Exhibit 10.21
Form of Employment Agreement between
NBT Bancorp Inc. and David E. Raven made as of August 31,
2005.
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") made
and entered into as of this thirty first day of August 2005 by and
between DAVID E. RAVEN ("Executive") and NBT BANCORP INC., a
Delaware corporation having its principal office in Norwich, New
York ("NBTB")
W I T N E S S E T
H T H A T :
WHEREAS, Executive is an executive vice
president of NBTB and president and chief executive officer of
Pennstar Bank, a Division of NBT Bank, National Association, a
national banking association which is a wholly-owned subsidiary of
NBTB ("NBT Bank");
WHEREAS, NBTB desires to secure the continued
employment of Executive, subject to the provisions of this
Agreement; and
WHEREAS, Executive is desirous of entering into
the Agreement for such periods and upon the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises
and mutual covenants and agree-ments hereinafter set forth,
intending to be legally bound, the parties agree as
follows:
1.
Employment; Responsibilities and Duties .
(a) NBTB and NBT
Bank hereby agrees to employ Executive and to cause Pennstar Bank
and any successor organization to Pennstar Bank to employ
Executive, and Executive hereby agrees to serve as an executive
vice president of NBTB and president and chief executive officer of
Pennstar Bank, during the Term of Employment. Executive shall have
such executive duties, responsibilities, and authority as shall be
set forth in the bylaws of NBTB and NBT Bank or as may otherwise be
determined by NBTB or NBT Bank. During the Term of Employment,
Executive shall report directly to the chief executive officer of
NBT Bank and dotted line to the Chairman of the Board of Pennstar
Bank.
(b) Executive
shall devote his full working time and best efforts to the
performance of his responsibilities and duties hereunder. During
the Term of Employ-ment, Executive shall not, without the prior
written consent of the chief executive officer of NBT Bank, render
services as an employee, independent contractor, or otherwise,
whether or not compensated, to any person or entity other than NBTB
or its affiliates; provided that Executive may, where involvement
in such activities does not individually or in the aggregate
significantly interfere with the performance by Executive of his
duties or violate the provisions of section 4 hereof, (i) render
services to charitable organizations, (ii) manage his personal
invest-ments, and (iii) with the prior permis-sion of the chief
executive officer of NBT Bank, hold such other director-ships or
part-time academic appointments or have such other business
affiliations as would otherwise be prohibited under this section
1.
2. Term of
Employment .
(a) The term of
this Agreement ("Term of Employment") shall be the period
com-mencing on the date of this Agreement (the "Commence-ment
Date") and continuing until the Termination Date, which shall mean
the earliest to occur of:
(i) January 1,
2008 provided, however, that on January 1, 2006 and each January 1
thereafter, the Term of Employment shall automatically be extended
by one additional year;
(ii) the death of
Executive;
(iii)
Executive's inability to perform his duties hereunder, as a result
of physical or mental disability as reasonably determined by the
personal physician of Executive, for a period of at least 180
consecutive days or for at least 180 days during any period of
twelve consecutive months during the Term of Employment;
or
(iv) the discharge of
Executive by NBTB "for cause," which shall mean one or more of the
following:
(A) any willful
or gross misconduct by Executive with respect to the business and
affairs of NBTB or Pennstar Bank, or with respect to any of its
affiliates for which Executive is assigned material
responsibilities or duties;
(B) the
conviction of Executive of a felony (after the earlier of the
expiration of any applicable appeal period without perfection of an
appeal by Executive or the denial of any appeal as to which no
further appeal or review is available to Executive) whether or not
committed in the course of his employment by NBTB;
(C) Executive's
willful neglect, failure, or refusal to carry out his duties
hereunder in a reasonable manner (other than any such failure
resulting from disability or death or from termination by Executive
for Good Reason, as hereinafter defined) after a written demand for
substantial performance is delivered to Executive that
speci-fically identifies the manner in which NBTB believes that
Executive has not substantially performed his duties and Executive
has not resumed substantial performance of his duties on a
continuous basis within thirty days of receiving such demand;
or
(D) the breach
by Executive of any representa-tion or warranty in section 6(a)
hereof or of any agreement contained in section 1, 4, 5, or 6(b)
hereof, which breach is material and adverse to NBTB or any of its
affiliates for which Executive is assigned material
responsibili-ties or duties; or
(v) Executive's
resignation from his position as executive vice president of NBTB
or as president and chief executive officer of Pennstar Bank other
than for "Good Reason," as hereinafter defined; or
(vi) the
termination of Executive's employment by NBTB "without cause,"
which shall be for any reason other than those set forth in
subsections (i), (ii), (iii), (iv), or (v) of this section 2(a), at
any time, upon the thirtieth day following notice to Executive;
or
(vii) Executive's
resignation for "Good Reason."
"Good Reason"
shall mean, without Executive's express written consent,
reassignment of Executive to a position other than executive vice
president of NBTB or as president and chief executive officer of
Pennstar Bank other than for "Cause," or a decrease in the amount
or level of Executive's salary or benefits from the amount or level
established in section 3 hereof.
(b) In the event
that the Term of Employment shall be terminated for any reason
other than that set forth in section 2(a)(vi) or 2(a)(vii) hereof,
Executive shall be entitled to receive, upon the occur-rence of any
such event:
(i) any salary
(as hereinafter defined) payable pursuant to section 3(a)(i) hereof
which shall have accrued as of the Termination Date; and
(ii) such rights
as Executive shall have accrued as of the Termination Date under
the terms of any plans or arrange-ments in which he participates
pursuant to section 3(b) hereof, any right to reimbursement for
expenses accrued as of the Termination Date payable pursuant to
section 3(h) hereof, and the right to receive the cash equivalent
of paid annual leave and sick leave accrued as of the Termination
Date pursuant to section 3(d) hereof.
(c) In the event
that the Term of Employment shall be terminated for the reason set
forth in section 2(a)(vi) or 2(a)(vii) hereof, Executive shall be
entitled to receive:
(i) any salary
payable pursuant to section 3(a)(i) hereof which shall have accrued
as of the Termination Date, and, for the period commencing on the
date immediately following the Termination Date and ending upon and
including the latest of the third anniversary of the Commencement
Date or the date to which the Term of Employment shall (as of the
Termination Date) have automatically extended itself under section
2(a)(i) hereof, salary payable at the rate established pursuant to
section 3(a)(i) hereof, in a manner consistent with the normal
payroll practices of NBTB with respect to executive personnel as
presently in effect or as they may be modified by NBTB from time to
time;
(ii) such rights
as Executive may have accrued as of the Termination Date under the
terms of any plans or arrangements in which he participates
pursuant to section 3(b) hereof, any right to reimbursement for
expenses accrued as of the Termina-tion Date payable pursuant to
section 3(h) hereof, and the right to receive the cash equivalent
of paid annual leave and sick leave accrued as of the Termination
Date pursuant to section 3(d) hereof; and
(iii) if, within
eighteen (18) months following the Termination Date, Executive
should sell his principal residence in the Scranton Rand McNally
Metropolitan Area as determined by Rand McNally & Company (the
“Scranton RMA”) and relocate to a place outside of the
Scranton RMA, (A) reimbursement for any shortfall between the net
proceeds on the sale of his principal residence and the purchase
price plus improvements including direct, necessary and reasonable
transaction costs incurred in connection with such purchase, as
determined by the finance division of NBTB, for such residence, and
including direct, necessary and reasonable expenses, as determined
by the finance division of NBTB, incurred to prepare the residence
for sale, (B) reimbursement for direct, necessary and reasonable
expenses, as determined by the finance division of NBTB, incurred
in connection with the sale of such residence not already included
as part of the reimbursement under (A) above, and (C) an amount
necessary to pay all federal, state and local income taxes
resulting from any reimbursement made pursuant to (A) and (B)
(including any additional federal state and local income taxes
resulting from the payment hereunder of such taxes), the intent
being that Executive shall be paid an additional amount (the
“Gross-Up”) such that the net amount retained by the
Executive, after deduction of such federal, state and local income
taxes resulting from the reimbursement under (A) and (B) shall be
equal to the amount of the reimbursement under (A) and (B) before
payment of such taxes; for purposes of determining the amount of
the Gross-Up, Executive shall be deemed to pay federal, state and
local income taxes at the highest marginal rate of taxation in
effect in the calendar year in which the reimbursement is made.
Amounts due under this subsection shall be paid as soon as
administratively practicable, but in no event later than ninety
(90) days after the date of the sale of Executive’s principal
residence.
Notwithstanding the foregoing, in the event the
Executive is reimbursed, entitled to reimbursement, or is paid any
amounts by an entity or entities other than NBTB or Pennstar Bank
or any affiliate or successor thereof (the “Third
Party”), for any amounts for which Executive has received, or
is entitled to receive, reimbursement under (A) or (B) above with
respect to the sale of his principal residence or any Gross-Up
under (C) above, the Executive agrees:
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(1)
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with regard to
amounts already paid by NBTB or Pennstar Bank or any affiliate or
successor thereof (hereinafter referred to collectively as the
“Company”), the Executive shall notify the Company of
all amounts received or due from the Third Party, and shall
reimburse the Company in an amount equal to the amount so received
or due from the Third Party up to the amount the Company paid to
the Executive under (A), (B), and (C) above; and
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(2)
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with regard to
amounts due but not yet paid by the Company to the Executive, the
Executive shall notify the Company of any amounts received or due
from the Third Party, and the Executive agrees that the Company
shall reduce the amount due under (A), (B), and (C) above by the
amount the Executive has been paid or is entitled to be paid by the
Third Party up to the amount due the Executive from the
Company.
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(d) Any
provision of this section 2 to the contrary notwithstanding, in the
event that the employment of Executive with NBTB is terminated in
any situation described in section 3 of the change-in-control
letter agreement dated July 23, 2001 between NBTB and Executive
(the "Change-in-Control Agreement") so as to entitle Executive to a
severance payment and other benefits described in section 3 of the
Change-in-Control Agree-ment, then Executive shall be entitled to
receive the following, and no more, under this section
2:
(i) any salary
payable pursuant to section 3(a)(i) hereof which shall have accrued
as of the Termination Date;
(ii) such rights
as Executive shall have accrued as of the Termination Date under
the terms of any plans or arrange-ments in which he participates
pursuant to section 3(b) hereof, any right to reimbursement for
expenses accrued as of the Termination Date payable pursuant to
section 3(h) hereof, and the right to receive the cash equivalent
of paid annual leave and sick leave accrued as of the Termination
Date pursuant to section 3(d) hereof; and
(iii) the severance
payment and other benefits provided in the Change-in-Control
Agreement; and
(iv) if, within
eighteen (18) months following the Termination Date, Executive
should sell his principal residence in the Scranton RMA and
relocate to a place outside of the Scranton RMA, (A) reimbursement
for any shortfall between the net proceeds on the sale of his
principal residence and the purchase price plus improvements,
including direct, necessary and reasonable transaction costs
incurred in connection with such purchase, as determined by the
finance division of NBT Bank, for such residence, and including
direct, necessary and reasonable expenses, as determined by the
finance division of NBT Bank, incurred to prepare the residence for
sale, (B) reimbursement for direct, necessary and reasonable
expenses, as determined by the finance division of NBT Bank,
incurred in connection with the sale of such residence not already
included as part of the reimbursement under (A) above, and (C) the
Gross-Up, the intent being that the net amount retained by the
Exe
