EXHIBIT 10.1
Form of Employment Agreement between NBT Bancorp Inc. and Xxxxx X. Xxxxxxxx made
as of August 2, 2003.
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") made and entered into as of the
second day of August 2003, by and between XXXXX X. XXXXXXXX ("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 the chairman, president and chief executive
officer of NBTB; and
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.
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(a) NBTB hereby agrees to employ Executive, and Executive hereby
agrees to serve as the chairman, president and chief executive officer of NBTB
until December 31, 2004 and chairman and chief executive officer of NBTB until
December 31, 2005 at which time the Executive shall retire as an active
employee. Commencing January 1, 2006 and continuing for as long as Executive is
a member of the NBTB Board of Directors, Executive agrees to serve as chairman
of NBTB. Executive shall have such executive duties, responsibilities, and
authority as shall be set forth in the bylaws of NBTB or as may otherwise be
determined by NBTB.
(b) Executive shall devote his full working time and best
efforts to the performance of his responsibilities and duties hereunder. During
the Term of Agreement, Executive shall not, without the prior written consent of
the Board of Directors of NBTB, 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 Board of Directors of NBTB, 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 Agreement
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(a) The term of this Agreement ("Term of Agreement") 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) the Executive is no longer a director of NBTB;
(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
(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 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
chairman, president, or chief executive officer of NBTB for other than "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
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(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 as set forth in section 1(a)
of this Agreement 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 Agreement shall be
terminated for any reason other than that set forth in section 2(a)(iii),
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 Agreement shall be
terminated for the reason set forth in section 2(a)(iii), 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 later of the third anniversary of the Commencement Date
or the first 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) 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.
(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
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"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
(iii) the severance payment and other benefits provided
in the Change- in-Control Agreement.
3. Compensation. For the services to be performed by Executive
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for NBTB and its affiliates under this Agreement, Executive shall be compensated
in the following manner:
(a) Salary.
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(i) NBTB shall pay Executive a salary, which, on an
annual basis, shall not be less than $425,000 in 2003 and $450,000 in 2004 and
2005. 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) Executive shall be eligible to be considered for performance
bonuses commensurate with 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.
(iii) Commencing on January 1, 2006, Executive, as Chairman, shall
receive all director compensation in effect as of this date
except: Executive's annual retainer shall be $50,000
(Un-Restricted Stock); Executive shall be eligible for 5000 stock
options per year based on attendance; Executive shall receive
$1000 in fees for each board and committee meeting attended.
(b) Employee Benefit Plans or Arrangements. Until December
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31, 2005, 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
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,
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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 and NBT Performance Share Plan. Each
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January or February annually until December 31, 2005, 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. In addition, until December 31,
2005, Executive shall be entitled to participate in any NBTB Performance Share
Plan (the "Performance Share Plan") as applicable to officers of Executive's
rank, and further, upon Executive's retirement as of December 31, 2005,
Executive shall be eligible to receive a payout from any Performance Share Plan
in effect as of December 31, 2005 as if Executive were employed for the duration
of any current plans. For the purpose of payout calculations, it will be
assumed that the plans in existence as of December 31, 2005 meet budget as a
minimum during those years, if any, that are subsequent to Executive's
retirement.
(d) Vacation and Sick Leave. Until December 31, 2005,
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Executive shall be entitled to paid annual vacation periods and sick leave in
accordance with the policies of NBTB as may be applicable to officers of
Executive's rank employed by NBTB or its affiliates, or as may be modified by
NBTB from time to time but in no event less than five weeks of paid vacation
while employed as a full time employee during any year of the Term of Agreement.
(e) Automobile. Until December 31, 2005, Executive shall be
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entitled to the use of an automobile owned by NBTB or an affiliate of NBTB, the
make and model of which automobile shall be appropriate to an officer of
Executive's rank, and which will be replaced with a new automobile every two
years (or earlier if accumulated mileage exceeds 50,000 miles). Executive
shall be responsible for all expenses of ownership and use of such automobile,
subject to reimbursement of expenses for business use in accordance with section
3(h). Commencing January 1, 2006, ownership of the automobile in use by the
Executive as of that date, shall pass without expense except for applicable
taxes to the Executive and Executive shall be responsible for all future
expenses of ownership and use of such automobile.
(f) Country Club Dues. During the Term of Agreement,
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Executive shall be reimbursed for dues and assessments incurred in relation to
Executive's membership at a country club(s) mutually agreed upon by the Board of
Directors of NBTB and Executive. Such reimbursement during the initial year of
membership shall include any and all initiation fees incurred with respect to
Executive's membership at selected club(s).
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(g) Withholding. Until December 31, 2005, all compensation
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to be paid to Executive hereunder shall be subject to required withholding and
other taxes.
(h) Expenses. During the Term of Agreement, Executive shall
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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.
4. Confidential Business Information; Non-Competition.
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(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 its affiliates,
and compositions, ideas, plans, and methods belonging to or related to the
affairs of NBTB or its 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 its 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 its 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 its 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 its
affiliates), or (ii) directly or indirectly divert or attempt to divert from
NBTB or its affiliates any business in which any of them has been actively
engaged during the Term of Employment, nor interfere with the relationship of
NBTB or its 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.
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(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
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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. Furthermore, unless
otherwise specified or agreed to by NBTB and the Executive, all policies on the
Executive that are in effect as of December 31, 2005 shall remain in force.
6. Representations and Warranties.
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(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.
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7. Notices. All notices, consents, waivers, or other
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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: Board of Directors
With a required copy to:
NBT Bancorp Inc. Corporate Counsel
If to Executive:
Xx. Xxxxx X. Xxxxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 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
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rights or obligations hereunder without the consent of the other party.
9. Governing Law. This Agreement shall be governed by, construed,
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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.
10. Entire Agreement. This Agreement constitutes the entire
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understanding among NBTB and Executive relating to the subject matter hereof.
Any previous agreements or understandings between the parties hereto or between
Executive and NBTB 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
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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.
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(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
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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
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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
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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
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NBTB 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.
15. Headings. The section and subsection headings herein have
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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/ Xxxxxx Xxxxxxxxx Xx.
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Xxxxxx Xxxxxxxxx, Xx.
Chairman of the Compensation
and Benefits Committee of
NBT Bancorp Inc.
XXXXX X. XXXXXXXX
/S/ Xxxxx X. Xxxxxxxx
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