EX-10.1



 





EXHIBIT 10.1




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 Robert E. Sadler, an individual residing at 35 New Amsterdam
Avenue, Buffalo, New York 14216 (hereinafter referred to as “Executive”).



     WHEREAS, the parties hereto entered into that certain Supplemental Deferred Compensation
Agreement dated March 7, 1985 (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 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 “Manufacturers
and Traders Trust Company Retirement Plan and by substituting therefor “M&T Bank Corporation
Pension Plan”.




     (b) Section 1.3 of the Agreement shall be amended by deleting it in its entirety and by
substituting a new Section 1.3 to read as follows:




	 	1.3	 	“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 December
31, 2005 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 shall be amended by adding at the end thereof new subsections 1.8,
1.9, 1.10, 1.11, 1.12 and 1.13 to read as follows:




	 	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	 	“Surviving Spouse’s Benefit Commencement Date” shall mean the date on
which the Surviving Spouse’s Supplemental Death Benefit becomes payable
under this Agreement.
	 
	 	1.11	 	“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.
	 
	 	1.12	 	“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 as provided in Sections 3.4 and 3.5 of this
Agreement.
	 
	 	1.13	 	“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.






     (d) Section 2.1 shall be amended by deleting the words “termination of employment” in
each place those words appear and by substituting the term “Separation from Service”.




     (e) Section 2.2 shall be amended by deleting the words “termination of employment” in
each place those words appear and by substituting the term “Separation from Service”.




     (f) Section 2.3 shall be amended by deleting the words “termination of employment” and
by substituting the term “Separation from Service”.




     (g) Section 3 of the Agreement shall be amended by deleting it in its entirety and by
substituting a new Section 3 to read as follows:



     3. METHODS OF PAYMENT




     3.1 Payment Elections.




	 	(a)	 	Not later than December 31, 2006, the Executive, in lieu of receiving
his supplemental retirement benefit in the form of a single life annuity,
may make an election as to the form of payment of his benefit under (b)
below. The election made under this Section 3.1 shall be made in the
manner prescribed by the Company.
	 
	 	(b)	 	The Executive may elect to have his
benefit paid as either (i) a Five-, Ten- or Fifteen-Year Certain
Life Annuity or (ii) a Joint and Survivor Annuity. In the event of
an election under this paragraph (b) the monthly amount of the
benefit payable shall be reduced and adjusted in the same
manner as optional forms of benefit under the Retirement Plan. In
the event the Executive elects an optional form of benefit pursuant
to this




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	 	 	 	paragraph (b) a survivor benefit shall be payable under this
Agreement to the beneficiary designated by the Executive.
	 
	 	(c)	 	Subject to Sections 3.2 and 3.3 hereof,
the Executive’s elections under this Section 3.1 shall be
irrevocable and may not be changed, except that, if the Executive
elects an annuity form of payment, then prior to his termination of
employment 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.






	 	3.2	 	Mandatory Delay in Benefit Payments.
Notwithstanding Section 3.1 hereof, to the extent required by Section
409A of the Code, the Company shall delay payment to the Executive of
any benefit provided under this Agreement 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 3.2, the
term “specified employee” shall have the same meaning as under Section
409A of the Code.
	 
	 	3.3	 	Discretionary Delay in Payments.
Notwithstanding Section 3.1 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.
	 
	 	3.4	 	Pre-2007 Commencement of Supplemental Death
Benefit. If the Surviving Spouse begins to receive pre-retirement
survivor benefits under the Retirement Plan prior to January 1, 2007,
the Surviving Spouse shall be paid under this Agreement a Supplemental
Death Benefit hereunder beginning on the date on which the Surviving
Spouse begins receiving pension or pre-retirement survivor benefits
under the Retirement Plan, and the form of the payment of the
Supplemental Death Benefit hereunder shall be in the same form of
payment as the Surviving Spouse’s 50% pre-retirement survivor benefit
under the Retirement Plan.
	 
	 	3.5	 	Post-2007 Commencement of Supplemental
Death Benefit. A Supplemental Death Benefit shall be payable under
this Agreement to the Surviving Spouse as follows:






	 	(a)	 	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
Surviving Spouse’s 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




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	 	 	 	Executive terminated employment on the date of his death and survived
until such age) or (ii) of the Executive’s death.
	 
	 	(b)	 	The Supplemental Death Benefit payable
under this Section 3.5 shall be paid or begin to be paid on the
Surviving Spouse’s Benefit Commencement Date or as soon as
practicable thereafter, but later than the later of (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.
	 
	 	(c)	 	The form of payment under this Section
3.5 shall be in the same form of payment as the Surviving Spouse’s
50% pre-retirement survivor benefits under the Retirement Plan.






     (h) Section 4.2 of the Agreement shall be amended by inserting prior to the word
“Board” the following words “Nomination, Compensation and Governance Committee of
the”.




     (i) Amend Section 4 of the Agreement by adding a new Section 4.7 to read as follows:




	 	4.7	 	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/ Stephen J. Braunscheidel
 	 
	 	 	Stephen J. Braunscheidel, Executive Vice President 	 
	 	 	 	 
	 
	 	 	 
	 	 	/s/ Robert E. Sadler
 	 
	 	 	Robert E. Sadler 	 
	 	 	 	 
	 





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