EXHIBIT 10.19
Severance Agreement and Mutual General Release between NBT Bancorp Inc.
and John G. Martines.
SEVERANCE AGREEMENT AND MUTUAL GENERAL RELEASE
This is a Severance Agreement and Mutual General Release ("Agreement")
between NBT Bancorp, Inc. ("NBTB") and John G. Martines ("Executive"). In
consideration of the mutual promises and commitments made herein, and intending
to be legally bound hereby, NBTB and Executive agree as follows:
1. Effective at 11:59p.m. on January 26, 2001, Executive has elected to
retire and resign voluntarily from all positions he holds as an officer of
NBTB's Pennsylvania banking operations, which is (or will be) doing business
under the name of Pennstar Bank, N.A., and in accordance with the provisions of
his employment agreement, dated February 17, 2000. Executive further
acknowledges that, as a result of his retirement, his employment relationship
with NBTB and Pennstar Bank will be permanently and irrevocably severed and that
NBTB and Pennstar Bank will have no obligation, contractual or otherwise, to
rehire or reinstate him after January 26, 2001.
2. NBTB and Executive agree that the Executive may continue, after his
retirement, to serve as a director on the Boards of Directors of NBTB and
Pennstar Bank, N.A. Furthermore, after the effective date of the merger of
Pennstar Bank, N.A. with and into Nystar Bank, N.A., NBTB and Executive agree
that the Executive may continue as the Chairman and a director of Pennstar Bank,
which will be the Pennsylvania division of Nystar Bank, N.A. Executive shall not
be entitled to receive directors' fees for such service.
3. NBTB agrees to pay Executive by wire transfer in immediately
available funds to an account designated by Executive on January 26, 2001 or
seven (7) days after execution of this Agreement by Executive, whichever is
later, the following:
A. one million two hundred thousand dollars ($1,200,000); and
B. an amount equal to Executive's normal bonus payout under his
existing employment agreement for the calendar year
2000, if not received prior to January 26, 2001.
Furthermore, NBTB will transfer title to the automobile currently used
by Executive on January 26, 2001 or seven (7) days after execution of this
Agreement by Executive, whichever is later.
Executive will also be entitled to receive no later than January 26,
2001, a grant of stock options pursuant to the NBT Bancorp, Inc. 1993 Stock
Option Plan in accordance with his existing employment agreement.
4. Executive acknowledges and agrees that, except for the payment under
paragraphs 3A and 3B, he is responsible for the payments of all federal, state
and local estimated quarterly income tax payments for the blue-book value of the
automobile as determined by NBTB.
5. Nothing in this Agreement shall affect Executive's vested portion of
his account in NBTB's employee benefit and retirement programs. NBTB and
Executive agree that the terms and provisions of Executive's current employment
agreement shall remain in full force and effect up to and including January 26,
2001, except that Executive agrees to renounce any right to the payment of any
salary to him for the period from January 1 to January 26, 2001 and any vacation
accrual that may be earned for the calendar year 2001 and in exchange for such
renouncement, NBTB shall award the Executive on December 31, 2000, eighteen
additional vacation days to be used by the Executive in January 2001. NBTB shall
pay the Executive for these vacation days at his current rate of compensation.
Executive specifically acknowledges that his current employment agreement shall
be null and void as of January 27, 2001.
6. In consideration for NBTB's commitments hereunder, Executive hereby
remises, releases and forever discharges NBTB and each and all of its past and
present subsidiaries, parent and related corporations, companies and divisions,
and its past and present directors, trustees, officers, managers, supervisors,
employees, attorneys, and agents, and their predecessors, successors and assigns
(referred to collectively in this Agreement as "Releasees"), from any and all
claims, debts, agreements, complaints or causes of action (hereinafter,
collectively, "claims"), whether known or unknown, that he ever had, now has, or
hereafter can, shall or may have against any or all of the Releasees, for, upon,
or by reason of any cause, matter, thing or event whatsoever occurring at any
time from the date of Executive's birth up to and including January 26, 2001.
Executive acknowledges and understands that the claims being released in this
paragraph include, but are not limited to: (i) any claim based on contract or in
tort or common law; (ii) any claim based on or arising under any civil rights or
employment discrimination laws, such as the Federal Age Discrimination in
Employment Act (29 U.S.C. ss. 621 ET SEQ.) (hereinafter, "ADEA"), Title VII of
the Civil Rights Act of 1964 (42 U.S.C. ss. 2000e ET seq.), or the Pennsylvania
Human Relations Act (42 P.S. ss. 951 ET SEQ.); (iii) any claim based on or
arising under any employment related law, such as the Employee Retirement Income
Security Act of 1974, as amended (29 U.S.C. ss. 301 ET SEQ.), the Equal Pay Act
(29 U.S.C. ss. 201 ET SEQ.), the Americans With Disabilities Act (42 U.S.C. ss.
12101 ET SEQ.), the Family and Medical Leave Act (29 U.S.C. ss. 2601 ET SEQ.),
or the Fair Labor Standards Act, as amended (29 U.S.C. ss. 201 ET SEQ.); (iv)
any claim based on or arising out of Executive's employment by NBTB and Pennstar
Bank and their predecessors and/or his resignation therefrom including any
claims pursuant to his employment agreement dated February 17, 2000; and (iv)
any claims for compensatory, liquidated or punitive damages, damages for
emotional distress, back pay, front pay, and benefits. In addition, effective
upon the eighth day following execution of this Agreement by Executive,
Executive shall have hereby waived any and all claims, whether known or unknown,
that he ever had, now has, or hereafter can, shall or may have under the
Change-in-Control Agreement, as that term is defined in the Executive's
employment agreement dated February 17, 2000. Executive understands that, by
signing this Agreement, he waives all claims he ever had, now has, or may have
against any of the Releasees. NBTB does hereby remise, release and forever
discharge Executive from any and all claims, debts, agreements, complaints,
liabilities, payments, accountings, actions and causes of action, whatsoever,
whether known or unknown, at the date and time Executive executes this
Agreement, that NBTB does, shall or might have against Executive, for, upon or
by reason of any cause, matter, thing or event whatsoever occurring at any time
from the date of Executive's birth to and including the date and time he
executes this Agreement. NBTB understands that, by the execution of this
Agreement by an authorized officer, NBTB waives all claims it ever had, now
have, or may have against Executive, including, but not limited to, claims
arising out of his employment prior to the date and time he executes this
Agreement. This release does not apply to the requirements and obligations
contained within this Agreement. Furthermore, Executive specifically reserves
his right to proceed against NBTB under Subsection 3(d) of Executive's
employment agreement dated February 17, 2000.
7. If all or any portion of the amounts payable to Executive under this
Agreement, either alone or together with other payments which Executive has the
right to receive from NBTB, constitute "excess parachute payments" within the
meaning of Section 280G of the Internal Revenue Code of 1986 (the "Code") that
are subject to the excise tax imposed by Section 4999 of the Code (or any
successor sections), NBTB shall increase the amounts payable hereunder to the
extent necessary to place Executive in the same after-tax position as he would
have been in had no such excise tax been imposed on the payments hereunder. The
determination of the amount of any such excise taxes shall be made by the
independent accounting firm retained by NBTB.
If at a later date it is determined (pursuant to final regulations or
published rulings of the Internal Revenue Service ("IRS"), assessment by the IRS
or otherwise) that the amount of excise taxes payable by Executive is greater
than the amount initially so determined, then NBTB shall pay Executive an amount
equal to the sum of (A) such additional excise taxes, plus (B) any interest,
fines and penalties with respect to such additional excise taxes, plus (C) the
amount necessary to reimburse Executive for any income, excise or other taxes
payable by Executive with respect to the amounts specified in (A) and (B) above
and the reimbursement provided by this clause (C).
8. Executive further covenants and agrees not to sue any of the
Releasees for any claims released hereunder, nor to assert any such claims
against any of the Releasees for any purpose. Any claim for a breach of any
provision of this Agreement may be remedied only by a lawsuit to enforce the
Agreement and will not invalidate any party's release of claims.
9. Executive agrees that the terms of this Agreement are confidential,
and that he will not disclose or publicize the terms of this Agreement or the
amounts paid or agreed to be paid pursuant to this Agreement to any person or
entity, except to his attorney or accountant, or to a government agency for the
purposes of the payment or collection of taxes or application for unemployment
compensation. NBTB agrees that the terms of this Agreement are confidential and
they will not knowingly disclose or publicize (or knowingly permit their
employees to disclose or publicize) the terms of this Agreement or the amount
paid pursuant to this Agreement to any person or entity except their officers,
directors, attorneys or accountants, or to a government agency or representative
thereof; provided, however, that NBTB does not guarantee that none of its
employees will not make any such disclosure or publication; and provided
further, that NBTB reserves the right to disclose the terms of this Agreement in
any filing required under the rules and regulations promulgated under the
Securities Exchange Act of 1934 by the Securities and Exchange Commission
("SEC") if, in the opinion of NBTB's counsel, such disclosure is required under
such rules and regulations of the SEC.
10. All executed copies of this Agreement, and photocopies thereof,
shall have the same force and effect and shall be as legally binding and
enforceable as the original.
11. All provisions of this Agreement are severable, and if any of them
is determined to be invalid or unenforceable for any reason, the remaining
provisions and portions of this Agreement shall be unaffected thereby and shall
remain in full force to the fullest extent permitted by law.
12. This Agreement is binding on Executive and on his successors,
administrators, heirs and assigns, and inures to the benefit of each of NBTB and
the Releasees and their successors, predecessors, heirs, executors,
administrators or assigns, as the case may be.
13. Executive acknowledges that he has been advised of his rights to
consult with an attorney before signing this Agreement and that he has been
encouraged to do so. Consequently, he has been represented by independent
counsel in this matter.
14. Executive makes the following additional representations to NBTB,
each of which is significant and an important consideration for NBTB's
willingness to enter into the Agreement:
A. Executive expressly acknowledges that if he did not
execute the Agreement, he would not be entitled to receive the money set forth
in paragraph 3 A.
B. Executive acknowledges that he has been given a full and
fair opportunity to review the Agreement. NBTB specifically recommended that
Executive consult with an attorney before executing the Agreement, and he has
been allowed up to twenty-one (21) days to consider whether to accept the
Agreement. Executive acknowledges that he is signing this Agreement voluntarily
and of his own free will, with full knowledge of the nature and consequences of
its terms.
C. Executive understands that he may change his mind, and not
retire and revoke the Agreement at any time during the seven (7) days after he
signs the Agreement, provided he does so in writing, in which case none of the
provisions of the Agreement will have any effect. Executive understands that he
will not be entitled to receive any payments under the Agreement until the seven
(7) day revocation period has expired without revocation of the Agreement.
15. By entering into this Agreement, NBTB does not admit that it or any
of its employees violated any law or any legal right of Executive and, in fact,
NBTB expressly denies liability. NBTB is entering into this Agreement solely for
the purpose of effectuating a mutually satisfactory retirement benefit for
Executive and, therefore, termination of his positions, as an officer of NBTB
and the Pennstar Bank.
16. By entering into this Agreement, neither Executive, nor NBTB admits
that he or they, or any of their employees, violated any law or legal right of
the other, and, in fact, Executive, and NBTB expressly deny liability or
responsibility. They are entering into this Agreement solely for the purpose of
effectuating a mutual satisfactory severance of Executive's employment with, and
termination of his positions as an officer of NBTB.
17. NBTB and Executive agree that this Agreement will have no force and
effect, unless and until NBTB and Executive enter into the Consulting Agreement
as set forth at Exhibit A to this Agreement.
18. The Agreement and all acts and transactions contemplated hereunder
shall be governed, construed and interpreted in accordance with the laws of the
Commonwealth of Pennsylvania, without regard to principles of conflict of laws.
19. Each party shall be responsible for its own attorneys' fees.
20. This is the complete and final agreement between the parties and
supersedes all prior or contemporaneous agreements, employment offers,
negotiations or retirement discussions with respect to such subject matters with
the specific exception the Consulting Agreement set forth at Exhibit A hereto.
NBT BANCORP, INC.
By: /S/ John G. Martines By: /S/ Daryl R. Forsythe
John G. Martines Daryl R. Forsythe,
President and Chief Executive Officer
Date: October 17, 2000 Date: October 17, 2000