As
filed with the Securities and Exchange Commission on January 12,
2007
Registration
No. 333-_____
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
________________________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
________________________
NBT
BANCORP INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
16-1268674
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|||
|
(State
or other jurisdiction of incorporation or organization)
|
(IRS
employer identification number)
|
52
South
Broad Street
Norwich,
New York 13815
(607)
337-2265
(Address
of principal
executive
offices)
________________________
NBT
Bancorp Inc. 2006 Non-Executive Restricted Stock Plan
(Full
title of the Plan)
________________________
Martin
A.
Dietrich
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
________________________
CALCULATION
OF REGISTRATION FEE
|
Title
of securities
to
be registered
|
Amount
to
be
Registered(2)
|
Proposed
Maximum
Offering
Price
per
Share (1)
|
Proposed
Maximum
Aggregate
Offering
Price
(1)(2)
|
Amount
of
Registration
Fee
(1)(2)
|
|
Common
Stock
|
250,000
|
$24.15
|
$6,037,500
|
$646.01
|
(1)
Estimated solely for the purpose of calculating the registration fee pursuant
to
Rule 457(h) of the Securities Act of 1933, as amended, based on the average
of
the high and low sales price on January 10, 2007.
(2)
The Registrant is registering 250,000 shares of its common stock, par value
$0.01 per share, reserved for issuance pursuant to the NBT Bancorp Inc.
Non-Executive Restricted Stock Plan.
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.
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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,
2005
filed with the SEC on March 15,
2006.
|
|
(b)
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NBT’s
quarterly reports on Form 10-Q for the quarters ended March 31, 2006
(filed on May 9, 2006), June 30, 2006 (filed on August 9, 2006) and
September 30, 2006 (filed on November 9, 2006).
|
|
(c)
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NBT’s
current reports on Form 8-K filed on January 1, 2006, January 25,
2006,
February 14, 2006, April 25, 2006, July 25, 2006, October 24, 2006
and
November 14, 2006.
|
|
(d)
|
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.
|
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.
1
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Item
4.
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Description
of Securities.
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Not
applicable.
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Item
5.
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Interests
of Named Experts and Counsel.
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Not
applicable.
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Item
6.
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Indemnification
of Directors and Officers.
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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.
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Item
7.
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Exemption
from Registration Claimed.
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Not
applicable.
2
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Item
8.
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Exhibits.
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Exhibit
No.
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Exhibit
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|
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4.1
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Certificate
of Incorporation of NBT Bancorp Inc. (filed as Exhibit 3.1 to the
Form 10-K of NBT Bancorp Inc., filed on March 29, 2002 and
incorporated herein by reference).
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|
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4.2
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By-laws
of NBT Bancorp Inc. (filed as Exhibit 3.2 to the Form 10-K of
NBT Bancorp Inc., filed on March 29, 2002 and incorporated herein by
reference).
|
|
|
4.3
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Specimen
common stock certificate for NBT Bancorp Inc.’s common stock (filed as
Exhibit 4.3 to the Form S-4 of NBT Bancorp Inc., filed on August
2, 2005
and incorporated herein by reference).
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|
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4.4
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Rights
Agreement, dated as of November 15, 2004, between NBT Bancorp Inc.
and Registrar and Transfer Company, as Rights Agent (filed as
Exhibit 4.1 to Registrant’s Form 8-K, filed on November 18,
2004 and incorporated herein by reference).
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5.1
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Opinion
of Hogan & Hartson L.L.P.
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23.1
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Consent
of KPMG LLP.
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23.2
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Consent
of Hogan & Hartson L.L.P. (contained in Exhibit 5.1).
|
|
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99.1
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NBT
Bancorp Inc. 2006 Non-Executive Restricted Stock Plan (incorporated
by
reference to Appendix A of NBT’s Definitive Proxy Statement on Form 14A
filed with the SEC on March 30, 2006).
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Item
9.
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Undertakings.
|
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(a)
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The
undersigned Registrant hereby
undertakes:
|
|
(1)
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To
file, during any period in which offers or sales are being made,
a post
effective amendment to this registration
statement:
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(i) To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(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.
3
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.
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(2)
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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.
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(3)
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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 December 31, 2006.
| NBT BANCORP INC. | ||
|
By:
|
/s/
Martin A. Dietrich
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|
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Martin
A. Dietrich
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||
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President
and Chief Executive Officer
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||
Each
person whose signature appears below appoints Martin A. Dietrich 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
31st
day of
December, 2006.
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Signature
|
Title
|
|
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/s/
Martin A. Dietrich
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President,
Chief Executive Officer and Director
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|
|
Martin
A. Dietrich
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(Principal
Executive Officer)
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/s/
Michael J. Chewens
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Senior
Executive Vice President, Chief Financial
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Michael
J. Chewens
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Officer
and Secretary (Principal Financial
|
|
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Officer
and Principal Accounting Officer)
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||
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/s/
Richard Chojnowski
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Director
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Richard
Chojnowski
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||
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/s/
Patricia T. Civil
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Director
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Patricia
T. Civil
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||
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||
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/s/
Daryl R. Forsythe
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Director
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Daryl
R. Forsythe
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||
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/s/
Dr. Peter B. Gregory
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Director
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Dr.
Peter B. Gregory
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5
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/s/
William C. Gumble
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Director
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|
William
C. Gumble
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||
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/s/
Paul D. Horger
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Director
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Paul
D. Horger
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||
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/s/
Michael H. Hutcherson
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Director
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Michael
H. Hutcherson
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||
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/s/
Janet H. Ingraham
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Director
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|
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Janet
H. Ingraham
|
||
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/s/
John C. Mitchell
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Director
|
|
|
John
C. Mitchell
|
||
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/s/
Michael M. Murphy
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Director
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Michael
M. Murphy
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||
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/s/
Joseph G. Nasser
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Director
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Joseph
G. Nasser
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||
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Director
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William
L. Owens
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||
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/s/
Van Ness D. Robinson
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Director
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Van
Ness D. Robinson
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||
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/s/
Joseph A. Santangelo
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Director
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|
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Joseph
A. Santangelo
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EXHIBIT
INDEX
|
Exhibit
No.
|
Exhibit
|
|
|
4.1
|
Certificate
of Incorporation of NBT Bancorp Inc. (filed as Exhibit 3.1 to the
Form 10-K of NBT Bancorp Inc., filed on March 29, 2002 and
incorporated herein by reference).
|
|
|
4.2
|
By-laws
of NBT Bancorp Inc. (filed as Exhibit 3.2 to the Form 10-K of
NBT Bancorp Inc., filed on March 29, 2002 and incorporated herein by
reference).
|
|
|
4.3
|
Specimen
common stock certificate for NBT Bancorp Inc.’s common stock (filed as
Exhibit 4.3 to the Form S-4 of NBT Bancorp Inc., filed on August
2, 2005
and incorporated herein by reference).
|
|
|
4.4
|
Rights
Agreement, dated as of November 15, 2004, between NBT Bancorp Inc.
and Registrar and Transfer Company, as Rights Agent (filed as
Exhibit 4.1 to Registrant’s Form 8-K, filed on November 18,
2004 and incorporated herein by reference).
|
|
|
Opinion
of Hogan & Hartson L.L.P.
|
||
|
Consent
of KPMG LLP.
|
||
|
23.2
|
Consent
of Hogan & Hartson L.L.P. (contained in Exhibit 5.1).
|
|
|
99.1
|
NBT
Bancorp Inc. 2006 Non-Executive Restricted Stock Plan (incorporated
by
reference to Appendix A of NBT’s Definitive Proxy Statement on Form 14A
filed with the SEC on March 30, 2006).
|
7
Exhibit
5.1
January
4, 2007
Board
of
Directors
NBT
Bancorp Inc.
52
South
Broad Street
Norwich,
NY 13815
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”),
to be
filed with the Securities and Exchange Commission relating to the proposed
public offering of up to 250,000 shares of the Company's common stock, par
value
$0.01 per share, all of which shares (the “Shares”)
may be
issued by the Company pursuant to the NBT Bancorp Inc. Non-Executive Restricted
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
Certificate of Incorporation of the Company, as certified by the
Secretary
of State of the State of Delaware on January 3, 2007 and by the
Secretary
of the Company on the date hereof as 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 being complete, accurate, and in
effect.
|
|
4.
|
Resolutions
of the Board of Directors of the Company adopted at a meeting held
on
January 23, 2006, as certified by the Secretary of the Company
on the date
hereof as being complete, accurate, and in effect, relating to,
among
other things, the adoption of the Plan, the issuance of the Shares
and
arrangements in connection
therewith.
|
|
5.
|
A
copy of the Plan, as certified by the Secretary of the Company
on the date
hereof as being complete, accurate, and in
effect.
|
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 Delaware General
Corporation Law, 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
following (i) the filing of the Registration Statement with the Securities
and
Exchange Commission, (ii) issuance of the Shares pursuant to the terms of
the
Plan and (iii) receipt by the Company of the consideration for the Shares
specified in the Plan, the Shares will be validly issued, fully paid, and
nonassessable.
This
opinion letter has been prepared for your use in connection with 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 5.1 to the Registration
Statement. In giving this consent, we do not thereby admit that we are an
“expert” within the meaning of the Securities Act of 1933, as
amended.
|
Very
truly yours,
|
|
|
/s/
HOGAN & HARTSON LLP
|
|
|
HOGAN
& HARTSON LLP
|
Exhibit
23.1
Consent
of Independent Registered Public Accounting Firm
The
Board
of Directors
NBT
Bancorp Inc.:
We
consent to the use of our reports dated March 6, 2006, with respect to the
consolidated balance sheets of NBT Bancorp Inc. and subsidiaries as of December
31, 2005 and 2004 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, 2005, management’s assessment of the
effectiveness of internal control over financial reporting as of December
31,
3005, and the effectiveness of internal control over financial reporting
as of
December 31, 2005, incorporated by reference in this Registration Statement
on
Form S-8 of NBT Bancorp Inc. related to the registration of shares for the
NBT
Bancorp Inc. 2006 Non-Executive Restricted Stock Plan.
/s/
KPMG
LLP
KPMG
LLP
Albany,
New York
January
12, 2007