EXHIBIT 10.20
Severance Agreement and Mutual General Release between
NBT Bancorp Inc. and Joe C. Minor.
SEVERANCE AGREEMENT AND MUTUAL GENERAL RELEASE
This is a Severance Agreement and Mutual General Release ("Agreement")
between NBT Bancorp, Inc. ("NBTB") and Joe C. Minor ("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 or
director or both of NBTB or its subsidiaries and affiliates, as the case may be,
and in accordance with the provisions of his employment agreement, dated January
1, 2000. Executive further acknowledges that, as a result of his retirement, his
employment relationship with NBTB will be permanently and irrevocably severed
and that NBTB will have no obligation, contractual or otherwise, to rehire or
reinstate him after January 26, 2001.
2. NBTB agrees to purchase, or will arrange for a third party to
purchase, the Executive's residence at One Wales Drive, Norwich, New York
("Wales Property") at a purchase price equal to: the value delineated in an
appraisal prepared by an appraiser selected by NBTB from the list of appraisers
maintained by NBT Bank, National Association or the value of the Executive's
investment in the Wales Property, whichever value is greater. After such
purchase, NBTB or the third party purchaser, as the case may be, will agree to
lease the Wales Property to the Executive at a mutually agreed upon rental rate,
on a month-to-month term, for as long as the Executive chooses; provided,
however, that this month-to-month rental arrangement shall terminate within 12
months of the date of this Agreement.
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 and personal
laptop computer currently used by Executive on January 26, 2001 or seven (7)
days after execution of this Agreement by Executive, whichever is later, and
will continue in force the medical health insurance benefit program for
Executive and on a self-paid basis for dependents of Executive, subject to any
COBRA provisions, that is in effect on January 26, 2001, until Executive reaches
the age of sixty-two (62) years.
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.
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4. Executive acknowledges and agrees that, except for the payments
under paragraphs 3A and 3B (which are subject to the normal withholding rules),
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 and used
value of the laptop computer 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 this current employment agreement shall
be null and void as of January 27, 2001.
6.A. Executive acknowledges that certain business methods, creative
techniques, and technical data of NBTB, its subsidiaries, and its affiliates and
the like are deemed by NBTB to be and are in fact confidential business
information of NBTB, its subsidiaries 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,
its subsidiaries 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, its subsidiaries or their affiliates, and
compositions, ideas, plans, and methods belonging to or related to the affairs
of NBTB, its subsidiaries, or their affiliates. In this regard, NBTB asserts
proprietary rights in all of its business information and that of its
subsidiaries or 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, its subsidiaries, or its affiliates
or use in any business or on behalf of any business competitive with or
substantially similar to any business of NBTB, its subsidiaries, or their
affiliates any confidential business information obtained during the course of
his employment with NBTB, its subsidiaries or affiliates. The foregoing shall
not be construed as restricting Executive from disclosing such information to
the employees of NBTB, its subsidiaries, or their affiliates.
B. Executive hereby agrees that from January 27, 2001 to January 26,
2003, Executive will not (i) engage in the business activities that NBTB or any
of its subsidiaries and affiliates are engaged in on January 27, 2001, other
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than on behalf of NBTB, its subsidiaries 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, its
subsidiaries or their affiliates) engaged in the business same as NBTB in the
Market Area; or (iii) directly or indirectly solicit or otherwise intentionally
cause any person known to Executive to be an employee, officer, or member of the
Board of Directors of NBTB or any of their affiliates to engage in any action
prohibited under (i) or (ii) of this paragraph 6B; 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 Executives obligations under this
paragraph 6B.
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
paragraph 6 (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 paragraph 6 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 paragraph 6 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 paragraph 6
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 paragraph 6.
E. As used herein, "Market Area" shall mean the area or areas
delineated by circles formed by radii extending twenty-five miles from (i)
Norwich, New York, (ii) the authorized branches of NBT Bank, National
Association and any successor as they may exist from time to time, and (iii)
each branch of a depository institution or subsidiary affiliated with NBTB or
its successor for which Executive has or has had significant executive or
managerial responsibilities.
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
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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. 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 New York
Human Rights Law (McKinney's N.Y. Executive Law, Ch. Eighteen, Art. 15, ss. 290
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 its predecessors and/or his resignation
therefrom including any claims pursuant to his employment agreement dated
January 1, 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
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employment agreement dated January 1, 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 nor to the vested rights of the Executive under
the Qualified Plan, 401(k) Plan, ESOP, and Stock Option Plan of NBTB.
9. 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.
10. 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.
11. 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.
12. 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.
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13. 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.
14. 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.
15. 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, 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.
16. 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, Executive's termination of his positions, as an
officer or director or both of NBTB, its subsidiaries and affiliates.
17. 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 retirement of Executive from his employment,
and termination of his positions with NBTB, its subsidiaries and affiliates.
18. The Agreement and all acts and transactions contemplated hereunder
shall be governed, construed and interpreted in accordance with the laws of the
State of New York, without regard to principles of conflict of laws.
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19. Each party shall be responsible for its own attorneys' fees.
20. NBTB and Executive agree that this Agreement will have no force and
effect, unless and until NBTB and Executive enter into the Supplemental
Retirement Agreement between NBTB and Executive, dated October 13, 2000, as set
forth at Exhibit A to this Agreement.
21. 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 of the Supplemental Retirement Agreement set forth at
Exhibit A hereto and to the vested rights of the Executive under the Qualified
Plan, 401(k) Plan, ESOP, and Stock Option Plan of NBTB, all of which are
reserved to the Executive.
NBT BANCORP, INC.
By: /S/ Joe C. Minor By: /S/ Daryl R. Forsythe
Joe C. Minor Daryl R. Forsythe,
President and Chief Executive Officer
Date: 10/13/00 Date: 10/16/00
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EXHIBIT A
SUPPLEMENTAL RETIREMENT AGREEMENT
This sets forth the terms of an agreement for the payment of
supplemental retirement income ("Agreement") made as of October 13, 2000 between
(i) NBT BANCORP INC., a Delaware corporation and a registered bank holding
company, and NBT BANK, NATIONAL ASSOCIATION, a national banking association
chartered under the laws of the United States, both having offices located at
Norwich, New York (collectively, the "Bank"), and (ii) JOE C. MINOR, an
individual residing at One Wales Drive, Norwich, New York 13815, and who is a
member of a select group of management or highly compensated employees within
the meaning of section 201(2) of the Employee Retirement Income Security Act of
1974, as amended ("Minor").
Witnesseth That:
WHEREAS, NBTB, the Bank and Minor desire to make changes in Minor's
current Supplemental Retirement Agreement as part of Minor's retirement and
severance arrangement as an officer or director of NBTB, the Bank or any of
their subsidiaries and affiliates, as the case may be;
WHEREAS, NBTB and Minor have entered into a Severance Agreement and
Mutual General Release with respect to his retirement on even date herewith;
NOW, THEREFORE, in consideration of these premises and mutual
agreements hereinafter set forth, intending to be legally bound, the parties
agree as follows:
1. PURPOSE OF THE AGREEMENT. The purpose of this Agreement is to provide
Minor a supplemental retirement benefit in accordance with the terms of this
Agreement.
2. DEFINITIONS. For purposes of this Agreement, the following words shall
have the meaning indicated:
(a) ACTUARIAL EQUIVALENT. "Actuarial Equivalent" shall have the
same meaning the term "Actuarial Equivalent" has under Section 2.03 of
the Qualified Plan using the following actuarial assumptions:
MORTALITY: Applicable Mortality Rate" as such term is
defined in Section 2.03c of the Qualified
Plan.
INTEREST RATE: "Applicable Interest Rate" as such term is
defined in Section 2.09b of the Qualified
Plan.
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(b) CAUSE. "Cause" shall mean Minor's willful or gross misconduct
with respect to the business and affairs of the Bank, or with respect to any of
its affiliates.
(c) CODE. "Code" shall mean the Internal Revenue Code of 1986,
as amended.
(d) DETERMINATION DATE. "Determination Date" shall mean the first
day of the month following Minor's 62nd birthday.
(e) OTHER RETIREMENT BENEFITS. "Other Retirement Benefits" shall
mean the sum of:
(i) The annual benefit payable to Minor from the
Qualified Plan, plus
(ii) The annual benefit that could be provided by (A) Bank
contributions (other than elective deferrals) made on Minor's behalf under the
NBT Bancorp Inc. 401(k) and Employee Stock Ownership Plan, and (B) actual
earnings on contributions in (A), if such contributions and earnings were
converted to a benefit payable on the Determination Date in the same form as the
benefit paid under this Agreement, using the same actuarial assumptions as are
provided under subparagraph 2(a).
The amount of Other Retirement Benefits shall be determined by an
actuary selected by the Bank, with such determination to be made without
reduction for payment of benefits prior to any stated "normal retirement date"
and without regard to whether Minor is receiving payment of such benefits on the
Determination Date. To the extent Minor receives a payment of Other Retirement
Benefits described in subparagraph 2(e)(ii) prior to the date the Supplemental
Retirement Benefit is determined pursuant to this Agreement, the total of such
Other Retirement Benefits shall be determined by including and assuming that
such amounts earned interest at a variable rate equal to the one-year United
States Treasury bill rate as reported in the New York edition of The Wall Street
Journal on the Determination Date from the date received to the date Other
Retirement Benefits are calculated for purposes of this Agreement.
(f) PRESENT VALUE. "Present Value" shall mean the present value
of a benefit determined on the basis of the following actuarial assumptions:
MORTALITY: "Applicable Mortality Rate" as such term is
defined in Section 2.03c of the Qualified Plan.
INTEREST RATE: "Applicable Interest Rate" as such term is
defined in Section 2.09b of the Qualified Plan.
(g) QUALIFIED PLAN. "Qualified Plan" shall mean the NBT Bancorp
Inc. Defined Benefit Pension Plan and Cash Balance Plan.
(h) SOCIAL SECURITY BENEFIT. "Social Security Benefit" shall mean
Minor's actual social security benefit at his Social Security Retirement Age.
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(i) SOCIAL SECURITY RETIREMENT AGE. "Social Security Retirement
Age" shall have the same meaning the term "Social Security Retirement Age" has
under Section 2.58 of the Qualified Plan.
(j) YEAR OF SERVICE. "Year of Service" shall mean a calendar year
in which Minor completes not less than 1,000 hours of service.
3. AMOUNT OF SUPPLEMENTAL RETIREMENT BENEFIT.
(a) AMOUNT PAYABLE ON AND AFTER AGE 62. At age 62, Minor, subject to
the other terms and conditions of this Agreement, shall be paid by the Bank an
annual "Supplemental Retirement Benefit" determined as follows:
(i) ON AND AFTER AGE 62 BUT BEFORE SOCIAL SECURITY RETIREMENT
AGE. Minor shall be entitled to a Supplemental Retirement Benefit on
and after his 62nd birthday but before his Social Security Retirement
Age in an amount equal to the excess of (1) $90,000, over (2) Minor's
Other Retirement Benefits, determined as of the Determination Date and
calculated in accordance with paragraph 2(e).
(ii) ON AND AFTER SOCIAL SECURITY RETIREMENT AGE. Minor shall
be entitled to a Supplemental Retirement Benefit on and after his
Social Security Retirement Age in an amount equal to the excess of (1)
$90,000, over (2) the sum of (a) Minor's Other Retirement Benefits,
determined as of the Determination Date and calculated in accordance
with paragraph 2(e), plus (b) Minor's Social Security Benefit.
4. TIME OF PAYMENT.
(a) Except as provided in paragraph 6 (payment on death), the Bank
shall pay the Supplemental Retirement Benefit commencing on the first day of the
month following Minor's attainment of age 62.
5. FORM OF PAYMENT.
(a) The Supplemental Retirement Benefit described in paragraph 3 of
this Agreement shall be paid as a straight life annuity, payable in monthly
installments, for Minor's life; provided, however, that if Minor has no
surviving spouse and dies, all payments shall cease and the Bank's obligation
under this Agreement shall be deemed to have been fully discharged.
(b) Notwithstanding the form of payment described in subparagraph 5(a),
if Minor is married on the date payment of the Supplemental Retirement Benefit
commences, and Minor dies subsequent to that date, the benefit shall be paid as
a 50% joint and survivor annuity with Minor's spouse as the Beneficiary. The 50%
joint and survivor annuity shall be the Actuarial Equivalent of the benefit
described in subparagraph 5(a). If the Supplemental Retirement Benefit is
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payable pursuant to this subparagraph 5(b), but Minor's spouse fails to survive
him, no payments will be made pursuant to this Agreement following Minor's
death.
(c) Notwithstanding the foregoing provisions of this paragraph 5, the
Bank, in its sole discretion, may accelerate the payment of all or any portion
of the Supplemental Retirement Benefit or the reduced early Supplemental
Retirement Benefit at any time. Any payment accelerated in accordance with this
subparagraph 5(c) shall be the Actuarial Equivalent of the payment being
accelerated. The Bank will use its best efforts, in good faith, to structure any
such payment so as to avoid a constructive receipt to Executive.
6. PAYMENTS UPON MINOR'S DEATH. Except as provided in subparagraphs 6(a) and
(b), if Minor shall die before his 62nd birthday, no payment shall be due
under this Agreement.
(a) If Minor elects early retirement pursuant to the Severance
Agreement and Mutual General Release dated October 13, 2000, and he dies before
payment of any Supplemental Retirement Benefit has commenced, Minor's surviving
spouse shall be paid, in monthly installments, as a straight life annuity, 50
percent of such Supplemental Retirement Benefit for her life commencing within
30 days following Minor's death, subject to the right of the Bank to accelerate
such payments as provided in subparagraph 5(c). However, if Minor's spouse fails
to survive him, no payments shall be made under this Agreement.
(b) If Minor's death shall occur after payment of a Supplemental
Retirement Benefit has commenced, Minor surviving spouse shall receive payments
under this Agreement to the extent provided in paragraph 5.
7. POWERS. The Bank shall have such powers as may be necessary to discharge
its duties under this Agreement, including the power to interpret and
construe this Agreement and to determine all questions regarding
employment, disability status, service, earnings, income and such factual
matters as birth and marital status. The Bank's determinations hereunder
shall be conclusive and binding upon the parties hereto and all other
persons having or claiming an interest under this Agreement. The Bank shall
have no power to add to, subtract from, or modify any of the terms of this
Agreement. The Bank's determinations hereunder shall be entitled to
deference upon review by any court, agency or other entity empowered to
review its decisions, and shall not be overturned or set aside by any
court, agency or other entity unless found to be arbitrary, capricious or
contrary to law.
8. CLAIMS PROCEDURE.
(a) Any claim for benefits by Minor or his spouse shall be made
in writing to the Bank. In this paragraph, Minor and his spouse are referred to
as "claimants."
(b) If the Bank denies a claim in whole or in part, it shall send the
claimant a written notice of the denial within 90 days after the date it
receives a claim, unless it needs additional time to make its decision. In that
case, the Bank may authorize an extension of an additional 90 days if it
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notifies the claimant of the extension within the initial 90-day period. The
extension notice shall state the reasons for the extension and the expected
decision date.
(c) A denial notice shall contain:
(i) The specific reason or reasons for the denial of the
claim;
(ii) Specific reference to pertinent Agreement provisions
upon which the denial is based;
(iii) A description of any additional material or information
necessary to perfect the claim, with an explanation of why the material
or information is necessary; and
(iv) An explanation of the review procedures provided below.
(d) Within 60 days after the claimant receives a denial notice, he or
she may file a request for review with the Bank. Any such request must be made
in writing.
(e) A claimant who timely requests review shall have the right to
review pertinent documents, to submit additional information or written
comments, and to be represented.
(f) The Bank shall send the claimant a written decision on any request
for review within 60 days after the date it receives a request for review,
unless an extension of time is needed, due to special circumstances. In that
case, the Bank may authorize an extension of an additional 60 days, provided it
notifies the claimant of the extension within the initial 60-day period.
(g) The review decision shall contain:
(i) The specific reason or reasons for the decision; and
(ii) Specific reference to the pertinent Agreement provisions
upon which the decision is based.
(h) If the Bank does not send the claimant a review decision within the
applicable time period, the claim shall be deemed denied on review.
(i) The denial notice or, in the case of a timely review, the review
decision (including a deemed denial under subparagraph 8(h)) shall be the Bank's
final decision.
9. ASSIGNMENT. Neither Minor nor his spouse may transfer his, her or their
right to payments to which he, she or they are entitled under this
Agreement. Except insofar as may otherwise be required by law, any
Supplemental Retirement Benefit payable under this Agreement shall not be
subject in any manner to alienation by anticipation, sale, transfer,
assignment, pledge or encumbrance, nor subject to the debts, contracts, or
liabilities of Minor or his spouse.
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10. CONTINUED EMPLOYMENT. This Agreement shall not be construed as conferring
on Minor a right to continued employment with the Bank.
11. FUNDING.
(a) The Supplemental Retirement Benefit at all times shall be entirely
unfunded, and no provision shall at any time be made with respect to segregating
any assets of the Bank for payments of any benefits hereunder, except that in
the event of a Change of Control, the Bank, within five (5) days of such Change
of Control, shall fund a grantor trust within the meaning of section 671 of the
Code with an amount sufficient to cover all potential liabilities under this
Agreement.
(b) Neither Minor nor his spouse shall have any interest in any
particular assets of the Bank by reason of the right to receive a benefit under
this Agreement. Minor and his spouse shall have only the rights of general
unsecured creditors of the Bank with respect to any rights under this Agreement.
(c) Nothing contained in this Agreement shall constitute a guarantee by
the Bank or any entity or person that the assets of the Bank will be sufficient
to pay any benefit hereunder.
12. WITHHOLDING. Any payment made pursuant to this Agreement shall be reduced
by federal and state income, FICA or other employee payroll, withholding or
other similar taxes the Bank may be required to withhold. In addition, as
the Supplemental Retirement Benefit accrues during Minor's employment with
the Bank, the Bank may withhold from Minor's regular compensation from the
Bank any FICA or other employee payroll, withholding or other similar taxes
the Bank may be required to withhold.
13. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and shall
inure to the benefit of, the successors and assigns of the Bank.
14. APPLICABLE LAW. This Agreement shall be construed and administered in
accordance with the laws of the State of New York, except to the extent
preempted by federal law.
15. AMENDMENT. This Agreement may not be amended, modified or otherwise
altered except by written instrument executed by both parties.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties, and supersedes all prior agreements or
understanding (whether oral or written) between the parties, relating to
deferred compensation and/or supplemental retirement income.
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IN WITNESS WHEREOF, the parties hereby execute this Agreement as
follows:
NBT BANCORP INC.
By: /S/ Everett A. Gilmour
Date: 10/16/00 Its: Chairman of the Board
NBT BANK, NATIONAL ASSOCIATION
By: /S/ Daryl R. Forsythe
Date: 10/16/00 Its: Chairman & CEO
Date: 10/13/00 /S/ Joe C. Minor
JOE C. MINOR
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