Exhibit 10.12
Supplemental Executive Retirement Agreement between NBT Bancorp Inc.
and Michael J. Chewens made as of July 23, 2001
SUPPLEMENTAL RETIREMENT AGREEMENT
EFFECTIVE JULY 23, 2001
The attached document (NBT Bancorp Inc. Supplemental Executive Retirement Plan,
effective as of July 23, 2001) sets forth the terms of an agreement for the
payment of supplemental retirement income made as of July 23, 2001 between NBT
Bancorp Inc., a Delaware corporation and a registered financial holding company
headquartered at 52 S. Broad Street, Norwich, New York 13815, and Michael J.
Chewens, an individual residing at 2613 Pine Bluff Drive, Vestal, New York
13815. The parties hereby execute this agreement as follows:
NBT BANCORP INC.
By: /s/ Daryl R. Forsythe Date: July 23, 2001
Daryl R. Forsythe
Chairman, President and
Chief Executive Officer
/s/ Micheal J. Chewens Date: July 23, 2001
Michael J. Chewens
PREAMBLE
This NBT Bancorp Inc. Supplemental Executive Retirement Plan (the "Plan") is
effective as of July 23, 2001. The purpose of the Plan is to permit certain
employees of NBT Bancorp Inc. (the "Company"), its subsidiary, NBT Bank,
National Association (the "Bank") and adopting affiliated employers to receive
supplemental retirement income when such amounts would be due under the benefit
and contribution formulas in the tax-qualified NBT Bancorp Inc. Defined Benefit
Pension Plan and NBT Bancorp Inc. 401(k) and Employee Stock Ownership Plan but
cannot be paid thereunder due to the reductions and other limitations imposed by
Sections 401(a)(17), 401(k)(3), 401(m) and 415 of the Internal Revenue Code of
1986, as amended and to provide such employees' with an aggregate retirement
benefit (taking into consideration amounts paid under such Plans and social
security benefits) commencing following retirement at or after age 62 of not
less than 50% of such employees' final average compensation, subject to the
terms of the Plan. Capitalized terms are defined in Article 1 below.
The Plan is intended to be an unfunded, non-qualified deferred compensation
plan. Neither the Employer, the Committee, nor the individual members of the
Committee shall segregate or otherwise identify specific assets to be applied to
the purposes of the Plan, nor shall any of them be deemed to be a trustee of any
amounts to be paid under the Plan. Any liability of the Employer to any person
with respect to benefits payable under the Plan shall be based solely upon such
contractual obligations, if any, as shall be created by the Plan, and shall give
rise only to a claim against the general assets of the Employer. No such
liability shall be deemed to be secured by any pledge or any other encumbrance
on any specific property of the Employer.
ARTICLE 1
DEFINITIONS
The following words and phrases shall have the meanings hereafter ascribed to
them. Those words and phrases which have limited application are defined in the
respective Articles in which such terms appear.
1.1 "Actuarial Equivalent" shall have the same meaning the term "Actuarial
Equivalent" has under Section 2.03 of Appendix A to the Basic
Retirement Plan using the following actuarial assumptions:
Mortality: "Applicable Mortality Rate" as such term is
defined in Section 2.03c of Appendix A
to the Basic Retirement Plan.
Interest Rate: "Applicable Interest Rate" as such term is
defined in Section 2.09b of Appendix
A to the Basic Retirement Plan.
1.2 "Bank" means NBT Bank, National Association or any successor thereto by
merger, consolidation or otherwise by operation of law.
1.3 "Basic 401(k)/ESOP" means the NBT Bancorp Inc. 401(k) and Employee
Stock Ownership Plan, as amended from
time to time.
1.4 "Basic 401(k)/ESOP Benefit" means the benefit paid to a Participant
under the Basic 401(k)/ESOP and includes benefits payable upon Normal
Retirement, Early Retirement, Postponed Retirement, death or
termination of service.
1.5 "Basic 401(k)/ESOP Surviving Spouse Benefit" means the benefit payable
to a Participant's surviving spouse under the Basic 401(k)/ESOP upon
the Participant's death before a distribution of the Participant's
entire Basic 401(k)/ESOP account balance.
1.6 "Basic Retirement Plan" means the NBT Bancorp Inc. Defined Benefit
Pension Plan, as amended from time to time.
1.7 "Basic Retirement Plan Benefit" means the benefit payable to a
Participant under the Basic Retirement Plan and includes benefits
payable upon Normal Retirement, Early Retirement, Postponed Retirement,
death or termination of service.
1.8 "Basic Retirement Plan Surviving Spouse Benefit" means the benefit
payable to a Participant's surviving spouse or eligible children under
the Basic Retirement Plan upon the Participant's death, if any.
1.9 "Beneficiary" means such living person or living persons designated by
the Participant in accordance with Section 7.5(a) to receive the
Supplemental Retirement Benefit after his or her death, or his or her
personal or legal representative, all as herein described and provided.
If no Beneficiary is designated by the Participant or if no Beneficiary
survives the Participant, the Beneficiary shall be the Participant's
estate.
1.10 "Board" means the Board of Directors of the Company, as duly
constituted from time to time.
1.11 "Cause" means the Participant's (a) conviction of robbery, bribery,
extortion, embezzlement, fraud, grand larceny, burglary, perjury,
income tax evasion, misapplication of Employer funds, false statements
in violation of 18 U.S.C. ss. 1001, or any other felony that is
punishable by a term of imprisonment of more than one year; (b)
material breach of his or her duty of loyalty to the Employer; (c) acts
or omissions in the performance of his or her duties having a material
adverse effect on the Employer that were not done or omitted to be done
in good faith or which involved intentional misconduct or a knowing
violation of law; or (d) any transaction in the performance of his or
her duties with the Employer from which he or she derived a material
improper personal benefit.
1.12 "Change in Control" means:
(i) A change in control with respect to the Company or the
Bank of a nature that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A as in effect on the date
hereof pursuant to the Securities Exchange Act of 1934 (the "Exchange
Act"); provided that, without limitation, such a change in control
shall be deemed to have occurred at such time as any person (including
an individual, corporation, partnership, trust, association, joint
venture, pool, syndicate, unincorporated organization, joint-stock
company or similar organization or group acting in concert) hereafter
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of 30 percent or more of the
combined voting power of the common stock and other voting securities
of the Company; or
(ii) During any period of two consecutive years, individuals
who at the beginning of such period constitute the Board cease for any
reason to constitute at least a majority thereof unless the election,
or the nomination for election by the shareholders of the Company, of
each new director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of
the period; or
(iii) There shall be consummated (x) any consolidation or
merger of the Company in which it is not the continuing or surviving
corporation or pursuant to which voting securities of the Company would
be converted into cash, securities, or other property, other than a
merger of the Company in which the holders of its common stock and
other voting securities immediately before the merger have
substantially the same proportionate ownership of common stock and
other voting securities, respectively, of the surviving corporation
immediately after the merger, or (y) any sale, lease, exchange, or
other transfer (in one transaction or a series of related transactions)
of all, or substantially all of the assets of the Company or the Bank,
provided that any such consolidation, merger, sale, lease, exchange or
other transfer consummated at the insistence of an appropriate banking
regulatory agency shall not constitute a change in control; or
(iv) Approval by the shareholders of the Company of
any plan or proposal for its liquidation or dissolution.
1.13 "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
1.14 "Committee" means the Plan's administrative committee, as appointed by
the Board to administer the Plan, as described in Article 10.
1.15 "Company" means NBT Bancorp, Inc. or any successor thereto by
merger, consolidation or otherwise by operation of law.
1.16 "Confidential Information" means business methods, creative techniques
and technical data of the Company, the Bank and their affiliates that
are deemed by the Company, the Bank or any such affiliate to be and are
in fact confidential business information of the Company, the Bank or
its affiliates or are entrusted to the Company, the Bank or its
affiliates by third parties, and includes, but is not limited to,
procedures, methods, sales relationships developed while the
Participant is in the service of the Company, the Bank or their
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 the Company, the Bank or their
affiliates, and compositions, ideas, plans, and methods belonging to or
related to the affairs of the Company, the Bank or their affiliates,
except for such information as is clearly in the public domain,
provided, that information that would be generally known or available
to persons skilled in the Participant's fields shall be considered to
be "clearly in the public domain" for this purpose.
1.17 "Deferral Credit Account" means the bookkeeping account maintained in
the name of the Employer, on behalf of each Participant, pursuant to
Article 5.
1.18 "Determination Date" means the earlier of (i) the date of termination
of the Participant's employment with the Employer or (ii) the first day
of the month following the Participant's 65th birthday.
1.19 "Effective Date" means July 23, 2001.
1.20 "Employee" means a person who is an employee of the Employer.
1.21 "Employer" means the Company, the Bank and any subsidiary or affiliated
corporation of either of them which, with the approval of the Board and
subject to such conditions as the Board may impose, adopts the Plan,
and any successor or successors of any of them.
1.22 "Final Average Compensation" shall have the same meaning as the term
"Final Average Compensation" has under Section 2.27 of Appendix A to
the Basic Retirement Plan, except that in determining the amount of
Compensation (as defined in Section 2.14 of Appendix A to the Basic
Retirement Plan) to be used in calculating Final Average Compensation
under Section 2.27 of Appendix A to the Basic Retirement Plan,
Compensation shall not be subject to the compensation limitation of
section 401(a)(17) of the Code.
1.23 "401(k)/ESOP Benefit" means the deferred compensation 401(k)/ESOP
Benefit provided to Participants and their beneficiaries in accordance
with the applicable provisions of the Plan.
1.24 "Full-Time Employee" shall mean an Employee who works not less than
1,000 hours in a calendar year.
1.25 "Other Retirement Benefits" means the sum of:
(a) The annual benefit payable to the Participant from the Basic
Retirement Plan; plus
(b) The annual Retirement Income Benefit payable to the
Participant hereunder; plus
(c) The annual amount of any supplemental retirement benefit
payable to the Participant by the Employer or any other
Employer pursuant to any Supplemental Retirement Agreement
with the Participant (other than amounts attributable to
elective deferrals of such Participant's compensation); plus
(d) The annual benefit that could be provided by (A) Employer
contributions (other than elective deferrals) made on the
Participant's behalf under the Basic 401(k)/ESOP, and (B)
actual earnings on contributions in (A), if such contributions
and earnings were converted to a benefit payable at age 62 in
the same form as the Supplemental Retirement Benefit, using
the same actuarial assumptions as are provided under Section
1.1; plus
(e) The annual benefit that could be provided by the Participant's
Deferral Credit Account, if such Deferral Credit Account were
converted to a benefit payable at age 62 in the same form as
the Supplemental Retirement Benefit, using the same actuarial
assumptions as are provided under Section 1.1.
The amount of Other Retirement Benefits shall be determined by an
actuary selected by the Company, with such determination to be made
without regard to whether the Participant is receiving payment of such
benefits on the Determination Date. To the extent the Participant
receives a payment of Other Retirement Benefits described in 1.25(d) or
(e) prior to the date the Supplemental Retirement Benefit is determined
pursuant to this Plan, 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
Plan.
1.26 "Participant" means an Employee who has been designated by the Employer
as eligible to participate in the Plan and who becomes a Participant
pursuant to the provisions of Article 2.
1.27 "Plan" means the NBT Bancorp Inc. Supplemental Executive Retirement
Plan, as herein set forth, and as it may hereafter be amended from time
to time.
1.28 "Plan Limitation Provisions" means provisions of the Basic 401(k)/ESOP
and the Basic Retirement Plan that reduce or restrict an Employee's
employer-provided benefits under the Basic Retirement Plan and employer
matching contributions to the Basic 401(k)/ESOP (including Article IX
and the last sentence of Section 1.12 of the Basic Retirement Plan and
the next to last paragraph of Section 1.14, the third paragraph of
Section 1.33 and Sections 4.5, 4.7 and 4.9 of the Basic 401(k)/ESOP, or
the corresponding provisions of any amendment to such Plans) in order
to satisfy the limitations imposed by one or more of the following: (i)
Section 401(a)(17) of the Code, (ii) Section 401(k)(3) of the Code,
(iii) Section 401(m) of the Code, or (iv) Section 415 of the Code.
1.29 "Plan Year" means the period from the Effective Date
through December 31, 2001 and each
calendar year thereafter within which the Plan is in effect.
1.30 "Present Value" means the present value of a benefit determined
on the basis of the actuarial assumptions specified in Section 1.1
1.31 "Social Security Benefit" means the Participant's actual social
security benefit at his or her Social Security Retirement Age.
1.32 "Social Security Retirement Age" shall have the same meaning the term
"Social Security Retirement Age" has under Section 2.58 of Appendix A
to the Basic Retirement Plan.
1.33 "Retirement Income Benefit" means the deferred compensation retirement
income benefit determined pursuant to Article 4.
1.34 "Supplemental Retirement Benefit" means the deferred compensation
retirement benefit determined pursuant to Article 6.
1.35 "Supplemental Surviving Spouse Benefit" means the survivor death
benefit payable to a Participant's surviving spouse, pursuant to the
provisions of Sections 8.1 through 8.3.
1.36 "Year of Service" means a calendar year in which the Participant
completes not less than 1,000 Hours of Service (as defined in Section
1.25 of the Basic Retirement Plan) with an Employer.
Words importing males shall be construed to include females and the
singular shall be construed to include the plural, and vice versa,
wherever appropriate.
ARTICLE 2
ELIGIBILITY AND PARTICIPATION
2.1 Plan eligibility is limited to a select group of management or highly
compensated Employees, as designated in writing by the Board, who
participate in the Basic Retirement Plan, the Basic 401(k)/ESOP or both
such plans.
From time to time, the Company may designate one or more Employees who
participate in the Basic Retirement Plan, the Basic 401(k)/ESOP or both
such plans as participants in the Plan, from the class of Employees
participating in the Basic Retirement Plan, the Basic 401(k)/ESOP or
both such plans who are members of a select group of management
Employees or are highly compensated Employees. Newly eligible Employees
shall participate as of the date specified by the Board.
2.2 The Company may, from time to time, remove any Participant from
participation in the Plan; provided, however, that, subject to Section
12.4, such removal will not reduce the amount of Retirement Income
Benefit and 401(k)/ESOP Benefit credited to the Participant under the
Plan, as determined as of the date of such Participant's removal. A
Participant so removed shall remain a Participant until all benefits
are distributed in accordance with the provisions of the Plan.
2.3 The Committee may provide each eligible Employee with appropriate forms
in connection with participation in the Plan.
ARTICLE 3
RETIREMENT DATE
3.1 A Participant's Retirement Date shall be his or her date of actual
retirement, which may be his or her Normal, Early, Disability or
Postponed Retirement Date, whichever is applicable pursuant to the
following sections of this Article 3.
3.2 A Participant's Normal Retirement Age shall be the 65th anniversary of
his or her birth. Such Participant's Normal Retirement Date shall be
the date coinciding with Normal Retirement Date under the Basic
Retirement Plan.
3.3 A Participant may retire on an Early Retirement Date, which shall be
the date coinciding with the initial distribution of an early
retirement benefit under the Basic Retirement Plan.
3.4 A Participant may retire on a Disability Retirement Date, which shall
be the date coinciding with the initial distribution of a disability
retirement benefit under the Basic Retirement Plan.
3.5 If a Participant continues in the employment of the Employer beyond
Normal Retirement Date, the date coinciding with postponed retirement
under the Basic Retirement Plan shall be the Participant's Postponed
Retirement Date.
ARTICLE 4
RETIREMENT INCOME BENEFIT
4.1 The Retirement Income Benefit payable to an eligible Participant in the
form of a life annuity with five years certain commencing on his or her
Normal, Early, Disability or Postponed Retirement Date, as the case may
be, shall be equal to the excess, if any, of the amount specified in
(a) over the amount specified in (b), as stated below:
(a) the monthly amount of Basic Retirement Plan retirement income
payable upon Normal, Early or Postponed Retirement Date, as
the case may be, to which the Participant would have been
entitled under the Basic Retirement Plan, if such benefit were
calculated under the Basic Retirement Plan without giving
effect to the limitations and restrictions imposed by the
application of Plan Limitation Provisions and any other
provisions of the Basic Retirement Plan that are necessary to
comply with Code Sections 401(a)(17) and 415, or any successor
provisions thereto;
(b) the sum of (i) the monthly amount of Basic Retirement Plan
retirement income payable upon Normal, Early or
Postponed Retirement Date, as the case may be, actually
payable to the Participant under the Basic Retirement Plan,
after the limitations and restrictions imposed by
the application of the Plan Limitation Provisions and
any other provisions of the Basic Retirement Plan that
are necessary to comply with Code Sections 401(a)(17)
and 415, or any successor provisions thereto, plus (ii)
the monthly amount of retirement income that is the
actuarial equivalent (determined in accordance with
the Basic Retirement Plan) of any supplemental
retirement benefit payable to the Participant by any
Employer upon Normal, Early or Postponed Retirement Date,
as the case may be, pursuant to any Supplemental
Retirement Agreement with the Participant.
4.2 With respect to eligible Participants who terminate their employment
other than on a Retirement Date specified in Article 3, the vested
Retirement Income Benefit payable in the form of a life annuity with
five years certain, commencing on the date the Participant is eligible
for a vested retirement benefit under the Basic Retirement Plan, shall
be equal to the excess, if any, of the amount specified in (a) over the
amount specified in (b), as stated below:
(a) the monthly amount of Basic Retirement Plan vested retirement
income payable upon termination of service to which the
Participant would have been entitled under the Basic
Retirement Plan, if such benefit were calculated under the
Basic Retirement Plan without giving effect to the limitations
and restrictions imposed by the application of the Plan
Limitation Provisions and any other provisions of the Basic
Retirement Plan that are necessary to comply with Code
Sections 401(a)(17) and 415, or any successor provisions
thereto;
(b) the sum of (i) the monthly amount of Basic Retirement Plan
vested retirement income payable upon termination of service actually
payable to the Participant under the Basic Retirement Plan, after the
limitations and restrictions imposed by the application of the Plan Limitation
Provisions and any other provisions of the Basic Retirement Plan that are
necessary to comply with Code Sections 401(a)(17) and 415, or any successor
provisions thereto, plus (ii) the monthly amount of retirement income that is
the actuarial equivalent (determined in accordance with the Basic Retirement
Plan) of any supplemental retirement benefit payable to the Participant by any
Employer following such termination of service pursuant to any Supplemental
Retirement Agreement with the Participant.
ARTICLE 5
SUPPLEMENTAL 401(k)/ESOP
BENEFIT AND DEFERRAL CREDIT ACCOUNTS
5.1 The 401(k)/ESOP Benefit under the Plan shall equal the discretionary
and matching contributions or other Employer-provided benefit to the
extent provided for under the Basic 401(k)/ESOP (disregarding the
limitations and restrictions imposed by the application of the Plan
Limitation Provisions and any other provisions of the Basic 401(k)/ESOP
that are necessary to comply with Code Sections 401(a)(17), 401(k)(3),
401(m), and 415, or any successor provisions thereto) for plan years of
the Basic 401(k)/ESOP ending after the Effective Date, less any such
amount actually contributed by the Employer to the Basic 401(k)/ESOP
for such plan years (to the extent permitted by the terms thereof,
taking into account the limitations and restrictions imposed by the
application of the Plan Limitation Provisions and any other provisions
of the Basic 401(k)/ESOP that are necessary to comply with Code
Sections 401(a)(17), 401(k)(3), 401(m), and 415, or any successor
provisions thereto), adjusted for income, gains and losses based on
deemed investments, pursuant to Section 5.4 below. For purposes of this
Section 5.1, it shall be assumed that the Participant has made Basic
401(k)/ESOP contributions, on a before-tax or after-tax basis, as are
necessary to qualify for the maximum Employer provided benefit
available under the Basic 401(k)/ESOP to similarly situated Basic
401(k)/ESOP Participants who are not affected by such restrictions and
limitations.
5.2 The 401(k)/ESOP Benefit under the Plan shall be accounted for by the
Employer under a Deferral Credit Account, maintained in the name of the
Employer, on behalf of each Participant.
5.3 Each Deferral Credit Account maintained by the Employer shall be
credited with units on behalf of each Participant, as appropriate in
accordance with the 401(k)/ESOP Benefit, as soon as administratively
practicable, but in no event later than March 15 of the Plan Year
following the Plan Year in which Basic 401(k)/ESOP contributions on
behalf of the Participant were limited or restricted.
5.4 The 401(k)/ESOP Benefit credited annually to each Participant's
Deferral Credit Account under the Plan shall be deemed to be invested
on a time weighted basis, based upon the crediting of the Deferral
Credit Account under Section 5.3 above, as if such amounts had been
invested in the same manner as the investment of the corresponding
amounts pursuant to the Basic 401(k)/ESOP, and such Account shall be
credited with income and gains, and charged with losses, as if such
investments had actually been made.
ARTICLE 6
SUPPLEMENTAL RETIREMENT BENEFIT
6.1 If an eligible Participant shall remain employed by the Employer until
reaching his or her 62nd birthday, serving as a Full-Time Employee
until such date, and subject to the other terms and conditions of this
Plan, the Company shall pay such Participant an annual "Supplemental
Retirement Benefit" determined as follows:
(a) the Participant shall be entitled to a Supplemental Retirement
Benefit on and after his or her 62nd birthday but before his
or her Social Security Retirement Age in an amount equal to
the excess, if any, of (1) 50 percent of the Participant's
Final Average Compensation, over (2) the Participant's Other
Retirement Benefits, determined as of the Determination Date.
(b) the Participant shall be entitled to a Supplemental Retirement
Benefit on and after his or her Social Security Retirement Age
in an amount equal to the excess, if any, of (1) 50 percent of
the Participant's Final Average Compensation, over (2) the sum
of (aa) the Participant's Other Retirement Benefits,
determined as of the Determination Date, plus (bb) the
Participant's Social Security Benefit.
6.2 If an eligible Participant shall remain employed by the Employer until
reaching his or her 60th birthday, serving as a Full-Time Employee
until such date and he or she continues to serve as a Full-Time
Employee until the date of his or her retirement, and he or she retires
then or thereafter but before reaching his or her 62nd birthday, and
subject to the other terms and conditions of this Plan, the Company
shall pay such Participant after the date of his or her retirement,
pursuant to Section 7.4(b), or to his or her spouse or other
Beneficiary, pursuant and subject to Section 8.6(c) if he or she has
died before his or her 62nd birthday, a reduced early Supplemental
Retirement Benefit calculated in accordance with the following
schedule:
(a) if the date of the Participant's retirement shall be on or
after his or her 60th birthday but before his or her 61st
birthday, the Company shall pay such Participant 60% of the
Supplemental Retirement Benefit calculated in accordance with
Section 6.1; and
(b) if the date of the Participant's retirement shall be on or
after his or her 61st birthday but before his or her 62nd
birthday, the Company shall pay such Participant 70% of the
Supplemental Retirement Benefit so calculated.
ARTICLE 7
MODES OF BENEFIT PAYMENT AND
VESTING OF BENEFITS
7.1 Except as otherwise provided in the following paragraph, any Retirement
Income Benefit and 401(k)/ESOP Benefit payable under the Plan to a
Participant, beneficiary, joint or contingent annuitant or eligible
child, shall be payable in the modes provided by, and subject to the
provisions of, the Basic Retirement Plan and Basic 401(k)/ESOP,
respectively, as the case may be. Any Retirement Income Benefit paid
from the Plan in a form other than a life annuity shall be the
actuarial equivalent of a life annuity, utilizing the actuarial
equivalent factors set forth in the Basic Retirement Plan and applied
to obtain the optional mode of payment thereunder.
The Committee, in its sole discretion and consistent with the best
interests of the Employer may distribute any Retirement Income Benefit
and 401(k)/ESOP Benefit payable under the Plan to a Participant,
beneficiary, joint or contingent annuitant, or eligible child, as a
single lump sum benefit, using, in the case of a Retirement Income
Benefit, the actuarial equivalent factors set forth in the Basic
Retirement Plan for lump-sum cashouts. In exercising its discretion
hereunder, the Committee shall not be bound by any request by a
Participant, beneficiary, joint or contingent annuitant, or eligible
child, to receive any Retirement Income Benefit and 401(k)/ESOP Benefit
payable under the Plan as a single lump-sum benefit.
7.2 Except with respect to receipt of a lump sum benefit under Section 7.1,
any elections for an optional mode of benefit payment made by a
Participant under the Basic Retirement Plan and the Basic 401(k)/ESOP,
shall also be effective with respect to any Retirement Income Benefit
and 401(k)/ESOP Benefit, as the case may be, payable under the Plan to
a Participant, beneficiary, joint or contingent annuitant, or eligible
child.
7.3 Except with respect to receipt of a lump sum benefit under Section 7.1,
payment of any Retirement Income Benefit and 401(k)/ESOP Benefit under
the Plan shall commence on the same date as payment of a Basic
Retirement Plan and 401(k)/ESOP Plan distribution payable to a
Participant or beneficiary, and shall terminate on the date of last
payment of Basic Retirement Plan and 401(k)/ESOP Plan distribution, as
the case may be.
7.4 The Supplemental Retirement Benefit shall be paid:
(a) except as provided in Section 7.4(b) (early retirement) and
Section 8.6 (death), commencing on the first day of the month
following the later of the Participant's retirement or his or
her attainment of age 62; or
(b) commencing on the first day of the month following the
Participant's Determination Date in connection with early
retirement after reaching age 60 and prior to the date of his
or her 62nd birthday.
7.5 The Supplemental Retirement Benefit shall be paid in the form specified
below:
(a) The Supplemental Retirement Benefit shall be paid as a
straight life annuity, payable in monthly installments, for the
Participant's life; provided, however, that if the Participant has no surviving
spouse and dies before having received 60 monthly payments, such monthly
payments shall be continued to his or her Beneficiary until the total number of
monthly payments to the Participant and his or her Beneficiary equal 60,
whereupon all payments shall cease and the Company's obligation to pay the
Supplemental Retirement Benefit under shall be deemed to have been fully
discharged. If the Participant and his or her Beneficiary shall die before
having received a total of 60 monthly payments, an amount equal to the Actuarial
Equivalent of the balance of such monthly payments shall be paid in a single sum
to the estate of the survivor of the Participant and his or her Beneficiary. If
Supplemental Retirement Benefits are payable in the form described in this
Section 7.5(a), the Participant shall designate in writing, as his or her
Beneficiary, any person or persons, primarily, contingently or successively, to
whom the Company shall pay benefits following the Participant's death if the
Participant's death occurs before 60 monthly payments have been made.
(b) Notwithstanding the form of payment described in Section
7.5(a), if the Participant is married on the date payment of
the Supplemental Retirement Benefit commences, the benefit
shall be paid as a 50% joint and survivor annuity with the
Participant's spouse as the Beneficiary. The 50% joint and
survivor annuity shall be the Actuarial Equivalent of the
benefit described in Section 7.5(a). If the Supplemental
Retirement Benefit is payable pursuant to this Section 7.5(a),
but the Participant's spouse fails to survive him or her, no
payments of the Supplement Retirement Benefit will be made
following the Participant's death.
(c) Notwithstanding the foregoing provisions of this Section 7.5,
the Company, 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
Section 7.5(c) shall be the Actuarial Equivalent of the
payment being accelerated.
7.6 Subject to Section 12.4, each Participant shall have a 100 percent
vested and non-forfeitable right to benefits under the Plan.
ARTICLE 8
DEATH BENEFITS
8.1 Upon the death of: (i) a Participant who has not terminated from
employment before Retirement Date as defined in Section 3.1, or (ii) a
Participant who retires on a Retirement Date as defined in Section 3.1
and dies before the complete distribution of Basic Retirement Plan
Benefit and Basic 401(k)/ESOP Benefit, as the case may be, benefits
shall be payable as set forth in Sections 8.2, 8.3 and 8.4.
8.2 With respect to any Retirement Income Benefit, if a Basic Retirement
Plan pre-retirement survivor annuity or post retirement survivor
annuity, as the case may be, is payable to a Participant's surviving
spouse or eligible children, if applicable, a supplemental
pre-retirement survivor annuity or post retirement survivor annuity, as
the case may be, shall be payable to the surviving spouse or eligible
children, if applicable, under the Plan. The monthly amount of the
Supplemental Surviving Spouse Benefit pre-retirement survivor annuity
or post retirement survivor annuity, as the case may be, payable to a
surviving spouse or eligible children, if applicable, shall be equal to
the excess, if any, of the amount specified in (a) over the amount
specified in (b), as stated below:
(a) the monthly amount of Basic Retirement Plan pre-retirement
survivor annuity or post retirement survivor annuity, as the
case may be, to which the surviving spouse or eligible
children, if applicable, would have been entitled under the
Basic Retirement Plan, if such benefit were calculated under
the Basic Retirement Plan without giving effect to the
limitations and restrictions imposed by the Plan Limitation
Provisions and any other provisions of the Basic Retirement
Plan that are necessary to comply with Code Sections
401(a)(17) and 415, or any successor provisions thereto;
(b) (i) the monthly amount of Basic Retirement Plan
pre-retirement survivor annuity or post retirement survivor annuity, as the
case may be, actually payable to the surviving spouse or eligible children,
if applicable, under the Basic Retirement Plan, after the limitations imposed by
the application of Plan Limitation Provisions and any other provisions of the
Basic Retirement Plan that are necessary to comply with Code Sections 401(a)(17)
and 415, or any successor provisions thereto plus (ii) the monthly amount that
is the actuarial equivalent (determined in accordance with the Basic Retirement
Plan) of any supplemental retirement benefit payable to the surviving spouse or
eligible children, if applicable, by any Employer following the Participant's
death pursuant to any Supplemental Retirement Agreement with the Participant.
8.3 The Retirement Income Benefit supplemental pre-retirement survivor
annuity or post retirement survivor annuity shall be payable over the
lifetime of the surviving spouse, or to eligible children to the extent
provided in the Basic Retirement Plan, in monthly installments
commencing on the same date as payment of the Basic Retirement Plan
pre-retirement survivor annuity or post retirement survivor annuity, as
the case may be, and shall terminate on the date of the last payment of
the Basic Retirement Plan pre-retirement survivor annuity or post
retirement survivor annuity, as the case may be.
8.4 With respect to any 401(k)/ESOP Benefit, all amounts credited to the
Participant's Deferral Credit Account shall be payable in a single lump
sum to the Participant's surviving spouse, if any, as a Supplemental
Surviving Spouse Benefit, unless an optional mode has been elected
pursuant to Article 7.
8.5 Upon the death of a Participant under the circumstances set forth in
clauses (i) and (ii) of Section 8.1, if no Basic Retirement Plan
Surviving Spouse Benefit, or Basic 401(k)/ESOP Surviving Spouse
Benefit, as the case may be, is payable, (a) no further Retirement
Income Benefit shall be payable, unless an optional mode has been
elected pursuant to Article 7, and (b) all amounts credited to the
Participant's Deferral Credit Account shall be payable to the
Participant's designated beneficiary in a single lump sum, unless an
optional mode has been elected pursuant to Article 7.
8.6 The following provisions shall apply with respect to payment of the
Supplemental Retirement Benefit after the death of a Participant:
(a) Except as provided in Section 8.6(b), if a Participant shall
die before his or her 62nd birthday, no Supplemental
Retirement Benefit shall be payable.
(b) If a Participant shall die on or after his or her 60th
birthday, after he or she has retired but before payment of any Supplemental
Retirement Benefit has commenced, the Participant's surviving spouse, if any,
shall be paid as a straight life annuity 50 percent of the Supplemental
Retirement Benefit for her life commencing within 30 days following the
Participant's death. Such payments shall be made in monthly installments,
subject to the right of the Company to accelerate payment at any time in
accordance with Section 7.5(c). However, if such Participant is not married at
the time of his or her death, the Company shall pay to the Participant's
Beneficiary a lump sum benefit equal to 50 percent of the Present Value of the
Participant's Supplemental Retirement Benefit.
(c) Except as provided in Section 8.6(b), no Supplemental
Retirement Benefit shall be payable if the Participant dies
before payment of any Supplement Retirement Benefit has begun
without having a spouse who survives him or her.
(d) If a Participant dies after payment of a Supplemental
Retirement Benefit has commenced, the amount, if any, of the
Supplemental Retirement Benefit payable to the Participant's
surviving spouse or other Beneficiary shall be determined
pursuant to the applicable provisions of Section 7.5.
ARTICLE 9
UNFUNDED PLAN
9.1 The Plan shall be administered as an unfunded plan and is not intended
to meet the qualification requirements of Sections 401(a) and 401(k) of
the Code. No Participant or beneficiary shall be entitled to receive
any payment or benefits under the Plan from the qualified trust
maintained in connection with the Basic Retirement Plan and Basic
401(k)/ESOP.
9.2 The Employer shall have the right to establish a reserve, establish a
grantor trust or make any investment for the purposes of satisfying its
obligation hereunder for payment of benefits, including, but not
limited to, investments in one or more registered investment companies
under the Investment Company Act of 1940, as amended, to the extent
permitted by applicable banking or other law; provided, however, that
no Participant or beneficiary shall have any interest in such
investment, trust, or reserve.
9.3 To the extent that any Participant or beneficiary acquires a right to
receive benefits under the Plan, such rights shall be no greater than
those rights which guarantee to the Participant or beneficiary the
strongest claim to such benefits, without resulting in the
Participant's or beneficiary's constructive receipt of such benefits.
9.4 With respect to any 401(k)/ESOP Benefit, 100% of the Participant's
Deferral Credit Account shall be deemed to be invested as provided in
Section 5.4 above. A Participant's Deferral Credit Account may not be
encumbered or assigned by a Participant or any beneficiary.
9.5 A Participant or beneficiary with a Retirement Income Benefit, the
401(k)/ESOP Benefit or both such Benefits under the Plan shall be an
unsecured creditor of the Employer as to any benefit payable under the
Plan.
9.6 Not later than the closing of any transaction that would constitute a
Change of Control, the Employer shall transfer to an independent
corporate trustee of a grantor trust within the meaning of section 671
of the Code that satisfies the applicable requirements of Revenue
Procedure 92-64 or any successor thereto an amount sufficient to cover
all potential liabilities under this Plan.
ARTICLE 10
ADMINISTRATION
10.1 Except for the functions reserved to the Company or the Board, the
administration of the Plan shall be the responsibility of the
Committee. The Committee shall consist of three or more persons
designated by the Company. Members of the Committee shall serve for
such terms as the Company shall determine and until their successors
are designated and qualified. Any member of the Committee may resign
upon at least 60 days written notice to the Company, or may be removed
from office by the Company at any time, with or without notice.
10.2 The Committee shall hold meetings upon notice at such times and places
as it may determine. Notice shall not be required if waived in writing.
Any action of the Committee shall be taken pursuant to a majority vote
at a meeting, or pursuant to the written consent of a majority of its
members without a meeting, and such action shall constitute the action
of the Committee and shall be binding in the same manner as if all
members of the Committee had joined therein. A majority of the members
of the Committee shall constitute a quorum. No member of the Committee
shall note or be counted for quorum purposes on any matter relating
solely to himself or herself or his or her rights under the Plan. The
Committee shall record minutes of any actions taken at its meetings or
of any other official action of the Committee. Any person dealing with
the Committee shall be fully protected in relying upon any written
notice, instruction, direction or other communication signed by the
Secretary of the Committee or by any of the members of the Committee or
by a representative of the Committee authorized by the Committee to
sign the same in its behalf.
10.3 The Committee shall have the power and the duty to take all actions and
to make all decisions necessary or proper to carry out the Plan. The
determination of the Committee as to any question involving the Plan
shall be final, conclusive and binding. Any discretionary actions to be
taken under the Plan by the Committee shall be uniform in their nature
and applicable to all persons similarly situated. Without limiting the
generality of the foregoing, the Committee shall have the following
powers and duties:
(a) the duty to furnish to all Participants, upon
request, copies of the Plan;
(b) the power to require any person to furnish such information
as it may request for the purpose of the proper administration
of the Plan as a condition to receiving any benefits under
the Plan;
(c) the power to make and enforce such rules and regulations and
prescribe the use of such forms as it shall deem necessary for
the efficient administration of the Plan;
(d) the power to interpret the Plan, and to resolve ambiguities,
inconsistencies and omissions,
which findings shall be binding, final and conclusive;
(e) the power to decide on questions concerning the Plan in
accordance with the provisions of the Plan;
(f) the power to determine the amount of benefits which shall be
payable to any person in accordance with the provisions of the
Plan and to provide a full and fair review to any Participant
whose claim for benefits has been denied in whole or in part;
(g) the power to designate a person who may or may not be a member
of the Committee as Plan "Administrator" for purposes of the
Employee Retirement Income Security Act of 1974 (ERISA); if
the Committee does not so designate an Administrator, the
Committee shall be the Plan Administrator;
(h) the power to allocate any such powers and duties to or
among individual members of the Committee; and
(i) the power to designate persons other than Committee members to
carry out any duty or power which would otherwise be a
responsibility of the Committee or Administrator, under the
terms of the Plan.
10.4 To the extent permitted by law, the Committee and any person to whom it
may delegate any duty or power in connection with administering the
Plan, the Company, any Employer, and the officers and directors
thereof, shall be entitled to rely conclusively upon, and shall be
fully protected in any action taken or suffered by them in good faith
in the reliance upon, any actuary, counsel, accountant, other
specialist, or other person selected by the Committee, or in reliance
upon any tables, valuations, certificates, opinions or reports which
shall be furnished by any of them. Further, to the extent permitted by
law, no member of the Committee, nor the Company, any Employer, nor the
officers or directors thereof, shall be liable for any neglect,
omission or wrongdoing of any other members of the Committee, agent,
officer or employee of the Company or any Employer. Any person claiming
benefits under the Plan shall look solely to the Employer for redress.
10.5 All expenses incurred before the termination of the Plan that shall
arise in connection with the administration of the Plan (including, but
not limited to administrative expenses, proper charges and
disbursements, compensation and other expenses and charges of any
actuary, counsel, accountant, specialist, or other person who shall be
employed by the Committee in connection with the administration of the
Plan), shall be paid by the Employer.
ARTICLE 11
AMENDMENT OR TERMINATION
11.1 The Board shall have the power to suspend or terminate the Plan in
whole or in part at any time, and from time to time to extend, modify,
amend or revise the Plan in such respects as the Board, by resolution,
may deem advisable; provided, however, that no such extension,
modification, amendment, revision, or termination shall deprive a
Participant or any beneficiary of any benefit accrued under the Plan.
11.2 In the event of a termination or partial termination of the Plan, the
rights of all affected parties, if any, to benefits accrued to the date
of such termination or partial termination, shall become nonforfeitable
to the same extent that such rights would be nonforfeitable if such
benefits were provided under the Basic Retirement Plan or the Basic
401(k)/ESOP and such plans were terminated on such date.
11.3 No amendment of the Plan shall reduce the vested and accrued benefits,
if any, of a Participant under this Plan, except to the extent that
such a reduction would be permitted if such benefits were provided
under the Basic Retirement Plan or the Basic 401(k)/ESOP.
11.4 In the event of the termination or partial termination of the Plan: (a)
the Company shall pay in one lump sum to affected Participants or their
beneficiaries the 401(k)/ESOP Benefit, if any, to which they are
entitled, as if such Participants' termination of service had occurred
on the date the Plan is terminated, and (b) the Retirement Income
Benefit and Supplemental Retirement Benefit, if any, to which they are
entitled shall continue to be payable.
ARTICLE 12
GENERAL PROVISIONS
12.1 The Plan shall not be deemed to constitute an employment contract
between the Employer and any Employee or other person, whether or not
in the employ of the Employer, nor shall anything herein contained be
deemed to give any Employee or other person, whether or not in the
employ of the Employer, any right to be retained in the employ of the
Employer, or to interfere with the right of the Employer to discharge
any Employee at any time and to treat such Employee without any regard
to the effect which such treatment might have upon such Employee as a
Participant of the Plan.
12.2 Except as provided in Section 12.4, or as may otherwise be required by
law, no distribution or payment under the Plan to any Participant or
beneficiary shall be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance or charge, whether
voluntary or involuntary, and any attempt to so anticipate, alienate,
sell, transfer, assign, pledge, encumber or charge the same shall be
void; nor shall any such distribution or payment be in any way liable
for or subject to the debts, contracts, liabilities, engagements or
torts of any person entitled to such distribution or payment. If any
Participant or beneficiary is adjudicated bankrupt or purports to
anticipate, alienate, sell, transfer, assign, pledge, encumber or
charge any such distribution or payment, voluntarily or involuntarily,
the Committee, in its sole discretion, may cancel such distribution or
payment or may hold or cause to be held or applied such distribution or
payment, or any part thereof, to or for the benefit of such Participant
or beneficiary, in such manner as the Committee shall direct.
12.3 If the Employer determines that any person entitled to payments under
the Plan is incompetent by reason of physical or mental disability, it
may cause all payments thereafter becoming due to such person to be
made to any other person for his or her benefit, without responsibility
to follow application of amounts so paid. Payments made pursuant to
this provision shall completely discharge the Plan, the Employer and
the Committee.
12.4 Notwithstanding any other provision of this Plan:
(a) if the Employer determines that Cause exists for the
termination of the Participant's employment, the Participant
and his or her spouse and beneficiaries shall forfeit all
rights to any payments under this Plan;
(b) if a Participant separates from service before having
completed five Years of Service with any Employer, no
Supplemental Retirement Benefit shall be payable hereunder;
(c) no amounts shall be payable hereunder to the
Participant and his or her spouse and
beneficiaries:
(i) following any breach by the Participant of any
provision of any employment or other written
agreement with the Company, the Bank or any other
Employer with respect to confidentiality,
non-competition, non-interference with, or
non-solicitation of, employees, customers, suppliers
or agents or similar matters, provided that no Change
in Control shall have occurred before such breach;
(ii) if, without the prior written consent of the
Company, the Participant discloses or divulges to any
third party, except as may be required by his or her
duties, by law, regulation, or order of a court or
government authority, or as directed by the Company,
or uses to the detriment of the Company or its
affiliates or in any business or on behalf of any
business competitive with or substantially similar to
any business of the Company or the Bank or their
affiliates, any Confidential Information obtained
during the course of his or her employment by the
Company, the Bank or any affiliate of any of either
of them, provided that this Section 12.4(c)(ii) shall
not be construed as restricting the Participant from
disclosing such information to the employees of the
Company or the Bank or their affiliates;
(iii) if while the Participant is employed by the
Company, the Bank, any Employer or any affiliate of
any of them or within two years after any termination
of such employment other than in anticipation of or
following a Change in Control, the Participant (A)
interferes with the relationship of the Company, the
Bank or their affiliates with any of their employees,
suppliers, agents, or representatives (including,
without limitation, causing or helping another
business to hire any employee of the Company, the
Bank or their affiliates), or (B) directly or
indirectly diverts or attempts to divert from the
Company, the Bank or their affiliates any business in
which any of them has been actively engaged during
the period of such employment, or interferes with the
relationship of the Company, the Bank or their
affiliates with any of their customers or prospective
customers, provided, that this Section 12.4(c)(iii)
shall not, in and of itself, prohibit the Participant
from engaging in the banking, trust, or financial
services business in any capacity, including that of
an owner or employee; and
(d) if any particular provision of this section 12.4 shall
be adjudicated to be invalid or unenforceable, such provision shall be deemed
amended to delete from 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 12.4
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 the Company, the Bank and
their affiliates, to the fullest extent permitted by applicable law, the
benefits intended by this section 12.4.
12.5 The Employer shall be the sole source of benefits under the Plan, and
each Employee, Participant, beneficiary, or any other person who shall
claim the right to any payment or benefit under the Plan shall be
entitled to look solely to the Employer for payment of benefits.
12.6 If the Employer is unable to make payment to any Participant,
beneficiary, or any other person to whom a payment is due under the
Plan, because it cannot ascertain the identity or whereabouts of such
Participant, beneficiary, or other person after reasonable efforts have
been made to identify or locate such person (including a notice of the
payment so due mailed to the last known address of such Participant,
beneficiary, or other person shown on the records of the Employer),
such payment and all subsequent payments otherwise due to such
Participant, beneficiary or other person shall be forfeited 24 months
alter the date such payment first became due; provided, however, that
such payment and any subsequent payments shall be reinstated,
retroactively, no later than 60 days after the date on which the
Participant, beneficiary, or other person shall make application
therefor. Neither the Company, the Committee nor any other person shall
have any duty or obligation under the Plan to make any effort to locate
or identify any person entitled to benefits under the Plan, other than
to mail a notice to such person's last known mailing address.
12.7 If upon the payment of any benefits under the Plan, the Employer shall
be required to withhold any amounts with respect to such payment by
reason of any federal, state or local tax laws, rules or regulations,
then the Employer shall be entitled to deduct and withhold such amounts
from any such payments. In any event, such person shall make available
to the Employer, promptly when requested by the Employer, sufficient
funds or other property to meet the requirements of such withholding.
Furthermore, at any time the Employer shall be obligated to withhold
taxes, the Employer shall be entitled to take and authorize such steps
as it may deem advisable in order to have the amounts required to be
withheld made available to the Employer out of any funds or property
due to become due to such person, whether under the Plan or otherwise.
12.8 The Committee, in its discretion, may increase or decrease the amount
of any benefit payable hereunder if and to the extent that it
determines, in good faith, that an increase is necessary in order to
avoid the omission of a benefit intended to be payable under this Plan
or that a decrease is necessary in order to avoid a duplication of the
benefits intended to be payable under this Plan.
12.9 The provisions of the Plan shall be construed, administered and
governed under applicable federal laws and the laws of the State of New
York. In applying the laws of the State of New York, no effect shall be
given to conflict of laws principles that would cause the laws of
another jurisdiction to apply.
NBT BANCORP INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(Effective as of July 23, 2001)
TABLE OF CONTENTS
Page
Preamble.......................................................................................................1
Article 1 - Definitions........................................................................................1
Article 2 - Eligibility and Participation......................................................................6
Article 3 - Retirement Date....................................................................................7
Article 4 - Retirement Income Benefit..........................................................................7
Article 5 - Supplemental 401(k)/ESOP Benefit and Deferral Credit Accounts .....................................9
Article 6 - Supplemental Retirement Benefit....................................................................10
Article 7 - Modes of Benefit Payment and Vesting of Benefits...................................................11
Article 8 - Death Benefits ....................................................................................12
Article 9 - Unfunded Plan .....................................................................................14
Article 10 - Administration ...................................................................................15
Article 11 - Amendment or Termination .........................................................................17
Article 12 - General Provisions................................................................................18