As filed with the Securities and Exchange Commission on August 26, 1999
Registration No. 333-
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
__________
REGISTRATION STATEMENT
ON FORM S-8
UNDER THE SECURITIES ACT OF 1933
__________
INDEPENDENCE COMMUNITY BANK CORP.
(Exact name of registrant as specified in its charter)
Delaware 13-3387931
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
195 Montague Street, Brooklyn, New York 11201
(Address of principal executive offices) (Zip Code)
STOCK OPTIONS ASSUMED IN ACQUISITION OF
BROAD NATIONAL BANCORPORATION
(Full title of the plan)
Charles J. Hamm
Chairman of the Board, President and Chief Executive Officer
Independence Community Bank Corp.
195 Montague Street
Brooklyn, New York 11201
(Name and address of agent for service)
(718) 722-5300
(Telephone number, including area code, of agent for service)
Copies to:
Philip Ross Bevan, Esq.
Cristin Zeisler, Esq.
Elias, Matz, Tiernan & Herrick L.L.P.
734 15th Street, N.W.
Washington, D.C. 20005
(202) 347-0300
CALCULATION OF REGISTRATION FEE
=============================================================================
Title of securities Amount to be Offering price Aggregate Amount of
to be registered registered per share offering price registration fee
_____________________________________________________________________________
Common Stock, par
value $.01 per share 637,510 $13.09(1) $8,345,005.90(2) $2,319.91(2)
=============================================================================
(1) Reflects the weighted average exercise price of the options covered
hereby.
(2) Calculated in accordance with Rule 457(h), solely for the purpose of
calculating the registration fee, based on the weighted average option
exercise price of the shares issuable.
This Registration Statement shall become effective automatically upon the
date of filing in accordance with Section 8(a) of the Securities Act and 14
C.F.R. Section 230.462.
Purpose
_______
The purpose of this registration statement is to register on Form S-8
shares of common stock, par value $.01 per share (the "Common Stock") of
Independence Community Bank Corp. (the "Company") issuable upon exercise of
certain stock options assumed by the Company in connection with the
acquisition by the Company of Broad National Bancorporation ("Broad").
PART I
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
____________________
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended ("Securities Act"),
and the Note to Part I on Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents previously or concurrently filed by the Company
with the Securities and Exchange Commission (the "Commission") are hereby
incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended
March 31, 1999.
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999.
(c) The description of the Common Stock of the Company as
contained in Item 1, "Description of Registrant's Securities to be
Registered" in the Company's Registration Statement on Form 8-A as filed
on October 17, 1997 (File No. 000-23229).
(d) All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold.
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Any statement contained in the documents incorporated, or deemed to be
incorporated, by reference herein or therein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or therein or in any other subsequently filed
document which also is, or is deemed to be, incorporated by reference herein
or therein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable because the Company's Common Stock was registered under
Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not Applicable to this Registration Statement.
Item 6. Indemnification of Directors and Officers.
In accordance with the General Corporation law of the State of Delaware,
Articles 9 and 10 of the Registrant's Certification of Incorporation and
Article VI of the Registrant's Bylaws provide as follows:
Article 9 of Certification of Incorporation
Liability of Directors and Officers. The personal liability of the
directors and officers of the Corporation for monetary damages shall be
eliminated to the fullest extent permitted by the General Corporation Law of
the State of Delaware as it exists on the effective date of this Certificate
of Incorporation or as such law may be thereafter in effect. No amendment,
modification or repeal of this Article 9 shall adversely affect the rights
provided hereby with respect to any claim, issue or matter in any proceeding
that is based in any respect on any alleged action or failure to act prior to
such amendment, modification or repeal.
Article 10 of Certificate of Incorporation
Indemnification. The Corporation shall indemnify its directors,
officers, employees, agents and former directors, officers, employees and
agents, and any other persons serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, association,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees, judgments, fines and amounts paid in settlement)
incurred in connection with any pending or threatened action, suit or
proceeding, whether civil, criminal, administrative or investigative, with
respect to which such director, officer, employee, agent or other person is a
party, or is threatened to be made a party, to the full extent permitted by
the General Corporation Law of the State of
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Delaware, provided, however, that the Corporation shall not be liable for any
amounts which may be due to any person in connection with a settlement of any
action, suit or proceeding effected without its prior written consent or any
action, suit or proceeding initiated by any person seeking indemnification
hereunder without its prior written consent. The indemnification provided
herein (i) shall not be deemed exclusive of any other right to which any
person seeking indemnification may be entitled under any bylaw, agreement or
vote of shareholders or disinterested directors or otherwise, both as to
action in his or her official capacity and as to action in any other capacity,
and (ii) shall inure to the benefit of the heirs, executors and administrators
of any such person. The Corporation shall have the power, but shall not be
obligated, to purchase and maintain insurance on behalf of any person or
persons enumerated above against any liability asserted against or incurred by
them or any of them arising out of their status as corporate directors,
officers, employees, or agents whether or not the Corporation would have the
power to indemnify them against such liability under the provisions of this
Article 10.
Article VI of Bylaws - Indemnification, etc. of Directors, Officers and
Employees
6.1 Indemnification. The Corporation shall provide indemnification to
its directors, officers, employees, agents and former directors, officers,
employees and agents and to others in accordance with the Corporation's
Certificate of Incorporation.
6.2 Advancement of Expenses. Reasonable expenses (including attorneys'
fees) incurred by a director, officer or employee of the Corporation in
defending any civil, criminal, administrative or investigative action, suit or
proceeding described in Section 6.1 may be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding as authorized by
the Board of Directors only upon receipt of an undertaking by or on behalf of
such person to repay such amount if it shall ultimately be determined that the
person is not entitled to be indemnified by the Corporation.
6.3 Other Rights and Remedies. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VI shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Corporation's Certificate of
Incorporation, any agreement, vote of stockholders or disinterested directors
or otherwise, both as to actions in their official capacity and as to actions
in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer or employee and shall inure
to the benefit of the heirs, executors and administrators of such person.
6.4 Insurance. Upon resolution passed by the Board of Directors, the
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer of employee of the Corporation, or is or was
serving at the request of the corporation as a director, officer or employee
of another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him or incurred by him in any such
capacity or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against
II-3
such liability under the provisions of its Certificate of Incorporation or
this Article VI.
6.5 Modification. The duties of the Corporation to indemnify and to
advance expenses to a director, officer or employee provided in this Article
VI shall be in the nature of a contract between the Corporation and each such
person, and no amendment or repeal of any provision of this Article VI shall
alter, to the detriment of such person, the right of such person to the
advance of expenses or indemnification related to a claim based on an act or
failure to act which took place prior to such amendment or repeal.
Item 7. Exemption from Registration Claimed.
Not applicable because no restricted securities will be reoffered or
resold pursuant to this Registration Statement.
Item 8. Exhibits.
Regulation S-K
Exhibit No. Document
______________ ________
2 Agreement and Plan of Merger between Independence
Community Bank Corp. and Broad National
Bancorporation dated February 1, 1999 (without
exhibits)*
4 Form of Stock Certificate**
5 Opinion of Elias, Matz, Tiernan & Herrick L.L.P.
10.1 Broad National Bancorporation Incentive Stock Option Plan
10.2 1993 Broad National Bancorporation Incentive Stock
Option Plan
10.3 1993 Broad National Bancorporation Directors Non-
Statutory Stock Option Plan
10.4 1996 Broad National Bancorporation Incentive Stock
Option Plan
10.5 1996 Broad National Bancorporation Directors Non-
Statutory Stock Option Plan
23.1 Consent of Elias, Matz, Tiernan & Herrick L.L.P.
(included in Exhibit 5)
23.2 Consent of Independent Accountants
24 Power of Attorney for any subsequent amendments
(located in the signature pages of this Registration
Statement).
__________________
* Incorporated by reference from the Company's Form S-4 (File No. 333-75545)
initially filed on April 1, 1999.
** Incorporated by reference from the Company's Registration Statement on
Form S-1 (File No. 333-30757).
II-4
Item 9. Undertakings.
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; (ii) to reflect
in the prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change in such
information in the Registration Statement; provided, however, that clauses (i)
and (ii) do not apply if the information required to be included in a
post-effective amendment by those clauses is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference in
the Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act, 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.
4. That, for the purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act and each filing of the Plan's
annual report pursuant to Section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
5. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person
II-5
of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Brooklyn, New York, on this 26th day of August, 1999.
INDEPENDENCE COMMUNITY BANK CORP.
By: /s/ Charles J. Hamm
___________________________________
Charles J. Hamm
Chairman of the Board, President and
Chief Executive Officer
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 dates indicated. Each person whose signature appears
below hereby makes, constitutes and appoints Charles J. Hamm his or her true
and lawful attorney, with full power to sign for such person and in such
person's name and capacity indicated below, and with full power of
substitution any and all amendments to this Registration Statement, hereby
ratifying and confirming such person's signature as it may be signed by said
attorney to any and all amendments.
Name Title Date
___________________ ____________________________ _______________
Chairman, President and Chief August 26, 1999
/s/ Charles J. Hamm Executive Officer
___________________ (principal executive officer)
Charles J. Hamm
/s/ Joseph S. Morgano Director, Executive Vice
_____________________ President and Mortgage August 26, 1999
Joseph S. Morgano Officer
/s/ Frank S. Muzio Executive Vice President and
___________________ Acting Chief Financial Officer
Frank S. Muzio (acting principal financial
and accounting officer) August 26, 1999
/s/ Willard N. Archie
_____________________ Director August 26, 1999
Willard N. Archie
/s/ Robert D. Catell
____________________ Director August 26, 1999
Robert D. Catell
Name Title Date
___________________ ____________________________ _______________
/s/ Rohit M. Desai
__________________ Director August 26, 1999
Rohit M. Desai
/s/ Chaim Y.Edelstein
_____________________ Director August 26, 1999
Chaim Y. Edelstein
/s/ Donald H. Elliott
_____________________ Director August 26, 1999
Donald H. Elliott
/s/ Robert W. Gelfman
_____________________ Director August 26, 1999
Robert W. Gelfman
/s/ Scott M. Hand
_________________ Director August 26, 1999
Scott M. Hand
/s/ Donald E. Kolowsky
______________________ Director August 26, 1999
Donald E. Kolowsky
/s/ Janine Luke
_______________ Director August 26, 1999
Janine Luke
/s/ Malcolm MacKay
__________________ Director August 26, 1999
Malcolm MacKay
/s/ Wesley D. Ratcliff
______________________ Director August 26, 1999
Wesley D. Ratcliff
/s/ Donald M. Karp
__________________ Director August 26, 1999
Donald M. Karp
Law Offices
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
12th Floor
734 15th Street, N.W.
Washington, D.C. 20005
_______
TIMOTHY B. MATZ JEFFREY D. HAAS
STEPHEN M. EGE Telephone: (202) 347-0300 KEVIN M. HOULIHAN
W. MICHAEL HERRICK Facsimile: (202) 347-2172 KENNETH B. TABACH
GERARD L. HAWKINS PATRICIA J.WOHL
NORMAN B. ANTIN FIORELLO J.VICENCIO*
JOHN P. SOUKENIK* DAVID K. TEEPLES*
GERALD F. HEUPEL, JR. CRISTIN ZEISLER
JEFFREY A. KOEPPEL DANIEL R. KLEINMAN*
DANIEL P. WEITZEL ERIC M. MARION
__________________
PHILIP ROSS BEVAN OF COUNSEL
HUGH T. WILKINSON August 26, 1999
ALLIN P. BAXTER
JACK I. ELIAS
SHERYL JONES ALU
*NOT ADMITTED IN D.C.
Board of Directors
Independence Community Bank Corp.
195 Montague Street
Brooklyn, New York 11201
Re: Registration Statement on Form S-8
637,510 Shares of Common Stock
Ladies and Gentlemen:
We have acted as special counsel to Independence Community Bank Corp., a
Delaware corporation (the "Corporation"), in connection with the preparation
and filing with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, of a Registration Statement on Form S-8
(the "Registration Statement"), relating to the registration of shares of
common stock, par value $.01 per share ("Common Stock"), of the Corporation
issuable upon exercise of certain stock options ("Option Rights") assumed by
the Corporation in connection with the merger of Broad National Bancorporation
("Broad") with and into the Corporation in accordance with the terms of the
Agreement and Plan of Merger ("Agreement"), dated as of February 1, 1999 by
and among the Corporation and Broad. Capitalized terms not otherwise defined
herein have the same meaning as set forth in the Agreement. We have been
requested by the Corporation to furnish an opinion to be included as an
exhibit to the Registration Statement.
For this purpose, we have reviewed the Registration Statement and related
Prospectus, the Certificate of Incorporation and Bylaws of the Corporation,
the Agreement, a specimen stock certificate evidencing the Common Stock of the
Corporation and such other corporate records and documents as we have deemed
appropriate. We are relying upon the originals, or copies certified or
otherwise identified to our satisfaction, of the corporate records of the
Corporation and such other instruments, certificates and representations of
public officials, officers and representatives of the Corporation as we have
deemed relevant as a basis for this opinion. In addition, we have assumed,
Board of Directors
August 26, 1999
Page 2
without independent verification, the genuineness of all signatures and the
authenticity of all documents furnished to us and the conformance in all
respects of copies to originals. Furthermore, we have made such factual
inquiries and reviewed such laws as we determined to be relevant for this
opinion.
For purposes of this opinion, we have also assumed that (i) the shares of
Common Stock issuable pursuant to Option Rights granted under the terms of the
Agreement will continue to be validly authorized on the dates the Common Stock
is issued pursuant to the Option Rights; (ii) on the dates the Option Rights
are exercised, the Option Rights granted under the terms of the Agreement will
constitute valid, legal and binding obligations of the Corporation and will
(subject to applicable bankruptcy, moratorium, insolvency, reorganization and
other laws and legal principles affecting the enforceability of creditors'
rights generally) be enforceable as to the Corporation in accordance with
their terms; (iii) the Option Rights are exercised in accordance with their
terms and the exercise price therefor is paid in accordance with the terms
thereof; (iv) no change occurs in applicable law or the pertinent facts; and
(v) the provisions of "blue sky" and other securities laws as may be
applicable will have been complied with to the extent required.
Based on the foregoing, and subject to the assumptions set forth herein,
we are of the opinion as of the date hereof that the shares of Common Stock to
be issued pursuant to the Agreement, when issued and sold pursuant to the
Agreement and upon receipt of the consideration required thereby, will be
legally issued, fully paid and non-assessable shares of Common Stock of the
Corporation.
We hereby consent to the reference to this firm under the caption "Legal
Opinion" in the Prospectus and to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
By:/s/ Philip Ross Bevan
__________________________________
Philip Ross Bevan, a Partner
EXHIBIT 10.1
BROAD NATIONAL BANCORPORATION
INCENTIVE STOCK OPTION PLAN
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 (called "Broad National
Bancorporation Common Stock") voting in person or by proxy at a duly
constituted meeting of the shareholders of the Company, an incentive stock
option plan for 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 the key 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" or the "Board"), subject to the requirement
that the Plan be approved by the holders of a majority of the shares of Broad
National Bancorporation Common Stock voting in person or by proxy at a duly
constituted meeting of the shareholders of the Company to be held within 12
months after the date on which the Plan is adopted.
3. Administration. This Plan shall be administered by the Board of
Directors. The Board 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. The interpretation and construction of this
Plan by the Board shall be final, conclusive and binding upon all persons.
A Stock option committee shall be appointed at the pleasure of the Board
of Directors and shall consist of individuals who are members of the Board but
who are not employees of the Company or any of its subsidiaries. Subject to
the terms, provisions and conditions of the Plan, the Stock Option Committee
shall have the authority to advise the Board in such matters as (i) selection
of the individuals to whom options shall be granted, (ii) determination of
the number of shares subject to each option, (iii) determination of the time
or times when options will be granted, (iv) determination of the option price
of the shares subject to each option, (v) determination of the time when each
option may be exercised, (vi) fixing such other provisions of each option
agreement as the Stock Option Committee may deem necessary or desirable,
consistent with the terms of this Plan, and (vii) determination of all other
questions relating to the administration of this Plan, The Board's
determination on all such matters shall be binding on the Company.
4. Eligibility.
(a) Key employees -- Options to purchase shares of Broad National
Bancorporation
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 425(f) of the Internal Revenue Code of 1954, as amended (the "Code").
Key employees to whom options may be granted under this Plan will be those
employees selected by the Board of Directors from time to time who, in the
sole discretion of the Board of Directors, 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 425(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
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
Bancorporation Common Stock, subject to any adjustments made pursuant to the
provisions of section 13, the aggregate number of shares of Broad National
Bancorporation Common Stock which may be issued upon exercise of all the
options which may be granted under this Plan shall not exceed 11,700. 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 Bancorporation Common Stock
or any treasury shares of Broad National Bancorporation Common Stock held by
the Company.
6. Option Treatment. 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 the provisions of this Plan, but it may include such other
provisions as may be approved by the Board of Directors. 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 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.
7. Option Price. The price at which shares of Broad National
Bancorporation Common Stock may be purchased under an option granted pursuant
to this Plan shall be determined by the Board of Directors, but in no event
shall the price be less than 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 Bancorporation Common Stock for purposes of this
Plan shall be determined by the Board of Directors, in its sole discretion,
and the Board of Directors may rely on such independent advice with respect
to such fair market value as the Board of Directors shall deem appropriate.
8 . Period and Exercise of Option.
(a) Period -- Subject to the provisions of sections 10 and 11 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 Board of Directors, at the time such option is granted,
provided that such period shall expire no later than ten years from the date
on which this option is granted, in the event of any merger, consolidation,
liquidation or sale of substantially all of the assets of the Company, the
Board may accelerate the Expiration Date of the Option so that the Option
shall expire at a date concurrent with such merger, consolidation, liquidation
or sale of substantially all the assets. In the event of such acceleration
notice shall be given to the optionee at least ten (10) days prior to such
accelerated Expiration Date.
(b) Exercise -- Any option granted under this Plan may be exercised
by the optionee (or by the purchaser acting under paragraph 11 below) only by
(i) delivering to the Company written notice of the number of shares with
respect to which he is exercising his 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 representations 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 Board of
Directors may specify in such Incentive Stock Option Agreement.
(c) Payment for shares -- Payment for shares of Broad National
Bancorporation Common Stock purchased pursuant to an option granted under
this Plan may be made in either cash or in other shares of Broad National
Bancorporation 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 distributes 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 legends as the Board of Directors
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 and
11 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. Furthermore, no option granted under this Plan shall be
exercisable while there is
outstanding another incentive stock option which was granted to the optionee
before the date on which the first mentioned option was granted, if such other
incentive stock option permits the optionee to purchase stock in the Company
or in any parent or subsidiary corporation of the Company, or in a predecessor
corporation of the Company or any of such other corporations.
9. Limitation on Options Granted to Individual Emplovees. The
aggregate fair market value (determined at the time the options are granted)
of shares of stock for which any employee may be granted options under this
Plan in any calendar year shall not exceed the sum of (i) $100,000, and (ii)
the amount of any unused limit carryover (as that term is defined in section
422A(c)(4) of the Code) to such year.
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, any option or unexercised portion thereof granted to him
under this Plan which is otherwise exercisable shall terminate unless it is
exercised within twelve (12) months of the date on which he ceases to be so
employed, and in any event no later than the Expiration Date of such option
as specified in the respective Incentive Stock Option Agreement. Nothing in
this Plan or in any incentive Stock Option Agreement shall be construed as
an obligation on the part of the Company or of any of its subsidiary
corporations to continue the employment of any employee.
11. Death of Optionee. In the event of the death of an optionee
while he is an employee of the Company or of any of its subsidiary
corporations (or within three (3) months of the date on which he ceases to be
so employed), any option or unexercised portion thereof granted to him under
this Plan which is otherwise exercisable may be exercised 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, at any time
within a period of twelve (12) months following the death of the optionee (but
in no event later than the Expiration Date of the option as specified in the
respective Incentive Stock Option Agreement).
12. 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 him.
13. 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 Bancorporation Common Stock subject to this
Plan and the number of such shares subject to each option granted hereunder
shall be correspondingly adjusted by the Board of Directors. The option price
for which shares of Broad National Bancorporation 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.
14. Amendment and Termination of Plan. No option shall be granted
pursuant to this Plan after April 16, 1996, 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 approval by the holders of a majority of
the issued and outstanding shares of Broad National Bancorporation Common
Stock voting in person or by proxy at a duly constituted meeting of the
shareholders of the Company, (i) increase the maximum number of shares of
Broad National Bancorporation 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 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 Bancorporation Common Stock to conform with any then applicable
provisions of the Internal Revenue Code or the regulations issued thereunder.
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.
15. 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.
PROPOSED RESOLUTION TO AMEND
INCENTIVE STOCK OPTION PLAN
____________________________
WHEREAS, an Incentive Stock Option Plan was adopted by the Board of
Directors of Broad National Bancorporation on June 19, 1986 and approved by
the shareholders on March 26, 1987 (the "ISO Plan"), and
WHEREAS, the ISO Plan was adopted pursuant to and consistent with
the provisions of the Internal Revenue Code of 1954, as amended, which were in
effect at the time of adoption, and
WHEREAS, the Internal Revenue Code has been amended with respect to
certain provisions of incentive stock options granted after December 31, 1986,
and
WHEREAS, it was the intention of the Board of Directors that the ISO
Plan and any grant of an option thereunder be consistent with the provisions
of the Internal Revenue Code at all times until all options granted under the
ISO Plan either expire or are exercised;
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors hereby
amends the ISO Plan as follows:
I. On the fifth line of paragraph 4, subparagraph (a) of said ISO
Plan, the term, "Internal Revenue Code of 1954," is hereby deleted, and in
lieu thereof, the term, "Internal Revenue Code of 1986," is hereby
substituted. All references to the "Code" in said ISO Plan, as amended by
this amendment hereto, shall be to said Internal Revenue Code of 1986, as
amended, except as otherwise provided in said ISO Plan as amended hereby.
II. Subparagraph (e) of paragraph 8 of said ISO Plan is hereby
deleted, and in lieu thereof, the following subparagraph (e) is hereby
substituted:
(e) Limitations on exercise -- Except as provided in sections 10 and
11 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. Furthermore, no option granted under this Plan prior to
January 1, 1987 shall be exercisable while there is outstanding another
incentive stock option which was granted to the optionee before the date on
which the first mentioned option was granted, if such other incentive stock
option permits the optionee to purchase stock in the Company or in any parent
or subsidiary corporation of the Company, or in a predecessor corporation of
the Company or any of such other corporations.
III. Paragraph 9 of said ISO Plan is hereby deleted and in lieu
thereof, the following paragraph 9 is hereby substituted:
9. Limitations on Options Granted to Individual Employees. With
respect to options granted prior to January 1, 1987, the aggregate fair market
value (determined at the time the options are granted) of shares of stock for
which any employee may be granted options under this Plan in any calendar year
shall not exceed the sum of (i) $100,000 and (ii) the amount of any unused
limit carryover (as that term is defined in section 422A(c)(4) of the Internal
Revenue Code of 1954) to such year. With respect to options granted on or
after January 1, 1987, the aggregate fair market value (determined at the time
the option is granted) of the stock with respect to which incentive stock
options are exercisable for the first time by such individual during any
calendar year (under all incentive stock option plans of the Company and its
parent and subsidiary corporations, and taking any of said options into
account in the order in which said options were granted) shall not exceed
$100,000.
IV. All provisions of the ISO Plan adopted on June 19, 1986 as
amended hereby are hereby ratified, confirmed and approved.
EXHIBIT 10.2
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.
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.
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
2
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 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
3
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.
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
4
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
(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
5
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
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
6
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.
7
EXHIBIT 10.3
1993
BROAD NATIONAL
DIRECTORS NON-STATUTORY STOCK OPTION PLAN
_________________________________________
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, a non-statutory stock option plan for members of
the Board of Directors of the Company ("Directors") as follows:
1. Purpose of Plan.
----------------
The purpose of this Directors Non-Statutory Stock Option Plan (the
"Plan") is to enable Directors to participate in the ownership of the Company,
and to provide additional incentive for such Directors to promote the success
of its business through sharing in the future growth of such business.
2. Effective Date 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; provided, however,
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 within
twelve (12) months from the date the Plan is adopted by the Board of Directors
of the Company. The granting of an option under this Plan (the "Granting
Date") shall be deemed to occur (i) initially with respect to any person who
is a Director on the date the Plan is adopted, upon the date the Plan is
adopted, and subsequently with respect to such person on the date of each
annual meeting of the Board of Directors at which such person is a Director,
and (ii) initially with respect to any person who is not a Director on the
Date the Plan is adopted but becomes a Director subsequent to the date on
which the Plan is adopted, upon the date the Director commences his term of
office, and subsequently with respect to such person on the date of each
annual meeting of the Board of Directors at which such person is a Director.
3. Eligibility.
------------
Options to purchase shares of Broad National Common Stock shall be
granted under this Plan to (i) those Directors serving as Directors on the
date this Plan is adopted in accordance with Section 2 and to Directors
serving as Directors at each annual meeting of the Board of Directors
following the annual meeting of the stockholders of the Company beginning with
the first annual meeting of the Board of Directors occurring after December
31, 1993.
4. 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 11, 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 seventy-five thousand
(75,000) shares of Broad National Common Stock.
(a) On the Date the Plan is adopted, the Company shall grant to each
Director acting as a Director on the date the Plan is adopted an option to
purchase the following number of shares of Broad National Common Stock based
on the Director's length of service on the Board of Directors of the Company
as follows:
Number of Complete Years of Number of Shares
Service on the Board on the of Common Stock
Date the Plan Is Adopted Subject to 0ption
Less than Two Years 11,000
At Least Two But Less Than Five Years 21,000
At Least Five But Less Than Ten Years 31,000
At Least Ten But Less Than Fifteen Years 41,000
At Least Fifteen But Less Than Twenty Years 51,000
At Least Twenty Years 61,000
(b) On the date of each annual meeting of the Board of Directors of
the Company following the annual meeting of the stockholders of the Company,
commencing with the first annual meeting of the Board of Directors after
December 31, 1993, the Company shall grant to each Director serving as a
Director at such annual meeting (whether or not such Director was also serving
as a director on the Date the Plan was adopted) an option to purchase five
hundred (500) shares of Broad National Common Stock.
(c) 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.
Any option granted hereby shall first become exercisable upon the
later of (i) the expiration of one (1) year from the Granting Date or upon the
Payment by the Company of a quarterly cash dividend with respect to its Common
Stock for a fiscal quarter ending on or after the Granting Date. Each option
granted hereunder shall expire upon the expiration of the period provided in
Section 7 of the Plan. If any option granted under this Plan shall expire or
terminate for any reason without having been exercised in full, such option
shall expire as to such shares, and 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.
5. Option Agreement.
-----------------
Each option granted under this Plan shall be evidenced by a stock
option agreement which shall be signed by an officer of the Company and by the
Director to whom the option is granted (the "optionee"). The terms of said
stock option agreement shall be in accordance with the provisions of this
Plan. Each stock option agreement shall constitute a binding contract between
the Company and the optionee, and every optionee, upon the execution of a
stock option agreement, shall be bound by the terms and restrictions of this
Plan and such stock option agreement.
6. 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 equal to the
greater of (i) the par value thereof, or (ii) 100 percent of the fair market
value of such shares on the Granting Date. The fair market value of shares of
Broad National Common Stock for purposes of this Plan shall be the mean
between the highest and lowest selling prices of such shares on the Granting
Date. If there are no sales on the Granting Date, but there are sales on
dates within a reasonable period of time both before and after the Granting
Date, the fair market value shall be equal to the weighted average of the
means between the highest and lowest selling prices for such shares on the
nearest date before and the nearest date after the Granting Date. If there
are no sales within a reasonable period of time both before and after the
Granting Date, the fair market value shall be the mean between the bona fide
bid and asked prices on the Granting Date, and if none, the fair market value
shall be the weighted average of the means between the bona fide bid and asked
prices on the nearest trading date before and the nearest trading date after
the Granting Date, provided both such nearest dates are within a reasonable
period of time from the Granting Date. Any such selling prices or bid and
asked quotations shall be determined from the reports of the exchange on which
shares of Broad National Common Stock are principally dealt, if any, and if
none, as such selling prices or bid and asked Quotations are reported on any
composite listing or any combined exchanges, if any.
7. Period and Exercise of Options.
-------------------------------
(a) Period -- Subject to the provisions of Sections 8 and 9 hereof
with respect to the death or termination of status of an optionee, the period
during which each option granted under this Plan may be exercised shall expire
no later than ten (10) years from the Granting Date of such option. 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 1=24(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
Board of Directors 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 Board of Directors 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 5(f) 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 the purchaser acting under Section 10 below) only by
(i) delivering to the Company 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 stock option agreement, each option granted under this Plan shall
be exercisable in whole or in part.
(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. No certificate
for fractional shares of stock shall be issued by the Company, however, but
in lieu thereof the Company shall distribute at such time to the optionee who
otherwise would have been entitled to receive a fractional share an amount in
cash equal to the value of said fractional share determined by multiplying the
fraction by the mean of the high and low bid prices of Broad National Common
Stock on the date on which the Company receives the notice and representation
described in subsection (b). Neither any optionee, nor the legal
representative, legatee or distributes 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.
(e) Limitations on exercise -- Except as provided in Sections 8 and
9 hereof, no option
granted under this Plan shall be exercised unless the optionee is at the time
of such exercise a Director.
8. Termination of Status.
----------------------
If an optionee shall cease to be a Director for any reason other than
death, 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 a
Director, 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 its stockholders to continue the status of such
optionee as a Director.
9. Death of Optionee.
------------------
In the event of the death of an optionee while he is a Director (or
within thirty (30) days of the date on which such optionee ceases to be a
Director) any option or unexercised portion thereof granted to him under this
Plan which is otherwise exercisable may be exercised by the person or persons
to whom such optionee's rights under the option pass by operation of the
optionees will or the laws of descent and distribution, at any time within a
period of one (1) year following the death of the optionee (but in no event
later than the expiration date of the option as specified in the respective
stock option agreement).
10. Nontransferability.
-------------------
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.
11. 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. 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.
12. Amendment and Termination of Plan.
----------------------------------
The Plan will expire on December 15, 2003, except as to options then
outstanding under the Plan, which options shall remain in effect until they
have been exercised or have expired. A majority of the members of the Board
of Directors may at any time before such date amend, modify or
terminate the Plan; provided, however, that no such amendment, modification or
termination shall be effective without obtaining the further approval of 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; and provided further, that the Plan shall not be
amended more than once every six months, other than to comport with changes in
the law. 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.
13. 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 10.4
1996
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.
1
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
2
terms and restrictions of this Plan and such incentive stock option
agreement.
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.
3
(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 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
4
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.
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
5
(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 approval by the holders of
6
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.
7
EXHIBIT 10.5
1996
BROAD NATIONAL BANCORPORATION
DIRECTORS NON-STATUTORY STOCK OPTION PLAN
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, a non-statutory stock option plan for members of
the Board of Directors of the Company ("Directors") as follows:
1. Purpose of Plan. The purpose of this 1996 Broad National
Bancorporation Directors Non-Statutory Stock Option Plan (the "Plan") is to
enable Directors to participate in the ownership of the Company, and to
provide additional incentive for such Directors to promote the success of its
business through sharing in the future growth of such business.
2. Effective Date 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
is 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 within twelve (12) months from the date the Plan
is adopted by the Board of Directors. The granting of an option under this
Plan (the "Granting Date") shall be deemed to occur on the date of each annual
meeting of the Board of Directors.
3. Eligibility. Options to purchase shares of Broad National Common
Stock shall be granted under this Plan to those Directors serving as
Directors following the annual meeting of the stockholders of the Company
beginning with the first annual meeting of the Board of Directors occurring
after December 31, 1996.
4. 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 11, 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 seventy five thousand (75,000) shares.
(a) On the date of each annual meeting of the Board of Directors
following the annual meeting of the stockholders of the Company, commencing
with the first annual meeting of the Board of Directors occurring after
December 31, 1996, the Company shall grant to each Director serving as a
Director immediately following such annual meeting (whether or not such
Director was also serving as a Director on the date the Plan was adopted) an
option to purchase five hundred (500) shares of Broad National Common Stock.
1
(b) 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.
Any option granted hereby shall first become exercisable upon the later
of (i) the expiration of two (2) years from the Granting Date or (ii) the date
on which the Company shall have paid a cash dividend with respect to its
Common Stock in each of two (2) consecutive calendar years during the term of
the option. Each option granted hereunder shall expire upon the expiration of
the period provided in Section 7 of the Plan. If any option granted under
this Plan shall expire or terminate for any reason without having been
exercised in full, such option shall expire as to the unpurchased shares, and
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.
5. Option Agreement. Each option granted under this Plan shall be
evidenced by a stock option agreement which shall be signed by an officer of
the Company and by the Director to whom the option is granted (the
"optionee"). The terms of said stock option agreement shall be in accordance
with the provisions of this Plan. Each stock option agreement shall
constitute a binding contract between the Company and the optionee, and every
optionee, upon the execution of a stock option agreement, shall be bound by
the terms and restrictions of this Plan and such stock option agreement.
6. 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
equal to the greater of (i) the par value thereof, or (ii) 100 percent of the
fair market value of such shares on the Granting Date. The fair market value
of shares of Broad National Common Stock for purposes of this Plan shall be
the mean between the highest and lowest selling prices of such shares on the
Granting Date. If there are no sales on the Granting Date, but there are
sales on dates within a reasonable period of time (ten days) both before and
after the Granting Date, the fair market value shall be equal to the weighted
average of the means between the highest and lowest selling prices for such
shares on the nearest date before and the nearest date after the Granting
Date. If there are no sales within a reasonable period of time both before
and after the Granting Date, the fair market value shall be the mean between
the bona fide bid and asked prices on the Granting Date, and if none, the fair
market value shall be the weighted average of the means between the bona fide
bid and asked prices on the nearest trading date before and the nearest
trading date after the Granting Date, provided both such nearest dates are
within a reasonable period of time (ten days) from the Granting Date. Any
such selling prices or bid and asked quotations shall be determined from the
reports of the exchange or automated quotation system on which shares of Broad
National Common Stock are principally dealt, if any, and if none, as such
selling prices or bid and asked quotations are reported on any composite
listing of any combined exchanges, if any.
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7. Period and Exercise of Option.
(a) Period--Subject to the provisions of Sections 8 and 9 hereof with
respect to the death or termination of status as a Director, the period during
which each option granted under this Plan may be exercised shall expire ten
(10) years from the Granting Date of such option. 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, each optionee shall have
the right, within a period commencing 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 time at which options granted under
this Plan may be exercised by the optionee shall be accelerated so as to be
immediately exercisable. 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 or an officer elected by the Board of
Directors) 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 9 below) only by (i) delivering
to the Company 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 person) 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 stock
option agreement, each option granted under this Plan shall be exercisable in
whole or in part commencing at such time as is specified under Section 4
above.
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(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 (such other
shares of Broad National Common Stock shall be valued for this purpose at 100
percent of the fair market value (as defined in Section 6 hereof) of such
shares on the date that payment of the option price is made).
(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. No certificate for
fractional shares of stock shall be issued by the Company, however, but in
lieu thereof the Company shall distribute at such time to the optionee who
otherwise would have been entitled to receive a fractional share an amount in
cash equal to the value of said fractional share determined by multiplying the
fraction by the mean of the high and low bid prices of Broad National Common
Stock on the date on which the Company receives the notice and representation
described in subsection (b). 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.
(e) Limitations on exercise--Except as provided in Sections 8 and 9
hereof, no option granted under this Plan shall be exercised unless the
optionee is at the time of such exercise a Director.
8. Termination of Status. If an optionee shall cease to be a Director
for any reason other than death, 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 a Director, 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 its stockholders to
continue the status of such optionee as a Director.
9. Death of Optionee. In the event of the death of an optionee while
he is a Director (or within thirty (30) days of the date on which such
optionee ceases to be a Director) any option or unexercised portion thereof
granted to him under this Plan which is otherwise exercisable may be exercised
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,
at any time within a period of one (1) year following the death of the
optionee (but in no event later than the expiration date of the option as
specified in the respective stock option agreement).
10. 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.
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11. 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. 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.
12. Amendment and Termination of Plan. The Plan will expire on December
19, 2006, except as to options then outstanding under the Plan, which options
shall remain in effect until they have been exercised or have expired. A
majority of the members of the Board of Directors may at any time before such
date amend, modify or terminate the Plan; provided, however, that no such
amendment, modification or termination shall be effective without obtaining
the further approval of 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; and provided
further, that the Plan shall not be amended more than once every six months,
other than to comport with changes in the law. 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.
13. 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.
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Exhibit 23.2
Consent of Ernst & Young LLP
Independent Accountants
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333-00000), pertaining to the Stock Options Assumed in
Acquisition of Broad National Bancorporation, of our report dated April 30,
1999, with respect to the consolidated financial statements of Independence
Community Bank Corp. included in its Annual Report (Form 10-K) for the year
ended March 31, 1999, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
New York, New York
August 26, 1999
