As filed with the Securities and Exchange
Commission on November 13, 1996
Registration No. 333-_______
_______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
FIRST EMPIRE STATE CORPORATION
(Exact name of registrant as specified in its charter)
NEW YORK 16-0968385
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
ONE M&T PLAZA, BUFFALO, NEW YORK 14240
(Address of Principal Executive Offices) (Zip Code)
First Empire State Corporation
RETIREMENT SAVINGS PLAN AND TRUST
(Full title of the Plan)
Richard A. Lammert, Esquire
Senior Vice President, General Counsel and Secretary
First Empire State Corporation
One M&T Plaza
BUFFALO, NEW YORK 14240
(Name and address of agent for service)
(716) 842-5390
(Telephone number, including area code, of agent for service)
Copy to:
Steven Kaplan, Esquire
Arnold & Porter
555 Twelfth Street, N.W.
Washington, D.C. 20004
202-942-5998
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE* PRICE* FEE
Common Stock 100,000 $263.88 $26,388,000 $7,996.37
$5.00 Par Value shares
In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of interests
to be offered or sold pursuant to the Plan.
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* Estimated solely for the purpose of calculating the registration fee
pursuant to Securities Act Rule 457(c) and (h), on the basis of the average
of the high and low sale prices of the Registrant's Common Stock on the
American Stock Exchange on November 7, 1996, which date is within 5 business
days prior to the date of the filing of this Registration Statement, as
reported by THE WALL STREET JOURNAL.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by First Empire State Corporation (the
"Corporation" or the "Registrant") with the Securities and Exchange
Commission (the "Commission") are hereby incorporated herein by reference:
(i) Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
(ii) All other reports filed by the Corporation pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended
("Exchange Act") since December 31, 1995; and
(iii) The description of the Corporation's common stock, par value $5.00
per share ("Common Stock"), contained in the Corporation's
Registration Statement pursuant to Section 12 of the Exchange Act,
and any amendment or report filed for the purpose of updating such
description.
All documents filed by the Corporation pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which
indicates that all of the Corporation's Common Stock offered hereby has been
sold or which withdraws from registration such Common Stock then remaining
unsold, shall be deemed to be incorporated in this Registration Statement by
reference and to be a part hereof from the date of filing such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the Common Stock of the Corporation being registered hereby
has been passed upon by Richard A. Lammert, Esq., General Counsel to the
Company. As of November 8, 1996, Mr. Lammert was the beneficial owner of
5,590 shares of Common Stock, including 962 shares of Common Stock in which
he has an interest through the Plan. Mr. Lammert also holds unexercised
options granted under the Corporation's 1983 Stock Option Plan to purchase
8,000 shares of Common Stock.
The audited financial statements incorporated by reference
in this Registration Statement have been examined by Price Waterhouse LLP,
independent certified public accountants, as set forth in their report
incorporated by reference herein, and are included in reliance upon the
authority of such firm as experts in auditing and accounting.
Item 6. Indemnification of Directors and Officers.
Sections 722-725 of the New York Business Corporation Law permit the
indemnification of any person made or threatened to be made a party to an
action or proceeding, whether civil or criminal, other than an action brought
by or in the right of the corporation, by reason of the fact that such person
is or was a director or officer of the corporation or was serving in any
capacity for another enterprise at the request of the corporation, against
judgments, fines, amounts paid
in settlement and reasonable expenses (including attorneys' fees)
actually and reasonably incurred as a result of such action or
proceeding, provided such person acted in good faith and for a purpose
he or she reasonably believed to be in, or in the case of service for
another enterprise, not opposed to, the best interests of the
corporation.
With respect to a proceeding by or in the right of the corporation, such
person may be indemnified against amounts paid in settlement and reasonable
expenses (including attorneys' fees) if he or she acted in good faith and for
a purpose he or she reasonably believed to be in, or in the case of service
for another enterprise, not opposed to, the best interests of the
corporation. The statute provides, however, that no indemnification is
allowed with respect to a threatened action, pending action which is settled
or otherwise disposed of, or as to any person who is adjudged liable to the
corporation, unless and only to the extent that the court, upon application,
determines that such person is entitled to indemnification under the
circumstances.
The Bylaws of the Company provide that directors and officers shall be
indemnified to the fullest extent permitted by the New York Business
Corporation Law or any other applicable law; provided, however, that a
director or officer shall be indemnified with respect to any action or
proceeding (or part thereof) initiated by any such director or officer only
if such action or proceeding (or part thereof) was authorized by the board of
directors.
Section 11.03 of the Plan relating to indemnification of the Committee is
incorporated herein by reference.
The Company has purchased insurance insuring officers and directors of
the Company against certain liabilities incurred in their capacities as such
to insure the Company against payments which it is obligated to make to such
persons under the foregoing indemnification provisions. Such liabilities
could include liabilities arising under the Securities Act.
The foregoing descriptions are general summaries only. Reference is made
to the full text of the Company's Bylaws incorporated herein by reference.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed on the Index of Exhibits of this Registration
Statement are filed herewith or are incorporated herein by reference to other
filings.
Pursuant to subsection (b) of this Item, the Registrant undertakes to
submit the Plan to the Internal Revenue Service ("IRS") in a timely manner
and will make all changes required by the IRS in order to qualify the Plan.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act").
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities
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offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the Registration Statement;
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof;
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering;
4. That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
5. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Buffalo, State of New York, on November 13, 1996.
FIRST EMPIRE STATE CORPORATION
By: /s/ Michael P. Pinto
-------------------------
Michael P. Pinto
Senior Vice President and
Controller
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities
indicated on November 13, 1996.
SIGNATURE TITLE
*Robert G. Wilmers
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Robert G. Wilmers Chairman of the Board, President
and Chief Executive Officer
(Principal Executive Officer)
/s/ Michael P. Pinto
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Michael P. Pinto Senior Vice President and
Controller (Principal Financial and
Accounting Officer)
*Brent D. Baird
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Brent D. Baird Director
*John H. Benisch
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John H. Benisch Director
*C. Angela Bontempo
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C. Angela Bontempo Director
*Robert T. Brady
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Robert T. Brady Director
*Patrick J. Callan
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Patrick J. Callan Director
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*James A. Carrigg
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James A. Carrigg Director
*Barber B. Conable, Jr.
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Barber B. Conable, Jr. Director
*Richard E. Garman
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Richard E. Garman Director
*James V. Glynn
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James V. Glynn Director
*Roy M. Goodman
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Roy M. Goodman Director
*Patrick W.E. Hodgson
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Patrick W.E. Hodgson Director
*Samuel T. Hubbard, Jr.
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Samuel T. Hubbard, Jr. Director
*Lambros J. Lambros
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Lambros J. Lambros Director
*Wilfred J. Larson
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Wilfred J. Larson Director
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Jorge G. Pereira Director
*Raymond D. Stevens, Jr.
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Raymond D. Stevens, Jr. Director
*Herbert L. Washington
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Herbert L. Washington Director
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John L. Wehle, Jr. Director
*By /s/ Richard A. Lammert
------------------------
Richard A. Lammert
(Attorney-in-Fact)
Pursuant to the requirements of the Securities Act of
1933, the Committee which administers the First Empire
State Corporation Retirement Savings Plan and Trust has
duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized,
in the City of Buffalo, State of New York on November 13,
1996.
/s/ Paul C. Buck Jr.
------------------------
Paul C. Buck, Jr.
/s/ James L. Hoffman
------------------------
James L. Hoffman
/s/ Ray E. Logan
------------------------
Ray E. Logan
/s/ Michael P. Pinto
------------------------
Michael P. Pinto
/s/ Harry R. Stainrook
------------------------
Harry R. Stainrook
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INDEX OF EXHIBITS
Exhibit 4.1 Provisions of the Restated Certificate
of Incorporation and Bylaws of First Empire State
Corporation defining the rights of security holders,
incorporated herein by reference to Exhibit No. 19 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1989, Exhibit No. 19 to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1991, and
Exhibit No. 3.2 to the Company's Annual Report on Form 10-K for
the year ended December 31, 1991 (File No. 1-9861).
Exhibit 4.2 First Empire State Corporation Retirement Savings Plan and
Trust, as amended and restated. Filed herewith.
Exhibit 5 Opinion of Richard A. Lammert with respect to the validity of
the Common Stock being registered. Filed herewith.
Exhibit 23.1 Consent of Price Waterhouse LLP, Independent Accountants. Filed
herewith.
Exhibit 23.2 Consent of Richard A. Lammert. Contained in his opinion
filed as Exhibit 5 hereto.
Exhibit 24 Powers of Attorney of certain officers and directors of the
Company. Filed herewith.
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