Exhibit 10.16
Supplemental Retirement Agreement between NBT Bancorp Inc., NBT Bank, National
Association and Daryl R. Forsythe as Amended and Restated Effective January 28,
2002.
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SUPPLEMENTAL RETIREMENT AGREEMENT
(AS AMENDED AND RESTATED EFFECTIVE JANUARY 28, 2002)
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(REVISED)
This sets forth the terms of an agreement for the payment of supplemental
retirement income ("Agreement") made as of January 1, 1995 (and as revised on
April 28, 1998, January 1, 2000, January 22, 2001 and on January 28, 2002)
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) DARYL R.
FORSYTHE, an individual residing at 21 Ridgeland Road, 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 ("Forsythe").
1. PURPOSE OF THE AGREEMENT. The purpose of this Agreement is to
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provide Forsythe a supplemental retirement benefit in accordance with the terms
of this Agreement.
2. DEFINITIONS. For purposes of this Agreement, the following words
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shall have the meaning indicated:
(a) ACTUARIAL EQUIVALENT. "Actuarial Equivalent" shall have the
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same meaning the term "Actuarial Equivalent" has under Section 2.03 of
Appendix A to the Qualified Plan (i.e., the NBT BANCORP Inc. Defined
Benefit Pension Plan, as amended and restated as of October 1, 1989,
including amendments adopted through August 31, 1998) using the
following actuarial assumptions:
MORTALITY: "Applicable Mortality Rate" as such term is
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defined in Section 2.03c of said Appendix A
to the Qualified Plan.
INTEREST RATE: "Applicable Interest Rate" as such term is
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defined in Section 2.09b of said Appendix A
to the Qualified Plan.
(b) BENEFICIARY. "Beneficiary" shall mean such living person or
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living persons designated by Forsythe in accordance with subparagraph
5(a) to receive benefits under this Agreement after his death, or his
personal or legal representative, all as herein described and
provided. If no Beneficiary is designated by Forsythe or if no
Beneficiary survives Forsythe, the Beneficiary shall be Forsythe's
estate.
(c) CAUSE. "Cause" shall mean Forsythe's:
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(i) willful or gross misconduct with respect to the
business and affairs of the Bank, or with respect to any of its
affiliates for which Forsythe is assigned material
responsibilities or duties;
(ii) conviction of a felony (after the earlier of the
expiration of any applicable appeal period without perfection of
an appeal by Forsythe or the denial of any appeal as to which no
further appeal or review is available to Forsythe) whether or not
committed in the course of his employment by the Bank;
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(iii) willful neglect, failure, or refusal to carry out his
duties under the Employment Agreement between NBT Bancorp Inc.
and Forsythe dated as of January 1, 2000 (the "Employment
Agreement") in a reasonable manner (other than any such failure
resulting from disability or death or from termination by
Forsythe for Good Reason, as defined in the Employment Agreement)
after a written demand for substantial performance is delivered
to Forsythe that specifically identifies the manner in which the
Bank believes that Forsythe has not substantially performed his
duties and he has not resumed substantial performance of his
duties on a continuous basis within thirty days of receiving such
demand; or
(iv) breach of any representation or warranty in section
6(a) of the Employment Agreement or of any agreement contained in
section 1, 4, 5, or 6(b) of the Employment Agreement, which
breach is material and adverse to the Bank or any of its
affiliates for which Forsythe is assigned material
responsibilities or duties.
(d) CHANGE OF CONTROL. "Change of Control" shall mean a Change
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in Control as such term is defined in the Change of Control Agreement
between Forsythe and the Bank dated January 1, 2000 (a revision of the
April 28, 1998 and February 21, 1995 agreements).
(e) CODE. "Code" shall mean the Internal Revenue Code of 1986,
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as amended.
(f) DETERMINATION DATE. "Determination Date" shall mean the
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earlier of (i) the date of termination of Forsythe's employment with
the Bank or (ii) the first day of the month following Forsythe's 65th
birthday.
(g) FINAL AVERAGE COMPENSATION. "Final Average Compensation"
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shall have the same meaning the term "Final Average Compensation" has
under Section 2.27 of Appendix A to the Qualified Plan (i.e., the NBT
BANCORP Inc. Defined Benefit Pension Plan, as amended and restated as
of October 1, 1989, including amendments adopted through August 31,
1998), except that in determining the amount of Compensation (as
defined in Section 2.14 of said Appendix A to the Qualified Plan) to
be used in calculating Final Average Compensation under Section 2.27
of said Appendix A to the Qualified Plan, Compensation shall not be
subject to the compensation limitation of section 401(a)(17) of the
Code.
(h) FULL-TIME EMPLOYEE. "Full-Time Employee" shall mean an
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employee who works not less than 1,000 hours in a calendar year.
(i) OTHER RETIREMENT BENEFITS. "Other Retirement Benefits" shall
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mean the sum of:
(i) The annual benefit payable to Forsythe from the
Qualified Plan, plus
(ii) The annual benefit that could be provided by (A) Bank
contributions (other than elective deferrals) made on Forsythe'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 at age 65 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
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date" and without regard to whether Forsythe is receiving payment of such
benefits on the Determination Date. To the extent Forsythe receives a
payment of Other Retirement Benefits described in subparagraph 2(i)(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.
(j) PRESENT VALUE. "Present Value" shall mean the present
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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 Appendix A to the
Qualified Plan (i.e., the NBT BANCORP Inc.
Defined Benefit Pension Plan, as amended and
restated as of October 1, 1989, including
amendments adopted through August 31, 1998).
INTEREST RATE: "Applicable Interest Rate" as such term is
--------------
defined in Section 2.09b of said Appendix A
to the Qualified Plan.
(k) QUALIFIED PLAN. "Qualified Plan" shall mean the NBT BANCORP
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Inc. Defined Benefit Pension Plan, as amended and restated
effective as of January 1, 2000.
(l) SOCIAL SECURITY BENEFIT. "Social Security Benefit" shall
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mean Forsythe's actual social security benefit at his Social
Security Retirement Age.
(m) 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 Appendix A to the Qualified Plan (i.e.,
the NBT BANCORP Inc. Defined Benefit Pension Plan, as amended and
restated as of October 1, 1989, including amendments adopted through
August 31, 1998).
3. AMOUNT OF SUPPLEMENTAL RETIREMENT BENEFIT.
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(a) SUPPLEMENTAL RETIREMENT BENEFIT.
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(i) AMOUNT PAYABLE ON AND AFTER AGE 65. If Forsythe shall
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remain employed by the Bank until reaching his 65th birthday,
serving as a Full-Time Employee until such date, and subject to
the other terms and conditions of this Agreement, the Bank shall
pay Forsythe an annual "Supplemental Retirement Benefit"
determined as follows:
(A) ON AND AFTER AGE 65 BUT BEFORE SOCIAL SECURITY
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RETIREMENT AGE. Forsythe shall be entitled to a Supplemental
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Retirement Benefit on and after his 65th birthday but before
his Social Security Retirement Age in an amount equal to the
excess of (1) 75 percent of Forsythe's Final Average
Compensation, over (2) Forsythe's Other Retirement Benefits,
determined as of the Determination Date and calculated in
accordance with subparagraph 2(i).
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(B) ON AND AFTER SOCIAL SECURITY RETIREMENT AGE.
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Forsythe 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) 75 percent of
Forsythe's Final Average Compensation, over (2) the sum of
(aa) Forsythe's Other Retirement Benefits, determined as of
the Determination Date and calculated in accordance with
subparagraph 2(i), plus (bb) Forsythe's Social Security
Benefit.
(ii) AMOUNT PAYABLE ON AND AFTER AGE 56 BUT BEFORE AGE 60.
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If Forsythe shall remain employed by the Bank until reaching his
56th birthday, serving as a Full-Time Employee until such date
and he continues to serve as a Full-Time Employee until the date
of his retirement, and he retires then or thereafter but before
reaching his 60th birthday, and subject to the other terms and
conditions of this Agreement, the Bank shall pay Forsythe on his
60th birthday, pursuant to subparagraph 4(b), or to his spouse or
other Beneficiary, pursuant and subject to subparagraph 6(c) if
he has died before his 60th birthday, a reduced early
Supplemental Retirement Benefit calculated in accordance with
subparagraph 3(b) and the following schedule:
(A) If the date of Forsythe's retirement shall be on
or after his 56th birthday but before his 57th birthday, the
Bank shall pay Forsythe 20% of the reduced early
Supplemental Retirement Benefit so calculated;
(B) If the date of Forsythe's retirement shall be on
or after his 57th birthday but before his 58th birthday, the
Bank shall pay Forsythe 40% of the reduced early
Supplemental Retirement Benefit so calculated;
(C) If the date of Forsythe's retirement shall be on
or after his 58th birthday but before his 59th birthday, the
Bank shall pay Forsythe 60% of the reduced early
Supplemental Retirement Benefit so calculated; and
(D) If the date of Forsythe's retirement shall be on
or after his 59th birthday but before his 60th birthday, the
Bank shall pay Forsythe 80% of the reduced early
Supplemental Retirement Benefit so calculated.
(iii) AMOUNT PAYABLE ON AND AFTER AGE 60 BUT BEFORE AGE 65.
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If Forsythe shall remain employed by the Bank until
reaching his 60th birthday, serving as a Full-Time
Employee until such date and he continues to serve
As a Full-Time Employee until the date of his
retirement, and he retires then or thereafter but
before reaching his 65th birthday, and subject to
the other terms and conditions of this Agreement, the
Bank shall pay Forsythe a reduced early Supplemental
Retirement Benefit calculated in accordance with
subparagraph 3(b) except that at age 62 the amount
shall not be less than an amount equal to the excess
of (A) 65% of Forsythe's Final Average Compensation
over (B) Forsythe's Other Retirement Benefits
determined as of the Determination Date and
calculated in accordance with subparagraph 2(i)
(b) EARLY SUPPLEMENTAL RETIREMENT BENEFIT. If the Bank commences
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payment of a reduced early Supplemental Retirement Benefit before
Forsythe reaches age 65, the amount paid shall equal the product of
(i) the Supplemental Retirement Benefit, as calculated under
subparagraph 3(a)(i)(A), times (ii) a fraction, the numerator of which
shall be the number of complete months of Forsythe's employment with
the Bank after January 1, 1995, and the denominator of which is 164
(the number of complete months of employment Forsythe would have had
after January 1, 1995 if he remained employed by the Bank until the
first day of the month following his 65th birthday).
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(c) CONTINUED MEDICAL BENEFITS. Upon Forsythe's retirement, the
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Bank will continue in force the same level of medical benefits
(including medical, dental and vision care) for Executive until his
death and for his spouse (if alive) at the time of his death that was
in effect at the time of Executive's retirement.
(d) DISABILITY. If Forsythe's employment with the Bank
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terminates because of his disability (as defined for purposes of the
long term disability plan or policy of the Bank that is applicable to
him at such time) before he attains age 62, for purposes of this
Section 3, he shall be deemed to have continued to be employed as a
Full-Time Employee of the Bank while such disability continues, until
he attains age 62, and to have then retired.
4. TIME OF PAYMENT.
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(a) Except as provided in subparagraph 4(b) (early retirement)
and paragraph 6 (payment on death), the Bank shall pay the
Supplemental Retirement Benefit commencing on the first day of the
month following Forsythe's attainment of age 65.
(b) Notwithstanding subparagraph 4(a), the Bank shall commence
payment of a reduced early Supplemental Retirement Benefit on the
first day of the month following Forsythe's Determination Date in
connection with early retirement after reaching age 60 and prior to
the date of his 65th birthday; provided that, if Forsythe shall retire
prior to his 60th birthday as permitted in this Agreement, the Bank
shall commence payment of the reduced early Supplemental Retirement
Benefit on the first day of the month following Forsythe's 60th
birthday.
5. FORM OF PAYMENT.
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(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 Forsythe's life; provided, however, that if
Forsythe has no surviving spouse and dies before having received 60
monthly payments, such monthly payments shall be continued to his
Beneficiary until the total number of monthly payments to Forsythe and
his Beneficiary equal 60, whereupon all payments shall cease and the
Bank's obligation under this Agreement shall be deemed to have been
fully discharged. If Forsythe and his 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 Forsythe and his
Beneficiary. If Supplemental Retirement Benefits are payable in the
form described in this subparagraph 5(a), Forsythe shall designate in
writing, as his Beneficiary, any person or persons, primarily,
contingently or successively, to whom the Bank shall pay benefits
following Forsythe's death if Forsythe's death occurs before 60
monthly payments have been made.
(b) Notwithstanding the form of payment described in subparagraph
5(a), if Forsythe 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 Forsythe'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 payable pursuant to this subparagraph 5(b), but
Forsythe's spouse fails to survive him, no payments will be made
pursuant to this Agreement following Forsythe's death.
(c) Notwithstanding the foregoing provisions of this paragraph 5,
the Bank and Forsythe or his surviving spouse, if applicable, by
mutual agreement may accelerate the payment of all or any portion of
the Supplemental Retirement Benefit or the reduced early Supplemental
Retirement Benefit at any time.
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Any payment accelerated in accordance with this subparagraph 5(c)
shall be the Actuarial Equivalent of the payment being accelerated.
(d) If payment of a reduced early Supplemental Retirement Benefit
commences pursuant to subparagraph 4(b), and payments are accelerated
pursuant to subparagraph 5(c), the reduction described in subparagraph
3(b) shall be applied before any Actuarial Equivalent is determined
under this paragraph 5.
6. PAYMENTS UPON FORSYTHE'S DEATH.
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(a) Except as provided in subparagraphs 6(b) and (c), if Forsythe
shall die before his 65th birthday, no payment shall be due his estate
under this Agreement.
(b) If Forsythe's death shall occur on or after his 60th
birthday, before payment of any Supplemental Retirement Benefit has
commenced, Forsythe's surviving spouse shall be paid as a straight
life annuity 50 percent of the Supplemental Retirement Benefit for her
life commencing within 30 days following Forsythe's death, calculated
in accordance with subparagraph 3(b) and, if such death occurs while
Forsythe is employed by the Bank, as if he had retired on the day
before his death. Such payments shall be made in monthly installments,
subject to the right of the Bank and such surviving spouse to
accelerate payment at any time in accordance with subparagraph 5(c).
(c) If Forsythe dies before his 60th birthday and on or after his
56th birthday, before payment of any Supplemental Retirement Benefit
has commenced, Forsythe'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 Forsythe's death, calculated in accordance with subparagraph
3(a)(ii) and, if such death occurs while Forsythe is employed by the
Bank, as if he had retired on the day before his death, subject to the
right of the Bank and such surviving spouse to accelerate such
payments as provided in subparagraph 5(c). However, if Forsythe's
spouse fails to survive him, the Bank shall pay to Forsythe's estate a
lump sum benefit equal to 50 percent of the Present Value of
Forsythe's Supplemental Retirement Benefit, calculated as provided in
the preceding sentence.
(d) Except as otherwise provided in subparagraph 6(c), no
payments shall be made under this Agreement if Forsythe dies before
payment of any Supplemental Retirement Benefit begins and his spouse
fails to survive him.
(e) If Forsythe's death shall occur after payment of a
Supplemental Retirement Benefit has commenced, Forsythe's surviving
spouse or other Beneficiaries shall receive payments under this
Agreement to the extent provided in paragraph 5.
7. FORFEITURE FOR CAUSE. Notwithstanding any other provision of this
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Agreement, if Forsythe's employment with the Bank is terminated for Cause,
Forsythe and his spouse or other Beneficiaries shall forfeit all rights to any
payment under this Agreement.
8. POWERS. The Bank shall have such powers as may be necessary to discharge
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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
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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.
9. CLAIMS PROCEDURE.
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(a) Any claim for benefits by Forsythe, his spouse or other
Beneficiaries shall be made in writing to the Bank. In this paragraph,
Forsythe and his Beneficiaries 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 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.
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(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 9(h)) shall be the
Bank's final decision.
10. ASSIGNMENT. Neither Forsythe nor his spouse or other Beneficiaries may
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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 Forsythe or his spouse or other Beneficiaries.
11. CONTINUED EMPLOYMENT. This Agreement shall not be construed as
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conferring on Forsythe a right to continued employment with the Bank.
12. FUNDING.
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(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 Forsythe nor his spouse or other Beneficiaries shall have
any interest in any particular assets of the Bank by reason of the right to
receive a benefit under this Agreement. Forsythe and his spouse or other
Beneficiaries 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.
13. WITHHOLDING. Any payment made pursuant to this Agreement shall be
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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 Forsythe's employment with the
Bank, the Bank may withhold from Forsythe's regular compensation from the Bank
any FICA or other employee payroll, withholding or other similar taxes the Bank
may be required to withhold.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and shall
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inure to the benefit of, the successors and assigns of the Bank.
15. APPLICABLE LAW. This Agreement shall be construed and administered in
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accordance with the laws of the State of New York, except to the extent
preempted by federal law.
16. AMENDMENT. This Agreement may not be amended, modified or otherwise
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altered except by written instrument executed by both parties.
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17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
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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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The parties hereby execute this Agreement as follows:
NBT BANCORP INC.
By: /s/ Andrew Kowalczyk Jr.
Date: 1/28/02 Its: Chairman Compensation Committee
NBT BANK, NATIONAL ASSOCIATION
By: /s/ Michael J. Chewens
Date: 1/28/02 Its: Secretary
Date: 1/28/02 /s/ Daryl R. Forsythe
DARYL R. FORSYTHE
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