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Registration No.__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EMPIRE BANC CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
MICHIGAN 38-2727982
(State of Incorporation) (IRS Employer Identification No.)
1227 E. Front Street
Traverse City, Michigan 49686
(Address of Principal Executive Offices)
EMPIRE NATIONAL BANK
SAVINGS, INVESTMENT AND RETIREMENT PLAN
(Full Title of the Plan)
William T. Fitzgerald, Jr.
Vice President and Secretary/Treasurer
Empire Banc Corporation
1227 E. Front Street
Traverse City, Michigan 49686
(616) 922-2111
(Name, Address and Telephone Number of Agent for Service)
Copy to:
Melanie Mayo West, Esq.
Howard & Howard Attorneys, P.C.
1400 N. Woodward Avenue, Suite 101
Bloomfield Hills, Michigan 48304-2856
(248) 645-1483
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
- --------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$5.00 50,000 $ 45.00 (3) $2,250,000 (3) $ 681.82 (3)
par value (1) shares (2)
(1) Also includes an equal number of Rights to purchase shares of
Registrant's Series A Junior Participating Preferred Stock, which
Rights are not (a) separable from the shares of Common Stock; or (b)
presently exercisable.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(3) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the amount of the registration fee, based on the $ 45.00
average of the closing bid and ask prices for the Registrant's Common
Stock on September 25, 1997.
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Part II. Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange Commission
(the "Commission") by the Registrant (File No. 0-15839) are incorporated
in this Registration Statement by reference:
(1) the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996;
(2) the Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997 and June 30, 1997;
(3) all other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
since December 31, 1996; and
(4) the description of the Registrant's Common Stock, $5.00 par value,
contained in the Registrant's Registration Statement filed under the
Exchange Act, and the description of the Registrant's Series A
Junior Participating Preferred Stock Purchase Rights, contained in
the Registrant's Registration Statement on Form 8-A dated December
20, 1990 filed under the Exchange Act, including any amendments or
reports filed for the purpose of updating such descriptions.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Sections 551 through 569 of the Michigan Business Corporation Act (the
"Act") and Article 5 of the Registrant's Bylaws relate to indemnification
of the Registrant's directors and officers, among others, in a variety of
circumstances against liabilities arising in connection with the
performance of their duties. The Registrant's Bylaws generally permit
indemnification to the same extent provided by the Act.
The Act provides for indemnification of directors and officers acting in
good faith and in a manner they reasonably believe to be in or not opposed
to the best interest of the Registrant (and, if a criminal proceeding, who
have no reasonable cause to believe their conduct to be unlawful) against
(i) expenses (including attorney's fees) and amounts paid in settlement
actually and reasonably incurred in connection with any threatened,
pending, or completed action, suit or proceeding (other than an action by,
or in the right of the Registrant) arising out of a position with the
Registrant (or with some other entity at the Registrant's request) and
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(ii) expenses (including attorney's fees) and amounts paid in settlement
actually and reasonably incurred in connection with threatened, pending,
or completed actions or suits by or in the right of the Registrant, unless
the director or officer is found liable to the Registrant and an
appropriate court does not determine that he or she is nevertheless fairly
and reasonably entitled to indemnity. The Act requires indemnification
for expenses to the extent that a director or officer is successful in
defending against any such action, suit or proceeding, and otherwise
requires in general that the indemnification provided for in (i) and (ii)
above be made only on a determination by a majority vote of a quorum of
the Board of Directors who were not parties to or threatened to be made
parties to the action, suit, or proceeding, by a majority vote of a
committee of not less than two disinterested directors, by independent
legal counsel, by all independent directors not parties to or threatened
to be made parties to the action, suit or proceeding, or by the
shareholders, that the applicable standards of conduct were met. In
certain circumstances, the Act further permits advances to cover such
expenses before a final determination that indemnification is permissible,
upon receipt of an undertaking, which need not be secured, by or on behalf
of the directors or officers to repay such amounts unless it shall
ultimately be determined that they are entitled to indemnification.
Indemnification under the Act is not exclusive of other rights to
indemnification to which a person may be entitled under the Articles of
Incorporation, the Bylaws or a contractual agreement.
The Act permits the Registrant to purchase insurance on behalf of its
directors and officers against liabilities arising out of their positions
with the Registrant, whether or not such liabilities would be within the
foregoing indemnification provisions. Pursuant to this authority, the
Registrant maintains such insurance on behalf of its directors and
officers.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following Exhibits are filed or incorporated by reference
as part of this Registration Statement.
4. (a) Articles of Incorporation of Empire Banc Corporation
(incorporated by reference to Exhibit B to Registrant's
definitive Proxy Statement filed March 27, 1994 in
connection with Registrant's 1994 Annual Meeting of
Shareholders).
(b) Bylaws of Empire Banc Corporation (incorporated by
reference to an exhibit to Registrant's Current Report on
Form 8-K dated January 26, 1995).
(c) Rights Agreement dated December 19, 1990 between Registrant
and Empire National Bank of Traverse City as Rights Agent
(incorporated by reference to an exhibit to Registrant's
Current Report on Form 8-K dated December 19, 1990).
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5. (a) Opinion and Consent of Howard & Howard Attorneys, P.C.
(b) Determination letter issued by the Internal Revenue Service.
15. Not applicable.
23. (a) Consent of Crowe, Chizek and Company LLP
(b) Consent of Howard & Howard Attorneys, P.C. (incorporated
by reference to Exhibit 5 of this Registration Statement).
28. Not applicable.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement;
(iii) to include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)
(ii) do not apply if the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in this
registration statement.
(2) that, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein,
and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) to remove from registration by means of a post-effective
amendment of any of the securities being registered which
remain unsold at the termination of the offering.
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(b) The undersigned Registrant hereby certifies that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in the Registration Statement shall be deemed to be
a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, directors
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred
or paid by a director, officer, or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Traverse, State of Michigan,
on September 25, 1997.
EMPIRE BANC CORPORATION
By: /s/ William T. Fitzgerald, Jr.
_________________________________
William T. Fitzgerald, Jr.
Its: Vice President and
Secretary/Treasurer
POWER OF ATTORNEY
The undersigned officers and directors of Empire Banc Corporation, a
Michigan corporation, do hereby constitute and appoint William T.
Fitzgerald, Jr., James E. Dutmers, Jr., Robert L. Israel and any one of
them, the lawful attorneys and agents or attorneys and agent, with power
and authority to do any and all acts and things and to execute any and all
instruments which said attorneys and agents, and any one of them,
determine may be necessary or advisable or required to enable said
corporation to comply with the Securities Act of 1933, as amended, and any
rules or regulations or requirements of the Securities and Exchange
Commission in connection with this Registration Statement. Without
limiting the generality of the foregoing power and authority, the powers
granted include the power and authority to sign the names of the
undersigned officers and directors in the capacities indicated below to
this Registration Statement, to any and all amendments, both pre-effective
and post-effective, and supplements to this Registration Statement and to
any and all instruments or documents filed as part of or in conjunction
with this Registration Statement or amendments or supplements thereto, and
each of the undersigned hereby ratifies and confirms all that said
attorneys and agents or any of them shall do or cause to be done by virtue
hereof. This Power of Attorney may be signed in several counterparts.
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IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated below.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 25 day of September, 1997.
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<S> <C>
/s/ James E. Dutmers, Jr.
___________________________________ Chairman and Chief
James E. Dutmers, Jr. Executive Officer
(Principal Executive
Officer)
/s/ Robert L. Israel
___________________________________ President and Chief
Robert L. Israel Operating Officer
/s/ William T. Fitzgerald, Jr.
___________________________________ Chief Financial Officer
William T. Fitzgerald, Jr. Secretary/Treasurer
(Principal Financial
and Accounting Officer)
/s/ John R. Anderson
__________________________________ Director
John R. Anderson
___________________________________ Director
Michael H. Dennos
/s/ Don A. Good, M.D.
___________________________________ Director
Don A. Good, M.D.
/s/ Deborah J. Knudsen
___________________________________ Director
Deborah J. Knudsen
/s/ Thomas G. McIntyre
___________________________________ Director
Thomas G. McIntyre
/s/ Ronald G. Reffitt, Sr.
___________________________________ Director
Ronald G. Reffitt, Sr.
___________________________________ Director
John M. Rockwood, Jr.
/s/ Laurence P. Skendzel, M.D.
___________________________________ Director
Laurence P. Skendzel, M.D.
____________________________________ Director
Louis A. Smith
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EXHIBIT INDEX
Number
5(a) Opinion of Howard & Howard Attorneys, P.C., including Consent
5(b) Determination letter issued by the Internal Revenue Service
23(a) Consent of Crowe, Chizek and Company LLP
Howard & Howard Attorneys, P.C.
1400 N. Woodward Avenue, Suite 101
Bloomfield Hills, Michigan 48304-2856
(810) 645-1483
September 24, 1997
Empire Banc Corporation
1227 E. Front Street
Traverse City, Michigan 49686
Attention: William T. Fitzgerald, Jr.
Greetings:
We have acted as counsel to Empire Banc Corporation (the "Company") in
connection with the preparation and filing of a registration statement
on Form S-8 (the "Registration Statement") under the Securities Act of
1933, relating to the registration of (a) up to 50,000 shares of the
Company's Common Stock, par value $5.00 per share, plus an equal number
of Rights to purchase shares of Registration Series A Junior Participating
Preferred Stock, to be issued and sold to participants in the Empire Banc
Corporation Savings, Investment and Retirement Plan (the "Plan") and (b)
an indeterminable amount of interests of participation in the Plan (the
"Plan Interests").
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such corporate records, certificates, and other
documents and conducted interviews with officers as we considered
necessary or appropriate for the purpose of this opinion.
It is our opinion that, when the Registration Statement has become
effective in accordance with applicable law, (1) the 50,000 shares of the
Company's Common Stock to be registered, when issued or sold pursuant to
and in accordance with the terms of the Plan, will be validly issued,
fully paid and non-assessable and (2) the Plan Interests, being
registered, when issued pursuant to and in accordance with the terms of
the Plan, will be validly issued.
We hereby consent to the filing of this opinion and to the reference to
Howard & Howard in Exhibit 5 to the Registration Statement.
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This opinion is rendered pursuant to Item 8 of Form S-8 and Item 601 of
Regulation S-K may be relied upon only by the Company and the Securities
and Exchange Commission and may not be used, quoted or referred to and/or
filed with any other person without our prior written permission.
Very truly yours,
HOWARD & HOWARD ATTORNEYS, P.C.
/s/ Melanie Mayo West
_____________________
Melanie Mayo West
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P. O. BOX 2508
CINCINNATI, OH 45201
Employer Identification Number:
Date: AUG 11, 1994 38-0519407
File Folder Number:
EMPIRE NATIONAL BANK 380000369
C/O ROBERT B. JOHNSTON Person to Contact:
HOWARD & HOWARD ATTORNEYS P C PAT MITCHELL
1400 N. WOODWARD AVE., SUITE 250 Contact Telephone Number:
BLOOMFIELD HILLS, MI 48304 (513) 684-3241
Plan Name:
EMPIRE NATIONAL BANK SAVINGS
INVESTMENT AND RETIREMENT PLAN
Plan Number: 001
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your
permanent records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the
qualified status of your employee retirement plan, and provides
information on the reporting requirements for your plan. It also
describes some events that automatically nullify it. It is very
important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other
federal or local statutes.
This determination is subject to your adoption of the proposed amendments
submitted in your letter dated August 2, 1994. The proposed amendments
should be adopted on or before the date prescribed by the regulations
under Code section 401(b).
This determination letter is applicable for the amendment(s) adopted on
April 7, 1994.
This plan has been mandatorily disaggregated, permissively aggregated,
or restructured to satisfy the nondiscrimination requirements.
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This plan satisfies the nondiscrimination in amount requirement of section
1.401(a)(4)-1(b)(2) of the regulations on the basis of a design-based safe
harbor described in the regulations.
This letter is issued under Rev. Proc. 93-39 and considers the amendments
required by the Tax Reform Act of 1986 except as otherwise specified in
this letter.
This plan satisfies the nondiscriminatory current availability
requirements of section 1.401(a)(4)-4(b) of the regulations with respect
to those benefits, rights, and features that are currently available to
all employees in the plan's coverage group. For this purpose, the plan's
coverage group consists of those employees treated as currently benefiting
for purposes of demonstrating that the plan satisfies the minimum coverage
requirements of section 401(b) of the Code.
The plan qualifies for Extended Reliance described in the last paragraph
of Publication 794 under the caption "Limitations of a Favorable
Determination Letter."
We have sent a copy of this letter to your representative as indicated in
the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/ C. Ashley Bullard
_____________________
C. Ashley Bullard
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
of Empire Banc Corporation on Form S-8 for the Empire National Bank
Savings, Investment and Retirement Plan, of our report dated January 23,
1997 on the consolidated financial statements of Empire Banc Corporation,
as of December 31, 1996 and 1995 and for each of the three years in the
period ended December 31, 1996, which report is included in the 1996 Annual
Report on Form 10-K of Empire Banc Corporation.
/s/ Crowe, Chizek and Company LLP
_____________________________________
CROWE, CHIZEK AND COMPANY LLP
Grand Rapids, Michigan
September 18, 1997
