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., 00 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000,
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. Xxxxxx Xxxxxxxxxx
President & Chief Executive Officer
OPTION HOLDER:
[NAME]
_________________________________
Signature
_________________________________
Residence Address
_________________________________
City, State and Zip Code
_________________________________
Option Holder's Taxpayer
Identification Number
