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Registration No. 333-_____
Filed April 22, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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COMMONWEALTH BANCORP, INC.
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(Exact Name of Registrant as specified in its Articles of Incorporation)
Pennsylvania 23-2828883
- ------------------------ --------------------------------
(State of incorporation) (IRS Employer Identification No.)
Commonwealth Bank Plaza
2 West Lafayette Street
Norristown, Pennsylvania 19401
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(Address of principal executive offices, including zip code)
DIRECTORS' STOCK RETAINER PLAN
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(Full Title of the Plan)
Copies to:
Raymond A. Tiernan, Esq.
Charles H. Meacham, Chairman and Kenneth B. Tabach, Esq.
Chief Executive Officer Elias, Matz, Tiernan & Herrick L.L.P.
Commonwealth Bancorp, Inc. 734 15th Street, N.W.
Commonwealth Bank Plaza Washington, D.C.
2 West Lafayette Street (202) 347-0300
Norristown, Pennsylvania 19401
(610) 251-1600
- ---------------------------------
(Name, address, and telephone number
of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed
Securities Maximum Maximum Amount of
to be Amount to be Offering Price Aggregate Registration
Registered Registered(1) Per Share Offering Price Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $0.10 50,000 (2) $14.44 (3) $722,000 (3) $200.72
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to the
Commonwealth Bancorp, Inc. ("Company" or "Registrant") Directors' Stock Retainer
Plan (the "Plan") as a result of a stock split, stock dividend or similar
adjustment of the outstanding common stock, $0.10 par value per share ("Common
Stock"), of the Company.
(2) Represents shares currently reserved for issuance pursuant to the Plan.
(3) Estimated solely for the purposes of calculating the registration fee in
accordance with Rule 457(c) promulgated under the Securities Act. The Proposed
Maximum Offering Price Per Share is equal to the average of the high and low
sales price of the Common Stock of the Company as reported on April 19, 1999 on
the Nasdaq Stock Market, Inc.
--------------------------
This Registration Statement shall become effective automatically
upon the date of filing in accordance with Section 8(a) of the Securities Act
and 17 C.F.R. Section 230.462.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the
year ended December 31, 1998;
(b) All reports filed by the Company pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since the end of the fiscal year
covered by the financial statements in the Annual Report referred to
in clause (a) above;
(c) The description of the Common Stock of the Company
contained in the Company's Registration Statement on Form 8-A filed
with the Commission on March 11, 1996;
(d) All documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date hereof and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold.
Any statement contained in this Registration Statement, or in a
document incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein, or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein, modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable since the Company's Common Stock is registered under
Section 12 of the Exchange Act.
ITEM. 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VI of the Company's Bylaws provides as follows:
6.1 Third Party Actions. The Corporation shall indemnify any person
who was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Corporation), by reason of the fact that he is or was a director or officer of
the Corporation, or is or was serving at the request of the Corporation as a
representative of another domestic or foreign corporation for profit or
not-for-profit, partnership, joint venture, trust or other enterprise, against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with the action
or proceeding if he acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of the Corporation and, with
respect to any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful, provided that the Corporation shall not be liable for any
amounts which may be due to any such person in connection with a settlement of
any action or proceeding effected without its prior written consent or any
action or proceeding initiated by any such person (other than an action or
proceeding to enforce rights to indemnification hereunder).
6.2 Derivative and Corporate Actions. The Corporation shall
indemnify any person who was or is a party, or is threatened to be made a party,
to any threatened, pending or completed action by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a director or officer of the Corporation or is or was serving at the
request of the Corporation as a representative of another domestic or foreign
corporation for profit or not-for-profit, partnership, joint venture, trust or
other enterprise, against expenses (including attorney's fees) actually and
reasonably incurred by him in connection with the defense or settlement of the
action if he acted in good faith and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the Corporation, provided that the
Corporation shall not be liable for any amounts which may be due to any such
person in connection with a settlement of any action or proceeding affected
without its prior written consent. Indemnification shall not be made under this
Section 6.2 in respect of any claim, issue or matter as to which the person has
been adjudged to be liable to the Corporation unless and only to the extent that
the court of common pleas of the judicial district embracing the county in which
the registered office of the Corporation is located or the court in which the
action was brought determines upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, the person is fairly
and reasonably entitled to indemnity for the expenses that the court of common
pleas or other court deems proper.
6.3 Mandatory Indemnification. To the extent that a representative
of the Corporation has been successful on the merits or otherwise in defense of
any action or proceeding referred to in Section 6.1 or Section 6.2 or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
6.4 Procedure for Effecting Indemnification. Unless ordered by a
court, any indemnification under Section 6.1 or Section 6.2 shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the representative is proper in the circumstances
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because he has met the applicable standard of conduct set forth in those
sections. The determination shall be made:
(1) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to the action or proceeding;
(2) if such a quorum is not obtainable, or if obtainable and a
majority vote of a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion; or
(3) by the stockholders.
6.5 Advancing Expenses. Expenses (including attorneys' fees)
incurred in defending any action or proceeding referred to in this Article VI
shall be paid by the Corporation in advance of the final disposition of the
action or proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay the amount if it is ultimately determined that he
is not entitled to be indemnified by the Corporation as authorized in this
Article VI or otherwise.
6.6 Insurance. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a representative of the
Corporation or is or was serving at the request of the Corporation as a
representative of another domestic or foreign corporation for profit or
not-for-profit, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the
power to indemnify him against that liability under the provisions of this
Article VI.
6.7 Modification. The duties of the Corporation to indemnify and to
advance expenses to a director or officer provided in this Article VI shall be
in the nature of a contract between the Corporation and each such person, and no
amendment or repeal of any provision of this Article VI shall alter, to the
detriment of such person, the right of such person to the advance of expenses or
indemnification related to a claim based on an act or failure to act which took
place prior to such amendment or repeal.
The Company carries a liability insurance policy for its officers
and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable since no restricted securities will be reoffered or
resold pursuant to this Registration Statement.
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ITEM 8. EXHIBITS
The following exhibits are filed with or incorporated by reference
into this Registration Statement on Form S-8 (numbering corresponds to Exhibit
Table in Item 601 of Regulation S-K):
<TABLE>
<CAPTION>
No. Exhibit Page
--- ------- ----
<S> <C> <C>
4 Common Stock Certificate *
5 Opinion of Elias, Matz, Tiernan & Herrick E-1
L.L.P. as to the legality of the securities
23.1 Consent of Elias, Matz, Tiernan & Herrick --
L.L.P. (contained in the opinion included
as Exhibit 5)
23.2 Consent of Arthur Andersen LLP E-3
24 Power of attorney for any subsequent --
amendments is located in the signature pages
99 Directors' Stock Retainer Plan E-4
</TABLE>
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* Incorporated by reference from the Company's Registration Statement
on Form S-1 (Commission File No. 33-80561) filed with the Commission on
December 18, 1995.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act, (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, and (iii) to include
any material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change in such
information in the Registration Statement; provided, however, that clauses (i)
and (ii) do not apply if the information required to be included in a
post-effective amendment by those clauses is
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contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
4. That, for the purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
5. 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 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 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 questions whether such indemnification by it is against public
policy expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Commonwealth of Pennsylvania on April 20, 1999.
COMMONWEALTH BANCORP, INC.
By: /s/ Charles H. Meacham
-------------------------------------
Charles H. Meacham
Chairman 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. Each person whose signature appears below
hereby makes, constitutes and appoints Charles H. Meacham his or her true and
lawful attorney, with full power to sign for such person and in such person's
name and capacity indicated below, and with full power of substitution any and
all amendments to this Registration Statement, hereby ratifying and confirming
such person's signature as it may be signed by said attorney to any and all
amendments.
<TABLE>
<CAPTION>
Name Title Date
- --------------------------- --------------------------------------- ----------------------
<S> <C> <C>
/s/ Charles H. Meacham Chairman and Chief Executive Officer April 20, 1999
- --------------------------- (principal executive officer)
Charles H. Meacham
/s/ Charles M. Johnston Senior Vice President and Chief Financial April 20, 1999
- --------------------------- Officer (principal financial and accounting
Charles M. Johnston officer)
</TABLE>
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<TABLE>
<CAPTION>
Name Title Date
- --------------------------- --------------------------------------- ----------------------
<S> <C> <C>
/s/ George C. Beyer, Jr. Director April 20, 1999
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George C. Beyer, Jr.
/s/ Joseph E. Colen, Jr. Director April 20, 1999
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Joseph E. Colen, Jr.
/s/ Harry P. Mirabile Director April 20, 1999
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Harry P. Mirabile
/s/ Nicholas Sclufer Director April 20, 1999
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Nicholas Sclufer
/s/ Michael T. Kennedy Director April 20, 1999
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Michael T. Kennedy
/s/ Joanne Harmelin Director April 20, 1999
- ---------------------------
Joanne Harmelin
</TABLE>
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EXHIBIT 5
Law Offices
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
12th Floor
734 15th Street, N.W.
Washington, D.C. 20005
Telephone (202) 347-0300
April 22, 1999
Board of Directors
Commonwealth Bancorp, Inc.
Commonwealth Bank Plaza
2 West Lafayette Street
Norristown, Pennsylvania 19401
Re: Registration Statement on Form S-8
50,000 Shares of Common Stock
Ladies and Gentlemen:
We are special counsel to Commonwealth Bancorp, Inc., a Pennsylvania
corporation (the "Corporation"), in connection with the preparation and filing
with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended, of a Registration Statement on Form S-8 (the "Registration
Statement"), relating to the registration of up to 50,000 shares of common
stock, par value $.10 per share ("Common Stock"), to be issued under the
Corporation's Directors' Stock Retainer Plan (the "Plan"). The Registration
Statement also registers an indeterminate number of additional shares which may
be necessary under the Plan to adjust the number of shares reserved thereby for
issuance as the result of a stock split, stock dividend or similar adjustment of
the outstanding Common Stock of the Corporation. We have been requested by the
Corporation to furnish an opinion to be included as an exhibit to the
Registration Statement.
For this purpose, we have reviewed the Registration Statement, the
Articles of Incorporation and Bylaws of the Corporation, the Plan, a specimen
stock certificate evidencing the Common Stock of the Corporation and such other
corporate records and documents as we have deemed appropriate. We are relying
upon the originals, or copies certified or otherwise identified to our
satisfaction, of the corporate records of the Corporation and such other
instruments, certificates and representations of public officials, officers and
representatives of the Corporation as we have deemed relevant as a basis for
this opinion. In addition, we have assumed, without independent verification,
the genuineness of all signatures and the authenticity of all documents
furnished to us and the conformance in all respects of copies to originals.
Furthermore, we have made such factual inquiries and reviewed such laws as we
determined to be relevant for this opinion.
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Board of Directors
April 22, 1999
Page 2
For purposes of this opinion, we have also assumed that (i) the
shares of Common Stock will continue to be validly authorized on the dates the
Common Stock is issued pursuant to the Plan; (ii) no change occurs in applicable
law or the pertinent facts; and (iii) the provisions of "blue sky" and other
securities laws as may be applicable will have been complied with to the extent
required.
Based on the foregoing, and subject to the assumptions set forth
herein, we are of the opinion as of the date hereof that the shares of Common
Stock, when issued pursuant to the Plan, will be legally issued, fully paid and
non-assessable shares of Common Stock of the Corporation.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
By: /s/ Kenneth B. Tabach
--------------------------------------
Kenneth B. Tabach, a Partner
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report, dated
January 29, 1999, included in Commonwealth Bancorp, Inc.'s Form 10-K for the
year ended December 31, 1998.
/s/ ARTHUR ANDERSEN LLP
Philadelphia, Pennsylvania
April 21, 1999
<PAGE> 1
EXHIBIT 99
COMMONWEALTH BANCORP, INC.
DIRECTORS' STOCK RETAINER PLAN
1. NAME OF PLAN. This Plan shall be known as the "Commonwealth
Bancorp, Inc. Directors' Stock Retainer Plan."
2. PURPOSE OF THE PLAN. The purpose of this Plan is to improve the
growth and profitability of Commonwealth Bancorp, Inc. (the "Company") and its
subsidiaries by providing that compensation to be paid to the non-employee
directors of the Company and Commonwealth Bank (the "Bank") shall be paid in
shares of common stock, par value $0.10 per share, of the Company ("Common
Stock") in lieu of cash and thereby increase the proprietary interest of such
directors in the Company and as an incentive to contribute to its success.
3. EFFECTIVE DATE AND TIME. The Plan shall be effective as of January
1, 1999 and shall remain in effect until amended or terminated by action of the
Board of Directors of the Company.
4. PARTICIPANTS. Each member of the Board of Directors of the Company
and the Board of Directors of the Bank who is not a full-time employee of the
Company, the Bank or any of their subsidiaries (a "Non-Employee Director") and
who receives the payment of annual directors' fees shall be participants in the
Plan ("Participants"). Directors who are employees or officers of the Company,
the Bank or any subsidiary are not eligible to participate in the Plan.
5. DIRECTORS' COMPENSATION PAID IN THE FORM OF COMMON STOCK.
Non-Employee Directors shall receive their annual compensation for services as
directors payable for the year in shares of Common Stock. Such fees shall be
paid in one annual installment of the first business day of February in each
calendar year (the "Payment Date"). The number of shares of Common Stock to be
issued to each Participant each year shall be determined by dividing the amount
of such annual retainer fee by the Fair Market Value of such shares on the
Payment Date.
6. FAIR MARKET VALUE. The "Fair Market Value" shall mean the closing
sale price of a share of Common Stock on the date in question (or, if such day
is not a trading day in the U.S. markets, on the nearest preceding trading day),
as reported by the Nasdaq Stock Market or other principal market (or the
composite of the markets, if more than one) or national quotation system in
which such shares are then traded, or if no such closing prices are reported,
the mean between the high bid and low asked prices that day on the principal
market or national quotation system then in use, or if no such quotations are
available, the price furnished by a professional securities dealer making a
market in such shares selected by the Board of Directors of the Company.
7. FRACTIONAL SHARES. The Company shall not issue fractions of shares
under the Plan. Whenever a fractional share would be required to be issued, the
Participant shall be paid in cash for
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such fractional share based upon the same Fair Market Value which was utilized
to determine the number of shares subject to issuance on the relevant Payment
Date.
8. SHARES AVAILABLE FOR ISSUANCE UNDER THE PLAN. The aggregate number
of shares of Common Stock which may be issued pursuant to this Plan, subject to
adjustment as provided in Section 9, shall be 50,000 shares.
9. ADJUSTMENTS FOR CAPITAL CHANGES. The aggregate number of shares of
Common Stock available for issuance under this Plan shall be proportionately
adjusted for any increase or decrease in the total number of outstanding shares
of Common Stock issued subsequent to the effective date of this Plan resulting
from a split, subdivision or consolidation of shares or any other capital
adjustment, the payment of a stock dividend, or other increase or decrease in
such shares effected without receipt or payment of consideration by the Company.
10. SOURCE OF SHARES. The shares of Common Stock issued under this
Plan may be authorized but unissued shares, treasury shares or shares purchased
by the Company on the open market or from private sources for use under the
Plan.
11. ISSUANCE OF SHARES. The shares of Common Stock issued under this
Plan shall be immediately vested and issued to the Participants promptly after
the Payment Date. The Company shall take such action as may be necessary to
ensure that the transfer of such shares is not restricted under the Securities
Act of 1933 and may be freely transferable by Participants after issuance,
subject to the obligations and requirements of the Participants as directors of
the Company under the federal securities laws. However, the issuance of shares
or the delivery or certificates for such shares to Participants hereunder shall
be subject to the requirement that, if at any time the Board of Directors of the
Company shall reasonably determine, in their discretion, that the listing,
registration or qualification of such shares upon any securities exchange or
under any state or federal law, or the consent or approval of any governmental
regulatory body or shareholders of the Company, is necessary or desirable as a
condition of, or in connection with, such issuance or delivery thereunder, such
issuance or delivery shall not take place unless such listing, registration,
qualification, consent or approval shall have been effected or obtained free of
any conditions not reasonably acceptable to the Board of Directors of the
Company.
2
