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