AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON JUNE 10, 1997
REGISTRATION NO. 33-________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
------------------
1ST BERGEN BANCORP
(Exact name of registrant as specified in its charter)
NEW JERSEY
(State or other jurisdiction of incorporation or organization)
22-3409845
(I.R.S. Employer Identification No.)
250 VALLEY BOULEVARD, WOOD-RIDGE, NEW JERSEY 07075
(Address of principal executive offices) (Zip code)
1996 AMENDED AND RESTATED INCENTIVE STOCK OPTION PLAN
1996 AMENDED AND RESTATED STOCK OPTION PLAN FOR OUTSIDE
DIRECTORS
1996 AMENDED AND RESTATED RECOGNITION AND RETENTION PLAN FOR
EXECUTIVE OFFICERS AND EMPLOYEES
1996 AMENDED AND RESTATED RECOGNITION AND RETENTION PLAN FOR
OUTSIDE DIRECTORS
(Full title of the plan)
WILLIAM M. BRICKMAN
PRESIDENT
1ST BERGEN BANCORP
250 VALLEY BOULEVARD
WOOD-RIDGE, NEW JERSEY 07075
(Name and address of agent for service)
201-939-3400
(Telephone number, including area code, of agent for service)
- --------------------------------------------------------------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
================================================================================
Title of Amount to Proposed Proposed Amount of
Securities to be Maximum Maximum Registration
be Registered Registered Offering Aggregate Fee
(1) Price Per Offering Price
Share(2)
- --------------------------------------------------------------------------------
Common Stock,
no par value
per share 444,360 $13.625 $6,054,405 $1,835
================================================================================
(1) Maximum number of shares authorized for issuance pursuant to the
grant of plan share awards or the grant and exercise of stock
options as follows: (i) options to purchase up to 222,180 shares of
common stock under the Registrant's 1996 Amended and Restated
Incentive Stock Option Plan; (ii) options to purchase up to 95,220
shares of common stock under the Registrant's 1996 Amended and
Restated Stock Option Plan for Outside Directors; (iii) plan share
awards for up to 88,872 shares of common stock under the
Registrant's 1996 Amended and Restated Recognition and Retention
Plan for Executive Officers and Employees; and (iv) plan share
awards for up to 38,088 shares of common stock under the
Registrant's 1996 Amended and Restated Recognition and Retention
Plan for Outside Directors. This Registration Statement also relates
to such indeterminate number of additional shares of Common Stock of
the Registrant as may be issuable as a result of stock splits, stock
dividends or similar transactions, as described in such Plans.
(2) Based upon one average of the high and low for the Common Stock as
reported on the NASDAQ National Market on June 6, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the SEC are hereby incorporated by
reference into this Registration Statement:
(a) the Registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 1996;
(b) the Registrant's Transitional Report on Form 10-Q for the quarter
ended December 31, 1996;
(c) the Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997;
(d) the Registrant's Current Report on Form 8-K as filed with the
Securities and Exchange Commission on February 12, 1997, April
30, 1997 and May 5, 1997; and
(e) the description of the Registrant's Common Stock, no par value per
share, contained in the Registrant's Registration Statement on
Form 8-A, as filed with the Securities and Exchange Commission on
February 2, 1996, to register the Common Stock under Section 12(g)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
In addition, all documents subsequently filed by the Registrant with the
SEC pursuant to Sections 12, 13(a), 13(c), 14 and 15(d) of the Exchange Act
after the effective date of this Registration Statement, but prior to the filing
of a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the respective date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or is deemed to be incorporated by reference herein modified or
superseded such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The objective of the following indemnification provision is to assure that
indemnification can be invoked by the Registrant for its directors, officers,
employees and agents and former officers, directors, employees and agents who
incur expenses in proving their honesty and integrity, provided they meet
minimum qualifications touching upon the concept of wrongdoing.
In accordance with the New Jersey Business Corporation Act (being Title
14A of the New Jersey Statutes), Article XI of the Registrant's Certificate of
Incorporation provides as follows:
ARTICLE XI
INDEMNIFICATION
The Corporation shall indemnify its officers, directors, employees and
agents and former officers, directors, employees and agents, and any other
persons serving at the request of the Corporation as an officer, director,
employee or agent of another corporation, association, partnership, joint
venture, trust, or other enterprise, against expenses (including attorneys'
fees, judgments, fines and amounts paid in settlement) incurred in connection
with any pending or threatened action, suit, or proceeding, whether civil,
criminal, administrative or investigative, with respect to which such officer,
director, employee, agent or other person is a party, or is threatened to be
made a party, to the full extent permitted by the New Jersey Business
Corporation Act. The indemnification provided herein (i) shall not be deemed
exclusive of any other right to which any person seeking indemnification may be
entitled under any by-law, agreement, or vote of shareholders or disinterested
directors or otherwise, both as to action in his or her official capacity and as
to action in any other capacity, and (ii) shall inure to the benefit of the
heirs, executors, and the administrators of any such person. The Corporation
shall have the power, but shall not be obligated, to purchase and maintain
insurance on behalf of any person or persons enumerated above against any
liability asserted against or incurred by them or any of them arising out of
their status as corporate directors, officers, employees, or agents whether or
not the Corporation would have the power to indemnify them against such
liability under the provisions of this article.
The Corporation shall, from time to time, reimburse or advance to any
person referred to in this article the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action, suit or
proceeding referred to in this article, upon receipt of a written undertaking by
or on behalf of such person to repay such amount(s) if a judgment or other final
adjudication adverse to the director or officer establishes that the director's
or officer's acts or omissions (i) constitute a breach of the director's or
officer's duty of loyalty to the corporation or its shareholders, (ii) were not
in good faith, (iii) involved a knowing violation of law, (iv) resulted in the
director or officer receiving an improper personal benefit, or (v) were
otherwise of such a character that New Jersey law would require that such
amount(s) be repaid.
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit Number Description of Exhibit
- -------------- ----------------------
4(a) 1996 Amended and Restated Incentive Stock Option Plan
4(b) 1996 Amended and Restated Stock Option Plan for Outside
Directors
4(c) 1996 Amended and Restated Recognition and Retention
Plan for Executive Officers and Employees
4(d) 1996 Amended and Restated Recognition and Retention
Plan for Outside Directors
5(a) Opinion of McCarter & English
23(a) Consent of KPMG Peat Marwick LLP
23(b) Consent of McCarter & English (included in the opinion
filed as Exhibit 5(a) hereto)
ITEM 9. 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 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;
(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; and
(3) To remove from registration by means of 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
Exchange Act 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
<PAGE>
securities at the time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing of Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Borough of Wood-Ridge, State of New Jersey on June 9, 1997.
1ST BERGEN BANCORP
By: /s/ WILLIAM M. BRICKMAN
-----------------------------
William M. Brickman,
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment to its Registration Statement to be signed by the
following persons in the capacities and on the dates indicated.
===============================================================================
Name Title Date
- -------------------------------------------------------------------------------
/s/ WILLIAM M. BRICKMAN
- ----------------------------- President and Chief June 9, 1997
William M. Brickman Executive Officer
/s/ ALBERT E. GOSSWEILER
- ----------------------------- Executive Vice June 9, 1997
Albert E. Gossweiler President and Chief
Financial Officer
/s/ JAMES W. MASON
- ----------------------------- Chairman and June 9, 1997
James W. Mason Director
/s/ BERNARD LEUNG, M.D.
- ----------------------------- Director June 9, 1997
Bernard Leung, M.D.
/s/ ROBERT C. MILLER
- ----------------------------- Director June 9, 1997
Robert C. Miller
/s/ KATHLEEN FISHER
- ----------------------------- Director June 9, 1997
Kathleen Fisher
/s/ ROBERT O'NEILL
- ----------------------------- Director June 9, 1997
Robert O'Neill
/s/ RICHARD MASCH
- ----------------------------- Director June 9, 1997
Richard Masch
===============================================================================
<PAGE>
EXHIBIT INDEX TO REGISTRATION STATEMENT ON FORM S-8
OF
1ST BERGEN BANCORP
Exhibit No. Name of Document Page
- ----------- ---------------- ----
4(a) 1996 Amended and Restated Incentive Stock
Option Plan
4(b) 1996 Amended and Restated Stock Option Plan
for Outside Directors
4(c) 1996 Amended and Restated Recognition and
Retention Plan for Executive Officers and
Employees
4(d) 1996 Amended and Restated Recognition and
Retention Plan for Outside Directors
5(a) Opinion of McCarter & English
23(a) Consent of KPMG Peat Marwick LLP
23(b) Consent of McCarter & English (included in
the opinion filed as Exhibit 5(a) hereto)
EXHIBIT 4(A)
1ST BERGEN BANCORP
1996 AMENDED AND RESTATED
INCENTIVE STOCK OPTION PLAN
1. PURPOSE
The purpose of the 1st Bergen Bancorp (the "Company") 1996 Amended and
Restated Incentive Stock Option Plan (the "Plan") is to advance the interests of
the Company and its shareholders by providing those key employees of the Company
and its Affiliates, including South Bergen Savings Bank, upon whose judgment,
initiative and efforts the successful conduct of the business of the Company and
its Affiliates largely depends, with an additional incentive to perform in a
superior manner. A purpose of the Plan is also to attract people of experience
and ability to the service of the Company and its Affiliates.
2. DEFINITIONS
(a) "Affiliate" means (i) a member of a controlled group of corporations
of which the Company is a member, and (ii) an unincorporated trade or business
which is under common control with the Company as determined in accordance with
Section 414(c) of the Internal Revenue Code of 1986, as amended (the "Code"),
and the regulations issued thereunder. For purposes hereof, a "controlled group
of corporations" shall mean a controlled group of corporations as defined in
Section 1563(a) of the Code determined without regard to Section 1563(a)(4) and
(e)(3)(C).
(b) "Award" means a grant of Non-statutory Stock Options or Incentive
Stock Options under the provisions of this Plan.
(c) "Board of Directors" or "Board" means the Board of
Directors of the Company.
(d) "Change in Control" means
(1) a reorganization, merger, consolidation or sale of all or
substantially all of the assets of the Company, or a similar
transaction in which the Company is not the resulting entity;
or
(2) individuals who constitute the Incumbent Board (as
herein defined) of the Company cease for any
reason to constitute a majority thereof;
(3) the occurrence of a change in control within the
meaning of 12 C.F.R. ss. 574.4; or
(4) (a) an event of a nature that would be required to be reported
in response to Item I of the Current Report on Form 8-K, as in
effect on the date
<PAGE>
hereof, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act"), or results in a
change in control of the Company within the meaning of the
Home Owners' Loan Act of 1933 and the Rules and Regulations
promulgated by the Office of Thrift Supervision or its
predecessor agency, as in effect on the date hereof; or
(5) Without limitation, a change in control shall be deemed to
have occurred at such time as (i) any "person" (as the term is
used in Section 13(d) and 14(d) of the Exchange Act) other
than the Company and excluding the trustee of any employee
benefit plan sponsored by the Company or the Bank or any such
plan itself, is or becomes a "beneficial owner" (as defined in
Rule 13-d under the Exchange Act) directly or indirectly, of
securities of the Company representing 25% or more of the
Company's outstanding securities ordinarily having the right
to vote at the election of directors; or
(6) A proxy statement soliciting proxies from stockholders of the
Company is disseminated by someone other than the current
management of the Company, seeking stockholder approval of a
plan of reorganization, merger or consolidation of the Company
or similar transaction with one or more corporations as a
result of which the outstanding shares of the class of
securities then subject to the plan or transaction are
exchanged or converted into cash or property or securities not
issued by the Company;
(7) A tender offer is made for 25% or more of the voting
securities of the Company and the shareholders owning
beneficially or of record 25% or more of the outstanding
securities of the Company have tendered or offered to sell
their shares pursuant to such tender offer and such tendered
shares have been accepted by the tender offeror.
For these purposes, "Incumbent Board" means the Board of
Directors on the effective date of this Plan, provided that
any person becoming a director subsequent to the date hereof
whose election was approved by a vote of at least
three-quarters of the directors comprising the Incumbent
Board, or whose nomination for election by stockholders was
approved by the same nominating committee serving under an
Incumbent Board, shall be considered as though he were a
member of the Incumbent Board.
<PAGE>
(e) "Committee" means a committee consisting of those members of the
Compensation/Benefits Committee of the Company who are non-employee members of
the Board of Directors, all of whom are "disinterested persons" as such term is
defined under Rule 16b-3 of the Securities Exchange Act of 1934, as amended, as
promulgated by the Securities and Exchange Commission.
(f) "Common Stock" means the Common Stock of the Company,
no par value per share.
(g) "Date of Grant" means the date an Award granted by the Committee is
effective pursuant to the terms hereof.
(h) "Disability" means the permanent and total inability by reason of
mental or physical infirmity, or both, of an employee to perform the work
customarily assigned to him. Additionally, a medical doctor selected or approved
by the Board of Directors must advise the Committee that it is either not
possible to determine when such Disability will terminate or that it appears
probable that such Disability will be permanent during the remainder of said
participant's lifetime.
(i) "Fair Market Value" means, with respect to shares of Common Stock, the
fair market value as determined by the Committee in good faith and in a manner
established by the Committee from time to time; provided, however, that if the
shares of Common Stock are last sale reported over the counter securities, then
the "fair market value" of such shares on any date shall be the average closing
price for such securities for the five (5) trading days immediately preceding
the date in question, as reported on the Nasdaq National Market System.
(j) "Incentive Stock Option" means an Option granted by the Committee to a
Participant, which Option is designated by the Committee as an Incentive Stock
Option pursuant to Section 8 and is intended to qualify as an Incentive Stock
Option Plan under Section 422 of the Code.
(k) "Non-statutory Stock Option" means an Option granted by the Committee
to a Participant pursuant to Section 7, which is not designated by the Committee
as an Incentive Stock Option or which is redesignated by the Committee under
Section 8.1(6) as a Non-statutory Stock Option.
(l) "Option" means Award granted under Section 7 or 8.
(m) "Participant" means an employee of the Company or its affiliates
chosen by the Committee to participate in the Plan.
(n) "Plan Year(s)" means a calendar year or years commencing on or after
January 1, 1996.
(o) "Retirement" means retirement at the normal or early retirement date
as set forth in any tax-qualified or non-tax
<PAGE>
qualified retirement plan of the Company or as determined under any retirement
policy of the Company.
(p) "Section 16" means Section 16 of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder.
(q) "Termination for Cause" means termination because of Participant's
intentional failure to perform stated duties, personal dishonesty, willful
violation of any law, rule regulation (other than traffic violations or similar
offenses) or final cease and desist order.
3. ADMINISTRATION
The Plan shall be administered by the Committee. The Committee is
authorized, subject to the provisions of the Plan, to select participants, to
determine the amount of Awards, to establish the terms and conditions of such
Awards, to establish such rules and regulations as it deems necessary for the
proper administration of the Plan, subject to Subsection 8, to impose a vesting
schedule and to make whatever determinations and interpretations in connection
with the Plan it sees as necessary or advisable. All determinations and
interpretations made by the Committee shall be binding and conclusive on all
Participants in the plan and on their legal representatives and beneficiaries.
4. TYPES OF AWARDS
Awards under the Plan may be granted in any one or a combination of
Non-statutory Stock Options and/or Incentive Stock Options.
5. STOCK SUBJECT TO THE PLAN
Subject to adjustment as provided in Section 14, the maximum number of
shares reserved hereby for purchase pursuant to the exercise of options granted
under the Plan shall not exceed 222,180 shares of Common Stock of the Company.
These shares of Common Stock may be either authorized but unissued shares or
shares previously issued and reacquired by the Company. To the extent that
options granted under the Plan terminate, expire or are canceled without having
been exercised, new awards may be made with respect to these shares.
6. ELIGIBILITY
Officers and other employees of the Company or its affiliates shall be
eligible to receive Awards and Directors who are not employees or officers of
the Company or its affiliates shall not be eligible to receive Awards under the
Plan.
7. NON-STATUTORY STOCK OPTIONS
<PAGE>
7.1 Grant of Non-statutory Stock Options.
The Committee may, from time to time, grant Non-statutory Stock Options to
eligible employees and upon such terms and conditions as the Committee may
determine, and may grant Non-statutory Stock Options in exchange for and upon
surrender of previously granted Awards under this Plan. Non-statutory Stock
Options granted under this Plan are subject to the following terms and
conditions:
(a) Price. The purchase price per share of Common Stock deliverable upon
the exercise of each Non-statutory Stock Option shall be determined by the
Committee on the date the option is granted. Such purchase price shall not be
less than one hundred percent (100%) of the Fair Market Value of the Company's
Common Stock on the Date of Grant. Shares may be purchased only upon full
payment of the purchase price. Payment of the purchase price may be made, in
whole or in part, through the surrender of shares of the Common Stock of the
Company at the Fair Market Value of such shares on the date of surrender.
(b) Terms of Options. The term during which each Non-statutory Stock
Option may be exercised shall be determined by the Committee, but in no event
shall a Non-statutory Stock Option be exercisable in whole or in part more than
ten (10) years from the Date of Grant.
(c) Termination of Employment. Except as provided in Section 7.1(d)
hereof, unless otherwise determined by the Committee, upon the termination of a
Participant's service for any reason other than Disability, death or Termination
for Cause, the Participant's Non-statutory Stock Options shall be exercisable
only as to those shares which were immediately exercisable by the participant at
the date of termination and only for a period of three months following
termination. Notwithstanding any provision set forth herein nor contained in any
Agreement relating to the award of an Option, in the event of Termination for
Cause, all rights under the Participant's Non- statutory Stock Options shall
expire upon termination. In the event of death or termination of service as a
result of Disability of any Participant, all Non-statutory Stock Options held by
the Participant, whether or not exercisable at such time, shall be exercisable
by the Participant or his legal representatives or beneficiaries of the
Participant for one year or such longer period as determined by the Committee
following the date of the Participant's death or termination of employment due
to Disability, provided that in no event shall the period extend beyond the
expiration of the Non-statutory Stock Option term.
(d) Exception for Retirement. Notwithstanding the general rule contained
in Section 7.1(c) above, all options which have become fully vested under the
terms of Section 9 hereof held by a Recipient whose employment with the Company
or an Affiliate
<PAGE>
terminates due to Retirement may be exercised for the lesser of (i) the
remaining term of the option, or (ii) twelve (12) months. Any Incentive Stock
Option exercised more than three (3) months after a Participant's retirement
will be treated as a Non- statutory Stock Option.
8. INCENTIVE STOCK OPTIONS
8.1 Grant of Incentive Stock Options.
The Committee may, from time to time, grant Incentive Stock Options to
eligible employees. Incentive Stock Options granted pursuant to the Plan shall
be subject to the following terms and conditions:
(a) Price. The purchase price per share of Common Stock deliverable upon
the exercise of each Incentive Stock Option shall be not less than one hundred
percent (100%) of the Fair Market Value of the Company's Common Stock on the
Date of Grant. However, if a Participant owns stock possessing more than ten
percent (10%) of the total combined voting power of all classes of Common Stock
of the Company, the purchase price per share of Common Stock deliverable upon
the exercise of each Incentive Stock Option shall not be less than one hundred
ten percent (110%) of the Fair Market Value of the Company's Common Stock on the
Date of Grant. Shares may be purchased only upon payment of the full purchase
price. Payment of the purchase price may be made, in whole or in part, through
the surrender of shares of the Common Stock of the Company at the Fair Market
Value of such shares on the date of surrender.
(b) Amounts of Options. Incentive Stock Options may be granted to any
eligible employee in such amounts as determined by the Committee. In the case of
an option intended to qualify as an Incentive Stock Option, the aggregate Fair
Market Value (determined as of the time the option is granted) of the Common
Stock with respect to which Incentive Stock Options granted are exercisable for
the first time by the Participant during any calendar year shall not exceed
$100,000. The provisions of this Section 8.1(b) shall be construed and applied
in accordance with Section 422(d) of the Code and the regulations, if any,
promulgated thereunder. To the extent an award is in excess of such limit, it
shall be deemed a Non-statutory Stock Option. The Committee shall have
discretion to redesignate options granted as Incentive Stock Options as
Non-statutory options.
(c) Terms of Options. The term during which each Incentive Stock Option
may be exercised shall be determined by the Committee, but in no event shall an
Incentive Stock Option be exercisable in whole or in part more than ten (10)
years from the Date of Grant. If at the time an Incentive Stock Option is
granted to an employee, the employee owns Common Stock representing more than
ten percent (10%) of the total combined voting power of the Company (or, under
Section 422(d) of the
<PAGE>
Code, is deemed to own Common Stock representing more than ten percent (10%) of
the total combined voting power of all such classes of Common Stock, by reason
of the ownership of such classes of Common Stock, directly or indirectly, by or
for any brother, sister, spouse, ancestor or lineal descendent of such employee,
or by or for any corporation, partnership, estate or trust of which such
employee is a shareholder, partner or beneficiary), the Incentive Stock Option
granted to such employee shall not be exercisable after the expiration of five
years from the Date of Grant. No Incentive Stock Option granted under this Plan
is transferable except by will or the laws of descent and distribution and is
exercisable in his lifetime only by the Participant to whom it is granted.
(d) Termination of Employment. Except as provided in Section 8.1(e)
hereof, upon the termination of a Participant's service for any reason other
than Disability, death or Termination for Cause, the Participant's Incentive
Stock Options shall be exercisable by the Participant at the date of termination
and only for a period of three months following termination. Notwithstanding any
provisions set forth herein nor contained in any Agreement relating to an award
of an Option, in the event of Termination for Cause all rights under the
Participant's Incentive Stock Options shall expire immediately upon termination.
Unless otherwise determined by the Committee, in the event of death or
termination of service as a result of Disability of any Participant, all
Incentive Stock Options held by such Participant, whether or not exercisable at
such time, shall be exercisable by the Participant or the participant's legal
representatives or beneficiaries of the Participant for one year following the
date of the participant's death or termination of employment as a result of
Disability. In no event shall the exercise period extend beyond the expiration
of the Incentive Stock Option term.
(e) Exception for Retirement. Notwithstanding the general rule contained
in Section 8.1(d) above, all options which have become fully vested under the
terms of Section 9 hereof held by a Participant whose employment with the
Company or an Affiliate terminates due to Retirement may be exercised for the
lesser of (i) the remaining term of the option or (ii) twelve (12) months. Any
Incentive Stock Option exercised more than three (3) months after a
Participant's Retirement will be treated as a Non-statutory Stock Option.
(f) Compliance with Code. The options granted under this Section 8 of the
Plan are intended to qualify as incentive stock options within the meaning of
Section 422 of the Code, but the Company makes no warranty as to the
qualification of any option as an incentive stock option within the meaning of
Section 422 of the Code.
<PAGE>
9. VESTING REQUIREMENTS
Notwithstanding anything contained in Section 3 hereof, in compliance with
the regulations of the Office of Thrift Supervision ("OTS"), all options granted
hereunder, whether under Section 7 or Section 8, shall be subject to the
following minimum vesting schedule:
All options shall be subject to a five-year vesting schedule, vesting
twenty percent (20%) a year, with vesting commencing on the first anniversary of
the date of grant. By the fifth anniversary of the date of grant, all options
shall have vested; provided, however, that in the event of a Participant's
Disability, death or Retirement, or in the event of the occurrence of a Change
In Control, all options then held by such Participant or his estate shall become
immediately exercisable for the terms set forth in Sections 7 and 8 hereof.
The Committee shall have the authority in its discretion, to impose
greater vesting requirements than those set forth above.
10. SURRENDER OPTION
In the event of a Participant's termination of employment as a result of
death, disability or Retirement, the Participant (or the Participant's personal
representative(s), heir(s), or devisee(s)) may, in a form acceptable to the
Committee, make application to surrender all or part of options held by such
Participant in exchange for a cash payment from the Company of an amount equal
to the difference between the Fair Market Value of the Common Stock on the date
of termination of employment and the exercise price per share of the option on
the Date of Grant. Although it is anticipated that the Committee will not
unreasonably object to such an application, whether the Committee accepts such
application or determines to make payment, in whole or part is within its
absolute and sole discretion, it being expressly understood that the Committee
is under no obligation to any Participant whatsoever to make such payments. In
the event that the Committee accepts such application and the Company determines
to make payment, such payment shall be in lieu of the exercise of the underlying
option and such option shall be canceled.
11. RIGHTS OF A SHAREHOLDER: NONTRANSFERABILITY
No Participant shall have any rights as a shareholder with respect to any
shares covered by a Non-statutory and/or Incentive Stock Option until the date
of issuance of a stock certificate for such shares. Nothing in this Plan or in
any Award granted confers on any person any right to continue in the employ of
the Company or its Affiliates or to continue to perform services for the Company
or its Affiliates or interferes in any way with the right of the Company or its
Affiliates to terminate a
<PAGE>
Participant's services as an officer or other employee at any time.
No Award under the Plan shall be transferable by the Participant other
than by will or the laws of descent and distribution and may only be exercised
during his lifetime by the Participant or by a guardian or legal representative.
12. AGREEMENT WITH GRANTEES
Each Award of Options will be evidenced by a written agreement, executed
by the Participant and the Company which describes the conditions for receiving
the Awards including the date of Award, the exercise price, applicable vesting
and exercise periods, and any other terms and conditions as may be required by
the Board of Directors or applicable securities law.
13. DILUTION AND OTHER ADJUSTMENTS
a) In the event of any change in the outstanding shares of Common Stock of
the Company by reason of any stock dividend or split, recapitalization,
combination or exchange of shares, or other similar corporate change, or other
increase or decrease in such shares without receipt or payment of consideration
by the Company, the Committee will make such adjustments to previously granted
Awards, to prevent dilution or enlargement of the rights of the Participant,
including any or all of the following:
(a) adjustments in the aggregate number or kind of shares
of Common Stock which may be awarded under the Plan;
(b) adjustments in the aggregate number or kind of shares of Common
Stock covered by Awards already made under the Plan; and/or
(c) adjustments in the purchase price of outstanding Incentive and/or
Non-statutory Stock Options, or any limited rights attached to such
options.
No such adjustments may, however, materially change the value of benefits
available to a Participant under a previously granted Award.
b) In the event of a consolidation, reorganization, merger or sale of all
or substantially all of the assets of the Company in which outstanding shares of
Common Stock are exchanged for securities, cash or other property of any other
corporation or business entity or in the event of a liquidation of the Company,
the Committee and the Board of Directors will take one or more of the following
actions, as to outstanding options: (i) provide that such options shall be
assumed, or equivalent options shall be substituted, by the acquiring or
succeeding corporation (or an affiliate thereof), provided that any such options
substituted for Incentive Stock Options shall meet the requirements of
<PAGE>
Section 424(a) of the Code, or (ii) in the event of a merger under the terms of
which holders of the Common Stock of the Company will receive upon consummation
thereof a cash payment for each share surrendered in the merger (the "Merger
Price"), make or provide for a cash payment to the Participants equal to the
difference between (A) the Merger Price times the number of shares of Common
Stock subject to such outstanding Options (to the extent then exercisable at
prices not in excess of the Merger Price) and (B) the aggregate exercise price
of all such outstanding Options in exchange for the termination of such Options.
14. TAX WITHHOLDING
The Participant shall pay to the Company, or make provision satisfactory
to the Committee for payment of, any taxes required by law to be withheld in
respect of options under the Plan no later than the date of the event creating
the tax liability. In the Committee's sole discretion, a Participant (other than
a Participant subject to Section 16, who shall be subject to the following
sentence) may elect to have such tax obligations paid, in whole or in part, in
shares of Common Stock, including shares retained from the option creating the
tax obligation. With respect to Participants subject to Section 16, upon the
issuance of shares of Common Stock in respect of an option, such number of
shares issuable shall be reduced by the number of shares necessary to satisfy
such Participant's federal, and where applicable, state withholding tax
obligations. For withholding tax purposes, the value of the shares of Common
Stock shall be the Fair Market Value on the date the withholding obligation is
incurred. The Company may, to the extent permitted by law, deduct any such tax
obligations from any payment of any kind otherwise due to the Participant.
15. AMENDMENT OF THE PLAN
The Committee may at any time, and from time to time, modify or amend the
Plan in any respect; provided that shareholder approval shall be required for
any such modification or amendment which:
(a) materially increases the maximum number of shares for which options
may be granted under the Plan (subject, however, to the provisions
of Section 13 hereof);
(b) reduces the exercise price at which Awards may be
granted (subject, however, to the provisions of Section
13 hereof);
(c) extends the period during which options may be granted
or exercised beyond the times originally prescribed; or
(d) changes the persons eligible to participate in the
Plan.
<PAGE>
Failure to ratify or approve amendments or modifications to subsections
(a) through (d) of this Section by shareholders shall be effective only as to
the specific amendment or modification requiring such ratification. Other
provisions, sections, and subsections of this Plan will remain in full force and
effect.
No such termination, modification or amendment may affect the rights of a
Participant under an outstanding Award.
16. APPROVAL AND EFFECTIVE DATE OF PLAN
The Plan will be effective as of April 1, 1997.
17. TERMINATION OF THE PLAN
The right to grant Awards under the Plan will terminate ten (10) years
after the Effective Date of the Plan. The Board of Directors has the right to
suspend or terminate the Plan at any time, provided that no such action will,
without the consent of a Participant, adversely affect his rights under a
previously granted Award.
18. APPLICABLE LAW
In the absence of controlling Federal law, the Plan will be administered
in accordance with the laws of the State of New Jersey.
19. COMPLIANCE WITH SECTION 16 OF THE EXCHANGE ACT
Transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange Act. To the extent
any provisions of the Plan or action by the Committee fail to so comply, it
shall be deemed null and void, to the extent permitted by law and deemed
advisable by the Committee.
Notwithstanding any other provision of the Plan, in order to qualify for
the exemption provided by Rule 16b-3 of the Exchange Act, any Common Stock
acquired by a Participant subject to Section 16 upon exercise of an Option may
not be sold for six (6) months after the date of grant of the Option.
EXHIBIT 4(B)
1ST BERGEN BANCORP
1996 AMENDED AND RESTATED
STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
I. PURPOSES
The purposes of the 1st Bergen Bancorp (the "Company") 1996 Amended and
Restated Stock Option Plan for Outside Directors of the Company and its
affiliates, including the outside directors of South Bergen Savings Bank (the
"Bank") (the "Directors' Option Plan" or the "Plan") are to promote the growth
and profitability of the Company and the Bank by providing outside directors of
the Company and its affiliates with an incentive to achieve long-term objectives
of the Company and to attract and retain outside directors of outstanding
competence by providing such outside directors with an opportunity to acquire an
equity interest in the Company.
II. GRANT OF OPTIONS
(a) Initial Grant. Each Outside Director (for purposes of this Directors'
Option Plan, the term "Outside Director" shall mean a member of the Board of
Directors of the Company (the "Board") or any of its affiliates who is not also
serving as a full-time employee of the Company or any of its affiliates), who
was serving in such capacity on the date of the Company's initial public
offering and is still serving at the effective date of this Directors' Option
Plan, is hereby granted non-statutory stock options to purchase 15,870 shares of
common stock, no par value, of the Company ("Common Stock").
The purchase price per share of the Common Stock deliverable upon the
exercise of each non-statutory stock option shall be the Fair Market Value, as
defined in Section II(d), of the Common Stock on the date of grant. The
effective date of these initial grants shall be the effective date of the
Directors' Option Plan as defined in Section V hereof ("Effective Date").
(b) Grants to Subsequent Outside Directors. To the extent options are
available for grant under the Directors' Option Plan, each outside director who
is first appointed as a director of the Company subsequent to the Effective Date
(a "Subsequent Outside Director") is hereby granted, as of the date on which
such Subsequent Outside Director is qualified and first begins to serve,
non-statutory stock options to purchase 7,935 shares of Common Stock, subject to
adjustment pursuant to Section IV, or to purchase such lesser number of shares
of Common Stock as remain in this Directors' Option Plan.
The purchase price per share of the Common Stock deliverable upon exercise
of such option shall equal the Fair Market value of
<PAGE>
the Common Stock on the date of the grant of this option as determined under
paragraph (d) of this Section II.
If options for sufficient shares are not available under the Directors'
Option Plan to fulfill the grant under Section II(b) hereof to any Subsequent
Outside Director first elected subsequent to the Effective Date, and thereafter
options become available under the Directors' Option Plan, such Subsequent
Outside Director shall then receive options to purchase an amount of shares of
Common Stock determined by dividing equally among each Subsequent Outside
Director, options for the number of shares then available under the Outside
Directors' Plan, not to exceed options for shares with the values set forth in
the preceding two paragraphs with respect to Subsequent Outside Directors,
subject to adjustment under Section IV as appropriate. The date of grant shall
be the date options for such shares become available. The purchase price per
share of the Common Stock deliverable upon exercise of such options shall equal
the Fair Market Value of the Common Stock on the date the option is granted as
determined under the paragraph (d) of this Section II.
(c) Ineligibility. An option under the Directors' Option Plan shall not be
granted to any Outside Director who at any previous time was an employee of
either the Company or the Bank and in such capacity was eligible to receive any
options to purchase Common Stock.
(d) Fair Market Value. "Fair Market Value" means, with respect to shares
of Common Stock, the fair market value as determined by the
Compensation/Benefits Committee of the Company (the "Committee") in good faith
and in a manner established by the Committee from time to time; provided,
however, if the shares of Common Stock are last sale reported over the counter
securities, then the "fair market value" of such shares on any date shall be the
average closing price for such securities for the five (5) trading days
immediately preceding the date in question, as reported on the Nasdaq National
Market System.
III. TERMS AND CONDITIONS
(a) Option Agreement. Each option shall be evidenced by a written option
agreement between the Company and the recipient specifying the number of shares
of Common Stock that may be acquired through its exercise and containing such
other terms and conditions which are not inconsistent with the terms of this
grant.
(b) Vesting. Each option granted pursuant to Section II(a) or (b) hereof
shall become exercisable in five annual installments of twenty percent (20%);
provided, however, that in the event of recipient's termination of service due
to death, Disability or Retirement, the provisions of subsection (e) hereof
shall govern and in the event of a Change In Control, all options
<PAGE>
then held by such recipient or his estate shall immediately become exercisable.
Unless accelerated pursuant to the foregoing sentence, the first installment of
options granted pursuant to Section II(a) or (b) shall vest one year from the
date of grant.
For purposes of this provision, a "Change In Control" shall mean:
(1) a reorganization, merger, consolidation or sale of all or
substantially all of the assets of the Company, or a similar
transaction in which the Company is not the resulting entity;
or
(2) individuals who constitute the Incumbent Board (as herein
defined) of the Company cease for any reason to constitute a
majority thereof; or
(3) the occurrence of a change in control within the meaning of 12
C.F.R. ss. 574.4; or
(4) (a) an event of a nature that would be required to be reported
in response to Item I of the Current Report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act"), or
which results in a change in control of the Company within the
meaning of the Home Owners' Loan Act of 1933 and the Rules and
Regulations promulgated by the Office of Thrift Supervision or
its predecessor agency, as in effect on the date hereof; or
(5) Without limitation, a change in control shall be deemed to
have occurred at such time as (i) any "person" (as the term is
used in Section 13(d) and 14(d) of the Exchange Act) other
than the Company, and excluding the trustee of any Employee
benefit plan sponsored by the Company or the Bank or any such
plan itself, is or becomes a "beneficial owner" (as defined in
Rule 13-d under the Exchange Act) directly or indirectly, of
securities of the Company representing 25% or more of the
Company's outstanding securities ordinarily having the right
to vote at the election of directors; or
(6) A proxy statement soliciting proxies from stockholders of the
Company is disseminated by someone other than the current
management of the Company, seeking stockholder approval of a
plan of reorganization, merger or consolidation of the Company
or similar transaction with one or more corporations as a
result of which the outstanding shares of the class of
securities then subject to the plan or transaction are
exchanged or converted
<PAGE>
into cash or property or securities not issued by the Company;
(7) A tender offer is made for 25% or more of the voting
securities of the Company and the shareholders owning
beneficially or of record 25% or more of the outstanding
securities of the Company have tendered or offered to sell
their shares pursuant to such tender offer and such tendered
shares have been accepted by the tender offeror.
For these purposes, "Incumbent Board" means the Board of Directors on the
effective date of this Plan, provided that any person becoming a director
subsequent to the date hereof whose election was approved by a vote of at least
three-quarters of the directors comprising the Incumbent Board, or whose
nomination for election by stockholders was approved by the same nominating
committee serving under an Incumbent Board, shall be considered as though he
were a member of the Incumbent Board.
(c) Manner of Exercise. The option, when vested, may be exercised from
time to time, in whole or in part, by delivering a written notice of exercise to
the Chief Financial Officer of the Company signed by the recipient. Such notice
is irrevocable and must be accompanied by full payment of the exercise price (as
determined under Section II(a) or (b) hereof) in cash or shares of previously
acquired Common Stock at the Fair Market Value of such shares determined on the
exercise date.
(d) Transferability. Each option granted hereby may be exercised only by
the recipient to whom it is issued, or in the event of the Outside Director's
death, his or her personal representative(s) or designee(s), heir(s) or
devisee(s) pursuant to the terms of Section III(e) hereof or as otherwise
provided by Rule 16b-3 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(e) Termination of Service. Upon the termination of a recipient's service
for any reason other than Disability, death or Retirement, the recipient's stock
option shall be exercisable only as to those shares which were immediately
exercisable by the recipient at the date of termination of service. Unless such
termination of service was for Cause, such options shall remain exercisable for
the lesser of (i) the remaining term of the option or (ii) twelve (12) months.
If a recipient is removed for Cause, all options granted to such recipient
hereunder shall immediately terminate.
In the event of the death of a recipient or the termination of service of
a recipient due to Disability or Retirement, all stock options held by such
recipient, whether or not exercisable at such time, shall become immediately
exercisable by the recipient or the recipient's legal representatives or
<PAGE>
beneficiaries and shall remain exercisable by the recipient or his/her estate
for the lesser of (i) the remaining term of the option or (ii) twelve months.
For purposes of this Plan, "Disability" means the permanent and total
inability by reason of mental or physical infirmity, or both, of an outside
director to participate in the work of the Board and any committees thereof to
which he/she may be assigned, including attending meetings of the Board and such
committees. Additionally, a medical doctor selected or approved by the Board of
Directors must advise the Board that it is either not possible to determine when
such disability will terminate or that it appears probable that such disability
will be permanent during the remainder of said recipient's lifetime. "Cause"
means the removal of an Outside Director or Subsequent Outside Director because
of a material loss to the Company or one of its affiliates caused by the Outside
Director or Subsequent Outside Director's personal dishonesty, willful
misconduct, any breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, or the willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or final cease
and desist order.
For purposes of this Plan, `Retirement' means cessation of service on the
Company's Board of Directors after age 65 with at least ten years of service as
a member of the Board of Directors of the Corporation or the Bank
(f) Termination of Option. Options shall expire one hundred and twenty
(120) months following the date of grant.
IV. COMMON STOCK SUBJECT TO THE DIRECTORS' OPTION PLAN
(a) Subject to adjustment as provided in paragraph (b) hereof, the maximum
number of shares reserved hereby for purchase pursuant to the exercise of
options granted under the Plan shall not exceed 95,220 shares of Common Stock of
the Company. These shares of Common Stock may be either authorized but unissued
shares or shares previously issued and reacquired by the Company. To the extent
that options granted under the Plan terminate, expire or are canceled without
having been exercised, new awards may be made with respect to these shares.
(b) In the event of any change or changes in the outstanding Common Stock
of the Company effected without receipt of consideration by the Company or
payment of consideration by the Company, such as by any stock dividend or split,
recapitalization, reorganization, combination or any similar corporate change,
or other increase or decrease in such shares, the number of shares of Common
Stock which may be issued under this Directors' Option Plan, the number of
shares of Common Stock subject to options granted under this Directors' Option
Plan and the option price of such options, shall be automatically adjusted
<PAGE>
to prevent dilution or enlargement of the rights granted to recipient under this
Directors' Option Plan.
(c) In the event of a consolidation, merger, reorganization or sale of all
or substantially all of the assets of the Company in which outstanding shares of
Common Stock are exchanged for securities, cash or other property of any other
corporation or business entity or in the event of a liquidation of the Company
(collectively an "Extraordinary Event"), the following rules shall apply: (i)
holders of Options shall continue to have the right to exercise their
unexercised but currently exercisable Options on or before the day before the
date of consummation of the Extraordinary Event, (ii) if any Option holders
shall not have exercised their Options on or before the date of such
consummation and if, under the terms of the Extraordinary Event, holders of the
Common Stock of the Company will receive upon consummation thereof payment in
cash, securities or other property (the "Event Payment") for each share
surrendered in the Extraordinary Event (the "Event Price"), then an Event
Payment equal to the difference between (A) the Event Price times the number of
shares of Common Stock subject to each Outside Director's outstanding Options
(to the extent then exercisable at prices not in excess of the Event Price) and
(B) the aggregate exercise price of all such outstanding Options shall be made
to each Outside Director in exchange for the termination of such Options, (iii)
notwithstanding the foregoing provisions of clause (ii), if the Extraordinary
Event involves an exchange by the acquiring party solely of its voting
securities in a reorganization pursuant to which holders of the Common Stock
will not recognize gain or loss on the exchange of such securities until such
holders dispose of the new voting securities acquired in such exchange, then the
acquiring party shall have the right to provide that such Options shall be
assumed, or equivalent options shall be substituted by the acquiring or
succeeding corporation (or an affiliate thereof); provided that the Outside
Director shall not, as a result of such provision, be required to recognize gain
or loss on the exchange of Options, (iv) in no event shall the operation of the
foregoing provisions be permitted to cause the Outside Director or the Plan to
fail to comply with Rule 16b-3 of the Exchange Act, and (v) in the unlikely
event any Options shall remain outstanding after giving effect to the foregoing
provisions such Options shall terminate on the date the Extraordinary Event is
consummated.
V. APPROVAL AND EFFECTIVE DATE OF THE PLAN
The Plan shall be effective as of April 15, 1997.
VI. TERMINATION OF THE PLAN
The right to grant options under the Directors' Option Plan will terminate
automatically ten (10) years after the Effective Date of the Plan. A majority of
the outstanding shares of the Common Stock entitled to vote is required to
terminate the
<PAGE>
Directors' Option Plan for any other reason; provided, however, no such
termination shall, without the consent of the affected recipient, affect such
recipient's rights under a previously granted option.
VII. TAXES
There may be deducted from each distribution of Common Stock under the
Plan sufficient amounts to cover for any applicable tax obligations incurred as
a result of the exercise of options under the Plan.
VIII. AMENDMENT OF THE PLAN
The Directors' Option Plan may be amended form time to time by the Board
of Directors of the Company provided that Sections II and III hereof shall not
be amended more than once every six months other than to comport with the
Internal Revenue Code of 1986, as amended, or the Employee Retirement Income
Security Act of 1974, as amended, or the rules thereunder. Except as provided in
Section IV hereof, rights and obligations under any option granted before an
amendment shall not be altered or impaired by such amendment without the written
consent of the optionee. If any amendment would require shareholder approval
under Rule 16b-3 of the Exchange Act, such amendment shall be presented to
shareholders for ratification, provided, however, that the failure to obtain
shareholder ratification shall not affect the validity of this Plan as so
amended and the options granted thereunder.
IX. APPLICABLE LAW
In the absence of controlling Federal law, the Plan will be administered
in accordance with the laws of the State of New Jersey.
X. COMPLIANCE WITH SECTION 16 OF THE EXCHANGE ACT
Transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange Act. To the extent
that any provision of the Plan fails to so comply, such provision shall be
deemed null and void, to the extent permitted by law. Notwithstanding any other
provision of the Plan, in order to qualify for the exemption provided by Rule
16b-3 under the Exchange Act, any Common Stock acquired by an Outside Director
upon exercise of an Option may not be sold for six (6) months after the date of
grant of the Option. The Committee shall have no authority to take any action if
the authority to take such action, or the taking of such action, would
disqualify the Plan from the exemption provided by Rule 16b-3 under the Exchange
Act.
EXHIBIT 4(C)
1ST BERGEN BANCORP
1996 AMENDED AND RESTATED
RECOGNITION AND RETENTION PLAN
FOR EXECUTIVE OFFICERS AND EMPLOYEES
1. PURPOSE
The purpose of the 1st Bergen Bancorp (the "Company") 1996 Amended and
Restated Recognition and Retention Plan for Executive Officers and Employees
(the "Plan") is to advance the interests of the Company and its shareholders by
providing those key employees of the Company and its Affiliates, including South
Bergen Savings Bank (the "Bank"), upon whose judgment, initiative and efforts
the successful conduct of the business of the Company and its Affiliates largely
depends, with additional incentive to perform in a superior manner. A purpose of
the Plan is also to attract people of experience and ability to the service of
the Company and its Affiliates.
2. DEFINITIONS
(a) "Affiliate" means (i) a member of a controlled group of corporations
of which the Company is a member, and (ii) an unincorporated trade or business
which is under common control with the Company as determined in accordance with
Section 414(c) of the Internal Revenue Code of 1986, as amended (the "Code"),
and the regulations issued thereunder. For purposes hereof, a "controlled group
of corporations" shall mean a controlled group of corporations as defined in
Section 1563(a) of the Code determined without regard to Section 1563(a)(4) and
(e)(3)(C).
(b) "Award" means a grant of Restricted Stock under the
provisions of this Plan.
(c) "Board of Directors" or "Board" means the Board of
Directors of the Company.
(d) "Change in Control" means
(1) a reorganization, merger, consolidation or sale of all or
substantially all of the assets of the Company, or a similar
transaction in which the Company is not the resulting entity;
or
(2) individuals who constitute the Incumbent Board (as herein
defined) of the Company cease for any reason to constitute a
majority thereof; or
(3) the occurrence of a change in control within the meaning of 12
C.F.R. ss. 574.4; or
<PAGE>
(4) (a) an event of a nature that would be required to be reported
in response to Item I of the Current Report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act"), or
results in a change in control of the Company within the
meaning of the Home Owners' Loan Act of 1933 and the Rules and
Regulations promulgated by the Office of Thrift Supervision or
its predecessor agency, as in effect on the date hereof; or
(5) Without limitation, a change in control shall be deemed to
have occurred at such time as (i) any "person" (as the term is
used in Section 13(d) and 14(d) of the Exchange Act) other
than the Company, and excluding the trustee of any Employee
benefit plan sponsored by the Company or the Bank or any such
plan itself, is or becomes a "beneficial owner" (as defined in
Rule 13-d under the Exchange Act) directly or indirectly, of
securities of the Company representing 25% or more of the
Company's outstanding securities ordinarily having the right
to vote at the election of directors; or
(6) A proxy statement soliciting proxies from stockholders of the
Company is disseminated by someone other than the current
management of the Company, seeking stockholder approval of a
plan of reorganization, merger or consolidation of the Company
or similar transaction with one or more corporations as a
result of which the outstanding shares of the class of
securities then subject to the plan or transaction are
exchanged or converted into cash or property or securities not
issued by the Company;
(7) A tender offer is made for 25% or more of the voting
securities of the Company and the shareholders owning
beneficially or of record 25% or more of the outstanding
securities of the Company have tendered or offered to sell
their shares pursuant to such tender offer and such tendered
shares have been accepted by the tender offeror.
For these purposes, "Incumbent Board" means the Board of Directors on the
effective date of this Plan, provided that any person becoming a director
subsequent to the date hereof whose election was approved by a vote of at least
three-quarters of the directors comprising the Incumbent Board, or whose
nomination for election by stockholders was approved by the same nominating
committee serving under an Incumbent Board, shall be considered as though he
were a member of the Incumbent Board."
<PAGE>
(e) "Committee" means a committee consisting of those members of the
Compensation/Benefits Committee of the Company who are non-employee members of
the Board of Directors, all of whom are "disinterested persons" as such term is
defined" under Rule 16b-3 of the Exchange Act, as promulgated by the Securities
and Exchange Commission.
(f) "Common Stock" means the common stock of the Company, no par value per
share.
(g) "Date of Grant" means the date an Award granted by the Committee is
effective pursuant to the terms hereof.
(h) "Disability" means the permanent and total inability by reason of
mental or physical infirmity, or both, of an employee to perform the work
customarily assigned to him. Additionally, a medical doctor selected or approved
by the Board of Directors must advise the Committee that it is either not
possible to determine when such Disability will terminate or that it appears
probable that such Disability will be permanent during the remainder of said
participant's lifetime.
(i) "Participant" means an employee of the Company or its affiliates
chosen by the Committee to participate in the Plan.
(j) "Restricted Stock" means shares of the Common Stock granted hereunder
and subject to the restrictions of Sections 6.2 and 6.3 hereof.
(k) "Restriction Period" shall mean the period of time during which the
Restricted Stock is subject to the restrictions of the Plan, to be set at the
Committee's discretion subject to Section 6.3 hereof.
(l) "Retirement" means retirement at the normal or early retirement date
as set forth in any tax-qualified or non-tax qualified retirement plan of the
Company or as determined under any retirement policy of the Company.
(m) "Section 16" means Section 16 of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder.
3. ADMINISTRATION
The Plan shall be administered by the Committee. The Committee is
authorized, subject to the provisions of the Plan, to select participants, to
determine the amount of Awards, to establish the terms and conditions of such
Awards, to establish such rules and regulations as it deems necessary for the
proper administration of the Plan and to make whatever determinations and
interpretations in connection with the Plan it deems necessary or advisable. All
determinations and interpretations made by the Committee shall be binding and
conclusive on all
<PAGE>
Participants in the plan and on their legal representatives and beneficiaries.
4. STOCK SUBJECT TO THE PLAN
The maximum number of shares reserved for issuance pursuant to Awards
hereunder is 88,872 shares of Common Stock of the Company, subject to adjustment
pursuant to Section 6.5 hereof. These shares of Common Stock may be either
authorized but unissued shares or shares previously issued and reacquired by the
Company. To the extent that Awards granted under the Plan are canceled prior to
the end of their applicable Restriction Period, new Awards may be made with
respect to these shares.
5. ELIGIBILITY
Officers and other employees of the Company or its Affiliates shall be
eligible to receive Awards and directors who are not employees or officers of
the Company or its affiliates shall not be eligible to receive Awards under the
Plan.
6. GRANTS OF RESTRICTED STOCK
6.1 Awards
Each Participant shall execute and deliver to the Committee an
agreement as required under Section 8 with respect to the Restricted Stock
covered by such agreements. The Committee shall then cause shares to be issued
in book entry form only, in the name of the Participant.
6.2 Restrictions
(a) Restricted Stock awarded to a Participant shall be subject to
the following restrictions until the expiration of the Restriction Period: (i) a
Participant shall not be issued certificates representing the stock subject to
the Award, but such shares shall be issued in book entry form only; (ii) the
shares of Common Stock shall be subject to the restrictions on transferability
set forth in Section 7; (iii) the shares of Common Stock shall be forfeited and
all rights of the Participant to such shares and as a shareholder shall
terminate without further obligation on the part of the Company when a
Participant leaves the employ of the Company, except in the case of Disability,
Retirement or death; and (iv) any other restrictions which the Committee may
determine in advance are necessary or appropriate, including termination of
Restricted Stock Awards to grantees other than Employees.
6.3 Restriction Period
Notwithstanding anything contained in Section 3 hereof, in compliance with
the regulations of the Office of Thrift
<PAGE>
Supervision ("OTS"), all Awards granted hereunder, shall be subject to the
following minimum Restriction Period:
All Awards shall be subject to a five-year Restriction Period, with
restrictions lapsing on 20 percent of the Restricted Stock per year, commencing
on the first anniversary of the date of the Award. Common Stock on which
restrictions have lapsed shall not be subject to the provisions of Section 6.2
hereof. By the fifth anniversary of the date of grant, all restrictions shall
have lapsed, provided, however, that in the event of a Participant's Disability,
death or Retirement, or in the event of a Change In Control, the remaining
Restriction Period for any Award shall lapse and the shares of common stock held
by such Participant shall immediately become unrestricted.
The Committee shall have the authority in its discretion, to impose a
greater Restriction Period for any Award than those set forth above.
6.4 Delivery of Shares of Common Stock
At the expiration of the Restriction Period, a stock certificate
evidencing the Restricted Stock with respect to which the Restriction Period has
expired (to the nearest full share) shall be delivered without charge to the
Participant or his personal representative free of all restrictions under the
Plan.
6.5 Dilution and Adjustments
(a) In the event of any change or changes in the outstanding Common
Stock of the Company is effected without receipt of consideration by the Company
or payment of consideration by the Company, such as by any stock dividend or
split, recapitalization, reorganization, combination or any similar corporate
change, or other increase or decrease in such shares, the number of shares of
Common Stock which may be issued under this Plan shall be automatically
adjusted.
(b) In the event of a consolidation, merger, reorganization or sale
of all or substantially all of the assets of the Company in which outstanding
shares of Common Stock are exchanged for securities, cash or other property or
any other corporation or business entity (the "Surviving Corporation"), the
Committee and the Board of Directors will provide that this Plan be assumed by
the Surviving Corporation in such transaction, and that shares of the common
stock of such Surviving Corporation shall be issued in exchange for shares of
Common Stock subject to Awards hereunder and still subject to the restrictions
of Section 6.2. Such replacement shares will remain subject to the restrictions
of Section 6.2 for their remaining Restriction Period. The number of replacement
shares issued in exchange for the Common Stock will be determined based upon the
per share price paid all shareholders of the Company by the Surviving
Corporation.
<PAGE>
7. NO RIGHT TO CONTINUED EMPLOYMENT; NONTRANSFERABILITY
Nothing in this Plan or in any Award granted confers on any person any
right to continue in the employ of the Company, the Bank or its Affiliates or to
continue to perform services for the Company, the Bank or its Affiliates or
interferes in any way with the right of the Company or its Affiliates to
terminate a Participant's services as an officer or other employee at any time.
No Restricted Stock subject to an Award under the Plan shall be
transferable by the participant other than by will or the laws of descent and
distribution and may only be exercised during his lifetime by the Participant or
by a guardian or legal representative.
8. AGREEMENT WITH PARTICIPANTS
Each Award will be evidenced by a written agreement, executed by the
Participant and the Company which describes the conditions for receiving the
Awards including the date of Award, the applicable Restriction Period, and any
other terms and conditions as may be required by the Board of Directors or
applicable securities law.
9. TAX WITHHOLDING
Whenever shares of Common Stock are to be issued or delivered pursuant to
the Plan, the Company shall have the right, in its sole discretion, to either
(i) require the Participant to remit to the Company or (ii) withhold from any
salary, wages or other compensation payable by the Company to the Participant,
an amount sufficient to satisfy federal, state, and local withholding tax
requirements prior to the delivery of any certificate or certificates for such
shares. Whenever payments are to be made in cash, such payments shall be net of
an amount sufficient to satisfy federal, state and local withholding tax
requirements and authorized deductions.
10. AMENDMENT OF THE PLAN
The Committee may at any time, and from time to time, modify or amend the
Plan in any respect; provided that shareholder approval shall be required for
any such modification or amendment which:
(a) materially increases the maximum number of shares for
which Awards may be granted under the Plan; or
(b) changes the persons eligible to participate in the
Plan.
Failure to ratify or approve amendments or modifications to subsections
(a) and (b) of this Section by shareholders shall be
<PAGE>
effective only as to the specific amendment or modification requiring such
ratification. Other provisions, sections, and subsections of this Plan will
remain in full force and effect.
No such termination, modification or amendment may affect the rights of a
Participant under an outstanding Award.
11. APPROVAL AND EFFECTIVE DATE OF PLAN
The Plan will become effective as of April 1, 1997.
12. TERMINATION OF THE PLAN
The right to grant Awards under the Plan will terminate ten (10) years
after the Effective Date of the Plan. The Board of Directors has the right to
suspend or terminate the Plan at any time, provided that no such action will,
without the consent of a Participant, adversely affect his rights under a
previously granted Award.
13. APPLICABLE LAW
In the absence of controlling Federal law, the Plan will be administered
in accordance with the laws of the State of New Jersey.
14. COMPLIANCE WITH SECTION 16 OF THE EXCHANGE ACT
Transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange Act. To the extent
any provisions of the Plan or action by the Committee fail to so comply, it
shall be deemed null and void, to the extent permitted by law and deemed
advisable by the Committee.
EXHIBIT 4(D)
1ST BERGEN BANCORP
1996 AMENDED AND RESTATED
RECOGNITION AND RETENTION PLAN
FOR OUTSIDE DIRECTORS
1. PURPOSE
The purpose of the 1st Bergen Bancorp (the "Company") 1996 Amended and
Restated Recognition and Retention Plan for Outside Directors (the "Plan") is to
promote the growth and profitability of the Company and its subsidiary, South
Bergen Savings Bank (the "Bank") by providing outside directors of the Company
and its Affiliates with an incentive to achieve long-term objectives of the
Company and to attract and retain non-employee directors of outstanding
competence by providing such outside directors with an opportunity to acquire an
equity interest in the Company.
2. DEFINITIONS
(a) "Affiliate" means (i) a member of a controlled group of corporations
of which the Company is a member, and (ii) an unincorporated trade or business
which is under common control with the Company as determined in accordance with
Section 414(c) of the Internal Revenue Code of 1986, as amended (the "Code"),
and the regulations issued thereunder. For purposes hereof, a "controlled group
of corporations" shall mean a controlled group of corporations as defined in
Section 1563(a) of the Code determined without regard to Section 1563(a)(4) and
(e)(3)(C).
(b) "Award" means a grant of Restricted Stock under the
provisions of this Plan.
(c) "Board of Directors" or "Board" means the Board of
Directors of the Company.
(d) "Change in Control" means
(1) a reorganization, merger, consolidation or sale of all or
substantially all of the assets of the Company, or a similar
transaction in which the Company is not the resulting entity;
or
(2) individuals who constitute the Incumbent Board (as herein
defined) of the Company cease for any reason to constitute a
majority thereof; or
(3) The occurrence of a change in control within the meaning of 12
C.F.R. ss. 574.4; or
(4) (a) an event of a nature that would be required to be reported
in response to Item I of the Current
<PAGE>
Report on Form 8-K, as in effect on the date hereof, pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act"), or results in a change in control of the
Company within the meaning of the Home Owners' Loan Act of
1933 and the Rules and Regulations promulgated by the Office
of Thrift Supervision or its predecessor agency, as in effect
on the date hereof; or
(5) Without limitation, a change in control shall be deemed to
have occurred at such time as (i) any "person" (as the term is
used in Section 13(d) and 14(d) of the Exchange Act) other
than the Company, and excluding the trustee of any Employee
benefit plan sponsored by the Company or the Bank or any such
plan itself, is or becomes a "beneficial owner" (as defined in
Rule 13-d under the Exchange Act) directly or indirectly, of
securities of the Company representing 25% or more of the
Company's outstanding securities ordinarily having the right
to vote at the election of directors; or
(6) A proxy statement soliciting proxies from stockholders of the
Company is disseminated by someone other than the current
management of the Company, seeking stockholder approval of a
plan of reorganization, merger or consolidation of the Company
or similar transaction with one or more corporations as a
result of which the outstanding shares of the class of
securities then subject to the plan or transaction are
exchanged or converted into cash or property or securities not
issued by the Company;
(7) A tender offer is made for 25% or more of the voting
securities of the Company and the shareholders owning
beneficially or of record 25% or more of the outstanding
securities of the Company have tendered or offered to sell
their shares pursuant to such tender offer and such tendered
shares have been accepted by the tender offeror.
For these purposes, "Incumbent Board" means the Board of Directors on the
effective date of this Plan, provided that any person becoming a director
subsequent to the date hereof whose election was approved by a vote of at least
three-quarters of the directors comprising the Incumbent Board, or whose
nomination for election by stockholders was approved by the same nominating
committee serving under an Incumbent Board, shall be considered as though he
were a member of the Incumbent Board.
<PAGE>
(e) "Committee" means a committee consisting of the Compensation/Benefits
Committee of the Company.
(f) "Common Stock" means the common stock of the Company, no par value per
share.
(g) "Date of Grant" means the date an Award granted by the Committee is
effective pursuant to the terms hereof.
(h) "Disability" means the permanent and total inability by reason of
mental or physical infirmity, or both, of an outside director to participate in
the work of the Board and any Committees thereof to which he may be assigned,
including attending meetings of the Board and such Committees. Additionally, a
medical doctor selected or approved by the Board of Directors must advise the
Board that it is either not possible to determine when such disability will
terminate or that it appears probable that such disability will be permanent
during the remainder of said recipient's lifetime.
(i) "Participant" means an Outside Director (as defined in Section 5.1
(a)) or a Subsequent Outside Director (as defined in Section 5.1(b) hereof) who
participates in the Plan.
(j) "Restricted Stock" means shares of the Common Stock granted hereunder
and subject to the restrictions of Sections 5.2 and 5.3 hereof.
(k) "Restriction Period" shall mean the period of time during which the
Restricted Stock is subject to the restrictions of the Plan set forth in Section
5.3 hereof.
(l) "Retirement" shall mean cessation of service on the Company's Board of
Directors after age 65 with at least ten years of service as a member of the
Board of Directors of the Company or the Bank.
(m) "Section 16" means Section 16 of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder.
3. ADMINISTRATION
The Plan shall be administered by the Committee. The Committee is
authorized, subject to the provisions of the Plan, to establish such rules and
regulations as it deems necessary for the proper administration of the Plan and
to make whatever determinations and interpretations in connection with the Plan
it deems necessary or advisable. All determinations and interpretations made by
the Committee shall be binding and conclusive on all Participants in the plan
and on their legal representatives and beneficiaries.
4. STOCK SUBJECT TO THE PLAN
<PAGE>
The maximum number of shares reserved for issuance pursuant to Awards
hereunder is 38,088 shares of Common Stock of the Company, subject to adjustment
pursuant to Section 5.4. These shares of Common Stock may be either authorized
but unissued shares or shares previously issued and reacquired by the Company.
To the extent that Awards granted under the Plan are canceled prior to the end
of their applicable Restriction Period, new Awards may be made with respect to
these shares.
5. GRANTS OF RESTRICTED STOCK
5.1 Awards
(a) Initial Awards. Each outside director (for purposes of this
Plan, the term "Outside Director" shall mean a member of the Board of Directors
or any of its Affiliates who is not also serving as a full-time employee of the
Company or any of its Affiliates), who is serving in such capacity on the
effective date of this Plan, is hereby granted an Award of 6,348 shares of
Restricted Stock.
The effective date of these initial Awards shall be the effective date of
the Plan as defined in Section 10 hereof ("Effective Date").
(b) Awards to Subsequent Outside Directors. To the extent shares of
Restricted Stock are available for Awards under the Plan, each Outside Director
who is first appointed as a director of the Company subsequent to the Effective
Date (a "Subsequent Outside Director") is hereby granted, as of the date on
which such Subsequent Outside Director is qualified and first begins to serve as
an Outside Director, an Award of 3,174 shares of Restricted Stock or such lesser
number of shares of Common Stock as remain in this Plan.
If sufficient shares are not available under the Plan to fulfill Awards
under Section 6.1(b) hereof to any Subsequent Outside Director and thereafter
shares become available, such Subsequent Outside Director shall then receive
Awards of Restricted Stock determined by dividing equally among each Subsequent
Outside Director, Awards for the number of shares then available under the Plan.
The date of grant shall be the date Awards for such shares become available.
(c) Ineligibility. An Award under the Plan shall not be granted to any
Outside Director who at any previous time was an employee of either the Company
or the Bank and in such capacity was eligible to receive any options to purchase
Common Stock.
5.2 Restrictions
(a) Restricted Stock awarded to a Participant shall be subject to the
following restrictions until the expiration of the Restriction Period: (i) a
Participant shall not be issued
<PAGE>
certificates representing the shares of stock subject to an Award, but such
shares shall be issued in book entry form only; (ii) the shares of Common Stock
shall be subject to the restrictions on transferability set forth in Section 7;
and (iii) the shares of Common Stock shall be forfeited and all rights of the
participant to such shares and as a shareholder shall terminate without further
obligation on the part of the Company when a Participant leaves service with the
Board of Directors of the Company or its Affiliates, except in the case of
Disability, Retirement or death.
5.3 Restriction Period
In compliance with the regulations of the Office of Thrift Supervision,
all Awards granted hereunder, shall be subject to the following Restriction
Period:
All Awards shall be subject to a five-year Restriction Period, with
restrictions lapsing on 20 percent of the Restricted Stock per year, commencing
on the first anniversary of the date of the Award. Common Stock on which
restrictions have lapsed shall not be subject to the provisions of Section 5.2
hereof. By the fifth anniversary of the date of grant, all restrictions shall
have lapsed, provided, however, that in the event of a Participant's Disability,
death or Retirement, or upon the occurrence of a Change in Control, the
remaining Restriction Period for any award shall lapse and the shares of Common
Stock held by such Participant shall become unrestricted.
5.4 Dilution and Adjustments
(a) In the event of any change or changes in the outstanding Common
Stock of the Company is effected without receipt of consideration by the Company
or payment of consideration by the Company, such as by any stock dividend or
split, recapitalization, reorganization, combination or any similar corporate
change, or other increase or decrease in such shares, the number of shares of
Common Stock which may be issued under this Plan shall be automatically
adjusted.
(b) In the event of a consolidation, merger, reorganization or sale
of all or substantially all of the assets of the Company in which outstanding
shares of Common Stock are exchanged for securities, cash or other property or
any other corporation or business entity (the "Surviving Corporation"), the
Committee and the Board of Directors will provide that this Plan be assumed by
the Surviving Corporation in such transaction, and that shares of the common
stock of such Surviving Corporation shall be issued in exchange for shares of
Common Stock subject to Awards hereunder and still subject to the restrictions
of Section 5.2. Such replacement shares will remain subject to the restrictions
of Section 5.2 for their remaining Restriction Period. The number of replacement
shares issued in exchange for the Common Stock will be determined based upon the
per share
<PAGE>
price paid all shareholders of the Company by the Surviving Corporation.
5.5 Delivery of Shares of Common Stock
At the expiration of the Restriction Period, a stock certificate
evidencing the Restricted Stock with respect to which the Restriction Period has
expired (to the nearest full share) shall be delivered without charge to the
Participant or his personal representative free of all restrictions under the
Plan.
6. CONTINUED SERVICE
Nothing in this Plan or in any Award granted confers on any person any
right to continue as a Director the Company or its Affiliates or to continue to
perform services for the Company or its Affiliates.
7. AGREEMENT WITH PARTICIPANTS
Each Award will be evidenced by a written agreement, executed by the
Participant and the Company which describes the conditions for receiving the
Awards including the date of Award, the applicable Restriction Period, and any
other terms and conditions as may be required by the Board of Directors or
applicable securities law.
8. TAX WITHHOLDING
Whenever shares of Common Stock are to be issued or delivered pursuant to
the Plan, the Company shall have the right, in its sole discretion, to either
(i) require the Participant to remit to the Company or (ii) withhold from any
salary, wages or other compensation payable by the Company to the Participant,
an amount sufficient to satisfy federal, state, and local withholding tax
requirements prior to the delivery of any certificate or certificates for such
shares. Whenever payments are to be made in cash, such payments shall be net of
an amount sufficient to satisfy federal, state and local withholding tax
requirements and authorized deductions.
9. AMENDMENT OF THE PLAN
This Plan may be amended form time to time by the Board of Directors of
the Company provided that Section 5 hereof shall not be amended more than once
every six months other than to comport with the Internal Revenue Code of 1986,
as amended. If any amendment would require shareholder approval under Rule 16b-3
of the Exchange Act, such amendment shall be presented to shareholders for
ratification, provided, however, that the
<PAGE>
failure to obtain shareholder ratification shall not affect the validity of this
Plan as so amended and the options granted thereunder.
10. APPROVAL AND EFFECTIVE DATE OF PLAN
The Plan shall become effective as of April 15, 1997.
11. TERMINATION OF THE PLAN
The right to grant Awards under the Plan will terminate ten (10) years
after the Effective Date of the Plan. The Board of Directors has the right to
suspend or terminate the Plan at any time, provided that no such action will,
without the consent of a Participant, adversely affect his rights under a
previously granted Award.
13. APPLICABLE LAW
In the absence of controlling Federal law, the Plan will be administered
in accordance with the laws of the State of New Jersey.
14. COMPLIANCE WITH SECTION 16 OF THE EXCHANGE ACT
Transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange Act. To the extent
any provisions of the Plan or action by the Committee fail to so comply, it
shall be deemed null and void, to the extent permitted by law and deemed
advisable by the Committee.
EXHIBIT 5(A)
June 9, 1997
RE: 1st Bergen Bancorp
Registration Statement on Form S-8
----------------------------------
1st Bergen Bancorp
250 Valley Boulevard
Wood-Ridge, New Jersey
07075
Dear Sirs:
We have acted as counsel for 1st Bergen Bancorp, a New Jersey corporation
(the "Company"), in connection with the Registration Statement on Form S-8 being
filed by the Company with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, relating to an aggregate of 444,360 shares
of Common Stock, no par value per share, of the Company (the "Shares"), (i) up
to 222,180 of which are reserved for issuance and sale pursuant to the Company's
Amended and Restated 1996 Incentive Stock Option Plan (the "ISO Shares"); (ii)
up to 95,220 of which are reserved for issuance and sale pursuant to the
Company's 1996 Amended and Restated Stock Option Plan for Outside Directors (the
"Outside Director Shares"); (iii) up to 88,872 of which are reserved for
issuance pursuant to the Company's 1996 Amended and Restated Recognition and
Retention Plan for Executive Officers and Employees (the "Executive RRP
Shares"); and (iv) up to 38,088 of which are reserved for issuance pursuant to
the Company's 1996 Amended and Restated Recognition and Retention Plan for
Outside Directors (the "Outside Director RRP Shares"). Each of the 1996 Amended
and Restated Incentive Stock Option Plan and the 1996 Amended and Restated Stock
Option Plan for Outside Directors are herein referred to as an "Option Plan".
Each of the 1996 Recognition and Retention Plan for Outside Directors and the
1996 Recognition and Retention Plan for Executive Officers and Employees are
herein referred to a "RRP Plan".
In so acting, we have examined, and relied as to matters of fact upon, the
originals, or copies certified or otherwise identified to our satisfaction, of
the Certificate of
<PAGE>
Incorporation and By-laws of the Company, each Option Plan and RRP Plan, and
such other certificates, records, instruments and documents, and have made such
other and further investigations, as we have deemed necessary or appropriate to
enable us to express the opinion set forth below. In such examination, we have
assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies, and the authenticity of the originals of such latter
documents.
Based upon the foregoing, we are of the opinion that:
1. Upon issuance and delivery by the Company of the ISO Shares pursuant to
the exercise of stock options and payment of the exercise price therefor in
accordance with the terms set forth in such options and the Company's 1996
Amended and Restated Incentive Stock Option Plan, in cash or other consideration
permitted under Section 14A:7-5 of the New Jersey Business Corporation Act (the
"Act"), the ISO Shares issued thereunder will be legally issued, fully paid and
non-assessable;
2. Upon issuance and delivery by the Company of the Outside Director
Shares pursuant to the exercise of stock options and payment of the exercise
price therefor in accordance with the terms set forth in such options and the
Company's 1996 Amended and Restated Stock Option Plan for Outside Directors, in
cash or other consideration permitted under Section 14A:7-5 of the Act, the
Outside Director Shares issued thereunder will be legally issued, fully paid and
non-assessable;
3. Upon issuance and delivery by the Company of the Executive RRP Shares
pursuant to the terms of the Company's 1996 Amended and Restated Recognition and
Retention Plan for Executive Officers and Directors, the Executive RRP Shares
issued thereunder will be legally issued, fully paid and non-assessable,
subject, however, to the potential for forfeiture of the Executive RRP Shares
pursuant to the terms of the RRP Plan; and
4. Upon issuance and delivery by the Company of the Outside Director RRP
Shares pursuant to the terms of the Company's 1996 Amended and Restated
Recognition and Retention Plan for Outside Directors, the Outside Director RRP
Shares issued thereunder will be legally issued, fully paid and non-assessable,
subject, however, to the potential for forfeiture of the Executive RRP Shares
pursuant to the terms of the RRP Plan.
The issuance of the Shares is subject to the continuing effectiveness of
the Registration Statement and the qualification, or exemption from
registration, of such Shares under certain state securities laws.
<PAGE>
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in 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 promulgated thereunder.
Very truly yours,
McCarter & English
EXHIBIT 23(A)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
1st Bergen Bancorp and Subsidiaries:
We consent to the incorporation by reference in the registration statement on
Form S-8 of 1st Bergen Bancorp and Subsidiaries of our report dated October 28,
1996 with respect to the consolidated statements of financial condition of 1st
Bergen Bancorp and Subsidiaries as of September 30, 1996 and 1995, and the
related consolidated statements of income, stockholders' equity, and cash flows
for each of the years in the three-year period ended September 30, 1996, which
report appears in the September 30, 1996 Annual Report on Form 10-K of 1st
Bergen Bancorp and Subsidiaries. Our report refers to the adoption of Statement
of Financial Accounting Standards No. 115, "Accounting for Certain Investments
in Debt and Equity Securities," in fiscal 1995.
KPMG Peat Marwick LLP
Short Hills, New Jersey
June 6, 1997
