CBNJ Cape Bancorp, Inc.

As filed with the Securities and Exchange Commission on January 9, 2015

Registration No. 333-200445

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

PRE-EFFECTIVE AMENDMENT NO. 2 TO THE
FORM S-4

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

CAPE BANCORP, INC.

(Exact name of registrant as specified in its charter)

 

Maryland	6035	26-1294270
(State or other jurisdiction of	(Primary Standard Industrial	(I.R.S. Employer
incorporation or organization)	Classification Code Number)	Identification Number)

 

225 North Main Street

Cape May Court House, New Jersey 08210

(609) 465-5600

(Address, Including Zip Code, and Telephone Number, Including Area Code, of

Registrant’s Principal Executive Offices)

 

Michael D. Devlin

President and Chief Executive Officer

225 North Main Street

Cape May Court House, New Jersey 07302

(609) 465-5600

(Address, Including Zip Code, and Telephone Number, Including Area Code, of

Agent for Service)

 

Copies to:

 

Marc Levy, Esq.		Robert A. Schwartz, Esq.
Eric Luse, Esq		John Bitar, Esq.
Luse Gorman Pomerenk & Schick, P.C.		Windels Marx Lane & Mittendorf, LLP
5335 Wisconsin Avenue, N.W., Suite 780		120 Albany Street Plaza, 6th Floor
Washington, D.C. 20015		New Brunswick, NJ 08901
Phone:  (202) 274-2000		Phone:  (732) 846-7600

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.

 

If the securities being registered on this Form are to be offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box: ¨

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) 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. ¨

 

If this Form is a post-effective amendment filed pursuant to Rule 462(d) 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. ¨

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer ¨

Accelerated filer x

Non-accelerated filer ¨

Smaller reporting company ¨

 

If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:

 

Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer)      ¨

 

Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)      ¨

 

CALCULATION OF REGISTRATION FEE

 

Title of each class of securities to be registered

Amount to be registered

Proposed maximum offering price per share

Proposed maximum aggregate offering price

Amount of registration fee

Common Stock, $0.01 par value per share

3,307,678 shares (1)

(2)

$51,360,081 (2)

$5,968 (3)

(1)

Represents the estimated maximum number of shares of Cape Bancorp, Inc. common stock estimated to be issuable upon the completion of the merger to which this Registration Statement relates.

(2)

Pursuant to Rule 457(f), the registration fee was computed on the basis of $51,360,081, the market value of the common stock of Colonial Financial Services, Inc. to be exchanged or cancelled in the merger, computed in accordance with Rule 457(c) multiplied by the number of shares of common stock of Colonial Financial Services, Inc. that may be received by the Registrant and/or cancelled upon consummation of the merger.

(3)

Previously paid.

 

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 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 Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

 

 

EXPLANATORY NOTE

This Amendment No. 2 is being filed solely to file exhibit 8.1 to this Registration Statement (Registration No. 333-200445), and no changes or additions are being made hereby to the joint proxy statement/prospectus constituting Part I of this Registration Statement or to Items 20 or 22 of Part II of this Registration Statement. Accordingly, such joint proxy statement/prospectus and Items 20 and 22 of Part II have not been included herein.

 

 

 

PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

 

Item 21.  Exhibits and Financial Statement Schedules

 

The exhibits and financial statements filed as part of this Registration Statement are as follows:

 

Exhibits

 

2.1	Agreement and Plan of Merger by and among Cape Bancorp, Inc. and Colonial Financial Services, Inc. (Filed as an exhibit to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on September 11, 2014/File No. 001-33934.)
3.1	Articles of Incorporation of Cape Bancorp, Inc.  (Filed as an exhibit to the Registration Statement on Form S-1 of Cape Bancorp, Inc. (file no. 333-146178), originally filed with the Securities and Exchange Commission on September 19, 2007.)
3.2	Amended and Restated Bylaws of Cape Bancorp, Inc. (Filed as an exhibit to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on September 17, 2013/File No. 001-33934.)
4	Form of Common Stock Certificate of Cape Bancorp, Inc. (Filed as an exhibit to the Registration Statement on Form S-1 of Cape Bancorp, Inc. (file no. 333-146178), originally filed with the Securities and Exchange Commission on September 19, 2007.)
5.1	Opinion of Luse Gorman Pomerenk & Schick, P.C., as to the legality of the security being issued*
8.1	Form of Opinion of Luse Gorman Pomerenk & Schick, P.C., as to tax matters

 

 

 

10.1	Form of Employee Stock Ownership Plan (Filed as an exhibit to the Registration Statement on Form S-1 of Cape Bancorp, Inc. (file no. 333-146178), originally filed with the Securities and Exchange Commission on September 19, 2007.)
10.2	Employment Agreement for Michael D. Devlin (Filed as an exhibit to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on September 25, 2012.)
10.3	Change in Control Agreement for Guy Hackney (Filed as an exhibit to the Company’s Current Report on Form 8-K filed on October 6, 2010.)
10.4	Change in Control Agreement for James McGowan, Jr. (Filed as an exhibit to the Company’s Current Report on Form 8-K filed on October 6, 2010.)
10.5	Change in Control Agreement for Michele Pollack (Filed as an exhibit to the Company’s Current Report on Form 8-K filed on October 6, 2010.)
10.6	Change in Control Agreement for Charles L. Pinto (Filed as an exhibit to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on July 7, 2011.)
10.7	Form of Director Retirement Plan (Filed as an exhibit to the Registration Statement on Form S-1 of Cape Bancorp, Inc. (file no. 333-146178), originally filed with the Securities and Exchange Commission on September 19, 2007.)
10.8	2008 Equity Incentive Plan (Filed as an exhibit to the Company’s Definitive Proxy Statement filed with the Securities and Exchange Commission on July 16, 2008.)
16	Letter of Baker Tilly Virchow Krause, LLP certifying a change in accountants*
21	Subsidiaries of Cape Bancorp, Inc. (Filed as an exhibit to the Company’s December 31, 2013 Annual Report to Stockholders on Form 10-K filed with the Securities and Exchange Commission on March 11, 2014/File No. 001-33934)
23.1	Consent of Crowe Horwath LLP *
23.2	Consent of KPMG LLP *
23.3	Consent of BDO USA, LLP *
23.4	Consent of Baker Tilly Virchow Krause, LLP *
23.5	Consent of Keefe, Bruyette & Woods, Inc. *
23.6	Consent of FinPro Capital Advisors, Inc. *
23.7	Consent of Sterne, Agee & Leach, Inc. *
23.8	Consent of Luse Gorman Pomerenk & Schick, a Professional Corporation (set forth in Exhibits 5.1 and 8.1)
24	Power of attorney (set forth on the signature pages to this Registration Statement)
99.1	Consent of Proposed Director*
99.2	Consent of Proposed Director*

 

*

Previously filed.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cape May Court House, State of New Jersey, on January 9, 2015 .

		CAPE BANCORP, INC.
	By:	/s/ Michael D. Devlin
		Michael D. Devlin
		President, Chief Executive Officer and Director
		(Duly Authorized Representative)

 

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signatures		Title		Date
/s/ Michael D. Devlin		President, Chief Executive Officer and Director		January 9, 2015
Michael D. Devlin		(Principal Executive Officer)
/s/ Guy Hackney		Executive Vice President and Chief Financial Officer		January 9, 2015
Guy Hackney		(Principal Financial and Accounting Officer)
*		Director		January 9, 2015
James J. Lynch
*		Director		January 9, 2015
Agostino R. Fabietti
*		Director		January 9, 2015
Roy Goldberg
*		Director		January 9, 2015
Benjamin D. Goldman
*		Director		January 9, 2015
Frank J. Glaser

 

 

*		Director		January 9, 2015
Althea L.A. Skeels
*		Director		January 9, 2015
David C. Ingersoll, Jr.
*		Director		January 9, 2015
Matthew J. Reynolds
*		Director		January 9, 2015
Thomas K. Ritter
* Pursuant to a Power of Attorney contained in the signature page to the Registration Statement on Form S-4 of Cape Bancorp, Inc. on November 21, 2014.
/s/ Michael D. Devlin
Michael D. Devlin

 

 

 

Exhibit 8.1

 

FORM OF

FEDERAL TAX OPINION

 

____ __, _____

 

Cape Bancorp, Inc.

225 North Main Street

Cape May Court House, New Jersey 08210

 

Ladies and Gentlemen:

Pursuant to the Agreement and Plan of Merger dated as of September 10, 2014 (the “Merger Agreement”) by and between Cape Bancorp, Inc., a Maryland corporation (“Cape Bancorp”), and Colonial Financial Services, Inc., a Maryland corporation (“Colonial Financial”), Colonial Financial will merge with and into Cape Bancorp with Cape Bancorp surviving (the “Merger”). Capitalized terms not otherwise defined in this opinion have the meanings ascribed to such terms in the Merger Agreement.

We have acted as special counsel to Cape Bancorp in connection with the Merger. We are providing our opinion regarding certain federal income tax consequences of the Merger for inclusion in the registration statement on Form S-4 being filed concurrently by Cape Bancorp with the Securities and Exchange Commission. For the purpose of rendering our opinion, we have examined and are relying (without any independent investigation or review thereof), with your permission, upon the truth and accuracy, at all relevant times, of the statements, covenants, representations and warranties contained in the following documents (the “Documents”):

1.	The Merger Agreement;
2.	The registration statement of Cape Bancorp on Form S-4, filed on November 21, 2014, as amended, with the Securities and Exchange Commission with respect to the Cape Bancorp Common Stock to be issued to the common stockholders of Colonial Financial in connection with the Merger (the “Registration Statement”), and the joint proxy statement/prospectus included in the Registration Statement (the “Joint Proxy Statement/Prospectus”);
3.	The representations made to us by Cape Bancorp in its letter to us dated _____ __, _____;
4.	The representations made to us by Colonial Financial in its letter to us dated _____ __, _____; and
5.	Such instruments and documents related to the formation, organization and operation of Cape Bancorp and Colonial Financial and to the consummation of the Merger as we have deemed necessary or appropriate for purposes of our opinion.

 

 

 

Cape Bancorp, Inc.

_____ __, ____

Page 2

 

For purposes of this opinion, we have assumed, with your permission and without independent investigation, (i) that the Merger will be consummated in the manner contemplated by the Joint Proxy Statement/Prospectus and in accordance with the provisions of the Merger Agreement without the waiver of any material conditions to any party’s obligation to effect the Merger or the waiver of any conditions to any party’s obligation to effect the Merger that could adversely affect the qualification of the Merger as a reorganization under Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”), (ii) that original documents (including signatures) are authentic, (iii) that documents submitted to us as copies conform to the original documents, (iv) that there has been (or will be by the date of the Merger) due execution and delivery of all documents where due execution and delivery are prerequisites to the effectiveness of those documents, (v) the accuracy of the statements and representations contained in the Documents, (vi) that covenants and warranties set forth in the Documents will be complied with, and (vii) that the Merger will be effective under applicable state law.

 

Subject to the foregoing and any other assumptions, limitations and qualifications specified herein, it is our opinion that for United States federal income tax purposes, the Merger will be treated as a reorganization within the meaning of Section 368(a) of the Code, and we hereby confirm that the discussion contained in the Joint Proxy Statement/Prospectus under the caption “Material Tax Consequences of the Merger,” subject to the limitations, qualifications and assumptions described therein, constitutes our opinion of the material tax consequences.

 

The foregoing opinion is limited to the federal income tax matters addressed herein, and no other opinions are rendered with respect to other federal tax matters or to any issues arising under the tax laws of any state, locality or foreign country.

 

This opinion is rendered as of the date hereof and we undertake no obligation to update, supplement, modify or revise the opinion expressed herein after the date of this letter to reflect any facts or circumstances which may hereafter come to our attention or which may result from any changes in laws or regulations which may hereafter occur.

 

Our opinion expressed herein is based upon the Code, the Treasury regulations promulgated thereunder, published positions of the Internal Revenue Service and other applicable authorities, administrative pronouncements and judicial authority, all as in effect as of the date hereof. It represents our best legal judgment as to the matters addressed herein, but is not binding on the Internal Revenue Service or the courts. Accordingly, no assurance can be given that the opinion expressed herein, if contested, would be sustained by a court. Furthermore, the authorities upon which we rely may be changed at any time, potentially with retroactive effect. No assurances can be given as to the effect of any such changes on the conclusions expressed in this opinion. If any of the facts and assumptions pertinent to the United States federal income tax treatment of the Merger specified herein or any of the statements, covenants, representations or warranties contained in the Documents are, or later become, inaccurate, such inaccuracy may adversely affect the conclusions expressed in this opinion.

 

 

Cape Bancorp, Inc.

_____ __, ____

Page 3

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us in the section captioned “Material Tax Consequences of the Merger” therein. In giving this consent we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder.

 

	Very truly yours,
	_______________________________________ Luse Gorman Pomerenk & Schick, P.C.