As filed with the Securities and Exchange Commission on April 22, 1999
Registration No. 333-69119
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2 (POST-EFFECTIVE)
ON FORM S-8
TO FORM S-4
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 Identification Number)
incorporation or organization)
301 Carnegie Center, P.O. Box 2066, Princeton, New Jersey 08543-2066
(Address of Principal Executive Offices) (Zip Code)
CONVERTED NEW CANAAN BANK AND TRUST COMPANY 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, 139,996 N/A N/A (2)
$.80 par value
(and associated stock
purchase rights)(1)
- -----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Prior to the occurrence of certain events, the stock purchase rights will
not be evidenced separately from the common stock.
(2) The Registrant previously paid $ 12,740 with the original filing on
December 17, 1998 to register 1,422,161 shares of the Registrant's common
stock, including the 139,996 shares which may be issued pursuant to the
plan listed above.
This amendment shall become effective in accordance with the provisions of Rule
464 promulgated under the Securities Act.
<PAGE>
EXPLANATORY NOTE
The undersigned Registrant hereby files this post-effective amendment (the
"Registration Statement") to register on Form S-8 139,996 shares of Summit
Bancorp. (hereinafter "Summit", the "Company" or the "Registrant") common stock,
$.80 par value, ("Common Stock") and attached preferred stock purchase rights of
the Company, previously registered on Form S-4 (File No. 333-69119) incorporated
herein by reference, for issuance pursuant to options previously granted under
the New Canaan Bank and Trust Company 1995 Stock Option Plan (the "New Canaan
Stock Option Plan"). Pursuant to the terms and conditions of the Agreement and
Plan of Merger dated August 24, 1998 between Summit and New Canaan Bank and
Trust Company ("New Canaan"), the New Canaan Stock Option Plan has been
converted into the Converted New Canaan Bank and Trust Company Stock Option Plan
of Summit Bancorp and outstanding options granted pursuant to the New Canaan
Stock Option Plan were converted into options to purchase the Company's Common
Stock. The merger of New Canaan with and into the Registrant was consummated on
March 31, 1999.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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, 1998;
(b) The description of the Common Stock of Summit contained in Summit's
Registration Statement on Form 10 dated August 31, 1970, 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); and
(c) The description of the Company's Preferred Stock Purchase Rights set
forth in 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.
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.
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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 April 15, 1999 Mr.
Ober beneficially owned 48,843 shares of Common Stock and options to purchase
132,034 shares of Common Stock at a weighted average exercise price of $22.11.
The consolidated financial statements of Summit and subsidiaries as of
December 31, 1998 and 1997 and for each of the years in the three-year period
ended December 31, 1998, included in Summit's Annual Report on Form 10-K for the
year ended December 31, 1998, incorporated by reference herein, have been
incorporated by reference herein in reliance upon the report of KPMG 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 ceased 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 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,
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<PAGE>
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 or Executive Vice President or high ranking officer 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 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, nor 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.
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<PAGE>
(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 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
5
<PAGE>
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.
(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.
Article 7 of Summit's Restated Certificate of Incorporation provides
that:
6
<PAGE>
Except to the extent prohibited by law, no Director or officer of the
Corporation shall be personally liable to the Corporation or its shareholders
for damages for breach of any duty owed to the Corporation or its shareholders
provided that a Director or officer shall not be relieved from liability for any
breach of duty based upon an act or omission (a) in breach of such persons duty
of loyalty to the Corporation or its shareholders, (b) not in good faith or
involving a knowing violation of law or (c) resulting in receipt of an improper
personal benefit. Neither the amendment or repeal of this Article 7, nor the
adoption of any provision of this Restated Certificate of Incorporation
inconsistent with this Article 7, shall eliminate or reduce the effect of this
Article 7 in respect of any matter which occurred, or any cause of action, suit
or claim which but for this Article 7 would have accrued or arisen, prior to
such amendment, repeal or adoption.
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 $50,000,000 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(a) New Canaan Bank and Trust Company 1995 Stock Option Plan
23(a) Consent of Richard F. Ober, Jr., Esq. (included as part of Exhibit 5).
(b) Consent of KPMG LLP.
24 Power of Attorney (previously contained on the signature pages to this
Registration Statement as filed on Form S-4 on December 17, 1998).
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:
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(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (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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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 Amendment
No. 2 to Registration Statement No. 333-69119 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 22nd day of April, 1999.
SUMMIT BANCORP.
By: *
T. Joseph Semrod
Chairman of the Board of Directors
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 2 to Registration Statement No. 333-69119 has been signed below on
the 22nd day of April, 1999 by the following persons in the capacities
indicated.
<TABLE>
<CAPTION>
Signatures Titles
<S> <C>
* Chairman of the Board
T. Joseph Semrod of Directors (Chief Executive Officer)
* President and Director
Robert G. Cox
/s/ William J. Healy Executive Vice
William J. Healy President-Finance
(Principal Financial Officer)
/s/ Paul V. Stahlin Senior Vice President
Paul V. Stahlin and Comptroller
(Principal Accounting Officer)
* Director
S. Rodgers Benjamin
* Director
Robert L. Boyle
* Director
James C. Brady
* Director
John G. Collins
9
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Signatures Titles
* Director
T.J. Dermot Dunphy
* Director
Anne Evans Estabrook
* Director
Elinor J. Ferdon
Director
William M. Freeman
* Director
Thomas H. Hamilton
* Director
Fred G. Harvey
* Director
Francis J. Mertz
* Director
George L. Miles, Jr.
* Director
Raymond Silverstein
* Director
Orin R. Smith
* Director
Joseph M. Tabak
* Director
Douglas G. Watson
*By: /s/ Richard F. Ober, Jr.
Richard F. Ober, Jr.
</TABLE>
*Richard F. Ober, Jr., by signing his name hereto, does sign
this document on behalf of the persons named above, pursuant to
a power of attorney duly executed by such persons and previously
filed.
10
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
5 Opinion of Richard F. Ober, Jr., Esq. regarding legality.
10(a) New Canaan Bank and Trust Company 1995 Stock Option Plan
23(a) Consent of Richard F. Ober, Jr., Esq. (included as part of Exhibit 5).
(b) Consent of KPMG LLP.
24 Power of Attorney (contained on the signature pages to this
Registration Statement as filed on Form S-4 December 17, 1998).
11
Exhibit 5
April 14, 1999
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 139,996
Shares of Summit Bancorp. Common Stock Issuable in Connection with the
Converted New Canaan Bank and Trust Company 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 139,996 shares of the Company's Common
Stock, par value $.80 per share (the "Shares"), to be issued to holders of stock
options under the Converted New Canaan Bank and Trust Company Stock Option Plan
of Summit Bancorp. (the "Plan") upon the exercise thereof. Such options were
originally granted to employees of New Canaan Bank and Trust Company ("New
Canaan") under a stock option plan of New Canaan and were converted into options
with respect to the Company's Common Stock in connection with the merger of New
Canaan with and into the Company, pursuant to an Agreement and Plan of Merger
dated August 24, 1998.
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(a)
NEW CANAAN BANK AND TRUST COMPANY
1995 STOCK OPTION PLAN
1. Purpose
The purpose of this Plan (the "Plan") is to provide a means of inducing key
employees to remain with New Canaan Bank and Trust Company (the "Bank") to
encourage such employees to continue to promote the best interests of the Bank
by offering them a greater stake in its success and a closer identity with it
through increased stock ownership, and to enable the Bank to compete effectively
for the services of new key personnel who may be needed to help carry on the
Bank's expanding operations and to insure its continued development. Nothing
contained in this Plan, or in any option granted under this Plan, shall confer
upon any optionee any right with respect to continuance of employment by the
Bank, or limit in any way the right of the Bank to terminate the optionee's
employment at anytime.
2. Eligibility
Options shall be granted under this Plan only to key employees of the Bank
who, in the opinion of the Board of Directors of the Bank (the "Board"), perform
services of special importance to the management, operations and development of
the business of the Bank. The Plan shall be administered by the Compensation and
Personnel Committee but all grants shall be made solely by the Board of
Directors. The Board shall determine the key employees to be granted options
and, subject to the provisions of Section 8 of this Plan, the number of shares
subject to each option. No Option shall be granted under this Plan to a director
who is not also an employee of the Bank. Furthermore, the Board may grant a
stock appreciation right in connection with any option, either at the time of
grant of such option or at any time thereafter during the term of such option.
3. Effective Date and Termination of Plan
This Plan shall become effective upon its adoption by the Board, subject to
ratification by the shareholders, and shall supersede the 1989 Stock Option Plan
which was terminated by resolution of the Board except for any outstanding
options previously granted. This Plan shall terminate upon the expiration of ten
(10) years from the date on which it is adopted by the shareholders of the Bank
or at such earlier time as the Board may determine. Options may be granted under
this plan at any time and from time to time prior to its termination. Any option
outstanding under this Plan at the termination of the Plan shall remain in
effect until it shall have been exercised in full or shall have expired.
4. The Stock
The Board is hereby authorized to grant options to purchase up to but not
to exceed a maximum of 75,000 shares of common stock of the Bank, $5 par value
(the "Shares"), subject to adjustment as provided in Section 8 below regarding
reorganization, recapitalization and other changes in corporate structure. Such
shares may be unissued shares or previously issued shares reacquired or to be
reacquired by the Bank. All or any shares subject to an option under the Plan
which, for any reason, expires or terminates unexercised as to such shares may
again be subject to an option under this Plan. However, upon surrender of an
option, in whole or in part, and exercise of a related stock
<PAGE>
appreciation right, the number of shares subject to the option (or portion
thereof surrendered) to which the stock appreciation right relates shall not be
available for future options.
5. Price
(a) The purchase price for each share subject to an option granted
hereunder shall be 100% of the Fair Market Value, as defined herein, of such
share on the date the option is granted, but not less than par value. The Fair
Market Value of any such share shall be as determined by the Board and such
determination shall be binding upon the Bank and upon the optionee. The Board
shall make such determination upon the basis of the mean between highest and
lowest quoted selling prices on the day prior to the date of the option grant in
the over-the-counter market, as reported by a recognized stock quotation
service; provided that if there were no sales on such day, the fair market value
shall be the mean between the highest and lowest selling prices on the nearest
day preceding.
(b) The option price of each share purchased upon the exercise of any
option shall be paid in full in cash at the time of such purchase, and a
certificate representing shares so purchased shall be delivered to the person
entitled thereto.
6. Terms and Conditions of Options
Options granted hereunder shall contain the following terms and conditions:
(a) Stock options granted hereunder shall have a maximum term of ten (10)
years from the date of grant. Options shall be exercisable in three equal
installments on the annual anniversary of the grant beginning one year after the
grant as provided by the Board at the time of grant. In no event shall an option
or any stock appreciation right be exercised until six months after grant
thereof except that this limitation shall not apply in the event of death or
disability, in which case the option or right shall be exercisable in accordance
with Sections 6 (c) or 6 (d), respectively.
(b) No option or any other right under this Plan shall be transferable
otherwise than by will or the laws of descent and distribution, and each option
shall be exercisable during the optionee's lifetime only by the optionee or by
his or her guardian or other legal representative.
(c) If the optionee's employment should terminate prior to the expiration
date of the option by reason of death or retirement, the option shall terminate
three years after termination of employment or on the expiration date, whichever
is earlier, and the optionee or the optionee's successor in interest may, prior
to its termination, exercise such option in whole or in part with respect to the
number of shares the optionee was entitled to purchase on the date preceding the
termination of the optionee's employment.
(d) If the optionee's employment with the Bank should terminate prior to
the expiration date due to discharge or voluntary termination of employment
other than by retirement, the option shall terminate three months after the
termination of such employment or on the expiration date, whichever is earlier,
and the optionee may, prior to the termination of the option, exercise the
option in whole or in part with respect to the number of shares the optionee was
entitled to purchase on the date preceding the termination of his employment.
<PAGE>
(e) Time spent on leave of absence shall be considered as employment for
purposes of the Plan. Leave of absence means any period of time away from work
granted by the Bank to the optionee because of illness or injury or because of
other reasons satisfactory to the Bank, provided that if such period exceeds
ninety (90) days, the optionee's right to work shall be confirmed in writing.
(f) The Board may require the surrender of outstanding options as a
condition precedent to the grant of new options.
(g) The Bank reserves the right from time to time to suspend the exercise
of any option for a period not to exceed thirty (30) days where such suspension
is required for corporate purposes. No such suspension shall extend the life of
the option beyond its expiration date, but in no event will there be a
suspension in the five (5) calendar days immediately preceding the expiration.
(h) Subject to the limitations contained herein, any options granted
hereunder may contain such other terms and conditions as the Board of Directors
shall determine.
7. Stock Appreciation Rights
Stock appreciation rights may be granted by the Board in connection with
any stock option; provided, however, that the exercise by the optionee of a
stock appreciation right shall be subject to the consent of the Board. If an
application to exercise any stock appreciation right is approved by the Board,
the related option or portion thereof shall be surrendered to the Bank in
exchange for payments by the Bank of shares (at the Fair Market Value thereof,
as defined in Section 7, but not less than par value) or cash or a combination
thereof, in an amount equal to the excess of the aggregate Fair Market Value of
the shares subject to the option, or portion thereof, being surrendered over the
aggregate purchase price thereof determined as set forth in Section 5 hereof,
provided, however, that fractional shares shall not be issued. Any option, to
the extent surrendered, shall thereupon cease to be exercisable. Stock
appreciation rights shall be subject to the following terms and conditions and
to such other terms and conditions, not inconsistent with the Plan, as the Board
shall from time to time approve:
(a) Stock appreciation rights shall be exercisable in whole or in part, at
such time or times and to the extent that the option to which they relate shall
be exercisable, subject to the limitations included in the proviso in the second
sentence of clause (b) below.
(b) The Board shall have the sole discretion to determine the form in which
payment (i.e. cash, shares or any combination thereof) will be made. However, at
the time application is made to the Board for approval of a stock appreciation
right exercise, optionee may request the form of payment: provided, however,
that optionees who are subject to the provisions of Section 16 of the Securities
Exchange Act of 1934 and who request payment either in whole or in part in cash
may make such application and request only during the period beginning on the
third business day following the date of release of the Bank's quarterly or
annual financial statements and ending on the twelfth business day following
such date. If the Board does not consent to the request, the optionee may
rescind his application for exercise or accept the form of payment determined by
the Board. If the Board consents, such consent shall be effective as of the
optionee's date of application.
<PAGE>
(c) The Fair Market Value of a share for the purposes of stock appreciation
rights shall mean the same value defined in Section 5 hereof, but determined as
of the date of the optionee's date of application.
8. Changes in Stock, Adjustments, Etc.
In the event of any reorganization, recapitalization, stock split, stock
dividend, combination of shares, merger, consolidation, rights offering or any
other change in the corporate structure of shares of the Bank:
(a) The aggregate number and kind of shares available under this Plan may
be appropriately adjusted by the Board; and
(b) The options granted under this Plan shall provide that in any such
event the Board may determine the appropriate adjustments to be made in the
number and kind of shares covered by such options and in the option price.
Notice of any such adjustment shall be given by the Bank to each holder of any
option which shall have been so adjusted and such adjustments shall be effective
and binding for all purposes. The Board shall have authority to make provisions
for settlement in cash of any fractional shares, in lieu of the issuance
thereof, which become purchasable as a result of any such adjustment.
9. Administration and Amendment of the Plan
The Bank shall effect the grant of options under this plan by execution, by
the Bank and the optionee, of an instrument in writing, incorporating the terms
of the Plan by reference and containing such other conditions and in such form
as may be approved by the Board but in no event inconsistent with terms and
conditions set forth specifically elsewhere in the Plan. The Board, from time to
time, may adopt rules and regulations for carrying out this Plan, and may, from
time to time, make such changes in and additions to this Plan and, with the
consent of an optionee, to the terms and conditions of his/her option, as it may
deem proper, without further action on the part of the shareholders of the Bank;
provided, however, that unless the shareholders of the Bank shall have first
approved thereof (i) the total number of shares which may be purchased under
this Plan by all employees, shall not be increased, except as otherwise provided
in Section 8 of this Plan, (ii) the purchase price shall not be changed, except
as otherwise provided in Section 8 of this Plan, and (iii) the expiration date
of this Plan shall not be extended. The interpretation and construction of any
provision of this Plan by the Board shall be final and conclusive. No Director
who is or shall have been an employee of the Bank shall vote on any action
required or permitted to be taken under this Plan by the Board of Directors.
<PAGE>
1. Amendment of Stock Option Plan
RESOLVED, that the 1995 Stock Option Plan of New Canaan Bank and Trust
Company (the "Bank") be, and the same hereby is, amended to add the
following sentence to Section 6 (h):
"The Board may issue options on terms and conditions other than
expressly limited herein to effectuate the terms of any written
contract of employment provided such terms and conditions are not
specifically reserved by Section 9 hereof as changes requiring prior
shareholder approval."
RESOLVED, FURTHER, that the Chairman of the Bank be, and he hereby is,
authorized, empowered and directed to do all things by him deemed necessary
and appropriate, including delegation of authority, to effectuate the
foregoing Resolution.
<PAGE>
ATTACHMENT 2
New Canaan Bank and Trust Company
Resolution to Amend the 1995 Stock Option Plan to Accelerate the Exercise of
Options in the event of an Change in Control.
RESOLVED, that the 1995 Stock Option Plan (the "Plan") of New Canaan Bank &
Trust Company (the "Bank") be and hereby is amended, pursuant to the
authority granted to this Board of Directors by the terms of Section 9 of
the Plan, to add the following provision as Section 6 (i) thereof, which
shall be effective immediately and without the necessity of amending any
stock option agreements heretofore entered into by the Bank:
"Acceleration: Notwithstanding any contrary installment
period set forth in the Plan, or in any agreement or
instrument evidencing any stock option or other right
granted prior to the effectiveness of this amendment, each
outstanding stock option or other right heretofore and
hereafter granted shall, except as otherwise provided in any
applicable agreement or instrument evidencing the same
granted after the effectiveness of this amendment, vest
unconditionally and become exercisable in full for the
aggregate number of shares covered thereby in the event of
(i) the acquisition by any single entity or group of at
least fifty percent (50%) of the outstanding voting
securities of the Bank or (ii) a sale of all or
substantially all of the assets of the Bank to another
person or entity other than an affiliate of the Bank, or a
reorganization, merger, business combination or
consolidation of the Bank as a result of which at least 50%
of the voting securities of the Bank or its successor are
held, directly or indirectly, by persons or entities who did
not hold at least 50% of the voting securities of the Bank
immediately prior to such transaction. The Board of
Directors of the Bank may also, in its discretion, otherwise
accelerate the vesting or exercisability of any option or
other right granted hereunder in the course of the
administration of the Plan. For purposes of (i) above,
"group" shall have the meaning set forth in Rule 13d-5 of
the Securities and Exchange Commission under the Exchange
Act, and shall include as to each person, entity or group,
each "affiliate" of that person, entity or group, as that
term is defined in Rule 12b-2 of the Security and Exchange
Commission under the Exchange Act. The terms "person,"
"entity" and "group" as used in (i) employee benefit plan of
the Bank or any of its subsidiaries, any entity holding
voting securities of the Bank for or pursuant to the terms
of any such plan. Securities will be deemed to constitute
50% of the voting securities of the Bank or its successor if
the holders thereof collectively have the power to elect at
least 50% of the directors, or if the successor is not a
corporation, 50% of the other analogous controlling
persons."
Exhibit 23(b)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Summit Bancorp.
We consent to the use of our report dated January 19, 1999 relating to the
consolidated balance sheets of Summit Bancorp and subsidiaries as of December
31, 1998 and 1997, and the related consolidated statements of income, changes in
stockholders equity and cash flows for each of the years in the three-year
period ended December 31, 1998, which report appears in the December 31, 1998
Annual Report on Form 10-K of Summit Bancorp, incorporated by reference in the
Registration Statement on Form S-8 of Summit Bancorp. We also consent to the
reference to our firm under the caption "Interests of Named Experts and
Counsel".
/s/ KPMG LLP
Short Hills, New Jersey
April 21, 1999