Exhibit 10.7
M&T BANK CORPORATION
SUPPLEMENTAL PENSION PLAN
ARTICLE I
PURPOSE
1.1 The purpose of this M&T Bank Corporation Supplemental Pension Plan (the
"Supplemental Pension Plan") is to provide for the payment of
supplemental retirement benefits to select management and highly
compensated employees of certain affiliates of M&T Bank Corporation
(the "Employers"), whose benefits payable under the M&T Bank
Corporation Pension Plan (the "Pension Plan") are subject to certain
benefit limitations imposed by Section 401(a)(17) of the Internal
Revenue Code, as amended (the "Code"). The Employers intend and desire
that this Supplemental Pension Plan, together with the other elements
of the Employers' compensation programs, will attract, retain and
motivate eligible employees.
ARTICLE II
DEFINITIONS
All terms used herein with initial capital letters which are defined in
the Pension Plan shall have the meanings assigned to them under the
provisions of the Pension Plan unless otherwise specified herein or as
otherwise qualified by the context in which the term is used in this
Supplemental Pension Plan.
2.1 For the purposes of this Supplemental Pension Plan, the following words
and phrases shall have the meanings indicated unless a different
meaning is clearly required by the context. Any terms used herein in
the masculine shall be read and construed in the feminine where they
would so apply, and any terms used in the singular shall be read and
construed in the plural if appropriate.
(a) "Committee" shall mean the Committee charged with the
administration of this Supplemental Pension Plan under Article
VI.
(b) "Company" shall mean Manufacturers and Traders Trust
Company or any successor by merger, purchase or otherwise.
(c) "Compensation" shall mean the amount so defined in the
Pension Plan, plus any amounts deferred by a Participant under
the M&T Bank Corporation Supplemental Retirement Savings Plan.
(d) "Compensation Limitation" shall mean, for any given year
beginning on and after
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January 1, 1994, $150,000, as adjusted to and including such
given year of determination in the manner provided under Code
Section 401(a)(17).
(e) "Employee" shall mean any common law employee of an
Employer.
(f) "Employer" shall mean any affiliate of M&T Bank
Corporation that participates in the Pension Plan.
(g) "Participant" shall mean an Employee who has become a
Participant in accordance with Section 3.2. Participant shall
also include a former Employee who had met the foregoing
criteria as an Employee and who is, at the time of
determination, receiving a benefit (or entitled to receive a
benefit) from this Supplemental Pension Plan.
(h) "Supplemental Pension Plan" shall mean this M&T Bank
Corporation Supplemental Pension Plan, as the same may be
amended from time to time.
(i) "Supplemental Pension Plan Benefit" shall mean, to the
extent applicable to any given Participant, the benefit
determined under the provisions of Section 4.1.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 Any Employee who is a member of a select group of management or highly
compensated employees as designated by the Committee is eligible to
participate in this Supplemental Pension Plan, provided, however, that
any such Employee shall become a Participant hereunder only as provided
under Section 3.2.
3.2 An Employee eligible to participate in this Supplemental Pension Plan
under Section 3.1 shall become a Participant in this Supplemental
Pension Plan as of the first day of the calendar year in which his
benefit under the Pension Plan is first affected by the Compensation
Limitation. The determination of whether and at which time an Employee
is affected by the Compensation Limitation and is eligible for
participation herein shall be made by the Committee. Notwithstanding
the foregoing, a Participant (or his surviving spouse or beneficiary)
may become eligible for a Supplemental Pension Plan Benefit only in
the event that:
(a) such individual is entitled to receive a benefit under the
Pension Plan; and
(b) payment of such Pension Plan benefit is restricted by the
application of Code Section 401(a)(17), as in effect on or
after January 1, 1994.
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ARTICLE IV
CALCULATION OF SUPPLEMENTAL PENSION PLAN BENEFIT
4.1 The annual Supplemental Pension Plan Benefit to a Participant eligible
therefor under Section 3.2 (or to his surviving spouse or beneficiary
or beneficiaries), shall be the result obtained by subtracting (b) from
(a), where:
(a) equals the annual benefit which would have been payable to
such Participant, or, on his behalf, to his surviving spouse
or other beneficiary or beneficiaries under the Pension Plan,
if the provisions of the Pension Plan were administered
without regard to the annual limitation on Compensation set
forth in Code Section 401(a)(17), but with Compensation capped
at $235,840, and
(b) equals the annual benefit which is payable to such
Participant, or, on his behalf, to his surviving spouse or
other beneficiary or beneficiaries under the Pension Plan.
The Supplemental Pension Plan Benefit payable under this Supplemental
Pension Plan to, or on behalf of, a Participant shall be computed in
accordance with the foregoing and with the objective that the
Participant, his surviving spouse or other beneficiary or
beneficiaries, should receive under the Supplemental Pension Plan and
the Pension Plan, the total amount which would otherwise have been
payable to that recipient solely under the Pension Plan as of the date
payment is made, had the provisions of Code Section 401(a)(17) not been
applicable thereto and using Compensation capped in the amount set
forth above.
4.2 Notwithstanding any provision of this Supplemental Pension Plan to the
contrary, the Supplemental Pension Plan Benefits provided under Article
IV shall be determined and coordinated by the Committee so as to
prevent any duplication of benefits under this Plan or any duplication
of benefits under this Plan and benefits under any individual executive
or supplemental agreement.
ARTICLE V
COMMENCEMENT AND FORM OF SUPPLEMENTAL PENSION PLAN BENEFIT
5.1 Supplemental Pension Plan Benefits hereunder shall become payable to a
Participant, surviving spouse or beneficiary as of the date upon which
such Participant, spouse or beneficiary is to commence to receive
benefit payments under the Pension Plan. Such Supplemental Pension Plan
Benefits shall be payable in the form elected under the Pension Plan.
The payment provided hereunder shall be the Actuarial Equivalent of the
Participant's Supplemental Pension Plan Benefit determined under the
form elected under the Pension Plan.
5.2 A Participant's designation of form of payment under the Pension Plan
shall be subject to the
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Committee's power, to be exercised at the Committee's discretion, to
direct that any Supplemental Pension Plan Benefits payable to a
Participant, surviving spouse or beneficiary be paid in a form of a
lump sum payment as determined by the Committee.
5.3 The Supplemental Pension Plan Benefit payable hereunder to, or on
behalf of, a Participant shall be paid by the Employer who last
employed the Participant.
ARTICLE VI
ADMINISTRATION
6.1 The Committee shall be charged with the administration of this
Supplemental Pension Plan. The members of the Committee shall be
selected by the Company. The Committee shall have all such powers as
may be necessary to discharge its duties relative to the administration
of this Supplemental Pension Plan, including by way of illustration and
not limitation, discretionary authority to interpret and construe this
Supplemental Pension Plan, to decide any dispute arising hereunder, to
determine the right of any Employee with respect to benefits payable
hereunder and to adopt, alter and repeal such administrative rules,
regulations and practices governing the operation of this Supplemental
Pension Plan as it, in its sole discretion, may from time to time deem
advisable. No member of the Committee shall be liable to any person for
any action taken or omitted in connection with the interpretation and
administration of this Supplemental Pension Plan unless attributable to
willful misconduct or lack of good faith. The Committee 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 Committee or the Company with respect to this Supplemental Pension
Plan. Members of the Committee shall not participate in any action or
determination regarding solely their own benefits payable hereunder.
Except as provided in Section 6.3, decisions of the Committee made in
good faith shall be final, conclusive and binding upon all parties.
6.2 Whenever the Committee denies, in whole or in part, a claim for
benefits filed by any person (hereinafter referred to as a "Claimant"),
the Committee will provide 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 Supplemental Pension Plan provisions on which the denial is
based, a description of any additional needed material or information
and why such is necessary, and an explanation of the claims review
procedure as set forth herein. In addition, such notice shall contain
the date on which it was sent and a statement advising the Claimant
that, within 90 days of the date of receipt of such notice, he may
obtain review of the Committee's decision.
6.3 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
Committee a written request therefor, which request shall contain the
following information:
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(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 Committee, provided, however, that the date on which the
Claimant's request for review was in fact filed with the
Committee 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 Committee to review;
(d) a statement by the Claimant setting forth the basis upon
which he believes the Committee should reverse its previous
denial of his claim for benefits and accept his claim as made;
and
(e) any written material (included as exhibits) which the
Claimant desires the Committee 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 Committee 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 its decision, including
references to the specific provisions of this Supplemental Pension Plan
which were relied upon. The decision will be final and binding on all
persons concerned.
ARTICLE VII
AMENDMENT AND TERMINATION
7.1 The Employers expect to continue this Supplemental Pension Plan
indefinitely, but reserve and delegate to the Company the right to
amend or terminate this Supplemental Pension Plan at any time, if, in
the Company's sole judgment, such amendment or termination is necessary
or desirable. Any such amendment or termination shall be made in
writing by the Board of Directors of the Company or its designee, if
applicable, and shall be effective as of the date specified in such
document. No amendment or termination of this Supplemental Pension Plan
shall directly or indirectly deprive any Participant, surviving spouse
or beneficiary of all or any portion of the Supplemental Pension Plan
Benefits earned by the Participant as of the date of amendment or
termination. In the event of a termination of this Supplemental Pension
Plan, the Company (or any transferee, purchaser or successor entity)
may elect, in its discretion, either to have the Employers make lump
sum payments, at the time of such termination, equal to the Actuarial
Equivalents of the Supplemental Pension Plan Benefits, accrued as of
the date of such termination, to Participants, surviving spouses and
beneficiaries or to have the Employers pay such benefits to such
individuals at such time or
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times as provided under the terms of this Supplemental Pension Plan.
7.2 This Supplemental Pension 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 this Supplemental Pension Plan 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
Supplemental Pension Plan. In the event this Supplemental Pension
Plan is not continued with respect to such Employer or its successor
by the transferee, purchaser or successor entity, then this
Supplemental Pension Plan shall terminate with respect to such
Employer or its successor subject to the provisions of Section 7.1.
ARTICLE VIII
MISCELLANEOUS
8.1 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
Supplemental Pension Plan.
8.2 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 benefits
determined hereunder that such Employer is obligated to pay under
Section 5.3. No provision shall at any time be made with respect to
segregating any assets of any Employer for payment of any benefits
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 Supplemental Pension Plan, and
any such Participant, beneficiary or other person shall have only the
rights of a general unsecured creditor of the Employer by whom the
Participant was last employed with respect to any rights under this
Supplemental Pension Plan. Nothing contained in this Supplemental
Pension 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 benefit hereunder. All expenses and fees incurred in the
administration of this Supplemental Pension Plan shall be paid by the
Employers.
8.3 Binding on Employers, Employees and Their Successors. This Supplemental
Pension 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 with
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respect to benefits accrued as of the date of such merger,
consolidation or transfer and shall be substituted for such Employer
hereunder.
8.4 Spendthrift Provisions. No benefit payable under this Supplemental
Pension Plan shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or 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 Supplemental Pension Plan.
8.5 Disclosure. Each Participant shall receive a copy of this Supplemental
Pension Plan, and the Committee will make available for inspection by
any Participant a copy of the rules and regulations used by the
Committee in administering this Supplemental Pension Plan.
8.6 State Law. This Supplemental Pension 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 the Employee Retirement
Income Security Act of 1974, as amended, and regulations promulgated
thereunder.
8.7 Incapacity of Recipient. In the event a Participant, surviving spouse
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 benefits under this Supplemental Pension Plan
to which such Participant, spouse or beneficiary is entitled 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 Committee, in its sole discretion, determines that a Participant,
surviving spouse or beneficiary is unable to manage his financial
affairs, the Committee may direct the Employer responsible for payment
to make distributions to any person for the benefit of such
Participant, spouse or beneficiary.
8.8 Unclaimed Benefit. Each Participant shall keep the Committee informed
of his current address. The Committee shall not be obligated to search
for the whereabouts of any person. If the location of a Participant is
not made known to the Committee 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 Committee is unable
to locate the spouse or any beneficiary of the Participant, the
Participant and his surviving spouse or beneficiary shall forfeit all
rights to any Supplemental Pension Plan Benefits.
8.9 Elections, Applications, Notices. Every direction, revocation or notice
authorized or required hereunder shall be deemed delivered to the
Employers or the Committee as the case may be: (a) on the date it is
personally delivered to the Secretary of the Committee (with a copy to
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the Company's General Counsel) at the Company'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
Secretary of the Committee (with a copy to the Company's General
Counsel) at the offices indicated above, and shall be deemed delivered
to a Participant, surviving spouse 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.
8.10 Severability. In the event any provision of this Supplemental Pension
Plan shall be held illegal or invalid for any reason, such illegality
or invalidity shall not affect the remaining provisions of this
Supplemental Pension Plan. This Supplemental Pension Plan shall be
construed and enforced as if such illegal or invalid provision had
never been contained herein.
8.11 Headings. The headings of Sections of this Supplemental Pension Plan
are for convenience of reference only and shall have no substantive
effect on the provisions of this Supplemental Pension Plan.