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REGISTRATION NO. ___________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EMPIRE BANC CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
MICHIGAN 38-2727982
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(State of Incorporation) (IRS Employer Identification No.)
1227 E. Front Street
Traverse City, Michigan 49686
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(Address of Principal Executive Offices)
EMPIRE BANC CORPORATION
DIRECTORS' DEFERRED COMPENSATION PLAN
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(Full Title of the Plan)
William T. Fitzgerald, Jr.
Vice President and Secretary/Treasurer
Empire Banc Corporation
1227 E. Front Street
Traverse City, Michigan 49686
(616) 922-2111
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(Name, Address and Telephone Number of Agent for Service)
Copy to:
Melanie Mayo West, Esq.
Howard & Howard Attorneys, P.C.
1400 North Woodward Ave., Suite 101
Bloomfield Hills, Michigan 48304
(248) 433-7308
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered per Share Price Fee
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Common 52,500
Stock, shares (2) $ 45.00 (3) $2,362,500 (3) $ 715.91 (3)
$5.00 par
value (1)
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(1) Also includes an equal number of Rights to purchase shares of
Registrant's Series A Junior Participating Preferred Stock, which
Rights are not (a) separable from the shares of Common Stock; or
(b) presently exercisable.
(2) Plus an indeterminate number of additional shares as may be issuable
in the event of an increase in the number of issued shares of Empire
Banc Corporation resulting from a subdivision of such shares, the
payment of stock dividends or certain other capital adjustments as
provided in the above-referenced Plan.
(3) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the amount of the registration fee, based on the
$ 45.00 average of the closing bid and ask prices for the Registrant's
Common Stock on September 25, 1997.
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Part II. Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange Commission
(the "Commission") by the Registrant (File No. 0-15839) are incorporated
in this Registration Statement by reference:
(1) the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996;
(2) the Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997 and June 30, 1997;
(3) all other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
since December 31, 1996; and
(4) the description of the Registrant's Common Stock, $5.00 par value,
contained in the Registrant's Registration Statement filed under
the Exchange Act, and the description of the Registrant's Series A
Junior Participating Preferred Stock Purchase Rights, contained in
the Registrant's Registration Statement on Form 8-A dated December
20, 1990 filed under the Exchange Act, including any amendments or
reports filed for the purpose of updating such descriptions.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 or 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 securities offered have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated
by reference in this Registration Statement and to be a part hereof from
the date of filing of such documents.
Item 4. Description of Securities
The Registrant is authorized to issue 5,000,000 shares of common stock,
$5.00 par value and 2,000,000 shares of preferred stock, $1.00 par value.
None of the authorized shares of preferred stock are currently outstanding,
although shares of preferred stock may be issued from time to time in one
or more series by the Board of Directors. The Board of Directors shall
have the authority to fix and determine the rights and preferences of the
shares of any series of preferred stock so established, including, without
limitation, the rate of dividend, whether the dividend shall be cumulative,
whether shares may be redeemed and, if so, the redemption price and the
terms and conditions of redemption, the amount payable upon shares in the
event of voluntary or involuntary liquidation, sinking fund provisions, if
any, for the redemption or purchase of shares, the terms and conditions,
if any, on which shares may be converted, and voting rights, if any.
Subject to any preferential or other rights of any series of the
Registrant's preferred stock, if and when outstanding, holders of the
Registrant's common stock are entitled to receive dividends, out of any
funds of the Registrant legally available therefor, at the rate and at the
time or times as may be provided by the Board of Directors. Subject to
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any preferential or other rights of any series of the Registrant's
preferred stock, if and when outstanding, holders of the Registrant's
common stock are entitled to receive distributions legally payable to
shareholders on the liquidation of the Registrant. Holders of the
Registrant's common stock, on the basis of one vote per share, have the
right to vote for the election of members of the Board of Directors of
the Registrant and the right to vote on all other matters, except those
matters in which a separate class of the Registrant's shareholders vote
by class or series. Holders of the Registrant's common stock have no
cumulative voting rights in electing directors. Holders of the
Registrant's common stock have no preemptive rights to subscribe for any
additional shares of capital stock which the Registrant may issue. The
Registrant's common stock is neither convertible nor redeemable. All
outstanding shares of the Registrant's common stock are fully paid and
non-assessable and have tandem shareholder rights (the "Preferred Stock
Purchase Rights"). The Registrant's common stock is listed for trading
on the Nasdaq over-the-counter market.
The Registrant has also reserved 50,000 shares of preferred stock for
issuance as Series A Junior Participating Preferred Stock, $1.00 par
value, upon the exercise of the Preferred Stock Purchase Rights issued
to holders of and in tandem with all outstanding shares of the Registrant's
common stock. The terms of the preferred stock purchase rights are
described in the Registrant's Registration Statement dated December 20,
1990 on Form 8-A and the Registrant's Rights Agreement dated as of December
19, 1990 filed therewith and incorporated herein by reference.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Sections 551 through 569 of the Michigan Business Corporation Act (the
"Act") and Article 5 of the Registrant's Bylaws relate to indemnification
of the Registrant's directors and officers, among others, in a variety of
circumstances against liabilities arising in connection with the
performance of their duties. The Registrant's Bylaws generally permit
indemnification to the same extent provided by the Act.
The Act provides for indemnification of directors and officers acting in
good faith and in a manner they reasonably believe to be in or not opposed
to the best interest of the Registrant (and, if a criminal proceeding, who
have no reasonable cause to believe their conduct to be unlawful) against
(i) expenses (including attorney's fees) and amounts paid in settlement
actually and reasonably incurred in connection with any threatened,
pending, or completed action, suit or proceeding (other than an action by,
or in the right of the Registrant) arising out of a position with the
Registrant (or with some other entity at the Registrant's request) and
(ii) expenses (including attorney's fees) and amounts paid in settlement
actually and reasonably incurred in connection with threatened, pending,
or completed actions or suits by or in the right of the Registrant, unless
the director or officer is found liable to the Registrant and an
appropriate court does not determine that he or she is nevertheless fairly
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and reasonably entitled to indemnity. The Act requires indemnification
for expenses to the extent that a director or officer is successful in
defending against any such action, suit or proceeding, and otherwise
requires in general that the indemnification provided for in (i) and
(ii) above be made only on a determination by a majority vote of a quorum
of the Board of Directors who were not parties to or threatened to be
made parties to the action, suit, or proceeding, by a majority vote of a
committee of not less than two disinterested directors, by independent
legal counsel, by all independent directors not parties to or threatened
to be made parties to the action, suit or proceeding, or by the
shareholders, that the applicable standards of conduct were met. In
certain circumstances, the Act further permits advances to cover such
expenses before a final determination that indemnification is permissible,
upon receipt of an undertaking, which need not be secured, by or on behalf
of the directors or officers to repay such amounts unless it shall
ultimately be determined that they are entitled to indemnification.
Indemnification under the Act is not exclusive of other rights to
indemnification to which a person may be entitled under the Articles of
Incorporation, the Bylaws or a contractual agreement.
The Act permits the Registrant to purchase insurance on behalf of its
directors and officers against liabilities arising out of their positions
with the Registrant, whether or not such liabilities would be within the
foregoing indemnification provisions. Pursuant to this authority, the
Registrant maintains such insurance on behalf of its directors and
officers.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following Exhibits are filed or incorporated by reference as part of
this Registration Statement.
4. (a) Articles of Incorporation of Empire Banc Corporation (incorporated
by reference to Exhibit B to Registrant's definitive Proxy Statement
filed March 27, 1994 in connection with Registrant's 1994 Annual
Meeting of Shareholders, File No. 0-15839).
(b) Bylaws of Empire Banc Corporation (incorporated by reference to an
exhibit to Registrant's Current Report on Form 8-K dated January 26,
1995, File No. 0-15839).
(c) Rights Agreement dated December 19, 1990 between Registrant and
Empire National Bank of Traverse City as Rights Agent (incorporated
by reference to an exhibit to Registrant's Current Report on Form
8-K dated December 19, 1990, File No. 0-15839).
5. (a) Opinion and Consent of Howard & Howard Attorneys, P.C.
15. Not applicable.
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23. (a) Consent of Crowe, Chizek and Company LLP
(b) Consent of Howard & Howard Attorneys, P.C. (incorporated by
reference to Exhibit 5 of this Registration Statement).
28. Not applicable.
99. Empire Banc Corporation Directors' Deferred Compensation Plan,
as amended and restated February 20, 1997.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of 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;
(iii) to include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13
or section 15(d) of the Exchange Act that are incorporated by
reference in this registration statement.
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) to remove from registration by means of a post-effective
amendment of any of the securities being registered which
remain unsold at the termination of the offering.
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(b) The undersigned Registrant hereby certifies that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, directors
and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director,
officer, or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Traverse, State of Michigan,
on September 25, 1997.
EMPIRE BANC CORPORATION
By: /s/ William T. Fitzgerald, Jr.
______________________________________
William T. Fitzgerald, Jr.
Its: Vice President and Secretary/Treasurer
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POWER OF ATTORNEY
The undersigned officers and directors of Empire Banc Corporation, a
Michigan corporation, do hereby constitute and appoint William T.
Fitzgerald, Jr., James E. Dutmers, Jr., Robert J. Israel and either of
them, the lawful attorneys and agents or attorneys and agent, with power
and authority to do any and all acts and things and to execute any and
all instruments which said attorneys and agents, and any one of them,
determine may be necessary or advisable or required to enable said
corporation to comply with the Securities Act of 1933, as amended, and
any rules or regulations or requirements of the Securities and Exchange
Commission in connection with this Registration Statement. Without
limiting the generality of the foregoing power and authority, the powers
granted include the power and authority to sign the names of the
undersigned officers and directors in the capacities indicated below to
this Registration Statement, to any and all amendments, both pre-effective
and post-effective, and supplements to this Registration Statement and to
any and all instruments or documents filed as part of or in conjunction
with this Registration Statement or amendments or supplements thereto,
and each of the undersigned hereby ratifies and confirms all that said
attorneys and agents or any of them shall do or cause to be done by
virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated below.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 25th day of September, 1997.
/s/ James E. Dutmers, Jr. /s/ John R. Anderson
_____________________________________ ______________________________
James E. Dutmers, Jr. John R. Anderson
Chairman and Chief Executive Officer Director
(principal executive officer)
/s/ Robert L. Israel
_____________________________________ ______________________________
Robert L. Israel Michael H. Dennos
President and Chief Operating Officer Director
/s/ William T. Fitzgerald, Jr. /s/ Don A. Good, M.D.
____________________________________ ______________________________
William T. Fitzgerald, Jr. Don A. Good, M.D.
Chief Financial Officer, Secretary/ Director
Treasurer (Principal Financial and
Accounting Officer)
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/s/ Deborah J. Knudsen
___________________________________ __________________________________
Deborah J. Knudsen John M. Rockwood, Jr.
Director Director
/s/ Thomas G. McIntyre /s/ Laurence P. Skendzel, M.D.
___________________________________ __________________________________
Thomas G. McIntyre Laurence P. Skendzel, M.D.
Director Director
/s/ Ronald G. Reffitt, Sr.
___________________________________ __________________________________
Ronald G. Reffitt, Sr. Louis A. Smith
Director Director
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EXHIBIT INDEX
Number
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5(a) Opinion of Howard & Howard Attorneys, P.C., including Consent
23(a) Consent of Crowe, Chizek and Company LLP
99 Empire Banc Directors' Deferred Compensation Plan