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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
ONBANCorp, Inc.
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(Name of Issuer)
COMMON STOCK
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(Title of Class of Securities)
68230310
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(CUSIP Number)
Michael P. Pinto
Executive Vice President and
Chief Financial Officer
First Empire State Corporation
One M&T Plaza
Buffalo, New York 14240
(716) 842-5844
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 28, 1997
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box / /.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 (the "Exchange Act") or otherwise subject to the liabilities of
that section of the Exchange Act but shall be subject to all other provisions
of the Exchange Act.
This Document Consists of 21 Pages.
An Exhibit Index Appears on Sequentially Numbered Page 21.
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CUSIP No. 68230310 Schedule 13D Page 2 of 21
1. Name of Reporting Person: First Empire State Corporation I.R.S.
Identification No. 16-0968385
2. Check the Appropriate Box if a Member of a Group (a) / /
(b) / /
3. SEC USE ONLY
4. Source of Funds: WC, OO
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant
To Items 2(d) or 2(e) / /
6. Citizenship or Place of Organization: New York
Number of 7. Sole Voting Power: 0(1)
Shares
Beneficially 8. Shared Voting Power: 0(1)
Owned by
Each 9. Sole Dispositive Power: 0(1)
Reporting
Person 10. Shared Dispositive Power: 0(1)
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person: 0(1)
12. Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares /x/
13. Percent of Class Represented by Amount in Row 11: 0%(1)
14. Type of Reporting Person: HC, CO
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(1) The Reporting Person and the Issuer have entered into a Stock Option
Agreement covering 2,529,000 shares of OBC Common Stock (as defined
herein) or approximately 16.6% of the total shares that would be
outstanding following exercise (including the shares issued upon
exercise). Unless and until the option granted thereunder is exercised by
the Reporting Person, the Reporting Person disclaims beneficial ownership
of the shares covered by the Stock Option Agreement.
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CUSIP No. 68230310 Schedule 13D Page 3 of 21
ITEM 1. Security and Issuer.
The title of the class of equity securities to which this Schedule 13D
relates is the common stock, par value $1.00 per share, of ONBANCorp, Inc.
("OBC"). The address of the principal executive offices of OBC is 101 South
Salina Street, Syracuse, N.Y. 13202.
ITEM 2. Identity and Background.
This statement is filed on behalf of First Empire State Corporation
("First Empire"). First Empire is a New York corporation with its principal
executive offices at One M&T Plaza, Buffalo, New York 14240. First Empire is
registered as a bank holding company under the Bank Holding Company Act of
1956, as amended, and is principally engaged in the business of managing and
controlling banks and activities closely related to banking.
Filed as Schedule I to this Schedule 13D is a list of the executive
officers and directors of First Empire containing the following information
with respect to each such person: (a) name, (b) business address and (c)
present principal occupation or employment, and the name and, if different
than such person's business address, the address of any corporation or other
organization in which such employment is conducted. Each person listed in
Schedule I is a United States citizen, except for Patrick W.E. Hodgson, who
is a citizen of Canada, and Jorge G. Pereira, who is a citizen of Portugal.
During the past five years, neither First Empire nor, to the best of
First Empire's knowledge, any person named in Schedule I: (i) has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors), or (ii) has been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction and as a result was or is
subject to a judgment, decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or state
securities laws, or finding any violation with respect to such laws.
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CUSIP No. 68230310 Schedule 13D Page 4 of 21
Item 3. Source and Amount of Funds or Other Consideration.
Pursuant to a Stock Option Agreement dated as of October 28, 1997
("Option Agreement"), OBC has granted to First Empire an option ("Option") to
purchase up to 2,529,000 shares of common stock, par value $1.00 per share,
of OBC ("OBC Common Stock") at a price of $60.00 per share, subject to
adjustment as provided therein. The aggregate amount of funds required to
exercise the Option in full at an exercise price of $60.00 per share would be
$151,740,000. If and when the Option is exercised, First Empire's source of
funds will be either working capital or funds borrowed from one or more banks
in the ordinary course of business; the identity of such bank or banks has
not yet been determined.
Item 4. Purpose of Transaction.
On October 28, 1997, First Empire, Olympia Financial Corp., a wholly
owned subsidiary of First Empire ("Merger Sub") and OBC entered into an
Agreement and Plan of Reorganization ("Reorganization Agreement") that
provides that OBC shall be acquired by First Empire through the merger
("Merger") of OBC with and into Merger Sub, with Merger Sub as the surviving
corporation (the "Surviving Corporation") pursuant to an Agreement and Plan
of Merger (the "Plan of Merger," and, together with the Reorganization
Agreement, the "Merger Agreements").
At the Effective Time (as defined in the Plan of Merger), all of the
shares of capital stock of OBC shall, by virtue of the Merger, be converted
into the right to receive the consideration described below and all of the
shares of capital stock of Merger Sub issued and outstanding immediately
prior to the Effective Time shall constitute all of the then-issued and
outstanding shares of capital stock of the Surviving Corporation. The
Surviving Corporation shall remain a wholly-owned subsidiary of First Empire.
Following the consummation of the Merger, First Empire will contribute to
the Surviving Corporation all of the issued and outstanding capital stock of
Manufacturers and Traders Trust Company ("M&T Bank"), a New York-chartered
commercial bank subsidiary of First Empire and immediately thereafter OnBank
& Trust Co. ("OnBank"), a New
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CUSIP No. 68230310 Schedule 13D Page 5 of 21
York-chartered commercial bank subsidiary of OBC, and Franklin First Savings
Bank ("Franklin First" and, together with OnBank, the "OBC Banks"), a
Pennsylvania-chartered savings bank subsidiary of OBC, shall merge with M&T
Bank ("Bank Merger"), pursuant to an Agreement and Plan of Merger ("Bank
Merger Agreement") in a form to be specified by First Empire and reasonably
acceptable to OBC.
Under the Plan of Merger, and subject to the other provisions therein,
each share of OBC Common Stock issued and outstanding immediately prior to
the Effective Date shall, by virtue of the Merger, automatically and without
any action on the part of the holder thereof, become and be converted into
(i) the right to receive $69.50 in cash without interest or (ii) the right to
receive 0.161 shares of common stock, par value $5.00 per share, of First
Empire ("First Empire Common Stock"). Subject to adjustments set forth in
the Plan of Merger, the number of shares of OBC Common Stock to be converted
into the right to receive shares of First Empire Common Stock in the Merger
(the "Stock Election Number") shall not be less than 7,627,083 shares or more
than 8,898,264 shares. The right to receive shares of First Empire Common
Stock is subject to the allocation and election procedures set forth in the
Plan of Merger. Notwithstanding the foregoing, no conversion shall be made in
respect of any share of OBC Common Stock the holder of which, pursuant to any
applicable law providing for dissenters' or appraisal rights is entitled to
receive payment in accordance with the provisions of any such law, such
holder to have only the rights provided in any such law.
First Empire and OBC have entered into the Option Agreement as a
condition to First Empire's entering into the Reorganization Agreement and to
facilitate the consummation of the Merger, the Bank Merger and the other
transactions contemplated by the Reorganization Agreement and the Plan of
Merger (collectively, the "Transactions").
Consummation of the Transactions is subject to, among other things,
receipt of all necessary shareholder and government approvals. Upon
consummation of the Transactions, the separate corporate existence of OBC
shall cease, and all outstanding shares of OBC Common Stock (other than
shares held by OBC shareholders who exercise dissenters' rights, if any are
available, and except as otherwise provided in the Reorganization Agreement)
will be converted into First Empire Common Stock and cash in lieu
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CUSIP No. 68230310 Schedule 13D Page 6 of 21
of any fractional interest, or cash pursuant to the allocation and election
procedures set forth in the Plan of Merger. As a result, OBC Common Stock
will cease to be authorized and quoted in an inter-dealer quotation system of
a registered national securities association and will become eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934 (the "Exchange Act").
First Empire and/or, with First Empire's consent, OBC may purchase shares
of OBC Common Stock in the open market or private transactions prior to the
consummation of the Transactions. First Empire currently is considering the
feasibility of doing so and may undertake such transactions at the conclusion
of such consideration, either through purchases in the open market or in
privately negotiated transactions.
Except as otherwise set forth in Items 4, 5 and 6 hereof and the Exhibits
to this Schedule 13D (which are hereby incorporated by reference herein and
made a part hereof to the same extent as though set forth herein in full),
First Empire does not now have any plans or proposals which relate to or
would result in (i) the acquisition by any person of additional securities of
OBC, or the disposition of securities of OBC; (ii) an extraordinary corporate
transaction, such as a merger, reorganization or liquidation, involving OBC
or any of its subsidiaries; (iii) any change in the present Board of
Directors or management of OBC, including any change in the number or term of
OBC directors or the filling of any existing vacancies on the Board of
Directors of OBC; (iv) any material change in the present capitalization or
dividend policy of OBC; (v) any other material change in the business or
corporate structure of OBC; (vi) changes in OBC's charter, bylaws or
instruments corresponding thereto or other actions which may impede the
acquisition of control of OBC by any person; (vii) causing a class of
securities of OBC to be delisted from a national securities exchange or to
cease to be authorized to be quoted in an inter-dealer quotation system of a
registered national securities association; or (viii) a class of equity
securities of OBC becoming eligible for termination of registration pursuant
to Section 12(g)(4) of the Exchange Act.
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Item 5. Interest in Securities of the Issuer.
The 2,529,000 shares of OBC Common Stock subject to the Option represent
approximately 16.6% of the 15,241,981 shares of OBC Common Stock that would
be issued and outstanding upon exercise of the Option in full (including the
shares issued upon exercise of the Option). Unless and until the Option is
exercised, First Empire disclaims beneficial ownership of the OBC Common
Stock subject to the Option.
Except as otherwise described herein, neither First Empire, nor, to the
best of First Empire's knowledge, any of the persons listed on Schedule I
hereto, beneficially owns any shares of OBC Common Stock. Mr. Robert G.
Wilmers, Chairman, President and Chief Executive Officer of First Empire and
a person listed on Schedule I hereto, currently beneficially owns one (1)
share of OBC Common Stock. Other than as described in this Schedule 13D, no
transactions in OBC Common Stock were effected during the past 60 days by
First Empire, or, to the best of First Empire's knowledge, by any of the
persons listed on Schedule I hereto.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities
of the Issuer.
Option Agreement
Set forth below is a description of selected provisions of the Option
Agreement. Such description is qualified in its entirety by reference to the
copy of the Option Agreement filed as an Exhibit to First Empire's Current
Report on Form 8-K filed on November 7, 1997, incorporated herein by
reference and made a part hereof to the same extent as though set forth
herein in full.
Under the Option Agreement, OBC granted First Empire an unconditional,
irrevocable option (the "Option") to purchase up to 2,529,000 shares of OBC
Common Stock at a purchase price of $60.00 per share. The Option Agreement
was executed to facilitate the Transactions. First Empire, or any other
Holder (as defined in the Option Agreement), may exercise the Option, in
whole or in part, and from time to time, if both an Initial Triggering Event
(as defined herein) and a Subsequent Triggering Event (as defined herein)
shall have occurred after the execution of the
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CUSIP No. 68230310 Schedule 13D Page 8 of 21
Option Agreement and prior to the occurrence of an Exercise Termination Event
(as defined herein).
The term "Initial Triggering Event" shall mean any of the following
events or transactions occurring after the execution of the Option Agreement:
(a) OBC or any of its Subsidiaries (each an "OBC Subsidiary"), without
having received First Empire's prior written consent, shall have entered into
an agreement to engage in an Acquisition Transaction (as defined herein) with
any person other than First Empire or any of its Subsidiaries (each a "First
Empire Subsidiary") or OBC or any of its Subsidiaries, without having
received First Empire's prior written consent, shall have authorized,
recommended, proposed, or publicly announced its intention to authorize,
recommend or propose to engage in an Acquisition Transaction with any person
other than First Empire or a Subsidiary of First Empire;
(b) any person (other than First Empire or any First Empire Subsidiary)
shall have acquired beneficial ownership or the right to acquire beneficial
ownership of 10% or more of the outstanding shares of OBC Common Stock or any
person other than First Empire or First Empire Subsidiary shall have
commenced, or shall have filed or publicly disseminated a registration
statement or similar disclosure statement with respect to, a tender offer or
exchange offer to purchase any shares of OBC Common Stock such that, upon
consummation of such offer, such person would own or control 10% or more of
the then outstanding shares of OBC Common Stock (such an offer being referred
to herein as a "Tender Offer" or an "Exchange Offer," respectively);
(c) the holders of OBC Common Stock shall not have approved the Merger
Agreements and the transactions contemplated thereby, at the meeting of such
stockholders held for the purpose of voting an such agreement, such meeting
shall not have been held or shall have been canceled prior to termination of
the Merger Agreements, or the Board of Directors of OBC shall have publicly
withdrawn or modified, or publicly announced its intent to withdraw or
modify, in any manner adverse to First Empire, its recommendation that the
stockholders of OBC approve the transactions contemplated by the Merger
Agreements, in each case after it shall have been publicly announced that any
person other than First Empire or any First Empire Subsidiary shall have
made, or disclosed an intention to make, a proposal to
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CUSIP No. 68230310 Schedule 13D Page 9 of 21
engage in an Acquisition Transaction, commenced a Tender Offer, or filed or
publicly disseminated a registration statement or similar disclosure
statement with respect to an Exchange Offer, or filed an application (or
given a notice), whether in draft or final form, under any federal or state
banking laws seeking regulatory approval to engage in an Acquisition
Transaction; or
(d) after an overture is made by a third party to OBC or its
stockholders to engage in an Acquisition Transaction, OBC shall have breached
any covenant or obligation contained in the Reorganization Agreement and such
breach would entitle First Empire to terminate the Merger Agreements and
shall not have been cured prior to the Notice Date (as defined in the Option
Agreement).
An "Acquisition Transaction" shall mean:
(a) a merger or consolidation, or any similar transaction, involving OBC
or any Significant Subsidiary (as defined in Rule 1-02 of Regulation S-X
promulgated by the Securities and Exchange Commission (the "SEC")) of OBC;
(b) a purchase, lease or other acquisition or assumption of all or a
substantial portion of the assets or deposits of OBC or any Significant
Subsidiary of OBC;
(c) a purchase or other acquisition (including by way of merger,
consolidation, share exchange or otherwise) of securities representing 10% or
more of the voting power of OBC; or
(d) any substantially similar transaction; provided, however, that in no
event shall any merger, consolidation, purchase or similar transaction
involving only OBC and one or more of its Subsidiaries or involving only two
or more of such Subsidiaries, be deemed to be an Acquisition Transaction,
provided that any such transaction is not entered into in violation of the
terms of the Merger Agreements.
A "Subsequent Triggering Event" shall mean either of the following events
or transactions occurring after the execution of the Option Agreement:
(a) the acquisition by any person of beneficial ownership of 25% or more
of the then outstanding shares of OBC Common Stock; or
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CUSIP No. 68230310 Schedule 13D Page 10 of 21
(b) the occurrence of the Initial Triggering Event described above in
clause (a) of the paragraph defining Initial Trigger Events, except that the
percentage referred to in clause (c) of the paragraph defining Acquisition
Transactions shall be 25%.
The Option may be exercised in whole or in part, and from time to time, if
both an Initial Triggering Event and a Subsequent Triggering Event shall have
occurred; provided that, to the extent the Option shall not have been exercised
it shall terminate and be of no further force and effect upon the occurrence of
an Exercise Termination Event. Each of the following shall be an "Exercise
Termination Event":
(a) the Effective Time (as defined in the Plan of Merger) of the Merger;
(b) termination of the Merger Agreements in accordance with the
provisions thereof if such termination occurs prior to the occurrence of an
Initial Triggering Event except a termination by First Empire pursuant to
Section 6.1(b)(i) of the Reorganization Agreement, which allows First Empire
or OBC to terminate the Merger Agreements if the other has breached in any
material respect any covenant or agreement contained in the Reorganization
Agreement or Plan of Merger, unless the breach by OBC giving rise to such
right of termination is non-volitional; or
(c) the passage of 12 months after termination of the Merger Agreements
if such termination follows the occurrence of an Initial Triggering Event or
is a termination by First Empire pursuant to Section 6.1(b)(i) of the
Reorganization Agreement, unless the breach by OBC giving rise to such right
of termination is non-volitional.
Notwithstanding anything to the contrary contained in the Option
Agreement, the Option may not be exercised (nor may First Empire's rights
under Section 13 of the Option Agreement, as defined therein, be exercised)
at any time when First Empire shall be in willful breach of any of its
covenants or agreements contained in the Merger Agreements under
circumstances that would entitle OBC to terminate the Merger Agreements
without regard to any grace period provided for in the Reorganization
Agreement. In the event that OBC terminates the Merger
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Agreements under the provision of the Reorganization Agreement (discussed
herein) permitting termination upon execution by OBC of definitive agreement
relating to a takeover proposal (as defined in the
Reorganization Agreement), then immediately upon First Empire's receipt of
the wire transfer contemplated by such provision, the Option Agreement shall
terminate and shall become void and have no further force or effect and First
Empire shall surrender the Option Agreement to OBC.
In the event that any additional shares of OBC Common Stock are either
(i) issued or otherwise become outstanding after the date of the Option
Agreement (other than pursuant to the Option Agreement or as permitted under
the terms of the Merger Agreements) or (ii) redeemed, repurchased, retired or
otherwise cease to be outstanding after the date of the Option Agreement, the
number of shares of OBC Common Stock subject to the option shall be increased
or decreased, as appropriate, so that, after such issuance, such number
equals 19.9% of the number of shares of OBC Common Stock then issued and
outstanding without giving effect to any shares subject or issued pursuant to
the Option. In addition, in the event of any change in, or distributions in
respect of, OBC Common Stock by reason of stock dividends, split-ups,
mergers, recapitalizations, combinations, subdivisions, conversions,
exchanges of shares, distributions on or in respect of OBC Common Stock that
would be prohibited under the terms of the Merger Agreements, or the like,
the type and number of shares of OBC Common Stock purchasable upon exercise
of the Option and the Option Price shall be appropriately adjusted in such
manner as shall fully preserve the economic benefits provided under the
Option Agreement and proper provision shall be made in any agreement
governing any such transaction to provide for such proper adjustment and the
full satisfaction of OBC's obligations under the Option Agreement.
Notwithstanding any other provision of the Option Agreement, in no event
shall First Empire's Total Profit (as defined herein) exceed $43.6 million
and, if it otherwise would exceed such amount, First Empire, at its sole
election, shall either (i) reduce the number of shares of Common Stock
subject to the Option Agreement, (ii) deliver to OBC for cancellation Option
Shares previously purchased by First Empire, (iii) pay cash to OBC, or (iv)
any combination thereof, so that First Empire's actually realized Total
Profit shall not exceed $43.6 million after taking into account the foregoing
actions. The term "Total Profit" shall mean the aggregate amount (before
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CUSIP No. 68230310 Schedule 13D Page 12 of 21
taxes) of (i)(x) the net cash amounts received by First Empire pursuant to
the sale of Option Shares (or any other securities into which such Option
Shares are converted or exchanged) to any unaffiliated party, less (y) First
Empire's purchase price of such Option Shares, plus (ii) any amounts received
by First Empire on the transfer of the Option (or any portion thereof) to any
unaffiliated party. Notwithstanding any other provision of the Option
Agreement, the Option may not be exercised for a number of shares as would,
as of the date of exercise, result in a Notional Total Profit (as defined
herein) of more than $43.6 million; provided, that this provision does not
restrict exercise of the Option on any subsequent date. The term "Notional
Total Profit" with respect to any number of shares as to which First Empire
may propose to exercise the Option shall be the Total Profit determined as of
the date of such proposed exercise assuming that the Option were exercised an
such date for such number of shares and assuming that such shares, together
with all other Option Shares held by First Empire and its affiliates as of
such date, were sold for cash at the closing market price for OBC Common
Stock as of the close of business on the preceding trading day (less
customary brokerage commissions).
Merger Agreements
Set forth below is a description of selected provisions of the Merger
Agreements. Such description is qualified in its entirety by reference to
the copy of the Merger Agreements filed as Exhibits to First Empire's Current
Report on Form 8-K filed on November 7, 1997, and incorporated herein by
reference and made a part hereof to the same extent as though set forth
herein in full.
The Merger Agreements provide that OBC shall be acquired by First Empire
through the merger of OBC with and into Merger Sub, with Merger Sub as the
Surviving Corporation pursuant to the Plan of Merger. At the Effective Time
(as defined in the Plan of Merger), all of the shares of capital stock of OBC
shall, by virtue of the Merger, be converted into the right to receive the
consideration described in Item 4 and all of the shares of capital stock of
Merger Sub issued and outstanding immediately prior to the Effective Time
shall constitute all of the then-issued and outstanding shares of capital
stock of the Surviving Corporation. The Surviving
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Corporation shall remain a wholly-owned subsidiary of First Empire.
Following the consummation of the Merger, First Empire will contribute to
the Surviving Corporation all of the issued and outstanding capital stock of
M&T Bank, and, immediately thereafter the OBC Banks shall merge with and into
M&T Bank ("Bank Merger"), pursuant to an Agreement and Plan of Merger ("Bank
Merger Agreement") in a form to be specified by First Empire and reasonably
acceptable to OBC.
Each record holder of shares, or of options to purchase shares, of OBC
Common Stock will be entitled to elect to receive cash for all of such shares
(as described in Item 4 herein), to elect to receive First Empire Common
Stock for all such shares (as described in Item 4 herein) or to indicate that
such record holder has no preference as to the receipt of cash or First
Empire Common Stock for such shares. Subject to adjustments set forth in the
Plan of Merger, the number of shares of OBC Common Stock to be converted into
the right to receive shares of First Empire Common Stock in the Merger shall
not be less than 7,627,083 or more than 8,898,264 shares. The right to
receive shares of First Empire Common Stock is subject to the allocation and
election procedures set forth in the Plan of Merger.
Prior to the Closing Date, as defined in the Reorganization Agreement,
and except as otherwise provided for by the Merger Agreements or consented to
or approved by First Empire, OBC and any OBC Subsidiary (as defined in the
Reorganization Agreement) shall use their respective reasonable best efforts
in good faith to (i) take or cause to be taken all action necessary or
desirable on its part so as to permit consummation of the Transactions at the
earliest possible date; (ii) take or cause to be taken all action necessary
or desirable to preserve their respective properties, business and
relationships with customers, employees and other persons; and (iii) not take
or cause, nor to the best of its ability, permit any action that would
substantially impair the prospects of completing the Transactions pursuant to
the Merger Agreements. Except with prior written consent of First Empire or
except as previously disclosed or except as expressly contemplated or
permitted by the Merger Agreements, OBC shall, and shall not permit any of
the OBC Subsidiaries to:
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(1) carry on its business other than in the usual, regular and ordinary
course in substantially the same manner as heretofore conducted;
(2) in the case of OBC only, declare, set aside, make or pay any dividend
or other distribution in respect of its capital stock other than its regular
quarterly cash dividends on OBC Common Stock in amounts not in excess of $.34
per share;
(3) issue any shares of its capital stock or permit any treasury shares
to become outstanding other than pursuant to the Option Agreement or
outstanding Rights;
(4) incur any additional debt obligation or other obligation for borrowed
money other than in the ordinary course of business consistent with past
practice;
(5) issue, grant or authorize any Rights or effect any recapitalization,
reclassification, stock dividend, stock split or like change in
capitalization, or redeem, repurchase or otherwise acquire any shares of its
capital stock;
(6) amend its articles or certificate of incorporation or association;
impose, or suffer the imposition, on any share of stock of any OBC Subsidiary
held by OBC of any lien, charge or encumbrance, or permit any such lien,
charge or encumbrance to exist;
(7) merge with any other corporation, savings association or bank or
permit any other corporation, savings association or bank to merge into it or
consolidate with any other corporation, savings association or bank; acquire
control over any other firm, bank, corporation, savings association or
organization; or create any subsidiary;
(8) except in the ordinary course of business, waive or release any
material right or cancel or compromise any material debt or claim;
(9) liquidate or sell or dispose of any assets or acquire any assets, in
each case other than in the ordinary course of business; make any capital
expenditure in excess of $250,000 in any instance or $2,5000,000 in the
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aggregate; establish new branches or other similar facilities or enter into
or modify any leases or other contracts relating thereto that involve annual
payments by such party or any Subsidiary of such party that exceed $100,000
in any instance or $1,000,000 in the aggregate, except with respect to
renewals of leases in the ordinary course of business;
(10) increase the rate of compensation of, pay or agree to pay any bonus
to, or provide any other employee benefit or incentive to, any of its
directors, officers or employees except in a manner consistent with past
practice and for bonuses in respect of 1997 pursuant to the OBC 1987 Annual
Incentive Bonus Plan subject to the limitations set forth under the
Reorganization Agreement;
(11) change its lending , investment, asset/liability management or other
material banking policies in any material respect except as may be required
by changes in applicable law;
(12) change its method of accounting in effect at December 31, 1996,
except as required by changes in generally accepted accounting principles
concurred in by its independent certified public accountant, or change any of
its methods of reporting income and deductions for federal income tax
purposes from those employed in the preparation of its federal income tax
returns for the year ended December 31, 1996, except as required by law;
(13) enter into, modify or extend any employment or severance contracts
with any of its present or former directors, officers or employees;
(14) authorize or permit any of its officers, directors, employees or
agents to directly or indirectly solicit, initiate or encourage any inquiries
relating to, or the making of any proposal which constitutes, a "takeover
proposal" (as defined in the Reorganization Agreement), or, except to the
extent legally required for the discharge of the fiduciary duties of its
Board of Directors, recommend or endorse any takeover proposal, or
participate in any discussion or negotiations, or provide third parties with
any nonpublic information, relating to any such inquiry or proposal or
otherwise facilitate any
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effort or attempt to make or implement a takeover proposal except as provided
under the Reorganization Agreement; or
(15) agree to do any of the foregoing.
Both First Empire and OBC have agreed to use all reasonable efforts to
obtain as soon as practicable all consents and approvals of any persons
necessary or desirable for the consummation of the Transactions, including
but not limited to obtaining the approval of the respective shareholders of
First Empire and OBC, obtaining all consents and approvals required of
applicable federal and state regulatory authorities, and furnishing such
information as may be required in connection with the preparation of the
respective proxy statements and the registration statement, if required.
Neither First Empire nor OBC will take any action that would substantially
impair the prospects of completing the Transactions pursuant to the Merger
Agreements, or that would adversely affect the qualification of the
Transactions as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"). In the event that
either First Empire or OBC has taken any action that would adversely affect
such qualification, each party shall take such action as any other party may
reasonably request to cure such effect to the extent curable without a
Material Adverse Effect (as defined in the Reorganization Agreement) on any
of the respective parties.
For information regarding certain of the terms of the Merger Agreements
and the Option Agreement, reference is made to copies of such agreements
incorporated herein by reference from the Current Report on Form 8-K filed by
First Empire on November 7, 1997.
Item 7. Material to be Filed as Exhibits.
1. Stock Option Agreement dated as of October 28, 1997
2. Agreement and Plan of Reorganization dated as of October 28, 1997.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
Date: November 7, 1997 First Empire State Corporation
By: /s/ Michael P. Pinto
-------------------------------
Michael P. Pinto,
Executive Vice President and
Chief Financial Officer
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SCHEDULE I
Following is a list of the executive officers and directors of First Empire
State Corporation as of November 1, 1997:
Executive Officers:
- --------------------
Name Office
- ---- ------
Emerson L. Brumback Executive Vice-President
Atwood Collins, III Executive Vice President
Mark J. Czarnecki Executive Vice President--M&T Bank
Brian E. Hickey Executive Vice President
James L. Hoffman Executive Vice President
and Treasurer
Adam C. Kugler Executive Vice President
Barbara L. Laughlin Executive Vice President
John L. Pett Executive Vice President and Chief
Credit Officer
Michael P. Pinto Executive Vice President and Chief
Financial Officer
Robert E. Sadler, Jr. Executive Vice President;
Robert G. Wilmers Chairman, President and
Chief Executive Officer
The business address for each executive officer is First Empire State
Corporation, One M&T Plaza, Buffalo, New York 14240.
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Directors:
- ----------
Name and Occupation Business or Residence Address
- ------------------- -----------------------------
Brent D. Baird Trubee, Collins & Co., Inc.
Private Investor 1350 One M&T Plaza
Buffalo, NY 14203-2396
John H. Benisch Collier ABR, Inc.
Founder/Limited Principal 40 East 52nd Street
New York, NY 10022-5911
C. Angela Bontempo Roswell Park Cancer Institute
Senior Vice President and Elm and Carlton Streets
Executive Director Buffalo, NY 14263-0001
Robert T. Brady Moog, Inc.
Chairman, President and 6860 Seneca Street
CEO Building 24
East Aurora, NY 14052-0018
Patrick J. Callan The RREEF Funds
Principal 55 East 52nd Street
31st Floor
New York, NY 10055-3198
Richard E. Garman Buffalo Crushed Stone, Inc.
President and CEO 2544 Clinton Street
Buffalo, NY 14224-1092
Honorable Roy M. Goodman 270 Broadway
New York State Senator New York, NY 10007-2375
Patrick W.E. Hodgson c/o 60 Bedford Road
President Toronto, Ontario
Cinnamon Investments Limited CANADA M5R 2K2
Samuel T, Hubbard, Jr. The Alling & Cory Company
President and CEO 1059 West Ridge Road
P.O. Box 20403
Rochester, NY 14602-0403
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Lambros J. Lambros 131 Goshen Road
Private Investor Norfolk, CT 06058-1301
Wilfred J. Larson c/o 200 Bahia Point
Retired President and CEO Naples, FL 34103-4368
Westwood-Squibb
Pharmaceuticals Inc.
Jorge G. Pereira M&T Bank
Vice Chairman and Private 350 Park Avenue
Investor 6th Floor
New York, NY 10022-6022
Raymond D. Stevens, Jr. c/o 11 Summer Street
Retired Chairman of the Board Suite 308
Pratt & Lambert United, Inc. Buffalo, NY 14209-2256
Herbert L. Washington H.L.W. Fast Track, Inc.
President 3280 Monroe Avenue
Rochester, NY 14618-4608
John L. Wehle, Jr. Genesee Corporation
Chairman, President and CEO 445 St. Paul Street
P.O. Box 762
Rochester, NY 14603-0762
Robert G. Wilmers M&T Bank
Chairman, President and CEO One M&T Plaza
19th Floor
Buffalo, NY 14203-2399
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EXHIBIT INDEX
Location in
Sequentially
Numbered
--------
Copy
-----
Exhibit 1 Stock Option Agreement dated as of Note 1
October 28, 1997
Exhibit 2 Agreement and Plan of Reorganization Note 2
dated as of October 28, 1997
Notes:
- -----
Note 1: Incorporated by reference from Exhibit 99.1 of the Form 8-K filed by
First Empire on November 7, 1997.
Note 2: Incorporated by reference from Exhibit 2.1 of the Form 8-K filed by
First Empire on November 7, 1997.
