Exhibit 10.27
Form of Employment Agreement between NBT Bancorp Inc. and Xxxxx X. Xxxxx
made as of January 1, 2002.
II-59
EMPLOYMENT AGREEMENT (REVISED)
This EMPLOYMENT AGREEMENT (the "Agreement") made and entered into as of
this first day of August, 2001 and amended on January 1, 2002, by and between
XXXXX X. XXXXX ("Executive") and NBT BANCORP INC., a Delaware corporation having
its principal office in Norwich, New York ("NBTB")
W I T N E S S E T H T H A T :
WHEREAS, Executive is an executive vice president of NBTB and president and
chief operating officer of Pennstar Bank, a Division of NBT Bank, National
Association, a national banking association which is a wholly-owned subsidiary
of NBTB ("NBT Bank");
WHEREAS, NBTB desires to secure the continued employment of Executive,
subject to the provisions of this Agreement; and
WHEREAS, Executive is desirous of entering into the Agreement for such
periods and upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements hereinafter set forth, intending to be legally bound, the parties
agree as follows:
1. Employment; Responsibilities and Duties.
------------------------------------------
(a) NBTB and NBT Bank hereby agrees to employ Executive and to
cause Pennstar Bank and any successor organization to Pennstar Bank to employ
Executive, and Executive hereby agrees to serve as an executive vice president
of NBTB and president and chief operating officer of Pennstar Bank, during the
Term of Employment. Executive shall have such executive duties,
responsibilities, and authority as shall be set forth in the bylaws of NBTB and
NBT Bank or as may otherwise be determined by NBTB or NBT Bank. During the Term
of Employment, Executive shall report directly to the chief executive officer of
NBT Bank and dotted line to the Chairman of the Board of Pennstar Bank.
(b) Executive shall devote his full working time and best efforts
to the performance of his responsibilities and duties hereunder. During the
Term of Employment, Executive shall not, without the prior written consent of
the chief executive officer of NBT Bank, render services as an employee,
independent contractor, or otherwise, whether or not compensated, to any person
or entity other than NBTB or its affiliates; provided that Executive may, where
involvement in such activities does not individually or in the aggregate
significantly interfere with the performance by Executive of his duties or
violate the provisions of section 4 hereof, (i) render services to charitable
organizations, (ii) manage his personal investments, and (iii) with the prior
permission of the chief executive officer of NBT Bank, hold such other
directorships or part-time academic appointments or have such other business
affiliations as would otherwise be prohibited under this section 1.
2. Term of Employment.
--------------------
(a) The term of this Agreement ("Term of Employment") shall be the
period commencing on the date of this Agreement (the "Commencement Date") and
continuing until the Termination Date, which shall mean the earliest to occur
of:
(i) January 1, 2005 provided, however that on January 1,
2003, and on each January 1 thereafter, the Term of Employment shall
automatically extend itself by one additional year;
(ii) the death of Executive;
(iii) Executive's inability to perform his duties hereunder,
as a result of physical or mental disability as reasonably determined by the
personal physician of Executive, for a period of at least 180 consecutive days
or for at least 180 days during any period of twelve consecutive months during
the Term of Employment; or
II-60
(iv) the discharge of Executive by NBTB "for cause," which
shall mean one or more of the following:
(A) any willful or gross misconduct by Executive with
respect to the business and affairs of NBTB or Pennstar Bank, or with respect to
any of its affiliates for which Executive is assigned material responsibilities
or duties;
(B) the conviction of Executive of a felony (after the
earlier of the expiration of any applicable appeal period without perfection of
an appeal by Executive or the denial of any appeal as to which no further appeal
or review is available to Executive) whether or not committed in the course of
his employment by NBTB;
(C) Executive's willful neglect, failure, or refusal to
carry out his duties hereunder in a reasonable manner (other than any such
failure resulting from disability or death or from termination by Executive for
Good Reason, as hereinafter defined) after a written demand for substantial
performance is delivered to Executive that specifically identifies the manner in
which NBTB believes that Executive has not substantially performed his duties
and Executive has not resumed substantial performance of his duties on a
continuous basis within thirty days of receiving such demand; or
(D) the breach by Executive of any representation or
warranty in section 6(a) hereof or of any agreement contained in section 1, 4,
5, or 6(b) hereof, which breach is material and adverse to NBTB or any of its
affiliates for which Executive is assigned material responsibilities or duties;
or
(v) Executive's resignation from his position as executive
vice president of NBTB or as president and chief operating officer of Pennstar
Bank other than for "Good Reason," as hereinafter defined; or
(vi) the termination of Executive's employment by NBTB
"without cause," which shall be for any reason other than those set forth in
subsections (i), (ii), (iii), (iv), or (v) of this section 2(a), at any time,
upon the thirtieth day following notice to Executive; or
(vii) Executive's resignation for "Good Reason."
"Good Reason" shall mean, without Executive's express written consent,
reassignment of Executive to a position other than executive vice president of
NBTB or as president and chief operating officer of Pennstar Bank other than
for "Cause," or a decrease in the amount or level of Executive's salary or
benefits from the amount or level established in section 3 hereof.
(b) In the event that the Term of Employment shall be terminated
for any reason other than that set forth in section 2(a)(vi) or 2(a)(vii)
hereof, Executive shall be entitled to receive, upon the occurrence of any such
event:
(i) any salary (as hereinafter defined) payable pursuant to
section 3(a)(i) hereof which shall have accrued as of the Termination Date; and
(ii) such rights as Executive shall have accrued as of the
Termination Date under the terms of any plans or arrangements in which he
participates pursuant to section 3(b) hereof, any right to reimbursement for
expenses accrued as of the Termination Date payable pursuant to section 3(h)
hereof, and the right to receive the cash equivalent of paid annual leave and
sick leave accrued as of the Termination Date pursuant to section 3(d) hereof.
(c) In the event that the Term of Employment shall be terminated
for the reason set forth in section 2(a)(vi) or 2(a)(vii) hereof, Executive
shall be entitled to receive:
(i) any salary payable pursuant to section 3(a)(i) hereof
which shall have accrued as of the Termination Date, and, for the period
commencing on the date immediately following the Termination Date and ending
upon and including the latest of January 1, 2005, the date to which the Term of
Employment shall (as of the Termination Date) have automatically extended itself
under section 2(a)(i) hereof, or the second anniversary of the Termination Date,
salary payable at the rate established pursuant to section 3(a)(i) hereof, in a
manner consistent with the normal payroll practices of NBTB with respect to
executive personnel as presently in effect or as they may be modified by NBTB
from time to time; and
II-61
(ii) such rights as Executive may have accrued as of the
Termination Date under the terms of any plans or arrangements in which he
participates pursuant to section 3(b) hereof, any right to reimbursement for
expenses accrued as of the Termination Date payable pursuant to section 3(h)
hereof, and the right to receive the cash equivalent of paid annual leave and
sick leave accrued as of the Termination Date pursuant to section 3(d) hereof;
and
(iii) if, within eighteen (18) months following the
Termination Date, Executive should sell his principal residence in the Scranton
Rand XxXxxxx Metropolitan Area as determined by Rand XxXxxxx & Company (the
"Scranton RMA") and relocate to a place outside of the Scranton RMA, (A)
reimbursement for any shortfall between the net proceeds on the sale of his
principal residence and the purchase prince, including direct, necessary and
reasonable transaction costs incurred in connection with such purchase, as
determined by the finance division of NBTB, for such residence, and including
direct, necessary and reasonable expenses, as determined by the finance division
of NBTB, incurred to prepare the residence for sale, (B) reimbursement for
direct, necessary and reasonable expenses, as determined by the finance division
of NBTB, incurred in connection with the sale of such residence not already
included as part of the reimbursement under (A) above, and (C) an amount
necessary to pay all federal, state and local income taxes resulting from any
reimbursement made pursuant to (A) and (B) (including any additional federal
state and local income taxes resulting from the payment hereunder of such
taxes), the intent being that Executive shall be paid an additional amount (the
"Gross-Up") such that the net amount retained by the Executive, after deduction
of such federal, state and local income taxes resulting from the reimbursement
under (A) and (B) shall be equal to the amount of the reimbursement under (A)
and (B) before payment of such taxes; for purposes of determining the amount of
the Gross-Up, Executive shall be deemed to pay federal, state and local income
taxes at the highest marginal rate of taxation in effect in the calendar year in
which the reimbursement is made. Amounts due under this subsection shall be
paid as soon as administratively practicable, but in no event later than ninety
(90) days after the date of the sale of Executive's principal residence.
Notwithstanding the foregoing, in the event the Executive is reimbursed,
entitled to reimbursement, or is paid any amounts by an entity or entities other
than NBTB or Pennstar Bank or any affiliate or successor thereof (the "Third
Party"), for any amounts for which Executive has received, or is entitled to
receive, reimbursement under (A) or (B) above with respect to the sale of his
principal residence or any Gross-Up under (C) above, the Executive agrees:
(1) with regard to amounts already paid by NBTB or Pennstar Bank or any
affiliate or successor thereof (hereinafter referred to collectively as the
"Company"), the Executive shall notify the Company of all amounts received
or due from the Third Party, and shall reimburse the Company in an amount
equal to the amount so received or due from the Third Party up to the
amount the Company paid to the Executive under (A), (B), and (C) above; and
(2) with regard to amounts due but not yet paid by the Company to the
Executive, the Executive shall notify the Company of any amounts received
or due from the Third Party, and the Executive agrees that the Company
shall reduce the amount due under (A), (B), and (C) above by the amount the
Executive has been paid or is entitled to be paid by the Third Party up to
the amount due the Executive from the Company.
(d) Any provision of this section 2 to the contrary
notwithstanding, in the event that the employment of Executive with NBTB is
terminated in any situation described in section 3 of the change-in-control
letter agreement dated July 23, 2001 between NBTB and Executive (the
"Change-in-Control Agreement") so as to entitle Executive to a severance payment
and other benefits described in section 3 of the Change-in-Control Agreement,
then Executive shall be entitled to receive the following, and no more, under
this section 2:
(i) any salary payable pursuant to section 3(a)(i) hereof
which shall have accrued as of the Termination Date;
(ii) such rights as Executive shall have accrued as of the
Termination Date under the terms of any plans or arrangements in which he
participates pursuant to section 3(b) hereof, any right to reimbursement for
expenses accrued as of the Termination Date payable pursuant to section 3(h)
hereof, and the right to receive the cash equivalent of paid annual leave and
sick leave accrued as of the Termination Date pursuant to section 3(d) hereof;
and
II-62
(iii) the severance payment and other benefits provided in
the Change-in-Control Agreement; and
(iv) if, within eighteen (18) months following
the Termination Date, Executive should sell his principal residence in the
Scranton RMA and relocate to a place outside of the Scranton RMA, (A)
reimbursement for any shortfall between the net proceeds on the sale of his
principal residence and the purchase price, including direct, necessary and
reasonable transaction costs incurred in connection with such purchase, as
determined by the finance division of NBT Bank, for such residence, and
including direct, necessary and reasonable expenses, as determined by the
finance division of NBT Bank, incurred to prepare the residence for sale, (B)
reimbursement for direct, necessary and reasonable expenses, as determined by
the finance division of NBT Bank, incurred in connection with the sale of such
residence not already included as part of the reimbursement under (A) above, and
(C) the Gross-Up, the intent being that the net amount retained by the
Executive, after deduction of such federal, state and local income taxes
resulting from the reimbursement under (A) and (B) shall be equal to the amount
of the reimbursement under (A) and (B) before payment of such taxes; for
purposes of determining the amount of the Gross-Up, Executive shall be deemed to
pay federal, state and local income taxes at the highest marginal rate of
taxation in effect in the calendar year in which the reimbursement is made.
Amounts due under this subsection shall be paid as soon as administratively
practicable, but in no event later than ninety (90) days after the date of the
sale of Executive's principal residence.
Notwithstanding the foregoing, in the event the Executive is reimbursed,
entitled to reimbursement, or is paid any amounts by a Third Party, for any
amounts for which Executive has received, or is entitled to receive,
reimbursement under (A) or (B) above with respect to the sale of his principal
residence or any Gross-Up under (C) above, the Executive agrees:
(3) with regard to amounts already paid by the Company, the Executive shall
notify the Company of all amounts received or due from the Third Party, and
shall reimburse the Company in an amount equal to the amount so received or
due from the Third Party up to the amount the Company paid to the Executive
under (A), (B), and (C) above; and
(4) with regard to amounts due but not yet paid by the Company to the
Executive, the Executive shall notify the Company of any amounts received
or due from the Third Party, and the Executive agrees that the Company
shall reduce the amount due under (A), (B), and (C) above by the amount the
Executive has been paid or is entitled to be paid by the Third Party up to
the amount due the Executive from the Company.
3. Compensation. For the services to be performed by Executive for
------------
NBTB and its affiliates under this Agreement, Executive shall be compensated in
the following manner:
(a) Salary. During the Term of Employment:
------
(i) NBTB shall pay Executive a salary which, on an annual
basis, shall not be less than $200,000 during the Term of Employment, assuming
Executive performs competently. Salary shall be payable in accordance with the
normal payroll practices of NBTB with respect to executive personnel as
presently in effect or as they may be modified by NBTB from time to time.
(ii) Commencing on January 1, 2003, Executive shall be
entitled to annual salary increases of 8 percent each subsequent January during
the Term of Employment, and shall be eligible to be considered for further
salary increases, upon review, in accordance with the compensation policies of
NBTB with respect to executive personnel as presently in effect or as they may
be modified by NBTB from time to time.
(iii) Executive shall be eligible for performance bonuses commensurate
with the Executive's title and salary grade, in accordance with the
compensation policies of NBTB with respect to executive personnel as
presently in effect or as they may be modified by NBTB from time to time.
(b) Employee Benefit Plans or Arrangements. During the Term of
------------------------------------------
Employment, Executive shall be entitled to participate in all employee benefit
plans of NBTB, as presently in effect or as they may be modified by NBTB from
II-63
time to time, under such terms as may be applicable to officers of Executive's
rank employed by NBTB or its affiliates, including, without limitation, plans
providing retirement benefits, stock options, medical insurance, life insurance,
disability insurance, and accidental death or dismemberment insurance, provided
that there be no duplication of such benefits as are provided under any other
provision of this Agreement.
(c) Stock Options. Each January or February annually during the
-------------
Term of Employment, NBTB will cause Executive to be granted a non-statutory
("non-qualified") stock option (each an "Option") to purchase the number of
shares of the common stock of NBTB, $0.01 par value (the "NBTB Common Stock"),
pursuant to the NBT Bancorp Inc. 1993 Stock Option Plan, as amended, or any
appropriate successor plan (the "Stock Option Plan"), computed by using a
formula approved by NBTB that is commensurate with the Executive's title and
salary grade. The option exercise price per share of the shares subject to
each Option shall be such Fair Market Value, and the terms, conditions of
exercise, and vesting schedule of such Option shall be as set forth in section 8
of the Stock Option Plan.
(d) Vacation and Sick Leave. During the Term of Employment,
-----------------------
Executive shall be entitled to paid annual vacation periods and sick leave in
accordance with the policies of NBTB as in effect as of the Commencement Date or
as may be modified by NBTB from time to time as may be applicable to officers of
Executive's rank employed by NBTB or its affiliates, but in no event less than
four weeks of paid vacation per year.
(e) Automobile. During the Term of Employment, Executive shall be
----------
entitled to the use of an automobile (whose value shall not exceed $40,000),
owned by NBTB or an affiliate of NBTB, the make, model, and year of which
automobile shall be appropriate to an officer of Executive's rank and which will
be replaced every three years (or earlier if the accumulated mileage exceeds
50,000 miles) with new automobile whose value shall not exceed the sum of
$40,000 escalated by an amount calculated by the finance division of NBTB to
adjust for the effect of inflation upon the $40,000 (an "Inflation Adjustment").
Executive shall be responsible for all expenses of ownership and use of any such
automobile, subject to reimbursement of expenses for business use in accordance
with section 3(h).
(f) Country Club Dues. During the Term of Employment, Executive
-------------------
shall be reimbursed for dues and assessments incurred in relation to Executive's
membership at a country club mutually agreed upon by the chief executive officer
of NBT Bank and the Executive.
(g) Withholding. All compensation to be paid to Executive
-----------
hereunder shall be subject to required withholding and other taxes.
(h) Expenses. During the Term of Employment, Executive shall be
--------
reimbursed for reasonable travel and other expenses incurred or paid by
Executive in connection with the performance of his services under this
Agreement, upon presentation of expense statements or vouchers or such other
supporting information as may from time to time be requested, in accordance with
such policies of NBTB as are in effect as of the Commencement Date and as may be
modified by NBTB from time to time, under such terms as may be applicable to
officers of Executive's rank employed by NBTB or its affiliates.
II-64
4. Confidential Business Information; Non-Competition.
--------------------------------------------------
(a) Executive acknowledges that certain business methods, creative
techniques, and technical data of NBTB and its affiliates and the like are
deemed by NBTB to be and are in fact confidential business information of NBTB
or its affiliates or are entrusted to third parties. Such confidential
information includes but is not limited to procedures, methods, sales
relationships developed while in the service of NBTB or its affiliates,
knowledge of customers and their requirements, marketing plans, marketing
information, studies, forecasts, and surveys, competitive analyses, mailing and
marketing lists, new business proposals, lists of vendors, consultants, and
other persons who render service or provide material to NBTB or Pennstar Bank or
their affiliates, and compositions, ideas, plans, and methods belonging to or
related to the affairs of NBTB or Pennstar Bank or their affiliates. In this
regard, NBTB asserts proprietary rights in all of its business information and
that of its affiliates except for such information as is clearly in the public
domain. Notwithstanding the foregoing, information that would be generally
known or available to persons skilled in Executive's fields shall be considered
to be "clearly in the public domain" for the purposes of the preceding sentence.
Executive agrees that he will not disclose or divulge to any third party, except
as may be required by his duties hereunder, by law, regulation, or order of a
court or government authority, or as directed by NBTB, nor shall he use to the
detriment of NBTB or its affiliates or use in any business or on behalf of any
business competitive with or substantially similar to any business of NBTB or
Pennstar Bank or their affiliates, any confidential business information
obtained during the course of his employment by NBTB. The foregoing shall not
be construed as restricting Executive from disclosing such information to the
employees of NBTB or Pennstar Bank or their affiliates. On or before the
Termination Date, Executive shall promptly deliver to NBTB any and all tangible,
confidential information in his possession.
(b) Executive hereby agrees that from the Commencement Date until
the first anniversary of the Termination Date, Executive will not (i) interfere
with the relationship of NBTB or Pennstar Bank or their affiliates with any of
their employees, suppliers, agents, or representatives (including without
limitation, causing or helping another business to hire any employee of NBTB or
Pennstar Bank or their affiliates), or (ii) directly or indirectly divert or
attempt to divert from NBTB, Pennstar Bank or their affiliates any business in
which any of them has been actively engaged during the Term of Employment, nor
interfere with the relationship of NBTB, Pennstar Bank or their affiliates with
any of their customers or prospective customers. This paragraph 4(b) shall not,
in and of itself, prohibit Executive from engaging in the banking, trust, or
financial services business in any capacity, including that of an owner or
employee.
(c) Executive acknowledges and agrees that irreparable injury will
result to NBTB in the event of a breach of any of the provisions of this section
4 (the "Designated Provisions") and that NBTB will have no adequate remedy at
law with respect thereto. Accordingly, in the event of a material breach of any
Designated Provision, and in addition to any other legal or equitable remedy
NBTB may have, NBTB shall be entitled to the entry of a preliminary and
permanent injunction (including, without limitation, specific performance) by a
court of competent jurisdiction in Chenango County, New York, or elsewhere, to
restrain the violation or breach thereof by Executive, and Executive submits to
the jurisdiction of such court in any such action.
(d) It is the desire and intent of the parties that the provisions
of this section 4 shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, if any particular provision of this section 4 shall be
adjudicated to be invalid or unenforceable, such provision shall be deemed
amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such deletion to apply only with respect to the operation of such
provision in the particular jurisdiction in which such adjudication is made. In
addition, should any court determine that the provisions of this section 4 shall
be unenforceable with respect to scope, duration, or geographic area, such court
shall be empowered to substitute, to the extent enforceable, provisions similar
hereto or other provisions so as to provide to NBTB, to the fullest extent
permitted by applicable law, the benefits intended by this section 4.
5. Life Insurance. In light of the unusual abilities and experience of
---------------
Executive, NBTB in its discretion may apply for and procure as owner and for its
own benefit insurance on the life of Executive, in such amount and in such form
as NBTB may choose. NBTB shall make all payments for such insurance and shall
receive all benefits from it. Executive shall have no interest whatsoever in
any such policy or policies but, at the request of NBTB, shall submit to medical
examinations and supply such information and execute such documents as may
reasonably be required by the insurance company or companies to which NBTB has
applied for insurance.
II-65
6. Representations and Warranties.
--------------------------------
(a) Executive represents and warrants to NBTB that his execution,
delivery, and performance of this Agreement will not result in or constitute a
breach of or conflict with any term, covenant, condition, or provision of any
commitment, contract, or other agreement or instrument, including, without
limitation, any other employment agreement, to which Executive is or has been a
party.
(b) Executive shall indemnify, defend, and hold harmless NBTB for,
from, and against any and all losses, claims, suits, damages, expenses, or
liabilities, including court costs and counsel fees, which NBTB has incurred or
to which NBTB may become subject, insofar as such losses, claims, suits,
damages, expenses, liabilities, costs, or fees arise out of or are based upon
any failure of any representation or warranty of Executive in section 6(a)
hereof to be true and correct when made.
7. Notices. All notices, consents, waivers, or other communications
-------
which are required or permitted hereunder shall be in writing and deemed to have
been duly given if delivered personally or by messenger, transmitted by telex or
telegram, by express courier, or sent by registered or certified mail, return
receipt requested, postage prepaid. All communications shall be addressed to
the appropriate address of each party as follows:
If to NBTB:
NBT Bancorp Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxx
Chairman, President and
Chief Executive Officer
With a required copy to:
NBT BANCORP INC. CORPORATE COUNSEL
If to Executive:
Xx. Xxxxx X. Xxxxx
000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
All such notices shall be deemed to have been given on the date delivered,
transmitted, or mailed in the manner provided above.
8. Assignment. Neither party may assign this Agreement or any rights
----------
or obligations hereunder without the consent of the other party.
9. Governing Law. This Agreement shall be governed by, construed, and
--------------
enforced in accordance with the laws of the State of New York, without giving
effect to the principles of conflict of law thereof. The parties hereby
designate Chenango County, New York to be the proper jurisdiction and venue for
any suit or action arising out of this Agreement. Each of the parties consents
to personal jurisdiction in such venue for such a proceeding and agrees that it
may be served with process in any action with respect to this Agreement or the
transactions contemplated thereby by certified or registered mail, return
receipt requested, or to its registered agent for service of process in the
State of New York. Each of the parties irrevocably and unconditionally waives
and agrees, to the fullest extent permitted by law, not to plead any objection
that it may now or hereafter have to the laying of venue or the convenience of
the forum of any action or claim with respect to this Agreement or the
transactions contemplated thereby brought in the courts aforesaid.
II-66
10. Entire Agreement. This Agreement constitutes the entire
----------------
understanding among NBTB and Executive relating to the subject matter hereof.
Any previous agreements or understandings between the parties hereto or between
Executive and Pennstar Bank or any of its affiliates regarding the subject
matter hereof, including without limitation the terms and conditions of
employment, compensation, benefits, retirement, competition following
employment, and the like, are merged into and superseded by this Agreement.
Neither this Agreement nor any provisions hereof can be modified, changed,
discharged, or terminated except by an instrument in writing signed by the party
against whom any waiver, change, discharge, or termination is sought.
11. Illegality; Severability.
-------------------------
(a) Anything in this Agreement to the contrary notwithstanding,
this Agreement is not intended and shall not be construed to require any payment
to Executive which would violate any federal or state statute or regulation,
including without limitation the "golden parachute payment regulations" of the
Federal Deposit Insurance Corporation codified to Part 359 of title 12, Code of
Federal Regulations.
(b) If any provision or provisions of this Agreement shall be held
to be invalid, illegal, or unenforceable for any reason whatsoever:
(i) the validity, legality, and enforceability of the
remaining provisions of this Agreement (including, without limitation, each
portion of any section of this Agreement containing any such provision held to
be invalid, illegal, or unenforceable) shall not in any way be affected or
impaired thereby; and
(ii) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any section of this
Agreement containing any such provisions held to be invalid, illegal, or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal, or unenforceable.
12. Arbitration. Subject to the right of each party to seek specific
-----------
performance (which right shall not be subject to arbitration), if a dispute
arises out of or related to this Agreement, or the breach thereof, such dispute
shall be referred to arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association ("AAA"). A dispute subject to the
provisions of this section will exist if either party notifies the other party
in writing that a dispute subject to arbitration exists and states, with
reasonable specificity, the issue subject to arbitration (the "Arbitration
Notice"). The parties agree that, after the issuance of the Arbitration Notice,
the parties will try in good faith to resolve the dispute by mediation in
accordance with the Commercial Rules of Arbitration of AAA between the date of
the issuance of the Arbitration Notice and the date the dispute is set for
arbitration. If the dispute is not settled by the date set for arbitration,
then any controversy or claim arising out of this Agreement or the breach hereof
shall be resolved by binding arbitration and judgment upon any award rendered by
arbitrator(s) may be entered in a court having jurisdiction. Any person serving
as a mediator or arbitrator must have at least ten years' experience in
resolving commercial disputes through arbitration. In the event any claim or
dispute involves an amount in excess of $100,000, either party may request that
the matter be heard by a panel of three arbitrators; otherwise all matters
subject to arbitration shall be heard and resolved by a single arbitrator. The
arbitrator shall have the same power to compel the attendance of witnesses and
to order the production of documents or other materials and to enforce discovery
as could be exercised by a United States District Court judge sitting in the
Northern District of New York. In the event of any arbitration, each party
shall have a reasonable right to conduct discovery to the same extent permitted
by the Federal Rules of Civil Procedure, provided that such discovery shall be
concluded within ninety days after the date the matter is set for arbitration.
In the event of any arbitration, the arbitrator or arbitrators shall have the
power to award reasonable attorney's fees to the prevailing party. Any
provision in this Agreement to the contrary notwithstanding, this section shall
be governed by the Federal Arbitration Act and the parties have entered into
this Agreement pursuant to such Act.
13. Costs of Litigation. In the event litigation is commenced to
-------------------
enforce any of the provisions hereof, or to obtain declaratory relief in
connection with any of the provisions hereof, the prevailing party shall be
entitled to recover reasonable attorney's fees. In the event this Agreement is
asserted in any litigation as a defense to any liability, claim, demand, action,
cause of action, or right asserted in such litigation, the party prevailing on
the issue of that defense shall be entitled to recovery of reasonable attorney's
fees.
14. Affiliation. A company will be deemed to be "affiliated" with NBTB
-----------
or Pennstar Bank according to the definition of "Affiliate" set forth in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended.
II-67
15. Headings. The section and subsection headings herein have been
--------
inserted for convenience of reference only and shall in no way modify or
restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF, the parties hereto executed or caused this Agreement to
be executed as of the day and year first above written.
NBT BANCORP INC.
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Chairman, President and
Chief Executive Officer
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
XX-68
