AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 30, 2003
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NBT BANCORP INC.
(Exact name of registrant as specified in its charter)
Delaware 16-1268674
(State or other jurisdiction of (IRS employer identification
incorporation or organization) number)
52 South Broad Street
Norwich, New York 13815
(607) 337-2265
(Address of principal
executive offices)
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NBT Bancorp Inc. Non-employee Directors' Restricted and Deferred Stock Plan
(Full title of the Plan)
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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:
Stuart G. Stein, Esq.
Amit Saluja, Esq.
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202) 637-8575
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CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(2) PER SHARE (1) PRICE (1)(2) FEE (1)(2)
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Common Stock 200,000 $ 19.99 $ 3,998,000 $ 323.44
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(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule
457(h) of the Securities Act of 1933, as amended.
(2) The Registrant is registering 200,000 shares of its common stock, par value $0.01 per
share, reserved for issuance pursuant to the NBT Bancorp Inc. Non-employee Directors'
Restricted and Deferred Stock Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1) of the Securities Act
of 1933, as amended (the "Securities Act"). In accordance with the instructions
to Part I of Form S-8, such documents will not be filed with the ("SEC") either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Securities Act. These documents and the
documents incorporated by reference pursuant to Item 3 of Part II of this
registration statement, taken together, constitute the prospectus as required by
Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
NBT Bancorp Inc. ("NBT") hereby incorporates by reference into this
registration statement the following documents filed by it with the SEC:
(a) NBT's annual report on Form 10-K for the fiscal year ended
December 31, 2002 (File No. 000-14703) filed with the SEC on
March 28, 2003.
(b) NBT's quarterly report on Form 10-Q for the quarter ended March
31, 2003 (File No. 000-14703) filed with the SEC on May 14, 2003.
(c) The description of NBT common stock, par value $0.01 per share
("Common Stock"), contained under the heading "Description of NBT
Capital Stock" in NBT's registration statement on Form S-4 (File
No. 333-66472) filed with the SEC on August 1, 2001, as amended.
(d) NBT's current reports on Form 8-K filed with the SEC on April 30,
2003 and July 29, 2003 (File Nos. 000-14703).
In addition, all documents and reports filed by NBT subsequent to the
date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment that indicates that all securities offered have been
sold or that deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be part hereof
from the date of filing of such documents or reports. Any statement contained 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 a statement contained herein or in any other
subsequently filed document, which also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
1
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to the provisions of Delaware General Corporation
Law ("DGCL"), Article 6 of the Bylaws of NBT and Article 12 of the Certificate
of Incorporation of NBT.
NBT is a Delaware corporation subject to the applicable
indemnification provisions of the DGCL. Section 145 of the DGCL provides for the
indemnification, under certain circumstances, of persons who are or were
directors, officers, employees or agents of a corporation, or are or were
serving at the request of a corporation in such a capacity with another business
organization or entity, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement in actions, suits or proceedings, whether
civil, criminal, administrative, or investigative, brought or threatened against
or involving such persons because of such person's service in any such capacity.
In the case of actions brought by or in the right of a corporation, Section 145
provides for indemnification of expenses (including attorneys' fees) if the
person seeking indemnification acted in good faith and in a manner that such
person reasonably believed to be in or not opposed to the best interests of the
corporation; provided, however, that no indemnification shall be made in respect
of any claim, issue or matter as to which such person shall been adjudged liable
to the corporation unless, upon a determination by the Court of Chancery or the
court in which such action or suit was brought, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
reasonably and fairly entitled to indemnity for such expenses.
NBT's bylaws contain provisions providing that NBT 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 NBT, or is
or was serving at the request of NBT as a director of another corporation,
partnership, joint venture, trust, or other enterprise, to the maximum extent
authorized by DGCL.
NBT's Certificate of Incorporation provides that a director of NBT
shall not be personally liable to NBT 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 NBT 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 Section 174 of the DGCL; or (4) for any
transaction from which the director derived an improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
Exhibit
No. Exhibit
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4.1 Certificate of Incorporation of NBT (filed as Exhibit 3.1 to
Registrant's Form 10-K for the year ended December 31, 2001, filed
on March 29, 2002 and incorporated herein by reference).
4.2 By-laws of NBT (filed as Exhibit 3.2 to Registrant's Form 10-K for
the year ended December 31, 2001, filed on March 29, 2002 and
incorporated herein by reference).
4.3 Rights Agreement, dated as of November 15, 1994, between NBT
and American Stock Transfer Trust Company as Rights Agent
(filed as Exhibit 4.1 to Registrant's Form 8-A (File No. 000-14703),
filed on November 25, 1994, and incorporated by reference
herein).
4.4 Amendment No. 1 to Rights Agreement, dated as of December 16,
1999, between NBT and American Stock Transfer Trust Company
as Rights Agent (filed as Exhibit 4.2 to Registrant's Form 8-
A/A, (File No. 000-14703), filed on December 21, 1999, and
incorporated by reference herein).
4.5 Amendment No. 2 to Rights Agreement, dated as of April 19,
2000, between NBT and American Stock Transfer Trust
Company as Rights Agent (filed as Exhibit 4.3 to Registrant's
Form 8-A/A, (File No. 000-14703), filed on May 25, 2000, and
incorporated by reference herein).
5 Opinion of Hogan & Hartson L.L.P.
23.1 Consent of KPMG LLP.
23.2 Consent of Hogan & Hartson L.L.P. (contained in Exhibit 5).
99.1 NBT Non-employee Director's Restricted and Deferred Stock Plan
(incorporated by reference to Appendix A of NBT's Definitive Proxy
Statement on Form 14A filed with the SEC on April 4, 2003).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant 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;
3
(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; and
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do 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 SEC by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (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.
(c) Insofar as indemnification for liability arising under the Securities
Act 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 SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant or expenses incurred or
paid by a director, officer or controlling person in 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 of whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
4
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 July 30, 2003.
NBT BANCORP INC.
By: /S/ Daryl R. Forsythe
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Daryl R. Forsythe
President and Chief Executive Officer
Each person whose signature appears below appoints Daryl R. Forsythe or
Michael J. Chewens, jointly and severally, each in his own capacity, as true and
lawful attorneys-in-fact, with full power of substitution in such person's name,
place and stead, in any and all capacities to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the SEC, hereby
ratifying and confirming all that said attorney-in-fact, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on the 28th day of July, 2003.
SIGNATURE TITLE
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President, Chief Executive Officer and
/S/ Daryl R. Forsythe Director (Principal Executive
--------------------- Officer)
Daryl R. Forsythe
Executive Vice President, Chief
/S/ Michael J. Chewens Financial Officer and Secretary
---------------------- (Principal Financial Officer)
Michael J. Chewens
/S/ Richard Chojnowski Director
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Richard Chojnowski
/S/ Patricia T. Civil Director
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Patricia T. Civil
/S/ Gene E. Goldenziel Director
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Gene E. Goldenziel
/S/ Dr. Peter B. Gregory Director
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Dr. Peter B. Gregory
/S/ William C. Gumble Director
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William C. Gumble
5
/S/ Paul D. Horger Director
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Paul D. Horger
/S/ Michael H. Hutcherson Director
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Michael H. Hutcherson
/S/ Janet H. Ingraham Director
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Janet H. Ingraham
/S/ Andrew S. Kowalczyk, Jr. Director
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Andrew S. Kowalczyk, Jr.
/S/ John C. Mitchell Director
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John C. Mitchell
/S/ Michael M. Murphy Director
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Michael M. Murphy
/S/ Joseph G. Nasser Director
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Joseph G. Nasser
/S/ William L. Owens Director
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William L. Owens
/S/ Van Ness D. Robinson Director
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Van Ness D. Robinson
/S/ Joseph A. Santangelo Director
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Joseph A. Santangelo
/S/ Paul O. Stillman Director
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Paul O. Stillman
6
EXHIBIT INDEX
Exhibit
No. Exhibit
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4.1 Certificate of Incorporation of NBT (filed as Exhibit 3.1 to
Registrant's Form 10-K for the year ended December 31, 2001, filed
on March 29, 2002 and incorporated herein by reference).
4.2 By-laws of NBT (filed as Exhibit 3.2 to Registrant's Form 10-K for
the year ended December 31, 2001, filed on March 29, 2002 and
incorporated herein by reference).
4.3 Rights Agreement, dated as of November 15, 1994, between NBT
and American Stock Transfer Trust Company as Rights Agent
(filed as Exhibit 4.1 to Registrant's Form 8-A (File No. 000-14703),
filed on November 25, 1994, and incorporated by reference
herein).
4.4 Amendment No. 1 to Rights Agreement, dated as of December 16,
1999, between NBT and American Stock Transfer Trust Company
as Rights Agent (filed as Exhibit 4.2 to Registrant's Form 8-
A/A, (File No. 000-14703), filed on December 21, 1999, and
incorporated by reference herein).
4.5 Amendment No. 2 to Rights Agreement, dated as of April 19,
2000, between NBT and American Stock Transfer Trust
Company as Rights Agent (filed as Exhibit 4.3 to Registrant's
Form 8-A/A, (File No. 000-14703), filed on May 25, 2000, and
incorporated by reference herein).
5 Opinion of Hogan & Hartson L.L.P.
23.1 Consent of KPMG LLP.
23.2 Consent of Hogan & Hartson L.L.P. (contained in Exhibit 5).
99.1 NBT Non-employee Director's Restricted and Deferred Stock Plan
(incorporated by reference to Appendix A of NBT's Definitive Proxy
Statement on Form 14A filed with the SEC on April 4, 2003).
EXHIBIT 5
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LEGAL OPINION OF HOGAN & HARTSON L.L.P.
July 29, 2003
Board of Directors
NBT Bancorp Inc.
52 South Broad Street
Norwich, New York 13815
Re: NBT Bancorp Inc. Non-employee Directors' Restricted and Deferred Stock
Plan Registration Statement on Form S-8
Ladies and Gentlemen:
We are acting as special counsel to NBT Bancorp Inc., a Delaware
corporation (the "Company"), in connection with its registration statement on
Form S-8 (the "Registration Statement") filed with the Securities and Exchange
Commission relating to the proposed offering of up to 200,000 shares of the
Company's common stock, par value $0.01 per share, all of which shares (the
"Shares") are to be issued by the Company under the Company's Non-employee
Directors' Restricted and Deferred Stock Plan (the "Plan"). This opinion letter
is furnished to you at your request to enable you to fulfill the requirements of
Item 601(b)(5) of Regulation S-K, 17 C.F.R. 229.601(b)(5), in connection with
the Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. The Restated Certificate of Incorporation of the Company, as
certified by the Secretary of State of the State of Delaware on
July 25, 2003 and by the Secretary of the Company on the date
hereof as then being complete, accurate and in effect.
3. The Bylaws of the Company, as certified by the Secretary of the
Company on the date hereof as then being complete, accurate and
in effect.
4. The Plan.
5. Resolutions of the Board of Directors of the Company adopted by
unanimous written consent on March 25, 2003, as certified by the
Secretary of the Company on the date hereof as then being
complete, accurate and in effect, relating to the issuance and
sale of the Shares and arrangements in connection therewith.
6. Resolutions of the stockholders of the Company adopted at a
meeting held on May 1, 2003, as certified by the Secretary of the
Company on the date hereof as being complete, accurate and in
effect, approving the Plan.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of all natural persons, the
accuracy and completeness of all documents submitted to us, the authenticity of
all original documents, and the conformity to authentic original documents of
all documents submitted to us as copies (including telecopies). This opinion
letter is given, and all statements herein are made, in the context of the
foregoing.
This opinion letter is based as to matters of law solely on the
General Corporation Law of the State of Delaware, as amended. We express no
opinion herein as to any other laws, statutes, ordinances, rules or regulations.
As used herein, the term "Delaware General Corporation Law, as amended" includes
the statutory provisions contained therein, all applicable provisions of the
Delaware Constitution and reported judicial decisions interpreting these laws.
Based upon, subject to and limited by the foregoing, we are of the
opinion that the Shares to be issued pursuant to the terms of the Plan have been
duly authorized and, upon issuance therefore in accordance with the terms of the
Plan, will be validly issued, fully paid and non-assessable.
This opinion letter has been prepared solely for your use in
connection with the filing of the Registration Statement and speaks as of the
date hereof. We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter.
We hereby consent to the filing of this opinion letter as Exhibit 5 to
the Registration Statement. In giving this opinion and consent, we do not admit
that we are an "expert" within the meaning of the Securities Act of 1933, as
amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
EXHIBIT 23.1
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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. Non-employee Directors' Restricted and Deferred Stock Plan filed
under the Securities Act of 1933 of our audit report dated January 27, 2003,
relating to the consolidated balance sheets of NBT Bancorp Inc. and subsidiaries
as of December 31, 2002 and 2001, 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, 2002 which report
appears in the December 31, 2002 Annual Report on Form 10-K of NBT Bancorp Inc.,
incorporated by reference herein.
Our report refers to the Company's adoption of changes in accounting for
goodwill and other intangible assets.
/S/ KPMG LLP
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Albany, New York
July 29, 2003