-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, ClO8vmwcT+qAHS6r2Kh3XNk6cPNtELKoFoij+kjkWNZnz2CvXEg0+8yyYvpNWwjp k9AsqjbN749TKRdUDFRz6A== 0000950154-01-500269.txt : 20010703 0000950154-01-500269.hdr.sgml : 20010703 ACCESSION NUMBER: 0000950154-01-500269 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20010702 EFFECTIVENESS DATE: 20010702 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FIDELITY D & D BANCORP INC CENTRAL INDEX KEY: 0001098151 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 233017653 STATE OF INCORPORATION: PA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-64356 FILM NUMBER: 1673726 BUSINESS ADDRESS: STREET 1: BLAKELY & DRINKER STREETS CITY: DUNMORE STATE: PA ZIP: 18512 BUSINESS PHONE: 5703428281 MAIL ADDRESS: STREET 1: BLAKELY & DRINKER STREETS CITY: DUNMORE STATE: PA ZIP: 18512 S-8 1 fidelity-s8_51907.txt FIDELITY D & D BANCORP S-8 As filed with the Securities and Exchange Commission on July 2, 2001 Registration No. 333-__________ ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 FIDELITY D & D BANCORP, INC. (Exact Name of Registrant As Specified In Its Charter) PENNSYLVANIA 23-3017653 ------------ ---------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) BLAKELY AND DRINKER STREETS 18512 DUNMORE, PENNSYLVANIA ----- (Address of principal executive offices) (Zip Code) -------------------------------------------- FIDELITY D & D BANCORP, INC. 2000 INDEPENDENT DIRECTORS STOCK OPTION PLAN AND FIDELITY D & D BANCORP, INC. 2000 STOCK INCENTIVE PLAN (FULL TITLE OF THE PLAN) -------------------------------------------- JOSEPH J. EARYES EXECUTIVE VICE PRESIDENT AND CHIEF EXECUTIVE OFFICER FIDELITY D & D BANCORP, INC. BLAKELY AND DRINKER STREETS DUNMORE, PENNSYLVANIA 18512 (570) 342-8281 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copies To: NICHOLAS BYBEL, JR., ESQUIRE CHERYL A. ZEMAN, ESQUIRE SHUMAKER WILLIAMS, P.C. POST OFFICE BOX 88 HARRISBURG, PENNSYLVANIA 17108 (717) 763-1121 --------------------------------------------
CALCULATION OF REGISTRATION FEE - ---------------------------------------------------------------------------------------------------------------------------------- Title of Securities Amount Proposed Maximum Proposed Maximum Amount of to be to be Offering Price Aggregate Registration Registered Registered(1) Per Share(2) Offering Price(2) Fee - ---------------------------------------------------------------------------------------------------------------------------------- Common Stock 50,000 (3) $36.50 $1,825,000 $456.25 without Par Value Common Stock 50,000 (4) $36.50 $1,825,000 $456.25 without Par Value Total 100,000 $912.50 - ----------------------------------------------------------------------------------------------------------------------------------
(1) Based on the maximum number of shares of Fidelity D & D Bancorp, Inc. common stock, without par value, authorized for issuance under the plans set forth above. (2) Estimated pursuant to Rule 457(c) and (h)(1) solely for the purpose of calculating the amount of the registration fee based upon the average of the high and low prices of the common stock on June 27, 2001, as reported in the National Association of Securities Dealers, Inc.'s Over-the-Counter Electronic Bulletin Board, with respect to the shares of common stock that may be offered and sold under the plans. (3) Represents 50,000 shares authorized for issuance, and to be registered for sale, under the Fidelity D & D Bancorp, Inc. 2000 Independent Directors Stock Option Plan. In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this registration statement also covers an indeterminate number of shares of common stock as may become issuable by reason of the anti-dilution provisions of the plan. (4) Represents 50,000 shares authorized for issuance, and to be registered for sale, under the Fidelity D & D Bancorp, Inc. 2000 Stock Incentive Plan. In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this registration statement also covers an indeterminate number of shares of common stock as may become issuable by reason of the anti-dilution provisions of the plan. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS ITEM 1. PLAN INFORMATION. Fidelity D & D Bancorp, Inc. files this registration statement to register 50,000 shares of its common stock, without par value, that may be issued and sold, from time to time, under the Fidelity D & D Bancorp, Inc. 2000 Independent Directors Stock Option Plan. Fidelity D & D Bancorp also files this registration statement to register 50,000 shares of its common stock, without par value, that may be issued and sold, from time to time, under the Fidelity D & D Bancorp, Inc. 2000 Stock Incentive Plan. Shares issued under the plans may be authorized, original issue shares, authorized and issued shares reacquired by Fidelity D & D Bancorp, or shares purchased in open market transactions. We will send or give the documents containing the information specified in Items 1 and 2 of Part I of Form S-8 to the participants of each plan as specified by Rule 428(b)(1). In accordance with the note to Part I of Form S-8, we have not filed these documents with the Securities and Exchange Commission (SEC) and have omitted them as part of this registration statement on Form S-8. These documents and the documents incorporated by reference in this registration statement, pursuant to Item 3 of Part II of Form S-8, taken together, constitute a prospectus for each plan that meets the requirements of Section 10(a) of the Securities Act of 1933. The prospectus for plan participants is referred to as the Section 10(a) prospectus. The Section 10(a) prospectus does not contain all of the information you can find in this registration statement and the exhibits to this registration statement. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. The SEC allows us to "incorporate by reference" the information we file with it into this registration statement. This means we can disclose information to you by referring you to those documents. We incorporate by reference into this registration statement the documents listed in Item 3 of Part II of this Form S-8, as filed with the SEC, and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of 1934 until all of the securities registered on this Form S-8 are sold. We also incorporate by reference these documents into the Section 10(a) prospectus. The information incorporated by reference is considered to be a part of the Section 10(a) prospectus and this registration statement, and information that we file later with the SEC will automatically update and supersede the information in the prospectus and this registration statement. Fidelity D & D Bancorp will provide, without charge, to each plan participant a copy of the documents incorporated by reference in Item 3 of Part II of this registration statement, upon written or oral request. Further, we will provide plan participants, without charge, upon written or oral request, other documents required to be delivered pursuant to SEC Rule 428(b). Written requests should be directed to: Fidelity D & D Bancorp, Inc. Attn: Robert P. Farrell, Treasurer Blakely and Drinker Streets Dunmore, Pennsylvania 18512 Telephone requests may be directed to Robert P. Farrell, Treasurer, telephone number (570) 342-8281. You should rely only on the information contained in or incorporated by reference in the Section 10(a) prospectus or any supplement or this registration statement. We have not authorized anyone to provide you with information different from that contained in the prospectus or registration statement. We are only offering and selling shares of common stock in states where offers and sales are permitted. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. Fidelity D & D Bancorp, Inc. has filed the following documents with the SEC, and we incorporate these documents by reference into this registration statement: (a) Fidelity D & D Bancorp, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2000, filed with the SEC on March 30, 2001; (b) Fidelity D & D Bancorp, Inc.'s Quarterly Report on Form 10-Q for the quarter ended March 31, 2001, filed with the SEC on May 15, 2001; and (c) The description of Fidelity D & D Bancorp, Inc.'s common stock that appears under the heading, "Description of Securities," of pages 89-98 of Fidelity D & D Bancorp, Inc.'s prospectus, which forms a part of Fidelity D & D Bancorp, Inc.'s Registration Statement No. 333-45668 on Form S-1, filed with the SEC on September 12, 2000, as amended by Pre-Effective Amendment No. 1 filed on October 11, 2000, and any other amendments or reports filed for the purpose of updating such description. All documents subsequently filed by Fidelity D & D Bancorp, Inc. pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, 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 into this registration statement and the Section 10(a) prospectus and to be a part hereof from the date of filing such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference in this registration statement and the Section 10(a) prospectus shall be deemed to be modified or superseded for purposes of this registration statement, to the extent that a statement contained in this registration statement or any subsequently filed document, which also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. 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 or Section 10(a) prospectus. ITEM 4. DESCRIPTION OF SECURITIES. Not required because the securities to be offered are registered under Section 12(g) of the Securities Exchange Act of 1934. II-1 ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Subchapter D of Chapter 17 of the Pennsylvania Business Corporation Law of 1988, as amended (the "BCL"), (15 Pa. C.S.A. ss.ss.1741-1750) provides that a ---------- business corporation shall have the power under certain circumstances to indemnify directors, officers, employees and agents against certain expenses incurred by them in connection with any threatened, pending or completed action, suit or proceeding. Section 1721 of the BCL (relating to the Board of Directors) declares that unless otherwise provided by statute or in a by-law adopted by the shareholders, all powers enumerated in Section 1502 (relating to general powers) and elsewhere in the BCL or otherwise vested by law in a business corporation shall be exercised by or under the authority of, and the business and affairs of every business corporation shall be managed under the direction of, a board of directors. If any such provision is made in the by-laws, the powers and duties conferred or imposed upon the board of directors under the BCL shall be exercised or performed to such extent and by such person or persons as shall be provided in the by-laws. Section 1712 of the BCL provides that a director shall stand in a fiduciary relation to the corporation and shall perform his duties as a director, including his duties as a member of any committee of the board upon which he may serve, in good faith, in a manner he reasonably believes to be in the best interests of the corporation and with such care, including reasonable inquiry, skill and diligence, as a person of ordinary prudence would use under similar circumstances. In performing his duties, a director shall be entitled to rely in good faith on information, opinions, reports or statements, including financial statements and other financial data, in each case prepared or presented by any of the following: (1) one or more officers or employees of the corporation whom the director reasonably believes to be reliable and competent in the matters presented; (2) counsel, public accountants or other persons as to matters which the director reasonably believes to be within the professional or expert competence of such person; or (3) a committee of the board upon which he does not serve, duly designated in accordance with law, as to matters within its designated authority, which committee the director reasonably believes to merit confidence. A director shall not be considered to be acting in good faith, if he has knowledge concerning the matter in question that would cause his reliance to be unwarranted. II-2 Section 1716 also states that in discharging the duties of their respective positions, the board of directors, committees of the board and individual directors may, in considering the best interests of the corporation, consider the effects of any action upon employees, upon suppliers and customers of the corporation and upon communities in which offices or other establishments of the corporation are located, and all other pertinent factors. The consideration of those factors shall not constitute a violation of Section 1712. In addition, absent breach of fiduciary duty, lack of good faith or self-dealing, actions taken as a director or any failure to take any action shall be presumed to be in the best interests of the corporation. Moreover, Section 1713 addresses the personal liability of directors and states that if a by-law adopted by the shareholders so provides, a director shall not be personally liable, as such, for monetary damages for any action taken, or any failure to take any action, unless: (1) the director has breached or failed to perform the duties of his office under this section; and (2) the breach or failure to perform constitutes self-dealing, willful misconduct or recklessness. The provisions discussed above shall not apply to: (1) the responsibility or liability of a director pursuant to any criminal statute; or (2) the liability of a director for the payment of taxes pursuant to local, state or federal law. Finally, Section 1714 states that a director of a corporation who is present at a meeting of its board of directors, or of a committee of the board, at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent is entered in the minutes of the meeting or unless he files his written dissent to the action with the secretary of the meeting before the adjournment thereof or transmits the dissent in writing to the secretary of the corporation immediately after the adjournment of the meeting. The right to dissent shall not apply to a director who voted in favor of the action. Nothing in this Section 1721 shall bar a director from asserting that minutes of the meeting incorrectly omitted his dissent if, promptly upon receipt of a copy of such minutes, he notified the secretary, in writing, of the asserted omission or inaccuracy. Section 1741 of the BCL (relating to third party actions) provides that unless otherwise restricted in its by-laws, a business corporation shall have the power to indemnify any person who was or is a party, or is threatened to be made a party to any 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), by reason of the fact that such person is or was a representative of the corporation, or is or was serving at the request of the corporation as a representative of another domestic or foreign corporation for profit or not-for-profit, partnership, joint venture, trust or other enterprise, against II-3 expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with the action or proceeding if such person 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 shall 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 not unlawful. Section 1742 of the BCL (relating to derivative actions) provides that unless otherwise restricted in its by-laws, a business corporation shall have the power to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a representative of the corporation, or is or was serving at the request of the corporation as a representative of another domestic or foreign corporation for profit or not-for-profit, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of the action if such person acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation. Indemnification shall not be made under this section in respect of any claim, issue or matter as to which such person has been adjudged to be liable to the corporation unless, and only to the extent that, the court of common pleas of the judicial district embracing the county in which the registered office of the corporation is located or the court in which such action was brought determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court of common pleas or such other court shall deem proper. Section 1743 of the BCL (relating to mandatory indemnification) provides for mandatory indemnification of directors and officers such that to the extent that a representative of the business corporation has been successful on the merits or otherwise in defense of any action or proceeding referred to in Sections 1741 (relating to third party actions) or 1742 (relating to derivative actions), or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith. Section 1744 of the BCL (relating to procedure for effecting indemnification) provides the procedure for effecting indemnification. Under this section unless ordered by a court, any indemnification under Section 1741 (relating to third party actions) or 1742 (relating to derivative actions) shall be made by the business corporation only as authorized in the specific case upon a determination that indemnification of the representative is proper in the circumstances because such person has met the applicable standard of conduct set forth in those sections. The determination shall be made: II-4 (1) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to the action or proceeding; (2) if such quorum is not obtainable, or, if obtainable and a majority vote of a quorum of disinterested directors so directs, by independent legal counsel in a written opinion; or (3) by the shareholders. Section 1745 of the BCL (relating to advancing expenses) provides that expenses (including attorneys' fees) incurred in defending any action or proceeding referred to above may be paid by the business corporation in advance of the final disposition of the action or proceeding upon receipt of an undertaking by or on behalf of the representative to repay such amount if it is ultimately determined that such person is not entitled to be indemnified by the corporation as authorized by the BCL or otherwise. Section 1746 of the BCL (relating to supplementary coverage) provides that the indemnification and advancement of expenses provided by or granted pursuant to the other sections of the BCL shall not be deemed exclusive of any other rights to which a person seeking indemnification or advancement of expenses may be entitled under any other by-law, agreement, vote of shareholders or disinterested directors or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding such office. Section 1746 of the BCL also provides that indemnification referred to above shall not be made 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. Section 1746 further declares that indemnification under any by-law, agreement, vote of shareholders or directors or otherwise, may be granted for any action taken or any failure to take any action and may be made whether or not the corporation would have the power to indemnify the person under any other provision of law except as provided in this section and whether or not the indemnified liability arises or arose from any threatened, pending or completed action by or in the right of the corporation. Such indemnification is declared to be consistent with the public policy of the Commonwealth of Pennsylvania. Section 1747 of the BCL (relating to the power to purchase insurance) provides that unless otherwise restricted in its by-laws, a business corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a representative of the corporation or is or was serving at the request of the corporation as a representative of another domestic or foreign corporation for profit or not-for-profit, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against that liability under the provisions of the BCL. Such insurance is declared to be consistent with the Commonwealth of Pennsylvania's public policy. II-5 Section 1750 of the BCL (relating to duration and extent of coverage) declares that the indemnification and advancement of expenses provided by, or granted pursuant to, the BCL shall, 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 representative of that person. Article 23 of the By-laws of the Registrant provides a broad range of indemnification for its officers and directors, in accordance with the above provisions of the BCL. In essence, officers and directors will be indemnified for any act committed while in the course of their association with the Registrant provided that the act was in good faith and in a manner reasonably believed to be in, or not opposed to, the best interest of the Registrant and, with respect to any criminal proceeding, had no reasonable cause to believe his conduct was unlawful. Directors and officers will be presumed to be entitled to indemnification, absent breaches of fiduciary duty, lack of good faith or self-dealing and shall be entitled to indemnification unless their conduct is determined by a court to have constituted willful misconduct or recklessness. Insofar as indemnification for liabilities arising under the Securities Act of 1933 (the "1933 Act") 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 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 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 a director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the manner 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 1933 Act and will be governed by the final adjudication of such issue. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. EXHIBIT NO. - ----------- 4.1 Amended and Restated Articles of Incorporation of Registrant. Incorporated by reference to Exhibit 3(i) to Registrant's Registration Statement No. 333-90273 on Form S-4, filed with the SEC on November 3, 1999, and as amended by Amendment No. 4 on April 6, 2000. II-6 4.2 Bylaws of Registrant. Incorporated by reference to Exhibit 3(ii) to Registrant's Registration Statement No. 333-90273 on Form S-4, filed with the SEC on November 3, 1999, and as amended by Amendment No. 4 on April 6, 2000. 4.3 Fidelity D & D Bancorp, Inc. 2000 Independent Directors Stock Option Plan. 4.4 Fidelity D & D Bancorp, Inc. 2000 Stock Incentive Plan. 4.5 Registrant's 2000 Dividend Reinvestment Plan. Incorporated by reference to Exhibit 4.3 to Registrant's Registration Statement No. 333-45668, filed with the SEC on September 12, 2000, as amended by Pre-Effective Amendment No. 1 on October 11, 2000, and by Post-Effective Amendment No. 1 on Form S-3 on May 30, 2001. 5 Opinion of Shumaker Williams, P.C. re: legality of shares. 23.1 Consent of Parente Randolph, P.C. 23.2 Consent of Shumaker Williams, P.C., Independent Auditors (Included in Exhibit 5). 24 Power of Attorney of Directors and Officers (Included on Signature Pages). ITEM 9. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: (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; II-7 (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) shall not ------- apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant with the Commission pursuant to Section 13 or Section 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 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. (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 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. (c) 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 Securities Act of 1933 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 Securities Act of 1933 and will be governed by the final adjudication of such issue. II-8 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 Borough of Dunmore, Lackawanna County, Commonwealth of Pennsylvania on June 29, 2001. FIDELITY D & D BANCORP, INC. (Registrant) By: /s/ Joseph J. Earyes ------------------------------------------ Joseph J. Earyes Executive Vice President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Joseph J. Earyes and Robert P. Farrell, and each of them, his true and lawful attorney-in-fact, as agent with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacity, to sign any or all amendments to this registration statement and to file the same, will all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-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 and to all intents and purposes as they might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, 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 dates indicated. Capacity Date -------- ---- /s/ Joseph J. Earyes Executive Vice President June 29, 2001 - ------------------------------ and Chief Executive Officer Joseph J. Earyes (Principal Executive Officer) /s/Robert P. Farrell Treasurer June 29, 2001 - ------------------------------ (Principal Financial Robert P. Farrell and Accounting Officer) Capacity Date -------- ---- /s/ Samuel C. Cali Chairman of the Board June 29, 2001 - ------------------------------ of Directors Samuel C. Cali /s/ Paul A. Barrett Director June 29, 2001 - ------------------------------ Paul A. Barrett /s/ Brian J. Cali Director June 29, 2001 - ------------------------------ Brian J. Cali /s/ Patrick J. Dempsey Director June 29, 2001 - ------------------------------ Patrick J. Dempsey /s/ John F. Glinsky, Jr. Director, Secretary June 29, 2001 - ------------------------------ John F. Glinsky, Jr. /s/ Michael F. Marranca Director, President June 29, 2001 - ------------------------------ Michael F. Marranca /s/ Mary E. McDonald Director June 29, 2001 - ------------------------------ Mary E. McDonald /s/ Michael J. McDonald Director June 29, 2001 - ------------------------------ Michael J. McDonald (The above directors constitute a majority of the Board of Directors.) INDEX TO EXHIBITS EXHIBIT NO. - ----------- 4.1 Amended and Restated Articles of Incorporation of Registrant. Incorporated by reference to Exhibit 3(i) to Registrant's Registration Statement No. 333-90273 on Form S-4, filed with the SEC on November 3, 1999, and as amended by Amendment No. 4 on April 6, 2000. 4.2 Bylaws of Registrant. Incorporated by reference to Exhibit 3(ii) to Registrant's Registration Statement No. 333-90273 on Form S-4, filed with the SEC on November 3, 1999, and as amended by Amendment No. 4 on April 6, 2000. 4.3 Fidelity D & D Bancorp, Inc. 2000 Independent Directors Stock Option Plan. 4.4 Fidelity D & D Bancorp, Inc. 2000 Stock Incentive Plan. 4.5 Registrant's 2000 Dividend Reinvestment Plan. Incorporated by reference to Exhibit 4.3 to Registrant's Registration Statement No. 333-45668, filed with the SEC on September 12, 2000, as amended by Pre-Effective Amendment No. 1 on October 11, 2000, and by Post-Effective Amendment No. 1 on Form S-3 on May 30, 2001. 5 Opinion of Shumaker Williams, P.C. re: legality of shares. 23.1 Consent of Parente Randolph, P.C., Independent Auditors 23.2 Consent of Shumaker Williams, P.C. (Included in Exhibit 5). 24 Power of Attorney of Directors and Officers (Included on Signature Pages). EX-4 2 fidelity-exh43.txt 2000 INDEPENDENT DIRECTORS STOCK OPION PLAN EXHIBIT 4.3 FIDELITY D & D BANCORP, INC. 2000 INDEPENDENT DIRECTORS STOCK OPTION PLAN FIDELITY D & D BANCORP, INC. 2000 INDEPENDENT DIRECTORS STOCK OPTION PLAN 1. Company Purpose. The 2000 Independent Directors Stock Option Plan (the ---------------- "Plan") is established to advance the development, growth and financial condition of Fidelity D & D Bancorp, Inc. (the "Company") and its subsidiaries, by providing an incentive, through participation in the appreciation of the capital stock of the Company, and thereby securing, retaining and motivating members of the Company's Board of Directors who are not officers or employees of the Company or any subsidiary thereof (the "Outside Directors"). 2. Term. The Plan shall become effective as of the date it is adopted by ----- the Company's Board of Directors (the "Board"), and shall be presented for approval at the next meeting of the Company's shareholders. Any and all options and rights awarded under the Plan (the "Awards") before it is approved by the Company's shareholders shall be conditioned upon, and may not be exercised before, receipt of shareholder approval, and shall lapse upon failure to receive such approval. Unless previously terminated by the Board, the Plan shall terminate on, and no options shall be granted after the tenth anniversary of the effective date of the Plan; however, the Plan and all Awards made under the Plan prior to such date shall remain in effect until such Awards have been satisfied or terminated in accordance with the Plan and the terms of such Awards. 3. Stock. The shares of the Company's common stock, without par value (the ------ "Common Stock"), issuable under the Plan shall not exceed 50,000 shares. The amount of Common Stock issuable under the Plan may be adjusted pursuant to Section 10 hereof. The Common Stock issuable hereunder may be either authorized and unissued shares of Common Stock, or authorized shares of Common Stock issued by the Company and subsequently reacquired by it as treasury stock, or shares purchased in open market transactions. Under no circumstances shall fractional shares be issued under the Plan. The Company's failure to obtain any governmental authority deemed necessary by the Company's legal counsel for the proper grant of the stock options under this Plan and/or the issuance of Common Stock under the Plan shall relieve the Company of any duty or liability for the failure to grant stock options under the Plan and/or issue Common Stock under the Plan as to which such authority has not been obtained. 4. Stock Options. Stock options shall be granted under the Plan to each -------------- Outside Director of the Company, annually, on the first business day of January (the "Grant Date"), with the first award of options to be made hereunder on January 2, 2001. Each Outside Director who is a member of the Company's Board of Directors on the Grant Date shall be awarded stock options to purchase 500 shares of Common Stock (the "Stock Options") under the following terms and conditions: (a) The time period during which any Stock Option is exercisable shall be ten (10) years after the date of grant. (b) If a director, who has received an award pursuant to the Plan, ceases to be a member of the Board of Directors for any reason, the director may exercise the Stock Option not more than twelve (12) months after such cessation. If a director, who has received an award pursuant to the Plan dies, the director's qualified personal representative, or any person who acquires a Stock Option pursuant to the director's Will or the laws of descent and distribution, may exercise such Stock Option during its remaining term for a period of not more than twelve (12) months after the director's death to the extent that the Stock Option would then be and remains exercisable. (c) The purchase price of a share of Common Stock subject to a Stock Option shall be the fair market value of the Common Stock on the date of grant, as determined under Section 6 hereof. (d) The Stock Option shall be made by a written agreement in the form, attached hereto as Exhibit "A," with such changes therein as may be determined by the Committee (as such term is defined in Section 12 hereof) (the "Stock Option Agreement"). 5. Exercise. Except as otherwise provided in the Plan, a Stock Option may --------- be exercised in whole or in part by giving written notice thereof to the Secretary of the Company, or his designee, identifying the Stock Option being exercised, the number of shares of Common Stock with respect thereto, and other information pertinent to the exercise of the Stock Option. The purchase price of the shares of Common Stock with respect to which a Stock Option is exercised shall be paid with the written notice of exercise, either in cash or in Common Stock, which has been held by the director for at least six (6) months, at its then current fair market value, or any combination of cash or Common Stock. Funds received by the Company from the exercise of any Stock Option shall be used for its general corporate purposes. The number of shares of Common Stock subject to a Stock Option shall be reduced by the number of shares of Common Stock with respect to which the director has exercised rights under the related Stock Option Agreement. If the Company or its shareholders execute an agreement to dispose of all or substantially all of the Company's assets or capital stock by means of sale, merger, consolidation, reorganization, liquidation or otherwise, as a result of which the Company's shareholders as of immediately before such transaction will not own at least fifty percent (50%) of the total combined voting power of all classes of voting capital stock of the surviving entity (be it the Company or otherwise) immediately after the execution of such transaction, thereupon any and all outstanding Stock Options shall immediately become exercisable until the consummation of such transaction, or if not consummated, until the agreement therefor expires or is terminated, in which case thereafter all Stock Options shall be treated as if the agreement never had been executed. If during any period of two (2) consecutive years, the individuals, who at the beginning of such period, constituted the Board of Directors, cease for any reason to constitute at least a majority of the Board of Directors (unless the election of each director of the Board of Directors, who was not a director of the Board of Directors at the beginning of such period, was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period) thereupon any and all outstanding Stock Options shall immediately become exercisable. If there is an actual, attempted or threatened change in the ownership of at least twenty-five percent (25%) of any class of voting stock of 2 the Company through the acquisition of, or an offer to acquire, such percentage of the Company's voting stock by anyperson or entity, or persons or entities acting in concert or as a group, and such acquisition or offer has not been duly approved by the Board of Directors, thereupon any and all outstanding Stock Options shall immediately become exercisable. 6. Value. Where used in the Plan, the "Fair Market Value" of Common Stock ------ shall mean and be determined as follows: (i) in the event that the Common Stock is listed on an established exchange, the closing price of the Common Stock on the Stock Option's Grant Date or, if no trade occurred on that day, on the next preceding day on which a trade occurred; or (ii) in the event that the Common Stock is not listed on an established exchange, but is then quoted on the National Association of Securities Dealers Automated Quotation System ("NASDAQ"), the average of the average of the closing bid and asked quotations of the Common Stock for the five (5) trading days immediately preceding the Grant Date. In either case, in the event that no closing bid or asked quotation is available on one (1) or more of such trading days, the fair market value shall be determined by reference to the five (5) trading days immediately preceding the Grant Date on which closing bid and asked quotations are available. 7. Continued Relationship. Nothing in the Plan or in any Stock Option shall ----------------------- confer upon any director any right to continue his/her relationship with the Company as a director, or limit or affect any rights, powers or privileges that the Company or its affiliates may have to supervise, discipline and terminate such director, and the relationships thereof. 8. General Restrictions. The Board of Directors may require, in its --------------------- discretion, (a) the listing, registration or qualification of the Common Stock issuable pursuant to the Plan on any securities exchange or under any federal or state securities or other laws, (b) the approval of any governmental authority, or (c) an execution of an agreement by any director with respect to disposition of any Common Stock (including, without limitation, that at the time of the director's exercise of the Stock Option, any Common Stock thereby acquired is being and will be acquired solely for investment purposes and without any intention to sell or distribute the Common Stock). If the Board of Directors so requires, then Stock Options shall not be exercised, in whole or in part, unless such listing, registration, qualification, approval or agreement has been appropriately effected or obtained to the satisfaction of the Board of Directors and legal counsel for the Company. Notwithstanding anything to the contrary herein, a director shall not sell, transfer or otherwise dispose of any shares of Common Stock acquired pursuant to a Stock Option unless at least six (6) months have elapsed from the date the Stock Option was granted and, in any event, the transfer or disposition is made in accordance with Section 16 of the Securities Exchange Act of 1934, as amended, and as the same may be amended from time to time. 9. Rights. Except as otherwise provided in the Plan, a director shall have ------- no rights as a holder of the Common Stock subject to a Stock Option unless and until one or more certificates for the shares of Common Stock are issued and delivered to the director. No Stock Option, or the grant thereof, shall limit or affect the right or power of the Company or its affiliates to adjust, reclassify, recapitalize, reorganize or otherwise change its or their capital or business structure, or to merge, consolidate, dissolve, liquidate or sell any or all of its or their business, property or assets. 3 10. Adjustments. In the event that the shares of Common Stock of the ------------ Company, as presently constituted, shall be changed into or exchanged for a different number or kind of shares of Common Stock or other securities of the Company or of other securities of the Company or of another corporation or entity (whether by reason of merger, consolidation, recapitalization, reclassification, split-up, combination of shares or otherwise) or if the number of such shares of Common Stock shall be increased through the payment of a stock dividend, stock split or similar transaction, then, there shall be substituted for or added to each share of Common Stock of the Company that was theretofore appropriated, or that thereafter may become subject to a Stock Option under the Plan, the number and kind of shares of Common Stock or other securities into which each outstanding share of the Common Stock of the Company shall be so changed or for which each such share shall be exchanged or to which each share shall be entitled, as the case may be. Each outstanding Stock Option shall be appropriately amended as to price and other terms, as may be necessary to reflect the foregoing events. If there shall be any other change in the number or kind of the outstanding shares of Common Stock of the Company, or of any Common Stock or other securities into which such Common Stock shall have been changed, or for which it shall have been exchanged, and if a majority of the members of the Board of Directors shall, in their sole discretion, determine that the change equitably requires an adjustment in any Stock Option that was theretofore granted or that may thereafter be granted under the Plan, then such adjustment shall be made in accordance with the determination. The grant of a Stock Option pursuant to the Plan shall not affect, in any way, the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure, to merge, to consolidate, to dissolve, to liquidate or to sell or transfer all or any part of its business or assets. Fractional shares resulting from any adjustment in a Stock Option pursuant to this Section 10 may be settled as a majority of the members of the Board of Directors shall determine. To the extent that the foregoing adjustments relate to Common Stock or securities of the Company, such adjustments shall be made by a majority of the members of the Board of Directors, whose determination in that respect shall be final, binding and conclusive. Notice of any adjustment shall be given by the Company to each holder of a Stock Option that is so adjusted. 11. Assumption of Obligations under The Fidelity Deposit and Discount Bank ---------------------------------------------------------------------- 1998 Independent Directors Stock Option Plan. The Plan shall replace The - --------------------------------------------- Fidelity Deposit and Discount Bank 1998 Independent Directors Stock Option Plan, as assumed by the Company pursuant to the Plan of Reorganization dated December 21, 1999, by and among the Company, The Fidelity Deposit and Discount Bank and The Fidelity Deposit and Discount Interim Bank, and the related Plan of Merger, dated December 21, 1999, by and between The Fidelity Deposit and Discount Bank and The Fidelity Deposit and Discount Interim Bank. No further awards shall be made under or pursuant to the 1998 Independent Directors Plan upon the effective date of the Plan. To the extent any stock options under the 1998 Independent Directors Stock Option Plan remain unexercised, the Company has assumed all obligations of The Fidelity Deposit and Discount Bank under such outstanding options, pursuant to the aforesaid Plan 4 of Reorganization and Plan of Merger and subject to adjustment for the exchange ratio of the Company's common stock for the Bank's common stock stated therein. Upon the receipt of shareholder approval for the Plan, each holder of an outstanding option under the 1998 Independent Directors Stock Option Plan shall be entitled to receive, in cancellation of, and in substitution for, such option, a new option under the Plan to acquire shares of common stock of the Company, with the number of shares and the exercise price adjusted by the exchange ratio of the Company's common stock for the Bank's common stock stated in the Plan of Reorganization and Plan of Merger. Otherwise, such outstanding stock options under the prior 1998 Independent Directors Stock Option Plan shall remain in effect until they have been exercised, satisfied, cancelled or terminated in accordance with their terms and the aforesaid Plan of Reorganization and Plan of Merger. 12. Forfeiture. Notwithstanding anything to the contrary in this Plan, if ----------- an option holder is engaged in fraud, embezzlement, theft, commission of a felony, or dishonesty in the course of his relationship with the Company or its affiliates, or has disclosed trade secrets of the Company or its affiliates, the option holder shall forfeit all rights under and to all unexercised Stock Options, and all exercised Stock Options for which the Company has not yet delivered certificates for shares of Common Stock, and all rights to receive Stock Options shall be automatically canceled. 13. Administration. The ability to control and manage the operation and --------------- administration of the Plan shall be vested in the Board of Directors or in a committee of two or more members of the Board of Directors, selected by the Board of Directors (the "Committee"). The Committee shall have the authority and discretion to interpret the Plan, to establish, amend and rescind any rules and regulations relating to the Plan, to determine the terms and provisions of any agreements made pursuant to the Plan, and to make any and all determinations that may be necessary or advisable for the administration of the Plan. Any interpretation of the Plan by the Committee and any decision made by it under the Plan is final and binding. 14. Miscellaneous. Any reference contained in this Plan to a particular -------------- section or provision of law, rule or regulation shall include any subsequently enacted or promulgated section or provision of law, rule or regulation, as the case may be. With respect to persons subject to Section 16 of the Securities Exchange Act of 1934, as amended, transactions under this Plan are intended to comply with all applicable conditions of the rules and the regulations promulgated thereunder or any successor rules that may be promulgated by the Securities and Exchange Commission. To the extent any provision of this Plan fails to so comply, it shall be deemed null and void, to the extent permitted by applicable law, subject to the provisions of Section 15, below. Where used in this Plan, the plural shall include the singular, and, unless the context otherwise clearly requires, the singular shall include the plural and the masculine shall include the feminine. The captions of the numbered Sections contained in this Plan are for convenience only, and shall not limit or affect the meaning, interpretation or construction of any of the provisions of the Plan. 15. Transferability. Except as otherwise provided by the Board of ---------------- Directors, Stock Options granted under the Plan are not transferable except as designated by the participant by will and the laws of descent and distribution. 16. Amendment. The Plan may be amended, suspended or terminated, without ---------- notice, by a 5 majority vote of the Board of Directors of the Company. Notwithstanding the foregoing, no amendment of the Plan shall, without the consent of the effected participant, alter or impair any rights or obligations enjoyed by such participant under any unexercised Stock Option. 17. Taxes. The issuance of shares of Common Stock under the Plan shall be ------ subject to any applicable taxes or other laws or regulations of the United States of America and any state or local authority having jurisdiction there over. - - - - - - - END - - - - - - - 6 EXHIBIT A FIDELITY D & D BANCORP, INC. 2000 INDEPENDENT DIRECTORS STOCK OPTION PLAN STOCK OPTION AGREEMENT A STOCK OPTION (the "Stock Option") for ( ) shares of common ---------- ------- stock, without par value (the "Common Stock"), of Fidelity D & D Bancorp, Inc., a Pennsylvania business corporation, is hereby granted to ---------------------- (the "Director"), subject in all respects to the terms and provisions of the Fidelity D & D Bancorp, Inc. 2000 Independent Directors Stock Option Plan (the "Plan"). The option price as determined under Section 6 of the Plan is $ per share. - ---------------- This Stock Option shall vest and become exercisable six (6) months from the date of this Agreement. This Option may not be exercised more than ten (10) years from the date of grant, and may be exercised during such term only in accordance with the terms of the Plan and this Agreement. ATTEST: FIDELITY D & D BANCORP, INC. By - ----------------------------------- ----------------------------------- Secretary , President Dated: -------------------------- The Director acknowledges receipt of a copy of the Plan, and represents that he or she is familiar with the terms and provisions thereof. The Director hereby accepts this Stock Option subject to all the terms and provisions of the Plan. Dated: -------------------------- -------------------------------------- Director [OPTIONAL PARAGRAPH RE: TRANSFERABLE OPTIONS] 7 (With the Approval of the Committee, on an individual basis) With the prior approval of the Committee or the Board of Directors, as the case may be, this Stock Option may be transferred, for no consideration, to or for the benefit of the Director's Immediate Family (including, without limitation, to a trust for the benefit of the Director's Immediate Family or to a partnership or a limited liability company for one or more members of the Director's Immediate Family), subject to such limits as the Committee may establish, and the transferee shall remain subject to all the terms and conditions applicable to the Stock Option prior to such transfer. The foregoing right to transfer the Stock Option shall apply to the right to consent to amendments to this Agreement and, in the discretion of the Committee, shall also apply to the right to transfer ancillary rights associated with the Stock Option. The term "Immediate Family" shall mean the Director's spouse, parents, children, stepchildren, adoptive relationships, sisters, brothers and grandchildren (and, for this purpose, shall also include the Director). 8 EX-4 3 fidelity-exh44.txt 2000 STOCK INCENTIVE PLAN EXHIBIT 4.4 FIDELITY D & D BANCORP, INC. 2000 STOCK INCENTIVE PLAN FIDELITY D & D BANCORP, INC. 2000 STOCK INCENTIVE PLAN 1. Purpose. The purpose of this Stock Incentive Plan (the "Plan") is to ------- advance the development, growth and financial condition of Fidelity D & D Bancorp, Inc. (the "Company") and each subsidiary thereof, as defined in Section 424 of the Internal Revenue Code of 1986, as amended (the "Code"), by providing incentives through participation in the appreciation of the common stock of the Company to secure, retain and motivate personnel who may be responsible for the operation and for management of the affairs of the Company and any subsidiary now or hereafter existing ("Subsidiary"). 2. Term. The Plan shall become effective as of the date it is adopted by the ---- Company's Board of Directors (the "Board"), and shall be presented for approval at the next meeting of the Company's shareholders. Any and all options and rights awarded under the Plan (the "Awards") before it is approved by the Company's shareholders shall be conditioned upon, and may not be exercised before, receipt of shareholder approval, and shall lapse upon failure to receive such approval. Unless previously terminated by the Board, the Plan shall terminate on, and no options shall be granted after the tenth anniversary of the effective date of the Plan; however, the Plan and all Awards made under the Plan prior to such date shall remain in effect until such Awards have been satisfied or terminated in accordance with the Plan and the terms of such Awards. 3. Stock. Shares of the Company's common stock, without par value (the ----- "Stock"), that may be issued under the Plan shall not exceed, in the aggregate, 50,000 shares, as may be adjusted pursuant to Section 16 hereof. Shares may be either authorized and unissued shares, or authorized shares, issued by and subsequently reacquired by the Company as treasury stock. Under no circumstances shall any fractional shares be awarded under the Plan. Except as may be otherwise provided in the Plan, any Stock subject to an Award that, for any reason, lapses or terminates prior to exercise, shall again become available for grant under the Plan. While the Plan is in effect, the Company shall reserve and keep available the number of shares of Stock needed to satisfy the requirements of the Plan. The Company shall apply for any requisite governmental authority to issue shares under the Plan. The Company's failure to obtain any such governmental authority, deemed necessary by the Company's legal counsel for the lawful issuance and sale of Stock under the Plan, shall relieve the Company of any duty, or liability for the failure to issue or sell the Stock. 4. Administration. The ability to control and manage the operation and -------------- administration of the Plan shall be vested in the Board or in a committee of three or more non-employee members of the Board, selected by the Board (the "Committee"). The Committee shall have the authority and discretion to interpret the Plan, to establish, amend and rescind any rules and regulations relating to the Plan, to determine the terms and provisions of any agreements made pursuant to the Plan, and to make any and all determinations that may be necessary or advisable for the administration of the Plan. Any interpretation of the Plan by the Committee and any decision made by the Committee under the Plan is final and binding. The Committee shall be responsible and shall have full, absolute and final power of authority to determine what, to whom, when and under what facts and circumstances Awards shall be made, and the form, number, terms, conditions and duration thereof, including but not limited to when exercisable, the number of shares of Stock subject thereto, and the stock option exercise prices. The Committee shall make all other determinations and decisions, take all actions and do all things necessary or appropriate in and for the administration of the Plan. No member of the Committee or of the Board shall be liable for any decision, determination or action made or taken in good faith by such person under or with respect to the Plan or its administration. 5. Awards. Awards may be made under the Plan in the form of: (a) "Qualified ------ Options" to purchase Stock, which are intended to qualify for certain tax treatment as incentive stock options under Sections 421 and 422 of the Code, or (b) "Non-Qualified Options" to purchase Stock, which are not intended to qualify under Sections 421 through 424 of the Code. More than one Award may be granted to an eligible person, and the grant of any Award shall not prohibit the grant of any other Award, either to the same person or otherwise, or impose any obligation to exercise on the participant. All Awards and the terms and conditions thereof shall be set forth in written agreements, in such form and content as approved by the Committee from time to time, and shall be subject to the provisions of the Plan whether or not contained in such agreements. Multiple Awards for a particular person may be set forth in a single written agreement or in multiple agreements, as determined by the Committee, but in all cases each agreement for one or more Awards shall identify each of the Awards thereby represented as a Qualified Option or Non-Qualified Option, as the case may be. Unless otherwise stated, in the event that an award of Qualified Option, or any part thereof, for any reason fails to qualify under Sections 421 and 422 of the Code, then that award or part thereof shall be deemed a grant of a Non-Qualified Option. 6. Eligibility. Persons eligible to receive Awards shall be those key officers ----------- and other employees of the Company and each Subsidiary, as determined by the Committee. A person's eligibility to receive an Award shall not confer upon him or her any right to receive an Award. Except as otherwise provided, a person's eligibility to receive, or actual receipt of an Award under the Plan shall not limit or affect his or her benefits under or eligibility to participate in any other incentive or benefit plan or program of the Company or of its affiliates. 7. Qualified Options. In addition to other applicable provisions of the Plan, ----------------- all Qualified Options and Awards thereof shall be under and subject to the following terms and conditions: (a) No Qualified Option shall be awarded more than ten (10) years after the date the Plan is adopted by the Board or the date the Plan is approved by the Company's shareholders, whichever is earlier; (b) The time period during which any Qualified Option is exercisable, as determined by the Committee, shall not commence before the expiration of six (6) months or continue beyond the expiration of ten (10) years after the date the Qualified Option is awarded; 2 (c) If a participant, who was awarded a Qualified Option, ceases to be employed by the Company or any Subsidiary for any reason other than his or her death, the Committee may permit the participant thereafter to exercise the option during its remaining term for a period of not more than three (3) months after cessation of employment to the extent that the Qualified Option was then and remains exercisable, unless such employment cessation was due to the participant's disability, as defined in Section 22(e)(3) of the Code, in which case the three (3) month period shall be twelve (12) months; if the participant dies while employed by the Company or a Subsidiary, the Committee may permit the participant's qualified personal representatives, or any persons who acquire the Qualified Option pursuant to his or her Will or laws of descent and distribution, to exercise the Qualified Option during its remaining term for a period of not more than twelve (12) months after the participant's death to the extent that the Qualified Option was then and remains exercisable; the Committee may impose terms and conditions upon and for the exercise of a Qualified Option after the cessation of the participant's employment or his or her death; (d) The purchase price of Stock subject to any Qualified Option shall not be less than the Stock's Fair Market Value (pursuant to Section 11 hereof) at the time the Qualified Option is awarded or less than the Stock's par value; and (e) Qualified Options may not be sold, transferred or assigned by the participant except by will or the laws of descent and distribution. 8. Non-Qualified Options. In addition to other applicable provisions of the --------------------- Plan, all Non-Qualified Options and Awards thereof shall be under and subject to the following terms and conditions: (a) The time period during which any Non-Qualified Option is exercisable shall not commence before the expiration of six (6) months or continue beyond the expiration of ten (10) years after the date the Non-Qualified Option is awarded; (b) If a participant, who was awarded a Non-Qualified Option, ceases to be eligible under the Plan, before lapse or full exercise of the option, the Committee may permit the participant to exercise the option during its remaining term, to the extent that the option was then and remains exercisable, or for such time period and under such terms and conditions as may be prescribed by the Committee; (c) The purchase price of a share of Stock subject to any Non-Qualified Option shall not be less than the Stock's par value; and (d) Except as otherwise provided by the Committee, Non-Qualified Stock Options granted under the Plan are not transferable except as designated by the participant by Will and the laws of descent and distribution. 9. Exercise. Except as otherwise provided in the Plan, Awards may be exercised -------- in whole or in part by giving written notice thereof to the Secretary of the Company, or his or her designee, 3 identifying the Award to be exercised, the number of shares of Stock with respect thereto, and other information pertinent to exercise of the Award. The purchase price of the shares of Stock with respect to which an Award is exercised shall be paid with the written notice of exercise, either in cash or in securities of the Company, including securities issuable hereunder, at its then current Fair Market Value (pursuant to Section 11 hereof), or it any combination thereof, as the Committee shall determine. Funds received by the Company from the exercise of any Award shall be used for its general corporate purposes. The Committee may permit an acceleration of previously established exercise terms of any Awards as, when, under such facts and circumstances, and subject to such other or further requirements and conditions as the Committee may deem necessary or appropriate. In addition: (a) if the Company or its shareholders execute an agreement to dispose of all or substantially all of the Company's assets or stock by means of sale, merger, consolidation, reorganization, liquidation or otherwise, as a result of which the Company's shareholders, immediately before the transaction, will not own at least fifty percent (50%) of the total combined voting power of all classes of voting stock of the surviving entity (be it the Company or otherwise) immediately after the consummation of the transaction, then any and all outstanding Awards shall immediately become and remain exercisable or, if the transaction is not consummated, until the agreement relating to the transaction expires or is terminated, in which case, all Awards shall be treated as if the agreement was never executed; (b) if there is an actual, attempted or threatened change in the ownership of at least twenty-five percent (25%) of all classes of voting stock of the Company through the acquisition of, or an offer to acquire such percentage of the Company's voting stock by any person or entity, or persons or entities acting in concert or as a group, and the acquisition or offer has not been duly approved by the Board; or (c) if during any period of two (2) consecutive years, the individuals who at the beginning of such period constituted the Board cease, for any reason, to constitute at least a majority of the Board, (unless the election of each director of the Board, who was not a director of the Board at the beginning of such period, was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period) thereupon any and all Awards immediately shall become and remain exercisable. 10. Withholding. When a participant exercises a stock option awarded under the ----------- Plan, the Company, in its discretion and as required by law, may require the participant to remit to the Company an amount sufficient to satisfy fully any federal, state and other jurisdictions' income and other tax withholding requirements prior to the delivery of any certificates for shares of Stock, at the Committee's discretion remittance may be made in cash, shares already held by the participant or by the withholding by the Company of sufficient shares issuable pursuant to the option to satisfy the participant's withholding obligation. 4 11. Value. Where used in the Plan, the "Fair Market Value" of Stock or any ----- options or rights with respect thereto, including Awards, shall mean and be determined by (a) the average of the highest and lowest reported sales prices thereof on the principal established domestic securities exchange on which listed, and if not listed, then (b) the average of the dealer "bid" and "ask" prices thereof on the New York over-the-counter market, as reported by the National Association of Securities Dealers, Inc., in either case as of the specified or otherwise required or relevant time, or if not traded as of such specified, required or relevant time, then based upon such reported sales or "bid" and "ask" prices before and/or after such time in accordance with pertinent provisions of and principles under the Code and the regulations promulgated thereunder. 12. Assumption of Obligations under The Fidelity Deposit and Discount Bank 1998 --------------------------------------------------------------------------- Stock Incentive Plan. The Plan shall replace The Fidelity Deposit and -------------------- Discount Bank 1998 Stock Incentive Plan, as assumed by the Company pursuant to the Plan of Reorganization dated December 21, 1999, by and among the Company, the Fidelity Deposit and Discount Bank and The Fidelity Deposit and Discount Interim Bank, and the related Plan of Merger, dated December 21, 1999, by and between The Fidelity Deposit and Discount Bank and The Fidelity Deposit and Discount Interim Bank. No further awards shall be made under or pursuant to the 1998 Stock Incentive Plan upon the effective date of the Plan. To the extent any stock options under the 1998 Stock Incentive Plan remain unexercised, the Company has assumed all obligations of The Fidelity Deposit and Discount Bank under such outstanding options, pursuant to the aforesaid Plan of Reorganization and Plan of Merger and subject to adjustment for the exchange ratio of the Company's common stock for the Bank's common stock stated therein. Upon the receipt of shareholder approval for the Plan, each holder of an outstanding option under the 1998 Stock Incentive Plan shall be entitled to receive, in cancellation of, and in substitution for, such option, a new option under the Plan to acquire shares of common stock of the Company, with the number of shares and the exercise price adjusted by the exchange ratio of the Company's common stock for the Bank's common stock stated in the Plan of Reorganization and Plan of Merger. Otherwise, such outstanding stock options under the prior 1998 Stock Incentive Plan shall remain in effect until they have been exercised, satisfied, cancelled or terminated in accordance with their terms and the aforesaid Plan of Reorganization and Plan of Merger. 13. Amendment. To the extent permitted by applicable law, the Board may amend, --------- suspend, or terminate the Plan at any time. The amendment or termination of this Plan shall not, without the consent of the participants, alter or impair any rights or obligations under any Award previously granted hereunder. From time to time, the Committee may rescind, revise and add to any of the terms, conditions and provisions of the Plan or of an Award as necessary or appropriate to have the Plan and any Awards thereunder be or remain qualified and in compliance with all applicable laws, rules and regulations, and the Committee may delete, omit or waive any of the terms conditions or provisions that are no longer required by reason of changes of applicable laws, rules or regulations, but not limited to, the provisions of Sections 421 and 422 of the Code, Section 16 of the Securities Exchange Act of 1934, as amended, (the "1934 Act") and the 5 rules and regulations promulgated by the Securities and Exchange Commission. Without limiting the generality of the preceding sentence, each Qualified Option shall be subject to such other and additional terms, conditions and provisions as the Committee may deem necessary or appropriate in order to qualify as a Qualified Option under Section 422 of the Code, including, but not limited to, the following provisions: (a) At the time a Qualified Option is awarded, the aggregate Fair Market Value of the Stock subject thereto and of any Stock or other capital stock with respect to which incentive stock options qualifying under Sections 421 and 422 of the Code are exercisable for the first time by the participant during any calendar year under the Plan and any other plans of the Company or its affiliates, shall not exceed $100,000.00; and (b) No Qualified Option, shall be awarded to any person if, at the time of the Award, the person owns shares of the stock of the Company possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or its affiliates, unless, at the time the Qualified Option is awarded, the exercise price of the Qualified Option is at least one hundred and ten percent (110%) of the Fair Market Value of the Stock on the date of grant and the option, by its terms, is not exercisable after the expiration of five (5) years from the date it is awarded. 14. Continued Employment. Nothing in the Plan or any Award shall confer upon -------------------- any participant or other persons any right to continue in the employ of, or maintain any particular relationship with, the Company or its affiliates, or limit or affect any rights, powers or privileges that the Company or its affiliates may have to supervise, discipline and terminate the participant. However, the Committee may require, as a condition of making and/or exercising any Award, that a participant agree to, and in fact provide services, either as an employee or in another capacity, to or for the Company or any Subsidiary for such time period as the Committee may prescribe. The immediately preceding sentence shall not apply to any Qualified Option, to the extent such application would result in disqualification of the option under Sections 421 and 422 of the Code. 15. General Restrictions. If the Committee or Board determines that it is -------------------- necessary or desirable to: (a) list, register or qualify the Stock subject to the Award, or the Award itself, upon any securities exchange or under any federal or state securities or other laws, (b) obtain the approval of any governmental authority, or (c) enter into an agreement with the participant with respect to disposition of any Stock (including, without limitation, an agreement that, at the time of the participant's exercise of the Award, any Stock thereby acquired is and will be acquired solely for investment purposes and without any intention to sell or distribute the Stock), then such Award shall not be consummated in whole or in part unless the listing, registration, qualification, approval or agreement, as the case may be, shall have been appropriately effected or obtained to the satisfaction of the Committee and legal counsel for the Company. 16. Rights. Except as otherwise provided in the Plan, participants shall have ------ no rights as a holder of the Stock unless and until one or more certificates for the shares of Stock are issued and delivered to the participant. 6 17. Adjustments. In the event that the shares of common stock of the Company, ----------- as presently constituted, shall be changed into or exchanged for a different number or kind of shares of common stock or other securities of the Company or of other securities of the Company or of another corporation or entity (whether by reason of merger, consolidation, recapitalization, reclassification, split-up, combination of shares or otherwise) or if the number of such shares of common stock shall be increased through the payment of a stock dividend, stock split or similar transaction, then, there shall be substituted for or added to each share of common stock of the Company that was theretofore appropriated, or which thereafter may become subject to an option under the Plan, the number and kind of shares of common stock or other securities into which each outstanding share of the common stock of the Company shall be so changed or for which each such share shall be exchanged or to which each such shares shall be entitled, as the case may be. Each outstanding Award shall be appropriately amended as to price and other terms, as may be necessary to reflect the foregoing events. If there shall be any other change in the number or kind of the outstanding shares of the common stock of the Company, or of any common stock or other securities in which such common stock shall have been changed, or for which it shall have been exchanged, and if a majority of the disinterested members of the Committee shall, in its sole discretion, determine that such change equitably requires an adjustment in any Award that was theretofore granted or that may thereafter be granted under the Plan, then such adjustment shall be made in accordance with such determination. The grant of an Award under the Plan shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure, to merge, to consolidate, to dissolve, to liquidate or to sell or transfer all or any part of its business or assets. Fractional shares resulting from any adjustment in Awards pursuant to this Section 16 may be settled as a majority of the disinterested members of the Board of Directors or of the Committee, as the case may be, shall determine. To the extent that the foregoing adjustments relate to common stock or securities of the Company, such adjustments shall be made by a majority of the members of the Board, whose determination in that respect shall be final, binding and conclusive. Notice of any adjustment shall be given by the Company to each holder of an Award that is so adjusted. 18. Forfeiture. Notwithstanding anything to the contrary in this Plan, if the ---------- Committee finds, after full consideration of the facts presented on behalf of the Company and the involved participant, that he or she has been engaged in fraud, embezzlement, theft, commission of a felony, or dishonesty in the course of his or her employment by the Company or by any Subsidiary and such action has damaged the Company or the Subsidiary, as the case may be, or that the participant has disclosed trade secrets of the Company or its affiliates, the participant shall forfeit all rights under and to all unexercised Awards, and under and to all exercised Awards under which the Company has not yet delivered payment or certificates for shares of Stock (as the case may be), all of which Awards and rights shall be automatically canceled. 7 The decision of the Committee as to the cause of the participant's discharge from employment with the Company or any Subsidiary and the damage thereby suffered shall be final for purposes of the Plan, but shall not affect the finality of the participant's discharge by the Company or Subsidiary for any other purposes. The preceding provisions of this paragraph shall not apply to any Qualified Option to the extent such application would result in disqualification of the option as an incentive stock option under Sections 421 and 422 of the Code. 19. Indemnification. In and with respect to the administration of the Plan, the --------------- Company shall indemnify each member of the Committee and/or of the Board, each of whom shall be entitled, without further action on his or her part, to indemnification from the Company for all damages, losses, judgments, settlement amounts, punitive damages, excise taxes, fines, penalties, costs and expenses (including without limitation attorneys' fees and disbursements) incurred by the member in connection with any threatened, pending or completed action, suit or other proceedings of any nature, whether civil, administrative, investigative or criminal, whether formal or informal, and whether by or in the right or name of the Company, any class of its security holders, or otherwise, in which the member may be or may have been involved, as a party or otherwise, by reason of his or her being or having been a member of the Committee and/or of the Board, whether or not he or she continues to be a member of the Committee or of the Board. The provisions, protection and benefits of this Section 18 shall apply and exist to the fullest extent permitted by applicable law to and for the benefit of all present and future members of the Committee and/or of the Board and their respective heirs, personal and legal representatives, successors and assigns, in addition to all other rights that they may have as a matter of law, by contract, or otherwise, except (a) to the extent there is entitlement to insurance proceeds under insurance coverages provided by the Company on account of the same matter or proceeding for which indemnification hereunder is claimed, or (b) to the extent there is entitlement to indemnification from the Company, other than under this Section 18, on account of the same matter or proceeding for which indemnification hereunder is claimed. 20. Miscellaneous. (a) Any reference contained in this Plan to particular ------------- section or provision of law, rule or regulation, including but not limited to the Code and the 1934 Act, shall include any subsequently enacted or promulgated section or provision of law, rule or regulation, as the case may be. With respect to persons subject to Section 16 of the 1934 Act, transactions under this Plan are intended to comply with all applicable conditions of Section 16 and the rules and regulations promulgated thereunder, or any successor rules and regulations that may be promulgated by the Securities and Exchange Commission, and to the extent any provision of this Plan or action by the Committee fails to so comply, it shall be deemed null and void, to the extent permitted by applicable law and deemed advisable by the Committee. (b) Where used in this Plan: the plural shall include the singular, and unless the context otherwise clearly requires, the singular shall include the plural; and the term "affiliates" shall mean each and every Subsidiary and any parent of the Company. (c) The captions of the numbered Sections contained in this Plan are for convenience only, and shall not limit or affect the meaning, interpretation or construction of any of the provisions of the Plan. 8 - - - - - - - - - - - - END - - - - - - - - - - - - 9 EX-5 4 fidelity-exhibit5_51907.txt OPINION OF SHUMAKER WILLIAMS, P.C. EXHIBIT 5 OPINION OF SHUMAKER WILLIAMS, P.C. [On Shumaker Williams, P.C. Letterhead] June 29, 2001 Joseph J. Earyes, Executive Vice President and Chief Executive Officer FIDELITY D & D BANCORP, INC. Blakely and Drinker Streets Dunmore, PA 18512 Re: FIDELITY D & D BANCORP, INC. Registration Statement on Form S-8 Our File No. 1026-00 Dear Mr. Earyes: We have acted as Special Corporate Counsel to Fidelity D & D Bancorp, Inc., a Pennsylvania corporation (the "Corporation") in connection with its Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission relating to the registration of 50,000 shares of its common stock issuable upon the exercise of options granted pursuant to the Corporation's 2000 Stock Incentive Plan and 50,000 shares of its common stock issuable upon the exercise of options granted pursuant to the Corporation's 2000 Independent Directors Stock Option Plan (collectively, the "Plans"). In connection with the foregoing, we have examined, among other things, the Plans, the Registration Statement, Board of Directors resolutions authorizing the Plans and the preparation and filing of the Registration Statement, the Corporation's 2001 Proxy Statement, regarding proposal of the Plans, the Corporation's Certificate of Judges of Election indicating shareholder approval of the Plans, and originals or copies, satisfactory to us, of all such corporate records and other documents as we have deemed relevant and necessary as a basis for the opinion hereinafter expressed. In our examination, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as copies. As to any facts material to our opinion, we have, to the extent that relevant facts were not independently established by us, relied on certificates of public officials and certificates, oaths and declarations of officers or other representatives of the Corporation. Joseph J. Earyes, Executive Vice President and Chief Executive Officer FIDELITY D & D BANCORP, INC. June 29, 2001 Page 2 On the basis of the foregoing and in reliance thereon, we are of the opinion that the Corporation's common stock, without par value, and of original issuance, when sold and issued in accordance with the Plans, the Registration Statement and related prospectuses, will be legally and validly issued, fully paid, and non-assessable. In giving the foregoing opinion, we have assumed that the Corporation will have, at the time of the issuance of common stock under the Plans, a sufficient number of authorized shares available for issue. We consent to the use of this opinion as an exhibit to the Corporation's Registration Statement on Form S-8, filed by the Corporation with the Securities and Exchange Commission, relating to the Plans. In giving this consent, we do not admit that we come within the category of persons whose consent is required under Sections 7 or 11 of the Securities Act of 1933, as amended, or the rules and regulations thereunder. Very truly yours, SHUMAKER WILLIAMS, P.C. By: /s/NICHOLAS BYBEL, JR. ------------------------- Nicholas Bybel, Jr. EX-23 5 fidelityexh23-51907.txt CONSENT OF PARENTE RANDOLPH, P.C. EXHIBIT 23.1 CONSENT OF PARENTE RANDOLPH, P.C. [On Parente Randolph, P.C. Letterhead] CONSENT OF INDEPENDENT AUDITORS We hereby consent to the incorporation by reference in Fidelity D & D Bancorp, Inc.'s Registration Statement on Form S-8 of our report dated February 9, 2001, relating to Fidelity D & D Bancorp, Inc.'s consolidated financial statements, which report is included in Fidelity D & D Bancorp, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2000, filed with the Securities and Exchange Commission. /s/ Parente Randolph, P.C. PARENTE RANDOLPH, P.C. Wilkes-Barre, Pennsylvania June 29, 2001 -----END PRIVACY-ENHANCED MESSAGE-----