-----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, QsHpQhlzmfl2UMHqYeilwshZosy4TfiEDgWGnmTpJZjrrR4zgt0JTnYZY0vEj5HV 4XDSGVPN3WTp7Usj1EQ8CA== 0000950159-04-000869.txt : 20040928 0000950159-04-000869.hdr.sgml : 20040928 20040928085920 ACCESSION NUMBER: 0000950159-04-000869 CONFORMED SUBMISSION TYPE: 8-A12G PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20040928 DATE AS OF CHANGE: 20040928 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PENNSYLVANIA COMMERCE BANCORP INC CENTRAL INDEX KEY: 0001085706 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 251834776 FILING VALUES: FORM TYPE: 8-A12G SEC ACT: 1934 Act SEC FILE NUMBER: 000-50961 FILM NUMBER: 041048278 BUSINESS ADDRESS: STREET 1: 100 SENATE AVE CITY: CAMP HILL STATE: PA ZIP: 17001-8599 BUSINESS PHONE: 7179755630 MAIL ADDRESS: STREET 1: 100 SENATE AVE CITY: CAMP HILL STATE: PA ZIP: 17001-8599 8-A12G 1 pacommerce8k.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-A FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934 Pennsylvania Commerce Bancorp, Inc. - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Pennsylvania 25-1834776 - ---------------------------- ---------------------- (State of incorporation (I.R.S. Employer or organization) Identification No.) 100 Senate Avenue, P.O. Box 8599 Camp Hill, Pennsylvania 17001-8599 ---------------------------------------- ---------- (Address of principal executive offices) (Zip Code) Securities to be registered pursuant to Section 12(b) of the Act: - -------------------------------- -------------------------------- Title of each class Name of each exchange on which to be so registered each class is to be registered None Not Applicable - -------------------------------- -------------------------------- If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c), check the following box. [ ] If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d), check the following box. [x] Securities Act registration statement file number to which this form relates: * (if applicable) --------- Securities to be registered pursuant to Section 12(g) of the Act: Common Stock, $1.00 par value - -------------------------------------------------------------------------------- (Title of class) - ---------- * Filed in order to clarify the registration of Pennsylvania Commerce Bancorp, Inc.'s common stock, $1.00 par value, pursuant to Section 12(g) of the Securities Exchange Act of 1934, as described under "Introductory Statement." Introductory Statement Effective July 1, 1999, Commerce Bank/Harrisburg, N.A. (the "Bank"), a national bank, the common stock of which was registered under Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Pennsylvania Commerce Bancorp, Inc. (the "Company"), consummated a transaction pursuant to which the Bank became a wholly-owned subsidiary of the Company. In connection with this transaction, the shareholders of the Bank automatically became shareholders of the Company by virtue of the conversion of their shares of Bank common stock (or preferred stock), on a share-for-share basis, for common stock (or preferred stock) of the Company. The shares of the Company's common stock, par value $1.00 per share (the "Common Stock"), were registered with the SEC pursuant to a registration statement on Form S-4 filed with the SEC on May 14, 1999 (File No. 333-78445). In accordance with Securities Exchange Act Release No. 9072 and Rule 12g-3, the Company filed a Form 8-K describing the transaction on July 1, 1999 (the "8-K"), in lieu of filing a registration statement for the Common Stock under Section 12(g) of the Exchange Act. In following this procedure, the Company's common stock was deemed to be registered under Section 12(g) of the Exchange Act. This Form 8-A is hereby filed to clarify that the Common Stock was deemed to be registered under Section 12(g) of the Exchange Act when the 8-K was filed. Item 1. Description of Registrant's Securities to be Registered. ------------------------------------------------------- The Company's authorized capital consists of 10,000,000 shares of common stock $1.00 per value per share (the "Common Stock") and 1,000,000 shares of preferred stock, $10.00 par value per share. Common Stock. Holders of the Company's Common Stock are entitled to cast one vote per share, to receive such dividends as may be declared by the Company's board of directors and, subject to any liquidation preferences of any preferred stock outstanding, to share ratably according to their respective interests in the Company's assets and funds after payment of all debts and other liabilities in the event of liquidation, dissolution or winding-up. The rights, preferences and privileges of holders of the Common Stock will be subject to those of the holders of any shares of the Company's preferred stock that are outstanding or that it may issue in the future. Holders of the Common Stock do not have cumulative voting rights in the election of directors. The Company's shareholders do not have preemptive rights to purchase any securities subsequently issued by the Company and the Common Stock is not subject to redemption or conversion. Preferred Stock. Holders of the Company's Series A preferred stock are entitled to receive preferential dividends in cash, if declared by the board of directors, at a rate of $2.00 per share per year, payable quarterly, before any dividend or other distribution on any junior equity securities, including the Common Stock. Dividends on each share of Series A preferred stock outstanding are non-cumulative. In the event of a liquidation, dissolution or winding up of the Company's affairs, the holders of the Series A preferred stock are entitled to receive an amount equal to the purchase price per share received by the Company plus an amount equal to the sum of all unpaid dividends together with interest on the unpaid dividends before any distribution of assets is made to the holders of Common Stock or any other junior equity security. The Series A preferred stock is redeemable at the Company's option, in whole only, at any time, upon payment of the redemption price of $25.00 per share plus an amount equal to the sum of all unpaid dividends together with interest on the unpaid dividends. The Series A preferred stock is not subject to conversion. Except to the extent to which their vote is required by law, the holders of shares of Series A preferred stock have no right to vote at, to participate in, or to receive any notice of any meeting of shareholders. Except as described below, on any matter on which the holders of Series A preferred stock are entitled to vote, such holders will be entitled to one vote per share. If the dividends on the Series A preferred stock are not paid in full for four quarterly dividends or more, the holders of Series A preferred stock will be entitled to notice of all meetings of shareholders and to full voting rights (together with holders of Common Stock but not as separate class unless otherwise required by law), and each share of Series A preferred stock will then be entitled to two votes per share. So long as any of the Series A preferred stock remains outstanding, the Company may not, either directly or through merger or consolidation, without the affirmative vote of at least 50% of the shares of the Series A preferred stock then outstanding voting separately as a class: o amend, alter or repeal any of the preferences, special rights or powers of the shares of Series A preferred stock or any of the provisions of the Company's articles of incorporation so as to affect them adversely, o authorize any reclassification of the Series A preferred stock, or o issue any class or classes of the equity securities which have a dividend payment or liquidation payment preference equal or superior to the Series A preferred stock. Except as set forth above with respect to the Series A preferred stock, the Company's board of directors may, from time to time, by action of 75% of the entire board of directors, issue shares of the authorized, undesignated preferred stock, in one or more classes or series without shareholder approval. Subject to the provisions of the Company's articles of incorporation and limitations prescribed by law, the Company's board of directors is authorized to adopt resolutions to, among other things, issue the shares, establish the number of shares, change the number of shares constituting any series, and provide for or change the voting powers, designations, preferences and relative rights, qualifications, limitations or restrictions thereof, including dividend rights, terms of redemption, conversion rights and liquidation preferences, in each case without any further action or vote by the Company's shareholders. Limitations on Payment of Dividends. The payment of dividends on the Common Stock will depend largely upon the ability of the Bank to declare and pay dividends to the Company. Dividends will depend primarily upon the Bank's earnings, financial condition, and need for funds, as well as applicable governmental policies and regulations. Even where the Company has earnings in an amount sufficient to pay dividends, the board of directors may determine to retain earnings for the purpose of funding growth. Regulations of the Office of the Comptroller of the Currency ("OCC") place a limit on the amount of dividends the Bank may pay without prior approval. Under OCC regulations, the Bank may not pay a dividend, without prior OCC approval, if the total amount of all dividends declared during the calendar year, including the proposed dividend, exceed the sum of its retained net income to date during the calendar year and its retained net income over the preceding two years. The Bank's ability to pay dividends also is subject to the Bank being in compliance with regulatory capital requirements. The Bank is currently in compliance with these requirements. Regulatory authorities also have authority to prohibit a bank from paying dividends if they deem the proposed payment to be an unsafe or unsound practice. The Board of Governors of the Federal Reserve System ("FRB") has established guidelines with respect to the maintenance of appropriate levels of capital by registered bank holding companies. Compliance with such standards, as currently in effect, or as they may be amended from time to time, could possibly limit the amount of dividends that the Company may pay in the future. The FRB has issued a policy statement on the payment of cash dividends by bank holding companies. In the statement, the FRB expressed its view that a holding company experiencing earnings weaknesses should not pay cash dividends exceeding its net income, or which could only be funded in ways that weakened the holding company's financial health, such as by borrowing. As a depository institution, the deposits of which are insured by the FDIC, the Bank may not pay dividends or distribute any of its capital assets while it remains in default on any assessment due the FDIC. The Bank is not currently in default under any of its obligations to the FDIC. "Anti-Takeover" Provisions The Company's articles of incorporation and bylaws contain several provisions intended to limit the possibility of a takeover, or make a takeover more difficult. In addition to providing for the issuance of preferred stock having terms established by the board of directors without shareholder approval (subject to the approval of the holders of the Series A preferred stock), the Company's articles of incorporation and bylaws provide that: o the affirmative vote of the holders of at least 80% of the outstanding shares of the Common Stock is required to approve amendments to the bylaws, unless at least a majority of the board of directors has voted in favor of the amendment, in which case the affirmative vote of the holders of 80% of the outstanding shares of the Common Stock can change such action; and o at least 80% of the outstanding shares entitled to vote is required to approve any merger, consolidation, sale of assets or similar transaction, unless at least ? of the Company's board of directors approves this type of transaction, in which case the affirmative vote of at least ? of the outstanding shares entitled to vote is required for approval (this provision of the articles of incorporation may not be amended, altered, changed or repealed without the affirmative vote of at least 80% of the outstanding shares entitled to vote, unless at least ? of the Company's board of directors approves this type of transaction, in which case the affirmative vote of at least 2/3 of the outstanding shares entitled to vote is required for approval). The Company's bylaws establish procedures for the nomination of directors by shareholders and the proposal by shareholders of matters to be considered at meetings of the shareholders, including the submission of certain information within the times prescribed in the bylaws. In addition, Pennsylvania has adopted anti-takeover provisions from which a corporation may exempt itself. The Company has not exempted itself from the following anti-takeover provisions of the Pennsylvania Business Corporation Law: o Business Combinations with Interested Shareholders. Subject to certain exceptions, a business combination between a Pennsylvania corporation that has a class or series of shares registered under the Exchange Act, and a beneficial owner of 20% or more of such corporation's voting stock, referred to as an "interested shareholder," may be accomplished only if: (i) the business combination is approved by the corporation's directors prior to the date on which such interested shareholder acquired 20% or more of such stock or if the board approved such interested shareholder's acquisition of 20% or more of such stock prior to such acquisition; (ii) where the interested shareholder owns shares entitled to cast at least 80% of the votes all shareholders would be entitled to cast in an election of directors, the business combination is approved by the vote of shareholders entitled to cast a majority of the votes that all shareholders would be entitled to cast in an election of directors, excluding shares held by the interested shareholder, which vote may occur no earlier than three months after the interested shareholder acquired its 80% ownership, and the consideration received by shareholders in the business combination satisfied certain minimum conditions; (iii) the business combination is approved by the affirmative vote of all outstanding shares of Common Stock; (iv) the business combination is approved by the vote of shareholders entitled to cast a majority of the votes that all shareholders would be entitled to cast in the election of directors, excluding shares held by the interested shareholder, which vote may occur no earlier than five years after the interested shareholder became an interested shareholder; or (v) the business combination that meets certain minimum conditions is approved at a shareholder's meeting called for such purpose no earlier than five years after the interested shareholder became an interested shareholder. o Disgorgement by Certain Controlling Shareholders Following Attempts to Acquire Control. Generally, a registered corporation may recover any profit realized by a "controlling person or group" from the disposition of any equity securities of the corporation to any person or the corporation occurring within 18 months after the person or group attained the status of a controlling person or group, unless such person or group acquired the disposed securities more than 24 months before the person or group obtained the status of controlling person or group. A "controlling person or group," is defined generally to mean either (i) a person or group who has acquired, offered to acquire or, directly or indirectly, publicly disclosed or caused to be disclosed, the intention of acquiring, voting power over voting shares of a registered corporation that would entitle the holder to cast at least 20% of the votes that all shareholders would be entitled to cast in an election of directors, or (ii) a person or group who has otherwise, directly or indirectly, publicly disclosed or caused to be disclosed, that it may seek to acquire control of a corporation through any means. o Control-Share Acquisitions. Generally, a person who acquires voting power over enumerated levels of voting shares of the corporation must obtain the consent of the corporation's other shareholders before being able to exercise voting rights with respect to "control shares." Control shares are defined generally as those voting shares that upon acquisition of voting power over such shares by a person would result in a control-share acquisition, that is, an acquisition in which a person acquires directly or indirectly voting power over voting shares of the corporation which would for the first time entitle that person to cast or direct the casting of: (i) at least 20% but less than 33-?%; (ii) at least 33-?% but less than 50%; or (iii) 50% or more, of the votes which all shareholders of the corporation would be entitled to cast in an election of directors. Voting shares beneficially owned by a person who effects a control-share acquisition also will be deemed to be control shares where beneficial ownership was acquired by the acquiring person (i) within 180 days of the day the person makes a control-share acquisition, or (ii) with the intention of making a control-share acquisition. o Employee Protection Provisions. Generally, "eligible employees," as defined in the Pennsylvania Business Corporation Law, of a corporation whose shareholders have granted "control-share approval," that is, consented to the exercise of voting rights for a person who has effected a control-share acquisition, as defined above, shall receive a one-time lump-sum payment upon the termination of their employment for reasons other than willful misconduct. The termination must have occurred within two years after the control-share approval, or, in the event the termination was pursuant to a formal or informal agreement arrangement or understanding with the person who effected the control-share acquisition, within 90 days before the control-share approval. In addition, the Pennsylvania Business Corporation Law generally prohibits the termination or impairment of the provisions of any "covered labor contract," as defined in the Pennsylvania Business Corporation Law, as a result of a business combination transaction, thereby forcing an acquiror to honor the terms of such contract until it is terminated in accordance with the termination provisions contained in the contract or until the parties to such contract or their successors agree otherwise. o Control Transactions. Holders of Common Stock may object to a control transaction, which means generally the acquisition by a person, or a group of persons acting in concert, of at least 20% of the outstanding voting stock of a corporation, and demand that they be paid in cash the fair value of their shares from the controlling person or group. "Fair value" for purposes of these provisions means an amount not less than the highest price per share paid by the controlling person or group at any time during the 90-day period ending on and including the date of the control transaction, plus an increment representing any value, including without limitation any proportion of any value payable for acquisition of control of the corporation, that may not be reflected in such price. The Pennsylvania Business Corporation Law further allows the Company's board of directors to consider factors other than offering price in deciding upon whether to reject or approve a tender offer or proposed merger or similar transaction. These factors include: o the effect on employees, suppliers and customers; o the effect on the communities in which offices of the corporation are located; and o all other pertinent factors. The Company's articles of incorporation allow its board of directors to consider several economic factors, as well as the factors stated above, in considering whether to reject or approve a tender offer or proposed merger or similar transaction. The existence of the provisions of the Company's articles of incorporation, bylaws and Pennsylvania Business Corporation Law described above may discourage other persons or companies from making a tender offer for, or seeking to acquire a substantial amount of the Common Stock. Listing The Common Stock is quoted on the Nasdaq SmallCap Market under the symbol "COBH." The Company has applied to have the Common Stock listed on the Nasdaq National Market. Item 2. Exhibits. 1. Articles of Incorporation of the Company. 2. By-laws of the Company, as amended. (Incorporated by reference from the Company's Form 10-K filed with the SEC on March 30, 2004). 3. Specimen of Common Stock Certificate. SIGNATURE --------- Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized. Pennsylvania Commerce Bancorp, Inc. Date: September 23, 2004 By: /s/ Mark A. Zody --------------------------------------- Name: Mark A. Zody Title: Chief Financial Officer and Treasurer EX-1 2 exhibit1.txt EXHIBIT 1 ARTICLES OF INCORPORATION PENNSYLVANIA COMMERCE BANCORP, INC. 1. The name of the Corporation is Pennsylvania Commerce Bancorp, Inc. 2. The location and post office address of the initial registered office of the Corporation in the Commonwealth of Pennsylvania is 100 Senate Avenue, P.O. Box 8599, Camp Hill, Pennsylvania 17011. 3. The Corporation is incorporated under the Pennsylvania Business Corporation Law of 1988, as amended, for the following purpose or purposes: To have unlimited power to engage in and to do any lawful act concerning any or all lawful business for which corporations may be incorporated under the provisions of the Pennsylvania Business Corporation Law of 1988, as amended. 4. The term for which the Corporation is to exist is perpetual. 5. The aggregate number of shares which the Corporation shall have authority to issue is 11,000,000 shares, divided into two classes consisting of (a) 10,000,000 shares of Common Stock with a par value of $1.00 per share and (b) 1,000,000 shares of Preferred Stock with a par value of $10.00 per share, of which 40,000 shares shall be designated as Series A Non-cumulative Preferred Stock. The Series A Preferred Stock shall have the designations, preferences, privileges, limitations, restrictions and other rights and qualifications hereinafter described: (a) Designation and Number of Shares. The series of preferred stock shall be designated as "Series A Non-Cumulative Preferred Stock" (hereinafter called "Series A Preferred Stock") and shall consist of a total of 40,000 shares par value $10.00 per share. (b) Dividends. The holders of the Series A Preferred Stock shall be entitled to receive preferential dividends in cash, when, as and if declared by the Board of Directors out of the funds of the Corporation legally available at the time for the payment of dividends, at a rate of $2.00 per share per annum, and no more, payable quarterly on the thirtieth (30th) day of January, April, July and October to holders of record of Series A Preferred Stock at the close of business on the last day of the preceding month, before any dividend or other distribution on (i) any equity securities ranking junior to the Series A Preferred Stock as to the payment of dividends or other distributions ("Junior Stock") and (ii) the Corporation's Common Stock ("Common Stock"); provided, however, that the Board of Directors may, at any time and from time to time, change the payment dates of the Series A Preferred Stock dividend to dates not more than fifteen (15) days before or after those set forth herein, in which event the first dividend payable after each such change in the payment date shall be adjusted accordingly on a daily basis from the dividend payment date last preceding such change. The Board of Directors shall fix the first dividend payment date of the Series A Preferred Stock. Dividends on each share of Series A Preferred Stock outstanding shall be non-cumulative, whether or not in any fiscal year there shall be any funds of the Corporation legally available for the payment of such dividends, so that if in any fiscal year or years, dividends in whole or in part are not paid upon the Series A Preferred Stock, unpaid dividends shall not accumulate as against the holder(s) of the Common Stock or any Junior Stock, so that except as set forth in paragraphs (c) and (d) hereof no sums in any later years shall be paid to the holder(s) of the Series A Preferred Stock with respect to any prior year or years when dividends where not paid, and so that in no event shall the holder(s) of the Series A Preferred Stock receive dividends of more than $2.00 per share in any fiscal year. The date on which the Corporation shall initially issue a share of Series A Preferred Stock shall be deemed to be the "date of issuance" of such share regardless of the number of times the transfer of such share shall be made on the Corporation's stock transfer records and regardless of the number of certificates which may be issued to evidence such share. If, in any quarterly dividend period or periods, full dividends upon the outstanding Series A Preferred Stock at the dividend rate set forth herein shall not have been paid or set apart for payment, then, until such payment is made or set apart, (i) no dividends or other distributions shall be declared and paid or set apart for payment upon any equity securities of the Corporation other than securities which have a dividend payment preference superior to the Series A Preferred Stock; (ii) the Corporation and its subsidiaries, if any, shall be prohibited from repurchasing, redeeming or otherwise acquiring any of the Corporation's preferred stock ranking on a parity with the Series A Preferred Stock or any of the Common Stock or any Junior Stock; and (iii) the Corporation shall be prohibited from issuing any preferred stock which ranks superior to or on parity with the Series A Preferred Stock as to the payment of dividends and other distributions. If, at any time, the Corporation shall pay less than the total amount of dividends then payable on the then-outstanding Series A Preferred Stock and on any then-outstanding class or series of stock of the Corporation which ranks on a parity with the Series A Preferred Stock as to the payment of dividends and other distributions ("Parity Stock"), the aggregate payment to all holders of Series A Preferred Stock and to all holders of Parity Stock shall be distributed among all such holders so that an amount ratably in proportion to the respective annual dividend rates fixed thereon shall be paid with respect to each outstanding share of Series A Preferred Stock and Parity Stock. Holders of the Series A Preferred Stock shall not be entitled to participate in any dividends or other distributions (cash, stock or otherwise) declared or paid on or with respect to any Common Stock, Junior Stock or any other class of stock or equity security of the Corporation or any series of any such class. (c) Liquidation. In the event of the liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, after all creditors of the Corporation shall have been paid in full, the holders of the outstanding Series A Preferred Stock shall be entitled to receive an amount equal to the purchase price per share received by the Corporation plus an amount equal to the sum of (i) all unpaid dividends thereon which shall have been declared but not paid and (ii) all dividends which were not paid on the Series a Preferred Stock or will not be paid on the Series A Preferred Stock (whether or not there were any funds legally available for the payment of dividends at that time) to the date for the payment of such distribution amount (collectively the "Unpaid Dividends") together with interest on the Unpaid Dividends as set forth below before any distribution of assets shall be made to the holder(s) of any Common Stock or Junior Stock. The Unpaid Dividends shall bear interest at a rate per annum equal to 10% from the date any such Unpaid Dividends would have been paid in accordance with paragraph (b) hereof (whether or not there were any funds legally available for the payment of dividends at that time). If, upon any dissolution, liquidation or winding up of the Corporation, the net assets of the Corporation shall be insufficient to pay the holders of all outstanding shares of Series A Preferred Stock and Parity Stock the full amounts to which they respectively shall be entitled, the holders of each such stock shall share ratably in any distribution of assets according to the respective amounts which would be payable in respect of such stock upon such distribution if all amounts payable on or with respect to all stock were paid in full. Neither consolidation or merger of the Corporation with any corporation, nor the sale of all or part of the Corporation's assets for cash, securities or other property, nor the purchase or redemption by the Corporation of any class of stock permitted by the Articles of Incorporation or any amendment thereof, shall be deemed a liquidation, dissolution or winding up of the Corporation. Holders of the Series A Preferred Stock shall not be entitled, upon the liquidation, dissolution or winding up of the Corporation, to receive any amounts with respect to such stock other than the amounts referred to in this paragraph (c). Nothing contained herein shall be deemed to prevent the redemption or purchase of the Series A Preferred Stock permitted by paragraph (d) herein prior to liquidation, dissolution or winding up. (d) Redemption. The shares of Series A Preferred Stock shall be redeemable at the option of the Corporation, in whole only and not in part, at any time, upon payment of the redemption price of $25.00 plus an amount equal to the sum of (i) all unpaid dividends thereon which shall have been declared but not paid and (ii) all dividends which were not paid on the Series A Preferred Stock or will not be paid on the Series A Preferred Stock (whether or not there were any funds legally available for the payment of dividends at that time) to the date to and including the date fixed for redemption (collectively the "Unpaid Dividends") together with interest on the Unpaid Dividends as set forth below. The Unpaid Dividends shall bear interest at a rate per annum equal to 10% from the date any such Unpaid Dividend would have been paid in accordance with paragraph (b) hereof (whether or not there were any funds legally available for the payment of dividends at that time) (all of the foregoing amounts being collectively hereinafter referred to as the "Redemption Price"). Notice of the proposed redemption of Series A Preferred Stock shall be given by the Corporation by first class mail, postage prepaid, at least thirty (30) days and not more than sixty (60) days prior to the date fixed for such redemption, to the holders of record of all of the shares of Series A Preferred Stock at their respective addresses appearing on the books of the Corporation. Any notice which is mailed as herein provided shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. On and after the date fixed in the notice of redemption as the date of redemption (unless default shall be made by the Corporation in providing money for the payment of the aggregate Redemption Price), or if the Corporation shall so elect, on and after the date (which date shall be the date of redemption or prior thereto) on which the Corporation shall deposit, separate and apart from its other funds in trust for the pro rata benefit of the holders of the Series A Preferred Stock so as to be and continue to be available therefor, with a bank or trust company (other than the Corporation or a subsidiary of the Corporation) doing business in the State of New Jersey or the Commonwealth of Pennsylvania, as "Paying Agent," money sufficient in amount to pay, at the office of the Paying Agent on the redemption date, the aggregate Redemption Price of the shares of Series A Preferred Stock (provided the notice of redemption shall state the name and address of the Paying Agent and the intention of the Corporation to deposit said money on or before the date of redemption with the Paying Agent), and, notwithstanding that any certificate for shares of Series A Preferred Stock shall not have been surrendered for cancellation, the shares represented thereby shall no longer be deemed outstanding and all rights of the holders thereof as stockholders of the Corporation shall cease and terminate, except the right to receive from the Corporation or Paying Agent, as the case may be, the Redemption Price. At any time on or after the redemption date, or if the Corporation shall deposit the money for such redemption prior to the redemption date, then at any time on or after the date of deposit, the respective holders of record of the Series A Preferred Stock shall be entitled to receive the Redemption Price upon actual delivery to the Corporation or the Paying Agent, as the case may be, of certificates for the shares, such certificates, if required, to be duly endorsed in blank. Any money deposited with the Paying Agent which remains unclaimed by the holders of shares of Series A Preferred Stock at the end of five full calendar years after the redemption date shall be paid by the Paying Agent to the Corporation, and thereafter the holders of the shares of the Series A Preferred Stock shall look only to the Corporation for payment. (e) Voting Rights. (i) Except as otherwise set forth in this Article and except in statutory proceedings in which, and then only to the extent to which, their vote is at the time required by law, the holders of shares of Series A Preferred Stock shall have no right to vote at, to participate in, or to receive any notice of any meeting of the shareholders of the Corporation. Except as otherwise set forth in this paragraph (e), on any matter on which the holders of Series A Preferred Stock shall be entitled to vote, they shall be entitled to one vote for each share held. (ii) If and whenever quarterly dividends on the Series A Preferred Stock shall not have been paid in full for four quarterly dividends (whether or not consecutive) or more, the holders of Series A Preferred Stock shall be entitled to notice of all meetings of the shareholders of the Corporation and to full voting rights (together with holders of Common Stock but not as separate class unless otherwise required by law) at all meetings and on all matters including, without limitation, the election of directors of the Corporation, and each share of Series A Preferred Stock shall be entitled to two votes. At such time as the dividend on the Series A Preferred Stock for the then current quarterly dividend period shall have been declared and paid or set apart for payment and the immediately preceding three quarterly dividends on the Series A Preferred Stock shall have been paid, all voting rights of the Series A Preferred Stock granted by this subparagraph (ii) shall terminate. (iii) So long as any of the Series A Preferred Stock remains outstanding, the Corporation will not, either directly or through merger or consolidation with any other corporation, without the affirmative vote at a meeting or the written consent with or without a meeting of the holders of at least fifty percent (50%) in number of the shares of the Series A Preferred Stock then outstanding voting separately as a class: (A) amend, alter or repeal any of the preferences, special rights or powers of the shares of Series A Preferred Stock or any of the provisions of the Articles of Incorporation so as to affect them adversely, (B) authorize any reclassification of the Series A Preferred Stock, or (C) issue any class or classes of the equity securities of the Corporation which have a dividend payment or liquidation payment preference equal or superior to the Series A Preferred Stock. Except as set forth above with respect to the Series A Preferred Stock, the Board of Directors shall have the full authority permitted by law to fix by resolution full, limited, multiple or fractional, or no voting rights, and such designations and preferences, priorities, qualifications, privileges, limitations, restrictions, options, conversion rights, dividend features, retirement features, liquidation features, redemption features or other special or relative rights that may be desired for the Preferred Stock and any series thereof, and to issue such Preferred Stock from time to time in one or more series. The designations, preferences, priorities, qualifications, privileges, limitations, restrictions, options, conversion rights, dividend features, retirement features, liquidation features, redemption features and any other special or relative rights of any series of Preferred Stock may differ from those of any and all series at any time outstanding. Authorized but unissued shares of stock of the Corporation may be issued only if seventy-five (75%) percent of the entire Board of Directors consents to the issuance. 6. The name and post office address of each incorporator and the number and class of shares subscribed by each incorporator is: NAME ADDRESS NO. AND CLASS OF SHARES ---- ------- ----------------------- James T. Gibson 100 Senate Ave. One Share of common stock Camp Hill, PA 17001 7. Cumulative voting for the election of directors shall not be permitted. 8. No holder of any class of capital stock of the Corporation shall have preemptive rights, and the Corporation may issue shares, option rights or securities having conversion or option rights with respect to shares and any other securities of any class without first offering them to shareholders of any class or classes. 9. To the full extent permitted by law, the Board of Directors is expressly vested with the authority to make, alter, amend and repeal such Bylaws as it may deem necessary or desirable for the Corporation, subject to the statutory power of the shareholders to change such action but only upon the affirmative vote of the holders of the outstanding capital stock of the Corporation entitled to cast at least eighty (80%) percent of the votes which all shareholders are entitled to cast thereon at a regular or special meeting of the shareholders duly convened after notice to the shareholders of that purpose. 10. A. The Board of Directors of the Corporation may, in its sole discretion, and it is hereby declared a proper corporate purpose for the Board of Directors, if it deems it advisable, to oppose any offer, proposal or attempt by any corporation or other business entity, person or group to (a) make any tender or other offer to acquire any of the Corporation's securities; (b) merge or consolidate the Corporation with or into another entity; (c) purchase or otherwise acquire all or substantially all of the assets of the Corporation; or (d) make any transaction similar in purpose or effect to any of the above. In considering whether to oppose, recommend or remain neutral with respect to any of the aforesaid offers, proposals or plans, the Board of Directors shall evaluate what is in the best interests of the Corporation and may, but is not legally obligated to, consider any pertinent factors which may include but are not limited to any of the following: (1) Whether the offering price, whether in cash or in securities, is adequate and acceptable based upon both the current market price of the Corporation's securities and the historical and present operating results or financial condition of the Corporation. (2) Whether a price more favorable to the shareholders may be obtained now or in the future from other offerors and whether the Corporation's continued existence as an independent corporation will affect the future value of the Corporation. (3) The impact the offer would have on the employees, depositors, clients and customers of the Corporation or its subsidiaries and the communities which they serve. (4) The present and historical financial position of the offeror, its reputation in the communities which it serves and the social and/or economic effect which the reputation and practices of the offeror or its management and affiliates would have upon the employees, depositors and customers of the Corporation and the community which the Corporation serves. (5) An analysis of the value of securities (if any) offered in exchange for the Corporation's securities. (6) Any anti-trust or other legal or regulatory issues raised by the offer. B. If the Board of Directors determines that an offer should be rejected, it may take any lawful action to accomplish its purpose, including, but not limited to, any or all of the following: advising shareholders not to accept the offer; litigation against the offeror; filing complaints with all government and regulatory authorities having jurisdiction over the offer; causing the Corporation to acquire its own securities; selling or otherwise issuing authorized but unissued securities or treasury stock and granting options with respect thereto; acquiring a company to create anti-trust or other regulatory problem for the offeror; and obtaining a more favorable offer from anotherindividual or entity. 11. No Corporate Action (as hereinafter defined) shall be authorized unless there are cast in favor of the Corporate Action at least eighty (80%) percent of the votes which all shareholders are entitled to cast thereon. However, if sixty-six and two-thirds (66 2/3%) percent of the entire Board of Directors of the Corporation recommends approval of the Corporate Action to the shareholders, that Corporate Action shall be authorized if there are cast in favor of the Corporate Action at least sixty-six and two-thirds (66 2/3%) percent of the votes which all shareholders are entitled to cast thereon. The term "Corporate Action" shall be deemed to include any and all of the following, if such action is to be effected by the vote of the shareholders or if approval of the shareholders is required under the Articles of Incorporation of the Corporation as then in effect or under the Business Corporation Law of 1988, as amended: (a) The amendment of Articles 5, 7, 8, 9, 10, 11, or 12 of these Articles of Incorporation; (b) The removal of one or more directors; (c) A Business Combination (as hereinafter defined). For the purposes of this Article 11, the following terms shall have the meaning set forth below: (a) "Subsidiary" means any corporation of which a majority of any class of equity security (as defined in the General Rules and Regulations under the Securities Exchange Act of 1934) is owned, directly or indirectly, by the Corporation; (b) The term "all or substantially all of the assets" shall mean assets having a book value in excess of ten (10%) percent of the book value of the total consolidated assets of the Corporation at the end of its most recent fiscal year ending prior to the time the determination is made, all determined in accordance with generally accepted accounting principles. (c) The term "Business Combination" shall mean any and all of the following: (i) Any merger or consolidation of the Corporation with or into another corporation; (ii) Any merger or consolidation of a subsidiary of the Corporation with or into another corporation if (i) the resulting, surviving or continuing corporation, as the case may be, would not be a subsidiary of the Corporation or (ii) the total number of common shares of the Corporation issued or delivered in connection with such transaction, plus those initially issuable upon conversion of any other shares, securities or obligation to be issued in connection with such transaction, exceed fifteen (15%) percent of the common shares of the Corporation outstanding immediately prior to the date on which such transaction is consummated; (iii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all of the assets of the Corporation; (iv) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all the assets of a subsidiary of the Corporation whose total assets exceed twenty (20%) percent of the total assets of the Corporation as reflected on the most recent consolidated balance sheet of the Corporation; (v) any sale of all or substantially all of the stock in a subsidiary whose total assets exceed twenty (20%) percent of the total assets of the Corporation as reflected on the-most recent consolidated balance sheet of the Corporation; (vi) any plan or proposal for the liquidation or dissolution of the Corporation or of any subsidiary of the Corporation whose total assets exceed twenty (20%) percent of the total assets of the Corporation as reflected on the most recent consolidated balance sheet of the Corporation; (vii) any reclassification of securities (including any reverse stock split) or recapitalization of the Corporation, or any reorganization, merger or consolidation of the Corporation with any of its subsidiaries or any similar transaction; or (viii) the issuance in a single or one or more related transactions of voting shares of the Corporation sufficient to elect a majority of the directors of the Corporation. 12. The Corporation shall, to the fullest extent permitted by applicable law, indemnify any and all persons whom it shall have the power to indemnify from and against any and all expenses, liabilities or other matter for which indemnification is permitted by applicable law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. EX-3.(I) 3 exhibit3.txt EXHIBIT 3 [FRONT] INCORPORATED UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SEE REVERSE FOR CERTAIN DEFINITIONS CUSIP 708677 10 9 Pennsylvania Commerce Bancorp, Inc. THIS CERTIFIES THAT is the owner of FULLY PAID SHARES OF COMMON STOCK, PAR VALUE $1.00 PER SHARE OF Pennsylvania Commerce Bancorp, Inc., Camp Hill, Pennsylvania, hereinafter called the "Corporation," transferable on the books of the Corporation by the holder hereof in person or by duly authorized attorney upon surrender of this certificate properly endorsed. This certificate and the shares represented hereby are issued and shall be held subject to all the provisions of the Certificate of Incorporation and Bylaws of the Corporation, as from time to time amended, which Certificate and Bylaws are on file at the office of the Corporation and are hereby expressly incorporated herein by reference, to all of which the holder by acceptance hereof assents. This certificate is not valid until countersigned and registered by the Transfer Agent and Registrar. Witness the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers. Dated: Pennsylvania Commerce Bancorp, Inc. Countersigned and Registered: REGISTRAR AND TRANSFER COMPANY Cranford, NJ Transfer Agent and Registrar By Authorized Officer By Chairman of the Board By Executive Vice President [BACK] The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COMD TEN ENTD JT TEND as tenants in common as tenants by the entireties as joint tenants with right of survivorship and not as tenants in common UNIF GIFT MIN ACTD....................Custodian................... (Cust) (Minor) under Uniform Gifts to Minors Act................................ (State) UNIF TRAN MIN ACTD....................Custodian................... (Cust) (Minor) under Uniform Transfers to Minors Act................................ (State) Additional abbreviations may also be used though not in the above list. For value received,.....................hereby sell, assign and transfer unto............................................................................ PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE ......................................................................... PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE ................................................................................. ................................................................................. ......................................................................shares of the capital stock represented by the within Certificate, and do hereby irrevocably constitute and appoint................................................................. ......................................................................... Attorney to transfer the said stock on the books of the within named Corporation with full power of substitution in the premises. Dated ...................................... Signature(s) Guaranteed: THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS) WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM PURSUANT TO S.E.C. RULE 17Ad-15. NOTICE: The signature to this assignment must correspond with the name as written upon the face of the Certificate in every particular, without alteration or enlargement or any change whatever. KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, MUTILATED OR DESTROYED THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT CERTIFICATE. -----END PRIVACY-ENHANCED MESSAGE-----