EX-10.2



 





EXHIBIT 10.2




FIRST AMENDMENT OF

SUPPLEMENTAL DEFERRED COMPENSATION AGREEMENT




          This First Amendment of the Supplemental Deferred Compensation Agreement is made and
entered into effective August 1, 2006 by and between Manufacturers and Traders Trust Company
(hereinafter referred to as the “Company”) and Brian J. Hickey, an individual residing at 14
Stefenage Court, Pittsford, New York 14534 (hereinafter referred to as “Executive”).




          WHEREAS, the parties hereto entered into that certain Supplemental Deferred Compensation
Agreement dated July 21, 1994 (the “Agreement”); and




          WHEREAS, the parties wish to amend the Agreement to clarify and reflect the mutual
understanding and intentions of the parties with respect to the Agreement and to comply with the
requirements of the Internal Revenue Code as amended by the American Jobs Creation Act of 2004;




          NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants herein
contained, the parties hereto agree to amend the Agreement as follows:





	 	1.	 	Definitions. Except as expressly stated otherwise herein, capitalized terms in
this First Amendment shall have the meanings given to them in the Agreement.
	 
	 	2.	 	Amendments.






(a) Section 1.1 of the Agreement shall be amended by deleting the words “First Empire State
Corporation Retirement Plan” and by substituting therefor “M&T Bank Corporation Pension
Plan”




(b) Section 1.2 of the Agreement shall be amended by deleting it in its entirety and by
substituting a new Section 1.2 to read as follows:




	 	1.2	 	“Average Annual Compensation” and “Compensation” shall have the
same meanings accorded to such words under the provisions of the Retirement
Plan as in effect on the Executive’s Separation from Service and without regard
to the dollar amount of annual compensation limitation under Section 401(a)(17)
of the Code, as in effect and adjusted from time to time under such section.






(c) Section 1.4 of the Agreement is amended by adding after the term “Retirement Plan” the
following words: “determined under the provisions of the Retirement Plan as in effect on
January 1, 2006”.




(d) Section 1 shall be amended by adding at the end thereof new subsections 1.6, 1.7, 1.8,
1.9, 1.10, 1.11, 1.12, and 1.13 to read as follows:



 









 






	 	1.6	 	“Benefit” shall mean the monthly supplemental retirement benefit payable
to the Executive as provided in Sections 2.1 and 2.2, of this Agreement or
the Supplemental Death Benefit.
	 
	 	1.7	 	“Benefit Commencement Date” shall mean (a) the date on which the
Executive elects to receive his Benefit or (b) in the case of the Surviving
Spouse, the date on which the Surviving Spouse’s Supplemental Death Benefit
becomes payable under this Agreement.
	 
	 	1.8	 	“Code” shall mean the Internal Revenue Code of
1986, as amended.
	 
	 	1.9	 	“Separation from Service” shall mean Executive’s
separation from service (within the meaning of Section 409A of the
Code) with the Company and all entities which would be considered a
single employer with the Company under Section 414(b) and (c) of the
Code.
	 
	 	1.10	 	“Disability” or “Disabled” shall mean, that the
Executive is determined (a) to be totally disabled by the federal
Social Security Administration, or (b) to have a “disability” under the
Company’s long-term disability plan, provided that the definition of
the term “disability” under such long-term disability plan satisfies
the requirements for disability under Section 409A of the Code.
	 
	 	1.11	 	“Earliest Retirement Age” shall mean (a) age 65,
if the Executive is credited with less than 10 years of Vesting Service
under the Retirement Plan or (b) age 55, if the Executive is credited
with at least 10 years of Vesting Service under the Retirement Plan.
	 
	 	1.12	 	“Surviving Spouse” shall mean the spouse (as
defined and interpreted under the Retirement Plan) to whom the Executive
was married for at least 12 months at the time of the Executive’s
death.
	 
	 	1.13	 	“Supplemental Death Benefit” shall mean an
annual annuity payable over the lifetime of a Surviving Spouse upon the
death of the Executive prior to Executive’s commencement of his Benefit
under this Agreement.






(e) The first sentence of Section 2.1 of the Agreement is amended by deleting the words
“determined under the provisions of the Retirement Plan”.




(f) Section 2.1 of the Agreement is amended by deleting the last sentence thereof and by
substituting a new sentence to read as follows:




“Commencement and payment of (but not eligibility for) a monthly benefit under this
Agreement shall be subject to the Executive’s election pursuant to Section 2.3 hereof.”




(g) The first sentence of Section 2.2 of the Agreement is amended by deleting the words
“determined under the provisions of the Retirement Plan” from clause (a).



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(h) Section 2.2 of the Agreement is amended by deleting the last sentence thereof and by
substituting a new sentence to read as follows:




“Commencement and payment of (but not eligibility for) a monthly benefit under this
Agreement shall be subject to the Executive’s election pursuant to Section 2.3 hereof.”




(i) Amend Section 2 by adding new subsections 2.3, 2.4, 2.5, 2.6, and 2.7 to read as
follows:




	 	2.3	 	Payment Elections 
	 
	 	(a)	 	Not later than December 31, 2006, the Executive
shall make an election under (b) or (c) below regarding the date and
form of payment of his Benefit. The election shall apply only with
respect to Compensation earned after the date on which the election is
made to the extent required by Section 409A of the Code. The election
made under this Section 2.3 shall be made in the manner prescribed by
the Company.
	 
	 	(b)	 	The Executive shall elect as his Benefit
Commencement Date either (i) the date on which the Executive has a
Separation from Service or becomes Disabled, whichever is earlier, or
(ii) the later of the date on which the Participant (A) attains
Earliest Retirement Age, or (B) has a Separation from Service or
becomes Disabled, whichever is earlier.
	 
	 	(c)	 	The Executive shall elect to have his Benefit
paid as either (i) a Single Life Annuity, (ii) a Five-, Ten- or
Fifteen-Year Certain Life Annuity, or (iii) a Joint and Survivor
Annuity.
	 
	 	(d)	 	Subject to Sections 2.4 and 2.5 hereof, the
Executive’s elections under this Section 3.2 shall be irrevocable and
may not be changed, except that, if the Executive elects an annuity
form of payment, then prior to his Benefit Commencement Date, the
Executive may revoke his annuity election and make a new election for a
different actuarially equivalent (as defined in the Retirement Plan)
annuity.
	 
	 	2.4	 	Mandatory Delay in Benefit Payments.
Notwithstanding Section 2.3 hereof, to the extent required by Section
409A of the Code, the Company shall delay payment of the Benefit of the
Executive if the Executive is a “specified employee” (as defined below)
until the earlier of (a) the date that is six months after the date of
any termination of employment or other event that constitutes the
Executive’s Separation from Service, or (b) the date of the Executive’s
death. The aggregate amount of payments otherwise payable during this
delay period (plus interest thereon at the Applicable Federal Rate,
provided that such interest does not cause this Agreement to violate
Section 409A of the Code) shall be payable to the Executive as soon as
practicable after the expiration of the delay period. For purposes of
this Section 2.4, the term “specified employee” shall have the same
meaning as under Section 409A of the Code.




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	 	2.5	 	Discretionary Delay in Payments.
Notwithstanding Section 2.3 hereof, the Company may delay payment of
any benefit provided under this Agreement by reason of any event(s) or
condition(s) permitted under Section 409A of the Code, including
without limitation, delays relating to (a) nondeductible compensation
payments under Section 162(m) of the Code; (b) violations of loan
agreements; and (c) violations of federal securities law or other
applicable laws.
	 
	 	2.6	 	Pre-2007 Benefit Commencement and Payment
Form. If the Executive begins to receive pension benefits, or a
Surviving Spouse begins to receive pre-retirement survivor benefits
under the Retirement Plan prior to January 1, 2007, the Benefit
Commencement Date of the Executive’s Benefit or the Surviving Spouse’s
Supplemental Death Benefit hereunder shall be the date on which the
Executive or the Surviving Spouse begins receiving pension or
pre-retirement survivor benefits under the Retirement Plan, and the
form of the payment of the Executive’s Benefit or the Supplemental
Death Benefit hereunder shall be the same form of payment as the
Executive’s or Surviving Spouse’s pension or 50% pre-retirement
survivor benefit under the Retirement Plan, respectively.
	 
	 	2.7	 	Post-2006 Benefit Commencement Date and
Payment Form.






	 	(a)	 	If the Executive does not begin to
receive pension benefits under the Retirement Plan before January 1,
2007, the Executive’s Benefit shall be paid or begin to be paid in
accordance with the Executive’s payment elections under Section 2.3.
	 
	 	(b)	 	If a Surviving Spouse does not begin to
receive pre-retirement survivor benefits under the Retirement Plan
before January 1, 2007, the Benefit Commencement Date of the
Supplemental Death Benefit shall be the later of the date (i) on
which the Executive attains Earliest Retirement Age (or would have
attained Earliest Retirement Age assuming that the Executive
terminated employment on the date of his death and survived until
such age) or (ii) of the Executive’s death. The form of the
Supplemental Death Benefit shall be in the same form as the 50%
pre-retirement survivor benefit under the Retirement Plan.
	 
	 	(c)	 	The Benefit payable under this Agreement
shall be paid or begin to be paid on the Executive’s Benefit
Commencement Date or as soon as practicable thereafter, but not
later than (i) December 31 of the calendar year in which the Benefit
Commencement Date occurs, or (ii) the 15th day of the
third calendar month following the Benefit Commencement Date.






(j) Section 3.2 of the Agreement shall be amended by inserting prior to the word “Board” the
following words “Nomination, Compensation and Governance Committee of the”.




(k) Amend Section 3 of the Agreement by adding a new section 3.7 to read as follows:



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	 	3.7	 	Compliance with Section 409A of the
Code. This Agreement is intended to comply with the requirements
of Section 409A of the Code, and shall be administered and interpreted
in accordance with its requirements. If any provision of the Agreement
conflicts with the requirements of Section 409A of the Code, the
requirements of Section 409A shall supersede any such provisions.






	 	4.	 	In all other respect the provisions of the Agreement shall remain unchanged.





     IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of the day and year
first written above.



	 	 	 	 	 	 	 
	 	 	MANUFACTURERS AND TRADERS TRUST COMPANY  
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jeffrey A. Long	 	 
	 

	 	 	 	
 	 	 
	 

	 	 	 	Jeffrey A. Long, Group Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Brian J. Hickey	 	 
	 

	 	 	 	
 	 	 
	 

	 	 	 	Brian J. Hickey	 	 






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