<PAGE>
As filed with the Securities and Exchange Commission on October 11, 1996
Registration No. 333-10771
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
Amendment No. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
COMMERCE BANCORP, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
New Jersey 6712 22-2433468
- -------------------------------------- --------------------------------------- ---------------------------------------
<S> <C> <C>
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
Commerce Atrium
1701 Route 70 East
Cherry Hill, New Jersey 08034-5400
(609) 751-9000
(Address, including zip code, and
telephone number, including area code, of
registrant's principal executive offices)
C. Edward Jordan, Jr., Executive Vice President
Commerce Atrium
1701 Route 70 East
Cherry Hill, New Jersey 08034-5400
(609) 751-9000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Lawrence R. Wiseman, Esquire
Blank Rome Comisky & McCauley
1200 Four Penn Center Plaza
Philadelphia, PA 19103
--------------------
Approximate date of commencement of proposed sale to the public: As
soon as practicable after the Registration Statement becomes effective.
If the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box: / /
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, please check the following box. |X|
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
The shares of common stock registered hereby may be offered for resale
by persons who receive such shares from the registrant in acquisitions or upon
issuance of warrants, options, convertible debentures and other similar
securities issued by the registrant in acquisitions.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers
Section 14A:3-5 of the New Jersey Business Corporation Act provides, in
substance, that New Jersey corporations shall have the power, under specified
circumstances, to indemnify their directors, officers, employees and agents in
connection with actions, suits or proceedings brought against them or in the
right of the corporation, by reason of the fact that they were or are such
directors, officers, employees or agents, against expenses incurred in any such
action, suit or proceeding.
Article VI of the Company's By-laws provides for indemnification to the
fullest extent permitted by Section 14A:3-5. Reference is made to the By-laws of
the Company filed as Exhibit 3.3 hereto.
Item 21. Exhibits
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------------------------------------------------------------------
<S> <C>
3.1 Restated Certificate of Incorporation of the Company, as amended (2)
3.2 Certificate of Amendment to the Restated Certificate of Incorporation
of the Company, setting forth the preferences, limitations and relative
rights of the Company's Series C ESOP Cumulative Convertible
Preferred Stock. (2)
3.3 By-laws of the Company, as amended.
4.1 Form of Trust Indenture, dated July 15, 1993, between the Company
and United Jersey Bank, with respect to the Company's $23,000,000
8 3/8% Subordinated Notes due July 15, 2003. (2)
5.1 Opinion of Blank Rome Comisky & McCauley.
23.1(1) Consent of Ernst & Young LLP.
23.2 Consent of Blank Rome Comisky & McCauley (to be included in
Opinion to be filed as Exhibit 5.1).
24.1(1) Powers of Attorney of certain signatories (included on signature
pages).
</TABLE>
- ------------------------
(1) Previously filed.
(2) Incorporated by reference from the Company's Registration Statement
on Form S-2 and Amendments Nos. 1 and 2 thereto (Registration
No. 33-62702).
II-1
<PAGE>
Item 22. Undertakings
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, 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
Securities 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 or 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 Securities Act of 1933, as amended,
and will be governed by the final adjudication of such issue.
The undersigned registrant hereby further undertakes that:
(1) To file, during any period in which any offers or sales
are being made, a post-effective amendment to the registration
statement:
(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
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any other material change to such information
in the registration statement.
(2) That for the purpose of determining any liability under
the Act each such post-effective amendment may be deemed to be a new
registration statement relating to the securities being offered therein
and the offering of such securities at the time may be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities which are being registered which remain
unsold at the termination of the offering.
II-2
<PAGE>
(4) 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 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(5) To deliver or cause to be delivered with the Prospectus,
to each person to whom the Prospectus is sent or given, the latest
annual report to security holders that is incorporated by reference in
the Prospectus and furnished pursuant to and meeting the requirements
of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934;
and where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the Prospectus, to
deliver, or cause to be delivered to each person to whom the Prospectus
is sent or given, the latest quarterly report that is specifically
incorporated by reference in the Prospectus to provide such interim
financial information.
(6) As follows: that prior to any public reoffering of the
securities registered hereunder through use of a prospectus which is a
part of this registration statement, by any person or party who is
deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the
information called for by the applicable registration form with respect
to reoffering by persons who may be deemed underwriters, in addition to
the information called for by the other items of the applicable form.
(7) That every prospectus (i) that is filed pursuant to
paragraph (1) immediately preceding or (ii) that purports to meet the
requirements of Section 19(a)(3) of the Act and is used in connection
with an offering of securities subject to Rule 415, will be filed as
part of an amendment to the registration statement and will not be used
until such amendment is effective, and that, for purposes 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.
(8) To respond to requests for information that is
incorporated by reference into the Prospectus pursuant to Items 4,
10(b), 11, or 13 of this Form, within one (1) business day of receipt
of such request, and to send the incorporated documents by first class
mail or other equally prompt means. This includes information contained
in documents filed subsequent to the effective date of the registration
statement through the date of responding to the request.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant has duly caused this Registration Statement on Form S-4 to be
signed on its behalf by the undersigned, thereunto duly authorized, in Cherry
Hill, New Jersey, on this 10th day of October, 1996.
COMMERCE BANCORP, INC.
By: /s/ Vernon W. Hill, II
-----------------------------------
VERNON W. HILL, II
Chairman of the Board and President
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 indicated, on October 10, 1996.
<TABLE>
<CAPTION>
SIGNATURE Capacity Date
--------- ---------- ----
<S> <C> <C>
/s/ Vernon W. Hill, II Chairman of the Board, October 10, 1996
- ----------------------------------------- President and Director
VERNON W. HILL, II (Principal Executive Officer)
/s/ C. Edward Jordan, Jr. Executive Vice President and October 10, 1996
- ----------------------------------------- Director (Principal Financial
C. EDWARD JORDAN, JR. and Accounting Officer)
* Secretary and Director October 10, 1996
- -----------------------------------------
ROBERT C. BECK
* Director October 10, 1996
- -----------------------------------------
DAVID BAIRD, IV
* Director October 10, 1996
- -----------------------------------------
JACK R BERSHAD
* Director October 10, 1996
- -----------------------------------------
MORTON N. KERR
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE Capacity Date
--------- ---------- ----
<S> <C> <C>
* Director October 10, 1996
- -----------------------------------------
STEVEN M. LEWIS
* Director October 10, 1996
- -----------------------------------------
DANIEL J. RAGONE
* Director October 10, 1996
- -----------------------------------------
JOSEPH T. TARQUINI, JR.
* By: /s/ C. Edward Jordan, Jr.
- -----------------------------------------
C. EDWARD JORDAN, JR.
Attorney-in-fact
</TABLE>
II-5
<PAGE>
EXHIBIT 3.3
COMMERCE BANCORP, INC.
BYLAWS
ARTICLE I. NAME AND SEAL.
Section 101. Name. The name of the Corporation is COMMERCE BANCORP, INC.
Section 102. State of Incorporation. The Corporation has been incorporated
under the laws of the State of New Jersey.
Section 103. Seal. The corporate seal of the Corporation shall have
inscribed thereon the name of the Corporation, the year of its organization, the
words "Corporate Seal", and the name of the State of Incorporation. The seal may
be used by any person authorized by the Board of Directors of the Corporation or
by these Bylaws by causing the seal or a facsimile thereof to be impressed or
affixed, or in any manner reproduced.
ARTICLE II. REGISTERED AND PRINCIPAL OFFICES.
Section 201. Registered Office. The registered office of the Corporation in
the State of Incorporation shall be at Commerce Plaza, 336 Route 70, Marlton,
New Jersey 08053.
Section 202. Offices. The principal office of the Corporation and any other
offices of the Corporation shall be located at such places, within and without
the State of Incorporation, as the Board of Directors may from time to time
determine or as the business of the Corporation may require, and as may be
permitted by law.
ARTICLE III. MEETINGS OF SHAREHOLDERS.
Section 301. Place of Meetings. All meetings of the shareholders shall be
held at such place or places, within or without the State of Incorporation, as
shall be determined by the Board of Directors from time to time.
Section 302. Annual Meetings. The regular annual meeting of the
shareholders shall be held on the second Tuesday of April of each year at which
time they shall elect Directors and transact such other business as may properly
be brought before the meeting. Any business which is a proper subject for
shareholder action may be transacted at the annual meeting, irrespective of
whether the notice of said meeting contains any reference thereto, except as
otherwise provided by applicable statute or regulation.
Section 303. Special Meetings. Special meetings of the shareholders may be
called at any time by the President, or the Board of Directors or by the
shareholders entitled to cast at least one-third of the votes which all
shareholders are entitled to cast at the particular meeting. At any time, upon
such written request for a special meeting, it shall be the duty of the
Secretary to fix a date for the meeting, to be held not more than sixty (60)
days after receipt of the request, and to give due notice thereof. If the
Secretary shall neglect or refuse to fix the date and give notice, the person or
persons making the request may do so.
Section 304. Notice of Meetings. Written notice of every annual and special
meeting of shareholders, stating the time, place and purpose thereof, shall be
given as herein provided (by, or at the direction of, the person authorized to
call the meeting) to each shareholder of record entitled to vote at the meeting,
at least ten (10) days prior to the day named for the meeting, unless a greater
period of notice is required by statute in a particular case. When a meeting is
adjourned, it shall not be necessary to give any notice of the adjourned meeting
or of the business to be transacted at any adjourned meeting, other than by
announcement at the meeting at which such adjournment is taken.
<PAGE>
Section 305. Quorum. A majority of the outstanding shares, represented in
person or by proxy, at a shareholders' meeting duly called shall constitute a
quorum for the transaction of business except as otherwise provided by law or by
resolution of the Board of Directors prior to such meeting. If however, such
quorum shall not be present, those present thereat may adjourn the meeting to
such time and place as they may determine, but in the case of any meeting called
for the election of Directors, those who attend the second of such adjourned
meetings, although less than a quorum, shall nevertheless constitute a quorum
for the purpose of electing Directors.
Section 306. Voting. Each shareholder shall be entitled to one (1) vote, in
person or by proxy, for each full share having voting power standing registered
in his name on the tenth (10th) day preceding the meeting of shareholders
exclusive of the day of such meeting, or on such other record date (not more
than fifty (50) days preceding the date of such meeting) as the Board of
Directors shall fix prior to such record date.
Section 307. Vote by Ballot. Upon the demand of any shareholder made before
the voting begins, the vote for Directors and the vote upon any other question
or matter before a meeting, shall be by ballot.
Section 308. Proxy Voting. At each meeting of the shareholders every
shareholder having the right to vote shall be entitled to vote in person or by
proxy appointed by an instrument in writing subscribed by such shareholder and
delivered to the Secretary at the meeting. No unrevoked proxy shall be valid
after eleven (11) months from the date of its execution, unless a longer time is
expressly provided therein, but in no event more than three years.
Section 309. Unpaid Shares. No share upon which any installment is due the
corporation and unpaid shall be voted at any meeting.
Section 310. Voting List. The officer or agent having charge of the
transfer books shall make and certify a complete list of the shareholders
entitled to vote at the meeting of shareholders, arranged in alphabetical order,
with the address of and the number of shares held by each, which list shall be
produced and kept open at the time and place of the meeting, and shall be
subject to the inspection of any shareholder during the whole time of the
meeting. The original share ledger or transfer book, or a duplicate thereof
(kept at the registered office of the Corporation) shall be prima facie evidence
as to who are the shareholders entitled to examine such list or share ledger or
transfer book, or to vote in person or by proxy, at any meeting of shareholders.
Section 311. Informal Action by Unanimous Consent. Unless the Board of
Directors shall otherwise expressly direct, any action which may be taken at a
meeting of the shareholders may be taken without a meeting and without notice or
a waiver of notice, if a consent in writing, setting forth the action so taken,
shall be signed by all of the shareholders who would be entitled to vote at a
meeting for such purpose and shall be filed with the Secretary of the
Corporation.
Section 312. Informal Action by Less Than Unanimous Consent. Unless the
Board of Directors shall otherwise expressly direct, any action which may be
taken at a meeting of the shareholders or of a class of shareholders, other than
the annual election of directors, may be taken without a meeting, if a consent
or consents in writing to such action, setting forth the action so taken, shall
be (1) signed by shareholders entitled to cast such a percentage of the number
of votes which all such shareholders are entitled to cast thereon as is required
by law for the taking of action at a meeting of the shareholders or of a class
of shareholders and (2) filed with the Secretary of the Corporation. In no case,
however, shall such percentage be less than the larger of (1) two-thirds of the
total number of votes which all shareholders of the Corporation or of a class of
shareholders are entitled by the Articles to cast upon such action, or (2) the
minimum percentage of the vote required by law, if any, for the proposed
corporate action. Such action shall not become effective until after at least
ten days' written notice of such action shall have been given to each
shareholder of record entitled to vote thereon. This section shall not be
applicable to any action with respect to any plan of merger or plan of
consolidation to which Section 14A:10-3 of the New Jersey Business Corporation
act is applicable.
<PAGE>
ARTICLE IV. DIRECTORS AND BOARD MEETINGS.
Section 401. Management by Board of Directors. The business, property and
affairs of the Corporation shall be managed by its Board of Directors. The Board
of Directors may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by statute or by the Articles of Incorporation
or by these Bylaws directed or required to be exercised or done by the
shareholders.
Section 402. Nomination for Directors. Written nominations for directors to
be elected at an annual meeting of shareholders must be submitted to the
Secretary of the Corporation not later than the close of business on the fifth
business day immediately preceding the date of the meeting. All late nominations
shall be rejected.
Section 403. Number of Directors. The Board of Directors shall consist of
not less than five (5) nor more than twenty-five (25) Directors. Within these
limits the number of Directors shall be as established by resolution of a
majority of the full Board of Directors, provided, however, that no reduction in
the number of Directors shall in any way affect the terms of Directors then in
office.
Section 404. Qualifications of Directors. The Directors need not be
residents of the State in which this Corporation is incorporated or shareholders
in the Corporation.
Section 405. Election of Directors. The Directors shall be elected by the
shareholders at the annual meeting of shareholders of the Corporation. Each
Director shall be elected for the term of one year, and until his successor
shall be elected and shall qualify.
Section 406. Vacancies. If the office of any Director shall become vacant
by reason of death, resignation, disqualification of other cause, such vacancy
or vacancies, including vacancies resulting from an increase in the number of
Directors, shall be filled by a majority of the remaining members of the Board,
though less than a quorum. Each person so elected by the Board of Directors to
fill a vacancy shall be a Director until his or her successor is elected by the
shareholders who may make such election at the next annual meeting of
shareholders, or at any earlier special meeting of the shareholders duly called
for that purpose, and until such successor shall qualify.
Section 407. Removal of Directors. The entire Board of Directors, or any
individual director may be removed from office without assigning any cause by
the vote of shareholders entitled to cast at least a majority of the votes which
all shareholders would be entitled to cast at any annual election of such
directors. In case the Board or any one or more directors be so removed, new
directors may be elected at the same meeting. The Board of Directors, by
unanimous consent, may remove or suspend a director, pending a final
determination, for any proper cause.
Section 408. Resignations. Any Director may resign at any time. Such
resignation shall be in writing, but the acceptance thereof shall not be
necessary to make it effective.
Section 409. Compensation of Directors. The compensation, if any, of
Directors shall be as determined by the Board of Directors. In addition to
compensation, if any, for services as a Director, a Director may serve the
Corporation in other capacities and receive separate compensation therefor.
Section 410. Place of Board Meetings. Regular meetings of the Board of
Directors shall be at 336 Route 70, Marlton, New Jersey 08053.
Section 411. Regular Meetings. Regular meetings of the Board of Directors
shall be held in each year at such times as the Board of Directors may provide
from time to time, by resolution with appropriate notice to the members of the
Board of Directors.
Section 412. Special Meetings. Unless the Board of Directors shall
otherwise direct, special meetings of the Board of Directors may be called by or
at the request of the Chairman of the Board or the President of the Corporation
on appropriate verbal or written notice to each Director, which notice shall, in
any event, be given at least twenty-four (24) hours before the time for which
the meeting is scheduled. Special meetings shall be called by the President or
Secretary in like manner and on like notice on the written request of a majority
of the Board of Directors. The person or persons authorized to call special
meetings of the Board of Directors may fix any place, either within or outside
the State of Incorporation, as the place for holding any special meeting of the
Board of Directors called by them. Any business may be transacted at a special
meeting.
<PAGE>
Section 413. Notice of Meetings. Unless otherwise required by law or these
Bylaws, neither the business to be transacted at, nor the purpose of, any
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting. Notwithstanding anything herein to the contrary, no
action of the Board of Directors or corporate action taken pursuant thereto
shall be deemed unauthorized solely because the provisions of this Article
concerning notice of Directors' meetings have not been complied with, provided
that said Board action is taken in a meeting at which a quorum of Directors is
present, and such action is approved or subsequently ratified by a majority of
Directors then in office.
Section 414. Quorum. A majority of the Directors in office shall be
necessary to constitute a quorum for the transaction of business, except when
otherwise provided by law; but a lesser number may adjourn any meeting, from
time to time, and the meeting may be held, as adjourned, without further notice.
The acts of a majority of the Directors present at a meeting at which a quorum
is present shall be the acts of the Board of Directors.
Section 415. Informal Action by Board of Directors Without Meeting. Any
action which may be taken at a meeting of the Board of Directors may be taken
without a meeting and without notice or a waiver of notice, if a consent in
writing, setting forth the action so taken or the action to be taken by the
Corporation, shall be signed by all the Directors and shall be filed with the
Secretary of the Corporation.
Section 416. Presence at Meetings. Any one or more Directors may
participate in a meeting of the Board or a committee of the Board by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and any person so
participating shall be deemed present at the meeting for all purposes.
Section 417. Reports and Records. The reports of officers and committees
and the records of the proceedings of all committees shall be filed with the
Secretary of the Board and presented to the Board of Directors at its next
regular meeting. The Board of Directors shall keep complete records of its
proceedings in a minute book keep for that purpose. When a director shall
request it, the vote of each director upon a particular question shall be
recorded in the minutes.
Section 418. Committees. The following committees shall be established by
the Board of Directors in addition to any other committee the Board of Directors
may in its discretion establish.
1. Executive Committee
2. Audit Committee
Section 419. Executive Committee. The Executive Committee shall consist of
at least three members of which the majority must be directors. A majority of
the members of the Executive Committee shall constitute a quorum. Meetings of
the Committee may be called at any time by the Chairman or Secretary of the
Committee, and shall be called whenever two or more members of the Committee so
request in writing. The Executive Committee shall have and exercise the
authority of the Board of Directors in the management of the business of the
Corporation between the dates of regular meetings of the Board.
Section 420. Audit Committee. The Audit Committee shall consist of at least
three directors. Meetings of the Committee may be called at any time by the
Chairman of the Committee, and shall be called whenever two or more members of
the Committee so request in writing. A majority of the members of the Committee
shall constitute a quorum. The Committee shall supervise the audit of the books
and affairs of the Corporation.
Section 421. Appointment of Committee Members. At the first meeting of the
Board of Directors after the annual meeting of shareholders, the Board of
Directors shall appoint, the members of the Executive Committee, Audit Committee
and any other committees, to serve until the next annual meeting of
shareholders.
<PAGE>
Section 422. Organization and Proceedings. Each committee shall effect its
own organization by the appointment of a Chairman and such other officers as it
may deem necessary. A record of the proceedings of all committees shall be kept
and filed and presented as provided in Section 417 of these Bylaws.
ARTICLE V. OFFICERS, AGENTS AND EMPLOYEES.
Section 501. Executive Officers. The executive officers of the Corporation
shall be elected annually by the Board of Directors and shall be a Chairman of
the Board of Directors, a President, a Secretary and a Treasurer. One or more
Vice Presidents, and such other officers and assistant officers also may be
elected or appointed as the Board of Directors may authorize from time to time.
Any two offices, except those of President and Vice President or President and
Secretary, may be filled by the same person. In addition to the powers and
duties prescribed by these Bylaws, the officers and assistant officers shall
have such authority and shall perform such duties as from time to time shall be
prescribed by the Board. The officers and assistant officers of the Corporation
shall hold office until their successors are chosen and have qualified, unless
they are sooner removed from office as provided by these Bylaws. The Board of
Directors may add to the title of any officer or assistant officer a word or
words descriptive of his powers or the general character of his duties. If the
office of any officer or assistant officer becomes vacant for any reason, the
vacancy shall be filled by the Board of Directors.
Section 502. Agents or Employees. The Board of Directors may by resolution
designate the officer or officers who shall have authority to appoint such
agents or employees as the needs of the Corporation may require. In the absence
of such designation this function may be performed by the President and may be
delegated by him to others in whole or in part.
Section 503. Salaries. The salaries of all officers of the Corporation
shall be fixed by the Board of Directors or by authority conferred by resolution
of the Board. The Board also may fix the salaries and other compensation of
assistant officers, agents and employees of the corporation, but in the absence
of such action this function shall be performed by the President or by others
under his supervision.
Section 504. Removal of Officers, Agents or Employees. Any officer,
assistant officer, agent or employee of the Corporation may be removed or his
authority revoked by resolution of the Board of Directors with or without cause,
but such removal or revocation shall be without prejudice to the rights, if any,
of the person so removed, to received compensation or other benefits in
accordance with the terms of existing contracts. Any agent or employee of the
Corporation likewise may be removed by the President or, subject to his
supervision, by the person having authority with respect to the appointment of
such agent or employee.
Section 505. Chairman of the Board. The Chairman of the Board shall
prescribe the duties of the other officers and employees and see to the proper
performance thereof. He or she shall preside at all meetings of the Board. The
Chairman of the Board shall be responsible for having all orders and resolutions
of the Board of Directors carried into effect. As authorized by the Board of
Directors, he or she shall execute on behalf of the Corporation and may affix or
cause to be affixed a seal to all instruments requiring such execution, except
to the extent that signing and execution thereof shall have been delegated to
some other officer or agent of the Corporation by the Board of Directors or by
the Chairman of the Board. In the absence of the Chairman of the Board, the
President shall preside at meetings of the Board. In general, the Chairman of
the Board shall perform all the acts and exercise all the authorities and duties
incident to his office or as prescribed by the Board of Directors.
Section 506. President. The President shall perform such duties as are
incident to his office or prescribed by the Board of Directors or by the
Chairman of the Board. As authorized by the Board of Directors, he or she shall
execute on behalf of the Corporation and may affix or cause to be affixed a seal
to all instruments requiring such execution, except to the extent that signing
and execution thereof shall have been expressly delegated to some other officer
or agent of the Corporation. The President may be a member of the Board of
Directors.
<PAGE>
Section 507. Vice Presidents. The Vice Presidents shall perform such duties
and do such acts as may be prescribed by the Board of Directors, the Chairman of
the Board, or the President. Subject to the provisions of this Section, the Vice
Presidents, in order of their seniority, shall perform the duties and have
the powers of the President in the event of his absence or disability or his
refusal to act.
Section 508. Secretary. The Secretary shall act under the direction of the
President. Unless a designation to the contrary is made at a meeting, the
Secretary shall attend all meetings of the Board of Directors and all meetings
of the shareholders and record all of the proceedings of such meetings in a book
to be kept for that purpose, and shall perform like duties for the standing
committees when required by these Bylaws or otherwise. The Secretary shall give,
or cause to be given, notice of all meetings of the shareholders and of the
Board of Directors, and shall perform such other duties as may be prescribed by
the President or the Board of Directors. The Secretary shall keep in safe
custody the seal of the corporation, and, when authorized by the Board of
Directors, the Chairman of the Board or the President, cause it to be affixed to
any instruments requiring it.
Section 509. Treasurer; Powers and Duties. The Treasurer shall be the chief
financial officer and shall cause full and accurate accounts of receipts and
disbursements to be kept in books belonging to the Corporation. He shall see to
the deposit of all moneys and other valuable effects in the name and to the
credit of the Corporation in such depository or depositaries as may be
designated by the Board of Directors, subject to disbursement or disposition
upon orders signed in such manner as the Board of Directors shall prescribe. He
shall render to the President and to the Directors, at regular meetings of the
Board or whenever the President or the Board may require it, an account of all
his transactions as Treasurer and of the results of operations and financial
condition of the corporation. If required by the Board, the Treasurer shall give
the Corporation a bond in such sum, and with such surety or sureties as may be
satisfactory to the Board for the faithful discharge of the duties of his
office, and for the restoration to the corporation, in case of his death,
resignation, retirement or removal from office, of all books, records, money,
and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 510. Assistant Officers. Unless otherwise provided by the Board of
Directors, each assistant officer shall perform such duties as shall be
prescribed by the Board of Directors, the Chairman of the Board, the President
or the officer to whom he is an assistant. In the event of the absence or
disability of an officer or his refusal to act, his assistant officers shall, in
the order of their seniority, have the powers and authority of such officer.
Section 511. Delegation of Officers' Duties. Any officer may delegate
duties to his assistant (if any) appointed by the Board; and in case of the
absence of any officer or assistant officer of the corporation, or for any other
reason that the Board of Directors may deem sufficient, the Board may delegate
or authorize the delegation of his powers or duties, for the time being, to any
person.
<PAGE>
ARTICLE VI. INDEMNIFICATION OF DIRECTORS, Article VI was repealed in its
OFFICERS AND OTHER PERSONS. entirety on May 5, 1987 and replaced
with a new Article VI as set forth
hereinafter.
Section 601. The Corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed in, or not opposed to, the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in, or not opposed to, the best
interest of the Corporation, and with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 602. The Corporation may indemnify any person who was or is a
party, or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in, or not opposed to,
the best interests of the Corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable for negligence or misconduct in the performance
of his duty to the Corporation unless and only to the extent that the court of
the county in which the registered office of the Corporation is located or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to be indemnified for
such expenses which the court shall deem proper.
Section 603. The indemnification provided for in the preceding sections
shall be paid by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or other
agent is proper under the circumstances because he has met the applicable
standard of conduct set forth in each section, this determination to be made by
the Board of Directors by majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or in any other manner
authorized by law which the Board of Directors shall direct; provided, however,
that to the extent that a director, officer, employee or agent has been
successful on the merits or otherwise in defense of any such suit, action or
proceeding, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
Section 604. Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized in the manner
provided in Section 603 of this Article upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount unless
it shall be absolutely determined that he is entitled to be indemnified by the
Corporation as authorized in this Article.
Section 605. The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which those making indemnification may
be entitled under any bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
<PAGE>
Section 606. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of this Section.
ARTICLE VII. FINANCIAL REPORTS TO SHAREHOLDERS.
Section 701. No Annual Report Required. Unless required by law, it is
hereby expressly provided that the Directors of this Corporation shall not be
required (pursuant to any statutory provision or requirement of law applicable
in the absence of this express provision), to send or cause to be sent to the
shareholders of this Corporation any annual financial report.
Section 702. Option Financial Reports. Nothing in these Bylaws shall be
construed to prohibit the Board of Directors, the President, or other duly
authorized officers from sending financial or other reports to the shareholders
on an annual basis or from time to time, in such form as they may deem necessary
or advisable in their discretion. It is hereby expressly provided that such
reports need not be prepared by an independent public or certified accountant.
ARTICLE VIII. RELATION OF DIRECTORS AND OFFICERS TO CORPORATION.
Section 801. Fiduciary Relationship. Officers and Directors of the
Corporation shall stand in and have a fiduciary relation to the Corporation, and
shall discharge the duties of their respective positions in good faith and with
that diligence, care and skill which ordinarily prudent men and women would
exercise under similar circumstances.
ARTICLE XI. CORPORATION RECORDS.
Section 901. Proceedings of Shareholders and Directors. These shall be kept
at the registered office of the Corporation an original or duplicate record of
the proceedings of the shareholders and of the Directors, and the original or a
copy of its Bylaws, including all amendments or alterations thereof to date,
together with other necessary and appropriate corporate records.
Section 902. Shareholders Rights to Examine Corporate Records. Every
shareholder shall, upon written demand in accordance with Section 14A:5-28 of
the New Jersey Business Corporation Act, have a right to examine, in person or
by agent or attorney, during the usual business hours for any proper purpose
reasonably related to such person's interests as a shareholder, the share
register, books or records of account, and records of the proceedings of the
shareholders and Board of Directors, and make copies of extracts therefrom
provided, however, that the Board of Directors shall be entitled to exercise
such specific rights as the Corporation may have under the law to keep
confidential such records which contain business secrets, the disclosure of
which would be injurious to the best interests of the Corporation and its
shareholders. If any attorney or other agent shall be the person who seeks the
right to inspection, the demand shall be accompanied by a power of attorney or
such other writing which authorizes the attorney or other agent to so act on
behalf of the shareholder. The demand shall be directed to the Corporation at
its registered office in the State of New Jersey or at its principal place of
business.
ARTICLE X. SHARES OF CAPITAL STOCK.
Section 1001. Share Certificates. Every shareholder in the Corporation
shall be entitled to receive a certificate representing the shares owned by him.
Said share certificates shall be numbered and registered in the books of the
Corporation, as they are issued.
Section 1002. Contents of Share Certificates. Said share certificates shall
state: (1) the name of the State of Incorporation; (2) the name of the
registered holder of the shares represented thereby; (3) the number and class of
shares and the designation of the series, if any, which the certificate
represents; and (4) the par value of each share represented, or a statement that
the shares are without par value. If the Corporation is authorized to issue more
than one (1) class of stock, then upon the face or back of the certificate there
shall be set forth (or a statement shall appear that the Corporation will
furnish to any shareholder, upon request and without charge) a full summary
statement of the designations, preferences, limitations and relative rights of
the shares of each class authorized to be issued and, if the Corporation is
authorized to issue any preferred or special class in series, the variations in
the relative rights and preferences between the shares of each such series so
far as the same have been fixed and determined, and the authority of the Board
of Directors to fix and determine the relative rights and preferences of
subsequent series.
<PAGE>
Section 1003. Signatures on Share Certificates. Each such certificate shall
be signed by the President or Vice President, and by the Secretary or Treasurer
(or Assistant Secretary or Assistant Treasurer), or by such other officers as
may be designated by the Board of Directors, and sealed with the corporate seal
of the Corporation. If a certificate is signed (1) by a transfer agent or an
assistant transfer agent or (2) by a transfer clerk acting on behalf of the
Corporation and a registrar, the signature of any such authorized officer may be
facsimile. In case any officer who has signed, or whose facsimile signature has
been used on, any certificate or certificates shall cease to be such officer of
the Corporation, before such certificate is issued, it may be issued by the
Corporation with the same effect as if the officer had not ceased to be such at
the date of its issue.
Section 1004. Lost or Destroyed Certificates. Any person claiming a share
certificate to be lost or destroyed shall make an affidavit or affirmation of
that fact and, in the manner and to the extent required by the Board of
Directors, shall advertise the same, give the Corporation a bond of indemnity
with sufficient surety to protect the Corporation or any person injured by the
issue of a new certificate from any liability or expense which it or they may
incur by reason of the fact that the original certificate remains outstanding,
whereupon a new certificate may be issued of the same tenor and for the same
number of shares as the one alleged to be lost or destroyed, but always to the
approval of the Board of Directors.
Section 1005. Transfer of Shares. All transfers of shares of the
Corporation shall be made upon the books of the Corporation upon surrender to
the Corporation or the transfer agent of the Corporation of a certificate or
certificates for shares, duly endorsed by the person named in the certificate or
by attorney, lawfully constituted in writing, or accompanied by proper evidence
of succession, assignment or authority to transfer. Thereupon, it shall be the
duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificates and record the transaction upon its books.
Section 1006. Agreements Restricting Transfer of Shares. The Board of
Directors may authorize the Corporation to become party to agreements with
shareholders and others relating to transfer, repurchase, and issuance, of
shares of stock of the Corporation; provided, however, that such agreement must
be filed with the Corporation and all share certificates affected thereby shall
have clearly imprinted thereon a legend containing such agreement or referring
thereto.
Section 1007. Registered Shareholders. The Corporation may treat the person
registered on its books as the holder of any shares as the absolute owner
thereof, and as the one entitled to vote such shares and receive dividends
thereon.
Section 1008. Determination of Shareholders of Record. The Board of
Directors may fix a time not more than fifty (50) days prior to the date of any
meeting of shareholders, or the date fixed for the payment of any dividend or
distribution, or the date for the allotment of rights, or the date when any
change or conversion or exchange of shares will be made or go into effect, as a
record date for the determination of the shareholders entitled to notice of, or
to vote at, any such meeting, or entitled to receive payment of any such
dividend or distribution, or to receive any such allotment of rights, or to
exercise the rights in respect to any such change, conversion, or exchange of
shares. In such case only such shareholders as shall be shareholders of record
on the date so fixed shall be entitled to notice of, or to vote at, such
meeting, or to receive payment of such dividends, or to receive such allotment
or rights, or to exercise such rights, as the case may be, notwithstanding any
transfer of any shares on the books of the Corporation after any record date
fixed as aforesaid. The Board of Directors may close the books of the
Corporation against transfers of shares during the whole or any part of such
period, and in such case written or printed notice thereof shall be mailed at
least ten (10) days before the closing thereof to each shareholder of record at
the address appearing on the records of the Corporation or supplied by him to
the Corporation for the purpose of notice. While the stock transfer books of the
Corporation are closed, no transfer of shares shall be made thereon. Unless a
record date is fixed for the determination of shareholders entitled to receive
notice of, or vote at, a shareholders' meeting, transferees of shares which are
transferred on the books of the Corporation within ten (10) days next preceding
the date of such meeting shall not be entitled to notice of or vote at such
meeting.
Section 1009. Voting Trusts. Unless the laws of the State of Incorporation
or the Articles of Incorporation of this Corporation shall otherwise provide,
two (2) or more shareholders of this Corporation may, by agreement in writing,
transfer their shares to any corporation or person for the purpose of vesting in
the transferee or transferees all voting or other rights pertaining to such
shares for a period not exceeding ten (10) years, and upon the terms and
conditions stated in the agreement.
Section 1010. Consideration For Capital Stock. The Board of Directors of
the Corporation shall issue from time to time, the authorized shares of capital
stock of the Corporation for cash, real property, tangible or intangible
personal property, including stock of another corporation or for such property
as in the discretion of the Board of Directors may seem for the best interests
of the Corporation consistent with the Business Corporation Act of New Jersey.
<PAGE>
ARTICLE XI. DIVIDENDS AND OTHER DISTRIBUTIONS TO SHAREHOLDERS.
Section 1101. Dividends. Subject to applicable law of the State of
Incorporation, and in accordance with the provisions thereof at the pertinent
applicable time, the Board of Directors of the Corporation may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in
cash or property other than its own shares, except when the Corporation is
insolvent, or when the payment thereof would render the Corporation insolvent,
or when the declaration or payment thereof would be contrary to any restriction
contained in the Articles of Incorporation, but
(1) Dividends may be declared and paid in cash or property only out of
unreserved and unrestricted earned surplus of the Corporation, except as
otherwise provided by statute; and
(2) No dividends shall be paid which would reduce the remaining net assets of
the Corporation below the aggregate preferential amount payable in the
event of voluntary liquidation to the holders of shares having preferential
rights to the assets of the Corporation in the event of liquidation.
<PAGE>
Section 1102. Distribution of Shares of the Corporation. The Board of
Directors of the Corporation may, from time to time, distribute pro rata to
holders of any class or classes of its issued shares, treasury shares and
authorized but unissued shares, but
(1) If distribution is made, in the Corporation's authorized but unissued
shares having a par value, there shall be transferred to stated
capital at the time of such distribution an amount of surplus at least
equal to the aggregate par value of the shares so issued;
(2) The amount per share so transferred to stated capital, or the fact
that there was no such transfer, shall be disclosed to the
shareholders receiving such distribution concurrently with the
distribution thereof; and
(3) No distribution of shares of any class shall be made to holders of
shares of any other class unless the articles so provide or such
distribution is authorized by the affirmative vote or written consent
of the holders of a majority of the outstanding shares of the class in
which the distribution is to be made.
In lieu of issuing fractional shares in any such distribution, the
Corporation may pay in cash the fair value thereof, as determined by the Board
of Directors, to shareholders entitled thereto.
Section 1001. Reserves. There may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Directors, from time
to time, in their absolute discretion determine as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for the purchase of additional property, or for
such other purpose as the Board of Directors shall think conducive to the
interests of the Corporation. The Board of Directors may abolish or modify any
such reserve.
Section 1104. Distributions in Partial Liquidation. The Board of Directors
of the Corporation may, from time to time, distribute to the shareholders in
partial liquidation, out of unrestricted capital surplus of the Corporation, a
portion of its assets in cash or property, subject to the following conditions:
(1) No such distribution shall be made at a time when the Corporation is
insolvent or when such distribution would render the Corporation
insolvent;
(2) No such distribution shall be made unless such distribution shall have
been authorized by the prior affirmative vote, obtained within one (1)
year of such distribution, of the holders of at least a majority of
the outstanding shares of each class, whether or not entitled to vote
thereon by the provisions of the articles;
(3) No such distribution shall be made to the holders of any class of
shares unless all cumulative dividends accrued on all classes of
shares entitled to preferential dividends, prior to dividends on the
shares to the holders of which such distribution is to be made, shall
have been fully paid;
(4) No such distribution shall be made to the holders of any class of
shares which would reduce the remaining net assets of the Corporation
below the aggregate preferential amount payable in event of voluntary
liquidation to the holders of shares having preferential rights to the
assets of the Corporation in the event of liquidation; and
(5) Each such distribution, when made, shall be identified as a
distribution in partial liquidation and the amount per share disclosed
to the shareholders receiving the same concurrently with the
distribution thereof.
ARTICLE XII. MISCELLANEOUS.
Section 1201. Fiscal Year. The fiscal year of the Corporation shall begin
on the 1st day of January in each year and end on the 31st day of December in
each year.
Section 1202. Signing Checks. All checks or demands for money and notes of
the Corporation shall be signed by such officer, officers, or other person or
persons as the Board of Directors may from time to time designate.
Section 1203. Designation of Presiding and Recording Officers. The Chairman
of the Board of Directors shall preside at any meeting of Directors or
shareholders, as the case may be, and shall have the right to designate any
person, whether or not an officer, director or shareholder to record the
procedings of, such meeting.
Section 1204. Written Notice of Meetings. Whenever written notice is
required to be given to any person pursuant to law, the Articles of
Incorporation or these Bylaws, it may be given to such person, either personally
or be sending a copy thereof through the mail, or by telegram, changes prepaid,
to his address appearing on the books of the Corporation, or to his business or
other address supplied by him to the Corporation for the purpose of notice. If
the notice is sent by mail or by telegraph, it shall be deemed to have been
given to the person entitled thereto when deposited in the United States mail or
with a telegraph office for transmission to such person. Such notice shall
specify the place, day and hour of the meeting and, in case of a special meeting
of the shareholders, the general nature of the business to be transacted.
Section 1205. Waiver of Notice. Whenever any written notice is required to
be given pursuant to law, by the Articles of Incorporation or these Bylaws, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Except in the case of a special meeting
of shareholders, neither the business to be transacted at, nor the purpose of,
the meeting need be specified in the waiver of notice of such meeting.
attendance of a person, either in person or by proxy, at any meeting, shall
constitute a waiver of notice of such meeting, except where a person attends a
meeting for the express purpose of objecting to the transaction of any business
because the meeting was not lawfully called or convened.
Section 1206. Text of Proposed Resolution in Written Notice. Whenever the
language or a proposed resolution is included in a written notice to
shareholders, the shareholders' meeting considering the resolution may adopt it,
with such clarifying or other amendments as do not enlarge its original purpose,
without further notice to shareholders not present in person or by proxy.
Section 1207. Interpretation of Bylaws. All words, terms and provision of
these Bylaws shall be defined by and in accordance with the New Jersey Business
Corporation Act as that Act and these Bylaws are interpreted by the
Corporation's counsel.
Section 1208. Absentee Participation in Meetings. One or more Directors may
participate in a meeting of the Board of Directors, or of a committee of the
Board, by means of a conference telephone or similar communications equipment,
by means of which all persons participating in the meeting an hear each other.
Section 1209. Severability. If any provision of these Bylaws becomes
illegal or unenforceable as such, such illegality or unenforceability shall not
affect any other provision of these Bylaws and such other provisions shall
continue in full force and effect.
ARTICLE XIII. AMENDMENTS.
Section 1301. Amendment by Shareholders. These Bylaws may be altered,
amended or repealed by a majority vote of all of the shares of stock of the
Corporation issued and outstanding and entitled to vote at any annual or special
meetings of the shareholders duly convened after appropriate notice to the
shareholders of such proposed alteration, amendment or repeal.
Section 1302. Recording Amendments and Alterations. The text of all
amendments and alterations to these Bylaws shall be attached to the Bylaws with
a notation of the date of each such amendment or alteration and a notation of
whether such amendment or alteration was adopted by the shareholders or the
Board of Directors.
Section 1303. Recording Amendments and Alterations. The text of all
amendments and alterations to these Bylaws shall be attached to the Bylaws with
a notation of the date of each such amendment or alteration and a notation of
whether such amendment or alteration was adopted by the shareholders or the
Board of Directors.
ARTICLE XIV. ADOPTION OF BYLAWS RECORD OR AMENDMENT.
Section 1401. These Bylaws have been adopted and filed with the undersigned
on the 21st day of December, 1982, and shall be effective as of this date.
/S/ ROBERT C. BECK
------------------------------
ROBERT C. BECK, Secretary
Section 1402. Amendments to Bylaws.
Section Amended Date Amended Adopted By
- --------------- ------------ ----------
Repeal of Sections 601 May 5, 1987 Shareholders
through 606, inclusive
Adoption of new Article VI, May 5, 1987 Shareholders
Sections 601 through 605,
inclusive, attached hereto
as Exhibit "A"
<PAGE>
Exhibit "A"
AMENDMENT AND RESTATEMENT
TO ARTICLE VI OF THE BYLAWS OF
COMMERCE BANCORP, INC.
ARTICLE VI. INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHER PERSONS.
Section 601. The Corporation shall, to the fullest extent nor or hereafter
permitted by the New Jersey Business Corporation Act, as amended from time to
time, indemnify any director or officer of the Corporation. The right to
indemnification conferred by this Section 601 shall include the right to be paid
by the Corporation for expenses incurred in defending any action, suit or
proceeding in advance of its final disposition, subject to the receipt by the
Corporation of such undertakings as might be required of an indemnitee by the
New Jersey Business Corporation Act.
Section 602. The Board of Directors by resolution adopted in each specific
instance may similarly indemnify any person other than a director or officer of
the Corporation for liabilities incurred by him in connection with services
rendered by him at the request of the Corporation or any of its subsidiaries.
Section 603. The provisions of this Article VI shall be applicable to all
actions, suits or proceedings commenced after its adoption, whether such arise
out of acts or omissions which occurred prior to or subsequent to such adoption
and shall continue as to a person who has ceased to be a director or officer or
to render services at the request of the Corporation and shall inure to the
benefit of the heirs, executors and administrators of such a person. The rights
of indemnification provided for herein shall not be deemed the exclusive rights
to which any director, officer, employee or agent of the Corporation may be
entitled under the certificate of incorporation, an agreement, vote of
stockholders, or otherwise.
Section 604. In any action by an indemnitee to enforce a right to
indemnification hereunder or by the Corporation to recover advance made
hereunder, the burden of proving that the indemnitee is not entitled to be
indemnified shall be on the Corporation. In such an action, neither the failure
of the Corporation (including its Board, independent legal counsel or
stockholders) to have made a determination that indemnification is proper, nor a
determination by the Corporation that indemnification is improper, shall create
a presumption that the indemnitee is not entitled to be indemnified or, in the
case of such an action brought by the indemnitee, be a defense thereto. If
successful in whole or in part in such an action, an indemnitee shall be
entitled to be paid also the expense (including reasonable attorney fees) of
prosecuting or defending same.
Section 605. Any repeal or modification of this Article VI by the directors
or stockholders of the Corporation shall not adversely affect any right or
protection of a director or officer of the Corporation existing at the time of
such repeal or modification.
<PAGE>
BLANK ROME COMISKY & McCAULEY
COUNSELORS AT LAW
<TABLE>
<CAPTION>
<S> <C> <C>
1620 POND ROAD, SUITE 200 1220 MARKET STREET, 8TH FLOOR
ALLENTOWN, PA 18104-2255 FOUR PENN CENTER PLAZA WILMINGTON, DE 19801-2535
610-395-1010 302-425-6400
PHILADELPHIA, PENNSYLVANIA 19103-2599
1156 15TH STREET, NW, SUITE 550
1400 N. PROVIDENCE RD., SUITE 301 215-569-5500 WASHINGTON, DC 20005-1704
MEDIA, PA 19063-2051 202-785-4100
610-891-7800 TWX 710-670-073-BLARCOM
1401 FORUM WAY
210 LAKE DRIVE EAST FAX 215-569-5555 WEST PALM BEACH, FL 33401-2353
CHERRY HILL, NJ 08002-1164 407-686-8100
609-779-3600
DIRECT DIAL NUMBER:
215-569-5549
</TABLE>
October 10, 1996
Commerce Bancorp, Inc.
Commerce Atrium
1701 Route 70 East
Cherry Hill, NJ 08034
Re: Commerce Bancorp, Inc.
Registration Statement on Form S-4
(Registration No. 333-10771)
-----------------------------------
Gentlemen:
We have acted as counsel to Commerce Bancorp, Inc. (the "Company") in
connection with the Registration Statement on Form S-4 (Registration No.
333-10771) filed by the Company pursuant to the Securities Act of 1933, as
amended (the "Registration Statement"), relating to the issuance and sale of up
to 5,000,000 shares of Common Stock, $1.5625 par value (the "Common Stock").
This opinion is furnished pursuant to the requirements of Items 601(b)(5) of
Regulation S-K.
In rendering this opinion, we have examined only the following
documents: (1) the Certificate of Incorporation of the Company, as amended, (the
"Certificate of Incorporation"); (2) the By-laws of the Company, as amended, (3)
resolutions adopted by the Board of Directors (the "Resolutions"); and (4) the
Registration Statement. We have not performed any independent investigation
other than the document examination described. We have assumed and relied on the
truth, completeness, authenticity and due authorization of all documents and
records examined and the genuineness of all signatures. This opinion is limited
to the laws of the State of New Jersey.
Based upon and subject to the assumptions, limitations and
qualifications contained herein, we are of the opinion that:
<PAGE>
When the Common Stock of the Company which is being registered is
issued and sold in the manner and for the consideration contemplated by the
Registration Statement, such Common Stock will be legally issued, fully paid and
non-assessable.
The opinions expressed herein are subject in all respects to the
following qualifications: (a) no opinion is rendered as to the availability of
equitable remedies including, but not limited to, specific performance and
injunctive relief; (b) the effect of bankruptcy, reorganization, insolvency,
fraudulent conveyance, moratorium and other similar laws or equitable principles
affecting creditors' rights or remedies; and (c) the effect of applicable laws
and court decisions which may now or hereafter limit or render unenforceable
certain rights and remedies.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus, which is part of the Registration Statement.
Very truly yours,
BLANK ROME COMISKY & McCAULEY
