As filed with the Securities and Exchange Commission on January
21, 1999
Registration No. 333-________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
BROAD NATIONAL BANCORPORATION
(Exact name of registrant as specified in its charter)
New Jersey 22-2395057
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification Number)
905 Broad Street, Newark, New Jersey 07102
(Address of Principal Executive Offices) (Zip Code)
BROAD NATIONAL BANK
LONG-TERM CAPITAL ACCUMULATION PLAN
(Full title of the plan)
Donald M. Karp, 905 Broad Street, Newark, New Jersey 07102
(Name and address of agent for service)
(973) 639-2990
(Telephone number, including area code, of agent for service)
Please send copies of all correspondence to:
STINSON, MAG & FIZZELL, P.C.
1201 Walnut Street
Kansas City, Missouri 64106
Attention: James W. Allen
(816) 842-8600
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount to offering aggregate Amount of
to be be price offering registration
registered registered per share price/1/ fee
/1/
Common Stock 100,000
$1.00 par value shares/2/ $20.1875 $2,018,750 $596
/1/ Estimated solely for purposes of calculating registration
fee, based on $20.1875, the average of the high and low
prices on January 19, 1999, pursuant to Rule 457(h) under
the Securities Act of 1933.
/2/ The provisions of Rule 416 shall apply to this Registration
Statement and the number of shares registered on this
Registration Statement automatically shall increase or
decrease as a result of stock splits, stock dividends, or
similar transactions.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into
this Registration Statement the following documents: (i) the
Registrant's quarterly reports on Form 10-Q for the quarters
ended March 31, 1998, June 30, 1998 and September 30, 1998,
respectively; (ii) the Registrant's annual report on Form 10-K
for the year ended December 31, 1997; and (iii) the description
of the Common Stock of the Registrant contained in the
Registrant's Registration Statement on Form 8-A (No. 0-16637), as
amended under cover of Form 8-A/A (filed September 18, 1997).
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after
the date hereof and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities offered hereby
remaining unsold shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of
such reports and documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of the Common Stock of the
Registrant registered pursuant to this Registration Statement has
been passed upon by Stinson, Mag & Fizzell, P.C., 1201 Walnut
Street, Kansas City, Missouri 64106. As of January 14, 1999,
attorneys of such law firm owned in the aggregate 20,709 shares
of Common Stock of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 14A:2-7 of the New Jersey Business Corporation
Act (the "NJBCA") permits a corporation, in its certificate of
incorporation, to limit or eliminate, subject to certain
statutory limitations, the liability of directors or officers of
the corporation to the corporation or its shareholders for
damages for breach of any duty owed to the corporation or its
shareholders, except for a breach of duty based on an act or
omission (a) in breach of such person's duty of loyalty to the
corporation or its shareholders, (b) not in good faith or
involving a knowing violation of law or (c) resulting in receipt
by such person of an improper personal benefit.
Article NINTH of the Certificate of Incorporation of
the Registrant contains a provision eliminating the liability of
directors and officers of the Registrant to the fullest extent
permitted or authorized by the laws of the State of New Jersey.
In addition to the foregoing, Section 14A:3-5 of the
NJBCA governs the indemnification of directors, officers and
employees of the Registrant. The following is the text of that
Section effective February 4, 1989.
(1) As used in this section,
(a) "Corporate agent" means any person who is or
was a director, officer, employee or agent of the
indemnifying corporation or of any constituent corporation
absorbed by the indemnifying corporation in a consolidation
or merger and any person who is or was a director, officer,
trustee, employee or agent of any other enterprise, serving
as such at the request of the indemnifying corporation, or
of any such constituent corporation, or the legal
representative of any such director, officer, trustee,
employee or agent;
(b) "Other enterprise" means any domestic or
foreign corporation, other than the indemnifying
corporation, and any partnership, joint venture, sole
proprietorship, trust, or other enterprise, whether or not
for profit, served by a corporate agent;
(c) "Expenses" means reasonable costs,
disbursements and counsel fees;
(d) "Liabilities" means amounts paid or incurred
in satisfaction of settlements, judgments, fines and
penalties;
(e) "Proceeding" means any pending, threatened or
completed civil, criminal, administrative or arbitrative
action, suit or proceeding, and any appeal therein and any
inquiry or investigation which could lead to such action,
suit or proceeding; and
(f) References to "other enterprises" include
employee benefit plans; references to "fines" include any
excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the
request of the indemnifying corporation" include any service
as a corporate agent which imposes duties on, or involves
services by, the corporate agent with respect to an employee
benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner the person
reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to
the best interests of the corporation" as referred to in
this section.
(2) Any corporation organized for any purpose under
any general or special law of this State shall have the power to
indemnify a corporate agent against his expenses and liabilities
in connection with any proceeding involving the corporate agent
by reason of his being or having been such a corporate agent,
other than a proceeding by or in the right of the corporation, if
(a) Such corporate agent acted in good faith and
in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation; and
(b) With respect to any criminal proceeding, such
corporate agent had no reasonable cause to believe his
conduct was unlawful. The termination of any proceeding by
judgment, order, settlement, conviction or upon a plea of
nolo contendere or its equivalent, shall not of itself
create a presumption that such corporate agent did not meet
the applicable standards of conduct set forth in paragraphs
14A:3-5(2)(a) and 14A:3-5(2)(b).
(3) Any corporation organized for any purpose under
any general or special law of this State shall have the power to
indemnify a corporate agent against his expenses in connection
with any proceeding by or in the right of the corporation to
procure a judgment in its favor which involves the corporate
agent by reason for his being or having been such corporate
agent, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation. However, in such proceeding no indemnification
shall be provided in respect of any claim, issue or matter as to
which such corporate agent shall have been adjudged to be liable
to the corporation, unless and only to the extent that the
Superior Court or the court in which such proceeding was brought
shall determine upon application that despite the adjudication of
liability, but in view of all circumstances of the case, such
corporate agent is fairly and reasonably entitled to indemnity
for such expenses as the Superior Court or such other court shall
deem proper.
(4) Any corporation organized for any purpose under
any general or special law of this State shall indemnify a
corporate agent against expenses to the extent that such
corporate agent has been successful on the merits or otherwise in
any proceeding referred to in subsections 14A:3-5(2) and
14A:3-5(3) or in defense of any claim, issue or matter therein.
(5) Any indemnification under subsection 14A:3-5(2)
and, unless ordered by a court, under subsection 14A:3-5(3) may
be made by the corporation only as authorized in a specific case
upon a determination that indemnification is proper in the
circumstances because the corporate agent met the applicable
standard of conduct set forth in subsection 14A:3-5(2) or
subsection 14A:3-5(3). Unless otherwise provided in the
certificate of incorporation or bylaws, such determination shall
be made
(a) By the board of directors or a committee
thereof, acting by a majority vote of a quorum consisting of
directors who were not parties to or otherwise involved in
the proceeding; or
(b) If such a quorum is not obtainable, or, even
if obtainable and such quorum of the board of directors or
committee by a majority vote of the disinterested directors
so directs, by independent legal counsel, in a written
opinion, such counsel to be designated by the board of
directors; or
(c) By the shareholders if the certificate of
incorporation or bylaws or a resolution of the board of
directors or of the shareholders so directs.
(6) Expenses incurred by a corporate agent in
connection with a proceeding may be paid by the corporation in
advance of the final disposition of the proceeding as authorized
by the board of directors upon receipt of an undertaking by or on
behalf of the corporate agent to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified as provided in this section.
(7) (a) If a corporation upon application of a
corporate agent has failed or refused to provide indemnification
as required under subsection 14A:3-5(4) or permitted under
subsections 14A:3-5(2), 14A:3-5(3) and 14A:3-5(6), a corporate
agent may apply to a court for an award of indemnification by the
corporation, and such court
(i) may award indemnification to the extent
authorized under subsections 14A:3-5(2) and 14A:3-5(3) and
shall award indemnification to the extent required under
subsection 14A:3-5(4), notwithstanding any contrary
determination which may have been made under subsection
14A:3-5(5); and
(ii) may allow reasonable expenses to the extent
authorized by, and subject to the provisions of, subsection
14A:3-5(6), if the court shall find that the corporate agent
has by his pleadings or during the course of the proceeding
raised genuine issues of fact or law.
(b) Application for such indemnification may be
made
(i) in the civil action in which the expenses
were or are to be incurred or other amounts were or are to
be paid; or
(ii) to the Superior Court in a separate
proceeding. If the application is for indemnification
arising out of a civil action, it shall set forth reasonable
cause for the failure to make application for such relief in
the action or proceeding in which the expenses were or are
to be incurred or other amounts were or are to be paid.
The application shall set forth the disposition of any
previous application for indemnification and shall be made in
such manner and form as may be required by the applicable rules
of court or, in the absence thereof, by direction of the court to
which it is made. Such application shall be upon notice to the
corporation. The court may also direct that notice shall be
given at the expense of the corporation to the shareholders and
such other persons as it may designate in such manner as it may
require.
(8) The indemnification and advancement of expenses
provided by or granted pursuant to the other subsections of this
section shall not exclude any other rights, including the right
to be indemnified against liabilities and expenses incurred in
proceedings by or in the right of the corporation, to which a
corporate agent may be entitled under a certificate of
incorporation, bylaw, agreement, vote of shareholders, or
otherwise; provided that no indemnification shall be made to or
on behalf of a corporate agent if a judgment or other final
adjudication adverse to the corporate agent establishes that his
acts or omissions (a) were in breach of his duty of loyalty to
the corporation or its shareholders, as defined in subsection (3)
of N.J.S. 14A:2-7, (b) were not in good faith or involved a
knowing violation of law or (c) resulted in receipt by the
corporate agent of an improper personal benefit.
(9) Any corporation organized for any purpose under
any general or special law of this State shall have the power to
purchase and maintain insurance on behalf of any corporate agent
against any expenses incurred in any proceeding and any
liabilities asserted against him by reason of his being or having
been a corporate agent, whether or not the corporation would have
the power to indemnify him against such expenses and liabilities
under the provisions of this section. The corporation may
purchase such insurance from, or such insurance may be reinsured
in whole or in part by, an insurer owned by or otherwise
affiliated with the corporation, whether or not such insurer does
business with other insureds.
(10) The powers granted by this section may be
exercised by the corporation, notwithstanding the absence of any
provision in its certificate of incorporation or bylaws
authorizing the exercise of such powers.
(11) Except as required by subsection 14A:3-5(4), no
indemnification shall be made or expenses advanced by a
corporation under this section, and none shall be ordered by a
court, if such action would be inconsistent with a provision of
the certificate of incorporation, a bylaw, a resolution of the
board of directors or of the shareholders, an agreement or other
proper corporate action, in effect at the time of the accrual of
the alleged cause of action asserted in the proceeding, which
prohibits, limits or otherwise conditions the exercise of
indemnification powers by the corporation or the rights of
indemnification to which a corporate agent may be entitled.
(12) This section does not limit a corporation's power
to pay or reimburse expenses incurred by a corporate agent in
connection with the corporate agent's appearance as a witness in
a proceeding at a time when the corporate agent has not been made
a party to the proceeding.
Article NINTH of the Certificate of Incorporation of
the Registrant provides that the Registrant shall indemnify
directors and officers of the Registrant to the full extent
permitted or authorized by the laws of the State of New Jersey.
The Certificate of Incorporation also permits the Registrant to
purchase and maintain insurance against any liability asserted
against any director or officer of the Registrant arising out of
his capacity as such.
Each of the officers and directors of the Registrant is
insured against certain liabilities which he might incur in his
capacity as an officer or director pursuant to directors' and
officers' liability insurance policies.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers or persons controlling the Registrant pursuant to the
foregoing provisions, the Registrant has been informed that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following Exhibits are filed as a part of this
Registration Statement:
Exhibit No. Description
4.1 Form of Common Stock Certificate (filed
January 24, 1994 as Exhibit 4.1 to Post-
Effective Amendment No. 1 to the Registrant's
Registration Statement on Form S-8 (No. 33-28183)
and incorporated herein by reference).
4.2 Restated Certificate of Incorporation of
the Registrant as amended through and
including June 29, 1995 (filed September 18,
1997 as Exhibit 4.2 to the Registrant's
Registration Statement under cover of Form
8-A/A (No. 0-16637) and incorporated herein
by reference).
4.2.1 Certificate of Amendment of Certificate of
Incorporation of the Registrant, respecting
the Amendment of ARTICLE THIRD to increase
the number of authorized shares of capital
stock (filed September 18, 1997 as Exhibit
4.2.1 to the Registrant's Registration
Statement under cover of Form 8-A/A (No. 0-16637)
and incorporated herein by reference).
4.2.2 Certificate of Amendment of Certificate of
Incorporation of the Registrant, respecting
the Amendment of ARTICLE THIRD to establish
certain limitations with respect to
preemptive rights of shareholders (filed
September 18, 1997 as Exhibit 4.2.2 to the
Registrant's Registration Statement under
cover of Form 8-A/A (No. 0-16637) and
incorporated herein by reference).
4.3 Broad National Bank Long-Term Capital
Accumulation Plan.
5 Opinion of Stinson, Mag & Fizzell, P.C.
23.1 Consent of Stinson, Mag & Fizzell, P.C.
(contained in Opinion filed as Exhibit 5)
23.2 Consent of KPMG LLP.
24 Power of Attorney (included on the signature page
to this Registration Statement).
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this
Registration Statement (or the most recent
post-effective amendment thereto) which, individually
or in the aggregate, represent a fundamental change in
the information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration
Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934, and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant, the
Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Newark, State of New Jersey, on January 21, 1999.
BROAD NATIONAL BANCORPORATION
By /s/ Donald M. Karp
Donald M. Karp
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby severally constitutes and appoints
Donald M. Karp, John A. Dorman and James Boyle, and each of them,
his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective
amendments) to this Registration Statement and all documents
relating thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and
perform each and every act and thing necessary or advisable to be
done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or his substitute or substitutes, lawfully may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the
following persons in the capacities and on the date indicated.
Signature and Title Date
/s/ Donald M. Karp January 21, 1999
Donald M. Karp
Chairman of the Board,
Chief Executive Officer and Director
(Principal Executive Officer)
/s/ James Boyle January 21, 1999
James Boyle
Treasurer and Comptroller
(Principal Financial and Accounting
Officer)
/s/ John A. Dorman January 21, 1999
John A. Dorman
Director
/s/ Licinio Cruz January 21, 1999
Licinio Cruz
Director
/s/ Arthur Fischman January 21, 1999
Arthur Fischman
Director
/s/ John J. Iannuzzi January 21, 1999
John J. Iannuzzi
Director
January __, 1999
James J. Lazarus
Director
/s/ Edward J. Lenihan January 21, 1999
Edward J. Lenihan
Director
January __, 1999
Stanley J. Lesnik
Director
/s/ Catherine McFarland January 21, 1999
Catherine McFarland
Director
/s/ Louis J. Owen January 21, 1999
Louis J. Owen
Director
/s/ A. Harold Schwartz January 21, 1999
A. Harold Schwartz
Director
/s/ Hubert Williams January 21, 1999
Hubert Williams
Director
INDEX TO EXHIBITS
Sequentially
Exhibit No. Description Numbered Page
4.1 Form of Common Stock Certificate (filed *
January 24, 1994 as Exhibit 4.1 to Post-
Effective Amendment No. 1 to the Registrant's
Registration Statement on Form S-8 (No. 33-28183)
and incorporated herein by reference).
4.2 Restated Certificate of Incorporation of *
the Registrant as amended through and
including June 29, 1995 (filed September 18,
1997 as Exhibit 4.2 to the Registrant's
Registration Statement under cover of Form
8-A/A (No. 0-16637) and incorporated herein
by reference).
4.2.1 Certificate of Amendment of Certificate of *
Incorporation of the Registrant, respecting
the Amendment of ARTICLE THIRD to increase
the number of authorized shares of capital
stock (filed September 18, 1997 as Exhibit
4.2.1 to the Registrant's Registration
Statement under cover of Form 8-A/A (No. 0-16637)
and incorporated herein by reference).
4.2.2 Certificate of Amendment of Certificate of *
Incorporation of the Registrant, respecting
the Amendment of ARTICLE THIRD to establish
certain limitations with respect to
preemptive rights of shareholders (filed
September 18, 1997 as Exhibit 4.2.2 to the
Registrant's Registration Statement under
cover of Form 8-A/A (No. 0-16637) and
incorporated herein by reference).
4.3 Broad National Bank Long-Term Capital __
Accumulation Plan.
5 Opinion of Stinson, Mag & Fizzell, P.C. __
23.1 Consent of Stinson, Mag & Fizzell, P.C. __
(contained in Opinion filed as Exhibit 5)
23.2 Consent of KPMG LLP. __
24 Power of Attorney (included on the signature page
to this Registration Statement).
__________________
* Incorporated herein by reference.