As filed with the Securities and Exchange Commission on October 30, 1998
Registration No. 333-
------------------------------------------------------------------------------
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
State or other jurisdiction of incorporation)
16-1231984
(I.R.S. Employer 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
(Full title of the plan)
-----------------------
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
Calculation of Registration Fee
<TABLE>
<CAPTION>
Title of securities Amount to be Proposed Maximum Proposed maximum Amount of
to be registered registered offering price per aggregate offering Registration Fee
share (1) price (1)
<S> <C> <C> <C> <C>
Common Stock, 200,000 Shares $17.25 $3,450,000 $959.10
$1.00 par value
</TABLE>
- ---------------------
(1) Estimated pursuant to Rule 457 solely for the purpose of calculating the
registration fee. The price per share is to be $17.25 based on the average of
the high and low trading prices for the Common Stock in the over-the-counter
market on October 28, 1998, as reported on the NASDAQ National Market System.
The 200,000 shares indicated will be offered and sold pursuant to an amendment
to the Registrant's 1992 Stock Option Plan, as amended.
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
(INFORMATION NOT REQUIRED IN THE PROSPECTUS)
Item 3. Incorporation of certain documents by reference
This Registration Statement relates to securities to be
offered and sold pursuant to an amendment to the Registrant's 1992 Stock Option
Plan that increased the number of shares of common stock authorized to sold
thereunder from 325,000 to 525,000. A total of 325,000 shares of common stock
authorized to be sold under the Registrant's 1992 Stock Option Plan were
previously registered under Registration Statement No. 33-65194 and Registration
Statement No. 333-15325. In accordance with Instruction E to Form S-8, the
contents of Registration Statement No. 333-15325 are hereby incorporated herein
by reference, except insofar that the references to exhibits shall be those
indicated below.
Item 8. Exhibits
Exhibit Number Description
4.1 1992 Stock Option Plan,
as amended
4.2 Forms of Option Agreements under the 1992
Stock Option Plan
4.3 1995 Non Employee Director Stock Option Plan
5.1 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 5.1)
25.1 Power of Attorney (included in
signature page)
<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 28th day
of October, 1998.
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 as of the 28th day of October, 1998.
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/Joseph M. Lobozzo II Director
- ---------------------------------
Joseph M. Lobozzo II
_________________________________ Director
Francis T. Lombardi
s/H. Bruce Russell 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, 1
as amended
4.2 Form of Option Agreements under Page 6
the 1992 Stock Option
Plan
5.1 Opinion of Counsel Page 20
24.1 Consent of Independent Accountants Page 22
24.2 Consent of Counsel (included in
Exhibit 5.1)
25 Power of Attorney (contained
on the signature page hereof)
- ------------
1. Incorporated by reference to the Appendix to the Proxy Statement of
the Registrant dated April 15, 1998 for its Annual Meeting of Shareholders held
on May 19, 1998.
[2 year vesting form]
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 [NAME] (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 either (a) there is a "Change
of Control" (as defined below) of the Company, or (b) the Option Holder's
employment with the Company is terminated without "Cause" (as defined below).
(a) For the purpose of this Agreement, a "Change of Control"
shall mean the occurrence, including any necessary legal or regulatory approvals
that are a condition precedent to the legality and validity of such event, of
any of the following events:
(i) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2)of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 35% or more of either (1) the then outstanding shares of common stock of
the Company (the "Outstanding Company Common Stock") or (2) the combined
voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, that the following
acquisitions shall not constitute a Change of Control: (1) any such acquisition
directly from the Company (excluding an acquisition by virtue of the exercise of
a conversion privilege), (2) any acquisition by the Company, (3) any acquisition
by any employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by Company or (4) any acquisition by any
corporation pursuant to a reorganization, merger or consolidation, if, following
such reorganization, merger, or consolidation, the conditions described in
clauses (1), (2) and (3) of subsection (iii) of this Section 2.2a are satisfied;
or
(ii) Individuals who, as of the date hereof,
constitute the Board of Directors of the Company (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to
the date hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board; or
(iii) A reorganization, merger or consolidation, in
each case, unless, following such reorganization, merger
or consolidation, (1) more than 65% of, respectively, the then outstanding
shares of common stock of the corporation resulting from such reorganization,
merger or consolidation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in the election
of directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such reorganization, merger or
consolidation in substantially the same proportions as their ownership,
immediately prior to such reorganization, merger or consolidation, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities, as
the case may be, (2) no Person (excluding the Company, any employee benefit plan
(or related trust) of the Company, or such corporation resulting from such
reorganization, merger or consolidation and any Person beneficially owning,
immediately prior to such reorganization, merger or consolidation, directly or
indirectly, 35% or more of the Outstanding Company Common Stock or Outstanding
Company Voting Securities, as the case may be) beneficially owns, directly or
indirectly, 35% or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such reorganization, merger or
consolidation or the combined voting power of the then outstanding voting
securities of such corporation, and (3) at least a majority of the members of
the board of directors of the corporation resulting from such reorganization,
merger or consolidation were members of the Incumbent Board at the time of the
execution of the initial agreement providing for such reorganization, merger or
consolidation; or
(iv) A complete liquidation or dissolution of the
Company or the sale or other disposition of all or substantially all of the
assets of the Company, other than to a corporation, with respect to which
following such sale or other disposition, (1) more than 65% of, respectively,
the then outstanding shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately prior
to such sale or other disposition in substantially the same proportion as their
ownership, immediately prior to such sale or other disposition, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities, as
the case may be, (2) no Person (excluding the Company and any employee benefit
plan (or related trust) of the Company, or such corporation and any Person
beneficially owning, immediately prior to such sale or other disposition,
directly or indirectly, 35% or more of the Outstanding Company Common Stock or
Outstanding Company Voting Securities, as the case may be) beneficially owns,
directly or indirectly, 35% or more of, respectively, of the then outstanding
shares of common stock of such corporation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of directors and (3) at least a majority of the
members of the board of directors of such corporation were members of the
Incumbent Board at the time of the execution of the initial agreement or action
of the Board providing for such sale or other disposition of assets of the
Company; or
(v) The issuance or transfer of sufficient shares of
stock, or a merger, reorganization or consolidation,
which results in (1) more than 50% of the then outstanding shares of common
stock of the Company, or (2) securities having more than 50% of the combined
voting power of the then outstanding voting securities of the Company entitled
to vote generally in the election of directors, being owned by other than the
Company or persons who owned securities having more than 65% of the combined
voting power of the outstanding voting securities of the Company entitled to
vote generally in the election of directors of the Company prior to the
transaction;
provided, however, that (i) if a Change of Control as defined above shall be
invalidated or rescinded as a result of regulatory action or otherwise prior to
the exercise of the Option then the original installment exercisability schedule
provided in Section 2.1 shall be reinstated, and provided further that to the
extent the Option would have become exercisable under such schedule, it shall
continue to be exercisable without regard to the reinstatement of such schedule
and (ii) if as a result of the Change of Control an Option Holder will not have
a reasonable period of time to exercise the Option after accelerated vesting,
then the Company shall take appropriate action at the time of the Change of
Control to permit the Option Holder to realize the value of the Option as if it
had vested immediately prior to the Change of Control.
(b) For purposes of this Agreement, "Cause" shall mean (i) 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), (ii)
gross negligence or willful misconduct by the Option Holder in the performance
of any such duties, (iii) the Option Holder's dishonesty to the Company, (iv)
the Option Holder's conviction of a felony, or (v) the 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 Internal Revenue 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 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 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
<PAGE>
[vesting by share price/time]
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 [NAME] (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 as follows:
(a) In installments equal to the "Percentage of Option
Exercisable" indicated below (rounded down to the nearest whole share) upon the
price of the Company's common stock reaching certain designated "30-Day Average
Share Prices" , as more fully defined below. The 30-Day Average Share Prices and
Percentage of Option Exercisable are as follows:
30-Day Average Share Price Percentage of Option Exercisable
$---- --%
$----- --%
$----- --%
For purposes of this Agreement, the 30-Day Average Share Price of the Company's
common stock shall be determined as follows:
(i) For each day that the stock trades, the Company
shall determine (using information provided by
Nasdaq, or if information from Nasdaq is not available, information published in
The Wall Street Journal) , the average of the stock's daily high and daily low
to obtain the stock's "daily average price"
(ii) For each period of 30 consecutive calendar days,
the Company shall average the "daily average prices" for the days on which the
stock traded during the 30-day period to obtain the 30-Day Average Share Price
To the extent the Option becomes exercisable under the preceding formula,
subsequent reductions in the 30-Day Average Share Price will not adversely
affect that exercisability.
(b) Notwithstanding the foregoing, but except as otherwise
provided in this Agreement, the Option will become 100% exercisable nine (9)
years from the Date of Grant.
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 either (a) there is a "Change
of Control" (as defined below) of the Company, or (b) the Option Holder's
employment with the Company is terminated without "Cause" (as defined below).
(a) For the purpose of this Agreement, a "Change of Control"
shall mean the occurrence, including any necessary legal or regulatory approvals
that are a condition precedent to the legality and validity of such event, of
any of the following events:
(i) The acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 35% or more of either (1) the then outstanding shares
of common stock of the Company (the "Outstanding Company Common Stock") or (2)
the combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, that the following
acquisitions shall not constitute a Change of Control: (1) any such acquisition
directly from the Company (excluding an acquisition by virtue of the exercise of
a conversion privilege), (2) any acquisition by the Company, (3) any acquisition
by any employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by Company or (4) any acquisition by any
corporation pursuant to a reorganization, merger or consolidation, if, following
such reorganization, merger, or consolidation, the conditions described in
clauses (1), (2) and (3) of subsection (iii) of this Section 2.2a are satisfied;
or
(ii) Individuals who, as of the date hereof,
constitute the Board of Directors of the Company (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to
the date hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board; or
(iii) A reorganization, merger or consolidation, in
each case, unless, following such reorganization, merger
or consolidation, (1) more than 65% of, respectively, the then outstanding
shares of common stock of the corporation resulting from such reorganization,
merger or consolidation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in the election
of directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such reorganization, merger or
consolidation in substantially the same proportions as their ownership,
immediately prior to such reorganization, merger or consolidation, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities, as
the case may be, (2) no Person (excluding the Company, any employee benefit
plan (or related trust) of the Company, or such corporation resulting from such
reorganization, merger or consolidation and any Person beneficially owning,
immediately prior to such reorganization, merger or consolidation, directly or
indirectly, 35% or more of the Outstanding Company Common Stock or Outstanding
Company Voting Securities, as the case may be) beneficially owns, directly or
indirectly, 35% or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such reorganization, merger or
consolidation or the combined voting power of the then outstanding voting
securities of such corporation, and (3) at least a majority of the members of
the board of directors of the corporation resulting from such reorganization,
merger or consolidation were members of the Incumbent Board at the time of the
execution of the initial agreement providing for such reorganization, merger or
consolidation; or
(iv) A complete liquidation or dissolution of the
Company or the sale or other disposition of all or
substantially all of the assets of the Company, other than to a corporation,
with respect to which following such sale or other disposition, (1) more than
65% of, respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such sale or other disposition in
substantially the same proportion as their ownership, immediately prior to such
sale or other disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (2) no Person
(excluding the Company and any employee benefit plan (or related trust) of the
Company, or such corporation and any Person beneficially owning, immediately
prior to such sale or other disposition, directly or indirectly, 35% or more of
the Outstanding Company Common Stock or Outstanding Company Voting Securities,
as the case may be) beneficially owns, directly or indirectly, 35% or more of,
respectively, of the then outstanding shares of common stock of such corporation
and the combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors and (3) at
least a majority of the members of the board of directors of such corporation
were members of the Incumbent Board at the time of the execution of the initial
agreement or action of the Board providing for such sale or other disposition of
assets of the Company; or
(v) The issuance or transfer of sufficient shares of
stock, or a merger, reorganization or consolidation,
which results in (1) more than 50% of the then outstanding shares of common
stock of the Company, or (2) securities having more than 50% of the combined
voting power of the then outstanding voting securities of the Company entitled
to vote generally in the election of directors, being owned by other than the
Company or persons who owned securities having more than 65% of the combined
voting power of the outstanding voting securities of the Company entitled to
vote generally in the election of directors of the Company prior to the
transaction;
provided, however, that (i) if a Change of Control as defined above shall be
invalidated or rescinded as a result of regulatory action or otherwise prior to
the exercise of the Option then the original installment exercisability schedule
provided in Section 2.1 shall be reinstated, and provided further that to the
extent the Option would have become exercisable under such schedule, it shall
continue to be exercisable without regard to the reinstatement of such schedule
and (ii) if as a result of the Change of Control an Option Holder will not have
a reasonable period of time to exercise the Option after accelerated vesting,
then the Company shall take appropriate action at the time of the Change of
Control to permit the Option Holder to realize the value of the Option as if it
had vested immediately prior to the Change of Control.
(b) For purposes of this Agreement, "Cause" shall mean (i) 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), (ii)
gross negligence or willful misconduct by the Option Holder in the performance
of any such duties, (iii) the Option Holder's dishonesty to the Company, (iv)
the Option Holder's conviction of a felony, or (v) the 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 Internal Revenue 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 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 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
HODGSON, RUSS, ANDREWS, WOODS & GOODYEAR, LLP
1800 One M&T Plaza
Buffalo, New York 14203
Telephone: (716) 856-4000
Facsimile: (716) 849-0349
October 30, 1998
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 October 30, 1998, with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, for the
registration of 200,000 shares (the "Shares") of common stock, par value $1.00
per share, of the Company. The Shares are to be issued as based on a 1998
amendment to the Company's 1992 Stock Option Plan, as amended (the "Plan").
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 Plan, 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 5.1 to the
Registration Statement.
Very truly yours,
HODGSON, RUSS, ANDREWS, WOODS & GOODYEAR, LLP
By: S/Ward B. Hinkle
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 January 20, 1998, relating to the
consolidated statements of financial condition of FNB Rochester Corp. and
subsidiaries as of December 31, 1997 and 1996, 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, 1997, which report
has been incorporated by reference in the December 31, 1997 annual report on
Form 10-K of FNB Rochester Corp.
S/ KPMG Peat Marwick LLP
October 28, 1998
Rochester, New York
Exhibit 24.1
