Exhibit 10.8
M&T BANK CORPORATION
SUPPLEMENTAL RETIREMENT SAVINGS PLAN
ARTICLE I
PURPOSE
1.1 The purpose of this M&T Bank Corporation Supplemental Retirement
Savings Plan (the "Supplemental Retirement Savings Plan") is to provide
for the payment of supplemental benefits to select management and
highly compensated employees of certain affiliates of M&T Bank
Corporation (the "Employers"), contributions on whose behalf under the
M&T Bank Corporation Retirement Savings Plan and Trust (the "RSP") are
subject to certain limitations imposed by Section 401(a)(17) of the
Internal Revenue Code, as amended (the "Code"). The Employers intend
and desire that this Supplemental Retirement Savings Plan, together
with the other elements of the Employers' compensation programs, will
attract, retain and motivate eligible employees.
ARTICLE II
DEFINITIONS
All terms with initial capital letters which are used in the RSP shall have the
meanings assigned to them under the provisions of the RSP unless otherwise
specified herein or as otherwise qualified by the context in which the term is
used herein.
2.1 For the purposes of this Supplemental Retirement Savings 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 Retirement Savings Plan
under Article VII.
(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
RSP, calculated without regard to the limitation contained in
Code Section 401(a)(17).
(d) "Compensation Limitation" shall mean, for any given year
beginning on and after 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 RSP.
(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, at the time of determination,
has an Account under this Supplemental Retirement Savings
Plan.
(h) "Supplemental Retirement Savings Plan" shall mean this M&T
Bank Corporation Supplemental Retirement Savings Plan, as the
same may be amended from time to time.
(i) "Supplemental Retirement Savings Plan Account" or
"Account" shall mean, to the extent applicable to any given
Participant, the account maintained 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 Retirement Savings 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 Retirement
Savings Plan under Section 3.1 shall become a Participant in this
Supplemental Retirement Savings Plan at such time as the Committee
first determines that contributions on his behalf under the RSP will be
affected by the Compensation Limitation. The determination of whether
and at which time an Employee is affected by the Compensation
Limitation and eligible for participation herein shall be made by the
Committee. Notwithstanding the foregoing, a Participant may become
eligible to have amounts credited to his Supplemental Retirement
Savings Plan Account for a year only in the event that:
(a) such individual has elected to make Salary Reduction
Contributions under the RSP for the year equal to at least six
percent (6%) of his Compensation not in excess of the
Compensation Limitation; and
(b) his Compensation for the year is in excess of the
Compensation Limitation.
3.3 Upon becoming a Participant under this Supplemental Retirement Savings
Plan, he shall make an irrevocable election to receive his benefit
under this Supplemental Retirement
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Savings Plan either in the form of a lump sum or in annual installments
payable over 5, 10 or 15 years, and to begin to receive such benefit
either:
(a) at a specific age, or
(b) at retirement under the M&T Bank Corporation Pension Plan,
but not later than age 65 if the Participant terminates
employment prior to eligibility for retirement under such
plan.
ARTICLE IV
CALCULATION OF CREDITS TO SUPPLEMENTAL
RETIREMENT SAVINGS PLAN ACCOUNTS
4.1 There shall be credited to the Supplemental Retirement Savings Plan
Account of a Participant eligible therefor under Section 3.2 the excess
of (a) the amount which would have been contributed under Section 5.02
of the RSP on behalf of such Participant if the provisions of the RSP
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, over (b) the amount actually
contributed under Section 5.02 of the RSP on his behalf. The credit to
the Supplemental Retirement Savings Plan Account under this Section 4.1
on behalf of a Participant shall be computed in accordance with the
foregoing and with the objective that the Participant should have
credited to his accounts under this Supplemental Retirement Savings
Plan and the RSP the total amount that would otherwise have been
contributed on his behalf under Section 5.02 of the RSP as of the date
of such credit, had the provisions of Code Section 401(a)(17) not been
applicable thereto, but with Compensation capped at the amount set
forth above.
4.2 In addition to any amount credited to his Account under Section 4.1, a
Participant may elect to defer under this Plan a percentage of that
portion of his Compensation in excess of the Compensation Limitation,
but not in excess of $235,840, equal to the percentage of his
Compensation that he has elected to defer for the year under Section
5.01 of the RSP. Such election for a year must be made prior to the
beginning of that year (except that the election for 1994 must be made
prior to August 1, 1994, and the election for an individual who first
becomes a Participant after the first day of a year must be made at the
time he becomes a Participant) and shall be irrevocable.
4.3 Notwithstanding any provisions of this Supplemental Retirement Savings
Plan to the contrary, the credits to the Supplemental Retirement
Savings Plan Accounts provided under Article IV shall be determined and
coordinated by the Committee so as to prevent any duplication of
Supplemental Retirement Savings Plan and RSP benefits.
ARTICLE V
INDIVIDUAL ACCOUNTS, INVESTMENTS AND VALUATIONS
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5.1 The provisions of the RSP concerning the creation and maintenance of
individual accounts and concerning investment elections by Participants
shall apply equally under this Supplemental Retirement Savings Plan.
5.2 Participant investment elections under the RSP for Salary Reduction
Contributions shall apply with respect to amounts credited to Accounts
under Article IV, and such amounts shall be treated as invested
initially in the Investment Funds available under the RSP in the same
proportion as reflected in such elections under the RSP. Accounts will
be valued at the same time as RSP accounts, except that stock of M&T
Bank Corporation will be stated in dollars instead of shares.
5.3 The deemed investment of amounts credited to a Participant's Account
may be reallocated, at the Participant's election, among the available
RSP Investment Funds on a quarterly basis. Such elections shall be
independent of any reallocation election made under the RSP.
5.4 Accounts will be credited with the investment return reported by the
Trust and Investment Services Division for the Investment Funds under
the RSP in which the Accounts are treated as invested.
ARTICLE VI
COMMENCEMENT AND FORM OF SUPPLEMENTAL
RETIREMENT SAVINGS PLAN BENEFIT
6.1 Benefits hereunder shall become payable to a Participant as of the date
and in the form he has specified under the provisions of Section 3.3.
Participant elections may not be changed, except that, upon
consideration of all facts in hardship situations, the Committee may
approve the acceleration of payments to a Participant.
6.2 At the Committee's discretion, any benefits hereunder payable to a
Participant or beneficiary (who shall be the Participant's beneficiary
under the RSP) may be paid in a form of a lump sum payment as
determined by the Committee.
6.3 In the event that a Participant is still employed by an Employer in the
year he has elected to have payment of his benefits hereunder made or
commence, payment of the amount in his Account as of the beginning of
that year shall be made or commence (depending on his election under
Section 3.3) in that year, and payment of amounts credited to his
Account in that year and in subsequent years shall be made or commence
(depending on his election under Section 3.3) in the January of the
year following the year in which such amounts were credited to his
Account.
6.4 Benefits payable hereunder to, or on behalf of, a Participant shall be
paid by the Employer who last employed the Participant.
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ARTICLE VII
ADMINISTRATION
7.1 The Committee shall be charged with the administration of this
Supplemental Retirement Savings 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 Retirement Savings Plan, including
by way of illustration and not limitation, discretionary authority to
interpret and construe this Supplemental Retirement Savings Plan, to
decide any dispute arising hereunder, to determine the right of any
Employee with respect to participation herein, to determine the right
of any Participant with respect to benefits payable under this
Supplemental Retirement Savings Plan and to adopt, alter and repeal
such administrative rules, regulations and practices governing the
operation of this Supplemental Retirement Savings 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 Retirement Savings 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 Retirement Savings 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 7.3, decisions of the Committee made in good faith
shall be final, conclusive and binding upon all parties.
7.2 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 shall transmit 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 provisions of this Supplemental Retirement Savings Plan on
which the denial is based, a description of any additional needed
material or information and why such material or information is
necessary, and an explanation of the claims review procedure as set
forth herein. In addition, the written notice shall contain the date on
which the notice was sent and a statement advising the Claimant that,
within 90 days of the date on which such notice is received, he may
obtain review of the Committee's decision.
7.3 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:
(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,
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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
Retirement Savings Plan which were relied upon. The decision will be final and
binding on all persons concerned.
ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 The Employers expect to continue this Supplemental Retirement Savings
Plan indefinitely, but reserve and delegate to the Company the right to
amend or terminate this Supplemental Retirement Savings 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 Retirement Savings Plan shall directly or indirectly
deprive any Participant, surviving spouse or beneficiary of all or any
portion of the Supplemental Retirement Savings Plan benefits earned by
the Participant as of the date of amendment or termination. In the
event of a termination of this Supplemental Retirement Savings 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, of the Account balances on
such date to Participants, surviving spouses and beneficiaries or to
have the Employers make payments to such individuals at such time or
times as provided under the terms of this Supplemental Retirement
Savings Plan.
8.2 This Supplemental Retirement Savings Plan shall not be automatically
terminated by a
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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 it
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 Retirement Savings Plan. In the event this Supplemental
Retirement Savings Plan is not continued with respect to such Employer
or its successor by the transferee, purchaser or successor entity, then
it shall terminate with respect to such Employer or its successor
subject to the provisions of Section 8.1.
ARTICLE IX
MISCELLANEOUS
9.1 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 Retirement Savings Plan.
9.2 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 6.4. 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 Retirement Savings
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 Retirement Savings Plan. Nothing contained in this
Supplemental Retirement Savings 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 Retirement Savings
Plan shall be paid by the Employers.
9.3 Binding on Employers, Employees and Their Successors. This Supplemental
Retirement Savings 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
accrued obligations of such Employer hereunder with respect to benefits
accrued as of the date of such merger, consolidation or transfer and
shall be substituted for such Employer hereunder.
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9.4 Spendthrift Provisions. No benefit payable under this Supplemental
Retirement Savings 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 Retirement Savings Plan.
9.5 Disclosure. Each Participant shall receive a copy of this Supplemental
Retirement Savings 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 Plan.
9.6 State Law. This Supplemental Retirement Savings 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.
9.7 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 Retirement
Savings 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.
9.8 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 Retirement Savings Plan benefits.
9.9 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
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)
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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.
9.10 Severability. In the event any provision of this Supplemental
Retirement Savings Plan shall be held illegal or invalid for any
reason, such illegality or invalidity shall not affect the remaining
provisions of this Supplemental Retirement Savings Plan. This
Supplemental Retirement Savings Plan shall be construed and enforced as
if such illegal or invalid provision had never been contained herein.
9.11 Headings. The headings of Sections of this Supplemental Retirement
Savings Plan are for convenience of reference only and shall have no
substantive effect on the provisions of this Supplemental Retirement
Savings Plan.
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