EXHIBIT 10.8
Form of Employment Agreement between NBT Bancorp Inc. and
John G. Martines made as of February 17, 2000
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") made and entered into this
seventeenth day of February, 2000, by and between JOHN G. MARTINES ("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, the Agreement and Plan of Merger (the "Merger Agreement")
dated as of August 16, 1999, as amended as of December 13, 1999, and as further
amended as of December 27, 1999, and as further amended as of February 17, 2000,
by and between NBTB and Lake Ariel Bancorp, Inc., a Pennsylvania corporation
having its principal office in Lake Ariel, Pennsylvania ("LABN"), provides that
LABN will be merged with and into NBTB (the "Merger");
WHEREAS, Executive is the president and chief executive officer of LA
Bank, National Association, a national banking association which is a
wholly-owned subsidiary of LABN (referred to herein, together with the
operations of any Pennsylvania-based bank with which it may combine, as "New
Bank");
WHEREAS, NBTB desires to secure the employment of Executive upon
consummation of the Merger;
WHEREAS, Executive is desirous of entering into the Agreement for such
periods and upon the terms and conditions set forth herein; and
WHEREAS, to assist in achieving the objectives of the transactions
described in the Merger Agreement, section 4.8 of the Merger Agreement
contemplates that Executive will enter into an employment agreement as a
condition to the consummation of the transactions described therein.
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) Contingent upon the occurrence of the Merger, NBTB hereby
agrees to cause New Bank to employ Executive, and Executive hereby agrees to
serve as chief executive officer of New Bank, or of the northeastern
Pennsylvania operations of any successor entity to New Bank, during the Term of
Employment. Executive shall have such executive duties, responsibilities, and
authority as shall be set forth in the bylaws of New Bank or such successor
entity on the date of this Agreement or as may otherwise be determined by NBTB
or by New Bank or such successor entity. During the Term of Employment,
Executive shall report directly to the chief executive officer of NBTB.
(b) Contingent upon the occurrence of the Merger, NBTB hereby
agrees to cause Executive to be reelected to the board of directors of New Bank
for successive terms throughout the Term of Employment. Subject to the fiduciary
duties of its directors to NBTB, as promptly as practicable after the occurrence
of the Merger NBTB will use its best efforts to cause Executive to be elected or
appointed as a director of NBTB, to serve as a director of the class whose term
expires in 2000, and to propose to its stockholders at its next annual meeting
of stockholders that Executive be reelected to the board of directors of NBTB as
a member of the class whose term shall expire in 2003.
(c) Executive shall devote his full working time and best
efforts to the performance of his responsibilities and duties hereunder and to
the retention of the customer relationships to which New Bank has been a party
prior to the date of this Agreement and the expansion of the customer
relationships of New Bank subsequent to the date of this Agreement. During the
Term of Employment, Executive shall not, without the prior written consent of
the Board of Directors of New Bank, render services as an employee, independent
contractor, or otherwise, whether or not compensated, to any person or entity
other than New Bank 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 EMPLOYMENT.
(a) The term of this Agreement ("Term of Employment") shall be
the period commencing on the first business day following the date of the Merger
(the "Commencement Date") and continuing until the Termination Date, which shall
mean the earliest to occur of:
(i) the third anniversary of the Commencement
Date, unless the Term of Employment shall be extended for one additional year by
Executive, upon written notice provided by Executive to NBTB not later than
nine months prior to the third anniversary of the Commencement Date;
(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:
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(A) any willful or gross misconduct by
Executive with respect to the business and affairs of NBTB or New 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 New Bank or any of its affiliates for which
Executive is assigned material responsibilities or duties; or
(v) Executive's resignation from his position as
chief executive officer of New 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 as chief executive officer of
New Bank, or of the northeastern Pennsylvania operations of any successor entity
to New 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:
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(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(j) 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(e) 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 fourth
anniversary of the Commencement Date, salary payable at the rate established
pursuant to section 3(a)(i) hereof, in a manner consistent with the normal
payroll practices of New Bank with respect to executive personnel as presently
in effect or as they may be modified by New Bank 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(j) 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(e) hereof.
(d) Any provision of this section 2 to the contrary
notwithstanding, in the event that the employment of Executive with NBTB or New
Bank is terminated in any situation described in section 3 of the
change-in-control letter agreement dated February 17, 2000 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(j) 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(e) hereof; and
(iii) the severance payment and other benefits
provided in the Change-in-Control Agreement.
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3. COMPENSATION. For the services to be performed by Executive
for New Bank under this Agreement, Executive shall be compensated in the
following manner:
(a) SALARY. During the Term of Employment:
(i) New Bank shall pay Executive a salary which,
on an annual basis, shall not be less than $230,000,
assuming Executive performs competently. Salary shall be payable in accordance
with the normal payroll practices of New Bank with respect to executive
personnel as presently in effect or as they may be modified by New Bank from
time to time.
(ii) Executive shall be eligible to be considered
for 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 to be considered
for performance bonuses of up to 75 percent of salary
(with his performance evaluated primarily based upon the performance of New
Bank, or of the northeastern Pennsylvania operations of any successor entity to
New Bank, and secondarily based upon the performance of NBTB taken as a whole),
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
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. During the Term of Employment, medical insurance
for Executive will be procured through the same carrier that provided insurance
coverage to Executive as an employee of New Bank as of June 30, 1999, or from
such other insurance carrier as shall be mutually acceptable to Executive and
NBTB.
(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, no par value, $1.00 stated value, or the
common stock of NBTB as reclassified to have a par value of $.01 per share, as
the case may be (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 dividing 250 percent of the annualized salary of
Executive on the date of grant of the Option by the "Fair Market Value" of NBTB
Common Stock (as defined in the Stock Option Plan). 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.
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(d) SUPPLEMENTAL EXECUTIVE RETIREMENT PLANS. NBTB shall assume
and continue in effect the LA Bank, N.A. Salary Continuation Agreement between
New Bank and Executive dated March 7, 1997, the Supplementary Retirement Benefit
Agreement between New Bank and Executive dated January 6, 1995, and the Salary
Continuation Agreement between New Bank and Executive dated May 5, 1989, and, in
return therefor, Executive renounces entitlement to benefits under any
supplemental executive retirement plan to which he would otherwise be entitled
as an executive of NBTB or an affiliate of NBTB.
(e) 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.
(f) AUTOMOBILE. During the Term of Employment, Executive shall
be entitled to the use of an automobile owned by New Bank, the make, model, and
year of which automobile shall be appropriate to an officer of Executive's rank
employed by NBTB or its affiliates and consistent with that provided to others
of Executive's rank employed by NBTB or its affiliates. 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(j).
(g) COUNTRY CLUB DUES. During the Term of Employment,
Executive shall be reimbursed for dues and assessments incurred in relation to
Executive's membership at Country Club of Scranton.
(h) LIFE INSURANCE. During the Term of Employment, life
insurance paid by New Bank on the life of Executive for the benefit of his
designated beneficiary or beneficiaries shall be maintained at no less than the
level of insurance maintained as of June 30, 1999.
(i) WITHHOLDING. All compensation to be paid to
Executive hereunder shall be subject to required withholding and other taxes.
(j) 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.
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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 New Bank or
their affiliates, and compositions, ideas, plans, and methods belonging to or
related to the affairs of NBTB or New 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
New Bank or their affiliates, any confidential business information obtained
during the course of his employment by New Bank. The foregoing shall not be
construed as restricting Executive from disclosing such information to the
employees of NBTB or New Bank or their affiliates.
(b) Executive hereby agrees that from the Commencement Date
until the second anniversary of the Termination Date (or, in the event that the
Term of Employment has been terminated for the reason set forth in section
2(a)(vi) or 2(a)(vii) hereof, Executive agrees that until the first anniversary
of the Termination Date), Executive will not (i) engage in any aspect of the
banking, trust or financial services business over which Executive has had,
during the Term of Employment, significant executive or managerial
responsibilities, other than on behalf of NBTB or New Bank or their affiliates,
within the Market Area (as hereinafter defined), (ii) directly or indirectly
own, manage, operate, control, be employed by, or provide management or
consulting services in any capacity to any firm, corporation, or other entity
(other than NBTB or New Bank or their affiliates) engaged in the Market Area in
any aspect of the banking, trust or financial services business over which
Executive has had, during the Term of Employment, significant executive or
managerial responsibilities, or (iii) directly or indirectly solicit or
otherwise intentionally cause any person known to Executive to be an employee,
officer, or member of the respective Boards of Directors of New Bank or any of
its affiliates to engage in any action prohibited under (i) or (ii) of this
section 4(b); provided that the ownership by Executive as an investor of not
more than five percent of the outstanding shares of stock of any corporation, or
the shares of any investment company as defined in section 3 of the Investment
Company Act of 1940, as amended, shall not in itself constitute a violation of
Executive's obligations under this section 4(b).
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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 or New Bank 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, Wayne County, Pennsylvania, 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.
(e) As used herein, "Market Area" shall mean the area or areas
delineated by circles formed by radii extending twenty-five miles from (i) the
head office of New Bank, (ii) the authorized branches of New Bank as they may
exist from time to time, and (iii) each branch of a depository institution
affiliated with New Bank for which Executive has or has had significant
executive or managerial responsibilities.
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.
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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.
52 South Broad Street
Norwich, New York 13815
Attention: Mr. Daryl R. Forsythe
President and Chief Executive Officer
With a required copy to:
Brian D. Alprin, Esq.
Duane, Morris & Heckscher LLP
1667 K Street, N.W., Suite 700
Washington, D.C. 20006
If to Executive:
Mr. John G. Martines
R.D. 1, Box 824
Carbondale, Pennsylvania 18407
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All such notices shall be deemed to have been given on the date delivered,
transmitted, or mailed in the manner provided above.
8. ASSIGNMENT.
(a) Neither party may assign this Agreement or any rights
or obligations hereunder without the consent of the other party.
(b) The parties contemplate that at the time of the Merger, or
subsequent to such time, New Bank may engage in a merger or similar transaction
with an affiliated bank, in which case references in this Agreement to New Bank
shall be construed to apply to the successor institution in such transaction.
9. GOVERNING LAW. This Agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflict of law thereof. The parties hereby
designate the Chancery Court in New Castle County, Delaware 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 Delaware. 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
understanding among NBTB, New Bank, and Executive relating to the subject matter
hereof. Any previous agreements or understandings between the parties hereto or
between Executive and New 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.
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(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.
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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 New 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.
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.
16. AGREEMENT CONTINGENT UPON MERGER. This Agreement is
contingent upon the occurrence of the Merger and, if the Merger
fails to occur, this Agreement will be null and void and of no past or
future effect.
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/ DARYL R. FORSYTHE
Daryl R. Forsythe
President and Chief Executive Officer
JOHN G. MARTINES
/S/ JOHN G. MARTINES
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