-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UY+82eeqH6YKZJ2s9Fv0LVYxViyjiTa49elJGctry3gPj/MU/mCGXhD0J2eLtt/L V2UkILfHPOTFACIwGbH+xQ== 0000941157-96-000046.txt : 19961104 0000941157-96-000046.hdr.sgml : 19961104 ACCESSION NUMBER: 0000941157-96-000046 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19961101 EFFECTIVENESS DATE: 19961101 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: FNB ROCHESTER CORP CENTRAL INDEX KEY: 0000745087 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 161231984 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-15325 FILM NUMBER: 96651760 BUSINESS ADDRESS: STREET 1: 35 STATE ST CITY: ROCHESTER STATE: NY ZIP: 14614 BUSINESS PHONE: 7165463300 MAIL ADDRESS: STREET 1: 35 STATE STREET CITY: ROCHESTER STATE: NY ZIP: 14614 S-8 1 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
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 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.
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. 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] 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 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) 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 EX-4 2 EXHIBIT 4.2 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 EX-4 3 EXHIBIT 4.4 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 EX-4 4 EXHIBIT 4.5 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. EX-4 5 EXHIBIT 4.6 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. EX-5 6 EXHIBIT 5 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 EX-24 7 EXHIBIT 24.1 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 -----END PRIVACY-ENHANCED MESSAGE-----