Exhibit 10.9
M&T BANK CORPORATION
DEFERRED BONUS PLAN
(Amended and Restated effective May 29, 1998)
ARTICLE I
INTENT
This M&T Bank Corporation Deferred Bonus Plan was established,
effective January 1, 1984, for the benefit of certain employees of certain
affiliates of M&T Bank Corporation. The Plan is intended to qualify as a plan
described in Section 201(2) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and is maintained primarily for the purpose of
providing deferred compensation for a select group of management or highly
compensated employees.
ARTICLE II
DEFINITIONS
When used in this Plan, the following terms shall have the following
meanings:
2.1 "Account" means the account maintained for a Participant pursuant
to Article IV hereof.
2.2 "Beneficiary" means the person or persons designated by a
Participant pursuant to Article VI hereof to receive any benefit payable
pursuant to Section 5.1 hereof upon the Participant's death.
2.3 "Bank" means Manufacturers and Traders Trust Company and its
successors by merger, sale of assets or otherwise.
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2.4 "Board" means the board of directors of M&T Bank Corporation.
2.5 "Bonus" means an Eligible Employee's award under an Incentive Plan.
2.6 "Deemed Earnings" means the income earned or loss incurred with
respect to a Participant's Deemed Investment Portfolio. The Deemed Earnings with
respect to each investment option in a Deemed Investment Portfolio shall be
determined on the basis of the total actual return on such investment option in
the M&T Bank Corporation Retirement Savings Plan for the period in question or,
in the case of a M&T Bank Corporation Stock Deemed Investment Account, on the
basis of the number of shares of M&T Bank Corporation Common Stock that would
represent reinvested dividends on the shares credited to such M&T Bank
Corporation Stock Deemed Investment Account for the period in question.
2.7 "Deemed Investment Portfolio" means the hypothetical portfolio
designated by a Participant from among (a) the investment options offered under
the M&T Bank Corporation Retirement Savings Plan, excluding the M&T Bank
Corporation Stock Fund offered thereunder, and (b) shares of M&T Bank
Corporation Common Stock.
2.8 "Deferred Bonus Election" means an election made pursuant to
Section 3.1(a) hereof.
2.9 "Deferred Bonus" means that portion of a Bonus the payment of which
is deferred by a Participant under this Plan.
2.10 "Deferred Bonus Agreement" means the written agreement entered
into between a Participant and his Employer pursuant to which the Participant
elects to defer payment of a specified portion of his Bonus in accordance with
the terms of this Plan and such agreement.
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2.11 "Eligible Employee" means an individual who is an employee of an
Employer, who is eligible to participate in an Incentive Plan and who is
designated by the Plan Administrator as eligible to participate in this Plan.
2.12 "Employer" means M&T Bank Corporation and each of its affiliates,
any of whose employees are eligible to participate in an Incentive Plan.
2.13 "Financial Hardship" means a financial hardship of a
Participant.
2.14 "Incentive Plan" means the M&T Bank Corporation Annual Executive
Incentive Plan and such other incentive plans of M&T Bank Corporation or its
subsidiaries as the Plan Administrator may designate.
2.15 "M&T Bank Corporation Common Stock" means the Common Stock, par
value $5.00 per share, of M&T Bank Corporation.
2.16 "M&T Bank Corporation Stock Deemed Investment Account" means that
portion of an Account consisting of hypothetical shares of M&T Bank Corporation
Common Stock.
2.17 "Participant" means an Eligible Employee who has deferred a
portion of his Bonus pursuant to a Deferred Compensation Agreement and the terms
of this Plan.
2.18 "Plan" means this M&T Bank Corporation Deferred Bonus Plan, as set
forth herein and amended from time to time.
2.19 "Plan Administrator" means such person or committee as may be
designated by the Board to serve as such under this Plan.
2.20 "Retirement" means the earliest of a Participant's (a) normal
retirement, early retirement or disability retirement under the M&T Bank
Corporation Pension Plan, (b) death or
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(c) 65th birthday.
2.21 "Revaluation Date" means the last day of each calendar quarter and
such other dates as may be designated by the Plan Administrator.
ARTICLE III
DEFERRAL OF BONUS
3.1 Deferred Bonus Elections.
(a) An Eligible Employee, by executing a Deferred Bonus
Agreement, may elect to defer all or any portion of his Bonus.
(b) An Eligible Employee must make his Deferral Election for a
Bonus payable with respect to a calendar year on or before October 31 of that
calendar year.
3.2 Deferred Bonus Agreements.
(a) A Deferred Bonus Election pursuant to this Plan shall be
made pursuant to a written Deferred Bonus Agreement between the Eligible
Employee and his Employer.
(b) A Participant's Deferred Bonus Agreement shall specify
whether the Deferred Bonus thereunder (and Deemed Earnings thereon) shall be
paid in a single lump-sum payment or in annual installments payable over five,
ten or 20 years.
(c) A Participant's Deferred Bonus Agreement shall specify
whether the Deferred Bonus thereunder (and Deemed Earnings thereon) shall be
paid (or shall commence to be paid) at (i) Retirement or (ii) on a date selected
by the Participant from among any one of the first 20 anniversaries of the date
on which the Deferred Bonus would have been paid absent the Deferred Bonus
Election.
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ARTICLE IV
ACCOUNTS
4.1 Maintenance of Accounts. The Plan Administrator shall establish a
bookkeeping account (an "Account") for each Participant. As of the first day of
the month in which a Deferred Bonus would have been paid to the Participant
absent a Deferred Bonus Election, the amount of such Deferred Bonus shall be
credited to such Participant's Account.
4.2 Deemed Earnings. As of each Revaluation Date, a Participant's
Account shall be adjusted for Deemed Earnings since the preceding Revaluation
Date. Where a Deferred Bonus is credited to an Account other than on a
Revaluation Date, Deemed Earnings on the amount of such Deferred Bonus for the
period from the date of such credit until the next succeeding Revaluation Date
shall be a pro rata portion of Deemed Earnings on an equivalent amount for the
period between the Revaluation Dates immediately preceding and succeeding the
date of such credit, calculated by reference to the number of days in each
period, except that Deemed Earnings on a M&T Bank Corporation Stock Deemed
Investment Account shall be based on the actual dates of dividend payments on
M&T Bank Corporation Common Stock.
4.3 Deemed Investment Portfolio. In his Deferred Bonus Agreement, a
Participant shall designate a Deemed Investment Portfolio, and shall allocate
his Deferred Bonus among the investment options offered for inclusion in the
Deemed Investment Portfolio in integral multiples of 5 percent. A Participant
may change such allocation on a calendar quarterly basis by submitting a written
form to the Plan Administrator prior to the first day of such calendar quarter;
provided, however, that a Participant may not change a prior allocation to his
M&T
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Bank Corporation Stock Deemed Investment Account other than to add to such
Account.
4.4 Separate Accounting. Within a Participant's Account, the Plan
Administrator shall account separately for each of the Participant's Deferred
Bonuses.
4.5 M&T Bank Corporation Stock Deemed Investment Account. A
Participant's M&T Bank Corporation Stock Deemed Investment Account shall be
credited with the number of hypothetical shares of M&T Bank Corporation Common
Stock that equals the portion of the Deferred Bonus as to which the Participant
elected a hypothetical investment in such shares, divided by the closing price
of a share of M&T Bank Corporation Common Stock on the New York Stock Exchange
(or such other principal securities exchange on which the shares of Common Stock
are traded if such shares are no longer traded on the New York Stock Exchange)
on the effective date of the deferral, which shall be the date on which the
Deferred Bonus would have been paid had it not been deferred, plus Deemed
Earnings thereon. In the event of any change in corporate capital
capitalization, such as a stock split, or a corporate transaction, such as any
merger, consolidation, separation, including a spin-off, or other distribution
of stock or property of the Employer, any reorganization (whether or not such
reorganization comes within the definition of such term in Internal Revenue Code
Section 368) or any partial or complete liquidation of the Employer, such
adjustment shall be made in the number and class of hypothetical shares of M&T
Bank Corporation Common Stock held in a Participant's M&T Bank Corporation Stock
Deemed Investment Account as may be determined to be appropriate and equitable
by the Plan Administrator in its sole discretion.
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ARTICLE V
PAYMENT OF BENEFITS
5.1 General Rule. Except as provided in the following sentence or in
Section 5.2 hereof, a Participant (or, in the event of the Participant's death,
his Beneficiary) shall receive (or begin to receive) payment of the amount
standing to the Participant's Account as of the Revaluation Date or Dates next
following the time or times elected in the Participant's Deferred Bonus
Agreement or Agreements and shall receive such payment or payments in the form
or forms elected in such Agreement or Agreements. If, however, a Participant
terminates his employment with the Employer for any reason other than
Retirement, the Plan Administrator, in its discretion, may direct that, rather
than payment pursuant to the preceding sentence, a single payment shall be made
of the amount standing to the Participant's Account as of any earlier
Revaluation Date.
5.2 Hardship Withdrawals. In the event of Financial Hardship, a
Participant may request a distribution of all or a portion of the amount
standing to his Account. The determination of whether a Participant has incurred
a Financial Hardship shall be made by the Plan Administrator. The Participant
shall determine against which Deferred Bonus or Bonuses (and Deemed Earnings
thereon) a withdrawal pursuant to this Section 5.2 shall be charged.
5.3 Payment. The payment to a Participant with respect to a Deferred
Bonus (and Deemed Earnings thereon) shall be made in cash by the Participant's
last Employer in the year with respect to which the Bonus deferred was payable;
provided, however, that (a) if such Employer is owned directly or indirectly by
a bank, the payment shall be made by such bank and
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(b) payment from a Participant's M&T Bank Corporation Stock Deemed Investment
Account shall be made in M&T Bank Corporation Common Stock (except to the extent
that payment in M&T Bank Corporation Common Stock would result in a fractional
share, in which case the amount that would constitute a fractional share shall
be paid in cash, based on the closing price of a share of M&T Bank Corporation
Common Stock on the New York Stock Exchange, or such other principal securities
exchange on which the shares of Common Stock are traded if such shares are no
longer traded on the New York Stock Exchange, on the Revaluation Date
immediately preceding the date of payment). Payments of a Participant Account
which (x) is not being paid in a single payment and (y) contains a M&T Bank
Corporation Stock Deemed Investment Account as well as other amounts in the
Account, shall be made in both cash and M&T Bank Corporation Common Stock pro
rata in accordance with the values of the Participant's M&T Bank Corporation
Stock Deemed Investment Account and the balance of the Participant's Account.
5.4 Tax Withholding. The Plan Administrator may make such provisions
and take such steps as it may deem necessary or appropriate for the withholding
by the Employers of all Federal, state, local or other taxes required by law to
be withheld with respect to deferrals and payments under this Plan, including,
without limitation, in the discretion of the Plan Administrator, (a) requiring
the Participant (or Beneficiary, as the case may be) to pay, or provide for
payment of, the amount of any such taxes, (b) deducting any such taxes from any
amount otherwise payable to the Participant or Beneficiary in cash, including
amounts payable under this Plan, or (c) reducing the number of shares of M&T
Bank Corporation Common Stock
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otherwise payable under this Plan by an amount (based on the closing price of
such shares on the Revaluation Date immediately preceding the date the shares
would otherwise have been paid) equal to the amount of any such taxes.
ARTICLE VI
BENEFICIARIES
Each Participant may designate from time to time any person or persons,
natural or otherwise, as his Beneficiary or Beneficiaries to whom benefits under
Section 5.1 are to be paid in the event of his death. Each Beneficiary
designation shall be made either in the Deferred Bonus Agreement or on a form
provided by the Plan Administrator and shall be effective only when filed with
the Plan Administrator during the Participant's lifetime. Each Beneficiary
designation filed with the Plan Administrator shall revoke all Beneficiary
designations previously made by the Participant. The revocation of a Beneficiary
designation shall not require the consent of any designated Beneficiary. Payment
to a Beneficiary shall be made in the form or forms elected in the Participant's
Deferred Bonus Agreement or Agreements, provided that such payment shall be made
in a single payment if a request for such a single payment is made by the
Beneficiary and approved by the Plan Administrator.
ARTICLE VII
ADMINISTRATION
7.1 General. The Plan Administrator shall be charged with the
administration of this Plan. The Plan Administrator shall have all such powers
as may be necessary to discharge its
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duties relative to the administration of this Plan, including by way of
illustration and not limitation, discretionary authority to interpret and
construe this Plan, to decide any dispute arising hereunder, to determine the
right of any individual with respect to participation herein, to determine the
right of any Participant with respect to benefits payable under this Plan and to
adopt, alter and repeal such administrative rules, regulations and practices
governing the operation of this Plan as it, in its sole discretion, may from
time to time deem advisable. The Plan Administrator shall not be liable to any
person for any action taken or omitted in connection with the interpretation and
administration of this Plan unless attributable to willful misconduct or lack of
good faith. The Plan Administrator 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 Plan Administrator or an Employer with respect to this Plan. The Plan
Administrator, if an individual, or the members thereof if the Plan
Administrator is a Committee, shall not participate in any action or
determination regarding solely his or their own benefits payable hereunder.
Except as provided in Section 7.3 hereof, decisions of the Plan Administrator
made in good faith shall be final, conclusive and binding upon all parties.
7.2 Claims Procedure. Whenever the Plan Administrator denies, in whole
or in part, a claim for benefits filed by any person (hereinafter referred to as
a "Claimant"), the Plan Administrator 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 Plan on which the denial is based, a description of
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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
Plan Administrator's decision.
7.3 Review Procedure. 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
Plan Administrator 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 Plan Administrator; provided, however, that the date on which the Claimant's
request for review was in fact filed with the Plan Administrator 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 Plan Administrator to review;
(d) a statement by the Claimant setting forth the basis upon
which he believes the Plan Administrator 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
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Plan Administrator 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 Plan Administrator 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 the decision, including references to the specific provisions of
this Plan which were relied upon. The decision will be final and binding on all
persons concerned.
ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 Power to Amend or Terminate. M&T Bank Corporation expects to
continue this Plan indefinitely, but reserves the right to amend or terminate
this Plan at any time, if, in its sole judgment, such amendment or termination
is necessary or desirable. Any such amendment or termination shall be made in
writing by the Board or its designee, if applicable, and shall be effective as
of the date specified in such document. No amendment or termination of this Plan
shall directly or indirectly deprive any Participant or Beneficiary of all or
any portion of the amounts previously credited to the Participant's Account. In
the event of a termination of this Plan, M&T Bank Corporation (or any
transferee, purchaser or successor entity) may elect, in its discretion, either
to have the Employers make a single payment, at the time of such termination, of
the Account balances on such date to Participants and Beneficiaries or to have
the Employers make payments to such individuals at such time or times as
provided under the terms of this
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Plan.
8.2 Successor. This 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 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 Plan. In the event this 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 hereof.
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 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 amounts that such
Employer is obligated to pay under this Plan. No provision shall at any time be
made with respect to segregating any assets of any Employer for payment of any
amounts 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 Plan, and any such Participant, Beneficiary or
other person shall have only the rights
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of a general unsecured creditor of the Employer obligated to make payments to
the Participant under this Plan. Nothing contained in this 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 amount hereunder. All expenses and fees
incurred in the administration of this Plan shall be paid by the Employers.
9.3 Binding on Employers, Employees and Their Successors. This 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 as of the date of such merger,
consolidation or transfer and shall be substituted for such Employer hereunder.
9.4 Spendthrift Provisions. No amount payable under this 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 Plan.
9.5 Disclosure. Each Participant shall receive a copy of this Plan, and
the Plan
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Administrator will make available for inspection by any Participant a copy of
the rules and regulations used by the Plan Administrator in administering this
Plan.
9.6 State Law. This 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 ERISA.
9.7 Incapacity of Recipient. In the event a Participant 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 amounts
to which such Participant or Beneficiary is entitled under this Plan 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 Plan
Administrator, in its sole discretion, determines that a Participant or
Beneficiary is unable to manage his financial affairs, the Plan Administrator
may direct the Employer, or Employers responsible for payment to make payments
to any person for the benefit of such Participant or Beneficiary.
9.8 Unclaimed Benefit. Each Participant shall keep the Plan
Administrator informed of his current address. The Plan Administrator shall not
be obligated to search for the whereabouts of any person. If the location of a
Participant is not made known to the Plan Administrator 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 Plan Administrator is unable to locate the
Beneficiary of the Participant, the Participant and his
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Beneficiary shall forfeit all rights to any payments under this Plan.
9.9 Elections, Applications, Notices. Every direction, revocation or
notice authorized or required hereunder shall be deemed delivered to the
Employers or the Plan Administrator as the case may be: (a) on the date it is
personally delivered to the Plan Administrator (with a copy to the Bank's
General Counsel) at the Bank'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 Plan Administrator (with a copy to the Bank's General
Counsel) at the offices indicated above, and shall be deemed delivered to a
Participant 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 Plan shall be held
illegal or invalid for any reason, such illegality or invalidity shall not
affect the remaining provisions of this Plan. This 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 Plan are for convenience of
reference only and shall have no substantive effect on the provisions of this
Plan.
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