sv8
As filed with the Securities and Exchange Commission on December 24, 2009
Registration Statement No. 333-_____________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
M&T BANK CORPORATION
(Exact name of registrant as specified in its charter)
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New York
(State or other jurisdiction of incorporation or
organization)
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16-0968385
(I.R.S. Employer Identification No.) |
One M&T Plaza
Buffalo, New York 14203
(Address of Principal Executive Offices, including zip code)
M&T BANK CORPORATION
RETIREMENT SAVINGS PLAN
(Full title of the plan)
Brian R. Yoshida, Esq.
Administrative Vice President and Deputy General Counsel
M&T Bank Corporation
One M&T Plaza
Buffalo, New York 14203
(716) 842-5464
(Name and address, including zip code, and telephone number, including area code, of agent for
service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
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Large accelerated filer þ
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Accelerated filer o
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company)
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Calculation of Registration Fee
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Proposed Maximum |
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Proposed Maximum |
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Title of Securities |
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Amount to be |
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Offering Price Per |
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Aggregate Offering |
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Amount of |
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to be Registered |
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Registered (1) |
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Share (2) |
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Price (2) |
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Registration Fee |
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Common Stock, $.50 par value |
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3,000,000 |
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$ |
65.07 |
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195,210,000 |
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$ |
13,918.47 |
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(1) |
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This Registration Statement also covers an indeterminate number of additional shares which may
be offered and issued under the employee benefit plan named above to prevent dilution resulting
from stock splits, stock dividends or similar transactions. |
(2) |
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Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(c) and
(h)(1); calculated based on the average of the high and low prices for M&T Bank Corporations
Common Stock on December 21, 2009, as reported on the New York Stock Exchange. |
TABLE OF CONTENTS
PART I
EXPLANATORY NOTE
The purpose of this Registration Statement is to register an additional 3,000,000 shares of
M&T Bank Corporation (M&T) common stock, par value $0.50 per share, for issuance pursuant to the
M&T Bank Corporation Retirement Savings Plan (the Plan). In accordance with Instruction E to
Form S-8, the contents of Registration Statement No. 333-16077, and post-effective amendment No. 1
thereto, and Registration Statement No. 333-84384 are incorporated herein by reference, except as
revised in Part II below.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference into this Registration Statement:
(a) M&Ts Annual Report on Form 10-K for the fiscal year ended December 31, 2008, filed with
the Commission on February 23, 2009;
(b) All other reports filed by M&T pursuant to Section 13(a) of 15(d) of the Securities
Exchange Act of 1934, as amended (the Exchange Act) since the end of the fiscal year covered by
the Annual Report referred to in (a) above, including M&Ts Quarterly Report on Form 10-Q for the
quarter ended March 31, 2009, filed with the Commission on May 8, 2009; M&Ts Quarterly Report on
Form 10-Q for the quarter ended June 30, 2009, filed with the Commission on August 4, 2009 (as
amended on September 3, 2009); M&Ts Quarterly Report on Form 10-Q for the quarter ended September
30, 2009, filed with the Commission on November 5, 2009; and Current Reports on Form 8-K filed with
the Commission on May 28, 2009 and November 19, 2009; and
(c) The description of M&Ts Common Stock contained in the Registration Statement on Form 8-A,
filed by M&T on May 20, 1998, under Section 12(b) of the Exchange Act, including any amendments or
reports filed for the purpose of updating such description.
In addition, all documents subsequently filed by M&T pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, subsequent to the date of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all securities offered hereby have been
sold or which deregisters all securities then remaining unsold, shall also be deemed to be
incorporated by reference into this Registration Statement and to be a part hereof commencing on
the date of the filing of such documents.
Any statement contained herein or in a document all or a portion of which is incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or amended, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Brian R. Yoshida, Esq., Administrative Vice President and Deputy General Counsel of M&T, has
delivered a legal opinion to the effect that the issuance and sale of the M&T Common Stock offered
hereby was duly authorized by M&T and that such M&T Common Stock will be validly issued, fully paid
and nonassessable when issued pursuant to the Plan. Mr. Yoshida currently holds options granted
under the M&T Bank Corporation 2001 Stock Option Plan and the M&T Bank Corporation 2005 Incentive
Compensation Plan and shares of M&T Common Stock which, in the aggregate, account for less than
..01% of M&Ts outstanding Common Stock.
Item 6. Indemnification of Directors and Officers.
Sections 721 through 725 of the New York Business Corporation Law (NYBCL) contain specific
provisions relating to
indemnification of directors and officers of a New York corporation against liability for
their acts under certain circumstances. In general, the statute provides that (1) a corporation
may indemnify any person made, or threatened to be made, a party to an action or proceeding (other
than one by or in the right of the corporation to procure a judgment in its favor), including an
action by or in the right of any other entity which any director or officer served in any capacity
at the request of the corporation, by reason of the fact that he, his testator or intestate, was a
director or officer of the corporation, or served such other entity in any capacity, against
judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys fees, if
such director or officer acted in good faith, for a purpose which he reasonably believed to be in,
or not opposed to, the best interests of the corporation, or had no reasonable cause to believe
that his conduct was unlawful, and (2) a corporation may indemnify any person made, or threatened
to be made, a party to an action by or in the right of the corporation by reason of the fact that
he, his testator or intestate, is or was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director or officer of any other entity, against
amounts paid in settlement and reasonable expenses, including attorneys fees, if such director or
officer acted, in good faith, for a purpose which he reasonably believed to be in, or not opposed
to, the best interests of the corporation, other than a threatened action or a pending action which
is settled or otherwise disposed of, or any matter as to which such person shall have been adjudged
to be liable to the corporation, unless and to the extent that the court determines that the person
is fairly and reasonably entitled to indemnity for such portion of the settlement amount and
expenses as the court deems proper. The statute provides that a corporation must indemnify a
director or officer if he is successful in his defense of an action or proceeding and may indemnify
such person if he is not successful in such defense if it is determined as provided in the statute
that he meets a certain standard of conduct. The statute also permits a director or officer of a
corporation who is party to a proceeding to apply to the courts for indemnification. The statute
further provides that a corporation may in its certificate of incorporation or by-laws or by
contract or resolution provide indemnification in addition to that provided by the statute, subject
to certain conditions set forth in the statute. NYBCL § 721 prohibits indemnification of officers
and directors for acts finally adjudicated to be committed in bad faith, resulting from active or
deliberate dishonesty, or resulting in a personal gain to which such an officer or director was not
legally entitled.
Article Seventh of M&Ts Restated Certificate of Incorporation provides that as to any act or
omission occurring after the adoption of such provision, a director of M&T shall, to the maximum
extent permitted by the laws of the State of New York, have no personal liability to M&T or any of
its stockholders for any breach of duty as a director, to the extent permitted by law.
Article V of M&Ts amended and restated by-laws provides that each director and officer of
M&T, whether or not then in office, and any person whose testator or intestate was such a director
or officer, will be indemnified by M&T for the defense of, or in connection with, any threatened,
pending or completed actions or proceedings and appeals therein, whether civil, criminal,
governmental, administrative or investigative, in accordance with and to the fullest extent
permitted by the NYBCL or other applicable law, as such law currently exists or may hereafter be
amended. However, M&T is allowed to provide indemnification in connection with an action or
proceeding initiated by such director or officer only if such action or proceeding was authorized
by M&Ts Board of Directors. Expenses incurred by a director or officer in connection with any
action or proceeding as to which indemnification may be given may be paid by M&T in advance of the
final disposition of such action or proceeding as to which indemnification may be given may be paid
by M&T in advance of the final disposition of such action or proceeding upon (1) receipt of an
undertaking by or on behalf of such director or officer to repay such advancement in the event that
such director or officer is ultimately found not to be entitled to indemnification and (2) approval
by the board of directors acting by a quorum consisting of directors who are not parties to such
action or proceeding or, if such a quorum is not obtainable, the approval by stockholders. To the
extent permitted by law, the board of directors or, if applicable, the stockholders, shall not be
required to find that the director or officer has met the applicable standard of conduct provided
by law for indemnification in connection with such action or proceeding.
M&T maintains director and officer liability insurance coverage for its directors and officers
and those of its subsidiaries. This coverage insures such persons against certain losses that may
be incurred by them in their respective capacities as directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits to this Registration Statement are described in the Exhibit Index below.
Item 9. Undertakings.
(a) M&T hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as
amended (the Securities Act);
(ii) To reflect in the prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities 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 20 percent change in the maximum aggregate
offering price set forth in the Calculation of Registration Fee tables 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 (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 with or furnished to the Commission by M&T 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, 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.
(b) M&T hereby undertakes that, for purposes of determining any liability under the Securities
Act, each filing of M&T s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange
Act, (and, where applicable, each filing of an employee benefit plans annual report pursuant to
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.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of M&T pursuant to the foregoing
provisions, or otherwise, M&T 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 M&T of expenses incurred or paid by a director, officer or controlling person of M&T
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, M&T 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 of 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, M&T 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 Buffalo, New York on December 24, 2009.
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M&T BANK CORPORATION
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By: |
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René F. Jones, |
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Executive Vice President and Chief Financial Officer |
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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 December 24, 2009.
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Signature |
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Title |
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Chairman of the Board and Chief
Executive Officer
(Principal
Executive Officer) and Director |
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Executive Vice President and Chief
Financial Officer
(Principal
Financial Officer) |
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Senior Vice President and Controller
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Michael R. Spychala |
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(Principal Accounting Officer) |
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Director |
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Director |
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Director |
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Director |
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Director |
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T. Jefferson Cunningham III
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Director |
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Signature |
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Title |
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Director |
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Director |
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Director |
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Director |
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Director |
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Director |
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Director |
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Director |
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Director |
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Director |
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Director |
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* By: |
/s/ Brian R. Yoshida
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Brian R. Yoshida |
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(Attorney-in-Fact)
Pursuant to Power of Attorney filed herewith |
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Pursuant to the requirements of the Securities Act of 1933, the M&T Bank Employee Benefit Plan
Committee which administers the Plan has duly caused this Registration Statement to be signed on
its behalf by the undersigned member, thereunto duly authorized, in Buffalo, New York on December
23, 2009.
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/s/ Jeffrey A. Long
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Jeffrey A. Long |
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EXHIBIT INDEX
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EXHIBIT NO. |
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DESCRIPTION |
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5.1 |
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Opinion of Brian R. Yoshida, Esq., filed herewith. |
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23.1 |
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Consent of Brian R. Yoshida, Esq., included in the opinion filed as Exhibit 5.1 hereto. |
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23.2 |
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Consent of PricewaterhouseCoopers LLP, filed herewith. |
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24.1 |
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Power of attorney, filed herewith. |
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99.1 |
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M&T Bank Corporation Retirement Savings Plan, filed herewith. |