<PAGE>
As filed with the Securities and Exchange Commission , l999
Registration No.: ________________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3D
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
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(State or other jurisdiction of incorporation or organization)
25-1834776
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(I.R.S. Employer Identification No.)
100 Senate Avenue, Camp Hill, Pennsylvania 17011 (717) 975-5630
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(Address, including zip code, and telephone number, including area code, or
registrant's principal executive offices)
Approximate Date of Commencement of Proposed Sale to the Public:
, 1999 or as soon as practical after the
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Registration Statement becomes effective
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following
box. [XXX]
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
statement number of the earlier effective registration
statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration statement number of
the earlier effective Registration statement for the
same offering. [ ]
If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box. [ ]
The sequentially numbered page where the exhibit index is located is 23
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<PAGE>
JAMES T. GIBSON
President and C.E.O
PENNSYLVANIA COMMERCE BANCORP, INC.
100 Senate Avenue
Post Office Box 8599
Camp Hill, Pennsylvania 17011
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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
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed
Title of each class Proposed maximum
of securities to be Amount to be maximum offering aggregate offering Amount of
registered registered price per unit /1/ price registration fee
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<S> <C> <C> <C> <C>
Common Stock 500,000 $22.88 $11,440,000 $3,180.00
Par value
$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.
<PAGE>
PROSPECTUS
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PENNSYLVANIA COMMERCE BANCORP, INC.
100 Senate Avenue
Post Office Box 8599
Camp Hill, Pennsylvania 17011
(717) 975-5630
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
This Prospectus relates to 500,000 shares of the $1.00 par value Common Stock of
PENNSYLVANIA COMMERCE BANCORP, INC. (the "Company") to be issued under the
Pennsylvania Commerce Bancorp, Inc. Dividend Reinvestment and Stock Purchase
Plan (the "Plan") which was adopted by the Board of Directors of the Company on
June 18, 1999. The Plan provides shareholders of the Company with a simple and
convenient method of investing cash dividends and voluntary cash contributions
in additional shares of the Common Stock of the Company without the payment of
brokerage commissions or service charges. Shares may be purchased for Plan
participants either directly from the Company or in the open market. Shares
purchased through the Plan will be purchased at a 3% discount from the then
current market price. This discount is subject to change from time to time in
the sole discretion of the Board of Directors.
------------------------------
These securities have not been approved or disapproved by the Securities
and Exchange Commission ("SEC"), or any state securities commission. None of
these regulatory agencies passed upon the accuracy or adequacy of this
Prospectus. It is illegal for anyone to tell you otherwise.
The Common Stock is offered subject to approval of certain legal matters for the
Company by its counsel.
------------------------------
The date of this Prospectus is
September 15, 1999
[Rest of Page Intentionally Left Blank]
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934. The Company files reports, proxy statements and other
information with the SEC. These materials will be available for inspection,
without charge, at the SEC's principal office at 450 Fifth Street, NW.,
Washington, DC 20549, and at its regional offices located at 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661, and at 7 World Trade Center, Suite
1300, New York, New York 10048. Copies may also be obtained from the SEC's
Public Reference Section at Judiciary Plaza, 450 Fifth Street, NW., Washington,
DC 20549, at prescribed rates. Some information about the Company will also be
available on the SEC's website at www.sec.gov.
The Company has filed its S-3 Registration Statement with the SEC. This
Prospectus does not contain all of the information set forth in the registration
statement. You will find additional information about the Company in the
registration statement. The registration statement, including its exhibits and
schedules, is available for inspection, without charge, at the SEC's principal
office at 450 Fifth Street, NW., Washington, DC 20549. Copies may also be
obtained from that office at prescribed rates. The registration statement,
including its exhibits and schedules, is also available on the SEC's website at
www.sec.gov.
This Prospectus incorporates by reference documents relating to the Company
which are not presented in this Prospectus. These documents are available
without charge, upon written or oral request directed to:
DEBORAH MILLER
PENNSYLVANIA COMMERCE BANCORP, INC.
P.O. BOX 8599
CAMP HILL, PA 17001-8599
TELEPHONE NUMBER (717) 975-5630
[Rest of Page Intentionally Left Blank]
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
Prospectus Summary................................................ 1
Description of the Dividend Reinvestment and Stock Purchase Plan.. 2
Use of Proceeds................................................... 15
Description of the Company Stock.................................. 15
Indemnification................................................... 17
Incorporation of Certain Documents by Reference................... 18
Legal Matters..................................................... 18
Experts........................................................... 18
</TABLE>
You should rely only on the information provided or incorporated by reference in
this Prospectus or any supplement. We haven't authorized any person to give you
any different information. We aren't offering to sell any of these securities
in any state where the offer isn't allowed. You should not assume that the
information in this Prospectus or any supplement is accurate as of any date
other than the date on the front of this Prospectus or any supplement.
[Rest of Page Intentionally Left Blank]
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<PAGE>
PROSPECTUS SUMMARY
The information set forth below is qualified in its entirety by and should be
read in conjunction with the more detailed information appearing elsewhere in
this Prospectus.
The Company and its Subsidiary
The Company is a bank holding company incorporated as a Pennsylvania business
corporation on April 12, 1999. The Company was formed as part of a
reorganization of Commerce Bank/Harrisburg, N.A. ("Commerce"). The Company owns
all of the issued and outstanding stock of Commerce, making Commerce the
Company's wholly owned banking subsidiary.
Commerce engages in full service retail and commercial banking, including
demand, savings and time deposits, commercial, consumer and mortgage loans.
The Company's corporate office is located at 100 Senate Avenue, P. O. Box 8599,
Camp Hill, Pennsylvania 17011. Telephone: (717) 975-5630.
The Stock
The securities being offered and registered under the Plan are shares of the
Company's Common Stock, par value $1.00 per share. The Company's Articles of
Incorporation also authorize the issuance of up to 1,000,000 shares of Preferred
Stock.
Purpose of Offering; Use of Proceeds
A principal purpose of the offering is to provide shareholders of the Company
with a simple and convenient method of investing cash dividends and voluntary
cash contributions in additional shares of the Company's Common Stock. The
Company presently intends to invest in or to advance to Commerce, all proceeds
from the sale of the Company's Common Stock (net of expenses) to provide
additional capital to support anticipated growth and expansion and for general
corporate purposes of Commerce.
[Rest of Page Intentionally Left Blank]
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<PAGE>
DESCRIPTION OF THE PENNSYLVANIA COMMERCE BANCORP, INC.
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
The following questions and answers constitute the Company's Dividend
Reinvestment and Stock Purchase Plan (the "Plan"). Under the Plan, the Company
will sell, and holders of the Company's Common Stock may purchase, shares of
Common Stock through the automatic reinvestment of cash dividends paid on shares
of Common Stock and with voluntary cash payments.
Purpose
l. What are the purposes of the Plan?
The primary purpose of the Plan is to provide the shareholders of the
Company with a simple and convenient method of investing cash dividends and
voluntary cash contributions in additional shares of the Company's Common
Stock without payment of any service charges or brokerage commissions.
When newly issued or treasury shares are purchased directly from the
Company, the Company will receive new equity capital funds which will be
available for general corporate purposes. See "USE OF PROCEEDS."
Options Available to Participants
2. What options are available to enrolled participants?
Dividend Reinvestment. Holders of the Company's Common Stock who wish to
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participate in the Plan may elect to have all or a portion of their cash
dividends paid on their shares of Common Stock automatically reinvested in
additional shares of Common Stock through the Plan. Cash dividends may be
paid on the Company's Common Stock when and as declared by the Company's
Board of Directors. Subject to the availability of shares of Common Stock
registered for issuance under the Plan, there is no limitation on the
amount of dividends a participant may reinvest under the Plan.
Stock Purchase. Each calendar quarter, participants may also elect to
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invest optional cash payments in shares of Common Stock. Participants are
not required to make any optional cash payments under the Plan.
Participants may make optional cash payments of not less than $100 per
quarter, and not more than $5,000 per quarter. The $5,000 maximum
quarterly purchase is subject to increase or decrease. Participants may
make optional cash payments each quarter even if no dividend has been
declared.
Advantages
3. What are the advantages of the Plan?
Plan participants may have the cash dividends on their shares of Common
Stock credited to their plan account automatically reinvested in additional
shares of the Company's Common Stock at a 3% discount from the current
market price, without payment of any service charges or brokerage
commissions.
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<PAGE>
Additionally, participants may invest in additional shares of Common Stock
at a 3% discount from the current market price by making voluntary cash
payments, within specified limits, without payment of any service charges
or brokerage commissions.
The 3% discount described above is subject to change from time to time in
the sole discretion of the Board of Directors.
Participants benefit because the Company pays all of the administrative
costs of the Plan and all commissions payable in connection with the
purchase of shares for the Plan. The Plan provides for fractional shares,
as well as whole shares, to be credited to participants' accounts.
Fractional shares earn dividends just like whole shares when held in a plan
account.
Participants may avoid cumbersome safekeeping and record keeping costs
through the free custodial and recording services furnished pursuant to the
Plan. The shares may be held in safe keeping and regular statements of
account are provided by the Plan Agent.
Administration
4. Who administers the Plan?
The Plan is administered by FMA Advisory, Inc. (sometimes referred to as
the "Plan Agent"). The Plan Agent automatically reinvests dividends and
invests voluntary cash payments in additional shares of Common Stock in
accordance with the investment option selected by participants.
Additionally, the Plan Agent keeps records, sends statements of account to
participants and performs other administrative duties relating to the Plan.
Purchase of Common Stock pursuant to the Plan may be delegated to an
independent purchasing agent (the Plan Agent and any independent purchasing
agent are hereinafter collectively or interchangeably referred to as the
"Plan Agent").
Participation
5. Who is eligible to participate in the Plan?
All holders of record of the Company's Common Stock are eligible to
participate in the Plan. A beneficial owner of stock whose shares are
registered in a name other than his own (e.g. in the name of a broker, bank
or nominee) must either make arrangements for the broker, bank or nominee
to become a participant, or must become a shareholder of record by having
all or a part of his shares transferred into his own name. To have shares
which are beneficially owned re-registered in the shareholder's name, a
shareholder must request his or her broker, bank or nominee to send the
shareholder a certificate representing those shares.
6. How does an eligible shareholder enroll in the Plan?
Any eligible shareholder may enroll in the Plan by completing and signing
the Authorization Card accompanying this Prospectus and returning it to:
Commerce Bank/Harrisburg, N.A.
Pennsylvania Commerce Bancorp, Inc. DRIP
100 Senate Avenue
P. O. Box 8599
Camp Hill, Pennsylvania 17011
Telephone: (717) 975-5630
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<PAGE>
Additional Authorization Cards may be obtained at any time by written or
oral request to the Plan Agent.
7. When may an eligible shareholder enroll in the Plan?
An eligible shareholder may enroll in the Plan at any time. If the
shareholder's Authorization Card requesting reinvestment of dividends is
received by the Plan Agent on or prior to two (2) business days before the
record date established for a particular dividend, reinvestment will
commence with that dividend. If an Authorization Card is received from a
shareholder after the record date established for a particular dividend,
the reinvestment of dividends will begin with the next cash dividend paid
if the shareholder is still a holder of record.
Except as otherwise provided in this Prospectus, dates on which shares are
purchased with reinvested dividends or with voluntary cash payments are
referred to in this Prospectus as "Investment Dates." Investment Dates for
voluntary cash payments will be on or about the last business day of each
calendar quarter.
8. May a shareholder enroll as to some, but not all, shares held of record?
Yes, a shareholder may enroll in the Plan as to some, but not all shares of
Common Stock owned of record by that shareholder. The Authorization Cards
provide for the purchase of additional shares of Common Stock through the
following investment options:
(a) Full dividend reinvestment - directs the investment in accordance
with the Plan of all of the shareholder's cash dividends on all of his
or her shares of Common Stock then or subsequently registered in the
shareholder's name and permits the shareholder to make voluntary cash
payments for the purchase of additional shares in accordance with the
Plan.
(b) Partial dividend reinvestment - directs the investment in
accordance with the Plan of the cash dividends on that number of
shares of Common Stock registered in the shareholder's name which are
designated in the appropriate space on the Authorization Cards and
reinvestment of cash dividends on all other shares of Common Stock now
or subsequently held for the shareholder by the Plan Agent. This
option also permits the shareholder to make voluntary cash payments
for the purchase of additional shares in accordance with the Plan.
Participants may select either of the above investment options for their
Common Stock. Any participant who returns a properly executed
Authorization Card without electing one of the dividend reinvestment
options described above will be enrolled as having selected the full
dividend reinvestment option.
An eligible shareholder may not elect to make only voluntary cash payments
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under the Plan. Participation in the Plan is limited to shareholders who
direct the Plan Agent to reinvest dividends on shares of Common Stock held
of record by them. Once enrolled, a shareholder may elect to make
voluntary cash payments, even if no dividend has been declared.
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<PAGE>
Common Stock purchased with reinvested dividends or voluntary cash payments
(and shares of Common Stock deposited with the Plan Agent) will be held by
the Plan Agent in its name or in the name of its nominee for the
participant's account. The cash dividends on all of the shares of Common
Stock credited to Plan accounts (whether the related share certificates are
held by the Plan Agent or by the participant) will be reinvested in
accordance with the Plan. Participants may elect to receive cash dividends
on shares of Common Stock credited to their Plan account only by both
withdrawing those shares from the Plan account and by submitting to the
Plan Agent an Authorization Card which either elects the partial dividend
reinvestment option or modifies the participant's then current partial
dividend reinvestment option.
9. How may a participant change options under the Plan?
Participants may change their investment options or modify the number of
shares designated under the partial dividend reinvestment option at any
time by completing a new Authorization Card and returning it to the Plan
Agent. The change will become effective as of the dividend record date
following the date the Authorization Card is received by the Plan Agent.
Voluntary Cash Contributions
10. How may voluntary cash contributions to the Plan be made?
Each participant may make optional cash contributions to the Plan of not
less than $100 and not more than $5,000 per each quarterly investment
period. The Investment Date for purchases with voluntary cash payments
will be on or about the last business day of each calendar quarter. The
same amount need not be invested in each quarterly period. Participants are
under no obligation to make any voluntary cash contributions. A voluntary
cash payment may be made by forwarding a check or money order, payable to
the Plan Agent, with a completed Authorization Card when enrolling, or
thereafter, with the payment form attached to each statement of account.
Do not send cash.
For investment of a voluntary cash payment to occur on a particular
Investment Date, the Plan Agent must receive the payment on or before three
(3) business days prior to the Investment Date. Checks or other drafts
must clear prior to the Investment Date on which the investment is to be
made. Participants should allow sufficient time for checks to clear.
11. How will voluntary cash contributions be used?
The Plan Agent will apply each voluntary cash payment to the purchase of
Common Stock for the account of that participant on the next Investment
Date. A voluntary cash contribution will not be deemed to have been made
by a participant or received by the Plan Agent until the funds so
contributed are actually collected. Interest will not be paid on voluntary
cash contributions. For this reason, it is to the participant's benefit to
mail payments so that they are received by the Plan Agent prior to, but as
close as possible to, three (3) business days prior to the Investment Date.
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<PAGE>
12. May voluntary cash contributions be returned to a participant?
Yes. Voluntary cash contributions will be returned to a participant upon
written request to the Plan Agent, so long as the request is received no
later than two business days prior to the next scheduled Investment Date.
Purchases
13. What is the source of the Stock purchased under the Plan?
The Plan Agent will purchase Stock directly from the Company. The shares
purchased will be either authorized but unissued shares or shares held in
the treasury of the Company, or on the open market, or by a combination of
the foregoing. If the Company deems it advisable for shares to be acquired
in the open market (rather than directly from the Company) or if newly
issued or treasury shares are not available, the Plan Agent, as agent for
the participants, will arrange for the purchase of shares in the open
market with cash dividends and voluntary cash payments. Purchases of
shares in the open market will be effected through brokerage transactions
and may be made in the over-the-counter market or in negotiated
transactions. These transactions may include situations in which the broker
is selling as a principal or an agent. To the extent the Plan makes
purchases from brokerage firms as principals, the purchase price of shares
may include a retail mark up. In the future, if the shares are traded on a
securities exchange, they may be purchased on that exchange. Shares will
be acquired in the open market with cash dividends and voluntary cash
payments at the times described in Question 16.
A total of 500,000 shares of Common Stock are being offered under the Plan.
The Company intends that the shares to be acquired by the participants in
the Plan will be newly issued shares or treasury shares purchased directly
from the Company. The Company also reserves the right, in its sole
discretion, to direct the Plan Agent to arrange for open market purchases
and to cease making newly issued shares or treasury shares available, at
any time, and from time to time. In making purchases for the participant's
account in the open market, the Plan Agent may commingle the participant's
funds with those of other shareholders of the Company participating in the
Plan. The price at which the Plan Agent shall be deemed to have acquired
shares for the participant's account shall be the average price of all
shares purchased by it as agent for all participants in the Plan.
l4. How will the price of shares purchased under the Plan be determined?
The shares of Common Stock purchased through the Plan directly from the
Company, whether issued by the Company out of legally authorized but
unissued shares of Common Stock or out of treasury shares, will be
purchased at a discount of 3% from the average of the high and low sale
prices of the Common Stock as reported on the NASDAQ Small Cap Market
System on the trading day immediately preceding the Investment Date or the
closest preceding date if there are no high and low sale prices available
on that date. The discount is subject to change from time to time in the
sole discretion of the Board of Directors. If there are no high and low
sale prices available for the Common Stock for the 30 trading days
preceding the applicable Investment Date, then the Company's board of
directors shall make a determination of the purchase price on the basis of
information which it determines best reflects current market value.
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<PAGE>
The purchase price for shares of Common Stock purchased through the Plan in
the open market shall be at a discount of 3% from the weighted average
purchase price of all shares purchased for the Plan in the open market on
the relevant Investment Date.
The 3% discount as discussed above is subject to change from time to time
as determined by and in the sole discretion of the board of directors.
The average price described above is referred to as the "current market
price" and the purchase price, as discounted from the current market price,
is referred to as the "discounted purchase price."
l5. How many shares will be purchased by the Plan Agent for the participants in
the Plan?
The number of shares to be purchased for a participant by the Plan Agent
will depend on the amount of the participant's dividend and voluntary cash
payment, if any, and the price of the shares. Each participant's account
will be credited with the number of whole and fractional shares equal to
the amount to be invested divided by the applicable purchase price.
Fractional shares shall be calculated to four (4) decimal places.
16. When will shares be purchased?
The Investment Date for purchases of Common Stock directly from the Company
with reinvested dividends will be the payment date of a particular dividend
if that day is a trading day, or the first trading day following a dividend
payment date if the payment date is not a trading day.
The Investment Date for purchases of Common Stock directly from the Company
with voluntary cash payments will be on or about the last business day of
every calendar quarter. The due date for voluntary cash payments is three
(3) business days prior to the Investment Date. Checks or other drafts
must clear prior to the Investment Date on which the investment is to be
made. Participants should allow sufficient time for checks to clear.
Purchases of Common Stock on the open market may occur over one or more
trading days and will commence on the same days as specified above for
purchases made directly from the Company. For a number of reasons,
including observance of the rules and regulations of the Securities and
Exchange Commission requiring temporary curtailment or suspension of
purchases, it is possible that the whole amount of funds available in a
participant's account might not be applied to the purchase of shares on or
before the next ensuing Investment Date. Neither the Company nor the Plan
Agent shall be liable to any shareholder when these types of conditions
prevent the purchase of shares or interfere with the timing of purchases.
Dividends
17. How will dividends be paid on shares held by the Plan Agent?
As record holder of the shares held in participants' accounts under the
Plan, the Plan Agent will:
. receive dividends on all such shares held on each dividend record
date,
. credit dividends to participants' accounts on the basis of whole or
fractional shares held in each account, and
. automatically reinvest these dividends in the Company's Common Stock.
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<PAGE>
Costs
18. What are the costs to a participant in the Plan?
Participants incur no service charges or brokerage commissions for
purchases made under the Plan. All costs of administration of the Plan are
paid by the Company. However, participants who request that the Plan Agent
sell all or any portion of their shares must pay a nominal fee per
transaction to the Plan Agent, any related brokerage commissions and
applicable stock transfer taxes. Participants will be responsible for the
following fees:
. Sales Fee $25.00 (or $ .09 per share)
. Fee for Returned Checks $25.00
. Duplicate Statement
Current Year No Charge
Prior Years $20.00
The Plan Agent will deduct the applicable fees from proceeds due from a
sale.
Accounts and Reports to Participants
19. What kind of accounts are maintained for participants and what reports will
be sent to participants in the Plan?
The Plan Agent maintains a separate account for each participant. All
shares purchased for a participant under the Plan will be credited to the
participant's account. The Plan Agent will mail to each participant a
statement of account confirming purchases of shares as soon as practicable
after purchases are made for a participant's Plan account. Statements of
account should be retained for income tax purposes.
In addition, each participant will receive copies of the Company's annual
and quarterly reports to shareholders, proxy statements and dividend income
information for tax purposes.
Certificates for Shares
20. Will certificates be issued for shares purchased?
All shares purchased under the Plan will be registered in the name of the
Plan Agent or its nominee, as agent for the participants. Certificates for
these shares will not be issued to participants until the participant's
account is terminated or unless requested in writing. Certificates for any
number of whole shares will be issued to a participant within 15 days of a
written request to the Plan Agent signed by the participant. Any remaining
whole or fractional shares will continue to be held by the Plan Agent as
the agent for the participant. Certificates for fractional shares will not
be issued under any circumstances.
A participant's written request to the Plan Agent for share certificates to
be issued in the participant's name will not be treated as a withdrawal of
those shares from the participant's account unless (a) the request is
accompanied by a new Authorization Card specifying the partial dividend
reinvestment option and the number of shares for which cash dividends
should be reinvested, or (b) the request is made in conjunction with a
participant's termination of participation in the Plan.
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<PAGE>
21. May a Participant deposit shares of Common Stock in his or her account?
Participants may deposit certificates representing shares of Common Stock
with the Plan Agent for safekeeping at no charge. Shareholders are
encouraged but not required to deposit their Common Stock share
certificates with the Plan Agent upon their initial election to participate
in the Plan. Certificates must be accompanied by a written request that
the shares be added to the participant's Plan account. The cash dividends
received on all shares of Common Stock held in a participant's Plan account
will be reinvested in additional shares of Common Stock as provided in the
Plan.
22. How may share certificates or other documents be sent to the Plan Agent?
The method of delivery of share certificates and other documents is at the
election and risk of the participant. If delivery is by mail, the Company
recommends registered mail with return receipt requested, properly insured.
Certificates should be mailed to:
FMA Advisory, Inc.
Pennsylvania Commerce Bancorp, Inc. DRIP
1631 N. Front St.
Harrisburg, Pennsylvania 17102
(717) 232-8850
Termination of Participation in the Plan/Withdrawal of Shares
23. How does a participant terminate participation in the Plan or withdraw
shares from the Plan?
A participant may terminate participation in the Plan at any time by
notifying the Plan Agent in writing at least five full business days before
the next dividend record date. In the event written notice of termination
is not received by the Plan Agent by that time, shares will be purchased
for the participant with the related cash dividend and participation in the
Plan will not terminate until after that dividend has been reinvested.
Because the requirements for proper notice of the death of the holder of a
Plan account which is registered solely to that holder vary greatly,
depending on the state of residence of the participant and form of
registration of the participant's Plan account, the Plan Agent should be
contacted at the address or phone number set forth in the response to
Question 22 in the event of a participant's death.
Upon termination by reason of notice of a participant's death or
adjudicated incompetency, the participant's shares held by the Plan Agent
and any cash dividends thereafter received by the Plan Agent will be
retained by the Plan Agent until that participant's legal representative
has been appointed and has furnished proof satisfactory to the Plan Agent
of the legal representative's right to receive the share certificate and/or
payment. No interest will be paid by either the Company or the Plan Agent
on any dividends retained by the Plan Agent during any such period of time.
A participant may withdraw a portion of the shares of Common Stock credited
to his or her account from participation in the Plan by giving notice to
that effect to the Plan Agent and specifying in the notice the number of
whole shares to be withdrawn. This notice should be accompanied by a new
Authorization Card designating the partial dividend reinvestment option and
showing the number of shares for which the participant desires to have cash
dividends reinvested in accordance with the Plan. No fractional shares may
be withdrawn except upon termination of participation in the Plan. The
Plan Agent will send to the participant a statement of account and a
certificate representing the withdrawn shares.
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<PAGE>
24. What will participants receive when they terminate participation in the
Plan?
Upon electing to terminate participation in the Plan, the Plan Agent will
send to the Participant a certificate representing the whole shares of
Common Stock held by the Plan Agent in the participant's Plan account and a
check for the cash equivalent of any fractional share of Common Stock less
related sales fees, if any.
The cash to be paid in lieu of a fractional share will be based on the
current market price of the Common Stock on the Investment Date, which for
purposes of this sentence is the day that the account is terminated by the
Plan Agent.
Whenever a participant does not own at least one share directly, the Plan
Agent may, if instructed by the Company, terminate the Plan account, sell
the fractional share and send the participant the sale proceeds, less
related brokerage commissions and taxes, if any.
Other Information
25. What happens when a participant sells or transfers some (but not all) of
the shares registered in his or her name?
(a) Full Dividend Reinvestment.
If a participant is reinvesting the cash dividends on all of the shares
registered in his or her name, and disposes of a portion of those shares,
the Plan Agent will continue to reinvest the dividends on the remainder of
the shares registered in the participant's name.
(b) Partial Dividend Reinvestment.
If a participant has directed the Plan Agent to pay cash dividends to the
participant on some shares and to reinvest dividends on the remainder of
his or her shares, and the participant disposes of a portion of his or her
shares, the participant should provide new written instructions to the Plan
Agent on how to handle the participant's account. If the Plan Agent does
not receive new instructions, it may, in its discretion, either (i) pay
cash dividends on all of the participant's shares or (ii) continue to
reinvest dividends on the number of shares, if any, the participant owns in
which the participant has requested to have the dividends reinvested.
26. What happens if the Company pays a dividend in stock or splits its shares?
Any shares of the Company's Common Stock issued in connection with a stock
split or dividend distributed by the Company with respect to shares
credited to a Plan account will be added to that account.
As soon as practicable after the payment of a stock dividend or stock
split, a statement will be sent to each participant which will indicate the
number of shares of Common Stock credited to each participant's account
under the Plan as a result of the stock dividend or stock split. A
participant may receive a certificate for such shares (other than
fractional shares) at any time by sending a written request to:
FMA Advisory, Inc.
Pennsylvania Commerce Bancorp, Inc. DRIP
1631 N. Front St.
Harrisburg, Pennsylvania 17102
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27. If the Company has a Common Stock rights offering or otherwise makes
securities available to its shareholders, how will the rights offering with
respect to shares held in Plan accounts be handled?
Warrants or other written instruments representing the rights offered with
respect to the whole shares of Common Stock credited to the Plan account of
a participant will be mailed directly to the participant in the same manner
as the warrants or other written instruments are mailed to shareholders of
record who do not participate in the Plan.
28. How will a participant's shares be voted at meetings of holders of shares?
Each participant will receive a single proxy card covering the total number
of shares held by the participant in certificate form plus the total number
of full shares credited to the participant's Plan account. If a properly
signed proxy card is returned to the Company and not revoked prior to the
time of voting, the participant's shares will be voted as directed on the
proxy card. If a proxy card is returned properly signed, but without
indicating instructions as to the manner shares are to be voted with
respect to any item thereon, the shares covered will be voted in accordance
with the recommendations of the Company's management. If the proxy card is
not returned, or if it is returned unexecuted or improperly executed, the
shares covered will not be voted unless the participant or the
participant's duly appointed representative votes in person at the meeting.
29. What are the Federal income tax consequences of participation in the Plan?
The following summary assumes that all distributions under the Plan will be
from the Company's earnings and profits.
A participant in the Plan will be treated for Federal income tax purposes
as having received, on each dividend payment date, a dividend in an amount
equal to the fair market value on such dividend payment date of the shares
acquired with reinvested dividends. For Federal income tax purposes, the
fair market value of shares acquired with reinvested dividends under the
Plan will be equal to the mean of the highest and lowest quoted selling
price, or if such information is not available, the mean of the bid and the
asked price, for shares on the dividend payment date; the Discounted
Purchase Price is not taken into account in determining such fair market
value. The tax basis of shares acquired with reinvested dividends will
equal the fair market value on the dividend payment date of such shares. A
corporate shareholder participating in the Plan may be entitled to deduct a
portion of that amount deemed received as a dividend.
A participant will not be treated as having received a dividend upon the
purchase of shares at the Discounted Purchase Price with a voluntary cash
payment unless the discounted Purchase Price of the shares is less than the
fair market value of the shares on the date on which shares are acquired
for the participant's account. If the Discounted Purchase Price is less
than the fair market value of such shares, a participant will be treated as
having received a dividend equal to the excess of the fair market value of
the shares being purchased over their Discounted Purchase Price. The tax
basis of shares purchased with a voluntary cash payment will equal the
participant's voluntary cash payment plus the excess, if any, of the fair
market value of the shares being purchased over their Current Discounted
Purchase Price.
The Internal Revenue Service may take the position that any service fee
paid by the Company to the Plan Agent on behalf of the Plan participants is
an additional distribution, taxable as dividend income, to such
participants. In the event the Internal Revenue Service asserts this
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position, those participants who itemize deductions on their Federal income
tax returns may be entitled to deduct the amount of the service fee
attributable to their account as a miscellaneous itemized deduction,
subject to applicable limitations.
A participant's holding period for shares acquired pursuant to the Plan
should begin no later than the day following the date of acquisition of
such shares for the participant's account.
A participant will not realize any taxable income upon receipt of
certificates for whole shares credited to the participant's account, either
upon the participant's request for certain of those shares or upon
withdrawal from or termination of the Plan. Upon withdrawal from or
termination of the Plan, a participant will also receive a cash payment in
lieu of any fractional share equivalent credited to the participant's
account. This payment likely will be treated as an amount realized from
the sale of the fractional share equivalent, and the participant will
recognize gain or loss equal to the difference between the amount received
for the fractional share equivalent and the participant's tax basis
therefor.
In addition, a participant will recognize gain or loss when the participant
sells or exchanges shares received by the participant after withdrawal of
such shares from the Plan or upon the termination of the Plan. The amount
of such gain or loss will be the difference between the amount that the
participant receives for the shares and the participant's tax basis
therefor.
In the case of both foreign shareholders who elect to have their dividends
reinvested and whose dividends are subject to United States income tax
withholding, and other shareholders who elect to have their dividends
reinvested and who are subject to back-up withholding under Section
3046(a)(1) of the Internal Revenue Code, the Plan Agent will invest in
shares of Common Stock in an amount equal to the dividends of such
participants less the amount of tax required to be withheld. The full
amount of the dividends will be recognized as taxable income, without
reduction for the amount of tax required to be withheld. The quarterly
statements confirming purchases made for such participants will indicate
the net payment reinvested.
Under Section 3406(a)(1) of the Internal Revenue Code, the Company is
required to withhold for United States income tax purposes 20% of all
dividend payments to a shareholder of the Company if (i) such shareholder
has failed to furnish to the Company his/her taxpayer identification number
("TIN"), which for an individual is his/her Social Security number, (ii)
the Internal Revenue Service has notified the Company that the TIN
furnished by the shareholder is incorrect; (iii) the Internal Revenue
Service notifies the Company that back-up withholding should be commenced
because the shareholder has failed to report interest or dividends
properly, or (iv) the shareholder has failed to certify, under penalties of
perjury, the he/she is not subject to back-up withholding. Shareholders
have previously been requested by the Company or their broker to submit all
information and certifications required in order to exempt them from back-
up withholding if such exemption is available to them.
The foregoing discussion is based on the assumption that shares are
purchased directly from the Company. If the shares are purchased in the
open market, the Federal tax consequences would generally be the same.
However, the payment of brokerage commissions by the Company in connection
with the purchase or sale of shares in the open market may be treated as
additional dividend income to participants, in which case the amount of
such commissions would not be deductible, but would increase the basis of
the applicable shares.
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Each participant should consult his or her own tax advisor to determine the
particular tax consequences, including state tax consequences (which will
vary from state to state), that may result from participation in the Plan
and a subsequent disposal of shares acquired pursuant to the Plan.
General
30. What are the liabilities of the Plan Agent and the Company under the Plan?
The Plan Agent (or its nominees) and the Company shall not be liable under
the Plan for any act done in good faith, or for any good faith omission to
act, including, without limitation, any claim of liability (a) arising out
of any such act or omission to act which occurs prior to the termination of
participation and (b) with respect to the prices at which shares are
purchased or sold for the participant's account and the times such
purchases or sales are made.
Participants should recognize that neither the Company nor the Plan Agent
can assure participants of profits, or protect participants against losses,
on shares purchased and/or held under the Plan.
The Plan Agent (or its nominees) and the Company shall have no duties,
responsibilities or liabilities except as are expressly set forth in the
Plan.
Shareholders are cautioned that this Prospectus does not represent a change
in the Company's dividend policy or a guarantee of future dividends, which
will continue to depend upon the Company's earnings, financial
requirements, governmental regulations and other factors. The Plan Agent
has no responsibility with respect to the preparation and contents of this
Prospectus.
31. Can the Company terminate the Plan or Participant's interest in the Plan or
modify the Plan?
The Company may terminate a Plan or a participant's interest therein upon
not less than thirty calendar days prior notice in writing mailed to the
participant. In such event the Plan Agent will follow the procedures for
termination set forth in Question 23. The Company also reserves the right
to interpret and make modifications in the Plan. Any suspension,
termination or modification will be promptly announced to affected
participants.
32. What happens if the Plan cannot acquire shares?
If the Company determines not to make newly issued or treasury shares
available for purchase pursuant to the Plan and in the event that
applicable law or the closing of securities markets requires the temporary
curtailment or suspension of open market purchases of shares under the
Plan, the Plan Agent is not accountable for the inability of the Plan to
acquire shares at such times. If shares are not available for a period
longer than thirty (30) calendar days, the Plan Agent will promptly mail to
the participant a check (without any interest earned thereon) payable to
the participant's order in the amount of any unapplied funds in the
participant's account.
33. When does a participant obtain rights in shares acquired under the Plan?
A participant will not acquire rights to dividends or other benefits of
stock ownership with respect to shares acquired under the Plan until the
date shares are actually purchased for his or her account.
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34. Where should correspondence regarding the Plan be sent?
Except as provided in Question 6 (for initial enrollment and authorization
cards), any notice, instruction, request or election which by any provision
of the Plan is required or permitted to be given or made by the participant
to the Plan Agent shall be in writing, signed by the participant and
addressed to:
FMA Advisory, Inc.
Pennsylvania Commerce Bancorp, Inc. DRIP
1631 N. Front St.
Harrisburg, Pennsylvania 17102
35. What is sufficient notice to a participant?
Any notice or certificate which by any provision of the Plan is required to
be given by the Plan Agent to the participant shall be in writing and shall
be deemed to have been sufficiently given for all purposes by being
deposited by first class mail, postage prepaid, in a post office letter
box, addressed to the participant at the participant's address as it shall
last appear on the Plan Agent's records.
36. Can successor Plan Agents be named?
Upon not less than thirty calendar days prior written notice to
participants, the Company may terminate the Plan Agent at any time and may
designate a bank or trust company as successor Plan Agent for all or a part
of the Plan Agent's functions under the Plan. If the Company does so,
references in this Prospectus to the Plan Agent shall be deemed to be
references to the successor Plan Agent, unless the context requires
otherwise.
The Plan Agent may resign at any time upon not less than thirty calendar
days prior written notice to the Company, such resignation to become
effective as soon as a successor Plan Agent is named. The Company will
endeavor to name a successor Plan Agent as soon as practicable.
37. What law governs the Plan?
The terms and conditions of the Plan and its operation are governed by the
substantive laws of the Commonwealth of Pennsylvania.
38. Who bears the risk of fluctuations in the market price of Common Stock?
A participant's investment in Common Stock held in a Plan account is no
different with regard to market risk than an investment in Common Stock
held in certificate form. A participant bears the risk of loss (and
receives any benefit of gain) occurring by reason of fluctuations in the
market price of Common Stock held in a Plan account.
39. Are there any restrictions on the resale of shares acquired under the Plan?
Persons who are not "affiliates" of the Company are free to sell Common
Stock acquired under the Plan at any time.
However, persons who are "affiliates" of the Company, as that term is
defined in Rule 405 promulgated by the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended may not
publicly reoffer shares acquired under the Plan except pursuant to Rule 144
of the Commission or pursuant to an effective registration
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statement. Rule 405 defined an "affiliate" as a person who directly, or
indirectly through one or more intermediaries, controls, is controlled by
or is under common control with the Company. Directors and executive
officers of the Company are generally deemed to be "affiliates" of the
Company under this definition. the Company has no present intention of
filing a registration statement which would permit "affiliates" to reoffer
Common Stock acquired under the Plan.
Officers and directors participating in the Plan are subject to the
reporting obligations of Section 16(a) and the short-swing profit recovery
provisions of Section 16(b) of the Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), with respect to purchases of Common Stock
made under the Plan with voluntary cash payments. While executive officers
and directors are not subject to the short-swing profit recovery provisions
of Section 16(b) of the Exchange Act with respect to purchases of Common
Stock made under the Plan with reinvestment dividends, ownership and
disposition of Common Stock so acquired must be disclosed on reports filed
pursuant to Section 16(a) of the Exchange Act.
USE OF PROCEEDS
The Company is unable to predict the number of shares of stock that will be
purchased from the Company under the Plan or the prices at which the shares will
be purchased.
The Company presently intends to invest in and/or advance to Commerce
Bank/Harrisburg, N.A. ("Commerce"), the Company's banking subsidiary, the net
proceeds of sales pursuant to the Plan to provide additional capital to support
anticipated growth in loans and deposits, expansion of services and branches,
upgrading of facilities and equipment and for general corporate purposes. It is
possible, however, that some or all of such proceeds may be used, directly or
indirectly now or in the future, in connection with permissible expansion of the
business activities conducted by the Company or Commerce. Proceeds of the
offering are expected to strengthen the Company's capital structure,
facilitating possible future expansion of business activities.
DESCRIPTION OF THE COMPANY'S STOCK
The securities available under the Plan are shares of the Company's Common
Stock, $1.00 par value. As of the date of this Prospectus, there are 10,000,000
shares of Common Stock authorized, of which 1,560,235 shares are outstanding.
The Company's Articles of Incorporation also authorize 1,000,000 shares of
Preferred Stock, $10.00 par value, of which 40,000 shares are outstanding.
Holders of Common Stock are entitled to one vote per share on all matters
on which the Company's shareholders may vote, including the election of
Directors. The holders of Common Stock do not have cumulative voting rights in
the election of directors. This means that the holders of a simple majority of
the shares of Common Stock voting for the election of Directors can elect all of
the Directors, if they choose to vote together, and in such event the holders of
the remaining shares will not be able to elect any Directors.
The Company's Articles of Incorporation contain certain provisions which
may be considered anti-takeover in nature. Article 10 of the Articles of
Incorporation provides that the Board of Directors may oppose any offer,
proposal, or attempt by any corporation or other business entity, person or
group to (a) make any tender offer or other offer to acquire any of the
Company's securities; (b) merge or consolidate the Company into another entity;
(c) purchase or otherwise acquire all or substantially all of the assets of the
Company; or (d) make any transaction similar in purpose or effect to any of the
above. The Articles of Incorporation also give the Company's Board of Directors
authority to take any lawful action to oppose a tender offer or similar
transaction if the Board of Directors determines that the offer should be
rejected. The provision permits the Board of Directors
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to consider any pertinent issues in determining whether to oppose any such
offer. In addition, the Board of Directors is expressly vested with the power to
make, alter, amend and repeal the bylaws of the Company, subject to the power of
the shareholders to change such action only upon the affirmative vote of at
least 75% of the votes which all shareholders are entitled to cast.
The Articles of Incorporation and Bylaws of the Company contain certain
provisions which may be deemed to be "anti-takeover" in nature. These
provisions may deter, discourage or make more difficult the assumption of
control of the Company by another corporation or person through a tender offer,
merger, proxy contest or similar transaction or series of transactions.
Management of Commerce has no knowledge of any specific effort to accumulate
Commerce's securities or to obtain control of Commerce or the Company by means
of a merger, tender offer, solicitation in opposition to management or
otherwise.
The Articles of Incorporation expressly vest in the Company Board the power
to make, alter, amend and repeal the Bylaws of the Company. The Pennsylvania
Business Corporation Law permits a board of directors to be vested with these
powers and provides that the shareholders may change actions of the board in
respect of the bylaws by at least a majority vote unless a higher vote is
provided in the articles or bylaws. The Board, which is elected by a majority of
the shareholders, believes that the Company Board will be in the best position
to (i) determine the appropriate Bylaw provisions for the internal governance of
the Company, and (ii) make decisions regarding the Bylaws which will be in the
best interest of the Company.
The Company's Articles of Incorporation also require the affirmative vote
of the holders of at least 80% of the outstanding shares entitled to vote to
approve any merger, consolidation, sale of assets or similar transaction. If
66 2/3% of the Board of Directors approves this type of transaction, then the
affirmative vote of 66 2/3% of the outstanding shares entitled to vote is
required for approval.
The Pennsylvania Business Corporation Law provides that, unless otherwise
prescribed in the Articles of Incorporation, these transactions require the
approval of a simple majority of outstanding shares. The Company's Board
believes the higher 80% vote is necessary to assure fair treatment of all
shareholders of the Company in the event of mergers and similar transactions.
This provision of the Company's Articles of Incorporation may not be
amended, altered, changed or repealed without the affirmative vote of at least
80% of the outstanding shares entitled to vote, rather than 51% which would
otherwise be applicable under the Pennsylvania Business Corporation Law. If 66
2/3% of the Board of Directors approves such an amendment, the affirmative vote
of only 66 2/3% of the outstanding shares entitled to vote is required for
approval. Because the operation of this provision could give minority
shareholders a veto over such transactions even though the holders of a majority
of shares are in favor, and because this requirement may discourage takeover
attempts, it may be considered "anti-takeover" in nature.
The Pennsylvania Business Corporation Law further allows the Board of
Directors of the Company to consider factors other than offering price in
deciding upon whether to reject or approve a tender offer or proposed merger or
similar transaction. These factors include:
. the effect on employees, suppliers and customers;
. the effect on the communities in which offices of the corporation are
located; and
. all other pertinent factors.
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The Company's Articles of Incorporation allow the Board of Directors to
consider several economic factors, as well as the factors stated above, in
considering whether to reject or approve a tender offer or proposed merger or
similar transaction.
Finally, the Bylaws provide that nominations of candidates for election as
directors of the Company, other than those made by management of the Company,
must be made in writing and delivered or mailed to the Secretary of the Company
not less than 45 days prior to any shareholders' meeting called for the election
of directors. The notification must contain certain information to the extent
known to the nominating shareholder. Commerce's Board of Directors believes that
this provision (which is similar to the provision presently contained in the
Bylaws of Commerce) avoids surprise nominations and ensures that there is
adequate time for the Company to be informed of the backgrounds and
qualifications of candidates for election as directors. However, it could be
viewed as "anti-takeover" in nature since it may make it more difficult for
shareholders to nominate candidates and may give an advantage to incumbent
management's nominees.
The overall effect of the above described measures, together with banking
laws and regulations applicable to the acquisition of bank holding companies,
may be to render more difficult the accomplishment of mergers, takeovers and
other changes in control of the Company. To the extent that these measures have
this effect, removal of the Company's incumbent Board of Directors and
management may be rendered more difficult. These measures may have an adverse
impact on the stockholders of the Company to participate in a tender or exchange
offer for the Company's Common Stock and may have an effect on the market value
of the Common Stock.
The Company obtains the cash necessary to pay dividends by receiving
dividends paid by Commerce and has no other presently available source of funds
for the payment of dividends. Banking regulations limit the amount of dividends
that may be paid by the banking subsidiaries without prior approval of
regulatory agencies supervising the banks.
The Company's annual meeting of shareholders for the election of directors
and the transaction of other business which may be brought properly before the
meeting is typically held on the third Friday in May.
INDEMNIFICATION
The Articles of Incorporation provide that the Company shall, to the
fullest extent permitted by applicable law, indemnify persons for liability
which may arise with respect to such person in the performance of duties to the
Company. The Bylaws of the Company specifically permit indemnification of
directors, officers and employees of the Company, both with respect to actions
brought by third parties and with respect to derivative actions brought on
behalf of the Company itself. Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors, officers
or persons controlling the Company pursuant to the foregoing provisions, the
Company has been informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is therefore unenforceable.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following reports, which were filed by Commerce with the Office of the
Comptroller of the Currency pursuant to the Securities Exchange Act of 1934, are
incorporated in this Prospectus by reference:
(a) Commerce's Annual Report on Form 10-KSB for the fiscal year ended December
31, 1998 (which was incorporated by reference in the Company's S-4
Registration Statement filed May 14, 1999).
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act since December 31, 1998.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 prior to the
termination of this offering will be deemed incorporated by reference.
The Company will forward without charge to each person to whom this Prospectus
is delivered, on written or oral request, a copy of the documents incorporated
herein by reference (other than exhibits to such documents which are not
specifically incorporated by reference in such document). Requests should be
directed to Ms. Deborah Miller, Commerce Bank/Harrisburg, N.A., P.O. Box 8599,
-------------------------------------------------------------------
Camp Hill, PA 17001-8599.
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LEGAL MATTERS
The legality of the shares of Common Stock offered hereby will be passed upon
for the Company by Mette, Evans & Woodside.
EXPERTS
The consolidated financial statements of Commerce at December 31, 1998, and
for the year then ended, incorporated by reference in this Prospectus, have been
audited by Beard & Company, Inc., independent accountants, as set forth in their
reports which accompany the financial statements. These financial statements
are incorporated by reference in this Prospectus in reliance upon the report
given upon the authority of Beard & Company, Inc. as experts in accounting and
auditing.
[Rest of Page Intentionally Left Blank]
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14
Other expenses of issuance and distribution.
The following is an estimate of all expenses expected to be incurred by the
Registrant in connection with the issuance and distribution of the securities
registered hereby:
SEC Registration Fees $ 3,215.00*
Transfer Agents Fees $ 1,000.00**
Costs of Printing $ 1,000.00**
Legal Fees $ 7,000.00**
Accounting Fees $ 1,000.00**
-----------
TOTAL $ 13,215.00
* - Actual
**- Estimated
The Company has not paid a premium on any policy obtained in connection with the
offering and sale of the securities registered herein which insures or
indemnifies directors or officers against any liabilities they may incur in
connection with the registration, offering or sale of such securities. However,
the Company does maintain directors and officers liability insurance in the
amount of $3,000,000 through June 30, 2000. This is a claims made policy
insuring the Company and its directors, officers and employees against losses
and claims arising from the "wrongful acts" (as defined in the policy) of the
directors, officers and employees. "Wrongful act" is generally defined to
include any actual or alleged error, misstatement, misleading statement, act or
omission or neglect or breach of duty by the directors, officers or employees
individually or collectively in the discharge of their duties to the Company.
However, the policy specifically excludes claims for an accounting of profits
made from purchases and/or sales by directors or officers of the Company's
securities within the meaning of Section 16(b) of the Securities Exchange Act of
1934.
ITEM 15
Indemnification of Directors and Officers.
The Registrant's Articles of Incorporation provide that the Registrant may
indemnify its directors and officers to the full extent permissible under the
Pennsylvania Business Corporation Law. Article 20 of the Bylaws of the Company
provide that directors, officers and employees of the Company are generally
entitled to be indemnified by the Company if they are made a party to litigation
or other legal proceedings or are threatened by legal action by reason of the
fact that they are a director, officer or employee of the Company or were
serving in a similar capacity for another corporation, such as a subsidiary of
the Company, at the request of the Company. Indemnification is not available
unless the director, officer or employee acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Company. If the proceedings are criminal in nature, indemnification is not
available unless the director, officer or employee had no reason to believe his
conduct was unlawful. Indemnification is available for actions brought by or in
the right of the Company or by or on behalf of parties not related to the
Company, and extends to expenses of litigation, including attorneys' fees and to
any judgment, fine or other amount reasonably incurred with respect to the
action. However, in an action or suit by or in the right of the Company,
indemnification is not available in respect of any claim or matter as to which
the person is adjudged to be liable for misconduct in the performance of his
duty to the Company. the Company's Bylaws also set forth a procedure for
payment of legal expenses in advance of final disposition of a case,
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subject to repayment by the director, officer or employee if the director,
officer or employee is ultimately determined not to be entitled to
indemnification. the Company's Bylaws provide that its directors, officers and
employees are presumed to be entitled to indemnification unless a court, a
majority of the directors not involved in the proceedings or holders of 33 1/3%
of the Company's outstanding Common Stock determine that indemnification is not
available.
The Pennsylvania Business Corporation Law of 1988, 15 Pa. C.S.A. (S)(S)1501 et.
seq. (the "BCL") became effective on October 1, 1988. Insofar as the BCL is
contrary to the Bylaws and Articles of Incorporation of the Company, the BCL
shall govern.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers or persons controlling of the
registrant pursuant to the foregoing provisions, the registrant has been
informed 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 registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
ITEM 16
Exhibits Filed Pursuant to Item 601 of Regulation S-K
(5) Opinion re Legality
(23) Consents of experts and counsel
(a) Consent of Mette, Evans & Woodside
(b) Consent of Beard & Company, Inc.
(24) Power of Attorney - Included in "Signatures"
ITEM 17
Undertakings Required by Item 512 of Regulation S-K
The undersigned Registrant hereby undertakes as follows:
(a) 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 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.
(ii) to include in periodic reports filed pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 the information
required by paragraphs (a)(1)(i) and (a)(1)(ii) of Item 512 of Regulation
S-K and that are incorporated by reference in this Registration Statement.
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(b) that, for the purpose of determining any liability under the Securities Act
of 1933, 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.
(c) 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.
The undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Registrant's
Annual Report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) 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.
The undersigned Registrant hereby undertakes that for purposes of determining
any liability under the Securities Act of 1933, the information omitted from the
form of prospectus filed as part of a registration statement as permitted by
Rule 430A and contained in the form of prospectus to be filed by the registrant
pursuant to Rule 424(b)(3)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be incorporated by reference into the registration statement at the
time it was declared effective.
For the purposes of determining liability under the Securities Act of 1933, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
-21-
<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.
--------------
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
-22-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit Exhibit Index Numbered Page
- --------- ------------- -------------
<S> <C> <C>
(5) Opinion re legality 24
(23)(a) Consent of Mette, Evans & Woodside 24
(Included in Exhibit (5))
(23)(b) Consent of Beard & Company, Inc. 25
</TABLE>
-23-
<PAGE>
EXHIBIT (5)
PENNSYLVANIA COMMERCE BANCORP, INC.
100 Senate Avenue
P. O. Box 8599
Camp Hill, PA 17011
Re: Registration Statement S-3, under the Securities Act of 1933 - Offering of
500,000 Shares Common Stock, Par Value $1.00 Per Share Pursuant to Dividend
Reinvestment and Stock Purchase Plan
Gentlemen:
This opinion is rendered in connection with the Registration statement filed on
Form S-3 with the Securities and Exchange Commission under the Securities Act of
1933 relating to 500,000 shares of Common Stock of PENNSYLVANIA COMMERCE
BANCORP, INC. (the "Company"), par value $1.00 per share. The Common Stock is
proposed to be offered by the Company to holders of Common Stock of the Company
pursuant to a Dividend Reinvestment and Stock Purchase Plan adopted by the
Company's Board of Directors.
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 aforesaid 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
aforementioned Registration Statement and to the reference to us in the
Registration Statement under the caption LEGAL MATTERS.
Very truly yours,
METTE, EVANS & WOODSIDE
By /s/ Bradley A. Walker
------------------------------------
Bradley A. Walker, Esquire
-24-
<PAGE>
EXHIBIT (23)(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement (Form S-3) 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. We also
consent to the reference to our firm under the caption "Experts" in the
prospectus.
/s/ BEARD & COMPANY, INC.
Harrisburg, Pennsylvania
September 15, 1999
-25-
