As filed with the Securities and Exchange Commission on March 15, 2002
Registration No. 333-****
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)
----------------
NEW YORK
(State or other jurisdiction 16-0968385
of incorporation or (IRS Employer
organization) Identification No.)
One M&T Plaza
Buffalo, New York 14203
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
----------------
M&T BANK CORPORATION
RETIREMENT SAVINGS PLAN AND TRUST
(Full title of the plan)
----------------
Richard A. Lammert, Esq.
Senior Vice President and General Counsel
M&T Bank Corporation
One M&T Plaza
Buffalo, New York 14203
(716) 842-5390
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Steven Kaplan, Esq.
Arnold & Porter
555 Twelfth Street, N.W.
Washington, D.C. 20004
(202) 942-5000
---------------------
Calculation of Registration Fee
- --------------------------------------------------------------------------------------
Title of securities to Amount to be Proposed Proposed maximum Amount of
be registered registered(1) maximum aggregate registration
offering price offering fee
per unit(2) price(2)
- --------------------------------------------------------------------------------------
Common Stock, $0.50
Par Value 1,000,000 $79.38 $79,380,000 $7,302.96
- --------------------------------------------------------------------------------------
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933,
this Registration Statement also covers any additional securities which may
become issuable pursuant to anti-dilution provisions of the Retirement Savings
Plan and Trust.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Securities Act Rule 457(h), on the basis of the average high and
low sale prices of the Registrant's Common Stock as reported on March 11, 2002
on the New York Stock Exchange,which date is within 5 business days prior to
the date of the filing of this Registration Statement.
1
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The purpose of this Registration Statement is to register an
additional 1,000,000 shares of common stock, $0.50 par value, for issuance
pursuant to the M&T Bank Retirement Savings Plan and Trust (the "Plan").
Pursuant to General Instruction E to Form S-8, except as set forth below, the
contents of Registration Statement No. 333-16077, and Post-effective Amendment
No. 1 thereto, are incorporated herein by reference.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by M&T Bank Corporation (File No.
1-9861) ("M&T") with the Securities and Exchange Commission (the "Commission")
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
are incorporated herein by reference:
a. M&T's Annual Report on Form 10-K for the year
ended December 31, 2001;
b. The description of the common stock of M&T ("M&T
Common Stock"), contained in a registration
statement on Form 8-A filed by M&T on May 20,
1998, and any amendments or reports filed for the
purpose of updating such description.
All documents filed by M&T after the date of this Registration
Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all M&T
Common Stock offered hereby has been sold or which deregisters such M&T Common
Stock then remaining unsold, shall be deemed to be incorporated in this
Registration Statement by reference and shall be a part hereof from the date
of filing such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference in this Registration Statement 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 in this Registration Statement modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or so superseded, to constitute a part of this
Registration Statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The consolidated financial statements of M&T incorporated in
this Registration Statement by reference to M&T's Annual Report on Form 10-K
for the year ended December 31, 2001 have been so incorporated in this
document by reference in
2
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of said firm as experts in auditing and accounting.
Documents incorporated herein by reference in the future will
include financial statements, related schedules (if required) and accountants'
reports, which financial statements and schedules will have been audited to
the extent and for periods set forth in such reports by the firm or firms
rendering such reports, and, to the extent so audited and consent to
incorporation by reference is given, will be incorporated herein by reference
in reliance on the reports given on the authority of said firm as experts in
auditing and accounting.
Richard A. Lammert, Esq., Senior Vice President and 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. As of March 14, 2002, Mr.
Lammert was the beneficial owner of 60,568 shares of M&T Common Stock and held
options granted under the M&T Bank Corporation 1983 Stock Option Plan and the
M&T Bank Corporation 2001 Stock Option Plan covering 138,000 shares of M&T
Common Stock, 97,000 of which are currently exercisable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 721 and 722 of the New York Business Corporation Law
("NYBCL") provide for indemnification of directors and officers. Section 721
of the NYBCL provides that the statutory provisions under New York law are not
exclusive of any other rights to which a director or officer seeking
indemnification would be entitled.
Section 722 of the NYBCL provides that a corporation may
indemnify a director or officer of the corporation who is made a party, or
threatened to be made a party, in a civil or criminal proceeding arising out
of activities undertaken at the request of the corporation (including action
on behalf of another corporation, partnership, joint venture, trust, employee
benefit plan or other business enterprise) against judgments, fines, amounts
paid in settlement and reasonable expenses, if the director or officer acted
in good faith for a purpose which he reasonably believed to be in, or, in the
case of service for any other corporation, partnership, joint venture, trust,
employee benefit plan or other business enterprise, not opposed to, the best
interests of the corporation. To be indemnified with respect to criminal
proceedings, the director or officer must also have had no reasonable cause to
believe that his or her conduct was unlawful. In the case of a claim by or in
the right of the corporation (including stockholder derivative suits), there
is no indemnification under New York law for threatened actions or a pending
action otherwise settled or disposed of, and no indemnification of expenses is
permitted, if the director or officer is adjudged liable to the corporation
unless and only to the extent a court determines that, despite such
adjudication but in view of all the circumstances, such indemnification is
nonetheless proper.
3
The certificate of incorporation of M&T provides that M&T will
indemnify to the maximum extent permissible under New York law its officers
and directors for liability arising out of their actions in such capacity.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this Registration
Statement or, where so indicated, have been previously filed and are
incorporated herein by reference.
Exhibit 5 Opinion of Richard A. Lammert, Esq., filed herewith.
Exhibit 23.1 Consent of Richard A. Lammert, Esq., included in the opinion
filed as Exhibit 5 hereto.
Exhibit 23.2 Consent of PricewaterhouseCoopers LLP, filed herewith.
Exhibit 24 Powers of Attorney, filed herewith.
Exhibit 99.1 Form of Consolidated M&T Bank Retirement Savings Plan
and Trust, filed herewith.
ITEM 9. UNDERTAKINGS.
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:
(a) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended;
(b) 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 a 20% change
in the maximum aggregate offering price set forth in
4
the "Calculation of Registration Fee" table in the
effective registration statement;
(c) 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 the undertakings set forth in paragraphs 1(a)
and 1(b) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in
periodic reports filed by M&T pursuant to Section 13 or 15(d) of the
Exchange Act, which are incorporated by reference in this registration
statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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.
4. That, for purposes of determining any liability under the
Securities Act of 1933, as amended, each filing of M&T's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act, as amended,
that is incorporated by reference in this 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.
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, 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 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.
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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 the City of Buffalo, State of New York, on
March 14, 2002.
M&T BANK CORPORATION
By: /s/ MICHAEL P. PINTO
--------------------------------
Michael P. Pinto
Executive Vice President and
Chief Financial Officer
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 March 14, 2002:
Signature Title
* Chairman of the Board, President and Chief
----------------------------- Executive Officer (Principal Executive Officer)
Robert G. Wilmers
/s/ MICHAEL P. PINTO Executive Vice President and Chief Financial
----------------------------- Officer (Principal Financial Officer)
Michael P. Pinto
/s/ MICHAEL R. SPYCHALA Senior Vice President and Controller
----------------------------- (Principal Accounting Officer)
Michael R. Spychala
----------------------------- Director
William F. Allyn
----------------------------- Director
Brent D. Baird
6
*
----------------------------- Director
John H. Benisch
* Director
-----------------------------
Robert J. Bennett
* Director
-----------------------------
C. Angela Bontempo
Director
-----------------------------
Robert T. Brady
* Director
-----------------------------
Patrick J. Callan
* Director
-----------------------------
Carl L. Campbell
* Director
-----------------------------
R. Carlos Carballada
* Director
-----------------------------
T. Jefferson Cunningham III
* Director
-----------------------------
Donald Devorris
Director
-----------------------------
Richard E. Garman
* Director
-----------------------------
James V. Glynn
* Director
-----------------------------
Daniel R. Hawbaker
7
* Director
-----------------------------
Patrick W.E. Hodgson
* Director
-----------------------------
Samuel T. Hubbard, Jr.
Director
-----------------------------
Richard G. King
* Director
-----------------------------
Reginald B. Newman, II
* Director
-----------------------------
Peter J. O'Donnell, Jr.
* Director
-----------------------------
Jorge G. Pereira
* Director
-----------------------------
Robert E. Sadler, Jr.
Director
-----------------------------
Stephen G. Sheetz
* Director
-----------------------------
John L. Vensel
* Director
-----------------------------
Herbert L. Washington
* By /s/ RICHARD A. LAMMERT March 14, 2002
------------------
Richard A. Lammert, Esq.
(Attorney-in fact)
Pursuant to Powers of Attorney filed herewith
8
Pursuant to the requirements of the Securities Act of 1933, the
Committee which administers the M&T Bank Corporation Retirement Savings Plan
and Trust has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Buffalo,
State of New York on March 12, 2002.
/s/ ROBERT E. SADLER JR.
------------------------
Robert E. Sadler Jr.
/s/ RAY E. LOGAN
------------------------
Ray E. Logan
/s/ MICHAEL P. PINTO
------------------------
Michael P. Pinto
/s/ MARK J. CZARNECKI
------------------------
Mark J. Czarnecki
/s/ JAMES L. HOFFMAN
------------------------
James L. Hoffman
9
INDEX TO EXHIBITS
Exhibit 5 Opinion of Richard A. Lammert, Esq., filed herewith.
Exhibit 23.1 Consent of Richard A. Lammert, Esq., included in the opinion
filed as Exhibit 5 hereto.
Exhibit 23.2 Consent of PricewaterhouseCoopers LLP, filed herewith.
Exhibit 24 Powers of Attorney, filed herewith.
Exhibit 99.1 Form of Consolidated M&T Bank Retirement Savings Plan and
Trust, filed herewith.
10
EXHIBIT 5
March 14, 2002
M&T Bank Corporation
One M&T Plaza
Buffalo, New York 14240
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-8 ("Registration
Statement") of M&T Bank Corporation (the "Corporation") related to the
registration of 1,000,000 shares of the Corporation's common stock, par value
$0.50 per share ("Common Stock"), which are to be offered or sold pursuant to
the M&T Bank Corporation Retirement Savings Plan and Trust (the "Plan"). I
have been requested to furnish an opinion to be included as Exhibit 5 to the
Registration Statement. In conjunction with the furnishing of this opinion, I
have examined such corporate documents and have made such investigation of
matters of fact and law as I have deemed necessary to render this opinion.
I am admitted to practice law in the State of New York and do not purport to
be an expert on or to express any opinion on any laws other than the laws of
the State of New York and the federal laws of the United States of America.
This opinion speaks as of today's date and is limited to present statutes,
regulations and judicial interpretations. In rendering this opinion, I assume
no obligation to revise or supplement this opinion should present laws,
regulations or judicial interpretations be changed by legislative or
regulatory action, judicial decision or otherwise.
Based upon such examination and investigation, and upon the assumption that
there will be no material changes in the documents examined and matters
investigated and that at the time of issuance there will be authorized but
unissued shares of Common Stock available to the Corporation in sufficient
amounts, I am of the opinion that the 1,000,000 shares of Common Stock
referred to above have been duly authorized by the Corporation and that, when
issued in accordance with the terms of the Plan, and for consideration of not
less than the par value thereof, will be validly issued, fully paid and
non-assessable.
I consent to the filing of this opinion as Exhibit 5 to the Registration
Statement.
This letter does not address any matters other than those expressly addressed
herein. This letter is given for your sole benefit and use. No one else is
entitled to rely hereupon.
Very truly yours,
/s/ RICHARD A. LAMMERT
-----------------------------
Richard A. Lammert
Senior Vice President and
General Counsel
11
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 9, 2002 relating to the
financial statements, which appears on page 72 in M&T Bank Corporation's
Annual Report on Form 10-K for the year ended December 31, 2001. We also
consent to the references to us under Item 5 "Interests of Named Experts and
Counsel" in such Registration Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
- ------------------------------
PricewaterhouseCoopers LLP
Buffalo, New York
March 14, 2002
12
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and/or officers of M&T Bank Corporation, a corporation organized under the
laws of the State of New York (the "Corporation"), hereby constitutes and
appoints Richard A. Lammert and Steven L. Kaplan, and each of them (with full
power to each of them to act alone), his or her true and lawful
attorneys-in-fact and agents with full power of substitution and
resubstitution, for him or her and on his or her behalf and in his or her
name, place and stead, in any and all capacities, to sign, execute and to
affix his or her seal to and file with the Securities and Exchange Commission
(or any other governmental or regulatory authority) a Registration Statement
on Form S-8 (or any other appropriate form), and any and all amendments
(including post-effective amendments) thereto, with all exhibits and any and
all documents required to be filed with respect thereto, relating to the
registration under the Securities Act of 1933, as amended, of shares of the
Corporation's common stock, par value $0.50 per share, to be issued or sold
pursuant to the M&T Bank Corporation Retirement Savings Plan and Trust, and of
plan interests in such plan, granting unto said attorneys, and each of them,
full power and authority to do and to perform each and every act and thing
requisite and necessary to be done in order to effectuate the same as fully to
all intents and purposes as he himself or she herself might or could do if
personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned directors and/or officers has
hereunto set his or her hand as of the date specified.
Dated: February 19, 2002
/s/ Patrick W.E. Hodgson
----------------------------- ------------------------
William F. Allyn Patrick W.E. Hodgson
/s/ Samuel T. Hubbard Jr.
----------------------------- -------------------------
Brent D. Baird Samuel T. Hubbard, Jr.
/s/ John H. Benisch
----------------------------- -------------------------
John H. Benisch Richard G. King
/s/ Robert J. Bennett /s/ Reginald B. Newman, II
----------------------------- --------------------------
Robert J. Bennett Reginald B. Newman, II
/s/ C. Angela Bontempo /s/ Peter J. O'Donnell, Jr.
----------------------------- ---------------------------
C. Angela Bontempo Peter J. O'Donnell, Jr.
13
/s/ Jorge G. Pereira
----------------------------- -----------------------------
Robert T. Brady Jorge G. Pereira
/s/ Patrick J. Callan /s/ Michael P. Pinto
----------------------------- -----------------------------
Patrick J. Callan Michael P. Pinto
/s/ Carl L. Campbell /s/ Robert E. Sadler, Jr.
----------------------------- -----------------------------
Carl L. Campbell Robert E. Sadler, Jr.
/s/ R. Carlos Carballada
----------------------------- -----------------------------
R. Carlos Carballada Stephen Sheetz
/s/ T. Jefferson Cunningham III /s/ Michael R. Spychala
------------------------------- -----------------------------
T. Jefferson Cunningham III Michael R. Spychala
/s/ Donald Devorris /s/ John L. Vensel
----------------------------- -----------------------------
Donald Devorris John L. Vensel
/s/ Herbert L. Washington
----------------------------- -----------------------------
Richard E. Garman Herbert L. Washington
/s/ James V. Glynn /s/ Robert G. Wilmers
----------------------------- -----------------------------
James V. Glynn Robert G. Wilmers
/s/ Daniel R. Hawbaker
-----------------------------
Daniel R. Hawbaker
14
EXHIBIT 99.1
FORM OF CONSOLIDATED
M&T BANK CORPORATION
RETIREMENT SAVINGS PLAN AND TRUST
Effective April 1, 1986
M&T BANK CORPORATION
RETIREMENT SAVINGS PLAN AND TRUST
TABLE OF CONTENTS
Page
----
ARTICLE 1 NAME; EFFECTIVE DATE........................................................................1
Section 1.01. Name........................................................................................1
Section 1.02. Effective Date..............................................................................1
Section 1.03. Intent......................................................................................1
ARTICLE 2 DEFINITIONS.................................................................................1
Section 2.01. "Account"...................................................................................1
Section 2.02. "Actual Deferral Percentage for Additional Employer
Contributions"..............................................................................1
Section 2.03. "Actual Deferral Percentage for Pretax Contributions".......................................1
Section 2.04. "Additional Employer Contribution"..........................................................1
Section 2.05. "After-tax Contribution"....................................................................2
Section 2.06. "Affiliated Employer".......................................................................2
Section 2.07. "Anniversary Date"..........................................................................2
Section 2.08. "Annuity Starting Date".....................................................................2
Section 2.09. "Applicable Percentage for After-tax Contributions".........................................2
Section 2.10. "Applicable Percentage for Pretax Contributions"............................................2
Section 2.11. "Beneficiary"...............................................................................2
Section 2.12. "Code"......................................................................................2
Section 2.13. "Committee".................................................................................2
Section 2.14. "Compensation"..............................................................................2
Section 2.15. "Continuous Service"........................................................................3
Section 2.16. "Contribution"..............................................................................4
Section 2.17. "Corporation"...............................................................................4
Section 2.18. "Deferral Percentage for Additional Employer Contributions".................................4
Section 2.19. "Deferral Percentage for Pretax Contributions"..............................................4
Section 2.20. "Deferral Percentage Test for Additional Employer Contributions"............................4
Section 2.21. "Deferral Percentage Test for Pretax Contributions".........................................4
Section 2.22. "Distribution"..............................................................................4
Section 2.23. "East New York Bank"........................................................................5
Section 2.24. "East New York Plan"........................................................................5
Section 2.25. "Effective Date"............................................................................5
Section 2.26. "Eligible Employee".........................................................................5
Section 2.27. "Employee"..................................................................................5
Section 2.28. "Employer"..................................................................................5
Section 2.29. "Entry Date"................................................................................5
Section 2.30. "ERISA".....................................................................................5
i
Section 2.31. "ESOP Component"............................................................................5
Section 2.32. "FNBR"......................................................................................5
Section 2.33. "FNBR Plan".................................................................................5
Section 2.34. "M&T Bank Corporation Stock Fund"...........................................................5
Section 2.35. "Highly Compensated Employee"...............................................................5
Section 2.36. "Investment Fund"...........................................................................6
Section 2.37. "M&T Stock".................................................................................6
Section 2.38. "Money Market Fund".........................................................................6
Section 2.39. "Multiple Use Limitation"...................................................................6
Section 2.40. "Non-Highly Compensated Employee"...........................................................6
Section 2.41. "Onbank"....................................................................................6
Section 2.42. "Onbank Plan"...............................................................................6
Section 2.43. "Participant"...............................................................................7
Section 2.44. "Period of Severance".......................................................................7
Section 2.45. "Plan"......................................................................................7
Section 2.46. "Plan Year".................................................................................7
Section 2.47. "Pretax Contributions"......................................................................7
Section 2.48. "Profit-Sharing Component"..................................................................7
Section 2.49. "Qualified Domestic Relations Order"........................................................7
Section 2.50. "Required Beginning Date"...................................................................7
Section 2.51. "Revaluation Date"..........................................................................7
Section 2.52. "Rollover Contribution".....................................................................7
Section 2.53. "Salary Reduction Agreement"................................................................7
Section 2.54. "Salary Reduction Contribution".............................................................7
Section 2.55. "Severance from Service Date"...............................................................7
Section 2.56. "Trust".....................................................................................8
Section 2.57. "Trustee"...................................................................................8
ARTICLE 3 CREATION; PURPOSE...........................................................................8
Section 3.01. Creation and Acceptance of Trust............................................................8
Section 3.02. Purpose of Trust............................................................................8
ARTICLE 4 ELIGIBILITY TO PARTICIPATE..................................................................8
Section 4.01. Eligibility To Participate..................................................................8
Section 4.02. Ceasing To Be an Employee...................................................................9
Section 4.03. Participation After Reemployment...........................................................10
Section 4.04. Dispute as to Eligibility..................................................................10
Section 4.05. Noncontributing Participant................................................................10
ARTICLE 5 CONTRIBUTIONS..............................................................................10
Section 5.01. Salary Reduction Contributions.............................................................10
Section 5.02. Additional Employer Contributions..........................................................12
Section 5.03. Rollover Contributions.....................................................................13
Section 5.04. Profits....................................................................................14
Section 5.05. Determination of Amount of Contributions...................................................14
Section 5.06. Refunds of Excess Contributions............................................................14
ii
Section 5.07. Application of the Deferral Percentage Tests to Plan Components............................16
Section 5.08. Contributions to Satisfy Acquisition Loan Obligations......................................16
ARTICLE 6 ACCOUNTS...................................................................................17
Section 6.01. Separate Accounts and Records..............................................................17
Section 6.02. Investment and Valuation of Accounts.......................................................17
Section 6.03. Limitations on Annual Additions............................................................18
Section 6.04. Vesting....................................................................................19
ARTICLE 7 WITHDRAWALS UPON FINANCIAL HARDSHIP........................................................19
Section 7.01. Withdrawals................................................................................19
Section 7.02. Order of Withdrawal........................................................................21
ARTICLE 8 LOANS......................................................................................21
Section 8.01. Application................................................................................21
Section 8.02. Limitations................................................................................21
Section 8.03. Terms......................................................................................22
Section 8.04. Other Provisions...........................................................................22
ARTICLE 9 DISTRIBUTION OF BENEFITS...................................................................23
Section 9.01. Entitlement to Distribution................................................................23
Section 9.02. Notice by Employer.........................................................................23
Section 9.03. Time of Distribution.......................................................................23
Section 9.04. Method of Distribution.....................................................................25
Section 9.05. Prohibition on Alienation..................................................................26
Section 9.06. Designation of Beneficiary.................................................................26
Section 9.07. Rollover Distribution......................................................................26
Section 9.08. Distributions to Alternate Payees..........................................................27
ARTICLE 10 THE TRUST AND THE TRUSTEE..................................................................28
Section 10.01. The Trust..................................................................................28
Section 10.02. Responsibility for Management and Control of Assets........................................28
Section 10.03. General Powers of Trustee..................................................................28
Section 10.04. Payments from and Charges to Trust.........................................................30
Section 10.05. Duties of the Trustee......................................................................30
Section 10.06. Immunities of Trustee......................................................................30
Section 10.07. Removal....................................................................................30
Section 10.08. Successor Trustee..........................................................................30
Section 10.09. Vesting of Property in New Trustee.........................................................30
Section 10.10. Final Settlement of Trustee's Account......................................................31
Section 10.11. Merger of Trustee..........................................................................31
Section 10.12. Right to Judicial Accounting...............................................................31
ARTICLE 11 ADMINISTRATION OF THE PLAN.................................................................31
Section 11.01. The Committee..............................................................................31
iii
Section 11.02. Agents.....................................................................................32
Section 11.03. Compensation and Expenses..................................................................32
Section 11.04. Action by the Committee....................................................................32
Section 11.05. Records....................................................................................32
Section 11.06. Defect or Omission.........................................................................32
Section 11.07. Disqualification of Member.................................................................32
Section 11.08. Liability of Committee Members.............................................................33
Section 11.09. Funding Policy.............................................................................33
Section 11.10. Establishment of Investment Funds..........................................................33
Section 11.11. Claims by Employees and Participants.......................................................33
Section 11.12. Rights of Certain Veterans.................................................................33
ARTICLE 12 TERMINATION, CONTINUATION AND MERGER.......................................................33
Section 12.01. Termination of the Plan....................................................................33
Section 12.02. Continuation or Merger of Plan.............................................................33
ARTICLE 13 TOP-HEAVY PROVISIONS.......................................................................34
Section 13.01. Definition of Top-Heavy Plan...............................................................34
Section 13.02. Top-Heavy Rules............................................................................35
Section 13.03. Maximum Permissible Contributions and Benefits.............................................36
ARTICLE 14 MISCELLANEOUS..............................................................................36
Section 14.01. Rights of All Interested Parties Determined by Terms of the Plan...........................36
Section 14.02. No Employment Rights Created...............................................................36
Section 14.03. Mistaken Contributions, etc................................................................36
Section 14.04. Construction...............................................................................36
Section 14.05. Number and Gender..........................................................................37
Section 14.06. Notice to Employees........................................................................37
Section 14.07. Notification of Address....................................................................37
Section 14.08. Amendments.................................................................................37
Section 14.09. Headings...................................................................................37
Section 14.10. Governing Law..............................................................................37
ARTICLE 15 ADMISSION OF CERTAIN EMPLOYEES.............................................................37
Section 15.01. Former Boeing Company Employees............................................................37
Section 15.02. Former Chemical Bank Employees.............................................................38
Section 15.03. Former East New York Employees.............................................................38
Section 15.04. Former Monroe Savings Bank, F.S.B. Employees...............................................38
Section 15.05. Former Empire Federal Savings Bank of America Employees....................................38
Section 15.06. Former Goldome Employees...................................................................39
Section 15.07. Former Endicott Trust Company Employees and Central Trust Company Employees................39
Section 15.08. Former Citizens Savings Bank Employees.....................................................39
Section 15.09. Former Statewide Funding Corp. Employees...................................................39
iv
Section 15.10. Former Chase Bank Employees................................................................39
Section 15.11. Former Exchange Mortgage Corp. Employees...................................................39
Section 15.12. Former Integra Bank Employees..............................................................39
Section 15.13. Former GreenPoint Bank Employees...........................................................40
Section 15.14. Former Onbank Employees....................................................................40
Section 15.15. Former FNBR Employees......................................................................40
Section 15.16. Former Chase Manhattan Employees...........................................................40
Section 15.17. Matthews, Bartlett & Dedecker, Inc. Employees..............................................40
Section 15.18. Former CFS Bank Employees..................................................................40
Section 15.19. Former Keystone Employees..................................................................40
Section 15.20. Former Premier Employees...................................................................40
ARTICLE 16 PROTECTED BENEFIT OPTIONS FOR FORMER PARTICIPANTS IN PLANS SUBJECT TO
CODE SECTIONS 401(a)(11) AND 417...........................................................41
Section 16.01. Definitions................................................................................41
Section 16.02. Protected Distribution Options Available to Former Merged Plan Participants................43
Section 16.03. Additional Protected Distribution Options Available to Former ENY Plan Participants........44
Section 16.04. Additional Protected Distribution Options Available to Former MHT Plan Participants........45
Section 16.05. Additional Protected Distribution Options Available to Former Chase Manhattan Plan
Participants...............................................................................46
Section 16.06. Additional Protected Benefit Options for Former MBD Plan Participants......................47
Section 16.07. Additional Protected Benefit Options for Former Premier Plan Participants..................47
Section 16.08. Election to Waive the Normal Form of Annuity...............................................48
Section 16.09. Preretirement Death of Former Merged Plan Participant......................................48
Section 16.10. Purchase of Annuity........................................................................49
Section 16.11. Preservation of Code Section 411(d)(6) Benefits............................................49
Section 16.12. Elimination of Annuity and Installment Distributions.......................................49
Section 16.13. Repayment of Cashout.......................................................................49
ARTICLE 17 PROTECTED BENEFIT OPTIONS FOR FORMER PARTICIPANTS IN PLANS NOT SUBJECT TO CODE
SECTION 401(A)(11).........................................................................50
Section 17.01. Definitions................................................................................50
Section 17.02. Protected Benefit Options for Former Chemical Plan Participants............................52
Section 17.03. Protected Benefit Options for Former Citizens Plan Participants............................53
Section 17.04. Protected Benefit Options for Former Statewide Plan Participants...........................53
v
Section 17.05. Protected Benefit Options for Former Chase Plan Participants...............................53
Section 17.06. Protected Benefit Options for Former Onbank Plan Participants..............................54
Section 17.07. Protected Benefit Options for Former Onbank ESOP Participants..............................55
Section 17.08. Protected Benefit Options for Former FNBR Plan Participants................................55
Section 17.09. Protected Benefit Options for Former Keystone Plan Participants............................56
Section 17.10. Repayment of Cash-out......................................................................56
Section 17.11. Preservation of Code Section 411(d)(6) Benefits............................................57
ARTICLE 18 ESOP PROVISIONS............................................................................57
Section 18.01. General....................................................................................57
Section 18.02. Right to Distribution of M&T Stock.........................................................57
Section 18.03. Dividends on M&T Stock.....................................................................58
Section 18.04. Diversification............................................................................58
Section 18.05. Voting Rights..............................................................................58
Section 18.06. Put Rights.................................................................................58
Section 18.07. Acquisition Loans..........................................................................60
vi
M&T BANK CORPORATION
RETIREMENT SAVINGS PLAN AND TRUST
ARTICLE 1
NAME; EFFECTIVE DATE
Section 1.01. Name. This plan shall be known as the M&T Bank Corporation
Retirement Savings Plan and Trust, hereinafter referred to as the "Plan."
Section 1.02. Effective Date. The Plan shall be effective as of April 1,
1986, hereinafter referred to as the "Effective Date."
Section 1.03. Intent. The Plan is intended to be a qualified plan under
Code Section 401(a) with a qualified cash or deferred arrangement under Code
Section 401(k). The Plan is a combined profit sharing plan/stock bonus plan, and
the stock bonus component of the Plan is (i) intended to be an employee stock
ownership plan within the meaning of Code Section 4975(e)(7), and (ii) designed
to invest primarily in M&T Stock.
ARTICLE 2
DEFINITIONS
As used in this Plan, and except as otherwise provided herein, the
following terms shall have the meaning hereinafter set forth:
Section 2.01. "Account" shall mean an account established for a
Participant pursuant to Article 6 hereof.
Section 2.02. "Actual Deferral Percentage for Additional Employer
Contributions" shall mean, for a particular Plan Year, the average of the
Deferral Percentages for Additional Employer Contributions of each Eligible
Employee in the group for which the Actual Deferral Percentage for Additional
Employer Contributions is to be determined.
Section 2.03. "Actual Deferral Percentage for Pretax Contributions"
shall mean, for a particular Plan Year, the average of the Deferral Percentages
for Pretax Contributions of each Eligible Employee in the group for which the
Actual Deferral Percentage for Pretax Contributions is to be determined.
Section 2.04. "Additional Employer Contribution" shall mean a
Contribution made pursuant to Section 5.02 hereof. For purposes of Section 6.01
hereof, Additional Employer Contributions shall include any employer
contribution, other than an elective deferral as defined in Code Section 402(g),
made to a plan described in Article 16 or 17 hereof.
1
Section 2.05. "After-tax Contribution" shall mean a Contribution
described in Section 5.01(a)(3) hereof. For purposes of Section 6.01 hereof,
After-tax Contributions shall include any after-tax contribution made to a plan
described in Article 16 or 17 hereof.
Section 2.06. "Affiliated Employer" shall mean the Employer and any
corporation which is a member of a controlled group of corporations (as defined
in Code Section 414(b)) which includes the Employer; any trade or business
(whether or not incorporated) which is under common control (as defined in Code
Section 414(c)) with the Employer; any organization (whether or not
incorporated) which is a member of an affiliated service group (as defined in
Code Section 414(m)) which includes the Employer; and any other entity required
to be aggregated with the Employer pursuant to Treasury Regulations under Code
Section 414(o).
Section 2.07. "Anniversary Date" shall mean the last day of each Plan
Year.
Section 2.08. "Annuity Starting Date" shall mean the first day of the
first period for which an amount is payable as an annuity, or, in the case of a
benefit that is not payable in the form of an annuity, the first day on which
all events have occurred which entitle the Participant to such benefit.
Section 2.09. "Applicable Percentage for After-tax Contributions" shall
have the meaning provided in Section 5.01(a) hereof.
Section 2.10. "Applicable Percentage for Pretax Contributions" shall
have the meaning provided in Section 5.01(a) hereof.
Section 2.11. "Beneficiary" shall mean any person to whom a Distribution
is payable upon the death of a Participant.
Section 2.12. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
Section 2.13. "Committee" shall mean the committee appointed by the
Corporation in accordance with Section 11.01 hereof.
Section 2.14. "Compensation" shall have the following meanings:
(a) For purposes of Sections 5.01(a) and 5.02(a) hereof, an
Employee's Compensation shall be the sum of the following amounts paid to the
Employee during the calendar year: (1) the Employee's base salary, and (2) in
the case of an Employee whose sales commissions for such calendar year are
expected to exceed 50% of his total salary from the Employer for such calendar
year, 75% of the Employee's sales commissions. All forms of compensation paid in
addition to base salary, (including, but not limited to, bonuses, overtime,
commissions, and incentives), other than the commissions described in (2) above,
are excluded from Compensation.
2
(b) For purposes of Sections 2.18 and 2.19 hereof,
Compensation shall mean amounts paid with respect to an Eligible Employee in the
Plan Year and required to be reported on the Employee's Form W-2 for services
performed for the Employer. For any Plan Year, the Committee may elect to
include in the definition of the term "Compensation" contributions made on
behalf of an Eligible Employee by the Employer pursuant to a salary reduction
agreement under Code Section 401(k), 125 or 132(f)(4); provided, however, that
such election shall be applied consistently with respect to all Eligible
Employees for any such Plan Year.
(c) Notwithstanding the foregoing, solely for the purposes
of Sections 2.35, 6.03, 13.01 and 13.02 hereof, Compensation shall mean an
Employee's earned income, wages, salaries, and fees for professional services,
and other amounts received for personal services actually rendered in the course
of employment with an Employer, but shall not include (i) employer contributions
to a deferred compensation plan that are not includible in the Employee's gross
income for the taxable year in which contributed or any distributions from a
deferred compensation plan (other than an unfunded nonqualified plan); (ii)
amounts realized from the exercise of a nonstatutory stock option, or when
restricted stock (or property) held by the Employee either becomes freely
transferable or is no longer subject to a substantial risk of forfeiture; (iii)
amounts realized from the sale, exchange or other disposition of stock acquired
under a statutory stock option; or (iv) other amounts which receive special tax
benefits, such as premiums for group term life insurance to the extent not
includible in the gross income of the individual. Notwithstanding anything to
the contrary in the foregoing sentence, for purposes of these Sections 2.35,
6.03, 13.01 and 13.02 hereof, Compensation shall include (i) any elective
deferral (as defined in Code Section 402(g)(3)), and (ii) any amount which is
contributed or deferred by an Employer at the election of an Employee and which
is not includible in the gross income of the Employee by reason of Code Sections
125, 132(f)(4) or 457.
(d) Notwithstanding the foregoing, for purposes other than
Section 2.35 hereof, the amount of Compensation taken into account for any
Employee for any calendar year is limited to $150,000 per calendar year (as
adjusted in accordance with Code Section 401(a)(17) for cost of living
increases). Such limitation shall be prorated for partial years based on the
number of actual weeks worked pursuant to applicable Treasury Regulations.
Section 2.15. "Continuous Service" shall mean the period (1) beginning
on the later of (A) the first date that an individual is paid or entitled to
payment by the Employer for the performance of duties or (B) the first date,
after a Period of Severance that is not counted as Continuous Service, that the
individual is entitled to payment by the Employer for the performance of duties,
and (2) ending on his Severance from Service Date.
(a) All periods of Continuous Service shall be aggregated
except that Continuous Service of less than 12 months prior to a Period of
Severance of 12 months or more shall not be aggregated with subsequent
Continuous Service.
3
(b) A Period of Severance of less than 12 months shall be
counted as Continuous Service. A Period of Severance of 12 months or more shall
not be counted as Continuous Service.
(c) An individual shall also be credited with Continuous
Service for service with any corporation that is consolidated or merged with the
Employer, or to whose business the Employer is a successor, if such individual
becomes an Employee upon such consolidation, merger, or succession.
Section 2.16. "Contribution" shall mean a contribution made pursuant to
Article 5 hereof.
Section 2.17. "Corporation" shall mean the Manufacturers and Traders
Trust Company.
Section 2.18. "Deferral Percentage for Additional Employer
Contributions" shall mean with respect to an Eligible Employee for a particular
Plan Year, the ratio of (a) the sum of (i) Additional Employer Contributions to
the Plan made by the Employer with respect to the Eligible Employee (other than
Additional Employer Contributions made to meet the requirements of Section 13.02
hereof) and (ii) After-tax Contributions to the Plan made by the Eligible
Employee to (b) the Eligible Employee's Compensation from the Employer for the
Plan Year, provided that the Employer, at its option and to the extent permitted
by Treasury Regulations, may include in (a) above with respect to each Eligible
Employee for the Plan Year, the Pretax Contributions to the Plan and qualified
nonelective contributions (as defined in Code Section 401(m)(4)(C)) under the
Plan or any other plan of the Employer qualified under Code Section 401.
Section 2.19. "Deferral Percentage for Pretax Contributions" shall mean
with respect to an Eligible Employee for a particular Plan Year, the ratio of
(a) the Pretax Contributions (including, except to the extent otherwise provided
by Treasury Regulations, Pretax Contributions refunded to the Eligible Employee
because of the limitation imposed by Code Section 402(g)) to the Plan made by
the Employer with respect to the Eligible Employee for the Plan Year, to (b) the
Eligible Employee's Compensation from the Employer for the Plan Year, provided
that the Employer, at its option and to the extent provided by Treasury
Regulations, may include in (a) above with respect to each Eligible Employee for
the Plan Year the amount of Additional Employer Contributions.
Section 2.20. "Deferral Percentage Test for Additional Employer
Contributions" shall mean the test set forth in Section 5.02(b) hereof.
Section 2.21. "Deferral Percentage Test for Pretax Contributions" shall
mean the test set forth in Section 5.01(c) hereof.
Section 2.22. "Distribution" shall mean a payment pursuant to Article 9,
16 or 17 hereof.
4
Section 2.23. "East New York Bank" shall mean The East New York Savings
Bank.
Section 2.24. "East New York Plan" shall mean the 401(k) Plan for the
Employees of The East New York Savings Bank.
Section 2.25. "Effective Date" shall mean April 1, 1986.
Section 2.26. "Eligible Employee" shall mean an Employee who is eligible
to participate in the Plan pursuant to Article 4 hereof.
Section 2.27. "Employee" shall mean any individual who is employed by
the Employer. A leased employee of the Employer, as defined in Code Section
414(n)(2), shall not be considered an Employee.
Section 2.28. "Employer" shall mean the Corporation and any other
Affiliated Employer upon the adoption of the Plan by the board of directors of
any such Affiliated Employer and the consent of the board of directors of the
Corporation to the adoption of the Plan by any such Affiliated Employer. As the
context requires, the term "Employer" as used herein shall apply collectively to
all corporations that are Employers under the Plan or singly to an Employer. For
purposes of Sections 2.15, 2.44 and 2.55 hereof only, the term "Employer" shall
also include any Affiliated Employer.
Section 2.29. "Entry Date" shall mean the first day of each month of the
calendar year.
Section 2.30. "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
Section 2.31. "ESOP Component" shall mean the portion of the Plan
consisting solely of the M&T Bank Corporation Stock Fund and the Money Market
Fund.
Section 2.32. "FNBR" shall mean the First National Bank of Rochester or
FNB Rochester Corp., as applicable.
Section 2.33. "FNBR Plan" shall mean the First National Bank of
Rochester Retirement Plan.
Section 2.34. "M&T Bank Corporation Stock Fund" shall mean the
Investment Fund established pursuant to Section 11.10 hereof that is invested
exclusively in M&T Stock, except that a portion of this Investment Fund may be
held in short-term interest-bearing investments pending purchase of M&T Stock
and to provide sufficient liquidity for Distributions, hardship withdrawals and
loans.
Section 2.35. "Highly Compensated Employee" shall mean an Eligible
Employee who, with respect to the Employer, who is either:
5
(a) An Employee who performs services for the Employer
during the Plan Year and who during the twelve-month period immediately
preceding the Plan Year (the "Lookback Year"):
(1) Was a "5 percent owner" (as defined in Code
Section 414(q)) of an Affiliated Employer, or
(2) Received Compensation from an Affiliated
Employer in excess of $80,000 (as adjusted under Code Section 414(q)(1) for
cost-of-living increases); or
(b) An Employee who is a "5 percent owner" of an Affiliated
Employer during the Plan Year; or
(c) An Employee who terminated service with the Affiliated
Employers prior to the Plan Year, performed no service for an Affiliated
Employer during the Plan Year, and was a Highly Compensated Employee for either
the year he terminated such service or any Plan Year ending on or after his 55th
birthday.
Section 2.36. "Investment Fund" shall mean a fund established pursuant
to Section 11.10 hereof.
Section 2.37. "M&T Stock" shall mean any class of common stock or
preferred stock of M&T Bank Corporation that constitutes employer securities
within the meaning of Code Section 409(l).
Section 2.38. "Money Market Fund" shall mean the Investment Fund
established pursuant to Section 11.10 hereof that invests in short-term,
interest bearing instruments.
Section 2.39. "Multiple Use Limitation" shall mean an amount equal to
the sum of the following:
(a) 125 percent of the greater of (1) the Actual Deferral
Percentage for Pretax Contributions for Non-Highly Compensated Employees, or (2)
the Actual Deferral Percentage for Additional Employer Contributions for
Non-Highly Compensated Employees; and
(b) the lesser of (1) 200 percent of the lesser of (a)(1) or
(a)(2) of this Section 2.39, or (2) 2 percentage points plus the lesser of
(a)(1) or (a)(2) of this Section 2.39.
Section 2.40. "Non-Highly Compensated Employee" shall mean an Eligible
Employee who is not a Highly Compensated Employee.
Section 2.41. "Onbank" shall mean ONBANCorp, Inc.
Section 2.42. "Onbank Plan" shall mean the ONBANCorp, Inc. 401(k)
Savings Plan.
6
Section 2.43. "Participant" shall mean an Employee with an Account or
who has a Salary Reduction Agreement in effect.
Section 2.44. "Period of Severance" shall mean any period commencing
with an individual's Severance from Service Date and ending with the first day
on which the individual is paid or entitled to payment by the Employer for the
performance of duties.
Section 2.45. "Plan" shall mean the M&T Bank Corporation Retirement
Savings Plan and Trust.
Section 2.46. "Plan Year" shall mean the calendar year.
Section 2.47. "Pretax Contributions" shall mean Contributions made
pursuant to Section 5.01(a)(2) hereof. For purposes of Sections 6.01 and 7.01
hereof, Pretax Contributions shall include any elective deferral contribution,
as defined in Code Section 402(g), made to a Merged Plan as defined in Article
16 or 17.
Section 2.48. "Profit-Sharing Component" shall mean the portion of the
Plan consisting of all Investment Funds established pursuant to Section 11.10
hereof other than the M&T Bank Corporation Stock Fund and the Money Market Fund.
Section 2.49. "Qualified Domestic Relations Order" shall mean a
qualified domestic relations order within the meaning of Code Section 414(p).
Section 2.50. "Required Beginning Date" shall mean, with respect to an
individual, April 1 of the calendar year following the later of (1) the calendar
year in which the individual attains, or would have attained, age 70 1/2, or (2)
if the individual is not a 5% owner (as defined in Code Section 416) with
respect to the calendar year in which he attained age 70 1/2, the calendar year
in which the Participant terminates from service.
Section 2.51. "Revaluation Date" shall mean each business day of each
month of each year.
Section 2.52. "Rollover Contribution" shall mean a contribution or
transfer made pursuant to Section 5.03 hereof. For purposes of Section 6.01
hereof, a Rollover Contribution includes any amount transferred pursuant to Code
Section 402(a)(5) or 408(d)(3) to a plan described in Article 16 or 17 hereof.
Section 2.53. "Salary Reduction Agreement" shall mean an agreement
between an Eligible Employee and the Employer entered into pursuant to Section
5.01(a) hereof.
Section 2.54. "Salary Reduction Contribution" shall mean the Pretax and
After-tax Contributions made pursuant to Section 5.01 hereof.
Section 2.55. "Severance from Service Date" shall mean the earlier of:
7
(a) The date an individual dies, or resigns, retires, or is
discharged from service with the Employer; or
(b) The first anniversary of the commencement of a period
during which an individual remains absent from service with the Employer, with
or without pay, for any other reason, including, but not limited to, vacation,
holiday, sickness, disability, layoff or leave of absence, but excluding a
paternity or maternity absence within the meaning of Code Section
410(a)(5)(E)(i); or
(c) The second anniversary of the commencement of a period
during which an individual remains absent from service with the Employer for
reason of a paternity or maternity absence within the meaning of Code Section
410(a)(5)(E)(i).
Section 2.56. "Trust" shall mean the trust created pursuant to Section
3.01 hereof.
Section 2.57. "Trustee" shall mean the Manufacturers and Traders Trust
Company, or such successor or additional Trustee or Trustees as may be appointed
from time to time by the Corporation.
ARTICLE 3
CREATION; PURPOSE
Section 3.01. Creation and Acceptance of Trust. A trust is hereby
created by the Employer for the benefit of the Eligible Employees and their
Beneficiaries. The Trustee agrees to accept the Trust assets and agrees to hold,
control, invest, and disburse those assets in accordance with the terms and
conditions of this Plan.
Section 3.02. Purpose of Trust. The Trust created hereby is for the
purpose of enabling Eligible Employees of the Employer to share in the profits
of the Employer. In no event shall any part of the principal or income of the
Trust be paid to or reinvested in the Employer, or be used for any purpose
whatsoever other than the exclusive benefit of Eligible Employees and their
Beneficiaries, except as may be provided in Section 14.03 hereof relating to
Contributions made under a mistake of fact.
ARTICLE 4
ELIGIBILITY TO PARTICIPATE
Section 4.01. Eligibility To Participate.
(a) Each Employee who was a Participant in the Plan on July
31, 1999 and who is an Employee on August 1, 1999 shall be a Participant in the
Plan on August 1, 1999.
(b) Subject to the provisions of Article 15 hereof, each
other Employee shall be eligible to elect to participate in the Plan beginning
on any Entry Date
8
following his completion of 12 months of Continuous Service, and on which he is
an Employee and at least 21 years of age. An Eligible Employee may elect to
participate in the Plan by entering into a Salary Reduction Agreement under
Section 5.01 hereof.
(c) Notwithstanding (a) and (b) above, if a former FNBR
employee (i) was hired by FNBR on or after August 2, 1998, (ii) completed 1000
"Hours of Service" (as defined in Section 1.27 of the FNBR Plan) under the FNBR
Plan prior to August 1, 1999, and (iii) became an Employee on or before August
1, 1999, such Employee shall be eligible to elect to participate in the Plan not
later than the earlier of (i) any Entry Date coincident with or following the
Employee's first anniversary of his date of hire, provided that he is an
Employee on any such Entry Date, or (ii) any Entry Date described in (b) above.
(d) Notwithstanding (a) through (c) above, (i) any Employee
who was a participant, or who was eligible to participate, in the Keystone
Financial 401(k) Savings Plan ("Keystone Plan") on October 6, 2000, and who was
an Employee on October 7, 2000, shall be eligible to participate in this Plan on
the first payroll date following October 7, 2000 (provided that he is an
Employee on such date), and (ii) any Employee not described in (i) who (A) was
hired by Keystone Financial, Inc. or any subsidiary thereof ("Keystone") on or
after June 2, 2000, (ii) completed 500 Hours of Service (as defined in the
Keystone Plan), and (iii) became an Employee on or before December 1, 2000, such
Employee shall be eligible to elect to participate in the Plan not later than
the earlier of (i) the first Entry Date coincident with or following the
Employee's sixth-month anniversary of his date of hire by Keystone, or (ii) on
the first Entry Date coincident with or next following his completion of six
months of Continuous Service, provided that he is an Employee on such date.
(e) Notwithstanding (a) through (d) above, (i) any Employee
who was an active participant in the Premier National Bancorp Retirement &
Thrift Plan ("the Premier Plan") on February 9, 2001, had a salary reduction
authorization (as described in Section 4.1 of the Premier Plan) in effect on
such date, and who became an Employee on February 10, 2001, shall be eligible to
participate in this Plan on March 9, 2001 (provided that he is an Employee on
such date), and (ii) any Employee not described in clause (i) who was an
employee of Premier National Bancorp, Inc. or any subsidiary thereof on February
9, 2001 and who became an Employee on February 10, 2001, shall be eligible to
participate in the Plan on the first Entry Date coincident with or next
following his completion of 12 months of Continuous Service, provided that he is
an Employee on such date.
Section 4.02. Ceasing To Be an Employee. An Eligible Employee who ceases
to be an Employee, but who remains employed by the Employer shall cease to be
eligible to participate in the Plan commencing on the date he ceases to be an
Employee. He shall be eligible to participate again in the Plan commencing on
the Entry Date coincident with or next following the first date thereafter that
he again becomes an Employee.
9
Section 4.03. Participation After Reemployment. A Participant whose
service with the Employer terminates shall be eligible to participate again in
the Plan commencing on the first date after such termination that he again
becomes an Employee.
Section 4.04. Dispute as to Eligibility. In the event of a dispute as to
the eligibility of any individual to participate in the Plan, the decision of
the Committee as to such eligibility shall be final and conclusive for all
purposes.
Section 4.05. Noncontributing Participant. An Employee who has not met
the eligibility requirements of Section 4.01 hereof and who makes a Rollover
Contribution to the Plan pursuant to Section 5.03 hereof shall be treated as a
Participant under the Plan for all purposes except that he may not make Salary
Reduction Contributions to the Plan.
ARTICLE 5
CONTRIBUTIONS
Section 5.01. Salary Reduction Contributions.
(a) (1) An Eligible Employee may enter into a written
Salary Reduction Agreement with the Employer (i) at any time in advance of the
Eligible Employee's Entry Date, if he elects to participate in the Plan on the
first Entry Date coincident with or immediately following his completion of the
age and service requirements of Section 4.01 hereof, or (ii) at least 15 days
prior to the Eligible Employee's Entry Date, if he elects to participate on an
Entry Date following such first Entry Date. The Salary Reduction Agreement
shall be applicable to all payroll periods ending on or after the Eligible
Employee's Entry Date and shall provide that the Eligible Employee agrees to
accept, for the Plan Year covered by the Salary Reduction Agreement, biweekly
reductions in his salary payments from the Employer for each payroll period
ending on or after the Eligible Employee's Entry Date determined using the
Pretax Applicable Percentage and After-tax Applicable Percentage, as described
in Sections 5.01(a)(2) and 5.01(a)(3) hereof. These percentages shall be whole
percentages, and their sum shall not exceed ten percent or, in the case of a
Non-Highly Compensated Employee, fifteen percent. The terms shall also provide
that the Salary Reduction Agreement shall terminate on the earlier of the
Eligible Employee's Severance from Service Date or on the date he ceases to be
an Employee. Further, the terms shall provide that Salary Reduction
Contributions shall be suspended for twelve months following a withdrawal under
Section 7.01 hereof.
(2) Pretax Contributions for an Eligible Employee
will equal (i) the Pretax Applicable Percentage of his Compensation for such
payroll period, less (ii) the amounts described in Section 5.01(a)(3)(ii) and
(iii).
(3) After-tax Contributions for an Eligible Employee
for a payroll period will equal the sum of the following: (i) the After-tax
Applicable Percentage of the Eligible Employee for such payroll period
multiplied by the Employee's Compensation for such payroll period; (ii) the
excess of (A) the designated
10
Pretax Contributions determined under Section 5.01(a)(2)(i) hereof (and other
elective deferrals, as defined in Code Section 402(g)(3), made by the Employer
on behalf of the Employee and not distributed or recharacterized as after-tax
contributions) over (B) $7,000 (as adjusted under Code Section 402(g) for
cost-of-living increases), and (iii) Pretax Contributions that are
recharacterized as After-tax Contributions in order to meet the Deferral
Percentage Test for Pretax Contributions as authorized by applicable government
regulations and under uniform rules.
(4) The sum of Pretax Contributions and After-tax
Contributions made on behalf of an Employee will be the Salary Reduction
Contributions made by or on behalf of the Employee. The Employer will contribute
to the Eligible Employee's Account, biweekly, with respect to each payroll
period ending on or after the Entry Date next following execution of the Salary
Reduction Agreement, a Salary Reduction Contribution in an amount equal to the
resultant dollar amount for each payroll period. In no event shall Salary
Reduction Contributions for a given Plan Year be made by the Employer later than
30 days following the end of the Plan Year. Salary Reduction Contributions, when
combined with any Additional Employer Contributions on behalf of the Eligible
Employee, shall not exceed, for any Plan Year, $30,000 (or, if greater, 1/4 of
the dollar limitation under Code Section 415(b)(1)(A)).
(b) Salary Reduction Contributions made pursuant to this
Section 5.01 shall be governed by the following additional provisions:
(1) Pretax Contributions shall be considered as
Contributions made by the Employer. Except as otherwise provided in this Plan,
After-tax Contributions shall be treated as Contributions made by the
Participants and not by the Employer.
(2) A Salary Reduction Agreement may be amended
effective as of the first payroll period ending on or after the next succeeding
Entry Date, to specify a different Applicable Percentage (but not more than ten
percent, or, in the case of a Non-Highly Compensated Employee, fifteen percent),
resulting in a different dollar amount reduction, by the Participant's giving
the Committee written notice at least 15 days in advance of such Entry Date.
(3) A Participant may cancel a Salary Reduction
Agreement as of a payroll period specified by the Participant (or the first
payroll period by which the Committee can implement the cancellation, if later)
by giving the Committee written notice at any time in advance of the
commencement of such specified payroll period. In the event a Salary Reduction
Agreement is canceled, the Participant may enter into a new Salary Reduction
Agreement with an effective date of any succeeding Entry Date on which he is an
Employee.
(4) The Employer may revoke its Salary Reduction
Agreements with any or all Participants, or amend its Salary Reduction
Agreements with any or all Participants, on a basis which does not discriminate
in favor of Highly Compensated Employees if the Employer determines that it will
not have sufficient
11
current or accumulated profits or other available funds (determined in
accordance with Section 5.04 hereof) to make the Contributions to the Plan
required by the Salary Reduction Agreements.
(5) The Employer may revoke or amend its Salary
Reduction Agreement with any Participant at any time, if the Employer determines
that such revocation or amendment is necessary to ensure the limitations set
forth in Section 6.03 hereof will not be exceeded with respect to the
Participant, or to ensure that the Deferral Percentage Test for Pretax
Contributions will be met.
(c) The Deferral Percentage Test for Pretax Contributions
shall be satisfied for a Plan Year if either of the following tests, using the
current year data testing method (prior year data testing method in the case of
the FNBR Plan for the 1997 and 1998 Plan Years), is met for such Plan Year:
(1) The Actual Deferral Percentage for Pretax
Contributions for Highly Compensated Employees is not more than the Actual
Deferral Percentage for Pretax Contributions for Non-Highly Compensated
Employees multiplied by 1.25; or
(2) The excess of the Actual Deferral Percentage for
Pretax Contributions for Highly Compensated Employees over the Actual Deferral
Percentage for Pretax Contributions for Non-Highly Compensated Employees is not
more than two percentage points (or such lesser amount as may be designated by
Treasury Regulations), and the Actual Deferral Percentage for Pretax
Contributions for Highly Compensated Employees is not more than the Actual
Deferral Percentage for Pretax Contributions for Non-Highly Compensated
Employees multiplied by two (or such lesser amount as may be designated by
Treasury Regulations).
(d) For purposes of determining the Deferral Percentage for
Pretax Contributions for a Highly Compensated Employee who is eligible to have
elective contributions allocated to his account under two or more plans
described in Code Section 401(k) that are maintained by an Affiliated Employer,
this Section 5.01 shall be applied by determining the Deferral Percentages for
Pretax Contributions as if all such plans were a single plan. In the event such
plans have different plan years, all such plans ending with or within the same
calendar year shall be treated as a single plan.
(e) In the event that the Plan satisfies the requirements of
Code Section 410(b) only if aggregated with one or more other plans, or if one
or more other plans satisfy the requirements of Code Section 410(b) only if
aggregated with the Plan, this Section 5.01 shall be applied by determining the
Deferral Percentages for Pretax Contributions as if all such plans were a single
plan.
Section 5.02. Additional Employer Contributions.
(a) The Employer shall also contribute for each payroll
period biweekly, at the same time Salary Reduction Contributions are made,
Additional Employer Contributions on behalf of each Participant in amounts equal
to the lesser of (i) 75% of the sum of such Salary Reduction Contributions made
by or on behalf of such
12
Participant or (ii) 4.5% of the Participant's Compensation for such payroll
period. The Additional Employer Contributions shall be allocated among the
Participants' Accounts in the same proportions as the Salary Reduction
Contributions, provided that the Additional Employer Contributions shall not
discriminate in favor of Employees who are officers, shareholders, or Highly
Compensated Employees. In no event shall Additional Employer Contributions for a
Plan Year be made later than the time prescribed by law for filing the annual
federal tax return of the Employer (including any extensions which have been
granted for the filing of such return) for that Plan Year.
(b) The Deferral Percentage Test for Additional Employer
Contributions shall be satisfied for a Plan Year if either of the following
tests, using the current year data testing method (prior year data testing
method in the case of the FNBR Plan for the 1997 and 1998 Plan Years), is met
for such Plan Year:
(1) The Actual Deferral Percentage for Additional
Employer Contributions for Highly Compensated Employees is not more than the
Actual Deferral Percentage for Additional Employer Contributions for Non-Highly
Compensated Employees multiplied by 1.25; or
(2) The excess of the Actual Deferral Percentage for
Additional Employer Contributions for Highly Compensated Employees over the
Actual Deferral Percentage for Additional Employer Contributions for Non-Highly
Compensated Employees is not more than two percentage points (or such lesser
amount as may be designated by Treasury Regulations), and the Actual Deferral
Percentage for Additional Employer Contributions for Highly Compensated
Employees is not more than the Actual Deferral Percentage for Additional
Employer Contributions for Non-Highly Compensated Employees multiplied by two
(or such lesser amount as may be designated by Treasury Regulations).
(c) In the event that the Plan satisfies the requirements
of Code Section 410(b) only if aggregated with one or more other plans, or if
one or more other plans satisfy the requirements of Code Section 410(b) only if
aggregated with the Plan, this Section 5.02 shall be applied by determining the
Deferral Percentages for Additional Employer Contributions as if all such plans
were a single plan.
Section 5.03. Rollover Contributions. An Employee may contribute to the
Plan amounts that may be transferred pursuant to Code Section 402(c) or
408(d)(3) to a plan described in Code Section 401(a) on any Revaluation Date
occurring in the 12-month period beginning on the Employee's date of employment.
Notwithstanding the preceding, if an Employee (i) retires under the M&T Bank
Corporation Pension Plan and receives a single sum distribution therefrom that
constitutes an "eligible rollover distribution" (within the meaning of Code
Section 402(c)), and (ii) has an Account under this Plan as of the date of such
distribution, the Employee may make a "direct rollover" (within the meaning of
Treasury Regulations Section 1.401(a)(31)-1T) of such distribution to this Plan.
13
Section 5.04. Profits. Contributions may be made, in the discretion of
the Employer, without regard to its profits.
Section 5.05. Determination of Amount of Contributions. The Employer
shall determine the amount of any Contributions to be made by it hereunder, and,
in making such determination, it shall be entitled to rely on statements or
estimates prepared by it or by an independent public accountant (on the basis of
the Employer's records), notwithstanding, and without recalculation for, any
subsequent adjustment of the Employer's records or profits. The Trustee shall
not be under any duty to inquire into the correctness of the Contributions paid
over to the Trustee hereunder; nor shall the Trustee or any other person be
under any duty to enforce the payment of the Contributions to be made hereunder;
and the Employer's determination of the Contributions hereunder shall be final
and conclusive on all persons. The Employer may make such Contributions in cash
or in kind. Nothing in this Plan shall entitle any Trustee, Participant or
Beneficiary to inquire into or demand the right to inspect the books and records
of the Employer.
Section 5.06. Refunds of Excess Contributions.
(a) Pretax Contributions and all other amounts deferred on
the Participant's behalf in such Plan Year under plans or arrangements described
in Code Sections 401(k), 408(k) or 403(b) of the Employer may not exceed the
limitation imposed by Code Section 402(g). The Participant may request in
writing addressed to the Committee the refund of a specified amount of Pretax
Contributions made by the Employer on the Participant's behalf in a particular
Plan Year so that the limitation provided in Code Section 402(g)(1) is not
exceeded. The request must be received by the Committee no later than the March
1 of the next succeeding Plan Year and must provide a certificate to the effect
that, if such refund is not made, amounts deferred on the Participant's behalf
in such Plan Year under plans or arrangements described in Code Sections 401(k),
408(k) or 403(b) will exceed the limitation imposed by Code Section 402(g). A
Participant will be deemed to have notified the Committee that he has exceeded
the limitation imposed by Code Section 402(g) to the extent that he has exceeded
such limitation for the taxable year calculated by taking into account only
elective deferrals under all plans or arrangements described in Code Sections
401(k), 408(k) or 403(b) of the Employer. Notwithstanding any other provision of
the Plan, refund amounts designated by a Participant in accordance with this
Section 5.06(a), adjusted for income or loss allocable thereto for the Plan Year
for which such refund is made, shall be refunded to the Participant no later
than the April 15 next succeeding such designation.
(b) Notwithstanding any other provision of this Plan, to the
extent necessary to satisfy the Deferral Percentage Test for Pretax
Contributions (after first making any recharacterization permitted under Section
5.01(a)(3)(iii) hereof and the Code), the Plan shall refund to Highly
Compensated Employees a portion of the Pretax Contributions made on their
behalves for the Plan Year, adjusted for income or loss allocable thereto for
the Plan Year for which such refund is made. Such refunds shall be made on or
before the end of the Plan Year following the Plan Year for which such
Contributions were made. The amount that would otherwise be refunded to a
Participant
14
under this Section 5.06(b) shall be reduced, in accordance with Treasury
Regulations, by any amounts refunded to such Participant under (a) above.
(c) Notwithstanding any other provision of the Plan, to the
extent necessary to satisfy the Deferral Percentage Test for Additional Employer
Contributions, the Plan shall refund to Highly Compensated Employees a portion
of their After-tax Contributions and the Additional Employer Contributions made
on their behalves for the Plan Year, adjusted for income or loss allocable
thereto for the Plan Year for which such refund is made. The payments shall be
made on or before the end of the Plan Year following the Plan Year for which
such Contributions were made. The amount that would otherwise be refunded to the
Employee under this Section 5.06(c) shall be reduced, in accordance with
Treasury Regulations, by any amounts refunded under (a) and (b) above.
(d) Notwithstanding any other provision of the Plan and
after taking into account the reductions under (a), (b) and (c) above, to the
extent that the Actual Deferral Percentage for Pretax Contributions for Highly
Compensated Employees plus the Actual Deferral Percentage for Additional
Employer Contributions for Highly Compensated Employees exceeds the Multiple Use
Limitation, the Plan, in accordance with Treasury Regulations, shall refund to
Highly Compensated Employees Contributions made on their behalf in amounts
necessary to eliminate such excess. The payments shall be made on or before the
end of the Plan Year following the Plan Year for which such Contributions were
made.
(e) In order to identify the Highly Compensated Employees
whose Pretax Contributions shall be refunded and to determine the amount by
which Highly Compensated Employees' Pretax Contributions must be refunded, the
Employer shall:
(i) Determine the maximum Actual Deferral
Percentage for Pretax Contributions for Highly Compensated Employees permitted
under Section 5.01(c) hereof;
(ii) Identify the Highly Compensated
Employees with Actual Deferral Percentages for Pretax Contributions in excess of
the percentage limit determined pursuant to clause (i) above;
(iii) Determine the dollar amount of the
refund of each such Highly Compensated Employee's Pretax Contributions that
would be required so that the Actual Deferral Percentage for Pretax
Contributions of Highly Compensated Employees would not exceed the percentage
limit determined pursuant to clause (i) above. The dollar amount of such refund
shall be determined under a process whereby the Actual Deferral Percentage for
Pretax Contributions of the Highly Compensated Employee(s) with the highest
Actual Deferral Percentage(s) for Pretax Contributions is reduced so that it is
equal to that of the Highly Compensated Employee(s) with the next highest Actual
Deferral Percentage for Pretax Contributions. This process shall be repeated
until the Actual Deferral Percentage for Pretax Contributions of Highly
15
Compensated Employees does not exceed the percentage limit determined pursuant
to clause (i) above;
(iv) Cause Pretax Contributions equal to the
total dollar amount of Pretax Contributions determined pursuant to the preceding
clause (iii) above (the "Excess Deferrals") to be refunded in the amounts and to
the Highly Compensated Employees identified in clause (v) below; and
(v) The Pretax Contributions of the Highly
Compensated Employees with the highest dollar amount of Pretax Contributions
shall be refunded by the amount required to cause the amount of Pretax
Contributions of such Highly Compensated Employee(s) to be equal to the amount
of Pretax Contributions of the Highly Compensated Employee(s) who have the next
highest dollar amount of Pretax Contributions; provided, however, that if a
lesser reduction would equal the amount of Excess Deferrals, the lesser
reduction shall be made. The process provided for in this clause (v) shall be
repeated until the total amount of refunds equals the amount of Excess
Deferrals.
(f) Each recharacterization of Pretax Contributions as
After-tax Contributions shall occur within the two and one-half month period
after the close of the Plan Year to which such recharacterization relates. All
amounts recharacterized as After-tax Contributions shall be treated as employee
contributions for purposes of Code Section 72, Code Section 401(a)(4), Code
Section 401(m) and Treasury Regulations Sections 1.401(k)-1(b) and (d).
(g) A refund of any Contribution under (a) above shall be
withdrawn pro-rata from each of the Investment Funds. In the case of any other
refund of a Contribution under this Section 5.06, such refund shall be withdrawn
pro-rata from the Investment Funds constituting (i) the Profit-Sharing Component
of the Plan, in the case of a refund required with respect to the Profit-Sharing
Component of the Plan, and (ii) the ESOP Component of the Plan, in the case of a
refund required with respect to the ESOP Component of the Plan.
Section 5.07. Application of the Deferral Percentage Tests to Plan
Components. Notwithstanding any other provision of the Plan to the contrary,
both the Deferral Percentage Test for Additional Employer Contributions and the
Deferral Percentage Test for Pretax Contributions shall be applied separately
with respect to the Profit-Sharing Component of the Plan and the ESOP Component
of the Plan.
Section 5.08. Contributions to Satisfy Acquisition Loan Obligations.
Notwithstanding any other provision of the Plan, the Employer shall contribute
such amount, if any, as shall be required to permit the Trustee to meet the
obligations of the Trust under any Acquisition Loan.
16
ARTICLE 6
ACCOUNTS
Section 6.01. Separate Accounts and Records. The Committee shall
maintain a separate Account in the name of each Participant and Beneficiary
having an interest in the Trust. Contributions on behalf of a Participant shall
be credited to his Account. If a Participant is entitled to have an Additional
Employer Contribution credited to his Account, but his service with the Employer
is terminated before such Contribution has been made to the Trust and such
credit effected, such Contribution shall be made and such credit shall be
effected as though the Participant's service with the Employer had not
terminated. Records shall be kept showing separately the amount of Pretax
Contributions, Additional Employer Contributions, After-tax Contributions and
Rollover Contributions made on behalf of or by each Participant. A statement of
a Participant's Account balance at each March 31, June 30, September 30, and
December 31, shall be distributed to him within a reasonable time after each
such date.
Section 6.02. Investment and Valuation of Accounts.
(a) A Participant shall elect, in writing delivered to the
Committee, to have Contributions made on his behalf invested in one or more of
the Investment Funds. The election must be made so that the percentage of
Contributions invested in any Investment Fund is an integral multiple of five
percent.
(b) As of each Revaluation Date, all income and gains
(realized and unrealized) relating to each Investment Fund for the period since
the next preceding Revaluation Date shall be credited to, and all losses
(realized and unrealized) and expenses of such Investment Fund for the period
since the next preceding Revaluation Date shall be charged to, the various
Accounts invested in such Investment Fund as of such Revaluation Date, in
proportion to the values of the portions of such Accounts invested in such
Investment Fund as of the next preceding Revaluation Date.
(c) A Participant may elect, at the time and in the manner
prescribed by the Committee, to change the designation of the Investment Fund or
Funds, in which future Contributions on his behalf shall be invested. Each such
election must provide that the percentage of the Contributions invested in any
Investment Fund shall be an integral multiple of five percent.
(d) A Participant may elect, at the time and in the manner
prescribed by the Committee, to transfer some or all of his Account balance
among the Investment Funds. Each such transfer must be made in an integral
multiple of five percent of the balance, at the time of the transfer, in the
Investment Fund from which an amount is transferred.
(e) In the event that the Committee liquidates an Investment
Fund prior to the termination of the Plan, each Participant shall elect to
invest the portion of his
17
Account and future Contributions, which otherwise would have been invested in
the liquidated Investment Fund, in the remaining Investment Fund, or Funds.
Section 6.03. Limitations on Annual Additions.
(a) Notwithstanding any other provision of this Plan, in no
event shall the Annual Addition to the accounts of any Participant under this
Plan and under any other defined contribution plan or plans maintained by the
Employer, exceed the lesser of (i) $30,000 (or, if greater, 1/4 of the dollar
limitation under Code Section 415(b)(1)(A)) or (ii) 25 percent of such
Participant's Compensation for the Plan Year. The Annual Addition taken into
account for purposes of the limitations in this Section 6.03 shall be the sum of
the following items for the Plan Year: (i) forfeitures allocated to such
Participant under all defined contribution plans of the Employer, (ii) the
amount of contributions to such plans by the Participant, (iii) all Employer
contributions made to such plans on behalf of the Participant for such year and
(iv) for purposes of the $30,000 limit described above, amounts described in
Code Sections 415(1)(1) and 419A(d)(2); provided, however, that if, for any Plan
Year, the aggregate of the loan repayment contributions under an Employee Stock
Ownership Plan allocable to individuals who are Highly Compensated Employees for
such Plan Year does not exceed one-third of the total amount of all of the loan
repayment contributions under the Employee Stock Ownership Plan for such Plan
Year, then that portion of the loan repayment contributions to the Employee
Stock Ownership Plan that is applied to the payment of interest on a securities
acquisition loan shall not be counted as an Annual Addition. The Annual Addition
for any Plan Year before 1987 shall not be recomputed to treat all contributions
by an employee to defined contribution plans of the Employer as an Annual
Addition. For purposes of this Section 6.03(a), the term "Employee Stock
Ownership Plan" means any employee stock ownership plan (as defined in Code
Section 4975(e)(7)) maintained by the Employer or an Affiliated Employer in
which Employees are eligible to participate.
(b) In the event the Annual Additions to the accounts of any
Participant under such plans would exceed the limitation set forth in Section
6.03(a) or 6.03(c) hereof for any Plan Year as a result of either the allocation
of forfeitures or a reasonable error in calculating a Participant's
Compensation, then Salary Reduction Contributions made on behalf of the
Participant for any such Plan Year equal to such excess amounts, including any
earnings thereon, shall be returned to the Participant.
(c) For Plan Years beginning before January 1, 2000, if a
Participant is also a participant in one or more defined benefit plans
maintained by the Employer, the sum of his Defined Contribution Plan Fraction
and his Defined Benefit Plan Fraction for any Plan Year shall not exceed 1.0.
For purposes of this limitation:
(1) The Defined Benefit Plan Fraction for any Plan
Year is a fraction, the numerator of which is the Participant's projected annual
benefit under defined benefit plans of the Employer in which the Participant
participated during the Plan Year (determined as of the close of the Plan Year)
and the denominator of which is the lesser of: (i) the product of 1.25,
multiplied by the dollar limitation in effect under
18
Code Section 415(b)(1)(A) for such year, or (ii) the product of 1.4, multiplied
by the amount which may be taken into account under Code Section 415(b)(1)(B)
with respect to the Participant under such plans for such Plan Year.
(2) The Defined Contribution Plan Fraction for any
Plan Year is a fraction, the numerator of which is the sum of the Annual
Additions to the Participant's accounts under defined contribution plans of the
Employer as of the close of such Plan Year and the denominator of which is the
sum of the lesser of the following amounts determined for such Plan Year and for
each prior calendar year of service (as defined in Code Section 410(a)(3)) with
the Employer: (i) the product of 1.25, multiplied by the dollar limitation in
effect under Code Section 415(c)(1)(A) for such year (determined without regard
to Code Section 415(c)(6)), or (ii) the product of 1.4, multiplied by the amount
which may be taken into account under Code Section 415(c)(1)(B) (or Code Section
415(c)(7), if applicable), with respect to the Participant under such plans for
such Plan Year. The Defined Contribution Plan Fraction for the 1986 Plan Year
shall be adjusted, as prescribed by Treasury Regulations, by subtracting an
amount from its numerator (not exceeding the numerator) so that the sum of the
Defined Contribution Fraction and Defined Benefit Fraction does not exceed 1.0
for the 1986 Plan Year.
(d) The Employer shall have the power, in order to effect
the limitation in Section 6.03(c) hereof, to reduce or limit Annual Additions to
the Participant's Account under this Plan; provided that such reduction and/or
limitation shall be implemented in a uniform and nondiscriminatory manner and
shall be made pursuant to a revocation or amendment of the Participant's Salary
Reduction Agreement with the Employer as provided in Section 5.01(b) hereof; and
provided further that no such reduction shall be effected until the Employer has
first taken steps to reduce the sum of the Participant's Defined Contribution
Plan Fraction and Defined Benefit Plan Fraction (but not below 1.0) by reducing
the Participant's Defined Benefit Plan Fraction to the extent possible.
Section 6.04. Vesting. All Accounts shall at all times be fully vested
and nonforfeitable, subject to the provisions of Section 14.03 hereof, dealing
with Contributions made under a mistake of fact.
ARTICLE 7
WITHDRAWALS UPON FINANCIAL HARDSHIP
Section 7.01. Withdrawals.
(a) In the event a Participant suffers a financial hardship
and upon written application by the Participant, the Committee may permit him to
withdraw all or a portion of his Account under the Plan, provided that the
withdrawal is made on account of an immediate and heavy financial need of the
Participant and does not exceed the lesser of (i) the amount required to meet
such financial need, or (ii) the balance in the Participant's Account as of the
next preceding Revaluation Date, minus any earning on
19
Pretax Contributions earned after December 31, 1988. An application for a
financial hardship withdrawal under this Section 7.01(a) shall be deemed to be
an election by the Participant to make a cash withdrawal from the portion of his
Account, if any, invested in the ESOP component of the Plan.
(b) The determination of whether there is an immediate and
heavy financial need will be determined by the Committee in a uniform and
nondiscriminatory manner and will be based on all relevant circumstances. It is
not necessary that such need be unforeseeable or involuntarily incurred by the
Participant. An immediate and heavy financial need will be considered to exist
for purposes of this Section 7.01 if a withdrawal is made on account of the
following:
(1) Medical expenses, described in Code Section
213(d), previously incurred by the Participant, the Participant's spouse, or any
dependent of the Participant (as defined in Code Section 152) or necessary for
these persons to obtain medical care described in Code Section 213(d);
(2) The purchase (excluding mortgage payments) of a
principal residence for the Participant;
(3) The payment of tuition for the next 12 months of
post-secondary education for the Participant, his spouse, child, or dependent;
(4) The need to prevent the eviction of the
Participant from his principal residence or the foreclosure on the mortgage of
the Participant's principal residence; and
(5) Other expenses listed in Internal Revenue
Service revenue rulings or notices, or other Internal Revenue Service documents
of general, rather than individual, applicability.
The Committee may determine other needs that constitute immediate and heavy
financial needs.
(c) A distribution will not be considered necessary to
satisfy an immediate and heavy financial need to the extent such need may be
satisfied from other resources reasonable available to the Participant. The
Participant will be required to provide to the Committee a written certification
as to the nature of the financial hardship, the funds that are reasonably
available to him from other sources, and the amount he desires to withdraw from
his Account. The Committee shall not be obligated to make any further
investigation as to the facts and circumstances to which the Participant
certifies. The sources reasonably available to the Participant include the
following:
(1) Reimbursement or compensation by insurance or
otherwise;
(2) Reasonable liquidation of the Participant's
assets, to the extent such liquidation would not itself cause an immediate and
heavy financial need;
20
(3) Cessation of the Participant's Pretax
Contributions and After-tax Contributions under the Plan;
(4) Other distributions or nontaxable (at the time
of the loan) loans from plans maintained by the Employer or by any other
employer, or loans from commercial sources on reasonable commercial terms; or
(5) Assets of the Participant's spouse or minor
children reasonably available to the Participant.
Section 7.02. Order of Withdrawal. In order to provide funds for a
withdrawal, amounts shall be withdrawn pro-rata from each of the Investment
Funds.
ARTICLE 8
LOANS
Section 8.01. Application. Subject to the limitations set forth below, a
Participant may borrow from his Account. An application for a loan shall be made
by a Participant in writing addressed to the Committee on a form prescribed for
such purpose. Loans shall be disbursed on or about the 15th day and the 30th day
of each calendar month (or if either such day is not a business day, the next
succeeding business day). A loan application received by the Committee shall be
processed as soon as practicable after it is received, and the loan shall be
disbursed on the loan disbursement date coincident with or next following the
loan's processing date. In order to provide funds for a loan, amounts shall be
withdrawn pro rata from each of the Investment Funds. Within each Investment
Fund, amounts to provide funds for a loan shall be withdrawn first from that
portion of the Participant's Account that is attributable to Pretax
Contributions or other elective deferrals, within the meaning of Code Section
402(g)(3), and then, if necessary, from the portion of the Participant's Account
that is not so attributable.
Section 8.02. Limitations.
(a) A Participant may have no more than one loan from his
Account outstanding at any time, and a Participant may have no more than two
loans outstanding during a calendar quarter.
(b) The amount of a Participant's loan from his Account may
not exceed the lesser of (1) $50,000 or (2) 50 percent of the value of the
Participant's Account as of the Revaluation Date next preceding the loan
processing date, provided that the $50,000 amount in (1) above shall be reduced
by the highest outstanding balance of loans, during the 12-month period
immediately preceding the date the loan is made, from his Account and from any
other "qualified employer plan" (within the meaning of Code Section 72(p)(4))
maintained by any Affiliated Employer.
(c) The amount of a Participant's loan from his Account may
not be less than $1,000.
21
(d) A Participant who terminates service with the Employer
shall not be eligible to borrow from his Account unless such Participant remains
a party-in-interest, within the meaning of ERISA Section 3(14), with respect to
the Plan. For purposes of this Section 8.02(d), a Participant shall not be
considered to have terminated service with the Employer if he is receiving
benefits under the M&T Bank Corporation Long-Term Disability Plan.
Section 8.03. Terms.
(a) A loan from an Account shall bear simple interest at an
annual rate equal to one percentage point over the rate designated as the M&T
Bank Prime rate on the date the loan is processed.
(b) A loan to a Participant from his Account shall be
secured by the loan receivable created by such loan.
(c) A loan to a Participant from his Account (1) shall be
for a term, not more than five years, specified by the Participant in his loan
application, and (2) shall be repaid in equal biweekly payments, which shall be
deducted from the Employee's biweekly Compensation payments for so long as he is
such an Employee. If a Participant's biweekly Compensation is insufficient to
make a scheduled loan repayment, the Participant shall pay the difference in
cash or by check. A Participant may prepay his loan in full without penalty, but
partial prepayments are not permitted.
(d) If a Participant terminates service with the Employer,
his loan shall become immediately due and payable. Notwithstanding the
preceding, if a Participant terminates service with the Employer but remains a
party-in-interest with respect to the Plan, within the meaning of ERISA Section
3(14), such individual's loan shall not become immediately due and payable, and
he shall repay the loan in equal biweekly installments. For purposes of this
Section 8.03(d), an Employee shall not be considered to have terminated service
with the Employer if he is receiving benefits under the M&T Bank Corporation
Long-Term Disability Plan.
(e) Loan repayments shall be credited to a Participant's
Account based on his current Investment Fund allocation election. If a
Participant stops making Salary Reduction Contributions to the Plan prior to
paying off his or her loan, the Participant shall notify the Committee, in
writing, how he wants his loan repayments allocated among the Investment Funds.
If the Participant fails to so notify the Committee, his loan repayments will be
allocated equally among the Investment Funds.
Section 8.04. Other Provisions.
(a) Failure to make a repayment on a loan when due shall
constitute a default. If such a default is not cured within 30 days, the
outstanding unpaid balance of the loan shall become immediately due and payable,
the Plan will foreclose against the loan receivable securing the loan on the
first day on which the defaulting Participant could receive a Distribution under
Article 9 hereof, and the amount of such foreclosure shall be treated as a
Distribution.
22
(b) The loan receivable created by a loan to a Participant
shall be credited to, and only to, his Account.
(c) A Participant who was a participant in a plan that
merged, in whole or in part, into the Plan and who has an outstanding loan
transferred from such plan to this Plan shall continue to repay his loan in
accordance with the terms of the loan as of the date of such transfer, except
that such loan shall be repaid in accordance with Section 8.03(c)(2) hereof.
(d) Fees for processing and administering a loan to a
Participant shall be charged to, and deducted from, the Participant's Account
balance.
ARTICLE 9
DISTRIBUTION OF BENEFITS
Section 9.01. Entitlement to Distribution. Upon a Participant's
termination of service with the Employer for any reason, he (or in the event of
his death, his Beneficiary) shall be entitled to a Distribution in the amount of
his Account. A Distribution will be a distribution on account of early
retirement if the Participant retires before age 65, but after age 55 and after
having completed at least 10 years of service under Section 5.04 of the M&T Bank
Corporation Pension Plan.
Section 9.02. Notice by Employer. The Employer shall certify to the
Committee the date of termination of service with the Employer of any
Participant. The Committee shall rely on any such certification in determining
the extent to which such Participant or his Beneficiary shall be entitled to a
Distribution under the Plan.
Section 9.03. Time of Distribution.
(a) Where a Participant (or his Beneficiary) becomes
entitled to receive a Distribution under Section 9.01 hereof, then, except as
otherwise provided in (b), (c), (d) or (e) below, the Distribution shall be made
on the 25th day of the month (or as soon as practicable thereafter) next
following, by at least 14 days, the date the Participant delivers a written
request for a Distribution to the Committee. A Participant may defer his
Distribution until no later than the 25th day of the month (or as soon as
practicable thereafter) coincident with or next following the date on which the
Participant attains age 65.
(b) Notwithstanding (a) above, if, as of any Revaluation
Date following a Participant's termination of service, (1) the value of the
Participant's Account does not exceed $5,000, or (2) the Participant has
attained age 65, a Distribution of the Participant's Account shall be made on,
or as soon as practicable after, any such Revaluation Date.
(c) (1) A Participant shall receive, or begin to
receive, a Distribution of his entire interest in the Plan not later than April
1 of the calendar year following the later of (i) the calendar year in which the
Participant attains age 70 1/2, or (ii)
23
in the case of a Participant who is not a 5% owner (as defined in Code Section
416) with respect to the calendar year in which he attained age 70 1/2, the
calendar year in which the Participant terminates service.
(2) If a Participant (i) is a 5% owner (as defined
in Section 416 of the Code) with respect to the calendar year in which the
Participant attained age 70 1/2, and (ii) has not terminated from service, then,
with respect to each calendar year during which and after the Participant
attained age 70 1/2, the Plan shall distribute to the Participant, at his
election, either (i) the minimum Distribution required under Code Section
401(a)(9), or (ii) the Participant's Account balance as of the applicable
Revaluation Date. Such Distribution shall be made as soon as practicable after
(i) the December 31 of the calendar year in which the Participant attained age
70 1/2, or (ii) the September 30 of any calendar year thereafter. For this
purpose, "applicable Revaluation Date" means the Participant's Account balance
as of December 31 of the calendar year immediately preceding the calendar year
for which the required Distribution is made.
(3) Notwithstanding (1) and (2) above, if a
Participant (i) attains age 70 1/2 on or before December 31, 1998, but is not a
5% owner (as defined in Code Section 416) with respect to the calendar year in
which he attains age 70 1/2, and (ii) has not terminated from service, he may
elect, at the time and in the manner prescribed by the Committee, to (A) defer
any Distribution of his Account until after his termination of service, or (B)
to begin (or continue) receiving in-service Distributions of his Account upon
his attainment of age 70 1/2. If the Participant elects to receive in-service
Distributions of his Account, then, with respect to each calendar year during
which and after the Participant attained age 70 1/2, the Plan shall make
in-service Distributions to the Participant as if he were a Participant
described in (2) above.
(d) In addition, unless the Participant elects otherwise,
Distributions to the Participant will begin not later than the 60th day after
the latest of the close of the Plan Year in which (1) the Participant attains
age 65; (2) occurs the tenth anniversary of the year in which the Participant
commenced participation in the Plan; or (3) the Participant terminates service
with the Employer.
(e) If a Participant dies after the Required Beginning Date
(Annuity Starting Date in the case of an annuity Distribution under Article 16
hereof), any Distribution payable after the death of the Participant shall be
made in accordance with the terms of, and at least a rapidly as under, the form
of Distribution elected by the Participant and in effect on his date of death.
If a Participant dies before such date, any Distribution payable after the death
of the Participant shall meet one of the following requirements:
(i) If a Distribution is payable to the
surviving spouse of a Participant, such Distribution shall commence no later
than the date on which the Participant would have attained age 70 1/2 and shall
be paid over a period no longer than the life of such spouse or a period not
extending beyond the life expectancy of such spouse.
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(ii) If a Distribution is payable to a
designated Beneficiary other than a surviving spouse, such Distribution shall
commence within one year after the date of the Participant's death and shall be
paid over a period no longer than the life of such designated Beneficiary or a
period not extending beyond the life expectancy of such designated Beneficiary.
(iii) If a Participant has no surviving spouse
or designated Beneficiary, Distribution of the Participant's entire interest in
the Plan shall be made within five years of the death of the Participant.
(f) (1) Each Distribution under the Plan shall be made in
accordance with Code Section 401(a)(9), including the minimum death benefit
requirements of Code Section 401(a)(9)(G), and the Treasury Regulations
thereunder. If any provision of the Plan conflicts with the requirements of Code
Section 401(a)(9) and the Treasury Regulations thereunder, the requirements of
Code Section 401(a)(9) and the Treasury Regulations thereunder shall supersede
any such Plan provision.
(2) With respect to Distributions under the Plan made for
calendar years beginning on or after January 1, 2002, the Plan will apply the
minimum distribution requirements of Code Section 401(a)(9) in accordance with
the Treasury Regulations under Code Section 401(a)(9) that were proposed on
January 17, 2001, notwithstanding any provision of the Plan to the contrary.
This Section 9.03(f)(2) shall continue in effect until the end of the last
calendar year beginning before the effective date of final regulations under
Code Section 401(a)(9) or such other date as may be specified in guidance
published by the Internal Revenue Service.
(g) Effective January 1, 1994, if a Distribution is one to
which Code Sections 401(a)(11) and 417 do not apply, such Distribution may be
made less than 30 days after the notice required under Treasury Regulation
Section 1.411(a)-11(c) is given provided that (i) the Committee clearly informs
the Participant that the Participant has a right to a period of at least 30 days
after receiving the notice to consider the decision of whether or not to elect a
distribution (and, if applicable, a particular distribution option), and (ii)
the Participant, after receiving the notice, affirmatively elects a
Distribution.
Section 9.04. Method of Distribution.
(a) A Distribution under this Plan shall be paid in a lump
sum (1) to the Participant or to the person or persons designated in a Qualified
Domestic Relations Order, or (2) on the death of the Participant, to the
Participant's surviving spouse, or, if there is no surviving spouse or the
surviving spouse consents, or such consent may not be obtained, as described in
Section 9.06(b) hereof, to a designated Beneficiary.
(b) A Distribution to a Participant or Beneficiary shall be
made in cash, except that, with respect to that portion of an Account invested
in the M&T Bank Corporation Stock Fund, the Distribution may be made, at the
election of the Participant, either in cash, in M&T Stock, or partly in cash and
partly in M&T Stock.
25
Section 9.05. Prohibition on Alienation. The rights of a Participant or
Beneficiary to receive a Distribution shall not be subject to alienation or
assignment, and shall not be subject to anticipation, encumbrance or claims of
creditors. Neither a Distribution to the estate of a deceased Participant or
Beneficiary or to an heir or legatee of a right to receive a Distribution
hereunder, nor a Distribution in accordance with a Qualified Domestic Relations
Order, shall be deemed an alienation, assignment or anticipation for the
purposes of this Section 9.05.
Section 9.06. Designation of Beneficiary.
(a) Each Participant may designate a person or persons who
shall receive the Distribution payable hereunder on the death of the
Participant, and shall, subject to Section 9.06(b) hereof, have the right to
revoke any such designation. Any such designation shall be evidenced by a
written instrument filed with the Committee and signed by the Participant. The
designation by a Participant of a Beneficiary who is not the Participant's
spouse shall require an effective consent thereto by the Participant's spouse or
surviving spouse, or a demonstration that such consent may not be obtained, as
described in Section 9.06(b) hereof. If no beneficiary designation is on file
with the Committee at the time of the death of a Participant, or if such
designation is not effective for any reason as determined by the Committee, then
payment of the Distribution shall be made to the Participant's surviving spouse
or, if there be none surviving, to the estate of the Participant.
(b) A Participant may designate a person as Beneficiary who
is not his spouse if (1) (i) his spouse consents in writing to such designation,
(ii) the designation may not be changed without spousal consent (or the consent
of the spouse expressly permits designations by the Participant without further
consent by the spouse), and (iii) the spouse's consent acknowledges the effect
of such election and is witnessed by a representative of the Plan or a notary
public; or (2) it is established to the satisfaction of the Committee that such
consent may not be obtained because there is no spouse, because the spouse
cannot be located, or because of such other circumstances as are prescribed by
Treasury Regulations. Any consent by a spouse (or establishment that the consent
of a spouse may not be obtained) shall be effective only with respect to such
spouse.
Section 9.07. Rollover Distribution.
(a) Notwithstanding any provision of the Plan to the
contrary that would limit a Distributee's election under this Section 9.07, a
Distributee may elect, at the time and in the manner prescribed by the
Committee, to have any portion of an Eligible Rollover Distribution paid
directly to an Eligible Retirement Plan specified by the Distributee in a Direct
Rollover, as those terms are defined below.
(b) For purposes of this Section 9.07, an "Eligible Rollover
Distribution" is any Distribution of all or any portion of the balance to the
credit of the Distributee, except that an Eligible Rollover Distribution does
not include:
26
(1) any Distribution that is one of a series of
substantially equal periodic payments (not less frequently than annually) made
for the life (or life expectancy) of the Distributee or the joint lives (or
joint life expectancies) of the Distributee and the Distributee's designated
Beneficiary or for a specified period of ten years or more;
(2) any Distribution to the extent that such
distribution is required under Code Section 401(a)(9);
(3) the portion of any Distribution that is not
includible in gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities); or
(4) the portion of any withdrawal from a Participant's
Account made upon financial hardship pursuant to Article 7 hereof.
(c) For purposes of this Section 9.07, an "Eligible
Retirement Plan" is an individual retirement account described in Code Section
408(a), an individual retirement annuity described in Code Section 408(b), an
annuity plan described in Code Section 403(a) or a qualified trust described in
Code Section 401(a) that accepts the Distributee's Eligible Rollover
Distribution. However, in the case of an Eligible Rollover Distribution to a
surviving spouse, an Eligible Retirement Plan shall include only an individual
retirement account or individual retirement annuity.
(d) For purposes of this Section 9.07, a "Distributee"
includes a Participant. In addition, the surviving spouse of a Participant or
former Participant, or a Participant's or a former Participant's spouse or
former spouse who is an alternate payee under a Qualified Domestic Relations
Order are Distributees with regard to the interest of the spouse or former
spouse.
(e) For purposes of this Section 9.07, a "Direct Rollover"
is a payment by the Plan to an Eligible Retirement Plan specified by the
Distributee.
Section 9.08. Distributions to Alternate Payees. Notwithstanding any
other provisions of the Plan, the Account balance of a Participant may be
apportioned between the Participant and an alternate payee, as defined in Code
Section 414(p)(8), either through separate Accounts or by providing the
alternate payee a percentage of the Participant's Account, in accordance with
the terms of a Qualified Domestic Relations Order. The Plan shall comply with a
Qualified Domestic Relations Order that directs the Plan to make a Distribution
to an alternate payee of the alternate payee's separate Account or percentage of
the Participant's Account prior to the date on which the Participant attains the
earliest retirement age, as defined in Code Section 414(p)(4)(B), under the
Plan.
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ARTICLE 10
THE TRUST AND THE TRUSTEE
Section 10.01. The Trust. All contracts, cash or other property as may
from time to time be paid over or delivered to the Trustee, together with any
increment thereto and income therefrom, shall be held by the Trustee as herein
provided. The assets of the Trust shall be treated as held in a single trust
even though portions of such assets are attributable to Accounts of the
employees of different Employers.
Section 10.02. Responsibility for Management and Control of Assets. The
Trustee shall have exclusive authority and discretion to manage and control the
assets held in trust under the Plan, except that the assets shall be invested as
provided in Section 6.02 hereof.
Section 10.03. General Powers of Trustee. Except as otherwise provided
herein, the Trustee in managing and administering the Trust shall be and hereby
is empowered and authorized in its sole discretion:
(a) To Invest. To invest and reinvest the Trust in such
securities or other property as it may determine, including, but not limited to,
bonds and stock of every kind and class, contracts issued by a legal reserve
life insurance company and other property of any kind or description, whether or
not such securities or other property are authorized by law for the investment
of trust funds generally, under either the laws of the State of New York or
under the laws of any other jurisdiction and without regard to the proportion
any class of security or securities or other property so held may bear to the
entire amount of the Trust. Unless directed by a Participant or the Employer,
the Trustee may not invest in securities issued by any Employer or an affiliate
of any Employer, as defined in ERISA Section 407(d)(7), or in any "employer real
property," as defined in ERISA Section 407(d)(2).
(b) To Sell. To sell, exchange, transfer, or grant options
with respect to any real or personal property at any time held by it, by private
contract, public auction, or otherwise, for cash or upon credit, as the Trustee
may deem advisable; and no person dealing with the Trustee shall be bound to see
to the application of the purchase money or to inquire into the validity,
expediency or propriety of any such sale or other disposition.
(c) To Acquire Real Estate. To acquire any real estate
through foreclosure, liquidation, or other salvage of any investment previously
made by it; to hold such real estate pending liquidation thereof at such time,
in such manner, and upon such terms as the Trustee may deem advisable; to
manage, operate, repair, improve, partition, mortgage, or lease such real
estate, upon such terms as the Trustee may deem advisable; and to use other
trust assets for any of such purposes.
(d) To Settle Claims. To compromise and settle any
obligation due to or from it as Trustee hereunder; to reduce the rate of
interest or extend or otherwise modify such obligation; or to foreclose upon
default or otherwise enforce such obligation.
28
(e) To Vote Securities. To vote in person or by proxy any
stock, bonds, or other securities held by it; to exercise any options
appurtenant thereto for the conversion thereof into other stocks, bonds or
securities; to exercise any rights to subscribe for additional stocks, bonds or
other securities and to make any and all necessary payments therefor; and to
join in, dissent from, or oppose the reorganization, recapitalization,
consolidation, liquidation, sale or merger of corporations or properties in
which it may be interested as Trustee. Notwithstanding the preceding sentence,
the Trustee shall vote shares of M&T Stock held in the Trust in accordance with
Section 18.05 hereof.
(f) To Hold Certain Securities. To accept and hold any
securities or other property received by it under the provisions hereof, whether
or not the Trustee would be authorized hereunder then to invest in such
securities.
(g) To Make Instruments. To make, execute, acknowledge and
deliver any and all deeds, leases, assignments and instruments.
(h) To Borrow. To borrow or raise monies for the purposes of
the Trust from any person or persons, including the Trustee, in its corporate
nonfiduciary capacity, and for any sum so borrowed to issue its promissory note
as Trustee and to secure the repayment thereof by pledging all or any part of
the assets of the Trust; and no person loaning money to the Trustee shall be
bound to see to the application of the money loaned or to inquire into the
validity, expediency or propriety of any such borrowing.
(i) To Transfer to Nominee. To cause any investments from
time to time held by it to be registered in, or transferred into, its name as
Trustee or the name of its nominee or nominees, or to retain such investments
unregistered or in form permitting transfer by delivery; but the books and
records of the Trustee shall at all times show that all such investments are
part of the Trust.
(j) To Hold Property. To hold any property at any place,
except that the indicia of ownership of any part of the Trust shall not be
maintained outside of the jurisdiction of the district courts of the United
States, except as permitted by regulations issued under ERISA Section 404(b).
(k) To Appoint Agents. To appoint such agents, including
counsel, as it may deem advisable for the administration of the Trust.
(l) To Hold Unproductive Assets. To retain in cash and keep
unproductive of income such amount of the Trust as it may deem advisable, or as
the Employer may direct for the payment of benefits. The Trustee shall not be
required to pay interest on such balances or on cash in its hands.
(m) To Invest in Deposits. To invest all or a part of the
assets of the Trust in interest-bearing deposits with the Employer in its
corporate, nonfiduciary capacity or with a bank or similar financial institution
which is an affiliate of the Employer, including, but not limited to,
investments in time deposits, savings deposits, certificates of deposit or time
accounts which bear a reasonable rate of interest.
29
(n) General Powers To Further Purposes of Trust. To do all
such acts, execute all such instruments, take all such proceedings and exercise
all such rights and privileges with relation to any assets constituting a part
of the Trust as are necessary to carry out the purposes of the Plan.
Section 10.04. Payments from and Charges to Trust. Upon direction of the
Committee, the Trustee shall pay from and charge to the Trust from time to time,
such amounts as the Committee shall certify in writing are for the payment of
benefits pursuant to the Plan.
Section 10.05. Duties of the Trustee. The Trustee shall keep and
maintain such accounts and records as it shall deem necessary and proper to
record its transactions with respect to its administration of the Trust, and
shall make to the Committee such periodic reports as the Trustee shall deem
necessary or proper.
Section 10.06. Immunities of Trustee. Except for its or his own
negligence, willful misconduct or breach of fiduciary responsibility under
ERISA, neither the Trustee nor any officer, director or employee thereof, as
such, nor any agent of any of the foregoing shall have any liability hereunder.
Nothing contained in this Plan shall be construed as obligating the Trustee
either in its corporate or fiduciary capacity to make any payment or
disbursement except from property held under the Trust. The Trustee's duties and
obligations shall be limited to those expressly imposed upon it under the Plan
or applicable law.
Section 10.07. Removal. The Corporation may remove the Trustee by filing
written notice of removal with the Trustee. Such removal may be with respect to
all of the Trust or any part thereof designated by the Corporation in such
notice. Such removal shall take effect on any date at least 60 days after the
filing of such notice, or on the date a successor Trustee shall have been
appointed, as provided in Section 10.08 hereof, whichever is earlier.
Section 10.08. Successor Trustee. In case the position of Trustee shall
become vacant for any reason, a successor shall be appointed by the Corporation,
and a written notice of such appointment shall be delivered to the successor so
appointed and to the Trustee ceasing to act if it is in existence.
Section 10.09. Vesting of Property in New Trustee. Any successor Trustee
appointed hereunder shall execute, acknowledge and deliver to the Corporation an
instrument in writing accepting such appointment. Thereupon such successor
Trustee shall become vested with all the properties, powers and duties of the
predecessor Trustee with respect to the Trust or any part thereof for which it
is appointed successor Trustee. On the written request of the Corporation or of
the successor Trustee, the Trustee ceasing to act shall execute and deliver an
instrument transferring to the successor Trustee, the properties, rights, powers
and duties with respect to the Trust or any part thereof for which the successor
Trustee is appointed; and shall assign, transfer and deliver to the successor
Trustee any properties held in the Trust or in its custody which are to be held
by the successor Trustee.
30
Section 10.10. Final Settlement of Trustee's Account. Within 60 days
after the resignation or removal of a Trustee, the Trustee shall file with the
Corporation a written report setting forth all investments, receipts,
disbursements and other transactions effected by it since its last report, and
showing each asset held at the date of resignation or removal and the cost
thereof as carried on the books of the Trustee. If within 90 days from the date
of filing such account, the Corporation or any Participant shall fail to file
with the Trustee written exceptions or objections to such account, the Trustee,
including the Trustee who has been removed or who has resigned, shall be
released and discharged from any liability or accountability to anyone with
respect to the transactions covered by such account.
Section 10.11. Merger of Trustee. Any corporation into which the Trustee
is merged or with which it is consolidated, or any corporation resulting from a
merger, reorganization or consolidation to which the Trustee is a party, or any
corporation to which substantially all the trust business of the Trustee is
transferred shall become the successor Trustee without the execution or filing
of any other instrument or the performance of any other act.
Section 10.12. Right to Judicial Accounting. Nothing contained in the
Plan shall be construed as depriving the Trustee of the right to have a judicial
settlement of its accounts. Upon any proceeding by the Trustee for a judicial
settlement of its accounts or for instructions, the only necessary party thereto
in addition to the Trustee shall be the Corporation. None of the Participants or
Beneficiaries of the Plan shall have any right to compel an accounting, judicial
or otherwise, by the Trustee, and all of them shall be bound with respect to all
accounts submitted by the Trustee to the Corporation as provided by the Plan.
ARTICLE 11
ADMINISTRATION OF THE PLAN
Section 11.01. The Committee.
(a) The Board of Directors of the Corporation shall appoint
the Committee, consisting at all times of at least three individuals, which
shall administer this Plan in accordance with its terms. The Committee shall
have the authority to control and manage the operation and administration of the
Plan and the responsibility of filing and distributing reports and returns with
or to government agencies and Participants and Beneficiaries as required under
ERISA and the Code. The Committee shall be the Plan administrator within the
meaning of ERISA Section 3(16).
(b) Any individual, including an officer, director,
shareholder or employee of the Employer, shall be eligible for appointment as a
member of the Committee.
31
(c) Each member of the Committee shall serve until his death
or resignation. The Board of Directors of the Corporation may at any time remove
a member of the Committee and appoint a successor.
(d) Members of the Committee serving from time to time shall
be named fiduciaries within the meaning of ERISA Section 402(a)(1).
(e) Members of the Committee, by a written instrument, may
allocate their responsibilities to control and manage the operation of the Plan
and the responsibility to file reports and returns among themselves, and may
designate other persons to carry out such responsibilities. If a member agrees
to such an allocation, such member shall not be liable for any act or omission
of the person to whom such responsibility is allocated except as provided in
ERISA Section 405(c)(2). If the members have made such an allocation or
designation, the members shall not be liable for any act or omission of the
person to whom such responsibility is allocated or who is so designated, except
as provided in ERISA Section 405(c)(2).
Section 11.02. Agents. The Committee may employ such agents, including
counsel, as it may deem advisable for the administration of the Plan. Such
agents need not be Participants.
Section 11.03. Compensation and Expenses. Members of the Committee shall
serve without compensation as members, but the Employer shall pay all the
expenses of the Committee. To the extent permitted by law, the Employer shall
indemnify each member of the Committee and any employee of the Employer who has
been designated to carry out responsibilities pursuant to Section 11.01(e)
hereof against any liability (not reimbursed by insurance) incurred in the
course of the administration of the Plan, except liability arising from his own
negligence, willful misconduct or breach of fiduciary duty under ERISA.
Section 11.04. Action by the Committee. Action of the Committee shall be
by majority vote either at a meeting or in writing without a meeting; however, a
direction, certificate, statement or other declaration signed by any member of
the Committee designated by it as its representative to sign such document shall
be conclusive evidence of the regularity of such direction, certificate,
statement or declaration.
Section 11.05. Records. The acts and decisions of the Committee shall be
duly recorded. The Committee shall make available for examination by any
Participant during the business hours of the Corporation a copy of this Plan and
such records as may pertain to the computation of benefits of such Participant.
Section 11.06. Defect or Omission. Any defect, omission or inconsistency
in this Plan shall be referred by the Committee to the Board of Directors of the
Corporation for such action as may be necessary to correct such defect, supply
such omission, or reconcile such inconsistency.
Section 11.07. Disqualification of Member. A member of the Committee
shall not vote upon any question relating specifically to himself or his
Beneficiary.
32
Section 11.08. Liability of Committee Members. Except for his own
negligence, willful misconduct, or breach of fiduciary duty under ERISA, no
member of the Committee nor any agent or other person appointed by the Committee
or member thereof shall be liable to anyone for any act or omission in the
course of the administration of the Plan.
Section 11.09. Funding Policy. The Committee shall establish and review
a funding policy consistent with the objectives of the Plan.
Section 11.10. Establishment of Investment Funds. The Committee shall
establish the Investment Funds in which Participants may elect, pursuant to
Section 6.02 hereof, to invest Contributions made on their behalf and the
amounts of their Accounts. The Investment Funds shall include the Money Market
Fund and the M&T Bank Corporation Stock Fund. The Committee may, from time to
time, establish new Investment Funds or discontinue and liquidate an existing
Investment Fund; provided, however, that the Committee shall not discontinue the
Money Market Fund or the M&T Bank Corporation Stock Fund. In no event shall the
number of Investment Funds be fewer than three.
Section 11.11. Claims by Employees and Participants. Any question as to
the eligibility of any individual to become a Participant or the calculation of
benefits of a Participant shall be determined by the Committee in accordance
with the terms of the Plan. If any individual excepts to the decision of the
Committee, the Committee, upon request, shall provide the individual with a copy
of the claims procedure followed by the Committee. Upon exhaustion of the claims
procedure, the determination of the Committee shall be final and conclusive for
all purposes.
Section 11.12. Rights of Certain Veterans. Notwithstanding any provision
of this Plan to the contrary, contributions, benefits and service credit with
respect to qualified military service shall be provided in accordance with Code
Section 414(u).
ARTICLE 12
TERMINATION, CONTINUATION AND MERGER
Section 12.01. Termination of the Plan. Upon the complete or partial
termination of the Plan, the assets of the Trust shall continue to be held in
the Trust, and Distributions and withdrawals shall continue to be made in
accordance with the terms of this Plan.
Section 12.02. Continuation or Merger of Plan.
(a) The Plan may be continued by any other organization
succeeding to the business of the Employer if some or all of the Participants
are employed by any such successor organization and if such organization agrees
to assume the liabilities of this Plan to such Participants.
(b) (i) This Plan shall not be merged, consolidated
with, or transfer its assets or liabilities to, any other plan unless each
Participant would receive (if
33
the transferee plan then terminated) a benefit immediately after the merger,
consolidation or transfer which is equal to or greater than the benefit he would
have been entitled to receive immediately before the merger, consolidation or
transfer (if the Plan then terminated).
(ii) Except as otherwise provided in Article 16 or 17 hereof,
if an account ("Transferred Account") is transferred from another defined
contribution plan ("Transferor Plan") to this Plan and the Transferor Plan
provides an optional form of benefit (as defined in Treasury Regulations Section
1.411(d)-4) with respect to all or a portion of the Transferred Account that is
not otherwise available under this Plan, the optional form of benefit shall be
provided under this Plan with respect to the applicable portion of the
Transferred Account to the extent required by, and subject to such terms and
conditions imposed by the Committee consistent with, the provisions of Code
Section 411(d)(6) and the Treasury Regulations thereunder.
ARTICLE 13
TOP-HEAVY PROVISIONS
Section 13.01. Definition of Top-Heavy Plan. This Plan shall be
considered a Top-Heavy Plan for a Plan Year if, on the Determination Date (as
defined below), the Cumulative Accrued Benefits (as defined below) of Key
Employees (as defined below) exceed 60% of the Cumulative Accrued Benefits of
all Participants under the Plan or, if the Plan is included in an Aggregation
Group (as defined below), under all plans included in an Aggregation Group. For
purposes of this Article 13, the following terms shall have the following
meanings:
(a) "Determination Date" shall mean the last day of the
preceding Plan Year, or, for the first Plan Year of the Plan, the last day of
the first Plan Year.
(b) "Cumulative Accrued Benefit" shall mean, with respect to
a Participant, the sum of the value of his defined contribution accounts under
all defined contribution plans (including this Plan) included in an Aggregation
Group, plus the present value of his accrued benefits under all defined benefit
plans included in an Aggregation Group, provided that there shall not be taken
into account any amount with respect to (1) a Participant who has not performed
any services for an Affiliated Employer at any time during the five-year period
ending on the Determination Date or (2) a non-Key Employee who was a Key
Employee in any prior Plan Year, and provided further that there shall be taken
into account any distributions from any such plan, including any terminated plan
that would be included in an Aggregation Group had it not terminated, made
during the five-year period ending on the Determination Date and any
contributions due but unpaid as of the Determination Date. The value of the
Account balance and the present value of accrued benefits will be determined as
of the most recent Determination Date, except as provided in Code Section 416
and regulations thereunder for the first and second Plan Years. The accrued
benefit in a defined benefit plan of an employee other than a Key Employee shall
be determined under (a) the method, if any,
34
uniformly applied for accrual purposes under all plans maintained by the
Affiliated Employers, or (b) if there is no such method, as if such benefit
accrued not more rapidly than the slowest accrual rate permitted under the
fractional accrual rate of Code Section 411(b)(1)(C).
(c) "Aggregation Group" shall mean each plan of the Employer
in which a Key Employee is a participant, and each other plan of the Employer
which enables any plan in which a Key Employee participates to meet the
requirements of Code Section 401(a)(4) or 410, provided that there may also be
included, at the election of the Corporation, any other plan of the Employer if
the Aggregation Group, taking into account such other plan, would continue to
meet the requirements of Code Sections 401(a)(4) and 410.
(d) "Key Employee" shall mean any employee of an Affiliated
Employer who at any time during the Plan Year or any of the four preceding
PlanYears is: (i) an officer of an Affiliated Employer having Compensation
greater than 50 percent of the limit in effect under Code Section 415(b)(1)(A)
for any such Plan Year; (ii) one of the ten employees having Compensation
greater than the limit in effect under Code Section 415(c)(1)(A) for any such
Plan Year and owning (or considered as owning within the meaning of Code Section
318) the largest interests in the Employer; (iii) any owner (or the person
considered to own within the meaning of Code Section 318) of more than five
percent of the outstanding stock of the Employer or stock possessing more than
five percent of the total combined voting power of all stock of the Affiliated
Employer; or (iv) any owner of more than one percent of the stock of the
Affiliated Employer (determined under clause (iii) hereof by substituting one
percent for five percent) and has Compensation from an Affiliated Employer of
more than $150,000.
(e) "NonKey Employee" shall mean any employee who is not a
Key Employee.
(f) "Present Value" shall be computed by discounting
benefits only for a reasonable mortality rate and 5% annual interest rate.
Section 13.02. Top-Heavy Rules. If the Plan is a Top-Heavy Plan, as
defined in Section 13.01 hereof, for a Plan Year, the following rules shall
apply during such Plan Year, notwithstanding any provision of the Plan to the
contrary:
(a) The Employer shall contribute annually with respect to
each Participant who is not a Key Employee a Minimum Amount, determined without
taking into account Pretax Contributions and other elective deferrals within the
meaning of Code Section 402(g), equal to the lesser of: (1) 3 percent of each
such Participant's Compensation or (2) the percentage at which Contributions
(other than After-tax Contributions) are made (or required to be made) for the
year for the Key Employee for whom such percentage is the highest for such year.
(b) The Minimum Amount requirement shall not apply to any
Participant who was not employed by the Employer on the last day of the Plan
Year or to
35
any Participant covered under any qualified plan of an Employer participating in
the Plan under which the appropriate test provided in Code Section 416(c) is
satisfied for such Plan for the Plan Year.
(c) If a Participant participates in the Plan and a defined
benefit plan of the Employer in a Plan Year in which the Plan is Top-Heavy,
Contributions (other than After-tax Contributions) made on behalf of the
Participant for such Plan Year shall be not less than 5% of such Participant's
Compensation.
(d) For purposes of this Section 13.02(d), all defined
contribution plans of the Employer shall be aggregated to the end that the
percentage rules shall be satisfied if the aggregate contributions made on
behalf of each non-Key Employee to all defined contribution plans equals 3% (or
the applicable lesser percentage) or 5%, as the case may be, of that non-Key
Employee's Compensation.
Section 13.03. Maximum Permissible Contributions and Benefits. For any
Plan Year in which the Plan is Top-Heavy "1.0" shall be substituted for "1.25"
in Sections 6.03(c)(1)(i) and 6.03(c)(2)(i) hereof.
ARTICLE 14
MISCELLANEOUS
Section 14.01. Rights of All Interested Parties Determined by Terms of
the Plan. The Plan and Trust are purely voluntary on the part of the Employer,
the Trust shall be the sole source of benefits provided in the Plan, and in no
event shall the Employer be liable or responsible therefor. The Plan shall be
binding upon all parties thereto and all Participants, and upon their respective
heirs, executors, administrators, successors, and assigns, and upon all persons
having or claiming to have any interest of any kind or nature under the Plan or
the Trust.
Section 14.02. No Employment Rights Created. The creation and
maintenance of the Plan shall not confer any right to continued employment on
any employee, and all employees shall remain subject to discharge to the same
extent as if the Plan had never been established.
Section 14.03. Mistaken Contributions, etc. The assets of the Plan shall
not inure to the benefit of the Employer, and shall be held for the exclusive
purposes of providing benefits to Participants and Beneficiaries and defraying
reasonable expenses of administering the Plan. Notwithstanding the foregoing
sentence, if the Committee determines that a Contribution was made by an
Employer under a mistake of fact, as provided in Code Section 401(a)(2), such
Contribution may be returned to the Employer, at the discretion of the Employer,
within six months after such determination.
Section 14.04. Construction. It is intended that this Plan shall be
construed so that (i) the Profit-Sharing Component of the Plan qualifies as a
profit-sharing plan meeting the requirements of Code Section 401(a), (ii) the
ESOP Component of the Plan qualifies as a stock bonus plan meeting the
requirements of Code Sections 401(a) and 4975(e)(7),
36
and (iii) the cash or deferred arrangement of the Profit-Sharing Component and
ESOP Component qualifies as such under Code Section 401(k).
Section 14.05. Number and Gender. Where necessary or appropriate to the
meaning hereof, the singular shall be deemed to include the plural, the plural
to include the singular, the masculine to include the feminine and neuter, the
feminine to include the masculine and neuter, and the neuter to include the
masculine and feminine.
Section 14.06. Notice to Employees. Notice of the existence and the
provisions of this Plan and amendments thereto shall be communicated to all
persons who are or who become Eligible Employees.
Section 14.07. Notification of Address. Each person eligible to receive
benefits under the Plan shall notify the Committee in writing of his post office
address and any change of post office address thereafter. Any communication,
statement or notice addressed to such person at his last post office address as
filed with the Committee (or if no post office address was filed with the
Committee, then his last post office address shown by the Employer's payroll
records) will be binding upon such person for all purposes of this Plan, and
neither the Employer nor the Committee shall be obligated to search for or
ascertain the whereabouts of any such person.
Section 14.08. Amendments. The Corporation, by action of its Board of
Directors or the Executive Committee thereof, reserves the right to amend,
alter, modify or suspend, in whole or in part, any provision or provisions of
this Plan at any time, retroactively or otherwise, without the consent of the
Trustee, provided that (a) no such action shall cause or permit any portion of
the corpus or income of the Trust to revert to or become the property of or be
used for the benefit of the Employer, or divert any portion of the corpus or
income of the Trust for purposes other than the exclusive benefit of the
Participants and their Beneficiaries, and (b) no protected benefit (within the
meaning of Code Section 411(d)(6)) shall be reduced or eliminated by Plan
amendment, or otherwise, except as permitted under Code Section 411(d)(6). Any
such amendment, alteration, modification or suspension shall be set forth in a
written instrument executed by the Corporation.
Section 14.09. Headings. The headings and subheadings in this Plan are
inserted for convenience and reference only and are not intended to be used in
construing this Plan or any provision hereof.
Section 14.10. Governing Law. This Plan shall be construed according to
the law of the State of New York and applicable federal law, and all provisions
hereof shall be administered according to the law of the State of New York and
applicable federal law.
ARTICLE 15
ADMISSION OF CERTAIN EMPLOYEES
Section 15.01. Former Boeing Company Employees.
37
(a) General. For purposes of this Section 15.01, a former
Boeing Company employee is an Employee who was employed by Boeing Company on
September 30, 1986 and became employed by the Employer on October 1, 1986.
(b) Entry Date. The term "Entry Date" for a former Boeing
Company employee shall include, in addition to the Entry Dates specified in
Section 2.29 hereof, October 1, 1986.
(c) Continuous Service. Boeing Company shall be considered
an Employer for the sole purpose of determining the Continuous Service of a
former Boeing Company employee.
(d) Compensation. The Compensation of a former Boeing
Company employee for the Plan Year ending December 31, 1986 shall be his or her
annual salary with the Employer on October 1, 1986.
Section 15.02. Former Chemical Bank Employees.
(a) General. For purposes of this Section 15.02, a former
Chemical Bank employee is an Employee (1) who was employed by Chemical Bank on
October 14, 1988 and became employed by the Employer on October 17, 1988, or (2)
who was employed by Chemical Bank on December 8, 1994 and became employed by the
Employer on December 9, 1994.
(b) Continuous Service. Chemical Bank and any employer
described in Appendix V of the Savings Incentive Plan of Chemical Bank and
Certain Affiliated Companies that is the employer of a former Chemical Bank
employee described in such Appendix V shall be considered Employers for the sole
purpose of determining the Continuous Service of a former Chemical Bank
employee.
Section 15.03. Former East New York Employees. If an Employee attained
age 21 on or before December 31, 1989 and completed 1000 "Hours of Service" with
the East New York Bank, under the terms of the East New York Plan, as in effect
on December 31, 1989, during the period in 1989 commencing on his date of
employment with East New York Bank, or an anniversary thereof, and ending on
December 31, 1989, such Employee shall be eligible to participate in this Plan
on January 1, 1990.
Section 15.04. Former Monroe Savings Bank, F.S.B. Employees. A former
employee of Monroe Savings Bank, F.S.B. who became an Employee on January 29,
1990 shall be eligible to participate in the Plan on January 1, 1991 if he
becomes an Eligible Employee on or before that date. For purposes of determining
whether a former employee of Monroe Savings Bank, F.S.B. is an Eligible
Employee, his service with Monroe Savings Bank, F.S.B. shall be counted.
Section 15.05. Former Empire Federal Savings Bank of America Employees.
A former employee of Empire Federal Savings Bank of America who became an
Employee on September 29, 1990 shall be eligible to participate in the Plan on
July 1, 1991 if he becomes an Eligible Employee on or before that date. For
purposes of determining
38
whether a former employee of Empire Federal Savings Bank of America is an
Eligible Employee, his service with Empire Federal Savings Bank of America shall
be counted.
Section 15.06. Former Goldome Employees. A former employee of Goldome
who became an Employee on June 1, 1991 shall be eligible to participate in the
Plan on January 1, 1992 if he becomes an Eligible Employee on or before that
date. For purposes of determining whether a former employee of Goldome is an
Eligible Employee, his service with Goldome shall be counted.
Section 15.07. Former Endicott Trust Company Employees and Central Trust
Company Employees. A former employee of Endicott Trust Company or Central Trust
Company who became an Employee on July 1, 1992 shall be eligible to participate
in the Plan on January 1, 1993 if he becomes an Eligible Employee on or before
that date. For purposes of determining whether a former employee of Endicott
Trust Company or Central Trust Company is an Eligible Employee, his service with
Endicott Trust Company or Central Trust Company shall be counted.
Section 15.08. Former Citizens Savings Bank Employees. A former Citizens
Savings Bank employee is an Employee who was employed by Citizens Savings Bank,
F.S.B. prior to December 1, 1994. Citizens Savings Bank, F.S.B. shall be an
Employer for the purpose of determining the Continuous Service of a former
Citizens Savings Bank employee.
Section 15.09. Former Statewide Funding Corp. Employees. A former
Statewide Funding Corp. employee is an Employee who was employed by Statewide
Funding Corp. prior to March 26, 1995. Statewide Funding Corp. shall be an
Employer for the purpose of determining the Continuous Service of a former
Statewide Funding Corp. employee.
Section 15.10. Former Chase Bank Employees. A former Chase Bank employee
is an Employee who was employed by Chase Manhattan Bank, N.A. on July 21, 1995
and who became employed by the Employer on July 22, 1995. Chase Manhattan Bank,
N.A. shall be an Employer for the purpose of determining the Continuous Service
of a former Chase Bank employee.
Section 15.11. Former Exchange Mortgage Corp. Employees. A former
Exchange Mortgage Corp. employee is an Employee who was employed by Exchange
Mortgage Corp. on October 1, 1995 and who became employed by the Employer on
October 2, 1995. Exchange Mortgage Corp. shall be an Employer for the purpose of
determining the Continuous Service of a former Exchange Mortgage Corp. employee.
Section 15.12. Former Integra Bank Employees. A former Integra Bank
employee is an Employee who was an employee of Integra Bank before January 1,
1996 and who became employed by the Employer on or before January 1, 1996.
Integra Bank shall be an Employer for the purposes of determining the Continuous
Service of a former Integra Bank employee.
39
Section 15.13. Former GreenPoint Bank Employees. A former GreenPoint
Bank employee is an Employee who was an employee of GreenPoint Bank on January
26, 1997 and who became employed by the Employer on January 27, 1997. GreenPoint
Bank shall be an Employer for the purpose of determining the Continuous Service
of a former GreenPoint Bank employee.
Section 15.14. Former Onbank Employees. A former Onbank employee is an
Employee who was employed by Onbank prior to April 1, 1998. Onbank shall be an
Employer for the purpose of determining the Continuous Service of a former
Onbank employee.
Section 15.15. Former FNBR Employees. A former FNBR employee is an
Employee who was an employee of FNBR on May 31, 1999 and who became an Employee
on June 1, 1999. FNBR shall be an Employer for the purpose of determining the
Continuous Service of a former FNBR employee.
Section 15.16. Former Chase Manhattan Employees. A former Chase
Manhattan employee is an Employee who was employed by The Chase Manhattan Bank
on September 23, 1999 and who became employed by the Employer on September 24,
1999. The Chase Manhattan Bank shall be an Employer for purposes of determining
the Continuous Service of a former Chase Manhattan employee.
Section 15.17. Matthews, Bartlett & Dedecker, Inc. Employees. Service
completed by an Employee with Matthews, Bartlett & Dedecker, Inc. shall be
credited under Section 4.01 hereof to the extent that such service would
constitute "Continuous Service" under this Plan. Notwithstanding the preceding,
if an individual (i) is not an Employee on March 1, 2000, (ii) terminated
employment with Matthews, Bartlett & Dedecker, Inc. prior to March 1, 2000, and
(iii) is rehired by an Employer after such date, his service with Matthews,
Bartlett & Dedecker, Inc. prior to March 1, 2000 shall not constitute Continuous
Service under this Plan.
Section 15.18. Former CFS Bank Employees. A former CFS Bank employee is
an Employee who was employed by CFS Bank on April 2, 2000 and who was an
Employee on April 3, 2000. CFS Bank shall be an Employer for purposes of
determining the Continuous Service of a former CFS Bank employee.
Section 15.19. Former Keystone Employees. A former Keystone employee is
an Employee who was employed by Keystone Financial, Inc. or any subsidiary
thereof ("Keystone") on October 6, 2000 and who was an Employee on October 7,
2000. Keystone shall be an Employer for purposes of determining the Continuous
Service of a former Keystone employee.
Section 15.20. Former Premier Employees. A former Premier employee is an
Employee who was employed by Premier National Banccorp, Inc. or any subsidiary
thereof ("Premier") on February 9, 2001 and who was an Employee on February 10,
2001. Premier shall be an Employer for purposes of determining the Continuous
Service of a former Premier employee.
40
ARTICLE 16
PROTECTED BENEFIT OPTIONS FOR
FORMER PARTICIPANTS IN PLANS
SUBJECT TO CODE SECTIONS 401(a)(11) AND 417
Section 16.01. Definitions. For purposes of this Article 16, the
following terms are defined as follows:
(a) Annuity Starting Date: The first day of the first period
for which an amount is payable as an annuity, or, in the case of a benefit that
is not payable in the form of an annuity, the first day on which all events have
occurred which entitle the Former Merged Plan Participant to such benefit.
(b) Chase Manhattan Plan: The 401(k) Savings Plan of The
Chase Manhattan Bank.
(c) Citizens Plan: The Citizens Savings Bank Money Purchase
Pension Plan.
(d) Disability Retirement Date: The first day of the month
following the date on which a Former ENY Plan Participant becomes "permanently
and totally disabled" as defined in Section 2.38 of the M&T Bank Corporation
Pension Plan.
(e) ENY Plan: The 401(k) Plan for the Employees of The East
New York Savings Bank.
(f) Early Retirement Date: The first day of the month
following the earlier of (1) a Former ENY Plan Participant's attainment of age
60 and his completion of five "Years of Service" following the commencement of
participation in the ENY Plan, or (2) a Former ENY Plan Participant's completion
of 30 "Years of Service" following the commencement of participation in the ENY
Plan. If a Former ENY Plan Participant did not complete five or 30 "Years of
Service" (whichever is applicable) from the date of his commencement of
participation in the ENY Plan through December 31, 1989, his years of service
after commencement of participation in this Plan shall be counted as "Years of
Service." In determining "Years of Service" under this Plan, the term "Years of
Service" shall have the same meaning as such term is used in, and a Former ENY
Plan Participant shall be credited with "Years of Service" in accordance with
the terms of, the ENY Plan in effect on December 31, 1989.
(g) Former Chase Manhattan Plan Participant: An individual
with an account under the Chase Manhattan Plan on the Merger Date.
(h) Former Citizens Plan Participant: An individual with an
account balance in the Citizens Plan on the Merger Date.
(i) Former ENY Plan Participant: An individual with an
account balance in the ENY Plan on the Merger Date.
41
(j) Former MBD Plan Participant: An individual with an
account balance in the MBD Plan on the Merger Date.
(k) Former MHT Plan Participant: An individual with an
account balance in the MHT Plan on the Merger Date.
(l) Former Premier Plan Participant: An individual with an
account balance in the Premier Plan on the Merger Date.
(m) Joint and 50% Survivor Annuity: An annuity payable
monthly to a Former Merged Plan Participant for his lifetime, and upon his
death, an annuity payable monthly to the Former Merged Plan Participant's
survivor annuitant for his lifetime, which monthly annuity shall be equal to 50
percent of the monthly annuity payable to the Former Merged Plan Participant.
(n) Former Merged Plan Participant: A Former ENY Plan
Participant, a Former MHT Plan Participant, a Former Citizens Plan Participant,
a Former Chase Manhattan Plan Participant, a Former MBD Plan Participant or a
Former Premier Plan Participant.
(o) Joint and 100% Survivor Annuity: An annuity payable
monthly to the Former Merged Plan Participant for his lifetime, and upon his
death, an annuity payable monthly to the Former Merged Plan Participant's
survivor annuitant for his lifetime, which monthly annuity shall be equal to
100% of the monthly annuity payable to the Former Merged Plan Participant.
(p) Life Annuity: A monthly annuity payable over the
lifetime of the annuitant.
(q) MBD Plan: The Matthews Bartlett & Dedecker Deferred
Profit Sharing Plan.
(r) MHT Plan: The Employees' Savings Incentive Plan of
Manufacturers Hanover Trust Company and Certain Affiliated Companies.
(s) Merged Plan: The ENY Plan, the MHT Plan, the Citizens
Plan, the Chase Manhattan Plan, the MBD Plan or the Premier Plan.
(t) Merger Date: December 31, 1991, in the case of the ENY
Plan; January 1, 1993, in the case of the MHT Plan; January 1, 1996 in the case
of the Citizens Plan; November 15, 1999 in the case of the Chase Manhattan Plan;
August 15, 2000 in the case of the MBD Plan; or May 1, 2001 in the case of the
Premier Plan.
(u) Normal Form of Annuity: A Qualified Joint and Survivor
Annuity, in the case of a Former Merged Plan Participant who has a Spouse on his
Annuity Starting Date, and a Life Annuity in the case of a Former Merged Plan
Participant who does not have a Spouse on his Annuity Starting Date.
42
(v) Normal Retirement Date: The first day of the month
following the later of a Former ENY Plan Participant's (1) attainment of age 65,
or (2) fifth anniversary of participation in this Plan.
(w) Premier Plan: The Premier National Bancorp Retirement &
Thrift Plan.
(x) Preretirement Survivor Annuity: A Life Annuity payable
to a surviving Spouse that can be provided with 100 percent of the Protected
Balance of a Former Merged Plan Participant.
(y) Protected Balance: The lesser of a Former Merged Plan
Participant's (a) account balance under the Merged Plan as of the Merger Date
(plus, in the case of a Former Citizens Plan Participant, earnings on such
account balance after the Merger Date), or (b) Account balance under this Plan.
(z) Qualified Election: A waiver of the Normal Form of
Annuity. A waiver of the Normal Form of Annuity shall be invalid unless: (1) the
Former Merged Plan Participant's Spouse consents in writing to the election; (2)
the election designates a form of Distribution and a specific Beneficiary,
including any class of Beneficiaries or any contingent Beneficiary, that may not
be changed without Spousal consent (or the Spouse expressly permits designations
by the Former Merged Plan Participant without any further Spousal consent); (3)
the Spouse's consent acknowledges the effect of the election; and (4) the
Spouse's consent is witnessed by a Plan representative or notary public. A
consent that permits designations by the Former Merged Plan Participant without
any requirement of further Spousal consent must acknowledge that the Spouse has
the right to limit consent to a specific Beneficiary and a specific form of
Distribution, and that the Spouse voluntarily elects to relinquish either or
both of such rights. If it is established to the satisfaction of the Committee
that Spousal consent cannot be obtained because there is no Spouse, because the
Spouse cannot be located, or because of such other circumstances as are
prescribed by Treasury Regulations, a waiver without Spousal consent shall be a
valid Qualified Election. Any Spousal consent obtained under this Article 16 (or
establishment that the consent of a Spouse cannot be obtained) shall be
effective only with respect to such Spouse.
(aa) Qualified Joint and Survivor Annuity: A Joint and 50%
Survivor Annuity where the survivor annuitant is the surviving Spouse of the
Former Merged Plan Participant.
(bb) Spouse: The spouse to whom a Former Merged Plan
Participant is married for the 12 month period ending on the earlier of the
Former Merged Plan Participant's death or Annuity Starting Date. The 12 month
requirement shall not apply to a Former ENY Plan Participant.
Section 16.02. Protected Distribution Options Available to Former Merged
Plan Participants. Notwithstanding any other provision of this Plan, and subject
to Section 16.08 hereof,
43
(a) if the Protected Balance of a Former Merged Plan
Participant (other than a Former Citizens Plan Participant) is greater than
$5,000 and if such Former Merged Plan Participant elects a Distribution of his
Protected Balance in the form of an annuity, he shall receive an amount of his
Account equal to his Protected Balance in the Normal Form of Annuity.
(b) If the Protected Balance of a Former Merged Plan
Participant (other than a Former Citizens Plan Participant) is $5,000 or less,
Distribution of the Former Merged Plan Participant's Protected Balance shall be
made in accordance with Article 9 hereof.
(c) A Former Citizens Plan Participant shall receive an
amount of his Account equal to his Protected Balance in the form of a Life
Annuity unless he elects another form of benefit under Article 9 hereof.
Section 16.03. Additional Protected Distribution Options Available to
Former ENY Plan Participants.
(a) A Former ENY Plan Participant shall be eligible to elect
to receive an amount of his Account up to his Protected Balance as an in-service
withdrawal as described in Article 7 hereof or as described below:
(1) A Former ENY Plan Participant may make up to two
in-service withdrawals during any 12 month period. The minimum withdrawal shall
be the lesser of $200 or the amount of the Former ENY Plan Participant's
Protected Balance. Amounts withdrawn under this Section 16.03(a) shall be
withdrawn pro rata from the Investment Funds in which a Former ENY Plan
Participant's Protected Balance is invested.
(2) Amounts shall be withdrawn in the following
sequence and upon the following conditions:
(i) After-tax Contributions.
(ii) Earnings on After-tax Contributions.
(iii) Additional Employer Contributions,
Rollover Contributions, direct transfers from predecessor plans and earnings on
such Contributions and transfers, upon the Former ENY Plan Participant's
completion of at least five "Years of Service" after commencing participation in
the ENY Plan (including service as a Participant in this Plan). The Former ENY
Plan Participant shall specify the amount of Additional Employer and Rollover
Contributions and transferred funds to be withdrawn. The term "Years of Service"
shall have the same meaning as such term is used in, and a Former ENY Plan
Participant shall be credited with "Years of Service" in accordance with the
terms of, the ENY Plan, as in effect on December 31, 1989. Upon any withdrawal
under this (iii), a Former ENY Plan Participant shall forfeit his right to
future Additional Employer Contributions under the Plan for a period of 12
consecutive months, beginning on the first day of the Plan Year following the
date of withdrawal.
44
(iv) Pretax Contributions and earnings on
such Contributions, upon the Former ENY Plan Participant's attainment of age
59 1/2.
(b) Subject to Sections 16.02 and 16.08 hereof, a Former ENY
Plan Participant who retires at or after his Normal, Early or Disability
Retirement Date shall be eligible to elect to receive an amount of his Account
equal to his Protected Balance in any form of benefit described in Article 9
hereof or in any form described below:
(1) A Joint and 100% Survivor Annuity, where the
survivor annuitant is the Former ENY Plan Participant's surviving Spouse. A
Former ENY Plan Participant may elect this option without the consent of his
Spouse.
(2) A Life Annuity.
(3) A Life Annuity, with the provision that, if the
Former ENY Plan Participant dies prior to receiving 120 payments, the remainder
of the 120 payments shall be paid to the Former ENY Plan Participant's
Beneficiary. If the joint life expectancy of the Former ENY Plan Participant and
his Beneficiary is less than 120 months, the number of guaranteed payments shall
be equal to the period (in full months) of the joint life expectancy of the
Former ENY Plan Participant and his Beneficiary.
(4) A Life Annuity, and upon the death of the Former
ENY Plan Participant, a lump sum payment to his Beneficiary equal to the excess,
if any, of the net consideration provided to purchase the Life Annuity over the
total amount of payments made to the Former ENY Plan Participant.
(c) Subject to Sections 16.02 and 16.08 hereof, a Former ENY
Plan Participant who terminates service with the Employer prior to his Normal,
Early or Disability Retirement Age shall be eligible to elect to receive an
amount of his Account equal to his Protected Balance in any form of benefit
described in Article 9 hereof or in the form of an annuity described in (b)(4)
above, with payments commencing at Normal or Early Retirement Date. The Former
ENY Plan Participant may convert such an annuity into a lump-sum payment, a Life
Annuity, or a Life Annuity with 120 guaranteed payments during the 90-day period
preceding his Annuity Starting Date.
Section 16.04. Additional Protected Distribution Options Available to
Former MHT Plan Participants. Subject to Sections 16.02 and 16.08 hereof, a
Former MHT Plan Participant shall be eligible to elect to receive an amount of
his Account equal to his Protected Balance in any form of benefit described in
Article 9 hereof or in any form described below:
(a) A joint and survivor annuity under which a Life Annuity
is payable to the Former MHT Plan Participant and, upon his death, a Life
Annuity in the same or lesser amount is payable to the Former MHT Participant's
survivor annuitant. If the Former MHT Plan Participant or his survivor annuitant
dies prior to the Former MHT Plan Participant's Annuity Starting Date, the
election of this option shall be void.
(b) A Life Annuity.
45
Section 16.05. Additional Protected Distribution Options Available to
Former Chase Manhattan Plan Participants.
(a) A Former Chase Manhattan Plan Participant shall be
eligible to elect to receive an amount of his Account up to his Protected
Balance as an in-service withdrawal as described in Article 7 hereof or as
described in (1), (2) or (3) below. The minimum withdrawal shall be the lesser
of $500 or the Former Chase Plan Participant's Protected Balance. Amounts
withdrawn under this section 16.05(a) shall be withdrawn pro rata from the
Investment Funds in which the Former Chase Manhattan Plan Participant's
Protected Balance is invested.
(1) A Former Chase Manhattan Plan Participant may
withdraw all or part of his Protected Balance attributable to after-tax
contributions or rollover contributions at any time.
(2) A Former Chase Manhattan Plan Participant may
withdraw all or part of his Protected Balance after attaining age 59 1/2.
(3) A Former Chase Manhattan Plan Participant may
withdraw all or any part of his Protected Balance attributable to employer
matching contributions as of December 31, 1996.
(b) Subject to Sections 16.02 and 16.08 hereof, a Former
Chase Manhattan Plan Participant shall be eligible to elect to receive an amount
of his Account equal to his Protected Balance in any form of benefit described
in Article 9 hereof or in any form described below:
(1) Quarterly or annual installments of at least
$500 in cash, Common Stock (to the extent his Protected Balance in so invested)
or in cash and Common Stock, over a period not exceeding the Former Chase
Manhattan Plan Participant's life expectancy or the joint life expectancies of
the Former Chase Manhattan Plan Participant and his Beneficiary. This option is
also available to the Beneficiary of a Former Chase Manhattan Plan Participant
who also participated in The Thrift-Incentive Plan of the Chase Manhattan Bank,
NA (the "Thrift Plan") prior to its merger into the Chase Manhattan Plan on
January 1, 1997 with respect to the Former Chase Manhattan Plan's account
balance under the Thrift Plan as of December 31, 1996.
(2) In the case of a Former Chase Manhattan Plan
Participant who also is a "Chase Lincoln Participant" (as defined in the Chase
Plan), a Life Annuity, a Joint and 50% Survivor Annuity or a Joint and 100%
Survivor Annuity.
(3) Notwithstanding any other provision of this
Plan, if the Employer sells substantially all the assets used in a trade or
business or sells a subsidiary, a Former Chase Manhattan Plan Participant who
continues employment with the acquiring corporation may elect to receive a lump
sum Distribution of an amount of his Account equal to that portion of his
Protected Balance attributable to elective deferrals (as defined in Code Section
402(g)), to the extent permitted under Code Section 401(k)(10).
46
Section 16.06. Additional Protected Benefit Options for Former MBD Plan
Participants. Subject to Sections 16.02 and 16.08 hereof, a Former MBD Plan
Participant shall be eligible to elect to receive an amount of his Account equal
to his Protected Balance in any form of benefit described in Article 9 hereof or
in any form described below:
(a) A Life Annuity; Life Annuities with certain periods of
five, ten or fifteen years; a Life Annuity with installment refund; survivorship
Life Annuities with installment refund and survivorship percentages of 50, 66
2/3, or 100; fixed period annuities for any period of whole months not less than
60 and not exceeding the life expectancy of the Former MBD Plan Participant and
the named Beneficiary where the life expectancy is not recalculated; and a
series of installments with a minimum payment each year beginning with the year
the Former MBD Plan Participant attains age 70 1/2 and made in accordance with
the minimum distribution rules of Code Section 401(a)(9) where life expectancy
is recalculated.
(b) If the Former MBD Plan Participant attains age 70 1/2
before January 1, 2002, but is not a 5% owner (as defined in Code Section 416)
with respect to the calendar year in which he attains age 70 1/2, and (ii) has
not terminated from service, he may elect, at the time and in the manner
prescribed by the Committee, to (A) defer any Distribution of his Account until
after his termination of service, or (B) to begin (or continue) receiving
in-service Distributions of his Account upon his attainment of age 70 1/2. If
the Participant elects to receive in-service Distributions of his Account, then,
with respect to each calendar year during which and after the Participant
attained age 70 1/2, the Plan shall make in-service Distributions to the
Participant as if he were a Participant described in Section 9.03(c)(2) hereof.
Section 16.07. Additional Protected Benefit Options for Former Premier
Plan Participants. A Former Premier Plan Participant shall be eligible to elect
to receive an amount of his Account up to his Protected Balance as an in-service
withdrawal as described in Article 7 hereof or as described in (a), (b), (c),
(d) or (e) below. Amounts withdrawn under this Section 16.07 shall be withdrawn
pro rata from the Investment Funds in which the Former Premier Plan
Participant's Protected Balance is invested.
(a) A Former Premier Plan Participant may withdraw all or part of
his Protected Balance attributable to after-tax contributions up to four times
per Plan Year. The normal form of withdrawal shall be a single sum payment, and
the optional form of withdrawal shall be the Normal Form of Annuity.
(b) A Former Premier Plan Participant may withdraw all or part of
his Protected Balance attributable to rollover contributions one time per Plan
Year. The normal form of withdrawal shall be a single sum payment, and the
optional form of withdrawal shall be the Normal Form of Annuity.
(c) A Former Premier Plan Participant who has attained age 59 1/2
may withdraw all or part of his Protected Balance attributable to pre-tax
contributions and employer matching contributions up to two times per Plan Year.
The normal form of
47
withdrawal shall be a single sum payment, and the optional form of withdrawal
shall be the Normal Form of Annuity.
(d) A Former Premier Plan Participant who becomes disabled and can
no longer continue in active service with the Employer may withdraw all or part
of his Protected Balance at any time in the form of a single sum payment.
(e) No withdrawal under (a) through (d) above shall prevent a Former
Premier Plan Participant from making a hardship withdrawal from his Protected
Balance under Article 7 hereof.
Section 16.08. Election to Waive the Normal Form of Annuity. A Former
Merged Plan Participant (other than a Former Citizens Plan Participant) who
elects an annuity shall receive the Normal Form of Annuity unless he waives the
Normal Form of Annuity and elects another annuity option described in Section
16.03, 16.04, 16.05, or 16.06 hereof, whichever is applicable, pursuant to a
Qualified Election made within the 90-day period ending on the Annuity Starting
Date. The Committee shall provide each Former Merged Plan Participant no less
than 30 days and no more than 90 days prior to the Annuity Starting Date a
written explanation of: (a) the terms and conditions of the Normal Form of
Annuity and other Distribution options under the Plan, including the relative
values of such options; (b) the Former Merged Plan Participant's right to make,
and the effect of, an election to waive the Normal Form of Annuity; (c) the
rights of the Former Merged Plan Participant's Spouse; and (d) the right to
make, and the effect of, a revocation of a previous election to waive the Normal
Form of Annuity. Notwithstanding the preceding sentence, a Former Merged Plan
Participant may elect (with Spousal consent and to the extent permitted under
the Code and applicable Treasury Regulations) to waive the foregoing 30-day
period, provided that such Participant's annuity payments begin no earlier than
seven days after the date the foregoing written explanation is provided to him.
A Qualified Election shall not be valid unless the Former Merged Plan
Participant has received the foregoing written explanation. A Former Merged Plan
Participant may revoke a Qualified Election at any time before the Annuity
Starting Date without the consent of his Spouse. The number of revocations shall
be unlimited.
Section 16.09. Preretirement Death of Former Merged Plan Participant. If
a Former Merged Plan Participant (other than a Former Citizens Plan Participant)
dies prior to his Annuity Starting Date and the Former Merged Plan Participant
elected an annuity distribution during the 90-day period prior to his Annuity
Starting Date, his surviving Spouse shall be eligible for a Preretirement
Survivor Annuity. The surviving Spouse (or, if there is no surviving Spouse, the
Beneficiary) of a Former Merged Plan Participant may waive, within 30 days of
the death of the Former Merged Plan Participant, the Preretirement Survivor
Annuity in favor of Distribution of the Former Merged Plan Participant's
Protected Balance in the form of a lump sum payment, or, in the case of a Former
MHT Plan Participant, installment payments described in Section 17.02(b)(1)
hereof. A Preretirement Survivor Annuity or other death benefit payable under
this Section 16.09 shall be payable on the 90th day after the Revaluation Date
elected by the surviving Spouse or Beneficiary, except that if the Former Merged
Plan Participant's Protected Balance as of the Revaluation Date next following
his date of his death is
48
$5,000 or less, the Protected Balance shall be payable in accordance with the
terms of Article 9 hereof.
Section 16.10. Purchase of Annuity. Any annuity Distribution payable
under this Article 16 shall be funded with an insurance contract purchased with
a Former Merged Plan Participant's Protected Balance. The insurance contract
shall be distributed to the Former Merged Plan Participant (or his Surviving
Spouse or Beneficiary), and, by its terms, shall not be transferable by the
Former Merged Plan Participant (or his Surviving Spouse or Beneficiary) and
shall be consistent with the terms of this Plan.
Section 16.11. Preservation of Code Section 411(d)(6) Benefits.
Notwithstanding any other provision of the Plan, the Plan shall preserve all
applicable optional forms of benefits available under a Merged Plan with respect
to any Protected Balance transferred from the Merged Plan to this Plan to the
extent required by Code Section 411(d)(6).
Section 16.12. Elimination of Annuity and Installment Distributions.
Prior to May 1, 2001, the Plan provided for distributions of Protected Balances
in the forms of annuity payments and installment payments. Effective as of May
1, 2001, the Plan no longer provides for distributions in annuity or installment
payment forms except as provided in Section 16.02(c) hereof. Notwithstanding the
foregoing, if a Former Merged Plan Participant's Annuity Starting Date occurs
before the earlier of (1) 90 days following the date the Former Merged Plan
Participant is provided with a notice describing elimination of such payment
forms that meets the requirements of Department of Labor Regulations Section
2520.104b-3, or (2) the first day of the second Plan Year following the Plan
Year in which this Section 16.11 is adopted, the Former Merged Plan Participant
may elect to receive a distribution of his Protected Balance in any eliminated
form of payment to the extent the Former Merged Plan Participant was eligible to
elect such eliminated form of payment under the Plan immediately prior to May 1,
2001.
Section 16.13. Repayment of Cashout.
(a) If, upon separation from service, a Former Merged Plan
Participant received a distribution from his account thereunder when he was less
than 100 percent vested in his account and forfeited his nonvested account
balance, and if the Former Merged Plan Participant then is employed by the
Employer before he incurs five consecutive one-year Breaks in Service, his
forfeited account balance shall be restored to him if he repays to the Plan the
full amount of the distribution attributable to employer contributions before
the earlier of (1) five years after the date on which the Former Merged Plan
Participant is employed by the Employer, or (2) the date on which the Former
Merged Plan Participant incurs five consecutive one-year Breaks in Service
following the distribution.
(b) If, upon separation from service, a Former Merged Plan
Participant who was 0 percent vested in his account under a Merged Plan was
deemed to have received a distribution of his vested account thereunder and
forfeited his nonvested account balance, his forfeited account balance shall be
restored to him if he is employed by the Employer before he incurs five
consecutive one-year Breaks in Service.
49
(c) For purposes of (a) and (b) above, (i) the term "Merged Plan"
shall mean the Premier Plan," and (ii) the term "Break in Service" shall have
the same meaning as assigned such term in the Premier Plan.
ARTICLE 17
PROTECTED BENEFIT OPTIONS FOR
FORMER PARTICIPANTS IN PLANS NOT
SUBJECT TO CODE SECTION 401(A)(11)
Section 17.01. Definitions. For purposes of this Article 17, the
following terms are defined as follows:
(a) Chase Plan: The Thrift-Incentive Plan of The Chase
Manhattan Bank, N.A.
(b) Chemical Plan: The Savings Incentive Plan of Chemical
Bank and Certain Affiliated Companies.
(c) Citizens Plan: The Citizens Savings Bank Profit
Sharing/Salary Investment Plan.
(d) Disability: With respect to a Former Onbank Plan
Participant and a Former FNBR Plan Participant, "Permanent and Total Disability"
as defined in the M&T Bank Corporation Pension Plan.
(e) Early Retirement: In the case of a Former Onbank Plan
Participant, a Participant's termination of service from the Employer as of the
first day of any month coincident with or next following the Participant's (i)
attainment of age 60 and completion of five years of vesting service; (ii)
attainment of age 55 and completion of ten years of vesting service, provided
that the Participant was a participant of the Savings and Loan Association of
Auburn Retirement Income Plan on May 31, 1980 and became a participant in the
Retirement Plan of Onondaga Savings Bank in Retirement System for Savings
Institutions on June 1, 1980; or (iii) completion of 30 years of vesting
service. For purposes of this Section 17.01(e), the term "years of vesting
service" has the same meaning as the term "Years of Vesting Service" under the
M&T Bank Corporation Pension Plan.
(f) Former Chase Plan Participant: An individual with an
account balance in the Chase Plan on the Merger Date.
(g) Former Chemical Plan Participant: An individual with an
account balance in the Chemical Plan on the Merger Date.
(h) Former Citizens Plan Participant: An individual with an
account balance in the Citizens Plan on the Merger Date.
50
(i) Former FNBR Plan Participant: An individual with an
account balance in the FNBR Plan on the Merger Date.
(j) Former Keystone Plan Participant: An individual with an
account balance in the Keystone Plan on the Merger Date.
(k) Former Merged Plan Participant: A Former Chase Plan
Participant, a Former Chemical Plan Participant, a Former Citizens Plan
Participant, a Former Onbank Plan Participant, a Former Statewide Plan
Participant, a Former Onbank ESOP Participant, a Former FNBR Plan Participant or
a Former Keystone Plan Participant.
(l) Former Onbank ESOP Participant: An individual with an
account balance in the Onbank ESOP on the Merger Date.
(m) Former Onbank Plan Participant: An individual with an
account balance in the Onbank Plan on the Merger Date.
(n) Former Statewide Plan Participant: An individual with an
account balance in the Statewide Plan on the Merger Date.
(o) Franklin Transfer Account: A separate individual account
established under the Onbank Plan as of August 31, 1994 on behalf of a Former
Onbank Plan Participant who is a former participant in the Franklin First
Federal Savings Bank Employee Savings Plan, plus gains and losses allocable
thereto under the Onbank Plan through May 31, 1998.
(p) Keystone Plan: The Keystone Financial 401(k) Savings
Plan.
(q) Merged Plan: The Chase Plan, the Chemical Plan, the
Citizens Plan, the Statewide Plan, the Onbank Plan, the Onbank ESOP, FNBR Plan
or the Keystone Plan.
(r) Merger Date: January 1, 1995, in the case of a Former
Chemical Plan Participant or a Former Citizens Plan Participant, April 1, 1995,
in the case of a Former Statewide Plan Participant, October 1, 1995, in the case
of a Former Chase Plan Participant, June 1, 1998, in the case of a Former Onbank
Plan Participant, October 1, 1998 in the case of a Former Onbank ESOP
Participant, August 1, 1999 in the case of a Former FNBR Plan Participant, or
December 1, 2000 in the case of a Former Keystone Plan Participant.
(s) Onbank ESOP: The Employee Stock Ownership Plan of
Onbank.
(t) Protected Balance: The lesser of a Former Merged Plan
Participant's (1) account balance in a Merged Plan as of the Merger Date, or (2)
Account balance as of the Revaluation Date coincident with a Distribution
thereof.
51
(u) Statewide Plan: The Statewide Funding Corp. Profit
Sharing Plan and Trust.
Section 17.02. Protected Benefit Options for Former Chemical Plan
Participants.
(a) Notwithstanding any other provision of this Plan, a
Former Chemical Plan Participant shall be eligible to elect to receive an amount
of his Account up to his Protected Balance as an in-service withdrawal as
described in Article 7 hereof or as described below:
(1) In-service withdrawal at any time of all or part
of the Former Chemical Plan Participant's after-tax contributions in the
following order: (i) after-tax contributions contributed under any predecessor
to the Chemical Plan prior to January 1, 1987, excluding earnings thereon; (ii)
After-Tax Contributions (as defined in Chemical Plan Section 1.2) and other
after-tax contributions contributed to the Chemical Plan and any predecessor
thereto after December 31, 1986, including earnings thereon; and (iii) earnings
on contributions described in (i) above.
(2) In-service withdrawal at any time after
attainment of age 59 1/2 of up to 100 percent of the Former Chemical Plan
Participant's Protected Balance.
(3) In-service withdrawal at any time of the Former
Chemical Plan Participant's (i) "MHT Optional Allocations," if any, contributed
under the MHT Profit Sharing Plan prior to January 1, 1980; (ii) "Matching
Contributions," if any, contributed under the MHT Performance Incentive Plan on
or before March 1, 1988; and (iii) Rollover Contributions, if any, made to the
Chemical Plan, or any predecessor thereof, prior to January 1, 1995.
(b) Notwithstanding any other provision of this Plan, if a
Former Chemical Plan Participant's Protected Balance is greater than $5,000, he
shall be eligible to elect to receive an amount of his Account equal to his
Protected Balance in any form of benefit described in Article 9 hereof or in any
form described below:
(1) Approximately equal annual cash installments of
at least $500 over a period no longer than the life expectancy of the Former
Chemical Plan Participant or the joint life expectancy of the Former Chemical
Plan Participant and his designated Beneficiary. The $500 minimum installment
requirement does not apply to a Former Chemical Plan Participant who was a
participant in the Chemical Savings Plan on December 31, 1987.
(2) Deferral of benefit commencement until the
Revaluation Date coincident with or next following the date on which the Former
Chemical Plan Participant attains age 70 1/2.
(3) Distribution of After-Tax Contributions made to
the Chemical Plan prior to January 1, 1993 in a lump sum as soon as practicable
after the Revaluation Date coincident with or next following the Former Chemical
Plan
52
Participant's termination of service with the Employer, and deferral of his
remaining Protected Balance until a date no later than the date described in (2)
above.
(c) A Former Chemical Plan Participant who is also a Former
MHT Plan Participant (as defined in Section 16.01(k) hereof) shall be eligible
to elect (1) to have his entire Protected Balance Distributed to him in any form
described in (b) above, or (2) to have that part of his Protected Balance
described in Section 16.01(y) hereof, if any, Distributed in a form described in
Section 16.04 hereof and the remainder of his Protected Balance distributed in a
form described in (b) above.
(d) The Beneficiary of a Former Chemical Plan Participant
who was a participant in the Chemical Savings Plan on December 31, 1992 may
elect to have his death benefit payable in approximately equal annual
installments up to a maximum of 15 installment payments.
Section 17.03. Protected Benefit Options for Former Citizens Plan
Participants.
(a) Notwithstanding any other provision of this Plan, a
Former Citizens Plan Participant shall be eligible to elect to receive an amount
of his Account up to his Protected Balance as an in-service withdrawal as
described in Article 7 hereof or as described below:
(1) In-service withdrawal (1) prior to attainment of
age 59 1/2, of the Former Citizens Plan Participant's After-Tax Contributions
(as defined in Citizens Plan Section 2.15) once every six months; or
(2) Upon attainment of age 59 1/2, of all or part of
the Former Citizens Plan Participant's Protected Balance.
(b) Notwithstanding any other provision of this Plan, if a
Former Citizens Plan Participant's Protected Balance is greater than $5,000, he
shall be eligible to elect to defer Distribution of his Protected Balance until
the Revaluation Date preceding or coincident with the April 1 of the calendar
year following the calendar year in which the later of the Former Citizens Plan
Participant's attainment of age 70 1/2 or retirement occurs.
Section 17.04. Protected Benefit Options for Former Statewide Plan
Participants. Notwithstanding any other provision of this Plan, if a Former
Statewide Plan Participant's Protected Balance is greater than $5,000, he shall
be eligible to elect to receive an amount of his Account equal to his Protected
Balance in any form of benefit described in Article 9 hereof or in monthly,
quarterly, semiannual or annual cash installments over a period no longer than
the life expectancy of the Former Statewide Plan Participant or the joint life
expectancy of the Former Statewide Plan Participant and his designated
Beneficiary.
Section 17.05. Protected Benefit Options for Former Chase Plan
Participants.
53
(a) Notwithstanding any other provision of this Plan, a
Former Chase Plan Participant shall be eligible to elect to receive an amount of
his Account up to his Protected Balance as an in-service withdrawal as described
in Article 7 hereof or as described below:
(1) Withdrawal at any time of an amount equal to all
or any part of the sum of the Former Chase Plan Participant's: (i) Company
Contributions Account (as defined in Chase Plan Section 2.9) balance as of the
Merger Date, excluding Limited Deferral Allocations (as defined in Chase Plan
Section 2.32); (ii) TIP Saver Account (as defined in Chase Plan Section 2.51)
balance; and (iii) Rollover Contributions Account (as defined in Chase Plan
Section 2.43) balance.
(2) Withdrawal after attaining age 59 1/2 of an
amount equal to the Former Chase Plan Participant's TaxWiser Account (as defined
in Chase Plan Section 2.46) balance as of the Merger Date.
(b) Notwithstanding any other provision of this Plan, if a
Former Chase Plan Participant's Protected Balance is greater than $5,000, he
shall be eligible to elect to receive an amount of his Account equal to his
Protected Balance in any form of benefit described in Article 9 hereof or in
quarterly cash installments over a period of five or ten years, as elected by
the Former Chase Plan Participant, but not beyond the 80th birthday of the
Former Chase Plan Participant.
Section 17.06. Protected Benefit Options for Former Onbank Plan
Participants
(a) (1) Notwithstanding any other provision of this
Plan, a Former Onbank Plan Participant shall be eligible to elect to receive an
amount of his Account up to his Protected Balance as an in-service withdrawal as
described in Article 7 hereof, or, no more frequently than twice yearly during
any Plan Year, as described below:
(i) (A) that portion of his Protected
Balance attributable to his Matching Contributions (as defined in Section 1.41
of the Onbank Plan) under the Onbank Plan in excess of the Matching
Contributions made on the Former Onbank Plan Participant's behalf under the
Onbank Plan during the 24-month period preceding the effective date of the
withdrawal; or (B) if the Former Onbank Plan Participant has been a Participant
(including participation in the Onbank Plan) for at least five years, all or a
portion of his Protected Balance attributable to his Matching Contributions
under the Onbank Plan; and
(ii) if a Former Onbank Plan Participant has
withdrawn (or requested a withdrawal of) the full amount permissible under
paragraph (i) above, and has attained the age of 59 1/2, all or any portion of
his Protected Balance attributable to (in the following order of priority): (A)
his Voluntary Contributions (as defined in Section 1.69 of the Onbank Plan)
under the Onbank Plan, (B) his Basic Contributions (as defined in Section 1.6 of
the Onbank Plan) under the Onbank Plan, and (C) his Rollover Contributions (as
defined in Section 1.56 of the Onbank Plan) under the Onbank Plan.
54
(2) Notwithstanding (1) above, a Former Onbank Plan
Participant may withdraw, at any time during any Plan Year, any amount of his
Protected Balance, if any, attributable to his Franklin Transfer Account after
he attains age 59 1/2.
(b) (1) Notwithstanding any other provision of this
Plan, except Sections 9.03(c) and (f) hereof, if a Former Onbank Plan
Participant terminates from service on account of Disability, Early Retirement
or on or after the attainment of age 65 (age 55 for purposes of (iv) below), and
if such Former Onbank Plan Participant's Protected Balance is greater than
$5,000, he shall be eligible to elect to receive an amount of his Account equal
to his Protected Balance in any form of benefit described in Article 9 hereof,
or in (i) a lump sum payment as of any Revaluation Date which date is not later
than 13 months following the Former Onbank Plan Participant's termination of
service; (ii) in annual installments over a period not to exceed 20 years; (iii)
partially in a lump sum in accordance with (i) and partially in annual
installment payments over a fixed period not to exceed 10 years; or (iv) to the
extent of his Franklin Transfer Account, if any, in monthly, quarterly,
semiannual or annual installments over a period certain.
(2) The period over which such installment payments
are to be made shall in no event exceed the life expectancy of the Former Onbank
Plan Participant or the joint and last survivor life expectancy of the Former
Onbank Plan Participant and the Beneficiary designated by him. The life
expectancy of the Former Onbank Plan Participant or the joint life and last
survivor expectancy of the Former Onbank Plan Participant and his designated
Beneficiary shall be determined only once, as of the Revaluation Date on which
the installment payments are scheduled to commence on the basis of Tables V and
VI, as applicable, of Section 1.72-9 of the Treasury Regulations.
(3) A Former Onbank Plan Participant who has elected
a Distribution under Section 17.06(b)(1)(i), (ii) or (iii) hereof may request a
change in his method of payment.
Section 17.07. Protected Benefit Options for Former Onbank ESOP
Participants. Notwithstanding any other provisions of this Plan, a Former Onbank
ESOP Participant shall be eligible to elect to receive an amount of his Account
up to his Protected Balance (a) in any form described in Article 9 hereof, or,
(b) if his Protected Balance exceeds $5,000 and he requests on a form provided
by the Committee and filed with the Committee no later than 15 days prior to the
date on which his employment with the Employer terminates, in substantially
equal annual installments (1) over a period of five years, or (2) a shorter or
longer period than in (1) above, which period is less than the lesser of (A) 20
years, or (B) the life expectancy of the Former Onbank ESOP Participant and his
Beneficiary or, if his Beneficiary is a natural person, the joint life and last
survivor expectancy of the Former Onbank ESOP Participant and his Beneficiary.
Section 17.08. Protected Benefit Options for Former FNBR Plan
Participants.
(a) Notwithstanding any other provision of this Plan, if the
Employer sells substantially all the assets used in a trade or business or sells
a subsidiary, a Former FNBR Plan Participant who continues employment with the
acquiring corporation may
55
elect to receive a lump sum Distribution of an amount of his Account equal to
that portion of his Protected Balance attributable to elective deferrals (as
defined in Code Section 402(g)), to the extent permitted under Code Section
401(k)(10).
(b) Notwithstanding any other provision of this Plan other
than Sections 9.03(c) through (g) hereof, if a Former FNBR Plan Participant
terminates from service for any reason (including on account of Disability), and
if such Former FNBR Plan Participant's Protected Balance is greater than $5,000,
he (or his Beneficiary if the Participant had not made a Distribution election
prior to his death) shall be eligible to elect to receive a Distribution of an
amount of the Participant's Account equal to his Protected Balance at any time
prior to the date Distribution is required pursuant to Sections 9.03(c) through
(f) hereof, in (i) a lump sum, (ii) monthly, quarterly or annual installments
(including in the form of a nontransferable annuity contract) over a fixed and
reasonable period not to exceed the life expectancy of the Participant or the
joint life and last survivor expectancy of the Participant and his Beneficiary,
which installments may be accelerated at any time upon the written election of
the Participant (or, if applicable, his Beneficiary), or (iii) any combination
of (i) and (ii) above. Except in the case of a surviving spouse, a Beneficiary's
election under the preceding sentence is subject to any restrictions designated
by the Participant in writing and not revoked at the time of his death. For
purposes of Sections 9.03(e) and (f) hereof, the Committee shall redetermine the
life expectancy of the Participant and/or, if applicable, his spouse, upon
written request.
Section 17.09. Protected Benefit Options for Former Keystone Plan
Participants.
(a) Notwithstanding any other provision of this Plan, a
Former Keystone Plan Participant shall be eligible to elect to receive an amount
of his Account up to his Protected Balance as an in-service withdrawal as
described in Article 7 hereof or as described below:
(1) In-service withdrawal once each Plan Year of all
or part of the Former Keystone Plan Participant's after-tax contributions in the
following order: (i) Prior Voluntary Employee Account (as defined in the
Keystone Plan); and (ii) Voluntary After-Tax Contributions (as defined in the
Keystone Plan.
(2) In-service withdrawal after attainment of age
59 1/2 off up to 100% of the Former Keystone Plan Participant's Protected
Balance. A Former Keystone Plan Participant may elect to make only two
withdrawals under this Section 17.09(a)(2) (and the predecessor provision in the
Keystone Plan) and may elect to make a withdrawal under this Section 17.09(a)(2)
only one time in any Plan Year.
(b) If a Former Keystone Plan Participant's Protected
Balance exceeds $5,000, deferral of Distribution of his Protected Balance until
his Required Beginning Date.
Section 17.10. Repayment of Cash-out.
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(a) If, upon termination of service with an employer that
participated in a Merged Plan, a Former Merged Plan Participant received a
distribution from his account thereunder when he was less than 100 percent
vested in his account and forfeited his nonvested account balance, and if the
Former Merged Plan Participant then is employed by the Employer before he incurs
five consecutive one-year Breaks in Service, his forfeited account balance shall
be restored to him if he repays to the Plan the full amount of the distribution
attributable to employer contributions before the earlier of (1) five years
after the date on which the Former Merged Plan Participant is employed by the
Employer, or (2) the date on which the Former Merged Plan Participant incurs
five consecutive one-year Breaks in Service following the distribution.
(b) If, upon termination of service with an employer that
participated in a Merged Plan, a Former Merged Plan Participant who was 0
percent vested in his account under a Merged Plan was deemed to have received a
distribution of his vested account balance and forfeited his nonvested account
balance, his forfeited account balance shall be restored to him if he is
employed by the Employer before he incurs five consecutive one-year Breaks in
Service.
(c) For purposes of (a) and (b) above ((a) only in the case
of the FNBR Plan), (i) the term "Merged Plan" means the Citizens Plan, the FNBR
Plan, the Onbank Plan or the Statewide Plan, and (ii) the term "Break in
Service" shall have (1) the same meaning as assigned such term in the Citizens
Plan, in the case of a Former Citizens Plan Participant; (2) the same meaning
assigned such term in the FNBR Plan, in the case of a Former FNBR Plan
Participant; (3) the same meaning as assigned such term in the Statewide Plan,
in the case of a Former Statewide Plan Participant; or (4) the same meaning as
the term "One Year Period of Severance" in the Onbank Plan, in the case of a
Former Onbank Plan Participant.
Section 17.11. Preservation of Code Section 411(d)(6) Benefits.
Notwithstanding any other provision of the Plan, the Plan shall preserve all
applicable optional forms of benefits available under a Merged Plan with respect
to any Protected Balance transferred from the Merged Plan to this Plan to the
extent required by Code Section 411(d)(6).
ARTICLE 18
ESOP PROVISIONS
Section 18.01. General. The provisions of this Article 18 shall apply
solely to the ESOP Component of the Plan.
Section 18.02. Right to Distribution of M&T Stock. A Participant
entitled to a Distribution shall have the right to elect to receive such
Distribution in the form of M&T Stock. If a Participant elects a Distribution in
the form of M&T Stock, such election shall be treated as an election by the
Participant (i) to transfer the balance in the Participant's Account invested in
the Money Market Account to the M&T Bank Corporation Stock Fund, and (ii) to
receive such Distribution from the ESOP Component of the Plan in the form of M&T
Stock in accordance with Section 9.04(b) hereof.
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Section 18.03. Dividends on M&T Stock. Subject to Section 18.07(b)(2)
hereof, a Participant may elect, in the time and in the manner prescribed by the
Committee, to receive a distribution of dividends paid on shares of M&T Stock
held in the Trust and allocated to the Participant's Account. Such dividends
shall be distributed to the Participant no later than 90 days after the end of
the Plan Year in which they are paid to the Trust. If a Participant elects not
to take a distribution of dividends, such dividends shall be reinvested in the
M&T Bank Corporation Stock Fund.
Section 18.04. Diversification. A Participant may elect, pursuant to
Section 6.02(d) hereof, to transfer all or part of his Account invested in the
M&T Bank Corporation Stock Fund to any other Investment Fund. Section 6.02(d)
hereof is intended to satisfy the diversification requirements of Code Section
401(a)(28).
Section 18.05. Voting Rights.
(a) On any matter which involves the voting of the M&T Stock
held in the Trust, each Participant shall have the right to direct the Committee
as to the manner in which it is to direct the Trustee to vote M&T Stock
allocated to the portion of his Account invested in the M&T Bank Corporation
Stock Fund. The Committee shall direct the Trustee to vote M&T Stock held in the
Trust in accordance with such directions. As to M&T Stock for which the
Committee does not receive timely and proper directions (including unallocated
shares), the Committee shall direct the Trustee to vote such M&T Stock in the
same proportion as it directs the Trustee to vote M&T Stock as to which timely
and proper directions are received.
(b) The Committee shall promptly distribute to all
Participants all or a part of whose Accounts are invested in the M&T Bank
Corporation Stock Fund all notices of M&T Bank Corporation shareholder meetings
and any other notices, reports or materials distributed by M&T Bank Corporation
to its shareholders. On any matter with respect to which a Participant is
entitled to direct the Committee hereunder, the Committee shall solicit such
directions by distributing to each Participant to whose Account M&T Stock has
been allocated, such information as shall be distributed to shareholders of M&T
Bank Corporation generally in connection with the matter, together with any
additional information the Committee deems appropriate in order for each
Participant to give proper directions to the Committee. The directions received
from any Participant shall be held in confidence by the Committee and the
Trustee and shall not be individually divulged or released to any person,
including officers or employees of the Employer. Any proper and reasonable costs
incurred in connection with obtaining directions shall be treated as expenses of
the Committee for the purposes of Section 11.03 hereof.
Section 18.06. Put Rights. If M&T Stock, when distributed to a
Participant or Beneficiary ("Distributee"), is (i) not a Publicly Traded
Security, (ii) subject to trading limitations under any federal or state
securities laws, any regulations thereunder, or any agreement affecting the M&T
Stock which would make the M&T Stock not as freely tradable as stock not subject
to such restrictions, or (iii) is a Publicly Traded Security without restriction
but ceases to be so traded within 12 months after distribution, such
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M&T Stock shall be subject to a put option to sell any or all such M&T Stock to
the Corporation. The put option may be exercised by the Distributee and shall be
subject to the terms and conditions of this Section 18.06 as follows:
(a) Exercise of Option. The put option exercise period shall
commence on the day following the date on which the M&T Stock is Distributed to
the Distributee and shall end 60 days thereafter. If the Distributee does not
exercise the put option during this first put option exercise period, the
Distributee may exercise the put option in the next following Plan Year during
the subsequent 60-day period beginning on the day after the Committee mails
written notice to the Distributee of the then most recent determination of the
fair market value of the M&T Stock.
(b) Terms of Option. Unless extended as provided in
paragraph (c) or (f) below, each put option shall expire at 12:00 midnight
(Eastern Standard or Eastern Daylight Time, whichever shall be in effect at the
Corporation's principal office) on the day after the applicable 60-day put
option exercise period expires. The option price shall be the fair market value
of the M&T Stock, as determined in good faith and based on all relevant factors
for determining the fair market value of M&T Stock on the date of valuation, by
the Trustee. The date of valuation shall be the Anniversary Date immediately
preceding the date of exercise of the option provided, however, that the date of
valuation with respect to a transaction between the Plan and a Participant who
is a Disqualified Person on the date of such transaction shall be the date of
the transaction. If the Distributee received the M&T Stock in a Distribution of
the Participant's entire Account, then the Corporation may elect to pay the
option price in equal annual installments over a period not longer than five
years from the date on which the option is exercised. If the Corporation so
elects, it shall pay interest on the unpaid balance at the M&T Bank prime rate
on the date of sale, plus two percentage points. Any other terms of sale shall
be determined by agreement between the Corporation and the Distributee. The
Distributee shall in any event be provided with adequate security for the
payment of any amounts deferred beyond 30 days from the exercise of the put
option.
(c) Obligation to Purchase Limited. The Corporation shall
not be required to purchase M&T Stock pursuant to a put option under this
Section 18.06 to the extent that, at the time the option is exercised, the
purchase would be prohibited by applicable federal or state law. If a
Distributee is unable to exercise his option during any 60-day put option
exercise period because the Corporation is prohibited by applicable federal or
state law from honoring the option, then the put option exercise period shall be
postponed until the prohibition on the option transaction has been removed.
Under no circumstances shall the Trustee be bound to purchase M&T Stock pursuant
to a put option under this Section 18.06. If, however, a purchase by the Trustee
is not then prohibited by law, and would not in the opinion of the Trustee,
violate any fiduciary obligation imposed upon it, then the Trustee may, with the
consent of the Corporation, elect to assume the rights and obligations of the
Corporation under the put option.
(d) Nontransferability. The put option granted under this
Section 18.06 may not be transferred or assigned.
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(e) Certain Arrangements Barred. Neither the Corporation nor
the Trustee shall enter into any arrangements involving the Plan which would
provide for the issuance of put options by the Plan other than as specified in
this Section 18.06. Furthermore, neither the Corporation nor the Trustee shall
be obligated to purchase M&T Stock except as specifically provided herein.
(f) Notice of Grant of Certain Put Options. If a put option
is granted because M&T Stock was a Publicly Traded Security without restriction
when Distributed but subsequently ceased to be a Publicly Traded Security, then
the first put option exercise period during which the option is exercisable
shall begin on the date on which the Distributee is notified that the M&T Stock
has ceased to be a Publicly Traded Security.
(g) Payment. Payment for the purchase of M&T Stock under
this Section 18.06 shall occur on a date specified by the Corporation or
Trustee, but not more than 30 days after a put option is exercised. If the
Corporation or Trustee elects to pay for the M&T Stock in annual installments,
the first annual installment toward the Trustee's or Corporation's purchase of
M&T Stock under this Section 18.06 shall be due no later than 30 days after the
put option is exercised.
(h) Definitions. For purposes of this Section 18.06, the
term (i) "Publicly Traded Security" shall mean a security listed on a national
securities exchange registered under Section 6 of the Securities Exchange Act of
1934 or that is quoted on a system sponsored by a national securities
association registered under Section 15A(b) of the Securities Exchange Act; and
(ii) "Disqualified Person" shall mean a "disqualified person" within the meaning
of Code Section 4975(e)(2).
Section 18.07. Acquisition Loans. (a) Definition. An "Acquisition Loan"
shall mean any loan or extension of credit, such as a purchase money security
interest, which is made to the Plan and which either is made or is guaranteed by
the Corporation or by a Disqualified Person (as defined in Section 18.06(h)
hereof) and which meets the following requirements:
(1) Primary Benefit. The Acquisition Loan shall be
for the primary benefit of Participants and their Beneficiaries. This
requirement shall not be met unless, at the time that the Acquisition Loan is
made, both (i) the interest rate for the Acquisition Loan and the price of the
M&T Stock to be acquired with the Acquisition Loan proceeds are not such that
Plan assets might be diminished, and (ii) the terms of the Acquisition Loan,
whether or not between independent parties, are at least as favorable to the
Plan as the terms of a comparable loan resulting from arm's length negotiations
between independent parties.
(2) Use of Loan Proceeds. Within a reasonable time
after receipt of the Acquisition Loan proceeds, the Trustee shall use the
proceeds to acquire M&T Stock, to repay such Acquisition Loan or to repay a
prior Acquisition Loan. The proceeds of the Acquisition Loan shall not be used
for any purpose or purposes other than as set forth in the preceding sentence.
M&T Stock acquired with the proceeds of the
60
Acquisition Loan shall not be subject to any options or buy-sell or similar
arrangements or restrictions while held by and distributed from the Plan.
(3) Liability and Collateral. The Acquisition Loan
shall be without recourse against the Plan. The only assets which may be used as
collateral for the Acquisition Loan are M&T Stock acquired with the proceeds of
the Acquisition Loan or used as collateral on a prior Acquisition Loan repaid
with the proceeds of the current Acquisition Loan. The only assets of the Plan
to which any person entitled to payment under the Acquisition Loan shall have
any right are (i) the collateral of the Acquisition Loan, (ii) Contributions
(other than in the form of M&T Stock) made under the Plan to meet the Plan's
obligations under the Acquisition Loan, and (iii) earnings attributable to the
collateral and to the investment of such Contributions.
(4) Default. In the event of a default on the
Acquisition Loan, the value of Plan assets transferred in satisfaction of the
Acquisition Loan shall not exceed the amount of the default. Any Acquisition
Loan made to the Plan by a Disqualified Person, but not including an Acquisition
Loan made to the Plan by an independent person and merely guaranteed by a
Disqualified Person, shall provide that, upon default, Plan assets shall be
transferred only upon and to the extent of the failure of the Plan to meet the
payment schedule of the loan.
(5) Rate of Interest. The rate of interest of the
Acquisition Loan shall not be in excess of a reasonable rate of interest,
considering all relevant factors including the amount and duration of the
Acquisition Loan, the security and guarantee (if any) involved, the credit
standing of the Plan and the guarantor (if any) and the interest rate then
prevailing for comparable loans. A variable interest rate may be deemed to be
reasonable when the foregoing factors are considered.
(6) Release from Encumbrance. The Acquisition Loan
shall provide for the release from encumbrance of Plan assets used as collateral
for the Acquisition Loan according to one of the following formulas, as
specified by the Committee:
(i) the number of shares of M&T Stock
released for each Plan Year during the term of the Acquisition Loan shall equal
the number of shares of such Stock held immediately before release for the
current Plan Year, multiplied by the amount of principal and interest paid for
the Plan Year, divided by the amount of principal and interest both paid for the
current Plan Year and remaining to be paid in all future Plan Years. The number
of future Plan Years under the Acquisition Loan must be definitely ascertainable
and shall not take into account any possible extensions or renewal periods. In
computing the interest due in all future years on an Acquisition Loan with a
variable interest rate, the interest rate applicable at the end of the current
Plan Year shall be used. If the collateral for a Acquisition Loan consists of
more than one class of M&T Stock, the number of shares of stock of each class to
be released in any Plan Year shall be determined by applying the same fraction
to each class; or
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(ii) the number of shares of M&T Stock to be
released from encumbrance may be determined solely with reference to principal
payments if (A) the Acquisition Loan provides for annual payments of principal
and interest at a cumulative rate not less rapid at any time than level annual
payment of such amounts for ten years, (B) the interest portion of any payment
is disregarded only to the extent that it would be deemed to be interest under
standard loan amortization tables, and (C) the sum of the expired duration of
the Acquisition Loan and the period of any renewal or extension or the duration
of a new Acquisition Loan does not exceed ten years.
(7) Term of Loan. The term of the Acquisition Loan
shall be specific and shall not be payable on the demand of any person except in
the case of default.
(b) Accounts and Allocations of Contributions.
(1) Suspense Account. Notwithstanding any provisions
in Article 6 hereof to the contrary, the Trustee shall maintain a separate
Suspense Account to which it shall add all M&T Stock acquired with the proceeds
of an Acquisition Loan. All M&T Stock held in the Suspense Account shall be
assets of the Plan. At the time an Acquisition Loan is made, the Committee shall
inform the Trustee whether it is to release M&T Stock from the Suspense Account
according to the formula set forth in (a)(6) above. At the end of each Plan Year
the Trustee shall release such shares of M&T Stock from the Suspense Account in
accordance with the applicable formula and shall withdraw such shares of M&T
Stock from the Suspense Account. Immediately upon releasing M&T Stock from the
Suspense Account, the Trustee shall allocate to the Participants' Accounts, the
shares and fractions of shares withdrawn from the Suspense Account (subject to
the limitations set forth in Article 6.03 hereof) in the same ratio that each
Participant's Compensation bears to the total of all Participants' Compensation.
(2) Earnings. The Trustee shall allocate the
earnings, if any, received with respect to M&T Stock held in the Suspense
Account acquired with the proceeds of an Acquisition Loan as earnings of the
Plan except to the extent that such earnings are used to repay the Acquisition
Loan or are collateral for the Acquisition Loan. If the Plan receives cash
dividends with respect to M&T Stock held in the Suspense Account, the Trustee
may, as directed by the Committee, use such cash dividends to make payments on
the Acquisition Loan. If the Plan receives cash dividends with respect to M&T
Stock allocated to a Participant's Account acquired with the proceeds of an
Acquisition Loan while the Plan remains obligated to make payments on the
Acquisition Loan, the Trustee may, as directed by the Committee, use such cash
dividends to make payments on the Acquisition Loan, provided, however, that the
Trustee shall allocate to such Participant's Account M&T Stock with a fair
market value at least equal to the amount of such cash dividend which, but for
the repayment of the Acquisition Loan, would have been allocated to such
Participant. If the cash dividends are not used to make payments on an
Acquisition Loan, the cash dividends shall be distributed to the Participant or
credited to the Participant's Account as described in Section 18.03 hereof.
Notwithstanding the foregoing, no cash dividend on M&T Stock shall be applied to
make payments on an Acquisition Loan unless the proceeds of such
62
Acquisition Loan were used to (i) acquire the M&T Stock with respect to which
such cash dividend was paid, or (ii) repay another Acquisition Loan the proceeds
of which were used to acquire such M&T Stock.
(c) Valuation. For the purposes of this Section 18.07, the
valuation of all M&T Stock shall be the fair market value of the shares, as
determined in good faith and based on all relevant factors for determining the
fair market value of securities, on the date of valuation. In the case of a
transaction between the Plan and a Disqualified Person, the date of valuation
shall be the date of the transaction. For all other purposes relating to
allocation, the date of valuation shall be the most recent Anniversary Date.
(d) Distribution. If M&T Stock acquired with the proceeds of
an Acquisition Loan consists of more than one class of securities, each
Distributee (as defined in Section 18.06 hereof) shall receive substantially the
same proportion of each class as such securities are held by the Trust Fund. The
provisions of Article 9 hereof shall govern the form of Distribution.
(e) Termination of the Plan. If this Plan ever ceases to be
an employee stock ownership plan, all M&T Stock which has been acquired with
proceeds of an Acquisition Loan shall continue, after the Acquisition Loan is
paid, to be subject to Section 18.06 hereof.
(f) Preemption. Any provision herein to the contrary
notwithstanding, the provisions of this Section 18.07 shall govern all
transactions relating to Acquisition Loans and M&T Stock acquired with the
proceeds of such Loans.
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