-----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, AuaNRfhSp+Hi5sMPQaIO7X+2ccTuJ9m8VjueSAhUdtPiasPkBS0bvTBhzgCycwcb O8eSMbtsRJ9yQfjiVq4EDg== 0001021408-99-001605.txt : 19990920 0001021408-99-001605.hdr.sgml : 19990920 ACCESSION NUMBER: 0001021408-99-001605 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990917 EFFECTIVENESS DATE: 19990917 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-8 SEC ACT: SEC FILE NUMBER: 333-87313 FILM NUMBER: 99713360 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-8 1 FORM S-8 As filed with the Securities and Exchange Commission ________________, 1999 Registration No.: 33-_____ --------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- PENNSYLVANIA COMMERCE BANCORP, INC. ------------------------------------------------------ (Exact Name of Registrant as specified in its charter) Pennsylvania 25-1834776 ------------ ---------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 100 Senate Avenue, CampHill, Pennsylvania 17001-8599 (717) 975-5630 -------------------------------------------------------------------- (Address, including zip code, and telephone number, including area code, or registrant's principal executive offices) SmartBuy Stock Purchase Plan ---------------------------- (Full title of the plan) JAMES T. GIBSON President and C.E.O. PENNSYLVANIA COMMERCE BANCORP, INC. 100 Senate Avenue Post Office Box 8599 Camp Hill, Pennsylvania 17011-8599 ------------------------------------------ (Name and Address of Agent for Service) Copies to: BRADLEY A. WALKER METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, Pennsylvania 17110-0950 CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------------- Proposed Title of each class Amount Proposed maximum of securities to be to be maximum offering aggregate offering Amount of registered Registered price per unit(1) price registration fee - --------------------------------------------------------------------------------------------------------------------------------- Common Stock Par value 10,000 $22.88 $228,800 $64.00 $1.00 per share
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457, and based on a price of $22.88, which is the average of the bid and ask prices of the Common Stock on September 13, 1999, as reported on the NASDAQ Small Cap. EXPLANATORY NOTE This Registration Statement is being filed for the purpose of registering 10,000 shares of the Registrant's Common Stock. The shares will be issued to employees of the Registrant, and its subsidiary, pursuant to the SmartBuy Stock Purchase Plan. The SmartBuy Stock Purchase Plan is not, per se, a separate stock purchase plan in and of itself. Rather, once shares are issued to an employee, the employee will be eligible to participate in the Registrant's Dividend Reinvestment and Stock Purchase Plan which has been registered on Form S-3. Like all participants in the Dividend Reinvestment and Stock Purchase Plan, the employee will then receive a copy of the prospectus for the Dividend Reinvestment and Stock Purchase Plan. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents are incorporated herein by reference: (1) The Annual Report of Commerce Bank/Harrisburg, N.A. on Form 10-KSB for its fiscal year ended December 31, 1998. (2) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act of 1934 since December 31, 1998. (3) The description of the Registrant's common stock contained in the Registrant's S-4 Registration Statement filed on May 14, 1999, which became effective on or about June 3, 1999. -2- Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. 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 entitled to indemnification from the corporation. Article 12 of the Corporation's Articles of Incorporation and Article 20 of the Corporation's Bylaws provide indemnification of directors, officers and other agents of the Corporation and advancement of expenses to the extent otherwise permitted by the BCL. Section 1746 of the BCL grants a corporation broad authority to indemnify is 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 wilful misconduct or recklessness. Article 12 of the Corporation's Articles of Incorporation provides that the Corporation indemnify any and all persons whom it 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. Article 20 of the Corporation's 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 the Corporation's 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, the Corporation maintains, on behalf of its directors and officers, insurance protection against certain liabilities arising out of the discharge of their duties, as well as insurance covering The Corporation for indemnification payments made to its directors and officers for certain liabilities. The premiums for such insurance are paid by the Corporation. -3- Item 7. Exemption from Registration Claimed. Not Applicable. No exemption from registration is claimed. Item 8. Exhibits. 4. SmartBuy Stock Purchase Plan. 5. Opinion of Mette, Evans & Woodside, General Counsel of the Company. 23.a. Consent of Mette, Evans & Woodside, General Counsel of the Company - included in Exhibit 5. 23.b. Consent of Beard & Company, Inc. 24. Powers of Attorney included "SIGNATURES" section of this Part II. Item 9. Undertakings. The Company hereby undertakes: (1) Regulation S-K, Item 512(a)(1) - To file, during any period in which it offers or sells securities, a post-effective amendment to this registration statement to: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that Paragraphs (1)(i) and (1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post- effective amendment is incorporated by reference for periodic reports filed by the Company under the Exchange Act of 1934. (2) Regulation S-K, Item 512(a)(2) - For purposes of determining any liability under the Securities Act of 1933, treat each post-effective amendment as a new registration statement of the securities offered, and the offering of the securities at that time to be the initial bona fide offering. (3) Regulation S-K, Item 512(a)(3) - File a post-effective amendment to remove from registration any securities that remain unsold at the end of the offering. -4- (4) Regulation S-K, Item 512(e) - Insofar as indemnification for liabilities under the Securities Act of 1933 may be permitted to Directors, Officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a Director, Officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. -5- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Camp Hill, Pennsylvania, on September 17, 1999. ------------ PENNSYLVANIA COMMERCE BANCORP, INC. By: /s/ James T. Gibson ---------------------------------- James T. Gibson President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. Each person whose signature appears below in so signing also makes, constitutes and appoints James T. Gibson and Gary L. Nalbandian, and each of them acting alone, his true and lawful attorney-in-fact, with full power of substitution, for him in any and all capacities, to execute and cause to be filed with the Securities and Exchange Commission any or all amendments and post-effective amendments to this Registration Statement, with exhibits thereto and other documents in connection therewith, and hereby ratifies and confirms all that said attorney-in-fact or his substitute or substitutes may do or cause to be done by virtue hereof.
Signature Title Date --------- ----- ---- /s/ Gary L. Nalbandian Director September 17, 1999 - ------------------------------ -------- ------------------ Gary L. Nalbandian /s/ Vernon W. Hill, II Director September 17, 1999 - ------------------------------ -------- ------------------ Vernon W. Hill, II /s/ Douglas S. Gelder Director September 17, 1999 - ------------------------------ -------- ------------------ Douglas S. Gelder /s/ Alan R. Hassman Director September 17, 1999 - ------------------------------ -------- ------------------ Alan R. Hassman /s/ Howell C. Mette Director September 17, 1999 - ------------------------------ -------- ------------------ Howell C. Mette /s/ Michael A. Serluco Director September 17, 1999 - ------------------------------ -------- ------------------ Michael A. Serluco /s/ Samir J. Srouji Director September 17, 1999 - ------------------------------ -------- ------------------ Samir J. Srouji President, Chief Executive Officer and /s/ James T. Gibson Director September 17, 1999 - ------------------------------ -------- ------------------ James T. Gibson
INDEX TO EXHIBITS Exhibit Number Description - -------------- ----------- 4. SmartBuy Stock Purchase Plan 5. Opinion of Mette, Evans & Woodside, General Counsel of the Company. 23.a. Consent of Mette, Evans & Woodside, General Counsel of the Company - included in Exhibit 5. 23.b. Consent of Beard & Company, Inc. 24. Powers of Attorney included "SIGNATURES" section of this Part II. EX-4 2 EMPLOYEE STOCK OPTION PLAN EXHIBIT 4. SmartBuy (the "Plan") is the stock purchase and dividend reinvestment program for employees of Pennsylvania Commerce Bancorp, Inc. and its subsidiaries (collectively the "Company"). It provides an easy and convenient way for employees to invest in the Common Stock of the Company (the "Common Stock") via payroll deduction. The Plan Administrator is Financial Management Associates. This brochure provides information and answers the most commonly asked questions about the Plan. If you have additional questions or need more information, contact the Human Resources Department. Eligibility All full-time and part-time employees, 18 years of age or older, with at least one full year of continuous service are eligible to join the Plan. Officers are eligible to participate from the first date of employment. Enrollment You can enroll in the Plan any time after you are eligible. To enroll: 1. Complete all parts of the enrollment form on the last page of this brochure. 2. Make sure you indicate the amount of your payroll deduction and sign where indicated. 3. Send the completed form to the Human Resources Department. Payroll Deduction Authorization You must specify the amount to be withheld from your pay. The minimum deduction is $25 per month for non-officers and $50 per month for officers. The payroll deduction may be changed or terminated at any time by submitting a written request to the Human Resources Department. The start, change, or termination of deductions will become effective as soon as possible after your written payroll deduction authorization form is received by the Human Resources Department. Payroll Deductions Authorized payroll deductions will be made on the first two pay periods of the month and the money held in a non-interest bearing account. On a quarterly basis all funds deducted will be combined and invested in Common Stock. Purchasing Stock Once you enroll in the Plan and begin payroll deductions, the Plan Administrator will establish an individual account in your name. The number of share purchased will depend on the market price of the stock at the time the purchase is made. Full shares as well as fractional shares will be allocated to your account. Dividends Your account will be credited with all dividends paid on the full shares and any fractional interest in shares purchased and held in your account. Cash dividends will be reinvested in Common Stock on the payment date of a particular dividend. Also, these shares will be issued at a 3% discount from the current market price. Stock dividends and/or any stock splits with respect to shares held in your account will be credited to the account. Withdrawal of Shares You may withdraw a portion of the share of Common Stock credited to your account by notifying the Plan Administrator in writing and specifying the number of shares you wish to withdraw. Also, you may instruct the Plan Administrator at any time to terminate your participation in the Plan. The Plan Administrator will send you a certificate representing the whole shares of Common Stock in your account and a check equal to the cash value of any fractional shares. You may contact the Shareholder Relations Department at 972-2870 if you need assistance in locating a stockbroker to handle the sale of your shares of Common Stock. Account Statements You will receive a quarterly statement from the Plan Administrator detailing activity which occurred in your account. The Plan Administrator keeps records, sends quarterly statements and performs other administrative duties relating to the Plan. Questions regarding your quarterly statement should be directed to the Plan Administrator. Shareholder Reports The Plan Administrator will promptly deliver to you all notices of shareholder meetings, proxy statements, annual and quarterly reports, and other materials distributed by the Company to its stockholders. If proxies are distributed, the full shares of stock in your account will be voted in accordance with your signed instructions duly delivered to the Plan Administrator. There will be no charge to you for the Plan Administrator's custody of stock certificates or in connection with notices, proxies, or other such materials. Closing Your Account Terminating payroll deductions will not automatically close your account with the Plan Administrator -- you must contact the Plan Administrator directly to cease participation in the Plan. Upon electing to terminate participation, the Plan Administrator will send a certificate for the whole shares of Common Stock in your account. Stock Market Investments Stock prices vary from day to day. Prices are not fixed or regulated - they depend on the basic law of supply and demand. There is no guarantee under the Plan against loss because of market fluctuations. In seeking the benefits of share ownership, you must also accept the risks. Participation in the Plan is entirely voluntary and the Company makes no recommendations to its employees with respect to the purchase of Common Stock and participation in this Plan. The Company has reserved the right to amend or discontinue the Plan or to discontinue the use of its payroll deduction facilities for this purpose at any time. QUESTIONS AND ANSWERS Here are answers to the most frequently asked questions about the Plan. What are the advantages of the Plan? The Plan offers you a convenient method for becoming a stockholder in the Company. It encourages regular, scheduled investing and is a means of supplementing your individual investment savings program. How much stock will be bought for me? Each quarter, the Plan Administrator will purchase for you as many full shares and/or fractional shares as the funds deducted from your pay will allow. There is no limit to the number of shares you may accumulate in your account. What if the money I'm investing won=t buy an even number of shares or a full share? It makes no difference since you are buying stock by the dollars worth instead of by the share. That's why you may see fractional shares on your quarterly statement. What happens to the shares of stock that are purchased for me? Once the shares have been purchased for you, they will be held by the Plan Administrator. No stock certificates will be issued to you unless you make a direct request. Upon receipt of a request, the Plan Administrator will deliver a stock certificate to you for the full shares accumulated in your account. What do I receive to show i own stock? No actual stock certificate for the shares you own will be issued to you unless requested. You will receive a quarterly statement summarizing all activity in your account for the previous three months. The statement will show your name and address, the number of shares purchased, the price per share for those shares purchased during the quarter, the total shares accumulated, the total value of those shares as of the statement date, plus other valuable information. Will I receive information provided to stockholders? You will receive any material received by the Plan Administrator and issued by the Company for the benefit and information of its stockholders, such as annual and quarterly reports, interim reports, and proxy material. What happens if I stop my payroll deductions? If for any reason you notify the Company to discontinue your payroll deductions, the Plan Administrator will continue your account unless you elect to close it. To close your account, you may request the Plan Administrator to send you a stock certificate for the number of full shares you own plus a check for the net proceeds for any fractional interest in a share credited to you. You may re-enter the Plan at any time by completing an enrollment form and forwarding it to the Human Resources Department. You will not receive an additional 10 shares of Common Stock at the time of re-enrollment. What happens if I leave the Company or its subsidiaries? It is not necessary that your accumulated shares be sold if you leave. You will still have an account with the Plan Administrator and can still buy stock at a 3% discount by making direct payments. If you request, your account will be closed as explained above. Can I invest my own funds without payroll deductions? Once your Plan account is established you can invest up to $5,000 per quarter through a combination of payroll deductions or direct payments to the Plan Administrator. All transactions will be made at a 3% discount from the current market price. Can I change my payroll deduction amount? You can change your payroll deduction amount at any time by submitting a written request to the payroll department. However, you must stay at or above the minimum deduction amount for officers and non-officers. Do I have to pay taxes on this Plan? Any transactions in this Plan, especially the sale of stock, are subject to the normal, federal, state and local taxes that apply to stock transactions. You should consult your tax advisor if you have any questions concerning the tax implications of buying or selling stocks. What records must I keep? The quarterly statements from the Plan Administrator will indicate the number of shares purchased and the cost of the shares. You should always keep your quarterly statements because the information they contain will be necessary for tax reporting purposes. Whom do I contact if I have questions concerning my account? Write or call: Financial Management Associates 1631 North Front Street Harrisburg, PA 17102 (717) 232-8850 Is this a complete description of the Plan? This brochure is a convenient source of information if you have any questions about the Plan. A full explanation of the Plan may be found in the Prospectus for the Pennsylvania Commerce Bancorp, Inc. Dividend Reinvestment and Stock Purchase Plan. If there is a discrepancy between the description presented in this brochure and the Prospectus, the Prospectus will govern. The Prospectus is available from the Human Resources Department. Additional questions may be answered by the Human Resources Department. Enroll me as a participant in the Plan. As a participant, I understand that I will receive, as a contribution from the Company, ten shares of Common Stock without the payment of any service charge or brokerage commission. As a participant in the Plan, I will be eligible to purchase shares of Common Stock at a 3% discount from the current market price without payment of any service charge or brokerage commissions. The Plan will require that I have a minimum monthly payroll deduction to purchase Common Stock as follows: . Non-Officers: An amount of at least $25 per month . Officers: An amount of at least $50 per month Please note: Deductions from salary payments may not total more than $5,000 per quarterly investment period. I authorize the payroll deduction of $______________ from each regular salary payment. This amount will continue to be deducted until written notification is received by the Human Resources Department to change or discontinue my payroll deduction. Payroll deductions will be made twice each month. No deduction will be made on the third pay during those months in which a third payroll occurs. Purchase of Common Stock directly from the Company with deductions from salary payments will occur quarterly. Purchase of Common Stock directly from the Company with reinvested dividends will occur on the payment date of a particular dividend. Please fill out reverse side if interested The following information is needed to establish my account: ----------------------------------------------------- Social Security Number ----------------------------------------------------- Department ----------------------------------------------------- First Name Middle Initial ----------------------------------------------------- Last Name ----------------------------------------------------- Street Address Apt. Number ----------------------------------------------------- City State Zip Code I have received and read the Prospectus from the Pennsylvania Commerce Bancorp, Inc. Dividend Reinvestment and Stock Purchase Plan. I have been a prior participant in the SmartBuy Plan _______ Yes ______ No ----------------------------------------------------- Signed Date Send the completed form to the Human Resources Department. EX-5 3 OPINION OF METTE, EVANS & WOODSIDE EXHIBIT 5 Opinion of Counsel Pennsylvania Commerce Bancorp, Inc. 100 Senate Avenue P.O. Box 8599 Harrisburg, PA 17001-8599 Re: SmartBuy Stock Purchase Plan Form S-8 Registration Gentlemen: This opinion is rendered in connection with the Registration Statement filed on Form S-8 with the Securities and Exchange Commission under the Securities Act of 1933, under which up to 10,000 shares of common stock of Pennsylvania Commerce Bancorp, Inc. (the "Company"), par value $1.00 per share, are to be registered pursuant to its SmartBuy Stock Purchase Plan. We have reviewed the corporate proceedings relating to the proposed stock offering and such other legal matters as we have deemed appropriate for the purpose of this opinion. Based on the foregoing, and assuming all necessary shareholder and governmental approvals, we are of the opinion that the shares of common stock covered by the Registration Statement will, when issued in accordance with the terms set forth in the Prospectus, applicable law and the Bylaws of the Company, be validly issued, fully paid and nonassessable by the Company. We hereby consent to the filing of this opinion as an Exhibit to the S-8 Registration Statement. Very truly yours, METTE, EVANS & WOODSIDE By /s/ Bradley A. Walker -------------------------- Bradley A. Walker, Esquire EX-23.B 4 CONSENT OF INDEPENDENT ACCOUNTANTS EXHIBIT 23.b. CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement (Form S-8) of our report, dated January 29, 1999, relating to the financial statements of Commerce Bank/Harrisburg, N.A. incorporated by reference in its Annual Report (Form 10-KSB) for the year ended December 31, 1998. /s/ BEARD & COMPANY, INC. Harrisburg, Pennsylvania September 15, 1999 -----END PRIVACY-ENHANCED MESSAGE-----