As filed
with the Securities and Exchange Commission on December 4, 2008
Registration
No. 333-________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_____________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
____________
PENNSYLVANIA COMMERCE
BANCORP, INC.
(Exact
name of issuer as specified in its charter)
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Pennsylvania
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25-1834776
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(State
or other jurisdiction of
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
No.)
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3801 Paxton Street, PO Box 4999, Harrisburg,
PA
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17111-0999
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(Address
of Principal Executive Offices)
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(Zip
Code)
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PENNSYLVANIA COMMERCE
BANCORP, INC
.
2006 Employee Stock Option
Plan
(Full
title of the Plan)
MARK A.
ZODY, CHIEF FINANCIAL OFFICER
PENNSYLVANIA
COMMERCE BANCORP, INC.
3801
Paxton Street
PO Box
4999
Harrisburg,
Pennsylvania 17111
(Name and
address of agent for service)
(800)
653-6104
(Telephone
number, including area code, of agent for service)
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer
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Accelerated
filer
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X
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Non-accelerated
filer
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Smaller
Reporting Company
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Copies
to:
Mary
Alice Busby, Esquire
Mette,
Evans & Woodside
1105
Berkshire Boulevard, Suite 320
Wyomissing,
PA 19610
(610)
374-1135
CALCULATION
OF REGISTRATION FEE
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Proposed
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Proposed
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Title
of
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Amount
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maximum
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maximum
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Amount
of
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securities
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to
be
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offering
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aggregate
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registration
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to
be
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registered
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price
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offering
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fee
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registered
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(1)
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per
share(2)
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price
(2)
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Common
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500,000
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$
26.89
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$13,445,000
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$528.39
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Stock
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shares
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($1.00
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par
value)
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(1)
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In
accordance with Rule 416 (c), this Registration Statement shall also
register any additional shares of the Registrant's common stock which may
become issuable to prevent dilution resulting from stock splits, stock
dividends or similar transactions, as provided by the
Plan.
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(2)
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Shares
are being registered for stock options granted pursuant to the
Pennsylvania Commerce Bancorp, Inc. 2006 Employee Stock Option
Plan. The offering (exercise) price per share has been computed
pursuant to Rule 457 (c) and (h)(1) based on the average of the high and
low prices of the common stock of the Registrant on the Nasdaq Stock
Market on November 28, 2008.
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PART
I
INFORMATION
REQUIRED IN SECTION 10(A) PROSPECTUS
Information
required by Part I to be contained in the Section 10(a) prospectus is
omitted from the Registration Statement in accordance with Rule 428 under
the Securities Act and the Note to Part I of Form S-8.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
Incorporation of Documents
by Reference
.
The
following documents are incorporated by reference in this Registration
Statement:
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(a)
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The
Company’s Annual Report on Form 10-K for the year ended December 31,
2007.
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(b)
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The
Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31,
2008, June 30, 2008, and September 30,
2008.
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(c)
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The
Company’s Current Reports on Form 8-K filed with the SEC on January 22,
2008; February 8, 2008; February 28, 2008; April 16, 2008; July 15, 2008;
October 15, 2008; November 6, 2008; November 7, 2008; November 10, 2008;
and November 13, 2008.
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(d)
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All
other reports filed by the Company pursuant to sections 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since December 31, 2007.
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(e)
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The
description of the Company’s common stock contained in the Company’s
Registration Statement on Form 8-A dated September 23, 2004 and filed
September 28, 2004, and any amendment or report filed for the purpose of
updating such description, filed pursuant to the Exchange
Act.
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All
documents subsequently filed by the Company pursuant to sections 13(a), 13(c),
14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed incorporated
by reference in this Registration Statement and to be a part hereof from the
date of filing of such documents.
Item
4.
Description of
Securities
.
Not
Applicable.
Item
5.
Interests of Named Experts
and Counsel
.
Certain
legal matters in connection with the Plan have been passed upon for the Company
by the law firm of Mette, Evans & Woodside. As of November 24,
2008, Mette, Evans & Woodside and its attorneys beneficially owned (pursuant
to Rule 13d-3 of the Exchange Act) an aggregate of approximately
211,700
shares of the Company’s common stock. Howell C. Mette, a shareholder
and employee of Mette, Evans & Woodside, is a director of the
Company.
Item
6.
Indemnification of Directors
and Officers
.
Pennsylvania
law provides that a Pennsylvania corporation may indemnify directors, officers,
employees, and agents of the corporation against liabilities they may incur in
such capacities for any action taken or any failure to act, whether or not the
corporation would have the power to indemnify the person under any provision of
law, unless such action or failure to act is determined by a court to have
constituted recklessness or willful misconduct. Pennsylvania law also
permits the adoption of a bylaw amendment, with the approval of a corporation's
shareholders, providing for the elimination of a director's liability for
monetary damages for any action taken or any failure to act unless (1) the
director has breached or failed to perform the duties of his office and (2) the
breach or failure to perform constitutes self-dealing, willful misconduct or
recklessness.
The
Company’s articles of incorporation and bylaws have provisions providing for (1)
indemnification of directors, officers and employees of the Company and (2) the
elimination of a director's liability for monetary damages, each to the full
extent permitted by Pennsylvania law.
The
Company’s bylaws also provide for the creation of a fund to secure or insure the
Company’s indemnification obligations under the articles of incorporation and
bylaws. The Company’s directors’ and officers’ liability insurance
policy covers typical errors and omissions liability associated with the
activities of the Company. The provisions of the insurance policy
would probably not indemnify the directors and officers against liability
arising under the Securities Act of 1933, as amended.
Item
7.
Exemption from Registration
Claimed
.
Not
applicable.
Item
8.
Exhibits
.
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3.1
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Amended
and Restated Articles of Incorporation of Pennsylvania Commerce Bancorp,
Inc. (incorporated by reference to Exhibit 3(i) to the Company’s Current
Report on Form 8-K, filed with the SEC on December 20,
2007).
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3.2
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Amended
and Restated Bylaws of Pennsylvania Commerce Bancorp, Inc. (incorporated
by reference to Exhibit 3(ii) to the Company's Current Report on Form 8-K,
filed with the SEC on December 20,
2007).
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5
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Opinion
re: Legality and Consent of Mette, Evans and Woodside, special counsel to
the Company.
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10.1
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Pennsylvania
Commerce Bancorp, Inc. 2006 Employee Stock Option Plan, as
amended.
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23.1
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Consent
of Beard Miller Company LLP.
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23.2
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Consent
of Mette, Evans and Woodside, special counsel to the Company (included in
Exhibit 5).
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24
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Powers
of Attorney (included on signature
page).
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Item
9.
Undertakings
.
(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933, unless the information required to be included in such post-effective
amendment is contained in a periodic report filed by the Registrant pursuant to
section 13 or 15(d) of the Securities Exchange Act of 1934 that is incorporated
herein by reference;
(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, unless the
information required to be included in such post-effective amendment is
contained in a periodic report filed by the Registrant pursuant to section 13 or
15(d) of the Securities Exchange Act of 1934 that is incorporated herein by
reference;
(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.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(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 Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions
described
in Item 6 above, 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 Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liability (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Harrisburg, Commonwealth of Pennsylvania, on this 4
th
day of
December 2008.
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PENNSYLVANIA
COMMERCE BANCORP, INC.
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(Registrant)
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By
/s/ Mark. A.
Zody
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Mark
A. Zody
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Chief
Financial Officer and
Treasurer
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Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed below by the following persons in the capacities and on the
dates indicated.
KNOW ALL
MEN BY THESE PRESENTS, that each Director whose signature appears below
constitutes and appoints Gary L. Nalbandian and Mark A. Zody and each of them,
his true and lawful attorney-in-fact, as agent with full power of substitution
and resubstitution for him and in his name, place and stead, in any and all
capacity, to sign any or all amendments to this Registration Statement and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto such
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as they might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
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Signature
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Title
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/s/
Gary L. Nalbandian
Gary
L. Nalbandian
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Chairman
of the Board, President and Director
(Principal
Executive Officer)
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December
4, 2008
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/s/
Mark A. Zody
Mark
A. Zody
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Chief
Financial Officer and Treasurer
(Principal
Financial Officer and
Principal
Accounting Officer)
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December
4, 2008
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/s/
James R. Adair
James
R. Adair
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Director
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December
4, 2008
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/s/
John J. Cardello
John
J. Cardello
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Director
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December
4, 2008
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/s/
Jay W. Cleveland, Jr.
Jay
W. Cleveland, Jr.
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Director
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December
4, 2008
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/s/
Douglas S. Gelder
Douglas
S. Gelder
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Director
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December
4, 2008
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/s/
Alan R. Hassman
Alan
R. Hassman
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Director
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December
4, 2008
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/s/
Howell C. Mette
Howell
C. Mette
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Director
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December
4, 2008
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/s/
Michael A. Serluco
Michael
A. Serluco
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Director
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December
4, 2008
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/s/
Samir J. Srouji
Samir
J. Srouji, M.D.
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Director
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December
4, 2008
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EXHIBIT
INDEX
Exhibit
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3.1
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Amended
and Restated Articles of Incorporation of Pennsylvania Commerce Bancorp,
Inc. (incorporated by reference to Exhibit 3(i) to the Company’s Current
Report on Form 8-K, filed with the SEC on December 20,
2007).
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3.2
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Amended
and Restated Bylaws of Pennsylvania Commerce Bancorp, Inc. (incorporated
by reference to Exhibit 3(ii) to the Company's Current Report on Form 8-K,
filed with the SEC on December 20, 2007).
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5
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23.1
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23.2
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Consent
of Mette, Evans and Woodside, special counsel to the Company (included in
Exhibit 5).
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24
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Powers
of Attorney (included on signature
page).
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10
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