As filed with the Securities and Exchange Commission on March 28, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
SUMMIT BANCORP.
(Exact name of registrant as specified in its charter)
New Jersey 22-1903313
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
301 Carnegie Center, P.O. Box 2066, Princeton, New Jersey 08543-2066
(Address of Principal Executive Offices) (Zip Code)
CONVERTED B.M.J. FINANCIAL CORP. STOCK OPTION PLAN
OF
SUMMIT BANCORP.
(Full title of the plan)
Richard F. Ober, Jr., Esq.
Executive Vice President, General Counsel and Secretary
301 Carnegie Center, P.O. Box 2066
Princeton, N.J. 08543-2066
(Name and address of agent for service)
(609) 987-3430
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Offering Price Per Aggregate Offering Amount of
be Registered Registered ___ Unit ___ Price Registration Fee
- ---------------------- ------------ ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, 330 $6.9196 $2283.48
$1.20 par value and 270 9.3750 2531.25
associated stock 300 11.4955 3448.65
purchase rights (1) 345 11.9420 4119.99
16,800 12.2768 206,250.24
35,840 14.9554 536,001.54
28,038 19.8661 557,005.71
54,520 23.5491 1,283,896.93
36,185 23.9955 868,277.17
------- -------------
(Totals) 172,628 $3,463,814.95 $1,049.64
</TABLE>
(1) Prior to the occurrence of certain events, the stock purchase rights will
not be evidenced separately from the common stock.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Omitted as permitted by the Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Omitted as permitted by the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Summit Bancorp. ("Summit" or the "Company"), the Registrant, hereby
incorporates by reference in this Registration Statement the following documents
filed with the Securities and Exchange Commission (the "SEC"):
(a) Summit's Annual Report on Form 10-K filed pursuant to Section 13(a) of
the Securities Exchange Act of 1934 (the "Exchange Act") for the fiscal year
ended December 31, 1996;
(b) Summit's Current Reports on Form 8-K dated February 27, 1997 and March
7, 1997; and
(c) The description of the Common Stock of Summit contained in Summit's
Registration Statement on Form 10 dated August 31, 1970 as supplemented by the
Registration Statement on Form 8-A filed August 28, 1989, filed pursuant to
Section 12(b) of the Exchange Act, including all amendments thereto and reports
filed under the Exchange Act for the purpose of updating such description (File
No. 1-6451).
All documents filed by Summit with the SEC pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold shall
likewise be deemed to be incorporated herein by reference and to be a part
hereof from and as of the respective dates of filing of such documents.
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<PAGE>
Item 4. Description of Securities.
This item is not applicable inasmuch as the class of securities to be
offered is registered under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
The legality of the shares offered hereby is being passed upon for the
Company by Richard F. Ober, Jr., Esq., who is employed as Executive Vice
President, General Counsel and Secretary of Summit. As of March 21, 1997 Mr.
Ober beneficially owned 26,578 shares of Common Stock and options to purchase
79,508 shares of Common Stock at a weighted average exercise price of $23.00.
The consolidated financial statements of Summit and subsidiaries as of
December 31, 1996 and 1995 and for each of the years in the three-year period
ended December 31, 1996, included in Summit's Annual Report on Form 10-K for the
year ended December 31, 1996, incorporated by reference herein, have been
incorporated by reference herein in reliance upon the report of KPMG Peat
Marwick LLP, independent certified public accountants, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing.
Item 6. Indemnification of Directors and Officers.
With respect to the indemnification of directors and officers, Section 5 of
Article IX of the By-Laws of the Company provides:
Section 5. Indemnification and Insurance. (a) Each person who was or is
made a party or is threatened to be made a party to or is involved in any
proceeding, by reason of the fact that he or she is or was a corporate agent of
the Corporation, whether the basis of such proceeding is alleged action in an
official capacity as a corporate agent or in any other capacity while serving as
a corporate agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the laws of the State of New Jersey as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses and liabilities in connection therewith
and such indemnification shall continue as to a person who has creased to be a
corporate agent and shall inure to the benefit of such corporate agent's heirs,
executors, administrators and other legal representatives; provided, however,
that except as provided in Section 5(c) of this By-Law, the Corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors. The right to
indemnification conferred in this By-Law shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition, such advances
to be paid by the Corporation within 20 days after the receipt by the
Corporation of a statement or statements from the claimant requesting such
advance or advances from time to time; provided, however, that the advancement
of counsel fees to a claimant other than
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<PAGE>
a claimant who is or was a director or Executive Vice President or higher
ranking officer of the Corporation shall be made only when the Board of
Directors or the General Counsel of the Corporation determines that arrangements
for counsel are satisfactory to the Corporation; and provided, further, that if
the laws of the State of New Jersey so require, the payment of such expenses
incurred by a corporate agent in such corporate agent's capacity as a corporate
agent (and not in any other capacity in which service was or is rendered by such
person while a corporate agent, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of a proceeding shall
be made only upon delivery to the Corporation of an undertaking by or on behalf
of such corporate agent to repay all amounts so advanced if it shall ultimately
be determined that such corporate agent is not entitled to be indemnified under
this By-Law or otherwise.
(b) To obtain indemnification under this By-Law, a claimant shall submit to
the Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to the claimant and is
reasonably necessary to determine whether and to what extent the claimant is
entitled to indemnification. Upon written request by a claimant for
indemnification pursuant to the first sentence of this Section 5(b), a
determination, if required by applicable law, with respect to the claimant's
entitlement thereto shall be made as follows: (1) if requested by a claimant who
is or was a director of Executive Vice President or high ranking officers of
this Corporation, by independent counsel (as hereinafter defined) in a written
opinion to the Board of Directors, a copy of which shall be delivered to the
claimant; or (2) if the claimant is not a person described in Section 5(b)(1) or
is such a person and if no request is made by such a claimant for a
determination by independent counsel, (A) by the Board of Directors by a
majority vote of a quorum consisting of disinterested directors (as hereinafter
defined), or (B) if a quorum of the Board of Directors consisting of
disinterested directors is not obtainable or, even if obtainable, such quorum of
disinterested directors so directs, by independent counsel in a written opinion
to the Board of Directors, a copy of which shall be delivered to the claimant.
In the event the determination of entitlement to indemnification is to be made
by independent counsel at the request of the claimant, the independent counsel
shall be selected by the Board of Directors and paid by the Corporation. If it
is determined that the claimant is entitled to indemnification, payment to the
claimant shall be made within 20 days after such determination.
(c) If a claim under Section 5(a) of this By-Law is not paid in full by the
Corporation within thirty days after a written claim pursuant to Section 5(b) of
this By-Law has been received by the Corporation, the claimant may at anytime
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim, including attorney's
fees. It shall be a defense to any such act (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the laws of the State of New Jersey for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors or independent counsel) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is
4
<PAGE>
proper in the circumstances because the claimant has met the applicable standard
of conduct set forth in the laws of the State of New Jersey, not an actual
determination by the Corporation (including its Board of Directors or
independent counsel) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(d) If a determination shall have been made pursuant to Section 5(b) of
this By-Law that the claimant is entitled to indemnification, the Corporation
shall be bound by such determination in any judicial proceeding commenced
pursuant to Section 5(c) of this By-Law.
(e) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
By-Law shall not be exclusive of any other rights which any person may have or
hereafter acquire under any statute, provisions of the Certificate of
Incorporation, By-Laws, agreement, vote of shareholders or disinterested
directors or otherwise. No repeal or modification of this By-Law shall in any
way diminish or adversely affect the rights of any corporate agent of the
Corporation hereunder in respect of any occurrence or matter arising prior to
any such repeal or modification.
(f) The Corporation may maintain insurance, at its expense, to protect
itself and any corporate agent of the corporation or other enterprise against
any expense or liability, whether or not the Corporation would have the power to
indemnify such person against such expense or liability under the laws of the
State of New Jersey.
(g) If any provision or provisions of this By-Law shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (1) the validity,
legality and enforceability of the remaining provisions of this By-Law
(including, without limitation, each portion of any section of this By-Law
containing any such provision held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and (2) to the fullest
extent possible, the provisions of this By-Law (including, without limitation,
each such portion of any section of this By-Law containing any such provision
held to be invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
(h) For purposes of this By-Law:
(1) "disinterested director" means a director of the Corporation who
is not and was not a party to or otherwise involved in the matter
in respect of which indemnification is sought by the claimant.
(2) "independent counsel" means a law firm, a member of a law firm,
or an independent practitioner that is experienced in matters of
corporation law and shall include any person who, under the
applicable standards of professional
5
<PAGE>
conduct then prevailing, would not have a conflict of interest in
representing either the Corporation or the claimant in an action
to determine the claimant's rights under this By-Law.
(3) "corporate agent" means any person who is or was a director,
officer, employee or agent of the Corporation or of any
constituent corporation absorbed by the Corporation in a
consolidation or merger and any person who is or was a director,
officer, trustee, employee or agent of any subsidiary of the
Corporation or of any other enterprise, serving as such at the
request of this Corporation, or of any such constituent
corporation, or the legal representative of any such director,
officer, trustee, employee or agent;
(4) "other enterprise" means any domestic or foreign corporation,
other than the Corporation, and any partnership, joint venture,
sole proprietorship, trust or other enterprise, whether or not
for profit, served by a corporate agent;
(5) "expenses" means reasonable costs, disbursements and counsel
fees;
(6) "liabilities" means amounts paid or incurred in satisfaction of
settlements, judgements, fines and penalties;
(7) "proceeding" means any pending, threatened or completed civil,
criminal, administrative, legislative, investigative or
arbitrative action, suit or proceeding, and any appeal therein
and any inquiry or investigation which could lead to such action,
suit or proceeding; and
(8) References to "other enterprises" include employee benefit plans;
references to "fines" include any excise taxes assessed on a
person with respect to an employee benefit plan; and references
to "serving at the request of the indemnifying corporation"
include any service as a corporate agent which imposes duties on,
or involves services by, the corporate agent with respect to an
employee benefit plan, its participants, or beneficiaries; and a
person who acts in good faith and in a manner the person
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interest of the
corporation."
(i) Any notice, request or other communication required or permitted to be
given to the Corporation under this By-Law shall be in writing and either
delivered in person or sent by facsimile, telex, telegram, overnight mail or
courier service, or certified or registered mail, postage prepaid, return
receipt requested, to the Secretary of the Corporation and shall be effective
only upon receipt by the Secretary.
6
<PAGE>
(j) This By-Law shall be implemented and construed to provide any corporate
agent described above who is found to have acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interests of
the Corporation the maximum indemnification, advancement of expenses, and
reimbursement for liabilities and expenses allowed by law.
Such provision is consistent with Section 14A:3-5 of the Business
Corporation Act of the State of New Jersey, the state of Summit's incorporation,
which permits the indemnification of officers and directors, under certain
circumstances and subject to specified limitations, against liability which any
officer or director may incur in such capacity.
Summit carries officers' and directors' liability insurance policies which
provide coverage against judgments, settlements and legal costs incurred because
of actual or asserted acts of such officers and directors of Summit arising out
of their duties as such, subject to certain exceptions, including, but not
limited to, damages based upon illegal personal profits or adjudicated
dishonesty of the person seeking indemnification. The policies provide coverage
of $40,000,000 in the aggregate.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
This Registration Statement includes the following exhibits:
5 Opinion of Richard F. Ober, Jr., Esq. regarding legality.
10 Converted B.M.J. Financial Corp. Stock Option Plan of Summit Bancorp.
23(a)Consent of Richard F. Ober, Jr., Esq. (included as part of Exhibit 5).
(b) Consent of KPMG Peat Marwick LLP.
24 Power of Attorney (contained on the signature pages to this
Registration Statement).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933
7
<PAGE>
(the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (i) and (ii) above shall not apply if the
information required to be included in a post- effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") that
are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered hereby which remain unsold at the termination
of the offering.
(4) That, for purposes of determining any liability under the Securities
Act, 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 securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 6, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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<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 on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Township of West Windsor and the State of New Jersey on this
28th day of March, 1997.
SUMMIT BANCORP.
By: /s/ T. Joseph Semrod
----------------------
T. Joseph Semrod
Chairman of the Board of Directors
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints T. Joseph Semrod, John R. Haggerty, William J.
Healy and Richard F. Ober, Jr., and each of them, the undersigned's true and
lawful attorney-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned and in the undersigned's name, place and
stead, in any and all capacities, to sign any or all amendments (including
post-effective amendments) to this Registration Statement, and to file the same
with all exhibits thereto and other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on the 28th day of March, 1997 by
the following persons in the capacities indicated.
Signatures Titles
/s/ T. Joseph Semrod Chairman of the Board
---------------------- of Directors (Chief Executive Officer)
T. Joseph Semrod
/s/ Robert G. Cox President and Director
----------------------
Robert G. Cox
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Signatures Titles
/s/ John R. Haggerty Senior Executive Vice
---------------------- President-Finance
John R. Haggerty (Principal Financial Officer)
/s/ William J. Healy Executive Vice President
---------------------- and Comptroller
William J. Healy (Principal Accounting Officer)
/s/ S. Rodgers Benjamin Director
------------------------
S. Rodgers Benjamin
/s/ Robert L. Boyle Director
------------------------
Robert L. Boyle
/s/ James C. Brady, Jr. Director
------------------------
James C. Brady, Jr.
/s/ John G. Collins Director
------------------------
John G. Collins
/s/ T.J. Dermot Dunphy Director
------------------------
T.J. Dermot Dunphy
/s/ Anne Evans Estabrook Director
------------------------
Anne Evans Estabrook
/s/ Elinor J. Ferdon Director
------------------------
Elinor J. Ferdon
/s/ Fred G. Harvey Director
------------------------
Fred G. Harvey
/s/ John R. Howell Director
------------------------
John R. Howell
/s/ Francis J. Mertz Director
------------------------
Francis J. Mertz
/s/ George L. Miles, Jr. Director
------------------------
George L. Miles, Jr.
/s/ Henry S. Patterson II Director
--------------------------
Henry S. Patterson II
10
<PAGE>
Signatures Titles
/s/ Thomas D. Sayles, Jr. Director
------------------------
Thomas D. Sayles, Jr.
/s/ Raymond Silverstein Director
------------------------
Raymond Silverstein
/s/ Orin R. Smith Director
------------------------
Orin R. Smith
/s/ Joseph M. Tabak Director
------------------------
Joseph M. Tabak
------------------------ Director
Douglas G. Watson
11
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EXHIBIT INDEX
Exhibit No. Description
5 Opinion of Richard F. Ober, Jr., Esq. regarding legality.
10 Converted B.M.J. Financial Corp. Stock Option Plan of Summit Bancorp.
23a) Consent of Richard F. Ober, Jr., Esq. (included as part of Exhibit 5).
(b) Consent of KPMG Peat Marwick LLP.
24 Power of Attorney (contained on the signature pages to this
Registration Statement).
12
March 24, 1997
Summit Bancorp.
301 Carnegie Center
P.O. Box 2066
Princeton, New Jersey 08543
Re: Registration Statement on Form S-8 of Summit Bancorp. Relating to 172,628
Shares of Summit Bancorp. Common Stock Issuable in Connection with the
Converted B.M.J. Financial Corp. Stock Option Plan of Summit Bancorp.
Gentlemen:
This opinion is given in connection with the Registration Statement on Form
S-8 (the "Registration Statement") filed by Summit Bancorp. (the "Company") with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, with respect to an aggregate of 172,628 shares of the Company's Common
Stock, par value $1.20 per share (the "Shares"), to be issued to holders of
stock options under the Converted B.M.J. Financial Corp. Stock Option Plan of
Summit Bancorp. (the "Plan") upon the exercise thereof. Such options were
originally granted to directors and employees of B.M.J. Financial Corp.
("B.M.J.") under stock option plans of B.M.J. and were converted into options
with respect to the Company's Common Stock in connection with the merger of
B.M.J. with and into the Company, pursuant to an Agreement and Plan of Merger
dated August 28, 1996.
I have acted as counsel for the Company in connection with the filing of
the Registration Statement. In so acting, I have made such investigation,
including the examination of originals or copies, certified or otherwise
identified to my satisfaction, of such corporate documents and instruments as I
have deemed relevant and necessary as a basis for the opinion hereinafter set
forth. In connection therewith I have assumed the genuineness of all signatures
and the authenticity of all documents submitted to me as originals and the
conformity to original documents of all documents submitted to me as certified
or photostatic copies. As to questions of fact material to such opinion, I have
relied upon representations of officers or representatives of the Company.
Based upon the foregoing, I am of the opinion that the Shares registered
pursuant to the Registration Statement and to be issued upon the exercise of
stock options under the Plan will, when issued in accordance with the Plan, be
validly issued, fully paid and nonassessable.
I hereby consent to the use of this opinion as an exhibit to the
Registration Statement. I further consent to any and all references to me in the
Prospectus which is part of said Registration Statement, should there be any.
Very truly yours,
/s/ Richard F. Ober, Jr.
Exhibit 10
CONVERTED B.M.J. FINANCIAL CORP. STOCK OPTION PLAN
OF
SUMMIT BANCORP.
I. PURPOSE.
The Converted B.M.J. Financial Corp. Stock Option Plan of Summit
Bancorp (the "Plan") exists solely to enable individuals who on the effective
date of the merger of B.M.J. Financial Corp. into Summit Bancorp (the "Merger")
held outstanding stock options granted under the former B.M.J. Financial Corp.
Director Stock Option Plan (the "B.M.J. Director Plan"), the former B.M.J.
Financial Corp. Executive Long-Term Incentive Plan ("B.M.J. Executive Plan") or
the former B.M.J. Financial Corp. 1994 Stock Option Plan (the "B.M.J. 1994
Plan") to exercise such options for Common Stock of Summit Bancorp. ("Summit").
II. DEFINITIONS.
(a) "Beneficiary" means the person or persons designated in writing by
the Optionee as his beneficiary with respect to an Option in the event of the
Optionee's death; or, in the absence of an effective designation or if the
designated person or persons predecease the Optionee, the Optionee's Beneficiary
shall be the person or persons who acquire by bequest or inheritance the
Optionee's rights in respect of an Option. In order to be effective, a
Optionee's designation of a Beneficiary must be on file with the Committee
before the Optionee's death. Any such designation may be revoked by the Optionee
and a new designation substituted therefor at any time before the Optionee's
death.
(b) Cause. "Cause" means: (a) with respect to Executive Plan Options,
the willful failure of Optionee to perform stated duties, or a willful act of
Optionee which is monetarily or otherwise injurious to Summit or a subsidiary,
as determined by the Committee, (b) with respect to 1994 Plan Options, in
connection with termination of employment, a termination for a willful failure
of Optionee to perform the duties of his position, or a willful act or omission
by the Optionee that is monetarily or otherwise injurious to Summit or a
subsidiary of Summit.
(c) Code. "Code" means the Internal Revenue Code of 1986, as amended.
(d) Committee. "Committee" is defined to mean the Compensation
Committee of the Board of Directors of Summit.
(e) Common Stock. "Common Stock" is defined to be the common stock,
par value $1.20 per share, of Summit.
(f) Director Plan Options. "Director Plan Options" are defined to be
options granted under the B.M.J. Director Plan which were outstanding on the
effective date of the Merger and currently
<PAGE>
represent options to purchase Common Stock.
(g) Disability. "Disability" means:
(a) with respect to Director Plan Options and Executive Plan
Options, the condition which results when an individual has
become permanently and totally disabled within the meaning of
Section 105(d)(4) of the Code;
(b) with respect to 1994 Plan Options, having a total and
permanent disability as defined in Section 22(e)(3) of the Code.
(h) Executive Plan Options. "Executive Plan Options" are defined to be
options granted under the B.M.J. Executive Plan which were outstanding on the
effective date of the Merger and currently represent options to purchase Common
Stock.
(i) Fair Market Value.
(1) "Fair Market Value" with respect to a share or shares of Common
Stock shall be determined as follows:
(A) Fair Market Value shall be determined in accordance with
the Internal Revenue Code of 1986, as amended (the "Code") or regulations
promulgated thereunder where the Code or regulations under the Code require fair
market value of Common Stock to be determined in accordance with its or their
provisions;
(B) If subsection (i)(1)(A) above does not apply, Fair Market
Value shall be determined as follows: If Common Stock is listed on one or more
national securities exchanges in the United States or admitted to trading on one
or more national securities exchanges in the United States pursuant to unlisted
trading privileges granted by such exchanges (and approved by the U.S.
Securities and Exchange Commission) on the date as of which fair market value
must be or is to be established (a "valuation date"), Fair Market Value shall be
deemed to be (i) the average of the high and low sales price at which Common
Stock is sold on such national securities exchanges, considered on a composite
basis, on the valuation date, for purposes of Director Plan Options and
Executive Plan Options, and (ii) the mean of the high and low sales price at
which Common Stock is sold on such national securities exchanges, considered on
a composite basis, on the valuation date, for purposes of 1994 Plan Options. If
Common Stock is not traded on any of such exchanges on a relevant valuation
date, or none or such national securities exchanges are open for business on the
relevant valuation date, the valuation date shall become the closest preceding
date on which any of such exchanges shall have been open for business and Common
Stock shall have been traded.
(2) Notwithstanding any of the foregoing, the Committee shall at all
times retain the power to establish fair market value in the event that, in its
discretion, it determines that extraordinary circumstances or conditions have
affected trading in Common Stock on one or more of such
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exchanges such that, in its judgment, the Fair Market Value determined in
accordance with the foregoing does not reflect the true fair market value of
Common Stock on the relevant valuation date. For all purposes under this Plan,
the determination by the Committee of the fair market value shall be conclusive.
(j) Grant Letter. "Grant Letter" is defined as the letter from Summit
to the Optionee granting Options (as defined herein) under the Plan.
(k) 1994 Plan Option. "1994 Plan Options" are defined to be options
granted under the B.M.J. 1994 Plan which were outstanding on the effective date
of the Merger and currently represent options to purchase Common Stock.
(l) Optionee. As the context requires, an "Optionee" is defined to be
an individual holding a Director Plan Option, an Executive Plan Option or a 1994
Plan Option.
(m) Options. "Options" means Director Plan Options, Executive Plan
Options and 1994 Plan Options, collectively.
(n) Retirement. "Retirement" means (i) the Optionee's termination of
employment with Summit at a time when Optionee is eligible to receive an
immediately payable retirement benefit under Summit's tax qualified defined
benefit pension plan, for purposes of 1994 Plan Options, and (ii) the Optionee's
termination of employment with Summit at a time when the Optionee receives an
immediately payable retirement benefit under Summit's retirement plan or under
any other retirement plan that is determined by the Committee to be the
functional equivalent of Summit's retirement plan, for purposes of Executive
Plan Options.
III. 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 as necessary or advisable. All determinations
and interpretations made by the Committee shall be binding and conclusive on all
Optionees and on their legal representatives and beneficiaries.
IV. NO RIGHTS OF A SHAREHOLDER; NONTRANSFERABILITY.
(a) An Optionee shall have no rights as a shareholder with respect to
any Common Stock covered by an Option until the date of issuance of a stock
certificate for such Common Stock. Nothing in this Plan or in any Option confers
on any person any right to continue in the employ of or perform any services for
Summit or any affiliate of Summit or interferes in any way with the right of
Summit or any affiliate of Summit to terminate the employment of any employee at
any time.
(b) The Options may not be transferred or assigned by an Optionee
otherwise than by will or the laws of descent and distribution or be exercised
other than by Optionee or his or her guardian
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or legal representative or, in the case of his or her death, by his or her
personal representative, heir or legatee.
V. COMMON STOCK SUBJECT TO THE PLAN; ADJUSTMENT PROVISIONS.
Common Stock delivered upon exercise of an Option may be either authorized and
unissued shares of Common Stock or authorized and issued shares of Common Stock
held by Summit as treasury stock. If, as a result of any stock dividend,
recapitalization, merger, consolidation, split-up, combination, exchange of
shares or other similar transaction, the outstanding Common Stock is increased
or decreased or exchanged for a different number or kind or shares of other new
securities of the Company, the Committee shall proportionally adjust the number
of shares of Common Stock subject to Options and the price thereof as it deems
appropriate.
VI. MANNER OF EXERCISE. Options may be exercised from time to time, in whole or
in part, by delivering a written notice of exercise to the Office of the
Corporate Secretary of Summit at 301 Carnegie Center, P.O. Box 2066, Princeton,
New Jersey 08543. Such notice is irrevocable and must be accompanied by full
payment of the purchase price.
VII. DIRECTOR PLAN OPTIONS
(a) Payment. - Upon exercise of a Director Plan Option the purchase
price will be payable in full in cash, or, in the discretion of the Committee by
the assignment and delivery to Summit of Shares of Common Stock owned by the
Director, or, in some combination thereof. Any shares so assigned and delivered
to Summit in payment or partial payment of the purchase price will be valued at
their Fair Market Value.
(b) Expiration. - A Director Plan Option shall expire ten years from
the date of grant (subject to prior termination as hereinafter provided).
(c) Effect of Termination of Service. - In the event that a Director
ceases to serve on the Board of Summit or any of its subsidiaries, any
outstanding Director Plan Options held by such Director shall, unless otherwise
specified, terminate as follows:
(1) If the Director's termination of service is by reason of
death or permanent disability, the Director Plan Option may
thereafter be immediately exercised in full by the Director
or a legal representative of the estate, as applicable, for
a period of one (1) year from the date of death or permanent
disability, or until the Director Plan Option expires,
whichever is earliest.
(2) If the Director's termination of service is by Summit or a
subsidiary for a willful failure of the Director to perform
stated duties, or a willful act by the Director which is
monetarily or otherwise injurious to Summit or a subsidiary,
the option(s) previously granted to such individual shall
immediately expire.
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(3) If the Director's termination of service is for any reason
other than as specified in Sections VII (c)(1) and (c)(2)
hereof, all options (to the extent exercisable at the time
of grant of the Director's termination), shall be
exercisable for a period of one (1) year from the date of
termination or until the Director Plan Option expires,
whichever is earliest.
(d) Withholding. -Summit shall have the right, in connection with a
Director's exercise of a Director Plan Option, to require the Director to pay
Summit an amount sufficient to provide for any taxes to be withheld by law.
VIII. EXECUTIVE PLAN OPTIONS
(a) Payment. - Upon the exercise of an Executive Plan Option, the
purchase price will be payable in full in cash or in the discretion of the
Committee, by the assignment and delivery to Summit of shares of Common Stock
owned by the Optionee or a combination thereof. Any shares so assigned and
delivered to Summit in partial payment of the purchase price will be valued at
their Fair Market Value.
(b) Expiration. - An Executive Plan Option shall expire on the date
set forth in the Grant Letter for a particular option (subject to prior
termination as herewith provided).
(c) Effective of Termination of Employment. - In the event that an
Optionee ceases to be employed by Summit or any of its subsidiaries, any
outstanding Executive Plan Options held by such Optionee shall, unless otherwise
specified in the original grant, terminate as follows:
(i) If the Optionee's termination of employment is by reason of
death or permanent disability, the Executive Plan Option may
thereafter be immediately exercised in full by the Optionee
or a legal representative of the estate, as applicable, for
a period of one (1) year from the date of death or permanent
disability, or until the Executive Plan Option expires,
whichever is earliest.
(ii) If the Optionee's termination of employment is by Summit
or a subsidiary for a willful failure of the Optionee to
perform stated duties, or a willful act by the optionee
which is monetarily or otherwise injurious to the Company or
the subsidiary, the Executive Plan Option(s) previously
granted to such individual shall immediately expire.
(iii) If the Optionee's termination of employment is for any
reason, other than as specified in Sections VIII(c)(i) and
(ii) hereof, all Executive Plan Options (to the extent
exercisable at the time of the Optionee's termination of
employment) shall be exercisable for a period of three (3)
months from the date of termination or until the Executive
Plan Option expires, whichever is earliest.
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(d) Withholding. - Summit shall be entitled, if necessary or
desirable, to withhold the amount of any tax attributable to any amounts payable
under any Executive Plan Option after giving the person entitled to receive such
amount notice as far in advance as practicable. Summit may defer making payment
of any Executive Plan Option if any such tax, charge or assessment may be
pending until indemnified to its satisfaction.
(e) Designation of Beneficiary. - Each Optionee may, with the consent
of the Committee, designate a person or persons to receive in the event of
his/her death, any Option or any amounts payable pursuant thereto, to which
he/she would then be entitled. Such designation will be made upon forms supplied
by and delivered to the company and may be revoked in writing. If an optionee
fails effectively to designate a beneficiary, then his/her estate will be deemed
to be the beneficiary.
IX. 1994 PLAN OPTIONS.
(a) Payment. - The exercise price of an 1994 Option Plan may be
payable, at the discretion of the Committee, by any one or a combination of the
following methods: (1) by personal check, money order, cashier's check, or
certified check, (2) by having Summit withhold shares otherwise deliverable to
the Optionee or by the tender of other shares to Summit or (3) unless the
Committee expressly provides otherwise (at the time of grant in the case of
Incentive Stock Option or at any time prior to exercise or purchase in the case
of a Nonqualified Stock Option) by cash payment made by the Optionee's broker
pursuant to the Optionee's instructions (and, if so instructed by the Optionee,
cash payment by the Optionee's broker of the amount of any taxes to be withheld
in connection with the exercise), accompanied by the Optionee's irrevocable
instructions to Summit to deliver the shares issuable upon exercise of the 1994
Plan Option promptly to the broker for the Optionee's account; provided that, in
the case of any director or officer (within the meaning of Section 16 of the
1934 Act) of Summit, such exercise would not subject the Optionee to short-swing
profit recovery provision of Section 16(b) of the 1934 Act. Shares tendered in
satisfaction of the 1994 Plan Option price shall be valued at their Fair Market
Value on the date of tender. The Committee shall determine acceptable methods
for tendering shares to exercise an 1994 Plan Option under the Plan, and may
impose such limitations and prohibitions on the use of shares to exercise 1994
Plan Options as it deems appropriate. The date of exercise of an 1994 Plan
Option shall be deemed to be the date on which the notice of exercise and
payment of the 1994 Plan Option price are received by the Committee or, if such
notice of exercise and payment are mailed in the United States and the United
States Postal Service has stamped its postmark thereon, then on the date of such
postmark.
(b) Expiration. - A 1994 Plan Option shall expire on the date set
forth in the Grant Letter and, in no event, later than ten years from the date
of original grant (subject to prior termination as hereinafter provided).
(c) Effect of Termination of Employment. - Unless the terms of the
original grant provided otherwise, a 1994 Plan Option shall be exercisable after
a termination of employment as follows:
(i) If the Optionee's employment with Summit terminates for any
reason other than a reason specified in subsections (ii)
through (v) below, the 1994 Plan Option, to the extent
exercisable on such date of termination, shall continue to
be exercisable at any time within the three-month period
following such termination of employment, but not after such
period. For purposes of this Section, references to
employment with Summit shall be deemed to include employment
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with a subsidiary.
(ii) If the Optionee's employment with Summit terminates for
Cause, the 1994 Plan Option shall be canceled immediately.
(iii) If the Optionee's employment with Summit terminates because
of Retirement, the 1994 Plan Option, to the extent
exercisable on such date of termination, shall be
exercisable at any time within the 12-month period following
such Retirement, but not after such period.
(iv) If the Optionee's employment with Summit terminates because
of the Optionee's Disability, the 1994 Plan Option shall be
exercisable at any time within the 12- month period
following such termination of employment, but not after such
period.
(v) If a Optionee's employment with Summit terminates because of
the Optionee's death, the 1994 Plan Option shall be
exercisable at any time within the 12-month period following
the Optionee's death, but not after such period. Any 1994
Plan Option held by the Optionee on the date of his death
may be exercised only by the Optionee's Beneficiary;
provided, however, that if the Optionee's Beneficiary dies
while the 1994 Plan Option is exercisable pursuant to this
subsection (v), the executor or administrator of the
Beneficiary's estate may exercise the 1994 Plan Option
within the period specified in the preceding sentence
hereof. If the Optionee and the Optionee's Beneficiary die
in circumstances in which there is not sufficient evidence
that the two have died otherwise than simultaneously, the
Beneficiary shall be deemed to have predeceased the
Optionee.
(vi) Notwithstanding any other provision of this Section, in no
event shall an 1994 Plan Option be exercisable after the
expiration date specified in the original grant letter.
(d) Tax Withholding.
(i) Summit shall have the right to collect an amount sufficient
to satisfy any federal, state, and/or local withholding tax
requirements that might apply with respect to any 1994 Plan
Option in the manner specified in subsection (ii) or (iii)
below. Alternatively, an Optionee may elect to satisfy any
such withholding tax requirements in the manner specified in
subsection (iv) or (v) below to the extent permitted
therein.
(ii) Summit shall have the right to require Optionees to remit to
Summit an amount sufficient to satisfy any such withholding
tax requirements.
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(iii) Summit and any subsidiary also shall, to the extent
permitted by law, have the right to deduct from any payment
of any kind (whether or not related to the Plan) otherwise
due to a Optionee any such taxes required to be withheld.
(iv) If the Committee in its sole discretion approves, an
Optionee may irrevocably elect to have any withholding tax
obligation satisfied by (i) having Summit withhold shares
otherwise deliverable to the Optionee with respect to the
1994 Plan Option, or (ii) delivering other shares to Summit;
provided that, in the case of any director or officer
(within the meaning of Section 16 of the 1934 Act) of
Summit), such payment would not subject the Optionee to the
short-swing profit recovery provisions of Section 16(b) of
the 1934 Act.
(v) If permitted by the Committee, a Optionee may elect to have
any withholding tax obligation satisfied in the manner
described in Section IX(a), to the extent permitted therein.
(e) Conditions On Options The grant or exercise of an 1994 Plan Option
and the distribution of shares under the 1994 Plan shall be subject to the
condition that, if at any time Summit shall determine (in accordance with the
provisions of the following sentence) that it is necessary as a condition of, or
in connection with, such grant, exercise, or distribution (1) to satisfy
withholding tax or other withholding liabilities, (2) to effect the listing,
registration, or qualification on any securities exchange, on any quotation
system, or under any federal, state or local law, of any Common Stock otherwise
deliverable in connection with such grant, exercise, or distribution, or (3) to
obtain the consent or approval of any regulatory body, then in any such event
such grant, exercise, or distribution shall not be effective unless such
withholding, listing, registration, qualification, consent, or approval shall
have been effected or obtained free of any conditions not acceptable to Summit
in its reasonable and good faith judgment. In seeking to effect or obtain any
such withholding, listing, registration, qualification, consent, or approval,
Summit shall act with all reasonable diligence. Any such postponement or
limitation affecting the grant or right to exercise an 1994 Plan Option or the
distribution of Common Stock shall not extend the time within which the 1994
Plan Option may be granted or exercised or the Common Stock distributed, unless
Summit and Optionee choose to amend the terms of the 1994 Plan Option to provide
for such an extension; and neither Summit, nor any of its directors or officers
shall have any obligation or liability to the Optionee or to a Beneficiary by
reason of any such postponement or limitation.
Subject to any required action by the company's shareholders, if the
Company shall be a party to any merger, consolidation, or reorganization in
which shares are changed or exchanged an Optionee holding an outstanding option
shall be entitled to receive, upon the exercie of such option, the same
consideration that a holder of the same number of shares that are subject to the
option is entitled to receive pursuant to such merger, consolidation or
reorganization.
(f) Fractional Shares. No fractional shares shall be issued pursuant
to the exercise of 1994 Plan Options. The Committee shall determine whether
cash, other securities, or other property shall be paid or transferred in lieu
of fractional shares, or whether fractional shares or any rights thereto shall
be canceled, terminated or otherwise eliminated.
X. AMENDMENT OF THE PLAN. The Board may at any time, and from time to time,
modify or amend the Plan in any respect; provided however, that if necessary to
continue to qualify the Plan under SEC Rule 16b-3, shareholder approval shall
also be required for any modification or amendment which extends the period
during which options may be granted or exercised beyond the times originally
prescribed. No such modification or amendment may affect the rights of an
Optionee under an outstanding Option.
8
Exhibit 23(b)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Summit Bancorp.
We consent to the use of our report relating to the consolidated financial
statements of Summit Bancorp and subsidiaries dated January 20, 1997, except as
to the third paragraph of Note 2, which is as of February 28, 1997, incorporated
herein by reference, and to the reference to our Firm under the heading
"Interests of Named Experts and Counsel" in the Registration Statement.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Short Hills, New Jersey
March 28, 1997
