).
4.2 Specimen copy of Common Stock Certificate (incorporated by
reference to Exhibit 4 to Penn Treaty's Registration Statement on
Form S-1, as amended (File No. 033-92690)).
5 Opinion of Ballard Spahr Andrews & Ingersoll, LLP as to the
legality of the securities to be offered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included as
part of Exhibit 5).
24 Power of Attorney (included in signature page).
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most
recent post-effective amendment hereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in this registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, 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
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
Penn Treaty hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of Penn Treaty's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of Penn
Treaty pursuant to the foregoing provisions, or otherwise, Penn Treaty 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 Penn Treaty of expenses incurred or
paid by a director, officer or controlling person of Penn Treaty 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, Penn Treaty will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Allentown, Commonwealth of Pennsylvania, on August
13, 2002.
PENN TREATY AMERICAN CORPORATION
By /s/ Irving Levit
-----------------------------------
Irving Levit, Chairman of the Board
and Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Irving Levit and A.J. Carden, and each or
any one of them, his 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 perform each and every act
and thing requisite and necessary to be done in connection therewith, 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
his or their substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
----------------------------- ----------------------------- --------------
/s/ Irving Levit Chairman of the Board and August 13, 2002
----------------------------- Chief Executive Officer
Irving Levit (principal executive officer)
/s/ Cameron B. Waite Executive Vice President and August 13, 2002
----------------------------- Chief Financial Officer
Cameron B. Waite (principal financial officer)
/s/ Michael F. Grill Treasurer, Comptroller and August 13, 2002
----------------------------- Director (principal
Michael F. Grill accounting officer)
/s/ Jack D. Baum Vice President of Agency August 13, 2002
----------------------------- Management and Director
Jack D. Baum
/s/ A.J. Carden Executive Vice President August 13, 2002
----------------------------- and Director
A.J. Carden
/s/ Alexander M. Clark Director August 13, 2002
-----------------------------
Alexander M. Clark
/s/ Francis R. Grebe Director August 13, 2002
-----------------------------
Francis R. Grebe
/s/ Gary E. Hindes Director August 13, 2002
-----------------------------
Gary E. Hindes
/s/ Matthew W. Kaplan Director August 13, 2002
-----------------------------
Matthew W. Kaplan
/s/ Domenic P. Stangherlin Director August 13, 2002
-----------------------------
Domenic P. Stangherlin
EXHIBIT INDEX
Number Exhibit
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4.1 Penn Treaty American Corporation 2002 Employee Incentive Stock Option Plan
(incorporated by reference to Exhibit A to Penn Treaty American
Corporation's Proxy Statement dated April 30, 2002 filed pursuant to
Section 14(a) of the Securities Exchange Act).
4.2 Specimen copy of Common Stock Certificate (incorporated by reference to
Exhibit 4 to Penn Treaty's Registration Statement on Form S-1 (File No.
033-92690))
5 Opinion of Ballard Spahr Andrews & Ingersoll, LLP as to the legality of the
securities to be offered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included as part of
Exhibit 5).
24 Power of Attorney (included in signature page).
Exhibit 5
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP]
August 13, 2002
Penn Treaty American Corporation
3440 Lehigh Street
Allentown, PA 18103
Re: Penn Treaty American Corporation 2002 Employee Incentive Stock Option Plan
- Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Penn Treaty American Corporation (the
"Company") in connection with the registration under the Securities Act of 1933,
as amended, of 2,000,000 shares of Penn Treaty's common stock, par value $0.10
per share (the "Shares"), issuable pursuant to awards ("Awards") granted under
Penn Treaty's 2002 Employee Incentive Stock Option Plan (the "Plan"). Awards
made pursuant to the Plan will consist of grants of options to purchase shares
of Penn Treaty's common stock.
In rendering our opinion, we have reviewed the Plan and such certificates,
documents, corporate records and other instruments and matters of law as in our
judgment are necessary or appropriate to enable us to render the opinion
expressed below. In giving this opinion, we are assuming the authenticity of all
instruments presented to us as originals, the conformity with the originals of
all instruments presented to us as copies and the genuineness of all signatures.
The opinion expressed below is based on the assumption that a Registration
Statement on Form S-8 with respect to the Shares will have been filed by Penn
Treaty with the Securities and Exchange Commission and will have become
effective before any of the Shares are issued, and that persons acquiring the
Shares will do so strictly in accordance with the terms of the Plan and will
receive a prospectus containing all the information required by Part I of the
Registration Statement on Form S-8 before acquiring such Shares.
Based on the foregoing, we are of the opinion that the Shares, when issued
pursuant to Awards granted under the Plan (including, where applicable, the
payment of any exercise price and the satisfaction of any vesting restrictions)
in accordance with the terms and conditions thereof, will be legally issued,
fully paid and non-assessable.
This opinion is limited to the matters expressly stated herein. No implied
opinion may be inferred to extend this opinion beyond the matters expressly
stated herein. We do not undertake to advise you or anyone else of any changes
in the opinions expressed herein resulting from changes in law, changes in facts
or any other matters that hereafter might occur or be brought to our attention.
This opinion is limited to the Federal law of the United States of America
and the laws of the Commonwealth of Pennsylvania.
We consent to the filing of this opinion as Exhibit 5 to the Registration
Statement on Form S-8 being filed with respect to the offering of the Shares.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll, LLP
2
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated April 1, 2002 relating to the
financial statements and financial statement schedules, which appears in Penn
Treaty American Corporation's Annual Report on Form 10-K for the year ended
December 31, 2001.
/s/ PricewaterhouseCoopers LLP
------------------------------
PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
August 13, 2002