TABLE OF CONTENTS
As filed with the Securities and Exchange Commission on February 13, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NBT Bancorp Inc.
(Exact name of registrant as specified in its charter)
Delaware | | | 6021 | | | 16-1268674 |
(State or Other Jurisdiction of Incorporation) | | | (Primary Standard Industrial Classification
Code Number) | | | (IRS Employer Identification No.) |
52 South Broad Street
Norwich, New York 13815
(607) 337-2265
(Address, including Zip Code, and Telephone
Number, including Area Code, of Registrant’s
Principal Executive Offices)
John H. Watt, Jr.
President & Chief Executive Officer
52 South Broad Street
Norwich, New York 13815
(607) 337-2265
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to:
Richard A. Schaberg, Esq.
Les B. Reese, III, Esq.
Hogan Lovells US LLP
555 Thirteenth Street, NW
Columbia Square
Washington, DC 20004
(202) 637-5600 | | | Jennifer DiBella
J. J. Cranmore
Updike, Kelly & Spellacy, P.C.
225 Asylum Street, 20th Floor
Hartford, Connecticut 06103
(860) 548-2600 |
Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after this registration statement becomes effective and upon completion of the merger described in the enclosed proxy statement/prospectus.
If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ☐
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, as amended, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | | | ☒ | | | Accelerated filer | | | ☐ |
Non-accelerated filer | | | ☐ | | | Smaller reporting company | | | ☐ |
| | | | | | Emerging growth company | | | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
Exhibit 8.1
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Hogan Lovells US LLP
Columbia Square
555 Thirteenth Street, NW
Washington, DC 20004
T +1 202 637 5600
F +1 202 637 5910
www.hoganlovells.com
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February 13, 2023
Board of Directors
NBT Bancorp Inc.
52 South Broad
Norwich, New York 13815
Ladies and Gentlemen:
We have acted as counsel to NBT Bank Inc., a Delaware corporation (“NBT”), in connection with the Agreement and Plan of Merger (the “Merger Agreement”), dated as of December 5, 2022, by and among NBT, NBT Bank, N.A., a
federally-chartered national banking association (“NBT Bank”), Salisbury Bancorp, Inc., a Connecticut corporation (“Salisbury”) and Salisbury Bank and Trust Company, a Connecticut chartered bank (“Salisbury Bank”), whereby Salisbury will merge with
and into NBT (the “Merger”) with NBT as the surviving entity. Immediately following the completion of the Merger, Salisbury Bank will merge with and into NBT Bank with NBT Bank to be the surviving bank. These transactions are more fully described
in the Merger Agreement, the Form S-4 filed in connection with the Merger and the proxy statement/prospectus contained therein, as amended or supplemented through the effective date thereof (the “Registration Statement”), and the other documents
included or described in the Registration Statement. Unless otherwise indicated, all terms used but not defined herein have the meaning ascribed to them in the Merger Agreement.1
In connection with the preparation of this opinion, we have examined and with your consent relied upon (without any independent investigation or review thereof) the following documents (including all exhibits and
schedules thereto): (1) the Merger Agreement; (2) the Registration Statement; (3) factual representations and certifications made to us by NBT and Salisbury (the “Tax Certificates”); and (4) such other instruments and documents related to the
formation, organization and operation of NBT and Salisbury or to the consummation of the Merger and the transactions contemplated thereby as we have deemed necessary or appropriate. In addition, we have reviewed the form of opinion of counsel
received by Salisbury from Updike, Kelly & Spellacy, P.C. with respect to the tax consequences of the proposed transactions (the “Updike, Kelly Opinion”).
Assumptions and Representations
In connection with rendering this opinion, we have assumed or obtained representations (and, with your consent, are relying thereon, without any independent investigation or review thereof, although we are not aware of
any material facts or circumstances contrary to or inconsistent therewith) that:
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All information contained in each of the documents we have examined and relied upon in connection with the preparation of this opinion is accurate and completely describes all material facts relevant to our opinion, all copies are
accurate and all signatures are genuine. We have also assumed that there has been (or will be by the effective time of the Merger) due execution and delivery of all documents where due execution and delivery are prerequisites to the
effectiveness thereof.
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1 All section references are to the United States Internal Revenue Code of 1986, as amended (the “Code”), unless otherwise
indicated.
Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia. “Hogan Lovells” is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells
International LLP, with offices in: Alicante Amsterdam Baltimore Beijing Birmingham Boston Brussels Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston Johannesburg London Los
Angeles Luxembourg Madrid Mexico City Miami Milan Minneapolis Monterrey Moscow Munich New York Northern Virginia Paris Perth Philadelphia Rome San Francisco São Paulo Shanghai Silicon Valley Singapore Sydney Tokyo Warsaw
Washington, D.C. Associated Offices: Budapest Jakarta Riyadh Shanghai FTZ Ulaanbaatar. Business Service Centers: Johannesburg Louisville. Legal Services Center: Berlin. For more information see www.hoganlovells.com
NBT Bancorp Inc.
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February 13, 2023
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All representations, warranties, and statements made or agreed to by NBT and Salisbury and by their managements, employees, officers, directors, and stockholders in connection with the Merger, including, but not limited to, (i) those set
forth in the Merger Agreement, (ii) those set forth in the Registration Statement, and (iii) those set forth in the Tax Certificates, are, or will be, true, complete and accurate at all relevant times.
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The Merger will be consummated in accordance with the Merger Agreement and as described in the Registration Statement (including satisfaction of all pre-closing covenants and conditions to the obligations of the parties without amendment
or waiver thereof).
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The Updike, Kelly Opinion has been concurrently delivered and not withdrawn.
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Opinion
Based upon and subject to the assumptions and qualifications set forth herein, we are of the opinion that the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code. We hereby confirm
that the discussion contained in the Registration Statement under the caption “Material U.S. Federal Income Tax Consequences of the Merger,” subject to the limitations, qualifications and assumptions described herein and therein, constitutes our
opinion of the material tax consequences.
In addition to the assumptions set forth above, this opinion is subject to the exceptions, limitations and qualifications set forth below:
1.
This opinion represents and is based upon our best judgment regarding the application of relevant current provisions of the Internal Revenue Code and interpretations of the foregoing as
expressed in existing court decisions, administrative determinations (including the practices and procedures of the United States Internal Revenue Service (the “IRS”) in issuing private letter rulings,
which are not binding on the IRS except with respect to the taxpayer that receives such a ruling) and published rulings and procedures all as of the date hereof. An opinion of counsel merely represents counsel’s best judgment with respect to the
probable outcome on the merits and is not binding on the IRS or the courts. There can be no assurance that positions contrary to our opinion will not be taken by the IRS, or that a court considering the issues would not hold contrary to such
opinion. Neither NBT nor Salisbury has requested a ruling from the IRS (and no ruling will be sought) as to any of the federal income tax consequences addressed in this opinion. Furthermore, no assurance can be given that future legislative,
judicial or administrative changes, on either a prospective or retroactive basis, would not adversely affect the accuracy of the opinion expressed herein. Nevertheless, we undertake no responsibility to advise you of any new developments in the
law or in the application or interpretation of the federal income tax laws after the effective time of the Merger.
NBT Bancorp Inc.
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February 13, 2023
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2.
This letter addresses only the specific tax opinion set forth above. This letter does not address any other federal, state, local or foreign tax consequences that may result from the Merger or
any other transaction (including any transaction undertaken in connection with the Merger).
3.
Our opinion set forth herein is based upon the description of the contemplated transactions as set forth in the Merger Agreement and the Registration Statement. If the actual facts relating to
any aspect of the transactions differ from this description in any material respect, our opinion may become inapplicable. No opinion is expressed as to any transactions other than those set forth in the Merger Agreement and the Registration
Statement or to any transaction whatsoever, including the Merger, if all the transactions described in the Merger Agreement and the Registration Statement are not consummated in accordance with the terms of the Merger Agreement and the Registration
Statement and without waiver or breach of any material provision thereof or if all of the representations, warranties, statements and assumptions upon which we relied are not true and accurate at all relevant times. In the event any one of the
statements, representations, warranties or assumptions upon which we have relied to issue this opinion is incorrect, our opinion might be adversely affected and may not be relied upon.
This opinion letter has been provided for your use in connection with the Registration Statement. We hereby consent to the use of the opinion letter as an exhibit to the Registration Statement and to the use of our
name in the “Material U.S. Federal Income Tax Consequences of the Merger” and “Legal Matters” sections of the Registration Statement. In giving the consent, we do not thereby admit that we are an “expert” within the meaning of the Securities Act of
1933, as amended.
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Sincerely yours,
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/s/ Hogan Lovells US LLP
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HOGAN LOVELLS US LLP
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Exhibit 8.2
Salisbury Bancorp, Inc.
5 Bissell Street
Lakeville, CT 06039
Re:
Tax Opinion/Registration Statement on Form S-4
Ladies and Gentlemen:
This opinion is furnished to you in connection with the Registration Statement on Form S-4, as amended (the “Registration Statement”) filed
with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”) by NBT Bancorp Inc., a federally chartered national banking association (“NBT”). The said Registration Statement contemplates the merger (the “Merger”) of Salisbury Bancorp, Inc. (“SAL”) with and into NBT
pursuant to the Agreement and Plan of Merger, dated as of December 5, 2022 by and among SAL, Salisbury Bank and Trust Company, a Connecticut chartered bank, NBT and NBT Bank, N.A., a federally-chartered national banking association (the “Merger Agreement”). At your request, and in connection with the filing of the Registration Statement, we are rendering our opinion concerning certain federal income tax consequences of the Merger.
Subject to the qualifications below, and in reliance upon the representations and assumptions described herein, we are of the opinion that the Merger will be treated for United
States federal income tax purposes as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”), and that the United States federal income tax
consequences to the holders of SAL common stock will be described in the Registration Statement under the heading, “The Merger - Material U.S. Federal Income Tax Consequences of the Merger”.
We have acted as counsel to SAL in the Merger, and for purposes of rendering this opinion we have examined and relied upon: (a) the Merger Agreement, including the
exhibits thereto; (b) the Registration Statement, including the exhibits thereto; (c) the Officer’s Certificates delivered to Updike, Kelly & Spellacy, P.C. containing certain representations of SAL and NBT relevant to this opinion (the “Representation Certificates”); and (d) such other documents as we consider relevant to our analysis. In addition, we have reviewed the form of opinion of
counsel received by NBT from Hogan Lovells US LLP with respect to the tax consequences of the proposed transactions (the “Hogan Lovells Opinion”). In examining these documents,
we have assumed the authenticity of original documents, the accuracy of copies, the genuineness of signatures, and the legal capacity of signatories. For the purposes of this opinion, we have assumed (and, with your consent, are relying
thereon, without any independent investigation or review thereof, although we are not aware of any material facts or circumstances contrary to or inconsistent therewith) that the Hogan Lovells Opinion has been
concurrently delivered and not withdrawn>
Salisbury Bancorp, Inc.
February 13, 2023
Page 2
We have assumed that all parties to the Merger Agreement (and to any other documents relied upon by us) have acted in accordance with and have complied with, and, where applicable,
will act in accordance with and will comply with the terms and covenants set forth in such documents. We have assumed that the Merger will be consummated at the Effective Time (as defined in the Merger Agreement) pursuant to the terms and
conditions set forth in the Merger Agreement, without the waiver or modification of any such terms and conditions. We have assumed that all representations contained in the Merger Agreement and the Representation Certificates are true, correct and
complete and will be true, correct and complete in all material respects at all times up to and as of the Effective Time and thereafter, were relevant, and that any representation made in any of such documents “to the best of the knowledge and
belief” of any party (or similar qualification) are correct without such qualification. We have also assumed that as to all matters for which a person or entity has represented that such person or entity is not a party to, does not have, or is not
aware of, any plan, intention, understanding, or agreement, there is no such plan, intention, understanding, or agreement.
We have not attempted to verify independently any representations made by SAL or NBT, but in the course of our representation of SAL, nothing has come to our attention that would
cause us to question the accuracy thereof.
In rendering this opinion, we have assumed that Hogan Lovells US LLP has delivered to NBT, and has not withdrawn, an opinion that is substantially similar to this one.
The conclusions expressed herein represent our best judgment as to the proper treatment of certain aspects of the Merger under the income tax laws of the United States based upon
the Code, Treasury Regulations, case law, and the rulings and guidance published by the Internal Revenue Service (“IRS”), all as in effect on the date of this opinion. No assurances can be given that such
laws, rulings and guidance will not be amended or otherwise changed after the date hereof, or that such changes will not affect the conclusions expressed herein. We undertake no responsibility to advise you of any developments after the date hereof
in the application or interpretation of the income tax laws of the United States.
Our opinion represents our judgment as to how a court would decide the issues addressed herein, but our opinion is not binding upon either the IRS or any court. Thus, no assurance
can be given that a position taken in reliance on our opinion will not be challenged by the IRS or rejected by a court.
This opinion addresses only the specific United States federal income tax consequences of the Merger set forth above. This opinion does not address the effect of the Merger as to
any non-income tax (such as estate, gift, transfer, sales and use taxes), nor does this opinion address the income tax consequences of the Merger as to any jurisdiction other than the United States (such as state, local and foreign income taxes).
This opinion does not address any transaction other than the Merger. We express no opinion regarding the tax consequences of the Merger to those shareholders of NBT that are subject to special tax rules.
Salisbury Bancorp, Inc.
February 13, 2023
Page 3
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and further consent to the use of our name in the Registration Statement in connection
with references to this opinion and the tax consequences of the Merger. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Securities and Exchange Commission thereunder.
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Very truly yours,
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/s/ Updike, Kelly & Spellacy, P.C.
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UPDIKE, KELLY & SPELLACY, P.C.
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VOTING AGREEMENT
This VOTING AGREEMENT (this “Agreement”) is dated as of December 5, 2022, by and between [_________] (the “Shareholder”)
and NBT Bancorp Inc., a Delaware corporation (“NBT”). All terms used herein and not defined herein shall have the meanings assigned thereto in the Merger
Agreement (as defined below).
WHEREAS, concurrently with the
execution of this Agreement, NBT, NBT Bank, N.A., a federally-chartered national banking association and wholly-owned subsidiary of NBT (“NBT Bank”), Salisbury
Bancorp, Inc., a Connecticut corporation (“Salisbury”), and Salisbury Bank and Trust Company, a Connecticut-chartered bank and wholly-owned subsidiary of
Salisbury (“Salisbury Bank”), are entering into an Agreement and Plan of Merger (as such agreement may be subsequently amended or modified, the “Merger Agreement”), pursuant to which Salisbury will merge with and into NBT, with NBT surviving, and immediately thereafter, Salisbury Bank will merge with and
into NBT Bank, with NBT Bank surviving, and in connection therewith, shares of Salisbury Stock shall, at the Effective Time, be converted into the right to receive the Merger Consideration;
WHEREAS, Shareholder beneficially
owns and has the power to vote or direct the voting of the number of shares of Salisbury Stock identified on Exhibit A hereto (such shares, together with all
shares of Salisbury Stock with respect to which Shareholder subsequently acquires beneficial ownership, and has the power to vote or direct the voting of such shares, during the term of this Agreement, including the right to acquire beneficial
ownership (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) through the exercise of any stock options, warrants or similar instruments, being referred to as the “Shares”); and
WHEREAS, it is a condition to the
willingness of NBT to enter into the Merger Agreement that Shareholder execute and deliver this Agreement.
NOW, THEREFORE, in consideration
of the promises, representations, warranties and agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Agreement to Vote Shares.
Shareholder agrees that, while this Agreement is in effect, at any meeting of shareholders of Salisbury, however called, or at any adjournment thereof, or in any other circumstances in which Shareholder is entitled to vote, consent or give any other
approval, except as otherwise agreed to in writing in advance by NBT, Shareholder shall:
(a)
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appear at each such meeting or otherwise cause the Shares to be counted as present thereat for purposes of calculating a quorum; and
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(b)
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vote (or cause to be voted), in person or by proxy, all the Shares (i) in favor of adoption and approval of the Merger Agreement and the
transactions contemplated thereby; (ii) against any action or agreement that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of Salisbury contained in the Merger Agreement or of
Shareholder contained in this Agreement; and (iii) against any Acquisition Proposal or any other action, agreement or transaction that is intended, or could reasonably be expected, to materially impede, interfere or be inconsistent with,
delay, postpone, discourage or materially and adversely affect consummation of the transactions contemplated by the Merger Agreement or of this Agreement.
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Section 2. No Transfers. While this
Agreement is in effect, Shareholder agrees not to, directly or indirectly, sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option, commitment or other arrangement or understanding with respect to the sale,
transfer, pledge, assignment or other disposition of, any of the Shares, except the following transfers shall be permitted: (a) transfers by will or operation of law, in which case this Agreement shall bind the transferee, (b) transfers pursuant to
any pledge agreement, subject to the pledgee agreeing in writing to be bound by the terms of this Agreement, (c) transfers in connection with estate and tax planning purposes, including transfers to relatives, trusts and charitable organizations,
subject to the transferee agreeing in writing to be bound by the terms of this Agreement, (d) surrendering Shares to Salisbury in connection with the vesting, settlement or exercise of Salisbury equity awards to satisfy any withholding for the
payment of taxes incurred in connection with such vesting, settlement or exercise, or, in respect of Salisbury equity awards, the exercise price thereon, and (e) such transfers as NBT may otherwise permit in its sole discretion. Any transfer or other
disposition in violation of the terms of this Section 2 shall be null and void.
Section 3. Representations and Warranties of
Shareholder. Shareholder represents and warrants to and agrees with NBT as follows:
(a)
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Shareholder has all requisite capacity and authority to enter into and perform his, her or its obligations under this Agreement.
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This Agreement has been duly executed and delivered by Shareholder, and assuming the due authorization, execution and delivery by NBT, constitutes
the valid and legally binding obligation of Shareholder enforceable against Shareholder in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity principles.
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(c)
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The execution and delivery of this Agreement by Shareholder does not, and the performance by Shareholder of his, her or its obligations hereunder
and the consummation by Shareholder of the transactions contemplated hereby will not, violate or conflict with, or constitute a default under, any agreement, instrument, contract or other obligation or any order, arbitration award, judgment
or decree to which Shareholder is a party or by which Shareholder is bound, or any statute, rule or regulation to which Shareholder is subject or, in the event that Shareholder is a corporation, partnership, trust or other entity, any
charter, bylaw or other organizational document of Shareholder.
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(d)
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Except as set forth on Schedule 1, Shareholder is the record and beneficial owner of and has the power to vote or direct the voting of such shares,
or is the trustee that is the record holder of and has the power to vote or direct the voting of such shares, and whose beneficiaries are the beneficial owners of, and has good title to all of the Shares set forth on Exhibit A hereto, and the Shares are so owned free and clear of any liens, security interests, charges or other encumbrances. Shareholder does not own,
of record or beneficially, any shares of capital stock of Salisbury that the Shareholder has the power to vote or direct the voting of other than the Shares (other than shares of capital stock subject to stock options or warrants over which
Shareholder will have no voting rights until the exercise of such stock options or warrants). Shareholder has the right to vote or direct the voting of the Shares and none of the Shares are subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting of the Shares, except as contemplated by this Agreement.
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Section 4. Irrevocable Proxy. Subject to the
last sentence of this Section 4, by execution of this Agreement, Shareholder does hereby appoint NBT with full power of substitution and resubstitution, as Shareholder’s true and lawful attorney and irrevocable proxy, to the full extent of
Shareholder’s rights with respect to the Shares, to vote, if Shareholder is unable to perform his, her or its obligations under this Agreement, each of such Shares that Shareholder shall be entitled to so vote with respect to the matters set forth in
Section 1 hereof at any meeting of the shareholders of Salisbury, and at any adjournment or postponement thereof, and in connection with any action of the shareholders of Salisbury taken by written consent. The Shareholder intends this proxy to be
irrevocable and coupled with an interest hereafter until the termination of this Agreement pursuant to the terms of Section 8 hereof and hereby revokes any proxy previously granted by Shareholder with respect to the Shares. Notwithstanding anything
contained herein to the contrary, this irrevocable proxy shall automatically terminate upon the termination of this Agreement.
Section 5. No Solicitation. Subject to
Section 10, from and after the date hereof until the termination of this Agreement pursuant to Section 7 hereof, Shareholder, in his, her or its capacity as a shareholder of Salisbury, shall not, nor shall such Shareholder authorize any partner,
officer, director, advisor or representative of such Shareholder, or any of his, her or its affiliates to (and, to the extent applicable to Shareholder, such Shareholder shall use reasonable best efforts to prohibit any of his, her or its
representatives or affiliates to), (a) initiate, solicit, induce or knowingly encourage, or take any action to facilitate the making of, any inquiry, offer or proposal which constitutes, or could reasonably be expected to lead to, an Acquisition
Proposal, (b) participate in any discussions or negotiations regarding any Acquisition Proposal, or furnish, or otherwise afford access, to any person (other than NBT) any confidential or non-public information or data with respect to Salisbury or
otherwise relating to an Acquisition Proposal, (c) enter into any agreement, agreement in principle or letter of intent with respect to an Acquisition Proposal (other than the Merger Agreement), (d) solicit proxies or become a “participant” in a
“solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) with respect to an Acquisition Proposal (other than the Merger Agreement) or otherwise encourage or assist any party in taking or planning any action that would
compete with, restrain or otherwise serve to interfere with or inhibit the timely consummation of the Merger in accordance with the terms of the Merger Agreement, (e) initiate a shareholders’ vote or action by consent of Salisbury’s shareholders with
respect to an Acquisition Proposal, or (f) except by reason of this Agreement, become a member of a “group” (as such term is used in Section 13(d) of the Exchange Act) with respect to any voting securities of Salisbury that takes any action in
support of an Acquisition Proposal.
Section 6. Specific Performance and Remedies.
Shareholder acknowledges that it will be impossible to measure in money the damage to NBT if Shareholder fails to comply with the obligations imposed by this Agreement and that, in the event of any such failure, NBT will not have an adequate remedy
at law or in equity. Accordingly, Shareholder agrees that injunctive relief or other equitable remedy, in addition to remedies at law or in damages, is the appropriate remedy for any such failure and will not oppose the granting of such relief on the
basis that NBT has an adequate remedy at law. Shareholder agrees that Shareholder will not seek, and agrees to waive any requirement for, the securing or posting of a bond in connection with NBT’s seeking or obtaining such equitable relief.
Section 7. Term of Agreement; Termination.
The term of this Agreement shall commence on the date hereof. This Agreement may be terminated at any time prior to consummation of the transactions contemplated by the Merger Agreement by the written consent of the parties hereto, and shall be
automatically terminated upon the earlier to occur of (a) the final adjournment of the Salisbury Meeting or (b) the termination of the Merger Agreement in accordance with its terms. Upon any such termination, no party shall have any further
obligations or liabilities hereunder; provided, however, such
termination shall not relieve any party from liability for any willful breach of this Agreement prior to such termination.
Section 8. Entire Agreement; Amendments.
This Agreement supersedes all prior agreements, written or oral, among the parties hereto with respect to the subject matter hereof and contains the entire agreement among the parties with respect to the subject matter hereof. This Agreement may not
be amended, supplemented or modified, and no provisions hereof may be modified or waived, except by an instrument in writing signed by each party hereto. No waiver of any provisions hereof by either party shall be deemed a waiver of any other
provisions hereof by any such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof by such party.
Section 9. Severability. In the event that
any one or more provisions of this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, by any court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provisions
of this Agreement and the parties shall use their reasonable efforts to substitute a valid, legal and enforceable provision which, insofar as practical, implements the purposes and intents of this Agreement.
Section 10. Capacity as Shareholder. The
covenants contained herein shall apply to Shareholder solely in his or her capacity as a shareholder of Salisbury, and no covenant contained herein shall apply to Shareholder in his or her capacity as a director, officer or employee of Salisbury or
in any other capacity. Nothing contained in this Agreement shall be deemed to apply to, or limit in any manner, the obligations of Shareholder to comply with his or her fiduciary duties as a director or officer, as applicable, of Salisbury.
Section 11. Governing Law. This Agreement
shall be governed by, and interpreted in accordance with, the laws of State of Delaware, without regard for conflict of law provisions.
Section 12. Notice. All notices and other
communications hereunder shall be in writing and shall be deemed given if delivered personally or sent by overnight courier (providing proof of delivery) to NBT in accordance with Section 8.06 of the Merger Agreement and to the Shareholder at his,
her or its address set forth on Exhibit A attached hereto (or at such other address for a party as shall be specified by like notice).
(Remainder of page intentionally left blank.)
IN WITNESS WHEREOF, the parties
hereto have executed and delivered this Agreement as of the date first written above.
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By:
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Title:
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SHAREHOLDER
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Name:
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EXHIBIT A
NAME AND ADDRESS
OF SHAREHOLDER
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SHARES OF SALISBURY COMMON STOCK BENEFICIALLY OWNED
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