EMPLOYMENT AGREEMENT
Exhibit
10.2
This EMPLOYMENT AGREEMENT (the
"Agreement") made and entered into as of the first day of January 2005, and
amended and restated as of November 5, 2009, by and between XXXXXXX X. XXXXXXX
("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 senior
executive vice president and the chief financial officer of NBTB and 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
hereby agrees to employ Executive and to cause NBT Bank and any successor
organization to NBT Bank to employ Executive, and Executive hereby agrees to
serve as a senior executive vice president and the chief financial officer of
NBTB and NBT Bank, and of any successor organization to NBTB or NBT Bank, as
applicable, during the Term of Employment (as defined in Section 2
below). 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. During the Term of Employment,
Executive shall report directly to the chief executive officer of
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 Employment,
Executive shall not, without the prior written consent of the chief executive
officer of NBTB, render services in any capacity, whether 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 in compliance with any NBTB
limits or policies, and (iii) with the prior permission of the chief executive
officer 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.
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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, 2008, provided, however, that on January 1, 2006 and on each January 1
thereafter, the remaining Term of Employment shall be extended by one additional
year (to a total of three years);
(ii) the
death of Executive;
(iii) Executive's
inability to perform his duties hereunder, by reason of any medically
determinable physical of mental impairment that can be expected to result in
death or can be expected to last for a continuous period of not less than 12
months; 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 NBT 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
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(v) Executive's
resignation from his position as senior executive vice president and chief
financial officer of NBTB or NBT 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 material reduction in duties, responsibilities or position other
than for "Cause," or a material decrease in the amount or level of Executive's
salary or benefits from the amount or level established in section 3
hereof. Notwithstanding the foregoing, if there exists (without
regard to this sentence) an event or condition that constitutes Good Reason,
NBTB shall have thirty (30) days from the date on which Executive gives the
written notice thereof to cure such event or condition (such notice to be given from Executive
within ninety (90) days from the date the event or condition first occurs) and,
if NBTB does so, such event or condition shall not constitute Good Reason
hereunder. Further, an event or condition shall cease to constitute
Good Reason thirty (30) days after the end of the cure
period.
A Termination Date shall not be deemed to have occurred
for purposes of any provision of this Agreement providing for the payment of any
amounts or benefits upon or following a termination of employment unless such
termination is also a “separation from service” within the meaning of Section
409A of the Internal Revenue Code of 1986, as amended (the “Code”) and, for
purposes of any such provision of this Agreement, any references to a
“termination,” “termination of employment” or like terms shall mean a
“separation from service.”
(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, in
consideration for Executive’s covenant not to compete and other post-termination
obligations, 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(g) hereof, and the right to
receive the cash equivalent of paid annual 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, and upon execution of a
Separation Agreement and Release in substantially the form attached hereto,
which shall be incorporated by reference into this Agreement and become a part
hereof, Executive shall be entitled to receive the following:
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(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 the
third anniversary of the Commencement Date or the date to which the Term of
Employment shall (as of the Termination Date) have automatically extended itself
under section 2(a)(i) hereof, salary payable at the rate established pursuant to
section 3(a)(i) hereof, on a monthly basis;
(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 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 Binghamton Rand XxXxxxx Metropolitan Area as
determined by Rand XxXxxxx & Company (the "Binghamton RMA") and relocate to
a place outside of the Binghamton RMA, (A) reimbursement for any shortfall
between the net proceeds on the sale of his principal residence and the purchase
price plus improvements, including direct, necessary and reasonable transaction
costs incurred in connection with such purchase, as determined by the
controller’s 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 the payment made to Executive under (C) shall be
paid an additional amount (the “Gross-Up”) such that the net amount retained by
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 after giving consideration to the deductibility of state
taxes for federal income taxes. 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 Executive is reimbursed, entitled to reimbursement, or is paid any amounts
by an entity or entities other than NBTB or NBT Bank of 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,
Executive agrees:
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(1)
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with
regard to amounts already paid by NBTB or NBT Bank or any affiliate or
successor thereof (hereinafter referred to collectively as the “Company”),
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 Executive under (A), (B), and (C) above;
and
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(2)
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with
regard to amounts due but not yet paid by the Company to Executive,
Executive shall notify the Company of any amounts received or due from the
Third Party, and Executive agrees that the Company shall reduce the amount
due under (A), (B), and (C) above by the amount Executive has been paid or
is entitled to be paid by the Third Party up to the amount due Executive
from the Company.
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Regulatory
Limits. Notwithstanding any other provision in this Agreement
NBTB may terminate or suspend this Agreement and the employment of Executive
hereunder, as if such termination were for Cause, to the extent required by the
applicable federal or state statue related to banking, deposit insurance or bank
or savings institution holding companies or by regulations or orders issued by
the Office of the Controller of the Currency, the Federal Deposit Insurance
Corporation or any other state or federal banking regulatory agency having
jurisdiction over NBT Bank or NBTB, and no payment shall be required to be made
to or for the benefit of Executive under this Agreement to the extent such
payment is prohibited by applicable law, regulation or order issued by a banking
agency or a court of competent jurisdiction; provided, that it shall be NBTB’s
burden to prove that any such action was so required.
(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 sections 1(b) and 3 of the change-in-control letter agreement dated July 23,
2001, as amended effective as of November 5, 2009, 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 accrued as of the Termination
Date pursuant to section 3(d) hereof;
(iii) the
severance payment and other benefits provided in the Change- in-Control
Agreement; and
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(iv) if,
within eighteen (18) months following the Termination Date, Executive should
sell his principal residence in the Binghamton RMA and relocate to a place
outside of the Binghamton RMA, (A) reimbursement for any shortfall between the
net proceeds on the sale of his principal residence and the purchase price plus
improvements, 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 controller’s 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) the Gross-Up, the
intent being that the net amount retained by 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 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, Executive
agrees:
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(1)
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with
regard to amounts already paid by the Company, 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 Executive under
(A), (B), and (C) above; and
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(2)
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with
regard to amounts due but not yet paid by the Company to Executive,
Executive shall notify the Company of any amounts received or due from the
Third Party, and Executive agrees that the Company shall reduce the amount
due under (A), (B), and (C) above by the amount Executive has been paid or
is entitled to be paid by the Third Party up to the amount due the
Executive from the Company.
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(e) Notwithstanding any other payment
schedule provided herein to the contrary, if Executive is deemed on the
Termination Date a “specified employee” within the meaning of that term under
Code Section 409A(a)(2)(B), then each of the following shall
apply:
(i) With regard to any payment that is considered deferred
compensation under Code Section 409A payable on account of a “separation from
service,” such payment shall be made on the date which is the earlier of (A) the
expiration of the six (6)- month period measured from the date of Executive’s
“separation from service”, and (B) the date of Executive’s death (the “Delay
Period”) to the extent required under Code Section 409A. Upon the
expiration of the Delay Period, all payments delayed pursuant to this Section
(whether they would have otherwise been payable in a single sum or in
installments in the absence of such delay) shall be paid to Executive in a lump
sum, and all remaining payments due under this Agreement shall be paid or
provided in accordance with the normal payment dates specified for them herein;
and
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(ii) To the extent that any benefits to be provided during
the Delay Period is considered deferred compensation under Code Section 409A
provided on account of a “separation from service,” and such benefits are not
otherwise exempt from Code Section 409A, Executive shall pay the cost of such
benefits during the Delay Period, and the Company shall reimburse Executive, to
the extent that such costs would otherwise have been paid by the Company or to
the extent that such benefits would otherwise have been provided by the Company
at no cost to Executive, the Company’s share of the cost of such benefits upon
expiration of the Delay Period, and any remaining benefits shall be reimbursed
or provided by the Company in accordance with the procedures specified
herein.
(f) To the extent that severance payments or benefits
pursuant to this Agreement are conditioned upon the execution and delivery by
Executive of a release of claims, Executive shall forfeit all rights to such
payments and benefits unless such release is signed and delivered (and no longer
subject to revocation, if applicable) within sixty (60) days following the date
of Executive’s Termination Date. If the foregoing release is executed
and delivered and no longer subject to revocation as provided in the preceding
sentence, payments or benefits shall commence upon the first scheduled payment
date immediately after the date the release is executed and no longer subject to
revocation (the “Release Effective Date”). The first such cash
payment shall include payment of all amounts that otherwise would have been due
prior to the Release Effective Date under the terms of this Agreement applied as
though such payments commenced immediately upon Executive’s Termination Date,
and any payments made thereafter shall continue as provided
herein. The delayed benefits shall in any event expire at the time
such benefits would have expired had such benefits commenced immediately
following Executive’s Termination Date.
The Company may provide, in its sole discretion, that
Executive may continue to participate in any benefits delayed pursuant to this
section during the period of such delay, provided that Executive shall bear the
full cost of such benefits during such delay period. Upon the date
such benefits would otherwise commence pursuant to this Section, the Company may
reimburse Executive the Company’s share of the cost of such benefits, to the
extent that such costs would otherwise have been paid by the Company or to the
extent that such benefits would otherwise have been provided by the Company at
no cost to Executive, in each case had such benefits commenced immediately upon
Executive’s Termination Date. Any remaining benefits shall be
reimbursed or provided by the Company in accordance with the schedule and
procedures specified herein.
(iii) For purposes of Code Section 409A, Executive’s right to
receive any installment payment pursuant to this Agreement shall be treated as a
right to receive a series of separate and distinct
payments.
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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 be two hundred
seventy one thousand six hundred dollars ($271,600) commencing on January 1,
2005. Salary commencing on January 1, 2006 will be negotiated between
Executive and the CEO of NBTB based on recommendations from the Compensation and
Benefits Committee and in line with compensation for comparable positions in
companies of similar size and structure, but in no case less than
$271,600.00. 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 of the Commencement Date 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 as of the Commencement Date 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, restricted stock or stock units,
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) Equity
Awards. Executive will be eligible for awards under the NBTB’s
Omnibus Incentive Plan as applicable to officer of Executive’s
rank.
(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 applicable to officers of Executive’s rank employed by NBTB or
its affiliates and 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
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 two years (or earlier if the accumulated mileage exceeds
50,000 miles). 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).
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(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 NBTB and Executive. Executive shall be responsible for any income
taxes associated with the personal use of such club membership.
(g) Withholding. All
compensation to be paid to Executive hereunder shall be subject to applicable
federal, state, and local taxes and all and other required
withholdings. Executive hereby acknowledges and agrees that he is
responsible for all taxes in connection with any benefits, fringe benefits, or
perquisites provided under this Agreement and he is not entitled to a Gross Up,
except as specifically provided under Paragraph 2(c)(iii) or 2(d)(iv) of this
Agreement, or as may be provided under the terms of the Change-in-Control
Agreement.
(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 by NBTB, 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. All
expenses or other reimbursements under this Agreement shall be made on or prior
to the last day of the taxable year following the taxable year in which such
expenses were incurred by Executive (provided that if any such reimbursements
constitute taxable income to Executive, such reimbursements shall be paid no
later than March 15th of the calendar year following the calendar year in which
the expenses to be reimbursed were incurred), and no such reimbursement or
expenses eligible for reimbursement in any taxable year shall in any way affect
the expenses eligible for reimbursement in any other taxable
year.
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, NBT Bank or any of their
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 NBT Bank or
their affiliates, and compositions, ideas, plans, and methods belonging to or
related to the affairs of NBTB or NBT Bank or their affiliates (collectively,
“Confidential Information”). In this regard, NBTB asserts proprietary
rights in all of its Confidential 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 acknowledges that in connection with
his employment with NBTB, Executive has had or may have access to such
Confidential Information, and he 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 NBT Bank or their affiliates, any Confidential
Information obtained during the course of his employment by NBTB. In
the event that disclosure is required by law, regulation, or order of a court or
government authority, Executive agrees that as soon as practical and in any
event no later than 30 days after receiving notice that Executive is required to
make such disclosure, Executive will provide notice to the Company of such
requirement by law, regulation, order of a court or government
authority. This section 4(a) shall not be construed as restricting
Executive from disclosing such information to the employees of NBTB or NBT Bank
or their affiliates. On or before the Termination Date, Executive
shall promptly deliver to NBTB any and all Confidential Information in his
possession, whether tangible, electronic or intangible in form.
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(b) Executive acknowledges that in the
course of employment with NBTB, Executive has had access to and gained knowledge
of the trade secrets and
other Confidential Information of NBTB, NBT Bank, or their affiliates; has had
substantial relationships with the customers of NBTB, NBT Bank, or their
affiliates; and has performed services of special, unique, and extraordinary
value to NBTB, NBT Bank, or their affiliates. Therefore, Executive
agrees that notwithstanding the termination of this Agreement for any reason,
from the Commencement Date until the first anniversary of the Termination Date,
the Executive shall not, directly or indirectly, on behalf of himself or any
other person or entity, without the written consent of NBTB:
(i) become an officer, employee, consultant, director,
or trustee of any savings bank, savings and loan association, savings and loan
holding company, bank or bank holding company, where such position entails
providing services to such company in any city, town, or county in which NBTB or
NBT Bank or their affiliates has an office, determined as of the Termination
Date, where Executive’s position or service for such business is competitive
with or otherwise similar to any of Executive’s positions or services for NBTB
or NBT Bank;
(ii) induce or solicit any customer, supplier, or agent
of NBTB, NBT Bank, or their affiliates about whom Executive has gained
Confidential Information or with whom Executive, by virtue of his/her employment
with NBTB, has established a relationship or had frequent contact, to terminate
or curtail an existing business or commercial relationship with NBTB, NBT Bank,
or their affiliates;
(iii) induce or solicit any customer or
supplier of NBTB, NBT Bank, or their affiliates about whom Executive has gained
Confidential Information or with whom Executive, by virtue of his/her employment
with NBTB, has established a relationship or had frequent contact, to provide or
purchase goods or services similar to the goods or services provided by it to or
purchased by it from NBTB, NBT Bank, or their affiliates; provided however, that
the provisions of this clause (iii) only apply to those persons or entities who
are customers or suppliers of NBTB, NBT Bank, or their affiliates as of the
Termination Date or who were customers of NBTB, NBT Bank, or their affiliates
during the one-year period prior to the Termination Date;
or
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(iv) solicit, induce, recruit, offer employment to,
hire, or take any other action intended, or that a reasonable person acting in
like circumstances would expect, to have the effect of causing any officer or
employee of NBTB, NBT Bank, or their affiliates, to terminate his or her
employment.
(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 (or NBT Bank or their affiliates) 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.
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.
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(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:
00 Xxxxx
Xxxxx Xxxxxx
Xxxxxxx,
Xxx Xxxx 00000
Attention: Chief
Executive Officer
With a
required copy to:
Xxxxxx X.
Xxxxx, Esq.
Xxxxx
& Xxxxxxx L.L.P.
000
00xx
Xxxxxx, X.X.
Xxxxxxxxxx,
X.X. 00000-0000
Fax:
(000) 000-0000
If to
Executive:
Xx.
Xxxxxxx X. Xxxxxxx
00 Xxxx
Xxxxxx Xxxx
Xxxxxx,
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 rights or obligations hereunder without
the consent of the other party.
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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.
10. Entire
Agreement. This Agreement and any other agreements expressly
incorporated by reference herein constitute the entire understanding
between 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 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.
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12. 409A
Compliance. The
intent of the parties is that payments and benefits under this Agreement comply
with Code Section 409A and the regulations and guidance promulgated thereunder
and, accordingly, to the maximum extent permitted, this Agreement shall be
interpreted to be in compliance therewith. In no event whatsoever
shall NBTB be liable for any additional tax, interest of penalty that may be
imposed on Executive by Code Section 409A or damages for failing to comply with
Code Section 409A. Notwithstanding any other provision of this
Agreement to the contrary, in no event shall any payment under this Agreement
that constitutes “deferred compensation” for purposes of Code Section 409A be
subject to offset, counterclaim or recoupment by any other amount payable to the
Executive unless otherwise permitted by Code Section 409A.
13. 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 is in any way related
to this Agreement, or the asserted breach thereof, such dispute shall be
referred to arbitration before the American Arbitration Association ("AAA")
pursuant to the AAA’s National Rules for the Resolution of Employment Disputes
(the “Arbitration Rules”). 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 between the date of the issuance of the Arbitration
Notice and the date the dispute is set for arbitration to resolve the dispute by
mediation in accordance with the Arbitration Rules. If the dispute is
not resolved by the date set for arbitration, then any controversy or claim
arising out of this Agreement or the asserted 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. In the event any claim or
dispute involves an amount in excess of $100,000, either party may request that
the matter 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
Chenango County, 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 discovery shall
be concluded within 90 days after the date the matter is set for
arbitration. The arbitrator or arbitrators shall have the power to
award reasonable attorneys’ fees to the prevailing party. Any
provisions 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.
14. 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.
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15. Company
Right to Recover. If the Company is required
to prepare an accounting restatement due to the material noncompliance of the
Company as a result of misconduct, with regard to any financial reporting
requirement under the securities laws, and Executive is subject to automatic
forfeiture under Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 and Executive
knowingly engaged in the misconduct, was grossly negligent in engaging in the
misconduct, knowingly failed to prevent the misconduct or was grossly negligent
in failing to prevent the misconduct, Executive shall reimburse the Company the
amount of any payment earned or accrued during the 12-month period following the
first public issuance or filing with the United States Securities and Exchange
Commission (whichever first occurred) of the financial document that contained
such material noncompliance.
Notwithstanding anything in this Agreement, if the
Company is required to prepare an accounting restatement, Executive will forfeit
any payments made based on the achievement of pre-established performance goals
that are later determined, as a result of the accounting restatement, not to
have been achieved.
16. Affiliation. A
company will be deemed to be "affiliated" with NBTB or NBT 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.
17. 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.
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By:
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/S/ Xxxxxx X. Xxxxxxxx
|
|
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Xxxxxx
X. Xxxxxxxx
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President
and
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Chief
Executive Officer
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XXXXXXX
X. XXXXXXX
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/S/ Xxxxxxx X.
Xxxxxxx
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SEPARATION
AGREEMENT AND RELEASE
I. In
consideration of receipt and acceptance of the separation payments described in
the Employment Agreement and
listed on Appendix A between NBT BANCORP INC. (“NBTB”) and Xxxxxxx X.
Xxxxxxx (“Executive”), dated November 5, 2009 (the “Employment Agreement”),
into which this Separation
Agreement and Release (“Separation Agreement”) is incorporated by reference,
Executive, on behalf of himself and his agents, heirs, executors,
administrators, successors, and assigns, unconditionally and generally
releases NBTB and NBT Bank, National Association (“NBT Bank”), their respective
current and former owners, officers, directors, parents, affiliates,
subsidiaries, related entities, agents and employees, and the heirs, executors,
administrators, successors and assigns of all of the foregoing (collectively,
“Releasee”), from or in connection with, and Executive hereby waives and/or
settles, with prejudice, any and all complaints, causes of action,
suits, controversies, or any liability, claims, demands, or damages, known or unknown and
of any nature whatsoever and which Executive ever had, now has or shall or may
have as of [ ],
the date of this Separation Agreement including without limitation, those
arising directly or indirectly pursuant to or out of any aspect of Executive’s
employment or termination from
employment with
NBTB, NBT Bank or any
other Releasee.
II. Specifically,
without limitation of the foregoing, the release and waiver of claims under this
Separation Agreement shall include and apply to any rights and/or claims (i)
arising under any contract or employment arrangement, express or implied,
written or oral; (ii) for wrongful dismissal or termination of employment; (iii)
arising under any applicable federal, state, local or other statutes, laws,
ordinances, regulations or the like, or case law, that relate to employment or
employment practices and/or specifically, that prohibit discrimination based
upon age, race, religion, sex, national origin, disability or any other unlawful
bases, including without limitation, Title VII of the Civil Rights
Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination
in Employment Act, the Older
Workers Benefit Protection Act, the Civil Rights Act of 1866, the Equal Pay Act
of 1963, the Family Medical Leave Act of 1993, the Fair Labor Standards Act, the
Employee Retirement Income Security Act of 1974, Executive Order 11246, the
Worker Adjustment and Retraining Notification Act, all as amended, and
any other statutes, orders, laws, ordinances, regulations applicable to
Employee’s employment, of any state or city in which any Releasee is subject to
jurisdiction, and/or any political subdivision thereof,; (iv) based upon any other
federal, state or local statutes, orders, laws, ordinances, regulations, case law, public policy, or common
law or the like; (v)
concerning recruitment, hiring, discharge, promotions, transfers, employment
status, right to reemployment, wages, bonus or incentive pay, severance pay,
stock or stock options, employment benefits (including, without limitation, sick
or other leave, medical, disability, life, or any other insurance, 401(k),
pension, other retirement plans or benefits, or any other fringe benefits),
workers’ compensation, intentional or negligent misrepresentation and/or
infliction of emotional distress, interference with contract, fraud,
libel, slander, defamation,
invasion of privacy or loss of consortium, together with any and all tort,
contract, or other claims which have been or might have been asserted by
Executive or on his behalf in any suit, charge of discrimination, or claim
against the Releasee; and (vi) for damages, including without limitation,
punitive or compensatory damages, or for attorneys’ fees, expenses, costs,
wages, injunctive or equitable relief.
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III. Executive
expressly understands and acknowledges that it is possible that unknown losses
or claims exist or that present losses may have been underestimated in amount or
severity, and Executive explicitly took that into account in determining the
amount of consideration to be paid for the giving of the release in this
Separation Agreement, and a portion of said consideration and the mutual
covenants were given in exchange for a full satisfaction and discharge of such
claims.
IV. Executive
and NBT Bank acknowledge that the above release and waiver of claims shall not
apply to the obligation of NBT Bank to make payments (if any) of any vested
benefit under NBT Bank’s tax-qualified
employee benefit plans nor to Executive’s right to continue healthcare insurance
under the provisions of the Consolidated Omnibus Budget Reconciliation Act of
1985.
V. Executive
represents and warrants that he has not filed or commenced any complaints,
claims, actions or proceeding of any kind against any Releasee with any federal,
state or local court or any administrative or regulatory body. Except
for Executive’s right to bring a proceeding pursuant to the Older Workers
Benefit Protection Act to challenge the release of claims in this Separation
Agreement, and consistent with the EEOC Enforcement Guidance On Non-Waivable
Employee Rights Under EEOC-Enforced Statutes dated April 11, 1997, and otherwise
to the fullest extent permitted by law, Executive agrees not to commence or
participate as a party in any proceeding in any court or forum against any
Releasee which is based upon any act, omission or occurrence up to and including
the date of the execution of this Separation Agreement. Executive
further agrees not to encourage or participate in any action or proceeding
brought by any person (except a government agency) against any
Releasee. In the event any government agency seeks to obtain any
relief on behalf of Executive with regard to any claim released by Executive,
Executive agrees not to accept any relief or award from such
proceeding.
VI. This
Separation Agreement is not and shall not be construed as an admission by any
Releasee or Executive of any wrongdoing or illegal acts or omissions and each
party expressly denies that they engaged in any wrongdoing or illegal or acts or
omissions. Executive shall not, except as may be required by law,
make any oral or written negative, disparaging or adverse statements,
suggestions or representations of or concerning NBT Bank or any
Releasee.
VII. Executive
agrees to cooperate reasonably with and to be readily available to NBT Bank to
assist in any matter, including government agency investigations, court
litigation or potential litigation, about which Executive may have
knowledge. If Executive receives a subpoena or other legal process
relating in any way to same, Executive immediately will provide NBT Bank notice
of the contact or the service of such subpoena or other legal process, and shall
cooperate with NBT Bank in responding.
VIII. Except
as prohibited by law, each Releasee shall be excused from any obligation to make
payment of the separation
payments in the Employment Agreement in the event that paragraphs I
through IV of this Separation Agreement are determined to be void or
unenforceable, in whole or in part; or Executive is found to have made a
material misstatement in any term, condition, representation or acknowledgement
in this Separation Agreement, in either of which event Executive shall also be
liable for any damages and costs suffered or incurred by any Releasee by reason
of such misstatement or breach.
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IX. This
Separation Agreement shall be incorporated by reference into the Employment
Agreement and shall be made a part thereof.
X.
Executive agrees and acknowledges that:
(a) With respect to the General Release in
Section II hereof, Executive agrees and understands that he is specifically
releasing all claims under the Age Discrimination in Employment Act, as amended,
29 U.S.C. § 621 et seq. Executive acknowledges that he has read and
understands this Agreement and executes it voluntarily and without
coercion;
(b) Executive has been
advised by NBT Bank to consult with an attorney before executing this Separation
Agreement and has been
given twenty-one (21) days to review this Separation Agreement and to
consider whether to sign this Separation Agreement. Executive may elect to
sign this Separation Agreement prior to the expiration of the twenty-one day
consideration period specified herein, and Executive agrees that if he elects to
do so, such election is knowing and voluntary and comes after full opportunity
to consult with an attorney;
(c) Executive
has the right to revoke this Separation Agreement within the seven (7) day
period following the date Executive signs this Separation Agreement (the
“Revocation Period”) and any revocation shall be made by providing a signed
notice in writing, delivered personally or by fax to the Human Resources
Director at NBT Bancorp, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx, 00000 no later than 5:00 p.m. on the seventh
calendar day following his execution of this Separation
Agreement;
(d) This Separation
Agreement will not be effective or enforceable, and the separation payments under the
Employment Agreement are not required and shall not be delivered or paid, until
Executive has delivered a signed, notarized original of this Separation
Agreement to the Human Resources Director at NBT Bancorp, 00 Xxxxx Xxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxx, 00000 and the Revocation Period has expired without
revocation of this Separation Agreement. It is not necessary that
any Releasee sign this Separation Agreement following Executive’s full and
complete execution of it for it to become fully effective and
enforceable;
(e) Executive relied solely on his own judgment and/or
that of this attorney regarding the consideration for and the terms of this
Separation Agreement and is signing this Separation Agreement knowingly and
voluntarily of his own free will;
(f) Executive is not entitled to the separation payments
under the Employment Agreement unless he agrees to and honors the terms of the
terms of this Separation Agreement; and
(g) Executive has read and understands
this Separation Agreement and further understands that, subject to the
limitations contained herein, it includes a general release of any and all known
and unknown, foreseen or unforeseen claims presently asserted or otherwise
arising through the date of his singing of this Separation Agreement that he may
have against any Releasee.
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XI. Executive
understands all of the terms of this Separation Agreement, and agrees that such
terms are fair, reasonable and are not the result of any
fraud, duress, coercion, pressure or undue influence exercised by or on behalf
of any Releasee; and Executive has agreed to and entered into this Separation
Agreement and all of its terms, knowingly, freely and voluntarily.
XII. There are no other agreements of any
nature between any Releasee and Executive with respect to the matters discussed
in this Separation Agreement with respect to the matters discussed in this
Separation Agreement, except as expressly stated herein, and in signing this
Separation Agreement, Executive is not relying on any agreements or
representation, except those expressly contained in this Separation
Agreement.
XIII. This Separation Agreement shall be
governed by the laws of New York, excluding the choice of law rules
thereof.
IN WITNESS WHEREOF, the
parties hereto have executed this Separation Agreement.
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Date
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Xxxxxxx
X. Xxxxxxx
|
STATE OF
NEW
YORK )
: ss.:
COUNTY
OF )
On the
____ day of _________, 20__, personally came Xxxxxxx X. Xxxxxxx and being duly
sworn, acknowledged that he is the person described in and who executed the
foregoing Separation Agreement and acknowledged that he executed
same.
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Notary
Public
|
NBT
BANCORP, INC.
|
By:
|
Date:
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Title:
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Appendix A
[Separation Payments]
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