-----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, QQWGfvk1hV+9DVy0FTqNgy4R/Xb4jChoBE4WcZ+ts7+olIFoPRee1q/QBCzFoRTt 6qx0XE7KgP5jhVAk8fUVhg== 0000950159-04-000935.txt : 20041028 0000950159-04-000935.hdr.sgml : 20041028 20041028132000 ACCESSION NUMBER: 0000950159-04-000935 CONFORMED SUBMISSION TYPE: S-1/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20041028 DATE AS OF CHANGE: 20041028 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: S-1/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-118236 FILM NUMBER: 041101824 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 S-1/A 1 pacommerces1a-4.txt As filed with the Securities and Exchange Commission on October 28, 2004 Registration No. 333-118236 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _________________ Amendment No. 4 to FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 _________________ PENNSYLVANIA COMMERCE BANCORP, INC. (Exact name of registrant as specified in its charter) _________________ Pennsylvania 6021 25-1834776 (State or other (Primary Standard Industrial (I.R.S. Employer jurisdiction of Classification Code Number) Identification Number) incorporation or organization) 100 Senate Avenue P.O. Box 8599 Camp Hill, Pennsylvania 17001-8599 Telephone: (717) 975-5630 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) _________________ Gary L. Nalbandian Chief Executive Officer 100 Senate Avenue P.O. Box 8599 Camp Hill, Pennsylvania 17001-8599 Telephone: (717) 975-5630 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copies to: Lawrence R. Wiseman Stuart G. Stein Blank Rome LLP Hogan & Hartson L.L.P. One Logan Square 555 13th Street, N.W. Philadelphia, PA 19103 Washington, DC 20004 Telephone: (215) 569-5500 Telephone: (202) 637-8575 Facsimile: (215) 569-5555 Facsimile: (202) 637-5910 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable on or after the effective date of this Registration Statement. If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box. [ ] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box. [ ] The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine. PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 13. Other Expenses of Issuance And Distribution. The following table sets forth the estimated costs and expenses, other than underwriting discounts and commissions, to be paid by us in connection with the issuance and distribution of the shares of common stock being registered hereby. Securities and Exchange Commission registration fee............... $ 3,497 NASD filing fee................................................... $ 3,000* Nasdaq National Market listing fee................................ $ 104,000* Accounting fees and expenses...................................... $ 80,000* Legal fees and expenses........................................... $ 100,000* Printing and engraving expenses................................... $ 50,000* Blue Sky qualification fees and expenses.......................... $ 5,000* Transfer agent and registrar fees and expenses.................... $ 2,500* Miscellaneous expenses............................................ $ 60,000* ------------ Total......................................................... $ 407,997 ------------ * Estimated. Item 14. Indemnification of Directors and Officers Sections 1741 and 1742 of the Pennsylvania Business Corporation Law of 1988, as amended (the "BCL"), provide that a business corporation may indemnify directors and officers against liability they may incur as such provided that the particular person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. In the case of actions against a director or officer by or in the right of the corporation, the power to indemnify extends only to expenses (not judgments and amounts paid in the settlement) and such power generally does not exist if the person otherwise entitled to indemnification shall have been adjudged to be liable to the corporation unless it is judicially determined that, despite the adjudication of liability but in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnification for specified expenses. Under Section 1743 of the BCL, the corporation is required to indemnify directors and officers against expenses they may incur in defending actions against them in such capacities if they are successful on the merits or otherwise in the defense of such actions. Under Section 1745 of the BCL, a corporation may pay the expenses of a director or officer incurred in defending an action or proceeding in advance of the final amounts advanced unless it is ultimately determined that such person is not entitled to indemnification from the corporation. Article 20 of our bylaws provides for indemnification of our directors, officers and other agents and advancement of expenses to the extent permitted by the BCL. Section 1746 of the BCL grants a corporation broad authority to indemnify its directors, officers and other agents for liabilities and expenses incurred in such capacity, except in circumstances where the act or failure to act giving rise to the claim for indemnification is determined by a court to have constituted willful misconduct or recklessness. Article 12 of our articles of incorporation provides that we will indemnify any and all persons whom we shall have the power to indemnify for and against any and all expenses, liabilities or other matters for which indemnification is permitted by applicable laws. II-1 Article 20 of our bylaws conditions any indemnification or advancement of expenses upon a determination, made in accordance with the procedures specified in Section 1744 of the BCL, by our directors or shareholders that indemnification or advancement of expenses is proper because the director or officer met the standard of conduct set forth in Section 1741 or 1742 of the BCL, as applicable. As authorized by Section 1747 of the BCL, we maintain, on behalf of our directors and officers, insurance protection against certain liabilities arising out of the discharge of their duties, as well as insurance covering us for indemnification payments made to our directors and officers for certain liabilities. The premiums for such insurance are paid by us. Item 15. Recent Sales of Unregistered Securities On September 29, 2004, we issued and sold a total of 100,000 shares of our common stock to Commerce Bancorp, Inc. The price per share was $45.666. The purchase price per share was equal to the average of the closing sale prices of our common stock on the Nasdaq Small Cap Market for the five trading day (i.e. dates on which trades occurred) period ending on September 28, 2004. The aggregate purchase price was $4,566,600. The sale and issuance of the securities in the transaction described above is deemed to be exempt from registration under the Securities Act in reliance upon Section 4(2) of the Securities Act as a transaction by an issuer not involving a public offering, Commerce Bancorp, Inc. represented its intention to acquire the securities for investment only and not with a view to or for sale in connection with any distribution thereof and appropriate legends were affixed to the securities issued in the transaction. Commerce Bancorp, Inc. had adequate access, through its relationship with us, to information about us. No underwriters were employed in the above transaction. All of the foregoing securities are deemed restricted securities for purposes of the Securities Act. Item 16. Exhibits and Financial Statement Schedules. (a) The following exhibits are filed herewith: 1. Form of Underwriting Agreement by and among Pennsylvania Commerce Bancorp, Inc. and Sandler O'Neill & Partners, L.P. and Janney Montgomery Scott LLC. (I) 3.1 Articles of Incorporation of Pennsylvania Commerce Bancorp, Inc. (A) 3.2 By-laws of Pennsylvania Commerce Bancorp, Inc., as amended. (G) 4.1 Commerce Harrisburg Capital Trust I and Commerce Harrisburg Capital Trust II (Instruments defining the rights of the holders of trust capital securities issued and sold by Pennsylvania Commerce are not attached, as the amount of such securities is less than 10% of the consolidated assets of Pennsylvania Commerce and its subsidiaries, and the securities have not been registered. Pennsylvania Commerce will provide copies of such instruments to the SEC upon request.) 4.2 Registration Rights Agreement dated as of September 29, 2004 between Pennsylvania Commerce Bancorp, Inc. and Commerce Bancorp, Inc. (H) 4.3 Specimen of Common Stock Certificate (A) 5. Opinion of Blank Rome LLP. II-2 10.1 Pennsylvania Commerce Bancorp, Inc.'s 1990 Directors Stock Option Plan. (B) 10.2 Pennsylvania Commerce Bancorp, Inc.'s 1996 Employee Stock Option Plan. (C) 10.3 Warrant Agreement and Warrant No. 1 of Commerce Bank/Harrisburg dated October 7, 1988. (E) 10.4 Amendment No. 1 to the Stock and Warrant Purchase Agreement. (E) 10.5 Pennsylvania Commerce Bancorp, Inc.'s 2001 Directors Stock Option Plan. (D) 10.6 Amendment to Network Agreement, including original Network Agreement, by and among Commerce Bancorp, Inc., Pennsylvania Commerce Bancorp, Inc. and Commerce Bank/Harrisburg. (F) 10.7 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. (H) 10.8 Stock Purchase Agreement dated as of September 29, 2004, between Pennsylvania Commerce Bancorp, Inc. and Commerce Bancorp, Inc. (H) 10.9 Stock and Warrant Purchase Agreement dated as of April 29, 1988 between Commerce Bank/Harrisburg and Commerce Bancorp, Inc. (I) 21. Subsidiaries of Pennsylvania Commerce Bancorp, Inc. (See "Business" Section of this Registration Statement.) 23.1 Consent of Beard Miller Company LLP. (I) 23.2 Consent of Blank Rome LLP (included in Exhibit 5). 24.1 Power of Attorney (I) ____________________________ (A) Incorporated by reference from Pennsylvania Commerce's Form 8-A filed with the SEC on September 28, 2004. (B) Incorporated by reference from Exhibit 4 of Pennsylvania Commerce's Registration Statement on Form S-8 filed with the SEC on July 1, 1999. This is a compensatory arrangement in which Pennsylvania Commerce's directors participate. (C) Incorporated by reference from Exhibit 4 of Pennsylvania Commerce's Registration Statement on Form S-8 filed with the SEC on July 1, 1999. This is a compensatory arrangement in which Pennsylvania Commerce's executive officers participate. (D) Incorporated by reference from Appendix A of Pennsylvania Commerce's Definitive Proxy Statement for its 2000 Annual Meeting of Shareholders, filed with the SEC on April 19, 2000. This is a compensatory arrangement in which Pennsylvania Commerce's directors participate. (E) Incorporated by reference from Pennsylvania Commerce's Form 10-K filed with the SEC on March 30, 2000. (F) Incorporated by reference from Exhibit 10 to Pennsylvania Commerce's Report on Form 10-Q, filed with the SEC on November 14, 2003. II-3 (G) Incorporated by reference from Pennsylvania Commerce's Form 10-K filed with the SEC on March 30, 2004. (H) Incorporated by reference from Pennsylvania Commerce's Form 8-K, filed with the SEC on October 1, 2004. (I) Previously filed. (b) Financial Statement Schedules All schedules for which provision is made in the applicable accounting regulation of the SEC are not required under the related instructions or are inapplicable and therefore have been omitted. Item 17. Undertakings. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. The undersigned registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Camp Hill, Commonwealth of Pennsylvania, on October 28, 2004. PENNSYLVANIA COMMERCE BANCORP, INC. By: /s/ Gary L. Nalbandian ------------------------------------------ Gary L. Nalbandian, Chairman of the Board; President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated:
Name Title Date - --------------------------------------------- --------------------------------------- -------------------------- /s/ Gary L. Nalbandian - --------------------------------------------- Chairman of the Board; President and October 28, 2004 Gary L. Nalbandian Chief Executive Officer (Principal Executive Officer) /s/ Mark A. Zody - --------------------------------------------- Chief Financial Officer and Treasurer October 28, 2004 Mark A. Zody (Principal Financial and Accounting Officer) * - --------------------------------------------- Director ____________________ James R. Adair * - --------------------------------------------- Director ____________________ John J. Cardello * - --------------------------------------------- Director ____________________ Douglas S. Gelder * - --------------------------------------------- Director ____________________ Alan R. Hassman * - --------------------------------------------- Director ____________________ Howell C. Mette * - --------------------------------------------- Director ____________________ Michael A. Serluco II-5 * - --------------------------------------------- Director ____________________ Samir J. Srouji, M.D. By: /s/ Gary L. Nalbandian October 28, 2004 ------------------------ Gary L. Nalbandian Attorney-in-fact
II-6
EXHIBIT INDEX Number Exhibit Title ------ ------------- 1. Form of Underwriting Agreement by and among Pennsylvania Commerce Bancorp, Inc. and Sandler O'Neill & Partners, L.P. and Janney Montgomery Scott LLC. (I) 3.1 Articles of Incorporation of Pennsylvania Commerce Bancorp, Inc. (A) 3.2 By-laws of Pennsylvania Commerce Bancorp, Inc., as amended. (G) 4.1 Commerce Harrisburg Capital Trust I and Commerce Harrisburg Capital Trust II (Instruments defining the rights of the holders of trust capital securities issued and sold by Pennsylvania Commerce are not attached, as the amount of such securities is less than 10% of the consolidated assets of Pennsylvania Commerce and its subsidiaries, and the securities have not been registered. Pennsylvania Commerce will provide copies of such instruments to the SEC upon request.) 4.2 Registration Rights Agreement dated as of September 29, 2004 between Pennsylvania Commerce Bancorp, Inc. and Commerce Bancorp, Inc. (H) 4.3 Specimen of Common Stock Certificate. (A) 5. Opinion of Blank Rome LLP. 10.1 Pennsylvania Commerce Bancorp, Inc.'s 1990 Directors Stock Option Plan. (B) 10.2 Pennsylvania Commerce Bancorp, Inc.'s 1996 Employee Stock Option Plan. (C) 10.3 Warrant Agreement and Warrant No. 1 of Commerce Bank/Harrisburg dated October 7, 1988. (E) 10.4 Amendment No. 1 to the Stock and Warrant Purchase Agreement. (E) 10.5 Pennsylvania Commerce Bancorp, Inc.'s 2001 Directors Stock Option Plan. (D) 10.6 Amendment to Network Agreement, including original Network Agreement, by and among Commerce Bancorp, Inc., Pennsylvania Commerce Bancorp, Inc. and Commerce Bank/Harrisburg. (F) 10.7 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. (H) 10.8 Stock Purchase Agreement dated as of September 29, 2004, between Pennsylvania Commerce Bancorp, Inc. and Commerce Bancorp, Inc. (H) 10.9 Stock and Warrant Purchase Agreement dated as of April 29, 1988 between Commerce Bank/Harrisburg and Commerce Bancorp, Inc. (I) 21. Subsidiaries of Pennsylvania Commerce Bancorp, Inc. (See "Business" Section of this Registration Statement.)
II-7 23.1 Consent of Beard Miller Company LLP. (I) 23.2 Consent of Blank Rome LLP (included in Exhibit 5). 24.1 Power of Attorney (I) ____________________________ (A) Incorporated by reference from Pennsylvania Commerce's Form 8-A filed with the SEC on September 28, 2004. (B) Incorporated by reference from Exhibit 4 of Pennsylvania Commerce's Registration Statement on Form S-8 filed with the SEC on July 1, 1999. This is a compensatory arrangement in which Pennsylvania Commerce's directors participate. (C) Incorporated by reference from Exhibit 4 of Pennsylvania Commerce's Registration Statement on Form S-8 filed with the SEC on July 1, 1999. This is a compensatory arrangement in which Pennsylvania Commerce's executive officers participate. (D) Incorporated by reference from Appendix A of Pennsylvania Commerce's Definitive Proxy Statement for its 2000 Annual Meeting of Shareholders, filed with the SEC on April 19, 2000. This is a compensatory arrangement in which Pennsylvania Commerce's directors participate. (E) Incorporated by reference from Pennsylvania Commerce's Form 10-K filed with the SEC on March 30, 2000. (F) Incorporated by reference from Exhibit 10 to Pennsylvania Commerce's Report on Form 10-Q, filed with the SEC on November 14, 2003. (G) Incorporated by reference from Pennsylvania Commerce's Form 10-K filed with the SEC on March 30, 2004. (H) Incorporated by reference from Pennsylvania Commerce's Form 8-K, filed with the SEC on October 1, 2004. (I) Previously filed. II-8 EX-5 2 exhibit5.txt EXHIBIT 5 Exhibit 5 October 28, 2004 Pennsylvania Commerce Bancorp, Inc. 100 Senate Avenue P.O. Box 8599 Camp Hill, Pennsylvania 17001-8599 Re: Pennsylvania Commerce Bancorp, Inc. Registration Statement on Form S-1 Gentlemen and Ladies: We have acted as counsel to Pennsylvania Commerce Bancorp, Inc., a Pennsylvania corporation (the "Company"), in connection with the Company's Registration Statement on Form S-1 (Registration No. 333-118236) (such Registration Statement, as amended, the "Registration Statement") filed by the Company with the Securities and Exchange Commission, under the Securities Act of 1933, relating to the offer and sale by the Company of up to 460,000 shares of common stock, $1.00 par value per share, of the Company (the "Common Stock") (including up to 60,000 shares if the Underwriters exercise their over-allotment option) (collectively, the "Shares"). This opinion is furnished pursuant to the requirements of Item 601(b)(5) of Regulation S-K. In rendering this opinion, we have examined only the documents listed on Exhibit "A" attached hereto. We have not performed any independent investigation other than the document examination described. We have assumed and relied, as to questions of fact and mixed questions of law and fact, on the truth, completeness, authenticity and due authorization of all certificates, documents and records examined and the genuineness of all signatures. In rendering this opinion we have assumed that 2,407,508 shares of the Company's Common Stock are outstanding. This opinion is limited to the laws of the Commonwealth of Pennsylvania. Based upon and subject to the foregoing, we are of the opinion that the Shares to be sold by the Company, when sold in the manner and for the consideration contemplated by the Registration Statement, will be validly issued, fully paid and non-assessable. October 28, 2004 Page 2 This opinion is given as of the date hereof. We assume no obligation to update or supplement this opinion to reflect any facts or circumstances which may hereafter come to our attention or any changes in laws which may hereafter occur. This opinion is strictly limited to the matters stated herein and no other or more extensive opinion is intended, implied or to be inferred beyond the matters expressly stated herein. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the caption "Legal Matters" in the Prospectus, which is part of the Registration Statement. Very truly yours, /s/ Blank Rome LLP ------------------------ BLANK ROME LLP EXHIBIT "A" 1. The Company's Articles of Incorporation. 2. The Bylaws of the Company, as amended. 3. Resolutions adopted by the Board of Directors of the Company relating to the offering and sale of its common stock by the Company pursuant to the Registration Statement. 4. The Registration Statement. -----END PRIVACY-ENHANCED MESSAGE-----