As
filed with the Securities and Exchange Commission on March 24, 2009
Registration
No. 333-
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NBT
BANCORP INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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16-1268674
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(State
or other jurisdiction of incorporation or
organization)
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(I.R.S.
Employer Identification
Number)
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52
South Broad Street
Norwich,
New York 13815
Telephone:
(607) 337-2265
(Address,
including zip code, and telephone number,
including
area code, of registrant’s principal executive offices)
____________________________
Martin
A. Dietrich
President
& Chief Executive Officer
NBT
Bancorp Inc.
52
South Broad Street
Norwich,
New York 13815
Telephone:
(607) 337-2265
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
____________________________
Copies
to:
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Stuart
G. Stein, Esq.
Hogan
& Hartson LLP
555
Thirteenth Street, N.W.
Washington,
D.C. 20004
Telephone:
(202) 637-8575
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Approximate date of commencement of
proposed sale to the public: From time to time after the effective date
of this Registration Statement.
If the only securities being registered
on this form are being offered pursuant to dividend or interest reinvestment
plans, please check the following box. £
If any of the securities being
registered on this form are to be offered on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check
the following box. ý
If this form is filed to register
additional securities for an offering pursuant to Rule 462(b) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. £
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. £
If this form is a registration
statement pursuant to General Instruction I.D. or a post-effective amendment
thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following box. ý
If this form is a post-effective
amendment to a registration statement filed pursuant to General Instruction I.D.
filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following
box. £
Indicate by check mark whether the
registrant is a large accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of “large accelerated
filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
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Large
accelerated filer ý
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Accelerated
filer £
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Non-accelerated
filer £
(Do
not check if a smaller reporting company)
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Smaller
reporting company £
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CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of Securities to be Registered
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Amount
to be Registered
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Proposed
Maximum Offering Price Per Security
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Proposed
Maximum Aggregate Offering Price
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Amount
of Registration Fee
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Common
stock, par value $0.01 per share
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(1)
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(1)
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(1)
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(1)
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(1)
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An
indeterminate number of shares of common stock is being registered as may
from time to time be sold at indeterminate prices. In accordance with Rule
456(b) and 457(r) under the Securities Act, NBT Bancorp Inc. hereby defers
payment of the registration fee required in connection with the
registration statement.
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__________________________
PROSPECTUS
NBT
BANCORP INC.
Common
Stock
We may
offer shares of our common stock from time to time. In addition, this prospectus
may be used to offer common stock for the account of other persons.
This
prospectus summarizes the general terms of the shares of common stock that we
may offer. The specific terms of any common stock offered will be described in
one or more supplements to this prospectus, one or more post-effective
amendments to the registration statement of which this prospectus is a part or
in documents incorporated by reference into this prospectus. You
should read both this prospectus and the applicable prospectus supplement before
you invest in our common stock.
We or any
selling securityholders may offer and sell our common stock to or through one or
more underwriters, dealers and agents, or directly to purchasers, on a
continuous or delayed basis.
Our
common stock is listed on the NASDAQ Global Select Market under the symbol
“NBTB.”
Investing
in our common stock involves risks. See “Risk Factors” on page 3 and,
if applicable, any risk factors described in any accompanying prospectus
supplement and in our Securities and Exchange Commission filings that are
incorporated by reference into this prospectus.
These
securities are not deposits or obligations of a bank or savings association and
are not insured or guaranteed by the Federal Deposit Insurance Corporation or
any other governmental agency.
Neither
the Securities and Exchange Commission nor any state securities commission or
regulatory authority has approved or disapproved of these securities or passed
upon the accuracy or adequacy of this prospectus. Any representation to the
contrary is a criminal offense.
The date
of this prospectus is March 24, 2009.
TABLE OF CONTENTS
You
should rely only on the information provided in this prospectus and in any
prospectus supplement, including the information incorporated by reference. We
have not authorized anyone to provide you with different or additional
information. If anyone provides you with different or additional information,
you should not rely on it. We are not making an offer to sell our common stock
in any jurisdiction where the offer or sale is not permitted. You should not
assume that the information in this prospectus, or any supplement to this
prospectus, is accurate at any date other than the date indicated on the cover
page of these documents. Our business, financial condition, results of
operations and prospects may have changed since those dates.
ABOUT THIS PROSPECTUS
This prospectus is part of an automatic
shelf registration statement that we filed with the Securities and Exchange
Commission (the “SEC”) in accordance with General Instruction I.D. of Form S-3,
using a “shelf” registration process for the delayed offering and sale of
securities pursuant to Rule 415 under the Securities Act of 1933, as amended.
Under the shelf process, we may, from time to time, sell the offered common
stock described in this prospectus in one or more offerings. This prospectus
provides you with a general description of the common stock we may offer. Each
time we sell our common stock, we will provide a prospectus supplement
containing specific information about the terms of the common stock being
offered and the specific manner in which they will be offered. The prospectus
supplement may also add, update or change information contained in this
prospectus.
This prospectus and any accompanying
prospectus supplement do not contain all of the information included in the
registration statement. We have omitted parts of the registration statement in
accordance with the rules and regulations of the SEC. For further information,
we refer you to the registration statement on Form S-3 of which this prospectus
is a part, including its exhibits. Statements contained in this prospectus and
any accompanying prospectus supplement about the provisions or contents of any
agreement or other document are not necessarily complete. If the SEC’s rules and
regulations require that an agreement or document be filed as an exhibit to the
registration statement, please see that agreement or document for a complete
description of these matters.
You should read this prospectus
together with any additional information you may need to make your investment
decision. You should also read and carefully consider the information in the
documents we have referred you to in “Where You Can Find More Information”
below. Information incorporated by reference after the date of this prospectus
may add, update or change information contained in this prospectus. Any
information in such subsequent filings that is inconsistent with this prospectus
will supersede the information in this prospectus or any earlier prospectus
supplement.
All
references in this prospectus to “NBT Bancorp,” “we,” “us,” “our” or similar
references mean NBT Bancorp Inc. and its successors, and include our
consolidated subsidiaries where the context so requires.
WHERE YOU CAN FIND MORE INFORMATION
We are
subject to the information requirements of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), and file annual, quarterly and special reports,
proxy statements and other information with the SEC. You may read and copy any
materials we file with the SEC at the Public Reference Room of the SEC at Room
1580, 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on
the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.
In addition, we file many of our documents electronically with the SEC, and you
may access those documents over the Internet. The SEC maintains a website that
contains reports, proxy and information statements and other information
regarding issuers that file electronically with the SEC. The address of the
SEC’s web site is http://www.sec.gov. Documents we have filed with the SEC are
also available on our website at http://www.nbtbancorp.com. Except as expressly
stated herein, information contained on our web site does not constitute a part
of this prospectus supplement and is not incorporated by reference
herein.
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE
The SEC
allows us to “incorporate by reference” information into this prospectus. This
means that we can disclose important information to you by referring you to
another document filed separately with the SEC. The information incorporated by
reference is considered to be a part of this prospectus, except for any
information that is superseded by other information that is included in or
incorporated by reference into this document.
This
prospectus incorporates by reference the documents listed below that we have
previously filed with the SEC. These documents contain important information
about us:
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our
Annual Report on Form 10-K for the year ended December 31, 2008,
as filed with the SEC on March 2,
2009;
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our
Current Report on Form 8-K, as filed with the SEC on March 24, 2009;
and
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the
description of our common stock contained in our Registration Statement on
Form 8-A, including any amendments or reports filed for the purposes of
updating such description.
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We incorporate by reference any
additional documents that we may file with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Exchange Act (other than those furnished pursuant to
Item 2.02 or Item 7.01 of Form 8-K or other information
“furnished” to the SEC), from the date of the registration statement of which
this prospectus is part until the termination of the offering of the securities.
These documents may include annual, quarterly and current reports, as well as
proxy statements. Any material that we later file with the SEC will
automatically update and replace the information previously filed with the SEC.
These documents are available to you without charge. See “Where You Can Find
More Information.”
You may
obtain copies of these documents, other than exhibits, free of charge by
contacting NBT Bancorp Inc., 52 South Broad Street, Norwich, New York 13815,
Attention: Corporate Secretary or by telephone at (607) 337-2265.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the information
included or incorporated by reference in them includes forward-looking
statements within the meaning of the Private Securities Litigation Reform Act of
1995. Forward-looking statements often include the words “believes,” “expects,”
“anticipates,” “estimates,” “forecasts,” “intends,” “plans,” “targets,”
“potentially,” “probably,” “projects,” “outlook” or similar expressions or
future conditional verbs such as “may,” “will,” “should,” “would” and “could.”
These forward-looking statements are subject to known and unknown risks,
uncertainties and other factors that could cause the actual results to differ
materially from the statements, including:
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changes
in general business, industry or economic conditions or
competition;
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changes
in any applicable law, rule, regulation, policy, guideline or practice
governing or affecting financial holding companies and their subsidiaries
or with respect to tax or accounting principals or
otherwise;
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adverse
changes or conditions in capital and financial
markets;
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changes
in interest rates;
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higher
than expected costs or other difficulties related to integration of
combined or merged businesses;
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the
inability to realize expected cost savings or achieve other anticipated
benefits in connection with business combinations and other
acquisitions;
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changes
in the quality or composition of our loan and investment
portfolios;
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increased
competition;
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deposit
attrition;
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changes
in the cost of funds, demand for loan products or demand for financial
services; and
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other
economic, competitive, governmental or technological factors affecting our
operations, markets, products, services and
prices.
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Some of
these and other factors are discussed in our annual and quarterly reports filed
with the SEC. Such developments could have an adverse impact on our financial
position and our results of operations.
The forward-looking statements are
based upon management’s beliefs and assumptions and are made as of the date of
this prospectus. We undertake no obligation to publicly update or revise any
forward-looking statements included or incorporated by reference in this
prospectus or to update the reasons why actual results could differ from those
contained in such statements, whether as a result of new information, future
events or otherwise, except to the extent required by federal securities laws.
In light of these risks, uncertainties and assumptions, the forward-looking
events discussed in this prospectus or in the incorporated documents might not
occur, and you should not put undue reliance on any forward-looking
statements.
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RISK
FACTORS
Investing in our common stock involves
risks. We urge you to carefully consider the risk factors described in our SEC
filings that are incorporated by reference in this prospectus and, if
applicable, in any accompanying prospectus supplement used in connection with an
offering of our common stock before making an investment decision. Additional
risks may be included in the applicable prospectus supplement or free writing
prospectus which we have authorized, or which may be incorporated by reference
into this prospectus or such prospectus supplement. These risks could adversely
affect our business, financial condition, results of operations or prospects and
could cause the price of our common stock to decline.
ABOUT NBT BANCORP INC.
NBT
Bancorp Inc. is a registered financial holding company incorporated in the State
of Delaware in 1986, with its principal headquarters located in Norwich, New
York. On a consolidated basis, at December 31, 2008 we had assets of $5.3
billion and stockholders’ equity of $431.8 million. NBT Bancorp is the parent
holding company of NBT Bank, N.A. (the “Bank”), NBT Financial Services, Inc.
(“NBT Financial”), NBT Holdings, Inc. (“NBT Holdings”), CNBF Capital Trust I,
NBT Statutory Trust I and NBT Statutory Trust II (the “Trusts”). Through the
Bank and NBT Financial, we are focused on community banking operations. Through
NBT Holdings, we operate Mang Insurance Agency, LLC, a full-service insurance
agency. The Trusts were organized to raise additional regulatory capital and to
provide funding for certain acquisitions. Our primary business consists of
providing commercial banking and financial services to our customers in our
market area. Our principal assets are all of the outstanding shares of common
stock of our direct subsidiaries, and our principal sources of revenue are the
management fees and dividends we receive from the Bank, NBT Financial and NBT
Holdings.
The Bank is a full service commercial
bank formed in 1856, which provides a broad range of financial products to
individuals, corporations and municipalities throughout the central and upstate
New York and northeastern Pennsylvania market areas. The Bank conducts business
through two geographic operating divisions, NBT Bank and Pennstar
Bank.
At year end 2008, the NBT Bank division
had 84 divisional offices and 114 automated teller machines (ATMs), located
primarily in central and upstate New York. At December 31, 2008, the NBT Bank
division had total loans and leases of $2.9 billion and total deposits of $3.1
billion.
At year end 2008, the Pennstar Bank
division had 38 divisional offices and 57 ATMs, located primarily in
northeastern Pennsylvania. At December 31, 2008, the Pennstar Bank division had
total loans and leases of $761.0 million and total deposits of $827.2
million.
Our common stock is listed on the
NASDAQ Global Select Market under the symbol “NBTB.” Our principal executive
offices are located at 52 South Broad Street, Norwich, New York 13815. Our
telephone number is (607) 337-2265. Our website is
http://www.nbtbancorp.com. References to our website and those of our
subsidiaries are not intended to be active links and the information on such
websites is not, and you must not consider the information to be, a part of this
prospectus supplement.
USE OF PROCEEDS
Unless we specify another use in the
applicable prospectus supplement, we will use the net proceeds from the sale of
any securities offered by us for general corporate purposes, which may include
repayment of indebtedness or acquisitions. We will not receive proceeds from
sales of securities by selling securityholders except as may otherwise be stated
in an applicable prospectus supplement.
DESCRIPTION OF COMMON STOCK
The following description is a general
summary of the terms of our common stock. The description below does not purport
to be complete and is subject to and qualified in its entirety by reference to
our Restated Certificate of Incorporation and Bylaws, as amended, referred to
herein as our “certificate of incorporation” and “bylaws,” respectively. The
description herein does not contain all of the information that you may find
useful or that may be important to you. You should refer to the provisions
of our certificate of incorporation and bylaws because they, and not the
summaries, define the rights of holders of shares of our common stock. You can
obtain copies of our certificate of incorporation and bylaws by following the
directions under the heading “Where You Can Find More Information.”
General
Our certificate of incorporation
provides the authority to issue 50,000,000 shares of common stock, par value
$0.01 per share. At February 15, 2009, there were 32,648,164 shares of common
stock issued and we had outstanding stock options granted to directors, officers
and other employees for 1,896,549 shares of our common stock.
Each share of our common stock has
the same relative rights and is identical in all respects to each other share of
our common stock. Our common stock is non-withdrawable capital, is not of an
insurable type and is not insured by the Federal Deposit Insurance Corporation
or any other governmental entity.
Voting
Rights
Holders of our common stock are
entitled to one vote per share on each matter properly submitted to stockholders
for their vote, including the election of directors. Holders of our common stock
do not have the right to cumulate their votes for the election of directors,
which means that the holders of more than 50% of the shares of common stock
voting for the election of directors can elect 100% of the directors standing
for election at any meeting if they choose to do so. In that event, the holders
of the remaining shares voting for the election of directors will not be able to
elect any person or persons to our board of directors at that
meeting.
Liquidation
Rights
The holders of our common stock and
the holders of any class or series of stock entitled to participate with the
holders of our common stock as to the distribution of assets in the event of any
liquidation, dissolution or winding-up of NBT Bancorp, whether voluntary or
involuntary, will become entitled to participate equally in the distribution of
any of our assets remaining after we have paid, or provided for the payment of,
all of our debts and liabilities and after we have paid, or set aside for
payment, to the holders of any class of stock having preference over the common
stock in the event of liquidation, dissolution or winding-up, the full
preferential amounts, if any, to which they are entitled.
Dividends
The holders of our common stock and
any class or series of stock entitled to participate with the holders of our
common stock are entitled to receive dividends declared by our board of
directors out of any assets legally available for distribution. The board of
directors may not declare, and we may not pay, dividends or other distributions,
unless we have paid or the board has declared or set aside all accumulated
dividends and any sinking fund, retirement fund or other retirement payments on
any class of stock having preference as to payments of dividends over our common
stock. As a holding company, our ability to pay distributions is affected by the
ability of our subsidiaries to pay dividends. The ability of our bank
subsidiary, and our ability, to pay dividends in the future is, and could in the
future be further, influenced by bank regulatory requirements and capital
guidelines.
Miscellaneous
The holders of our common stock have
no preemptive or conversion rights for any shares that may be issued. Our common
stock is not subject to additional calls or assessments, and all shares of our
common stock currently outstanding are fully paid and nonassessable. All shares
of common stock offered pursuant to a prospectus supplement, or issuable upon
conversion, exchange or exercise of any preferred stock or other convertible
securities, will, when issued, be fully paid and non-assessable, which means
that the full purchase price of the shares will have been paid and the holders
of the shares will not be assessed any additional monies for the
shares.
Delaware
Law and Certain Certificate of Incorporation and Bylaw Provisions
We are subject to the provision of
Section 203 of the Delaware General Corporation Law. Section 203 restricts
transaction which may be entered into by a corporation and some of its
stockholders. Section 203 provides, in essence, that a stockholder acquiring
more than 15% of the outstanding voting stock of a corporation subject to the
statute and that person’s affiliates and associates, referred to in this section
as an interested stockholder, but less than 85% of its shares may not engage in
specified business combinations with the corporation for a period of three years
after the date on which the stockholder became an interested stockholder unless
before that date the corporation’s board of directors approved either the
business combination or the transaction in which the stockholder became an
interested stockholder or at or after that time the business combination is
approved by the corporation’s board of directors and authorized at an annual or
special meeting of stockholders by an affirmative vote of at least 66 2/3% of
the outstanding voting stock of the corporation not owned by the interested
stockholder. Section 203 defines the term business combination to include a wide
variety of transactions with or caused by an interested stockholder, including
mergers, consolidations, specified types of asset sales, specified issuances of
additional shares to the interested stockholder, transactions with the
corporation which increase the proportionate interest of the interested
stockholder or transaction in which the interested stockholder receives
specified other benefits.
Our certificate of incorporation and
bylaws provide that:
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the
board of directors be divided into three classes, each class as nearly as
equal as possible, with each serving staggered, three-year
terms;
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directors
may be removed only for cause and only by the affirmative vote of at least
a majority in voting power of the stockholders entitled to vote and to be
present at the meeting called for such purpose;
and
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a
vacancy on the board of directors may be filled by stockholders at a
stockholder’s meeting. In addition, directors may fill vacancies by a
majority vote of the directors then in office. The director chosen by the
current directors to fill the vacancy will hold office until the next
election of directors, at which time the stockholders shall fill the
vacancy for the remainder of the unexpired term. Directors may also fill
newly created directorships other than an increase by more than three in
the number of directors.
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The classification of our board of
directors and the limitations on removal of directors and filling of vacancies
could have the effect of making it more difficult for a third party to acquire,
or of discouraging a third party from, acquiring us.
Our bylaws also provide
that:
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any
action required or permitted to be taken by the shareholders at an annual
meeting or special meeting of stockholders may only be taken if it is
properly brought before such meeting;
and
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special
meetings of the stockholders may be called by our board of directors or
the chairman of the board of directors, or if there is none, by the
President, or by the holders of at least 50% of all shares entitled to
vote at the meeting.
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Our bylaws provide that, in order for
any stockholder business (other than stockholder nominations of directors) to be
considered “properly brought” before a meeting, a stockholder must comply with
requirements regarding advance notice to us. For business to be properly brought
before a meeting by a stockholder, it must be a proper matter for stockholder
action under the Delaware General Corporation Law, the stockholder must have
given timely notice thereof in writing to our President, and the notice must
comply with the procedures set forth in our bylaws. Except for stockholder
proposals submitted in accordance with the federal proxy rules as to which the
requirements specified therein shall control, a stockholder’s notice, to be
timely, must be delivered to or mailed and received at our principal executive
offices at least 60 days but no more than 90 days prior to the anniversary date
of the immediately preceding annual meeting of stockholder; provided, however,
that in the event the date of the annual meeting is more than 30 days before or
more than 60 days after such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the close of business on the 90th
day prior to such annual meeting and not later than the close of business on the
later of the 60th day prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such meeting is first made by
us.
Our bylaws also provide that subject to
the rights of holders of any class or series of capital stock then outstanding,
nominations for the election or re-election of directors at a meeting of the
stockholders may be made by any stockholder entitled to vote in the election of
directors generally who complies with the procedures set forth in our bylaws and
who is a stockholder of record at the time notice is delivered to our President.
Any stockholder entitled to vote in the election of directors generally may
nominate one or more persons for election or re-election as directors at a
meeting called for such purpose only if timely notice of such stockholder’s
intent to make such nomination or nominations has been given in writing to our
President. To be timely, a stockholder’s notice must be delivered to or received
by our President within ten days following the day on which public disclosure of
the date of any stockholders’ meeting called for the election of directors is
given.
The purpose of requiring stockholders
to give us advance notice of nominations and other stockholder business is to
afford our board of directors a meaningful opportunity to consider the
qualifications of the proposed nominees and the advisability of the other
proposed business and, to the extent deemed necessary or desirable by our board
of directors, to inform stockholders and make recommendations about such
qualifications or business, as well as to provide a more orderly procedure for
conducting meetings of stockholders. Although our bylaws do not give our board
of directors any power to disapprove stockholder nominations for the election of
directors or proposals for action, they may have the effect of precluding a
contest for the election of directors or the consideration of stockholder
proposals if proper procedures are not followed and of discouraging or deterring
a third party from conducting a solicitation of proxies to elect its own slate
of directors or to approve its own proposal without regard to whether
consideration of such nominees or proposals might be harmful or beneficial to us
and our stockholders. These provisions could also delay stockholder actions
which are favored by the holders of a majority of our outstanding voting
securities until the next stockholders’ meeting.
Our bylaws provide that a majority of
our board of directors, or stockholders holding a majority of the outstanding
shares entitled to vote, may make, amend or repeal the bylaws. Our bylaws permit
the stockholders to adopt, approve or designate bylaws that may not be amended,
altered or repealed except by a specified percentage in interest of all
stockholders or of a particular class of stockholders. Amendments to our
certificate of incorporation generally require the approval of the board of
directors and the approval of holders of a majority of the outstanding stock
entitled to vote upon the amendment. Any amendment to those provisions of the
certificate of incorporation that relate to business combinations involving NBT
Bancorp or a subsidiary and a major stockholder or affiliate require the
affirmative vote of at least 80% of the outstanding shares of voting stock, and
if there is a major stockholder, such 80% vote must include the affirmative vote
of at least 80% of the outstanding shares of voting stock held by stockholders
other than the major stockholder and its affiliates.
Stockholder
Rights Plan
In October 2004, we adopted a
stockholder rights plan designed to ensure that any potential acquirer of NBT
Bancorp would negotiate with our board and that all of our stockholders would be
treated equitably in the event of a takeover attempt. At that time, we paid a
dividend of one Preferred Share Purchase Right for each outstanding share of our
common stock. Similar rights are attached to each share of our common stock
issued after November 15, 2004. Under the rights plan, the rights will not be
exercisable until a person or group acquires beneficial ownership of 15% or more
of our outstanding common stock, or begins a tender or exchange offer for 15% or
more of our common stock. Additionally, until the occurrence of such event, the
rights are not severable from our common stock and therefore, the rights will
transfer upon the transfer of shares of our common stock. Upon the occurrence of
such events, each right entitles the holder to purchase one one-thousandth of a
share of our preferred stock at a price of $70. The rights plan also provides
that upon the occurrence of certain specified events the holders of the rights
will be entitled to acquire additional equity interests in NBT Bancorp or in the
acquiring entity, such interests having a market value of two times the right’s
exercise price of $70. The rights expire October 24, 2014, and are redeemable in
whole, but not in part, at our option prior to the time they become exercisable,
for a price of $0.001 per right. The rights have certain anti-takeover effects.
The rights may cause substantial dilution to a person or group that attempts to
acquire NBT Bancorp on terms not approved by our board. The rights should not
interfere with any merger or other business combination approved by our
board.
NASDAQ
Listing
Our
common stock is listed on the NASDAQ Global Select Market under the symbol
“NBTB.”
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is NBT Bank, N.A.
LEGAL MATTERS
In connection with particular offerings
of the common stock in the future, and if stated in the applicable prospectus
supplement, the validity of the common stock may be passed upon for us by
Hogan & Hartson LLP, and for the underwriters or agents by counsel
named in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements
of NBT Bancorp as of December 31, 2008 and 2007, and for each of the years in
the three-year period ended December 31, 2008, and management’s assessment of
the effectiveness of internal control over financial reporting as of December
31, 2008 have been incorporated by reference herein and in the registration
statement in reliance upon the reports of KPMG LLP, an independent registered
public accounting firm, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing.
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and
Distribution.
The
following table sets forth the estimated expenses in connection with the
issuance and distribution of the securities being registered, other than
underwriting discounts and commissions. Other than the SEC registration fee, all
the amounts listed are estimates.
|
SEC
Registration Fee
|
$ | (1 | ) | |
|
Accounting
Fees and Expenses
|
95,000 | |||
|
Legal
Fees and Expenses
|
125,000 | |||
|
Printing
and Engraving Expenses
|
25,000 | |||
|
Miscellaneous
Expenses
|
10,000 | |||
|
Total
|
$ | (2 | ) |
|
(1)
|
In
accordance with Rules 456(b) and 457(r), the registrant is deferring
payment of all registration fees which may subsequently be
payable.
|
|
(2)
|
This
information is unknown at the time of
filing.
|
Item 15. Indemnification of Officers and
Directors.
Reference is made to the provisions of
Delaware General Corporation Law (“DGCL”), Article 6 of the Bylaws of NBT
Bancorp and Article 12 of the Certificate of Incorporation of NBT
Bancorp.
NBT Bancorp 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 have 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.
Our bylaws contain provisions providing
that we 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 Bancorp, or is or was serving at the request of NBT
Bancorp as a director of another corporation, partnership, joint venture, trust,
or other enterprise, to the maximum extent authorized by DGCL.
Our Certificate of Incorporation
provides that a director of NBT Bancorp shall not be personally liable to NBT
Bancorp 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 Bancorp 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 16. Exhibits
|
(a)
|
Exhibits
|
The
Exhibit Index filed herewith is incorporated herein by
reference.
|
(b)
|
Financial
Statement Schedules
|
None.
Item 17. Undertakings.
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
of 1933;
(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. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee”
table in the effective 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 (i), (ii) and (iii) do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is
part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
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.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement;
and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x)
for the purpose of providing the information required by Section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that
no statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(5) That,
for the purpose of determining liability of the Registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned Registrant undertakes that in a primary offering of securities of
the undersigned Registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned
Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(6) That,
for purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
(7)
Insofar as indemnification for liabilities arising under the Securities Act of
1933 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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the 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 whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such
issue.
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-3 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 this 24th day of March, 2009.
|
NBT
BANCORP INC.
|
|||
|
By:
|
/s/ Martin A. Dietrich
|
||
|
Martin
A. Dietrich
|
|||
|
President
and Chief Executive Officer
|
|||
POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Martin A. Dietrich
and Michael J. Chewens his or her true and lawful attorney-in-fact and agent,
each acting alone, with full power of substitution and resubstitution, for him
or her and in his or her name, place and stead, in any and all capacities, to
sign any or all amendments (including post-effective amendments and registration
statements filed pursuant to Rule 462 under the Securities Act of 1933) to the
Registration Statement on Form S-3, and to file the same, with all exhibits
thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his or her 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 as of March 24, 2009 by the following persons in the capacities
indicated.
|
Signature
|
Title
|
|
|
/s/ Martin A. Dietrich
|
President,
Chief Executive
|
|
|
Martin
A. Dietrich
|
Officer
and Director (Principal Executive Officer)
|
|
|
/s/ Michael J. Chewens
|
Senior
Executive Vice President, Chief Financial Officer and
Secretary
|
|
|
Michael
J. Chewens
|
(Principal
Financial Officer and Principal Accounting Officer)
|
|
|
/s/ Richard Chojnowski
|
Director
|
|
|
Richard
Chojnowski
|
||
|
/s/ Patricia T. Civil
|
Director
|
|
|
Patricia
T. Civil
|
||
|
/s/ Daryl R. Forsythe
|
Director
|
|
|
Daryl
R. Forsythe
|
||
|
/s/ William C. Gumble
|
Director
|
|
|
William
C. Gumble
|
||
|
/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/ Joseph A.
Santangelo
|
Director
|
|
|
Joseph
A. Santangelo
|
||
|
/s/ Robert A.
Wadsworth
|
Director
|
|
|
Robert
A. Wadsworth
|
EXHIBIT
INDEX
|
Exhibit
No.
|
Description
|
|
|
1.1
|
Form
of Underwriting Agreement.*
|
|
|
4.1
|
Restated
Certificate of Incorporation of NBT Bancorp Inc. (filed as Exhibit 3.1 to
the Form 10-K of NBT Bancorp Inc., filed on March 2, 2009 and incorporated
herein by reference)
|
|
|
4.2
|
Bylaws
of NBT Bancorp Inc. (filed as Exhibit 3.2 to the Form 10-K of NBT Bancorp
Inc., filed on March 2, 2009 and incorporated herein by
reference).
|
|
|
4.3
|
Rights
Agreement, dated as of November 15, 2004, between NBT Bancorp Inc. and
Registrar and Transfer Company, as Rights Agent (filed as Exhibit 4.1 to
Registrant’s Form 8-K, filed on November 18, 2004 and incorporated herein
by reference).
|
|
|
4.4
|
Certificate
of Designation of the Series A Junior Participating Preferred Stock
(filed as Exhibit A to Exhibit 4.1 of the Registration’s Form 8-K, file
Number 0-14703, filed on November 18, 2004, and incorporated herein by
reference).
|
|
|
4.5
|
Specimen
common stock certificate for NBT Bancorp Inc.’s common stock (filed as
Exhibit 4.3 to the Form S-4/A of NBT Bancorp Inc., filed on December 27,
2005 and incorporated herein by reference).
|
|
|
Opinion
of Hogan & Hartson LLP regarding the legality of the securities being
registered.
|
||
|
Consent
of KPMG LLP.
|
||
|
23.2
|
Consent
of Hogan & Hartson LLP (included in Exhibit 5.1).
|
|
|
24.1
|
Power
of Attorney (included on signature
page).
|
|
*
|
To
be filed by post-effective amendment or as an exhibit to a Form 8-K or
other filing made by the registrant in connection with any offering of
securities registered hereby.
|