<PAGE>
As filed with the Securities and Exchange Commission on May 10, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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COMMERCE BANCORP, INC.
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(Exact name of registrant as specified in its charter)
New Jersey 22-2433468
- - - - - - - ------------------------------- ---------------------------------------
(State or other jurisdiction of (I.R.S. employer identification number)
incorporation or organization)
Commerce Atrium
1701 Route 70 East
Cherry Hill, NJ 08034-5400
(856) 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 Bancorp, Inc.
Commerce Atrium
1701 Route 70 East
Cherry Hill, NJ 08034-5400
(856) 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 LLP
One Logan Square
Philadelphia, Pennsylvania 19103
(215) 569-5500
Approximate date of commencement of proposed sale of the securities to
the public: As soon as practicable after the registration statement becomes
effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |X|
If any of the securities registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |_|
<PAGE>
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
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box, and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================
Title Of Each Class Proposed Maximum Proposed
Of Securities To Amount To Be Offering Price Maximum Amount Of
Be Registered Registered Per Unit Offering Price Registration Fee
- - - - - - - ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 2,000,000 (1) $40.375(2) $80,750,000(2) $21,318
$1.5625 par value
==================================================================================================================
</TABLE>
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(1) In addition, pursuant to Rule 416(a) under the Securities Act, this
registration statement also covers an indeterminate amount of shares as
may be issued pursuant to stock splits and stock dividends.
(2) Based upon the average of the high and low sale prices of the Commerce
Bancorp common stock on the New York Stock Exchange on May 9, 2000,
estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, as
amended.
Rule 429 Legend: The prospectus which will be used in connection with sale of
the securities covered by this Registration Statement issued pursuant to the
Dividend Reinvestment and Stock Purchase Plan will also be used in connection
with the sale of securities covered by (i) Registration Statement on Form S-3
(Registration No. 33- 40465) filed with the Commission on May 9, 1991 and (ii)
Registration Statement on Form S-3 (Registration No. 333-73421) filed with the
Commission on March 5, 1999.
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 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to Section 8(A), may
determine.
<PAGE>
COMMERCE
BANCORP, INC.
Dividend Reinvestment and Stock Purchase Plan
2,000,000 shares of common stock
This prospectus describes the Commerce Bancorp, Inc. Dividend
Reinvestment and Stock Purchase Plan, referred to as the Plan. Commerce Bancorp
wanted to amend its currently existing Dividend Reinvestment and Stock Purchase
Plan to modernize it and provide new enhanced features. The Plan offers holders
of Commerce Bancorp equity securities the following:
o a simple and convenient method of investing cash dividends in
additional shares of Commerce Bancorp common stock; and
o the opportunity to purchase additional shares of Commerce Bancorp
common stock by making voluntary cash payments of $100 to $3,000
per month, this $3,000 maximum monthly purchase amount is subject
to change, see page 3.
Some of the significant features of the Plan are as follows:
o participants do not have to pay brokerage commissions or service
charges on purchases made through the Plan;
o participants purchase the Commerce Bancorp common stock at a 3%
discount, this 3% discount is subject to change, see page 7;
o holders of shares currently enrolled in Commerce Bancorp's
Dividend Reinvestment and Stock Purchase Plan will automatically
be enrolled in this amended Plan; and
o participation in the Plan is entirely voluntary, and participants
may terminate their participation at any time.
Commerce Bancorp cannot estimate the net proceeds it will receive from
the sale of its common stock in connection with the Plan. The amount of the net
proceeds which Commerce Bancorp will receive will depend upon the following:
o the market price of Commerce Bancorp common stock;
o the extent of shareholder participation in the Plan; and
o other factors.
Commerce Bancorp common stock trades on the New York Stock Exchange
under the symbol "CBH".
The securities offered hereby are not savings accounts, deposits or
other obligations of a bank or savings association and are not insured or
guaranteed by the Federal Deposit Insurance Corporation or any other government
agency.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or has passed upon
the accuracy or adequacy of this prospectus. Any representation to the contrary
is a criminal offense.
The date of this prospectus is May 10, 2000.
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TABLE OF CONTENTS
Page
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Summary .....................................................................1
The Plan .....................................................................3
Use of Proceeds..............................................................18
Description of Commerce Bancorp's Capital Stock..............................18
Dividends....................................................................21
Legal Matters................................................................22
Experts ....................................................................22
Where You Can Find More Information..........................................23
You should rely only on the information incorporated by reference or
provided in this prospectus. Commerce Bancorp has not authorized anyone else to
provide you with different information. Commerce Bancorp will not make an offer
of these shares in any state where the offer is not permitted. You should not
assume that the information in this prospectus is accurate as of any date other
than the date on the front page of this prospectus.
<PAGE>
Summary
This summary highlights selected information from this prospectus and may
not contain all of the information that is important to you. To understand the
Plan fully, you should read this entire prospectus carefully before you decide
to participate in the Plan.
The Company
Background
Commerce Bancorp is a multi-bank holding company headquartered in Cherry
Hill, New Jersey which operates:
o five nationally chartered bank subsidiaries:
o Commerce Bank, N.A., Cherry Hill,
New Jersey,
o Commerce Bank/Pennsylvania, N.A.,
Devon, Pennsylvania,
o Commerce Bank/Shore, N.A., Toms
River, New Jersey,
o Commerce Bank/Central, N.A.,
Flemington, New Jersey,
o Commerce Bank/Delaware, N.A.,
Wilmington Delaware, and
o one state chartered bank subsidiary:
o Commerce Bank/North, Ramsey,New Jersey.
These six bank subsidiaries have 122 retail branch offices in New Jersey,
Pennsylvania and Delaware. Commerce Bancorp, through its six bank subsidiaries,
provides a full range of retail and commercial banking services for consumers
and small and mid-sized companies. Lending services are focused on commercial
real estate and commercial and consumer loans to local borrowers. Commerce
Bancorp's lending and investment activities are funded principally by retail
deposits gathered through its retail branch office network.
Commerce Bank, N.A. operates a nonbank subsidiary, Commerce Capital
Markets, Inc., Philadelphia, Pennsylvania which engages in municipal securities
and brokerage activities. In addition, Commerce Bancorp, through Commerce
National Insurance Services, Inc., a nonbank subsidiary of Commerce Bank/North,
operates an insurance brokerage firm concentrating on commercial property,
casualty and surety as well as personal lines of insurance for clients in
multiple states, primarily Delaware, New Jersey and Pennsylvania.
Address and telephone number
Commerce Bancorp's principal executive offices are located at Commerce
Atrium, 1701 Route 70 East, Cherry Hill, New Jersey 08034-5400 and its telephone
number is (856) 751-9000.
Enrollment
If you are already a participant in the Plan, you need not do anything
further; your participation will continue until terminated.
Holders of Commerce Bancorp's equity securities can participate in the Plan
by completing and submitting the authorization card, which is enclosed with this
prospectus, to the plan administrator, ChaseMellon Shareholder Services, at P.O.
Box 3339, South Hackensack, NJ 07606. See pages 5-6.
If your shares of Commerce Bancorp stock are held in a brokerage account,
you may either arrange for your broker to be a participant in the Plan or you
may participate directly by transferring registration of some or all of your
shares into your name and submitting a completed authorization card to the plan
administrator. See page 5.
Reinvestment of Dividends
You can reinvest your cash dividends on all or a portion of your shares of
Commerce Bancorp stock toward the purchase of additional shares of Commerce
Bancorp common stock. See page 3.
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Fractional Shares
Commerce Bancorp pays dividends on both whole shares and fractional shares
in the Plan and will credit your plan account with dividends on both your whole
and fractional shares. See pages 4 and 10.
Optional Cash Investments
After you are enrolled in the Plan, you may buy additional shares of
Commerce Bancorp common stock under the Plan. You can invest a minimum of $100
and a maximum of $3,000 per calendar month. This $3,000 maximum monthly payment
amount is subject to change, see page 3. You can pay by check or money order
made payable to "The Chase Manhattan Bank." See pages 3 and 8-9.
Fees and Purchase Price
You will not have to pay any brokerage commissions or service charges for
any shares of Commerce Bancorp common stock purchased under the Plan. In
addition, you will be able to purchase Commerce Bancorp common stock at a 3%
discount from the market price of Commerce Bancorp common stock. This 3%
discount is subject to change, see page 7.
Safekeeping of Certificates
You can deposit your Commerce Bancorp common stock certificates with the
plan administrator for safekeeping at no cost to you. This feature of the Plan
applies whether or not you are having the dividends on deposited shares
reinvested under the Plan. A certificate for your shares will be sent to you,
free of charge, upon request. However, fractional shares will not be issued. See
pages 4 and 10.
Gifts and Transfers of Shares
You can give or transfer your shares of Commerce Bancorp common stock to
others.
Sell Shares Conveniently
If you choose to have the plan administrator sell your Commerce Bancorp
common stock held in your plan account, you will incur:
o a nominal fee to be deducted from the
proceeds of the sale;
o any applicable brokerage commissions; and
o any applicable stock transfer taxes.
See pages 5 and 9.
Tracking Your Investment
You will receive a statement of your plan account confirming purchases of
shares as soon as practicable after purchases are made. Statements provide the
details of such transactions and show the share balance in your plan account.
See pages 4 and 9.
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The Plan
The original Dividend Reinvestment and Stock Purchase Plan was adopted by
the board of directors of Commerce Bancorp in April 1992 and became effective in
November 1992. The Plan was amended by the board of directors of Commerce
Bancorp in January 1999. Shareholders who do not participate in the Plan will
receive cash dividends, as declared, and paid in the usual matter. The Plan,
which is comprised of a series of questions and answers, is set forth below.
Purpose
1. What are the purposes of the Plan?
The primary purposes of the Plan are to provide holders of record of shares
of Commerce Bancorp common stock and other classes of equity securities of
Commerce Bancorp outstanding from time to time, or both, collectively referred
to as the "Company Stock", with the opportunity to have cash dividends on all or
any part of their shares of Company Stock automatically reinvested in additional
shares of common stock and with a convenient and simple method of investing
voluntary cash payments in additional shares of common stock, in each case
without payment of any service charges or brokerage commissions and at a
discount from the Market Price (as defined in Question 11). These additional
shares of common stock may be newly issued or treasury shares purchased directly
from Commerce Bancorp or may be shares purchased in the open market.
When newly issued or treasury shares are purchased from Commerce Bancorp,
Commerce Bancorp will receive new equity capital funds available for general
corporate purposes.
The Plan is intended for the benefit of long-term investors, and not for
the benefit of individuals or institutions who engage in short-term trading
activities that could cause aberrations in the composite trading volume of
Commerce Bancorp's common stock. From time to time, financial intermediaries may
engage in positioning transactions in order to benefit from the discount from
the Market Price of the shares of common stock acquired through the reinvestment
of dividends and voluntary cash payments under the Plan. Such transactions may
cause fluctuations in the trading volume of the common stock. Commerce Bancorp
reserves the right to modify, suspend or terminate participation in the Plan by
otherwise eligible holders of common stock in order to eliminate practices which
are not consistent with the purposes of the Plan.
Options Available to Participants
2. What options are available to enrolled participants?
Dividend Reinvestment Program. Holders of the Company Stock who wish to
participate in the Plan, whether record owners or beneficial owners, each a
"Participant" (see also Question 5 regarding the definition of a "Participant"),
may elect to have all or a portion of their cash dividends paid on their shares
of the Company's Stock automatically reinvested in additional shares of common
stock through the dividend reinvestment program. Cash dividends are paid on the
Company Stock when and as declared by Commerce Bancorp's board of directors,
generally on a quarterly basis. Subject to the availability of shares of common
stock registered for issuance under the Plan, there is no limitation on the
amount of dividends a Participant may reinvest under the dividend reinvestment
program of the Plan.
Stock Purchase Program. Each month, Participants may also elect to invest
optional cash payments in shares of common stock, subject to a minimum monthly
purchase limit of $100 and a maximum monthly purchase limit of $3,000. This
$3,000 maximum monthly purchase is subject to upward or downward adjustment.
Participants may make optional cash payments each month even if no dividend has
been declared. Participants are not required to enroll any shares of common
stock purchased through the stock purchase program into the dividend
reinvestment program but may designate all or a portion of such shares for such
participation on the enclosed authorization card if desired.
3
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Advantages and Disadvantages
3. What are the advantages and disadvantages of the Plan?
Advantages
(a) The Plan provides Participants with the opportunity to reinvest cash
dividends paid on all or a portion of their shares of Company Stock in
additional shares of common stock without payment of any brokerage commissions
or service charge and at a 3% discount from the Market Price (as defined in
Question 11 and subject to change).
(b) The Plan provides Participants with the opportunity to make monthly
investments of optional cash payments, subject to a minimum and maximum amount,
for the purchase of shares of common stock at a 3% discount from the Market
Price (subject to change) and without payment of any brokerage commission or
service charge. The Participant may designate all, a portion or none of such
Plan shares to be enrolled in the dividend reinvestment program.
(c) All cash dividends paid on Participants' Plan shares enrolled in the
dividend reinvestment program can be fully invested in additional shares of
common stock because the Plan permits fractional shares to be credited to plan
accounts. Dividends on such fractional shares, as well as on whole shares, will
also be reinvested in additional shares which will be credited to plan accounts.
(d) The Plan Administrator, provides for the safekeeping of stock
certificates for shares credited to each plan account. For your convenience,
shares purchased under the Plan will be maintained at no charge by the Plan
Administrator in your name in non-certificated form. You may, however, request a
stock certificate from the Plan Administrator at any time free of charge.
(e) A Participant may also elect to deposit with the Plan Administrator
certificates for the stockholder's other shares of Company Stock registered in
his or her name for safekeeping without charge. Because the Participant bears
the risk of loss in sending certificates to the Plan Administrator, certificates
should be sent by registered mail, return receipt requested, and properly
insured to the address specified below:
ChaseMellon Shareholder Services
P.O. Box 3340
South Hackensack, NJ 07606-1940
If certificates are later issued either upon request of the Participant or upon
termination of participation in the Plan, new, differently numbered certificates
will be issued.
(f) Periodic statements reflecting all current activity, including Plan
share purchases and the most recent plan account balance, simplify Participants'
record keeping. See Question 22 for information concerning reports to
Participants.
Disadvantages
(a) No interest will be paid by Commerce Bancorp or the Plan Administrator
on dividends or optional cash payments held pending reinvestment or investment.
See Question 17. In addition, optional cash payments of less than $100 and that
portion of any optional cash payments which exceed the maximum monthly purchase
limit of $3,000, are subject to return to the Participant without interest. This
$3,000 maximum monthly payment amount is subject to change, see Question 2.
(b) With respect to shares acquired from Commerce Bancorp, the actual
number of shares to be issued to the Participant or the Participant's plan
account will not be determined until after the end of the relevant Pricing
Period
4
<PAGE>
(as defined in Question 11). Therefore, during the Pricing Period, Participants
will not know the actual price per share or the number of shares they have
purchased.
(c) With respect to shares acquired from Commerce Bancorp, while the Plan
currently provides for a 3% discount from the Market Price (subject to change)
during the Pricing Period, the Market Price, as so discounted, may exceed the
price at which shares of the common stock are trading on the Investment Date (as
defined in Question 13) when the shares are issued or thereafter. The trading
price on the Investment Date generally governs the amount of taxable income to
shareholders. See Question 34.
(d) Because optional cash payments must be received by the Plan
Administrator by the Optional Cash Payment Due Date (as defined in Question 13),
such payments may be exposed to changes in market conditions for a longer period
of time than in the case of typical secondary market transactions. See Questions
13 and 14 through 18.
(e) Resales of shares of common stock credited to a Participant's plan
account will involve a nominal fee per transaction to be deducted from the
proceeds of the sale by the Plan Administrator (if such resale is made by the
Plan Administrator at the request of a Participant), plus any brokerage
commission and any applicable stock transfer taxes on the resales. See Questions
19 and 20.
Administration
4. Who administers the Plan?
Commerce Bancorp has retained The Chase Manhattan Bank as plan
administrator, referred to as the Plan Administrator, to administer the Plan.
Certain administrative support will be provided to the Plan Administrator by
ChaseMellon Shareholder Services, L.L.C., a registered transfer agent. See
Question 22 for information concerning reports to Participants. If the Plan
Administrator resigns or otherwise ceases to act as plan administrator, the
Company will appoint a new plan administrator to administer the Plan.
Participation
5. Who is eligible to participate?
All registered shareholders are eligible for participation in the Plan.
If your shares of Company Stock are registered in a name other than your
own (e.g., in the name of a broker, bank or nominee) and you want to
participate, you must either make appropriate arrangements for your broker, bank
or nominee to become a Participant or you must become a shareholder of record by
having a part or all of your shares transferred to your own name. To have shares
of which you are the beneficial owner re-registered in your name, you must
request your broker, bank or nominee to send you a certificate representing such
shares.
If you are already a Participant in the Plan, you need not do anything
further; your participation will continue until terminated. (See Question 28).
6. How does an eligible shareholder participate?
An eligible holder of shares of Company Stock may enroll in the Plan by
signing an authorization card and returning it to the Plan Administrator:
The Chase Manhattan Bank
c/o ChaseMellon Shareholder Services
P.O. Box 3339
South Hackensack, NJ 07606-1939
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An authorization card and a return envelope are enclosed. Additional
authorization cards may be obtained at any time by contacting the Plan
Administrator at the above address or by telephoning the Plan Administrator at
(888) 470-5884.
7. When may a shareholder join the Plan?
An eligible shareholder may join the Plan at any time.
If an authorization card specifying reinvestment of dividends is received
by the Plan Administrator on or prior to two business days before the record
date established for a particular cash dividend, reinvestment will commence with
that cash dividend. With respect to its common stock, Commerce Bancorp expects
that dividend record dates will normally fall on or about the latter part of
December, March, June and September, and that dividend payment dates will
normally fall on or about 21 days after the record dates.
If the authorization card is received after the record date established for
a particular cash dividend, then the reinvestment of dividends will not begin
until the cash dividend payment date following the next record date. (See
Questions 14 -18 for information concerning the investment of voluntary cash
payments). Additionally, for Participants wishing to make optional cash payments
to purchase shares under the stock purchase program, full payment must be
received by the Plan Administrator by the Optional Cash Due Date. (See Questions
13 and 14).
8. What does the authorization card provide?
The authorization cards provide for the purchase of additional shares of
common stock through the following investment options:
(a) Full Dividend Reinvestment directs the investment in accordance
with the Plan of all of your cash dividends on all of the shares of Company
Stock then or subsequently registered in your name and also permits you to
make voluntary cash payments for the purchase of additional shares in
accordance with the Plan.
(b) Partial Dividend Reinvestment directs the investment in accordance
with the Plan of the cash dividends on that number of shares of Company
Stock registered in your name which are designated in the appropriate space
on the Authorization Card and reinvest cash dividends on all other shares
of Company Stock now or hereafter held for you by the Plan Administrator,
and also permits you to make voluntary cash payments for the purchase of
additional shares in accordance with the Plan.
You may select either of the above investment options for your Company
Stock. An eligible shareholder may not elect to make only voluntary cash
payments under the Plan. Participation in the Plan is limited to shareholders
who direct the Plan Administrator to reinvest dividends on shares of Company
Stock held of record by them to the purchase of additional shares of common
stock. Once so enrolled, a shareholder may elect to make voluntary cash
payments.
Any Participant who returns a properly executed authorization card to the
Plan Administrator without electing a dividend reinvestment option will be
enrolled as having selected the Full Dividend Reinvestment Option.
Common stock purchased with reinvested dividends or voluntary cash payments
(and shares of Company Stock deposited with the Plan Administrator) will be held
by the Plan Administrator in your name for your account. The cash dividends on
all of the shares of common stock credited to plan accounts (whether the related
share certificates are held by the Plan Administrator or by the Participant)
will be reinvested in accordance with the Plan. You may elect to receive cash
dividends on shares of common stock credited to your plan account only by (i)
requesting that the shares you want to receive cash dividends on are withdrawn
from your plan account and sent to you in certificated form and (ii) submitting
to the Plan Administrator an authorization card which either elects the Partial
Dividend Reinvestment option or modifies your then current Partial Dividend
Reinvestment Option with respect to Company Stock.
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9. How may a Participant change options under the Plan?
As a Participant, you may change investment options or modify the number of
shares of Company Stock designated under the Partial Dividend Reinvestment
option at any time by completing a new authorization card and returning it to
the Plan Administrator at the address set forth on the authorization card. Any
such change will become effective as of the cash dividend record date following
the date the authorization card is received by the Plan Administrator.
Purchases Under the Plan
10. How are shares acquired under the Plan?
A total of 2,000,000 shares of common stock are being offered under the
Plan. The Plan Administrator uses cash dividends and voluntary cash payments to
acquire shares of common stock directly from Commerce Bancorp for the account of
Participants. If Commerce Bancorp deems it advisable for shares to be acquired
in the open market (rather than directly from Commerce Bancorp) or if newly
issued or treasury shares are not available, the Plan Administrator, as agent
for the Participants, will arrange for the purchase of shares in the open market
with cash dividends and voluntary cash payments. Purchases of shares in the open
market will be effected through brokerage transactions and may be made in the
over-the-counter market or in negotiated transactions, which transactions may
include situations in which the broker is selling as a principal or an agent. To
the extent the Plan makes purchases from brokerage firms as principals, the
purchase price of shares may include a retail mark-up. If the shares are traded
on a securities exchange, they may be purchased on such exchange. Commerce
Bancorp's common stock currently is traded on the NYSE. Shares will be acquired
in the open market with cash dividends and voluntary cash payments at such times
as are described in Question 13.
Neither Commerce Bancorp nor any Participant shall have any authorization
or power to direct the time or price at which shares will be purchased or the
selection of the broker or dealer through or from whom purchases are to be made
by the Plan Administrator. However, when open market purchases are made by the
Plan Administrator, the Plan Administrator shall use its best efforts to
purchase the shares at the lowest possible price.
In the event that the number of shares purchased for the account of any
Participant in the Plan is not a whole number of shares, the Participant's plan
account will be credited with the full number of shares and/or fractional shares
computed to four decimal places.
11. At what price will shares be purchased under the Plan with reinvested
dividends?
Shares of common stock purchased through the Plan directly from Commerce
Bancorp, whether issued by Commerce Bancorp out of legally authorized but
unissued shares of common stock or out of treasury shares, will be purchased at
a discount of 3% from the average of the high and low sale prices of the common
stock as reported on the NYSE on the trading day immediately preceding the
particular Investment Date (as defined in Question 13) or the closest preceding
date if there are no high and low sale prices available on that date, referred
to as the Pricing Period. If there are no high and low sale prices available for
the common stock for the ten trading days preceding the applicable Investment
Date, then Commerce Bancorp's board of directors shall make the determination of
the purchase price on the basis of such information as it considers best
reflects current market value.
The purchase price for shares of common stock purchased through the Plan in
the open market shall be at a discount of 3% from the weighted average purchase
price of all shares purchased for the Plan in the open market on the relevant
Investment Date. In making purchases for the Participant's account in the open
market, the Plan Administrator may commingle the Participant's funds with those
of other shareholders of Commerce Bancorp participating in the Plan.
The average price described above is referred to herein as "Market Price"
and the purchase price, as discounted from the Market Price, is referred to
herein as the "Discounted Purchase Price." The discount is subject to change
7
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from time to time (but will not vary from the range of 0% to 3%) and is also
subject to discontinuance at Commerce Bancorp's discretion after a review of
current market conditions, the level of participation in the Plan and Commerce
Bancorp's current and projected capital needs. Commerce Bancorp will provide
Participants with written notice of a change in the applicable discount at least
30 days prior to the relevant record date or via an appropriate press release
for the relevant Optional Cash Payment Due Date.
12. At what price will shares be purchased under the Plan with voluntary cash
payments?
Shares purchased under the Plan with voluntary cash payments will be
acquired by Participants at a price determined as described in Question 11.
13. When will the Plan purchase shares of common stock?
Except as otherwise provided in this Plan, dates on which shares are
purchased with reinvested dividends or with voluntary cash payments are referred
to in this Plan as "Investment Dates."
The Investment Date with respect to the common stock acquired pursuant to
dividend reinvestments will be (i) if acquired directly from Commerce Bancorp,
the quarterly dividend payment date declared by the board of directors or (ii)
in the case of open market purchases, the date or dates of actual investment,
but no later than 10 business days following the dividend payment date.
Purchases of common stock directly from Commerce Bancorp with voluntary
cash payments will occur every month on the related Investment Date. The
Optional Cash Payment Due Date is three business days prior to the commencement
of the related Investment Date and the Investment Date is on or about the 20th
day of each month. Checks or other drafts must clear prior to the Investment
Date on which the investment is to be made. Please allow sufficient time for
your check to clear.
Purchases of common stock in the open market may occur over one or more
trading days and will commence on the same days as specified above for purchases
made directly from Commerce Bancorp. For a number of reasons including
observance of the Rules and Regulations of the SEC requiring temporary
curtailment or suspension of purchases, it is possible that the whole amount of
funds available in a Participant's account for the purchase of shares of
Commerce Bancorp might not be applied to the purchase of such shares on or
before the next ensuing Investment Date. Neither Commerce Bancorp nor the Plan
Administrator shall be liable to any shareholder when such conditions prevent
the purchase of shares or interfere with the timing of such purchases.
Voluntary Cash Payments
14. How does a Participant make voluntary cash payments?
Eligible shareholders enrolling in the Plan may make voluntary cash
payments by mailing a check or money order with an executed authorization card
to the Plan Administrator at the address set forth in Question 6. After an
authorization card has been received by the Plan Administrator, voluntary cash
payments may be made by mailing a check or money order together with a properly
executed copy of the form for such purpose which will accompany the account
statement sent to Participants. All checks and money orders must be payable to
"The Chase Manhattan Bank." Do not send cash. Voluntary cash payments must be
received on or before the third business day prior to the particular Investment
Date, and checks or other drafts must clear prior to such Investment Date, for a
voluntary cash payment to be invested on such Investment Date.
Shares purchased with voluntary cash payments will be held by the Plan
Administrator and credited to a Participant's plan account. Thereafter,
dividends on such shares automatically will be fully reinvested in additional
shares unless such shares are withdrawn from the Plan (see Question 28).
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15. What are the limitations on the amount of voluntary cash payments?
Voluntary cash payments may not be less than $100 per payment nor may they
total more than $3,000 per monthly investment period. This $3,000 maximum
monthly purchase amount is subject to change, see Question 2. Purchases will be
made on or about the 20th day of each month.
The same amount of money need not be sent each time and there is no
obligation to make a voluntary cash payment.
16. May a participant elect to make only voluntary cash payments under the Plan?
No. Participants who do not otherwise elect to apply all or a portion of
dividends on Company Stock held of record by them to the purchase of additional
shares of common stock under the Plan may not elect to participate in the Plan
by making only voluntary cash payments under the Plan.
17. When are voluntary cash payments invested?
Voluntary cash payments will be invested at the times described in Question
13. No interest will be paid by Commerce Bancorp or the Plan Administrator on
cash dividends or voluntary cash payments held by the Plan Administrator prior
to the date of investment. For that reason, Commerce Bancorp recommends that
shareholders mail their voluntary cash payments so that they are received by the
Plan Administrator prior to, but as close as possible to, three business days
prior to an Investment Date.
18. Under what circumstances will voluntary cash payments be returned?
Participants may obtain refunds of voluntary cash payments provided that a
written request for refund is received by the Plan Administrator on or before
not less than five business days prior to the Investment Date for such voluntary
cash payment. Once the check in payment of the voluntary cash payment has
cleared, the Plan Administrator will promptly honor any timely request for a
refund.
Costs
19. Are there any expenses to Participants in connection with the Plan?
Participants incur no service charges or brokerage commissions for
purchases made under the Plan. All costs of administration of the Plan are paid
by Commerce Bancorp. Participants may elect to send the certificates for their
other shares of Company Stock to the Plan Administrator for safekeeping, and
there is no fee for this service. However, Participants who request that the
Plan Administrator sell all or any portion of their shares must pay a nominal
fee per transaction to the Plan Administrator, any related brokerage commissions
and applicable stock transfer taxes.
20. What fees will a Plan Participant be responsible for?
Dividend Reinvestment No Charge
Optional Purchases No Charge
Sales Fee* $ 15.00
Fee for Returned Checks $ 25.00
Duplicate Statements
Current Year No Charge
Prior Years $ 20.00
* Plus a $.12 per share trading fee.
The Plan Administrator will deduct the applicable fees from proceeds due
from a sale.
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Administration
21. What are the functions of the Plan Administrator?
The Plan Administrator administers the Plan by automatically reinvesting
dividends and investing voluntary cash payments of Participants in additional
shares of common stock in accordance with the investment option selected by
Participants. Additionally, the Plan Administrator keeps records, sends
statements of account to Participants and performs other administrative duties
relating to the Plan.
Certain administrative support services will be provided by ChaseMellon
Shareholder Services, L.L.C., Commerce Bancorp's registered transfer agent.
Participants' Accounts and Reports
22. What kind of accounts are maintained for Participants and what reports on
those accounts do they receive?
The Plan Administrator maintains a separate account for each Participant.
All shares purchased for a Participant under the Plan will be credited to the
Participant's account. The Plan Administrator will mail to each Participant a
statement of account confirming purchases of shares as soon as practicable after
purchases are made for a Participant's plan account. Statements of account
should be retained for income tax purposes.
In addition, each Participant will receive copies of Commerce Bancorp's
annual and quarterly reports to shareholders, proxy statements and dividend
income information for tax purposes.
Dividends
23. Will Participants be credited with dividends on shares credited to their
accounts under the Plan?
Yes. The Plan Administrator, as agent, will receive dividends for all
shares of Company Stock credited to each Participant's plan account on the cash
dividend record date, will credit these cash dividends to each Participant's
account on the basis of full and fractional shares held in each account (each
Participant's cash dividend will equal the number of whole and fractional shares
in his or her account times the cash dividend rate paid), and will automatically
reinvest these cash dividends in additional shares of common stock, computed to
four decimal places, in accordance with the option selected by the Participant.
Certificates for Shares
24. Will certificates be issued for shares purchased under the Plan?
No. Shares purchased under the Plan will be maintained by the Plan
Administrator in your name in non- certificated form. This service protects
against loss, theft or destruction of the share certificates representing Plan
shares. Certificates for shares purchased under the Plan will not be issued to a
Participant unless a Participant requests certificates in writing for a
specified number of whole shares credited to a Participant's plan account. No
certificate for a fractional share will be issued.
A Participant's written request to the Plan Administrator for share
certificates to be issued in the Participant's name will not be treated as a
withdrawal of such shares from the Participant's account unless the request is
made in conjunction with a Participant's termination of participation in the
Plan and/or change in the number of shares to be reinvested (see Question 28).
In the absence of an accompanying authorization card changing the number of
shares to be reinvested or a Participant's termination of participation in the
Plan, the dividends on such shares will continue to be paid to and reinvested by
the Plan Administrator (See Questions 8, 25 and 28).
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25. In whose name will certificates be registered when issued?
Accounts under the Plan are maintained in the names in which share
certificates of the Participants are registered at the time the Participants
enroll in the Plan. Certificates for whole shares, when issued at the request of
Participants, will be registered in the same names. However, even after the Plan
Administrator has issued certificates to a Participant for some or all of the
whole shares held in his or her plan account, cash dividends on all shares
credited to a Participant's plan account will continue to be reinvested in
additional common stock pursuant to the Plan. (See Questions 8, 23 and 24).
If a Participant has some or all of his or her shares held re-registered in
another name (because of a sale or gift of these shares, for example), dividends
on the re-registered shares will not continue to be reinvested in additional
common stock under the Plan. Dividends on the re-registered shares will be
reinvested in additional common stock under the Plan only if the new record
owner elects to become a Participant.
See Question 30 for information concerning the effect on a Participant's
plan account if the Participant sells or transfers common stock certificates
registered in his or her name.
Shares credited to the account of a Participant may not be pledged or
assigned and any such purported pledge or assignment is void. A Participant who
wishes to pledge or assign such shares must first request that the Plan
Administrator issue certificates for such shares.
26. May a Participant deposit Company shares in his or her account?
You may deposit certificates representing your shares of Company Stock with
the Plan Administrator for safekeeping at no charge. Shareholders are encouraged
but not required to deposit their Company Stock share certificates with the Plan
Administrator upon their election to participate in the Plan. Such certificates
must be accompanied by a written request that the shares be added to your plan
account. All shares of Company Stock held in your plan account will have the
cash dividends received thereon reinvested in additional shares of common stock
as provided in the Plan. (See Questions 8 and 23).
27. How may share certificates or other documents be sent to the Plan
Administrator?
The method of delivery of share certificates and other documents is at the
election and risk of the Participant. If such delivery is by mail, registered
mail with return receipt requested, properly insured, is recommended.
Certificates should be mailed to:
ChaseMellon Shareholder Services
P.O. Box 3340
South Hackensack, NJ 07606-1940
Termination of Participation in the Plan or Withdrawal of Shares
28. How does a Participant terminate participation in the Plan or withdraw
shares from the Plan?
You may terminate your participation in the Plan at any time by notifying
the Plan Administrator in writing at least five full business days before the
next dividend record date. In the event written notice of termination is not
received by the Plan Administrator by such time, shares will be purchased for
the Participant with the related cash dividend and participation in the Plan
will not terminate until after such dividend has been reinvested. Because the
legal requirements for proper notice of the death of the holder of a plan
account which is registered solely to that holder vary greatly, depending on the
state of residence of the Participant and form of registration of the
Participant's plan account, the Plan Administrator should be contacted at the
address or phone number set forth in the response to Question 6 in the event of
such death.
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Upon termination by reason of notice of a Participant's death or
adjudicated incompetency, the Participant's shares held by the Plan
Administrator and any cash dividends thereafter received by the Plan
Administrator will be retained by the Plan Administrator until such time as such
Participant's legal representative has been appointed and has furnished proof
satisfactory to the Plan Administrator of the legal representative's right to
receive the share certificate and/or payment. No interest will be paid by either
Commerce Bancorp or the Plan Administrator on any dividends retained by the Plan
Administrator during any such period of time.
A Participant may withdraw a portion of the shares of Company Stock
credited to his or her account from participation in the Plan by giving notice
to that effect to the Plan Administrator and specifying in the notice the number
of whole shares to be withdrawn. This notice should be accompanied by a new
authorization card designating the Partial Dividend Reinvestment option and
showing the number of shares registered in your name with respect to which you
desire to have cash dividends reinvested in accordance with the Plan. No
fractional shares may be withdrawn except upon termination of participation in
the Plan. The Plan Administrator will send to the Participant a statement of
account and a certificate representing the withdrawn shares.
29. What will Participants receive when they terminate participation in the
Plan?
Upon electing to terminate participation in the Plan, the Plan
Administrator will send to the Participant a certificate representing the whole
shares of common stock held by the Plan Administrator in the Participant's plan
account and a check for the cash equivalent of any fractional share of common
stock less applicable sales fees.
The cash to be paid in lieu of a fractional share will be based on the
current market price of the common stock on the Investment Date, which for
purposes of this sentence is the day that the account is terminated by the Plan
Administrator.
Whenever a Participant does not own at least one share directly, the Plan
Administrator may, if instructed by Commerce Bancorp, terminate the Plan
Account, sell the fractional share and send the Participant the sale proceeds,
less related sales fees, if any.
Other Information
30. What happens when a Participant sells or transfers some (but not all) of the
shares registered in his or her name?
(a) Full Dividend Reinvestment.
If you are reinvesting the cash dividends on all of the shares registered
in your name, and you dispose of a portion of these shares, the Plan
Administrator will continue to reinvest the dividends on the remainder of the
shares registered in your name.
(b) Partial Dividend Reinvestment.
If you have directed the Plan Administrator to pay cash dividends to you on
some of your shares and to reinvest dividends on the remainder of your shares,
and you dispose of a portion of your shares, you should provide new written
instructions to the Plan Administrator on how to handle your account. If the
Plan Administrator does not receive new instructions, it may, in its discretion,
either (i) pay cash dividends on all of your shares or (ii) continue to reinvest
dividends on the number of shares, if any, you own in which you have requested
to have the dividends reinvested.
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31. What happens if Commerce Bancorp pays a dividend in stock or splits its
shares?
Any shares of Commerce Bancorp's common stock issued in connection with a
stock split or dividend distributed by Commerce Bancorp with respect to shares
credited to your plan account will be added to your account.
As soon as practicable after the payment of a stock dividend or stock
split, a statement will be sent to each Participant which will indicate the
number of shares of common stock credited to each Participant's plan account as
a result of the stock dividend or stock split. A Participant may receive a
certificate for such shares (other than fractional shares) at any time by
sending a written request to:
ChaseMellon Shareholder Services
P.O. Box 3338
South Hackensack, NJ 07606-1938
32. If Commerce Bancorp has a common stock rights offering or otherwise makes
securities available to its shareholders, how will the rights offering with
respect to shares held in plan accounts be handled?
Warrants or other written instruments representing the rights offered with
respect to the whole shares of common stock credited to the plan account of a
Participant will be mailed directly to the Participant in the same manner as the
warrants or other written instruments are mailed to shareholders of record who
do not participate in the Plan.
33. How will a Participant's shares be voted at meetings of holders of shares?
Each Participant will receive a single proxy card covering the total number
of shares held by the Participant in certificate form plus the total number of
full shares credited to the Participant's plan account. If a properly signed
proxy card is returned to the Company and not revoked prior to the time of
voting, the Participant's shares will be voted as directed on the proxy card. If
a proxy card is returned properly signed, but without indicating instructions as
to the manner shares are to be voted with respect to any item thereon, the
shares covered will be voted in accordance with the recommendations of Commerce
Bancorp's management. If the proxy card is not returned, or if it is returned
unexecuted or improperly executed, the shares covered will not be voted unless
the Participant or the Participant's duly appointed representative votes in
person at the meeting.
Federal Income Tax Consequences
34. What are the federal income tax consequences of participation in the Plan?
The following summary is based upon federal income tax law as of the date
of the adoption of the Plan. The discussion assumes that all distributions under
the Plan will be from Commerce Bancorp's earnings and profits.
A Participant in the Plan will generally be treated for federal income tax
purposes as having received, on each dividend payment date, a dividend in an
amount equal to the fair market value on such dividend payment date of the
shares acquired with reinvested dividends. For federal income tax purposes, the
fair market value of shares acquired with reinvested dividends under the Plan
will be equal to the mean of the highest and lowest quoted selling price, or if
such information is not available, the mean of the bid and the asked price, for
shares on the dividend payment date; the Discounted Purchase Price is not taken
into account in determining this fair market value. The tax basis of shares
acquired with reinvested dividends will equal the fair market value on the
dividend payment date of such shares. A corporate shareholder participating in
the Plan may be entitled to deduct a portion of that amount deemed received as a
dividend.
A Participant will not be treated as having received a dividend upon the
purchase of shares at the Discounted Purchase Price with a voluntary cash
payment unless the Discounted Purchase Price of the shares is less than the fair
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market value of the shares on the date on which shares are acquired for the
Participant's account. If the Discounted Purchase Price is less than the fair
market value of such shares, a Participant will be treated as having received a
dividend equal to the excess of the fair market value of the shares being
purchased over their Discounted Purchase Price. The tax basis of shares
purchased with a voluntary cash payment will equal the Participant's voluntary
cash payment plus the excess, if any, of the fair market value of the shares
being purchased over their current Discounted Purchase Price.
The IRS may take the position that any service fee paid by Commerce Bancorp
to the Plan Administrator on behalf of Plan Participants is an additional
distribution, taxable as dividend income, to such Participants. In the event the
IRS asserts this position, those Participants who itemize deductions on their
federal income tax returns may be entitled to deduct the amount of the service
fee attributable to their account as a miscellaneous itemized deduction, subject
to applicable limitations.
A Participant's holding period for shares acquired pursuant to the Plan
should begin no later than the day following the date of acquisition of such
shares for the Participant's account.
A Participant will not realize any taxable income upon receipt of
certificates for whole shares credited to the Participant's account, either upon
the Participant's request for certain of those shares or upon withdrawal from or
termination of the Plan. Upon withdrawal from or termination of the Plan, a
Participant will also receive a cash payment in lieu of any fractional share
equivalent credited to the Participant's account. This payment likely will be
treated as an amount realized from the sale of the fractional share equivalent,
and the participant will recognize gain or loss equal to the difference between
the amount received for the fractional share equivalent and the Participant's
tax basis therefor.
In addition, a Participant will recognize gain or loss when the Participant
sells or exchanges shares received by the Participant after withdrawal of such
shares from the Plan or upon the termination of the Plan. The amount of such
gain or loss will be the difference between the amount that the Participant
receives for the shares and the Participant's tax basis therefor.
In the case of both foreign shareholders who elect to have their dividends
reinvested and whose dividends are subject to United States income tax
withholding, and other shareholders who elect to have their dividends reinvested
and who are subject to back-up withholding under Section 3406(a)(1) of the
Internal Revenue Code, referred to as the Code, the Plan Administrator will
invest in shares of common stock in an amount equal to the dividends of such
participants less the amount of tax required to be withheld. The full amount of
the dividends will be recognized as taxable income, without reduction for the
amount of tax required to be withheld. The quarterly statements confirming
purchases made for such participants will indicate the net payment reinvested.
Under Section 3406(a)(1) of the Code, Commerce Bancorp is required to
withhold for United States income tax purposes 31% of all dividend payments to a
shareholder of Commerce Bancorp if (i) the shareholder has failed to furnish to
Commerce Bancorp his/her taxpayer identification number ("TIN"), which for an
individual is his/her social security number, (ii) the IRS has notified Commerce
Bancorp that the TIN furnished by the shareholder is incorrect, (iii) the IRS
notifies Commerce Bancorp that back-up withholding should be commenced because
the shareholder has failed to report interest or dividends properly, or (iv) the
shareholder has failed to certify, under penalties of perjury, that he/she is
not subject to back-up withholding. Shareholders have previously been requested
by Commerce Bancorp or their broker to submit all information and certifications
required in order to exempt them from back-up withholding if such exemption is
available to them.
The foregoing discussion is based on the assumption that shares are
purchased directly from Commerce Bancorp. If the shares are purchased in the
open market, the federal tax consequences would generally be the same. However,
the payment of brokerage commissions by Commerce Bancorp in connection with the
purchase or sale of shares in the open market may be treated as additional
dividend income to Participants, in which case the amount of such commissions
would not be deductible, but would increase the basis of the applicable shares.
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Each Participant should consult his or her own tax advisor to determine the
particular tax consequences, including state tax consequences (which will vary
from state to state), that may result from participation in the Plan and a
subsequent disposal of shares acquired pursuant to the Plan.
General
35. What are the liabilities of the Plan Administrator and Commerce Bancorp
under the Plan?
The Plan Administrator (or its nominees) and Commerce Bancorp shall not be
liable under the Plan for any act done in good faith, or for any good faith
omission to act, including, without limitation, any claim of liability (a)
arising out of any such act or omission to act which occurs prior to the
termination of participation and (b) with respect to the prices at which shares
are purchased or sold for the Participant's account and the times such purchases
or sales are made.
Participants should recognize that neither Commerce Bancorp nor the Plan
Administrator can assure Participants of profits, or protect participants
against losses, on shares purchased and/or held under the Plan.
The Plan Administrator (or its nominees) and Commerce Bancorp shall have no
duties, responsibilities or liabilities except as are expressly set forth in the
Plan.
Shareholders are cautioned that this Plan does not represent a change in
Commerce Bancorp's dividend policy or a guarantee of future dividends, which
will continue to depend upon Commerce Bancorp's earnings, financial
requirements, governmental regulations and other factors. The Plan Administrator
has no responsibility with respect to the preparation and contents of the Plan.
36. Can Commerce Bancorp terminate the Plan or a Participant's interest in the
Plan?
Commerce Bancorp may terminate the Plan or a Participant's interest therein
upon not less than ten calendar days prior notice in writing mailed to the
Participant. In such event the Plan Administrator will follow the procedures for
termination set forth in Question 28.
37. What happens if the Plan cannot acquire shares?
If Commerce Bancorp determines not to make newly issued or treasury shares
available for purchase pursuant to the Plan and in the event that applicable law
or the closing of securities markets requires the temporary curtailment or
suspension of open market purchases of shares under the Plan, the Plan
Administrator is not accountable for the inability of the Plan to acquire shares
at such times. If shares are not available for a period longer than thirty
calendar days, the Plan Administrator will promptly mail to the Participant a
check (without any interest earned thereon) payable to the Participant's order
in the amount of funds submitted for investment.
38. When does a Participant obtain rights in shares acquired under the Plan?
A Participant will not acquire rights to dividends or other benefits of
stock ownership with respect to shares acquired under the Plan until the date
shares are actually purchased for his or her account.
39. Where should correspondence regarding the Plan be sent?
Any notice, instruction, request or election which by any provision of the
Plan is required or permitted to be given or made by the Participant to the Plan
Administrator shall be in writing, signed by the Participant and addressed to:
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ChaseMellon Shareholder Services
P.O. Box 3338
South Hackensack, NJ 07606-1938
or such address as the Plan Administrator shall furnish to the Participant, and
such notice, instruction, request or election shall be deemed to have been
sufficiently given or made when received by the Plan Administrator.
40. What is sufficient notice to a Participant?
Any notice or certificate which by any provision of the Plan is required to
be given by the Plan Administrator to the Participant shall be in writing and
shall be deemed to have been sufficiently given for all purposes by being
deposited by first class mail, postage prepaid, in a post office letter box,
addressed to the Participant at the Participant's address as it shall last
appear on the Plan Administrator's records.
41. Can a successor Plan Administrator be named?
Upon not less than thirty calendar days prior written notice to
Participants, Commerce Bancorp may terminate the Plan Administrator at any time
and may designate a bank or trust company as successor Plan Administrator for
all or a part of the Plan Administrator's functions under the Plan. If Commerce
Bancorp does so, references in this Plan to The Chase Manhattan Bank shall be
deemed to be references to the successor Plan Administrator, unless the context
requires otherwise.
The Chase Manhattan Bank may resign as Plan Administrator at any time upon
not less than thirty calendar days prior written notice to Commerce Bancorp,
such resignation to become effective as soon as a successor Plan Administrator
is named. Commerce Bancorp will endeavor to name a successor Plan Administrator
as soon as practicable.
42. What law governs the Plan?
The terms and conditions of the Plan and its operation are governed by the
substantive laws of the State of New Jersey.
43. Who bears the risk of fluctuations in the market price of common stock?
A Participant's investment in common stock held in a Plan Account is no
different with regard to market risk than an investment in common stock held in
certificate form. A Participant bears the risk of loss (and receives any benefit
of gain) occurring by reason of fluctuations in the market price of common stock
held in a plan account.
44. May the Plan be changed or discontinued?
While Commerce Bancorp hopes to continue the Plan indefinitely, Commerce
Bancorp reserves the right upon not less than ten calendar days prior written
notice to Participants to suspend or terminate the Plan or any Participant's
plan account (see Question 36) at any time. Commerce Bancorp also reserves the
right to interpret and make modifications in the Plan and any such determination
will be final. Commerce Bancorp may adopt rules and regulations to facilitate
the administration of the Plan. The terms and conditions of any such suspension,
termination or modification will be promptly announced to affected Participants.
45. Are there any restrictions on the resale of shares acquired under the Plan?
Persons who are not "affiliates" of Commerce Bancorp are free to sell
common stock acquired under the Plan at any time.
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However, persons who are "affiliates" of Commerce Bancorp, as that term is
defined in Rule 405 promulgated by the SEC under the Securities Act may not
publicly reoffer shares acquired under the Plan except pursuant to Rule 144 of
the Securities Act or pursuant to an effective registration statement. Rule 405
defines an "affiliate" as a person who directly, or indirectly through one or
more intermediaries, controls, is controlled by or is under common control with
Commerce Bancorp. Directors and executive officers of Commerce Bancorp are
generally deemed to be "affiliates" of Commerce Bancorp under this definition.
Commerce Bancorp has no present intention of filing a registration statement
which would permit "affiliates" to reoffer common stock acquired under the Plan.
Officers and directors participating in the Plan are subject to the
reporting obligations of Section 16(a) and the short-swing profit recovery
provisions of Section 16(b) of the Exchange Act, with respect to purchases of
common stock made under the Plan with voluntary cash payments. While executive
officers and directors are not subject to the short-swing profit recovery
provisions of Section 16(b) of the Exchange Act with respect to purchases of
common stock made under the Plan with reinvested dividends, ownership and
disposition of common stock so acquired must be disclosed on reports filed
pursuant to Section 16(a) of the Exchange Act.
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Use of Proceeds
The number of shares of Commerce Bancorp common stock that will be
purchased under the Plan and the prices at which the shares will be sold cannot
be determined at this time. The net proceeds from the sale of any shares by
Commerce Bancorp, after deducting expenses in connection with the Plan of
approximately $40,000, will be added to Commerce Bancorp's working capital.
These proceeds will be used for general corporate purposes, including, without
limitation, contributing all or a significant portion of the proceeds to one or
more of Commerce Bancorp's five banking subsidiaries. Commerce Bancorp cannot
estimate the amount of proceeds which will be devoted to any specific purpose.
Pending investment or application of the net proceeds, Commerce Bancorp will
invest the net proceeds primarily in short-term liquid investments. Commerce
Bancorp will not receive any proceeds from open market purchases of shares by
the Plan.
Description of Commerce Bancorp's Capital Stock
The following description is a summary of certain provisions of Commerce
Bancorp's charter and is qualified in its entirety by reference to the complete
text of Commerce Bancorp's charter which is incorporated by reference as an
exhibit to the registration statement on Form S-3 of which this prospectus is a
part.
Authorized Capital
The authorized capital stock of Commerce Bancorp consists of 50,000,000
shares of common stock, par value $1.5625 per share, and 10,000,000 shares of
preferred stock, without par value.
Common Stock
The number of shares of Commerce Bancorp common stock outstanding as of the
date of this prospectus is approximately 30.5 million shares. The number of
shareholders of record of Commerce Bancorp is approximately 19,000 holders.
The rights, preferences and privileges of holders of Commerce Bancorp
common stock are subject to, and may be adversely affected by, the rights of the
holders of shares of any series of preferred stock which Commerce Bancorp may
designate and issue in the future.
Voting Rights. Holders of Commerce Bancorp common stock are entitled to one
vote for each share held on all matters submitted to a vote of shareholders.
Commerce Bancorp common shareholders do not have cumulative voting rights.
Holders of a majority of the shares of Commerce Bancorp common stock entitled to
vote in any election of directors may elect all of the directors standing for
election.
Dividends. Holders of Commerce Bancorp common stock are entitled to receive
ratably dividends, if any, as may be declared by Commerce Bancorp's board of
directors out of legally available funds, subject to any preferential dividend
rights of outstanding preferred stock. See "Dividends."
Liquidation. Upon the liquidation, dissolution or winding up of Commerce
Bancorp, the holders of Commerce Bancorp common stock are entitled to receive
ratably the net assets of Commerce Bancorp available after the payment of all
debts and other liabilities and subject to the prior rights of any outstanding
Commerce Bancorp preferred stock.
Preemptive Rights. Holders of Commerce Bancorp common stock have no
preemptive, subscription, redemption or conversion rights.
Transfer Agent and Registrar. The transfer agent and registrar for Commerce
Bancorp common stock is ChaseMellon Shareholder Services, LLC.
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Preferred Stock
The Commerce Bancorp preferred stock may be issued with such preferences,
voting rights and conversion rights as Commerce Bancorp's board of directors,
without further approval by the shareholders, may determine by duly adopted
resolution. The issuance of Commerce Bancorp preferred stock may have the effect
of delaying, deferring or preventing a change in control of Commerce Bancorp. As
of the date of this prospectus, there were no shares of Commerce Bancorp
preferred stock issued and outstanding. Commerce Bancorp has no present plans to
issue any shares of Commerce Bancorp preferred stock.
"Anti-Takeover" Provisions and Management Implications
Commerce Bancorp's Charter.
Commerce Bancorp's charter requires the affirmative vote of the holders of
at least 80% of the outstanding capital stock of Commerce Bancorp entitled to
vote on the following transactions in order to permit the consummation of any of
the following transactions:
o any merger or consolidation of Commerce Bancorp with or into any other
corporation; or
o any sale, lease, exchange or other disposition of all of the assets of
Commerce Bancorp to or with any other corporation, person or other
entity.
The 80% voting requirement would not, however, apply to any transaction approved
by Commerce Bancorp's board of directors prior to the consummation of the
transaction.
Commerce Bancorp's charter also provides for the issuance of up to
10,000,000 shares of Commerce Bancorp preferred stock, the rights, preferences
and limitations of which may be determined by the Commerce Bancorp board of
directors. Issuance of Commerce Bancorp preferred stock, while providing
flexibility in connection with possible acquisitions and other corporate
purposes, could make it more difficult for a third party to secure a majority of
Commerce Bancorp's outstanding voting stock. The authority of Commerce Bancorp's
board of directors to issue Commerce Bancorp preferred stock with rights and
privileges, including voting rights, as it may deem appropriate, may enable
Commerce Bancorp's board of directors to prevent a change of control despite a
shift in ownership of Commerce Bancorp common stock. In addition, Commerce
Bancorp's board of directors' authority to issue additional shares of Commerce
Bancorp common stock may help deter or delay a change of control by increasing
the number of shares needed to gain control.
The provisions in Commerce Bancorp's charter relating to the 80% voting
requirements and the issuance of Commerce Bancorp preferred stock may have the
effect not only of discouraging tender offers or other stock acquisitions but
also of deterring existing shareholders from making management changes. These
provisions may enhance the possibility that a potential bidder for control of
Commerce Bancorp will be required to act through arms-length negotiation with
respect to major transactions, such as a merger, consolidation or purchase of
substantially all of the assets of Commerce Bancorp. These provisions may also
have the effect of discouraging tender offers or other stock acquisitions,
giving management of Commerce Bancorp the power to reject certain transactions
which might be desired by the owners of a majority of Commerce Bancorp's voting
securities. These provisions could also be deemed to benefit incumbent
management to the extent they deter offers by persons who would wish to make
changes in management or exercise control over management. Commerce Bancorp's
board of directors does not presently know of a third party that plans to make
an offer to acquire Commerce Bancorp through a tender offer, merger or purchase
of substantially all the assets of Commerce Bancorp.
19
<PAGE>
Banking Regulations.
The Change in Bank Control Act prohibits a person or group of persons from
acquiring "control" of a bank holding company unless the Federal Reserve Board
has been given 60 days prior written notice of the proposed acquisition and
within that time period the Federal Reserve Board has not issued a notice:
o disapproving the proposed acquisition, or
o extending for up to another 30 days the period during which such a
disapproval may be issued
or unless the acquisition is subject to Federal Reserve Board approval under the
Bank Holding Company Act of 1956, referred to as the BHCA. An acquisition may be
made prior to the expiration of the disapproval period if the Federal Reserve
Board issues written notice of its intent not to disapprove the action. Under a
rebuttable presumption established by the Federal Reserve Board, the acquisition
of more than ten percent of a class of voting stock of a bank holding company
with a class of securities registered under Section 12 of the Exchange Act, such
as Commerce Bancorp, would, under the circumstances set forth in the
presumption, constitute the acquisition of control.
In addition, any "company" would be required to obtain the approval of the
Federal Reserve Board under the BHCA before acquiring 25 percent, five percent
in the case of an acquirer that is a bank holding company, or more of the
outstanding shares of Commerce Bancorp common stock, or otherwise obtaining
"control" over Commerce Bancorp. Under the BHCA, "control" generally means :
o the ownership, control or power to vote 25 percent or more of any class
of voting securities of the banking holding company;
o the ability to elect a majority of the bank holding company's
directors; or
o the ability otherwise to exercise a controlling influence over the
management and policies of the bank holding company.
New Jersey Corporate Law.
The New Jersey Business Corporation Act, referred to as the NJBCA,
restricts the transactions that a publicly held corporation organized under the
laws of New Jersey with its principal executive offices or significant
operations located in New Jersey, referred to as a resident domestic
corporation, can engage. For example, the NJBCA provides that no resident
domestic corporation may engage in a "business combination," as defined in the
NJBCA, with an "interested shareholder" of the corporation for a period of five
years following the interested shareholder's stock acquisition, unless the
business combination is approved by the board of directors of the corporation
prior to the interested shareholder's stock acquisition. An interested
shareholder is a beneficial owner of ten percent or more of the voting power of
a corporation.
In addition, the NJBCA provides that no resident domestic corporation may
engage, at any time, in any business combination, with any interested
shareholders of the corporation other than:
o a business combination approved by the board of directors of such
corporation prior to the interested shareholder's stock acquisition;
o a business combination approved by the affirmative vote of the holders
of two-thirds of the voting stock not beneficially owned by that
interested shareholder at a meeting called for such purpose; or
o a business combination in which the interested shareholder pays a
formula price designed to ensure that all other shareholders receive at
least the highest price per share paid by that interested shareholder.
20
<PAGE>
Commerce Bancorp cannot opt out of the foregoing provisions of the NJBCA.
The NJBCA allows the directors of a New Jersey corporation to look at
various factors in considering a proposal or offer to acquire the corporation.
Specifically, the NJBCA provides that a director of a New Jersey corporation in
evaluating a proposal or offer to acquire the corporation may consider, any of
the following:
o the effects of any action on the corporation's shareholders;
o the effects of the action on the corporation's employees, suppliers,
creditors and customers;
o the effects of the action on the community in which the corporation
operates; and
o the long-term as well as the short-term interests of the corporation
and its shareholders, including the possibility that these interests
may best be served by the continued independence of the corporation.
If, on the basis of the foregoing factors, the board of directors determines
that any proposal or offer to acquire the corporation is not in the best
interest of the corporation, it may reject such proposal or offer, in which
event the board of directors will have no duty to facilitate, remove any
obstacles to, or refrain from impeding, such proposal or offer.
The existence of the foregoing provisions could
o result in Commerce Bancorp being less attractive to a potential
acquirer; and
o result in Commerce Bancorp's shareholders receiving less for their
shares of common stock than otherwise might be available in the event
of a takeover attempt.
Dividends
It is the present intention of Commerce Bancorp's board of directors to pay
quarterly cash dividends on Commerce Bancorp's common stock. However, the
declaration and payment of future dividends will be subject to determination and
declaration by the board of directors, which will consider the following:
o the earnings;
o the financial condition;
o the regulatory requirements; and
o the capital needs
of Commerce Bancorp, Commerce Bank, N.A., Commerce Bank/Central, Commerce
Bank/Delaware, Commerce Bank/Pennsylvania, Commerce Bank/North and Commerce
Bank/Shore.
Subject to the preferences, limitations and relative rights as may be fixed
for any series of Commerce Bancorp preferred stock that may be issued, holders
of Commerce Bancorp common stock are entitled to receive dividends, when, as and
if declared by the board of directors out of legally available funds.
Commerce Bancorp is a legal entity separate and distinct from its banking
and other subsidiaries. Under the NJBCA, a corporation may pay dividends or
purchase, redeem or otherwise acquire its own shares unless, after paying
dividends or acquiring its own stock:
21
<PAGE>
o the corporation would be unable to pay its debts as they become due in
the usual course of its business; or
o its assets would be less than the sum of its liabilities plus the
amount that would be needed to satisfy the preferential dissolution
rights of shareholders whose preferential rights are superior to those
receiving the distribution.
Cash available for dividend distribution to the holders of Commerce
Bancorp's common stock and preferred stock must initially come primarily from
dividends paid to Commerce Bancorp by Commerce Bank, N.A., Commerce
Bank/Central, Commerce Bank/Delaware, Commerce Bank/Pennsylvania, Commerce
Bank/North and Commerce Bank/Shore. Accordingly, restrictions on Commerce Bank,
N.A.'s, Commerce Bank/Central's, Commerce Bank/Delaware's, Commerce
Bank/Pennsylvania's, Commerce Bank/North's and Commerce Bank/Shore's cash
dividend payments directly affect the payment of cash dividends by Commerce
Bancorp.
Commerce Bank, N.A., Commerce Bank/Central, Commerce Bank/Delaware,
Commerce Bank/Pennsylvania and Commerce Bank/Shore, as national banks, are
subject to certain limitations on the amount of cash dividends that they can
pay, without the prior approval of the Office of the Comptroller of the
Currency, referred to as the OCC. The prior approval of the OCC is required if
the total of all cash dividends declared by a national bank in any calendar year
will exceed the sum of the bank's net profits, as defined by statute, for that
year combined with the retained net profits for the preceding two calendar
years, less any required transfers to surplus.
Commerce Bank/North, as a New Jersey State Bank, is also subject to certain
limitations on the amount of cash dividends that it can pay. No dividends may be
paid by Commerce Bank/North unless, following the payment of the dividend, the
capital stock of Commerce Bank/North is unimpaired and either:
o Commerce Bank/North will have a surplus of not less than 50% of its
capital stock; or
o the payment of the dividend will not reduce the surplus of Commerce
Bank/North.
In addition, the OCC and the Federal Deposit Insurance Corporation have
authority to prohibit banks from engaging in what in their opinion constitutes
an unsafe or unsound practice in conducting their businesses. The payment of
cash dividends could, depending upon the financial condition of the bank
involved, be considered an unsafe or unsound practice.
Legal Matters
An opinion has been delivered by Blank Rome Comisky & McCauley LLP,
Philadelphia, Pennsylvania and Cherry Hill, New Jersey, to the effect that the
shares of common stock offered by Commerce Bancorp, when issued as contemplated
in this prospectus, will be legally issued, fully paid and non-assessable. Jack
R Bershad, a partner in Blank Rome Comisky & McCauley LLP, is a director of
Commerce Bancorp, Commerce Bank, N.A. and Commerce Bank/Pennsylvania. Mr.
Bershad and other partners of Blank Rome Comisky & McCauley LLP are shareholders
of Commerce Bancorp.
Experts
The consolidated financial statements of Commerce Bancorp as of December
31, 1999 and 1998, and for each of the three years in the period ended December
31, 1999, appearing in Commerce Bancorp's Annual Report on Form 10-K for the
year ended December 31, 1999 have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report which accompanied the
financial statements and is incorporated by reference in this prospectus. These
financial statements are incorporated by reference in this prospectus in
reliance upon the report given upon the authority of Ernst & Young LLP as
experts in accounting and auditing.
22
<PAGE>
Where You Can Find More Information
Commerce Bancorp files annual, quarterly and special reports, proxy
statements and other information with the SEC. You may read and copy any
reports, proxy statements and other information Commerce Bancorp files with the
SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington,
D.C. 20549. You may obtain information on the operation of the Public Reference
Room by calling the SEC at 1-800-SEC-0330. Commerce Bancorp's SEC filings are
also available on the SEC's Internet site at http://www.sec.gov.
Commerce Bancorp has filed a registration statement on Form S-3 to register
the shares of Commerce Bancorp common stock offered under this prospectus. This
prospectus is a part of the registration statement on Form S-3 and constitutes a
prospectus of Commerce Bancorp. As allowed by SEC rules, this prospectus does
not contain all the information you can find in the registration statement on
Form S-3 or the exhibits to the registration statement on Form S-3.
The SEC also allows Commerce Bancorp to "incorporate by reference" the
information it files with the SEC, which means Commerce Bancorp can disclose
information to you by referring you to another document filed separately with
the SEC. Information incorporated by reference is deemed to be part of this
prospectus. Later information filed by Commerce Bancorp with the SEC updates and
supersedes this prospectus.
This prospectus incorporates important business and financial information
about Commerce Bancorp that is not included in or delivered with this
prospectus. Copies of any of that information are available without charge to
any person to whom this prospectus is delivered, upon written or oral request.
Written requests for those documents should be directed to Commerce Bancorp
Inc., 1701 Route 70 East, Cherry Hill, New Jersey 08034-5400, Attention: C.
Edward Jordan, Jr. and telephone requests may be directed to the C. Edward
Jordan, Jr. at (856) 751-9000.
The following documents previously filed by Commerce Bancorp with the SEC
pursuant to the Exchange Act are incorporated herein by this reference:
SEC Filings Period
----------- ------
Annual Report on Form 10-K (as amended) Year ended December 31, 1999
All documents filed by Commerce Bancorp pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this prospectus and
prior to the termination of the offering will be deemed to be incorporated by
reference.
23
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
[UPDATE]
The following table shows the estimated expenses of the issuance and
distribution of the securities offered.
SEC Registration Fee........................................ $ 21,318*
Legal fees and expenses..................................... 10,000**
Accounting fees and expenses................................ 5,000**
Transfer agent and registrar fees........................... 1,500**
Printing and Miscellaneous.................................. 2,182**
--------------
TOTAL.................................................. $ 40,000
==============
- - - - - - - ------------------------
* Actual
** Estimated
Item 15. 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 Commerce Bancorp's By-laws provides for indemnification
to the fullest extent permitted by section 14A:3-5. Reference is made to the
By-laws of Commerce Bancorp filed as Exhibit 3.3 hereto.
Item 16. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
- - - - - - - ----------- ------------
<S> <C> <C>
3.1 Restated Certificate of Incorporation of Commerce Bancorp, as amended(1)
3.2 By-laws of Commerce Bancorp(2)
4.1 Form of Commerce Bancorp common stock certificate(3)
5.1 Opinion of Blank Rome Comisky & McCauley LLP relating to the legality of the
securities to be issued.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Blank Rome Comisky & McCauley LLP (included in Exhibit 5.1
hereto)
24.1 Powers of Attorney (included in signature pages hereto)
</TABLE>
II-1
<PAGE>
- - - - - - - ----------------------
(1) Incorporated by reference from the Commerce Bancorp's Registration
Statement on Form S-2 and Amendments Nos. 1 and 2 thereto (Registration
No. 33-62702).
(2) Incorporated by reference from the Company's Registration Statement on
Form S-4 (Registration No. 333-10771).
(3) Incorporated by reference from the Company's Registration Statement on
Form S-2 and Amendments No. 2 thereto (Registration No. 33-46972).
Item 17. 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;
(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 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 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
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this 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 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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is
II-2
<PAGE>
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.
(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 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 Securities
Act and will be governed by the final adjudication of such issue.
II-3
<PAGE>
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-3 to be signed on its behalf by the undersigned, thereunto duly
authorized, in Cherry Hill, New Jersey, on this 10th day of May 2000.
COMMERCE BANCORP, INC.
/s/ VERNON W. HILL, II
By: -----------------------------------
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 May 10, 2000 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 of 1933, this
Registration Statement has been signed 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, May 10, 2000
- - - - - - - --------------------------- President and Director
VERNON W. HILL, II (Principal Executive Officer)
/s/ C. EDWARD JORDAN, JR. Executive Vice President and May 10, 2000
- - - - - - - --------------------------- Director
C. EDWARD JORDAN, JR.
/s/ ROBERT C. BECK Secretary and Director May 10, 2000
- - - - - - - ---------------------------
ROBERT C. BECK
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ DAVID BAIRD, IV Director May 10, 2000
- - - - - - - ---------------------------
DAVID BAIRD, IV
/s/ JACK R BERSHAD Director May 10, 2000
- - - - - - - ---------------------------
JACK R BERSHAD
/s/ MORTON N. KERR Director May 10, 2000
- - - - - - - ---------------------------
MORTON N. KERR
/s/ STEVEN M. LEWIS Director May 10, 2000
- - - - - - - ---------------------------
STEVEN M. LEWIS
/s/ DANIEL J. RAGONE Director May 10, 2000
- - - - - - - ---------------------------
DANIEL J. RAGONE
/s/ WILLIAM A. SCHWARTZ, JR. Director May 10, 2000
- - - - - - - ---------------------------
WILLIAM A. SCHWARTZ, JR.
/s/ JOSEPH T. TARQUINI, JR. Director May 10, 2000
- - - - - - - ---------------------------
JOSEPH T. TARQUINI, JR.
/s/ JOSEPH BUCKELEW Director May 10, 2000
- - - - - - - ---------------------------
JOSEPH BUCKELEW
/s/ FRANK C. VIDEON, SR. Director May 10, 2000
- - - - - - - ---------------------------
FRANK C. VIDEON, SR.
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ THOMAS J. SUKAY. Principal Financial and May 10, 2000
- - - - - - - --------------------------- Accounting Officer
THOMAS J. SUKAY
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- - - - - - - ----------- -----------
5.1 Opinion of Blank Rome Comisky & McCauley LLP relating to
the legality of the
securities to be issued.
23.1 Consent of Ernst & Young LLP
<PAGE>
EXHIBIT 5.1
(215) 569-5500
(215) 569-5555
May 10, 2000
Commerce Bancorp, Inc.
Commerce Atrium
1701 Route 70 East
Cherry Hill, New Jersey 08034-5400
Re: Commerce Bancorp, Inc.
Registration Statement on Form S-3
----------------------------------
Gentlemen:
We have acted as counsel to Commerce Bancorp, Inc. (the "Company") in
connection with the Registration Statement on Form S-3 (the "Registration
Statement") to be 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 by the Company of up to 2,000,000 shares of common stock, par
value $1.5625 per share (the "Common Stock"). This opinion is being furnished
pursuant to the requirements of Item 601(b)(5) of Regulation S-K.
In rendering this opinion, we have examined only the documents listed
on Exhibit "A" attached hereto. 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, when sold in the manner and for
the consideration contemplated by the Registration Statement, will be legally
issued, fully paid and non-assessable.
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.
Sincerely,
/s/ Blank Rome Comisky & McCauley LLP
-------------------------------------
BLANK ROME COMISKY & MCCAULEY LLP
<PAGE>
Exhibit "A"
1. The Company's Certificate of Incorporation and all amendments thereto.
2. The Company's By-Laws, as amended.
3. Resolutions adopted by the Board of Directors of the Company at a meeting
held on April 18, 2000.
4. Registration Statement on Form S-3 to be filed with the Securities and
Exchange Commission relating to the offer and sale by the Company of up to
2,000,000 shares of Common Stock.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 (No. 333 xxxx) and related Prospectus of
Commerce Bancorp, Inc. for the registration of 2,000,000 shares of its common
stock and to the incorporation by reference therein 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.
Ernst & Young LLP
Philadelphia, Pennsylvania
May 10, 2000
