Exhibit 4.2
FIRST EMPIRE CAPITAL TRUST I
TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of January 17, 1997, is by and among (i)
First Empire State Corporation, a New York corporation (the "Depositor"), (ii)
Bankers Trust Company, a New York banking corporation, as property trustee and
(iii) Bankers Trust (Delaware), a Delaware banking corporation, as Delaware
trustee (each of Bankers Trust Company and Bankers Trust (Delaware) a "Trustee,"
and collectively the "Trustees"). The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby (the "Trust") shall be known as "First Empire
Capital Trust I."
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust
estate in trust for the Depositor. It is the intention of the parties hereto
that the Trust created hereby constitute a business trust under Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. ss. 3801 et seq. (the "Business
Trust Act"), and that this document constitutes the governing instrument of
the Trust.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially
to the effect set forth in the Registration Statement referred to below, to
provide for the contemplated operation of the Trust created hereby and the
issuance of Capital Securities and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or
with respect to the trust estate, except as otherwise required by applicable
law or as may be necessary to obtain prior to such execution and delivery of
any licenses, consents or approvals required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, in each case on behalf of the Trust as the sponsor of the Trust,
(i) to execute and file with the Securities and Exchange Commission (the
"Commission") (a) a Registration Statement on Form S-3 (the "Registration
Statement") and any pre-effective or post-effective amendments to such
Registration Statement, relating to the registration under the Securities Act
of 1933, as amended, of the Capital Securities of the Trust, and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating
to the registration of the Capital
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Securities of the Trust under Section 12(b) of the Securities Exchange Act of
1934, as amended; (ii) to execute and file with the New York Stock Exchange,
the American Stock Exchange or such other national securities exchange or the
Nasdaq National Market, as the Depositor shall determine, a listing or
similar application and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause
the Capital Securities to be listed or approved for quotation on the New York
Stock Exchange, the American Stock Exchange or such other national securities
exchange or the Nasdaq National Market; (ii) to execute and file such
applications, reports, surety bonds, irrevocable consents, appointments of
attorneys for service of process and other papers and documents as shall be
necessary or desirable to register the Capital Securities under the
securities of "Blue Sky" laws of such jurisdictions as the Depositor on
behalf of the Trust, may deem necessary or desirable and (iv) to execute that
certain Underwriting Agreement relating to the Capital Securities, among the
Trust, and Depositor and Xxxxxx Xxxxxxx & Co. Inc., as the representative of
the several Underwriters named therein. It is hereby acknowledged and agreed
that in connection with any filing referred to in clauses (i)-(iii) above,
Bankers Trust Company and Bankers Trust (Delaware), in their capacities as
Trustees of the Trust, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by the rules
and regulations of the Commission, the New York Stock Exchange, American
Stock Exchange (other national securities exchange) or the Nasdaq National
Market or state securities or "Blue Sky" laws, and in such case only to the
extent so required. In connection with all of the foregoing, the Depositor
hereby constitutes and appoints Xxxxxxx X. Xxxxxxx, Xxxx X. Xxxx and Xxxxxx
X. Xxxxxx, and each of them, as its true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for the Depositor
in the Depositor's name, place and stead, in any and all capacities, to sign
and file with the Commission (i) the Registration Statement and the 1934 Act
Registration Statement and any and all amendments (including post-effective
amendments) to the Registration Statement and the 1934 Act Registration
Statement with all exhibits thereto, and other documents in connection
therewith, and (ii) a registration statement and any and all amendments
thereto filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, with all exhibits thereto, and all other documents in connection
therewith, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as the Depositor might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or his substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
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6. The number of Trustees initially shall be two (2) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Depositor, who may increase or decrease the
number of Trustees; provided, however, that, to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware and otherwise meets the
requirements of applicable Delaware law. Subject to the foregoing, the Depositor
is entitled to appoint or remove without cause any Trustee at any time. The
Trustees may resign upon thirty (30) days' prior written notice to the
Depositor.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
FIRST EMPIRE STATE CORPORATION,
as Depositor
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Senior Vice President
BANKERS TRUST COMPANY,
as property trustee
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
BANKERS TRUST (DELAWARE),
as Delaware trustee
By: /s/ M. Xxxx Xxxxxxx
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Name: M. Xxxx Xxxxxxx
Title: Assistant Secretary
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