As filed with the Securities and Exchange Commission on December 24, 1997
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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REGISTRATION STATEMENT ON FORM S-8 UNDER THE SECURITIES ACT OF 1933
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FIRST EMPIRE STATE CORPORATION
(Exact name of registrant as specified in its charter)
NEW YORK 16-0968385
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
ONE M&T PLAZA
BUFFALO, NEW YORK 14240
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(Address of Principal Executive Offices) (Zip Code)
FIRST EMPIRE STATE CORPORATION
DEFERRED BONUS PLAN
(Full title of the Plan)
RICHARD A. LAMMERT, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
FIRST EMPIRE STATE CORPORATION
ONE M&T PLAZA
BUFFALO, NEW YORK 14240
(716) 842-5390
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO:
STEVEN KAPLAN, ESQ.
ARNOLD & PORTER
555 TWELFTH STREET, N.W.
WASHINGTON, D.C. 20004
(202) 942-5998
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Calculation Of Registration Fee
<TABLE>
<CAPTION>
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Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Aggregate Offering Registration Fee
Per Share(2) Price
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<S> <C> <C> <C> <C>
Common Stock, 15,000 Shares (1) $438.00 $6,570,000 $1939.00
Par value $5.00
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Deferred $3,700,000 N/A $3,700,000 $1092.00
Compensation
Obligations (3)
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</TABLE>
(1) Includes Deferred Compensation Obligations of First Empire State
Corporation with respect to such shares of Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Securities Act Rule 457(h), and 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 December 19, 1997, which date is within 5
business days prior to the date of the filing of this Registration
Statement.
(3) Represents other unsecured Deferred Compensation Obligations of First
Empire State Corporation to pay deferred compensation in the future in
accordance with the terms of the First Empire State Corporation Deferred
Bonus Plan that will not be settled in shares of Common Stock.
<PAGE>
INTRODUCTION
First Empire State Corporation (the "Corporation" or the
"Registrant") is filing this Registration Statement to register shares of First
Empire Common Stock, $5.00 par value per share ("Common Stock"), that may be
issued pursuant to the First Empire State Corporation Deferred Bonus Plan and
also because of the uncertainty as to whether the Deferred Compensation
Obligations would or should be considered "securities" or be subject to
registration under the Securities Act of 1933, as amended ("Securities Act").
The filing of this Registration Statement is not an admission by the Registrant
that the Deferred Compensation Obligations are securities or are subject to the
registration requirements of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by 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 year ended December 31,
1996;
(ii) Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 1997, June 30, 1997 and September 30,
1997; and
(iii) Current Reports on Form 8-K dated January 9, 1997, January
31, 1997, February 19, 1997, June 6, 1997, June 24, 1997
and October 28, 1997; and
(iv) The description of the Corporation's Common Stock
contained in the Corporation's Registration Statement,
pursuant to Section 12 of the Securities Exchange Act of
1934, as amended ("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 securities offered hereby have been sold or which withdraws from
registration such securities then remaining unsold shall be deemed to be
incorporated in this Registration Statement by reference and to be a part hereof
from the date of filing such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference in this Registration
Statement shall be deemed to be modified or superseded for purposes of this
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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.
This Registration Statement relates to both the First Empire State
Corporation Common Stock and the deferred compensation obligations ("Deferred
Compensation Obligations") provided under the First Empire State Corporation
Deferred Bonus Plan (the "Plan"). The Common Stock is described in the document
incorporated by reference (see Item 3 (iv)).
Set forth below is a summary of the $3,700,000 in Deferred Compensation
Obligations created pursuant to the Plan as amended and restated, effective
January 1, 1998, and registered under this Registration Statement.
Certain employees of the Corporation and its subsidiaries (hereinafter,
the "Employer") are permitted to defer certain annual incentive awards pursuant
to the Plan. When an employee ("Participant") makes a deferral election under
the Plan, the Employer retains the amount deferred and credits the value of such
amount by book entry into a Participant's designated account maintained under
the Plan for the employee by the Employer. Participants may choose from a
variety of investment indices that credit earnings or losses to the
Participant's deferral accounts based on the return of the investment funds
available under the First Empire Corporation Retirement Savings Plan. The
Employer then assumes the Deferred Compensation Obligations which are general,
unsecured obligations to pay the employee in the future the deferred amount in
cash or, as described in the following paragraph, in Common Stock, in either
case in accordance with the terms of the Plan under which compensation or awards
were deferred, as adjusted during the deferred period, and in accordance with
applicable investment measures as selected by the Participant.
The Plan provides that employees of the Corporation and its affiliates
who elect to use the Corporation's Common Stock as a deferral investment measure
for some or all of their deferral accounts under the Plan will be paid the
deferral balances as to such deferred amounts using such measure in Common Stock
rather than in cash. The number of shares to be paid will be that number that
equals the deferred amount using the Common Stock as the deferral investment
measure on the effective date of the deferral, divided by the closing price of
the Common Stock on the American Stock Exchange on the effective date of the
deferral, plus the number of shares that represents reinvested dividends on the
number of shares allocated to the Participant's deferral account.
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The Plan is unfunded, and payment of the Deferred Compensation
Obligations is made from the general assets of the Employer. Each Participant is
a general unsecured creditor of the Employer with a claim against the Employer
for the amount he or she has deferred, as adjusted during the deferral period in
accordance with applicable investment measures as selected by the Participant.
The Deferred Compensation Obligations are unsecured general obligations of the
Employer and rank pari passu with other unsecured and unsubordinated
indebtedness of the Employer from time to time outstanding.
The Corporation in its sole discretion determines the investment
measures available under the Plan. Each Participant may elect to allocate his or
her account among the available measures and may change the allocation in
accordance with the terms of the Plan. Account balances are adjusted as though
actually invested in the investments used as measures, but no investment of
funds outside the Corporation occurs.
Participants may not assign or transfer the Deferred Compensation
Obligations, other than by designating a beneficiary or beneficiaries to receive
payment if a Participant dies before receiving full payment of the amount
credited to his or her account, and the Deferred Compensation Obligations shall
not be subject to alienation, encumbrance, garnishment, attachment, execution or
levy of any kind, voluntary or involuntary, except when, where and if compelled
by applicable law.
Payment of Deferred Compensation Obligations generally is made at the
time and in the manner elected by Participants at the time of the deferral
election as permitted by the Plan. Payment elections may not be changed. If a
Participant terminates employment with the Employer other than by reason of
death, disability or retirement, the value of such Participant's account
ordinarily will be distributed to the Participant in accordance with the terms
of the Plan. At the discretion of the Plan Administrator, under certain
circumstances, all or a portion of the value of a Participant's account may be
distributed earlier than originally elected.
The Employee Benefit Plan Committee of Manufacturers and Traders Trust
Company, a subsidiary of the corporation, has been designated the Plan
Administrator by the Corporation's Board of Directors.
The Plan Administrator has all such powers as may be necessary to
discharge its duties relative to administration of this Plan, including full
discretionary authority to interpret the Plan, to establish rules and
regulations relating to the Plan, and to make all other determinations and take
all other actions necessary or appropriate for the proper administration of the
Plan. The Plan may be amended or terminated at any time and from time to time,
except that no such amendment may adversely affect a Participant's rights with
respect to outstanding Deferred Compensation Obligations credited to a
Participant's account as of the date of such amendment or termination without
prior consent by the Participant.
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Item 5. Interests of Named Experts and Counsel.
The validity of the securities of the Corporation being registered
hereby has been passed upon by Richard A. Lammert, Esq., General Counsel to the
Company. As of the close of business on December 16, 1997, Mr. Lammert was the
beneficial owner of 5,691 shares of Common Stock; he held unexercised options
granted under the Corporation's 1983 Stock Option Plan to purchase 9,000 shares
of Common Stock; and he was entitled to the payment of Deferred Compensation
Obligations equal to 224 shares of Common Stock.
The financial statements incorporated in this Registration Statement by
reference to the Annual Report on Form 10-K of First Empire State Corporation
for the year ended December 31, 1996 have been so incorporated in reliance on
the report of Price Waterhouse LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
Documents incorporated herein by reference in the future will include
financial statements, related schedules (if required) and independent auditors'
reports, which financial statements and schedules will have been audited to the
extent and for the periods set forth in such reports by the firm or firms
rendering such reports, and, to the extent so audited and consent to
incorporation by reference is given, will be incorporated herein by reference.
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.
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<PAGE>
The Bylaws of the Corporation provide that directors and officers shall
be indemnified to the fullest extent permitted by the New York Business
Corporation Law or any other applicable law provided, however, that a director
or officer shall be indemnified with respect to any action or proceeding (or
part thereof) initiated by any such director or officer only if such action or
proceeding (or part thereof) was authorized by the board of directors. In
addition, the Corporation's Restated Certificate of Incorporation provides that
as to any act or omission occurring after May 7, 1997, a director of the
Corporation shall, to the maximum extent permitted by the laws of the State of
New York, have no personal liability to the Corporation or any of its
stockholders for damages that may arise from any breach of duty as a director.
The Corporation has purchased insurance insuring officers and directors
of the Corporation against certain liabilities incurred in their capacities as
such to insure the Corporation against payments which it is obligated to make to
such persons under the foregoing indemnification provisions. Such liabilities
could include liabilities arising under the Securities Act.
The foregoing descriptions are general summaries only. Reference is
made to the full text of the Corporation's Restated Certificate of Incorporation
and Bylaws incorporated herein by reference.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed on the Index of Exhibits of this Registration
Statement are filed herewith or are incorporated herein by reference to other
filings.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act").
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<PAGE>
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
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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<PAGE>
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 December 24, 1997.
FIRST EMPIRE STATE CORPORATION
By: /s/ Michael P. Pinto
-------------------------------
Michael P. Pinto
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
on December 24, 1997.
Signature Title
- --------- -----
*
- ----------------------------
Robert G. Wilmers Director, Chairman of the Board,
President and Chief Executive Officer
(Principal Executive Officer)
*
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Michael P. Pinto Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
*
- ------------------------------ Administrative Vice President,
Michael R. Spychola Controller and Assistant Secretary
(Principal Accounting Officer)
*
- ------------------------------
Brent D. Baird Director
<PAGE>
*
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John H. Benisch Director
*
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C. Angela Bontempo Director
*
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Robert T. Brady Director
*
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Patrick J. Callan Director
*
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Richard E. Garman Director
*
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James V. Glynn Director
*
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Roy M. Goodman Director
*
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Patrick W.E. Hodgson Director
*
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Samuel T. Hubbard, Jr. Director
<PAGE>
*
- ------------------------------
Lambros J. Lambros Director
*
- ------------------------------
Wilfred J. Larson Director
*
- ------------------------------
Jorge G. Pereira Director
*
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Raymond D. Stevens, Jr. Director
*
- ------------------------------
Herbert L. Washington Director
*
- ------------------------------
John L. Wehle, Jr. Director
By: /s/ Richard A Lammert
--------------------------
Richard A. Lammert
(Attorney-in-Fact)
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the
Employee Benefit Plan Committee which administers the First Empire State
Corporation Deferred Bonus Plan 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 December 23,1997.
/s/ Mark J. Czarnecki
----------------------------------
Mark J. Czarnecki
/s/ James L. Hoffman
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James L. Hoffman
/s/ Ray E. Logan
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Ray E. Logan
/s/ Michael P. Pinto
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Michael P. Pinto
/s/ Robert E. Sadler, Jr.
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Robert E. Sadler, Jr.
<PAGE>
INDEX OF EXHIBITS
Exhibit 4.1 First Empire State Corporation Deferred Bonus Plan, effective
January 1, 1998, filed herewith.
Exhibit 5 Opinion of Richard A. Lammert with respect to the legality of
the Common Stock and Deferred Compensation Obligations being
registered, filed herewith.
Exhibit 23.1 Consent of Price Waterhouse LLP, Independent Auditors and
Accountants, filed herewith.
Exhibit 23.2 Consent of Richard A. Lammert, contained in his opinion
filed as Exhibit 5 hereto.
Exhibit 24 Powers of Attorney of certain officers and directors of the
Corporation, filed herewith.
Exhibit 4.1
FIRST EMPIRE STATE CORPORATION
DEFERRED BONUS PLAN
(Amended and Restated effective January 1, 1998)
ARTICLE I
INTENT
This First Empire State Corporation Deferred Bonus Plan was
established, effective January 1, 1984, for the benefit of certain
employees of certain affiliates of First Empire State Corporation.
The Plan is intended to qualify as a plan described in Section 201(2)
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and is maintained primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees.
ARTICLE II
DEFINITIONS
When used in this Plan, the following terms shall have the
following meanings:
2.1 "Account" means the account maintained for a Participant
pursuant to Article IV hereof.
2.2 "Beneficiary" means the person or persons designated by a
Participant pursuant to Article VI hereof to receive any benefit
payable pursuant to Section 5.1 hereof upon the Participant's death.
2.3 "Bank" means Manufacturers and Traders Trust Company and
its successors by merger, sale of assets or otherwise.
2.4 "Board" means the board of directors of First
Empire State Corporation.
2.5 "Bonus" means an Eligible Employee's award under
an Incentive Plan.
2.6 "Deemed Earnings" means the income earned or loss incurred
with respect to a Participant's Deemed Investment Portfolio. The
Deemed Earnings with respect to each investment option in a Deemed
Investment Portfolio shall be determined on the basis of the total
actual return on such investment option in the First Empire State
Corporation Retirement Savings Plan for the period in question or, in
the
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case of a First Empire Stock Deemed Investment Account, on the basis
of the number of shares of First Empire Common Stock that would
represent reinvested dividends on the shares credited to such First
Empire Stock Deemed Investment Account
for the period in question.
2.7 "Deemed Investment Portfolio" means the hypothetical
portfolio designated by a Participant from among (a) the investment
options offered under the First Empire State Corporation Retirement
Savings Plan, excluding the First Empire State Corporation Stock Fund
offered thereunder, and (b) shares of First Empire Common Stock.
2.8 "Deferred Bonus Election" means an election made pursuant
to Section 3.1(a) hereof.
2.9 "Deferred Bonus" means that portion of a Bonus the payment
of which is deferred by a Participant under this Plan.
2.10 "Deferred Bonus Agreement" means the written agreement
entered into between a Participant and his Employer pursuant to which
the Participant elects to defer payment of a specified portion of his
Bonus in accordance with the terms of this Plan and such agreement.
2.11 "Eligible Employee" means an individual who is an
employee of an Employer, who is eligible to participate in an
Incentive Plan and who is designated by the Plan Administrator as
eligible to participate in this Plan.
2.12 "Employer" means First Empire State Corporation and each
of its affiliates, any of whose employees are eligible to participate
in an Incentive Plan.
2.13 "Financial Hardship" means a financial hardship
of a Participant.
2.14 "First Empire Common Stock" means the Common
Stock, par value $5.00 per share, of First Empire State
Corporation.
2.15 "First Empire Stock Deemed Investment Account" means that
portion of an Account consisting of hypothetical shares of First
Empire Common Stock.
2.16 "Incentive Plan" means the First Empire State Corporation
Incentive Plan and such other incentive plans of First Empire State
Corporation or its subsidiaries as the Plan Administrator may
designate.
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2.17 "Participant" means an Eligible Employee who has deferred
a portion of his Bonus pursuant to a Deferred Compensation Agreement
and the terms of this Plan.
2.18 "Plan" means this First Empire State Corporation Deferred
Bonus Plan, as set forth herein and amended from time to time.
2.19 "Plan Administrator" means such person or committee as
may be designated by the Board to serve as such under this Plan.
2.20 "Retirement" means the earliest of a Participant's (a)
normal retirement, early retirement or disability retirement under
the First Empire State Corporation Retirement Plan, (b) death or (c)
65th birthday.
2.21 "Revaluation Date" means the last day of each calendar
quarter and such other dates as may be designated by the Plan
Administrator.
ARTICLE III
DEFERRAL OF BONUS
3.1 Deferred Bonus Elections.
(a) An Eligible Employee, by executing a Deferred Bonus
Agreement, may elect to defer all or any portion of his Bonus.
(b) An Eligible Employee must make his Deferral Election
for a Bonus payable with respect to a calendar year on or before
October 31 of that calendar year.
3.2 Deferred Bonus Agreements.
(a) A Deferred Bonus Election pursuant to this Plan shall
be made pursuant to a written Deferred Bonus Agreement between the
Eligible Employee and his Employer.
(b) A Participant's Deferred Bonus Agreement shall
specify whether the Deferred Bonus thereunder (and Deemed Earnings
thereon) shall be paid in a single lump-sum payment or in annual
installments payable over five, ten or 20 years.
(c) A Participant's Deferred Bonus Agreement shall
specify whether the Deferred Bonus thereunder (and Deemed Earnings
thereon) shall be paid (or shall commence to
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be paid) at (i) Retirement or (ii) on a date selected by the
Participant from among any one of the first 20 anniversaries of the
date on which the Deferred Bonus would have been paid absent the
Deferred Bonus Election.
ARTICLE IV
ACCOUNTS
4.1 Maintenance of Accounts. The Plan Administrator shall
establish a bookkeeping account (an "Account") for each Participant.
As of the first day of the month in which a Deferred Bonus would have
been paid to the Participant absent a Deferred Bonus Election, the
amount of such Deferred Bonus shall be credited to such Participant's
Account.
4.2 Deemed Earnings. As of each Revaluation Date, a
Participant's Account shall be adjusted for Deemed Earnings since the
preceding Revaluation Date. Where a Deferred Bonus is credited to an
Account other than on a Revaluation Date, Deemed Earnings on the
amount of such Deferred Bonus for the period from the date of such
credit until the next succeeding Revaluation Date shall be a pro rata
portion of Deemed Earnings on an equivalent amount for the period
between the Revaluation Dates immediately preceding and succeeding
the date of such credit, calculated by reference to the number of
days in each period, except that Deemed Earnings on a First Empire
Stock Deemed Investment Account shall be based on the actual dates of
dividend payments on First Empire Common Stock.
4.3 Deemed Investment Portfolio. In his Deferred Bonus
Agreement, a Participant shall designate a Deemed Investment
Portfolio, and shall allocate his Deferred Bonus among the investment
options offered for inclusion in the Deemed Investment Portfolio in
integral multiples of 5 percent. A Participant may change such
allocation on a calendar quarterly basis by submitting a written form
to the Plan Administrator prior to the first day of such calendar
quarter; provided, however, that a Participant may not change a prior
allocation to his First Empire Stock Deemed Investment Account other
than to add to such Account.
4.4 Separate Accounting. Within a Participant's
Account, the Plan Administrator shall account separately for
each of the Participant's Deferred Bonuses.
4.5 First Empire Stock Deemed Investment Account. A
Participant's First Empire Stock Deemed Investment Account
shall be credited with the number of hypothetical shares of
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First Empire Common Stock that equals the portion of the Deferred
Bonus as to which the Participant elected a hypothetical investment
in such shares, divided by the closing price of a share of First
Empire Common Stock on the American Stock Exchange (or such other
principal securities exchange on which the shares of Common Stock are
traded if such shares are no longer traded on the American Stock
Exchange) on the effective date of the deferral, which shall be the
date on which the Deferred Bonus would have been paid had it not been
deferred, plus Deemed Earnings thereon. In the event of any change in
corporate capital capitalization, such as a stock split, or a
corporate transaction, such as any merger, consolidation, separation,
including a spin-off, or other distribution of stock or property of
the Employer, any reorganization (whether or not such reorganization
comes within the definition of such term in Internal Revenue Code
Section 368) or any partial or complete liquidation of the Employer,
such adjustment shall be made in the number and class of hypothetical
shares of First Empire Common Stock held in a Participant's First
Empire Stock Deemed Investment Account as may be determined to be
appropriate and equitable by the Plan Administrator in its sole
discretion.
ARTICLE V
PAYMENT OF BENEFITS
5.1 General Rule. Except as provided in the following sentence
or in Section 5.2 hereof, a Participant (or, in the event of the
Participant's death, his Beneficiary) shall receive (or begin to
receive) payment of the amount standing to the Participant's Account
as of the Revaluation Date or Dates next following the time or times
elected in the Participant's Deferred Bonus Agreement or Agreements
and shall receive such payment or payments in the form or forms
elected in such Agreement or Agreements. If, however, a Participant
terminates his employment with the Employer for any reason other than
Retirement, the Plan Administrator, in its discretion, may direct
that, rather than payment pursuant to the preceding sentence, a
single payment shall be made of the amount standing to the
Participant's Account as of any earlier Revaluation Date.
5.2 Hardship Withdrawals. In the event of Financial
Hardship, a Participant may request a distribution of all or a
portion of the amount standing to his Account. The
determination of whether a Participant has incurred a
Financial Hardship shall be made by the Plan Administrator.
The Participant shall determine against which Deferred Bonus
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or Bonuses (and Deemed Earnings thereon) a withdrawal pursuant to
this Section 5.2 shall be charged.
5.3 Payment. The payment to a Participant with respect to a
Deferred Bonus (and Deemed Earnings thereon) shall be made in cash by
the Participant's last Employer in the year with respect to which the
Bonus deferred was payable; provided, however, that (a) if such
Employer is owned directly or indirectly by a bank, the payment shall
be made by such bank and (b) payment from a Participant's First
Empire Stock Deemed Investment Account shall be made in First Empire
Common Stock (except to the extent that payment in First Empire
Common Stock would result in a fractional share, in which case the
amount that would constitute a fractional share shall be paid in
cash, based on the closing price of a share of First Empire Common
Stock on the American Stock Exchange, or such other principal
securities exchange on which the shares of Common Stock are traded if
such shares are no longer traded on the American Stock Exchange, on
the Revaluation Date immediately preceding the date of payment).
Payments of a Participant Account which (x) is not being paid in a
single payment and (y) contains a First Empire Stock Deemed
Investment Account as well as other amounts in the Account, shall be
made in both cash and First Empire Common Stock pro rata in
accordance with the values of the Participant's First Empire Stock
Deemed Investment Account and the balance of the Participant's
Account.
5.4 Tax Withholding. The Plan Administrator may make such
provisions and take such steps as it may deem necessary or
appropriate for the withholding by the Employers of all Federal,
state, local or other taxes required by law to be withheld with
respect to deferrals and payments under this Plan, including, without
limitation, in the discretion of the Plan Administrator, (a)
requiring the Participant (or Beneficiary, as the case may be) to
pay, or provide for payment of, the amount of any such taxes, (b)
deducting any such taxes from any amount otherwise payable to the
Participant or Beneficiary in cash, including amounts payable under
this Plan, or (c) reducing the number of shares of First Empire
Common Stock otherwise payable under this Plan by an amount (based on
the closing price of such shares on the Revaluation Date immediately
preceding the date the shares would otherwise have been paid) equal
to the amount of any such taxes.
<PAGE>
- 7 -
ARTICLE VI
BENEFICIARIES
Each Participant may designate from time to time any person or
persons, natural or otherwise, as his Beneficiary or Beneficiaries to
whom benefits under Section 5.1 are to be paid in the event of his
death. Each Beneficiary designation shall be made either in the
Deferred Bonus Agreement or on a form provided by the Plan
Administrator and shall be effective only when filed with the Plan
Administrator during the Participant's lifetime. Each Beneficiary
designation filed with the Plan Administrator shall revoke all
Beneficiary designations previously made by the Participant. The
revocation of a Beneficiary designation shall not require the consent
of any designated Beneficiary. Payment to a Beneficiary shall be made
in the form or forms elected in the Participant's Deferred Bonus
Agreement or Agreements, provided that such payment shall be made in
a single payment if a request for such a single payment is made by
the Beneficiary and approved by the Plan Administrator.
ARTICLE VII
ADMINISTRATION
7.1 General. The Plan Administrator shall be charged with the
administration of this Plan. The Plan Administrator shall have all
such powers as may be necessary to discharge its duties relative to
the administration of this Plan, including by way of illustration and
not limitation, discretionary authority to interpret and construe
this Plan, to decide any dispute arising hereunder, to determine the
right of any individual with respect to participation herein, to
determine the right of any Participant with respect to benefits
payable under this Plan and to adopt, alter and repeal such
administrative rules, regulations and practices governing the
operation of this Plan as it, in its sole discretion, may from time
to time deem advisable. The Plan Administrator shall not be liable to
any person for any action taken or omitted in connection with the
interpretation and administration of this Plan unless attributable to
willful misconduct or lack of good faith. The Plan Administrator
shall be entitled to rely conclusively upon all tables, valuations,
certificates, opinions and reports furnished by any actuary,
accountant, controller, counsel or other person employed or engaged
by the Plan Administrator or an Employer with respect to this Plan.
The Plan Administrator, if an individual, or the members thereof if
the Plan Administrator
<PAGE>
- 8 -
is a Committee, shall not participate in any action or determination
regarding solely his or their own benefits payable hereunder. Except
as provided in Section 7.3 hereof, decisions of the Plan
Administrator made in good faith shall be final, conclusive and
binding upon all parties.
7.2 Claims Procedure. Whenever the Plan Administrator denies,
in whole or in part, a claim for benefits filed by any person
(hereinafter referred to as a "Claimant"), the Plan Administrator
shall transmit a written notice setting forth, in a manner calculated
to be understood by the Claimant, a statement of the specific reasons
for the denial of the claim, references to the specific provisions of
this Plan on which the denial is based, a description of any
additional needed material or information and why such material or
information is necessary, and an explanation of the claims review
procedure as set forth herein. In addition, the written notice shall
contain the date on which the notice was sent and a statement
advising the Claimant that, within 90 days of the date on which such
notice is received, he may obtain review of the Plan Administrator's
decision.
7.3 Review Procedure. Within 90 days of the date on which the
notice of denial of claim is received by the Claimant, the Claimant
or his authorized representative may request that the claim denial be
reviewed by filing with the Plan Administrator a written request
therefor, which request shall contain the following information:
(a) the date on which the notice of denial of
claim was received by the Claimant;
(b) the date on which the Claimant's request was filed
with the Plan Administrator; provided, however, that the date on
which the Claimant's request for review was in fact filed with the
Plan Administrator shall control in the event that the date of the
actual filing is later than the date stated by the Claimant pursuant
to this clause (b);
(c) the specific portions of the denial of his
claim which the Claimant requests the Plan Administrator to
review;
(d) a statement by the Claimant setting forth the basis
upon which he believes the Plan Administrator should reverse its
previous denial of his claim for benefits and accept his claim as
made; and
<PAGE>
- 9 -
(e) any written material (included as exhibits) which the
Claimant desires the Plan Administrator to examine in its
consideration of his position as stated pursuant to clause (d).
Within 60 days of the date determined pursuant to clause (b)
(or, if special circumstances require an extension of time, within
120 days of such date), the Plan Administrator shall conduct a full
and fair review of the decision denying the Claimant's claim for
benefits and shall deliver, to the Claimant in writing, its decision.
Such written decision shall set forth, in a manner calculated to be
understood by the Claimant, a statement of the specific reasons for
the decision, including references to the specific provisions of this
Plan which were relied upon. The decision will be final and binding
on all persons concerned.
ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 Power to Amend or Terminate. First Empire State
Corporation expects to continue this Plan indefinitely, but reserves
the right to amend or terminate this Plan at any time, if, in its
sole judgment, such amendment or termination is necessary or
desirable. Any such amendment or termination shall be made in writing
by the Board or its designee, if applicable, and shall be effective
as of the date specified in such document. No amendment or
termination of this Plan shall directly or indirectly deprive any
Participant or Beneficiary of all or any portion of the amounts
previously credited to the Participant's Account. In the event of a
termination of this Plan, First Empire State Corporation (or any
transferee, purchaser or successor entity) may elect, in its
discretion, either to have the Employers make a single payment, at
the time of such termination, of the Account balances on such date to
Participants and Beneficiaries or to have the Employers make payments
to such individuals at such time or times as provided under the terms
of this Plan.
8.2 Successor. This Plan shall not be automatically terminated
by a transfer or sale of an Employer or by the merger or
consolidation of an Employer into or with any other corporation or
other entity, but it shall be continued with respect to such Employer
or its successor after such sale, merger or consolidation only if and
to the extent that the transferee, purchaser or successor entity
agrees to continue this Plan. In the event this Plan is not continued
with respect to such Employer or its successor by the transferee,
purchaser or successor entity, then it shall terminate with
<PAGE>
- 10 -
respect to such Employer or its successor subject to the
provisions of Section 8.1 hereof.
ARTICLE IX
MISCELLANEOUS
9.1 No Effect on Employment Rights. Nothing contained herein
will confer upon any Participant the right to be retained in the
service of an Employer nor limit the right of an Employer to
discharge or otherwise deal with Participants without regard to the
existence of this Plan.
9.2 Plan Unfunded. Notwithstanding any provision herein to the
contrary, the benefits offered hereunder shall constitute nothing
more than unfunded, unsecured promises by each Employer to pay the
amounts that such Employer is obligated to pay under this Plan. No
provision shall at any time be made with respect to segregating any
assets of any Employer for payment of any amounts hereunder. No
Participant, Beneficiary or any other person shall have any interest
in any particular assets of the Employers by reason of the right to
receive a benefit under this Plan, and any such Participant,
Beneficiary or other person shall have only the rights of a general
unsecured creditor of the Employer obligated to make payments to the
Participant under this Plan. Nothing contained in this Plan shall
constitute a guaranty by the Employers or any other entity or person
that the assets of any Employer will be sufficient to pay any amount
hereunder. All expenses and fees incurred in the administration of
this Plan shall be paid by the Employers.
9.3 Binding on Employers, Employees and Their Successors. This
Plan shall be binding upon and inure to the benefit of the Employers,
their successors and assigns and each Participant and his heirs,
executors, administrators and legal representatives. In the event of
the merger or consolidation of an Employer with or into any other
corporation, or in the event substantially all of the assets of an
Employer shall be transferred to another corporation, the successor
corporation resulting from the merger or consolidation, or the
transferee of such assets, as the case may be, shall, as a condition
to the consummation of the merger, consolidation or sale, assume the
obligations of such Employer hereunder as of the date of such merger,
consolidation or transfer and shall be substituted for such Employer
hereunder.
9.4 Spendthrift Provisions. No amount payable under
this Plan shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or
<PAGE>
- 11 -
charge prior to actual receipt thereof by the payee; and any attempt
so to anticipate, alienate, sell, transfer, assign, pledge, encumber
or charge prior to such receipt shall be void; and the Employers
shall not be liable in any manner for or subject to the debts,
contracts, liabilities, torts or engagements of any person entitled
to any benefit under this Plan.
9.5 Disclosure. Each Participant shall receive a copy of this
Plan, and the Plan Administrator will make available for inspection
by any Participant a copy of the rules and regulations used by the
Plan Administrator in administering this Plan.
9.6 State Law. This Plan is established under and
will be construed according to the laws of the State of New
York to the extent that such laws are not preempted by ERISA.
9.7 Incapacity of Recipient. In the event a Participant or
Beneficiary is declared incompetent and a guardian, conservator or
other person legally charged with the care of his person or of his
estate is appointed, any amounts to which such Participant or
Beneficiary is entitled under this Plan shall be paid to such
guardian, conservator or other person legally charged with the care
of his person or his estate. Except as provided herein, when the Plan
Administrator, in its sole discretion, determines that a Participant
or Beneficiary is unable to manage his financial affairs, the Plan
Administrator may direct the Employer, or Employers responsible for
payment to make payments to any person for the benefit of such
Participant or Beneficiary.
9.8 Unclaimed Benefit. Each Participant shall keep the Plan
Administrator informed of his current address. The Plan Administrator
shall not be obligated to search for the whereabouts of any person.
If the location of a Participant is not made known to the Plan
Administrator within three years after the date on which any payment
of the Participant's benefit hereunder may be made, payment may be
made as though the Participant had died at the end of the three-year
period. If, within one additional year after such three-year period
has elapsed, or, within three years after the actual death of a
Participant, whichever occurs first, the Plan Administrator is unable
to locate the Beneficiary of the Participant, the Participant and his
Beneficiary shall forfeit all rights to any payments under this Plan.
9.9 Elections, Applications, Notices. Every
direction, revocation or notice authorized or required
hereunder shall be deemed delivered to the Employers or the
Plan Administrator as the case may be: (a) on the date it is
<PAGE>
- 12 -
personally delivered to the Plan Administrator (with a copy to the
Bank's General Counsel) at the Bank's executive offices at Buffalo,
New York or (b) three business days after it is sent by registered or
certified mail, postage prepaid, addressed to the Plan Administrator
(with a copy to the Bank's General Counsel) at the offices indicated
above, and shall be deemed delivered to a Participant or Beneficiary:
(a) on the date it is personally delivered to such individual, or (b)
three business days after it is sent by registered or certified mail,
postage prepaid, addressed to such individual at the last address
shown for him on the records of the Employers. Any notice required
hereunder may be waived by the person entitled thereto.
9.10 Severability. In the event any provision of this Plan
shall be held illegal or invalid for any reason, such illegality or
invalidity shall not affect the remaining provisions of this Plan.
This Plan shall be construed and enforced as if such illegal or
invalid provision had never been contained herein.
9.11 Headings. The headings of Sections of this Plan are for
convenience of reference only and shall have no substantive effect on
the provisions of this Plan.
Exhibit 5
December 23, 1997
First Empire State Corporation
One M&T Plaza
Buffalo, New York 14240
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-8
("Registration Statement") of First Empire State Corporation (the "Corporation")
related to the registration of 15,000 shares of the Corporation's common stock,
par value $5.00 per share ("Common Stock"), and the Deferred Compensation
Obligations which are to be offered or sold pursuant to the First Empire State
Corporation Deferred Bonus Plan (the "Plan").
I have been requested to furnish an opinion to be included as Exhibit 5
to the Registration Statement. In conjunction with the furnishing of this
opinion, I have examined such corporate documents and have made such
investigation of matters of fact and law as I have deemed necessary to render
this opinion.
Based upon such examination and investigation, and upon the assumption
that there will be no material changes in the documents examined and matters
investigated, I am of the opinion that:
(i) the 15,000 shares of Common Stock referred to above have been duly
authorized by the Corporation and that, when issued in accordance with
the terms of the Plan, will be legally issued, fully paid and
nonassessable; and
(ii) the Deferred Compensation Obligations, when issued by the
Corporation in the manner provided pursuant to the Plan, will be valid
and binding obligations of the Corporation, enforceable against the
Corporation in accordance with the terms of the Plan, subject, as to
enforcement, (x) to bankruptcy, insolvency, reorganization,
readjustment of debt, arrangement, moratorium, fraudulent conveyance
and other laws of general applicability relating to or affecting
creditor's rights generally, and (y) to general principles of equity,
whether such enforcement is considered in a proceeding at equity or
law.
<PAGE>
I consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Richard A. Lammert
-----------------------------------
Richard A. Lammert, Esq.
Senior Vice President and
General Counsel
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 relating to the First Empire State Corporation's Deferred
Bonus Plan of our report dated January 9, 1997 appearing on page 54 of the First
Empire State Corporation Annual Report on Form 10-K for the year ended December
31, 1996. We also consent to the reference to us under the heading "Experts" in
such Registration Statement.
/s/ PRICE WATERHOUSE LLP
Buffalo, New York
December 22, 1997
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ Robert G. Wilmers
-------------------------------
Robert G. Wilmers
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ Brent D. Baird
-------------------------------
Brent D. Baird
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ C. Angela Bontempo
-------------------------------
C. Angela Bontempo
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ Patrick J. Callan
-------------------------------
Patrick J. Callan
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ Michael R. Spychola
-------------------------------
Michael R. Spychola
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ Lambros J. Lambros
-------------------------------
Lambros J. Lambros
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ Raymond D. Stevens, Jr.
-------------------------------
Raymond D. Stevens, Jr.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ Herbert L. Washington
-------------------------------
Herbert L. Washington
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ John H. Benisch
-------------------------------
John H. Benisch
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ Robert T. Brady
-------------------------------
Robert T. Brady
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ Richard E. Garman
-------------------------------
Richard E. Garman
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ James V. Glynn
-------------------------------
James V. Glynn
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ Roy M. Goodman
-------------------------------
Roy M. Goodman
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ Patrick W.E. Hodgson
-------------------------------
Patrick W.E. Hodgson
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ Samuel T. Hubbard, Jr.
-------------------------------
Samuel T. Hubbard, Jr.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ Wilfred J. Larson
-------------------------------
Wilfred J. Larson
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ Jorge G. Pereira
-------------------------------
Jorge G. Pereira
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of First Empire State Corporation, a corporation organized under the
laws of the State of New York, (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert, Timothy G. McEvoy, Catherine C. McCoy and Steven
Kaplan, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 (or any other appropriate form),
and any and all amendments (including post-effective amendments) thereto, with
all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration under the Securities Act of 1933, as
amended, of shares of the Corporation's common stock authorized to be issued or
sold pursuant to the Corporation's Deferred Bonus Plan, and of plan interests in
such plan, granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully to all intents and
purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned director and/or officer has
hereunto set his or her hand as of the date specified.
Dated: December 19, 1997
/s/ John L. Wehle, Jr.
-------------------------------
John L. Wehle, Jr.
