As filed with the Securities and Exchange Commission on
November 1, 1996 Registration No. 33-
_________________________________________________________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
____________________
FNB ROCHESTER CORP.
(Exact name of registrant as specified in its charter)
New York 16-1231984
_______________________________________________________________
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
35 State Street, Rochester, New York 14614 (716) 546-3300
________________________________________________________________
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
1992 Stock Option Plan, as Amended
1995 Non Employee Director Stock Option Plan
401(k) Stock Purchase Plan
Employee Stock Purchase Plan
(Full title of the plans)
_______________________
Timothy P. Johnson, Esq., V.P. & Counsel, FNB Rochester Corp.,
35 State Street, Rochester, NY 14614 (716) 258-1687
______________________________________________________________
(Name and address, including zip code, and telephone number,
include area code, of agent for service)
______________________
Copy to: Ward B. Hinkle, Esq., Hodgson, Russ, Andrews, Woods &
Goodyear, LLP, 1800 One M & T Plaza, Buffalo, NY 14203
(716) 856-4000
<TABLE>
<CAPTION>
Calculation of Registration Fee
Title of Amount to Proposed Proposed Amount of
securities be Maximum maximum Registration
to be registered offering aggregate Fee
registered price per offering
share/1 price/1
<S> <C> <C> <C> <C>
Common 225,000 $11.19 $2,517,750 $762.95
Stock, Shares
$1.00 par
value
_____________________
(1) Estimated pursuant to Rule 457 solely for the purpose of
calculating the registration fee. The price per share is to be
$11.19 based on the average of the high and low trading prices
for the Common Stock in the over-the-counter market on October
28, 1996, as reported on the NASDAQ National Market System. The
number of shares indicated include 100,000 shares under the 1992
Stock Option Plan, as amended, 25,000 shares under the 1995 Non
Employee Director Stock Option Plan, 50,000 shares under the
401(k) Stock Purchase Plan, and 50,000 shares under the Employee
Stock Purchase Plan. In addition, pursuant to Rule 416(c) under
the Securities Act of 1933, this registration statement covers an
indeterminate amount of interests to be offered or sold pursuant
to the employee benefit plans described herein.
</TABLE>
<PAGE>
EXPLANATORY NOTE
This Registration Statement relates to (i) an amendment
of the Registrant's 1992 Stock Option Plan to increase the number
of shares of common stock authorized to be sold thereunder from
225,000 to 325,000, (ii) 25,000 shares of common stock authorized
to be sold under the Registrant's 1995 Non Employee Director
Stock Option Plan; (iii) 50,000 shares of common stock and
related interests authorized to under the Registrant's 401(k)
Stock Purchase Plan (the "Retirement Plan"), and (iv) 50,000
shares of common stock authorized to be sold under the
Registrant's Employee Stock Purchase Plan. The contents of
Registration Statement No. 33-65194 on Form S-8 relating to the
Registrant's 1992 Stock Option Plan, as filed with the Securities
and Exchange Commission on June 28, 1993 (the "Prior Registration
Statement") are hereby incorporated by reference. Part I of the
Prior Registration Statement is hereby deleted and Part II of the
Prior Registration Statement is amended to include the
information contained in Part II of this Registration Statement.
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
(INFORMATION NOT REQUIRED IN THE PROSPECTUS)
Item 3. Incorporation of certain documents by reference
The Registrant hereby incorporates by reference into
this Registration Statement the following documents:
(a) The Registrant's latest annual report filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended (the "1934 Act"), which contains audited
financial statements for the most recent year for which such
statements have been filed;
(b) All other reports filed by the Registrant pursuant
to Section 13(a) or 15(d) of the 1934 Act since the end of the
fiscal year covered by the annual report referred to in (a)
above; and
(c) The description of the Registrant's common stock
contained in the Registration Statement filed with the Commission
under Section 12 of the 1934 Act, including any amendments or
reports filed for the purpose of updating such descriptions.
All documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, after the
date hereof and prior to the filing of a post-effective amendment
which indicates that the securities offered hereby have been sold
or which deregisters the securities covered hereby then remaining
unsold, shall also be deemed to be incorporated by reference into
this Registration Statement and to be a part hereof commencing on
the respective dates on which such documents are filed.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of named experts and counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
The Registrant's By-laws require the Registrant to
indemnify, and advance the expenses of, any director, officer or
employee to the fullest extent permitted from time to time by the
Business Corporation Law of the State of New York (the "BCL").
The Registrant's By-laws also provide that indemnification under
the By-laws shall not be exclusive of other rights of
indemnification of such persons when authorized by a resolution
of shareholders, a resolution of directors, or an agreement
providing for indemnification.
The Registrant's Certificate of Incorporation limits
the personal liability of the Registrant's directors to the
Registrant or any of its shareholders for any breach of duty as a
director fullest extent permitted by the BCL.
Article 7 of the BCL permits New York corporations,
acting through the boards of directors, to extend broad
protection to their directors, officers, and other employees by
way of indemnity and advancement of expenses. The BCL also
authorizes shareholders to add a provision to their corporation's
Certificate of Incorporation to provide that its directors will
not be liable to the corporation or its shareholders for monetary
damages for breach of fiduciary duty as a director unless a
judgment or other final disposition adverse to the director
establishes that (1) such director's acts or omissions were in
bad faith or involved intentional misconduct or knowing violation
of law; or (2) such director personally gained in fact a
financial profit or other advantage to which the director was not
legally entitled; or (3) the acts of such director violated
Section 719 of the BCL. Section 719 provides that, unless a
director performs the duties of a director in good faith and with
a degree of care which an ordinary prudent person in a like
position would use under similar circumstances, the director may
be liable for voting or concurring in the following corporate
actions; (a) the declaration of an illegal dividend; (b) a
corporation's repurchase of its own shares when the repurchase is
not authorized by New York law; (c) the distribution of assets to
shareholders after dissolution of the corporation without
adequately providing for known liabilities of the corporation;
and (d) a loan by a corporation to any director unless the loan
is authorized by a vote of shareholders. Section 726 of the BCL
permits the purchase of insurance to indemnify a corporation or
its officers and directors to the extent permitted. Generally,
the BCL allows corporations to provide for indemnification of
directors, officers, and employees except in those cases where a
judgment or other final adjudication adverse to the indemnified
party establishes the acts were committed in bad faith or were
the result of active and deliberate dishonesty or that the
indemnified party personally gained a financial profit or other
advantage to which he or she was not legally entitled.
The foregoing is merely a summary of the describe
provisions of the BCL, does not purport to be complete, and is
qualified in its entirety by reference to such provisions.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit Number Description
______________ _________________
4.1 1992 Stock Option Plan,
as amended
4.2 Option Agreements under the
1992 Stock Option Plan
4.3 1995 Non Employee Director
Stock Option Plan
4.4 Option Agreement under the
1995 Non Employee Director
Stock Option Plan
4.5 401(k) Stock Purchase Plan
4.6 Employee Stock Purchase Plan
5 Opinion of Hodgson, Russ,
Andrews, Woods & Goodyear, LLP
Regarding Legality of
Common Stock Being Registered.
24.1 Consent of KPMG Peat Marwick
LLP
24.2 Consent of Hodgson, Russ,
Andrews, Woods & Goodyear, LLP
(included in their Opinion
filed as Exhibit 5)
25.1 Power of Attorney (included in
signature page)
Item 9. Undertakings
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any Prospectus required by
Section 10(a)(3) of the Securities Act of 1933, as amended (the
"Securities Act");
(ii) To reflect in the Prospectus any facts
or events arising after the effective date of this Registration
Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represents a fundamental
change in the information set forth in this Registration State;
and
(iii) To include any material information
with respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement; provided, however,
that paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
B. The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act, (and, where
applicable, each filing of an employee benefits plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
C. Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid
by a director, officer of 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 is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of
such issue.
D. The undersigned Registrant hereby undertakes to
deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual
report to security holders that is incorporated by reference in
the prospectus pursuant to and meeting the requirements of Rule
14a-3 and 14c-3 under the Securities Exchange Act of 1934; and,
where interim financial information required to be presented by
article 3 of Regulation S-X is not set forth in the prospectus,
to deliver, or cause to be delivered, to each person to whom the
prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to
provide such interim financial information.
[Remainder of Page is Intentionally Left Blank]
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Rochester, State of New
York, on the 22nd day of October, 1996.
FNB ROCHESTER CORP.
s/ R. Carlos Carballada
_____________________________
By: R. Carlos Carballada, President
POWER OF ATTORNEY
Each person whose signature appears below constitutes
and appoints Timothy P. Johnson, his or her attorney-in-fact,
with the power of substitution, for him or her in any and all
capacities, to sign any amendments to this Registration
Statement, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that
said attorney-in-fact, or his substitute or substitutes, may do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, as amended, this Registration Statement has been signed
below by the following persons on the 22nd day of October, 1996.
SIGNATURE TITLE
s/ R. Carlos Carballada President, Chief Executive Officer,
_______________________ and Director
R. Carlos Carballada
s/ Stacy C. Campbell Senior Vice President, Chief
_______________________ Financial Officer
Stacy C. Campbell
s/ Michael J. Falcone Chairman of the Board of Directors
________________________
Michael J. Falcone
s/ Carl R. Reynolds Vice Chairman of the Board of
________________________ Directors
Carl R. Reynolds
s/ Gayle C. Johnston Director
________________________
Gayle C. Johnston
s/ Francis T. Lombardi Director
_________________________
Francis T. Lombardi
s/ Joseph M. Lobozzo II Director
__________________________
Joseph M. Lobozzo II
__________________________ Director
H. Bruce Russell
s/ James D. Ryan Director
___________________________
James D. Ryan
s/ Linda Cornell Weinstein Director
___________________________
Linda Cornell Weinstein
<PAGE>
EXHIBIT INDEX
Exhibit Number Description Page/Reference
______________ ___________ ______________
4.1 1992 Stock Option Plan, Appendix A to Proxy
Statement as amended
dated April 24, 1996
for Annual Meeting
of Shareholders held
May 28, 1996
4.2 Option Agreements under Page 10
the 1992 Stock Option
Plan
4.3 1995 Non Employee Appendix B to Proxy
Director Stock Option Statement dated
Plan April 24, 1996 for
Annual Meeting of
Shareholders held
May 28, 1996
4.4 Option Agreement under Page 18
the 1995 Non Employee
Director Stock Option
Plan
4.5 401(k) Stock Purchase Page 25
Plan
4.6 Employee Stock Purchase Page 32
Plan
5 Opinion of Counsel Page 40
24.1 Consent of Independent Page 42
Accountants
24.2 Consent of Counsel
(included in Exhibit 5)
25 Power of Attorney
(contained on the
signature page hereof)
<PAGE>
KPMG PEAT MARWICK LLP
600 Clinton Square Telephone 716 454 1644 Telefax 716 454 1469
Rochester, NY 14604
Independent Auditors' Consent
The Board of Directors
FNB Rochester Corp.:
We consent to incorporation by reference in the registration
statement on Form S-8 of FNB Rochester Corp. of our report dated
February 2, 1996, relating to the consolidated statements of
financial condition of FNB Rochester Corp. and subsidiaries as of
December 31, 1995 and 1994, and the related consolidated
statements of operations, changes in shareholders' equity, and
cash flows for each of the years in the three-year period ended
December 31, 1995, which report has been incorporated by
reference in the December 31, 1995 annual report on Form 10-K of
FNB Rochester Corp.
s/KPMG Peat Marwick LLP
Rochester, New York
October 21, 1996
Exhibit 4.2
STOCK OPTION AGREEMENT
Under The
FNB ROCHESTER CORP.
1992 STOCK OPTION PLAN
STOCK OPTION AGREEMENT, dated as of __________________
(the "Date of Grant"), is made by and between FNB ROCHESTER
CORP., a New York corporation (the "Company") and
________________________________ (the "Option Holder").
WHEREAS, the Company has adopted the 1992 Stock Option
Plan, as amended (the "Plan"), a copy of which the Option Holder
acknowledges receiving, providing for the grant to key, full time
salaried employees and its wholly-owned subsidiaries
(individually, a "Subsidiary") of options to purchase shares of
Common Stock, par value $1.00 per share, of the Company
("Shares"); and
WHEREAS, pursuant to the Plan, the Committee (as
defined in the Plan) has determined to grant the option evidenced
by this Agreement to the Option Holder on and subject to the
terms and conditions set forth in this Agreement; and
WHEREAS, the Committee has instructed the undersigned
officer to execute and deliver this Agreement in the name and on
behalf of the Company;
NOW, THEREFORE, in consideration of the premises, the
mutual covenants herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1.0 Grant of Option; Purchase Price.
1.1 The Company hereby grants to the Option Holder the
right and option (the "Option") to purchase, on the terms and
conditions hereinafter set forth, all or any part of an aggregate
of ______ shares of the Common Stock, $1.00 par value per share,
of the Company (the "Shares").
1.2 The purchase price of the Shares shall be $_____
per Share, without commission or other similar charge.
1.3 The Option is hereby designated and intended to be
either (mark one): (a) _____ an Incentive Stock Option as
defined under Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code"); or (b) ____ a Nonqualified Stock Option
(i.e., a stock option which is not an Incentive Stock Option).
2.0 Exercisability.
2.1 Except as otherwise provided in this Agreement,
the Option shall become exercisable in installments in accordance
with the following schedule:
Time from Date Percentage of Option
of Grant Exercisable
Prior to First Anniversary 0%
After First Anniversary 50%
After Second Anniversary 100%
The Option Holder may purchase all or any part of the Shares as
to which the Option has become exercisable in accordance with the
foregoing schedule and which the Option Holder has not
theretofore purchased, until the Option becomes otherwise
unexercisable in accordance with the terms of this Agreement.
2.2 Notwithstanding the installment exercisability
schedule provided in Section 2.1 above, the Option shall become
immediately exercisable in full ("accelerated vesting") in the
event that the Option Holder's employment with the Company is
terminated without "Cause" (as defined in the following
sentence). For purposes of this Agreement, "Cause" shall mean
(a) a material breach by the Option Holder of any of the Option
Holder's duties to the Company (which duties for this purpose
shall be those duties under a written employment agreement, if
any, between the Option Holder and the Company), (b) gross
negligence or willful misconduct by the Option Holder in the
performance of any such duties, (c) the Option Holder's
dishonesty to the Company, (d) the Option Holder's conviction of
a felony or (e) an Option Holder's excessive absenteeism (as
determined by the Committee) from the Option Holder's normal
place of work not related to disability or to attending to the
Company's business at other locations. The Option shall not be
subject to accelerated vesting, however, to the extent that
accelerated vesting shall constitute a "parachute payment" which,
when aggregated with any other payments to the Option Holder that
constitutes a "parachute payment," exceeds 299% of the Option
Holder's "base amount." "Parachute payment" and "base amount"
shall have the meanings used in Section 280G of the Code, without
regard to Clause 280G(b)(2)(A)(ii) thereof.
2.3 The Option and all rights thereunder shall expire
at the close of business on the day next preceding the ______
anniversary of the date of this Agreement (the "Expiration
Date"), unless sooner terminated as provided in Article 3.0
hereof. Anything in this Agreement to the contrary
notwithstanding, the Option shall not be exercisable after the
Expiration Date.
3.0 Continuous Employment a Requisite.
3.1 Except as specifically provided in this Article
3.0, this Option may not be exercised unless the Option Holder
shall have been in the employ of the Company continuously from
the Date of Grant to the date of exercise. In the event of
termination of continuous employment of the Option Holder for any
reason other than death, disability or discharge for cause, prior
to expiration of the Option, the Option Holder may exercise this
Option within three months following the date of such termination
of employment, but not after the expiration of this Option and
only to the extent to which the Option Holder was entitled to
exercise it on the date of such termination.
3.2 If the Option Holder is discharged for Cause as
determined by the Company, this Option shall expire as of receipt
by the Option Holder of notice of such termination or the
effective date thereof, whichever is earlier.
3.3 Upon the death of the Option Holder while in the
continuous full time employment of the Company, this Option shall
be exercisable within one year after the date of the Option
Holder's death but not after the expiration of the Option, and
only if and to the extent that the Option Holder was entitled to
exercise it on the Option Holder's date of death; such exercise
shall be made by the Option Holder's legal representatives or
beneficiaries.
3.4 If the Option Holder is terminated for permanent
and total disability as defined in the Plan and as determined by
the Company, this Option shall be exercisable within one year
after the date of the Option Holder's termination of employment
but not after the expiration of the Option, and only if and to
the extent the Option Holder was entitled to exercise it on the
date of the Option Holder's termination for disability.
3.5 Whether and to what extent leaves of absence
granted by the Company or absences due to illness, accident, or
military or government service shall constitute termination or
interruption of continuous full time employment shall be
determined from time to time by the Committee or the Board of
Directors consistent with the Plan, and any such determination
shall be final and binding upon both the Option Holder and the
Company.
4.0 Manner of Exercise.
4.1 The Option, or any exercisable portion thereof,
may be exercised solely by delivery to the Committee of all of
the following prior to the time the Option or such portion
becomes unexercisable under this Agreement:
(a) Notice in writing signed by the Option Holder
or other person then entitled to exercise the Option or
portion thereof, stating that the Option or portion
thereof is thereby exercised, such notice complying
with all applicable rules of the Committee; and
(b) (i) Full payment (in cash or by check) for
the Shares with respect to which the Option or portion
thereof is thereby exercised; or
(ii) With the consent of the Committee,
shares of Common Stock of the Company owned by the
Option Holder duly endorsed for transfer to the Company
with a fair market value (as determined under the Plan)
on the date of exercise equal to the aggregate purchase
price of the Shares with respect to which the Option or
portion thereof is exercised; or
(iii) Any combination of the consideration
provided in the foregoing subsections (i) and (ii); and
(c) The payment to the Company of any amounts
which it is required to withhold under federal, state
or local law in connection with the exercise of the
Option or portion thereof.
4.2 As soon as practicable after any exercise of the
Option in accordance with Section 4.1, the Company shall, without
commission, transfer or issuance tax or other incidental expense
to the Option Holder, deliver to the Option Holder at the
principal office of the Company or at such other place as may be
mutually acceptable to the Company and the Option Holder, a
certificate or certificates representing the Shares as to which
the Option has been exercised; provided, however, that no Shares
shall be issued and delivered upon exercise of the Option unless
and until, in the opinion of counsel for the Company, any
applicable requirements of the Securities Act of 1933, as amended
(the "Securities Act"), relating to the registration of the
Shares or the availability of an exemption from registration, any
applicable requirements of the "blue sky" laws of any State, and
any other requirements of law, of any national securities
exchange on which stock of the same class as the Shares is then
listed, or of any regulatory bodies having jurisdiction over such
issuance and delivery, shall have been fully satisfied or
complied with.
4.3 In the event the Option shall be exercised
pursuant to Article 3.0 hereof by any person or persons other
than the Option Holder, the Company may require, prior to
delivery of a certificate or certificates representing the Shares
to be issued on such exercise, appropriate proof of the right of
such person or persons to exercise the Option on behalf of the
Option Holder.
4.4 In the event that the Option Holder disposes of
Option Shares and, as a result of the disposition, recognizes
ordinary income, the Option Holder shall give written notice to
the Company, as soon as reasonably practicable, of such
disposition and the amount taxable as ordinary income to the
Option Holder as a result of the disposition.
5.0 Non-Transferability of Option.
Except as otherwise expressly provided in this
Agreement, the Option and the rights granted thereunder may not
be transferred, assigned, pledged or hypothecated in any way,
whether by operation of law or otherwise. Any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of the
Option or any right granted thereunder contrary to the provisions
of this Agreement shall result in the Option and the rights
granted thereunder becoming immediately null and void.
6.0 Employment may be Terminated.
The granting of this Option shall not confer upon the
Option Holder any right to continue in the employ of the Company
and shall not interfere in any way with the right of the Company,
with or without cause, to terminate the Option Holder's
employment at any time.
7.0 Compliance with Legal Requirements.
If at the time of exercise of this Option there is not
in effect as to the Option Shares thereby being purchased a
registration statement under Securities Act of 1933, as amended
(or any successor statute) (collectively, the "1933 Act"), the
exercise of Option shall be effective only upon receipt by the
Company from the Option Holder (or his legal representatives or
beneficiaries) of a written representation that, among other
things, the Option Shares are being purchased for investment and
not for distribution. The Company may request an opinion of its
counsel as to whether registration of the Option Shares being
purchased is required under the 1933 Act or under applicable
state statutes, and regulations thereunder. If counsel is of the
opinion that such registration is not required or that an
exemption from such registration is available, the Company shall
issue the Option Shares forthwith. If counsel is of the opinion
that such registration is required, the Company shall not be
required to issue the Option Shares until they have been so
registered, and the Company shall be under no obligation to
register the Option Shares. The Option Holder hereby agrees to
supply the Company with such information and cooperate with the
Company, all as the Company may reasonably request, in connection
with the preparation and filing of any registration statements
and amendments thereto under the 1933 Act and applicable state
statutes, and regulations thereunder, insofar as the same pertain
to the Option Shares. The Company shall not be liable in respect
of any failure to issue any such Shares as to which such opinion
of counsel cannot be obtained within the period specified for the
exercise of the Option, or as to which such registration is
required in the opinion of counsel. In the event that shares of
the Common Stock of the Company are at the time of the exercise
of this Option listed upon a securities exchange, the exercise of
the Option shall be contingent upon completion of the necessary
steps to list upon such securities exchange the Option Shares
then being purchased.
8.0 Additional Powers of the Committee and the Board
of Directors.
The Committee or the Board of Directors may construe
this Option and may correct any defect, supply any omission or
reconcile any inconsistency herein or between the Option and the
Plan, in the manner and to the extent that either of them shall
determine. The Committee or the Board of Directors shall
determine any dispute or disagreement which may arise under or as
a result of or pursuant to this Option. All such decisions
concerning the Option or the Plan shall be final, binding and
conclusive on the Option Holder.
9.0 Rights as Shareholder.
Neither the Option Holder nor any other person legally
entitled to exercise the Option shall be entitled to any of the
rights or privileges of a shareholder of the Company in respect
of any Shares issuable upon any exercise of the Option unless and
until a certificate or certificates representing such Shares
shall have been issued and delivered to such person.
10.0 Status of Option; Option Subject to Plan.
The Option evidenced hereby is subject to, and the
Company and the Option Holder agree to be bound by, all of the
terms and conditions of the Plan, as the same shall be amended
from time to time in accordance with the terms thereof, all of
which terms and conditions are incorporated herein by this
reference.
11.0 Notices.
Any notices to be given under the terms of this
Agreement to the Company shall be in writing addressed to FNB
Rochester Corp., 35 State Street, Rochester, New York 14614,
Attention: Stock Option Committee, and any notice to be given to
the Option Holder shall be in writing addressed to the Option
Holder at the address given beneath such Option Holder's
signature hereto. By a notice given pursuant to this
Article 11.0 either party may hereafter designate a different
address for notices to be given, and any notice which is required
to be given to the Option Holder shall, if the Option Holder is
then deceased be given to the Option Holder's personal
representative, if such representative has previously informed
the Company of his, her or its status and address by written
notice under this Article 11.0. Any notice shall be deemed duly
given if personally delivered or mailed, addressed as set forth
above, postage prepaid, by certified mail, return receipt
requested, or by Federal Express or similar overnight delivery
service.
12.0 Miscellaneous.
The interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of New York.
Captions and titles are provided herein for convenience of
reference only and are not to serve as a basis for interpretation
or construction of this Agreement. The term "Option" when used
in this Agreement shall be deemed also to mean any portion of
such Option.
IN WITNESS WHEREOF, the parties have executed this
Agreement the day and year first above written.
COMPANY:
FNB ROCHESTER CORP.
By:______________________________
R. Carlos Carballada
President & Chief Executive Officer
OPTION HOLDER:
[NAME]
_________________________________
Signature
_________________________________
Residence Address
_________________________________
City, State and Zip Code
_________________________________
Option Holder's Taxpayer
Identification Number
Exhibit 4.4
STOCK OPTION AGREEMENT
Under The
FNB ROCHESTER CORP.
1995 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
STOCK OPTION AGREEMENT, dated as of __________________
(the "Date of Grant"), is made by and between FNB ROCHESTER
CORP., a New York corporation (the "Company") and
________________________________ (the "Option Holder").
WHEREAS, the Company has adopted the 1995 Non-Employee
Director Stock Option Plan, as amended (the "Plan"), a copy of
which the Option Holder acknowledges receiving, providing for the
grant to Outside Directors (as defined in the Plan) of options to
purchase shares of Common Stock, par value $1.00 per share, of
the Company ("Shares"); and
WHEREAS, the Committee (as defined in the Plan) has
instructed the undersigned officer to execute and deliver this
Agreement in the name and on behalf of the Company;
NOW, THEREFORE, in consideration of the premises, the
mutual covenants herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1.0 Grant of Option; Purchase Price.
1.1 The Company hereby grants to the Option Holder the
right and option (the "Option") to purchase, on the terms and
conditions hereinafter set forth, all or any part of an aggregate
of 2,500 shares of the Common Stock, $1.00 par value per share,
of the Company (the "Shares").
1.2 The purchase price of the Shares shall be $_____
per Share, without commission or other similar charge.
1.3 The Option is hereby designated and intended to be
a Nonqualified Stock Option (i.e., a stock option which is not an
Incentive Stock Option as defined under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
2.0 Exercisability.
2.1 Except as otherwise provided in this Agreement,
the Option shall become exercisable in installments in accordance
with the following schedule:
Time from Date Percentage of Option
of Grant Exercisable
Prior to First Anniversary 0%
After First Anniversary 50%
After Second Anniversary 100%
The Option Holder may purchase all or any part of the Shares as
to which the Option has become exercisable in accordance with the
foregoing schedule and which the Option Holder has not
theretofore purchased, until the Option becomes otherwise
unexercisable in accordance with the terms of this Agreement.
2.2 Notwithstanding the installment exercisability
schedule provided in Section 2.1 above, the Option shall become
immediately exercisable in full ("accelerated vesting") in the
event that the Option Holder's service with the Company as a
Director is terminated without "Cause" (as defined in the
following sentence). For purposes of this Agreement, "Cause"
shall mean (a) a material breach by the Option Holder of any of
the Option Holder's duties to the Company, (b) gross negligence
or willful misconduct by the Option Holder in the performance of
any such duties, (c) the Option Holder's dishonesty to the
Company, or (d) the Option Holder's conviction of a felony.
2.3 The Option and all rights thereunder shall expire
at the close of business on the day next preceding the tenth
anniversary of the date of this Agreement (the "Expiration
Date"), unless sooner terminated as provided in Article 3.0
hereof. Anything in this Agreement to the contrary
notwithstanding, the Option shall not be exercisable after the
Expiration Date.
3.0 Continuous Service a Requisite.
3.1 Except as specifically provided in this Article
3.0, this Option may not be exercised unless the Option Holder
shall have been in the service of the Company as a Director
continuously from the Date of Grant to the date of exercise. In
the event of termination of continuous service of the Option
Holder for any reason other than death, disability or termination
for cause, prior to expiration of the Option, the Option Holder
may exercise this Option within six months following the date of
such termination of service, but not after the expiration of this
Option and only to the extent to which the Option Holder was
entitled to exercise it on the date of such termination.
3.2 If the Option Holder's service as a Director is
terminated for Cause as determined by the Board of Directors of
the Company, this Option shall expire as of receipt by the Option
Holder of notice of such termination or the effective date
thereof, whichever is earlier.
3.3 Upon the death of the Option Holder while in the
continuous full time service of the Company as a Director, this
Option shall be exercisable within one year after the date of the
Option Holder's death but not after the expiration of the Option,
and only if and to the extent that the Option Holder was entitled
to exercise it on the Option Holder's date of death; such
exercise shall be made by the Option Holder's legal
representatives or beneficiaries.
3.4 If the Option Holder's service as a Director is
terminated for permanent and total disability as determined by
the Committee, this Option shall be exercisable within one year
after the date of the Option Holder's termination of service but
not after the expiration of the Option, and only if and to the
extent the Option Holder was entitled to exercise it on the date
of the Option Holder's termination for disability.
3.5 Whether and to what extent leaves of absence
granted by the Company or absences due to illness, accident, or
military or government service shall constitute termination or
interruption of continuous service shall be determined from time
to time by the Committee consistent with the Plan, and any such
determination shall be final and binding upon both the Option
Holder and the Company.
4.0 Manner of Exercise.
4.1 The Option, or any exercisable portion thereof,
may be exercised solely by delivery to the Committee of all of
the following prior to the time the Option or such portion
becomes unexercisable under this Agreement:
(a) Notice in writing signed by the Option Holder
or other person then entitled to exercise the Option or
portion thereof, stating that the Option or portion
thereof is thereby exercised, such notice complying
with all applicable rules of the Committee; and
(b) (i) Full payment (in cash or by check) for
the Shares with respect to which the Option or portion
thereof is thereby exercised; or
(ii) With the consent of the Committee,
shares of Common Stock of the Company owned by the
Option Holder duly endorsed for transfer to the Company
with a fair market value (as determined under the Plan)
on the date of exercise equal to the aggregate purchase
price of the Shares with respect to which the Option or
portion thereof is exercised; or
(iii) Any combination of the consideration
provided in the foregoing subsections (i) and (ii); and
(c) The payment to the Company of any amounts
which it is required to withhold under federal, state
or local law in connection with the exercise of the
Option or portion thereof.
4.2 As soon as practicable after any exercise of the
Option in accordance with Section 4.1, the Company shall, without
commission, transfer or issuance tax or other incidental expense
to the Option Holder, deliver to the Option Holder at the
principal office of the Company or at such other place as may be
mutually acceptable to the Company and the Option Holder, a
certificate or certificates representing the Shares as to which
the Option has been exercised; provided, however, that no Shares
shall be issued and delivered upon exercise of the Option unless
and until, in the opinion of counsel for the Company, any
applicable requirements of the Securities Act of 1933, as amended
(the "Securities Act"), relating to the registration of the
Shares or the availability of an exemption from registration, any
applicable requirements of the "blue sky" laws of any State, and
any other requirements of law, of any national securities
exchange on which stock of the same class as the Shares is then
listed, or of any regulatory bodies having jurisdiction over such
issuance and delivery, shall have been fully satisfied or
complied with.
4.3 In the event the Option shall be exercised
pursuant to Article 3.0 hereof by any person or persons other
than the Option Holder, the Company may require, prior to
delivery of a certificate or certificates representing the Shares
to be issued on such exercise, appropriate proof of the right of
such person or persons to exercise the Option on behalf of the
Option Holder.
5.0 Non-Transferability of Option.
Except as otherwise expressly provided in this
Agreement, the Option and the rights granted thereunder may not
be transferred, assigned, pledged or hypothecated in any way,
whether by operation of law or otherwise. Any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of the
Option or any right granted thereunder contrary to the provisions
of this Agreement shall result in the Option and the rights
granted thereunder becoming immediately null and void.
6.0 Service may be Terminated.
The granting of this Option shall not confer upon the
Option Holder any right to continue in service to the Company as
a Director.
7.0 Compliance with Legal Requirements.
If at the time of exercise of this Option there is not
in effect as to the Option Shares thereby being purchased a
registration statement under Securities Act of 1933, as amended
(or any successor statute) (collectively, the "1933 Act"), the
exercise of Option shall be effective only upon receipt by the
Company from the Option Holder (or his legal representatives or
beneficiaries) of a written representation that, among other
things, the Option Shares are being purchased for investment and
not for distribution. The Company may request an opinion of its
counsel as to whether registration of the Option Shares being
purchased is required under the 1933 Act or under applicable
state statutes, and regulations thereunder. If counsel is of the
opinion that such registration is not required or that an
exemption from such registration is available, the Company shall
issue the Option Shares forthwith. If counsel is of the opinion
that such registration is required, the Company shall not be
required to issue the Option Shares until they have been so
registered, and the Company shall be under no obligation to
register the Option Shares. The Option Holder hereby agrees to
supply the Company with such information and cooperate with the
Company, all as the Company may reasonably request, in connection
with the preparation and filing of any registration statements
and amendments thereto under the 1933 Act and applicable state
statutes, and regulations thereunder, insofar as the same pertain
to the Option Shares. The Company shall not be liable in respect
of any failure to issue any such Shares as to which such opinion
of counsel cannot be obtained within the period specified for the
exercise of the Option, or as to which such registration is
required in the opinion of counsel. In the event that shares of
the Common Stock of the Company are at the time of the exercise
of this Option listed upon a securities exchange, the exercise of
the Option shall be contingent upon completion of the necessary
steps to list upon such securities exchange the Option Shares
then being purchased.
8.0 Additional Powers of the Committee.
8.01 The Committee may construe this Option and may
correct any defect, supply any omission or reconcile any
inconsistency herein or between the Option and the Plan, in the
manner and to the extent that they shall determine. The
Committee shall determine any dispute or disagreement which may
arise under or as a result of or pursuant to this Option. All
such decisions concerning the Option or the Plan shall be final,
binding and conclusive on the Option Holder.
8.02 If there is a change in the shares of the Company
as a result of reorganization, recapitalization, stock split,
stock dividend, combination of shares, merger, consolidation,
rights offering, or any other change in the corporate structure
or such shares, the Committee may make such adjustments, if any,
proportionate to such change, in the number and kind of shares
authorized by the Plan and in the number and kind of Shares under
outstanding awards as it shall deem appropriate to preserve the
relative value of outstanding awards under the Plan. The
determination of the Committee as to whether any adjustments are
required and the determination of the Committee as to the extent
and nature of any such adjustment shall be final and binding on
all persons.
9.0 Rights as Shareholder.
Neither the Option Holder nor any other person legally
entitled to exercise the Option shall be entitled to any of the
rights or privileges of a shareholder of the Company in respect
of any Shares issuable upon any exercise of the Option unless and
until a certificate or certificates representing such Shares
shall have been issued and delivered to such person.
10.0 Status of Option; Option Subject to Plan.
The Option evidenced hereby is subject to, and the
Company and the Option Holder agree to be bound by, all of the
terms and conditions of the Plan, as the same shall be amended
from time to time in accordance with the terms thereof, all of
which terms and conditions are incorporated herein by this
reference.
11.0 Notices.
Any notices to be given under the terms of this
Agreement to the Company shall be in writing addressed to FNB
Rochester Corp., 35 State Street, Rochester, New York 14614,
Attention: Corporate Counsel, and any notice to be given to the
Option Holder shall be in writing addressed to the Option Holder
at the address given beneath such Option Holder's signature
hereto. By a notice given pursuant to this Article 11.0 either
party may hereafter designate a different address for notices to
be given, and any notice which is required to be given to the
Option Holder shall, if the Option Holder is then deceased be
given to the Option Holder's personal representative, if such
representative has previously informed the Company of his, her or
its status and address by written notice under this Article 11.0.
Any notice shall be deemed duly given if personally delivered or
mailed, addressed as set forth above, postage prepaid, by
certified mail, return receipt requested, or by Federal Express
or similar overnight delivery service.
12.0 Miscellaneous.
The interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of New York.
Captions and titles are provided herein for convenience of
reference only and are not to serve as a basis for interpretation
or construction of this Agreement. The term "Option" when used
in this Agreement shall be deemed also to mean any portion of
such Option.
IN WITNESS WHEREOF, the parties have executed this
Agreement the day and year first above written.
COMPANY:
FNB ROCHESTER CORP.
By:______________________________
R. Carlos Carballada
President & Chief Executive Officer
OPTION HOLDER:
[NAME]
_________________________________
Signature
_________________________________
Residence Address
_________________________________
City, State and Zip Code
_________________________________
Option Holder's Taxpayer
Identification Number
Exhibit 4.5
FNB ROCHESTER CORP.
401(k) STOCK PURCHASE PLAN
1. Name and Purpose.
The name of this plan is the FNB Rochester Corp. 401(k) Stock
Purchase Plan (the "Plan"). The Plan is intended to provide an
opportunity under the First National Bank of Rochester Retirement
Plan (the "Retirement Plan") for Participants (as defined in the
Retirement Plan), who have selected the FNB Stock Fund as a
directed investment option under the Retirement Plan, to purchase
from FNB Rochester Corp. (the "Company") shares of its Common
Stock, par value $1.00 per share ("Common Stock"). All
capitalized terms not defined in this Plan shall have the
meanings given to them under the Retirement Plan.
2. Administration.
The Plan shall be administered by a Committee (the "Committee")
consisting of not less than three (3) members who shall be
appointed by the Board of Directors of the Company. Each member
of the Committee shall be either a director, an officer or an
employee of the Company. Any action of the Committee with
respect to administration of the Plan shall be taken by a
majority vote or written consent of its members. The Committee
shall be vested with full authority to make, administer and
interpret such rules and regulations as it deems necessary to
administer the Plan, and any determination, decision or action of
the Committee with respect to the construction, interpretation,
administration, or application of the Plan shall be final,
conclusive and binding upon all Participants and any and all
persons claiming under or through any Participant. The Company
shall pay all expenses of the administration of the Plan.
3. Shares Subject to Plan.
The maximum aggregate number of shares of Common Stock which can
be purchased pursuant to the Plan (the "Shares") shall be 50,000,
except as adjusted pursuant to Paragraph 14 hereof. The Shares
may be Common Stock which is authorized but unissued, or Common
Stock which has been issued and reacquired by the Company. The
Company shall at all times reserve and keep available such number
of Shares as shall be sufficient to satisfy the requirements of
the Plan.
4. Eligibility.
Any Participant in the Retirement Plan shall be eligible to
purchase Shares under the Plan through the Participant's Directed
Investment Account under the Retirement Plan.
5. Term of the Plan.
The Plan shall become effective when duly authorized by the Board
of Directors of the Company. The Company expects to continue the
Plan until such time as the Shares reserved for issuance under
the Plan have been sold. However, the Plan may be terminated by
either the Board of Directors or the Committee at any time, in
their respective discretion, and shall terminate automatically,
without such action whenever the maximum number of Shares which
may be purchased pursuant to the Plan have been purchased.
6. Participation in the Plan.
A. A Participant in the Retirement Plan may become a
participant in the Plan (a "Plan Participant") either at the
commencement date or at any time during the term of the
Plan, by completing a Plan Participation Authorization on
the form provided by the Company (an "Authorization Form")
and filing it with the Human Resources Department prior to
the applicable date provided below.
B. (i) A Retirement Plan Participant who wishes to become a
Plan Participant on the commencement date must file his
or her Authorization Form prior to January 1, 1997 and
it will become effective on that date.
(ii) A Retirement Plan Participant who wishes to become a
Plan Participant at any time after January 1, 1997 must
file his or her Authorization Form at least ten (10)
business days prior to the date on which it is to
become effective.
C. Participation in the Plan shall be voluntary.
7. Payroll Deductions, Company Contributions, Dividend
Reinvestment.
A. At the time he or she enrolls in the Plan, a Plan
Participant shall elect to allocate some or all of the Plan
Participant's Retirement Plan payroll deductions on each
pay-day during the time he or she is a Plan Participant with
the maximum allocation equal to not more than the total of
such deductions under the Retirement Plan on such pay-day.
B. All allocated payroll deductions made for a Plan Participant
shall be credited to his or her account under the Plan. A
Plan Participant may not make any separate cash payment into
such account, except through reinvestment of funds held by
the Retirement Plan for the benefit of the Participant.
C. A Plan Participant may increase or reduce the amount of his
or her payroll deduction allocated to the Plan by completing
an amended Authorization Form and filing it with the Human
Resources Department.
D. Employer matching contributions credited to a Retirement
Plan Participant will be credited to the Plan Participant's
account under the Plan pro rata in accordance with the
percentage that the Plan Participant's Retirement Plan
payroll deductions are allocated to participation in the
Plan. Employer matching contributions under the Retirement
Plan shall be credited to the Participant's account under
the Plan on the last payroll date of the period for which
the matching contribution is made with respect to FNB Stock
Fund investments. Shares purchased with employer matching
contributions that are subject to vesting provisions under
the Retirement Plan shall be subject to the vesting
provisions under the Retirement Plan applicable to such
contributions.
E. A Plan Participant may invest money in another Retirement
Plan Account by completing an Investment Change Form and
filing it with the Human Resources Department (an
"Investment Change").
F. A Plan Participant may invest dividends received on Common
Stock held pursuant to the Plan (a "Dividend Reinvestment")
by making an appropriate election with the Trustee.
G. A Plan Participant may discontinue his or her participation
in the Plan at any time as provided in Paragraph 10.A.
8. Right to Subscribe; Purchase of Shares.
A. Shares will be purchased under the Plan by the exercise of
Subscription Rights granted hereunder. Each Participant for
whom an Authorization Form is then in effect is hereby
granted a subscription right to purchase on each payday (a
"Purchase Date") up to as many Shares as the Participant can
purchase with the amount in the Plan Participant's Company
Account (as hereinafter defined).
B. The purchase price for Shares purchased under the Plan shall
be one hundred percent (100%) percent of the fair market
value (as hereinafter defined) of Shares as of the close of
business on the last day preceding the day they are
purchased for which there is a price per share determinable
under Paragraph 8.C. Shares purchased pursuant to payroll
deduction contributions under the Retirement Plan will be
deemed to be purchased the payday on which the payroll
deductions are made. Shares purchased pursuant to
contributions that are not related to payroll deductions
shall be made as soon as practicable after the contribution
is made.
C. The fair market value of a Share on any day shall be: (i) if
the Shares are traded in the over-the-counter market, the
mean between the bid and asked prices of Shares in the over-
the-counter market as reported on the National Association
of Security Dealers Automatic Quotation System (NASDAQ);
(ii) if the Shares are traded in the over-the-counter market
and are designated as National Market System securities, the
reported last sale price of Shares, or (iii) if the Shares
are traded on one or more securities exchanges, the average
of the closing prices on all such exchanges on such day; or,
in the event that there are no such reports for such day,
the fair market value shall be such price based on the last
preceding day for which there is such a report.
D. In no event shall the purchase price for Shares purchased
hereunder be less than the par value thereof.
9. Employee accounts and Payroll Deductions.
A. The Company or subsidiary, if applicable, shall maintain for
each Participant a separate bookkeeping account (a "Company
Account") to which shall be credited (i) all payroll
deductions made for him or her which have been allocated to
the Plan, (ii) all amounts delivered by the Trustee pursuant
to an Investment Change, (iii) all amounts delivered by the
Trustee pursuant to a Dividend Reinvestment, and (iv) the
allocated amount of all Company Contributions to the
Retirement Plan for the benefit of the Participant. The
Company shall deduct from the Company Account all amounts
used to purchase Shares hereunder.
B. On each pay-day a payroll deduction in the amount specified
in a Plan Participant's then effective Authorization Form
shall be made and the amount thereof shall be credited to
the Plan Participant's Company Account. Consistent with the
Retirement Plan, after each dividend payment date on Common
Stock, the Trustee shall deliver the amount of any dividends
on Common Stock held in Participant Accounts (as hereinafter
defined) to the Company to be credited to the respective
Company Accounts of Participants who have made an
appropriate election to have dividends reinvested.
Consistent with the Retirement Plan, after receiving a
Participant election for an Investment Change, the Trustee
shall deliver the amount of any allocated funds in a
Participant Account to the Company to be credited to the
respective Company Account of a Participant who has made an
appropriate election to have funds transferred for
investment in Common Stock pursuant to the Plan.
C. The Retirement Plan record keeper, Epic Advisors or a
successor, will compute the aggregate amounts held in the
Company Accounts on each Purchase Date as reported to it by
the Company's Human Resources department and advise the
Company of the aggregate number of whole Shares, determined
in accordance with Paragraph 8.B., to be purchased by for
all Participants. All amounts in the Company Accounts shall
then be used to purchase from the Company the maximum number
of whole Shares which can be purchased at the purchase price
determined in accordance with Paragraph 8.B. hereof. The
Company shall, as expeditiously as possible, cause such
Shares to be issued to the nominee account of the Trustee,
and the Trustee shall credit individual accounts maintained
by it in the name of each Participant (the "Participant
Accounts") with the respective number of Shares purchased by
each of them. The Trustee shall deliver periodic statements
to each Participant under the Retirement Plan showing the
numbers of whole Shares delivered to and maintained in his
or her Participant Account, and showing any fractional Share
credited to the Participant in his or her Participant
Account.
D. Certificates for fractional shares will not be issued. Any
fractional Shares held in Participant Accounts will be held
by the Trustee, without payment of interest thereon, until
further purchases on the next payroll date cause such
fraction to become a whole number of Shares. Any money
remaining in a Participant's Company Account by reason of
his or her prior election not to purchase Shares on a
Purchase Date shall be returned to the Trustee for
disposition for the benefit of the Participant in accordance
with the Retirement Plan within 30 days after the Purchase
Date.
E. Notwithstanding anything to the contrary contained herein,
(i) if the number of Shares that Plan Participants desire to
purchase on a Purchase Date exceeds the number of Shares
then available under the Plan, the Shares available shall be
allocated among the Plan Participants in proportion to the
amounts allocated by them for Share purchases during the
monthly period (but no fractional Shares shall be issued);
and (ii) no funds in a Participant's Account shall be
applied to the purchase of Shares and no Shares hereunder
shall be issued unless such Shares are covered by an
effective registration statement under the Securities Act of
1933, as amended, or by an exemption from such registration.
F. A Plan Participant may change the amount of his or her
Retirement Plan payroll deduction allocation to the Plan
(subject always to the limitations of this Plan) by
completing and filing with the Company or the relevant
subsidiary a new Authorization Form. The change shall
become effective as soon as practicable after receipt of the
Authorization Form by the Company's Human Resources
Department in Rochester, New York or the relevant personnel
department of a subsidiary. A Plan Participant may change
the amount of his or her Retirement Plan payroll deductions
in accordance with the terms of the Retirement Plan.
10. Withdrawal from the Plan; Termination of Participation in
the Plan.
A. A Plan Participant may withdraw from the Plan at any time
and for any reason by delivering a written notification of
withdrawal to the Company. Any withdrawal shall become
effective as soon as practicable after receipt of the
written notification by the Company's department of Human
Resources.
B. A Plan Participant's participation in the Plan shall
automatically terminate upon his or her ceasing to be a
Participant in the Retirement Plan for any reason including
death. A Plan Participant who has withdrawn from the Plan
may recommence participation in the Plan by completing and
filing with the Company a new Authorization Form.
C. Upon withdrawal or termination of participation in the
Retirement Plan, all amounts held in the Company Account of
a Participant, and the then fair market value of any
fractional share in the Participant's Participant Account,
shall be delivered to or maintained by the Trustee for
disposition in accordance with the Retirement Plan.
D. A withdrawing or terminating Plan Participant who is an
executive officer or director of the Company shall not be
entitled to rejoin the Plan until the first day of the first
quarterly period that commences after the expiration of six
months form the date of termination of participation.
11. Non-transferability.
The subscription rights granted hereunder may not be assigned,
transferred or hypothecated.
12. Rights as a Shareholder.
A Plan Participant shall have all the rights and privileges of a
shareholder of the Company with respect to Shares purchased
pursuant to the Plan (to the extent permitted by applicable law)
on the date the Shares are issued.
13. Reports.
Within 45 days after the last business day of March, June,
September, and December, a report as to the status of Shares
purchased and maintained in each Participant's Account in the
first, second, third and fourth calendar quarters, respectively,
will be sent to the Participant.
14. Adjustments.
If there is any change in the outstanding Shares of the Company
as a result of a stock dividend, stock split or combination of
Shares or any other change, or exchange for other securities, by
reclassification, reorganization, redesignation, merger,
consolidation, or recapitalization or otherwise, the Board of
Directors of the Company may make appropriate adjustments in the
number and kind of Shares subject to the Plan, and to the kind of
shares and prices per share or shares subject to outstanding
subscription rights in order to preserve the relative benefits to
Participants.
15. Amendment to the Plan.
The Plan may be amended at any time by the Board of Directors in
its sole discretion.
16. Effective Date; Termination of the Plan.
This Plan shall become effective when duly authorized by the
Board of Directors of the Company. The Company expects to
continue the Plan until such time as the Shares reserved for
issuance under the Plan have been sold. However, the Plan may be
terminated by either the Board of Directors or the Committee at
any time, in their respective discretion, and shall terminate
automatically, without such action: (i) whenever a required
registration statement under the Securities Act of 1933, as
amended, is not in effect with respect to the Shares offered
pursuant to the Plan; or (ii) whenever the maximum number of
Shares which may be purchased pursuant to the Plan have been
purchased.
17. Effect of Certain Provisions.
With respect to persons subject to Section 16 of the 1934 Act,
transactions under this plan are intended to comply with all
applicable conditions of Rule 16b-3 or its successors under the
1934 Act. To the extent any provision of the Plan or action by
the Plan administrators fails to so comply, it shall be deemed to
be null and void, to the extent permitted by law and deemed
advisable by the Plan administrators.
18. Notices.
All notices or other communications by a Plan Participant to the
Company under or in connection with the Plan shall be deemed to
have been duly given when received by the Human Resources
Department of the Company or other person designated by the
Company for the receipt of such notice or other communications,
in the form and at the location specified by the Company.
19. Applicable Law.
The interpretation, performance and enforcement to this Plan
shall be governed by the laws of the State of New York.
Exhibit 4.6
FNB ROCHESTER CORP.
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE
The purpose of the FNB Rochester Corp. Employee Stock Purchase
Plan (the "Plan") is to provide employees of FNB Rochester Corp.
(the "Company"), its present subsidiaries, and any subsidiary
hereafter designated by the Board of Directors to be included in
the Plan (including subsidiaries acquired or created subsequent
to the time the Plan became effective), with an opportunity to
acquire an ownership interest in the Company through the purchase
of shares of the Company's common stock, par value $1.00 per
share ("Shares"), and thus more closely align the interests of
employees with those of the Company and develop a stronger
incentive for employees to work for the continued success of the
Company.
2. ELIGIBILITY
A. Any employee (as defined in subparagraph 18.B.) who shall
have completed thirty (30) days of continuous employment, or
any probationary period provided for in a collective
bargaining agreement, whichever is longer, shall be eligible
to participate in the Plan.
B. Notwithstanding any provision in this Plan to the contrary,
no Participant shall be granted any purchase right under
this Plan if, immediately after the grant, such Participant
would own common stock of the Company or hold outstanding
purchase rights or options to purchase the Company's common
stock:
(i) possessing 5% or more of the total combined voting
power of all classes of stock of the Company (for the
purposes of this provision, the Rules of Section 424(d)
of the Internal Revenue Code of 1986, as amended (the
"Code") shall apply to determining stock ownership of
the Participant); or
(ii) permitting the Participant under this Plan and all
employee stock purchase plans of the Company (as
defined in Code Section 423(b)), to accrue common stock
of the Company at a rate which exceeds $25,000 in fair
market value of common stock (determined at the time
such option or purchase right is granted) for each
calendar year in which such option or purchase right is
outstanding.
3. TERM OF THE PLAN
This Plan shall become effective when duly authorized by the
Board of Directors of the Company. The Company expects to
continue the Plan until such time as the Shares reserved for
issuance under the Plan have been sold. However, the Plan may be
terminated by either the Board of Directors or the Committee (as
hereinafter defined) at any time, in their respective discretion,
and shall terminate automatically, without such action: (i)
whenever a required registration statement under the Securities
Act of 1933, as amended, is not in effect with respect to the
Shares offered pursuant to the Plan; or (ii) whenever the maximum
number of Shares which may be purchased pursuant to the Plan have
been purchased.
4. PARTICIPATION IN THE PLAN
A. An eligible employee may become a participant in the Plan (a
"Participant") either at the commencement date or at any
time during the term of the Plan, by completing a Payroll
Deduction Authorization on the form provided by the Company
and filing it with the Human Resources Department prior to
the applicable date provided below.
B. (i) An eligible employee who wishes to become a Participant
on the commencement date must file his or her Payroll
Deduction Authorization form prior to January 1, 1997,
and such Authorization shall become effective on that
date.
(ii) An eligible employee who wishes to become a Participant
at any time after January 1, 1997 must file his or her
Payroll Deduction Authorization form at least ten (10)
business days prior to the Effective date of the
Authorization.
C. If a Participant in the Plan files a Payroll Deduction
Authorization form after commencement of the Plan increasing
the rate of his or her payroll deduction, such filing shall
constitute an election to have payroll deductions for the
remainder of the term of the Plan made at the rate specified
in that Authorization, but in no event shall such an
election permit the Participant to be eligible for a number
of Shares greater than the maximum number of Shares the
Participant would have been entitled to receive under the
limitations set forth in subparagraph 7.B. below, had such
election not been made.
D. Payroll deductions for a Participant shall commence on the
date when his or her Payroll Deduction Authorization becomes
effective and shall end on the termination date of the Plan
unless sooner terminated by the Participant as provided in
paragraph 8.
E. Participation in the Plan shall be voluntary.
5. PAYROLL DEDUCTIONS
A. At the time he or she enrolls in the Plan, a Participant
shall elect to have payroll deductions made from his or her
Total Compensation on each pay-day during the time he or she
is a participant in the Plan at a rate equal to not more
than 10% of the Total Compensation to which the Participant
is entitled on such pay-day.
B. All payroll deductions made for a Participant shall be
credited to his or her account under the Plan. A
Participant may not make any separate cash payment into such
account.
C. A Participant may increase or reduce the amount of his or
her payroll deduction by completing an amended Payroll
Deduction Authorization on the form provided and filing it
with the Human Resources Department, but no change can be
made during the term of the Plan which would either change
the time or increase the rate of his or her payroll
deductions except in accordance with subparagraph 4.C.
D. A Participant may discontinue his or her participation in
the Plan at any time as provided in paragraph 8.
6. RIGHT TO SUBSCRIBE; PURCHASE OF SHARES
A. Shares will be purchased under the Plan by the exercise of
Subscription Rights granted hereunder. Each Participant for
whom a Payroll Deduction Authorization is then in effect is
hereby granted a subscription right to purchase on the last
payday in each month (a "Purchase Date") up to as many
Shares as the Participant can purchase with ten (10) percent
of the Total Compensation paid to him or her by the Company
or any of its subsidiaries during that month.
B. The purchase price for Shares purchased pursuant to the Plan
shall be the fair market value (as hereinafter defined) of
the Shares on the last day immediately preceding the
Purchase Date as determined under subparagraph 6.C.
C. The fair market value of a Share on any day shall be: (i) if
the Shares are traded in the over-the-counter market, the
mean between the bid and asked prices of Shares in the over-
the-counter market as reported on the National Association
of Security Dealers Automatic Quotation System (NASDAQ);
(ii) if the Shares are traded in the over-the-counter market
and are designated as National Market System securities, the
reported last sale price of Shares, or (iii) if the Shares
are traded on one or more securities exchanges, the average
of the closing prices on all such exchanges on such day; or,
in the event that there are no such reports for such day,
the fair market value shall be such price based on the first
preceding day for which there is such a report.
D. In no event shall the purchase price for Shares purchased
hereunder be less than the par value thereof.
7. EMPLOYEE ACCOUNTS AND PAYROLL DEDUCTIONS
A. The Company or subsidiary, if applicable, shall maintain for
each Participant a separate bookkeeping account (a "Company
Account") to which shall be credited all payroll deductions
made for him or her and from which shall be deducted amounts
used to purchase Shares hereunder.
B. On each pay-day a payroll deduction in the amount specified
in the most recent Payroll Deduction Authorization Form
filed with the Company or any of its subsidiaries (but not
more than ten (10) percent of the Total Compensation paid to
a Participant by the Company or any of its subsidiaries on a
pay-day) shall be made and the amount thereof shall be
credited to the Participant's Company Account.
C. Smith Barney, Inc. or a successor brokerage firm shall act
as the Company's agent (the "Agent") with respect to the
Plan. Each month the Company shall advise the Agent of the
amount of the deductions made by Participants, and the Agent
shall advise the Company of the number of whole Shares,
determined in accordance with paragraph 6, to be purchased
by all Participants. All amounts in the Company Accounts
shall then be used to purchase the maximum number of whole
Shares which can be purchased at the purchase price
determined in accordance with paragraph 6 hereof. The
Company shall, as expeditiously as possible, cause such
Shares to be issued to the nominee account of the Agent, and
the Agent shall credit individual accounts maintained by it
in the name of each Participant (the "Participant Accounts")
with the respective number of Shares purchased by each of
them. The Agent shall deliver monthly statements to each
Participant showing the numbers of whole Shares delivered to
and maintained in his or her Participant Account, and
showing any fractional Share credited to the Participant in
his or her Participant Account.
D. Certificates for fractional shares will not be issued. Any
fractional Shares held in Participant Accounts will be held
by the Trustee, without payment of interest thereon, until
further purchases on the next Purchase Date cause such
fraction to become a whole number of Shares. Any money
remaining in the Participant's Company Account by reason of
his or her prior election not to purchase Shares on a
Purchase Date shall be disbursed to the employee within 30
days after the Purchase Date.
E. Notwithstanding anything to the contrary contained herein,
(i) if the number of shares Participants desire to purchase
on a Purchase Date exceeds the number of Shares then
available under the Plan, the Shares available shall be
allocated among the Participants in proportion to their
contributions during the monthly period (but no fractional
Shares shall be issued); and (ii) no funds in a
Participant's Account shall be applied to the purchase of
Shares and no Shares hereunder shall be issued unless such
Shares are covered by an effective registration statement
under the Securities Act of 1933, as amended, or by an
exemption from such registration.
F. A Participant may change the amount of his or her payroll
deduction (subject always to the limitation of this Plan) by
completing and filing with the Company or the relevant
subsidiary a new Payroll Deduction Authorization Form. The
change shall become effective on the first payday following
at least ten business days after receipt of the Form by the
Company's Human Resources Department in Rochester, New York
or the relevant personnel department of a subsidiary.
8. WITHDRAWAL FROM THE PLAN; TERMINATION OF PARTICIPATION IN
THE PLAN
A. A Participant may withdraw from the Plan at any time and for
any reason by delivering a written notification of
withdrawal to the Company or the relevant subsidiary. Any
withdrawal shall become effective as soon as practicable
after receipt of the written notification by the Company's
Human Resources Department in Rochester, New York or the
relevant personnel department of a subsidiary.
B. A Participant's participation in the Plan shall
automatically terminate upon his or her ceasing to be an
employee of the Company for any reason including death. An
employee who has withdrawn from the Plan may recommence
participation in the Plan by completing and filing with the
Company or the relevant subsidiary a new Payroll Deduction
Authorization Form.
C. Upon withdrawal or termination, (i) all amounts held by the
Company or a subsidiary, if applicable, in the Company
Account of a Participant shall be disbursed to him or her or
to his or her estate within 30 days after the date of
withdrawal or termination, and (ii) the then fair market
value of any fractional share credited to the Participant's
Participant Account shall be made available by the Agent in
the Participant's Account.
9. RIGHTS AS A SHAREHOLDER
A Participant shall have all the rights and privileges of a
shareholder of the Company with respect to Shares purchased
pursuant to the Plan (to the extent permitted by applicable
law) on the date the Shares are purchased.
10. SHARES
A. The Shares to be sold to Participants under the Plan may, at
the election of the Company, by either treasury Shares or
Shares originally issued for such purpose. The maximum
number of Shares which shall be made available for sale
under the Plan shall be 50,000 Shares, subject to adjustment
upon changes in capitalization of the Company as provided in
paragraph 14. If the total number of Shares for which
subscriptions have been made on any date in accordance with
paragraph 6 exceeds the number of Shares then available
under the Plan, the Company shall make a pro rata allocation
of the Shares remaining available in as nearly a uniform
manner as shall be practicable and as it shall determine to
be equitable. In such event, payroll deductions to be made
pursuant to Payroll Deduction Authorizations which become
effective on that date shall be reduced accordingly and the
Company shall give written notice of such reduction to each
employee affected thereby.
B. Shares to be purchased under the Plan will be registered in
the name of the Agent or its Nominee who will credit a like
number of Shares to the respective accounts of the
Participants in proportion to the number of Shares purchased
by each of them.
C. Share certificates for Shares purchased under the Plan shall
be delivered to the Agent as soon as practicable after the
Purchase Date on which they were purchased.
11. USE OF FUNDS
All payroll deductions received or held by the Company under
this Plan may be used by the Company for any corporate
purpose and the Company shall not be obligated to segregate
such payroll deductions.
12. ADMINISTRATION
The Plan shall be administered by a Committee (the
"Committee") consisting of not less than three (3) members
who shall be appointed by the Board of Directors of the
Company. Each member of the Committee shall be either a
director, an officer or an employee of the Company. Any
action of the Committee with respect to administration of
the Plan shall be taken by a majority vote or written
consent of its members. The Committee shall be vested with
full authority to make, administer and interpret such rules
and regulations as it deems necessary to administer the
Plan, and any determination, decision or action of the
Committee with respect to the construction, interpretation,
administration or application of the Plan shall be final,
conclusive and binding upon all Participants and any and all
persons claiming under or through any Participant. The
Company shall pay all expenses of the administration of the
Plan.
13. TRANSFERABILITY
Neither payroll deductions credited to a Participant's
account nor any rights to purchase or receive Shares under
the Plan may be assigned, transferred, pledged or otherwise
disposed of in any way by the Participant, and any such
attempted assignment, transfer, pledge or other disposition
shall be null and void and without effect, but the Company
may treat such act as an election to withdraw from
participation in the Plan in accordance with paragraph 8.
14. ADJUSTMENTS
If there is any change in the outstanding Shares of the
Company as a result of a stock dividend, stock split or
combination of Shares or any other change, or exchange for
other securities, by reclassification, reorganization,
redesignation, merger, consolidation, or recapitalization or
otherwise, the Board may make appropriate adjustments in the
number and kind of Shares subject to the Plan, and to the
kind of shares and prices per share of shares subject to
outstanding subscription rights, in order to preserve the
relative benefits to Participants.
15. MERGER, CONSOLIDATION OR SALE OF ASSETS
In the event the Company merges or consolidates with another
corporation, or sells all or substantially all of its
assets, or liquidates, prior to the termination date, the
Company may, at its option, terminate the Plan and return to
each Participant his or her accumulated payroll deductions.
16. AMENDMENT TO THE PLAN
The Plan may be amended at any time by the Board of
Directors of the Company in its sole discretion.
17. NOTICES
All notices or other communications by a Participant to the
Company under or in connection with the Plan shall be deemed
to have been duly given when received by the Human Resources
Department of the Company or other person designated by the
Company for the receipt of such notice or other
communications, in the form and at the location specified by
the Company.
18. DEFINITIONS
A. "Total Compensation" means all regular straight time
earnings, payments for overtime, shift premium, incentive
compensation, incentive payments, bonuses and other special
payments except amounts subject to the provisions of the
Company's profit-sharing and retirement plans, and the
Company's performance unit award plan and except to the
extent that the exclusion of any such item is specifically
directed by the Committee.
B. "Employee" means a person, who is customarily employed by
the Company or a designated subsidiary for more than twenty
(20) hours per week and more than five (5) months in a
calendar year.
Exhibit 5
HODGSON, RUSS, ANDREWS, WOODS & GOODYEAR, LLP
1800 One M & T Plaza
Buffalo, New York 14203
Tel: (716) 856-4000
FAX: (716) 849-0349
November 1, 1996
FNB Rochester Corp.
33 State Street
Rochester, New York 14614
Ladies/Gentlemen:
This letter is furnished to you in connection with a
registration statement on Form S-8 (the "Registration Statement")
of FNB Rochester Corp. (the "Company"), to be filed on or about
November 1, 1996, with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, for the
registration of an aggregate of 225,000 shares (the "Shares") of
common stock, par value $1.00 per share, of the Company. The
Shares are to be issued as follows: (1) 100,000 shares under the
Company's 1992 Stock Option Plan, as amended; (2) 25,000 shares
under the Company's Non Employee Director Stock Option Plan; (3)
50,000 shares under the Company's 401(k) Stock Purchase Plan; and
(4) 50,000 shares under the Company's Employee Stock Purchase
Plan (the plans identified in items (1) through (4) being
collectively the "Plans").
In connection with the opinions set forth in this
letter, we have (1) examined and relied upon originals or copies,
certified or otherwise identified to our satisfaction, of
documents, corporate records and other instruments, (2) made such
inquiries as to questions of fact of officers and representatives
of the Company and the proceedings relating to and actions taken
by the Company in connection with the adoption or amendment of
the Plans, and (3) made such examination of law, as we have
deemed necessary or appropriate for the purpose of giving the
opinions expressed herein. We do not express any opinion
concerning any law other than the law of the State of New York
and the federal law of the United States.
Based upon the foregoing, it is our opinion that the
Shares, when issued and sold in accordance with the Plans, will
be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as
Exhibit 5 to the Registration Statement.
Very truly yours,
HODGSON, RUSS, ANDREWS, WOODS & GOODYEAR, LLP
By: s/Ward B. Hinkle
EXHIBIT 24.1
KPMG PEAT MARWICK LLP
600 Clinton Square Telephone 716 454 1644 Telefax 716 454 1469
Rochester, NY 14604
Independent Auditors' Consent
The Board of Directors
FNB Rochester Corp.:
We consent to incorporation by reference in the registration
statement on Form S-8 of FNB Rochester Corp. of our report dated
February 2, 1996, relating to the consolidated statements of
financial condition of FNB Rochester Corp. and subsidiaries as of
December 31, 1995 and 1994, and the related consolidated
statements of operations, changes in shareholders' equity, and
cash flows for each of the years in the three-year period ended
December 31, 1995, which report has been incorporated by
reference in the December 31, 1995 annual report on Form 10-K of
FNB Rochester Corp.
s/KPMG Peat Marwick LLP
Rochester, New York
October 21, 1996
