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As filed with the Securities and Exchange Commission on May 24, 2000
Registration No. 333-_____
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
COMMERCE BANCORP, INC.
(Exact name of Registrant as specified in its charter)
New Jersey 22-2433468
- ------------------------------------ ----------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
COMMERCE ATRIUM
1701 Route 70 East
Cherry Hill, N.J. 08003
(Address of Principal Executive Offices)
COMMERCE BANCORP, INC. SMARTBUY
STOCK PURCHASE PLAN
(Full title of the Plan)
C. EDWARD JORDAN, JR.
Executive Vice-President
Commerce Bancorp, Inc.
1701 Route 70 East
Cherry Hill, N.J. 08003
1 (856) 751-9000
(Name, address and telephone number,
including area code, of agent for service)
Copies of Communications To:
LAWRENCE R. WISEMAN, ESQUIRE
Blank Rome Comisky & McCauley LLP
One Logan Square
Philadelphia, Pennsylvania 19103
(215) 569-5500
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================================
Amount Proposed maximum Proposed maximum Amount of
Title of securities to be offering price aggregate offering registration fee
to be registered registered(1) per share(2) price (2)
=================================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, par value 250,000 $ 42.625 $ 10,656,250 $2,814
$1.5625 per share ..................
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) The amounts are based upon the average of the high and low sale prices for
the common stock as reported on the New York Stock Exchange on May 22, 2000,
and are used solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, as amended.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in the Commerce Bancorp, Inc. SmartBuy
Stock Purchase Plan, referred to as the Plan, as specified by Rule 428(b)(1)
promulgated by the SEC under the Securities Act.
The documents are not being filed with the SEC, but constitute (along with
the documents incorporated by reference into this registration statement under
Item 3 of Part II hereof) a prospectus that meets the requirements of Section
10(a) of the Securities Act.
Commerce shall furnish without charge to each person to whom the prospectus
is delivered, on the written or oral request of each person, a copy of any and
all of the documents incorporated by reference, other than exhibits to the
documents (unless the exhibits are specifically incorporated by reference to the
information that is incorporated). Requests should be directed to Commerce
Bancorp, Inc., 1701 Route 70 East, Cherry Hill, N.J. 08003, Attention: C. Edward
Jordan, Jr., Executive Vice-President, telephone number (856) 751-9000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
Commerce and the Plan hereby incorporate by reference in this registration
statement the following documents:
(a) Commerce's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999; and
(b) All other reports filed by Commerce pursuant to Section 13(a) or 15(d)
of the Exchange Act since December 31, 1999; and
(c) The description of Commerce's Common Stock, which is incorporated by
reference from Commerce's registration statement on Form S-4 (File No.
333-16263) filed with the SEC on November 15, 1996 and all amendments
or reports filed for the purpose of updating such description.
All documents subsequently filed by Commerce with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date hereof,
and prior to the filing of a post- effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold hereunder, shall be deemed incorporated by reference into
this registration statement and to be a part thereof from the date of the filing
of such documents.
All information appearing in this registration statement and the prospectus
is qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Jack R Bershad, a partner in Blank Rome Comisky & McCauley LLP, is a
director of Commerce. Mr. Bershad and other partners of Blank Rome Comisky &
McCauley LLP are shareholders of Commerce.
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Item 6. 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 Commerce's By-laws provides for indemnification to the
fullest extent permitted by Section 14A:3-5.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
--------
The following exhibits are filed as part of this Registration Statement or,
where so indicated have been previously filed and are incorporated herein by
reference.
Exhibit Number Description
-------------- -----------
5.1 Opinion of Blank Rome Comisky & McCauley LLP
10.1 Commerce Bancorp, Inc. SmartBuy Stock Purchase Plan*
23.1 Consent of Blank Rome Comisky & McCauley LLP (included in
Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on signature page)
* To be filed by amendment.
Item 9. Undertakings.
-------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
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(i) To include any prospectus required by section 10(a) (3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. 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 end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the SEC pursuant to Rule 424(b) (ss.230.424(b)) of this chapter) if,
in the aggregate, the changes in volume and price represent no more than a 20%
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 material change to such information in the registration statement;
Provided, however, that paragraph (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or 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 section 15(d)
of the Exchange Act that are incorporated by reference in the registration
statement.
(2) That for the purpose of determining any liability under the
Securities Act 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.
(3) To remove from registration by means of 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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement 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) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
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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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, Commerce certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in Cherry Hill, New
Jersey, on this 22nd day of May, 2000.
COMMERCE BANCORP, INC.
By: /s/ Vernon W. Hill, II
-----------------------------------
Vernon W. Hill, II
Chairman of the Board and President
Each person whose signature appears below hereby authorizes Vernon W. Hill,
II or C. Edward Jordan, Jr. to file one or more amendments, including
post-effective amendments, to this registration statement, which amendments may
make such changes as Vernon W. Hill, II or C. Edward Jordan, Jr. deem
appropriate, and each person whose signature appears below, individually and in
each capacity stated below hereby appoints Vernon W. Hill, II or C. Edward
Jordan, Jr. as attorney-in-fact to execute in his name and on his behalf any
such amendments to this registration statement.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities and
on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE Capacity Date
- ------------------------------------------- ----------------------------------- ------------------------
<S> <C> <C>
/s/ Vernon W. Hill, II Chairman of the Board, President May 22, 2000
- ------------------------------- and Director (Principal Executive
Vernon W. Hill, II Officer)
/s/ C. Edward Jordan, Jr. Executive Vice President and May 22, 2000
- ------------------------------- Director
C. Edward Jordan, Jr.
/s/ Robert C. Beck Secretary and Director May 22, 2000
- -------------------------------
Robert C. Beck
/s/ David Baird, IV Director May 22, 2000
- -------------------------------
David Baird, IV
/s/ Jack R Bershad Director May 22, 2000
- -------------------------------
Jack R Bershad
/s/ Joseph E. Buckelew Director May 22, 2000
- -------------------------------
Joseph E. Buckelew
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
SIGNATURE Capacity Date
- ------------------------------------------- ----------------------------------- ------------------------
<S> <C> <C>
/s/ Morton N. Kerr Director May 22, 2000
- -------------------------------
Morton N. Kerr
/s/ Steven M. Lewis Director May 22, 2000
- -------------------------------
Steven M. Lewis
/s/ Daniel J. Ragone Director May 22, 2000
- --------------------------------
Daniel J. Ragone
/s/ Joseph T. Tarquini, Jr. Director May 22, 2000
- -------------------------------
Joseph T. Tarquini, Jr.
/s/ William A. Schwartz, Jr. Director May 22, 2000
- -------------------------------
William A. Schwartz, Jr.
/s/ Frank C. Videon, Sr Director May 22, 2000
- -------------------------------
Frank C. Videon, Sr.
/s/ Thomas J. Sukay
- ------------------------------- Principal Financial and May 22, 2000
Thomas J. Sukay Accounting Officer
</TABLE>
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EXHIBIT INDEX
Exhibit Numbers Description
- --------------- -----------
5.1 Opinion of Blank Rome Comisky & McCauley LLP
10.1 Commerce Bancorp, Inc. SmartBuy Stock Purchase Plan*
23.1 Consent of Ernst & Young LLP
* To be filed by amendment.
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EXHIBIT 5.1
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May 22, 2000
Commerce Bancorp, Inc.
Commerce Atrium
1701 Rout 70 East
Cherry Hill, N.J. 08003
RE: Commerce Bancorp, Inc. Registration Statement on Form S-8
---------------------------------------------------------
Gentlemen:
We have acted as counsel to Commerce Bancorp, Inc. (the "Company") in
connection with the Registration Statement on Form S-8 (the "Registration
Statement") filed by the Company with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended, relating to the offer and
sale of up to 250,000 shares of common stock, par value $1.5625 per share (the
"Common Stock"), by the Company pursuant to the Commerce Bancorp, Inc. SmartBuy
Stock Purchase Plan (the "Plan"). This opinion is furnished pursuant to the
requirements of Item 601(b)(5) of Regulation S-K.
In rendering this opinion, we have examined only the following documents:
(i) the Company's Restated and Amended Certificate of Incorporation and Bylaws,
(ii) resolutions adopted by the Board of Directors of the Company, (iii) the
Registration Statement and (iv) the Plan. We have not performed any independent
investigation other than the document examination described. Our opinion is
therefore qualified in all respects by the scope of that document examination.
We have assumed and relied, as to questions of fact and mixed questions of law
and fact, on the truth, completeness, authenticity and due authorization of all
certificates, 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 foregoing, we are of the opinion that the
shares of Common Stock of the Company which are being offered and sold by the
Company pursuant to the Registration Statement and the Plan, when sold in the
manner and for the consideration contemplated by the Registration Statement and
the Plan, will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registrant Statement.
Sincerely,
/s/ BLANK ROME COMISKY & MCCAULEY LLP
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BLANK ROME COMISKY & MCCAULEY LLP
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EXHIBIT 23.1
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CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 (No. 333-XXXX) pertaining to the Commerce Bancorp, Inc. SmartBuy
Stock Purchase Plan, of our report dated January 28, 2000, with respect to the
consolidated financial statements of Commerce Bancorp, Inc. and Subsidiaries,
included in its Annual Report (Form 10-K), for the year ended December 31, 1999,
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
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Philadelphia, Pennsylvania
May 22, 2000
