AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 18, 2001
REGISTRATION NO. 333-XXXXX
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NBT BANCORP INC.
----------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 16-1268674
-------- ----------
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
52 SOUTH BROAD STREET, NORWICH, NEW YORK 13815
----------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
NBT BANCORP INC. 1993 STOCK OPTION PLAN
---------------------------------------
(FULL TITLE OF THE PLAN)
DARYL R. FORSYTHE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
NBT BANCORP INC.
52 SOUTH BROAD STREET, NORWICH, NEW YORK 13815 (607) 337-2265
-------------------------------------------------------------
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
COPY TO:
BRIAN D. ALPRIN, ESQ. AND LAURENCE S. LESE, ESQ.
DUANE, MORRIS & HECKSCHER LLP
1667 K Street, N.W., Suite 700, Washington, D.C. 20006 (202) 776-7800
CALCULATION OF REGISTRATION FEE
-----------------------------------------------------------------------------------------------
TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE OFFERING AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED (1) PRICE PER SHARE (2) OFFERING PRICE (2) FEE
-----------------------------------------------------------------------------------------------
COMMON STOCK, 2,500,000(3) $13.23 $33,075,000 $8,269 (4)
$.01 PAR VALUE SHARES
PER SHARE
-----------------------------------------------------------------------------------------------
(1) PLUS SUCH ADDITIONAL NUMBER OF SHARES AS MAY BE REQUIRED UNDER THE 1993
STOCK OPTION PLAN IN THE EVENT OF A STOCK DIVIDEND OR SPLIT,
RECAPITALIZATION, RECLASSIFICATION, MERGER, CONSOLIDATION, COMBINATION,
OR EXCHANGE OF SHARES, OR OTHER SIMILAR CORPORATE CHANGE.
(2) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE
AND BASED, PURSUANT TO RULE 457(H)(1), UPON THE AVERAGE OF THE HIGHEST
AND LOWEST QUOTED SELLING PRICES OF THE REGISTRANT'S COMMON STOCK
REPORTED ON THE NASDAQ NATIONAL MARKET ON OCTOBER 16, 2001, A DATE
WITHIN FIVE DAYS OF THE DATE ON WHICH THIS REGISTRATION STATEMENT WAS
FILED.
(3) PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT INCORPORATES AND SUPERSEDES THE REGISTRANT'S
FORM S-8 REGISTRATION STATEMENTS, SEC FILE NO. 33-77410, WHICH THE SEC
DECLARED EFFECTIVE ON APRIL 6, 1994 AND FILE NO. 333-67615, WHICH THE
SEC DECLARED EFFECTIVE ON NOVEMBER 20, 1998. WHEN THE SHARES OF THE
REGISTRANT'S COMMON STOCK REGISTERED UNDER THIS REGISTRATION STATEMENT
ARE ADDED TO THE SHARES OF THE REGISTRANT'S COMMON STOCK REGISTERED
UNDER THE REGISTRANT'S EARLIER REGISTRATION STATEMENTS REFERRED TO IN
THE PREVIOUS SENTENCE, THE REGISTRANT WILL HAVE REGISTERED UNDER THE
SECURITIES ACT OF 1933 A TOTAL OF 4,275,353 SHARES OF ITS COMMON STOCK
FOR ISSUANCE UNDER THE NBT BANCORP INC. 1993 STOCK OPTION PLAN.
(4) PURSUANT TO RULE 457(P) UNDER THE SECURITIES ACT OF 1933, THE
REGISTRATION FEE THAT WOULD OTHERWISE BE PAYABLE UNDER RULE 457 WITH
REGARD TO THE SUBJECT REGISTRATION STATEMENT IS HEREBY OFFSET AGAINST A
PORTION OF THE REGISTRANT'S $52,272 REGISTRATION FEE THAT IT PAID TO
THE SEC ON AUGUST 1, 2000 WHEN IT FILED ITS REGISTRATION STATEMENT ON
FORM S-4, FILE NO. 333-42714, WHICH REGISTRATION STATEMENT THE
REGISTRANT SUBSEQUENTLY WITHDREW BY SEC FORM RW ON OCTOBER 6, 2000. THE
BALANCE OF THAT FEE WAS OFFSET BY THE $36,038 FILING FEE WITH RESPECT
TO THE REGISTRANT'S FORM S-4 REGISTRATION STATEMENT, FILE NO.
333-66472, FILED ON AUGUST 1, 2001, LEAVING A "RULE 457(P) ACCOUNT
BALANCE" OF $16,234. BY OFFSETTING THE REGISTRATION FEE OTHERWISE DUE
BY THE REGISTRANT'S FILING THE SUBJECT REGISTRATION STATEMENT, THE
REGISTRANT HAS A "RULE 457(P) ACCOUNT BALANCE" OF $7,965.
AN INDEX TO EXHIBITS IS INCLUDED ON PAGE 8 OF THIS FORM S-8.
2
PART I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the note to Form S-8, the document containing the
information specified in Items 1 and 2 of Part I of the Form S-8 is not being
filed with the Commission as part of this Registration Statement, but will be
sent or given to participants as specified by Rule 428(b)(1).
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3 - Incorporation of Certain Documents by Reference
--------------------------------------------------------
The following documents and portions of documents filed by NBT Bancorp
Inc. ("Bancorp") with the Commission are hereby incorporated into this
Registration Statement by reference:
(a) Bancorp's Annual Report on Form 10-K for the year ended
December 31, 2000;
(b) Bancorp's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 2001 and June 30, 2001;
(c) Bancorp's Current Reports on Form 8-K filed on
January 3, 2001, June 5, 2001, June 22, 2001 and July
27, 2001;
(d) (i) Bancorp's Form 8-A/A filed with the SEC on May 9,
2000;
(ii) Bancorp's Form 8-A/A filed with the SEC on
February 24, 2000;
(iii) The description of Bancorp's Common Stock as
set forth under the caption "DESCRIPTION OF NBT
CAPITAL STOCK" presented in the prospectus portion of
NBT's Form S-4 Registration Statement, SEC File No.
333-66472, filed with the Commission on August 1,
2001 and NBT's SEC Rule 424(b)(3) prospectus filed
with the Commission on September 10, 2001.
Bancorp additionally incorporates by reference herein all documents to
be subsequently filed by Bancorp pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934, as amended, prior to the filing of a
post-effective amendment which indicates that all the securities offered have
been sold or which deregisters all securities then remaining unsold, and deems
such documents to be incorporated by reference into this Registration Statement
and to be part of this Registration Statement from the dates of filing such
documents. Copies of these documents will not be filed with this Registration
Statement. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that such
statement is modified or superseded by a subsequently filed document which also
is or is deemed to be incorporated by reference into this Registration
Statement. Any such statement so modified or superseded shall not be deemed to
constitute a part of this Registration Statement except as so modified or
superseded.
3
Item 4 - Description of Securities
----------------------------------
This Item is omitted because Bancorp's Common Stock is registered under
Section 12 of the Exchange Act.
Item 5 - Interests of Named Experts and Counsel
-----------------------------------------------
Members of Duane, Morris & Heckscher LLP, counsel for Bancorp, own
shares of Bancorp common stock. The fair market value of this stock ownership
exceeds $50,000 but represents less than .1% of Bancorp's outstanding shares.
Under the regulations of the Commission, Duane, Morris & Heckscher LLP may be
deemed to have a substantial interest in Bancorp.
Item 6 - Indemnification of Directors and Officers
--------------------------------------------------
Bancorp's bylaws contain provisions providing that Bancorp shall
indemnify any person who was or is a party or threatened to be made a party to
any action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was a director or
officer of Bancorp, or is or was serving at the request of Bancorp as a director
of another corporation, partnership, joint venture, trust, or other enterprise,
to the maximum extent authorized by the Delaware General Corporation Law.
Bancorp's Certificate of Incorporation also provides that a director of
Bancorp shall not be personally liable to Bancorp or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (1) for any breach of the director's duty of loyalty to Bancorp or its
stockholders; (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (3) under ss. 174 of the
Delaware General Corporation Law; or (4) for any transaction from which the
director derived an improper personal benefit.
Item 7 - Exemption from Registration Claimed
--------------------------------------------
This Item is omitted because it is not applicable.
Item 8 - Exhibits
-----------------
The exhibits to this registration statement are listed in the Exhibit
Index included elsewhere herein.
Item 9 - Undertakings
---------------------
RULE 415 OFFERING
The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) 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;
4
(iii) 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 paragraph (1)(i) and (1)(ii) shall not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, 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.
FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the 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.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
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, the registrant 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 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
Registrant 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 Norwich, State of New York, on the 17th day of
October, 2001.
NBT BANCORP INC.
By: /s/ Daryl R. Forsythe
---------------------
Daryl R. Forsythe
President, Chief Executive Officer
and Chairman of the Board of Directors
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated.
Signature Title Date
--------- ----- ----
/s/ Daryl R. Forsythe President, Chief Executive Officer and October 17, 2001
------------------------ Chairman of the Board of Directors
Daryl R. Forsythe (Principal Executive Officer)
/s/ Michael J. Chewens Executive Vice President and October 17, 2001
---------------------- Chief Financial Officer (Principal
Michael J. Chewens Financial and Accounting Officer)
/s/ J. Peter Chaplin Director October 17, 2001
--------------------------
J. Peter Chaplin
/s/ Richard Chojnowski Director October 17, 2001
----------------------
Richard Chojnowski
/s/ Gene E. Goldenziel Director October 17, 2001
-----------------------
Gene E. Goldenziel
/s/ Peter B. Gregory Director October 17, 2001
-------------------------
Peter B. Gregory
/s/ William C. Gumble Director October 17, 2001
---------------------
William C. Gumble
/s/ Bruce D. Howe Director October 17, 2001
------------------------
Bruce D. Howe
/s/Andrew S. Kowalczyk, Jr. Director October 17, 2001
---------------------------
Andrew S. Kowalczyk, Jr.
/s/ John C. Mitchell Director October 17, 2001
-------------------------
John C. Mitchell
/s/ Joseph G. Nasser Director October 17, 2001
-------------------------
Joseph G. Nasser
/s/ William L. Owens Director October 17, 2001
-----------------------
William L. Owens
/s/ Paul O. Stillman Director October 17, 2001
-------------------------
Paul O. Stillman
6
INDEX TO EXHIBITS
The following documents are attached as exhibits to this Form S-8 or,
if annotated by the symbol *, are incorporated by reference as Exhibits to
previous filings of the Registrant with the Commission.
Exhibit
Number
------
5.1 Opinion of Duane, Morris & Heckscher LLP.
23.1 Consent of Duane, Morris & Heckscher LLP
(contained in their opinion filed as Exhibit 5.1).
23.2 Consent of KPMG LLP.
99.1 NBT Bancorp Inc. 1993 Stock Option Plan.
7
EXHIBIT 5.1
OPINION AND CONSENT OF DUANE, MORRIS & HECKSCHER LLP
EXHIBIT 23.1
DUANE, MORRIS & HECKSCHER LLP
ATTORNEYS AT LAW
1667 K STREET N.W., SUITE 700
WASHINGTON, D.C. 20006_1608
(202) 776_7800
FAX
(202) 776_7801
www.duanemorris.com
October 17, 2001
PHILADELPHIA, PA
NEW YORK, NY
LONDON, ENGLAND
CHICAGO, IL
SAN FRANCISCO, CA
BOSTON, MA
MIAMI, FL
WILMINGTON, DE
HARRISBURG, PA
WAYNE, PA
CHERRY HILL, NJ
NEWARK, NJ
WESTCHESTER, NY
PRINCETON, NJ
PALM BEACH, FL
ALLENTOWN, PA
HOUSTON, TX
BANGOR, ME
NBT Bancorp Inc.
52 South Broad Street
Norwich, New York 13815
Gentlemen:
We have acted as special counsel to NBT Bancorp Inc. (the "Company"),
in connection with the preparation and filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, of a registration
statement on Form S-8 (the "Registration Statement") relative to the offer and
sale by the Company of up to 4,275,353 shares (the "Shares") of common stock,
$.01 par value per share ("Common Stock"), pursuant to the Company's 1993 Stock
Option Plan (the "Plan").
As special counsel to the Company, we have examined and relied upon
originals or copies, authenticated or certified to our satisfaction, of all such
corporate records of the Company, including the resolutions of the Company's
board of directors and other records relating to the authorization,
registration, sale, and issuance of the Shares, communications or certifications
of public officials, certificates of officers, directors and representatives of
the Company and such other documents as we have deemed relevant and necessary as
the basis of the opinions expressed herein. In making such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
tendered to us as originals, and the conformity to original documents of all
documents submitted to us as certified or photostatic copies.
Based upon the foregoing, we are of the opinion that the Shares to be
issued by the Company as described in the Registration Statement, when issued in
accordance with the terms and conditions of the Plan, will be validly issued,
fully paid, and non-assessable.
We hereby consent to the inclusion of this opinion as an exhibit to the
Registration Statement and any amendment thereto.
Sincerely,
/s/ DUANE, MORRIS & HECKSCHER LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
NBT Bancorp Inc.:
We consent to incorporation by reference in the registration statement
on Form S-8 related to the registration of shares for the 1993 Stock Option Plan
of NBT Bancorp Inc. under the Securities Act of 1933 of our audit report dated
January 22, 2001, relating to the consolidated balance sheets of NBT Bancorp
Inc. and subsidiaries as of December 31, 2000 and 1999, and the related
consolidated statements of income, changes in stockholders' equity, cash flows
and comprehensive income for each of the years in the three-year period ended
December 31, 2000 which report appears in the December 31, 2000 annual report on
Form 10-K of NBT Bancorp Inc., incorporated by reference herein.
/s/ KPMG LLP
KPMG LLP
Albany, New York
October 17, 2001
EXHIBIT 99.1
NBT BANCORP INC.
1993 STOCK OPTION PLAN
1. Purposes. (a) The purposes of the 1993 Stock Option Plan (the
"Plan") are (a) to attract and retain outstanding key management employees, (b)
to further the growth, development, and financial success of NBT Bancorp Inc.
(the "Company") by recognizing and rewarding those key employees responsible
therefor, (c) to provide an incentive to, and encourage stock ownership in the
Company, by those employees responsible for the policies and operations of the
Company or its subsidiaries, and (d) to revise and amend the Company's stock
option plan dated November 25, 1986, as amended January 12, 1988 (referred to
herein as the "1986 Plan"), in the manner set forth in Section 22, below.
(b) In furtherance of these purposes, all stock options to be granted
pursuant to the Plan shall be non-statutory ("non-qualified") stock options.
2. Administration. (a) This Plan shall be administered by the Board of
Directors of the Company, the Compensation and Benefits Committee of the Board
of Directors of the Company (or successor committee) or a subcommittee thereof
(the "Committee"). The Committee shall consist of not fewer than three members
of the Board of Directors. It is intended that the Committee at all times comply
with the disinterested administration provisions of Rule 16b-3 promulgated under
Section 16(b) of the Securities Exchange Act of 1934, as amended.
(b) The Committee shall have full authority and discretion to
determine, consistent with the provisions of this Plan, the employees to be
granted options; the times at which options will be granted; the option price of
the shares subject to each option (subject to Section 6); the number of options
to be granted to each employee; the period during which each option becomes
exercisable (subject to Section 8); and the terms to be set forth in each option
agreement. The Committee shall also have full authority and discretion to adopt
and revise such rules and procedures as it shall deem necessary for the
administration of this Plan. The Committee shall act by majority vote of all
members taken at a meeting of the Committee or by the written affirmation of a
majority of its members without a meeting.
(c) The Committee's interpretation and construction of any provisions
of this Plan or any option granted hereunder shall be final, conclusive, and
binding.
3. Eligibility. The Committee shall from time to time determine the key
management employees of the Company and its subsidiaries who shall be granted
options under this Plan. For purposes of this Plan, key management employees
shall be deemed to be those employees who are responsible for the policies and
operation of the Company and its subsidiaries, including its president, chief
executive officer, other executive officers, department heads, branch managers,
and division managers of the Company or its subsidiaries. A person who has been
granted an option may be granted additional options under this Plan if the
Committee shall so determine. The granting of an option under this Plan shall
not affect any outstanding stock option previously granted to an optionee under
this Plan or any other plan of the Company.
4. Shares of stock subject to this Plan. The number of shares which may
be issued pursuant to options granted under this Plan shall not exceed 4,275,353
shares of the $.01 par value per share common stock of the Company (the "Common
Stock"). Such shares may be authorized and unissued shares or shares previously
acquired or to be acquired by the Company and held in treasury. The Company
shall reserve a sufficient number of shares for options granted under the Plan.
Any shares subject to an option which expires for any reason or is terminated
unexercised as to such shares may again be subject to an option under this Plan.
5. Issuance and terms of option certificates. Each optionee
shall be entitled to receive an appropriate certificate evidencing his option
and referring to the terms and conditions of this Plan.
6. Granting price of options. (a) The grant of each option shall state
the number of shares to which it pertains and shall state the exercise price,
which shall not be less than 100% of the fair market value of the Common Stock.
"Fair Market Value," as used in this Plan, shall mean the average between the
highest and lowest
quoted selling prices of the Common Stock on the National Market System of
NASDAQ on the date of grant and the five preceding trading days prior to the
date of grant. If there is no sale reported on the National Market System of
NASDAQ on the appropriate date, the Fair Market Value shall be determined by
taking the average between the highest and lowest sales for the five most recent
preceding trading days.
(b) The option price shall be payable in United States dollars and be
paid in full upon the exercise of the option and may be paid in cash or by
check, provided, however, that subject to the discretion of the Committee and
provided that all required regulatory approvals, if any, have been obtained, the
optionee may deliver certificates of the Common Stock of the Company in part or
in full payment of the purchase price (including the payment of all applicable
federal and state taxes due upon exercise) in which event such certificates
shall be valued at their Fair Market Value upon exercise of the option.
7. Use of proceeds. The proceeds from the sale of the Common
Stock upon exercise of options shall be added to the general funds of the
Company and used for its corporate purposes.
8. Term and exercise of options. (a) Each option granted under this
Plan shall be exercisable on the dates, for the number of shares and on such
other terms as shall be provided in the agreement evidencing the option granted
by the Committee. An option granted under the Plan shall become exercisable in
installments as follows: to the extent of forty percent (40%) of the number of
shares originally covered thereby with respect to each particular grant of
options, at any time after the expiration of one year from the date of grant,
and to the extent of an additional twenty percent (20%) of such number of shares
upon the expiration of each succeeding year, so that upon the expiration of four
years from the date of grant one hundred percent (100%) of such number of shares
will be eligible for exercise by the optionee; and such installments shall be
cumulative.
(b) An option may be exercised at any time or from time to time during
the term of the option as to any or all full shares which have become
purchasable under the provisions of the option and this Plan. However, no option
shall be exercisable until after one year from the date of grant, nor after the
expiration of ten years from the date of grant.
(c) An option shall be exercised by written notice of intent to
exercise the option with respect to a specified number of shares delivered to
the Company's secretary or treasurer at its principal office in Norwich, New
York and payment in full to the Company at such office of the amount of the
option price for the number of shares of Common Stock with respect to which the
option is then being exercised. In addition to and at the time of payment of the
option price, the optionee shall pay to the Company in cash or in Common Stock
of the Company the full amount of all federal and state withholding or other
taxes applicable to the taxable income of such optionee resulting from such
exercise.
(d) (i) Except as otherwise provided herein, for each share of Common
Stock purchased by an optionee upon the exercise of a stock option pursuant to
the Plan, the optionee upon the approval of the Board or the Committee shall
receive a replacement option (a "Reload Option") to purchase another share of
Common Stock at the Fair Market Value, determined in accordance with Section
6(a), on the date of exercise of such original option.
(ii) A Reload Option shall become exercisable two years after the date
of its grant, provided the optionee is then an employee or retired employee of
the Company, shall be exercisable for the same number of years that was
originally assigned to the option which such Reload Option replaced, and shall
be subject to such other terms and conditions as the Committee may determine.
(iii) No Reload Option shall be granted upon exercise of a Reload
Option.
(iv) If an optionee shall sell shares of Common Stock without Board or
Committee approval (which approval shall not be withheld in the case of an
optionee's financial hardship) within two years after the grant of a Reload
Option, then the number of shares of Common Stock available for purchase by an
optionee upon the exercise of a Reload Option shall be reduced by that number of
shares of Common Stock that the optionee shall have sold without such approval
within such two-year period after the grant date of the Reload Option.
9. Nontransferability. All options granted under this Plan shall be
nontransferable by the optionee,
otherwise than by will or the laws of descent and distribution, and shall be
exercisable during his lifetime, only by him, nor may any option be assigned,
pledged, hypothecated, or otherwise disposed of in any other way. Upon any
attempt to sell, transfer, assign, pledge, hypothecate or otherwise dispose of
an option or any other right or privilege conferred under this Plan, such option
and any other rights or privileges conferred hereunder shall be deemed
forfeited, immediately terminated, and rendered null and void.
10. Requirements of law. The granting of options and the issuance of
shares of Common Stock upon the exercise of an option shall be subject to all
applicable laws, rules, and regulations and shares shall not be issued except
upon approval of proper government agencies or stock exchanges as may be
required.
11. Termination of employment. (a) Except as otherwise provided herein
and in Section 12, if an optionee's employment with the Company or its
subsidiaries shall terminate for any reason, he may, but only within a period of
30 days beginning the day following the date of such termination of employment,
exercise his option, to the extent that he was entitled to exercise it at the
date of such termination.
(b) (i) If an optionee's employment with the Company or its
subsidiaries shall terminate for "cause," as defined below, all options held by
such optionee at the date of such termination of employment shall be deemed
forfeited, immediately terminated, and rendered null and void.
(ii) Termination of an optionee's employment by the Company for "cause"
shall mean termination because, and only because, the optionee committed an act
of fraud, embezzlement, or theft constituting a felony or an act intentionally
against the interests of the Company which causes the Company material injury.
Notwithstanding the foregoing, the optionee shall not be deemed to have been
terminated for cause unless and until there shall have been delivered to the
optionee a copy of a resolution duly adopted by the affirmative vote of not less
than three-quarters of the entire membership of the Board at a meeting of the
Board called and held for the purpose (after reasonable notice to the optionee
and an opportunity for the optionee, together with optionee's counsel, to be
heard before the Board), finding that in the good faith opinion of the Board the
optionee was guilty of conduct constituting cause as defined above and
specifying the particulars thereof in detail.
12. Retirement, disability, or death of optionee. (a) In the event that
the optionee shall retire, the option shall become exercisable in full on the
date of retirement, shall otherwise continue in full force and effect as if the
optionee were still employed by the Company or its subsidiaries, and shall be
exercisable in accordance with its terms.
(b) In the event that the optionee shall become permanently and totally
disabled, as determined by the Committee in accordance with applicable Company
personnel policies, such option shall become exercisable in full on the date of
such disability and shall otherwise remain exercisable in accordance with its
terms for the remaining term of the option as established upon grant of such
option.
(c) In the event of the death of an optionee while in the employ of the
Company or its subsidiaries, the option theretofore granted to him shall be
exercisable only by the proper personal representative of the optionee's estate
within a period of six months after the date of death and such option shall
become exercisable in full on the date of such death.
13. Acceleration of Vesting. (a) Immediately upon the occurrence
of a Change in Control of the Company, all options shall immediately vest and
become exercisable in full, including that portion of any option that had not
theretofore become vested and exercisable.
(b) A. "Change of Control" of the Company shall mean:
(i) A change in control of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A as
in effect on the date hereof pursuant to the Securities Exchange Act of
1934 (the "Exchange Act"); provided that, without limitation, such a
change in control shall be deemed to have occurred at such time as any
Person hereafter becomes the "Beneficial Owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of 30 percent or
more of the combined voting power of the Company's Voting Securities;
or
(ii) During any period of two consecutive years, individuals who at the
beginning of such period constitute the Board cease for any reason to
constitute at least a majority thereof unless the election, or the
nomination for election by the Company's shareholders, of each new
director was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of the period;
or
(iii) There shall be consummated (x) any consolidation or merger of the
Company in which the Company is not the continuing or surviving
corporation or pursuant to which Voting Securities would be converted
into cash, securities, or other property, other than a merger of the
Company in which the holders of Voting Securities immediately prior to
the merger have the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, or (y) any sale,
lease, exchange, or other transfer (in one transaction or a series of
related transactions), of all, or substantially all of the assets of
the Company, provided that any such consolidation, merger, sale, lease,
exchange or other transfer consummated at the insistence of an
appropriate banking regulatory agency shall not constitute a change in
control; or
(iv) Approval by the shareholders of the Company of any plan or
proposal for the liquidation or dissolution of the Company.
(c) For purposes of these "Change in Control" provisions, the term
"Person" shall mean and include any individual, corporation, partnership, group,
association, or other "person," as such term is used in Section 14(d) of the
Exchange Act, other than the Company or any employee benefit plan(s) sponsored
by the Company.
(d) The term "Voting Securities" shall mean the Company's outstanding
securities ordinarily having the right to vote at elections of directors.
14. Adjustments. In the event of any change in the outstanding shares
of Common Stock by reason of any stock dividend or split, recapitalization,
reclassification, merger, consolidation, combination or exchange of shares, or
other similar corporate change, then if the Committee shall determine, in its
sole discretion, that such change necessarily or equitably requires an
adjustment in the number of shares subject to each outstanding option and the
option prices or in the maximum number of shares subject to this Plan, such
adjustments shall be made by the Committee and shall be conclusive and binding
for all purposes of this Plan. No adjustment shall be made in connection with
the sale by the Company of its Common Stock in the open market in an
SEC-registered offering or in a privately-placed exempt offering or the issuance
by the Company of Common Stock pursuant to the Company's Automatic Dividend
Reinvestment and Stock Purchase Plan or the Employees' Stock Ownership Plan or
of any warrants, rights, or options to acquire additional shares of Common Stock
or of securities convertible into Common Stock.
15. Extraordinary transactions. Upon (i) the dissolution or liquidation
of the Company, (ii) a reorganization, merger or consolidation of the Company
with one or more corporations or other entity as a result of which the Company
is not the surviving corporation, or (iii) a sale of substantially all the
assets of the Company to another corporation or other entity, the Board of
Directors shall cause written notice of the proposed transaction to be given to
the optionee or grantee not less than 40 days prior to the anticipated effective
date of the proposed transaction, and the option shall be accelerated and, prior
to a date specified in such notice, which shall be not more than ten days prior
to the anticipated effective date of the proposed transaction, the optionee
shall have the right to exercise the stock option to purchase any or all shares
then subject to the option, including those, if any, which have not become
available for purchase under other provisions of the Plan. The optionee, by so
notifying the Company in writing, may, in exercising the stock options,
condition such exercise upon, and provide that such exercise shall become
effective at the time of but immediately prior to, the consummation of the
transaction, in which event the optionee need not make payment for the shares of
Common Stock to be purchased upon exercise of the option until five days after
written notice by the Company to the optionee that the transaction is
consummated. Each option, to the extent not previously exercised prior to the
date specified in the foregoing notice, shall terminate on the effective date of
such consummation. If the proposed transaction is abandoned, any shares of
Common Stock not purchased upon exercise of the option shall continue to be
available for exercise in accordance with the other provisions of the Plan, and
the shares of Common Stock, if any, purchased upon exercise of an option
pursuant to this subsection shall be deemed to have been purchased in the order
in which they first become available for purchase under other
provisions of the plan.
16. Claim to stock option, ownership, or employment rights. No employee
or other person shall have any claim or right to be granted Options under this
Plan. No optionee, prior to issuance of the stock, shall be entitled to voting
rights, dividends, or other rights of stockholders except as otherwise provided
in this Plan. Neither this Plan nor any other action taken hereunder shall be
construed as giving any employee any right to be retained in the employ of the
Company or a subsidiary.
17. Unsecured obligation. Optionees under this Plan shall not have any
interest in any fund or specific asset of the Company by reason of this Plan. No
trust fund shall be created in connection with this Plan or any award
thereunder, and there shall be no required funding of amounts which may become
payable to any optionee.
18. Expenses of plan. The expenses of administering the Plan
shall be borne by the Company.
19. Reliance on reports. Each member of the Committee and each member
of the Board of Directors shall be fully justified in relying or acting in good
faith upon any report made by the independent public accountants of the Company
and its subsidiaries and upon any other information furnished in connection with
the Plan by any person or persons other than himself. In no event shall any
person who is or shall have been a member of the Committee or of the Board of
Directors be liable for any determination made or other action taken or any
omission to act in reliance upon any such report or information or for any
action, including the furnishing of information, taken or failure to act, if in
good faith.
20. Indemnification. Each person who is or shall have been a member of
the Committee or of the Board of Directors shall be indemnified and held
harmless by the Company against and from any loss, cost, liability, or expense
that may be imposed upon or reasonably incurred by him in connection with or
resulting from any claim, action, suit, or proceeding to which he may be a party
or in which he may be involved by reason of any action taken or failure to act,
in good faith, under the Plan and against and from any and all amounts paid by
him in settlement thereof, with the Company's approval, or paid by him in
satisfaction of judgment in any such action, suit, or proceeding against him,
provided he shall give the Company an opportunity, at its own expense, to handle
and defend the same before he undertakes to handle and defend it on his own
behalf. The foregoing right of indemnification shall not be exclusive of any
other rights of indemnification to which such person may be entitled under the
Company's Articles of Incorporation or Bylaws, as a matter of law, or otherwise,
or any power than the Company may have to indemnify them or hold them harmless.
21. Amendment and termination. Unless this Plan shall theretofore have
been terminated as hereinafter provided, no options may be granted after April
18, 2008. The Board of Directors may terminate this Plan or modify or amend this
Plan in such respect as it shall deem advisable, provided, however, that the
Board of Directors may not without further approval by the Company's
shareholders, (a) increase the aggregate number of shares of Common Stock as to
which options may be granted under the Plan except as provided in Section 14,
(b) change the class of persons eligible to receive options, (c) change the
provisions of the Plan regarding the option price, (d) extend the period during
which options may be granted, (e) extend the maximum period after the date of
grant during which options may be exercised or (f) change the provision in the
Plan as to the qualification for membership on the Committee. No termination or
amendment of the Plan may, without the consent of a person to whom an option
shall theretofore have been granted, adversely affect the rights of such person
under such option.
22. Revision and amendment of 1986 Plan. (a) Upon the adoption
of the Plan, the Board of Directors and the Committee shall have no authority to
grant additional options or SARs pursuant to the 1986 Plan, except as otherwise
provided in this Section.
(b) Article VI of the 1986 Plan is hereby amended to authorize the
Board of Directors or the Committee to (i) dissolve the in tandem feature of
previously-granted options and SARs and (ii) cancel previously granted SARs and
grant replacement options on the basis of seven-tenths (.7) options for each SAR
and such replacement options having terms similar to those of the canceled SARS,
the Board of Directors having determined that this was the amount necessary to
induce holders of SARs to surrender such SARS.
23. Gender. Any masculine terminology used in this Plan shall
also include the feminine gender.
24. Effective date of plan. The Plan was approved by a majority of the
shareholders of the Company at its annual meeting on April 24, 1993 (or
adjournment thereof) and shall become effective as of April 24, 1993.
25. Plan binding on successors. The Plan shall be binding upon
the successors and assigns of the Company.
26. Ratification of actions. By accepting any option or other benefit
under the Plan, each participant in the Plan and each person claiming under or
through such participant shall be conclusively deemed to have indicated such
person's acceptance and ratification of, and consent to, any action taken under
the Plan by the Company, the Board, or the Committee.
27. Invalidity or unenforceability. If any term or provision of the
Plan is held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the terms and provisions will remain in full
force and effect and will in no way be affected, impaired, or invalidated.
NBT BANCORP INC.
/s/ Daryl R. Forsythe
Daryl R. Forsythe
President and Chief Executive Officer
/s/ Michael J. Chewens
Michael J. Chewens
Secretary