<PAGE>
As filed with the Securities and Exchange Commission ________________, 1999
Registration No.: 33-_____
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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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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)
SmartBuy Stock Purchase Plan
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(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
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(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 price per unit(1) price registration fee
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
Par value 10,000 $22.88 $228,800 $64.00
$1.00 per share
</TABLE>
(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.
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<PAGE>
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-
<PAGE>
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-
<PAGE>
(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 September 17, 1999.
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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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/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
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description
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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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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
<PAGE>
The following information is needed to establish
my account:
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Social Security Number
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Department
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First Name Middle Initial
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Last Name
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Street Address Apt. Number
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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
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Signed Date
Send the completed form to the Human Resources
Department.
<PAGE>
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
<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
September 15, 1999
