ex10_4.htm


    
      

    

    Exhibit
10.4

    


    EMPLOYMENT
AGREEMENT

    


    This
EMPLOYMENT AGREEMENT
(the "Agreement") made and entered into as of the 23rd day
of April 2007, and
amended and restated as of November 5, 2009, by and between JEFFREY M. LEVY
("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 of commercial
banking 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 agreements
hereinafter set forth, intending to be legally bound, the parties agree as
follows:

    


    1.    
        Employment; Responsibilities
and Duties.

    


    (a)           NBTB
hereby agrees to employ Executive and to cause NBT Bank and any successor
organization to NBT Bank to employ Executive, and Executive hereby agrees to
serve as an executive vice president of NBTB and president of commercial banking
of NBT Bank, and of any successor organization to NBTB or NBT Bank, as
applicable, during the Term of Employment (as
defined in Section 2 below).  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.  During the Term of Employment, Executive shall report directly
to the chief executive officer of NBTB.

    


    (b)           Executive
shall devote his full working time and best efforts to the performance of his
responsibilities and duties hereunder.  During the Term of Employment,
Executive shall not, without the prior written consent of the chief executive
officer of NBTB, render services in any capacity,
whether 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
investments in compliance with any NBTB limits or
policies, and (iii) with the prior permission of the chief executive
officer of NBTB,  hold such other
directorships or part-time academic appointments or have such other business
affiliations as would otherwise be prohibited under this section
1.


    
      
         


      

      
        1

        
          

        

      

      
         


      

    


    2.   
         Term of
Employment.

    


    (a)           The
term of this Agreement ("Term of Employment") shall be the period commencing on
the date of this Agreement (the "Commencement Date") and continuing until the
Termination Date, which shall mean the earliest to occur of:

    


    (i)     
       January 1, 2010, provided, however,
that on January 1, 2008 and on each January 1 thereafter, the remaining Term of Employment shall be extended by
one additional year(to a total of three
years) ;

    


    (ii)           the
death of Executive;

    


    (iii)           Executive's
inability to perform his duties hereunder, reason
of any medically determinable physical or mental impairment that can be expected
to result in death or can be expected to last for a continuous period of not
less than 12 months; 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 NBT 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 specifically 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 representation 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 responsibilities or duties; or


    
      
         


      

      
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    (v)   
        Executive's resignation from his
position as executive vice president of NBTB and president of commercial banking
of NBT 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 material reduction in duties,
responsibilities or position other than for "Cause," or a material decrease in the amount or level of
Executive's salary or benefits from the amount or level established in section 3
hereof.  Notwithstanding the foregoing,
if there exists (without regard to this sentence) an event or condition that
constitutes Good Reason, NBTB shall have thirty (30) days from the date on which
Executive gives the written notice thereof to cure such event or condition (such
notice to be given from Executive within ninety (90) days from the date the
event or condition first occurs) and, if NBTB does so, such event or condition
shall not constitute Good Reason hereunder.  Further, an event or
condition shall cease to constitute Good Reason thirty (30) days after the end
of the cure period.

     

    A Termination Date shall not be deemed to have occurred
for purposes of any provision of this Agreement providing for the payment of any
amounts or benefits upon or following a termination of employment unless such
termination is also a “separation from service” within the meaning of Section
409A of the Internal Revenue Code of 1986, as amended (the “Code”) and, for
purposes of any such provision of this Agreement, any references to a
“termination,” “termination of employment” or like terms shall mean a
“separation from service.”

     

    (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, in consideration for Executive’s covenant
not to compete and other post-termination obligations, be entitled to
receive, upon the occurrence 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 arrangements 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 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 reasons set
forth in section 2(a)(vi) or 2(a)(vii) hereof, and upon execution of a Separation Agreement and
Release  in
substantially the form attached hereto, which shall be incorporated by
reference into this Agreement and become a part hereof, Executive shall be entitled to receive
the following:


    
      
         


      

      
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    (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, on a monthly
basis;

    


    (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 Termination
Date payable pursuant to section 3(h) hereof, and the right to receive the cash
equivalent of paid annual 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 Albany MSA as determined by the United
States Census Bureau (“Albany MSA”) and relocate to a place outside of the
Albany MSA, (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 the payment made to Executive under (C) shall be paid an additional amount
(the “Gross-Up”) such that the net amount retained by 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
after giving consideration to the deductibility of state taxes for federal
income taxes. 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 Executive is reimbursed, entitled to reimbursement,
or is paid any amounts by an entity or entities other than NBTB or NBT 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, Executive agrees:


    
      
         


      

      
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              (1)

            	
              with
      regard to amounts already paid by NBTB or NBT Bank or any affiliate or
      successor thereof (hereinafter referred to collectively as the “Company”),
      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 Executive under (A), (B), and (C) above;
    and

            


    

     

    
      	
              (2)

            	
              with
      regard to amounts due but not yet paid by the Company to Executive,
      Executive shall notify the Company of any amounts received or due from the
      Third Party, and Executive agrees that the Company shall reduce the amount
      due under (A), (B), and (C) above by the amount Executive has been paid or
      is entitled to be paid by the Third Party up to the amount due Executive
      from the Company.

            


    

    


    Regulatory
Limits.  Notwithstanding any
other provision in this Agreement NBTB may terminate or suspend this Agreement
and the employment of Executive hereunder, as if such termination were for
Cause, to the extent required by the applicable federal or state statue related
to banking, deposit insurance or bank or savings institution holding companies
or by regulations or orders issued by the Office of the Controller of the
Currency, the Federal Deposit Insurance Corporation or any other state or
federal banking regulatory agency having jurisdiction over NBT Bank or NBTB, and
no payment shall be required to be made to or for the benefit of Executive under
this Agreement to the extent such payment is prohibited by applicable law,
regulation or order issued by a banking agency or a court of competent
jurisdiction; provided, that it shall be NBTB’s burden to prove that any such
action was so required.

    


    (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 sections 1(b) and 3 of the
change-in-control letter agreement dated April 23, 2007, as amended effective as
of November 5, 2009, 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 Agreement, 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 arrangements 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 leave accrued as of the Termination Date
pursuant to section 3(d) hereof;

    


    (iii)           the
severance payment and other benefits provided in the Change- in-Control
Agreement; and


    
      
         


      

      
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    (iv)           if,
within eighteen (18) months following the Termination Date, Executive should
sell his principal residence in the Albany MSA and relocate to a place outside
of the Albany MSA, (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 NBT Bank, 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) the Gross-Up, the intent
being that the net amount retained by 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 Executive is reimbursed, entitled to reimbursement,
or is paid any amounts by a 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,
Executive agrees:

     

    
      	
              (1)

            	
              with
      regard to amounts already paid by the Company, 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 Executive under
      (A), (B), and (C) above; and

            


    

    


    
      	
              (2)

            	
              with
      regard to amounts due but not yet paid by the Company to Executive,
      Executive shall notify the Company of any amounts received or due from the
      Third Party, and Executive agrees that the Company shall reduce the amount
      due under (A), (B), and (C) above by the amount Executive has been paid or
      is entitled to be paid by the Third Party up to the amount due Executive
      from the Company.

            


    

    


    (e)           Notwithstanding
any other payment schedule provided herein to the contrary, if Executive is
deemed on the Termination Date a “specified employee” within the meaning of that
term under Code Section 409A(a)(2)(B), then each of the following shall
apply:

    


    (i)           With
regard to any payment that is considered deferred compensation under Code
Section 409A payable on account of a “separation from service,” such payment
shall be made on the date which is the earlier of (A) the expiration of the six
(6)- month period measured from the date of Executive’s “separation from
service”, and (B) the date of Executive’s death (the “Delay Period”) to the
extent required under Code Section 409A.  Upon the expiration of the
Delay Period, all payments delayed pursuant to this Section (whether they would
have otherwise been payable in a single sum or in installments in the absence of
such delay) shall be paid to Executive in a lump sum, and all remaining payments
due under this Agreement shall be paid or provided in accordance with the normal
payment dates specified for them herein; and


    
      
         


      

      
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    (ii)            To
the extent that any benefits to be provided during the Delay Period is
considered deferred compensation under Code Section 409A provided on account of
a “separation from service,” and such benefits are not otherwise exempt from
Code Section 409A, Executive shall pay the cost of such benefits during the
Delay Period, and the Company shall reimburse Executive, to the extent that such
costs would otherwise have been paid by the Company or to the extent that such
benefits would otherwise have been provided by the Company at no cost to
Executive, the Company’s share of the cost of such benefits upon expiration of
the Delay Period, and any remaining benefits shall be reimbursed or provided by
the Company in accordance with the procedures specified
herein.

    


    (f)           To
the extent that severance payments or benefits pursuant to this Agreement are
conditioned upon the execution and delivery by Executive of a release of claims,
Executive shall forfeit all rights to such payments and benefits unless such
release is signed and delivered (and no longer subject to revocation, if
applicable) within sixty (60) days following the date of Executive’s Termination
Date.  If the foregoing release is executed and delivered and no
longer subject to revocation as provided in the preceding sentence, payments or
benefits shall commence upon the first scheduled payment date immediately after
the date the release is executed and no longer subject to revocation (the
“Release Effective Date”).  The first such cash payment shall include
payment of all amounts that otherwise would have been due prior to the Release
Effective Date under the terms of this Agreement applied as though such payments
commenced immediately upon Executive’s Termination Date, and any payments made
thereafter shall continue as provided herein.  The delayed benefits
shall in any event expire at the time such benefits would have expired had such
benefits commenced immediately following Executive’s Termination
Date.

     

    
      The Company may provide, in its sole discretion, that
Executive may continue to participate in any benefits delayed pursuant to this
section during the period of such delay, provided that Executive shall bear the
full cost of such benefits during such delay period.  Upon the date
such benefits would otherwise commence pursuant to this Section, the Company may
reimburse Executive the Company’s share of the cost of such benefits, to the
extent that such costs would otherwise have been paid by the Company or to the
extent that such benefits would otherwise have been provided by the Company at
no cost to Executive, in each case had such benefits commenced immediately upon
Executive’s Termination Date.  Any remaining benefits shall be
reimbursed or provided by the Company in accordance with the schedule and
procedures specified herein.

      
         

        (iii)           For
purposes of Code Section 409A, Executive’s right to receive any installment
payment pursuant to this Agreement shall be treated as a right to receive a
series of separate and distinct payments.

         

        3.    
        Compensation.  For
the services to be performed by Executive for NBTB and its affiliates under this
Agreement, Executive shall be compensated in the following manner:

        


        (a)           Salary.  During
the Term of Employment:


        
          
             


          

          
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        (i)           NBTB
shall pay Executive a salary, which, on an annual basis, shall be one hundred ninety eight thousand six hundred dollars
($198,600) commencing on December 12, 2006.  Salary commencing
on January 1, 2008 will be negotiated between Executive and the CEO of NBTB
based on recommendations from the Compensation and Benefits Committee and in
line with compensation for comparable positions in companies of similar size and
structure, but in no case less than $198,600.00.   Salary
shall be payable in accordance 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)           Executive
shall be eligible to be considered for performance bonuses commensurate with
Executive’s title and salary grade in accordance with the compensation policies
of NBTB with respect to executive personnel in effect as of the Commencement Date or as they may
be modified by NBTB from time to time.

        


        (b)           Employee Benefit Plans or
Arrangements.  During the Term of Employment, Executive shall
be entitled to participate in all employee benefit plans of NBTB, as presently
in effect as of the Commencement Date or as
they may be modified by NBTB from time to time, under such terms as may be
applicable to officers of Executive's rank employed by NBTB or its affiliates,
including, without limitation, plans providing retirement benefits, stock
options, restricted stock or stock units,
medical insurance, life insurance, disability insurance, and accidental death or
dismemberment insurance, provided that there be no duplication of such benefits
as are provided under any other provision of this Agreement.

        


        (c)           Equity Awards.  Executive will be eligible for awards under NBTB’s
Omnibus Incentive Plan as applicable to officers of Executive’s
rank.

        


        (d)            Vacation and Sick
Leave.  During the Term of Employment, Executive shall be
entitled to paid annual vacation periods and sick leave in accordance with the
policies of NBTB applicable to officers of
Executive’s rank employed by NBTB or its affiliates and as in effect
as of the Commencement Date or as may be modified by NBTB from time to time as
may be applicable to officers of Executive's rank employed by NBTB or its
affiliates, but in no event less than four weeks of paid vacation per
year.

        


        (e)           Automobile.  During
the Term of Employment, Executive shall be entitled to the use of an automobile
owned by NBTB or an affiliate of NBTB, the make, model, and year of which
automobile shall be appropriate to an officer of Executive's rank and which will
be replaced every two years (or earlier if the accumulated mileage exceeds
50,000 miles).   Executive shall be responsible for all expenses
of ownership and use of any such automobile, subject to reimbursement of
expenses for business use in accordance with section 3(h).

        


        (f)           Country Club
Dues.  During the Term of Employment, Executive shall be
reimbursed for dues and assessments incurred in relation to Executive's
membership at a country club mutually agreed upon by the chief executive officer
of NBTB and Executive.  Executive shall
be responsible for any income taxes associated with the personal use of such
club membership.


        
          
             


          

          
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        (g)           Withholding.  All
compensation to be paid to Executive hereunder shall be subject to applicable federal, state, and local taxes and
all other required
withholdings.  Executive hereby acknowledges and agrees that he
is responsible for all taxes in connection with any benefits, fringe benefits,
or perquisites provided under this Agreement and he is not entitled to a Gross
Up , except as specifically provided under Paragraph 2(c)(iii) or 2(d)(iv) of
this Agreement, or as may be provided under the
terms of the Change-in-Control Agreement.

         

        (h)           Expenses.  During
the Term of Employment, Executive shall bereimbursed for reasonable travel and
other expenses incurred or paid by Executive in connection with the performance
of his services under this Agreement, upon presentation of expense statements or
vouchers or such other supporting information as may from time to time be
requested by NBTB, in accordance with such
policies of NBTB as are in effect as of the Commencement Date and as may be
modified by NBTB from time to time, under such terms as may be applicable to
officers of Executive's rank employed by NBTB or its affiliates.  All expenses or other reimbursements under
this Agreement shall be made on or prior to the last day of the taxable year
following the taxable year in which such expenses were incurred by Executive
(provided that if any such reimbursements constitute taxable income to
Executive, such reimbursements shall be paid no later than March 15th of the calendar year following the calendar year in
which the expenses to be reimbursed were incurred), and no such reimbursement or
expenses eligible for reimbursement in any taxable year shall in any way affect
the expenses eligible for reimbursement in any other taxable
year.

        


        
          4.     
       Confidential Business
Information; Non-Competition.

        

        


        (a)           Executive
acknowledges that certain business methods, creative techniques, and technical
data of NBTB and its affiliates and the like are deemed by NBTB to be and are in
fact confidential business information of NBTB,
NBT Bank, or any of their affiliates
or are entrusted to third parties.  Such confidential information
includes but is not limited to procedures, methods, sales relationships
developed while in the service of NBTB or its affiliates, knowledge of customers
and their requirements, marketing plans, marketing information, studies,
forecasts, and surveys, competitive analyses, mailing and marketing lists, new
business proposals, lists of vendors, consultants, and other persons who render
service or provide material to NBTB or NBT Bank or their affiliates, and
compositions, ideas, plans, and methods belonging to or related to the affairs
of NBTB or NBT Bank or their affiliates
(collectively, “Confidential Information”).  In this regard,
NBTB asserts proprietary rights in all of its Confidential Information and that of its
affiliates, except for such information as
is clearly in the public domain.  Notwithstanding the foregoing,
information that would be generally known or available to persons skilled in
Executive's fields shall be considered to be "clearly in the public domain" for
the purposes of the preceding sentence.  Executive acknowledges that in connection with his employment with
NBTB, Executive has had or may have access to such Confidential Information, and
he agrees that he will not disclose or divulge to any third party, except
as may be required by his duties hereunder, by law, regulation, or order of a
court or government authority, or as directed by NBTB, nor shall he use to the
detriment of NBTB or its affiliates or use in any business or on behalf of any
business competitive with or substantially similar to any business of NBTB or
NBT Bank or their affiliates, any Confidential
Information obtained during the course of his employment by
NBTB.  In the event that disclosure is
required by law, regulation, or order of a court or government authority,
Executive agrees that as soon as practical and in any event no later than 30
days after receiving notice that Executive is required to make such disclosure,
Executive will provide notice to the Company of such requirement by law,
regulation, order of a court or government authority.  This Section
4(a) shall not be construed as restricting Executive from disclosing such
information to the employees of NBTB or NBT Bank or their
affiliates.  On or before the Termination Date, Executive shall
promptly deliver to NBTB any and all Confidential
Information in his possession, whether
tangible, electronic or intangible form.


        
          
             


          

          
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        (b)           Executive
acknowledges that in the course of employment with NBTB, Executive has
had access to and gained knowledge
of the trade secrets and other
Confidential Information of NBTB, NBT Bank, or their affiliates; has had
substantial relationships with the customers of NBTB, NBT Bank, or their
affiliates; and has performed services of special, unique, and extraordinary
value to NBTB, NBT Bank, or their affiliates.  Therefore, Executive
agrees that notwithstanding the termination of this Agreement for any reason,
from the Commencement Date until the first anniversary of the Termination Date,
the Executive shall not, directly or indirectly, on behalf of himself or any
other person or entity, without the written consent of NBTB:

        


        (i) become an officer, employee, consultant, director,
or trustee of any savings bank, savings and loan association, savings and loan
holding company, bank or bank holding company, where such position entails
providing services to such company in any city, town, or county in which NBTB or
NBT Bank or their affiliates has an office, determined as of the Termination
Date, where Executive’s position or service for such business is competitive
with or otherwise similar to any of Executive’s positions or services for NBTB
or NBT Bank;

        


        (ii) induce or solicit any customer, supplier, or agent
of NBTB, NBT Bank, or their affiliates about whom Executive has gained
Confidential Information or with whom Executive, by virtue of his employment
with NBTB, has established a relationship or had frequent contact, to terminate
or curtail an existing business or commercial relationship with NBTB, NBT Bank,
or their affiliates;

        


        (iii)  induce or solicit any customer or
supplier of NBTB, NBT Bank, or their affiliates about whom Executive has gained
Confidential Information or with whom Executive, by virtue of his employment
with NBTB, has established a relationship or had frequent contact, to provide or
purchase goods or services similar to the goods or services provided by it to or
purchased by it from NBTB, NBT Bank, or their affiliates; provided however, that
the provisions of this clause (iii) only apply to those persons or entities who
are customers or suppliers of NBTB, NBT Bank, or their affiliates as of the
Termination Date or who were customers of NBTB, NBT Bank, or their affiliates
during the one-year period prior to the Termination Date; or

        


        (iv) solicit, induce, recruit, offer employment to,
hire, or take any other action intended, or that a reasonable person acting in
like circumstances would expect, to have the effect of causing any officer or
employee of NBTB, NBT Bank, or their affiliates, to terminate his or
her employment.


        
          
             


          

          
            10

            
              

            

          

          
             


          

        


        (c)           Executive
acknowledges and agrees that irreparable injury will result to NBTB in the event
of a breach of any of the provisions of this section 4 (the "Designated
Provisions") and that NBTB will have no adequate remedy at law with respect
thereto.  Accordingly, in the event of a material breach of any
Designated Provision, and in addition to any other legal or equitable remedy
NBTB may have, NBTB shall be entitled to the entry of a preliminary and
permanent injunction (including, without limitation, specific performance) by a
court of competent jurisdiction in Chenango County, New York, or elsewhere, to
restrain the violation or breach thereof by Executive, and Executive submits to
the jurisdiction of such court in any such action.

        


        (d)           It
is the desire and intent of the parties that the provisions of this section 4
shall be enforced to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is
sought.  Accordingly, if any particular provision of this section 4
shall be adjudicated to be invalid or unenforceable, such provision shall be
deemed amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such deletion to apply only with respect to the operation of such
provision in the particular jurisdiction in which such adjudication is
made.  In addition, should any court determine that the provisions of
this section 4 shall be unenforceable with respect to scope, duration, or
geographic area, such court shall be empowered to substitute, to the extent
enforceable, provisions similar hereto or other provisions so as to provide to
NBTB, to the fullest extent permitted by applicable law, the benefits intended
by this section 4.

        


        5.           Life
Insurance.  In light of the unusual abilities and experience of
Executive, NBTB (or NBT Bank or their
affiliates) in its discretion may apply for and procure as owner and for its own
benefit insurance on the life of Executive, in such amount and in such form as
NBTB may choose.  NBTB shall make all payments for such insurance and
shall receive all benefits from it.  Executive shall have no interest
whatsoever in any such policy or policies but, at the request of NBTB, shall
submit to medical examinations and supply such information and execute such
documents as may reasonably be required by the insurance company or companies to
which NBTB has applied for insurance.

        


        6.           Representations and
Warranties.

        


        (a)           Executive
represents and warrants to NBTB that his execution, delivery, and performance of
this Agreement will not result in or constitute a breach of or conflict with any
term, covenant, condition, or provision of any commitment, contract, or other
agreement or instrument, including, without limitation, any other employment
agreement, to which Executive is or has been a party.

        


        (b)           Executive
shall indemnify, defend, and hold harmless NBTB for, from, and against any and
all losses, claims, suits, damages, expenses, or liabilities, including court
costs and counsel fees, which NBTB has incurred or to which NBTB may become
subject, insofar as such losses, claims, suits, damages, expenses, liabilities,
costs, or fees arise out of or are based upon any failure of any representation
or warranty of Executive in section 6(a) hereof to be true and correct when
made.


        
          
             


          

          
            11

            
              

            

          

          
             


          

        


        7.           Notices.  All
notices, consents, waivers, or other communications which are required or
permitted hereunder shall be in writing and deemed to have been duly given if
delivered personally or by messenger, transmitted by telex or telegram, by
express courier, or sent by registered or certified mail, return receipt
requested, postage prepaid.  All communications shall be addressed to
the appropriate address of each party as follows:

        


        
          If to
NBTB:

          


          NBT
Bancorp Inc.

          52 South
Broad Street

          Norwich,
New York  13815

          


          Attention:          Chief
Executive Officer

          


          


          With a
required copy to:

          


          Stuart G.
Stein, Esq.

          Hogan
& Hartson L.L.P.

          555
13th
Street, N.W.

          Washington,
D.C. 20004-1109

          Fax:
(202) 637-5910

          


          If to
Executive:

          


          Mr.
Jeffrey M. Levy

          701
Waldens Pond Road

          Albany,
New York  12203

           

        

        All such
notices shall be deemed to have been given on the date delivered, transmitted,
or mailed in the manner provided above.

        


        8.           Assignment.  Neither
party may assign this Agreement or any rights or obligations hereunder without
the consent of the other party.

        


        9.           Governing
Law.  This Agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of New York, without giving
effect to the principles of conflict of law thereof.  The parties
hereby designate Chenango County, New York to be the proper jurisdiction and
venue for any suit or action arising out of this Agreement.  Each of
the parties consents to personal jurisdiction in such venue for such a
proceeding and agrees that it may be served with process in any action with
respect to this Agreement or the transactions contemplated thereby by certified
or registered mail, return receipt requested, or to its registered agent for
service of process in the State of New York.  Each of the parties
irrevocably and unconditionally waives and agrees, to the fullest extent
permitted by law, not to plead any objection that it may now or hereafter have
to the laying of venue or the convenience of the forum of any action or claim
with respect to this Agreement or the transactions contemplated thereby brought
in the courts aforesaid.


        
          
             


          

          
            12

            
              

            

          

          
             


          

        


        10.           Entire
Agreement.  This Agreement and any other agreements expressly incorporated by
reference herein constitute the entire understanding between NBTB and
Executive relating to the subject matter hereof.  Any previous
agreements or understandings between the parties hereto or between Executive and
NBTB or any of its affiliates regarding the subject matter hereof, including
without limitation the terms and conditions of employment, compensation,
benefits, retirement, competition following employment, and the like, are merged
into and superseded by this Agreement.  Neither this Agreement nor any
provisions hereof can be modified, changed, discharged, or terminated except by
an instrument in writing signed by the party against whom any waiver, change,
discharge, or termination is sought.

        


        11.           Illegality;
Severability.

        


        (a)           Anything
in this Agreement to the contrary notwithstanding, this Agreement is not
intended and shall not be construed to require any payment to Executive which
would violate any federal or state statute or regulation, including without
limitation the "golden parachute payment regulations" of the Federal Deposit
Insurance Corporation codified to Part 359 of title 12, Code of Federal
Regulations.

        


        (b)           If
any provision or provisions of this Agreement shall be held to be invalid,
illegal, or unenforceable for any reason whatsoever:

        


        (i)           the
validity, legality, and enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of any section of this
Agreement containing any such provision held to be invalid, illegal, or
unenforceable) shall not in any way be affected or impaired thereby;
and

        


        (ii)           to
the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any section of this Agreement containing any
such provisions held to be invalid, illegal, or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal, or unenforceable.

        


        12.           409A Compliance.           The
intent of the parties is that payments and benefits under this Agreement comply
with Code Section 409A and the regulations and guidance promulgated thereunder
and, accordingly, to the maximum extent permitted, this Agreement shall be
interpreted to be in compliance therewith.  In no event whatsoever
shall NBTB be liable for any additional tax, interest of penalty that may be
imposed on Executive by Code Section 409A or damages for failing to comply with
Code Section 409A.  Notwithstanding any other provision of this
Agreement to the contrary, in no event shall any payment under this Agreement
that constitutes “deferred compensation” for purposes of Code Section 409A be
subject to offset, counterclaim or recoupment by any other amount payable to the
Executive unless otherwise permitted by Code Section
409A.


        
          
             


          

          
            13

            
              

            

          

          
             


          

        


        13.           Arbitration.  Subject
to the right of each party to seek specific performance (which right shall not
be subject to arbitration), if a dispute arises out of or is in any way related to this Agreement, or
the asserted breach thereof, such dispute
shall be referred to arbitration before the
American Arbitration Association the (“AAA”)
pursuant to the AAA’s National Rules for the Resolution of Employment Disputes
(the “Arbitration Rules”).  A dispute subject to the provisions
of this section will exist if either party notifies the other party in writing
that a dispute subject to arbitration exists and states, with reasonable
specificity, the issue subject to arbitration (the "Arbitration
Notice").  The parties agree that, after the issuance of the
Arbitration Notice, the parties will try in good faith between the date of the
issuance of the Arbitration Notice and the date the dispute is set for
arbitration to resolve the dispute by mediation in
accordance with the Arbitration Rules.  If the dispute is not
resolved by the date set for arbitration,
then any controversy or claim arising out of this Agreement or the asserted breach hereof shall be resolved by
binding arbitration and judgment upon any award rendered by arbitrator(s) may be
entered in a court having jurisdiction. In the event any claim or dispute
involves an amount in excess of $100,000, either party may request that the
matter be heard and resolved by a single arbitrator.  The arbitrator
shall have the same power to compel the attendance of witnesses and to order the
production of documents or other materials and to enforce discovery as could be
exercised by a United States District Court judge sitting in Chenango County,
New York.  In the event of any arbitration, each party shall have a
reasonable right to conduct discovery to the same extent permitted by the
Federal Rules of Civil Procedure, provided that discovery shall be concluded
within 90 days after the date the matter is
set for arbitration.  The
arbitrator or arbitrators shall have the power to award reasonable attorneys’ fees to the prevailing
party.  Any provisions in this
Agreement to the contrary notwithstanding, this section shall be governed by the
Federal Arbitration Act and the parties have entered into this Agreement
pursuant to such Act.

        


        14.           Costs of
Litigation.  In the event litigation is commenced to enforce
any of the provisions hereof, or to obtain declaratory relief in connection with
any of the provisions hereof, the prevailing party shall be entitled to recover
reasonable attorney's fees.  In the event this Agreement is asserted
in any litigation as a defense to any liability, claim, demand, action, cause of
action, or right asserted in such litigation, the party prevailing on the issue
of that defense shall be entitled to recovery of reasonable attorney's
fees.

        


        15.           Company Right to
Recover.  If the Company is required to prepare an
accounting restatement due to the material noncompliance of the Company as a
result of misconduct, with regard to any financial reporting requirement under
the securities laws, and Executive is subject to automatic forfeiture under
Section 304 of the Sarbanes-Oxley Act of 2002 and Executive knowingly engaged in
the misconduct, was grossly negligent in engaging in the misconduct, knowingly
failed to prevent the misconduct or was grossly negligent in failing to prevent
the misconduct, Executive shall reimburse the Company the amount of any payment
earned or accrued during the 12-month period following the first public issuance
or filing with the United States Securities and Exchange Commission (whichever
first occurred) of the financial document that contained such material
noncompliance.

        


        Notwithstanding anything in this Agreement, if the
Company is required to prepare an accounting restatement, Executive will forfeit
any payments made based on the achievement of pre-established performance goals
that are later determined, as a result of the accounting restatement, not to
have been achieved.


        
          
             


          

          
            14

            
              

            

          

          
             


          

        


        16.           Affiliation.  A
company will be deemed to be "affiliated" with NBTB or NBT Bank according to the
definition of "Affiliate" set forth in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended.

        


        17.           Headings.  The
section and subsection headings herein have been inserted for convenience of
reference only and shall in no way modify or restrict any of the terms or
provisions hereof.

        


        IN
WITNESS WHEREOF, the parties hereto executed or caused this Agreement to be
executed as of the day and year first above written.

        


        
          	 
      	
                  NBT
      BANCORP INC.

                
	 
      	 
      	 
      
	 
      	
                  By:

                	
                  /S/ Martin A. Dietrich

                
	 
      	 
      	
                  Martin
      A. Dietrich

                
	 
      	 
      	
                  President
      and

                
	 
      	 
      	
                  Chief
      Executive Officer

                
	 
      	 
      	 
      
	 
      	
                  JEFFREY
      M. LEVY

                
	 
      	 
      	 
      
	 
      	
                  /S/ Jeffrey M.
  Levy

                


        


        
          
             


          

          
            15

            
              

            

          

          
             


          

        


        SEPARATION
AGREEMENT AND RELEASE

        


        I.         
   In consideration of receipt and acceptance of the separation
payments described in the Employment Agreement and
listed on Appendix A between NBT BANCORP INC. (“NBTB”) and Jeffrey M.
Levy (“Executive”), dated November 5, 2009 (the “Employment Agreement”), into which this Separation Agreement and Release
(“Separation Agreement”) is incorporated by reference, Executive, on behalf of
himself and his agents, heirs, executors, administrators, successors, and
assigns, unconditionally and generally releases NBTB and NBT Bank,
National Association (“NBT Bank”), their respective current and former owners,
officers, directors, parents, affiliates, subsidiaries, related entities, agents
and employees, and the heirs, executors, administrators, successors and assigns
of all of the foregoing (collectively, “Releasee”), from or in connection with,
and Executive hereby waives and/or settles, with prejudice, any and all complaints, causes of action, suits,
controversies, or any liability, claims,
demands, or damages, known or unknown and
of any nature whatsoever and which Executive ever had, now has or shall or may
have as of [                        ],
the date of this Separation Agreement including without limitation, those
arising directly or indirectly pursuant to or out of any aspect of Executive’s
employment or termination from employment
with NBTB, NBT Bank or any other Releasee.

        


        II.         
   Specifically, without limitation of the foregoing, the release
and waiver of claims under this Separation Agreement shall include and apply to
any rights and/or claims (i) arising under any contract or employment
arrangement, express or implied, written or oral; (ii) for wrongful dismissal or
termination of employment; (iii) arising under any applicable federal, state,
local or other statutes, laws, ordinances, regulations or the like, or case law,
that relate to employment or employment practices and/or specifically, that
prohibit discrimination based upon age, race, religion, sex, national origin,
disability or any other unlawful bases, including without limitation, Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act of 1990, the Age Discrimination in Employment
Act, the Older Workers Benefit Protection Act, the
Civil Rights Act of 1866, the Equal Pay Act of 1963, the Family Medical
Leave Act of 1993, the Fair Labor Standards Act,
the Employee Retirement Income Security Act of 1974, Executive Order 11246, the
Worker Adjustment and Retraining Notification Act, all as amended, and
any other statutes, orders, laws, ordinances, regulations applicable to
Employee’s employment, of any state or city in which any Releasee is subject to
jurisdiction, and/or any political subdivision thereof,; (iv) based upon any other federal, state or
local statutes, orders, laws, ordinances, regulations, case law, public policy, or common law or the
like; (v) concerning recruitment, hiring,
discharge, promotions, transfers, employment status, right to reemployment,
wages, bonus or incentive pay, severance pay, stock or stock options, employment
benefits (including, without limitation, sick or other leave, medical,
disability, life, or any other insurance, 401(k), pension, other retirement
plans or benefits, or any other fringe benefits), workers’ compensation,
intentional or negligent misrepresentation and/or infliction of emotional
distress, interference with contract, fraud, libel, slander, defamation, invasion of privacy or loss of
consortium, together with any and all tort, contract, or other claims which have
been or might have been asserted by Executive or on his behalf in any suit,
charge of discrimination, or claim against the Releasee; and (vi) for
damages, including without limitation, punitive or compensatory damages, or for
attorneys’ fees, expenses, costs, wages, injunctive or equitable
relief.


        
          
             


          

          
            16

            
              

            

          

          
             


          

        


        III.           Executive
expressly understands and acknowledges that it is possible that unknown losses
or claims exist or that present losses may have been underestimated in amount or
severity, and Executive explicitly took that into account in determining the
amount of consideration to be paid for the giving of the release in this
Separation Agreement, and a portion of said consideration and the mutual
covenants were given in exchange for a full satisfaction and discharge of such
claims.

        


        IV.           Executive
and NBT Bank acknowledge that the above release and waiver of claims shall not
apply to the obligation of NBT Bank to make payments (if any) of any vested
benefit under NBT Bank’s tax-qualified
employee benefit plans nor to Executive’s right to continue healthcare insurance
under the provisions of the Consolidated Omnibus Budget Reconciliation Act of
1985.

        


        V.    
       Executive represents and warrants that
he has not filed or commenced any complaints, claims, actions or proceeding of
any kind against any Releasee with any federal, state or local court or any
administrative or regulatory body.  Except for Executive’s right to
bring a proceeding pursuant to the Older Workers Benefit Protection Act to
challenge the release of claims in this Separation Agreement, and consistent
with the EEOC Enforcement Guidance On Non-Waivable Employee Rights Under
EEOC-Enforced Statutes dated April 11, 1997, and otherwise to the fullest extent
permitted by law, Executive agrees not to commence or participate as a party in
any proceeding in any court or forum against any Releasee which is based upon
any act, omission or occurrence up to and including the date of the execution of
this Separation Agreement.  Executive further agrees not to encourage
or participate in any action or proceeding brought by any person (except a
government agency) against any Releasee.  In the event any government
agency seeks to obtain any relief on behalf of Executive with regard to any
claim released by Executive, Executive agrees not to accept any relief or award
from such proceeding.

        


        VI.           This
Separation Agreement is not and shall not be construed as an admission by any
Releasee or Executive of any wrongdoing or illegal acts or omissions and each
party expressly denies that they engaged in any wrongdoing or illegal or acts or
omissions.  Executive shall not, except as may be required by law,
make any oral or written negative, disparaging or adverse statements,
suggestions or representations of or concerning NBT Bank or any
Releasee.

        


        VII.           Executive
agrees to cooperate reasonably with and to be readily available to NBT Bank to
assist in any matter, including government agency investigations, court
litigation or potential litigation, about which Executive may have
knowledge.  If Executive receives a subpoena or other legal process
relating in any way to same, Executive immediately will provide NBT Bank notice
of the contact or the service of such subpoena or other legal process, and shall
cooperate with NBT Bank in responding.

        


        VIII.         Except
as prohibited by law, each Releasee shall be excused from any obligation to make
payment of the separation payments in the
Employment Agreement in the event that  paragraphs I through IV of
this Separation Agreement are determined to be void or unenforceable, in whole
or in part; or Executive is found to have made a material misstatement in any
term, condition, representation or acknowledgement in this Separation Agreement,
in either of which event Executive shall also be liable for any damages and
costs suffered or incurred by any Releasee by reason of such misstatement or
breach.


        
          
             


          

          
            17

            
              

            

          

          
             


          

        


        IX.          This
Separation Agreement shall be incorporated by reference into the Employment
Agreement and shall be made a part thereof.

        


        X.      
      Executive agrees and acknowledges
that:

        


        (a) With respect to the General Release in Section II
hereof, Executive agrees and understands that he is specifically releasing all
claims under the Age Discrimination in Employment Act, as amended, 29 U.S.C. §
621 et seq.  Executive acknowledges that he has read and understands
this Agreement and executes it voluntarily and without
coercion;

        


        (b)  Executive
has been advised by NBT Bank to consult with an attorney before executing this
Separation Agreement and has been given
twenty-one (21) days to review this Separation Agreement and to consider whether
to sign this Separation Agreement.  Executive may elect to sign this Separation
Agreement prior to the expiration of the twenty-one day consideration period
specified herein, and Executive agrees that if he elects to do so, such election
is knowing and voluntary and comes after full opportunity to consult with an
attorney;

        


        (c)   Executive has the right to
revoke this Separation Agreement within the seven (7) day period following the
date Executive signs this Separation Agreement (the “Revocation Period”) and any
revocation shall be made by providing a signed notice in writing, delivered
personally or by fax to the Human Resources Director at NBT Bancorp, 52 South
Broad Street, Norwich, New York, 13815 no later
than 5:00 p.m. on the seventh calendar day following his execution of this
Separation Agreement;

        


        (d)  This Separation Agreement will not
be effective or enforceable, and the separation payments under the Employment
Agreement are not required and shall not be delivered or paid, until Executive
has delivered a signed, notarized original of this Separation Agreement to the
Human Resources Director at NBT Bancorp, 52 South Broad Street, Norwich, New
York, 13815 and the Revocation Period has expired without revocation of this
Separation Agreement.  It is not
necessary that any Releasee sign this Separation Agreement following Executive’s
full and complete execution of it for it to become fully effective and
enforceable;

        


        (e) Executive relied solely on his own judgment and/or
that of this attorney regarding the consideration for and the terms of this
Separation Agreement and is signing this Separation Agreement knowingly and
voluntarily of his own free will;

        


        (f) Executive is not entitled to the separation payments
under the Employment Agreement unless he agrees to and honors the terms of the
terms of this Separation Agreement; and

        


        (g) Executive has read and
understands this Separation Agreement and further understands that, subject to
the limitations contained herein, it includes a general release of any and all
known and unknown, foreseen or unforeseen claims presently asserted or otherwise
arising through the date of his singing of this Separation Agreement that he may
have against any Releasee.


        
          
             


          

          
            18

            
              

            

          

          
             


          

        


        XI.           Executive
understands all of the terms of this Separation Agreement, and agrees that such
terms are fair, reasonable and are not the result of any
fraud, duress, coercion, pressure or undue influence exercised by or on behalf
of any Releasee; and Executive has agreed to and entered into this Separation
Agreement and all of its terms, knowingly, freely and voluntarily.

        


        XII.          There are no other agreements of any nature between any
Releasee and Executive with respect to the matters discussed in this Separation
Agreement with respect to the matters discussed in this Separation Agreement,
except as expressly stated herein, and in signing this Separation Agreement,
Executive is not relying on any agreements or representation, except those
expressly contained in this Separation Agreement.

        


        XIII.        This Separation Agreement shall be governed by the laws
of New York, excluding the choice of law rules thereof.

        


        IN WITNESS WHEREOF, the
parties hereto have executed this Separation Agreement.

        


        
          	
                   

                	
                  Date

                	 
      
	
                  Jeffrey
      M. Levy

                	 
      	 
      


        

        


        
          	
                  STATE
      OF NEW YORK

                	 
      	
                  )

                	 
	 
      	 
      	
                  :  ss.:

                	 
	
                  COUNTY
      OF

                	 
      	
                  )

                	 


        

        


        On the
____ day of _________, 20__, personally came Jeffrey M. Levy and being duly
sworn, acknowledged that he is the person described in and who executed the
foregoing Separation Agreement and acknowledged that he executed
same.

        


        
          	 
      	 
      	 
      
	 
      	 
      	
                  Notary
      Public

                


        

         

        NBT
BANCORP, INC.

        


        
          	
                  By:

                	
                   

                	 
      	
                  Date:

                	 
	 
      	 
      	 
      	 
      	 
	
                  Title:

                	 
      	 
      	 
      	 


        


        
          
             


          

          
            19

            
              

            

          

          
             


          

        


        Appendix A

        


        [Separation Payments]

         

         

         20