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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
RULE 13D-1 AND AMENDMENTS
THERETO FILED PURSUANT TO RULE 13D-2(A)
M&T BANK CORPORATION
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(Name of Issuer)
COMMON STOCK, PAR VALUE $0.50 PER SHARE
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(Title of Class of Securities)
55261F 10 4
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(CUSIP Number)
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BRYAN SHERIDAN
ALLIED IRISH BANKS, P.L.C.
BANKCENTRE
BALLSBRIDGE
DUBLIN, IRELAND 4
IRELAND
011-353-1-641-4646
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
APRIL 1, 2003
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box: [ ].
Page 1 of 11 Pages
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CUSIP No. SCHEDULE 13D Page 2 of 11 Pages
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
ALLIED IRISH BANKS, P.L.C.
I.R.S. IDENTIFICATION NO: 13-1774656
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
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6 CITIZENSHIP OR PLACE ORGANIZATION
IRELAND
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7
SOLE VOTING POWER
26,700,000
NUMBER OF
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8
SHARES SHARED VOTING POWER
0
BENEFICIALLY
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9
OWNED BY SOLE DISPOSITIVE POWER
26,700,000
EACH
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10
REPORTING SHARED DISPOSITIVE POWER
0
PERSON WITH
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
26,700,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
22.4%
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14 TYPE OF REPORTING PERSON
HC
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CUSIP No. SCHEDULE 13D Page 3 of 11 Pages
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ITEM 1. SECURITY AND ISSUER.
This Statement on Schedule 13D (this "Schedule 13D") relates to the common
stock, par value $0.50 per share (the "M&T Common Stock"), of M&T Bank
Corporation, a New York corporation ("M&T"). The principal executive offices of
M&T are located at One M&T Plaza, Buffalo, New York 14229.
ITEM 2. IDENTITY AND BACKGROUND.
This Schedule 13D is being filed by Allied Irish Banks, p.l.c., a limited
liability company incorporated under the laws of Ireland ("AIB"), having its
principal place of business and principal office at Bankcentre, Ballsbridge,
Dublin 4, Ireland. AIB, through its subsidiaries, provides a diverse range of
banking, financial and related services, principally in Ireland, the United
Kingdom and Poland. Attached as Schedule I hereto and incorporated herein by
reference is a list containing the (a) name, (b) business address, (c)
citizenship and (d) present principal occupation or employment of each director
and executive officer of AIB.
AIB has not during the last five years been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or been a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws. To AIB's knowledge, during the last five
years, none of such directors and executive officers has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
Other than its directors and executive officers, there are no persons or
corporations controlling or ultimately in control of AIB.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Pursuant to an Agreement and Plan of Reorganization, dated as of September
26, 2002 (the "Acquisition Agreement"), by and among AIB, M&T and Allfirst
Financial Inc., a Delaware corporation and wholly owned subsidiary of AIB
("Allfirst"), a copy of which is included as Exhibit A hereto and is
incorporated herein by reference, AIB agreed to sell, and M&T agreed to
purchase, all of the outstanding shares of common stock, par value $5.00 per
share, of Allfirst, in exchange for the shares of M&T Common Stock reported
herein and cash consideration. The purchase was completed on April 1, 2003.
Promptly following the purchase, and as part of the
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CUSIP No. SCHEDULE 13D Page 4 of 11 Pages
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transaction, Allfirst was merged with and into M&T, with M&T surviving the
merger, and Allfirst Bank, Allfirst's principal banking subsidiary, was merged
with and into M&T's principal banking subsidiary, Manufacturers and Traders
Trust Company, with Manufacturers and Traders Trust Company surviving the
merger.
ITEM 4. PURPOSE OF TRANSACTION.
AIB acquired the shares of M&T Common Stock received by it pursuant to the
Acquisition Agreement for investment.
Pursuant to the Acquisition Agreement, the Amended Bylaws (as defined in
Item 6 below) and the M&T Certificate (as defined in Item 6 below), as more
fully described in Item 6 below, AIB became entitled to select four directors to
the Board of Directors of M&T and its principal bank subsidiary effective as of
April 1, 2003, and in the future will be entitled to nominate up to four
directors depending upon the percentage of M&T Common Stock then owned by AIB.
AIB also has certain additional rights, protections and obligations regarding
share ownership and corporate governance under those documents, including: the
right to certain representation on the committees of the Board of Directors of
M&T and its principal bank subsidiary; the requirement that AIB's
representatives on the M&T Board of Directors, acting through the appropriate
Board committee, consent in order to take specified corporate actions, and the
requirement for other specified corporate actions that those actions not be
opposed by AIB's committee representative and at least one other committee
member not designated by AIB; restrictions on AIB's right to own more than 25%
of the outstanding Common Stock and on AIB's right to take certain other actions
as a shareholder of M&T without the approval of the Board of Directors of M&T
except under limited circumstances; AIB's right to maintain its proportionate
ownership of M&T ; restrictions on the ability of AIB to sell its shares of
Common Stock received pursuant to the Acquisition Agreement; and M&T's right to
purchase shares of Common Stock owned by AIB that are subsequently offered for
sale by AIB in certain cases.
Except as set forth above, none of AIB or, to the knowledge of AIB, any of
the persons listed on Schedule I, has any plans or proposals that relate to or
that would result in any of the transactions described in subparagraphs (a)
through (j) of Item 4.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) AIB beneficially owns 26,700,000 shares of Common Stock, which
represents approximately 22.4% of the outstanding Common Stock (based on
approximately 118,994,198 shares of Common Stock outstanding) as of April 1,
2003.
(b) AIB has the sole power to vote and the sole power to dispose of the
shares of Common Stock reported in subparagraph (a) of Item 5.
(c) Other than the acquisition of the shares of Common Stock pursuant to
the Acquisition Agreement, AIB has not effected any transactions in the Common
Stock during the past 60 days.
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CUSIP No. SCHEDULE 13D Page 5 of 11 Pages
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(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
GENERAL
The Acquisition Agreement includes a number of terms relating to the
corporate governance of M&T and related matters. Certain of these terms are
reflected in amended and restated bylaws adopted by M&T upon the closing of the
transactions contemplated by the Acquisition Agreement (the "Amended Bylaws"), a
copy of which is included as Exhibit B and is incorporated herein by reference,
and the ability of M&T to modify such bylaw provisions is limited by M&T's
certificate of incorporation as amended pursuant to the terms of the Acquisition
Agreement (as amended, the "M&T Certificate"), a copy of which amendment is
included as Exhibit C and is incorporated herein by reference.
BOARD AND COMMITTEE REPRESENTATION
Effective as of April 1, 2003, M&T appointed the following AIB
designees to the Board of Director of M&T and to the board of Directors of
Manufacturers and Traders Trust Company, M&T's principal bank subsidiary ("M&T
Bank"): Michael D. Buckley, AIB Group Chief Executive; Gary Kennedy, AIB Group
Director, Finance and Enterprise Technology; and Eugene J. Sheehy, the former
Chairman and Chief Executive Officer of Allfirst. A fourth AIB designee will
also join the Boards of Directors of M&T and M&T Bank in due course. Mr. Buckley
also joined the Executive Committee and the Nomination and Compensation
Committee of the Board of Directors of M&T and the Executive Committee of the
Board of Directors of M&T Bank.
For as long as AIB remains a significant shareholder of M&T, AIB will have
representation on the Boards of Directors of both M&T and M&T Bank as follows:
o As long as AIB holds at least 15% of the outstanding shares of M&T Common
Stock, AIB will be entitled to designate, and the M&T board will nominate and
recommend for election, four persons on both the M&T and M&T Bank Boards of
Directors, and to representation on specified key Board of Directors
committees.
o AIB holds at least 10%, but less than 15%, of the outstanding shares of
M&T Common Stock, AIB will be entitled to designate, and the M&T board will
nominate and recommend for election, at least two people on both the M&T and
M&T Bank Boards of Directors.
o AIB's ownership interest in M&T is at least 5%, but less than 10%, of the
outstanding shares of M&T Common Stock, AIB will be entitled to designate,
and the Board of Directors of M&T will nominate and recommend for election,
at least one person on both the M&T and M&T Bank Boards of Directors.
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CUSIP No. SCHEDULE 13D Page 6 of 11 Pages
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As long as AIB holds at least 15% of the outstanding shares of M&T Common Stock,
neither the board of directors of M&T nor M&T Bank will consist of more than 28
directors without the consent of AIB.
If AIB's holdings of M&T Common Stock fall below 15%, but not lower than
12% of the outstanding shares of M&T Common Stock, AIB will continue to have the
same rights that it would have had if it owned 15% of the outstanding shares of
M&T Common Stock, as long as AIB restores its ownership percentage to 15% within
one year. Additionally, as described in more detail below, the Acquisition
Agreement requires M&T to repurchase shares of M&T Common Stock in order to
offset dilution to AIB's ownership interest that may otherwise be caused by
issuances of M&T Common Stock under M&T employee and director benefit or stock
purchase plans. Dilution of AIB's ownership position caused by such issuances
will not be counted in determining whether a Sunset Date has occurred or whether
any of AIB's other rights under the Acquisition Agreement have terminated. The
date on which AIB no longer holds at least 15% of the M&T Common Stock,
calculated as described in this paragraph, is referred to herein as the "Sunset
Date."
Pursuant to the Acquisition Agreement, M&T was entitled to designate one
individual, reasonably acceptable to AIB, to the AIB board of directors. M&T
selected as its designee Mr. Robert Wilmers, Chairman, President and Chief
Executive Officer of M&T Bank Corporation, who joined the AIB Board of Directors
effective April 1, 2003.
AMENDED BYLAWS
The Amended Bylaws provide that, until the Sunset Date, the M&T board may
not take or make any recommendation to M&T shareholders regarding the following
actions without the approval of the Executive Committee of the Board of
Directors of M&T, including the approval of the AIB designee serving on that
Committee:
o Any amendment of the M&T Certificate or the Amended Bylaws that would be
inconsistent with the rights described herein or that would otherwise have an
adverse effect on the board representation, committee representation or other
rights of AIB contemplated by the Acquisition Agreement;
o Any activity not permissible for a U.S. bank holding company;
o The adoption of any shareholder rights plan or other measures having the
purpose or effect of preventing or materially delaying completion of any
transaction involving a change in control of M&T ; or
o Any public announcement disclosing M&T's desire or intention to take any of
the foregoing actions.
The Amended Bylaws also provide that, until the Sunset Date, the M&T Board
of Directors may only take or make any recommendation to M&T shareholders
regarding the
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CUSIP No. SCHEDULE 13D Page 7 of 11 Pages
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following actions if the action has been approved by the Executive
Committee of the Board of Directors of M&T (in the case of the first four items
and sixth item below) or the Nomination and Compensation Committee of the Board
of Directors of M&T (in the case of the fifth item below) and the members of
such Committee not voting in favor of the action do not include the AIB designee
serving on such committee and at least one other member of such Committee who is
not an AIB designee:
o Any reduction in M&T's cash dividend policy such that the ratio of cash
dividends to net income is less than 15%, or any extraordinary dividends or
distributions to holders of M&T Common Stock;
o Any acquisition of any assets or businesses, (1) if the consideration is in
M&T Common Stock, where the stock consideration paid by M&T exceeds 10% of
the aggregate voting power of M&T Common Stock and (2) if the consideration
is cash, M&T stock or other consideration, where the fair market value of the
consideration paid by M&T exceeds 10% of the market capitalization of M&T, as
determined under the Acquisition Agreement;
o Any sale of any assets or businesses in which the value of the aggregate
consideration to be received exceeds 10% of the market capitalization of M&T,
as determined under the Acquisition Agreement;
o Any liquidation or dissolution of M&T ;
o The appointment or election of the Chairman of the Board of Directors
or the Chief Executive Officer of M&T ; or
o Any public announcement disclosing M&T's desire or intention to take any of
the foregoing actions prior to obtaining the requisite committee approval.
In connection with the Acquisition Agreement, M&T's certificate of
incorporation was amended to provide that the provisions of the Amended Bylaws
described above will not be amended or repealed without the unanimous approval
of the entire M&T Board of Directors or the approval of the holders of not less
than 80% of the outstanding shares of M&T Common Stock. The provisions of the
Amended Bylaws described above will automatically terminate when AIB holds less
than 5% of the outstanding shares of M&T Common Stock, as determined under the
Acquisition Agreement.
INVESTMENT PARAMETERS
The Acquisition Agreement provides that, until the second anniversary of
the Sunset Date, without the prior written consent of the M&T board, AIB will
not, directly or indirectly, acquire or offer to acquire (except by way of stock
dividends, offerings made available to M&T shareholders generally, or pursuant
to compensation plans) more than 25% of the then outstanding shares of M&T
Common Stock. Further, during this period, AIB and AIB's subsidiaries have
agreed not to participate in any proxy solicitation or to otherwise seek to
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CUSIP No. SCHEDULE 13D Page 8 of 11 Pages
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influence any M&T shareholder with respect to the voting of any shares of M&T
Common Stock for the approval of any shareholder proposals.
The Acquisition Agreement also provides that, during this period, AIB will
not make any public announcement with respect to any proposal or offer by AIB or
any AIB subsidiary with respect to certain transactions (such as mergers,
business combinations, tender or exchange offers, the sale or purchase of
securities or similar transactions) involving M&T or any of the M&T
subsidiaries. The Acquisition Agreement also provides that, during this period,
AIB may not subject any shares of M&T Common Stock to any voting trust or voting
arrangement or agreement and will not execute any written consent as a
shareholder with respect to the M&T Common Stock.
The Acquisition Agreement also provides that, during this period, AIB will
not seek to control or influence the management, the board of directors of M&T
or policies of M&T, including through communications with shareholders of M&T or
otherwise, except through non-public communications with the directors of M&T,
including the AIB designees.
The foregoing restrictions on AIB will no longer apply if a third party
commences or announces its intention to commence a tender offer or an exchange
offer and, within a reasonable time, the M&T board either does not recommend
that shareholders not accept the offer or fails to adopt a shareholders rights
plan, or if M&T or M&T Bank becomes subject to any regulatory capital directive
or becomes an institution in "troubled" condition under applicable banking
regulations. However, in the event the tender offer or exchange offer is not
commenced or consummated in accordance with its terms, the restrictions on AIB
described above will thereafter continue to apply.
ANTI-DILUTION PROTECTIONS
M&T has agreed that, until the Sunset Date, if it issues shares of M&T
stock (other than certain issuances to employees pursuant to option and benefit
plans), subject to applicable law and regulatory requirements, AIB will have the
right to purchase at fair market value up to the number of shares of M&T Common
Stock required to increase or maintain its equity interest in M&T to 22.5% of
the then outstanding shares of M&T Common Stock.
M&T has also agreed that following the Closing Date until the Sunset Date,
in connection with any issuance of M&T stock pursuant to employee option or
benefit plans, M&T will, as soon as reasonably practicable (taking into account
applicable law, regulatory capital requirements, capital planning and risk
management), take such necessary actions so that AIB's proportionate ownership
of M&T Common Stock is not reduced as a result of such issuances, including by
funding such issuances through purchases of M&T Common Stock in the open market
or by undertaking share repurchase programs. Under the Acquisition Agreement,
M&T agreed that it would, subject to applicable law, in the event that, as of
the Closing Date, the stock that AIB is entitled to receive in the Exchange
represents less than 22.5% of M&T's outstanding common stock, M&T will
repurchase prior to December 31, 2003 a sufficient number of shares of
outstanding M&T Common Stock so that the amount of stock that AIB was entitled
to receive
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CUSIP No. SCHEDULE 13D Page 9 of 11 Pages
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as of the Closing Date will equal 22.5% of the issued and outstanding
shares of M&T Common Stock. If for any reason M&T does not repurchase shares as
required by the first sentence of this paragraph within one year following the
employee issuance, or as required by the second sentence of this paragraph by
December 31, 2003, then the shares of M&T Common Stock issued pursuant to such
employee issuance will be deemed to be an issuance occurring on the last day of
the relevant period and will entitle AIB to the anti-dilution purchase rights
described in the immediately preceding paragraph. No reduction in AIB's
percentage ownership of the outstanding M&T Common Stock resulting from any
issuance of shares that are subject to M&T's repurchase obligations as described
in this paragraph will be taken into account in determining whether the Sunset
Date has occurred or whether any of AIB's other rights under the Acquisition
Agreement have terminated.
SALE OF M&T COMMON STOCK; RIGHT OF FIRST REFUSAL IN CERTAIN CIRCUMSTANCES
The M&T Common Stock issued to AIB under the Acquisition Agreement were
not registered under the Securities Act of 1933 ("Securities Act") and may only
be disposed of by AIB pursuant to an effective registration statement or
pursuant to an exemption from registration under the Securities Act and subject
to the provisions of the Acquisition Agreement. The shares of M&T Common Stock
issued to AIB under the Acquisition Agreement are the subject of a Registration
Rights Agreement entered into between AIB and M&T as of April 1, 2003, a copy of
which is included as Exhibit D hereto and is incorporated herein by reference.
The Registration Rights Agreement provides that, upon AIB's request, M&T
will file a registration statement relating to all or a portion of AIB's shares
of M&T Common Stock providing for the sale of such shares by AIB from time to
time on a continuous basis pursuant to Rule 415 under the Securities Act,
provided that M&T is only required to effect one such "shelf registration" in
any 12-month period. In addition, the Registration Rights Agreement provides
that AIB is entitled to demand registration under the Securities Act of all or
part of its shares of M&T stock, provided that M&T is not required to effect two
such "demand registrations" in any 12-month period. Any demand or shelf
registration must cover at least one million shares.
The Registration Rights Agreement further provides that in the event M&T
proposes to file a registration statement other than pursuant to a shelf
registration or demand registration or Forms S-8 or S-4, for an offering and
sale of shares by M&T in an underwritten offering or an offering and sale of
shares on behalf of one or more selling shareholders, M&T must give AIB notice
at least 15 days prior to the anticipated filing date, and AIB may request that
all or a portion of its M&T common shares be included in the registration
statement. M&T will honor the request unless the managing underwriter advises
M&T in writing that in its opinion the inclusion of all shares requested to be
included by M&T, the other selling shareholders, if any, and AIB would
materially and adversely affect the offering, in which case M&T may limit the
number of shares included in the offering to a number that would not reasonably
be expected to have such an effect. In such event, the number of shares to be
included in the registration statement shall first include the number of shares
requested to be included by M&T and then the shares requested by other selling
shareholders, including AIB, on a pro rata basis according to the number of
shares requested to be included in the registration statement by each
shareholder.
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CUSIP No. SCHEDULE 13D Page 10 of 11 Pages
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Under the Acquisition, AIB has agreed that as long as it holds 5% or more
of the outstanding shares of M&T Common Stock, AIB will not dispose of any of
its shares of M&T Common Stock except, subject to the terms and conditions of
the Acquisition Agreement and applicable law: in a widely dispersed public
distribution; a private placement in which no one party acquires the right to
purchase more than 2% of the outstanding shares of M&T Common Stock; an
assignment to a single party (such as a broker or investment banker) for the
purpose of conducting a widely dispersed public distribution on AIB's behalf;
pursuant to Rule 144 under the Securities Act; pursuant to a tender or exchange
offer to M&T's shareholders not opposed by M&T's board of directors, or open
market purchase programs made by M&T ; with the consent of M&T, which consent
will not be unreasonably withheld, to a controlled subsidiary of AIB; or
pursuant to M&T's right of first refusal as described below.
The Acquisition Agreement provides that until AIB no longer holds at least
5% of the outstanding shares of M&T Common Stock, if AIB wishes to sell or
otherwise transfer any of its shares of M&T Common Stock other than as described
in the preceding paragraph, AIB must first submit an offer notice to M&T
identifying the proposed transferee and setting forth the proposed terms of the
transaction, which shall be limited to sales for cash, cash equivalents or
marketable securities. M&T will have the right, for 20 days following receipt of
an offer notice from AIB, to elect to purchase all (but not less than all) of
the shares of M&T Common Stock that AIB wishes to sell, on the proposed terms
specified in the offer notice. If M&T declines or fails to respond to the offer
notice within 20 days, AIB may sell all or a portion of the M&T shares specified
in the offer notice to the proposed transferee at a purchase price equal to or
greater than the price specified in the offer notice, at any time during the
three months following the date of the offer notice, or, if prior notification
to or approval of the sale by the Federal Reserve or another regulatory agency
is required, AIB shall pursue regulatory approval expeditiously and the sale may
occur on the first date permitted under applicable law.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
EXHIBIT DOCUMENT
Exhibit A Agreement and Plan of Reorganization,
dated as of September 26, 2003, by and
among Allied Irish Banks, p.l.c.,
Allfirst Financial Inc. and M&T Bank
Corporation.
Exhibit B Amended and Restated Bylaws of M&T
Bank Corporation
Exhibit C Amendment to the Certificate of
Incorporation of M&T Bank Corporation.
Exhibit D Registration Rights Agreement, dated
as of April 1, 2003, by and between
Allied Irish
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CUSIP No. SCHEDULE 13D Page 11 of 11 Pages
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Banks, p.l.c. and M&T Bank Corporation
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: April 10, 2003
ALLIED IRISH BANKS, p.l.c.
By: /s/: William M. Kinsella
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Name: William M. Kinsella
Title: Secretary
Schedule I
The names, present principal occupations and business addresses of the
directors and executive officers of Allied Irish Banks, p.l.c., as the Reporting
Person ("AIB"), are set forth below. If no address is given, the director's or
executive officer's principal business address is that of the principal
executive offices of AIB.
NAME AND BUSINESS ADDRESS PRINCIPAL OCCUPATION CITIZENSHIP
Lochlann Quinn (director) Chairman of AIB Ireland
Michael Buckley (director Group Chief Executive of Ireland
and executive officer) AIB
Adrian Burke (director) Chartered Accountant Ireland
Padraic M. Fallon Chairman, Euromoney Ireland
(director) Institutional Investor PLC
Dermot Gleeson (director) Barrister Ireland
Don Godson (director) Company Director Ireland
Derek A. Higgs (director) Director United Kingdom
Gary Kennedy (director Group Director, Ireland
and executive officer) Finance and Enterprise
Technology of AIB
John B. McGuckian Chairman of Ulster Ireland
(director) Television plc
Carol Moffett (director) Director Ireland
Jim O'Leary (director) University Lecturer Ireland
Michael J. Sullivan Attorney-at-law United States
(director)
Robert Wilmers (director) Chairman, President and United States
Chief Executive Officer
of M&T Bank Corporation
Gerry Byrne (executive Managing Director, Poland Ireland
officer) Division
Colm Doherty (director and Managing Director, Ireland
executive officer) Capital Markets Division,
of AIB
Michael J. Lewis Head of Strategic Human Ireland
(executive officer) Resources of AIB
Aidan McKeon (director and Managing Director, AIB Ireland
executive officer) Bank GB & NI
Declan McSweeney Chief Financial Officer Ireland
(executive officer) of AIB
Shom Bhattacharya (executive Group Chief Risk India
officer) Officer of AIB
Donald Forde (executive Managing Director, Ireland
officer) AIB Bank
EXHIBIT INDEX
EXHIBIT DOCUMENT
Exhibit A Agreement and Plan of Reorganization,
dated as of September 26, 2002, by and
among Allied Irish Banks, p.l.c.,
Allfirst Financial Inc. and M&T Bank
Corporation (incorporated herein by
reference to Exhibit 2 to the Current
Report on Form 8-K filed by M&T Bank
Corporation with the Commission on
October 3, 2002).
Exhibit B Amended and Restated Bylaws of M&T
Bank Corporation (incorporated herein
by reference to Appendix E to the
Definitive Merger Proxy on Schedule
14A filed by M&T Bank Corporation with
the Commission on November 5, 2002).
Exhibit C Amendment to the Certificate of
Incorporation of M&T Bank Corporation
(incorporated herein by reference to
Appendix C to the Definitive Merger
Proxy on Schedule 14A filed by M&T
Bank Corporation with the Commission
on November 5, 2002).
Exhibit D Registration Rights Agreement, dated
as of April 1, 2003, by and between
Allied Irish Banks, p.l.c. and M&T Bank
Corporation.
Exhibit D
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and
entered into as of April 1, 2003, by and between M&T Bank Corporation, a New
York corporation (together with its permitted successors and assigns,
"COMPANY"), and Allied Irish Banks, p.l.c., a limited liability company
incorporated under the laws of Ireland (together with its permitted successors
and assigns, the "SHAREHOLDER").
WHEREAS, pursuant to the Agreement and Plan of Reorganization by and
among Shareholder, Allfirst Financial Inc. and Company, dated as of September
26, 2002 (the "REORGANIZATION AGREEMENT"), Shareholder has the right to receive
26,700,000 shares of common stock, par value $0.50, of the Company (the
"SHARES"); and
WHEREAS, pursuant to Section 7.4 of the Reorganization Agreement,
the Company and Shareholder have agreed to enter into this Agreement effective
as of the Closing (as defined in the Reorganization Agreement);
NOW, THEREFORE, the parties hereto, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
intending to be bound hereby agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
"AGREEMENT" shall have the meaning set forth in the preamble hereto.
"BUSINESS DAY" shall mean any day that the New York Stock Exchange
is normally open for trading for a full day and that is not a Saturday, a Sunday
or a day on which banks in the City of New York are authorized or required to
close for regular banking business.
"COMMON STOCK" shall mean the common stock, par value $0.50 per
share, of Company, or any other shares of capital stock of Company into which
such stock shall be reclassified or changed (by operation of law or otherwise).
"COMPANY" shall have the meaning set forth in the preamble hereto.
"COMPANY REGISTRATION STATEMENT" shall have the meaning set forth in
Section 4(a) hereof.
"DELAY PERIOD" shall have the meaning set forth in Section 2(b)
hereof.
"DEMAND REGISTRATION" shall have the meaning set forth in Section 3
hereof.
"EFFECTIVE DATE" shall have the meaning set forth in Section 2(b)
hereof.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in Section
2(b) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"REORGANIZATION AGREEMENT" shall have the meaning set forth in the
recitals hereto.
"PERSON" shall mean an individual, corporation, limited liability
company, partnership, joint venture, joint stock company, association, trust,
unincorporated entity or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof, whether acting in
an individual, fiduciary or other capacity.
"PROSPECTUS" shall mean the prospectus included in any registration
statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A), as amended or supplemented
by any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Shares covered by such registration statement and all
other amendments and supplements to the prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such prospectus.
"REGISTRABLE SHARES" shall means the Shares, any shares of Common
Stock acquired by Shareholder on or after the date hereof not in violation of
the terms of the Reorganization Agreement, and any shares of Common Stock paid,
issued or distributed in respect of such shares by way of stock dividends or
distribution or stock split or in connection with a combination of shares,
recapitalization, reorganization, merger or otherwise, until in the case of any
such shares (i) such shares have been disposed of by Shareholder pursuant to
such effective registration statement under the Securities Act, or (ii) such
share may be transferred by Shareholder without registration or other
restriction pursuant to the Rule 144(k) under the Securities Act or any
successor rule and Company has removed any restrictive legend on the share
certificate evidencing such share.
"REGISTRATION STATEMENT" shall mean the registration statement of
Company filed with the SEC that covers any of the Registrable Shares pursuant to
the provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
2
"SHAREHOLDER" shall have the meaning set forth in the recitals
hereof.
"SHELF REGISTRATION" shall have the meaning set forth in Section
2(a) hereof.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" means a
registration in which securities of Company are sold to or through one or more
underwriters for reoffering or sale to the public.
SECTION 2. SHELF REGISTRATION.
(a) Upon a request by Shareholder, Company shall file a Registration
Statement under the Securities Act relating to all or part of the Registrable
Shares, which Registration Statement provides for the sale by Shareholder of
Registrable Shares from time to time on a delayed or continuous basis pursuant
to Rule 415 under the Securities Act (the "SHELF REGISTRATION"); provided that
Company shall not be obligated (i) to effect more than one Shelf Registration in
any 12-month period, or (ii) to effect a Shelf Registration for less than one
million shares of Common Stock.
(b) Company agrees to use its reasonable best efforts to cause the SEC to
declare the Shelf Registration effective (the date of initial effectiveness
being referred to herein as the "EFFECTIVE DATE") as soon as practicable and to
keep the Shelf Registration continuously effective and usable for the resale of
Registrable Shares for a period ending on the date on which all the Registrable
Shares covered by such Shelf Registration have been sold. The foregoing
notwithstanding, Company shall have the right to suspend the use of the Shelf
Registration for a reasonable length of time (a "DELAY PERIOD") and from time to
time if the Chief Executive Officer, Chief Financial Officer or General Counsel
of Company shall determine in good faith that such use (A) would require
disclosure by Company that would materially interfere with a material financing,
merger, sale or acquisition of assets, recapitalization or other similar
corporate action of Company that is pending or expected by Company to occur or
be announced during the Delay Period or (B) would require pre-mature disclosure
of non-public information the disclosure of which, in the good faith
determination of the Chief Executive Officer, Chief Financial Officer or General
Counsel of Company, would be materially adverse to Company or with respect to
which Company has a bona fide business purpose for keeping such information
confidential, it being understood and agreed that while Company is under no
obligation to disclose any such information for the purpose of permitting any
such sale, Company shall endeavor to limit any Delay Period to the period
reasonably necessary for the foregoing purposes, and in exercising its right to
impose Delay Periods shall not treat Shareholder more restrictively than it does
directors and executive officers of Company who have access to such information.
Company shall provide written notice (to the extent practicable) no fewer than 5
Business Days prior to commencement of a Delay Period and promptly upon the end
of any Delay Period to Shareholder and Shareholder shall cease all disposition
efforts with respect to Registrable Shares held by it immediately upon the
beginning of any Delay Period until notified of the end of such Delay Period.
3
(c) Company shall use its reasonable best efforts to remain eligible to
register securities on Form S-3, including meeting the registrant requirements
set forth in the instructions to Form S-3.
SECTION 3. DEMAND REGISTRATION.
Shareholder may make a written request for registration under the
Securities Act of all or part of its Registrable Securities (a "DEMAND
REGISTRATION"); provided that the Company shall not be obligated (i) to effect
more than two Demand Registrations in any 12-month period, or (ii) to effect a
Demand Registration for less than one million shares of Common Stock. Such
request will specify the number of shares of Registrable Securities proposed to
be sold and will also specify the intended method of disposition thereof.
SECTION 4. PIGGYBACK REGISTRATION.
(a) If Company proposes to file a registration statement (other than a
registration statement filed pursuant to Sections 2 or 3 or a registration
statement on Form S-8 or Form S-4, or their successors) for an offering and sale
of shares of Common Stock by Company in an underwritten offering or an offering
and sale of shares of Common Stock by one or more selling shareholders, or both
the Company and one or more selling shareholders (a "COMPANY REGISTRATION
STATEMENT"), it will, prior to such filing, give written notice to Shareholder
of its intention to do so at least 15 days prior to the anticipated filing date
of such Company Registration Statement; provided, that Company shall not be
required to give any notice if the Company Registration Statement is
underwritten and the underwriter(s) thereof shall have advised Company in
writing that inclusion of any securities, other than those to be sold by
Company, would materially and adversely affect the offering. Company's written
notice shall offer to include in such registration statement for offer to the
public such number of Registrable Shares as Shareholder may request, subject to
the conditions set forth herein, and shall specify, to the extent then known,
the number and class and securities proposed to be registered, the proposed date
of filing of such registration statement, any proposed means of distribution of
such securities, any other shareholder of the Company with the right to have
shares of Company Common Stock registered thereon, any proposed managing
underwriter or underwriters of such securities and (if available or as soon as
available) a good faith estimate (which may be a range) by Company of the
proposed maximum offering price of such securities, as such price is proposed to
appear on the facing page of such registration statement. Upon the written
request of Shareholder to Company given within 10 days after Company provides
such notice, Company shall use its reasonable best efforts to cause all
Registrable Shares which Company has been requested by Shareholder to register
to be included in such Company Registration Statement. Company shall have the
right to postpone, suspend or withdraw any Company Registration Statement
without obligation to Shareholder. The right of Shareholder to include its
Registrable Shares in any Company Registration Statement shall be conditioned
upon Shareholder's participation in the underwriting for such Company
Registration Statement on the terms set forth herein. Shareholder shall enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for the underwriting by Company with
4
respect to shares sold by it. Notwithstanding any other provision of this
Section 4, if the managing underwriter advises Company in writing that in its
opinion the inclusion of all shares requested to be registered by Company and
any selling shareholders (including Shareholder) would materially and adversely
affect the offering, Company may limit the number of Registrable Shares to be
included in the Company Registration Statement and underwriting to a number that
would not reasonably be expected to have such affect. In such event, Company
shall so advise Shareholder, and the number of shares that are entitled to be
included in the Company Registration Statement and underwriting shall be
allocated in the following manner:
(i) First, the securities of Company to be issued by Company shall be
included in the Company Registration Statement.
(ii) Second, the securities of Company held by Shareholder and other
holders of securities of Company who are entitled by contract with Company
to have securities included in such a registration statement shall be
included in the Company Registration Statement, on a pro rata basis based
upon the number of securities of Company requested by Shareholder and such
other holders to be included in such Company Registration Statement.
SECTION 5. REGISTRATION PROCEDURES.
(a) In connection with the registration obligations of Company pursuant to
and in accordance with Sections 2, 3 and 4 hereof (and subject to Company's
rights under Sections 2, 3 and 4 hereof), Company shall use its reasonable best
efforts to effect the registration of such Registrable Securities as
expeditiously as possible, and in connection with such registration:
(i) with respect to a Demand Registration and a Piggyback
Registration, Company will use its reasonable best efforts to file such
registration statement to permit the sale of such Registrable Shares in
accordance with the intended method or methods of disposition thereof, and
use reasonable best efforts to cause such filed registration statement to
become effective, and to remain effective for a period of not less than 90
days;
(ii) prepare and file with the SEC such amendments (including
post-effective amendments) to such registration statement, and such
supplements to such Prospectus, as may be required by the rules,
regulations or instructions applicable to the Securities Act or the rules
and regulations thereunder or any applicable state securities laws during
the applicable period in accordance with the intended methods of
disposition by the sellers thereof and cause such Prospectus as so
supplemented to be filed pursuant to Rule 424 under the Securities Act;
5
(iii) notify Shareholder promptly and, if requested, confirm such
notice in writing, (v) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same has
become effective, (w) of any request by the SEC for amendments or
supplements to such registration statement or related Prospectus (including
any SEC "comment letter") or for additional information regarding
Shareholder, (x) of the issuance by the SEC of any stop order suspending
the effectiveness of such registration statement or the initiation of any
proceedings for that purpose, (y) of the receipt by Company of any
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Shares for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose and (z) at any time when a prospectus relating to Registrable
Securities is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in such
registration statement contains an untrue statement of a material fact or
omits any fact necessary to make the statements therein not misleading;
(iv) use reasonable best efforts to obtain the prompt withdrawal of
any order suspending the effectiveness of such registration statement, or
the prompt lifting of any suspension of the qualification or exemption from
qualification of any of the Registrable Shares for sale in any jurisdiction
in the United States;
(v) if requested by Shareholder, furnish to Shareholder, without
charge, copies of such registration statement as declared effective by the
SEC and of each post-effective amendment thereto, in each case including
financial statements and schedules and all exhibits and reports
incorporated or deemed to be incorporated therein by reference; and such
number of copies of the preliminary Prospectus, each amended preliminary
Prospectus, each final Prospectus and each post-effective amendment or
supplement thereto, as Shareholder may reasonably request in order to
facilitate the disposition of the Registrable Shares in conformity with the
requirement of the Securities Act (Company hereby consenting to such use of
such documents);
(vi) except during any Delay Period, upon the occurrence of any event
contemplated by paragraph 5(a)(iii)(w) or 5(a)(iii)(z) above, promptly
prepare a supplement or post-effective amendment to such registration
statement or related Prospectus or any document incorporated or deemed to
be incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable Shares
being sold thereunder, such Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make
6
the statements therein, in light of the circumstances under which they were
made, not misleading;
(vii) cause all Registrable Shares covered by such registration
statement to be listed on each U.S. securities exchange, if any, on which
similar securities issued by Company are then listed;
(viii) use its reasonable best efforts to obtain all necessary state
securities law or "Blue Sky" permits and approvals required for the sale of
the Registrable Shares;
(ix) subject to receiving reasonable assurances of confidentiality,
make available for inspection by Shareholder, any underwriter participating
in any disposition pursuant to such registration statement and any
attorney, accountant or other agent retained by Shareholder or such
underwriter, all financial and other records, pertinent corporate documents
and properties of Company, and cause the managers, officers, members,
employees and independent accountants of Company to supply all information
reasonably requested by any Shareholder, underwriter, attorney, accountant
or agent in connection with such registration statement;
(x) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to
Shareholder, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day
of the first full calendar quarter of Company after the effective date of
the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder;
(xi) permit Shareholder, if it might be deemed to be an underwriter or
a controlling person of the Company to participate in the preparation of
such registration or comparable statement and to request the insertion
therein of material, furnished to the Company in writing, which in the
reasonable judgment of Shareholder and its counsel should be included, and
Company shall include such material, unless in the reasonable judgment of
Company and its counsel, the material should be not included;
(xii) obtain a "comfort" letter from the independent public
accountants of Company in customary form and covering such matters of the
type customarily covered by "comfort" letters as Shareholder reasonably
requests; and
(xiii) otherwise facilitate such registration and related offering.
7
(b) Company may require Shareholder to furnish such information regarding
the distribution of such Registrable Shares and as to Shareholder as it may from
time to time reasonably request.
(c) Shareholder agrees by inclusion of such Registrable Shares in a
registration statement that, upon receipt of any notice from Company of the
happening of any event of the kind described in clauses (w), (x), (y) or (z) of
Section 5(a)(iii) hereof or upon notice of the commencement of any Delay Period,
it shall forthwith discontinue disposition of such Registrable Shares covered by
such registration statement or Prospectus pursuant to such registration
statement until its receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 5(a)(vi) hereof, or until it is advised in
writing by Company that the use of the applicable Prospectus may be resumed, and
has received copies of any amended or supplemented Prospectus or any additional
or supplemental filings which are incorporated, or deemed to be incorporated, by
reference in such Prospectus and, if requested by Company, Shareholder shall
deliver to Company (at the expense of Company) all copies, other than permanent
file copies then in Shareholder's possession, of the Prospectus covering such
Registrable Shares at the time of receipt of such request. Shareholder further
agrees not to utilize any material other than the applicable current Prospectus
in connection with the offering of Registrable Shares pursuant to a registration
statement.
(d) If Shareholder desires to effect the sale and distribution of some or
all of the Registrable Securities covered by a registration statement by means
of an underwriting, it shall so advise Company, and Company and Shareholder
shall enter into an underwriting agreement in customary form (including
customary indemnification and contribution provisions on the part of Company)
for such purpose and shall otherwise cooperate reasonably with respect to such
underwriting. The underwriter(s) shall be selected by Shareholder and shall be
reasonably acceptable to Company.
SECTION 6. INDEMNIFICATION AND CONTRIBUTION.
(a) Company will indemnify and hold harmless Shareholder and each Person
who participates as an underwriter, each Person, if any, who controls the
Shareholder or such underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, and their respective agents,
employees, officers and directors (including those of such controlling Person)
against any losses, claims, damages or liabilities to which such indemnified
party may become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages, judgments, liabilities or reasonable expenses (or any
action in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any registration
statement pursuant to which Registrable Securities were registered under the
Securities Act or Prospectus or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such indemnified parties for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending against such loss, claim, damage, judgment or
liability as such expenses are incurred; PROVIDED, HOWEVER, that Company
8
shall not be liable in any such case to the extent any such loss, claim, damage,
judgment, liability or reasonable expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with information furnished in
writing to Company by such indemnified party specifically for use in the
preparation thereof; PROVIDED, FURTHER, that Company shall not be liable to any
indemnified party hereunder with respect to the registration statement or
Prospectus to the extent that any such loss, claim, damage, judgment, liability
or reasonable expense of such indemnified party results solely from an untrue
statement of a material fact contained in, or the omission of a material fact
from, the registration statement or Prospectus which untrue statement or
omission was corrected in an amended or supplemented registration statement or
Prospectus, if the Person alleging such loss, claim, damage or liability was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the amended or supplemented registration statement or Prospectus if Company had
previously furnished copies thereof to such indemnified party and such
indemnified party was required under the Securities Act to deliver such amended
or supplemented registration statement or Prospectus.
(b) Shareholder will indemnify and hold harmless Company, each Person who
participates as an underwriter, each Person, if any, who controls the
Shareholder or such underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, and their respective agents,
employees, officers and directors (including those of such controlling Person)
against any losses, claims, damages, judgments, liabilities or reasonable
expenses to which each such indemnified party may become subject, under the
Securities Act or otherwise, to the same extent as the foregoing indemnity from
Company, but only insofar as such losses, claims, damages, judgment, liability
or reasonable expense arise out of or are based upon misstatements or alleged
misstatements or omissions or alleged omissions made in reliance upon and in
conformity with information furnished in writing by Shareholder to Company
specifically for use in the preparation of a registration statement (or any
amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action, such indemnified party shall notify the indemnifying
party in writing of the commencement thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability that it may have to
any indemnified party except to the extent the indemnifying party shall have
been prejudiced as a result of such failure. In case any such action shall be
brought against any indemnified party, and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party. In the
event the indemnifying party shall assume the defense thereof, any such
indemnified party shall have the right to employ separate counsel in such action
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (a) the
indemnifying party has agreed to pay such fees and expenses, (b) the named
parties to any such action or proceeding (including any impleaded parties)
include both such indemnified party and the indemnifying party, and such
indemnified party shall have been advised by counsel of
9
any actual or potential conflict of interest or that there may be one or more
legal defenses available to such indemnified party which are different from or
additional to those available to the indemnifying party (in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
or proceeding on behalf of such indemnified party, it being understood, however,
that the indemnifying party shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the fees and expense of more than one separate
firm of attorneys (together with appropriate local counsel) at any time for all
such indemnified parties), or (c) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party within a reasonable
time after the indemnified party has given notice of commencement in compliance
with this clause (c). Any such fees and expenses payable by the indemnifying
party shall be paid to the indemnified party entitled thereto as incurred by
such indemnified party. The indemnifying party shall not be liable for any
settlement of any such action or proceeding effected without its written consent
(which shall not be unreasonably withheld), but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such action or
proceeding, the indemnifying party agrees to indemnify and hold harmless each
such indemnified party from and against any loss or liability by reason of such
settlement or judgment. The indemnifying party shall not, without the prior
written consent of the indemnified party (which consent shall not be
unreasonably withheld), consent to the entry of any judgment against the
indemnified party or enter into any settlement or compromise that (x) does not
include, as an unconditional term thereof, the giving by the claimant or
plaintiff to the indemnified party of a release, in form and substance
reasonably satisfactory to the indemnified party, from all liability in respect
of such claim or litigation, or (y) requires the indemnified party to admit any
wrongdoing.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Section 6 is
for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms in respect of any losses, liabilities,
claims, damages, judgments and expenses suffered by an indemnified party
referred to therein, each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, liabilities, claims, damages,
judgments and expenses in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and of the Shareholder on the
other (including without limitation that of their respective officers,
directors, employees and agents) in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages, judgments or
expenses, as well as any other relevant equitable considerations. The relative
fault of the Company on the one hand and the Shareholder on the other (including
without limitation, in each case, that of their respective officers, directors,
employees and agents) shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, on the one hand, or by or on behalf of the Shareholder,
on the other, and
10
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, liabilities, claims, damages, judgments and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 6(c), any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim.
(e) Notwithstanding the provisions of this Section 6(e), in the case of
distributions to the public, Shareholder shall not be required to contribute any
amount in excess of the amount by which (A) the total price at which the
Registrable Securities sold by Shareholder and distributed to the public were
offered to the public exceeds (B) the amount of any damages which Shareholder
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) The obligations of Company and Shareholder under this Section 6 shall
be in addition to any liability that such Persons may otherwise have. For
purposes of this Section 6, each Person, if any, who controls Shareholder or an
underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act (and their respective partners, directors,
officers and employees) shall have the same rights to contribution as
Shareholder or such underwriter; and each director of the Company, each officer
of the Company who signed the registration statement, and each person, if any,
who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company.
SECTION 7. REGISTRATION EXPENSES.
Except as provided below, whether or not any registration statement
becomes effective, Company shall pay all costs, fees and expenses incident to
Company's performance of or compliance with this Agreement including, without
limitation, (i) SEC registration and filing fees, fees and expenses of
compliance with securities or Blue Sky laws; (ii) printing expenses and fees;
(iii) fees and expenses incurred in connection with the listing of the
Registrable Securities; (iv) fees and disbursements of counsel for Company; (v)
fees and disbursements of all independent certified public accountants of
Company (including the expenses of any comfort letters obtained pursuant to
Section 5(a)(xiii) and all other Persons retained by Company in connection with
the registration statement; and (vi) the reasonable fees and expenses of any
additional experts retained by the Company in connection with such registration.
In all cases, Shareholder will be responsible for underwriters' discounts,
selling commissions and fees and disbursements of its counsel with respect to
the Registrable Shares being sold by it.
11
SECTION 8. "STAND-OFF" AGREEMENT.
Shareholder, if reasonably requested by the managing underwriter of
an underwritten offering of securities by Company, shall agree not to sell or
otherwise transfer or dispose of any Registrable Shares during the 3-day period
prior to, and during the 90-day period beginning on, the closing date of such
underwritten offering, provided that such agreement shall be on terms customary
for such agreements (including exceptions to the foregoing obligation). Company,
if reasonably requested by the managing underwriter of an underwritten offering
of securities by Shareholder, shall agree not to sell or otherwise transfer or
dispose of any Company Common Stock during the 3-day period prior to, and during
the 90-day period beginning on, the closing date of such underwritten offering,
provided that such agreement shall be on terms customary for such agreements
(including exceptions to the foregoing obligation).
SECTION 9. MISCELLANEOUS.
9.1 TERMINATION. This Agreement and the obligations of Company hereunder
shall terminate on the earlier of the (i) first date on which no Registrable
Shares remain outstanding and (ii) the date all Registrable Shares may be sold
in a single three-month period pursuant to Rule 144 under the Securities Act.;
provided that in the case of clause (ii), this Agreement shall not terminate
with respect to any then effective Registration Statement under which there are
Registrable Shares registered unless such Registrable Shares may be transferred
by Shareholder without registration or other restriction pursuant to the Rule
144(k) under the Securities Act or any successor rule and Company has removed
any restrictive legend on the share certificate evidencing such share; provided
that the foregoing Sections 6 and 7 of this Agreement shall survive any such
termination in accordance with their terms.
9.2 AMENDMENTS AND WAIVERS. The provisions of this Agreement including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions herein may not be given,
unless consent is obtained from the party against whom such waiver, modification
or amendment is sought to be enforced.
9.3 NOTICES. All notices, requests, demands and other communications
required or permitted herein shall be in writing and shall be deemed given: when
delivered personally; one Business Day after being deposited with a next-day air
courier; when answered back if telexed and when receipt is acknowledged, if
telecopied, in each case to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice; PROVIDED that
notices of a change of address shall be effective only upon receipt thereof);
(i) if Shareholder, to:
Allied Irish Banks, plc
Bankcentre, Ballsbridge
Dublin 4, Ireland
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Attn: Bryan Sheridan
Group Law Agent
Facsimile No: 011-353-1-668-9677]
With a required copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attn: Edward D. Herlihy, Esq.
Facsimile No: (212) 403-2000
(ii) if to Company, to:
M&T Bank Corporation
One M&T Plaza
Buffalo, New York 14229
Attn: Michael Pinto
Executive Vice President and Chief Financial
Officer
Facsimile No: (716) 842-5177
With a required copy to:
M&T Bank Corporation
One M&T Plaza
Buffalo, New York 14229
Attn: Richard A. Lammert, Esquire
Senior Vice President and General Counsel
Facsimile No: (716) 842-5177
and to:
Arnold & Porter
555 Twelfth Street, N.W.
Washington, D.C. 20004
Attn: Steven Kaplan, Esquire
Facsimile No: (202) 942-5999
9.4 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties; PROVIDED
that without the written consent of Company, Shareholder may not assign its
rights hereunder to a Person other than any direct or indirect Subsidiary of
Shareholder of which
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Shareholder holds 80% or more of the outstanding equity capital or voting shares
and to which Registrable Shares have been transferred in compliance with the
provisions of the Reorganization Agreement; PROVIDED that no such assignment
shall be effective or confer any right on any such assignee unless, prior to
such assignment, the assignee agrees in writing, in form and substance
reasonably satisfactory to Company, that such assignee will be bound by all
provisions binding on Shareholder hereunder. Neither this Agreement nor any
provision hereof is intended to confer upon any Person other than the parties
hereto and any successor or assignee any rights or remedies hereunder.
9.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
9.6 SPECIFIC PERFORMANCE. Each of the parties hereto, in addition to being
entitled to exercise all rights provided herein or granted by law, shall be
entitled to specific performance of its rights under this Agreement. Each of the
parties agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by any such party of the provisions of this
Agreement and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
9.7 HEADINGS; SECTIONS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
All references to Sections shall refer to Sections of this Agreement, unless
otherwise stated.
9.8 GOVERNING LAW.
(a) Except to the extent superceded by Federal law, this Agreement shall be
governed by and construed in accordance with the law of the State of New York,
without regard to the conflicts of law rules of such state that would construe
this Agreement under the laws of another state.
(b) Any action brought in connection with this Agreement shall be brought
in the courts of the State of New York located in the City of New York or of the
United States of America for the Southern District of New York, which courts
shall have exclusive jurisdiction. The parties further agree, to the extent
permitted by law, that final and unappealable judgment against any of them in
any action or proceeding contemplated above shall be conclusive and may be
enforced in any other jurisdiction within or outside the United States by suit
on the judgment, a certified copy of which shall be conclusive evidence of the
fact and amount of such judgment.
(c) By the execution and delivery of this Agreement, each of the parties
hereto submits to the personal jurisdiction of any court of the State of New
York located in the City of New York or of the United States of America for the
Southern
14
District of New York in any action or proceeding arising out of or
relating to this Agreement and the transactions contemplated hereby.
(d) To the extent that Shareholder or Company has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property,
Shareholder and Company each hereby irrevocably waive such immunity in respect
of its obligations with respect to this Agreement.
(e) Each party waives, to the fullest extent permitted by applicable law,
any right it may have to a trial by jury in respect of any action or proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
9.9 SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ and alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
9.10 ENTIRE AGREEMENT. This Agreement is intended by the parties as a final
expression of their agreement and a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
the registration rights granted by Company with respect to the Registrable
Shares. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
9.11 CALCULATION OF TIME PERIODS. Except as otherwise indicated, all
periods of time referred to herein shall include all Saturdays, Sundays and
holidays; PROVIDED, that if the date to perform the act or give any notice with
respect to this Agreement shall fall on a day other than a Business Day, such
act or notice may be timely performed or given if performed or given on the next
succeeding Business Day.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
M&T BANK CORPORATION
By: ----------------------------------
Name:
Title:
ALLIED IRISH BANKS, P.L.C.
By: ----------------------------------
Name:
Title: