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Exhibit 2
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this"Agreement") is entered into as of
October 4, 2000, by and between NBT Bancorp Inc., a Delaware corporation,
("NBT") and BSB Bancorp, Inc., a Delaware corporation ("BSB") (NBT and BSB
together referred to herein as the"Parties").
WHEREAS, BSB and NBT entered into a Confidentiality Agreement, dated
as of March 16, 2000 (the"Confidentiality Agreement");
WHEREAS, NBT and BSB entered into an Agreement and Plan of Merger,
dated as of April 19, 2000 and amended as of May 17, 2000 (the"Merger
Agreement");
WHEREAS, in connection with the Merger Agreement, BSB and NBT entered
into the BSB Bancorp, Inc. Stock Option Agreement, dated as of April 19, 2000
(the "BSB Stock Option Agreement");
WHEREAS, in connection with the Merger Agreement, NBT and BSB entered
into the NBT Bancorp Inc. Stock Option Agreement, dated as of April 19, 2000
(the "NBT Stock Option Agreement");
WHEREAS, the boards of directors of NBT and BSB have determined that
the Merger Agreement and the transactions contemplated thereby are no longer in
the best interests of the Parties;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the Parties hereby agree as
follows:
1. Termination of Agreements.
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a) Pursuant to Section 7.01(a) of the Merger Agreement, the Merger
Agreement is hereby terminated, and forthwith shall be void and of no further
force or effect. No provision of the Merger Agreement shall survive such
termination, including, without limitation, Sections 5.06, 5.07, 5.08, 5.11,
7.02 and Article VIII of the Merger Agreement, notwithstanding any provision of
the Merger Agreement to the contrary.
b) Each of the BSB Stock Option Agreement and the NBT Stock Option
Agreement is hereby terminated, and shall be void and of no further force or
effect.
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2. Confidentiality Agreement.
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The Confidentiality Agreement shall remain in effect for 18 months
from the date of this Agreement.
3. Employees.
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Except with the prior written consent of the other party, no Party
shall knowingly employ any person who is now employed by the other Party for a
period of 18 months from the date of this Agreement.
4. Mutual Release.
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Except for the provisions of this Agreement and the Confidentiality
Agreement, BSB and its affiliates on the one hand, and NBT and its affiliates on
the other, hereby remise, release and forever discharge the other and its
affiliates, directors, officers, employees, agents and representatives and their
heirs, executors, beneficiaries, administrators, successors and assigns from any
and all manner of action and actions, cause and causes of action, suits, debts,
dues, sums of money, accounts, contracts, controversies, agreements,
liabilities, promises, damages, judgments, claims or demands of whatsoever kind
or nature, in law or in equity relating to any statements, acts or omissions by
such other Party and its agents (whether actual or apparent), employees,
representatives and affiliates, whether in their individual or representative
capacities, which either BSB and NBT or their respective affiliates may have
against the other for actions taken or events occurring in connection with the
negotiation, execution and termination of the Merger Agreement, the BSB Stock
Option Agreement and the NBT Stock Option Agreement and the transactions
contemplated thereby.
5. Representations and Warranties of the Parties. Each of BSB and NBT
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hereby makes the following representations and warranties to the other Party,
each of which is being relied upon by the other Party as a material inducement
to enter into and perform this Agreement:
a) The execution, delivery and performance of this Agreement has been
duly authorized by all necessary corporate action of such Party; and
b) This Agreement has been duly and validly executed and delivered by
such Party and it constitutes the valid and binding obligation of such Party,
enforceable in accordance with its terms, except as enforcement may be limited
by general principles of equity whether applied in a court of law or a court of
equity and by bankruptcy, insolvency and similar laws affecting creditors'
rights and remedies generally.
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6. Mutual Non-Disparagement.
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a) BSB. Subsequent to entering into this Agreement, each of BSB and
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its affiliates shall not make to any regulator, customer, supplier, or employee
of NBT or its affiliates, or to NBT stockholders, or to the general public, any
statement that disparages NBT or its affiliates or any of their respective
officers, directors, shareholders, employees and affiliates, except if such
statement is required by law or legal process.
b) NBT. Subsequent to entering into this Agreement, each of NBT and
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its affiliates shall not make to any regulator, customer, supplier, or employee
of BSB or its affiliates, or to BSB stockholders, or to the general public, any
statement that disparages BSB or its affiliates or any of their respective
officers, directors, shareholders, employees and affiliates, except if such
statement is required by law or legal process.
7. Expenses.
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The Parties will share equally the expenses listed on Schedule A
attached hereto.
8. Press Releases; Regulatory Contacts.
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Promptly following the execution of this Agreement, NBT and BSB each
will issue a press release announcing the termination of the Merger Agreement
and the transactions contemplated thereby, provided that each Party will have
the opportunity to review the other Party's press release prior to issuance.
Legal counsel for NBT and BSB jointly will contact the Department of
Justice and the Office of the Comptroller of the Currency to inform these
agencies of the termination of the Merger Agreement. Furthermore, NBT and BSB
shall cooperate with each other and take the necessary steps to terminate the
agreement reached with the Department of Justice on August 15, 2000 with regard
to the divestiture of BSB's Norwich branch office.
9. Miscellaneous.
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a) This Agreement constitutes the entire agreement between the
Parties with respect to the subject matter hereof, and it supersedes all prior
oral or written agreements, commitments, or understandings with respect to such
matters; and
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b) This Agreement may be signed in counterparts, none of which need
contain the signature of all the Parties and each of which shall be deemed to be
an original.
c) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of law.
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[Signature page follows]
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IN WITNESS WHEREOF, the Parties have executed this Termination
Agreement as of the date first above written.
BSB BANCORP, INC.
By: /s/ Thomas L. Thorn
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Name: Thomas L. Thorn
Title: Acting President and Chief
Executive Officer
NBT BANCORP INC.
By: /s/ Daryl R. Forsythe
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Name: Daryl R. Forsythe
Title: President and Chief Executive
Officer
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Schedule A
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Promptly after entry into this Termination Agreement, NBT and BSB
will commence working together in good faith and as expeditiously as is
reasonably practicable to identify and liquidate the costs and expenses
described in the next paragraph. From time to time during the next 30 days NBT
and BSB will update this Schedule A in good faith to more accurately enumerate
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and describe these costs and expenses.
The costs and expenses referred to in the previous paragraph are
those actual costs and expenses payable to third party vendors reasonably
incurred or committed to by or on behalf of either NBT or BSB (or the affiliates
of either) in connection with the transactions contemplated by the Merger
Agreement, or to settle obligations reasonably entered into in such connection,
either (a) to integrate the operations and systems of NBT and BSB, or (b) to
provide for the information system needs of the combined NBT and BSB (against
which shall be netted the expenses reasonably attributable to products or
services that may be used productively to benefit the party that incurred those
expenses), or (c) the SEC and OCC filing fees.
