UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
BROAD NATIONAL BANCORPORATION
(Exact name of Registrant as specified in its charter)
NEW JERSEY 22-2395057
(State of Incorporation (I.R.S. Employer
or organization) Identification No.)
905 BROAD STREET, NEWARK, NEW JERSEY 07102
(Address of principal executive offices) (Zip Code)
__________________________
Securities to be registered pursuant to Section 12(b) of the Act:
None
If this Form relates to the registration of a class of debt
securities and is effective upon filing pursuant to General
Instruction A.(c)(1), please check the following box. [ ]
If this Form relates to the registration of a class of debt
securities and is to become effective simultaneously with the
effectiveness of a concurrent registration statement under the
Securities Act of 1933 pursuant to General Instruction A.(c)(2),
please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock,
par value $1.00 per share
(Title of class)
<PAGE>
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
GENERAL
The authorized capital stock of the Registrant consists of
10,000,000 shares of Common Stock, par value $1.00 per share,
20,000 shares of Preferred Stock 1985 Class, par value $10.00 per
share, and 1,500,000 shares of Preferred Stock, par value $1.00 per
share, of which 690,000 shares were designated as 8 1/2% Cumulative
Convertible Preferred Stock 1992 Class. As of September 17, 1997,
the Registrant's only issued and outstanding class of capital stock
was the Common Stock. The following description summarizes the
material terms of the Registrant's Common Stock and is qualified in
its entirety by reference to the Certificate of Incorporation of
the Registrant.
The Registrant is subject to the New Jersey Shareholders
Protection Act (the "Protection Act"), which restricts certain
business combinations with certain shareholders. Generally, the
Protection Act prohibits a publicly held New Jersey corporation
from engaging in business combinations with beneficial owners of
10% or more of the voting power of the outstanding stock for a
period of five years from the date that such shareholder became a
10% shareholder, unless such transaction is approved by the
Registrant's Board of Directors prior to the date that the
shareholder became a 10% shareholder. The Protection Act contains
additional restrictions which remain in effect after such five-year
period.
COMMON STOCK
As of September 17, 1997, there were 4,437,288 shares of
Common Stock issued and outstanding and held of record by
approximately 1,300 shareholders. In addition, as of such date
36,041 shares were reserved for issuance upon exercise of options
granted under the Registrant's Incentive Stock Option Plan, 228,900
shares were reserved for issuance upon exercise of options granted
under the Registrant's 1993 Broad National Incentive Stock Option
Plan, 86,625 shares were reserved for issuance upon exercise of
options granted under the Registrant's 1993 Broad National
Directors Non-Statutory Stock Option Plan, 200,000 shares were
reserved for issuance upon exercise of options granted under the
Registrant's 1996 Broad National Bancorporation Incentive Stock
Option Plan, 75,000 shares were reserved for issuance upon exercise
of options granted under the Registrant's 1996 Broad National
Bancorporation Directors Non-Statutory Stock Option Plan, and
225,000 shares were reserved for issuance under the Long-Term
Capital Accumulation Plan of Broad National Bank, the Registrant's
banking subsidiary. The issued and outstanding shares of the
Registrant's Common Stock are fully paid and nonassessable.
Voting. The holders of Common Stock are entitled to one vote
per share and to cumulative voting in the election of directors.
The affirmative vote of the holders of two-thirds of the
outstanding shares of Common Stock will be required to approve (a)
any amendment to the Registrant's Certificate of Incorporation
which would be required under New Jersey law to be submitted to a
vote of shareholders, (b) any merger or consolidation to which the
Registrant is a party, (c) the dissolution or liquidation of the
Registrant, and (d) the sale, lease, exchange or other disposition
of all, or substantially all, the assets of the Registrant.
<PAGE>
Dividends. Subject to the prior rights, if any, of any
outstanding class of the Registrant's preferred stock, the holders
of Common Stock are entitled to receive such dividends as may be
declared by the Board of Directors of the Registrant with respect
to the Common Stock out of funds legally available therefor.
Liquidation. In the event of a liquidation, dissolution or
winding up of the affairs of the Registrant, the holders of Common
Stock will be entitled to share pro rata according to their
respective interest in the Registrant's assets and funds remaining
after payment or provision for payment of all debts and other
liabilities of the Registrant and after payment of the full amounts
of any liquidation preferences of any outstanding class of the
Registrant's preferred stock.
Conversion. The Common Stock is not convertible into any
other class of security of the Registrant.
Preemptive Rights. In the event that the Registrant issues
additional shares of Common Stock or securities convertible into
Common Stock, holders of the Registrant's capital stock have the
preemptive right to purchase that number of shares of Common Stock
or securities convertible into Common Stock which bears the same
proportion to the total number of shares proposed to be issued as
the number of shares of Common Stock or securities convertible into
Common Stock held by such person bears to the total number of
shares of Common Stock that would be outstanding if all outstanding
securities convertible into Common Stock were converted. The
foregoing preemptive right to purchase shares of Common Stock or
securities convertible into Common Stock does not apply, however,
to additional shares of Common Stock issued (a) as dividends, (b)
upon conversion of securities convertible into Common Stock, (c)
for the purpose of raising funds to be invested in any banking
subsidiary of the Registrant to provide it with capital, (d) for
the purpose of increasing the Registrant's equity capital or
retiring the Registrant's indebtedness, or (e) (i) under any
benefit plan of any banking subsidiary of the Registrant which has
been or hereafter is approved by the Board of Directors of such
banking subsidiary, or (ii) under any benefit plan of the
Registrant which has been or hereafter is approved by the
Registrant's shareholders, including shares of Common Stock issued
upon exercise of options granted under any stock option or other
benefit plan of the Registrant which has been or hereafter is
approved by the Registrant's shareholders. With respect to any
issuance of Common Stock or securities convertible into Common
Stock for the purposes of (c) or (d) above, in order for there to
be no preemptive rights, at least three-fourths of the directors of
the Registrant then in office must conclude that the issuance is
necessary or appropriate to satisfy any regulatory requirements
then applicable to the Registrant or any banking subsidiary of the
Registrant, or otherwise is, in the judgment of the Board of
Directors, desirable to permit the Registrant or any banking
subsidiary of the Registrant to favorably respond to concerns
expressed by any regulatory authority with regard to any regulatory
requirement. A "regulatory requirement" is defined for this
purpose as any current or proposed requirement of law, regulation,
order, consent order, supervisory agreement, written directive or
written request issued by any governmental authority.
<PAGE>
ITEM 2. EXHIBITS
EXHIBIT NUMBER DESCRIPTION
I.
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 (SEC File 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.
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.
4.2.2. Certificate of Amendment of Certificate
of Incorporation of the Registrant,
respecting the amendment of ARTICLE THIRD
to establish certain limitations with
respect to preemptive rights of
shareholders.
II.
1. Not Applicable
2. Not Applicable.
3. Not Applicable.
4. Not Applicable.
5. Not Applicable.
6. Not Applicable.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
BROAD NATIONAL BANCORPORATION
By /s/ Donald M. Karp
Donald M. Karp
Chairman and Chief Executive Officer
Date: September 17, 1997
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION 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 (SEC File 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.
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.
4.2.2. Certificate of Amendment of Certificate __
of Incorporation of the Registrant, respecting
the amendment of ARTICLE THIRD to establish
certain limitations with respect to preemptive
rights of shareholders.
_____________________
* Incorporated by reference from previous filings
Exhibit 4.2.
RESTATED CERTIFICATE OF INCORPORATION
OF
BROAD NATIONAL BANCORPORATION
The undersigned, Broad National Bancorporation, a New
Jersey corporation, for the purpose of restating the Certificate
of Incorporation of the corporation, in accordance with the New
Jersey Business Corporation Act, does hereby make and execute
this Restated Certificate of Incorporation and does hereby
certify that:
I. The name of the corporation is Broad National
Bancorporation.
II. Resolutions setting forth the Restated
Certificate of Incorporation of the corporation were duly adopted
at a meeting of the board of directors of the corporation duly
called and held on June 15, 1995, at which a quorum of the
directors was at all times present.
III. The Restated Certificate of Incorporation of the
corporation approved by a resolution of the board of directors
read as follows:
FIRST. The name of the corporation is:
Broad National Bancorporation
SECOND. The address of its current registered office
in the state of New Jersey is 905 Broad Street, Newark, Essex
County, New Jersey 07102, and the name of its current registered
agent at such address is Donald M. Karp.
THIRD. The total number of shares of all classes of
stock which the corporation shall have authority to issue is
7,020,000 shares, divided into:
5,500,000 shares of Common Stock, par value
$1.00 per share;
20,000 shares of Preferred Stock 1985 Class,
par value $10.00 per share; and
1,500,000 shares of Preferred Stock, par value
$1.00 per share, to be divided into one or more
series or classes of series as the corporation's
board of directors may from time to time approve,
as hereinafter set forth.
Unless approved by at least two-thirds of the whole
board of directors of the corporation then in office, no shares
of the corporation's authorized but unissued Common Stock shall <PAGE>
be issued by the corporation except (i) for the purposes of
effecting the conversion of shares of Preferred Stock 1985 Class
pursuant to subsection A.6 of this ARTICLE THIRD, (ii) for the
purpose of paying dividends on the corporation's Common Stock, or
(iii) for options granted and exercised under the corporation's
Incentive Stock Option Plan and the corporation's Non-Statutory
Stock Option Plan.
Prior to the effectiveness of the amendment to this
Certificate of Incorporation filed and recorded with the
Secretary of State of New Jersey on December 2, 1992, the
corporation was authorized to issue two classes of stock in the
following amounts: (1) 3,128,148 shares of $5.00 par value
Common Stock, of which 2,678,585 authorized shares were issued
and outstanding, and (2) 20,000 shares of $10.00 par value
Preferred Stock 1985 Class, of which 17,182 authorized shares
were issued and outstanding.
From and after the effectiveness of the amendment to
this Certificate of Incorporation filed and recorded with the
Secretary of State of New Jersey on December 2, 1992, each stock
certificate formerly representing shares of the corporation's
$5.00 par value Common Stock issued and outstanding shall,
without further action by the corporation, represent the same
number of shares of the corporation's $1.00 par value Common
Stock.
The board of directors of the corporation is authorized
to divide the shares of Preferred Stock, par value $1.00 per
share, into classes and into series of any class or classes, to
determine the designation and the number of shares of any such
class or series and to determine the relative rights, preferences
and limitations of the shares of any such class or series,
subject to complying with any requirements of the New Jersey
Business Corporation Act with respect to making such divisions
and determinations; provided, however, shares of Preferred Stock,
par value $1.00 per share, shall possess no voting rights, and
shall have no right to vote at any shareholders' meeting, except
as required by law and except for such limited voting rights as
are provided herein. The board of directors of the corporation
is authorized to provide that, with respect to the shares of any
class or series of Preferred Stock, par value $1.00 per share,
whenever dividends payable on shares of any such class or series
of Preferred Stock entitled thereto shall not have been paid in
full, in an aggregate amount equal to six full quarterly
dividends on the shares of such class or series of Preferred
Stock then outstanding, the number of directors then constituting
the board of directors of the corporation shall ipso facto be
increased by two, and the holders of such class or series of
Preferred Stock shall have the exclusive and special right,
voting separately as a class, to elect two directors of the
corporation to fill such newly created directorships. Whenever
<PAGE> such right of the holders of any such class or series of
Preferred Stock, par value $1.00 per share, shall have vested,
such right may be exercised initially either at a special meeting
of such shareholders, which special meeting shall be called by
the board of directors of the corporation, or at any annual
meeting of shareholders, and thereafter at annual meetings of
shareholders. The right of the holders of any such class or
series of Preferred Stock, par value $1.00 per share, voting
separately as a class to elect members of the board of directors
of the corporation as aforesaid shall continue until such time as
all dividends accumulated on such class or series of Preferred
Stock to the dividend payment date next preceding the date of any
such determination have been paid in full, or declared and set
apart in trust for payment, at which time the special rights of
the holders of such class or series of Preferred Stock to vote
separately as a class for the election of two directors shall
terminate, subject to revesting in the event of each and every
subsequent failure to make dividend payments in an aggregate
amount equal to six full quarterly dividends as above provided,
and the number of directors constituting the Board of Directors
shall be reduced as provided accordingly.
A. THE PREFERRED STOCK 1985 CLASS
1. VOTING RIGHTS. The holders of shares of
the Preferred Stock 1985 Class shall possess no voting rights,
and shall have no right to vote at any shareholders' meeting,
except as otherwise required by law; provided, however, that in
the event that the laws of the State of New Jersey expressly
require a separate vote by class of the holders of Preferred
Stock 1985 Class and of the holders of Common Stock in order to
take the following actions, then the affirmative vote of the
holders of two-thirds of the outstanding shares of Preferred
Stock 1985 Class and of the holders of two-thirds of the
outstanding shares of Common Stock shall be necessary to take
such actions:
(i) amend the Certificate of Incorporation in any
respect which would be required under the laws of the
State of New Jersey to be submitted to a vote at a
meeting of the holders of shares of stock of the
corporation;
(ii) merge or consolidate the corporation with or
into any other corporation or corporations;
(iii) dissolve or liquidate the corporation; or
(iv) sell, lease, exchange or otherwise dispose
of all, or substantially all, the assets of the
corporation.
<PAGE>
2. LIQUIDATION. In the event of a voluntary
or involuntary liquidation, dissolution or winding up of the
corporation, the holders of shares of the Preferred Stock 1985
Class shall be paid, out of the net assets of the corporation,
the liquidation value of the Preferred Stock 1985 Class before
any distribution or payment is made to the holders of shares of
the Common Stock.
In case the net assets of the corporation
remaining available for distribution to the holders of Preferred
Stock 1985 Class are insufficient to pay the holders of all
outstanding shares of Preferred Stock 1985 Class the full amounts
to which they are entitled, the entire amount of such remaining
net assets of the corporation shall be distributed to the holders
of the Preferred Stock 1985 Class in proportion to the full
amounts to which they are entitled.
The liquidation value of each share of Preferred
Stock 1985 Class shall be established by the corporation's board
of directors in accordance with the laws of the State of New
Jersey; provided, however, that in no event shall such
liquidation value be established at an amount greater than the
price per share at which such stock is issued.
3. REDEMPTION. The corporation, at its
option, by resolution of the board of directors, may from time to
time redeem, as hereinafter provided, all or any part of the
shares of Preferred Stock 1985 Class, at any time after December
31, 1992, at a per share redemption price in cash equal to the
liquidation value per share as of the date of redemption;
provided, however, that no shares of Preferred Stock 1985 Class
as to which a notice of conversion shall have been received by
the corporation prior to the redemption date specified in the
notice of redemption may be redeemed.
Written notice of such redemption shall be
mailed by registered or certified mail at least 20 days before
the date of redemption to each holder of record of shares of
Preferred Stock 1985 Class to be redeemed at his last known post
office address as shown by the stock record books of the
corporation on a date not more than 30 days in advance of the
date of redemption (which place shall be a bank in Newark, New
Jersey).
If such notice of redemption shall have been
duly mailed as aforesaid and if the funds necessary for payment
for the shares being redeemed shall have been deposited in trust
with the bank which was named as the place of redemption to be
applied to the redemption of Preferred Stock 1985 Class called
for redemption, then from and after the later of (a) the date
fixed for redemption, or (b) the date of such deposit, the
redemption of the shares of the Preferred Stock 1985 Class so <PAGE>
called shall be deemed to have been fully effected and all rights
of the holders of such shares as shareholders of the corporation
owning such shares of Preferred Stock 1985 Class shall cease and
terminate, except only the right to receive the redemption price
so deposited upon surrender of the certificate or certificates
evidencing the shares of Preferred Stock 1985 Class so redeemed.
All money so deposited shall, immediately following the date of
such redemption and to the extent permitted by law, be deposited
in a time deposit or savings account at the bank where such funds
were deposited as aforesaid and any of such monies which are
unclaimed at the end of five years from the date of such
redemption shall be repaid to the corporation. Such holders of
such shares of Preferred Stock 1985 Class so redeemed as shall
not have received the price therefor prior to such repayment to
the corporation shall thereafter look only to the corporation for
payment thereof, without interest.
4. DIVIDENDS. The holders of shares of
Preferred Stock 1985 Class shall be entitled to receive, as and
when declared by the board of directors, out of funds legally
available therefor, dividends accrued from the date of issuance,
at such rate and payable on such dates as shall be established by
the board of directors in accordance with the laws of the State
of New Jersey; provided, however, that the per annum dividend
rate shall not exceed 12% of the liquidation value.
5. RESTRICTIONS ON DIVIDENDS AND ON SALE OF
PREFERRED STOCK 1985 CLASS. So long as any shares of the
Preferred Stock 1985 Class are outstanding, the corporation shall
not, without the consent given in person or by proxy, either in
writing or at a meeting called for that purpose, of the holders
of a majority of the outstanding shares of Preferred Stock 1985
Class, declare or pay any dividends on the Common Stock, or
redeem, purchase or otherwise acquire any shares of the Common
Stock unless there shall be no accumulated dividends in arrears
as of the date of such payment, redemption, purchase or other
acquisition.
No shares of Preferred Stock 1985 Class shall be
issued by the corporation after February 28, 1986.
6. CONVERSION. Any holder of shares of
Preferred Stock 1985 Class may at any time and from time to time
at his option convert any or all of such shares into fully paid
and nonassessable shares of Common Stock at such conversion rate
as shall be established by the board of directors in accordance
with the laws of the State of New Jersey; provided, however, that
such conversion rate shall not be greater than one share of
Common Stock received for each share of Preferred Stock 1985
Class surrendered for conversion. Such conversion rate
established by the board of directors shall be subject to
adjustment as hereinafter provided.
<PAGE>
Any such conversion of shares of Preferred Stock
1985 Class shall be effected by mailing, by registered or
certified mail to the corporation at its principal executive
office, written notice of election to convert shares of such
stock at least 180 days in advance of the date on which the
shares of such stock are to be converted, which notice of
conversion shall specify the number of shares of stock to be
converted and the number(s) of the certificate(s) representing
such shares, and by surrendering the certificate(s) representing
the shares to be converted on or before the date on which the
shares are to be converted. In the event that any shares of
Preferred Stock 1985 Class shall be called for redemption,
pursuant to subsection A.3 of this ARTICLE THIRD, the right of
conversion shall expire at the close of business on the
redemption date specified in the notice of redemption unless a
notice of conversion shall have been received prior to the
redemption date.
The shares of Preferred Stock 1985 Class which
have been converted under this subsection A.6 of this ARTICLE
THIRD shall be retired and shall not be held as an asset of the
corporation.
The conversion rate for shares of Preferred
Stock 1985 Class established by the board of directors shall be
subject to appropriate adjustments from time to time as may be
necessary to prevent dilution or enlargement of the conversion
right in the event of a stock dividend, stock split, reverse
stock split, a merger or consolidation of the corporation with or
into any other corporation or corporations, a reorganization or
recapitalization of the corporation, or any event similar to any
of the foregoing.
The corporation shall at all times reserve and
keep available, out of its authorized and unissued Common Stock,
solely for the purpose of effecting the conversion of shares of
Preferred Stock 1985 Class, such number of shares of Common Stock
as shall from time to time be sufficient to effect the conversion
of all shares of Preferred Stock 1985 Class then outstanding.
The corporation shall from time to time, in accordance with the
laws of the State of New Jersey, increase the authorized amount
of its shares of Common Stock if at any time the number of shares
of Common Stock remaining unissued shall not be sufficient to
permit the conversion of all of the then outstanding shares of
Preferred Stock 1985 Class.
7. PREEMPTIVE RIGHTS. Except as specifically
provided by subsection C.8 of this ARTICLE THIRD, no holder of
any shares of Preferred Stock 1985 Class shall be entitled as
such, as a matter of right, to subscribe for or purchase any
shares of stock of the corporation of any class, whether now or
hereafter authorized or whether issued for cash, property or <PAGE>
services or as a dividend or otherwise, or to subscribe for or
purchase any obligations, bonds, notes, debentures, other
securities or stock convertible into shares of stock of the
corporation of any class or carrying or evidencing any right to
purchase shares of stock of any class.
B. COMMON STOCK
1. VOTING RIGHTS. Except as may be otherwise
specifically provided by law, holders of shares of Common Stock
shall possess full voting rights and shall be entitled to one
vote per share in all matters voted upon by the shareholders of
the corporation, other than the election of directors, as to
which cumulative voting shall prevail. At such election of
directors, each holder of shares of Common Stock shall have the
right to cast as many votes in the aggregate as shall equal the
number of his shares of such stock multiplied by the number of
directors to be elected at such election, and he may cast the
whole number of such votes for one candidate or distribute them
among two or more candidates.
The affirmative vote of the holders of
two-thirds of the outstanding shares of Common Stock shall be
necessary to take the following actions, or, in the event that
the laws of the State of New Jersey expressly require a separate
vote by class of the holders of Common Stock and the holders of
Preferred Stock 1985 Class in order to take such actions, then
the affirmative vote of the holders of two-thirds of the
outstanding shares of Common Stock and of the holders of
two-thirds of the outstanding shares of Preferred Stock 1985
Class shall be necessary to take the following actions:
(i) amend the Certificate of Incorporation in any
respect which would be required under the laws of the
State of New Jersey to be submitted to a vote at a
meeting of the holders of shares of stock of the
corporation;
(ii) merge or consolidate the corporation with or
into any other corporation or corporations;
(iii) dissolve or liquidate the corporation; or
(iv) sell, lease, exchange or otherwise dispose
of all, or substantially all, the assets of the
corporation.
2. LIQUIDATION. In the event of a voluntary
or involuntary liquidation, dissolution or winding up of the
corporation, the holders of shares of the Common Stock shall be
entitled to receive, after the prior rights of the shares of the
Preferred Stock 1985 Class have been satisfied, all of the <PAGE>
remaining assets of the corporation available for distribution,
if any.
3. DIVIDENDS. Subject only to the prior
rights of the Preferred Stock 1985 Class, holders of shares of
the Common Stock shall be entitled to dividends thereon, when, as
and if declared by the board of directors, out of funds legally
available therefor.
The corporation shall at all times reserve and
keep available, out of its authorized and unissued Common Stock,
solely for the purpose of paying dividends on its Common Stock,
all of the corporation's authorized and unissued Common Stock
which is not reserved solely for the purpose of effecting the
conversion of shares of Preferred Stock 1985 Class pursuant to
the last paragraph of subsection A.6 of this ARTICLE THIRD.
4. PREEMPTIVE RIGHTS. Except as specifically
provided by subsection C.8 of this ARTICLE THIRD, no holder of
any shares of Common Stock shall be entitled as such, as a matter
of right, to subscribe for or purchase any shares of stock of the
corporation of any class, whether now or hereafter authorized or
whether issued for cash, property or services or as a dividend or
otherwise, or to subscribe for or purchase any obligations,
bonds, notes, debentures, other securities or stock convertible
into shares of stock of the corporation of any class or carrying
or evidencing any right to purchase shares of stock of any class.
C. THE PREFERRED STOCK 1992 CLASS.
1. DESIGNATION. The preferred stock created
and authorized hereby shall be designated as the "8-1/2%
Cumulative Convertible Preferred Stock 1992 Class." The number
of shares constituting the Preferred Stock 1992 Class shall be
690,000 and no more.
2. VOTING RIGHTS. The holders of shares of
the Preferred Stock 1992 Class shall possess no voting rights,
and shall have no right to vote at any shareholders' meeting,
except as otherwise required by law; provided, however, that:
(a) whenever dividends payable on shares
of Preferred Stock 1992 Class shall not have been
paid in full, in an aggregate amount equal to six
full quarterly dividends on such shares of
Preferred Stock 1992 Class then outstanding, the
number of directors then constituting the board of
directors of the corporation shall ipso facto be
increased by two, and the holders of such shares
of Preferred Stock 1992 Class shall have the
exclusive and special right, voting separately as
a class with the holders of shares of any one or
<PAGE> more class or series of Preferred Stock ranking on
a parity with the Preferred Stock 1992 Class
either as to payment of dividends or upon
liquidation, dissolution or winding up and upon
which like voting rights have been conferred and
are exercisable, to elect two directors of the
corporation to fill such newly created
directorships; provided, however, that in no event
shall the holders of such shares of Preferred
Stock 1992 Class voting separately as a class as
aforesaid have the right to elect more than two
directors. Whenever such right of the holders of
such shares of Preferred Stock 1992 Class shall
have vested, such right may be exercised initially
either at a special meeting of such shareholders,
which special meeting shall be called by the board
of directors of the corporation, or at any annual
meeting of shareholders, and thereafter at annual
meetings of shareholders. The right of the
holders of such shares of Preferred Stock 1992
Class, voting separately as a class to elect
members of the board of directors of the
corporation as aforesaid shall continue until such
time as all dividends accumulated on such shares
of Preferred Stock 1992 Class to the dividend
payment date next preceding the date of any such
determination have been paid in full, or declared
and set apart in trust for payment, at which time
the special rights of the holders of such shares
of Preferred Stock 1992 Class to vote separately
as a class for the election of two directors shall
terminate, subject to revesting in the event of
each and every subsequent failure to make dividend
payments in an aggregate amount equal to six full
quarterly dividends as above provided, and the
number of directors constituting the board of
directors shall be reduced as provided
accordingly; and
(b) in the event that the laws of the
State of New Jersey expressly require a separate
vote by class of the holders of Preferred Stock
1992 Class, of the holders of Preferred Stock 1985
Class and of the holders of Common Stock in order
to take the following actions, then the
affirmative vote of the holders of a majority of
the outstanding shares of Preferred Stock 1992
Class, of the holders of two-thirds of the
outstanding shares of Preferred Stock 1985 Class,
and of the holders of two-thirds of the
outstanding shares of Common Stock shall be
necessary to take such actions:
<PAGE>
(i) amend the Certificate of
Incorporation in any respect which
would be required under the laws of
the State of New Jersey to be
submitted to a vote at a meeting of
the holders of shares of stock of the
corporation;
(ii) merge or consolidate the
corporation with or into any other
corporation or corporations;
(iii) dissolve or liquidate the
corporation; or
(iv) sell, lease, exchange or
otherwise dispose of all, or
substantially all, the assets of the
corporation.
3. LIQUIDATION. In the event of a voluntary
or involuntary liquidation, dissolution or winding up of the
corporation, the holders of shares of the Preferred Stock 1992
Class shall be paid, out of the net assets of the corporation,
the liquidation value of the Preferred Stock 1992 Class before
any distribution or payment is made to the holders of shares of
the Common Stock or any other shares of stock of the corporation
ranking as to such distribution or payment junior to the
Preferred Stock 1992 Class. No class or series of stock shall be
issued which ranks senior to the Preferred Stock 1992 Class as to
the distribution or payment of the liquidation value thereof
without the affirmative vote of the holders of a majority of the
outstanding shares of Preferred Stock 1992 Class.
In the event the net assets of the corporation
remaining available for distribution to the holders of shares of
the Preferred Stock 1992 Class and any other shares of stock of
the corporation ranking as to any such distribution on a parity
with the Preferred Stock 1992 Class (including the Preferred
Stock 1985 Class) are insufficient to pay the holders of all
outstanding shares of Preferred Stock 1992 Class and of such
other shares the full amounts to which they are entitled, the
entire amount of such remaining net assets of the corporation
shall be distributed to the holders of shares of the Preferred
Stock 1992 Class and of such other shares in proportion to the
full respective distributable amounts to which they are entitled.
The liquidation value of each share of Preferred
Stock 1992 Class shall be $10.00, plus any accumulated unpaid
dividends thereon which are due as of the date of liquidation.
<PAGE>
4. REDEMPTION. The corporation, at its
option, by resolution of the board of directors, may from time to
time redeem, as hereinafter provided, all or any part of the
shares of Preferred Stock 1992 Class, at any time after February
1, 1996, at a per share redemption price as set forth in the
table below; provided, however, that no shares of Preferred Stock
1992 Class as to which a notice of conversion shall have been
received by the corporation, and the certificate(s) representing
such shares shall have been surrendered, prior to the redemption
date specified in the notice of redemption may be redeemed. The
redemption price of each share of Preferred Stock 1992 Class
shall be as set forth in the following table, together in each
case with accrued and unpaid dividends to the date fixed for
redemption, if redeemed during the 12-month period beginning
February 1 of the year indicated:
YEAR REDEMPTION PRICE
1996 $ 10.60
1997 10.50
1998 10.40
1999 10.30
2000 10.20
2001 10.10
2002 and thereafter 10.00
Written notice of such redemption shall be mailed
by registered or certified mail at least 60 days before the date
of redemption to each holder of record of shares of Preferred
Stock 1992 Class to be redeemed at his last known post office
address as shown by the stock record books of the corporation.
The notice of redemption shall state the redemption price and the
date and place of redemption (which place of redemption shall be
a bank in Newark, New Jersey).
If such notice of redemption shall have been duly
mailed as aforesaid and if the funds necessary for payment for
the shares being redeemed shall have been deposited in trust with
the bank which was named as the place of redemption to be applied
to the redemption of Preferred Stock 1992 Class called for
redemption, then from and after the later of (a) the date fixed
for redemption, or (b) the date of such deposit, the redemption
of the shares of the Preferred Stock 1992 Class so called shall
be deemed to have been fully effected and all rights of the
holders of such shares as shareholders of the corporation owning
such shares of Preferred Stock 1992 Class shall cease and
terminate, except only for the right to receive the redemption
price so deposited upon surrender of the certificate or
certificates evidencing the shares of Preferred Stock 1992 Class
so redeemed. All money so deposited shall, immediately following
the date of such redemption and to the extent permitted by law,
be deposited in a time deposit or savings account at the bank
<PAGE> where such funds were deposited as aforesaid and any of such
monies which are unclaimed at the end of five years from the date
of such redemption shall be repaid to the corporation. Such
holders of such shares of Preferred Stock 1992 Class so redeemed
as shall not have received the price therefor prior to such
repayment to the corporation shall thereafter look only to the
corporation for payment thereof, without interest. If less than
all the outstanding shares of Preferred Stock 1992 Class are to
be redeemed, the board of directors of the corporation shall
select those to be redeemed pro rata, by lot or by a
substantially equivalent method.
If a dividend upon any share of Preferred Stock
1992 Class is past due, no shares of Preferred Stock 1992 Class
shall be redeemed, except by means of a redemption pursuant to
which all the outstanding shares of Preferred Stock 1992 Class
are simultaneously redeemed, and the corporation shall not
purchase or otherwise acquire any shares of the Preferred Stock
1992 Class, except pursuant to a purchase or exchange offer made
on the same terms to all holders of the Preferred Stock 1992
Class.
5. DIVIDENDS. The holders of shares of
Preferred Stock 1992 Class shall be entitled to receive, as and
when declared by the board of directors, out of funds legally
available therefor, dividends accrued from the date of issuance,
at the rate of $0.85 per share per annum (8-1/2%), and payable
quarterly in arrears on January 15, April 15, July 15 and October
15 of each year, commencing April 15, 1993, at such annual rate.
Each such dividend shall be payable to holders of record as they
appear on the stock record books of the corporation on such
record date, not exceeding 60 days preceding the payment date
thereof, as shall be fixed by the board of directors of the
corporation. Dividends shall be cumulative from the date of
original issue. Dividends payable on the Preferred Stock 1992
Class for any period greater or less than a full dividend period
shall be computed on the basis of a 360-day year consisting of
twelve 30-day months. Dividends payable on the Preferred Stock
1992 Class for each full dividend period shall be computed by
dividing the annual dividend rate by four. Holders of shares of
the Preferred Stock 1992 Class shall not be entitled to any
dividend, whether payable in cash, property or securities, in
excess of full cumulative dividends on the Preferred Stock 1992
Class. No interest, or sum of money in lieu of interest, shall
be payable in respect of any dividend payment or payments which
may be in arrears. Dividends paid on shares of Preferred Stock
1992 Class in an amount less than the total amount of such
dividends at the time accumulated and payable on such shares
shall be allocated pro rata among all such shares at the time
outstanding. No class or series of stock shall be issued which
ranks senior to the Preferred Stock 1992 Class as to dividends
<PAGE> without the affirmative vote of the holders of a majority of the
outstanding shares of Preferred Stock 1992 Class.
If there shall be outstanding shares of any other
class or series of preferred stock of the corporation ranking
junior to or on a parity with the Preferred Stock 1992 Class as
to dividends (including the Preferred Stock 1985 Class), no full
dividends shall be declared or paid or set apart for payment on
any such other class or series for any period unless full
cumulative dividends have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof
set apart for such payment on the Preferred Stock 1992 Class for
all dividend payment periods terminating on or prior to the date
of the payment of such full cumulative dividends. If dividends
are not paid in full or are in arrears on the Preferred Stock
1992 Class and on any other class or series of preferred stock of
the corporation ranking on a parity as to dividends with the
Preferred Stock 1992 Class, all dividends declared upon all
outstanding shares of the Preferred Stock 1992 Class and shares
of such other class or series of preferred stock shall be
declared pro rata so that the amount of dividends declared per
share on the Preferred Stock 1992 Class and such other class or
series of preferred stock shall in all cases bear to each other
the same ratio that accrued and unpaid dividends per share on the
Preferred Stock 1992 Class and such other class or series of
preferred stock to the date of such dividend payment bear to each
other.
Unless full cumulative dividends on all
outstanding shares of Preferred Stock 1992 Class shall have been
paid or declared and set apart for payment for all past dividend
payment periods, no dividends may be paid or declared and set
apart for payment, or other distribution made (other than
dividends or distributions in Common Stock, Preferred Stock 1985
Class or any other stock ranking junior to the Preferred Stock
1992 Class as to dividends or upon liquidation, dissolution or
winding up) upon the Common Stock, the Preferred Stock 1985 Class
or any other stock of the corporation ranking junior to the
Preferred Stock 1992 Class as to dividends or upon liquidation,
nor may the Common Stock, the Preferred Stock 1985 Class or any
other stock of the corporation ranking junior to, or on a parity
with, the Preferred Stock 1992 Class as to dividends or upon
liquidation, be redeemed, purchased or otherwise acquired for any
consideration (or any payment made to or made available for a
sinking fund for the redemption of any shares of such stock) by
the corporation (except for conversion of such junior or parity
stock into, or exchange of such junior or parity stock for, stock
ranking junior to the Preferred Stock 1992 Class as to dividends
and upon liquidation).
6. RESTRICTIONS ON DIVIDENDS AND ON SALE OF
PREFERRED STOCK 1992 CLASS. So long as any shares of the
<PAGE> Preferred Stock 1985 Class or of the Preferred Stock 1992 Class
are outstanding, the corporation shall not declare or pay any
dividends on the Common Stock, nor redeem, purchase or otherwise
acquire any shares of the Common Stock unless there shall be no
accumulated dividends in arrears on either the Preferred Stock
1985 Class or the Preferred Stock 1992 Class as of the date of
such payment, redemption, purchase or other acquisition, except
that the holders of a majority of the outstanding Preferred Stock
1985 Class and Preferred Stock 1992 Class then in arrears may
consent to such payment, redemption, purchase or other
acquisition, in person or by proxy, either in writing or at a
meeting called for that purpose.
No shares of Preferred Stock 1992 Class shall be
issued by the corporation after March 31, 1993.
7. CONVERSION. Any holder of shares of
Preferred Stock 1992 Class may at any time and from time to time
at his option convert any or all of such shares into fully paid
and nonassessable shares of Common Stock at the conversion rate
of 1.818 shares of Common Stock for each share of Preferred Stock
1992 Class surrendered for conversion, subject to adjustment as
hereinafter provided.
Any such conversion of shares of Preferred Stock
1992 Class shall be effected by mailing by registered or
certified mail to the corporation at its principal executive
office written notice of election to convert shares of such stock
at least 45 days in advance of the date on which the shares of
such stock are to be converted, which notice of conversion shall
specify the number of shares of stock to be converted, the
number(s) of the certificate(s) representing such shares and the
date on which the shares are to be converted, and by surrendering
the certificate(s) representing the shares to be converted on or
before the date on which the shares are to be converted. In the
event that any shares of Preferred Stock 1992 Class shall be
called for redemption, pursuant to subsection C.4 of this ARTICLE
THIRD, the right of conversion with respect to such shares shall
expire at the close of business on the redemption date specified
in the notice of redemption (provided that no default by the
corporation in the payment of the applicable redemption price
(including any accrued and unpaid dividends) shall have occurred
and be continuing on the date fixed for such redemption), unless
a notice of conversion shall have been received, and the
certificate(s) representing the shares to be converted shall have
been surrendered, prior to such time.
The shares of Preferred Stock 1992 Class which
have been converted under this subsection C.7 of this ARTICLE
THIRD shall be retired and shall not be held as an asset of the
corporation.
<PAGE>
The holder of record of a share of Preferred Stock
1992 Class on a record date with respect to the payment of a
dividend on the Preferred Stock 1992 Class shall be entitled to
receive such dividend on such share of Preferred Stock 1992 Class
on the corresponding dividend payment date notwithstanding the
conversion thereof after such record date or default by the
corporation in the payment of the dividend payable on such
dividend payment date. No payment or adjustment is to be made on
conversion for dividends accrued on the shares of Preferred Stock
1992 Class or for dividends on the Common Stock issued on
conversion.
The conversion rate is subject to adjustment in
certain events, including: (i) the issuance of Common Stock as a
dividend or distribution on any class of capital stock of the
corporation; (ii) the combination, subdivision or
reclassification of the Common Stock; (iii) the issuance to all
holders of Common Stock of rights or warrants entitling them to
subscribe for or purchase Common Stock at less than the then
current market price (as defined below) of the Common Stock; or
(iv) the distribution to all holders of Common Stock of (A)
evidences of the corporation's indebtedness and/or (B) cash or
other assets (including securities, but excluding the rights,
warrants, dividends and distributions referred to above and any
regular quarterly dividend payable solely in cash out of the
retained earnings of the corporation that may from time to time
be fixed by the board of directors). No such adjustment of less
than 1% of the conversion price will be required; however, any
such adjustment not made due to this limitation will be carried
forward and taken into account in any subsequent adjustment. For
purposes of this subsection C.7 of this ARTICLE THIRD, the term
"current market price" shall mean (a) the average of the closing
sale price per share of the Common Stock for the five trading
days immediately preceding the date of issuance of such rights or
warrants, if the Common Stock is then listed on the automated
quotation system operated by the National Association of
Securities Dealers, Inc. (NASDAQ), the American Stock Exchange or
the New York Stock Exchange, or (b) the appraised fair market
value of each share of Common Stock as determined by a reputable
investment banking firm selected by the board of directors, if
the Common Stock is not so listed.
Fractional shares of Common Stock will not be
delivered upon conversion of shares of Preferred Stock 1992
Class, but a cash adjustment will be paid in respect of such
fractional interests, based on the then current market price of
the Common Stock.
In case of any consolidation or merger to which
the corporation is a party other than a merger or consolidation
in which the corporation is the continuing corporation, or in
case of any sale or conveyance to another corporation of the
<PAGE> property of the corporation as an entirety or substantially as an
entirety, or in case of any statutory exchange of securities with
another corporation, there shall be no adjustment to the
conversion rate but the holder of each share of Preferred Stock
1992 Class then outstanding shall have the right thereafter to
convert each such share into the kind and amount of securities,
cash and other property which such holder would have owned or
have been entitled to receive immediately after such
consolidation, merger, sale, conveyance or exchange, had such
share been converted immediately prior to the effective date of
such consolidation, merger, sale, conveyance or exchange.
The corporation shall at all times reserve and
keep available, out of its authorized and unissued Common Stock,
solely for the purpose of effecting the conversion of shares of
Preferred Stock 1992 Class, such number of shares of Common Stock
as shall from time to time be sufficient to effect the conversion
of all shares of Preferred Stock 1992 Class then outstanding.
The corporation shall from time to time, in accordance with the
laws of the State of New Jersey, increase the authorized amount
to its shares of Common Stock if at any time the number of shares
of Common Stock remaining unissued shall not be sufficient to
permit the conversion of all of the then outstanding shares of
Preferred Stock 1992 Class.
8. PREEMPTIVE RIGHTS. Except as specifically
provided by this subsection C.8 of this ARTICLE THIRD, no holder
of any shares of Preferred Stock 1992 Class shall be entitled as
such, as a matter of right, to subscribe for or purchase any
shares of stock of the corporation of any class, whether now or
hereafter authorized or whether issued for cash, property or
services or as a dividend or otherwise, or to subscribe for or
purchase any obligations, bonds, notes, debentures, other
securities or stock convertible into shares of stock of the
corporation of any class or carrying or evidencing any right to
purchase shares of stock of any class.
In the event the corporation hereafter issues
additional shares of Common Stock or securities convertible into
Common Stock, then each of the holders of Common Stock, Preferred
Stock 1985 Class or Preferred Stock 1992 Class as of such record
date (not exceeding 50 days preceding the date for the allotment
of rights) as shall be fixed therefor by the board of directors
shall have the preemptive right, without distinction as to class,
to subscribe for and to purchase at the issue price fixed
therefor by the board of directors an amount of such shares of
Common Stock or securities convertible into Common Stock which
bears the same proportion to the total amount then proposed to be
issued as the total combined number of shares of Common Stock
held by him on such record date plus the number of shares of
Common stock into which all shares of Preferred Stock 1985 Class
and of Preferred Stock 1992 Class held by him on such record date
<PAGE> would be convertible, bears to the total number of shares of
Common Stock which would be outstanding on such record date if
all outstanding shares of Preferred Stock 1985 Class and of
Preferred Stock 1992 Class had been converted into Common Stock
as of such record date; provided, however, that neither the
holders of Common Stock, of Preferred Stock 1985 Class or of
Preferred Stock 1992 Class shall have any preemptive right to
subscribe for or to purchase additional (i) shares of Common
Stock issued as dividends on any class of stock, (ii) shares of
Common Stock issued upon conversion of either Preferred Stock
1985 Class or Preferred Stock 1992 Class of the corporation,
(iii) shares of Common Stock issued as authorized by options
granted under any stock option or other benefit plan of the
corporation heretofore or hereafter approved by the corporation's
shareholders, (iv) shares of Common Stock or securities
convertible into Common Stock issued for the primary purpose of
raising funds to be invested in any banking subsidiary of the
corporation to provide such subsidiary with capital, or (v)
shares of Common Stock or securities convertible into Common
Stock issued for the primary purpose of increasing the
corporation's equity capital or to retire indebtedness of the
corporation, when in the case of issuance of shares under clause
(iv) or (v) it is the judgment of at least three-fourths of the
whole board of directors of the corporation then in office that
such issuance is necessary or appropriate to satisfy any
regulatory requirement then applicable to the corporation or such
banking subsidiary or otherwise is, in the judgment of the board,
desirable to permit the corporation or such banking subsidiary to
favorably respond to concerns expressed by any governmental or
regulatory authority with regard to any such regulatory
requirement. A "regulatory requirement" is any current or
proposed requirement of law, regulation, order, consent order,
supervisory agreement, written directive or written request
issued by any governmental authority. The board of directors by
resolution may fix the period within which such right may be
exercised, which period, however, shall extend for not less than
seven days nor more than 31 days after notice of such right is
mailed to the shareholders. Unless such right be exercised
within such period, such right shall, upon the expiration of such
period, be deemed to be terminated for all purposes in respect of
the Common Stock, or securities convertible into Common Stock,
then proposed to be issued.
FOURTH. The corporation shall not issue shares of
stock except for money paid, labor done or property actually
received; provided, however, that shares may be issued in
consideration of valid, bona fide antecedent debts. No note or
obligation given by any shareholder, whether secured by deed of
trust, mortgage or otherwise, shall be considered as payment of
any part of any share or shares, and no loan of money for the
purpose of such payment shall be made by the corporation.
<PAGE>
FIFTH. The number of directors to constitute the
current board of directors of the corporation is 13. Thereafter
the number of directors shall be fixed by, or in the manner
provided in, the bylaws of the corporation. Any change in the
number of directors shall be reported to the Secretary of State
within 30 calendar days of such change, or within such other
period, if any, as may then be required by law. Directors need
not be shareholders unless the bylaws require them to be
shareholders.
The names and addresses of the persons who constitute
the current board of directors, each of whom shall hold office
until his or her successor shall have been elected and qualified,
are as follows:
NAME ADDRESS
Licinio Cruz 905 Broad Street
Newark, New Jersey 07102
John A. Dorman 905 Broad Street
Newark, New Jersey 07102
Arthur Fischman 905 Broad Street
Newark, New Jersey 07102
John J. Iannuzzi 905 Broad Street
Newark, New Jersey 07102
Donald M. Karp 905 Broad Street
Newark, New Jersey 07102
James J. Lazarus 905 Broad Street
Newark, New Jersey 07102
Edward J. Lenihan 905 Broad Street
Newark, New Jersey 07102
Stanley J. Lesnik 905 Broad Street
Newark, New Jersey 07102
Catherine McFarland 905 Broad Street
Newark, New Jersey 07102
Louis J. Owen 905 Broad Street
Newark, New Jersey 07102
A. Harold Schwartz 905 Broad Street
Newark, New Jersey 07102
Peter D. Sudler 905 Broad Street
Newark, New Jersey 07102
<PAGE>
Hubert Williams 905 Broad Street
Newark, New Jersey 07102
SIXTH. The duration of the corporation is perpetual.
SEVENTH. The corporation is formed for the following
purposes and shall have the following powers:
(a) To provide financial and management consultation
to banks and other businesses.
(b) To engage in any activity within the purposes for
which corporations may be organized under the "New Jersey
Business Corporation Act." NJS 14A:1-1 et seq.
In addition to the powers and privileges conferred upon
the corporation by law and those incidental thereto, the
corporation shall possess and may exercise all the powers and
privileges which are necessary or convenient to the conduct,
promotion or attainment of the business or purposes of the
corporation. NJS 14A:1-1 et seq.
EIGHTH.
(a) Except as may be otherwise specifically provided
by statute, or the Certificate of Incorporation or the bylaws of
the corporation, as from time to time amended, all powers of
management, direction and control of the corporation shall be,
and hereby are, vested in the board of directors.
(b) The original bylaws of the corporation shall be
adopted by the board of directors at its organizational meeting.
Thereafter, the bylaws of the corporation may from time to time
be altered, amended or repealed, or new bylaws may be adopted, in
any of the following ways: (i) by the affirmative vote, at any
annual or special meeting of the shareholders, of the holders of
two-thirds of the outstanding shares of stock of the corporation
entitled to vote; or (ii) by resolution adopted by a majority of
the full board of directors at a meeting thereof; or (iii) by
unanimous written consent of all the shareholders or all the
directors in lieu of a meeting; provided, however, that the power
of the directors to alter, amend, suspend or repeal the bylaws or
any portion thereof may be denied as to any bylaws or portion
thereof enacted by the shareholders if at the time of such
enactment the shareholders shall so expressly provide.
(c) The corporation may agree to the terms and
conditions upon which any director, officer, employee or agent
accepts his office or position and in its bylaws or otherwise may
agree to indemnify and protect any director, officer, employee or
agent of the corporation, or any person who serves at the request
of the corporation as a director, officer, employee or agent of
<PAGE> another corporation, partnership, joint venture, trust or other
enterprise, to the extent permitted by the Certificate of
Incorporation and laws of New Jersey.
NINTH.
(a) GENERAL. In addition to and without limiting the
rights to indemnification and advancement of expenses
specifically provided for in the other paragraphs of this ARTICLE
NINTH, the corporation shall indemnify and advance expenses to
each person who is or was a director or officer of the
corporation or who is or was serving at the request of the
corporation as a director, officer, employee or agent of any
Other Enterprise (as hereafter defined) to the full extent
permitted or authorized by the laws of the State of New Jersey as
in effect on the date of the adoption of this ARTICLE NINTH and
as may hereafter be amended.
(b) INDEMNIFICATION IN ACTIONS BY THIRD PARTIES. The
corporation shall indemnify each person who has been or is a
party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative, investigative or appellate (other than
an action by or in the right of the corporation) by reason of the
fact that such person is or was an officer or director of the
corporation or is or was serving at the corporation's request as
a director, officer, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise ("Other Enterprise") against all
liabilities and expenses, including, without limitation,
judgments, amounts paid in settlement, attorneys' fees, ERISA
excise taxes or penalties, fines and other litigation expenses
actually and reasonably incurred by such person in connection
with such action, suit or proceeding if such person 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, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful; provided, however,
that the corporation shall not be required to indemnify or
advance expenses to any such person or persons seeking
indemnification or advancement of expenses in connection with an
action, suit or proceeding initiated by such person unless the
initiation of such action, suit or proceeding was approved in
advance by the board of directors of the corporation. The
termination of any such action, suit or proceeding by judgment,
order, settlement, conviction or under a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal
action or proceeding that he had reasonable cause to believe that
such person's conduct was unlawful.
<PAGE>
(c) INDEMNIFICATION IN DERIVATIVE ACTIONS. The
corporation shall indemnify each person who has been or is a
party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the
fact that such person is or was an officer or director of the
corporation or is or was serving at the corporation's request as
a director, officer, trustee, employee or agent of any Other
Enterprise against amounts paid in settlement of actions or suits
which the board of directors has determined are frivolous or not
in the best interests of the corporation, incurred by such person
in connection with the defense or settlement of such suit or
action and against all expenses (including attorneys' fees)
actually and reasonably incurred by such person if such person
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, except that no indemnification under this paragraph
(c) shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged liable to the
corporation unless and only to the extent that the court in which
the action or suit is brought determines upon application that,
despite the adjudication of liability and in view of all the
circumstances of the case, the person is fairly and reasonably
entitled to such indemnification.
(d) DETERMINATION OF RIGHT TO INDEMNIFICATION. Prior
to indemnifying a person pursuant to the provisions of paragraphs
(b) and (c) of this ARTICLE NINTH, unless ordered by a court, the
corporation shall determine that such person has met the
specified standard of conduct entitling such person to
indemnification as set forth under paragraphs (b) or (c) of this
ARTICLE NINTH. Any determination that a person shall or shall
not be indemnified under the provisions of paragraphs (b) or (c)
of this ARTICLE NINTH shall be made by the board of directors by
a majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding, or if such quorum is
not obtainable, or even if obtainable, if a quorum of
disinterested directors so directs, by independent legal counsel
in a written opinion or by the shareholders, and such
determination shall be final and binding upon the corporation;
provided, however, that notwithstanding any other provision of
this ARTICLE NINTH, to the extent permitted by law, in the event
that such determination is adverse to the person or persons to be
indemnified hereunder, such person or persons shall have the
right to maintain an action in any court of competent
jurisdiction against the corporation to determine whether or not
such person or persons has met the requisite standard of conduct
and is entitled to such indemnification hereunder. If such court
action is successful and the person or persons is determined to
be entitled to such indemnification, such person or persons shall
be reimbursed by the corporation for all fees and expenses
<PAGE> (including attorneys' fees) incurred in connection with any such
action.
(e) ADVANCEMENT OF EXPENSES. To the extent permitted
or authorized by the laws of the State of New Jersey, expenses
(including attorneys' fees) actually and reasonably incurred by a
person who may be entitled to indemnification hereunder in
defending an action, suit or proceeding, whether civil, criminal,
administrative, investigative or appellate, shall be paid by the
corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of such person to repay such amount if it shall ultimately be
determined that he is not entitled to indemnification by the
corporation. In no event shall any advance be made in instances
where the board, stockholders or independent legal counsel
reasonably determine that such person would not be entitled to
indemnification hereunder.
(f) NON-EXCLUSIVITY. The indemnification and
advancement of expenses provided by this ARTICLE NINTH shall not
be exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
any statute, under the Certificate of Incorporation, bylaws,
agreement, vote of shareholders or disinterested directors,
policy of insurance or otherwise, both as to action in their
official capacity and as to action in another capacity while
holding their respective offices, and shall not limit in any way
any right which the corporation may have to make additional
indemnifications with respect to the same or different persons or
classes of persons. The indemnification and advancement of
expenses provided by, or granted pursuant to, this ARTICLE NINTH
shall continue as to a person who has ceased to be a director or
officer of the corporation and as to a person who has ceased
serving at the corporation's request as a director, officer,
employee or agent of any Other Enterprise and shall inure to the
benefit of the heirs, executors, administrators and estate of
such a person.
(g) INSURANCE. The corporation may purchase and
maintain insurance on behalf of any person who is or was a
director or officer of the corporation, or is or was serving at
the request of the corporation as a director, officer, trustee,
employee or agent of any Other Enterprise, against any
liabilities asserted against such person and expenses incurred by
such person in any such capacity, or arising out of such person's
status as such, whether or not the corporation would have the
power to indemnify such person against such expenses and
liabilities under the provisions of this section.
(h) VESTING OF RIGHTS. The rights granted by this
ARTICLE NINTH shall be vested in each person entitled to
indemnification hereunder as a bargained-for, contractual
<PAGE> condition of such person's acceptance of his election or
appointment as a director or officer of the corporation and while
this ARTICLE NINTH may be amended or repealed, no such amendment
or repeal shall release, terminate or adversely affect the rights
of such person under this ARTICLE NINTH with respect to any act
taken or the failure to take any act by such person prior to such
amendment or repeal or with respect to any action, suit or
proceeding with respect to such act or failure to act filed after
such amendment or repeal.
(i) DEFINITIONS. For purposes of this ARTICLE NINTH,
references to:
(1) "the corporation" shall include, if and only
if the board of directors shall determine, in addition to the
resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers,
employees or agents, so that any person who is or was a director
or officer of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director,
officer, trustee, employee or agent of any Other Enterprise,
shall stand in the same position under the provisions of this
ARTICLE NINTH with respect to the resulting or surviving
corporation as such person would have with respect to such
constituent corporation if its separate existence had continued;
(2) "Other Enterprises" or "Other Enterprise"
shall include employee benefit plans;
(3) "fines" shall include any excise taxes
assessed on a person with respect to an employee benefit plan;
(4) "defense" shall include investigations of any
threatened, pending or completed action, suit or proceeding, as
well as appeals thereof, and shall also include any defensive
assertion of a cross-claim or a counterclaim; and
(5) "serving at the request of the corporation"
shall include any service as a director, officer, employee or
agent of the corporation which imposes duties on, or involves
services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants or
beneficiaries.
As referred to in this ARTICLE NINTH, a person who acted in good
faith and in a manner he 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." For the
purpose of this ARTICLE NINTH, unless the board of directors of
<PAGE> the corporation shall determine otherwise, any director or
officer of the corporation who shall serve as an officer,
director, employee or agent of any Other Enterprise of which the
corporation, directly or indirectly, is a shareholder or
creditor, or in which the corporation is in any way interested,
shall be presumed to be serving as such director, officer,
employee or agent at the request of the corporation. In all
other instances where any person shall serve as a director,
officer, employee or agent of any Other Enterprise, if it is not
otherwise established that such person is or was serving as such
director, officer, employee or agent at the request of the
corporation, the board of directors of the corporation shall
determine whether such person is or was serving at the request of
the corporation, and it shall not be necessary to show any actual
or prior request for such service, which determination shall be
final and binding on the corporation and the person seeking
indemnification.
(j) SEVERABILITY. If any provision of this ARTICLE
NINTH or the application of any such provision to any person or
circumstance is held invalid, illegal or unenforceable for any
reason whatsoever, the remaining provisions of this ARTICLE NINTH
and the application of such provision to other persons or
circumstances shall not be affected thereby and to the fullest
extent possible the court finding such provision invalid, illegal
or unenforceable shall modify and construe the provision so as to
render it valid and enforceable as against all persons or
entities and to give the maximum possible protection to persons
subject to indemnification hereby within the bounds of validity,
legality and enforceability. Without limiting the generality of
the foregoing, if any person who is or was an officer or director
of the corporation or any person who is or was serving at the
request of the corporation as a director, officer, employee or
agent of any Other Enterprise, is entitled under any provision of
this ARTICLE NINTH to indemnification by the corporation for some
or a portion of the judgments, amounts paid in settlement,
attorneys' fees, ERISA excise taxes or penalties, fines or other
expenses actually and reasonably incurred by such person in
connection with any threatened, pending or completed action, suit
or proceeding (including, without limitation, the investigation,
defense, settlement or appeal of such action, suit or proceeding)
but not, however, for all of the total amount thereof, the
corporation shall nevertheless indemnify such person for the
portion thereof to which such person is entitled.
(k) PERSONAL LIABILITY. Without limiting the
generality of the foregoing provisions of this ARTICLE NINTH, to
the fullest extent permitted or authorized by the laws of the
State of New Jersey, including without limitation the provisions
of Chapter 35 of the 1987 New Jersey Session Laws as now in
effect and as it may from time to time hereafter be amended, no
director or officer of the corporation shall be personally liable
<PAGE> to the corporation or to its shareholders for monetary damages
for breach of fiduciary duty as a director or officer.
TENTH. Insofar as it is permitted under the laws of
New Jersey and except as may be otherwise provided by the bylaws
of the corporation, no contract or other transaction between the
corporation and any other firm or corporation shall be affected
or invalidated solely by reason of the fact that any director of
officer of the corporation is interested in, or is a member,
shareholder, director or officer of such other firm or
corporation; and any director or officer of the corporation,
individually or jointly with one or more other directors or
officers of the corporation, may be a party to, or may be
interested in, any contract or transaction of the corporation or
in which the corporation is interested, and no such contract or
transaction shall be invalidated thereby.
ELEVENTH. The directors shall have power to keep the
books (except any books required to be kept in the state of New
Jersey, pursuant to the laws thereof) at any place within or
without the state of New Jersey.
TWELFTH. The corporation shall be entitled to treat
the registered holder of any shares of the corporation as the
owner of such shares and of all rights derived from such shares
for all purposes. The corporation shall not be obligated to
recognize any equitable or other claim to or interest in such
shares or rights on the part of any other person, including, but
without limiting the generality of the term "person," a
purchaser, pledgee, assignee or transferee of such shares or
rights, unless and until such person becomes the registered
holder of such shares, and the foregoing shall apply whether or
not the corporation shall have either actual or constructive
notice of the interest of such person.
THIRTEENTH. The corporation reserves the right to
alter, amend or repeal any provision contained in its Certificate
of Incorporation in the manner now or hereafter prescribed by the
statutes of New Jersey, and all rights and powers conferred
herein are granted subject to this reservation; and, in
particular, the corporation reserves the right and privilege to
amend its Certificate of Incorporation from time to time so as to
authorize other or additional classes of shares (including
preferential shares), to increase or decrease the number of
shares of any class now or hereafter authorized, to establish,
limit or deny to shareholders of any class the right to purchase
or subscribe for any shares of stock of the corporation of any
class, whether now or hereafter authorized or whether issued for
cash, property or services or as a dividend or otherwise, or to
purchase or subscribe for any obligation, bonds, notes,
debentures or securities or stock convertible into shares of
stock of the corporation or carrying or evidencing any right to
<PAGE> purchase shares of stock of any class, and to vary the
preferences, priorities, special powers, qualifications,
limitations, restrictions and the special or relative rights or
other characteristics in respect of the shares of each class, and
to accept and avail itself of, or subject itself to, the
provisions of any statutes of New Jersey hereafter enacted
pertaining to general and business corporations, to exercise all
the rights, powers and privileges conferred upon corporations
organized thereunder or accepting the provisions thereof and to
assume the obligations and duties imposed therein, upon the
affirmative vote of the holders of the shares of stock of the
corporation as provided in ARTICLE THIRD of this Certificate of
Incorporation.
IV. The Restated Certificate of Incorporation restates
and integrates and does not substantively amend the provisions of
the corporation's Certificate of Incorporation as theretofore
amended or supplemented, and there is no substantive discrepancy
between those provisions and the provisions of the restated
articles.
V. This restatement has been duly adopted in
accordance with the provisions of Section 14A:9-5 of the New
Jersey Business Corporation Act, as amended.
IN WITNESS WHEREOF, this Restated Certificate of
Incorporation has been executed on behalf of the corporation by
its President and attested by its Secretary, and each of them
does hereby affirm and acknowledge that this Restated Certificate
of Incorporation is the act and deed of the corporation as of
June 22, 1995.
BROAD NATIONAL BANCORPORATION
By /s/ John A. Dorman
Name: John A. Dorman
Title: President
(Corporate Seal)
ATTEST:
/s/ Fred S. Campo
Name: Fred S. Campo
Title: Secretary
<PAGE>
STATE OF NEW JERSEY )
) ss.
COUNTY OF ESSEX )
I, Margaret Nurnberger, a Notary Public, do hereby
certify that on this 22nd day of June, 1995, John A. Dorman,
personally came before me and this person acknowledged under
oath, to my satisfaction, that (a) this person signed, sealed and
delivered the foregoing certificate as President of the
corporation named in the foregoing certificate; (b) the proper
corporate seal was affixed; and (c) the foregoing was signed and
made by the corporation as its voluntary act and deed by virtue
of authority from its board of directors.
/s/ Margaret Nurnberger
Notary Public
My Commission Expires:
Margaret R. Nurnberger
A Notary Public of New Jersey
My Commission Expires June 3, 1998
Exhibit 4.2.1.
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION
OF
BROAD NATIONAL BANCORPORATION
The undersigned, Broad National Bancorporation, a New
Jersey corporation (the "Corporation"), for the purpose of
amending the Certificate of Incorporation of the Corporation, in
accordance with subsections 14A:9-2(4) and 14A:9-4(3) of the New
Jersey Business Corporation Act, does hereby make and execute
this Certificate of Amendment of Certificate of Incorporation and
does hereby certify that:
I. The name of the Corporation is Broad National
Bancorporation.
II. The following resolution of the shareholders sets forth the
amendment adopted:
RESOLVED, that the Certificate of Incorporation of
Broad National Bancorporation, a New Jersey corporation (the
"Corporation"), be amended by deleting the first paragraph
of ARTICLE THIRD in its entirety and inserting in lieu
thereof the following new first paragraph to ARTICLE THIRD:
THIRD. The total number of shares of all classes of
stock which the Corporation shall have authority to
issue is 11,520,000 shares, divided into:
10,000,000 shares of Common Stock, par value
$1.00 per share;
20,000 shares of Preferred Stock 1985 Class,
par value $10.00 per share; and
1,500,000 shares of Preferred Stock, par
value $1.00 per share, to be divided into one
or more series or classes of series as the
Corporation's Board of Directors may from
time to time approve, as hereinafter set
forth.
* * * *
III. The amendment set forth above was adopted by the
shareholders of the Corporation on April 17, 1997.
IV. The number of shares entitled to vote on the amendment was
4,654,688 shares of Common Stock, par value $1.00 per share.
<PAGE>
V. The following number of shares of the Corporation's Common
Stock, par value $1.00 per share, were cast with respect to
the amendment:
For 3,638,616
Against 247,682
Abstention 59,805
IN WITNESS WHEREOF, this Certificate of Amendment has
been executed on behalf of the Corporation by its President and
by its Secretary as of April 21, 1997.
BROAD NATIONAL BANCORPORATION
By /s/ John A. Dorman
Name: John A. Dorman
Title: President
(Corporate Seal)
ATTEST:
/s/ Fred S. Campo
Name: Fred S. Campo
Title: Secretary
<PAGE>
STATE OF NEW JERSEY )
) ss.
COUNTY OF ESSEX )
I, Margaret R. Nurnberger, a Notary Public, do hereby
certify that on this 21st day of April, 1997, John A. Dorman,
personally came before me and this person acknowledged under
oath, to my satisfaction, that (a) this person signed, sealed and
delivered the foregoing Certificate as President of the
Corporation named in the foregoing Certificate; (b) the proper
Corporate Seal was affixed; and (c) the foregoing was signed and
made by the Corporation as its voluntary act and deed by virtue
of authority from its Board of Directors.
/s/ Margaret R. Nurnberger
Notary Public
My Commission Expires:
June 3, 1998
Exhibit 4.2.2.
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION
OF
BROAD NATIONAL BANCORPORATION
The undersigned, Broad National Bancorporation, a New
Jersey corporation (the "Corporation"), for the purpose of
amending the Certificate of Incorporation of the Corporation, in
accordance with subsections 14A:9-2(4) and 14A:9-4(3) of the New
Jersey Business Corporation Act, does hereby make and execute
this Certificate of Amendment of Certificate of Incorporation and
does hereby certify that:
I. The name of the Corporation is Broad National
Bancorporation.
II. The following resolution of the shareholders sets forth the
amendment adopted:
RESOLVED, that the Certificate of Incorporation of
Broad National Bancorporation, a New Jersey corporation, be
amended by deleting the present clause (iii) of the second
paragraph of subsection C.8 of ARTICLE THIRD in its entirety
and inserting in lieu thereof the following new clause (iii)
of the second paragraph of subsection C.8 of ARTICLE THIRD:
(iii) shares of Common Stock issued (A) under any
benefit plan of any banking subsidiary of the
Corporation heretofore or hereafter approved by the
Board of Directors of such banking subsidiary, or (B)
under any benefit plan of the Corporation heretofore or
hereafter approved by the Corporation's shareholders,
including shares of Common Stock issued as authorized
by options granted under any stock option or other
benefit plan of the Corporation heretofore or hereafter
approved by the Corporation's shareholders.
III. The amendment set forth above was adopted by the
shareholders of the Corporation on May 13, 1997.
IV. The number of shares entitled to vote on the amendment was
4,654,688 shares of Common Stock, par value $1.00 per share.
V. The following number of shares of the Corporation's Common
Stock, par value $1.00 per share, were cast with respect to
the amendment:
For 3,155,334
Against 461,487
Abstention 38,368
<PAGE>
IN WITNESS WHEREOF, this Certificate of Amendment has
been executed on behalf of the Corporation by its President and
by its Secretary as of May 13, 1997.
BROAD NATIONAL BANCORPORATION
By /s/ John A. Dorman
Name: John A. Dorman
Title: President
(Corporate Seal)
ATTEST:
/s/ Fred S. Campo
Name: Fred S. Campo
Title: Secretary
STATE OF NEW JERSEY )
) ss.
COUNTY OF ESSEX )
I, Margaret R. Nurnberger, a Notary Public, do hereby
certify that on this 13th day of May, 1997, John A. Dorman,
personally came before me and this person acknowledged under
oath, to my satisfaction, that (a) this person signed, sealed and
delivered the foregoing Certificate as President of the
Corporation named in the foregoing Certificate; (b) the proper
Corporate Seal was affixed; and (c) the foregoing was signed and
made by the Corporation as its voluntary act and deed by virtue
of authority from its Board of Directors.
/s/ Margaret R. Nurnberger
Notary Public
My Commission Expires:
Margaret R. Nurnberger
A Notary Public of New Jersey
My Commission Expires June 3, 1998
_________________________________
