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As filed with the Securities and Exchange Commission on November 3, 1998
Registration No. 333-65801
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Amendment No. 1
to
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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COMMERCE BANCORP, INC.
(Exact name of registrant as specified in its charter)
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New Jersey 6712 22-2433468
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(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification No.)
incorporation or organization) Classification Code Number)
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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)
Thomas J. Sukay, Senior 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 Michael W. Zelenty, Esquire
Blank Rome Comisky & McCauley LLP Pitney, Hardin, Kipp & Szuch
One Logan Square P.O. Box 1945
Philadelphia, PA 19103 Morristown, NJ 07962-1945
(215) 569-5500 (973) 966-8125
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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 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 registration statement number of the earlier
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box, and list Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
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.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 20. Indemnification of Directors and Officers
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Section 14A:3-5 of the NJBCA 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 CBH's By-laws provides for indemnification to the fullest
extent permitted by Section 14A:3-5. Reference is made to the By-laws of CBH
filed as Exhibit 3.3 hereto.
Item 21. Exhibits
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(a) Exhibits
Exhibit Description
No.
--------- ------------------------------------------------------------
2.1 (1) Agreement and Plan of Reorganization, dated as of August 12,
1998, by and between Commerce Bancorp, Inc. and Community
First Banking Company (attached as Annex "A" to the Proxy
Statement-Prospectus). The Schedules to this agreement are
not filed as an exhibit hereto pursuant to Regulation S-K,
Item 601(b)(2); however, the Registrant will furnish a copy
of these Schedules to the SEC upon its request.
2.2 (1) Agreement and Plan of Merger, dated as of August 12, 1998, by
and between Commerce Bancorp, Inc. and Community First
Banking Company (attached as Annex "B" to the Proxy
Statement-Prospectus).
3.1 (2) Restated Certificate of Incorporation of Commerce Bancorp,
Inc., as amended.
3.2 (3) By-laws of Commerce Bancorp, Inc., as amended.
5.1 Opinion of Blank Rome Comisky & McCauley LLP.
23.1 (1) Consent of Ernst & Young LLP.
23.2 (1) Consent of Arthur Andersen LLP.
23.3 Consent of Blank Rome Comisky & McCauley LLP (to be included
in Opinion to be filed as Exhibits 5.1).
23.4 (1) Consent of Berwind Financial, L.P.
24.1 (1) Powers of Attorney of certain signatories (included on
signature page).
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Exhibit Description
No.
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99.1 (1) Form of Proxy of Community First Banking Company
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(1) Previously filed.
(2) Incorporated by reference from CBH's Registration Statement on Form
S-2 and Amendments Nos. 1 and 2 thereto (Registration No. 33-62702).
(3) Incorporated by reference from CBH's Registration Statement on Form
S-4 (Registration No. 333-10771).
Item 22. Undertakings
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(a) The undersigned registrant hereby undertakes:
(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, as amended;
(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 a 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.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to the
securities being offered therein, and the offering of such securities at
the time shall be deemed to be the initial bona fide offering thereof.
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(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934, as amended, 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.
(e) The undersigned registrant hereby undertakes 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, as amended; 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.
(g)(1) The undersigned registrant hereby undertakes 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 reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other Items of the applicable form.
(g)(2) The registrant undertakes that every prospectus (i) that is filed
pursuant to paragraph (g)(1) immediately preceding or (ii) that purports to meet
the requirements of Section 10(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, as amended, 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.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers and controlling
persons of CBH pursuant to the foregoing provisions, or otherwise, CBH 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 of
1933, as amended, and is therefore unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by CBH of
expenses incurred or paid by a director, officer or controlling person of CBH 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, CBH 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.
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The undersigned registrant hereby undertakes 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.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it 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 3rd day of November 1998.
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, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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SIGNATURE CAPACITY DATE
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/s/ VERNON W. HILL, II Chairman of the Board, President November 3, 1998
---------------------------------- and Director (Principal
VERNON W. HILL, II Executive Officer)
/s/ C. EDWARD JORDAN, JR. Executive Vice President and November 3, 1998
---------------------------------- Director (Principal Financial
C. EDWARD JORDAN, JR. and Accounting Officer)
*
---------------------------------- Secretary and Director November 3, 1998
ROBERT C. BECK
* Director November 3, 1998
----------------------------------
DAVID BAIRD, IV
*
---------------------------------- Director November 3, 1998
JACK R BERSHAD
*
---------------------------------- Director November 3, 1998
MORTON N. KERR
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II-5
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SIGNATURE CAPACITY DATE
---------------------------------- ---------------------------------- -----------------------
---------------------------------- Director
STEVEN M. LEWIS
*
---------------------------------- Director November 3, 1998
DANIEL J. RAGONE
*
---------------------------------- Director November 3, 1998
WILLIAM A. SCHWARTZ, JR.
---------------------------------- Director
JOSEPH T. TARQUINI, JR.
---------------------------------- Director
JOSEPH BUCKELEW
---------------------------------- Director
FRANK C. VIDEON, SR.
*By: /s/ C. EDWARD JORDAN, JR.
-----------------------------
C. EDWARD JORDAN, JR.
Attorney-in-Fact
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EXHIBIT 5.1
[BLANK ROME COMISKY & McCAULEY LLP LETTERHEAD]
November 2, 1998
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. 333-65801)
Gentlemen:
We have acted as counsel to Commerce Bancorp, Inc. (the "Company") in
connection with the Registration Statement on Form S-4 (Registration No.
333-65801) filed by the Company pursuant to the Securities Act of 1933, as
amended (the "Registration Statement"), relating to the issuance of up to
1,661,000 shares of Common Stock, $1.5625 par value (the "Common Stock"), in
connection with the proposed acquisition of Community First Banking Company,
Tinton Falls, New Jersey by the Company. 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; (2)
the By-laws of the Company, as amended; (3) resolutions adopted by the Company's
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:
When the Common Stock of the Company which is being registered is
issued 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,
/s/ Blank Rome Comisky & McCauley LLP
BLANK ROME COMISKY & McCAULEY LLP
