As filed with the Securities and Exchange Commission on August 13, 2002
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
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
52 South Broad Street, Norwich, New York 13815
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(Address of Principal Executive Offices) (Zip Code)
NBT BANCORP INC. 401(k) AND EMPLOYEE STOCK OWNERSHIP PLAN
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(Full Title of the Plan)
Daryl R. Forsythe
Chief Executive Officer, President
and Chairman of the Board
NBT Bancorp Inc.
52 South Broad Street, Norwich, New York 13815 (607) 337-2265
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(Name, address and telephone number of agent for service)
Copy to:
Brian D. Alprin, Esq.
Laurence S. Lese, Esq.
Duane Morris LLP
1667 K Street, N.W., Suite 700
Washington, D.C. 20006
(202) 776-7800
Calculation of Registration Fee
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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
- --------------------------------------------------------------------------------------------------------------
Plan Interests (3)
Common Stock,
par value 1,000,000
$.01 per share shares $17.60 $17,600,000 $1,619.20(4)
- --------------------------------------------------------------------------------------------------------------
(1) Plus such additional number of shares as may be required pursuant to
the NBT Bancorp Inc. 401(k) and Employee Stock Ownership 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 August 6, 2002, a date within
five days of the date on which this registration statement was filed.
(3) Pursuant to Instruction F of the General Instructions of Form S-8 and
Rule 416(c), this registration statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the NBT Bancorp
Inc. 401(k) and Employee Stock Ownership 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 $52,137.22 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; by the $67 filing fee with
respect to the Form S-8 registration statement, File No. 333-72772,
filed on November 5, 2001, and by the $1,655 filing fee with respect to
the Form S-8 registration statement, File No. 333-73038, filed on
November 9, 2001, leaving a "Rule 457(p) Account Balance" of $6,108.22.
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 $4,489.02
An Index to Exhibits is included on page 7 of this Form S-8.
PART I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the instructions for 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 employees 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"), and those documents and portions of documents filed by or on
behalf of the NBT Bancorp Inc. 401(k) and Employee Stock Ownership Plan (the
"Plan"), 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, 2001.
(b) Bancorp's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2002.
(c) Bancorp's Form 8-A/A filed with the SEC on May 9, 2000.
(d) Bancorp's Form 8-A/A filed with the SEC on February 24,
2000;
(e) The description of Bancorp's common stock as set forth
under the caption "DESCRIPTION OF NBT CAPITAL STOCK"
presented in the prospectus portion of Bancorp's Form S-4
Registration Statement, SEC File No. 333-66472, filed with
the SEC on August 1, 2001 and Bancorp's SEC Rule 424(b)(3)
prospectus relative to the Form S-4 Registration Statement
filed with the SEC on September 10, 2001.
Bancorp and the Plan additionally incorporate by reference herein all
documents to be subsequently filed by Bancorp and the Plan, respectively,
pursuant to Sections 13, 14 or 15(d) of the Exchange Act, 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 deem
such documents to be part hereof 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 herein. 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.
Item 5 - Interests of Named Experts and Counsel
- -----------------------------------------------
Members of Duane Morris 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 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 threatened, pending or completed 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 or officer of another corporation, partnership, joint
venture, trust, or other enterprise, to the maximum extent authorized and in the
manner prescribed 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, with certain
exceptions.
Item 7 - Exemption from Registration Claimed
- --------------------------------------------
This Item is omitted because it is not applicable.
Item 8 - Exhibits
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The exhibits to this registration statement are listed in the Exhibit
Index included elsewhere herein.
Pursuant to Instruction (b) under Item 8 of Form S-8, the Registrant
hereby undertakes that it will submit or has submitted the Plan and any
amendment thereto to the Internal Revenue Service ("IRS") in a timely manner and
has made or will make all changes required by the IRS in order to qualify the
Plan.
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 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 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 Exchange Act) 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.
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 22nd day of July
2002.
NBT BANCORP INC.
By: /s/ Daryl R. Forsythe
--------------------------------
Daryl R. Forsythe
Chief Executive Officer, President and
Chairman of the Board
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 Chief Executive Officer, President and July 22, 2002
- ------------------------- Chairman of the Board of Directors
Daryl R. Forsythe (Principal Executive Officer)
/s/ Michael J. Chewens Senior Executive Vice President and July 22,2002
- ------------------------- Chief Financial Officer (Principal
Michael J. Chewens Financial and Accounting Officer)
/s/ Richard Chojnowski Director July 22, 2002
- -------------------------
Richard Chojnowski
/s/ Gene E. Goldenziel Director July 22, 2002
- -------------------------
Gene E. Goldenziel
/s/ Peter B. Gregory Director July 22, 2002
- -------------------------
Peter B. Gregory
/s/ William C. Gumble Director July 22, 2002
- -------------------------
William C. Gumble
/s/ Paul D. Horger Director July 22, 2002
- -------------------------
Paul D. Horger
/s/ Michael H. Hutcherson Director July 22, 2002
- -------------------------
Michael H. Hutcherson
/s/ Janet H. Ingraham Director July 22, 2002
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Janet H. Ingraham
/s/ Andrew S. Kowalczyk, Jr. Director July 22, 2002
- ----------------------------
Andrew S. Kowalczyk, Jr.
/s/ John C. Mitchell Director July 22, 2002
- ----------------------------
John C. Mitchell
/s/ Michael M. Murphy Director July 22, 2002
- ----------------------------
Michael M. Murphy
/s/ Joseph G. Nasser Director July 22, 2002
- ----------------------------
Joseph G. Nasser
/s/ William L. Owens Director July 22, 2002
- ----------------------------
William L. Owens
/s/ Van Ness D. Robinson Director July 22, 2002
- ----------------------------
Van Ness D. Robinson
/s/ Joseph A. Santangelo Director July 22, 2002
- ----------------------------
Joseph A. Santangelo
/s/ Paul O. Stillman Director July 22, 2002
- ----------------------------
Paul O. Stillman
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the trustee 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 July 22, 2002.
NBT Bancorp Inc 401(k) and Employee
Stock Ownership Plan
By: NBT Bank, N.A.
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Trustee of the Plan
By: Timothy J. Handy
----------------------------------
Senior Vice President and
Senior Trust Officer
INDEX TO EXHIBITS
The following documents are attached as exhibits to this Form S-8 or,
as indicated, are incorporated by reference as Exhibits to previous filings of
the Registrant with the Commission.
Exhibit
Number
- ------
5.1 Opinion of Duane Morris LLP.
23.1 Consent of Duane Morris LLP
(contained in their opinion filed as Exhibit 5.1).
23.2 Consent of KPMG LLP.
99.1 NBT Bancorp Inc. 401(k) and Employee Stock Ownership Plan
(incorporated by reference to Exhibits 10.1, 10.2, 10.3, 10.4,
10.5 and 10.6 to the Registrant's Form 10-K annual report for
the year ended December 31, 2001).
EXHIBIT NO. 5.1
OPINION AND CONSENT OF DUANE MORRIS LLP
[Duane Morris LLP Letterhead]
August 12, 2002
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 1,000,000 shares (the "Shares") of common stock,
par value $.01 per share ("Common Stock"), pursuant to the NBT Bancorp Inc.
401(k) and Employee Stock Ownership Plan, as amended (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, 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 legally issued,
fully paid, and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and any amendment thereto.
Sincerely,
/s/ DUANE MORRIS LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
The Board of Directors
NBT Bancorp Inc.:
We consent to the incorporation by reference in the registration statement on
Form S-8 of NBT Bancorp Inc. relating to the registration of shares for the NBT
Bancorp Inc. 401(k) and Employee Stock Ownership Plan, filed under the
Securities Act of 1933 of our audit report dated January 28, 2002, relating to
the consolidated balance sheets of NBT Bancorp Inc. and subsidiaries as of
December 31, 2001 and 2000, 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, 2001 which report appears
in the December 31, 2001 Annual Report on Form 10-K of NBT Bancorp Inc.,
incorporated by reference herein.
/s/ KPMG LLP
Albany, New York
August 12, 2002