EXHIBIT 10.1
Amendment No. 1 to Agreement and Plan of Merger dated as of
May 17, 2000 by and between NBT Bancorp Inc. and BSB
Bancorp, Inc.
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
AMENDMENT TO AGREEMENT AND PLAN OF MERGER dated as of May 17, 2000
(this "Amendment"), by and between NBT BANCORP INC., a Delaware corporation
("NBT"), and BSB BANCORP, INC., a Delaware corporation ("BSB") (at times,
referred to herein as the "PARTY" or the "PARTIES").
BACKGROUND
A. The Parties entered into that certain Agreement and Plan of Merger
dated as of April 19, 2000 (the "AGREEMENT"), pursuant to which BSB will be
merged with and into NBT, subject to the terms and conditions thereof (the
"MERGER").
B. The Agreement provides that the Parties will cause BSB Bank & Trust
Company, a New York-chartered commercial bank and trust company headquartered in
Binghamton, New York and wholly owned subsidiary of BSB ("BSB BANK"), and NBT
Bank, National Association, a national banking association headquartered in
Norwich, New York and wholly owned subsidiary of NBT ("NBT BANK"), to enter into
a bank plan of merger providing for the merger of BSB Bank with and into NBT
Bank (the "BANK MERGER"), and specifies the Parties' intention that the Bank
Merger be consummated immediately after consummation of the Merger.
C. The Parties now wish to amend the Agreement to specify the Parties'
intention that the Bank Merger be consummated simultaneously with the
consummation of the Merger and to make certain other changes to the Agreement in
connection therewith, and to extend the time for the Parties to determine the
number of directors of the Resulting Bank and for the designation of the
directors of the Resulting Bank by NBT and BSB to no later than 40 Business Days
following the date of the Agreement. Capitalized terms used but not defined
herein shall have the meanings given to them in the Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the Parties agree as follows:
1. AMENDMENT.
(a) The fourth recital of the Agreement is amended and
restated in its entirety
as follows:
WHEREAS, prior to consummation of the Merger, NBT and
BSB will cause BSB Bank & Trust Company, a New York-chartered
commercial bank and trust company headquartered in Binghamton,
New York and wholly owned subsidiary of BSB ("BSB BANK"), and
NBT Bank, National Association, a national banking association
head-quartered in Norwich, New York and wholly owned
subsidiary of NBT ("NBT BANK"), to enter into a bank plan of
merger, in the form attached hereto as EXHIBIT A (the "BANK
MERGER AGREEMENT"), providing for the merger of BSB Bank with
and into NBT Bank (the "BANK MERGER"), with NBT Bank being the
resulting bank of the Bank Merger (the "RESULTING BANK"), and
it is intended that the Bank Merger be consummated
simultaneously with consummation of the Merger; and
(b) Exhibit A to the Agreement is amended and restated in its
entirety in the form attached hereto as Exhibit A.
(c) Section 1.07 of the Agreement is amended and restated in
its entirety as follows:
At the Effective Time, the board of directors of the
Resulting Bank shall consist of the chairman of the board of
directors of the Surviving Corporation, who shall serve as the
chairman of the board of the Resulting Bank, and eight, ten or
twelve other persons, half of whom will be designated by NBT
and half of whom will be designated by BSB. The number of such
other persons shall be agreed upon by NBT and BSB, and in the
absence of timely agreement such number shall be set at ten.
The number of directors and the selection of directors to be
designated by NBT and BSB under this paragraph shall be
determined and made no later than 40 Business Days following
the date of this Agreement and shall be noted on Schedule 1.07
to be attached to and deemed a part of this Agreement,
provided, that the president of the Resulting Bank shall be
one of the directors so designated by NBT.
(d) Section 2.05(b)(iii) of the Agreement is amended and
restated in its entirety as follows:
(iii) courtesy notice of the Bank Merger to the
New York State Banking Department (the "NYSBD");
(e) Section 3.05(b)(iii) of the Agreement is amended and
restated in its entirety as follows:
(iii) courtesy notice of the Bank Merger to the
NYSBD;
(f) Section 8.02 of the Agreement is amended and restated in
its entirety as follows:
The representations, warranties and agreements in
this Agreement shall terminate at the Effective Time or upon
the termination of this Agreement pursuant to Article VII,
except that the agreements set forth in Article I and in
Sections 5.06, 5.07 and 5.08 shall survive the Effective Time
indefinitely and those set forth in Sections 5.03(c), 5.11,
7.02 and Article VIII hereof shall survive termination
indefinitely.
2. REPRESENTATIONS AND WARRANTIES. Each of the Parties hereby
represents and warrants to the others as follows:
(a) It has the power to execute and deliver this Amendment and
has taken all necessary action to authorize the execution and delivery of this
Amendment and the performance of the Agreement as amended hereby;
(b) The execution and delivery of this Amendment and the
performance of the Agreement as amended hereby will not violate any provision of
any applicable law or regulation or of any writ or decree of any court or
governmental instrumentality, or its certificate or articles of incorporation,
by-laws, or other similar organizational documents.
3. REAFFIRMATION. Except as amended hereby, all of the terms,
covenants and conditions of the Agreement are ratified, reaffirmed and confirmed
and shall continue in full force and effect as therein written.
4. BINDING EFFECT. This Amendment shall be binding upon and
inure solely to the benefit of each Party hereto, and nothing in this Amendment,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under of by reason of this
Amendment.
5. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, and by the different Parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
6. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law.
IN WITNESS WHEREOF, NBT and BSB have caused this Amendment to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
NBT BANCORP INC.
By: /S/ DARYL R. FORSYTHE
----------------------
Name: Daryl R. Forsythe
Title: President and Chief Executive Officer
BSB BANCORP, INC.
By: /S/ THOMAS L. THORN
----------------------
Name: Thomas L. Thorn
Title: Acting President and Chief
Executive Officer
EXHIBIT A
BANK PLAN OF MERGER
This Bank Plan of Merger (this "Plan of Merger") is made and
entered into as of the ____ day of __________, 2000 between NBT BANK, NATIONAL
ASSOCIATION, a national banking association located in Norwich, New York ("NBT
Bank") and BSB Bank & Trust Company, a New York-chartered commercial bank and
trust company located in Binghamton, New York ("BSB Bank").
WITNESSETH
WHEREAS, NBT Bancorp Inc., a Delaware corporation ("NBT"), and
BSB Bancorp, Inc., a Delaware corporation ("BSB"), have entered into an
Agreement and Plan of Merger, dated as of April ____, 2000 (the "Agreement");
WHEREAS, NBT Bank is a wholly owned subsidiary of NBT and BSB
Bank is a wholly owned subsidiary of BSB;
WHEREAS, BSB will merge with and into NBT pursuant to the
terms of the Agreement (the "Merger"), and simultaneously therewith BSB Bank
will merge with and into NBT Bank pursuant to this Plan of Merger, with NBT Bank
surviving as the resulting bank; and
WHEREAS, NBT Bank has _______ shares of common stock
outstanding, $1.00 par value per share, and BSB Bank has 1,000 shares of capital
stock outstanding, $1.00 par value per share.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein and in the Agreement, the
parties hereto do mutually agree, intending to be legally bound, as follows:
ARTICLE 1
DEFINITIONS
Except as otherwise provided herein, the capitalized terms set
forth below shall have the following meanings:
1.1 "BANK MERGER" shall mean the merger of BSB Bank with and into
NBT Bank as provided in Section 2.1 of this Plan of Merger.
1.2 "EFFECTIVE TIME" shall mean the date and time at which the
Bank Merger becomes effective as provided in Section 2.2 hereof.
1.3 "MERGING BANKS" shall mean, collectively, BSB Bank and NBT
Bank.
1.4 "OCC" shall mean the Office of the Comptroller of the
Currency.
1.5 "RESULTING BANK" shall refer to NBT Bank as the surviving bank
in the Bank Merger.
ARTICLE 2
TERMS OF THE BANK MERGER
2.1 THE BANK MERGER
(a) Subject to the terms and conditions set forth in the
Agreement, and in accordance with the National Bank Act and the Federal Bank
Merger Act and the regulations of the OCC promulgated thereunder, and the New
York Banking Law and the regulations of the New York Banking Board and the New
York Superintendent of Banks, at the Effective Time, BSB Bank shall be merged
with and into NBT Bank pursuant to and upon the terms set forth in this Plan of
Merger. NBT Bank shall continue as the Resulting Bank in the Bank Merger and the
separate existence of BSB Bank shall cease.
(b) As a result of the Bank Merger, (i) each share of capital
stock, par value $1.00 per share, of BSB Bank issued and outstanding immediately
prior to the Effective Time shall be canceled, and (ii) each share of common
stock, par value $1.00 per share, of NBT Bank issued and outstanding immediately
prior to the Effective Time shall remain issued and outstanding and shall
constitute the only shares of common stock of the Resulting Bank issued and
outstanding immediately after the Effective Time.
(c) On and after the Effective Time, the Bank Merger shall
have the effects set forth in Section 215a(c) of the National Bank Act and
Section 602 of the New York Banking Law.
2.2 EFFECTIVE TIME
The Bank Merger shall become effective at the same date and
time as the Merger becomes effective pursuant to Section 1.02 of the Agreement
(the "Effective Time").
2.3 NAME OF THE RESULTING BANK
The name of the Resulting Bank shall be
"________________________."
2.4 ARTICLES OF ASSOCIATION
On and after the Effective Time, the Articles of Association
of NBT Bank shall be the Articles of Association of the Resulting Bank, unless
and until amended in accordance with applicable law except that the corporate
title shall be changed in accordance with Section 2.3 of this Plan of Merger and
the main office shall be changed in accordance with Section 2.8 of this Plan of
Merger.
2.5 BYLAWS
On and after the Effective Time, the bylaws of NBT Bank shall
be the bylaws of the Resulting Bank, unless and until amended in accordance with
applicable law except that the corporate title shall be changed in accordance
with Section 2.3 of this Plan of Merger.
2.6 DIRECTORS AND OFFICERS
The directors and executive officers of the Resulting Bank shall be as
set forth in ANNEX 1 hereto.
2.7 CORPORATE ACTION
This Plan of Merger and the consummation of the transactions
contemplated hereby have been duly and validly adopted and approved by at least
a majority of the Board of Directors of NBT Bank and BSB Bank, and the sole
shareholder of each of the Merging Banks.
2.8 OFFICES OF THE RESULTING BANK
NBT Bank, as the Resulting Bank, shall relocate its main
office to Binghamton, New York, and shall establish a branch office at its
former main office location and also shall establish as branch offices the
principal office and branch offices of BSB Bank (except the facility, if any, of
BSB that becomes the main office of the Resulting Bank). The location of the
main office and other offices of the Resulting Bank shall be as set forth at
ANNEX 2 hereto.
ARTICLE 3
MISCELLANEOUS
3.1 SUCCESSORS
This Plan of Merger shall be binding on the successors of NBT
Bank and BSB Bank.
3.2 COUNTERPARTS
This Plan of Merger may be executed in two
counterparts, each of which shall be deemed an
original, but which taken together shall constitute
one and the same document.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, each of the parties has caused this Plan
of Merger to be duly executed on its behalf by an officer thereunto duly
authorized, all as of the day and year first above written.
NBT BANK, NATIONAL ASSOCIATION
ATTEST:
By: By:
------------------------ ----------------------
Name: John D. Roberts Name: Daryl R. Forsythe
Title: Senior Vice President and Title: Chairman and Chief
Corporate Secretary Executive Officer
BSB BANK & TRUST COMPANY
ATTEST:
By: By:
------------------------ -------------------------
Name: Larry G. Denniston Name: Thomas L. Thorn
Title: Executive Vice President Title: Acting President and Chief
and Secretary Chief Executive Officer
ANNEX 1
DIRECTORS AND OFFICERS OF RESULTING BANK AFTER THE BANK MERGER
ANNEX 2
OFFICES OF RESULTING BANK AFTER THE BANK MERGER
At the Effective Time of the Bank Merger, NBT Bank will have
the following offices:
LOCATION OF MAIN OFFICE
LOCATION OF BRANCH OFFICES
EXHIBIT 27.1
Financial Data Schedule for the six months ended
June 30, 2000