AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 5, 2001
REGISTRATION NO. 333-#####
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. DIRECTORS RESTRICTED STOCK 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, 20,000 SHARES $13.24 $264,800 $67(3)
$.01 PAR VALUE
PER SHARE
(1) PLUS SUCH ADDITIONAL NUMBER OF SHARES AS MAY BE REQUIRED IN THE EVENT
OF A STOCK DIVIDEND OR SPLIT, RECAPITALIZATION, RECLASSIFICATION,
MERGER, CONSOLIDATION, COMBINATION OR EXCHANGE OF SHARES, OR OTHER
SIMILAR CORPORATE CHANGE.
1
(2) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE
AND BASED, PURSUANT TO RULE 457(H)(1), UPON THE BASIS OF THE AVERAGE OF
THE HIGH AND LOW PRICES REPORTED ON THE NASDAQ NATIONAL MARKET ON
NOVEMBER 2, 2001, A DATE WITHIN FIVE BUSINESS DAYS PRIOR TO THE FILING
OF THIS REGISTRATION STATEMENT.
(3) 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 $52,137.22 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, AND BY THE $8,269 FILING FEE WITH
RESPECT TO THE REGISTRANT'S FORM S-8 REGISTRATION STATEMENT, FILE NO.
333-71830, FILED ON OCTOBER 18, 2001, LEAVING A "RULE 457(P) ACCOUNT
BALANCE OF $7,830.22. 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 $7,763.22.
AN INDEX TO EXHIBITS IS INCLUDED ON PAGE 8 OF THIS FORM S-8.
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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.
Item 4 - Description of Securities
----------------------------------
This Item is omitted because Bancorp's Common Stock is registered under
Section 12 of the Exchange Act.
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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 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;
(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
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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.
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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 31st 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 31, 2001
---------------------- Chairman of the Board of Directors
Daryl R. Forsythe (Principal Executive Officer)
/s/ Michael J. Chewens Executive Vice President and October 31, 2001
---------------------- Chief Financial Officer (Principal
Michael J. Chewens Financial and Accounting Officer)
/s/ J. Peter Chaplin Director October 31, 2001
----------------------
J. Peter Chaplin
/s/ Richard Chojnowski Director October 31, 2001
----------------------
Richard Chojnowski
/s/ Gene E. Goldenziel Director October 31, 2001
----------------------
Gene E. Goldenziel
/s/ Peter B. Gregory Director October 31, 2001
----------------------
Peter B. Gregory
/s/ William C. Gumble Director October 31, 2001
----------------------
William C. Gumble
/s/ Bruce D. Howe Director October 31, 2001
----------------------
Bruce D. Howe
/s/Andrew S. Kowalczyk, Jr. Director October 31, 2001
---------------------------
Andrew S. Kowalczyk, Jr.
/s/ John C. Mitchell Director October 31, 2001
----------------------
John C. Mitchell
/s/ Joseph G. Nasser Director October 31, 2001
----------------------
Joseph G. Nasser
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/s/ William L. Owens Director October 31, 2001
----------------------
William L. Owens
/s/ Paul O. Stillman Director October 31, 2001
----------------------
Paul O. Stillman
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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. Directors Restricted Stock Plan (in the form of a
restricted stock agreement).
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EXHIBIT 5.1
OPINION AND CONSENT OF DUANE, MORRIS & HECKSCHER LLP
[DUANE, MORRIS & HECKSCHER LLP LETTERHEAD]
November 2, 2001
NBT Bancorp Inc.
52 South Broad Street
Norwich, New York 13815
Gentlemen:
We have acted as 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 20,000 shares (the "Shares") of the Company's
common stock, $.01 par value per share ("Common Stock"), pursuant to the NBT
Bancorp Inc. Directors Restricted Stock Plan (the "Plan").
As 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
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, 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 NBT Bancorp Inc.
Directors Restricted Stock 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
November 2, 2001
EXHIBIT 99.1
RESTRICTED STOCK AGREEMENT
--------------------------
BETWEEN
-------
NBT BANCORP INC. AND [name of director]
---------------------------------------
AGREEMENT made as of January 1, 200__ by and between NBT Bancorp Inc.
("Company") and [name of director] ("Participant"):
WHEREAS, the Participant is a Director of the Company, a Director of
NBT Bank, National Association (the "Bank") or a Director of a division of the
Bank and, as such, receives an annual retainer fee in addition to fees for
meeting attendance. The Company and Participant agree that the Participant is
entitled to receive the retainer fee in Company Stock subject to the conditions
specified below.
THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is hereby agreed as follows:
1. AWARD OF SHARES.
Under the terms of this Agreement, the Company has awarded the Participant a
restricted stock award on January 1, 200__ ("Award Date"), covering ___ shares
of NBT Bancorp Inc. Common Stock, with a fair market value equal to $______
(annual director's retainer), subject to the terms, conditions and restrictions
set forth in this agreement.
2. AWARD RESTRICTIONS.
The shares covered by restricted stock award shall vest in accordance with the
schedule set forth below:
Full Years Elapsed from Award Date Percent Vested
---------------------------------- --------------
1 33%
2 66%
3 100%
Upon the vesting of any part of the restricted stock award by virtue of the
lapse of the restriction period set forth above or under Section 4 of this
Agreement, the Company shall cause a stock certificate covering the requisite
number of shares in the name of the Participant or beneficiary(ies) to be
distributed within 30 days after vesting. Upon receipt of such stock
certificate(s), the Participant or beneficiary(ies) are free to hold or dispose
of such certificate at will.
During the restriction period, the shares covered by the restricted stock award
not already vested are not transferable by the Participant by means of sale,
assignment, exchange, pledge, or otherwise. However, the restriction period will
lapse upon a change of ownership control within the meaning of Internal Revenue
Code ss.368(c) of the Company. The lapse of the restriction period will cause
the restricted stock award to be fully vested.
3. STOCK CERTIFICATES.
The stock certificate(s) evidencing the restricted stock award shall be
registered in the name of the Participant as of the Award Date. Physical
possession or custody of such stock certificate(s) shall be retained by the
Company until such time as the shares are vested (i.e. the restriction period
lapses). The Company reserves the right to place a legend on the stock
certificate(s) restricting the transferability of such certificate(s).
During the restriction period, except as otherwise provided in Section 2 of this
Agreement, the Participant shall be entitled to all rights of a stockholder of
the Company, including the right to vote the shares and receive cash dividends.
Stock dividends declared by the Company will be characterized as restricted
stock, and distributed with the principal restricted stock.
4. TERMINATION OF DIRECTORSHIP.
If the Participant terminates board membership with the Company, the Bank or a
division of the Bank, as applicable, due to death, disability, retirement, or
failure to be re-elected or re-appointed, the restricted stock award, to the
extent not already vested, shall vest in full as of the date of such
termination. Voluntary resignation or removal for cause will result in
forfeiture of the non-vested grants. The Participant may designate a
beneficiary(ies) to receive the stock certificate representing that portion of
the restricted stock award automatically vested upon death. The participant has
the right to change such beneficiary designation at will.
5. DUTY TO NOTIFY.
It is the Participant's duty to notify the Company in the event an Internal
Revenue Code ss.83(b) election is made in the year of the award.
6. WITHHOLDING TAXES.
The Company shall have the right to retain and withhold from any payment under
the restricted stock awarded the amount of taxes required by any government to
be withheld or otherwise deducted and paid with respect to such payment. At its
discretion, the Company may require a Participant receiving shares of Common
Stock under a restricted stock award to reimburse the Company for any such taxes
required to be withheld by the Company and withhold any distribution in whole or
in part until the Company is so reimbursed. In lieu thereof, the Company shall
have the right to withhold from any other cash amounts due or to become due from
the Company to the Participant an amount equal to such taxes required to be
withheld by the Company to reimburse the Company for any such taxes or retain
and withhold a number of shares having a market value not less than the amount
of such taxes and cancel (in whole or in part) any such shares so withheld in
order to reimburse the Company for any such taxes.
7. IMPACT ON OTHER BENEFITS.
The value of the restricted stock award (either on the Award Date or at the time
the shares are vested) shall not be includable as compensation or earnings for
purposes of any other benefit plan offered by the Company.
8. ADMINISTRATION.
The Compensation Committee shall have full authority and discretion to decide
all matters relating to the administration and interpretation of this Agreement.
The Compensation Committee shall have full power and authority to pass and
decide upon cases in conformity with the objectives of this Agreement under such
rules as the Board of Directors of the Company may establish.
Any decision made or action taken by the Company, the Board of Directors, or the
Compensation Committee arising out of, or in connection with, the
administration, interpretation, and effect of this Agreement shall be at their
absolute discretion and will be conclusive and binding on all parties. No member
of the Board of Directors, Compensation Committee, or employee of the Company
shall be liable for any act or action hereunder, whether of omission or
commission, by the Participant or by any agent to whom duties in connection with
the administration of this Agreement have been delegated in accordance with the
provision of this Agreement.
9. COMPANY RELATION WITH PARTICIPANTS.
Nothing in this Agreement shall confer on the Participant any right to continue
as a director of the Company, the Bank or a division of the Bank.
10. FORCE AND EFFECT.
The various provisions of this Agreement are severable in their entirety. Any
determination of invalidity or unenforceability of any one provision shall have
no effect on the continuing force and effect of the remaining provisions.
11. GOVERNING LAWS.
Except to the extent pre-empted under federal law, the provisions of this
Agreement shall be construed, administered and enforced in accordance with the
domestic internal law of the State of New York.
12. ENTIRE AGREEMENT.
This Agreement contains the entire understanding of the parties and shall not be
modified or amended except in writing and duly signed by the parties. No waiver
by either party of any default under this Agreement shall be deemed a waiver of
any later default.
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IN WITNESS WHEREOF, the parties have executed this Agreement on this
_____ day of ____________, 200__.
NBT BANCORP INC.
By_________________________
President
and
by_________________________
CFO and Treasurer
___________________________
Signature of Participant
___________________________
Name of Participant
(please print)
3