Exhibit 10.11
NBT Bancorp Inc. Employee Stock Purchase Plan
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NBT BANCORP INC.
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I-PURPOSE
The NBT Bancorp Inc. Employee Stock Purchase Plan (the "Plan") is intended
to provide to employees of NBT Bancorp Inc. (the "Corporation") and its
subsidiaries the opportunity to acquire ownership interests in the Corporation
through a regular investment program. The Corporation believes that ownership
of its Common Stock will motivate employees to improve their job performance,
and enhance the financial results of the Corporation. The Plan is intended to
qualify as an "employee stock purchase plan" under section 423 of the Internal
Revenue Code of 1986, as amended (the "Code"), and shall be construed so as to
extend and limit participation in a manner consistent with the requirements
thereof.
ARTICLE II-DEFINITIONS
2.01. BASE PAY
"Base Pay" shall mean an Employee's basic hourly wage or salary, excluding
any bonuses, overtime, or other extra or incentive pay. With respect to any
Employee compensated on a commission basis, the Committee shall make a good
faith estimate of the Employee's expected "Base Pay" by taking into account
prior-year compensation, excluding any bonuses, overtime, or other extra or
incentive pay, and any changes in circumstances for the current year.
2.02. BOARD
"Board" shall mean the Board of Directors of the Corporation.
2.03. CODE
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
2.04. COMMENCEMENT DATE
"Commencement Date" shall mean March 31, 2000 and each January 1 thereafter
during which the Plan is in effect.
2.05. COMMITTEE
"Committee" shall mean the individuals described in Article IX.
2.06. COMMON STOCK
"Common Stock" shall mean the Common Stock, par value $.01 per share, of
the Corporation.
2.07. CORPORATION
"Corporation" shall mean NBT Bancorp Inc., a Delaware corporation.
2.08. EMPLOYEE
"Employee" shall mean any person employed by the Corporation or a
Subsidiary Corporation (as defined in Sec. 2.10).
2.09. OFFERING
"Offering" shall mean an annual offering of Common Stock pursuant to Sec.
4.01.
2.10. SUBSIDIARY CORPORATION
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"Subsidiary Corporation" shall mean any present or future corporation which
would be a "subsidiary corporation" of the Corporation as that term is defined
in section 424 of the Code.
2.11. TERMINATION DATE
"Termination Date" shall mean the December 31 immediately following the
Commencement Date of an Offering.
ARTICLE III-ELIGIBILITY AND PARTICIPATION
3.01. INITIAL ELIGIBILITY
Except as otherwise provided in Sec.Sec. 3.02 and 9.01, each Employee shall
be eligible to participate in Offerings that commence on or after the date he or
she becomes an Employee.
3.02. RESTRICTIONS ON PARTICIPATION
No Employee shall participate in an Offering:
(a) if, immediately after the Commencement Date, such Employee would own
stock, and/or hold outstanding options to purchase stock, possessing 5% or more
of the total combined voting power or value of all classes of stock of the
Corporation (for purposes of this paragraph, the rules of section 424(d) of the
Code shall apply in determining stock ownership of any Employee); or
(b) to the extent that his or her rights to purchase stock under all
employee stock purchase plans of the Corporation accrue at a rate which exceeds
$25,000 in fair market value of the stock (determined at the time such options
are granted) for each calendar year in which such options are outstanding.
3.03. COMMENCEMENT OF PARTICIPATION
An Employee may participate in Offerings by completing an authorization for
regular payroll deductions on the form provided by the Corporation and filing it
with the Corporation on or before the date set therefor by the Committee, which
date shall be prior to the Commencement Date for an Offering. Payroll
deductions for an Employee shall commence on the applicable Commencement Date.
Once enrolled, an Employee shall continue to participate in this Plan for each
succeeding Offering until the Employee terminates his or her participation as
provided in Article VII or ceases to be an Employee. An Employee who desires to
change his or her rate of contribution may do so effective as of the beginning
of the next Commencement Date for an Offering by completing an authorization and
filing it with the Corporation prior to that Commencement Date.
ARTICLE IV-GRANTING OF OPTIONS
4.01. ANNUAL OFFERINGS
The Plan shall be implemented by annual offerings of Common Stock beginning
on March 31, 2000 and on the 1st day of January in each subsequent year, each
Offering terminating on the December 31 immediately following the Commencement
Date (the Termination Date).
4.02. NUMBER OF OPTION SHARES
On the Commencement Date of each Offering, a participating Employee shall
be deemed to have been granted an option to purchase a number of shares of
Common Stock equal to (i) the aggregate amount of payroll deductions during the
Offering elected by the Employee, divided by (ii) the option price determined
under Sec. 4.03(i).
4.03. OPTION PRICE
The option price of Common Stock purchased in an Offering shall be the
lower of:
(i) 85% of the fair market value of Common Stock on the Commencement Date,
or
(ii) 85% of the fair market value of Common Stock on the Termination Date.
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Fair market value as of any date shall mean:
(a) if the Common Stock is listed on a national securities exchange or
traded in the over-the-counter market and sales prices are regularly reported
for the Common Stock, the average of the closing or last prices of the Common
Stock on the Composite Tape or other comparable reporting system for the 10
consecutive trading days immediately preceding such date;
(b) if the Common Stock is traded on the over-the-counter market, but sales
prices are not regularly reported for the Common Stock for the 10 days referred
to in (a) above, and if bid and asked prices for the Common Stock are regularly
reported, the average of the mean between the bid and the asked price for the
Common Stock at the close of trading in the over-the-counter market for such 10
days; and
(c) if the Common Stock is neither listed on a national securities
exchange nor traded on the over-the counter market, such value as the Committee,
in good faith, shall determine.
4.04. MAXIMUM SHARES
The maximum number of shares which shall be issued under the Plan, subject
to adjustment upon changes in capitalization of the Corporation as provided in
Sec. 11.02, shall be 500,000 shares. If the total number of shares for which
options are exercised on any Offering Termination Date, together with the
aggregate number of shares as to which options were exercised on all previous
Offering Termination Dates, exceeds the foregoing maximum number of shares, the
Corporation shall make a pro rata allocation of the shares available for
purchase in as nearly a uniform manner as shall be practicable and as it shall
determine to be equitable, and the balance credited to the account of each
Employee under Sec. 5.02 not used to purchase Common Stock shall be returned to
him or her as promptly as possible. Common Stock issued pursuant to the Plan
may be either authorized but unissued shares or shares held in the treasury of
the Corporation.
4.05. EMPLOYEE'S INTEREST IN OPTION STOCK
The Employee shall have no interest in Common Stock covered by his or her
option until such option has been exercised in accordance with the provisions of
Article VI.
ARTICLE V-PAYROLL DEDUCTIONS
5.01. AMOUNT OF DEDUCTION
An Employee's authorization for payroll deduction shall elect deductions of
at least 1% of Base Pay, but not more than 10% of Base Pay, in effect on the
Commencement Date of each Offering. No change in the amount of payroll
deductions shall be made during a year if the Employee's rate of Base Pay
changes during the year.
5.02. EMPLOYEE'S ACCOUNT
All payroll deductions made for an Employee shall be credited to his or her
account under the Plan. An Employee may not make any separate cash payment into
such account except when on leave of absence, and then only as provided in Sec.
5.04.
5.03. CHANGES IN PAYROLL DEDUCTIONS
An Employee may discontinue his or her payroll deductions under the Plan as
provided in Article VII, but may make no other change during an Offering and,
specifically, may not alter the amount of his or her payroll deductions for that
Offering.
5.04. LEAVE OF ABSENCE
An Employee on a leave of absence without pay shall have the right to (i)
discontinue contributions to the Plan, or (ii) make a cash payment to the
Corporation at the end of each payroll period in the amount of the Employee's
authorized Plan deductions.
ARTICLE VI-EXERCISE OF OPTIONS
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6.01. AUTOMATIC EXERCISE
Unless an Employee gives written notice to the Corporation as hereinafter
provided, his or her option with respect to any Offering shall be exercised
automatically on the Termination Date applicable to such Offering, for the
number of full and fractional shares of Common Stock subject to his or her
option, as determined under Sec. 4.02. Any amount in his or her account not
used to purchase Common Stock shall be returned to the Employee within a
reasonable time after the Termination Date of the Offering.
6.02. BOOK ENTRY ACCOUNTS; DELIVERY OF STOCK
The Corporation shall maintain a book entry account, in the name of each
Employee who purchased shares of Common Stock under Sec. 6.01, to record book
entries of the number of full and fractional shares (to 1/1,000 of a share) of
Common Stock purchased by an Employee. Statements of shares held in each
Employee's book entry account shall be delivered to each Employee within a
reasonable time after the Termination Date of each Offering. Shares credited to
an Employee's book entry account will be held in uncertificated form for a
period of one year from the date of purchase, except as provided in Sec.Sec.
6.04 and 7.03. Thereafter, Employees may obtain stock certificates for those
shares that have been held for one year in their respective book entry accounts
upon submitting a written request to the Committee.
6.03. REGISTRATION OF STOCK
Common Stock to be delivered to an Employee under the Plan shall be
registered in the name of the Employee, or, if the Employee so directs by
written notice to the Corporation prior to the Offering Termination Date
applicable thereto, in the names of the Employee and one such other person as
may be designated by the Employee, as joint tenants with rights of survivorship
or as tenants by the entirety, to the extent permitted by applicable law.
6.04. TRANSFERABILITY OF STOCK
Common Stock issued pursuant to the Plan shall not be transferable, other
than to the Employee's estate or by bequest or inheritance, incident to the
Employee's divorce, or due to the Employee's immediate and heavy financial need,
for one year after the date of purchase.
Stock certificates representing those shares that have been held in an
Employee's book entry account for less than one year from the date of purchase
will be issued to an Employee due to an immediate and heavy financial need of
the Employee if the Employee has incurred (or is about to incur) any of the
following financial obligations:
(i) Expenses incurred or necessary for medical care described in Code
section 213(d) for the Employee, his or her spouse, children or other
dependents;
(ii) Costs directly related to the purchase of the principal residence for
the Employee (excluding mortgage payments);
(iii) Payment of tuition, related educational fees, and room and board
expenses, for the next twelve (12) months of post-secondary education for
the Employee, his or her spouse, children or other dependents; or
(iv) Payments necessary to prevent the eviction of the Employee from his or
her principal residence or foreclosure on the mortgage of his or her
principal residence.
A financial hardship request for stock certificates must be submitted to
the Committee in writing. The Employee making the application shall have the
burden of presenting to the Committee evidence that he or she has an immediate
and heavy financial need and that the issuance of stock certificates and
subsequent sale of those shares of Common Stock is necessary to satisfy that
financial need. Action upon any such application shall be taken by the
Committee in its absolute discretion.
6.05. WITHHOLDING
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The Corporation shall have the right to withhold from an Employee's
compensation amounts sufficient to satisfy all federal, state and local tax
withholding requirements, and shall have the right to require the Employee to
remit to the Corporation such additional amounts as may be necessary to satisfy
such requirements.
ARTICLE VII-WITHDRAWAL
7.01. IN GENERAL
An Employee may withdraw the full amount credited to his or her account
under the Plan at any time by giving written notice to the Corporation. The
balance credited to the Employee's account shall be paid to him or her promptly
after receipt of the notice of withdrawal, and no further deductions shall be
made from his or her pay during such Offering.
7.02. EFFECT ON SUBSEQUENT PARTICIPATION
An Employee's withdrawal from any Offering shall not have any effect upon
his or her eligibility to participate in any succeeding Offering by filing with
the Corporation a new authorization for payroll deduction.
7.03. TERMINATION OF EMPLOYMENT
Upon termination of an Employee's employment for any reason, including
retirement (but excluding death while in the employ of the Corporation), the
amount credited to his or her account shall be returned to him or her or, in the
case of death subsequent to the termination of his or her employment, to the
person or persons entitled thereto under Sec. 11.08. Certificates for the
number of full shares of Common Stock allocated to a terminated Employee's book
entry account shall be issued to him or her as promptly as practicable after his
or her termination date, with any fractional shares paid in cash.
7.04. TERMINATION OF EMPLOYMENT DUE TO DEATH
Upon termination of an Employee's employment because of his or her death,
his or her beneficiary (as defined in Sec. 11.08) shall have the right to elect,
by written notice given to the Corporation prior to the Offering Termination
Date, either:
(i) to withdraw the amount credited to the Employee's account under the
Plan, or
(ii) to exercise his or her option on the Termination Date next following
the date of the Employee's death for the number of full and fractional shares of
Common Stock which the Employee's payroll deductions prior to death will
purchase at the applicable option price, but not more than the number of shares
subject to the Employee's option determined under Sec. 4.02, with any amount in
such account not used to purchase Common Stock returned to the beneficiary.
In the event that no such timely written notice of election shall be
received by the Corporation, the beneficiary shall automatically be deemed to
have elected, pursuant to paragraph (ii), to exercise the Employee's option.
ARTICLE VIII-INTEREST
8.01. PAYMENT OF INTEREST
No interest shall be paid or allowed on any money paid into the Plan or
credited to the account of any Employee; provided, however, that interest shall
be paid on any and all money which is distributed to an Employee or his or her
beneficiary pursuant to the provisions of Sec.Sec. 7.01, 7.03 and 7.04. Such
distributions shall bear simple interest during the period from the date of
withholding to the date of return at the regular passbook savings account rate
per annum in effect at NBT Bank, N.A., Norwich, New York. Where the amount
returned represents an excess amount in an Employee's account after such account
has been applied to the purchase of Common Stock under Sec. 6.01, the Employee's
withholding account shall be deemed to have been applied first toward purchase
of Common Stock under the Plan, so that interest shall be paid on the last
withholdings during the period which results in the excess amount.
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ARTICLE IX-ADMINISTRATION
9.01. APPOINTMENT OF COMMITTEE
The Board shall appoint the Compensation and Benefits Committee to
administer the Plan, which shall consist of no fewer than two members of the
Board. No members of the Committee shall be eligible to purchase Common Stock
under the Plan. If at any time no Committee is in existence, the Board shall
have the authority and responsibility to carry out the duties of the Committee
under the Plan.
9.02. AUTHORITY OF COMMITTEE
Subject to the express provisions of the Plan, the Committee shall have
plenary authority in its discretion to interpret and construe any and all
provisions of the Plan, to adopt rules and regulations for administering the
Plan, to make all other determinations deemed necessary or advisable for
administering the Plan. The Committee's determination on the foregoing matters
shall be conclusive.
9.03. RULES GOVERNING THE COMMITTEE
The Board may from time to time appoint members of the Committee in
substitution for or in addition to members previously appointed and may fill
vacancies, however caused, in the Committee. The Committee may select one of
its members as its Chairman and shall hold its meetings at such times and places
as it shall deem advisable, and may hold telephonic meetings. A majority of its
members shall constitute a quorum. All determinations of the Committee shall be
made by a majority of its members. The Committee may correct any defect or
omission or reconcile any inconsistency in the Plan, in the manner and to the
extent it shall deem desirable. Any decision or determination reduced to
writing and signed by a majority of the members of the Committee shall be as
fully effective as if it had been made by a majority vote at a meeting duly
called and held. The Committee may appoint a secretary and shall make such
rules and regulations for the conduct of its business as it shall deem
advisable.
ARTICLE X-INDEMNIFICATION OF COMMITTEE
10.01. INDEMNIFICATION OF COMMITTEE
In addition to such other rights of indemnification as they may have as
directors or as members of the Committee, the members of the Committee shall be
indemnified by the Corporation against the reasonable expenses, including
attorneys' fees actually and necessarily incurred in connection with the defense
of any action, suit or proceeding, or in connection with any appeal therein, to
which they or any of them may be a party by reason of any action taken or
failure to act under or in connection with the Plan or any option granted
thereunder, and against all amounts paid by them in settlement thereof (provided
such settlement is approved by independent legal counsel selected by the
Corporation) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such Committee member is liable
for negligence or misconduct in the performance of his or her duties; provided
that within sixty (60) days after institution of any such action, suit or
proceeding, a Committee member shall in writing offer the Corporation the
opportunity, at its own expense, to handle and defend the same.
ARTICLE XI-MISCELLANEOUS
11.01. TRANSFERABILITY
Neither payroll deductions credited to an Employee's account nor any rights
with regard to the exercise of an option or to receive Common Stock or a return
of payroll deductions under the Plan may be assigned, transferred, pledged, or
otherwise disposed of in any way other than by the laws of descent and
distribution, nor shall be subject to execution, attachment or similar process.
Any such attempted voluntary or involuntary disposition shall be without effect,
except that the Corporation may treat such act as an election to withdraw funds
in accordance with Sec. 7.01. During an Employee's lifetime, options granted to
the Employee shall be exercisable only by the Employee.
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11.02. ADJUSTMENT UPON CHANGES IN CAPITALIZATION
If, while any options under the Plan are outstanding, the outstanding
shares of Common Stock have increased, decreased, changed into, or been
exchanged for a different number or kind of shares or securities of the
Corporation, or of another corporation, through reorganization,
recapitalization, reclassification, merger, consolidation, spin-off, stock
dividend (either in shares of the Corporation's Common Stock or of another class
of the Corporation's stock), stock split, or similar transaction, appropriate
and proportionate adjustments may be made by the Committee in the number and/or
kind of shares which are subject to purchase under outstanding options and in
the exercise price applicable to such outstanding options. In addition, in any
such event, the number and/or kind of shares which may be offered in the
Offerings shall also be proportionately adjusted.
11.03. AMENDMENT AND TERMINATION
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The Board shall have complete power and authority to terminate or amend the
Plan; provided, however, that the Board shall not, without the approval of the
stockholders of the Corporation, (i) increase the maximum number of shares which
may be issued under the Plan (except pursuant to Sec. 11.02); or (ii) amend the
requirements as to the class of Employees eligible to purchase Common Stock
under the Plan or permit the members of the Committee or non-employee directors
to purchase Common Stock under the Plan. No termination, modification, or
amendment of the Plan may, without the consent of an Employee then having an
option under the Plan to purchase Common Stock, adversely affect the rights of
such Employee under the option as to payroll deductions previously credited to
the Employee's account. The Plan shall not be amended more than once every 6
months, other than to comport with changes in the Code or the rules thereunder.
11.04. USE OF FUNDS
All payroll deductions received or held by the Corporation under this Plan
may be used by the Corporation for any corporate purpose and the Corporation
shall not be obligated to segregate such payroll deductions.
11.05. EFFECTIVE DATE
The Plan shall become effective as of March 31, 2000, subject to approval
by the holders of a majority of the Common Stock present and represented at a
special or annual meeting of the shareholders held within 12 months after the
Plan is adopted by the Board. If the Plan is not so approved, the Plan shall
not become effective, and all account balances under the Plan shall be
distributed promptly to the contributing Employees.
11.06. NO EMPLOYMENT RIGHTS
The Plan does not, directly or indirectly, create in any Employee or class
of Employees any right with respect to continuation of employment by the
Corporation, and it shall not be deemed to interfere in any way with the
Corporation's right to terminate, or otherwise modify, an Employee's employment
at any time.
11.07. GOVERNING LAW
The laws of the State of Delaware, without regard to conflicts of laws
principles, shall govern all matters relating to this Plan except to the extent
they are superseded by federal law.
11.08. DESIGNATION OF BENEFICIARY
An Employee may file a written designation of a beneficiary who is to
receive any Common Stock and/or cash credited to the Employee under this Plan in
the event of such Employee's death prior to the delivery to him or her of such
Common Stock and/or cash. Such designation of beneficiary may be changed by the
Employee at any time by written notice to the Treasurer of the Corporation.
Upon the death of an Employee and upon receipt of the Corporation of proof of
identity and existence at the Employee's death of a beneficiary validly
designated by him or her under the Plan, the Corporation shall deliver such
Common Stock and/or cash to such beneficiary. In the event of the death of an
Employee and in the absence of a beneficiary validly designated under the Plan
who is living at the time of such Employee's death, the Corporation shall
deliver such Common Stock and/or cash to the executor or administrator of the
estate of the Employee, or if no such executor or administrator has been
appointed (to the knowledge of the Corporation), the Corporation, in its sole
discretion, may deliver such Common Stock and/or cash to the spouse or to any
one or more dependents or relatives of the Employee, or if no spouse, dependent,
or relative is known to the Corporation, then to such other person as the
Corporation may designate. No designated beneficiary shall, prior to the death
of the Employee by whom he or she has been designated, acquire any interest in
the Common Stock or cash credited to the Employee under this Plan.