As filed with the Securities and Exchange Commission on May 8,
1997
Registration No. 333-________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
_____________________________________
BROAD NATIONAL BANCORPORATION
(Exact name of registrant as specified in its charter)
New Jersey 22-2395057
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification Number)
905 Broad Street, Newark, New Jersey 07102
(Address of Principal Executive Offices) (Zip Code)
1993 BROAD NATIONAL
INCENTIVE STOCK OPTION PLAN
1993 BROAD NATIONAL
NON-STATUTORY STOCK OPTION PLAN
(Full title of the plans)
Donald M. Karp, 905 Broad Street, Newark, New Jersey 07102
(Name and address of agent for service)
(201) 624-2300
(Telephone number, including area code, of agent for service)
Please send copies of all correspondence to:
STINSON, MAG & FIZZELL, P.C.
1201 Walnut Street
Kansas City, Missouri 64106
Attention: James W. Allen
(816) 842-8600
CALCULATION OF REGISTRATION FEE
Proposed
Title of Proposed maximum
securities Amount to maximum aggregate Amount of
to be be offering price offering registration
registered registered per share /1/ price /1/ fee
Common
Stock
$1.00 317,625
par value shares /2/ $15.25 $2,574,850 $780
/1/ Estimated solely for purposes of calculating registration
fee, based on (i) $15.25, the average of the high and low
prices on May 5, 1997 with respect to 13,574 shares, (ii)
the $13.34 price at which options may be exercised with
respect to 10,000 shares, (iii) the $12.13 price at which
options may be exercised with respect to 34,000 shares, (iv)
the $9.89 price at which options may be exercised with
respect to 6,600 shares, (v) the $9.50 price at which
options may be exercised with respect to 16,500 shares, (vi)
the $8.64 price at which options may be exercised with
respect to 57,200 shares, (vii) the $7.05 price at which
options may be exercised with respect to 6,600 shares,
(viii) the $7.02 price at which options may be exercised
with respect to 6,930 shares, (ix) the $6.78 price at which
options may be exercised with respect to 15,950 shares, (x)
the $6.43 price at which options may be exercised with
respect to 15,939 shares, (xi) the $6.16 price at which
options may be exercised with respect to 48,400 shares, and
(xii) the $5.84 price at which options may be exercised with
respect to 85,932 shares, pursuant to Rule 457(h) under the
Securities Act of 1933.
/2/ The provisions of Rule 416 shall apply to this Registration
Statement and the number of shares registered on this
Registration Statement automatically shall increase or
decrease as a result of stock splits, stock dividends, or
similar transactions.
<PAGE>
PART II
Information Required in the Registration Statement
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into
this Registration Statement the following documents: (a) the
Registrant's annual report on Form 10-K for the year ended
December 31, 1996; and (ii) the description of the Common Stock
of the Registrant contained in the Registrant's Registration
Statement on Form 8-A (No. 0-16637), as amended under cover of
Form 8-A/A (dated April 30, 1997). All documents filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934 after the date hereof and prior
to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters
all securities offered hereby remaining unsold shall be deemed to
be incorporated by reference herein and to be a part hereof from
the date of the filing of such reports and documents. Any
statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of the Common Stock of the
Registrant registered pursuant to this Registration Statement has
been passed upon by Stinson, Mag & Fizzell, P.C., 1201 Walnut
Street, Kansas City, Missouri 64106. As of May 7, 1997,
attorneys of such law firm owned in the aggregate 20,131 shares
of Common Stock of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 14A:2-7 of the New Jersey Business Corporation
Act (the "NJBCA") permits a corporation, in its certificate of
incorporation, to limit or eliminate, subject to certain
statutory limitations, the liability of directors or officers of
the corporation to the corporation or its shareholders for
damages for breach of any duty owed to the corporation or its
shareholders, except for a breach of duty based on an act or
omission (a) in breach of such person's duty of loyalty to the
corporation or its shareholders, (b) not in good faith or
involving a knowing violation of law or (c) resulting in receipt
by such person of an improper personal benefit.
<PAGE>
Article NINTH of the Certificate of Incorporation of
the Registrant contains a provision eliminating the liability of
directors and officers of the Registrant to the fullest extent
permitted or authorized by the laws of the State of New Jersey.
In addition to the foregoing, Section 14A:3-5 of the
NJBCA governs the indemnification of directors, officers and
employees of the Registrant. The following is the text of that
Section effective February 4, 1989.
(1) As used in this section,
(a) "Corporate agent" means any person who is or
was a director, officer, employee or agent of the
indemnifying corporation or of any constituent corporation
absorbed by the indemnifying corporation in a consolidation
or merger and any person who is or was a director, officer,
trustee, employee or agent of any other enterprise, serving
as such at the request of the indemnifying corporation, or
of any such constituent corporation, or the legal
representative of any such director, officer, trustee,
employee or agent;
(b) "Other enterprise" means any domestic or
foreign corporation, other than the indemnifying
corporation, and any partnership, joint venture, sole
proprietorship, trust, or other enterprise, whether or not
for profit, served by a corporate agent;
(c) "Expenses" means reasonable costs,
disbursements and counsel fees;
(d) "Liabilities" means amounts paid or incurred
in satisfaction of settlements, judgments, fines and
penalties;
(e) "Proceeding" means any pending, threatened or
completed civil, criminal, administrative 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
(f) 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 acted 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 interests of the corporation" as referred to in
this section.
(2) Any corporation organized for any purpose under
any general or special law of this State shall have the power to
indemnify a corporate agent against his expenses and liabilities
<PAGE>
in connection with any proceeding involving the corporate agent
by reason of his being or having been such a corporate agent,
other than a proceeding by or in the right of the corporation, if
(a) Such corporate agent acted in good faith and
in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation; and
(b) With respect to any criminal proceeding, such
corporate agent had no reasonable cause to believe his
conduct was unlawful. The termination of any proceeding by
judgment, order, settlement, conviction or upon a plea of
nolo contendere or its equivalent, shall not of itself
create a presumption that such corporate agent did not meet
the applicable standards of conduct set forth in paragraphs
14A:3-5(2)(a) and 14A:3-5(2)(b).
(3) Any corporation organized for any purpose under
any general or special law of this State shall have the power to
indemnify a corporate agent against his expenses in connection
with any proceeding by or in the right of the corporation to
procure a judgment in its favor which involves the corporate
agent by reason for his being or having been such corporate
agent, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation. However, in such proceeding no indemnification
shall be provided in respect of any claim, issue or matter as to
which such corporate agent shall have been adjudged to be liable
to the corporation, unless and only to the extent that the
Superior Court or the court in which such proceeding was brought
shall determine upon application that despite the adjudication of
liability, but in view of all circumstances of the case, such
corporate agent is fairly and reasonably entitled to indemnity
for such expenses as the Superior Court or such other court shall
deem proper.
(4) Any corporation organized for any purpose under
any general or special law of this State shall indemnify a
corporate agent against expenses to the extent that such
corporate agent has been successful on the merits or otherwise in
any proceeding referred to in subsections 14A:3-5(2) and
14A:3-5(3) or in defense of any claim, issue or matter therein.
(5) Any indemnification under subsection 14A:3-5(2)
and, unless ordered by a court, under subsection 14A:3-5(3) may
be made by the corporation only as authorized in a specific case
upon a determination that indemnification is proper in the
circumstances because the corporate agent met the applicable
standard of conduct set forth in subsection 14A:3-5(2) or
subsection 14A:3-5(3). Unless otherwise provided in the
certificate of incorporation or bylaws, such determination shall
be made
(a) By the board of directors or a committee
thereof, acting by a majority vote of a quorum consisting of
directors who were not parties to or otherwise involved in
the proceeding; or
<PAGE>
(b) If such a quorum is not obtainable, or, even
if obtainable and such quorum of the board of directors or
committee by a majority vote of the disinterested directors
so directs, by independent legal counsel, in a written
opinion, such counsel to be designated by the board of
directors; or
(c) By the shareholders if the certificate of
incorporation or bylaws or a resolution of the board of
directors or of the shareholders so directs.
(6) Expenses incurred by a corporate agent in
connection with a proceeding may be paid by the corporation in
advance of the final disposition of the proceeding as authorized
by the board of directors upon receipt of an undertaking by or on
behalf of the corporate agent to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified as provided in this section.
(7) (a) If a corporation upon application of a
corporate agent has failed or refused to provide indemnification
as required under subsection 14A:3-5(4) or permitted under
subsections 14A:3-5(2), 14A:3-5(3) and 14A:3-5(6), a corporate
agent may apply to a court for an award of indemnification by the
corporation, and such court
(i) may award indemnification to the extent
authorized under subsections 14A:3-5(2) and 14A:3-5(3) and
shall award indemnification to the extent required under
subsection 14A:3-5(4), notwithstanding any contrary
determination which may have been made under subsection
14A:3-5(5); and
(ii) may allow reasonable expenses to the extent
authorized by, and subject to the provisions of, subsection
14A:3-5(6), if the court shall find that the corporate agent
has by his pleadings or during the course of the proceeding
raised genuine issues of fact or law.
(b) Application for such indemnification may be
made
(i) in the civil action in which the expenses
were or are to be incurred or other amounts were or are to
be paid; or
(ii) to the Superior Court in a separate
proceeding. If the application is for indemnification
arising out of a civil action, it shall set forth reasonable
cause for the failure to make application for such relief in
the action or proceeding in which the expenses were or are
to be incurred or other amounts were or are to be paid.
The application shall set forth the disposition of any
previous application for indemnification and shall be made in
such manner and form as may be required by the applicable rules
of court or, in the absence thereof, by direction of the court to
which it is made. Such application shall be upon notice to the
corporation. The court may also direct that notice shall be
<PAGE>
given at the expense of the corporation to the shareholders and
such other persons as it may designate in such manner as it may
require.
(8) The indemnification and advancement of expenses
provided by or granted pursuant to the other subsections of this
section shall not exclude any other rights, including the right
to be indemnified against liabilities and expenses incurred in
proceedings by or in the right of the corporation, to which a
corporate agent may be entitled under a certificate of
incorporation, bylaw, agreement, vote of shareholders, or
otherwise; provided that no indemnification shall be made to or
on behalf of a corporate agent if a judgment or other final
adjudication adverse to the corporate agent establishes that his
acts or omissions (a) were in breach of his duty of loyalty to
the corporation or its shareholders, as defined in subsection (3)
of N.J.S. 14A:2-7, (b) were not in good faith or involved a
knowing violation of law or (c) resulted in receipt by the
corporate agent of an improper personal benefit.
(9) Any corporation organized for any purpose under
any general or special law of this State shall have the power to
purchase and maintain insurance on behalf of any corporate agent
against any expenses incurred in any proceeding and any
liabilities asserted against him by reason of his being or having
been a corporate agent, whether or not the corporation would have
the power to indemnify him against such expenses and liabilities
under the provisions of this section. The corporation may
purchase such insurance from, or such insurance may be reinsured
in whole or in part by, an insurer owned by or otherwise
affiliated with the corporation, whether or not such insurer does
business with other insureds.
(10) The powers granted by this section may be
exercised by the corporation, notwithstanding the absence of any
provision in its certificate of incorporation or bylaws
authorizing the exercise of such powers.
(11) Except as required by subsection 14A:3-5(4), no
indemnification shall be made or expenses advanced by a
corporation under this section, and none shall be ordered by a
court, if such action would be inconsistent with a provision of
the certificate of incorporation, a bylaw, a resolution of the
board of directors or of the shareholders, an agreement or other
proper corporate action, in effect at the time of the accrual of
the alleged cause of action asserted in the proceeding, which
prohibits, limits or otherwise conditions the exercise of
indemnification powers by the corporation or the rights of
indemnification to which a corporate agent may be entitled.
(12) This section does not limit a corporation's power
to pay or reimburse expenses incurred by a corporate agent in
connection with the corporate agent's appearance as a witness in
a proceeding at a time when the corporate agent has not been made
a party to the proceeding.
Article NINTH of the Certificate of Incorporation of
the Registrant provides that the Registrant shall indemnify
directors and officers of the Registrant to the full extent
permitted or authorized by the laws of the State of New Jersey.
The Certificate of Incorporation also <PAGE> permits the Registrant to
purchase and maintain insurance against any liability asserted
against any director or officer of the Registrant arising out of
his capacity as such.
Each of the officers and directors of the Registrant is
insured against certain liabilities which he might incur in his
capacity as an officer or director pursuant to directors' and
officers' liability insurance policies.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers or persons controlling the Registrant pursuant to the
foregoing provisions, the Registrant has been informed that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following Exhibits are filed as a part of this
Registration Statement:
Exhibit No. Description
4.1 Form of Common Stock Certificate (filed
January 24, 1994 as Exhibit 4.1
to Post-Effective Amendment No.
1 to the Registrant's
Registration Statement on Form
S-8 (No. 33-28183) and
incorporated herein by
reference).
4.2 Restated Certificate of Incorporation of
the Registrant as amended
through and including June 29,
1995 (filed as Exhibit 3 to the
Registrant's Form 10-Q for the
quarter ended March 31, 1996 and
incorporated herein by
reference).
4.2.1 Certificate of Amendment of Certificate of
Incorporation of the Registrant,
respecting the Amendment of
ARTICLE THIRD to increase the
number of authorized shares of
capital stock (filed April 30,
1997 as Exhibit 3 to the
Registrant's Registration
Statement under cover <PAGE> of Form
8-A/A (No. 0-16637) and
incorporated herein by
reference).
4.3 1993 Broad National Incentive Stock
Option Plan for certain
employees.
4.4 1993 Broad National Directors Non-
Statutory Stock Option Plan for
directors (filed as Exhibit
10.25 to the Registrant's Form
10-K for the year ended December
31, 1994 and incorporated herein
by reference).
5 Opinion of Stinson, Mag & Fizzell, P.C.
23.1 Consent of Stinson, Mag & Fizzell, P.C.
(contained in Opinion filed as
Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney (included on the signature page
to this Registration Statement).
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this
Registration Statement (or the most recent
post-effective amendment thereto) which, individually
or in the aggregate, represent a fundamental change in
the information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration
Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is <PAGE> contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934, and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant, the
Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing 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 City of Newark, State of New Jersey, on April 17, 1997.
BROAD NATIONAL BANCORPORATION
By /s/ Donald M. Karp
Donald M. Karp
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby severally constitutes and appoints
Donald M. Karp, John A. Dorman and James Boyle, and each of them,
his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective
amendments) to this Registration Statement and all documents
relating thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and
perform each and every act and thing necessary or advisable to be
done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or his substitute or substitutes, lawfully may 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 by the
following persons in the capacities and on the date indicated.
Signature and Title Date
/s/ Donald M. Karp April 17, 1997
Donald M. Karp
Chairman of the Board,
Chief Executive Officer and Director
(Principal Executive Officer)
<PAGE>
/s/ James Boyle April 17, 1997
James Boyle
Treasurer and Comptroller
(Principal Financial and Accounting
Officer)
/s/ John A. Dorman April 17, 1997
John A. Dorman
Director
/s/ Licinio Cruz April 17, 1997
Licinio Cruz
Director
/s/ Arthur Fischman April 17, 1997
Arthur Fischman
Director
/s/ John J. Iannuzzi April 17, 1997
John J. Iannuzzi
Director
/s/ James J. Lazarus April 17, 1997
James J. Lazarus
Director
/s/ Edward J. Lenihan April 17, 1997
Edward J. Lenihan
Director
/s/ Stanley J. Lesnik April 17, 1997
Stanley J. Lesnik
Director
<PAGE>
/s/ Catherine McFarland April 17, 1997
Catherine McFarland
Director
/s/ Louis J. Owen April 17, 1997
Louis J. Owen
Director
/s/ A. Harold Schwartz April 17, 1997
A. Harold Schwartz
Director
/s/ Hubert Williams April 17, 1997
Hubert Williams
Director
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit No. Description Numbered Page
4.1 Form of Common Stock Certificate (filed *
January 24, 1994 as Exhibit 4.1
to Post-Effective Amendment No.
1 to the Registrant's
Registration Statement on Form
S-8 (No. 33-28183) and
incorporated herein by
reference).
4.2 Restated Certificate of Incorporation of *
the Registrant as amended
through and including June 29,
1995 (filed as Exhibit 3 to the
Registrant's Form 10-Q for the
quarter ended March 31, 1996 and
incorporated herein by
reference).
4.2.1 Certificate of Amendment of Certificate of *
Incorporation of the Registrant,
respecting the Amendment of
ARTICLE THIRD to increase the
number of authorized shares of
capital stock (filed April 30,
1997 as Exhibit 3 to the
Registrant's Registration
Statement under cover of Form
8-A/A (No. 0-16637) and
incorporated herein by
reference).
4.3 1993 Broad National Incentive Stock __
Option Plan for certain
employees.
4.4 1993 Broad National Directors Non- *
Statutory Stock Option Plan for
directors (filed as Exhibit
10.25 to the Registrant's Form
10-K for the year ended December
31, 1994 and incorporated herein
by reference).
5 Opinion of Stinson, Mag & Fizzell, P.C. __
23.1 Consent of Stinson, Mag & Fizzell, P.C. __
(contained in Opinion filed as Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP. __
<PAGE>
24 Power of Attorney (included on the signature page
to this Registration Statement).
__________________
* Incorporated herein by reference.
EXHIBIT 4.3
1993
BROAD NATIONAL
INCENTIVE STOCK OPTION PLAN
(Amended)
BROAD NATIONAL BANCORPORATION, a corporation organized
and existing under the laws of the State of New Jersey (the
"Company"), hereby formulates and adopts, subject to the approval
of the holders of a majority of the issued and outstanding shares
of common stock of the Company ("Broad National Common Stock")
voting in person or by proxy at a duly constituted meeting of the
stockholders of the Company, an incentive stock option plan for
certain key employees of the Company and its subsidiaries as
follows:
1. Purpose of Plan. The purpose of this Incentive Stock Option
Plan (the "Plan") is to encourage certain employees of the
Company and its subsidiaries to participate in the ownership of
the Company, and to provide additional incentive for such
employees to promote the success of its business through sharing
in the future growth of such business.
2. Effectiveness of Plan. The provisions of this Plan shall
become effective on the date the Plan is adopted by the Board of
Directors of the Company (the "Board of Directors"), subject to
the requirement that the Plan and any amendments to the Articles
of Incorporation of the Company with respect to preemptive rights
are approved by the holders of a majority of the shares of Broad
National Common Stock voting in person or by proxy at a duly
constituted meeting of the stockholders of the Company to be held
within twelve (12) months after the date on which the Plan is
adopted.
3. Administration. This Plan shall be administered by a
committee ("Committee") which shall be selected by the Board of
Directors and which shall be composed of not less than two (2)
nor more than five (5) members of the Board of Directors who are
not employees and who qualify as disinterested persons within the
meaning of Securities and Exchange Commission Rule 16b-3. The
Committee shall have full power and authority to construe,
interpret and administer the Plan, and may from time to time
adopt such rules and regulations for carrying out this Plan as it
may deem proper and in the best interests of the Company.
Subject to the terms, provisions and conditions of the Plan, the
Committee shall have exclusive authority (i) to select the
employees to whom options shall be granted, (ii) to determine the
number of shares subject to each option, (iii) to determine the
time or times when options will be granted, (iv) to determine the
option price of the shares subject to each option, (v) to
determine the time when each option may be exercised, (vi) to fix
such other provisions of each option agreement as the Committee
may deem necessary or desirable, consistent with the terms of
this Plan, and (vii) to determine all other questions relating to
the administration of this Plan. The interpretation and
construction of this Plan by the Committee shall be final,
conclusive and binding upon all persons.
<PAGE>
4. Eligibility.
(a) Key employees--Options to purchase shares of Broad
National Common Stock shall be granted under this Plan only to
key employees of the Company or of any of its subsidiary
corporations, as that term is defined in Section 424(f) of the
Internal Revenue Code of 1986, as amended (the "Code"). Key
employees to whom options may be granted under this Plan will be
those employees selected by the Committee from time to time who,
in the sole discretion of the Committee, have made material
contributions in the past, or who are expected to make material
contributions in the future, to the successful performance of the
Company.
(b) Stock ownership limitation--No option shall be
granted under this Plan to any employee of the Company or of a
subsidiary corporation who, immediately before the option is
granted, owns (either directly or by application of the rules
contained in Section 424(d) of the Code) stock possessing more
than 10 percent of the total combined voting power of all classes
of stock of the Company or of any of its subsidiary corporations
unless at the time of such grant the option price is fixed at not
less than 110 percent of the fair market value of the stock
subject to the option, and the exercise of such option is
prohibited by its terms after the expiration of five (5) years
from the date such option is granted.
5. Shares Subject to the Plan. Options granted under this Plan
shall be granted solely with respect to shares of Broad National
Common Stock. Subject to any adjustments made pursuant to the
provisions of Section 12, the aggregate number of shares of Broad
National Common Stock which may be issued upon exercise of the
options which will be granted under this Plan shall not exceed
two hundred thousand (200,000) shares.
If any option granted under this Plan shall expire or
terminate for any reason without having been exercised in full,
the unpurchased shares subject to such option shall be added to
the number of shares otherwise available for options which may be
granted in accordance with the terms of this Plan.
The shares to be delivered upon exercise of the options
granted under this Plan shall be made available, at the
discretion of the Board of Directors, from either the authorized
but unissued shares of Broad National Common Stock or any
treasury shares of Broad National Common Stock held by the
Company.
6. Option Agreement. Each option granted under this Plan shall
be evidenced by an incentive stock option agreement, which shall
be signed by an officer of the company and by the employee to
whom the option is granted (the "optionee"). The terms of said
incentive stock option agreement shall be in accordance with
provisions as may be approved by the Committee. The granting of
an option under this Plan shall be deemed to occur on the date on
which the incentive stock option agreement evidencing such option
is executed by the Company. Each incentive stock option
agreement shall constitute a binding contract between the Company
and the optionee, and every optionee, upon the execution of an
incentive stock option agreement, shall be bound by the terms and
restrictions of this Plan and such incentive stock option
agreement.
<PAGE>
7. Option Price. The price at which shares of Broad National
Common Stock may be purchased under an option granted pursuant to
this Plan shall be determined by the Committee, but in no event
shall the price be less than the greater of (a) the par value
thereof, or (b) 100 percent of the fair market value of such
shares on the date that the option is granted. The fair market
value of shares of Broad National Common Stock for purposes of
this Plan shall be determined by the Committee, in its sole
discretion, and the Committee may adopt such formulas as in its
opinion shall reflect the true fair market value of such stock
from time to time, and may rely on such independent advice with
respect to such fair market value as the Committee shall deem
appropriate.
8. Period and Exercise of Option.
(a) Period--Subject to the provisions of Section 10
hereof with respect to the death or termination of employment of
an optionee, the period during which each option granted under
this Plan may be exercised shall be fixed by the Committee at the
time such option is granted, provided that such period shall
expire no later than ten (10) years from the date on which the
option is granted. In the event the Company shall not be the
surviving corporation in any merger, consolidation, or
reorganization, or in the event of acquisition by another
corporation of all or substantially all of the assets of the
Company, every option outstanding hereunder may be assumed (with
appropriate changes) by the surviving, continuing, successor or
purchasing corporation, as the case may be subject to any
applicable provisions of the Code or replaced with new options of
comparable value (in accordance with Section 424(a) of the Code).
In the event (i) that such surviving, continuing, successor or
purchasing corporation, as the case may be, does not assume or
replace the outstanding options hereunder, or (ii) of liquidation
or dissolution of the Company, the Committee may provide that
each optionee shall have the right, within a period commencing
not more than 30 days immediately prior to and ending on the day
immediately prior to such merger, consolidation, reorganization
or acquisition by another corporation of all or substantially all
of the assets of the Company or the liquidation or dissolution of
the Company, to exercise the optionee's outstanding options to
the extent of all or any part of the aggregate number of shares
subject to such option(s). In the event of a "Change of Control"
(as defined below) the Committee may accelerate the time at which
options granted under this Plan may be exercised by the optionee.
For purposes of this paragraph (a) "Change of Control" shall mean
a change in control of a nature that would be required to be
reported in response to item 6(e) of Schedule 14A of Regulation
14A (in effect on the date hereof) promulgated under the
Securities Exchange Act of 1934, as in effect on the date hereof;
provided, however, that, without limitation, such a Change of
Control shall be deemed to occur when either (i) a person (other
than a current stockholder, or a director nominated or selected
by the Board of Directors of the Company or an officer elected by
the board of Directors of the Company) acquires beneficial
ownership (as defined by Securities and Exchange Commission Rule
13d-3) of 25 percent or more of the combined voting power of the
Company's voting securities, or (ii) less than a majority of the
directors are persons who were either nominated or selected by
the Board of Directors.
(b) Exercise--Any option granted under this Plan may
be exercised by the optionee (or by a person acting under Section
10(b) below) only by (i) delivering to the Company <PAGE> written notice
of the number of shares with respect to which the optionee is
exercising his or her option right, (ii) paying in full the
option price of the purchased shares, and (iii) if the shares to
be purchased have not been registered under the applicable
securities laws and if necessary, in the opinion of counsel for
the Company to secure an exemption from such registration,
furnishing to the Company such representation or agreement in
writing signed by the optionee (or purchaser) as shall be
necessary in the opinion of such counsel to secure such
exemption. Subject to the limitations of this Plan and the terms
and conditions of the respective incentive stock option
agreement, each option granted under this Plan shall be
exercisable in whole or in part at such time or times as the
Committee may specify in such incentive stock option agreement.
(c) Payment for shares--Payment for shares of Broad
National Common Stock purchased pursuant to an option granted
under this Plan may be made either in cash or in other shares of
Broad National Common Stock.
(d) Delivery of certificates--As soon as practicable
after receipt by the Company of the notice and representation
described in subsection (b), and of payment in full of the option
price for all of the shares being purchased pursuant to an option
granted under this plan, a certificate or certificates
representing such shares of stock shall be registered in the name
of the optionee and shall be delivered to the optionee. However,
no certificate for fractional shares of stock shall be issued by
the Company notwithstanding any request therefor. Neither any
optionee, nor the legal representative, legatee or distributee of
any optionee, shall be deemed to be a holder of any shares of
stock subject to an option granted under this Plan unless and
until the certificate or certificates for such shares have been
issued. All stock certificates issued upon the exercise of any
options granted pursuant to this Plan may bear such legend as the
Committee shall deem appropriate regarding restrictions upon the
transfer or sale of the shares evidenced thereby.
(e) Limitations on exercise--Except as provided in
Section 10 hereof, no option granted under this Plan shall be
exercised unless the optionee is at the time of such exercise
employed by the Company or one of its subsidiary corporations and
shall have been so employed by the Company or one of its
subsidiary corporations at all times since the date on which such
option was granted.
9. Limitation on Incentive Stock Options Granted to Individual
Employees. The aggregate fair market value (determined at the
time the options are granted) of stock with respect to which
incentive stock options are exercisable for the first time by any
individual during any calendar year under this Plan (and under
any other plan or plans of such individual's employer corporation
and any parent or subsidiary corporation or corporations) shall
not exceed $100,000; provided, however, the foregoing $100,000
limitation shall only apply to incentive stock options and shall
not limit the aggregate fair market value of stock with respect
to which all other options granted under the Plan are exercisable
for the first time by any individual during any calendar year,
and any options in excess of the $100,000 limitation shall be
non-statutory stock options subject to all other provisions of
this Plan. The $100,000 limitation provided by the preceding
sentence shall be applied by taking options into account in the
order in which they are granted. For purposes of this Plan,
"incentive stock options" shall mean options that meet the
requirements of the Code.
<PAGE>
10. Termination of Employment. If an optionee shall cease to be
employed by the Company or any of its subsidiary corporations for
any reason other than death, disability (as defined herein), for
cause (as defined herein) or on account of voluntary termination,
any option or unexercised portion thereof granted to him under
this Plan which is otherwise exercisable shall terminate unless
it is exercised within thirty (30) days of the date on which such
optionee ceases to be so employed, and in any event no later than
the expiration date of such option as specified in the respective
stock option agreement. Nothing in this Plan or in any stock
option agreement shall be construed as an obligation on the part
of the Company or any of its subsidiary corporations to continue
the employment of any employee.
(a) Termination Of Employment for Cause or On Account of
Voluntary Termination. If an optionee's employment by the
Company or by any of its subsidiary corporations should be
terminated for cause or if an optionee should voluntarily
terminate his employment with the Company or with any subsidiary
of the Company, any option or unexercised portion thereof granted
to him under this Plan shall immediately be terminated and
forfeited without any payment being due therefor from the Company
or any subsidiary thereof. For purposes of this paragraph (a),
the term "cause" shall mean, with respect to any optionee, (1)
cause as defined in the employment agreement with the Company or
any subsidiary thereof to which the optionee is a party or, if
none, (2) the occurrence of any of the following events:
(i) the willful and continued failure by such Optionee
to substantially perform his duties with the Company or any
subsidiary thereof on a full-time basis (other than any such
failure resulting from total or partial incapacity due to
physical or mental illness) after a written demand for
substantial performance is delivered to such optionee by the
Board, which demand identifies the manner in which the Board
believes that he has not substantially performed such
duties;
(ii) the willful engaging by such optionee in conduct
which is significantly injurious to the Company or to any
subsidiary of the Company, monetarily or otherwise, after a
written demand for cessation of such conduct is delivered to
such individual by the Board, which demand specifically
identifies the manner in which the Board believes that such
individual has engaged in such conduct and the injury to the
Company or to any subsidiary of the Company resulting
therefrom;
(iii) the commission by such optionee of an act or
acts constituting a crime involving moral turpitude;
(iv) the breach by such optionee of one or more
covenants, if any, in any agreement to which the optionee
and the Company are parties;
(v) such optionee's use of illegal drugs, abuse of
other controlled substances or habitual intoxication; or
<PAGE>
(vi) the commission by such optionee of a significant
act of dishonesty, deceit or breach of fiduciary duty in the
performance of the optionee's duties with the Company or
with any subsidiary of the Company.
For purposes of clauses (i) and (ii) of this definition, no act,
or failure to act, on the part of an optionee shall be deemed to
be willful unless knowingly done, or omitted to be done, by such
optionee not in good faith and without a reasonable belief that
such action or omission was in the best interests of the Company
or of a subsidiary of the Company.
(b) Termination of Employment on Account of Death or
Disability of Optionee. In the event of the death or disability
of an optionee while he is an employee of the Company or of a
subsidiary of the Company (or within thirty (30) days of the date
on which such optionee ceases to be so employed) any option or
unexercised portion thereof granted to him under this Plan which
is otherwise exercisable shall terminate unless it is exercised
within a period of one (1) year following the optionee's death or
disability (but in no event later than the expiration date of the
option as specified in the respective incentive stock option
agreement). In the event of the death of the optionee, the
option may be exercised in accordance with the provisions of this
paragraph (b) only by the person or persons to whom such
optionee's rights under the option pass by operation of the
optionee's will or the laws of descent and distribution. For
purposes of this paragraph (b), the term "disability" shall mean,
with respect to any optionee, physical or mental incapacity
resulting in such optionee being unable to substantially perform
his duties for more than six (6) consecutive months or an
aggregate of six (6) months in any period of twelve (12)
consecutive months as determined in writing by a qualified
independent physician mutually acceptable to the optionee and the
Company.
11. Nontransferability of Options. Each option granted under
this Plan shall not be transferable or assignable by the optionee
other than by will or the laws of descent and distribution, and
during the lifetime of the optionee may be exercised only by said
optionee.
12. Adjustments upon Changes in Capitalization. In the event of
any change in the capital structure of the Company, including but
not limited to a change resulting from a stock dividend, stock
split, reorganization, merger, consolidation, liquidation or any
combination or exchange of shares,the number of shares of Broad
National Common Stock subject to this Plan and the number of such
shares subject to each option granted hereunder shall be
correspondingly adjusted by the Committee. The option price for
which shares of Broad National Common Stock may be purchased
pursuant to an option granted under this Plan shall also be
adjusted so that there will be no change in the aggregate
purchase price payable upon the exercise of any option.
13. Amendment and Termination of Plan. No option shall be
granted pursuant to this Plan after December 15, 2003, on which
date this Plan will expire except as to options then outstanding
under the Plan, which options shall remain in effect until they
have been exercised or have expired. The Board of Directors may
at any time before such date amend, modify or terminate the Plan;
provided, however, that the Board of Directors may not, without
further <PAGE> approval by the holders of a majority of the issued and
outstanding shares of Broad National Common Stock voting in
person or by proxy at a duly constituted meeting of the
stockholders of the Company, (i) increase the maximum number of
shares of Broad National Common Stock as to which options may be
granted pursuant to this Plan, (ii) change the class of employees
eligible to be granted options pursuant to the Plan, (iii) extend
the period under this Plan during which options may be granted or
exercised, or (iv) change the provisions of Section 7 hereof with
respect to the determination of the option price, other than to
change the manner of determining the fair market value of shares
of Broad National Common Stock. No amendment, modification or
termination of this Plan may adversely affect the rights of any
optionee under any then outstanding option granted hereunder
without the consent of such optionee.
14. Governing Law. This Plan and the rights of all persons
claiming hereunder shall be construed and determined in
accordance with the laws of the State of New Jersey.
EXHIBIT 5
May 8, 1997
Broad National Bancorporation
905 Broad Street
Newark, New Jersey 07102
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the
"Registration Statement") of Broad National Bancorporation, a New
Jersey corporation (the "Company"), to be filed with the
Securities and Exchange Commission on or about May 8, 1997, for
the purpose of registering under the Securities Act of 1933, as
amended, 317,625 shares of Common Stock, par value $1.00 per
share ("Common Stock"), of the Company. Of these 317,625 shares
of Common Stock, 231,000 shares are proposed to be issued upon
the exercise of stock options granted or to be granted pursuant
to the 1993 Broad National Incentive Stock Option Plan, and
86,625 shares are proposed to be issued upon the exercise of
stock options granted or to be granted pursuant to the 1993 Broad
National Directors Non-Statutory Stock Option Plan.
We have examined the Company's Restated Certificate of
Incorporation, as amended, the Bylaws of the Company, as
presently in effect, minutes of the applicable meetings of the
Board of Directors, compensation and other committees of the
Board of Directors and stockholders of the Company, together with
such other corporate records, certificates of public officials
and other documents as we have deemed relevant to this opinion.
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation duly
incorporated, validly existing and in good standing
under the laws of the State of New Jersey.
2. All necessary corporate action has been taken
to authorize the issuance of the aforesaid 317,625
shares of Common Stock and all such shares as shall be
issued and paid for as described in the Registration
Statement shall be, when so issued, legally issued,
fully paid and nonassessable.
<PAGE>
We hereby consent to the reference to our firm under
the heading "Legal Matters" in the Prospectus which constitutes a
part of the Registration Statement. We also consent to the
inclusion of this opinion in the Registration Statement as an
exhibit thereto.
Very truly yours,
/s/ Stinson, Mag & Fizzell, P.C.
Stinson, Mag & Fizzell, P.C.
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Broad National Bancorporation
We consent to incorporation by reference in the Registration
Statement on Form S-8 of Broad National Bancorporation of our
report dated January 15, 1997, relating to the consolidated
statements of condition of Broad National Bancorporation and
subsidiaries as of December 31, 1996 and 1995, and the related
consolidated statements of income, changes in shareholders'
equity, and cash flows for each of the years in the three-year
period ended December 31, 1996, which report is included in the
Annual Report on Form 10-K of Broad National Bancorporation for
the year ended December 31, 1996.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Short Hills, New Jersey
May 7, 1997
