As filed with the Securities and Exchange Commission on November 23, 2004
Registration No.
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
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
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(State or other jurisdiction of incorporation or (I.R.S. Employer
organization) Identification No.)
Commerce Atrium, 1701 Route 70 East, Cherry
Hill, New Jersey 08034
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(Address of Principal Executive Offices) (Zip Code)
Commerce Bancorp, Inc.
2004 Employee Stock Option Plan
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(Full title of plan)
Douglas J. Pauls
Senior Vice President and Chief Financial Officer
Commerce Bancorp, Inc.
1701 Route 70 East, Cherry Hill, NJ 08034
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(Name and address of agent for service)
856-751-9000
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(Telephone number, including area code,
of agent for service)
Copies of communications to:
Lawrence R. Wiseman, Esquire
Melissa Palat Murawsky, Esquire
Blank Rome LLP
One Logan Square
Philadelphia, PA 19103
(215) 569-5500
Facsimile (215) 569-5555
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum Amount of
Title of securities Amount to be offering price aggregate registration
to be registered registered (1) per share offering price fee
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Common Stock, par value $1.00 per share. 15,000,000 $ 59.45 (2) 891,750,000 (2) $ 112,985 (2)
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(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of shares as may
be issued pursuant to stock splits, stock dividends and certain
anti-dilution provisions contained in the Plan.
(2) Pursuant to Rule 457(h), based upon the average of the high and low sale
prices of Commerce's common stock, reported on the New York Stock Exchange
on November 22, 2004.
PART I
Information Required in the Section 10(a) Prospectus
The documents containing the information specified in Part I of Form
S-8 will be sent or given to participants in the Commerce Bancorp, Inc. 2004
Employee Stock Option Plan, referred to as the Plan, as specified by Rule
428(b)(1) promulgated by the SEC under the Securities Act.
These documents are not being filed with the SEC, but constitute (along
with the documents incorporated by reference into this registration statement
pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
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PART II
Information Required In The Registration Statement
Item 3. Incorporation of Certain Documents by Reference.
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Commerce hereby incorporates by reference in this registration
statement the following documents:
(a) Commerce's Annual Report on Form 10-K for the fiscal year
ended December 31, 2003;
(b) Commerce's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2004;
(c) Commerce's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2004;
(d) Commerce's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2004;
(e) Commerce's Current Reports on Form 8-K filed with the SEC
under former item 5, item 5.02 or item 8.01 on March 3, 2004,
June 2, 2004, June 29, 2004, July 9, 2004, July 13, 2004,
September 8, 2004, October 21, 2004 and November 17, 2004; and
(f) The description of Commerce's common stock, which is
incorporated by reference from Commerce's Form 8-K filed with
the SEC on November 17, 2004.
All documents subsequently filed by Commerce with the SEC pursuant to
Sections 13(a), 13(c), 14 and 15(d) (other than current reports furnished under
items 2.02 or 7.01 of Form 8-K (formerly items 9 or 12 of Form 8-K)) of the
Securities Exchange Act of 1934, after the date of this registration statement,
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold hereunder, shall be deemed incorporated by reference into
this registration statement and to be a part hereof from the date of the filing
of these documents.
Item 4. Description of Securities.
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Not Applicable.
Item 5. Interests of Named Experts and Counsel.
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Not Applicable.
Item 6. Indemnification of Directors and Officers.
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Section 14A:3-5 of the New Jersey Business Corporation Act provides, in
substance, that New Jersey corporations shall have the power, under specified
circumstances, to indemnify their directors, officers, employees, and agents in
connection with actions, suits or proceedings brought against them or in the
right of the corporation, by reason of the fact that they were or are such
directors, officers, employees or agents, against expenses incurred in any such
action, suit or proceeding.
Article VI of Commerce's By-laws provides for indemnification of any of
its directors or officers to the fullest extent permitted by the New Jersey
Business Corporation Act.
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Item 7. Exemption from Registration Claimed.
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Not Applicable.
Item 8. Exhibits.
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The following exhibits are filed as part of this registration statement
or, where so indicated have been previously filed and are incorporated herein by
reference:
Exhibit Number Description
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5.1 Opinion of Blank Rome LLP
23.1 Consent of Ernst & Young LLP, Independent Registered
Public Accounting Firm
23.2 Consent of Blank Rome LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
Item 9. Undertakings.
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(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:
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference 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
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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
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 of 1933 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 of 1933 and will be governed by
the final adjudication of such issue.
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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 Cherry Hill, New Jersey, on November 23, 2004.
COMMERCE BANCORP, INC.
By: /s/ Vernon W. Hill, II
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Vernon W. Hill, II
Chairman of the Board, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Vernon W. Hill, II and Douglas J.
Pauls, and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the same,
with all exhibits thereto, and other documentation in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to enable Commerce Bancorp, Inc. to comply with the
provisions of the Securities Act of 1933 and all requirements of the Securities
and Exchange Commission, as fully to all intents and purposes as he might or
could do in person, hereby ratifying all that said attorneys-in-fact and agents,
or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on November 23,
2004, in the capacities indicated:
Signatures Title
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/s/ Vernon W. Hill, II Chairman of the Board and President
------------------------------------------- (principal executive officer)
Vernon W. Hill, II
Senior Vice President and Chief Financial Officer
/s/ Douglas J. Pauls (principal financial and accounting officer)
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Douglas J. Pauls
/s/ Robert C. Beck Director
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Robert C. Beck
/s/ Jack R Bershad Director
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Jack R Bershad
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Signatures Title
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/s/ Joseph E. Buckelew Director
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Joseph E. Buckelew
/s/ Donald T. DiFrancesco Director
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Donald T. DiFrancesco
/s/ John Lloyd Director
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John Lloyd
/s/ Morton N. Kerr Director
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Morton N. Kerr
/s/ Steven M. Lewis Director
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Steven M. Lewis
/s/ George E. Norcross, III Director
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George E. Norcross, III
Director
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Joseph J. Plumeri, II
/s/ Daniel J. Ragone Director
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Daniel J. Ragone
/s/ William A. Schwartz, Jr. Director
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William A. Schwartz, Jr.
/s/ Joseph T. Tarquini, Jr. Director
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Joseph T. Tarquini, Jr.
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EXHIBIT INDEX
5.1 Opinion of Blank Rome LLP
23.1 Consent of Ernst & Young LLP, Independent Registered Public
Accounting Firm
23.2 Consent of Blank Rome LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)