AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 9, 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. NON-EMPLOYEE DIRECTOR, DIVISIONAL
DIRECTOR AND SUBSIDIARY DIRECTOR 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, 500,000 $13.24 $6,620,000 $1,655 (3)
$.01 PAR VALUE SHARES
PER SHARE
- --------------------------------------------------------------------------------------------
(1) PLUS SUCH ADDITIONAL NUMBER OF SHARES AS MAY BE REQUIRED UNDER THE
NON-EMPLOYEE DIRECTOR, DIVISIONAL DIRECTOR AND SUBSIDIARY DIRECTOR
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 NOVEMBER 2, 2001, A DATE
WITHIN FIVE DAYS OF THE DATE ON WHICH THIS REGISTRATION STATEMENT WAS
FILED.
(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; 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; AND BY THE $67 FILING FEE WITH
RESPECT TO THE FORM S-8 REGISTRATION STATEMENT, FILE NO. 333-72772,
FILED ON NOVEMBER 5, 2001, LEAVING A "RULE 457(P) ACCOUNT BALANCE" OF
$7,763.22. 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 $6,108.22.
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.
Item 4 - Description of Securities
- ----------------------------------
This Item is omitted because Bancorp's Common Stock is registered under
Section 12 of the Exchange Act.
3
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
4
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 6th day of
November, 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 November 6, 2001
- ------------------------ Chairman of the Board of and Directors
Daryl R. Forsythe (Principal Executive Officer)
/s/ Michael J. Chewens Executive Vice President and November 6, 2001
- ---------------------- Chief Financial Officer (Principal
Michael J. Chewens Financial and Accounting Officer)
/s/ J. Peter Chaplin Director November 6, 2001
- ---------------------------
J. Peter Chaplin
/s/ Richard Chojnowski Director November 6, 2001
- -----------------------
Richard Chojnowski
/s/ Gene E. Goldenziel Director November 6, 2001
- ------------------------
Gene E. Goldenziel
/s. Peter B. Gregory Director November 6, 2001
- --------------------------
Peter B. Gregory
/s/ William C. Gumble Director November 6, 2001
- ------------------------
William C. Gumble
/s/ Bruce D. Howe Director November 6, 2001
- -------------------------
Bruce D. Howe
/s/ Andrew S. Kowalczyk, Jr. Director November 6, 2001
- ----------------------------
Andrew S. Kowalczyk, Jr.
/s/ John C. Mitchell Director November 6, 2001
- -------------------------
John C. Mitchell
/s/ Joseph G. Nasser Director November 6, 2001
- ------------------------
Joseph G. Nasser
6
/s/ William L. Owens Director November 6, 2001
- -------------------------
William L. Owens
/s/ Paul O. Stillman Director November 6, 2001
- ---------------------------
Paul O. Stillman
7
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. Non-Employee Director, Divisional Director
and Subsidiary Director Stock Option Plan.
8
EXHIBIT 5.1
OPINION AND CONSENT OF DUANE, MORRIS & HECKSCHER LLP
DUANE, MORRIS & HECKSCHER LLP
ATTORNEYS AT LAW
PHILADELPHIA, PA
1667 K STREET N.W., SUITE 700 NEW YORK, NY
WASHINGTON, D.C. 20006_1608 LONDON, ENGLAND
(202) 776_7800 CHICAGO, IL
SAN FRANCISCO, CA
BOSTON, MA
FAX MIAMI, FL
(202) 776_7801 WILMINGTON, DE
HARRISBURG, PA
WWW.DUANEMORRIS.COM WAYNE, PA
CHERRY HILL, NJ
NEWARK, NJ
WESTCHESTER, NY
PRINCETON, NJ
PALM BEACH, FL
November 7, 2001 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 500,000 shares (the "Shares") of common stock, $.01
par value per share ("Common Stock"), pursuant to the Company's Non-Employee
Director, Divisional Director and Subsidiary Director 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 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 Non-Employee Director,
Divisional Director and Subsidiary Director 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
November 7, 2001
EXHIBIT 99.1
NBT BANCORP INC. NON-EMPLOYEE DIRECTOR, DIVISIONAL DIRECTOR
AND SUBSIDIARY DIRECTOR STOCK OPTION PLAN
(AS AMENDED AND RESTATED EFFECTIVE OCTOBER 22, 2001)
OCTOBER 2001
TABLE OF CONTENTS
SECTION 1 - PURPOSE AND DEFINITIONS...............................................................................2
SECTION 2 - ADMINISTRATION........................................................................................3
SECTION 3 - ELIGIBILITY...........................................................................................4
SECTION 4 - SHARES OF STOCK SUBJECT TO THIS PLAN..................................................................4
SECTION 5 - GRANTS OF OPTIONS.....................................................................................4
SECTION 6 - TERMS AND CONDITIONS OF OPTIONS.......................................................................5
SECTION 7 - USE OF PROCEEDS.......................................................................................9
SECTION 8 - LISTING AND REGISTRATION OF SHARES....................................................................9
SECTION 9 - GOVERNING LAW AND REQUIRED GOVERNMENTAL...............................................................9
SECTION 10 - ACCELERATION OF EXERCISABILITY UPON CHANGE OF CONTROL................................................9
SECTION 11 - CAPITAL ADJUSTMENTS.................................................................................10
SECTION 12 - CLAIM TO OPTION, OWNERSHIP, OR RIGHTS TO BE RETAINED................................................11
SECTION 13 - UNSECURED OBLIGATION................................................................................11
SECTION 14 - EXPENSES OF PLAN....................................................................................11
SECTION 15 - RELIANCE ON REPORTS.................................................................................11
SECTION 16 - INDEMNIFICATION.....................................................................................11
SECTION 17 - AMENDMENT AND TERMINATION...........................................................................12
SECTION 18 - PLAN BINDING ON SUCCESSORS..........................................................................12
SECTION 19 - RATIFICATION OF ACTIONS.............................................................................12
SECTION 20 - INVALIDITY OR UNENFORCEABILITY......................................................................12
SECTION 21 - EFFECTIVE DATE OF PLAN..............................................................................12
i
NBT BANCORP INC. NON-EMPLOYEE DIRECTOR, DIVISIONAL DIRECTOR
AND SUBSIDIARY DIRECTOR STOCK OPTION PLAN
(AS AMENDED AND RESTATED EFFECTIVE OCTOBER 22, 2001)
SECTION 1 - PURPOSE AND DEFINITIONS
(a) Purpose. The purpose of the NBT BANCORP INC. NON-EMPLOYEE DIRECTOR,
DIVISIONAL DIRECTOR AND SUBSIDIARY DIRECTOR STOCK OPTION PLAN is to provide a
means whereby NBT BANCORP INC. may, through the grant to Non-Employee Directors
and Non-Employee Divisional Directors of Options under a formula, attract and
retain such Non-Employee Directors and Non-Employee Divisional Directors and
motivate such Non-Employee Directors and Non-Employee Divisional Directors to
exercise their best efforts on behalf of the Company and the Related
Corporations.
(b) Definitions.
(i) Board means the Board of Directors of the Company.
(ii) Common Stock means the common stock of the Company, par value $.01
per share.
(iii) Code means the Internal Revenue Code of 1986, as amended, or any
similar statute hereafter enacted.
(iv) Committee means the Compensation and Benefits Committee of the
Board which Committee shall consist of not fewer than three Regulatory
Non-Employee Directors. Each member of the Committee, while serving as such,
shall be deemed to be acting in his or her capacity as a director.
(v) Company means NBT BANCORP INC., a Delaware corporation, with its
principal office located at 52 South Broad Street, Norwich, New York 13815.
(vi) Expiration Date means the date the term of a Non-Employee
Director's or Non-Employee Divisional Director's Option expires.
(vii) Fair Market Value means the average of the twelve prices
representing (A) the highest quoted selling prices of the Common Stock on the
National Market System of NASDAQ during each of the six days including the date
of grant and each of the five preceding trading days prior to the date of grant
and (B) the lowest quoted selling prices of the Common Stock on the National
Market System of NASDAQ during each of the six days including the date of grant
and each of the five preceding trading days prior to the date of grant. If there
is no sale reported on the National Market System of NASDAQ for any particular
date within that six-day period, then selling prices for that date shall be
dropped from the average and there shall be added, to the selling prices used in
calculating Fair Market Value, the selling prices for that number of the most
recent preceding trading day or days on which sales were reported on the
National Market System of NASDAQ so that the number of trading days used in
calculating the average selling price shall equal six trading days.
(viii) Non-Employee Director means a director of the Company or of a
Related Corporation who is not an employee of the Company or any Related
Corporation.
(ix) Non-Employee Divisional Director means a director of a division of
NBT Bank, National Association or of a Related Corporation but only if such
director is not an employee of the Company or any Related Corporation.
(x) Option means a non-qualified stock option, i.e., a stock option
that does not qualify as an incentive stock option within the meaning of section
422 of the Code. The term "Option" shall also include a "Reload Option," as such
term is defined in Section 6(l).
2
(xi) Option Agreement means a written document evidencing the grant of
an Option, as described in Section 6(k).
(xii) Optionee means a Non-Employee Director or a Non-Employee
Divisional Director to whom an Option has been granted under the Plan.
(xiii) Parent Corporation means any corporation (other than the
Company) in an unbroken chain of corporations ending with the Company if, at the
time of the granting of the Option, each of the corporations other than the
Company owns stock possessing 50 percent or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.
(xiv) Plan means the NBT BANCORP INC. NON-EMPLOYEE DIRECTOR, DIVISIONAL
DIRECTOR AND SUBSIDIARY DIRECTOR STOCK OPTION PLAN.
(xv) Regulatory Non-Employee Director means a director of the Company
or of a Related Corporation who:
(A) Is not currently an officer (as defined in 17 CFR
240.16a-1(f)) of, or otherwise currently employed by, the
Company or a parent or subsidiary of the Company within the
meaning of 17 CFR 240.16b-3(b)(3);
(B) Does not receive compensation, either directly or
indirectly, from the Company or a parent or subsidiary of the
Company within the meaning of 17 CFR 240.16b-3(b)(3) for
services rendered as a consultant or in any other capacity
other than as a director, except for an amount that does not
exceed the dollar amount for which disclosure would be
required under 17 CFR 229.404(a);
(C) Does not possess an interest in any other transaction for
which disclosure would be required pursuant to 17 CFR
229.404(a); and
(D) Is not engaged in a business relationship for which
disclosure would be required pursuant to 17 CFR 229.404(b).
(xvi) Related Corporation means either a Subsidiary of the Company
(whether or not in existence at the time the Plan is adopted) or a Parent
Corporation of the Company.
(xvii) Retirement means the termination of a Non-Employee Director's or
Non-Employee Divisional Director's service as a director or divisional director
of the Company or of a Related Corporation on or after his or her attainment of
age 70.
(xvii) Subsidiary means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if, at the time of the
granting of the Option, each of the corporations other than the last corporation
in the unbroken chain owns stock possessing 50 percent or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
SECTION 2 - ADMINISTRATION
The Plan shall be administered by the Committee. The Committee shall
have full authority, subject to the terms of the Plan, to interpret the Plan.
Subject to the terms of the Plan, the Committee may correct any defect, supply
any omission, and reconcile any inconsistency in this Plan and in any Option
granted hereunder in the manner and to the extent it shall deem desirable. The
Committee also shall have the authority to establish such rules and regulations,
not inconsistent with the provisions of the Plan, for the proper administration
of the Plan, and to amend, modify, or rescind any such rules and regulations,
and to make such determinations and interpretations under, or in connection
with, the Plan, as it deems necessary or advisable. All such rules, regulations,
determinations, and interpretations shall be final, binding and conclusive upon
the Company, its stockholders, and all Non-Employee Directors and Non-Employee
3
Divisional Directors (including former Non-Employee Directors and former
Non-Employee Divisional Directors), upon their respective legal representatives,
beneficiaries, successors, and assigns, and upon all other persons claiming
under or through any of them. No member of the Board or the Committee shall be
liable for any action or determination made in good faith with respect to the
Plan or any Option granted hereunder. 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.
SECTION 3 - ELIGIBILITY
The persons who shall be eligible to receive Options under the Plan
shall be the Company's and Related Corporation's Non-Employee Directors and
Non-Employee Divisional Directors.
SECTION 4 - SHARES OF STOCK SUBJECT TO THIS PLAN
Subject to adjustment as provided in Section 11 hereof, 500,000 shares
of Common Stock shall be available for the grant of Options under the Plan,
which shares of Common Stock may be authorized but unissued shares of Common
Stock or reacquired shares of Common Stock, as the Company shall determine.
If any Option granted under the Plan expires or otherwise terminates or
is cancelled, in whole or in part, for any reason whatever (including, without
limitation, the Non-Employee Director's or Non-Employee Divisional Director's
surrender thereof) without having been exercised, the shares of Common Stock
subject to the unexercised portion of such Option shall be available for the
granting of Options under the Plan as fully as if such shares of Common Stock
had never been subject to an Option.
SECTION 5 - GRANTS OF OPTIONS
(a) Initial Grant.
(i) Non-Employee Directors of Company. Effective on the first
regularly scheduled Board meeting in 2001 (i.e., January 22, 2001) (the
"Original Effective Date"), each Non-Employee Director of the Company
was automatically granted an Option to purchase 1,000 shares of Common
Stock, subject to adjustment pursuant to Section 11.
(ii) Non-Employee Directors and Non-Employee Divisional
Directors of NBT Bank, National Association. On the Original Effective
Date, each Non-Employee Director and each Non-Employee Divisional
Director of NBT Bank, National Association was automatically granted an
Option to purchase 500 shares of Common Stock, subject to adjustment
pursuant to Section 11.
(iii) Non-Employee Directors and Non-Employee Divisional
Directors of Related Corporation other than NBT Bank, National
Association. On the Original Effective Date, each Non-Employee Director
and each Non-Employee Divisional Director of a Related Corporation
other than NBT Bank, National Association was automatically granted an
Option to purchase 250 shares of Common Stock, subject to adjustment
pursuant to Section 11.
(b) Subsequent Grants.
(i) Non-Employee Directors of Company. On the first regularly
scheduled Board meeting in each year following 2001, each Non-Employee
Director of the Company shall automatically be granted an Option to
purchase that number of shares of Common Stock equal to 1,000
multiplied by a fraction, the denominator of which is the number of
regularly scheduled Board meetings held during the calendar year
preceding the date of grant and the numerator of which is the number of
regularly scheduled Board meetings actually attended by such
Non-Employee Director during such preceding calendar year, subject to
adjustment pursuant to Section 11.
(ii) Non-Employee Directors of NBT Bank, National Association
and Non-Employee Divisional Directors of NBT Bank, National
Association.
4
(A) Non-Employee Directors of NBT Bank, National Association. On the
first regularly scheduled NBT Bank, National Association Board of Directors
meeting in each year following 2001, each Non-Employee Director of NBT Bank,
National Association shall automatically be granted an Option to purchase that
number of shares of Common Stock equal to 500 multiplied by a fraction, the
denominator of which is the number of NBT Bank, National Association regularly
scheduled Board of Director meetings held during the calendar year preceding the
date of grant and the numerator of which is the number of NBT Bank, National
Association regularly scheduled Board of Director meetings actually attended by
such Non-Employee Director during such preceding calendar year, subject to
adjustment pursuant to Section 11.
(B) Non-Employee Divisional Directors of NBT Bank, National
Association. On the first regularly scheduled NBT Bank, National Association
Divisional Director meeting in each year following 2001, each Non-Employee
Divisional Director of NBT Bank, National Association shall automatically be
granted an Option to purchase that number of shares of Common Stock equal to 500
multiplied by a fraction, the denominator of which is the number of NBT Bank,
National Association regularly scheduled Divisional Director meetings held
during the calendar year preceding the date of grant and the numerator of which
is the number of NBT Bank, National Association regularly scheduled Divisional
Director meetings actually attended by such Non-Employee Divisional Director
during such preceding calendar year, subject to adjustment pursuant to Section
11.
(iii) Non-Employee Directors and Non-Employee Divisional Directors of
Related Corporation other than NBT Bank, National Association.
(A) Non-Employee Directors of Related Corporation other than NBT Bank,
National Association. On the first regularly scheduled Related Corporation Board
of Directors meeting in each year following 2001, each Non-Employee Director of
a Related Corporation other than NBT Bank, National Association, shall
automatically be granted an Option to purchase that number of shares of Common
Stock equal to 250 multiplied by a fraction, the denominator of which is the
number of such Related Corporation regularly scheduled Board of Director
meetings held during the calendar year preceding the date of grant and the
numerator of which is the number of Related Corporation regularly scheduled
Board of Director meetings actually attended by such Non-Employee Director
during such preceding calendar year, subject to adjustment pursuant to Section
11.
(B) Non-Employee Divisional Directors of Related Corporation other than
NBT Bank, National Association. On the first regularly scheduled Related
Corporation Divisional Director meeting in each year following 2001, each
Non-Employee Divisional Director of a Related Corporation other than NBT Bank,
National Association, shall automatically be granted an Option to purchase that
number of shares of Common Stock equal to 250 multiplied by a fraction, the
denominator of which is the number of such Related Corporation regularly
scheduled Divisional Director meetings held during the calendar year preceding
the date of grant and the numerator of which is the number of Related
Corporation regularly scheduled Divisional Director meetings actually attended
by such Non-Employee Divisional Director during such preceding calendar year,
subject to adjustment pursuant to Section 11.
For purposes of Section 5(a) and (b), presence at a Board meeting or a Board of
Directors meeting or a Divisional Directors meeting for purposes of determining
whether a quorum is present at such meeting shall constitute attendance at any
such meeting.
SECTION 6 - TERMS AND CONDITIONS OF OPTIONS
Options granted pursuant to the Plan shall be subject to the following
terms and conditions:
(a) Number of Shares. The number of shares of Common Stock to which an
Option pertains shall be the number provided by Section 5 on the date of grant
of such Option (subject to adjustment pursuant to Section 11).
(b) Price. The Option exercise price per share of Common Stock under
each Option granted under the Plan shall be the greater of 100% of the Fair
Market Value of the shares of Common Stock, or the par value thereof, on the
date such Option is granted.
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(c) Term. Subject to earlier termination as provided in Section 6(e),
(f), (g), (h) and (m) below and in Section 11(b) hereof, the term of each Option
shall be ten years from the date of grant.
(d) Exercise. Options shall be exercisable in installments commencing
one year after the date of grant in accordance with the following schedule:
YEARS AFTER EXERCISABLE
DATE OF GRANT PORTION
------------- -------
1 40%
2 60%
3 80%
4 100%
Except as otherwise provided in Section 6(e), (f), (g) and (h) below, Options
shall only be exercisable by a Non-Employee Director or a Non-Employee
Divisional Director while he or she remains a Non-Employee Director or a
Non-Employee Divisional Director. Subject to Section 6(e), (f), (g), (h) and (m)
below, any shares of Common Stock the right to the purchase of which has accrued
under an Option may be purchased at any time up to the expiration or termination
of the Option. Options may be exercised, in whole or in part, from time to time
by giving written notice of exercise to the Treasurer or Secretary of the
Company at its principal office, specifying the number of shares of Common Stock
to be purchased and accompanied by payment in full of the aggregate price for
such shares of Common Stock. Only full shares of Common Stock shall be
delivered, and any fractional share of Common Stock which might otherwise be
deliverable upon exercise of an Option granted hereunder shall be forfeited. The
Option exercise price shall be payable:
(i) In cash or its equivalent;
(ii) Unless in the opinion of counsel to the Company to do so
may result in a possible loss of an exemption from short-swing profit liability
by the transfer, in whole or in part, of Common Stock newly acquired upon
exercise of an Option or Common Stock previously acquired by the Non-Employee
Director or Non-Employee Divisional Director, provided the previously acquired
Common Stock so transferred has been held by the Non-Employee Director or
Non-Employee Divisional Director for more than six (6) months on the date of
exercise. In the event such Option exercise price is paid, in whole or in part,
with Common Stock, the portion of the Option exercise price so paid shall equal
the Fair Market Value of the Common Stock so surrendered (determined in
accordance with Section 1(b)(vii), but on the date of exercise rather than on
the date of grant); or
(iii) By permitting the Non-Employee Director or Non-Employee
Divisional Director to deliver a properly executed notice of exercise of the
Option to the Company and a broker, with irrevocable instructions to the broker
promptly to deliver to the Company the amount of sale or loan proceeds necessary
to pay the exercise price of the Option.
(e) Expiration of Term or Removal of Non-Employee Director as a
Director or Removal of Non-Employee Divisional Director as a Divisional
Director.
(i) Non-Employee Director. If a Non-Employee Director's
service as a director of the Company and all Related Corporations terminates
prior to the Expiration Date of the Non-Employee Director's Option for any
reason (such as, without limitation, failure to be re-elected by the
stockholders) other than those reasons set forth in Section 6(f), (g), (h) and
(m) below, such Option may be exercised by the Non-Employee Director, to the
extent of the number of shares of Common Stock with respect to which the
Non-Employee Director could have exercised it on the day prior to the date of
such termination of service as a director, at any time prior to the earlier of:
(i) the Expiration Date of such Option, or (ii) the date twelve months after the
date of such termination of service as a director.
(ii) Non-Employee Divisional Director. If a Non-Employee
Divisional Director's service as a divisional director of all Related
Corporations terminates prior to the Expiration Date of the Non-Employee
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Divisional Director's Option for any reason other than those reasons set forth
in Section 6(f), (g), (h) and (m) below, such Option may be exercised by the
Non-Employee Divisional Director, to the extent of the number of shares of
Common Stock with respect to which the Non-Employee Divisional Director could
have exercised it on the day prior to the date of such termination of service as
a divisional director, at any time prior to the earlier of: (i) the Expiration
Date of such Option, or (ii) the date twelve months after the date of such
termination of service as a divisional director.
(f) Disability of Non-Employee Director or Non-Employee Divisional
Director.
(i) Non-Employee Director. If a Non-Employee Director shall
become disabled (within the meaning of section 22(e)(3) of the Code) during the
period in which he or she is a director of the Company and, if he or she is a
director of one or more Related Corporations, of each such Related Corporation
and, prior to the Expiration Date of the Non-Employee Director's Option, his or
her position as a director of the Company and, if he or she is a director of one
or more Related Corporations, of each such Related Corporation is terminated as
a consequence of such disability, such Option may be exercised, in full, by the
Non-Employee Director at any time prior to the Expiration Date of such Option.
In the event of the Non-Employee Director's legal disability, such Option may be
so exercised by the Non-Employee Director's legal representative.
(ii) Non-Employee Divisional Director. If a Non-Employee
Divisional Director shall become disabled (within the meaning of section
22(e)(3) of the Code) during the period in which he or she is a divisional
director of a Related Corporation and, prior to the Expiration Date of the
Non-Employee Divisional Director's Option, his or her position as a divisional
director of such Related Corporation is terminated as a consequence of such
disability, such Option may be exercised, in full, by the Non-Employee
Divisional Director at any time prior to the Expiration Date of such Option. In
the event of the Non-Employee Divisional Director's legal disability, such
Option may be so exercised by the Non-Employee Divisional Director's legal
representative.
(g) Death of Non-Employee Director or Non-Employee Divisional Director.
(i) Non-Employee Director. If a Non-Employee Director ceases
to be a director of the Company or of a Related Corporation by reason of his or
her death prior to the Expiration Date of the Non-Employee Director's Option, or
if a Non-Employee Director who ceases to be a director for reasons described in
Section 6(e), (f) and (h) shall die following his or her ceasing to be a
director of the Company and, if he or she was a director of one or more Related
Corporations, of each such Related Corporation but prior to the earlier of the
Expiration Date of such Option or expiration of the period specified in Section
6(e), (f) or (h), such Option may be exercised, in full, by the Non-Employee
Director's estate, personal representative or beneficiary who acquired the right
to exercise such Option by bequest or inheritance or by reason of the death of
the Non-Employee Director, at any time prior to the Expiration Date of such
Option (which, in the case of death following a termination of service as
director of the Company and, if he or she was a director of one or more Related
Corporations, of each such Related Corporation pursuant to Section 6(e), (f) or
(h), shall be deemed to mean the expiration of the exercise period specified
therein).
(ii) Non-Employee Divisional Director. If a Non-Employee
Divisional Director ceases to be a divisional director of a Related Corporation
by reason of his or her death prior to the Expiration Date of the Non-Employee
Divisional Director's Option, or if a Non-Employee Divisional Director who
ceases to be a director for reasons described in Section 6(e) (f) or (h) shall
die following his or her ceasing to be a divisional director of such Related
Corporation but prior to the earlier of the Expiration Date of such Option or
expiration of the period specified in Section 6(e), (f) or (h), such Option may
be exercised, in full, by the Non-Employee Divisional Director's estate,
personal representative or beneficiary who acquired the right to exercise such
Option by bequest or inheritance or by reason of the death of the Non-Employee
Divisional Director, at any time prior to the Expiration Date of such Option
(which, in the case of death following a termination of service as divisional
director of such Related Corporation pursuant to Section 6(e), (f) or (h), shall
be deemed to mean the expiration of the exercise period specified therein).
(h) Retirement of Non-Employee Director or Non-Employee Divisional
Director.
(i) Non-Employee Director. If a Non-Employee Director ceases
to be a director of the Company and of all Related Corporations by reason of his
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or her Retirement prior to the Expiration Date of the Non-Employee Director's
Option, such Option may be exercised, in full, by the Non-Employee Director at
any time prior to the Expiration Date of such Option.
(ii) Non-Employee Divisional Director. If a Non-Employee
Divisional Director ceases to be a divisional director of the Company and of all
Related Corporations by reason of his or her Retirement prior to the Expiration
Date of the Non-Employee Divisional Director's Option, such Option may be
exercised, in full, by the Non-Employee Divisional Director at any time prior to
the Expiration Date of such Option.
(i) Transferability. Except as provided in the following sentence, no
Option shall be assignable or transferable by any Non-Employee Director or
Non-Employee Divisional Director otherwise than by will or by the laws of
descent and distribution. The Committee may, in its discretion, authorize all or
a portion of an Option to be granted on terms which permit transfer by the
Non-Employee Director or Non-Employee Divisional Director to (i) the spouse,
children, or grandchildren of the Non-Employee Director or Non-Employee
Divisional Director ("Immediate Family Members"), (ii) a trust or trusts for the
exclusive benefit of such Immediate Family Members, or (iii) a partnership in
which such Immediate Family Members are the only partners, provided that (x)
there may be no consideration for any such transfer, (y) the Option Agreement
pursuant to which such Option is granted must be approved by the Committee and
must expressly provide for transferability in a manner consistent with this
Section, and (z) subsequent transfers of the Option shall be prohibited other
than by will or the laws of descent and distribution. A transferred Option shall
be subject to the same terms and conditions as were applicable to the Option
immediately prior to transfer. The events of termination of service under this
Section applicable to Non-Employee Directors and Non-Employee Divisional
Directors shall be applicable to holders of a transferred Option; the provisions
of Section 6(e), (f), (g), (h) and (m) shall be applicable to a transferred
Option.
(j) Rights as a Stockholder. A Non-Employee Director or Non-Employee
Divisional Director shall have no rights as a stockholder with respect to any
shares of Common Stock covered by an Option until the issuance of a stock
certificate representing such shares of Common Stock.
(k) Option Agreements. Options granted under the Plan shall be
evidenced by an Option Agreement, in such form, as the Committee shall, from
time to time, approve. The Option Agreement shall contain such provisions, not
inconsistent with the provisions of the Plan, as the Committee shall deem
advisable. As soon as practicable after the grant of an Option, each
Non-Employee Director and each Non-Employee Divisional Director receiving such
grant shall enter into, and be bound by the terms of, such Option Agreement.
(l) Reload Options.
(i) Except as otherwise provided herein, for each share of Common Stock
purchased by an Optionee upon the exercise of an Option pursuant to the Plan,
the Optionee, if he or she is, at the time of exercise, a current Non-Employee
Director or a Non-Employee Divisional Director shall receive a replacement
option (a "Reload Option") to purchase another share of Common Stock at the Fair
Market Value of such share of Common Stock, determined in accordance with
Section 1(b)(vii), but on the date of grant of the Reload Option.
(ii) A Reload Option shall become exercisable two years after the date
of its grant, provided the Optionee is then a Non-Employee Director or retired
Non-Employee Director or a Non-Employee Divisional Director or a retired
Non-Employee Divisional Director, 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 the terms and conditions of the Option
Agreement, provided such terms and conditions are not inconsistent with the
terms of the Plan.
(iii) No Reload Option shall be granted upon exercise of a Reload
Option.
(m) Termination of Service for Cause.
(i) If an Optionee's service as a director of the Company or
of a Related Corporation shall terminate for "cause," as defined below, all
Options held by such Optionee at the date of such termination shall be deemed
forfeited, immediately terminated, and rendered null and void. If an Optionee's
8
service as a divisional director of a Related Corporation shall terminate for
"cause," as defined below, all Options held by such Optionee at the date of such
termination shall be deemed forfeited, immediately terminated, and rendered null
and void.
(ii) Termination of an Optionee's service as a director of the
Company or of a Related Corporation or termination of an Optionee's service as a
divisional director of a Related Corporation 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 or of a Related Corporation which causes the Company or a Related
Corporation 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 (exclusive of the Optionee) of
the entire membership of the Board (exclusive of the Optionee) 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.
SECTION 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.
SECTION 8 - LISTING AND REGISTRATION OF SHARES
Each Option shall be subject to the requirement that, if at any time
the Company shall determine, in its discretion, that the listing, registration
or qualification of the Option or shares of Common Stock covered thereby upon
any securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body, is necessary or desirable as a
condition of, or in connection with, the granting of such Option or the exercise
thereof, or that action by the Company or by the Non-Employee Director or by the
Non-Employee Divisional Director should be taken in order to obtain an exemption
from any such requirement, no such Option may be exercised, in whole or in part,
unless and until such listing, registration, qualification, consent, approval,
or action shall have been effected, obtained, or taken under conditions
acceptable to the Company. Without limiting the generality of the foregoing,
each Non-Employee Director or his or her legal representative or beneficiary and
each Non-Employee Divisional Director or his or her legal representative or
beneficiary may also be required to give satisfactory assurance that shares of
Common Stock acquired upon exercise of an Option are being acquired for
investment and not with a view to distribution, and certificates representing
such shares of Common Stock may be legended accordingly.
SECTION 9 - GOVERNING LAW AND REQUIRED GOVERNMENTAL AND STOCK EXCHANGE APPROVAL
(a) Governing Law. The operation of, and the rights of Non-Employee
Directors and of Non-Employee Divisional Directors under, the Plan, the Option
Agreements, and any Options granted hereunder shall be governed by the laws of
the State of Delaware.
(b) Issuance of Shares subject to Required Governmental and Stock
Exchange Approval. Shares shall not be issued under the Plan except upon
approval of proper governmental agencies or stock exchanges as may be required.
SECTION 10 - ACCELERATION OF EXERCISABILITY UPON CHANGE OF CONTROL
(a) Full Exercisability on Change of Control. Immediately upon the
occurrence of a Change of Control of the Company, all Options shall immediately
become exercisable in full, including that portion of any Option that had not
theretofore become exercisable.
(b) Definition of Change of Control. 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
9
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 stockholders, 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 of Control; or
(iv) Approval by the stockholders of the Company of any plan or
proposal for the liquidation or dissolution of the Company.
(c) Definition of Person. For purposes of these "Change of 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, a Related
Corporation or any employee benefit plan(s) sponsored by the Company or a
Related Corporation.
(d) Definition of Voting Securities. The term "Voting Securities" shall
mean the Company's outstanding securities ordinarily having the right to vote at
elections of directors.
SECTION 11 - CAPITAL ADJUSTMENTS
The number of shares of Common Stock which may be issued under the
Plan, and the maximum number of shares of Common Stock with respect to which
Options may be granted during a specified period to any Non-Employee Director or
Non-Employee Divisional Director under the Plan, as stated in Section 4 hereof,
and the number of shares of Common Stock issuable upon exercise of outstanding
Options under the Plan (as well as the Option price per share of Common Stock
under such outstanding Options), shall, subject to the provisions of section
424(a) of the Code, be adjusted to reflect any stock dividend, stock split,
share combination, or similar change in the capitalization of the Company.
Notwithstanding the foregoing, 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
the Employee Stock Purchase Plan or of any warrants, rights, or options to
acquire additional shares of Common Stock or of securities convertible into
Common Stock.
In the event of a corporate transaction (as that term is described in
section 424(a) of the Code and the Treasury Regulations issued thereunder as,
for example, a merger, consolidation, acquisition of property or stock,
separation, reorganization, or liquidation), each outstanding Option shall be
assumed by the surviving or successor corporation or by a parent or subsidiary
of such corporation if such corporation is the employer corporation (as provided
in section 424(a) of the Code and the Treasury Regulations thereunder);
provided, however, that, in the event of a proposed corporate transaction, the
Committee may terminate all or a portion of the outstanding Options if it
determines that such termination is in the best interests of the Company. If the
Committee decides to terminate outstanding Options, the Committee shall give
each Non-Employee Director and each Non-Employee Divisional Director holding an
Option to be terminated not less than seven days' notice prior to any such
termination by reason of such a corporate transaction, and any such Option which
is to be so terminated may be exercised (if and only to the extent that it is
then exercisable) up to, and including the date immediately preceding such
termination. Further,
10
the Committee, in its discretion, may accelerate, in whole or in part, the date
on which any or all such Options become exercisable.
SECTION 12 - CLAIM TO OPTION, OWNERSHIP, OR RIGHTS TO BE RETAINED AS A DIRECTOR
OR DIVISIONAL DIRECTOR
No Non-Employee Director, Non-Employee Divisional Director or other
person shall have any claim or right to be granted Options under this Plan other
than as specifically provided herein. No Optionee, prior to issuance of the
Common 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 director any
right to be retained as a director of the Company or of a Related Corporation or
as giving any divisional director any right to be retained as a divisional
director of a Related Corporation.
SECTION 13 - 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.
SECTION 14 - EXPENSES OF PLAN
The expenses of administering the Plan shall be borne by the Company.
SECTION 15 - RELIANCE ON REPORTS
Each member of the Committee and each member of the Board shall be
fully justified in relying or acting in good faith upon any report made by the
independent public accountants of the Company and the Related Corporations and
upon any other information furnished in connection with the Plan by any person
or persons other than himself or herself. In no event shall any person who is or
shall have been a member of the Committee or of the Board 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.
SECTION 16 - INDEMNIFICATION
Each person who is or shall have been a member of the Committee or of
the Board 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 or her in connection with or resulting from any claim, action,
suit, or proceeding to which he or she 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 or her in
settlement thereof, with the Company's approval, or paid by him or her in
satisfaction of judgment in any such action, suit, or proceeding against him or
her, provided he or she shall give the Company an opportunity, at its own
expense, to handle and defend the same before he or she undertakes to handle and
defend it on his or her 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 Certificate of Incorporation or Bylaws, as a
matter of law, or otherwise, or any power that the Company may have to indemnify
them or hold them harmless.
11
SECTION 17 - AMENDMENT AND TERMINATION
Unless this Plan shall theretofore have been terminated as hereinafter
provided, no Options may be granted after January 31, 2011. The Board may
terminate this Plan or modify or amend this Plan in such respect as it shall
deem advisable, provided, however, that the Board may not without further
approval by the Company's stockholders (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 11, (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.
SECTION 18 - PLAN BINDING ON SUCCESSORS
The Plan shall be binding upon the successors and assigns of the
Company.
SECTION 19 - RATIFICATION OF ACTIONS
By accepting any Option or other benefit under the Plan, each Optionee
or other person claiming under or through such Optionee 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.
SECTION 20 - 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.
SECTION 21 - EFFECTIVE DATE OF PLAN
The Plan was adopted by the Board on December 18, 2000 to become
effective on January 22, 2001, provided the Plan was approved by the
stockholders of the Company within twelve (12) months following the date of
adoption of the Plan by the Board. Since the Plan was approved by the Company's
stockholders on May 3, 2001, the Plan became effective on January 22, 2001.
The effective date of the Plan, as amended and restated herein, is
October 22, 2001, the date the Plan, as amended and restated herein, was adopted
by the Board.
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