-----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, Ql030ZLlRRZClbWy0P2TQs2GvYekToN6Us5Uok65BV8wfQmfyBTmjAYPXiEwOQYP PvtQNF1Bd94Y1K22gleQWg== 0000950159-04-000879.txt : 20041001 0000950159-04-000879.hdr.sgml : 20041001 20041001112206 ACCESSION NUMBER: 0000950159-04-000879 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20040929 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Unregistered Sales of Equity Securities ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20041001 DATE AS OF CHANGE: 20041001 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-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-50961 FILM NUMBER: 041057074 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-K 1 pac8k9-30.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) September 29, 2004 ------------------ Pennsylvania Commerce Bancorp, Inc. - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Pennsylvania 000-50961 25-1834776 - -------------------------------------------------------------------------------- (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) 100 Senate Avenue, Camp Hill, Pennsylvania 17011 - -------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (717)975-5630 ------------- N/A - -------------------------------------------------------------------------------- (Former name or former address, if changed since last report.) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 1.01. Entry into a Material Definitive Agreement. On September 29, 2004, Pennsylvania Commerce Bancorp, Inc. ("Company") entered into Amendment No. 2 to Network Agreement ("Amendment"), a Stock Purchase Agreement and a Registration Rights Agreement with Commerce Bancorp, Inc. ("Commerce of New Jersey"). a. Description of the Relationship between the Company and Commerce of New Jersey. As of June 30, 2004, Commerce of New Jersey owned approximately 7.9% of the Company's common stock, 100% of the Company's non-voting Series A preferred stock, warrants that entitle Commerce of New Jersey to purchase 143,666 shares (adjusted for common stock dividends) of the Company's common stock upon a "change of control" (as defined in the Warrant Agreement) of the Company and 100% of the Company's Trust Capital Securities. As of June 30, 2004, as adjusted to include the shares purchased by Commerce of New Jersey pursuant to the Stock Purchase Agreement described below, Commerce of New Jersey owned approximately 11.7% of the Company's common stock. Additionally, the Bank occasionally participates in loans with Commerce Bank, N.A., the bank subsidiary of Commerce of New Jersey. At June 30, 2004, approximately $2.6 million of these participations were outstanding. A federal funds line of credit was established with Commerce Bank, N.A. in the amount of $10.0 million at a rate of interest based upon the overnight federal funds rate, which could be drawn upon if needed. The balance at June 30, 2004 on this line was $8.5 million. b. Description of the Amendment Following is a brief description of the terms of the Amendment that are material to the Company: Pursuant to a Network Agreement with Commerce of New Jersey ("Network Agreement"), the Company and its subsidiary bank, Commerce Bank/Harrisburg, N.A. ("Bank"), have the right to use the "Commerce Bank" name and the "America's Most Convenient Bank" logo, among others, within the territory prescribed by the Network Agreement (the Pennsylvania counties of Adams, Berks, Bradford, Carbon, Centre, Clinton, Columbia, Cumberland, Dauphin, Franklin, Fulton, Huntingdon, Juniata, Lackawanna, Lancaster, Lebanon, Luzerne, Lycoming, Mifflin, Monroe, Montour, Northumberland, Perry, Pike, Potter, Schuylkill, Snyder, Sullivan, Susquehanna, Tioga, Union, Wayne, Wyoming, and York). Under the Network Agreement, Commerce of New Jersey, through its subsidiary Commerce Bank, N.A., provides various services to the Bank including: maintaining the computer wide area network; proof and encoding services; deposit account statement rendering; data processing; and advertising support. The Bank may only use these services in the territory prescribed by the Network Agreement. This restriction limits the Company's growth to these areas as long as the Company and the Bank are parties to the Network Agreement. Prior to the Amendment, the Network Agreement had a perpetual term, but both parties could terminate the Network Agreement without cause upon 180 days' notice. Commerce of New Jersey could also terminate the Network Agreement upon 90 days' notice, following a breach by the Company of its obligations under the Agreement, a change of control in the Company or suspension of the Company's or Bank's ability to engage in the business of banking (subject, in certain cases, to a 15-day cure period). Pursuant to the Amendment, the term of the Network Agreement is five years with automatic renewal and extension for additional five year periods, subject to each party's ability to terminate on any "fifth anniversary date" (the next "fifth anniversary date" is January 1, 2010) with 360 days prior written notice. Additionally, Commerce of New Jersey may terminate the agreement upon 360 days prior written notice after the occurrence of any of the following events: o If the Company misuses the Commerce of New Jersey system, or otherwise materially impairs the goodwill associated with the Commerce of New Jersey system and does not cure this misuse within 30 days of notice from Commerce of New Jersey; o If the Company fails to remit to Commerce of New Jersey any payments when due and does not cure within 30 days of notice from Commerce of New Jersey; o If the Company fails to submit to Commerce of New Jersey certain information required under the Network Agreement and does not cure within 30 days of notice from Commerce of New Jersey; o If a change in control (as defined in the Network Agreement) of the Company or Commerce of New Jersey occurs; o If the Company otherwise violates the terms of the Network Agreement and does not cure the violation within 30 days of notice from Commerce of New Jersey; and o If the Company's authority to engage in banking is suspended or terminated. In addition, the Company may terminate the agreement upon 360 days prior written notice if a change of control of Commerce of New Jersey occurs. c. Description of the Stock Purchase and Registration Rights Agreements Following is a brief description of the terms of the Stock Purchase and Registration Rights Agreements that are material to the Company: On September 29, 2004, the Company entered into and consummated a Stock Purchase Agreement with Commerce of New Jersey. Pursuant to the Stock Purchase Agreement, Commerce of New Jersey purchased 100,000 shares of unregistered common stock of the Company (the "Stock") for a per share price of $45.666 and an aggregate price of $4,566,600. Pursuant to the Stock Purchase Agreement, the per share price was equal to the average of the closing sale prices of the Company's common stock on the NASDAQ SmallCap Market for the five trading day period (i.e. dates in which trades occurred) ending on September 28, 2004. In connection with the Stock Purchase Agreement, the Company entered into a Registration Rights Agreement with Commerce of New Jersey whereby the Company granted Commerce of New Jersey "demand" and "piggy-back" registration rights with respect to the Stock. Commerce of New Jersey may exercise its "demand" right at any time from and after March 29, 2005 by providing the Company with a written request that the Company file a registration statement covering the Stock. Commerce of New Jersey may only exercise this "demand" right once and this right is subject to certain exceptions. In connection with Commerce of New Jersey's "piggy-back" rights, the Company must notify Commerce of New Jersey in writing at least 15 days prior to the filing of any registration statement for purposes of a public offering of any of the Company's securities (including, but not limited to, registration statements relating to secondary offerings of securities of the Company, but excluding the Company's registration statement on Form S-1 filed with the SEC on August 13, 2004 (File No. 333-118236) and any amendments thereto and registration statements relating to employee benefit plans or with respect to corporate reorganizations or other transactions under Rule 145 of the Securities Act) and the Company must afford Commerce of New Jersey an opportunity to include in such registration statement all or part of the Stock. Commerce of New Jersey's registration rights under the Registration Rights Agreement expire if all Stock held by and issuable to Commerce of New Jersey may be immediately sold under Rule 144 promulgated pursuant to the Securities Act. The foregoing descriptions are qualified in their entireties by reference to the Network Agreement, Amendment, Stock Purchase Agreement and Registration Rights Agreement attached hereto as Exhibits 4.1, 10.1 and 10.2, respectively. The Audit Committee of the Company's Board of Directors has approved each of the Agreements described herein. Item 3.02. Unregistered Sales of Equity Securities. The information set forth under Item 1.01(c) is incorporated herein by reference. Issuance of the Stock to Commerce of New Jersey pursuant to the Stock Purchase Agreement was a private placement transaction exempt from registration under Section 4(2) of the Securities Act of 1933, as amended. Item 9.01. Financial Statements and Exhibits. (c) The following exhibits are filed herewith: 4.1. Registration Rights Agreement dated as of September 29, 2004 between Pennsylvania Commerce Bancorp, Inc. and Commerce Bancorp, Inc. 10.1. Amendment No. 2 to Network Agreement by and among Commerce Bancorp, Inc., Pennsylvania Commerce Bancorp, Inc. and Commerce Bank/Harrisburg, N.A. dated as of September 29, 2004. 10.2. Stock Purchase Agreement dated as of September 29, 2004, between Pennsylvania Commerce Bancorp, Inc. and Commerce Bancorp, Inc. Signatures Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Dated: October 1, 2004 PENNSYLVANIA COMMERCE BANCORP, INC. By: /s/ Mark A. Zody --------------------------- Name: Mark A. Zody Title: Chief Financial Officer EX-4 2 ex4-1.txt EXHIBIT 4.1 Exhibit 4.1 EXECUTION COPY REGISTRATION RIGHTS AGREEMENT This REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of September 29, 2004 by and between Pennsylvania Commerce Bancorp, Inc., a Pennsylvania corporation (the "Company"), and Commerce Bancorp, Inc., a New Jersey corporation (the "Purchaser"). RECITALS WHEREAS, the Company and the Purchaser entered into the Stock Purchase Agreement, dated as of the date hereof (the "Purchase Agreement"), pursuant to which the Purchaser acquired One Hundred Thousand (100,000) shares of the Company's Common Stock; WHEREAS, as an inducement and a condition to consummating the Purchase Agreement, the Purchaser has required that the Company agree, and the Company has agreed, to enter into this Agreement; and NOW, THEREFORE, in consideration of the premises, and of the mutual covenants, representations, warranties and agreements herein contained, the parties hereto agree as follows: ARTICLE I GENERAL Section 1.01. DEFINITIONS. As used in this Agreement the following terms shall have the following respective meanings: (a) "Closing Date" shall mean the Closing Date specified in the Purchase Agreement. (b) "Common Stock" shall mean the Common Stock, par value $1.00 per share, of the Company. (c) "Exchange Act" shall mean the Securities Exchange Act of 1934, or any successor thereto, as the same shall be amended from time to time. (d) "Holder" shall mean the Purchaser and each of its successors and assigns who acquire Registrable Securities, directly or indirectly, from the Purchaser or from any successor or assign of any such party and to whom the registration rights conferred by this Agreement have been transferred in compliance with Section 2.09 hereof. (e) The term "person" shall mean a corporation, association, partnership, limited liability company, organization, business, individual, government or political subdivision thereof or governmental agency. (f) "Registrable Securities" shall mean (i) the Shares and (ii) any Common Stock of the Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, the Shares; provided, however, that such shares of Common Stock shall cease to be Registrable Securities when (i) a registration statement registering such shares of Common Stock under the Securities Act has been declared effective and such shares of Common Stock have been sold or otherwise transferred by the Holder thereof pursuant to such effective registration statement, (ii) such shares of Common Stock are sold pursuant to Rule 144 (or any successor provision) promulgated under the Securities Act under circumstances in which any legend borne by such shares of Common Stock relating to restrictions on transferability thereof, under the Securities Act or otherwise, is removed by the Company or (iii) such shares of Common Stock are sold in a private transaction in which the transferor's rights under Article II of this Agreement are not assigned. (g) Register," "registered," and "registration" refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of effectiveness of such registration statement or document. (h) "Registrable Securities then outstanding" shall be the number of shares determined by calculating the total number of shares of the Company's Common Stock that are Registrable Securities and either (a) are then issued and outstanding or (b) are issuable pursuant to then exercisable or convertible securities. (i) "Registration Expenses" shall mean all expenses incurred by the Company in complying with Sections 2.01 and 2.02 hereof, including, without limitation, all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, fees and disbursements of custodians, fees and disbursements of counsel for the Company and all independent certified public accountants, underwriters (excluding discounts and commissions), reasonable fees and disbursements of a single special counsel for the Holders, and the expense of any special audits incident to or required by any such registration. In any event, the Company shall pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance and the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed or on the NASD automated quotation system. (j) "Rule 144" shall mean Rule 144 promulgated by the SEC pursuant to the Securities Act. (k) "`SEC" or "Commission" means the Securities and Exchange Commission. -2- (l) "Selling Expenses" shall mean all underwriting discounts and selling commissions applicable to the sale of Registrable Securities pursuant to this Agreement. (m) "Securities Act" shall mean the Securities Act of 1933, or any successor thereto, as the same shall be amended from time to time. (n) "Shares" shall mean the Common Stock purchased by Purchaser pursuant to the Purchase Agreement. All capitalized terms used in this Agreement without definition shall have the meaning given to such terms in the Purchase Agreement. ARTICLE II REGISTRATION Section 2.01. DEMAND REGISTRATION. (a) Subject to the conditions of this Section 2.01, at any time from and after the date six (6) months after the Closing Date, if the Company shall receive a written request from the Holders of a majority of the Registrable Securities (the "Initiating Holders") that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities (a "Demand Registration"), then the Company shall, within fifteen (15) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.01, use its best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities for which the Company has received written requests for inclusion therein within fifteen (15) days after receipt by the Holders of such Company notice. (b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.01 and the Company shall include such information in the written notice referred to in Section 2.01(a). In the event of an underwritten offering, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.01, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten then the Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, -3- and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. (c) The Company shall not be required to effect a registration pursuant to this Section 2.01: (i) after the Company has effected one (1) Demand Registration pursuant to and in accordance with this Section 2.01, and such registration has been declared or ordered effective and kept effective by the Company as required by Section 2.05(b) of this Agreement, provided that if as a result of the managing underwriter's advice, less than two thirds of the Registrable Securities covered by the Registration request are included in the registration at the effective date thereof, the request shall not be considered a Demand Registration which has been effected for purposes of this Section 2.01(c)(i); (ii) during the period starting with the date of filing of, and ending on the date ninety (90) days following the effective date of, a Company-initiated registration statement pertaining to a public offering; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective; (iii) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.01(a), the Company gives written notice to the Holders of the Company's intention to file a registration statement with respect to a public offering within thirty (30) days; provided that a delay pursuant to this Section 2.01(c)(iii), subject to Section 2.01(c)(ii), shall be no longer than ninety (90) days; or (iv) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.01 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be effected at such time because such registration would require premature public disclosure with respect to pending confidential matters, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12)-month period. (d) The Company agrees (i) not to effect any public sale or distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for such securities, during the seven days prior to and the ninety (90)-day period beginning on the effective date of the Registration Statement for a Demand Registration, unless the underwriters managing such offering otherwise agree, and (ii) to cause each holder of its Common Stock, or any securities convertible into or exchangeable or exercisable for Common Stock, purchased from the Company at any time after the date of this Agreement (other than in a registered public offering) to agree not to effect any public sale or distribution (including sales pursuant to Rule 144) of any such securities during such period (except as part of such underwritten registration, if otherwise permitted), unless the underwriters managing the registered public offering otherwise agree. -4- (e) In the event of any registration of Registrable Securities pursuant to Section 2.01 hereof, the Company shall not, without the express written consent of the Initiating Holders owning a majority of such Registrable Securities, cause or permit any other securities of the Company or of any other person (whether such securities are to be issued by the Company, are held in the Company's treasury or are then outstanding and held by other persons) to be covered by such registration statement or otherwise to be included in such registration. Section 2.02. PIGGYBACK REGISTRATIONS. The Company shall notify all Holders of Registrable Securities in writing at least fifteen (15) days prior to the filing of any registration statement under the Securities Act for purposes of a public offering of securities of the Company (including, but not limited to, registration statements relating to secondary offerings of securities of the Company, but excluding the Company's registration statement on Form S-1 filed with the SEC on August 13, 2004 (File No. 333-118236) and any amendments thereto and registration statements relating to employee benefit plans or with respect to corporate reorganizations or other transactions under Rule 145 of the Securities Act) and shall afford each such Holder an opportunity to include in such registration statement all or part of such Registrable Securities held by such Holder. Each Holder desiring to include in any such registration statement all or any part of the Registrable Securities held by it shall, within fifteen (15) days after the above-described notice from the Company, so notify the Company in writing. Such notice shall state the intended method of disposition of the Registrable Securities by such Holder. If a Holder decides not to include all of its Registrable Securities in any registration statement thereafter filed by the Company, such Holder shall nevertheless continue to have the right to include any Registrable Securities in any subsequent registration statement or registration statements as may be filed by the Company with respect to offerings of its securities, all upon the terms and conditions set forth herein. (a) UNDERWRITING. If the registration statement under which the Company gives notice under this Section 2.02 is for an underwritten offering, the Company shall so advise the Holders of Registrable Securities. In such event, the right of any such Holder to be included in a registration pursuant to this Section 2.02 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company; provided, that no Holder of Registrable Securities included in any underwritten registration shall be required to make any representations or warranties to the Company or the underwriters (other than representations and warranties regarding such Holder, such Holder's title to securities, and such Holder's intended method of distribution) or to undertake any indemnification obligations to the Company or the underwriters with respect thereto, except as otherwise provided in Section 2.08 hereof. Notwithstanding any other provision of the Agreement, if the underwriter determines in good faith that marketing factors require a limitation of the number of shares to be underwritten, the number of shares that may be included in the underwriting shall be allocated as follows: first to the Company; second, to the Holders on a pro rata basis based on the total number of Registrable Securities held by the Holders; and third, to any shareholder of the Company (other than a Holder) on a pro rata basis. If any Holder disapproves of -5- the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the underwriter, delivered at least ten (10) business days prior to the effective date of the registration statement. Any Registrable Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the registration. For any Holder which is a partnership or corporation, the partners, retired partners and shareholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing person shall be deemed to be a single "Holder", and any pro rata reduction with respect to such "Holder" shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such "Holder," as defined in this sentence. (b) RIGHT TO TERMINATE REGISTRATION. The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 2.02 prior to the effectiveness of such registration whether or not any Holder has elected to include securities in such registration. The Registration Expenses of such withdrawn registration shall be borne by the Company in accordance with Section 2.04 hereof. Section 2.03. INTENTIONALLY OMITTED. Section 2.04. EXPENSES OF REGISTRATION. Except as specifically provided herein, all Registration Expenses incurred in connection with any registration, qualification or compliance pursuant to Section 2.01 or Section 2.02 herein shall be borne by the Company. All Selling Expenses incurred in connection with any registrations hereunder, shall be borne by the holders of the securities so registered pro rata on the basis of the number of shares so registered. Section 2.05. OBLIGATIONS OF THE COMPANY. Whenever required to effect the registration of any Registrable Securities pursuant to this Agreement, the Company shall use its best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of distribution thereof, and pursuant thereto, the Company shall, as expeditiously as reasonably possible: (a) Prepare and file with the SEC a registration statement with respect to such Registrable Securities and use all reasonable efforts to cause such registration statement to become effective (provided that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company shall furnish to the counsel selected by the Holders of a majority of the Registrable Securities covered by such registration statement copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel). (b) Notify each holder of Registrable Securities of the effectiveness of each registration statement filed hereunder and prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for up to one hundred eighty (180) days or, if earlier, until the Holders have completed the distribution related thereto, and comply with the provisions of the Securities Act with respect to the disposition -6- of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement. (c) Furnish to the Holders such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them. (d) Use its reasonable best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Holders; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions. (e) Enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Holders of a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including effecting a stock split, a combination of shares or other capitalization). Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement. (f) Notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and, at the request of any Holder, the Company shall prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing. (g) Use its best efforts to furnish, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and (ii) a letter dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering addressed to the underwriters. -7- (h) Use its best efforts to cause the Registrable Securities to be listed on the Nasdaq Small Cap Market or such other securities exchange or quotation system on which the Common Stock is then listed or quoted. (i) Take all other reasonable actions necessary to expedite and facilitate disposition of the Registrable Securities by the Holders thereof pursuant to the Registration Statement. (j) Make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement. (k) Use its best efforts to comply with all applicable rules and regulations of the SEC. (l) Permit any Holder, which Holder, based upon the opinion of such Holder's counsel, might be deemed to be an underwriter or a controlling person of the Company, to participate in the preparation of such registration or comparable statement and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder and its counsel should be included. (m) In the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Company shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order. (n) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities. Section 2.06. TERMINATION OF REGISTRATION RIGHTS. A Holder's registration rights hereunder shall expire if all Registrable Securities held by and issuable to such Holder may be immediately sold under Rule 144. Section 2.07. DELAY OF REGISTRATION; FURNISHING INFORMATION. It shall be a condition precedent to the obligations of the Company to take any action pursuant to Sections 2.01 or 2.02 that the selling Holders shall furnish to the Company such information regarding themselves, the Registrable Securities held by them and the intended method of disposition of such securities as shall be required to effect the registration of their Registrable Securities. -8- Section 2.08. INDEMNIFICATION. In the event any Registrable Securities are included in a registration statement under Sections 2.01 or 2.02: (a) To the extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, officers and directors of each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation") by the Company: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendment or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law in connection with the offering covered by such registration statement, and the Company will pay as incurred, to each such Holder, partner, officer, director, underwriter or controlling person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided however, that the indemnity agreement contained in this Section 2.08(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, nor shall the Company be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by such Holder, partner, officer, director, underwriter or controlling person of such Holder. (b) To the extent permitted by law, each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration qualifications or compliance is being effected, indemnify and hold harmless the Company, each of its directors, its officers and each person, if any, who controls the Company within the meaning of the Securities Act, any underwriter and any other Holder selling securities under such registration statement or any of such other Holder's partners, directors or officers or any person who controls such Holder, against any losses, claims, damages or liabilities to which the Company or any such director, officer, controlling person, underwriter or other such Holder, or partner, director, officer or controlling person of such other Holder may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with -9- written information furnished by such Holder under an instrument duly executed by such Holder and stated to be specifically for use in connection with such registration; and each such Holder will pay as incurred any legal or other expenses reasonably incurred by the Company or any such director, officer, controlling person, underwriter or other Holder, or partner, officer, director or controlling person of such other Holder in connection with investigating or defending any such loss, claim, damage, liability or action if it is judicially determined that there was such a Violation; provided, however, that the indemnity agreement contained in this Section 2.08(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld; provided further, that the obligation to indemnify shall be individual, not joint and several for each such Holder and that in no event shall any indemnity under this Section 2.08 exceed the net proceeds from the offering received by such Holder. (c) Promptly after receipt by an indemnified party under this Section 2.08 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 2.08, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceeding in the same jurisdiction be liable for the fees and expenses of more than one (1) separate counsel (in addition to one (1) local counsel in each jurisdiction in which any proceeding may be brought) for all indemnified parties hereunder. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, shall not relieve such indemnifying party of any liability except to the extent that the failure to provide such notice is materially prejudicial to the indemnifying party, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 2.08. (d) If the indemnification provided for in this Section 2.08 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any losses, claims, damages or liabilities referred to herein, the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall to the extent permitted by applicable law contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the Violation(s) that resulted in such loss, claim, damage or liability, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by a court of law by reference to, among -10- other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided, that in no event shall any contribution by a Holder hereunder exceed the net proceeds from the offering received by such Holder. (e) The obligations of the Company and Holders under this Section 2.08 shall survive completion of any offering of Registrable Securities in a registration statement and the termination of this agreement. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. Section 2.09. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to register Registrable Securities pursuant to this Article II may be assigned by a Holder to any transferee or assignee of Registrable Securities unless such Registrable Securities have been sold to the public; provided, however, (i) the transferor shall, within ten (10) days after such transfer, furnish to the Company written notice of the name and address of such transferee or assignee and the securities with respect to which such registration rights are being assigned and (ii) such transferee shall agree to be subject to all restrictions set forth in this Agreement. Section 2.10. AMENDMENT OF REGISTRATION RIGHTS. Any provision of this Article II may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company, and Holders of a majority of the Registrable Securities. Any amendment or waiver effected in accordance with this Section 2.10 shall be binding upon each Holder and the Company. By acceptance of any benefits under this Article II, each Holder of Registrable Securities hereby agrees to be bound by the provisions hereunder. Section 2.11. LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. After the date of this Agreement, the Company shall not enter into any agreement with any holder or prospective holder of any securities of' the Company that would grant such holder registration rights senior or pari passu to those granted to the Holders hereunder. Section 2.12. RULE 144 REPORTING. With a view to making available to the Holders the benefits of certain rules and regulations of the SEC which may permit the sale of the Registrable Securities to the public without registration, the Company agrees to use its best efforts to: (a) Make and keep public information available, as those terms are understood and defined in SEC Rule 144 or any similar or analogous rule promulgated under the Securities Act, at all times after the effective date of the first registration filed by the Company for an offering of its securities to the general public; (b) File with the SEC, in a timely manner, all reports and other documents required of the Company under the Exchange Act; and -11- (c) So long as a Holder owns any Registrable Securities, furnish to such Holder forthwith upon request: a written statement by the Company as to its compliance with the reporting requirements of said Rule 144 of the Securities Act, and of the Exchange Act (at any time after it has become subject to such reporting requirements); a copy of the most recent annual or quarterly report of the Company; and such other reports and documents as a Holder may reasonably request in availing itself of any rule or regulation of the SEC allowing it to sell any such securities without registration. ARTICLE III MISCELLANEOUS Section 3.01. GOVERNING LAW. This Agreement, and matters arising out of or relating to this Agreement, shall be governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania without regard to the conflict of laws provisions thereof. Section 3.02. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns (to the extent permitted under Section 2.09), heirs, executors, and administrators of the parties hereto and shall inure to the benefit of and be enforceable by each person who shall be a holder of Registrable Securities from time to time; provided, however, that prior to the receipt by the Company of adequate written notice of the transfer of any Registrable Securities specifying the full name and address of the transferee, the Company may deem and treat the person listed as the holder of such shares in its records as the absolute owner and holder of such shares for all purposes, including the payment of dividends or any redemption price. Section 3.03. ENTIRE AGREEMENT. This Agreement and the Purchase Agreement and the other documents delivered pursuant thereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and no party shall be liable or bound to any other in any manner by any representations, warranties, covenants and agreements except as specifically set forth herein and therein. Section 3.04. NOTICES. All notices, requests, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand, when delivered personally or by courier, three days after being deposited in the mail (registered or certified mail, postage prepaid, return receipt requested), or when received by facsimile transmission if promptly confirmed by one of the foregoing means, as follows: if to the Company, to it at 100 Senate Avenue, P.O. Box 8599, Camp Hill, Pennsylvania 17001-8599; Telephone: (717) 975-5630; Facsimile: (717) 972-2876; Attention: Gary L. Nalbandian, Chief Executive Officer, and if to a Holder, to the address or facsimile transmission number of such Holder set forth in the security register or other records of the Company, or to such other address or facsimile transmission number as any party may have furnished to the others in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. -12- Section 3.05. DELAYS OR OMISSIONS. No delay or omission to exercise any right, power, or remedy accruing to any Holder, upon any breach, default or noncompliance of the Company under this Agreement shall impair any such right, power, or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of any similar breach, default or noncompliance thereafter occurring. It is further agreed that any waiver, permit, consent, or approval of any kind or character on any Holder's part of any breach, default or noncompliance under the Agreement or any waiver on such Holder's part of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, by law, or otherwise afforded to Holders, shall be cumulative and not alternative. Section 3.06. SEVERABILITY. In case any provision of this Agreement shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 3.07. TITLES AND SUBTITLES. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Section 3.08. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. Execution and delivery of this Agreement by exchange of facsimile copies bearing the facsimile signature of a party hereto shall constitute a valid and binding execution and delivery of this Agreement by such party. Section 3.09. JURISDICTION. The parties irrevocably consent to the exclusive jurisdiction of the courts of the Commonwealth of Pennsylvania, County of Philadelphia, or in the United States District Court for the Eastern District of Pennsylvania, to the extent that such courts have jurisdiction. Section 3.10. INTERPRETATION OF AGREEMENT. The parties hereto acknowledge and agree that this Agreement has been negotiated at arm's-length and among parties equally sophisticated and knowledgeable in the matters dealt with in this Agreement. Accordingly, any rule of law or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effect the intent of the parties as set forth in this Agreement. -13- IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed as of the date first written above. PENNSYLVANIA COMMERCE BANCORP, INC. By: /s/ Gary L. Nalbandian ---------------------------------------- Name: Gary L. Nalbandian Title: President/Chief Executive Officer COMMERCE BANCORP, INC. By: /s/ Douglas J. Pauls ---------------------------------------- Name: Douglas J. Pauls Title: Senior Vice President and Chief Financial Officer -14- EX-10 3 ex10-1.txt EXHIBIT 10.1 Exhibit 10.1 EXECUTION COPY AMENDMENT No. 2 TO NETWORK AGREEMENT This Amendment No. 2 to Network Agreement, dated as of September 29, 2004 (this "Amendment"), is by and among Commerce Bancorp, Inc., a New Jersey corporation ("Bancorp"), Commerce Bank/Harrisburg, N. A., a national banking association ("Commerce Harrisburg"), and Pennsylvania Commerce Bancorp, Inc., a Pennsylvania corporation ("PA Bancorp"). (PA Bancorp and Commerce Harrisburg are hereinafter both individually and collectively referred to as a "Member"). RECITALS Since its formation Commerce Harrisburg has been a member of Bancorp's network of banks (the "Commerce Network") and obtained access to Bancorp's system of banking comprised of the procedures, trade secrets and other information which related to the banking business as either originated or adopted by Bancorp. On January 1, 1997, Bancorp and Commerce Harrisburg entered into a Network Agreement by which Commerce Harrisburg continued its status as a member of the Commerce Network and in April of 2002, the Network Agreement was amended to add PA Bancorp as a party to the Network Agreement and to amend the Network Agreement as provided therein (the Network Agreement, as amended, the "Network Agreement"). The parties hereto now wish to further amend the Network Agreement as provided herein. NOW, THEREFORE, in consideration of the premises, covenants and agreements set forth in this Amendment, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agree as follows: 1. Amendment to Section 1.2 and New Section 1.3. Section 1.2 of the Network Agreement is hereby amended and restated in its entirety as follows and a new Section 1.3 of the Network Agreement is hereby added to read in its entirety as follows: 1.2 Subject to the termination provisions contained elsewhere herein, the term of this Network Agreement shall be for a term of five years beginning on the date hereof, subject, however, to automatic renewal and extension for additional five year periods as set forth below. 1.3 Either party may terminate this Agreement on any "fifth anniversary date" of this Network Agreement by giving to the other party written notice thereof at least 360 days prior to any such "fifth anniversary date". The first applicable "fifth anniversary date" shall be January 1, 2010. As a result of the foregoing notice being given by either party hereunder, the term will expire on the applicable "fifth anniversary date", subject to the terms and conditions set forth herein. 2. New Section 6. New Section 6 of the Network Agreement is hereby added to read in its entirety as follows: 6. Change In Control. 6.1 Anything in this Network Agreement to the contrary notwithstanding, in the event there shall have been a "change in control" (as hereinafter defined) of either PA Bancorp or Commerce Harrisburg, Bancorp may terminate the Network Agreement upon 360 days prior written notice to the Member. In the event there shall have been a "change in control" of Bancorp, Member may terminate this Agreement upon 360 days prior written notice to Bancorp. 6.2 For purposes of this Section 6 of the Network Agreement, a "change in control" shall mean a change in control of the applicable party of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934 as amended (the "Exchange Act"), as enacted and enforced on the date hereof, whether or not the applicable party is subject to such reporting requirement; provided that without limitation such a "change in control" of a party hereto shall have been deemed to conclusively occur when any of the following events shall have occurred without the prior written consent of the other parties hereto: (i) within any period of two consecutive years during the term of the Network Agreement, a change in at a least a majority of the members of the board of the applicable party or the addition of seven or more new members to the board of the applicable party; or (ii) a person or group acting in concert as described in Section 13(d)(2) of the Exchange Act holds or acquires beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act of a number of common shares of the applicable party which constitutes either (a) more than fifty percent of the shares which voted in the election of directors of the applicable party at the shareholders' meeting immediately preceding such determination or (b) more than thirty percent of the applicable party's outstanding common shares. For purposes of this Section 6.2 hereof, unexercised warrants or options or unconverted nonvoting securities shall count, for this purpose, as constituting beneficial ownership of the applicable party's common shares into which the warrants or options are exercisable or the nonvoting convertible securities are convertible, notwithstanding anything to the contrary contained in Rule 13d-3 of the Exchange Act; or (iii) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction in which the other party thereto or its shareholders will own 30% or more of the combined voting power of the surviving entity resulting from any such transaction; (b) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 30% or more of the assets of the applicable party and its subsidiaries, taken as a whole, in a single transaction or series of related transactions; (c) any tender offer or exchange offer for 30% or more of any class of equity security of the applicable party or the filing of a registration statement under the Securities Act of 1933, as amended, in connection therewith; (d) any other transaction or series of related transactions pursuant -2- to which any third party proposes to acquire control of assets of the applicable party and its subsidiaries having a fair market value equal to or greater than 30% of the fair market value of all of the assets of the applicable party and its subsidiaries, taken as a whole, immediately prior to such transaction; or (e) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. 3. Delete Section 8.1(d). Section 8.1(d) of the Network Agreement is hereby amended and restated in its entirety as follows: (d) [INTENTIONALLY OMITTED.] 4. Amendment to Section 8.2. The last sentence of Section 8.2 reading "In addition, Bancorp may terminate this Network Agreement without cause upon 180 days prior written notice to Member" is hereby deleted in its entirety and Section 8.2 of the Network Agreement is hereby amended and restated in its entirety as follows: 8.2 Upon the occurrence of any of the events set forth in Section 8.1, Bancorp may, without prejudice to any other rights or remedies contained in this Network Agreement or provided by law or equity, terminate this Network Agreement upon 360 days prior written notice, provided, however, that if the event of default is under Sections 8.1(a), (b), (c) and/or (e), Bancorp shall give Member written notice of the event of default and provide Member with 30 days to cure such event of default. 5. Delete Section 8.3. Section 8.3 of the Network Agreement is hereby deleted in its entirety. 6. Amendment to Section 8.4(c). The last sentence of Section 8.4(c) is hereby amended and restated in its entirety as follows: Further, Member shall make such modifications or alterations to the former Member premises immediately upon termination of this Network Agreement as may be necessary to prevent the operation of any business thereon by itself or others in derogation of the Commerce Network and Member shall ensure that all Member premises (both on the date of the termination of this Network Agreement and those created thereafter) shall not infringe upon, make unfair use of, unfairly compete with or present a confusingly similar look and feel to, any Commerce Network trade dress as used in the decor, layout, or other arrangement of Commerce Network premises. Nothing herein contained shall be construed to require Network to alter the exterior facade or design or any of Member's branch banking facility in existence on the date of termination. 7. Counterparts. This Amendment may be executed in several counterparts, and all such executed counterparts will constitute the same agreement. 8. Defined Terms. Initially capitalized terms used and not defined in this Amendment have the meanings ascribed to them in the Network Agreement. 9. Full Force and Effect. Except as amended hereby, the Network Agreement shall remain in full force and effect. -3- IN WITNESS WHEREOF, the parties to this Amendment have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written. Commerce Bancorp, Inc. Pennsylvania Commerce Bancorp, Inc. By: /s/ Douglas J. Pauls By: /s/ Gary L. Nalbandian ---------------------------- ---------------------------- Douglas J. Pauls, Senior Vice President Gary L. Nalbandian, President/ and Chief Financial Officer Chief Executive Officer Commerce Bank/Harrisburg, N. A. Address of Member 100 Senate Avenue By: /s/ Gary L. Nalbandian East Pennsboro Township ---------------------------- Camp Hill, PA 17011 Gary L. Nalbandian, President/ Chief Executive Officer -4- EX-10 4 ex10-2.txt EXHIBIT 10.2 Exhibit 10.2 EXECUTION COPY - ------------ STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered into as of September 29, 2004, between Pennsylvania Commerce Bancorp, Inc., a Pennsylvania corporation (the "Company"), and Commerce Bancorp, Inc., a New Jersey corporation (the "Purchaser"). ARTICLE I AUTHORIZATION AND SALE OF STOCK Section 1.01. SALE OF THE SHARES. Subject to the terms and conditions hereof, at the Closing (as defined in Section 2.01 hereof), the Company shall issue and sell to the Purchaser, and the Purchaser shall purchase from the Company, One Hundred Thousand (100,000) shares (collectively, the "Shares") of common stock, par value $1.00 per share ("Common Stock"), of the Company. ARTICLE II CLOSING DATE; DELIVERY Section 2.01. CLOSING AND LOCATION. The purchase and sale of the Shares hereunder shall take place at a closing (the "Closing") at the offices of Blank Rome LLP, One Logan Square, Philadelphia, PA 19103, at 10:00 a.m., Pennsylvania time, on the later to occur of (a) the date hereof, (b) the first business day following the date on which the last to be fulfilled or waived of the conditions to the Closing set forth in Article VI hereof have been fulfilled or waived in accordance with this Agreement or (c) such other date as is mutually agreed to by the Company and the Purchaser. The date of the Closing is hereinafter referred to as the "Closing Date." Section 2.02. DELIVERY. Subject to the terms and conditions of this Agreement, at the Closing, the Company shall deliver to the Purchaser a stock certificate or certificates representing the Shares to be purchased by the Purchaser at the Closing, registered in the name of the Purchaser or its assigns, against payment of the purchase price therefor. The purchase price of the Shares to be purchased at the Closing shall be equal to (a) the number of Shares purchased multiplied by (b) the average of the closing sale prices of the Common Stock on the Nasdaq Small Cap Market (or other stock exchange or market on which the Common Stock is then traded) for the five (5) trading day (i.e. dates on which trades occurred) period ending on the trading day immediately preceding the Closing Date and shall be paid by wire transfer in immediately available funds to an account designated in writing by the Company. Section 2.03. CONSUMMATION OF CLOSING. All acts, deliveries and confirmations comprising the Closing regardless of chronological sequence shall be deemed to occur contemporaneously and simultaneously upon the occurrence of the last act, delivery or confirmation of the Closing and none of such acts, deliveries or confirmations shall be effective unless and until the last of same shall have occurred. ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company hereby represents and warrants to the Purchaser as follows: Section 3.01. ORGANIZATION. The Company is a corporation duly organized, validly existing and in good standing under the laws of the Commonwealth of Pennsylvania and has all requisite corporate power to own, lease and operate its property and to carry on its business as now being conducted and is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified and in good standing, except for any such jurisdiction in which the failure to be so qualified and in good standing would not, individually or in the aggregate, have a material adverse effect on the business, financial condition, results of operations or prospects of the Company (a "Material Adverse Effect"). Section 3.02. SUBSIDIARIES. Each of the Company's subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, and is duly qualified to do business and in good standing in the jurisdictions where it is required to be so qualified, except in any such jurisdiction in which the failure to be so qualified and in good standing would not, individually or in the aggregate, have a Material Adverse Effect. Section 3.03. VALID ISSUANCE OF COMMON STOCK. The Shares, when issued and paid for in accordance with this Agreement, will be duly authorized, validly issued, fully paid and non-assessable. Section 3.04. AUTHORITY; NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The Company has all requisite corporate power and authority to enter into this Agreement and the Registration Rights Agreement in the form attached hereto as Exhibit A (the "Registration Rights Agreement") and to consummate the transactions contemplated by this Agreement and the Registration Rights Agreement. This Agreement and the Registration Rights Agreement have been duly authorized, executed and delivered by the Company and constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. (b) The execution and delivery by the Company of this Agreement and the Registration Rights Agreement does not, and consummation of the transactions contemplated by this Agreement and the Registration Rights Agreement, will not, (i) conflict with, or result in any violation or breach of any provision of, the Articles of Incorporation or Bylaws of the Company, (ii) result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, contract or other agreement, instrument or obligation to which the Company or any of its 2 subsidiaries is a party or by which the Company or any of its subsidiaries, properties or assets may be bound, or (iii) conflict with or violate any permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its subsidiaries, properties or assets, except in the case of (ii) and (iii) for any such violations, defaults, breaches, terminations, cancellations, accelerations, losses or conflicts which would not, individually or in the aggregate, have a Material Adverse Effect, and would not materially burden or delay the consummation of the transactions contemplated hereby. (c) No consent, approval, order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or other governmental authority or instrumentality (a "Governmental Entity") is required by or with respect to the Company in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby, except for (i) such approvals or filings as may be required under applicable banking or state securities laws and (ii) such other consents, authorizations, filings, approvals and registrations which, if not obtained or made, would not, individually or in the aggregate, have a Material Adverse Effect on the Company and would not materially burden or delay the consummation of the transactions contemplated hereby. Section 3.05. CAPITALIZATION. The authorized capital stock of the Company is as set forth in the Company Commission Reports (as defined below). Section 3.06. COMMISSION FILINGS; FINANCIAL STATEMENTS. (a) The Company has filed with the Securities and Exchange Commission (the "Commission") and made available to the Purchaser and its representatives all forms, reports and documents filed by the Company with the Commission since December 31, 2002 (collectively, the "Company Commission Reports"). The Company Commission Reports (i) at the time filed, complied in all material respects with the applicable requirements of the Securities Act and the Securities Exchange Act of 1934, as amended, as applicable, and (ii) did not at the time they were filed (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such amending or superseding filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (b) Each of the financial statements (including, in each case, any related notes) contained in the Company Commission Reports complied as to form in all material respects with the applicable published rules and regulations of the Commission with respect thereto, was prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q of the Commission) and include all adjustments, consisting only of normal accounting adjustments, that the Company reasonably considers necessary for a fair presentation of its financial position at the respective dates and the results of its operations and cash flows for the periods indicated. Except as disclosed in the Company Commission Reports filed with the Commission prior to the date hereof, since December 31, 2002, taking into account the cumulative effect of all developments 3 and events since such date, there has not been any development or event, or series of developments or events, that would reasonably be expected to have a Material Adverse Effect. Section 3.07. COMPLIANCE WITH LAWS. Each of the Company and its subsidiaries has complied with, is not in violation of, and has not received any notices of violation with respect to, any federal, state or local statute, law or regulation with respect to the conduct of its business, or the ownership or operation of its business, including, but not limited to, statutes, laws or regulations relating to the protection of the environment or concerning the handling, storage, disposal or discharge of toxic materials, except for failures to comply or violations which would not, individually or in the aggregate, have a Material Adverse Effect on the Company. Section 3.08. SHAREHOLDERS' CONSENT. No consent or approval of the shareholders of the Company is required or necessary for the Company to enter into this Agreement and the Registration Rights Agreement or to consummate the transactions contemplated hereby. Section 3.09. LITIGATION. Except as otherwise disclosed as of the date of this Agreement in the Company Commission Reports, (a) there is no private or governmental action, suit, proceeding, claim, arbitration or investigation pending before any agency, court or tribunal, foreign or domestic, or, to the knowledge of the Company, threatened against the Company or any of its subsidiaries or properties or any of its officers or directors (in their capacities as such), which, if determined adversely to the Company, would, individually or in the aggregate, have a Material Adverse Effect, and (b) there is no judgment, decree or order against the Company or any of its subsidiaries, or, to the knowledge of the Company, against any of its respective directors or officers (in their capacities as such) relating to the business of the Company or any of its subsidiaries, the existence of which would have a Material Adverse Effect. Section 3.10. CHANGE OF CONTROL BENEFITS. Except as set forth in the Company Commission Reports, there exist no provisions contained in any employment or severance agreement or benefit plan of the Company which provide for the payment, accrual or acceleration of any benefit to any person as a result of the consummation of the transactions contemplated hereby. Section 3.11. FINDER'S FEES. The Company has retained no finder or broker in connection with the transactions contemplated by this Agreement and hereby agrees to indemnify and to hold the Purchaser harmless from any liability for commission or compensation in the nature of a finder's fee to any broker or other person or firm (and the costs and expenses of defending against such liability or asserted liability) for which the Company, or any of its employees or representatives acting on behalf of the Company, is or may be responsible as a result of the transactions contemplated hereby. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER The Purchaser hereby represents and warrants to the Company as follows: 4 Section 4.01. ORGANIZATION. The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of New Jersey. Section 4.02. AUTHORITY. (a) The Purchaser has all requisite corporate power and authority to enter into this Agreement and the Registration Rights Agreement and to consummate the transactions contemplated by this Agreement and the Registration Rights Agreement. The execution and delivery of this Agreement and the Registration Rights Agreement and the consummation of the transactions contemplated by this Agreement and the Registration Rights Agreement have been duly authorized by all necessary corporate action on the part of the Purchaser. This Agreement and the Registration Rights Agreement have been duly executed and delivered by the Purchaser and constitute valid and legally binding obligations of the Purchaser, enforceable against the Purchaser in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. (b) No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required by or with respect to the Purchaser in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby, except for (a) such approvals or filings as may be required under applicable banking or state securities laws and (b) such other consents, authorizations, filings, approvals and registrations which, if not obtained or made, would not materially burden or delay the consummation of the transactions contemplated hereby. Section 4.03. PURCHASE ENTIRELY FOR OWN ACCOUNT. The Shares will be acquired solely for investment purposes, for the Purchaser's own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof. The Purchaser has not been formed for the specific purpose of acquiring the Shares. Section 4.04. INVESTMENT EXPERIENCE. Purchaser is an "accredited investor" as defined in Rule 501(a)(3) under the Securities Act. Purchaser has had an opportunity to ask questions and receive answers regarding the Company's business affairs and financial condition and believes it has acquired sufficient information about the Company to reach an informed decision to purchase the Shares. Purchaser has such business and financial experience as is required to give it the capacity to protect its own interests in connection with the purchase of the Shares. Section 4.05. RESTRICTED SECURITIES. The Purchaser understands that the Shares are characterized as "restricted securities" under the Securities Act inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that Purchaser must hold the Shares indefinitely unless the sale thereof is registered under the Securities Act and qualified under state securities laws, or an exemption from such registration and qualification requirements is available. The Purchaser has determined to purchase the Shares solely as a result of private discussions with the Company and was only offered the Shares through these private discussions. The Purchaser further acknowledges that if an exemption 5 from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Shares, or requirements relating to the Company which are outside of the Purchaser's control. Section 4.06. LEGENDS. The Purchaser understands that the Shares, and any securities issued in respect thereof or exchange therefor, may bear one or all of the following legends until such time, if any, as the Shares or such securities (a) are sold in compliance with Rule 144 under the Securities Act (or a comparable successor provision) or in a transaction registered under the Securities Act or (b) may be resold pursuant to Rule 144(k) under the Securities Act (or a comparable successor provision): "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN APPLICABLE EXEMPTION THEREFROM AND IN COMPLIANCE WITH THE TERMS OF THE STOCK PURCHASE AGREEMENT, DATED AS OF SEPTEMBER 29, 2004, WITH THE COMPANY, A COPY OF WHICH IS AVAILABLE FROM THE COMPANY ON REQUEST." Section 4.07. FINDER'S FEES. The Purchaser has not retained any finder or broker in connection with the transactions contemplated by this Agreement. ARTICLE V COVENANTS Section 5.01. PUBLICITY. The Company and the Purchaser shall consult with each other prior to issuing any press releases or otherwise making public statements with respect to the transactions contemplated hereby and prior to making any filings with any federal or state governmental or regulatory agency or any self-regulatory organization with respect thereto. Section 5.02. FULFILLMENT OF CONDITIONS. Each of the Company and the Purchaser shall use reasonable efforts to perform, comply with and fulfill all obligations, covenants and conditions required by this Agreement to be performed, complied with or fulfilled on its part prior to or at the Closing Date. Section 5.03. FURTHER ASSURANCES. The Company shall use its reasonable efforts at any time and from time to time prior to, at and after the Closing to execute and deliver to the Purchaser such further documents and instruments and to take all such further actions as the Purchaser reasonably may request in order to convey and transfer the Shares to the Purchaser and to consummate the transactions contemplated by this Agreement. 6 ARTICLE VI CONDITIONS TO CLOSING Section 6.01. CONDITIONS TO THE PURCHASER'S OBLIGATIONS. The obligation of the Purchaser to purchase the Shares at the Closing is subject to the fulfillment on or prior to the Closing Date of the following conditions: (a) REPRESENTATIONS AND WARRANTIES CORRECT; PERFORMANCE OF OBLIGATIONS. The representations and warranties made by the Company in Article III hereof shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date (except with respect to representations and warranties made as of a specific time, which shall be true in all material respects as of such time, and except for representations and warranties containing a materiality qualification, which must be true in all respects) with the same effect as though such representations and warranties had been made at and as of the Closing Date; and the Company shall have performed all obligations herein required to be performed by it on or prior to the Closing Date in all material respects (except with respect to obligations containing a materiality qualification, which must be performed in all respects). (b) REGISTRATION RIGHTS AGREEMENT. The Company shall have duly executed and delivered the Registration Rights Agreement. (c) COMPLIANCE CERTIFICATE. The President of the Company shall deliver to the Purchaser at the Closing a certificate certifying that the conditions specified in Section 6.01(a) have been fulfilled. (d) NO INJUNCTION, ORDER, ETC. There shall be no injunction, order or decree of any nature of any court or government authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby. (e) PURCHASE PRICE CERTIFICATE. The Company shall deliver to the Purchaser at the Closing a duly executed certificate verifying the purchase price of the Shares as set forth in Section 2.02. Section 6.02. CONDITIONS TO OBLIGATIONS OF THE COMPANY. The Company's obligation to issue and sell the Shares at the Closing is subject to the fulfillment on or prior to the Closing Date of the following conditions: (a) REPRESENTATIONS AND WARRANTIES CORRECT; PERFORMANCE OF OBLIGATIONS. The representations and warranties of the Purchaser in Article IV hereof shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date (except with respect to representations and warranties made as of a specific time, which shall be true in all material respects as of such time, and except for representations and warranties containing a materiality qualification, which must be true in all respects) with the same effect as though such representations and warranties had been made at and as of the Closing Date; and the Purchaser shall have performed all obligations herein required to be performed by it on or prior to the Closing Date in all material respects (except 7 with respect to covenants containing a materiality qualification, which must be performed in all respects). (b) REGISTRATION RIGHTS AGREEMENT. The Purchaser shall have duly executed and delivered the Registration Rights Agreement. (c) NO INJUNCTION, ORDER, ETC. There shall be no injunction, order or decree of any nature of any court or government authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby. (d) PURCHASE PRICE CERTIFICATE. The Purchaser shall deliver to the Company at the Closing a duly executed certificate verifying the purchase price of the Shares as set forth in Section 2.02. ARTICLE VII INDEMNIFICATION Section 7.01. INDEMNIFICATION. Each of the Company and the Purchaser (an "Indemnifying Party") covenants and agrees to indemnify and hold the other (the "Indemnified Party") harmless from and against, and to reimburse the Indemnified Party for, any claim for any losses, damages, liabilities or expenses, including reasonable counsel fees (collectively "Damages") incurred by such Indemnified Party by reason of or arising from (i) any misrepresentation or breach of any representation or warranty of such Indemnifying Party contained in this Agreement or in any instrument delivered hereunder or (ii) any failure by such Indemnifying Party to perform any obligation or covenant required to be performed by it under any provision of this Agreement. ARTICLE VIII MISCELLANEOUS Section 8.01. GOVERNING LAW. This Agreement, and matters arising out of or relating to this Agreement, shall be governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania without regard to the conflict of laws provisions thereof. Section 8.02. SURVIVAL. The representations, warranties, covenants and agreements made herein shall survive the closing of the transactions contemplated hereby. Section 8.03. SUCCESSORS AND ASSIGNS. Except as expressly provided herein, the rights and obligations hereunder may not be assigned or delegated by the Purchaser or the Company without the prior written consent of the other. The provisions hereof shall inure to the benefit of, and be binding upon, the successors and permitted assigns of the parties hereto. Section 8.04. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the Registration Rights Agreement and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and no party shall be liable or bound to any other in any manner by any representations, 8 warranties, covenants and agreements except as specifically set forth herein and therein. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the Purchaser. Section 8.05. NOTICES AND OTHER COMMUNICATIONS. Every notice or other communication required or contemplated by this Agreement by either party shall be delivered either by (a) personal delivery, (b) postage prepaid return receipt requested by registered or certified mail, (c) overnight courier, such as Federal Express or UPS or (d) facsimile with a confirmation copy sent simultaneously by postage prepaid, return receipt requested, registered or certified mail, in each case addressed to the Company or the Purchaser as the case may be at the following address: To the Company: Pennsylvania Commerce Bancorp, Inc. 100 Senate Avenue P.O. Box 8599 Camp Hill, Pennsylvania 17001-8599 Telephone: (717) 975-5630 Facsimile: (717) 972-2876 Attn: Gary L. Nalbandian, Chief Executive Officer With a copy to: Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, Pennsylvania 17110-0950 Telephone: (717) 232-5000 Facsimile: (717) 236-1816 Attn: James A. Ulsh To the Purchaser: Commerce Bancorp, Inc. Commerce Atrium 1701 Route 70 East Cherry Hill, New Jersey 08034-5400 Telephone: (856) 751-9000 Facsimile: (856) 751-9417 Attn: Douglas J. Pauls, Senior Vice President and Chief Financial Officer With a copy to: Blank Rome LLP One Logan Square Philadelphia, PA 19103 Telephone: (215) 569-5549 Facsimile: (215) 832-5549 Attn: Lawrence R. Wiseman or at such other address as the intended recipient previously shall have designated by written notice given in like manner to the other party. Notice by registered or certified mail shall be 9 effective on the date it is officially recorded as delivered to the intended recipient by return receipt or equivalent, and in the absence of such record of delivery, the effective date shall be presumed to have been the fifth (5th) business day after it was deposited in the mail. All notices delivered in person or sent by courier shall be deemed to have been delivered to and received by the addressee and shall be effective on the date of personal delivery; notices delivered by facsimile with simultaneous confirmation copy by registered or certified mail shall be deemed delivered to and received by the addressee and effective on the date sent. Notice not given in writing shall be effective only if acknowledged in writing by a duly authorized representative of the party to whom it was given. Section 8.06. DELAYS OR OMISSIONS. No delay or omission to exercise any right, power or remedy accruing to any person or entity hereunder shall impair any such right, power or remedy nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any person or entity hereunder of any breach or default under this Agreement, or any waiver on the part of any such person or entity of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies either under this Agreement, or by law or otherwise shall be cumulative and not alternative. Section 8.07. SEVERABILITY. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 8.08. TITLES AND SUBTITLES. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Section 8.09. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. Execution and delivery of this Agreement by exchange of facsimile copies bearing the facsimile signature of a party hereto shall constitute a valid and binding execution and delivery of this Agreement by such party. Section 8.10. JURISDICTION. The parties irrevocably consent to the exclusive jurisdiction of the courts of the Commonwealth of Pennsylvania, County of Philadelphia, or in the United States District Court for the Eastern District of Pennsylvania, to the extent that such courts have jurisdiction. Section 8.11. INTERPRETATION OF AGREEMENT. The parties hereto acknowledge and agree that this Agreement has been negotiated at arm's-length and among parties equally sophisticated and knowledgeable in the matters dealt with in this Agreement. Accordingly, any rule of law or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has drafted it is not applicable and is waived. 10 The provisions of this Agreement shall be interpreted in a reasonable manner to effect the intent of the parties as set forth in this Agreement. 11 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written. PENNSYLVANIA COMMERCE BANCORP, INC. By: /s/ Gary L. Nalbandian -------------------------- Name: Gary L. Nalbandian Title: President/Chief Executive Officer COMMERCE BANCORP, INC. By: /s/ Douglas J. Pauls ------------------------- Name: Douglas J. Pauls Title: Senior Vice President and Chief Financial Officer -----END PRIVACY-ENHANCED MESSAGE-----