Exhibit 10.8
SUPPLEMENTAL DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT, entered into this 21st day of July, 1994 by and between
Manufacturers and Traders Trust (hereinafter referred to as the "Company") and
Xxxxx X. Xxxxxx, an individual residing at 00 Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX
00000 (hereinafter referred to as "Executive").
WITNESSETH, THAT:
WHEREAS, Executive is presently employed by the Company in a key
executive position and possesses substantial talent, ability and unique business
experience which has been and will continue to be a great value to the Company;
and
WHEREAS, the Company desires to secure for itself the continued services
of Executive and to provide certain additional retirement benefits for Executive
in consideration of his past and future services;
IT IS NOW THEREFORE AGREED AS FOLLOWS:
1. DEFINITIONS. For purposes of this Agreement, the following terms
shall be defined as set forth in this Section 1.
1.1 "Retirement Plan" shall mean the First Empire State
Corporation Retirement Plan, as amended from time to time.
1.2 "Average Annual Compensation" and "Compensation" shall have
the same meanings accorded to such words in the Retirement Plan, except that
limits imposed by Internal Revenue code Section 401(a)(17) shall not apply, and
further provided that until Executive has received Compensation for at least
five (5) consecutive calendar years, Average Annual Compensation shall be based
upon the calendar years during which Executive actually receives Compensation
(Compensation received during such years, divided by the number of such years).
1.3 "Years of Service" shall have the same meaning accorded to
such words in the Retirement Plan for vesting purposes.
1.4 "Accrued Pension Benefit" shall have the same meaning
accorded to such words in the Retirement Plan.
1.5 "Benefit Accrual Years" shall have the same meaning accorded
to such words in the Retirement Plan.
2. ELIGIBILITY FOR AND AMOUNT OF SUPPLEMENTAL RETIREMENT BENEFIT.
2.1 Termination of Employment Prior to Becoming Vested in the
Retirement Plan. Upon Executive's termination of employment with no vested
benefit under the Retirement Plan, except in the case of the Executive's
termination by the Company for fraud, dishonesty, theft, or other unlawful
actions, the Company agrees to pay Executive a monthly retirement benefit equal
in amount to an Accrued Pension Benefit determined under the provisions of the
Retirement Plan based on his Average Annual Compensation calculated as of his
date of employment termination plus five (5) additional Benefit Accrual Years.
Commencement and payment (but not eligibility for) of a monthly retirement
benefit under this Agreement shall be subject to the provisions of the
Retirement Plan.
2.2 Termination of Employment After Becoming Vested in the
Retirement Plan. Upon Executive's termination of employment with a vested
benefit under the Retirement Plan, except in the case of the Executive's
termination by the Company for fraud, dishonesty, theft, or other unlawful
actions, the Company agrees to pay Executive a monthly retirement benefit equal
in amount to the differences of (a) minus (b) where: (a) is the Accrued Pension
Benefit determined under the provisions of the Retirement Plan based on his
Average Annual Compensation calculated as of his date of employment termination
plus five (5) additional Benefit Accrual Years and (b) is the nonforfeitable
benefit
-1-
due to be paid by the Retirement Plan. Commencement and payment of (but not
eligibility for) a monthly retirement benefit under the Agreement shall be
subject to the provisions of the Retirement Plan.
3. MISCELLANEOUS PROVISIONS.
3.1 Assignment. This Agreement shall be binding upon and shall
inure to the benefit of the Company and Executive and their respective
successors and assigns, provided, however, that, except as set forth herein, no
rights of any kind under this Agreement shall, without the written consent of
the Company, be transferable or assignable by Executive or any other person, or
be subject to alienation, encumbrance, garnishment, attachment, execution or
levy of any kind, voluntary or involuntary.
3.2 Interpretation. All questions of interpretation, construction
of application arising under this Agreement shall be decided by the Board of
Directors of the Company, whose decision shall be final and conclusive upon all
persons.
3.3 Savings Clause. In the event that any provision or term of
this Agreement is finally determined by an judicial, quasi judicial or
administrative body to be void or not enforceable for any reason, it is the
agreed upon intent of the parties hereto that all other provisions or terms of
the Agreement shall remain in full force and effect and that the Agreement shall
be enforceable as is such void or non-enforceable provision or term had never
been a part hereof.
3.4 Governing Law. This Agreement is executed in and shall be
construed in accordance with and governed by the laws of the State of New York.
3.5 No Rights in Any Property of Company. The undertakings of the
Company herein constitute merely the unsecured promise of the Company to make
the payments as provided for herein. No property of the Company is or shall, by
reason of this Agreement, be held in trust for Executive, or any other person,
and neither Executive nor any other person shall have by reason of the
Agreement, any rights, title or interest of any kind in or to any property of
the Company.
3.6 Employment of Executive by Company. Nothing herein shall be
construed as an offer or commitment by the Company to continue Executive's
employment with the Company for any period of time.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as
of the day and year first above written.
MANUFACTURERS AND TRADERS TRUST
"Company"
BY /s/ Xxx X. Xxxxx
--------------------------------
/s/ Xxxxx X. Xxxxxx
--------------------------------
"Executive"
-2-
