As filed with the Securities and Exchange Commission on September 22, 1998
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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M & T BANK CORPORATION
(Exact name of registrant as specified in its charter)
FIRST EMPIRE STATE CORPORATION
(Former name of registrant)
New York 16-0968385
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One M&T Plaza
Buffalo, New York 14203
(Address of Principal Executive Offices) (Zip Code)
M&T Bank Corporation
1983 Stock Option Plan
(Full title of the Plan)
Richard A. Lammert, Esq.
Senior Vice President and General Counsel
M&T Bank Corporation
One M&T Plaza
Buffalo, New York 14203
(716) 842-5390
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Steven Kaplan, Esq.
Arnold & Porter
555 Twelfth Street, N.W.
Washington, D.C. 20004
(202) 942-5998
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Calculation Of Registration Fee
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Share(1) Price(1) Registration Fee(2)
- ------------------- ------------ ---------------- ------------------ -------------------
Common Stock, 500,000 Shares $468.10 $234,050,000.00 $ 69,045.00
Par value $5.00
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Securities Act Rule 457(c).
(2) Additional filing fees totaling $60,959.76 were previously paid for
2,000,000 shares (as adjusted) registered with the Securities and Exchange
Commission for issuance under the 1983 Stock Option Plan under Registration
Statements No. 2-90893, No. 33-12207, No. 33-58500 and No. 33-63917.
(3) Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
incorporated herein by reference also relates to a total of up to 2,000,000
shares of the Registrant that are registered under Registration Statement No.
2-90893, filed on May 3, 1984; Registration Statement No. 33-12207, filed on
February 24, 1987; Registration Statement No. 33-58500, filed on February 18,
1993; and Registration Statement 33-63917, filed on November 2, 1995. In the
event any of such previously registered shares are offered and sold prior to the
effective date of this Registration Statement, the amount of such shares will
not be included hereunder.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by M&T Bank Corporation (File No.
1-9861) (the "Corporation") with the Securities and Exchange Commission (the
"Commission") under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated herein by reference:
(i) Annual Report on Form 10-K for the year ended December 31,
1997;
(ii) Quarterly Reports on Form 10-Q for the quarter ended March
31, 1998 and June 30, 1998;
(iii) Current Report on Form 8-K dated January 9, 1998 and filed
on February 5, 1998, Current Report on Form 8-K dated
April 1, 1998 and filed on April 10, 1998, as amended by a
Current Report on Form 8-K/A dated April 1, 1998 and filed
on May 14, 1998, and Current Report on Form 8-K dated May
29, 1998 and filed on June 2, 1998; and
(iv) The description of M&T Bank Corporation's Common Stock,
par value $5.00 per share ("Common Stock"), contained in a
registration statement on Form 8-A filed by M&T Bank
Corporation on May 27, 1998, and any amendment or report
filed for the purpose of updating such description.
All documents filed by the Corporation pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all of the securities offered hereby have been sold or which withdraws from
registration such securities then remaining unsold shall be deemed to be
incorporated in this Registration Statement by reference and to be a part hereof
from the date of filing such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference in this Registration
Statement 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. 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.
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Item 5. Interests of Named Experts and Counsel.
Richard A. Lammert, Esq., Senior Vice President and General
Counsel to the Corporation, has delivered a legal opinion to the effect that the
issuance and sale of the Corporation's Common Stock offered hereby was duly
authorized by the Corporation and that such Common Stock will be validly issued,
fully paid and non-assessable when issued. As of August 31, 1998, Mr. Lammert
was the beneficial owner of 5,735 shares of Common Stock; he held unexercised
options granted under the Corporation's 1983 Stock Option Plan to purchase
10,000 shares of Common Stock, 6,450 of which are currently exercisable, and he
was entitled to the payment of deferred compensation obligations equal to 246
shares of Common Stock to be issued to him pursuant to the Corporation's
Deferred Bonus Plan.
The financial statements incorporated in this Registration
Statement by reference to the Annual Report on Form 10-K of the Corporation for
the year ended December 31, 1997 have been so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
Documents incorporated herein by reference in the future will
include financial statements, related schedules (if required) and independent
auditors' reports, which financial statements and schedules will have been
audited to the extent and for the periods set forth in such reports by the firm
or firms rendering such reports, and, to the extent so audited and consent to
incorporation by reference is given, will be incorporated herein by reference in
reliance upon such reports given upon the authority of such firms as experts in
accounting and auditing.
Item 6. Indemnification of Directors and Officers.
Sections 722-725 of the New York Business Corporation Law permit
the indemnification of any person made or threatened to be made a party to an
action or proceeding, whether civil or criminal, other than an action brought by
or in the right of the corporation, by reason of the fact that such person is or
was a director or officer of the corporation or was serving in any capacity for
another enterprise at the request of the corporation, against judgments, fines,
amounts paid in settlement and reasonable expenses (including attorneys' fees)
actually and reasonably incurred as a result of such action or proceeding,
provided such person acted in good faith and for a purpose he or she reasonably
believed to be in, or in the case of service for another enterprise, not opposed
to, the best interests of the corporation.
With respect to a proceeding by or in the right of the
corporation, such person may be indemnified against amounts paid in settlement
and reasonable expenses (including attorneys' fees) if he or she acted in good
faith and for a purpose he or she reasonably believed to be in, or in the case
of service for another enterprise, not opposed to, the best interests of the
corporation. The statute provides, however, that no indemnification is allowed
with respect to a threatened action, pending action which is settled or
otherwise disposed of, or as to any person who is adjudged liable to the
corporation, unless and only to the extent that the court, upon application,
determines that such person is entitled to indemnification under the
circumstances.
The Bylaws of the Corporation provide that directors and officers
shall be indemnified to the fullest extent permitted by the New York Business
Corporation Law or any other applicable law; provided, however, that a director
or officer shall be indemnified with respect to any action or proceeding (or
part thereof) initiated by any such director or officer only if such action or
proceeding (or part thereof) was authorized by the board of directors. In
II-2
addition, the Corporation's Certificate of Incorporation provides that a
director of the Corporation shall, to the maximum extent permitted by the laws
of the State of New York, have no personal liability to the Corporation or any
of its stockholders for damages that may arise from any breach of duty as a
director.
The Corporation has purchased insurance insuring officers and
directors of the Corporation against certain liabilities incurred in their
capacities as such to insure the Corporation against payments which it is
obligated to make to such persons under the foregoing indemnification
provisions. Such liabilities could include liabilities arising under the
Securities Act.
The foregoing descriptions are general summaries only. Reference
is made to the full text of the Corporation's Restated Certificate of
Incorporation and Bylaws incorporated herein by reference.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed on the Index of Exhibits of this Registration
Statement have been previously filed, are filed herewith or are incorporated
herein by reference to other filings.
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 of 1933, as amended (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 end 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 a
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in
the effective 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.
II-3
Provided, however, that paragraphs (i) and (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 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 purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof; and
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 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, 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 Buffalo, State of New York, on September 22, 1998.
M&T BANK CORPORATION
By: /s/ Robert E. Sadler, Jr.
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Robert E. Sadler, Jr.
Executive Vice President
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
on September 22, 1998.
Signature Title
* Director
- --------------------------
William F. Allyn
* Director
- --------------------------
Brent D. Baird
Director
- --------------------------
John H. Benisch
* Chairman of the Board
- -------------------------- and Director
Robert J. Bennett
* Director
- --------------------------
C. Angela Bontempo
Director
- --------------------------
Robert T. Brady
Director
- --------------------------
Patrick J. Callan
* Director
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Richard E. Garman
* Director
- --------------------------
James V. Glynn
Director
- --------------------------
Roy M. Goodman
* Director
- --------------------------
Patrick W.E. Hodgson
Signature Title
Director
- --------------------------
Samuel T. Hubbard, Jr.
Director
- --------------------------
Russell A. King
* Director
- --------------------------
Lambros J. Lambros
* Director
- --------------------------
Wilfred J. Larson
* Director
- --------------------------
Reginald B. Newman, II
* Director
- --------------------------
Peter J. O'Donnell, Jr.
* Vice Chairman and Director
- --------------------------
Jorge G. Pereira
* Executive Vice President and Chief
- -------------------------- Financial Officer (Principal
Michael P. Pinto Financial Officer)
* Administrative Vice President,
- -------------------------- Controller and Assistant Secretary
Michael R. Spychala (Principal Accounting Officer)
* Director
- --------------------------
John L. Vensel
Director
- --------------------------
Herbert L. Washington
* Director
- --------------------------
John L. Wehle, Jr.
* Chief Executive Officer, President
- -------------------------- and Director (Principal Executive
Robert G. Wilmers Officer)
*By /s/ Timothy G. McEvoy
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Timothy G. McEvoy
(Attorney-in-Fact)
INDEX OF EXHIBITS
Exhibit 4.1 M&T Bank Corporation 1983 Stock Option Plan, amended and
restated as of May 29, 1998. Incorporated by reference to
Exhibit No. 10.2 to the Form 10-Q for the quarter ended June
30, 1998 (File No. 1-9861).
Exhibit 5 Opinion of Richard A. Lammert with respect to the legality of
the Common Stock being registered. Filed herewith.
Exhibit 23.1 Consent of PricewaterhouseCoopers LLP, Independent Auditors
and Accountants. Filed herewith.
Exhibit 23.2 Consent of Richard A. Lammert, contained in his opinion filed
as Exhibit 5 hereto.
Exhibit 24.1 Power of Attorney of certain officers and directors of the
Corporation. Filed herewith.
Exhibit 5
September 21, 1998
M&T Bank Corporation
One M&T Plaza
Buffalo, New York 14240
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-8
("Registration Statement") of M&T Bank Corporation (the "Corporation") related
to the registration of 500,000 shares of the Corporation's common stock, par
value $5.00 per share ("Common Stock"), which are to be offered pursuant to the
M&T Bank Corporation 1983 Stock Option Plan.
I have been requested to furnish an opinion to be included as Exhibit 5
to the Registration Statement. In conjunction with the furnishing of this
opinion, I have examined such corporate documents and have made such
investigation of matters of fact and law as I have deemed necessary to render
this opinion.
Based upon such examination and investigation, and upon the assumptions
that there will be no material changes in the documents examined and matters
investigated and that at the time of issuance there will be authorized but
unissued shares of Common Stock available to the Corporation in sufficient
amounts, I am of the opinion that the 500,000 shares of Common Stock referred to
above have been duly authorized by the Corporation and that, when issued in
accordance with the terms of the Plan, will be legally issued, fully paid and
non-assessable.
I consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Richard A. Lammert
-----------------------
Richard A. Lammert
Senior Vice President
and General Counsel
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January 9, 1998 which
appears on page 55 of the M&T Bank Corporation Annual Report on Form 10-K for
the year ended December 31, 1997. We also consent to the reference to us under
the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Buffalo, New York
September 21, 1998
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of M&T Bank Corporation, a corporation organized under the laws of the
State of New York, (the "Corporation"), hereby constitutes and appoints Richard
A. Lammert, Timothy G. McEvoy and Steven Kaplan, and each of them (with full
power to each of them to act alone), his or her true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him or her and on his or her behalf and in his or her name, place and stead,
in any and all capacities, to sign, execute and file with the Securities and
Exchange Commission (or any other governmental or regulatory authority) a
Registration Statement on Form S-8 (or any other appropriate form), and any and
all amendments (including post-effective amendments) thereto, with all exhibits
and any and all documents required to be filed with respect thereto, relating to
the registration under the Securities Act of 1933, as amended, of shares of the
Corporation's common stock authorized to be issued or sold pursuant to the
Corporation's 1983 Stock Option Plan, and of plan interests in such plan,
granting unto said attorneys, and each of them, full power and authority to do
and to perform each and every act and thing requisite and necessary to be done
in order to effectuate the same as fully to all intents and purposes as he
himself or she herself might or could do if personally present, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the 15th day of September 1998.
/s/ William F. Allyn /s/ Richard E. Garman
- ----------------------------- ---------------------------
William F. Allyn Richard E. Garman
/s/ Brent D. Baird /s/ James V. Glynn
- ----------------------------- ---------------------------
Brent D. Baird James V. Glynn
- ----------------------------- ---------------------------
John H. Benisch Roy M. Goodman
/s/ Robert J. Bennett /s/ Patrick W.E. Hodgson
- ----------------------------- ---------------------------
Robert J. Bennett Patrick W.E. Hodgson
/s/ C. Angela Bontempo
- ----------------------------- ---------------------------
C. Angela Bontempo Samuel T. Hubbard, Jr.
- ----------------------------- ---------------------------
Robert T. Brady Russell A. King
/s/ Lambros J. Lambros
- ----------------------------- ---------------------------
Patrick J. Callan Lambros J. Lambros
/s/ Wilfred J. Larson
- ----------------------------- ---------------------------
Wilfred J. Larson Herbert L. Washington
/s/ Reginald B. Newman, II /s/ John L. Wehle, Jr.
- ----------------------------- ---------------------------
Reginald B. Newman, II John L. Wehle, Jr.
/s/ Peter J. O'Donnell /s/ Robert G. Wilmers
- ----------------------------- ---------------------------
Peter J. O'Donnell Robert G. Wilmers
/s/ Jorge G. Pereira /s/ Michael P. Pinto
- ----------------------------- ---------------------------
Jorge G. Pereira Michael P. Pinto
/s/ John L. Vensel /s/ Michael R. Spychala
- ----------------------------- ---------------------------
John L. Vensel Michael R. Spychala
