As
filed with the Securities and Exchange Commission on April 22,
2009
Registration
No. 333-157189
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
AMENDMENT NO.
1
TO
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CENTER
BANCORP, INC.
(Exact
name of registrant as specified in its charter)
New
Jersey
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52-1273725
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(State
of incorporation)
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(I.R.S.
Employer Identification No.)
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2455
Morris Avenue
Union,
New Jersey 07083
(800)
862-3683
(Address,
including zip code, and telephone number, including area code,
of
registrant's principal executive offices)
Anthony
C. Weagley
President
and Chief Executive Officer
Center
Bancorp, Inc.
2455
Morris Avenue
Union,
New Jersey 07083
(800)
862-3683
(Name,
address including zip code, and telephone number,
including
area code, of agent for service)
Copies
to:
Peter
H. Ehrenberg, Esq.
Lowenstein
Sandler PC
65
Livingston Avenue
Roseland,
New Jersey 07068
Approximate
date of commencement of proposed sale to the public:
From time
to time after the effective date of the registration statement.
If the
only securities being registered on this Form are to be offered pursuant to
dividend or interest reinvestment plans, please check the following
box. o
If any of
the securities being 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. x
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. o
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. o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a small reporting
company. See the definition of “large accelerated filer,”
“accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
Large
accelerated filer o
|
Accelerated
filer x
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Non-accelerated
filer o (Do not check if a smaller
reporting company)
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Smaller
Reporting Company o
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CALCULATION
OF REGISTRATION FEE
TITLE
OF EACH CLASS OF SECURITIES
TO
BE REGISTERED
|
AMOUNT
TO BE REGISTERED
|
PROPOSED
MAXIMUM OFFERING PRICE PER SHARE
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PROPOSED
MAXIMUM AGGREGATE OFFERING PRICE
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AMOUNT
OF REGISTRATION FEE
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Fixed
Rate Cumulative Perpetual Preferred Stock, Series A, no par
value
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10,000
shares
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$1,000.00
(1)
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$10,000,000.00
(1)
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$393.00
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Warrant
to Purchase Common Stock, and
Underlying
Shares of Common Stock, no par value
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173,410
shares (2)
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$8.65
(3)
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$1,499,997.00
(3)
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$59.00
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Total: |
|
|
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$452.00 (4) |
(1)
Calculated in accordance with Rule 457(a).
(2) In
addition to the Fixed Rate Cumulative Perpetual Preferred Stock, Series A, there
are being registered hereunder (a) a warrant for the purchase of 173,410 shares
of common stock with an initial per share exercise price of $8.65 per share, (b)
the 173,410 shares of common stock issuable upon exercise of such warrant, and
(c) such additional number of shares of common stock, of an indeterminable
number, which may be necessary to adjust the number of shares as a result of a
stock split, stock dividend or similar adjustment of the outstanding common
stock of the Registrant.
(3)
Calculated in accordance with rule 457(i) with respect to the per share exercise
price of the warrant of $8.65.
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 the registration statement shall become
effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
PROSPECTUS
CENTER
BANCORP, INC.
10,000
Shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series A, No Par
Value
Liquidation
Preference Amount $1,000 Per Share
Warrant
to Purchase 173,410 Shares of Common Stock, No Par Value
This prospectus relates to the
potential resale from time to time by selling securityholders of some or all of
the 10,000 shares of our Fixed Rate Cumulative Perpetual Preferred Stock, Series
A (the “Series A Preferred Shares”), a warrant to purchase 173,410 shares of our
common stock (the “Warrant”) and any shares of common stock issuable from time
to time upon exercise of the Warrant. In this prospectus, we refer to
the Series A Preferred Shares, the Warrant and the shares of our common stock
issuable upon exercise of the Warrant, collectively, as the
“securities.” The Series A Preferred Shares and the Warrant were
originally issued by us pursuant to that certain Letter Agreement dated January
9, 2009 (the “Letter Agreement”) and the related Securities Purchase
Agreement - Standard Terms attached thereto (the “Securities Purchase
Agreement”) between us and the U.S. Department of the Treasury’s (the “Treasury”
or the “selling securityholder”) Troubled Asset Relief Program (“TARP”) Capital
Purchase Program. The selling securityholder acquired the securities directly
from us in a private placement that was exempt from the registration
requirements of federal and state securities laws.
The
initial selling securityholder and its successors, including transferees, which
we sometimes collectively refer to as the “selling securityholders,” may offer
the securities from time to time directly or through underwriters,
broker-dealers or agents and in one or more public or private transactions and
at fixed prices, prevailing market prices, at prices related to prevailing
market prices or at negotiated prices. If these securities are sold through
underwriters, broker-dealers or agents, the selling securityholders will be
responsible for underwriting discounts or commissions or agents’
commissions.
We
will not receive any of the proceeds from the sale of these securities by the
selling securityholders.
Our common stock is quoted on the
Nasdaq Global Select Market System under the symbol “CNBC.” On
April 21, 2009, the last reported sale price of
our common stock on the Nasdaq Global Select Market System was $7.26 per
share.
Investing in our securities involves
risk. You should carefully review the information contained in this prospectus
under the heading “RISK FACTORS” beginning on page 4 of this
prospectus.
NEITHER THE SECURITIES AND EXCHANGE
COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF
THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR
COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
THESE SECURITIES ARE NOT SAVINGS OR
DEPOSIT ACCOUNTS OR OBLIGATIONS OF ANY BANK AND ARE NOT INSURED OR GUARANTEED BY
THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL
AGENCY.
Our
principal executive offices are located at 2455 Morris Avenue, Union, New Jersey
07083.
Our
telephone number is (800) 862-3583.
The
date of this prospectus is April [__], 2009.
TABLE
OF CONTENTS
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We have not authorized any person to
give any information or make any statement that differs from what is in this
prospectus. If any person does make a statement that differs from
what is in this prospectus, you should not rely on it. This
prospectus is not an offer to sell, nor is it a solicitation of an offer to buy,
these securities in any state in which the offer or sale is not
permitted. The information in this prospectus is complete and
accurate as of its date, but the information may change after that
date. You should not assume that the information in this prospectus
is accurate as of any date after its date.
This prospectus is part of a
registration statement that we filed with the Securities and Exchange Commission
(the “SEC”) utilizing a “shelf” registration statement. Under this
shelf process, the selling securityholders may from time to time sell or
otherwise dispose of the securities covered by this prospectus in one or more
offerings. This prospectus provides you with a general description of
the securities being offered.
You should read the registration
statement and the accompanying exhibits for further information. The
registration statement and exhibits can be read and are available to the public
over the Internet at the SEC’s website at http://www.sec.gov as
described under the heading “Where You Can Find More Information.”
Company
Overview
We are a financial services holding
company incorporated under the laws of the State of New Jersey. We
commenced operations on May 1, 1983, upon our acquisition of all the outstanding
shares of The Union Center National Bank (the “Bank”), our main
subsidiary. At September 30, 2008, we had total assets of $1.0
billion, total deposit funding sources, which includes overnight repurchase
agreements, of $721.7 million and stockholders’ equity of $80.6 million. Our principal executive
offices are located at 2455 Morris Avenue, Union, New Jersey 07083 and our
telephone number is (800) 862-3683.
The Bank
was organized in 1923 under the laws of the United States of
America. At December 31, 2008, the Bank operated 13 locations in
Union and Morris Counties in New Jersey and employed 160 full-time
equivalent persons. The Bank, through its Private Wealth Management
Division, which includes its wholly owned subsidiary, Center Financial Group
LLC, and through a strategic partnership with American Economic Planning Group,
provides financial services, including brokerage services, insurance and
annuities, mutual funds, financial planning, estate and tax planning, trust
services, elder care and benefit plan administration. We additionally offer
title insurance services through two subsidiaries, Union Title Company and
Center Title Company. Regulatory oversight of the Bank is conducted
by the Office of the Comptroller of the Currency of the United
States.
Securities
Being Offered
On
January 9, 2009, we entered into a Letter Agreement (the “Letter Agreement”) and
a Securities Purchase Agreement - Standard Terms attached thereto
(the “Securities Purchase Agreement”) with the U.S. Department of the Treasury
(the “Treasury”) under the Treasury’s Troubled Asset Relief Program (“TARP”)
Capital Purchase Program, pursuant to which the Treasury purchased (i) 10,000
shares of our Fixed Rate Cumulative Perpetual Preferred Stock, Series A, having
a liquidation preference of $1,000 per share (the “Series A Preferred Shares”),
and (ii) a ten-year warrant (the “Warrant”) to purchase up to 173,410 shares of
our common stock, no par value, at an exercise price of $8.65 per
share.
The issuances of the Series A Preferred
Shares and the Warrant were completed in a private placement to the Treasury
exempt from registration pursuant to Section 4(2) of the Securities Act of
1933. We are registering the Series A Preferred Shares and the
Warrant sold to the Treasury pursuant to the transaction described above and
elsewhere in this prospectus, as well as the shares of common stock to be issued
upon the exercise of the Warrant. The Letter Agreement, including the
Securities Purchase Agreement, was attached as Exhibit 10.1 to our Current
Report on Form 8-K filed with the SEC on January 13, 2009, and is incorporated
into this prospectus by reference. See “Where You Can Find More
Information.”
This prospectus, including the
documents that we incorporate by reference, contains forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934. Any
statements about our expectations, beliefs, plans, objectives, assumptions or
future events or performance are not historical facts and may be
forward-looking. These statements are often, but not always, made
through the use of words or phrases such as “anticipate,” “estimate,” “plans,”
“projects,” “continuing,” “ongoing,” “expects,” “management believes,” “we
believe,” “we intend” and similar words or phrases. Accordingly,
these statements involve estimates, assumptions and uncertainties, which could
cause actual results to differ materially from those expressed in
them. Any forward-looking statements are qualified in their entirety
by reference to the risk factors discussed in this prospectus or discussed in
documents incorporated by reference.
Forward-looking statements are subject
to known and unknown risks and uncertainties, which change over time, and are
based on management’s expectations and assumptions at the time the statements
are made, and are not guarantees of future results. Our actual
results may differ materially from those expressed or anticipated in the
forward-looking statements for many reasons, including the factors described in
the section entitled “Risk Factors” in this prospectus or in other
filings
You should not unduly rely on these
forward-looking statements, which speak only as of the date on which they are
made. We undertake no obligation to publicly revise any
forward-looking statement to reflect circumstances or events after the date of
this prospectus or to reflect the occurrence of unanticipated
events. You should, however, review the factors and risks we describe
in the reports we file from time to time with the SEC after the date of this
prospectus. We undertake no obligation to revise or update the
forward-looking statements contained in this prospectus at any
time.
An investment in our securities
involves risks. You should carefully consider the risks described below,
together with all other information contained in this prospectus as well as our
most recent Annual Report on Form 10-K, and in any subsequent reports that we
have made or will make with the SEC under the Securities Exchange Act of 1934,
as amended, as updated by our subsequent filings, in evaluating our
company and our business before deciding to invest in our
securities. These risks are not the only ones faced by
us. Additional risks and uncertainties not presently known by us or
that we currently deem not to be material may also affect our business
operations.
Risks
Related to this Offering
Because
of our participation in the Treasury’s Capital Purchase Program, we are subject
to several restrictions, including restrictions on our ability to declare or pay
dividends and repurchase our shares, as well as restrictions on our executive
compensation.
On January 9, 2009, pursuant to the
Letter Agreement and related Securities Purchase Agreement, we issued to the
Treasury for an aggregate consideration of $10,000,000 (i) 10,000 Series A
Preferred Shares, with a liquidation preference of $1,000 per share, and (ii) a
Warrant to purchase 173,410 shares of our common stock. Pursuant to
the terms of the Letter Agreement and the related Securities Purchase Agreement,
our ability to declare or pay dividends on any of our capital stock is
subject to restrictions. Specifically, we are unable to declare
dividend payments on common, junior preferred or pari passu preferred shares
if we are in arrears in the payment of dividends on the Series A Preferred
Shares. Further, until the third anniversary of the investment or
when all of the Series A Preferred Shares have been redeemed or transferred, we
are not permitted to increase the cash dividends on our common stock without the
Treasury’s approval. Additionally, our ability to repurchase our
shares of outstanding common stock is restricted. The Treasury’s
consent generally is required for us to make any stock repurchase until the
third anniversary of the investment by the Treasury unless all of the Series A
Preferred Shares have been redeemed or transferred. Further, common,
junior preferred or pari
passu preferred shares may not be repurchased if we are in arrears in the
payment of dividends on the Series A Preferred Shares. These restrictions, as
well as the dilutive effect of the Warrant, may have a negative effect on the
market price of our common stock.
Pursuant to the terms by which we
participated in the Treasury's Capital Purchase Program and the terms of
the American Recovery and Reinvestment Act of 2009, we and several of our senior
employees are subject to substantial limitations on executive compensation and
are subject to new corporate governance standards. Such requirements may
adversely affect our ability to attract and retain senior officers and employees
who are critical to the operation of our business.
The documents that we executed with
the Treasury when the Treasury purchased our Series A Preferred Shares allow the
Treasury to unilaterally change the terms of the Series A Preferred Shares or
impose additional requirements on us if there is a change in law. These
changes or additional requirements could restrict our ability to conduct
business, could subject us to additional cost and expense or could change the
terms of the Series A Preferred Shares to the detriment of our common
shareholders. While it may be possible for us to redeem the Series A Preferred
Shares in the event that the Treasury imposes any changes or additional
requirements that we believe are detrimental, there can be no assurances that
our federal regulator will approve such redemption or that we will have the
ability to implement such redemption.
The
Series A Preferred Shares are equity interests and subordinate to all of our
existing and future indebtedness; regulatory and contractual restrictions may
limit or prevent us from paying dividends on the Series A Preferred Shares; and
the Series A Preferred Shares place no limitations on the amount of indebtedness
we and our subsidiaries may incur in the future.
The
Series A Preferred Shares are equity interests and do not constitute
indebtedness. As such, the Series A Preferred Shares, like our common stock,
rank junior to all indebtedness and other non-equity claims on us with respect
to assets available to satisfy claims, including in a liquidation of our
company. Additionally, unlike indebtedness, where principal and interest would
customarily be payable on specified due dates, in the case of preferred stock
like the Series A Preferred Shares, (1) dividends are payable only when, as and
if authorized and declared by, our board of directors and depend on, among other
things, our results of operations, financial condition, debt service
requirements, other cash needs and any other factors our board of directors
deems relevant, and (2) we may not pay dividends on our capital stock if we are
in default on certain indebtedness or have elected to defer payments of interest
on any subordinated indebtedness we may have.
We are an
entity separate and distinct from our principal subsidiary, the Bank, and we
depend on the Bank’s cash and liquidity to pay our operating costs and to pay
dividends to our shareholders. Accordingly, we are and will be dependent upon
dividends from the Bank to pay the principal of and interest on our
indebtedness, to satisfy our other cash needs and to pay dividends on the Series
A Preferred Shares and our common stock. The Bank’s ability to pay
dividends is subject to its ability to earn net income and to meet certain
regulatory requirements while maintaining its required capital. In the event the
Bank is unable to pay dividends to us, we may not be able to pay dividends on
the Series A Preferred Shares. Also, our right to participate in a distribution
of assets upon a subsidiary’s liquidation or reorganization is subject to the
prior claims of the subsidiary’s creditors including the preferred claims of the
Bank’s depositors.
In
addition, the Series A Preferred Shares do not limit the amount of debt or other
obligations we or our subsidiaries may incur in the future. Accordingly, we and
our subsidiaries may incur substantial amounts of additional debt and other
obligations that will rank senior to the Series A Preferred Shares or to which
the Series A Preferred Shares will be structurally subordinated.
An
active trading market for the Series A Preferred Shares may not
develop.
The
Series A Preferred Shares are not currently listed on any securities exchange
and we do not anticipate listing such shares on an exchange unless we are
requested to do so by the Treasury pursuant to the Securities Purchase Agreement
between us and the Treasury. There can be no assurance that an active
trading market for the Series A Preferred Shares will develop, or, if developed,
that an active trading market will be maintained. If an active market is not
developed or sustained, the market value and liquidity of the Series A Preferred
Shares may be adversely affected.
Risks
Related to Our Business
Recent negative developments in the
financial services industry and U.S. and global credit markets may adversely
impact our operations and results.
Negative developments in the latter half
of 2007, through all of 2008 and in 2009 to date in the capital markets have
resulted in uncertainty in the financial markets in general with the expectation
of the general economic downturn continuing for some or all of 2009 and possibly
beyond 2009. Loan portfolio performances have deteriorated at many institutions
resulting from, among other factors, a weak economy and a decline in the value
of the collateral supporting their loans. The competition for our deposits has
increased significantly due to liquidity concerns at many of these same
institutions. Stock prices of bank holding companies, like ours, have been
negatively affected by the current condition of the
financial markets, as has our ability, if needed, to raise capital or borrow in
the debt markets compared to recent years. As a result, there is a potential for
new federal or state laws and regulations regarding lending and funding
practices and liquidity standards, and financial institution regulatory agencies
are expected to be very aggressive in responding to concerns and trends
identified in examinations, including the expected issuance of many formal
enforcement actions. Negative developments in the financial services industry
and the impact of new legislation in response to those developments could
negatively impact our operations by restricting our business
operations, including
our ability to originate or sell loans, and
adversely impact our financial performance.
We
are subject to interest rate risk and variations in interest rates may
negatively impact our financial performance.
We are
unable to predict actual fluctuations of market interest rates with complete
accuracy. Rate fluctuations are affected by many factors,
including:
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·
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a
rise in unemployment;
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·
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tightening
money supply; and
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·
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domestic
and international disorder and instability in domestic and foreign
financial markets.
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Changes
in the interest rate environment may reduce profits. We expect that we will
continue to realize income from the differential or "spread" between the
interest we earn on loans, securities and other interest-earning assets, and the
interest we pay on deposits, borrowings and other interest-bearing liabilities.
Net interest spreads are affected by the difference between the maturities and
repricing characteristics of interest-earning assets and interest-bearing
liabilities. Changes in levels of market interest rates could materially and
adversely affect our net interest spread, asset quality, levels of prepayments
and cash flows as well as the market value of our securities portfolio and
overall profitability.
External factors, many of which we
cannot control, may result in liquidity concerns for us.
Liquidity risk is the potential that
the Bank may be unable to meet its obligations as they come due, capitalize on
growth opportunities as they arise, or pay regular dividends because of an
inability to liquidate assets or obtain adequate funding in a timely basis, at a
reasonable cost and within acceptable risk tolerances.
Liquidity is required to fund various
obligations, including credit commitments to borrowers, mortgage and other loan
originations, withdrawals by depositors, repayment of borrowings, operating
expenses, capital expenditures and dividend payments to
shareholders.
Liquidity is derived primarily from
deposit growth and retention; principal and interest payments on loans;
principal and interest payments on investment securities; sale, maturity and
prepayment of investment securities; net cash provided from operations and
access to other funding sources.
Our access to funding sources in
amounts adequate to finance our activities could be impaired by factors that
affect us specifically or the financial services industry in general. Factors
that could detrimentally impact our access to liquidity sources include a
decrease in the level of our business activity due to a market downturn or an
adverse regulatory action against us. Our ability to borrow could also be
impaired by factors that are not specific to us, such as a severe disruption of
the financial markets or negative views and expectations about the prospects for
the financial services industry as a whole as the recent turmoil faced by
banking organizations in the domestic and worldwide credit markets continues to
deteriorate.
The extensive regulation and
supervision to which we are subject impose substantial restrictions on our
business.
Center Bancorp, primarily through its
principal subsidiary, the Bank, and certain non-bank subsidiaries, are
subject to extensive regulation and supervision. Banking regulations are
primarily intended to protect depositors' funds, federal deposit insurance funds
and the banking system as a whole. Such laws are not designed to protect our
shareholders. These regulations affect our lending practices, capital structure,
investment practices, dividend policy and growth, among other things. The Bank
is also subject to a number of federal laws, which, among other things, require
it to lend to various sectors of the economy and population, and establish and
maintain comprehensive programs relating to anti-money laundering and customer
identification. The United States Congress and federal regulatory agencies
continually review banking laws, regulations and policies for possible changes,
especially for the TARP Capital Purchase Program (in which we are a
participant). Changes to statutes, regulations or regulatory policies, including
changes in interpretation or implementation of statutes, regulations or
policies, could affect us in substantial and unpredictable ways. Such changes
could subject us to additional costs, limit the types of financial services and
products we may offer and/or increase the ability of non-banks to offer
competing financial services and products, among other things. Failure to comply
with laws, regulations or policies could result in sanctions by regulatory
agencies, civil money penalties and/or reputational damage, which could have a
material adverse effect on our business, financial condition and results of
operations.
Current
levels of volatility in the capital markets are unprecedented and may adversely
impact our operations and results.
The capital markets have been
experiencing unprecedented volatility for more than a year. Such
negative developments and disruptions have resulted in uncertainty in the
financial market in general with the expectation of a continuing general
economic downturn throughout 2009 and possibly beyond
2009. Bank and bank holding company stock prices have been
negatively affected, as has the ability of banks and bank holding companies to
raise capital or borrow in the debt markets compared to recent
years. If current levels of market disruption and volatility continue
or worsen, there can be no assurance that we will not experience an adverse
effect, which may be material, on our business, financial condition and results
of operations or our ability to access capital.
We may incur impairments to
goodwill.
We review our goodwill at least
annually. Significant negative industry or economic trends, reduced estimates of
future cash flows or disruptions to our business, could indicate that goodwill
might be impaired. Our valuation methodology for assessing impairment requires
management to make judgments and assumptions based on historical experience and
to rely on projections of future operating performance. We operate in a
competitive environment and projections of future operating results and cash
flows may vary significantly from actual results. Additionally, if our analysis
results in an impairment to its goodwill, we would be required to record a
non-cash charge to earnings in our financial statements during the period in
which such impairment is determined to exist. Any such change could have a
material adverse effect on our results of operations and our stock
price
The
Bank’s ability to pay dividends is subject to regulatory limitations which, to
the extent that our holding company requires such dividends in the future, may
affect our holding company’s ability to honor its obligations and pay
dividends.
As a
holding company, we are a separate legal entity from the Bank and its
subsidiaries and do not have significant operations of our own. We currently
depend on the Bank's cash and liquidity to pay our operating expenses and
dividends to shareholders. We cannot assure you that in the future the Bank will
have the capacity to pay the necessary dividends and that we will not require
dividends from the Bank to satisfy our obligations. Various statutes and
regulations limit the availability of dividends from the Bank. It is possible,
depending upon our and the Bank’s financial condition and other factors, that
bank regulators could assert that payment of dividends or other payments by the
Bank are an unsafe or unsound practice. In the event that the Bank is unable to
pay dividends, we may not be able to service our obligations as they become due,
or pay dividends on our capital stock. Consequently, the inability to
receive dividends from the Bank could adversely affect our financial condition,
results of operations, cash flows and prospects.
The
Bank’s allowance for loan losses may not be adequate to cover actual
losses.
Like all
financial institutions, the Bank maintains an allowance for loan losses to
provide for loan defaults and non-performance. If the Bank’s
allowance for loan losses is not adequate to cover actual loan losses, future
provisions for loan losses could materially and adversely affect our operating
results. The Bank’s allowance for loan losses is determined by analyzing
historical loan losses, current trends in delinquencies and charge-offs, plans
for problem loan resolution, the opinions of its regulators, changes in the size
and composition of the loan portfolio and industry information. The Bank also
considers the impact of economic events, the outcome of which are uncertain. The
amount of future losses is susceptible to changes in economic, operating and
other conditions, including changes in interest rates, that may be beyond our
control, and these losses may exceed current estimates. Federal regulatory
agencies, as an integral part of their examination process, review the Bank’s
loans and allowance for loan losses. While we believe that the Bank’s allowance
for loan losses in relation to its current loan portfolio is adequate to cover
current losses, we cannot assure you that the Bank will not need to increase its
allowance for loan losses or that regulators will not require it to increase
this allowance. Either of these occurrences could materially and adversely
affect our earnings and profitability.
The
Bank is subject to various lending and other economic risks that could adversely
impact our results of operations and financial condition.
Changes
in economic conditions, particularly a significant worsening of the current
economic environment, could hurt the Bank’s business. The Bank’s business is
directly affected by political and market conditions, broad trends in industry
and finance, legislative and regulatory changes and changes in governmental
monetary and fiscal policies, all of which are beyond our control. Deterioration
in economic conditions, particularly within New Jersey, could result in the
following consequences, any of which could hurt our business
materially:
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·
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loan
delinquencies may increase;
|
|
·
|
problem
assets and foreclosures may
increase;
|
|
·
|
demand
for our products and services may decline;
and
|
|
·
|
collateral
for loans made by the Bank may decline in value, in turn reducing the
Bank’s clients’ borrowing
power.
|
Further
deterioration in the real estate market, particularly in New Jersey, could hurt
our business. As real estate values in New Jersey decline, our ability to
recover on defaulted loans by selling the underlying real estate is reduced,
which increases the possibility that we may suffer losses on defaulted
loans.
The
Bank may suffer losses in its loan portfolio despite its underwriting
practices.
The Bank
seeks to mitigate the risks inherent in its loan portfolio by adhering to
specific underwriting practices. Although we believe that the Bank’s
underwriting criteria are appropriate for the various kinds of loans that it
makes, the Bank may incur losses on loans that meet its underwriting criteria,
and these losses may exceed the amounts set aside as reserves in its allowance
for loan losses.
The
Bank faces strong competition from other financial institutions, financial
service companies and other organizations offering services similar to the
services that the Bank provides.
Many
competitors offer the types of loans and banking services that the Bank offers
or similar types of such services. These competitors include other national
banks, savings associations, regional banks and other community banks. The Bank
also faces competition from many other types of financial institutions,
including finance companies, brokerage firms, insurance companies, credit
unions, mortgage banks and other financial intermediaries. In this regard, the
Bank’s competitors include other state and national banks and major financial
companies whose greater resources may afford them a marketplace advantage by
enabling them to maintain numerous banking locations, offer a broader suite of
services and mount extensive promotional and advertising campaigns. Our
inability to compete effectively would adversely affect our
business.
If we do not successfully integrate
any entities that we may acquire in the future, the combined company may be
adversely affected.
The success of our enterprise after
acquisitions that we may consummate in the future will depend, in part, on our
ability to integrate the acquired entities into our existing franchise,
including, in certain circumstances, our ability to centralize certain
administrative functions and eliminate unnecessary duplication of other
functions. We may experience difficulties in accomplishing this integration or
in effectively managing the combined company. Any actual cost savings or revenue
enhancements that we may anticipate will depend on future expense levels and
operating results, the timing of certain events and general industry, regulatory
and business conditions. Many of these events will be beyond our control, and we
cannot provide assurances that the integration of businesses that we may acquire
will be successful.
Our deposit insurance premium will be
substantially higher in 2009, which could have a material adverse effect on our
future earnings.
The FDIC insures deposits at FDIC
insured financial institutions, including the Bank. The FDIC charges the insured
financial institutions premiums to maintain the Deposit Insurance Fund at an
adequate level. In light of current economic conditions, the FDIC has increased
its assessment rates and recently adopted an interim rule imposing an emergency
special assessment on the entire banking industry payable on September 30, 2009.
The FDIC may further increase these rates and impose additional special
assessments in the future.
Declines in value may adversely
impact our investment portfolio.
As of December 31, 2008, we had
approximately $242.7 million in available for sale investment securities. We may
be required to record impairment charges on our investment securities if they
suffer a decline in value that is considered other-than-temporary. Numerous factors, including
lack of liquidity for re-sales of certain investment securities, absence of
reliable pricing information for investment securities, adverse changes in
business climate, adverse actions by regulators, or unanticipated changes in the
competitive environment could have a negative effect on our investment portfolio
in future periods. If an impairment charge is significant enough, it could
affect the ability of the Bank to upstream dividends to us, which could have a
material adverse effect on
our liquidity and our ability to pay dividends to shareholders
and could also negatively impact our regulatory capital
ratios.
Concern of customers over deposit
insurance may cause a decrease in deposits.
With recent increased concerns about
bank failures, customers increasingly are concerned about the extent to which
their deposits are insured by the FDIC. Customers may withdraw deposits in an
effort to ensure that the amount they have on deposit with their bank is fully
insured. Decreases in deposits may adversely affect our funding costs and net
income.
The ratios of earnings to fixed
charges for the years ended December 31, 2008, 2007, 2006, 2005 and 2004
are set forth below.
|
|
Years ended December 31, |
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
Including
interest on deposits
|
|
|
1.31
|
|
|
|
1.03
|
|
|
|
1.02
|
|
|
|
1.38
|
|
|
|
1.66
|
|
Excluding
interest on deposits
|
|
|
1.69
|
|
|
|
1.09
|
|
|
|
1.05
|
|
|
|
1.75
|
|
|
|
2.41
|
|
We will not receive any proceeds from
sales of the securities by the selling securityholders.
Our
authorized capital stock presently consists of 25,000,000 shares, of which
20,000,000 shares are designated as common stock, no par value, and 5,000,000
shares are designated as preferred stock, no par value. As of December 31, 2008,
a total of 12,991,312 shares of common stock were outstanding. In
connection with the transactions contemplated by the Letter Agreement and the
Securities Purchase Agreement, we authorized the issuance of 10,000 Series A
Preferred Shares, pursuant to an amendment to our Certificate of
Incorporation. All 10,000 shares were issued on January 9, 2009 to
the Treasury. The remaining 4,990,000 unissued shares of preferred
stock are “blank check” preferred stock, which is stock over which the board of
directors of a corporation has the authority to determine voting, dividend,
conversion and other rights and restrictions.
The following is merely a summary of
the terms of our Series A Preferred Shares. The full terms of our
Series A Preferred Shares is set forth in our Certificate of Incorporation, as
amended, which was filed as Exhibit 3.1 to our Current Report on Form 8-K filed
on January 13, 2009 and is incorporated by reference herein. See
“Where You can Find More Information.”
General
The
Series A Preferred Shares are perpetual and have no maturity
date. The Series A Preferred Shares are validly issued, fully paid
and non-assessable. As of the date of this prospectus, the Series A
Preferred Shares are not listed on any securities exchange.
Rank
The
Series A Preferred Shares will rank, with respect to dividend rights and rights
upon liquidation, dissolution or winding up of our company, (a) senior to our
common stock and to all of our capital stock ranking junior to the Series A
Preferred Shares; (b) equal to other classes or series of our preferred stock
that we issue, the terms of which specifically provide that such preferred stock
ranks on a parity with the Series A Preferred Shares; and (c) junior to all
shares of capital stock that we issue, the terms of which specifically provide
that such shares of capital stock rank senior to the Series A Preferred
Shares.
Dividend
Rights
We will pay the record holders of the
Series A Preferred Shares cumulative cash dividends at a rate of 5% per annum
until the fifth anniversary of the date of the original investment of the
Treasury, January 9, 2014, and from that date thereafter at a rate of 9% per
annum. Dividends shall be paid quarterly in arrears on the 15th day of
February, May, August and November of each year or, if not a business day, the
next succeeding business day. In the event that any dividend payment
or payments on the Series A Preferred Shares are in arrears at any time,
cumulative cash dividends at the annual rate then in effect for dividend
payments on the Series A Preferred Shares shall be payable as and if declared by
the Board and out of assets legally available therefor, on all such accrued and
unpaid dividends.
As long as the Series A Preferred
Shares are outstanding, we will not be able to pay dividends on any common stock
shares or any preferred shares ranking pari passu with the Series A
Preferred Shares, unless all dividends on the Series A Preferred Shares are paid
in full. Additionally, until the earlier of the third anniversary of
the Treasury’s investment or the date on which the Treasury has transferred all
of the Series A Preferred Shares to unaffiliated third parties or such shares
are redeemed in full, we may not, without the Treasury’s consent, increase the
amount of cash dividends on our common stock. Such consent is not
required where dividends on common stock are payable solely in shares of our
common stock.
Repurchase Rights
The consent of the Treasury will be
required for any repurchase of our common stock, other capital stock or any
other of our equity securities, other than repurchases of the Series A Preferred
Shares or share repurchases in connection with any employee benefit plan in the
ordinary course of business consistent with past practice, until the earlier of
the third anniversary of the Treasury’s investment or the date on which the
Series A Preferred Shares are redeemed in whole or the Treasury has transferred
all of the Series A Preferred Shares to unaffiliated third
parties. For as long as the Treasury continues to own any Series A
Preferred Shares, we may not repurchase any senior preferred shares from any
other holder of such shares unless it offers to repurchase, on the same terms
and conditions, a ratable portion of the Series A Preferred Shares held by the
Treasury.
Voting
Rights
The Series A Preferred Shares have no
voting rights, other than class voting rights granted under applicable New
Jersey law and class voting rights on (i) any authorization or issuance of
shares ranking senior to the Series A Preferred Shares; (ii) any amendment to
the rights of the Series A Preferred Shares; or (iii) any merger, exchange or
similar transaction which would adversely affect the rights of the Series A
Preferred Shares.
Where no dividends are paid on the
Series A Preferred Shares for six or more quarterly periods (whether consecutive
or not), the size of our Board will be automatically increased by two directors,
and holders of the Series A Preferred Shares, voting together as a class with
the holders of all other classes or series of our capital stock upon which like
voting rights have been conferred and are exercisable, will have the right to
elect two additional directors to our Board at our next annual meeting (or a
special meeting called for such purpose) and each subsequent annual meeting
until all of the accrued and unpaid dividends on the Series A Preferred Shares
are paid in full.
Conversion
Holders of the Series A Preferred
Shares have no right to exchange or convert such shares into any of our other
securities.
Liquidation
Rights
The Series A Preferred Shares have a liquidation
preference of $1,000 per share. In the event of a voluntary or
involuntary liquidation, dissolution or winding up of our company, holders of
Series A Preferred Shares will be entitled, subject to creditors’ rights but
before any distribution to common shareholders or any other junior shares, to
receive a liquidation distribution in the amount of the liquidation preference
per share, plus accrued and unpaid dividends for the current dividend
period. If the amounts available for distribution upon our
liquidation, dissolution or winding up are insufficient to satisfy the full
liquidation rights of all the outstanding Series A Preferred Shares and all
shares ranking equal to such shares, then the holders of each series will share
ratably in any distribution of assets in proportion to the full respective
preferential amount, which may include accumulated dividends, to which they are
entitled. After the full amount of the liquidation preference is
paid, the holders of Series A Preferred Shares will not be entitled to any
further participation in any distribution of our assets.
Redemption
We may redeem the Series A Preferred
Shares commencing on the first dividend payment date occurring after January 9,
2012, or earlier if we raise in an equity offering net proceeds equal to the
amount of the Series A Preferred Shares to be redeemed. We must raise
proceeds equal to at least 25% of the issue price of the Series A Preferred
Shares to redeem any such shares prior to the first dividend payment date
occurring after January 9, 2012. The redemption price is equal to the
sum of the liquidation amount per share and any accrued and unpaid dividends on
the Series A Preferred Shares up to, but excluding, the date fixed for
redemption.
Preemptive
Rights
No Series A Preferred Share will have
any rights of preemption whatsoever as to any of our securities, or any
warrants, rights or options issued or granted with respect thereto.
Other
Matters
Upon compliance with applicable
securities laws, the Series A Preferred Shares are freely transferable and
are not subject to any mandatory redemption, sinking fund or other similar
provisions.
The following description of shares of
our common stock is only a summary. The summary does not purport to
be complete in all respects and is qualified in its entirety by reference to our
certificate of incorporation, as amended, our by-laws and by applicable New
Jersey law.
General
Our certification of incorporation, as
amended, provides that we may issue up to 20,000,000 shares of common stock, no
par value. As of December 31, 2008, there were 12,991,312 shares of
our common stock outstanding. All outstanding shares of our common
stock are fully paid and non-assessable. Our common stock is listed
on the Nasdaq Global Select Market under the symbol “CNBC.”
Voting
Rights
Each outstanding share of our common
stock entitles the holder to one vote on all matters submitted to a vote of our
stockholders, except as otherwise required by law. The holders of our
common stock vote together with the holders of preferred stock as a single class
on all matters. The quorum for stockholders’ meetings is a majority
of the outstanding shares. There is no cumulative
voting.
Dividends
and Liquidation Rights
Holders of our common stock are
entitled to dividends if, as and when determined by our board of directors in
its sole discretion out of funds lawfully available for the payment of
dividends. Funds for the payment of dividends come primarily from the
earnings of the Bank and its subsidiaries. The dividend rights of
holders of our common stock are qualified and subject to the dividend rights of
holders of our preferred stock. In addition, various statutes and
regulations limit the availability of dividends from the Bank. Any
restriction on the ability of the Bank to pay dividends will act as restrictions
on funds available for payment of dividends by us to our
stockholders.
Holders
of our common stock are entitled to share ratably in our assets legally
available for distribution to our stockholders in the event of our liquidation,
dissolution or winding up, subject to the rights of holders of our preferred
stock.
Transfer
Agent
The Registrar and Transfer Company is
presently both the transfer agent and the registrar of our common
stock.
On
January 9, 2009, in addition to the 10,000 shares of Series A Preferred Shares,
we issued to the Treasury a ten-year Warrant to purchase up to 173,410 shares of
our common stock, no par value. The Warrant is immediately
exercisable by the holder, subject to certain limitations on exercise described
below (see “Transferability”), and will expire at 5:00 p.m., New York City time,
on January 9, 2019. The Warrant may be exercised in whole or in
part.
The
following description is a summary of the material terms and provisions of the
Warrant. The full terms and provisions of the Warrant is set forth in
the Warrant to Purchase up to 173,410 shares of Common Stock, dated January 9,
2009, which was filed as Exhibit 4.1 to our Current Report on Form 8-K filed on
January 13, 2009 and is incorporated by reference herein. See “Where
You can Find More Information.”
Exercise
of Warrant
Without the consent of the company and
the holder of the Warrant (the “Warrantholder”), the Warrant may only be
exercised on a net basis. The Warrant is exercisable by the surrender
of the Warrant and a duly completed and executed notice of exercise at our
principal executive office and payment for the shares of the common stock
thereby purchased. The exercise price may be paid (i) by having us
withhold from the shares of common stock that would otherwise be issued to the
Warrantholder upon exercise, a number of shares of common stock having a market
value equal to the aggregate exercise price or (ii) if we and the Warrantholder
consent, in cash.
Rights
of the Warrantholder
The
Warrantholder is not entitled to vote or exercise any of the rights as a
stockholder of our company prior to the date of exercise of the
Warrant.
Voting
of Warrant Shares
The
Treasury has agreed that it will not vote any of the shares of common stock that
it acquires upon exercise of the Warrant. This does not apply to any
other person who acquires any portion of the Warrant, or the shares of common
stock underlying the Warrant, from the Treasury.
Transferability
The
Warrant and all rights thereunder are not subject to any transfer restrictions
and upon
compliance with applicable securities laws, are transferable, in whole or
in part, upon the books of our company by the registered Warrantholder in person
or by duly authorized attorney, upon the surrender of the Warrant, duly
endorsed, to the office or agent of our company. Thereafter, a new
warrant registered in the name of the designated transferee(s) will be made and
delivered by us. However, the Treasury may only transfer or exercise
the Warrant with respect to one-half of the shares underlying the Warrant prior
to the earlier of (i) the date on which we (or any successor to us by a business
combination) have completed
one or more qualified equity offerings that result in our receipt of
aggregate gross proceeds of at least $10,000,000 (e.g. 100% of the issue price
of the Series A Preferred Shares sold to the Treasury) and (ii) December 31,
2009. A
qualified equity offering means our sale and issuance for cash of common stock
or Tier 1 securities to persons other than us or our
subsidiaries.
Fractional
Shares
No
fractional shares will be issued upon exercise of the Warrant. In
lieu of the issuance of any fractional shares, however, we will pay to the
Warrantholder an amount in cash based on the market value of our common stock on
the last trading day prior to the exercise date, less the prorated exercise
price for such fractional share.
Adjustment
of Shares
The exercise price and number of shares
of common stock underlying the Warrant will automatically adjust if
we:
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·
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declare
and pay a dividend or make a distribution on our common stock in shares of
common stock;
|
|
·
|
subdivide
or reclassify the outstanding shares or common stock into a greater number
of shares; or
|
|
·
|
combine
or reclassify the outstanding shares of common stock into a smaller number
of shares.
|
In the
event of any merger, consolidation or other business combination to which we are
a party, the Warrantholder’s right to receive shares of common stock upon
exercise of the Warrant will be converted into the right to exercise the Warrant
to acquire the number of shares of stock or other securities or property which
the common stock issuable upon exercise of the warrant immediately prior to such
business combination would have been entitled to receive upon consummation of
the business combination.
We are
registering for resale pursuant to this prospectus 10,000 Series A Preferred
Shares, the Warrant, and 173,410 shares of our common stock issuable upon the
exercise of the Warrant, in each case, held by the United States Department of
the Treasury, which is the initial selling securityholder under this
prospectus. The initial selling securityholder, or its successors,
including any of its transferee(s), may from time to time offer and sell,
pursuant to this prospectus or a supplement to this prospectus, any or all of
the securities they own.
The table
below presents information regarding the beneficial ownership of our outstanding
securities by the selling securityholder. The percentage of beneficial ownership
is based on 12,991,312 shares of common stock outstanding on December 31,
2008. Beneficial ownership is determined in accordance with the
rules of the SEC and includes voting or investment power with respect to the
securities.
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|
Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
Beneficially
Owned
|
|
|
|
|
|
|
|
|
|
Number
of
|
|
|
After
Sales of
|
|
|
|
Securities Beneficially
Owned
|
|
|
Securities
Offered
|
|
|
Securities
Offered
|
|
Class
of Security
|
|
Number
|
|
|
Percent
|
|
|
Hereby
|
|
|
Hereby
|
|
Fixed
Rate Cumulative Perpetual Preferred Stock, Series A
|
|
|
10,000
|
|
|
|
100%
|
|
|
|
10,000
|
|
|
|
0
|
|
Warrant
|
|
|
1
|
|
|
|
100%
|
|
|
|
1
|
|
|
|
0
|
|
Common
Stock
|
|
|
173,410
|
|
|
|
1.33%
|
|
|
|
173,410
|
|
|
|
0
|
|
The
information in the column “Securities Beneficially Owned After Sales of
Securities Offered Hereby” assumes that the selling securityholder sells all of
such securities. However, we do not know when or in what amounts the
selling securityholder may offer the securities for sale. The selling
securityholder may offer from time to time all or some of its securities under
this prospectus, or in another permitted manner. We cannot assure you
as to the actual number of securities that will be sold or otherwise disposed of
by the selling securityholder and we cannot estimate the number of the
securities that will be held by the selling securityholder after completion of
this offering.
We are
registering the securities covered by this prospectus for the selling
securityholders.
The
selling securityholders and any of their successors-in-interest, including any
transferees, may sell the securities directly to purchasers or through
underwriters, broker-dealers or agents, who may receive compensation in the form
of discounts, concessions or commissions from the selling securityholders or the
purchasers of the securities. These discounts, concessions or
commissions as to any particular underwriter, broker-dealer or agent may be in
excess of those customary in the types of transactions involved.
The
securities may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices determined at
the time of sale or at negotiated prices. These sales may be effected
in transactions, which may involve special offerings, exchange distributions or
block transactions:
|
·
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on
any national securities exchange or quotation services on which the
preferred stock or the common stock may be listed or quoted at the time of
sale, including, as of the date of this prospectus, the Nasdaq Global
Select Market System in the case of the common
stock;
|
|
·
|
in
the over-the-counter market;
|
|
·
|
in
transactions otherwise than on such exchanges or services or in the
over-the-counter market; or
|
|
·
|
through
the writing of options, whether the options are listed on an options
exchange or otherwise.
|
In
addition, any securities that qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than pursuant to this
prospectus.
In
connection with the sales of the securities or otherwise, the selling
securityholders may enter into hedging transactions with broker-dealers, which
may in turn engage in short sales of the common stock issuable upon exercise of
the Warrant in the course of hedging the positions they assume. The
selling securityholders may also sell short the common stock issuable upon
exercise of the Warrant and deliver common stock to close out short positions,
or loan or pledge the Series A Preferred Shares or the common stock issuable
upon exercise of the Warrant to broker-dealers that in turn may sell these
securities.
In
effecting sales, broker-dealers engaged by the selling securityholders may
arrange for other brokers-dealers to participate. Broker-dealers may
receive commissions, discounts or concessions from the selling securityholders
in amounts to be negotiated immediately prior to the sale.
In
offering the securities covered by this prospectus, the selling securityholders
and any broker-dealers who execute sales for the selling securityholders may be
deemed to be “underwriters” within the meaning of Section 2(a)(11) of the
Securities Act in connection with such sales. Any profits realized by the
selling securityholders and the compensation of any broker-dealer may be deemed
to be underwriting discounts and commissions. Selling securityholders who are
“underwriters” within the meaning of Section 2(a)(11) of the Securities Act will
be subject to the prospectus delivery requirements of the Securities Act and may
be subject to certain statutory and regulatory liabilities, including
liabilities imposed pursuant to Sections 11, 12 and 17 of the Securities Act and
Rule 10b-5 under the Securities Exchange Act of 1934, or the Exchange
Act.
In order
to comply with the securities laws of certain states, if applicable, the
securities must be sold in such jurisdictions only through registered or
licensed brokers or dealers. In addition, in certain states the securities may
not be sold unless they have been registered or qualified for sale in the
applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
The
anti-manipulation rules of Regulation M under the Exchange Act may apply to
sales of securities pursuant to this prospectus and to the activities of the
selling securityholders. In addition, we will make copies of this prospectus
available to the selling securityholders for the purpose of satisfying the
prospectus delivery requirements of the Securities Act, which may include
delivery through the facilities of the Nasdaq Global Select Market pursuant to
Rule 153 under the Securities Act.
At the
time a particular offer of securities is made, if required, a prospectus
supplement will set forth the number and type of securities being offered and
the terms of the offering, including the name of any underwriter, dealer or
agent, the purchase price paid by any underwriter, any discount, commission and
other item constituting compensation, any discount, commission or concession
allowed or reallowed or paid to any dealer, and the proposed selling price to
the public.
We do not
intend to apply for listing of the Series A Preferred Shares on any securities
exchange or for inclusion of the Series A Preferred Shares in any automated
quotation system unless requested by the initial selling securityholder.
No assurance can be given as to the liquidity of the trading market, if
any, for the Series A Preferred Shares.
We have
agreed to indemnify the selling securityholders against certain liabilities,
including certain liabilities under the Securities Act. We have also agreed,
among other things, to bear substantially all expenses, including the costs and
fess of registering the securities covered by this prospectus (other than
underwriting discounts, selling commissions or any other amounts payable to
underwriters, dealers or agents or any transfer taxes or other expenses
associated with the sale of the securities, on behalf of the selling
securityholders) in connection with the registration and sale of the securities
covered by this prospectus.
The SEC allows us to “incorporate by
reference” into this prospectus the information we have filed with the SEC,
which means that we can disclose important information to you by referring you
to those documents. Any information that we file subsequently with
the SEC will automatically update this prospectus. We incorporate by
reference into this prospectus the information contained in documents listed
below, which is considered to be a part of this prospectus:
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·
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Our
Annual Report on Form 10-K for the year ended December 31, 2008,
filed on March 16, 2009, filed pursuant to Section 13(a)
of the Exchange Act;
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·
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Those
portions of our Current Report on Form 8-K filed on April 9, 2009 that are
deemed "filed" for purposes of the Exchange
Act;
|
|
·
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Our
definitive proxy statement for our 2009 annual meeting of
stockholders filed on April 17, 2009 , filed pursuant to
Section 14 of the Exchange Act;
and
|
|
·
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The
description of our common stock contained in the Registration Statement on
Form 8-A filed on June 5, 1996 pursuant to Section 12(g) of the
Exchange Act, and any further amendment or report filed hereafter for the
purpose of updating such
description.
|
We also incorporate by reference all
documents we file under Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act (a) after the initial filing date of the registration statement of
which this prospectus is a part and before the effectiveness of the registration
statement and (b) after the effectiveness of the registration statement and
before the filing of a post-effective amendment that indicates that the
securities offered by this prospectus have been sold or that deregisters the
securities covered by this prospectus then remaining unsold. The most
recent information that we file with the SEC automatically updates and
supersedes older information. The information contained in any such
filing will be deemed to be a part of this prospectus, commencing on the date on
which the document is filed.
You may request a copy of the
information incorporated by reference, at no cost, by writing or telephoning us
at the following address:
Center Bancorp,
Inc.
Attention:
Joseph Gangemi, Investor Relations
2455
Morris Avenue, Union, New Jersey 07083
(908) 206-2886
The validity of the securities offered
by this prospectus will be passed upon for us by Lowenstein Sandler PC,
Roseland, New Jersey.
The
consolidated financial statements of Center Bancorp, Inc. as of December 31,
2008 and 2007 and for each of the three years in the period ended December 31,
2008 and management’s assessment of the effectiveness of internal control over
financial reporting as of December 31, 2008 incorporated by reference in this
prospectus have been so incorporated in reliance on the reports of Beard Miller
Company LLP, an independent registered public accounting firm, incorporated
herein by reference, given on the authority of said firm as experts in auditing
and accounting.
We have filed with the SEC a
registration statement on Form S-3, including exhibits, under the
Securities Act with respect to the securities being offered by and for the
account of the selling securityholders. This prospectus does not contain all of
the information set forth in the registration statement. For further information
about us, please refer to the registration statement and the documents
incorporated by reference in this prospectus.
We file annual, quarterly and special
reports, proxy statements and other information with the SEC. Our SEC
filings are available to the public over the Internet at the SEC’s website at
http://www.sec.gov. The
SEC’s website contains reports, proxy statements and other information regarding
issuers, such as Center Bancorp, Inc., that file electronically with the
SEC. You may also read and copy any document we file with the SEC at
the SEC’s Public Reference Room, located at 100 F Street, N.E., Washington,
D.C. 20549. Please call the SEC at 1-800-SEC-0330
for further information on the operation of its Public Reference
Room.
You
should rely only on the information contained or incorporated by reference in
this prospectus. No one has been authorized to provide you with different
information. If anyone provides you with different or inconsistent information,
you should not rely on it. We are not making an offer to sell these securities
in any jurisdiction where the offer or sale is not permitted. You should assume
that the information appearing in this prospectus, as well as information we
filed with the SEC and incorporated by reference, is accurate as of the date of
those documents only. Our business, financial condition and results of
operations described in those documents may have changed since those
dates.
PART
II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The following table sets
forth estimated expenses expected to
be incurred in connection with the issuance
and distribution of the securities being
registered:
Registration
Statement filing fee
|
|
|
$452.00 |
|
Printing
fees
|
|
|
$2,000.00 |
* |
Legal
fees and expenses
|
|
|
$25,000.00 |
* |
Accounting
fees
|
|
|
$1,500.00 |
* |
Miscellaneous
|
|
|
$1,048.00 |
* |
|
|
|
|
|
Total
|
|
|
$30,000.00 |
* |
* Estimated
Item
15. Indemnification of Directors and Officers.
The Registrant’s Restated
Certificate of Incorporation contains the following provision regarding
indemnification:
“Every
person who is or was a director, officer, employee or
agent of the corporation, or of any corporation which he served as such at the
request of the corporation, shall be indemnified by the corporation to the
fullest extent permitted by law against all expenses and liabilities reasonably
incurred by or imposed upon him, in connection with any proceeding to which he
may be made, or threatened to be made, a party, or in which he may become
involved by reason of his being or having been a director, officer, employee or
agent of the corporation, or of such other corporation, whether or not he is a
director, officer, employee or agent of the corporation or such other
corporation at the time that the expenses or liabilities are
incurred.”
Subsection
(2) of Section 3-5, Title 14A of the New Jersey Business Corporation Act
empowers a corporation to indemnify a corporate agent who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, arbitrative or
investigative (other than an action by or in the right of the corporation)
against reasonable costs (including attorneys' fees), judgments, fines,
penalties and amounts paid in settlement incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful. For purposes of the Act,
a “corporate agent” means any person who is or was a director,
officer, employee or agent of the corporation or a person serving at the request
of the corporation as a director, officer, trustee, employee or agent of another
corporation or enterprise.
Subsection
(3) of Section 3-5 empowers a corporation to indemnify a corporate agent against
reasonable costs (including attorneys' fees) incurred by him in connection with
any proceeding by or in the right of the corporation to procure a judgment in
its favor which involves such corporate agent by reason of the fact that he is
or was a corporate agent if he acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the corporation,
except that no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Superior Court of New Jersey
or the court in which such action or suit was brought shall determine that
despite the adjudication of liability, such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem
proper.
Subsection
(4) of Section 3-5 provides that to the extent that a corporate agent has been
successful in the defense of any action, suit or proceeding referred to in
subsections (2) and (3) or in the defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including attorneys' fees) incurred by
him in connection therewith.
Subsection
(5) of Section 3-5 provides that a corporation may indemnify a corporate agent
in a specific case if it is determined that indemnification is proper because
the corporate agent met the applicable standard of conduct, and such
determination is made by any of the following: (a) the board of directors or a
committee thereof, acting by a majority vote of a quorum consisting of
disinterested directors; (b) independent legal counsel, if there is no quorum of
disinterested directors or if the disinterested directors empowers counsel to
make the determination; or (c) the shareholders.
Subsection
(8) of Section 3-5 provides that the indemnification provisions in the law shall
not exclude any other rights to indemnification that a director or officer may
be entitled to under a provision of the certificate of incorporation, a by-law,
an agreement, a vote of shareholders, or otherwise. That subsection explicitly
permits indemnification for liabilities and expenses incurred in proceedings
brought by or in the right of the corporation (derivative proceedings). The only
limit on indemnification of directors and officers imposed by that subsection is
that a corporation may not indemnify a director or officer if a judgment has
established that the director's or officer's acts or omissions were a breach of
his or her duty of loyalty, not in good faith, involved a knowing violation of
the law, or resulted in receipt by the corporate agent of an improper personal
benefit.
Subsection
(9) of Section 3-5 provides that a corporation is empowered to purchase and
maintain insurance on behalf of a director or officer against any expenses or
liabilities incurred in any proceeding by reason of that person being or having
been a director or officer, whether or not the corporation would have the power
to indemnify that person against expenses and liabilities under other provisions
of the law.
The
Registrant’s Restated Certificate of Incorporation, as amended, contains the
following provisions:
“Fifteenth: So
long as permitted by law, no director of the corporation shall be personally
liable to the corporation or its shareholders for damages for breach of any duty
owed by such person to the corporation or its shareholders; provided, however,
that this paragraph fifteen shall not relieve any person from liability to the
extent provided by applicable law for any breach of duty based upon an act or
omission (a) in breach of such person’s duty of loyalty to the corporation or
its shareholders, (b) not in good faith or involving a knowing violation of law
or (c) resulting in receipt by such person of any improper personal benefit. No
amendment to or repeal of this paragraph fifteen and no amendment, repeal or
termination of effectiveness of any law authorizing this paragraph fifteen shall
apply to or have any effect on the liability or alleged liability of any
director or with respect to any acts or omissions of such director occurring
prior to such amendment, repeal or termination of effectiveness.
Sixteenth: So
long as permitted by law, no officer of the corporation shall be personally
liable to the corporation or its shareholders for damages of breach of any duty
owed by such person to the corporation or its shareholders; provided, however,
that this paragraph sixteen shall not relieve any person from liability to the
extent provided by applicable law for any breach of duty based upon an act or
omission (a) in breach of such person’s duty of loyalty to the corporation or
its shareholders, (b) not in good faith or involving a knowing violation of law
or (c) resulting in receipt by such person of an improper personal benefit. No
amendment to or repeal of this paragraph sixteen and no amendment, repeal or
termination of effectiveness of any law authorizing this paragraph sixteen shall
apply to or have any effect on the liability or alleged liability of any such
officer for or with respect to any acts or omissions of such officer occurring
prior to such amendment, repeal or termination of
effectiveness.”
Item 16. List of
Exhibits.
3.1
|
Registrant's
Certificate of Incorporation, as amended, is incorporated by reference to
Exhibit 3.1 of the Registrant's Current Report on Form 8-K, filed on
January 13, 2009.
|
3.2
|
Registrant's
Bylaws are incorporated by reference to Exhibit 3.2 of the Registrant's
Annual Report on Form 10-K for the year ended December 31,
1998.
|
4.1
|
Warrant
to Purchase up to 173,410 shares of Common Stock, dated January 9, 2009,
is incorporated by reference to Exhibit 4.1 of the Registrant’s Current
Report on Form 8-K, filed on January 13,
2009.
|
5.1*
|
Opinion
of Lowenstein Sandler PC.
|
12.1
|
Statement
of Ratio of Earnings to Fixed Charges, is incorporated by reference to
Exhibit 12.1 of the Registrant's Annual Report on Form 10-K for the year
ended December 31, 2008.
|
23.1
|
Consent
of Independent Registered Public Accounting
Firm.
|
23.2*
|
Consent
of Lowenstein Sandler PC (included in Exhibit
5.1).
|
*Filed with initial Registration
Statement on Form S-3 (No. 333-157189).
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 of
1933;
(ii) To
reflect in the prospectus any facts or event 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 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),
(a)(1)(ii) and (a)(1)(iii) do not apply if the registration statement is on Form
S-3 or Form F-3 and the information required to be included in a post-effective
amendment by those paragraphs is contained in 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, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is part of
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 foregoing provisions or otherwise, the registrant has
been advised that in the opinion of the SEC 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 of 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 it meets all of the requirements for filing
on Form S-3 and has duly caused this Amendment No. 1 to its Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Township of Union, State of New Jersey, on the 22nd day
of April, 2009.
|
CENTER
BANCORP, INC.
|
|
By: /s/ Anthony C.
Weagley
|
|
Anthony
C. Weagley
|
|
President
and Chief Executive Officer
|
Pursuant
to the requirements of the Securities Act of 1933, this Amendment No. 1 to the
Registration Statement has been signed below on the 22nd day of April, 2009
by the following persons in the capacities indicated below.
/s/ Alexander
A. Bol*
Alexander
A. Bol
Chairman
|
/s/ Hugo
Barth III*
Hugo
Barth III
Director
|
|
|
/s/ Brenda
Curtis*
Brenda
Curtis
Director
|
/s/ John J.
Delaney Jr.*
John
J. Delaney Jr.
Director
|
|
|
/s/ James
J. Kennedy*
James
J. Kennedy
Director
|
/s/ Howard
Kent*
Howard
Kent
Director
|
|
|
/s/ Elliot
I. Kramer*
Elliot
I. Kramer
Director
|
/s/ Harold
Schechter*
Harold
Schechter
Director
|
|
|
/s/ Lawrence
B. Seidman*
Lawrence
B. Seidman
Director
|
/s/ William
A. Thompson*
William
A. Thompson
Director
|
|
|
/s/ Raymond
Vanaria*
Raymond
Vanaria
Director
|
/s/ Nicholas
Minola*
Nicholas
Minola
Director
|
|
|
/s/ A.
Richard Abrahamian
A.
Richard Abrahamian
Senior
Vice President and Chief Financial Officer
|
/s/ Anthony
C. Weagley
Anthony
C. Weagley
President
and Chief Executive Officer
|
|
|
*By: /s/ Anthony
C. Weagley
Anthony
C. Weagley
Attorney-in-Fact
|
|
EXHIBIT
INDEX
3.1
|
Registrant's
Certificate of Incorporation, as amended, is
incorporated by reference to Exhibit 3.1 of the Registrant's Current
Report on Form 8-K, filed on January 13,
2009.
|
3.2
|
Registrant's
Bylaws are incorporated by reference to Exhibit 3.2 of the Registrant's
Annual Report on Form 10-K for the year ended December 31,
1998.
|
4.1
|
Warrant
to purchase up to 173,410 shares of Common Stock, dated January 9, 2009,
is incorporated by reference to Exhibit 4.1 of the Registrant’s Current
Report on Form 8-K, filed on January 13,
2009.
|
5.1*
|
Opinion
of Lowenstein Sandler PC.
|
12.1
|
Statement
of Ratios of Earnings to Fixed Charges, is incorporated by reference to
Exhibit 12.1 of the Registrant's Annual Report on Form 10-K for the year
ended December 31, 2008.
|
23.1
|
Consent
of Independent Registered Public Accounting
Firm.
|
23.2*
|
Consent
of Lowenstein Sandler PC (included in Exhibit
5.1).
|
*Filed with initial Registration
Statement on Form S-3 (No. 333-157189).