<PAGE>
As filed with the Securities and Exchange Commission _________, l999
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.
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(Exact Name of Registrant as specified in its charter)
Pennsylvania 25-1834776
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 Senate Avenue, CampHill, Pennsylvania 17001-8599 (717) 975-5630
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(Address, including zip code, and telephone number, including area code, or
registrant's principal executive offices)
Directors Stock Option 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
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
Proposed
Title of each class Amount Proposed maximum
of securities to be to be maximum offering aggregate offering Amount of
registered Registered /1/ price per unit /2/ price registration fee
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 50,790 $27.13 $1,377,933 $418.00
Par value
$1.00 per share
</TABLE>
- ------------------------------------
/1/ There are 140,709 shares (adjusted for dividends) which may be granted
under the 1990 Directors Stock Option Plan. There are 72,391 shares
currently subject to exercisable stock options granted under the Plan. The
72,391 shares subject to exercisable stock options were included in the
number of shares registered on the Registrant's S-4 Registration Statement
filed on May 14, 1999. Thus, the number of shares being registered on this
S-8 Registration Statement includes only the remaining 50,790 shares which
may be granted under the Plan and were not previously registered.
/2/ Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457, and based on a price of $27.13, which is the average
of the bid and ask prices of the Common Stock on June 25, 1999, as reported
on the NASDAQ Small Cap.
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
have been sent or given to participants in the Commerce Bank/Harrisburg, N.A.
("Commerce")1990 Directors Stock Option Plan (the "Plan"). Pursuant to the
reorganization consummated on July 1, 1999, Commerce was reorganized into a one-
bank holding company, and became the wholly owned subsidiary of Pennsylvania
Commerce Bancorp, Inc. (the "Company"). Pursuant to the reorganization,
Commerce shareholders received shares of the Company's common stock (one-for-
one) in exchange for shares of their Commerce common stock. The Company will
continue the Plan and honor outstanding options with the Company's common stock.
The documents given to participants in the Plan are not being filed with
the Commission, but constitute (along with the documents incorporated by
reference into this Registration Statement pursuant to Item 3 of Part II ) a
Prospectus that meets the requirements of Section 10(a) of the Securities Act of
1933.
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<PAGE>
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 Company's common stock contained in the
Company's
S-4Registration Statement filed on May 14, 1999, which became effective on or
about June 3, 1999.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Howell C. Mette, a partner in the law firm of Mette, Evans & Woodside, the
Company's general counsel, is a voting director of the Company.
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.
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<PAGE>
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable. No exemption from registration is claimed.
ITEM 8. EXHIBITS.
4. 1990 Directors Stock Option Plan of Commerce Bank/Harrisburg, N.A.
(which is being continued by the Company).
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
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<PAGE>
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) 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.
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<PAGE>
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 June 30, 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 June 30, 1999
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Gary L. Nalbandian
/s/ Vernon W. Hill, II Director June 30, 1999
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Vernon W. Hill, II
/s/ Douglas S. Gelder Director June 30, 1999
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Douglas S. Gelder
/s/ Alan R. Hassman Director June 30, 1999
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Alan R. Hassman
/s/ Howell C. Mette Director June 30, 1999
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Howell C. Mette
/s/ Michael A. Serluco Director June 30, 1999
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Michael A. Serluco
/s/ Samir J. Srouji Director June 30, 1999
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Samir J. Srouji
President,
Chief Executive Officer and
/s/ James T. Gibson Director June 30, 1999
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James T. Gibson
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description
- -------------- -----------
4. 1990 Directors Stock Option Plan of Commerce Bank/Harrisburg,
N.A. (which is being continued by the Company).
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.
<PAGE>
EXHIBIT 4.
1990 DIRECTORS STOCK OPTION PLAN
COMMERCE BANK/HARRISBURG, N.A.
------------------------------
1. Purpose of Plan
---------------
The purpose of this Plan is to enable Commerce Bank/Harrisburg, N.A.
(hereinafter referred to as the "Bank") to continue to attract and retain
nonemployee Directors with outstanding abilities by making it possible for them
to purchase shares of the Bank's Common Stock on terms which will give them a
direct and continuing interest in the future success of the Bank's business.
2. Definitions
-----------
"Bank" means Commerce Bank/Harrisburg, N.A., a national banking
----
association.
"Committee of the Board" means a committee established by the Board
----------------------
consisting of three or more members of the Board. The Personnel Committee may be
this committee.
"Director" means a Director of the Bank who is not regularly employed on a
--------
salary basis by the Bank.
"Shares" means shares of Common Stock of the Bank.
------
"Board" means the Board of Directors of the Bank.
-----
"Optionee" means a person to whom an option has been granted under this
--------
Plan which has not expired or been fully exercised or surrendered.
3. Limits on Options
-----------------
The total number of shares for which options may be granted under this Plan
shall not exceed in the aggregate 50,000 shares. This number shall be
appropriately adjusted if the number of issued shares shall be increased or
reduced by change in par value, combination, or split-up, reclassification,
distribution of a dividend payable in stock, or the like. The number of shares
previously optioned and not theretofore delivered and the option prices therefor
shall likewise be appropriately adjusted whenever the number of issued shares
shall be increased or reduced by any such procedure after the date or dates on
which such shares were optioned. Shares covered by options which have expired or
which have been surrendered may again be optioned under this Plan.
4. Adjustment of Options
---------------------
The number of shares optioned from time to time to individual Optionees
under the Plan, and the option prices therefor, shall be appropriately adjusted
to reflect any changes in par value, combination, split-up, reclassification,
distribution of dividend payable in stock, or the like.
5. Granting of Options
-------------------
The Board, or if the Board so determines, the Committee of the Board, is
authorized to grant options to Directors pursuant to this Plan during the
calendar year 1990 and in any calendar year thereafter to December 31, 2000, but
not thereafter. The number of shares, if any, optioned in each year, the
Directors to whom options are granted, and the number of shares optioned to each
Director
<PAGE>
selected shall be wholly within the discretion of the Board or the Committee of
the Board. If the Board acts, however, it shall do so only upon the advice and
recommendation of the Committee of the Board upon all matters relating to the
granting of options and the administration of this Plan, including determination
of the rights and obligations of the Optionees.
6. Terms of Stock Options
----------------------
The terms of stock options granted under this Plan shall be as follows:
(a) The option price shall be fixed by the Board or the Committee of
the Board but shall in no event be less than 100% of the fair market value
of the shares subject to the option on the date the option is granted.
(b) Options shall not be transferable otherwise than by will or by the
laws of descent and distribution. No option shall be subject, in whole or
in part, to attachment, execution or levy of any kind.
(c) Each option shall expire and all rights thereunder shall end ten
(10) years after the date on which it was granted, subject in all cases to
earlier expiration as provided in paragraphs (d), (e) and of this Section 6
in the event a Director ceases to serve as such or dies.
(d) During the lifetime of an Optionee, his option shall be
exercisable only by him and only while a Director of the Bank or within
three (3) months after he otherwise ceases so to serve (but in any event
not later than the end of the period specified in paragraph (c) of this,
Section 6).
(e) If an Optionee dies within a period during which his option could
have been exercised by him, his option may be exercised within three months
after his death (but not later than the end of the period specified in
paragraph (c) of this Section 6) by those entitled under his will or the
laws of descent and distribution, but only if and to the extent the option
was exercisable by him immediately prior to his death.
(f) If Optionee is removed as a Director for any of the reasons
specified in Section 1408(b) of the Banking Code of 1965, all options
theretofore granted to the Optionee preceding such removal shall be
forfeited by Optionee and rendered unexercisable.
(g) Subject to the foregoing terms and to such additional or different
terms regarding the exercise of the options as the Board or the Committee
of the Board may fix at the time of grant, options may be exercised in
whole or in part from time to time.
7. Exercise of Options
-------------------
No option granted under this Plan may be exercised before the first to
occur of (i) one year from the date of option grant, and (ii) a Change in
Control of the Bank. Thereafter, options may be exercised in whole, or from time
to time in part, for up to the total number of shares then subject to the
option, less the number of shares previously purchased by exercise of the
option.
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8. Change in Control
-----------------
For the purposes of this Agreement, a Change in Control with respect to any
Optionee shall be deemed to have occurred when any of the following events shall
have occurred without the prior written consent of such Optionee:
(a) A change in identity of at least four (4) members of the Board of
Directors or the addition of four (4) or more new members to the Board of
Directors, or any combination of the foregoing, within any two (2)
consecutive calendar year periods.
(b) A person or group acting in concert as described in Section
13(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") proposes to hold or acquire beneficial ownership within the meaning
of Rule 13(d)(3) promulgated under the Exchange Act of a number of voting
shares of the Bank which constitutes either more than 50%, of the shares
which voted in the election of Directors of the Bank at the Shareholder's
Meeting immediately preceding such determination, or (ii) more than 50% of
the Bank's outstanding voting shares. The term "proposes to hold or
acquire"shall mean the right of a person or group to acquire or merge
(whether such right is exercisable immediately or only after the passage of
time, or upon the receipt of such regulatory approvals as are required by
applicable law) pursuant to an agreement, arrangement or understanding
(whether or not in writing) or upon the exercise or conversion of rights,
exchange rights, warrants or options, or otherwise.
(c) A person or group acting in concert as described in Section
13(d)(2) of the Exchange Act has commenced a tender or exchange offer with
respect to the voting shares of the Bank or securities convertible or
exchangeable into voting shares of the Bank, or
(d) A person or group acting in concert as described in Section
13(d)(2) of the Exchange Act has the right to vote shares of the Bank
pursuant to any agreement, arrangement or understanding (whether or not in
writing), either (i) more than 50% of the shares which voted in the
election of Directors of the Bank at the Shareholder's Meeting immediately
preceding such determination, or (ii) more than 50% of the Bank's
outstanding voting shares; provided, however, that such person or group
acting in concert, shall not be deemed to have acquired such shares if the
agreement, arrangement or understanding to vote such securities rises
solely from a revocable proxy given in response to a Proxy Solicitation by
management of the Bank in connection with the Annual Meeting of the
Shareholders of the Bank.
9. Reorganization of the Bank
--------------------------
In the event that the Bank is succeeded by another corporation or bank in a
reorganization, merger, consolidation, acquisition of property or stock,
separation or liquidation, the successor corporation or bank shall assume the
outstanding options granted under this Plan or shall substitute new options for
them.
10. Delivery of Shares
------------------
No shares shall be delivered upon the exercise of an option until the
option price has been paid in full in cash or, at the discretion of the Board or
the Committee of the Board, in whole or in
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part in the Bank's Common Stock owned by the Optionee valued at fair market
value on the date of exercise. If required by the Board. no shares will be
delivered upon the exercise of an option until the Optionee has given the Bank a
satisfactory written statement that he is purchasing the shares for investment
and not with a view to the sale or distribution of any such shares.
11. Administration
--------------
The Board or the Committee of the Board may make such rules and regulations
and establish such procedures as it deems appropriate for the administration of
this Plan. In the event of a disagreement as to the interpretation of this Plan
or any amendment thereto or any rule, regulation or procedure thereunder or as
to any right or obligation arising from or related to this Plan, the decision of
the Board or the Committee of the Board (excluding, however, the Director(s)
affected by such dispute or disagreement) shall be final and binding upon all
persons in interest, including the Bank and its shareholders.
12. Reservation of Shares
---------------------
Shares delivered upon the exercise of an option shall, in the discretion of
the Board or the Committee of the Board, be either shares heretofore or
hereafter authorized and then unissued, or previously issued shares heretofore
or hereafter acquired through purchase in the open market or otherwise, or some
of each. The Bank shall be under no obligation to reserve or to retain in its
treasury any particular number of shares at any time, and no particular shares,
whether unissued or held as treasury shares, shall be identified as those
optioned under this Plan.
13. Amendment of Plan
-----------------
The Board may amend this Plan from time to time as it deems desirable.
14. Termination of the Plan
-----------------------
The Board may, in its discretion, terminate this Plan at any time prior to
December 31, 2000, but no such termination shall deprive Optionees of their
rights under their options.
15. Effective Date
--------------
This Plan shall become effective on January 2, 1990, and options hereunder
may be granted at any time on or after that date.
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EXHIBIT 5
OPINION OF COUNSEL
Pennsylvania Commerce Bancorp, Inc.
100 Senate Avenue
P.O. Box 8599
Harrisburg, PA 17001-8599
Re: 1990 Directors Stock Option 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 50,790 shares of common stock of Pennsylvania Commerce
Bancorp, Inc. (the "Company"), par value $1.00 per share, are to be registered
pursuant to the Commerce Bank/Harrisburg, N.A. 1990 Directors Stock Option Plan.
The Plan was previously registered by Commerce with the Office of the
Comptroller of the Currency. The Company, which is now the holding company of
Commerce pursuant to the reorganization consummated on July 1, 1999, is
continuing the 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
<PAGE>
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
June 30, 1999
