FIRST NIAGARA FINANCIAL GROUP, INC. CHANGE IN CONTROL AGREEMENT WITH
FIRST
NIAGARA FINANCIAL GROUP, INC.
WITH
G.
XXXX XXXXXX
This
AGREEMENT, dated as of February 19, 2008 (the “Effective Date”), is between
FIRST NIAGARA FINANCIAL GROUP, INC., a Delaware corporation with its executive
offices at 0000 Xxxxx Xxxxxxx Xxxx, X.X. Xxx 000, Xxxxxxxx, XX 00000-0000 (the
“Corporation”), and G. Xxxx Xxxxxx, an individual residing at 000 Xxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxx 00000 (the “Executive”).
RECITALS:
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a.
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The
Executive is presently employed as an executive officer of the
Corporation.
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b.
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The
Board of Directors of the Corporation (the “Board”) considers it essential
to the best interests of the Corporation and its shareholders to
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the Corporation’s ability to retain key management
personnel.
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c.
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The
Board recognizes that, as is generally the case with publicly held
corporations, the possibility of a Change in Control (as hereinafter
defined) exists and that such possibility, and the uncertainty and
questions which it may raise among management, may result in the
departure
or distraction of management personnel to the detriment of the Corporation
and it shareholders.
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d.
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The
Board intends for this Agreement to provide protection to the Executive
against the exigencies of a Change in Control, but not to otherwise
provide assurance of or rights to continued
employment.
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e.
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The
Board believes it to be in the best interests of the Corporation
and its
shareholders that the Corporation and the Board be able to rely upon
the
Executive to continue in the Executive’s position, and that the
Corporation be able to receive and rely upon the Executive’s advice as to
the best interests of the Corporation, without concern that the Executive
might be distracted by the personal uncertainties and risks created
by the
possibility of a Change in Control.
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f.
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Should
the possibility of a Change in Control arise, in addition to the
Executive’s regular duties, the Executive may be called upon to assist in
the assessment of such possible Change in Control, to advise management
and the Board as to whether such Change in Control would be in the
best
interests of the Corporation and its shareholders and to take such
other
actions as the Board might determine to be
appropriate.
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g.
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This
Agreement is not intended to alter the rights of the Executive in
the
absence of a Change in Control of the Corporation with respect to
the
Executive’s employment by the Company or the Executive’s compensation and
benefits in connection with such employment and, accordingly, this
Agreement, although taking effect as provided below, will be operative
only upon a Change in Control of the
Corporation.
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h.
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The
Corporation and the Executive both desire to set forth the terms
of
benefits upon a termination of employment in certain circumstances
following a Change in Control.
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NOW,
THEREFORE, in consideration of the promises and of the covenants contained
in
this Agreement, the Corporation and the Executive agree as follows:
1. Definitions.
(a) An
“Affiliate” of, or a Person “Affiliated” with, a specified Person, means a
Person that directly, or indirectly through one or more intermediaries, controls
or is controlled by, or is under current control with, the Person
specified.
(b) “Bank”
means First Niagara Bank.
(c) “Board
of
Directors” or “Board” means the Board of Directors of the
Corporation.
(d) “Cause”
means a finding by the Board of Directors that any of the following conditions
exist:
(i) The
Executive’s willful and continued failure substantially to perform the
Executive’s duties (other than as a result of disability) that is not or cannot
be cured within 30 days of the Corporation giving the Executive notice of the
failure to so perform. For purposes of this Agreement, no act or failure to
act
will be deemed “willful” unless effected by the Executive not in good faith and
without a reasonable belief that the Executive’s action or failure to act was in
or not opposed to the Corporation’s best interests.
(ii) A
willful
act or omission by the Executive constituting dishonesty, fraud or other
malfeasance, and any act or omission by the Executive constituting immoral
conduct, which in any such case is injurious to the financial condition or
business reputation of the Corporation.
(iii) The
Executive’s indictment for a felony offense under the laws of the United States
or any state other than for actions related to operation of motor vehicles
which
does not involve operation of a motor vehicle while intoxicated or impaired.
(iv) Breach
by
the Executive of the Corporation’s Code of Ethics for Senior Financial Officers,
any restrictive covenant, non-competition, confidentiality or non-solicitation,
or other similar agreement which is applicable to the Executive, or breach
of
the Corporation’s Code of Ethics.
The
Executive will not be deemed to have been terminated for Cause until there
has
been delivered to the Executive a copy of a resolution, duly adopted by the
affirmative vote of not less than a majority of the Board at a meeting called
and held for that purpose (after reasonable notice to the Executive and an
opportunity for the Executive, with the Executive’s counsel, to be heard before
the Board), stating that, in the good faith opinion of the Board, the Executive
has engaged in conduct described above and specifying the particulars in
detail.
(e) “Change
in Control” means:
(i) Any
acquisition or series of acquisitions by any Person other than the Corporation,
any of its Affiliates, any employee benefit plan of the Corporation or any
of
its Affiliates, or any Person holding common shares of the Corporation for
or
pursuant to the terms of such an employee benefit plan, that results in that
Person becoming the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)), directly or
indirectly, of securities of the Corporation representing 50% or more of either
the then outstanding shares of the common stock of the Corporation (“Outstanding
Corporation Common Stock”) or the combined voting power of the Corporation’s
then outstanding securities entitled to then vote generally in the election
of
Directors of the Corporation (“Outstanding Corporation Voting Securities”),
except that any such acquisition of Outstanding Corporation Common Stock or
Outstanding Corporation Voting Securities will not constitute a Change in
Control while that Person does not exercise the voting
power of its Outstanding Corporation Common Stock or otherwise exercise control
with respect to any matter concerning or affecting the Corporation, or
Outstanding Corporation Voting Securities, and promptly sells, transfers,
assigns or otherwise disposes of that number of shares of Outstanding
Corporation Common Stock necessary to reduce its beneficial ownership (as
defined in Rule 13d-3 under the Exchange Act) of the Outstanding Corporation
Common Stock to below 50%;
(ii) At
the
time when, during any period not longer than twenty-four (24) consecutive
months, individuals who at the beginning of that period constitute the Board
cease to constitute at least a majority of the Board, unless the election,
or
the nomination for election by the Corporation’s shareholders, of each new Board
member was approved by a vote of at least 2/3rds of the Board members then
still
in office who were Board members at the beginning of that period (including,
for
these purposes, new members whose election or nomination was so approved);
or
(iii) Approval
by the shareholders of the Corporation of
(A) a
dissolution or liquidation of the Corporation,
(B) a
sale of
all or substantially all of the assets or earning power of the Corporation,
taken as a whole (with the stock or other ownership interests of the Corporation
in any of its Affiliates constituting assets of the Corporation for this
purpose) to a Person that is not an Affiliate of the Corporation (for purposes
of this paragraph, “sale” means any change of ownership), or
(C) an
agreement to merge or consolidate or otherwise reorganize, with or into one
or
more Persons that are not Affiliates of the Corporation, as a result of which
less than 50% of the outstanding
voting securities of the surviving or resulting entity immediately after any
such merger, consolidation or reorganization are, or will be, owned, directly
or
indirectly, by shareholders of the Corporation immediately before such merger,
consolidation or reorganization (assuming for purposes of that determination
that there is no change in the record ownership of the Corporation’s securities
from the record date for that approval until that merger, consolidation or
reorganization and that those record owners hold no securities of the other
parties to that merger, consolidation or reorganization), but including in
that
determination any securities of the other parties to that merger, consolidation
or reorganization held by Affiliates.
(f) “Code”
means the Internal Revenue Code of 1986, as amended.
(g) “Good
Reason” means:
(i) A
(A)
material diminution in responsibilities, duties, title, reporting
responsibilities within the business organization, status, role or authority;
or
(B) material reduction in the Executive’s (1) annual base salary, or (2)
aggregate compensation (aggregate compensation to be determined by taking into
consideration, without limitation, bonus, incentive awards, retirement or
pension plans, non-qualified deferred compensation plans, equity compensation
awards, or any other fringe benefit plan).
(ii) A
requirement, in the Executive’s reasonable judgment, that the services required
to be performed by the Executive would necessitate the Executive moving the
Executive’s residence to a location which is more than 100 miles from the
Executive’s current residence, which the Executive chooses not to
accept.
(iii) A
material breach of this Agreement by the Corporation that is not or cannot
be
cured within 30 days of the Executive giving the Corporation notice of the
breach.
(h) “Person”
has the meaning given that term in Sections 13(d) and 14(d) of the Exchange
Act,
but excluding any Person described in and satisfying the conditions of Rule
13d-1(b)(1) of Section 13 of the Exchange Act.
2. Term
of Agreement.
This
Agreement will be effective for the period beginning on the Effective Date
and
shall continue to be effective for the period ending on the “Expiration Date”;
provided, that the Executive’s right to indemnification and insurance coverage
shall continue beyond the Expiration Date for the duration of all applicable
statutes of limitations and for purposes of all policies of insurance. The
“Expiration Date” shall initially be December 31, 2008,
and
thereafter shall automatically be extended for successive two-year periods
unless, not later than six months prior to any such Expiration Date, the
Corporation shall have given notice to the Executive that it does not wish
the
Expiration Date to be so extended in which case the Expiration Period will
be
the date that is thirty (30) months from the date of such notice.
Notwithstanding the foregoing, the Expiration Date shall be any earlier date
on
which the Executive’s employment with the Corporation terminates for any reason,
in the event such termination occurs prior to a “Change in Control” of the
Corporation (as hereinafter defined).
3. Benefits
and Restrictions Upon Termination Following a Change in
Control.
(a) Upon
Termination by the Corporation without Cause or by the Executive with Good
Reason.
Upon the
Executive’s termination of employment by (i) the Corporation without Cause
within the twelve (12)-month period following a Change in Control or (ii) the
Executive for Good Reason no later than fourteen (14) months following a Change
in Control, the Corporation will provide the following:
(i) Salary
And Fringe Benefits.
The
Executive will receive full salary and fringe benefits through the effective
date of termination. The Executive will receive a payment equal to the 200%
of
the Executive’s base salary, as in effect in the year of the termination of
employment, payable in one lump sum on the effective date of the termination
of
employment (or as soon thereafter as practicable). The Executive will also
receive medical and health insurance, group term life insurance, automobile
allowance and club membership benefits (hereinafter referred to as “Fringe
Benefits”) as in effect on the date of termination for a period of twenty-four
(24) months beginning with the month next following the month during which
the
employment terminates. If the Executive dies during the twenty-four (24) month
period, any dependent health or medical Fringe Benefits will be provided for
the
balance of the twenty-four (24) month period. For purposes of COBRA health
care
continuation coverage, the “qualifying event” will be deemed to have occurred at
the end of the twenty-four (24) month period following termination of
employment.
(ii) Bonus.
The
Executive will receive a monthly cash bonus for the 24-month period. The monthly
bonus will be paid at the rate of the average annual bonus received by the
Executive for the Corporation’s prior three (3) full fiscal years, divided by
twelve (12).
(iii) Accrued
Vacation.
The
Executive will receive payment for accrued but unused vacation, which payment
will be equitably prorated based on the period of active employment for that
portion of the fiscal year in which the Executive’s termination of employment
becomes effective. Payment for accrued but unused vacation will be payable
in
one lump sum on the effective date of the termination of employment (or as
soon
thereafter as practicable).
(iv) Indemnification.
For 60
months following the date of termination of employment, the Corporation will
continue any indemnification agreement with the Executive and will provide
directors’ and officers’ liability insurance insuring the Executive, such
coverage to have limits and scope of coverage not less than that in effect
on
the date of termination of employment.
(v) Equity
Compensation.
The
Executive will be fully vested in and will have the immediate right to exercise
all equity compensation awards including, but not limited to, stock options,
restricted stock, stock appreciation rights, and phantom equity awards, which
the Executive has received in connection with Executive’s employment with the
Corporation.
(vi) Qualified
Plans.
The
Executive will be fully vested in the Executive’s accrued benefit under any
qualified pension or profit sharing plan maintained by the Corporation,
provided, however, if the terms of such plan do not permit acceleration of
full
vesting, the Executive will receive a lump sum payment on the effective date
of
the termination of employment (or as soon thereafter as practicable) in an
amount equal to the value of the accrued benefit which was not
vested.
(vii) Outplacement.
For a
twelve (12)-month period following the termination of employment, the
Corporation will provide the Executive with outplacement services in an amount
not to exceed $10,000.
(viii) Reduction
in Fringe Benefits.
Fringe
benefits under this Section will be reduced to the extent practicable for any
similar fringe benefits provided by and available to the Executive from any
subsequent employer but will not be limited by the terms of any fringe benefit
of a subsequent employer.
(b) Upon
Any Other Termination.
Upon
the Executive’s termination of employment absent Good Reason, by the Corporation
for Cause, or on account of death or disability, in any case following a Change
in Control, no amounts will be payable under this Agreement.
4. Section
409A Compliance.
Notwithstanding
any other provision in this Agreement, to the extent that (i) the Executive
is a
“specified employee” with the meaning of Code § 409A(a)(2)(B)(i), (ii) any
amounts payable under this Agreement represents an amount which is subject
to
Code § 409A, and (iii) such amounts are payable on the Executive’s “separation
from service,” within the meaning of Code § 409A, then such amount will not be
payable to the Executive before the date which is six (6) months after the
Executive’s separation from service. Further, if the time or form of payment of
any amounts under this Agreement would not be in compliance with Code § 409A,
then payment of those amounts will be made at such time and in such a manner
that the payment will be in compliance with Code § 409A.
5. Effect
of Regulatory Actions.
Any
actions by the Corporation under this Agreement must comply with the law,
including regulations and other interpretive action, of the Federal Deposit
Insurance Act, Federal Deposit Insurance Corporation and Office of Thrift
Supervision, or other entities that supervise any of the activities of the
Corporation. Specifically:
(a) Temporary
Suspension or Prohibition.
If the
Executive is suspended from office or temporarily prohibited from participating
in the conduct of the affairs of any banking subsidiary of the Corporation
by a
notice served under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance
Act (“FDIA”), 12 U.S.C. § 1818(e)(3) and (g)(1), the Corporation’s obligations
under this Agreement will be suspended as of the date of service, unless stayed
by appropriate proceedings. If the charges in the notice are dismissed, the
Corporation, in its discretion, may (i) pay the Executive all or part of the
compensation withheld while its obligations under this Agreement were suspended
and (ii) reinstate in whole or in part any of its obligations that were
suspended.
(b) Permanent
Suspension or Prohibition.
If the
Executive is removed from office or permanently prohibited from participating
in
the conduct of the affairs of any banking subsidiary of the Corporation by
an
order issued under Section 8(e)(4) or (g)(1) of the FDIA, 12 U.S.C. § 1818(e)(4)
and (g)(1), all obligations of the Corporation under this Agreement will
terminate as of the effective date of the order, but vested rights of the
contracting parties will not be affected.
(c) Default
of the Bank.
If any
banking subsidiary of the Corporation is in default (as defined in Section
3(x)(1) of the FDIA, 12 U.S.C. § 1813(x)(1)), all obligations under this
Agreement will terminate as of the date of default, but vested rights of the
contracting parties will not be affected.
(d) Termination
by Regulators.
All
obligations under this Agreement will be terminated, except to the extent
determined by the federal bank regulatory agency of any banking subsidiary
of
the Corporation that continuation of this Agreement is necessary for the
continued operation of the banking subsidiary, if (1) the governing federal
bank
regulatory agency enters into an agreement to provide assistance to or on behalf
of a banking subsidiary of the Corporation under the authority contained in
Section 13(c) of the FDIA, 12 U.S.C. § 1823(c); or (2) such banking
subsidiary of the Corporation is determined by the federal bank regulatory
authority to be in an unsafe or unsound condition. However, vested rights of
the
contracting parties will not be affected.
6. Golden
Parachute Adjustments.
Notwithstanding anything in this Agreement or any other agreement to the
contrary, (A) in the event the Corporation (or its successor) and the Executive
both determine, based upon the advice of the independent public accountants
for
the Corporation, that part or all of the consideration, compensation or benefits
to be paid to the Executive under this Agreement constitute “parachute payments”
under Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended,
then,
if the aggregate present value of such parachute payments, singularly or
together with the aggregate present value of any consideration, compensation
or
benefits to be paid to the Executive under any other plan, arrangement or
agreement which constitute “parachute payments” (collectively, the “Parachute
Amount”) exceeds 2.99 times the Executive’s “base amount,” as defined in Section
280G(b)(3) of the Code (the “Executive Base Amount”), the amounts constituting
“parachute payments” which would otherwise be payable to or for the benefit of
the Executive shall be reduced to the extent necessary so that the Parachute
Amount is equal to 2.99 times the Executive Base Amount (the “Reduced Amount”);
provided that such amounts shall not be so reduced if the Executive determines,
based upon the advice of an independent public accounting firm (which may,
but
need not be the independent public accountants of the Corporation), that without
such reduction the Executive would be entitled to receive and retain, on a
net
after tax basis (including, without limitation, any excise taxes payable under
Section 4999 of the Code), an amount which is greater than the amount, on a
net
after tax basis, that the Executive would be entitled to retain upon Executive’s
receipt of the Reduced Amount.
(B) If
the
determination made pursuant to clause (A) above results in a reduction of the
payments that would otherwise be paid to the Executive except for the
application of this Section 6, then the Executive may then elect, in the
Executive’s sole discretion, which and how much of any particular entitlement
shall be eliminated or reduced and shall advise the Corporation in writing
of
Executive’s election within ten days of the determination of the reduction in
payments. If no such election is made by the Executive within such ten-day
period, the Corporation may elect which and how much of any entitlement shall
be
eliminated or reduced and shall notify the Executive promptly of such election.
Within ten days following such determination and the elections hereunder, the
Corporation shall pay or distribute to or for the benefit of the Executive
such
amounts as are then due to the Executive under this Agreement and shall promptly
pay or distribute to or for the benefit of the Executive in the future such
amounts as become due to the Executive under this Agreement.
(C) As
a
result of the uncertainty in the application of Section 280G of the Code at
the
time of a determination hereunder, it is possible that payments will be made
by
the Corporation which should not have been made under clause (A) of this Section
6 (an “Overpayment”) or that additional payments which are not made by the
Corporation pursuant to clause (A) of this Section 6 should have been made
(an
“Underpayment”). In the event that there is a final determination by the
Internal Revenue Service, a final determination by a court of competent
jurisdiction or a change in the provisions of the Code or regulations pursuant
to which an Overpayment arises, any such Overpayment shall be treated for all
purposes as a loan to the Executive which the Executive shall repay to the
Corporation together with interest at the applicable Federal rate provided
for
in Section 7872(f)(2) of the Code. In the event that there is a final
determination by the Internal Revenue Service, a final determination by a court
of competent jurisdiction or a change in the provisions of the Code or
regulations pursuant to which an Underpayment arises under this Agreement,
any
such Underpayment shall be promptly paid by the Corporation to or for the
benefit of the Executive, together with interest at the applicable Federal
rate
provided for in Section 7872(f)(2) of the Code.
The
calculations required by clause (A) of this Section 6 will be made by the
Corporation’s independent accounting firm engaged immediately prior to
the event
that triggered the payment, in consultation with the Corporation’s outside legal
counsel, and for purposes of making the calculation the accounting firm may
make
reasonable assumptions and approximations concerning applicable taxes and may
rely on reasonable, good faith interpretations concerning the application of
Sections 280G and 4999 of the Code, provided that the accounting firm’s
determinations must be made with substantial authority (within the meaning
of
Section 6662 of the Code).
7. Late
Payments: Tax Withholding.
Any
payment required to be made to the Executive under this Agreement that is not
made at the time required hereunder shall bear interest at a rate equal to
120%
of the monthly compounded applicable federal rate, as in effect under Section
1274(d) of the Code for the month in which the payment is required to be made.
All payments required to be made to the Executive under this Agreement shall
be
subject to the withholding of such amounts, if any, relating to tax, excise
tax
and other payroll deductions as the Corporation may reasonably determine it
should withhold pursuant to any applicable law or regulation.
8. Non-Solicitation.
In
consideration of the compensation and other benefits to be paid to the Executive
under this Agreement, the Executive agrees that, beginning on the date of this
Agreement and continuing until the Covenant Expiration Date, as hereafter
defined, the Executive shall not, directly or indirectly, for the Executive’s
own account or as agent, employee, officer, director, trustee, consultant,
partner, stockholder or equity owner of any corporation or any other entity
(a)
solicit the employment of any person who is employed by the Corporation or
any
Affiliate at the Reference Date or at any time during the six-month period
preceding the Reference Date, except that the Executive shall be free to solicit
the employment of any such person whose employment with the Corporation or
any
Affiliate has terminated for any reason (without any interference from the
Executive) or who has not been employed by the Corporation or any Affiliate
for
at least six (6) months, (b) canvass or solicit business in competition with
the
business conducted by the Corporation or any Affiliate at the Reference Date
from any person or entity who during the six (6) month period preceding the
Reference Date shall have been a customer of the Corporation or any Affiliate,
(c) willfully dissuade or discourage any person or entity from using, employing
or conducting business with the Corporation or any Affiliate or (d)
intentionally disrupt or interfere with, or seek to disrupt or interfere with,
the business or contractual relationship between the Corporation or any
Affiliate and any other party who during the six-month period preceding the
Reference Date shall have supplied materials or services to the Corporation
or
any Affiliate. “Covenant Expiration Date” shall mean the date which is nine (9)
months after the Reference Date. “Reference Date” shall mean the date on which
the Executive’s employment with the Corporation or an Affiliate has terminated;
provided however that the Executive’s employment shall not be deemed to have
terminated so long as the Executive continues to be employed or engaged as
an
employee or consultant of the Corporation or any Affiliate.
9. Confidential
Information.
The
Executive has and will have access to become acquainted with confidential or
proprietary information and trade secrets related to the business of the
Corporation, its subsidiaries and any Affiliates (collectively, the
“Companies”), including but not limited to (i) trade secrets, business plans,
software programs, operating plans, marketing plans, financial reports,
operating data, budgets, wage and salary rates, pricing strategies and
information, terms of agreements with suppliers or customers and
others,
customer
lists, reports, correspondence, tapes, disks, tangible property and
specifications owned by or used in the Companies’ businesses; (ii) operating
strengths and weaknesses of the Companies’ officers, directors, employees,
agents, suppliers and customers, and/or (iii) information pertaining to future
developments such as, but not limited to, software development or enhancement,
future marketing plans or ideas, and plans or ideas for new services or
products, (iv) all information which is learned or developed by the Executive
in
the course and performance of the Executive’s duties under this Agreement,
including without limitation, reports, information and data relating to the
Companies’ acquisition strategies, and (v) other tangible and intangible
property which is used in the business and operations of the Companies’ but not
made publicly available ((i) through (v) are, collectively, “Confidential
Information”). The Executive will not, directly or indirectly, disclose, use or
make known for the Executive’s or another’s benefit any Confidential Information
of the Companies or use such Confidential Information in any way except in
the
best interests of the Companies in the performance of the Executive’s duties.
The Executive will take all necessary steps to safeguard the Companies’
Confidential Information. In addition, to the extent that the Corporation has
entered into a confidentiality agreement with any other person or entity the
Executive agrees to comply with the terms of such confidentiality agreement
and
to be subject to the restrictions and limitations imposed by such
confidentiality agreements as if the Executive was a party thereto.
10. Non-exclusivity
of Rights.
Except
as otherwise specifically provided, nothing in this Agreement will prevent
or
limit the Executive’s continued or future participation in any benefit,
incentive, or other plan, practice, or program provided by the Corporation
and
for which the Executive may qualify. Any amount of vested benefit or any amount
to which the Executive is otherwise entitled under any plan, practice, or
program of the Corporation will be payable in accordance with the plan,
practice, or program, except as specifically modified by this Agreement. To
the
extent that this Agreement provides a larger or greater separate severance
benefit than may be provided to the Executive pursuant to any policy, program,
contract or arrangement adopted by the Corporation, this Agreement will
supersede and be in full substitution of such other policy, program, contract
or
arrangement with respect to the larger or greater separate severance benefit
to
be provided.
11. No
Obligation to Seek Other Employment.
The
Executive will not be obligated to seek other employment or to take other action
to mitigate any amount payable to the Executive under this
Agreement.
12. Benefit
Claims.
In
the
event the Executive, or the Executive’s beneficiaries, as the case may be, and
the Corporation disagree as to their respective rights and obligations under
this Agreement, and the Executive or the Executive’s beneficiaries are
successful in establishing, privately or otherwise, that the Executive’s or
their position is substantially correct, or that the Corporation’s position is
substantially wrong or unreasonable, or in the event that the disagreement
is
resolved by settlement, the Corporation will pay all costs and expenses,
including counsel fees, which the Executive or the Executive’s beneficiaries may
incur in connection therewith directly to the provider of the services or as
may
otherwise be directed by the Executive or the Executive’s beneficiaries. The
Corporation will not delay or reduce the amount of any payment provided for
hereunder or setoff or counterclaim against any such amount for any reason
whatsoever; it is the intention of the Corporation and the Executive that the
amounts payable to the Executive or the Executive’s beneficiaries hereunder will
continue to be paid in all events in the manner and at the times herein
provided. All payments made by the Corporation hereunder will be final and
the
Corporation will not seek to recover all or any part of any portion of any
payments hereunder for any reason.
13. Successors.
This
Agreement is personal to the Executive and may not be assigned by the Executive
other than by will or the laws of descent and distribution. This Agreement will
inure to the benefit of and be enforceable by the Executive’s legal
representatives or successors in interest. The Executive may designate a
successor or successors in interest to receive any amounts due under this
Agreement after the Executive’s death. A designation of a successor in interest
must be made in writing, signed by the Executive, and delivered to the
Corporation pursuant the Notice provisions of this Agreement. Except as
otherwise provided in this Agreement, if the Executive has not designated a
successor in interest, payment of benefits under this Agreement will be made
to
the Executive’s estate. This Section will not supersede any designation of
beneficiary or successor in interest made by the Executive or provided for
under
any other plan, practice, or program of the Corporation.
This
Agreement will inure to the benefit of and be binding upon the Corporation
and
its successors and assigns.
The
Corporation will require any successor (whether direct or indirect, by
acquisition of assets, merger, consolidation or otherwise) to all or
substantially all of the operations or assets of the Corporation or any
successor and without regard to the form of transaction used to acquire the
operations or assets of the Corporation, to assume and agree to perform this
Agreement in the same manner and to the same extent that the Corporation would
be required to perform it if no succession had taken place. “Corporation” means
the Corporation and any successor to its operations or assets as set forth
in
this Section that is required by this clause to assume and agree to perform
this
Agreement or that otherwise assumes and agrees to perform this
Agreement.
14. Arbitration.
Any
controversy or claim arising out of or relating to this Agreement, or a breach
of it, must be settled by final and binding arbitration administered by the
American Arbitration Association under its National Rules for the Resolution
of
Employment Disputes, and judgment upon the award rendered by the arbitrators
may
be entered by any court having jurisdiction over it. The arbitration must take
place in Buffalo, New York. The arbitration must be conducted before three
(3)
arbitrators.
15. Allocation
of Payments, Etc., Between Corporation and Bank.
All
payments, accruals and other benefits under this Agreement will be allocated
between the Corporation and the Bank. The Corporation and Bank management will
recommend allocations supported by data they provide, and the Board will approve
the allocations. The allocation will make certain no amounts are paid or owed
by
the Bank that are attributable to services performed by the Executive for the
Corporation. The Corporation nonetheless will remain jointly liable for all
payments, accruals and benefits under this Agreement.
16. Failure,
Delay or Waiver.
No
course of action or failure to act by the Corporation or the Executive will
constitute a waiver by the party of any right or remedy under this Agreement,
and no waiver by either party of any right or remedy under this Agreement will
be effective unless made in writing.
17. Severability.
Whenever
possible, each provision of this Agreement will be interpreted in such a manner
as to be enforceable under applicable law. However, if any provision of this
Agreement is deemed unenforceable under applicable law by a court having
jurisdiction, the provision will be unenforceable only to the extent necessary
to make it enforceable without invalidating the remainder of it or any of the
remaining provisions of this Agreement.
18. Notice.
All
written communications to parties required hereunder must be in writing and
(a)
delivered in person, (b) mailed by registered or certified mail, return receipt
requested, (such mailed notice to be effective 4 days after the date it is
mailed) or (c) sent by facsimile transmission, with confirmation sent by way
of
one of the above methods, to the party at the address given below for the party
(or to any other address as the party designates in a writing complying with
this Section, delivered to the other party):
If
to the
Corporation:
First
Niagara Financial Group, Inc.
0000
Xxxxx Xxxxxxx Xxxx
X.X.
Xxx
000
Xxxxxxxx,
XX 00000-0000
Attention: Chief
Human Resource Officer
Telephone: 000-000-0000
Telecopier:
000-000-0000
with
a
copy (which shall not constitute notice) to:
Xxxxxxx
Xxxx, XXX
Xxx
X&X Xxxxx, Xxxxx 0000
Buffalo,
New York 14203
Attention: Xxxx
X.
Xxxxxxxxxxx, Esq. or Xxxxxxx X. Xxxxxx, Esq.
Telephone: 000-000-0000
Telecopier:
000-000-0000
If
to the
Executive:
G.
Xxxx
Xxxxxx
000
Xxxxx
Xxxxxx
Xxxxxxx,
Xxx Xxxx 00000
Telephone:
000-000-0000
Telecopier:
000-000-0000 (office)
with
a
copy (which shall not constitute notice) to:
n/a______________________________
________________________________
________________________________
Attention: ____________________
Telephone: (
)
___-____
Telecopier: (
)
___-____
19. Miscellaneous.
This
Agreement (a) may not be amended, modified or terminated orally or by any course
of conduct pursued by the Corporation or the Executive, but may be amended,
modified or terminated only by a written agreement duly executed by the
Corporation and the Executive, (b) is binding upon and inures to the benefit
of
the Corporation and the Executive and each of their respective heirs,
representatives, successors and assignees, except that the Executive may not
assign any of the Executive’s rights or obligations pursuant to this Agreement,
(c) constitutes the entire agreement between the Corporation and the Executive
with respect to the subject matter of this Agreement, and supersedes all oral
and written proposals, representations, understandings and agreements previously
made or existing with respect to such subject matter, and (d) will be governed
by, and interpreted and construed in accordance with, the laws of the State
of
New York, without regard to principles of conflicts of law.
20. Termination
of this Agreement.
This
Agreement will terminate on the later of (i) the Expiration Date or (ii) the
date on which the Corporation has made the last payment to the Executive of
any
amount provided for under this Agreement. However, the obligations set forth
under Sections 3(a)(iv) and 9 will survive any termination and will remain
in
full force and effect. Without the written consent of the Executive, the
Corporation has no right to terminate this Agreement prior to the date of the
last payment.
21. Multiple
Counterparts.
This
Agreement may be executed in one or more counter parts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. Any party may execute this Agreement by facsimile signature and
the
other party shall be entitled to rely on such facsimile signature as evidence
that this Agreement has been duly executed by such party. Any party executing
this Agreement by facsimile signature shall immediately forward to the other
party an original page by overnight mail.
IN
WITNESS WHEREOF,
the
parties have duly executed this Agreement as of the date first above
written.
| CORPORATION: | First Niagara Financial Group, Inc. | |
| |
|
|
| By: | ||
|
Name:
Xxxx X. Xxxxxxx
Title:
President & CEO
|
||
|
EXECUTIVE:
|
||
|
G.
Xxxx Xxxxxx
|
||
