UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) November 17, 2004
Commerce Bancorp, Inc.
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(Exact Name of Registrant as Specified in Its Charter)
New Jersey 1-12069 22-2433468
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(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification No.)
incorporation)
Commerce Atrium, 1701 Route 70 East, Cherry Hill, NJ 08034
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (856) 751-9000
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Not Applicable
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(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
|_| Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Introductory Note
Commerce Bancorp, Inc. ("Commerce") is filing this report on Form 8-K
to update the description of its common stock contained in its registration
statement on Form 8-A filed with the Securities and Exchange Commission on
August 15, 1996.
Item 8.01. Other Events
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DESCRIPTION OF COMMON STOCK
The following statements are summaries of certain provisions of
Commerce's restated certificate of incorporation and are qualified in their
entirety by reference to the complete text of Commerce's restated certificate of
incorporation.
Authorized Capital
The authorized capital stock of Commerce consists of 500,000,000
shares of common stock, par value $1.00 per share, and 10,000,000 shares of
preferred stock, no par value.
Under Commerce's restated certificate of incorporation, the Commerce
board of directors is authorized, without further shareholder action, to provide
for the issuance of preferred stock in one or more series, with such
designations, number of shares, relative rights, preferences and limitations as
shall be set forth in resolutions providing for the issuance thereof adopted by
the Commerce board of directors. As of September 30, 2004, no shares of Commerce
preferred stock were outstanding.
Description of Common Stock
As of November 1, 2004, there were 79,334,532 shares of Commerce
common stock outstanding held by approximately 58,000 shareholders of record.
The rights, preferences and privileges of holders of Commerce 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 may designate
and issue in the future.
Voting Rights. Holders of Commerce common stock are entitled to one
vote for each share held on all matters submitted to a vote of shareholders and
do not have cumulative voting rights. Holders of a majority of the shares of
common stock entitled to vote in any election of directors may elect all of the
directors standing for election.
Dividends. Holders of Commerce common stock are entitled to receive
ratably dividends, if any, as may be declared by the Commerce board of directors
out of legally available funds, subject to any preferential dividend rights of
outstanding preferred stock.
Liquidation. Upon the liquidation, dissolution or winding up of
Commerce, the holders of Commerce common stock are entitled to receive ratably
the net assets of Commerce available after the payment of all debts and other
liabilities and subject to the prior rights of any outstanding preferred stock.
Preemptive Rights. Holders of Commerce common stock have no
preemptive, subscription, redemption or conversion rights.
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"Anti-Takeover" Provisions
Commerce's restated certificate of incorporation requires the
affirmative vote of the holders of at least 80% of the outstanding capital stock
of Commerce 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 with or into any other
corporation; or
o any sale, lease, exchange or other disposition of all of the
assets of Commerce to or with any other corporation, person or
other entity.
The 80% voting requirement would not, however, apply to any
transaction approved by Commerce's board of directors prior to the consummation
of the transaction.
Commerce's restated certificate of incorporation also provides for
the issuance of up to 10,000,000 shares of preferred stock; the rights,
preferences and limitations of which may be determined by the board of directors
of Commerce. Issuance of Commerce 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's
outstanding voting stock. The authority of Commerce's board of directors to
issue Commerce preferred stock with rights and privileges, including voting
rights, as it may deem appropriate, may enable Commerce's board of directors to
prevent a change of control despite a shift in ownership of Commerce common
stock. In addition, Commerce's board of directors' authority to issue additional
shares of Commerce 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's restated certificate of incorporation
relating to the 80% voting requirements and issuance of Commerce 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 will be required to act through arms-length negotiation
with respect to such major transactions, such as a merger, consolidation or
purchase of substantially all of the assets of Commerce. These provisions may
also have the effect of discouraging tender offers or other stock acquisitions,
giving management of Commerce the power to reject certain transactions which
might be desired by the owners of a majority of Commerce's voting securities.
These provisions could also be deemed to benefit incumbent management to the
extent they deter such offers by persons who would wish to make changes in
management or exercise control over management. Commerce's board of directors
does not presently know of a third party that plans to make an offer to acquire
Commerce through a tender proposal offer, merger or purchase of substantially
all the assets of Commerce.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
COMMERCE BANCORP, INC.
Date: November 17, 2004 By: /s/ Douglas J. Pauls
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Name: Douglas J. Pauls
Title: Senior Vice President and Chief
Financial Officer
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