Phone: (215) 569-5549
Fax: (215) 832-5549
Email: wiseman@blankrome.com
October 13, 2004
VIA EDGAR AND FEDERAL EXPRESS
U.S. Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Attention: Mr. Barry McCarty, Senior Counsel
Re: Pennsylvania Commerce Bancorp, Inc. (the "Company")
Amendment No. 2 to Registration Statement on Form S-1
File No. 333-118236
Dear Mr. McCarty:
On behalf of the Company, please find the Company's response to the
comment letter of the staff (the "Staff") of the SEC dated October 8, 2004 (the
"Comment Letter") to Amendment No. 1 to the Company's Registration Statement on
Form S-1 filed on October 1, 2004 (File No. 333-118236) ("Amendment No. 1"). We
are submitting this response to the Staff on behalf of the Company at the same
time the Company is filing Amendment No. 2 to the Company's Registration
Statement on Form S-1 ("Amendment No. 2").
Via federal express, we are providing you with a clean copy of
Amendment No. 2 and a copy of Amendment No. 2 that has been marked against
Amendment No. 1 to show the changes from Amendment No. 1 as originally filed. We
have numbered the responses contained herein to correspond to the comments
contained in the Comment Letter. Please note that page references cited in this
letter, other than those cited in your comments, are to the page numbers of the
enclosed blacklined document.
Form S-1
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Summary
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Our Strategy
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1. COMMENT: Revise the first bullet to disclose if the company is
committed to adding 2-6 new branches in each of the next 5 years as
well as constructing a new headquarters to open in 2005 and, if so,
indicate that commitment herein and in the MD&A capital resources
section and, the expected source of the funds to pay for new branches
as well as the headquarters. See Item 303(b) of Regulation S-K. Noting
the expected opening in 2005 of the headquarters, advise the staff if
any expenditure for this project have occurred through June 30, 2004
and, if so, advise as to the amount.
ANSWER: The Company has revised the disclosure on pages 3, 18, 33 and
55 to address this comment. Supplementally, the Company advises the
Staff that through June 30, 2004, the Company paid $25,000 as a down
payment for the purchase of the land for the headquarters and
approximately $39,000 for design and architectural services for the
headquarters.
U.S. Securities and Exchange Commission
October 13, 2004
Page 2
Risk Factors
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General
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2. COMMENT: Revise to add a risk factor with a caption such as "Investors
will suffer immediate and substantial dilution" and disclose therein
the significant dilution in book value per share as well as the
percentage dilution.
ANSWER: The Company has added a risk factor on page 12 to address this
comment.
3. COMMENT: Revise to add additional disclosure in the first risk factor
regarding the costs associated with the new store openings, the
headquarters construction and the source of the funds for these items.
ANSWER: The Company has revised the risk factor on page 8 to address
this comment.
Loans Held for Sale
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4. COMMENT: We note your revision to our prior comment no. 15. As
previously requested, please disclose how and when you determine which
loans are participated with Commerce and other financial institutions.
You state in your response letter that this takes place when the amount
of a loan exceeds the Company's board's comfort level or due to legal
lending limits, however, this is not disclosed anywhere in your amended
document. Please revise.
ANSWER: Loan participations are not included in Loans Held for Sale
since participations are settled on the same day that the original loan
settles. The Company has revised the disclosure on page 40 to address
this comment.
Loan Portfolio
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5. COMMENT: We note your revision to our prior comment no. 19. in which we
asked for a discussion of loan origination policies and procedures for
each major loan type. Your revision was general in nature and only
referred to consumer loans. Please revise to include a more robust
discussion of the particular origination policies and procedures for
each loan component.
ANSWER: The Company has revised the disclosure on pages 41-42 to
address this comment.
Other
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6. COMMENT: Please note the updating requirements in Article 3-12 of
Regulation S-X.
ANSWER: The Company notes the updating requirements in Article 3-12 of
Regulation S-X.
7. COMMENT: Please include an updated consent of the independent
accountants in your next amendment.
ANSWER: An updated consent of the independent accountants has been
filed as an exhibit to Amendment No. 2.
U.S. Securities and Exchange Commission
October 13, 2004
Page 3
Underwriting
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8. COMMENT: Confirm to the staff that the pricing amendment (Rule 424
filing) will disclose the actual number of shares sold by the
underwriters, including those shares sold short.
ANSWER: In its Rule 424 filing, the Company will disclose how many
shares were purchased by the underwriters from the Company and will (as
it does presently) note the over-allotment option.
Part II
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Recent Sales
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9. COMMENT: Noting the private placement during the pendancy of the
Registration Statement, which indicates Section 4(2) was relied upon,
and noting that general solicitation commences upon the filing of the
Registration Statement, supplementally provide the staff with a legal
analysis as to the authority for the offering. See the Black Box and
Squadron, Ellenoff No-Action letters.
ANSWER: On August 13, 2004, the Company filed its Registration
Statement on Form S-1 related to the offer and sale of shares of its
common stock (the "Registration Statement"). On September 29, 2004, the
Company issued and sold a total of 100,000 shares of its common stock
to Commerce Bancorp, Inc. in a private placement transaction (the
"Private Placement").
Private Placement Analysis
The Company believes, and we concur, that the Private
Placement was a bona fide private placement. Section 4(2) of the
Securities Act provides that transactions by an issuer not involving
any public offering are exempted from the Securities Act's registration
requirements. In the Private Placement, the Company sold shares of its
common stock to one institutional accredited investor, Commerce
Bancorp, Inc., which had adequate information about the Company and had
a significant pre-existing business and investing relationship with the
Company1. We also note that (1) the Company had and has not distributed
the preliminary prospectus contained in its August filing to any
potential investors, whether potential private investors or potential
investors in the public offering, and (2) the Company had and has not
conducted any "road show" meetings with potential investors. In
addition, Commerce Bancorp, Inc., made representations and warranties
in the Stock Purchase Agreement, upon which the Company relied in
concluding that the Private Placement was a valid
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1 The Company has been a part of the Commerce Bancorp, Inc. network since 1985.
As more fully described on pages 52-53, of Amendment No. 2, pursuant to a
Network Agreement with Commerce Bancorp, Inc., the Company utilizes Commerce
Bancorp, Inc.'s unique retail business model and is provided various services.
In addition, as of June 30, 2004, Commerce Bancorp, Inc. owned 7.90% of the
Company's common stock, 100% of the Company's Series A preferred stock, warrants
that entitle Commerce Bancorp, Inc. to purchase 143,666 (as adjusted for common
stock dividends) shares of the Company's common stock in the event of a "change
of control" of the Company and 100% of the Company's trust capital securities.
U.S. Securities and Exchange Commission
October 13, 2004
Page 4
private placement under Section 4(2) of the Securities Act. These
representations and warranties may be summarized as follows:
o that it was an "accredited investor" as defined in Rule 501(a)(3)
under the Securities Act;
o its intention was to acquire the securities for investment only
and not with a view to or for sale in connection with any
distribution thereof;
o it had adequate access to information about the Company and
acquired sufficient information about the Company to reach an
informed decision to purchase the shares;
o it had such business and financial experience as is required to
give it the capacity to protect its own interests in connection
with the purchase of the shares; and
o it determined to purchase the shares solely as a result of
private discussions with the Company and was only offered the
shares through these private discussions.
Integration Analysis
In consummating the Private Placement, the Company relied on
the position of the Securities and Exchange Commission with respect to
integration of private and public offerings expressed in the Black Box
Incorporated (available June 26, 1990) and Squadron, Ellenoff, Pleasant
& Leher (available February 29, 1992) no-action letters. In Black Box
and Squadron, Ellenoff, the Securities and Exchange Commission carved
out on policy grounds a limited exception to the integration doctrine
for a private offering during the pendency of a registration statement
to "qualified institutional buyers" and a few other institutional
accredited investors. In the Squadron, Ellenoff letter the staff
indicated that this exception is to be limited to qualified
institutional buyers and no more than two or three large institutional
accredited investors. Because the Private Placement was made only to
Commerce Bancorp, Inc., an institutional accredited investor with a
significant prior relationship with the Company, the Company believes,
and we concur in this view, that the Private Placement is consistent
with the policy expressed by the Securities and Exchange Commission in
the Black Box and Squadron, Ellenoff no-action letters and that it
should not be integrated with the public offering.
U.S. Securities and Exchange Commission
October 13, 2004
Page 5
Closing Comments
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If any member of the Staff has any questions, please do not hesitate to
contact the undersigned at 215-569-5549 or Melissa Palat Murawsky, Esquire at
215-569-5732.
Very truly yours,
/s/ Lawrence R. Wiseman
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LAWRENCE R. WISEMAN
cc: Michael Clampitt, Esq.
John Spitz
John Nolan
Gary L. Nalbandian
Stuart G. Stein, Esq.
Mark A. Zody
Melissa Palat Murawsky, Esq.