-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MfQ0eQTGZN1k6BWJ0NG/nRV+h52dnWas1nbc/BQduijgzFAhX4W0GR0k8Wxbo0Pq Mct+jbfay8Dr/ojiLfAp4A== 0001015402-03-002954.txt : 20030730 0001015402-03-002954.hdr.sgml : 20030730 20030730164034 ACCESSION NUMBER: 0001015402-03-002954 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20030730 EFFECTIVENESS DATE: 20030730 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NBT BANCORP INC CENTRAL INDEX KEY: 0000790359 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 161268674 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-107480 FILM NUMBER: 03811872 BUSINESS ADDRESS: STREET 1: 52 S BROAD ST CITY: NORWICH STATE: NY ZIP: 13815 BUSINESS PHONE: 6073372265 MAIL ADDRESS: STREET 1: 52 S. BROAD STREET CITY: NORWICH STATE: NY ZIP: 13815 S-8 1 doc1.txt AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 30, 2003 Registration No. 333-_____ ================================================================================ - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ NBT BANCORP INC. (Exact name of registrant as specified in its charter) Delaware 16-1268674 (State or other jurisdiction of (IRS employer identification incorporation or organization) number) 52 South Broad Street Norwich, New York 13815 (607) 337-2265 (Address of principal executive offices) ------------------------ NBT Bancorp Inc. Non-employee Directors' Restricted and Deferred Stock Plan (Full title of the Plan) ------------------------ Daryl R. Forsythe President and Chief Executive Officer NBT Bancorp Inc. 52 South Broad Street Norwich, New York 13815 (607) 337-2265 (Name, address and telephone number of Agent for Service) Copy to: Stuart G. Stein, Esq. Amit Saluja, Esq. Hogan & Hartson L.L.P. 555 Thirteenth Street, N.W. Washington, D.C. 20004-1109 (202) 637-8575 ------------------------
CALCULATION OF REGISTRATION FEE ============================================================================================= AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION TO BE REGISTERED REGISTERED(2) PER SHARE (1) PRICE (1)(2) FEE (1)(2) - --------------------------------------------------------------------------------------------- Common Stock 200,000 $ 19.99 $ 3,998,000 $ 323.44 - --------------------------------------------------------------------------------------------- ============================================================================================= (1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act of 1933, as amended. (2) The Registrant is registering 200,000 shares of its common stock, par value $0.01 per share, reserved for issuance pursuant to the NBT Bancorp Inc. Non-employee Directors' Restricted and Deferred Stock Plan. =============================================================================================
================================================================================ - -------------------------------------------------------------------------------- PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The documents containing the information specified in Part I will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). In accordance with the instructions to Part I of Form S-8, such documents will not be filed with the ("SEC") either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference pursuant to Item 3 of Part II of this registration statement, taken together, constitute the prospectus as required by Section 10(a) of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. NBT Bancorp Inc. ("NBT") hereby incorporates by reference into this registration statement the following documents filed by it with the SEC: (a) NBT's annual report on Form 10-K for the fiscal year ended December 31, 2002 (File No. 000-14703) filed with the SEC on March 28, 2003. (b) NBT's quarterly report on Form 10-Q for the quarter ended March 31, 2003 (File No. 000-14703) filed with the SEC on May 14, 2003. (c) The description of NBT common stock, par value $0.01 per share ("Common Stock"), contained under the heading "Description of NBT Capital Stock" in NBT's registration statement on Form S-4 (File No. 333-66472) filed with the SEC on August 1, 2001, as amended. (d) NBT's current reports on Form 8-K filed with the SEC on April 30, 2003 and July 29, 2003 (File Nos. 000-14703). In addition, all documents and reports filed by NBT subsequent to the date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of filing of such documents or reports. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document, which also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. 1 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Reference is made to the provisions of Delaware General Corporation Law ("DGCL"), Article 6 of the Bylaws of NBT and Article 12 of the Certificate of Incorporation of NBT. NBT is a Delaware corporation subject to the applicable indemnification provisions of the DGCL. Section 145 of the DGCL provides for the indemnification, under certain circumstances, of persons who are or were directors, officers, employees or agents of a corporation, or are or were serving at the request of a corporation in such a capacity with another business organization or entity, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement in actions, suits or proceedings, whether civil, criminal, administrative, or investigative, brought or threatened against or involving such persons because of such person's service in any such capacity. In the case of actions brought by or in the right of a corporation, Section 145 provides for indemnification of expenses (including attorneys' fees) if the person seeking indemnification acted in good faith and in a manner that such person reasonably believed to be in or not opposed to the best interests of the corporation; provided, however, that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall been adjudged liable to the corporation unless, upon a determination by the Court of Chancery or the court in which such action or suit was brought, despite the adjudication of liability but in view of all the circumstances of the case, such person is reasonably and fairly entitled to indemnity for such expenses. NBT's bylaws contain provisions providing that NBT shall indemnify any person who was or is a party or threatened to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of NBT, or is or was serving at the request of NBT as a director of another corporation, partnership, joint venture, trust, or other enterprise, to the maximum extent authorized by DGCL. NBT's Certificate of Incorporation provides that a director of NBT shall not be personally liable to NBT or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director's duty of loyalty to NBT or its stockholders; (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (3) under Section 174 of the DGCL; or (4) for any transaction from which the director derived an improper personal benefit. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. 2
ITEM 8. EXHIBITS. Exhibit No. Exhibit - ------- ------- 4.1 Certificate of Incorporation of NBT (filed as Exhibit 3.1 to Registrant's Form 10-K for the year ended December 31, 2001, filed on March 29, 2002 and incorporated herein by reference). 4.2 By-laws of NBT (filed as Exhibit 3.2 to Registrant's Form 10-K for the year ended December 31, 2001, filed on March 29, 2002 and incorporated herein by reference). 4.3 Rights Agreement, dated as of November 15, 1994, between NBT and American Stock Transfer Trust Company as Rights Agent (filed as Exhibit 4.1 to Registrant's Form 8-A (File No. 000-14703), filed on November 25, 1994, and incorporated by reference herein). 4.4 Amendment No. 1 to Rights Agreement, dated as of December 16, 1999, between NBT and American Stock Transfer Trust Company as Rights Agent (filed as Exhibit 4.2 to Registrant's Form 8- A/A, (File No. 000-14703), filed on December 21, 1999, and incorporated by reference herein). 4.5 Amendment No. 2 to Rights Agreement, dated as of April 19, 2000, between NBT and American Stock Transfer Trust Company as Rights Agent (filed as Exhibit 4.3 to Registrant's Form 8-A/A, (File No. 000-14703), filed on May 25, 2000, and incorporated by reference herein). 5 Opinion of Hogan & Hartson L.L.P. 23.1 Consent of KPMG LLP. 23.2 Consent of Hogan & Hartson L.L.P. (contained in Exhibit 5). 99.1 NBT Non-employee Director's Restricted and Deferred Stock Plan (incorporated by reference to Appendix A of NBT's Definitive Proxy Statement on Form 14A filed with the SEC on April 4, 2003).
ITEM 9. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; 3 (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liability arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant or expenses incurred or paid by a director, officer or controlling person in successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Norwich, state of New York on July 30, 2003. NBT BANCORP INC. By: /S/ Daryl R. Forsythe ------------------------ Daryl R. Forsythe President and Chief Executive Officer Each person whose signature appears below appoints Daryl R. Forsythe or Michael J. Chewens, jointly and severally, each in his own capacity, as true and lawful attorneys-in-fact, with full power of substitution in such person's name, place and stead, in any and all capacities to sign any amendments to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the SEC, hereby ratifying and confirming all that said attorney-in-fact, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on the 28th day of July, 2003. SIGNATURE TITLE --------- ----- President, Chief Executive Officer and /S/ Daryl R. Forsythe Director (Principal Executive --------------------- Officer) Daryl R. Forsythe Executive Vice President, Chief /S/ Michael J. Chewens Financial Officer and Secretary ---------------------- (Principal Financial Officer) Michael J. Chewens /S/ Richard Chojnowski Director ---------------------- Richard Chojnowski /S/ Patricia T. Civil Director --------------------- Patricia T. Civil /S/ Gene E. Goldenziel Director ---------------------- Gene E. Goldenziel /S/ Dr. Peter B. Gregory Director ------------------------ Dr. Peter B. Gregory /S/ William C. Gumble Director --------------------- William C. Gumble 5 /S/ Paul D. Horger Director ------------------ Paul D. Horger /S/ Michael H. Hutcherson Director ------------------------- Michael H. Hutcherson /S/ Janet H. Ingraham Director --------------------- Janet H. Ingraham /S/ Andrew S. Kowalczyk, Jr. Director ---------------------------- Andrew S. Kowalczyk, Jr. /S/ John C. Mitchell Director -------------------- John C. Mitchell /S/ Michael M. Murphy Director --------------------- Michael M. Murphy /S/ Joseph G. Nasser Director -------------------- Joseph G. Nasser /S/ William L. Owens Director -------------------- William L. Owens /S/ Van Ness D. Robinson Director ------------------------ Van Ness D. Robinson /S/ Joseph A. Santangelo Director ------------------------ Joseph A. Santangelo /S/ Paul O. Stillman Director -------------------- Paul O. Stillman 6
EXHIBIT INDEX Exhibit No. Exhibit - ------- ------- 4.1 Certificate of Incorporation of NBT (filed as Exhibit 3.1 to Registrant's Form 10-K for the year ended December 31, 2001, filed on March 29, 2002 and incorporated herein by reference). 4.2 By-laws of NBT (filed as Exhibit 3.2 to Registrant's Form 10-K for the year ended December 31, 2001, filed on March 29, 2002 and incorporated herein by reference). 4.3 Rights Agreement, dated as of November 15, 1994, between NBT and American Stock Transfer Trust Company as Rights Agent (filed as Exhibit 4.1 to Registrant's Form 8-A (File No. 000-14703), filed on November 25, 1994, and incorporated by reference herein). 4.4 Amendment No. 1 to Rights Agreement, dated as of December 16, 1999, between NBT and American Stock Transfer Trust Company as Rights Agent (filed as Exhibit 4.2 to Registrant's Form 8- A/A, (File No. 000-14703), filed on December 21, 1999, and incorporated by reference herein). 4.5 Amendment No. 2 to Rights Agreement, dated as of April 19, 2000, between NBT and American Stock Transfer Trust Company as Rights Agent (filed as Exhibit 4.3 to Registrant's Form 8-A/A, (File No. 000-14703), filed on May 25, 2000, and incorporated by reference herein). 5 Opinion of Hogan & Hartson L.L.P. 23.1 Consent of KPMG LLP. 23.2 Consent of Hogan & Hartson L.L.P. (contained in Exhibit 5). 99.1 NBT Non-employee Director's Restricted and Deferred Stock Plan (incorporated by reference to Appendix A of NBT's Definitive Proxy Statement on Form 14A filed with the SEC on April 4, 2003).
EX-5 3 doc2.txt EXHIBIT 5 --------- LEGAL OPINION OF HOGAN & HARTSON L.L.P. July 29, 2003 Board of Directors NBT Bancorp Inc. 52 South Broad Street Norwich, New York 13815 Re: NBT Bancorp Inc. Non-employee Directors' Restricted and Deferred Stock Plan Registration Statement on Form S-8 Ladies and Gentlemen: We are acting as special counsel to NBT Bancorp Inc., a Delaware corporation (the "Company"), in connection with its registration statement on Form S-8 (the "Registration Statement") filed with the Securities and Exchange Commission relating to the proposed offering of up to 200,000 shares of the Company's common stock, par value $0.01 per share, all of which shares (the "Shares") are to be issued by the Company under the Company's Non-employee Directors' Restricted and Deferred Stock Plan (the "Plan"). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. 229.601(b)(5), in connection with the Registration Statement. For purposes of this opinion letter, we have examined copies of the following documents: 1. An executed copy of the Registration Statement. 2. The Restated Certificate of Incorporation of the Company, as certified by the Secretary of State of the State of Delaware on July 25, 2003 and by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 3. The Bylaws of the Company, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 4. The Plan. 5. Resolutions of the Board of Directors of the Company adopted by unanimous written consent on March 25, 2003, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect, relating to the issuance and sale of the Shares and arrangements in connection therewith. 6. Resolutions of the stockholders of the Company adopted at a meeting held on May 1, 2003, as certified by the Secretary of the Company on the date hereof as being complete, accurate and in effect, approving the Plan. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). This opinion letter is given, and all statements herein are made, in the context of the foregoing. This opinion letter is based as to matters of law solely on the General Corporation Law of the State of Delaware, as amended. We express no opinion herein as to any other laws, statutes, ordinances, rules or regulations. As used herein, the term "Delaware General Corporation Law, as amended" includes the statutory provisions contained therein, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws. Based upon, subject to and limited by the foregoing, we are of the opinion that the Shares to be issued pursuant to the terms of the Plan have been duly authorized and, upon issuance therefore in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable. This opinion letter has been prepared solely for your use in connection with the filing of the Registration Statement and speaks as of the date hereof. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter. We hereby consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement. In giving this opinion and consent, we do not admit that we are an "expert" within the meaning of the Securities Act of 1933, as amended. Very truly yours, /s/ Hogan & Hartson L.L.P. EX-23.1 4 doc3.txt EXHIBIT 23.1 ------------ CONSENT OF INDEPENDENT AUDITORS The Board of Directors NBT Bancorp Inc.: We consent to the incorporation by reference in the registration statement on Form S-8 of NBT Bancorp Inc. relating to the registration of shares for the NBT Bancorp Inc. Non-employee Directors' Restricted and Deferred Stock Plan filed under the Securities Act of 1933 of our audit report dated January 27, 2003, relating to the consolidated balance sheets of NBT Bancorp Inc. and subsidiaries as of December 31, 2002 and 2001, and the related consolidated statements of income, changes in stockholders' equity, cash flows and comprehensive income for each of the years in the three-year period ended December 31, 2002 which report appears in the December 31, 2002 Annual Report on Form 10-K of NBT Bancorp Inc., incorporated by reference herein. Our report refers to the Company's adoption of changes in accounting for goodwill and other intangible assets. /S/ KPMG LLP -------------- Albany, New York July 29, 2003 -----END PRIVACY-ENHANCED MESSAGE-----