FIRST NIAGARA FINANCIAL GROUP, INC.
FORM OF EMPLOYMENT AGREEMENT
WITH
---------------
This AGREEMENT, dated as of ___________ ("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 _____________, an individual residing at
___________________________ (the "Executive").
RECITALS:
a. The Executive has been employed by the Corporation or an
Affiliate and will continue to be employed by the
Corporation as its ___________________
b. The Corporation and the Executive desire to set forth
the terms upon which the Executive will continue to be
employed by the Corporation.
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) "Board of Directors" or "Board" means the Board of
Directors of the Corporation.
(c) "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 his duties under this
Agreement (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. In the case of a termination by the Corporation
within 6 months after a Change in Control, 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 his 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.
(iv) Breach by the Executive of any restrictive
covenant in Sections 12 and 13.
The Executive will not be deemed to have been terminated
for Cause until there has been delivered to him 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 his
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.
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(d) "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
(A) 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 25% 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 25%,
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(B) results in a change in control of the
Corporation within the meaning of the Home Owners'
Loan Act and the Rules and Regulations of the
Office of Thrift Supervision (or its predecessor
agency) under that Act, or
(C) would be required to be reported in
response to Item 1(a) of the current report on
Form 8-K, pursuant to Section 13 or 15(d) of the
Exchange Act;
(ii) At the time when, during any period not
longer than 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 stockholders, 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);
(iii) Approval by the stockholders 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 75% of
the
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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
stockholders 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; or
(iv) A tender offer is made for 25% or more of
the Outstanding Corporation Voting Securities and the
shareholders owning beneficially or of record 25% or
more of the Outstanding Corporation Voting Securities
have tendered or offered to sell their shares pursuant
to that tender offer, at the time those shares have been
accepted by the tender offer.
(v) However, a Change in Control will not be
deemed to have occurred under any of the preceding
subparagraphs if the action (agreement, acquisition or
other) also is approved by a majority of the Board, the
Corporation or an Affiliate is the resulting entity, and
at least 51% of the ownership of voting control of the
Corporation, under any of the preceding subparagraphs,
remains unchanged from that ownership immediately prior
to such action.
(e) "Code" means the Internal Revenue Code of 1986, as
amended.
(f) "Corporation" means, collectively, First Niagara
Financial Group, Inc. and its Affiliates, except for purposes of
subsection (d) or where the context clearly
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requires otherwise. For example, payments made by an Affiliate are
considered payments made by the Corporation.
(g) "Disability" means long term disability as defined
in the Corporation's long term disability policy covering the Executive,
or if the Executive is not covered by any such policy, Disability of the
Executive will be determined by a qualified independent physician
selected by the Executive and the Corporation. If they cannot agree, each
will select such a physician and those two physicians will select a third
physician who will make the determination. The physician's written
determination to the Corporation and to the Executive will be conclusive.
In the event of his Disability, the Executive will cease to be employed
on the last day of the month in which the Executive's disability is
determined in accordance with the Corporation's policy, by written
agreement of the Executive and the Corporation, or by the written
determination of the physician, as the case may be.
(h) "Good Reason" means:
(i) A significant reduction in the scope of the
Executive's duties.
(ii) Removal from, or failure to re-elect the
Executive to, the position of ___________________________.
(iii) However, if best practices of the industry as
expressed in guidelines issued by the National Association
of Corporate Directors (including as set forth as of the
date of this Agreement in the Board Credo) or regulations
of the National Association of Securities Dealers' National
Market System (or regulation of another exchange on which
the Corporation's stock is listed) or applicable regulatory
supervision requires an outside director be Chairman, that
the positions cannot be held by the same person, or some
other similar determination relating to the 3
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positions described in (ii), the failure then to elect or
the action then to remove the Executive as ___________ will
not be deemed Good Reason.
(iv) A requirement, in the Executive's reasonable
judgment, that the services required to be performed by the
Executive would necessitate the Executive moving his
residence from within 50 miles of the Lockport, New York
area.
(v) 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.
(i) "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.
2. Employment; Duties. Subject to the terms and
conditions set forth in this Agreement, the Corporation agrees to employ the
Executive, and the Executive accepts employment, as _________________ of the
Corporation, in full charge of the operation of its business and affairs,
subject to the provisions of the by-laws of the Corporation in respect of the
duties and responsibilities assigned from time to time by the Board of Directors
to the ___________________________, and subject also at all times to the control
of the Board of Directors. Subject to the yearly election by the Board of
Directors in the exercise of its judgment and consistent with the other
provisions of this Agreement, the Executive will continue to be elected to the
position of __________________________. The Executive will perform those duties
and discharge those responsibilities as are commensurate with his position, and
as the Board of Directors may from time to time reasonably direct, recognizing
the executive nature and scope of the Executive's employment. The Executive
agrees to perform his duties and discharge his responsibilities in a faithful
manner and to the best of his ability and to use all reasonable efforts to
promote the interests of the Corporation. The Executive may not accept other
gainful employment except with the prior consent of the Board of Directors. With
the prior
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consent of the Board of Directors, the Executive may become a director, trustee
or other fiduciary of other corporations, trusts or entities.
3. Compensation.
(a) Salary. During the term of the Executive's
employment under this Agreement, the Executive will receive a base salary
at the rate of $_________ per year, payable in at least equal monthly
installments. On an annual basis, the Board of Directors, in good faith,
will review the base salary of the Executive to consider appropriate
increases, but not decreases, in the base salary.
(b) Incentive Programs. During the term of the
Executive's employment under this Agreement, the Executive will be
entitled to receive an annual cash bonus from the Corporation calculated
pursuant to the Corporation's incentive programs for all executive
officers of the Corporation in effect from time to time. The Board of
Directors, in its discretion, may award bonuses to the Executive in
addition to those provided for above, as it may from time to time
determine.
(c) Withholding. The Corporation will deduct or withhold
from all salary and bonus payments, and from all other payments made to
the Executive, all amounts that may be required to be deducted or
withheld under any applicable Social Security contribution, income tax
withholding or other similar law now in effect or that may become
effective during the Executive's employment.
4. Other Benefits and Terms. During the term of the
Executive's employment under this Agreement, the Executive will be entitled to
the following other benefits and terms:
(a) The Executive will be entitled to participate in any
health and medical benefit plans, any pension, profit sharing and
retirement plans, and any insurance policies or programs from time to
time offered to executive employees of comparable
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status to the Executive who are employed by the Corporation. These plans,
policies and programs are subject to change at the sole discretion of the
Corporation.
(b) The Executive will be entitled to any other fringe
benefit from time to time offered to executive employees of comparable
status to the Executive who are employed by the Corporation.
5. Vacations. The Executive will be entitled to annual
paid vacation in accordance with the policies established by the Board of
Directors for executive employees and to voluntary leaves of absence, with or
without pay, from time to time at the times and conditions as the Board of
Directors may determine in its discretion, but not less than the vacation and
leave to which he is entitled on the date of this Agreement, which, in the case
of the annual amount of vacation, is ____ weeks each calendar year.
6. Reimbursement for Expenses. The Corporation, in
accordance with the policies and procedures applicable to executive officers of
the Corporation, will reimburse the Executive for expenses the Executive may
reasonably incur from time to time on behalf of and at the request of the
Corporation in the performance of his responsibilities and duties including, but
not limited to, professional dues and attendance at professional conferences.
The Executive must account for these expenses as required under these policies
and procedures.
7. Period of Employment. The period of employment of
the Executive under this Agreement is the period beginning on the Effective Date
and ending 36 months after the Effective Date. However, on the expiration of the
initial 12 month period after the Effective Date, and on the expiration of each
12 month period after that date (that date and expiration of each 12 month
period after that date is referred to as the "Renewal Date"), unless previously
terminated, the term will be automatically extended for 12 months, unless prior
to the July 1 immediately preceding the Renewal Date the Corporation gives
notice to the Executive that the Agreement will not be so extended.
Notwithstanding the foregoing:
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(a) The Executive's employment will terminate
automatically upon the death or Disability of the Executive, subject to
the duty of the Corporation to provide reasonable accommodation under the
Americans with Disabilities Act.
(b) The Corporation, at its sole option, may terminate
the Executive's employment at any time and for any reason by delivering
written notice to the Executive at least 60 days prior to the effective
date of the termination.
(c) The Corporation, at its sole option, may terminate
the Executive's employment at any time for Cause by delivering a written
notice to the Executive on or prior to the effective date of the
termination.
(d) The Executive, at his sole option, may terminate his
employment for Good Reason by providing written notice to the Corporation
at least 60 days prior to the effective date of the termination of
employment specified in the notice.
(e) The Executive, at his sole option, may terminate his
employment absent Good Reason by providing written notice to the
Corporation at least 60 days prior to the effective date of the
termination of employment specified in the notice.
Any notice of termination of employment given by a party must
specify the particular termination provision of this Agreement relied upon by
the party and must set forth in reasonable detail the facts and circumstances
that provide a basis for the termination.
8. Benefits upon Termination. The Corporation will
provide the following benefits upon the termination of the Executive's
employment with the Corporation.
(a) Upon Termination by the Corporation or by the
Executive with Good Reason. Upon the Executive's termination of his
employment for Good Reason or the Corporation's termination of the
Executive's employment for any reason other than Cause, the Corporation
will provide the following:
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(i) Salary and Fringe Benefits. The Executive will
receive his salary and health, medical and life insurance
benefits in effect on the date of either the Corporation's or the
Executive's receipt of a notice of termination from the other
party for a period of ___ months beginning with the month next
following the month in which the Executive's employment
terminates. If the Executive dies, the balance of the salary
payments will be made to his spouse, if surviving, or if not, to
the Executive's estate in addition to any other benefits payable
under this Agreement on the Executive's death.
(ii) Bonus. The Executive will receive a monthly cash
bonus for the ___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 __ full fiscal years, divided by 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.
(iv) For purposes of the Executive's rights to
continuation of health and medical benefits under applicable law,
state or federal ("COBRA"), the "qualifying event" will be deemed
to have occurred at the end of the period during which health and
medical benefits are provided under Section 8(a), unless the
Corporation's agreements with third party insurers or providers
does not permit this extended beginning date of an employee's
COBRA rights.
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(b) Upon Termination by the Executive Absent Good Reason or by
the Corporation for Cause. Upon the Executive's termination of his
employment absent Good Reason or by the Corporation for Cause, the
Corporation will provide only the following:
(i) Salary and Benefits. The Executive will receive his
salary and fringe benefits, but not bonus, through his
termination date.
(ii) 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.
(c) Upon Termination for Disability. Upon termination of the
Executive's employment because of Disability, the Corporation will provide
the following:
(i) Salary. The Executive will receive his salary in
effect on the date immediately before the Disability for the
greater of (A) the remaining term of this Agreement or (B) 6
months, in either case reduced by any disability insurance
payments made to the Executive during the period on policies of
insurance maintained and paid for by the Corporation and by any
continuing salary payments paid under any other provision of this
Agreement.
(ii) Bonus. The Executive will receive a pro-rata bonus
for the fiscal year in which his Disability begins, based on his
period of active employment in that fiscal year. Payment will be
made at the time and in
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the form as other executives receive their bonus payments for
that fiscal year.
(iii) Fringe Benefits. The Executive will receive the
fringe benefits provided by the Corporation under its executive
disability policy in effect on the date his Disability begins.
(iv) 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 Disability
begins. Payment for accrued but unused vacation will be payable
in one lump sum on the date the Disability begins (or as soon
after that as practicable).
(d) Upon Termination for Death. Upon termination of the
Executive's employment because of death, the Corporation will provide the
following:
(i) Salary. The Executive's spouse, if surviving, or if
not, the Executive's estate, will receive the Executive's salary
in effect on the date immediately before his death through the
end of the calendar month in which the Executive died.
(ii) Bonus. The Executive's spouse, if surviving, or if
not, the Executive's estate, will receive a pro-rata bonus for
the fiscal year in which he dies, based on the Executive's period
of active employment for that fiscal year. Payment will be made
at the time and in the form as other executives receive their
bonus payments for that fiscal year.
(iii) Accrued Vacation. The Executive's spouse, if
surviving, or if not, the Executive's estate, 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
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Executive dies. Payment for accrued but unused vacation will be
payable in one lump sum on the date of the Executive's death (or
as soon thereafter as practicable).
(e) Upon Termination Following a Change in Control. Upon the
Executive's termination of employment by the Corporation without Cause or
the Executive's termination of employment for Good Reason, in either case
within 12 months following a Change in Control, all payments due the
Executive under subsection (a) will be paid in a lump sum within 30 days
following that termination of employment.
(f) 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.
9. 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 ("regulatory entities"). For
example, any default of the Corporation caused by action of the regulatory
entities or their rules, including the suspension or limitation of payments,
will not be considered a breach of this Agreement by the Corporation; and any
action by the regulatory entities preventing the Executive from participating in
the conduct of the Corporation's business will terminate the Corporation's
obligations under this Agreement without being considered a breach of the
Agreement.
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
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Corporation will be payable in accordance with the plan, practice, or program,
except as specifically modified by this Agreement.
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 him under this Agreement.
12. Confidential Information.
(a) The Executive will hold in a fiduciary capacity for the
benefit of the Corporation all secret or confidential information,
knowledge or data relating to the Corporation and its respective
businesses, that was obtained by the Executive during the Executive's
employment by the Corporation ("Confidential Information") and that will
not be or become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this Agreement). After
termination of the Executive's employment with the Corporation, the
Executive, without prior written consent of the Corporation, will not
communicate or divulge any such information, knowledge or data to anyone
other than the Corporation and those designated by it. In addition, to the
extent the Executive is a party to any other agreement relating to
non-competition, confidential information, inventions or similar matters
with the Corporation, the Executive will continue to comply with the
provisions of those agreements.
(b) The Executive's obligations under subsection (a) will not
apply with respect to Confidential Information that (a) was in the public
domain at or subsequent to the time it was communicated to the Executive by
the Corporation through no fault of the Executive; (b) was rightfully in
the Executive's possession free of any obligation of confidence at or
subsequent to the time it was communicated to the Executive by the
Corporation, (c) was developed by employees or agents of the Executive's
independently of and without use of any Confidential Information of the
Corporation; or (d) was communicated by the Executive to an unaffiliated
third party free of any obligation of confidence. A disclosure of
Confidential Information (a) in response
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to a valid order by a court or other governmental body, (b) otherwise
required by law, or (c) necessary to establish the rights of either
party under this Agreement will not be considered to be a breach of
this Agreement or a waiver of confidentiality for other purposes; but
the Executive must provide prompt written notice of the disclosure to
enable the Corporation to seek a protective order or otherwise prevent
that disclosure.
(c) The Executive agrees that, except as required by his duties
with the Corporation or as authorized by the Corporation in writing,
the Executive will not use or disclose to anyone at any time,
regardless of whether before or after the Executive ceases to be
employed by the Corporation, any of the Confidential Information
obtained by him in the course of his employment with the Corporation.
13. Non-Competition.
(a) In consideration of the compensation and other benefits to
be paid to the Executive during the term of and in connection with this
Agreement, the Executive agrees that, beginning on the date of this
Agreement and continuing until the Covenant Expiration Date (defined
below), he will not directly or indirectly, for his own account or as
agent, employee, officer, director, trustee, consultant, partner,
stockholder, member of any firm or equity owner of any corporation or
any other entity, (i) own or participate in any such entity that, in
the Restricted Territory, is in the business conducted by the
Corporation or any other business activity that is directly or
indirectly competitive with the business conducted by the Corporation
or any Affiliate at the Reference Date (except that he may own directly
or indirectly interests constituting less than 5% of any class of
interests of any entity that is in such competition with the
Corporation or any Affiliate), (ii) otherwise engage or attempt to
engage, in the Restricted Territory, in the business conducted by the
Corporation or any other business activity that is directly or
indirectly competitive with the business conducted by any Affiliate at
the Reference Date, (iii) employ or 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 6 month period preceding
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the Reference Date, except that the Executive may employ or solicit the
employment of any person whose employment with the Corporation, or any
Affiliate has terminated for any reason (without any interference from
the Executive) and who has not been employed by the Corporation or any
Affiliate for at least 6 months, (iv) canvass or solicit business in
competition with any business conducted by the Corporation or any
Affiliate at the Reference Date from any person or entity who during
the 6 month period preceding the Reference Date has been a customer of
the Corporation or any Affiliate, or (v) willfully dissuade or
discourage any person or entity from using, employing or conducting
business with the Corporation or any Affiliate. However, in the case of
the Executive's termination of employment by the Corporation without
Cause or by the Executive for Good Reason, (i) and (ii) will not apply
after the Termination Date; and in the case of the Executive's
termination of employment by the Corporation with Cause, the Board, in
its deliberations at the meeting required to be called under Section
1(c), will determine whether or not (i) and (ii) will apply, taking
into account the circumstances of the Cause.
(b) Reasonableness of Limitations. The Executive acknowledges,
warrants, represents and agrees that the restrictive covenants
contained in this Section are necessary for the protection of the
Corporation's legitimate business interests and are reasonable in scope
and content. The Executive acknowledges that the territorial, time and
other limitations of this Agreement are reasonable and properly
required for the adequate protection of the business and affairs of the
Corporation, and, if any such territorial, time or other limitations is
found to be unreasonable by a court of competent jurisdiction, the
Executive agrees (i) to the reduction of any of that territorial, time
or other limitation, or all of them, to an area, period or other wise
as that court may determine to be reasonable and (ii) that all of the
other provisions of this Agreement will remain valid, binding and in
full force and effect.
(c) Definitions.
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(i) "Covenant Expiration Date" means the
date that is 12 months after the Termination Date.
(ii) "Reference Date" means (A) for purposes
of applying the covenants in subsection (a) at any
time prior to the Termination Date, the then current
date, or (B) for purposes of applying the covenants
in subsection (a) at any time on or after the
Termination Date, the Termination Date.
(iii) "Restricted Territory" means anywhere
the Corporation or any Affiliate conducts, or has
immediate plans of which the Executive is aware at
the Reference Date to conduct, any business activity
at the Reference Date.
(iv) "Termination Date" means the date of
termination of the Executive's employment with the
Corporation. The Executive's employment will 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, even
if that employment or engagement continues after the
expiration of the term of this Agreement, whether
pursuant to this Agreement or otherwise.
14. Breach, Remedies and Jurisdiction.
(a) Other Agreements. In addition to the obligations
under Sections 12 and 13, the Executive will execute any documents
relating to confidentiality, non-solicitation, and non-competition as
required generally by the Corporation of its executive officers.
Nothing in this Agreement will be construed as modifying any provisions
of those agreements or documents. In the case of any inconsistency
between those agreements and documents and this Agreement, the broader
provision will prevail. In no event will an asserted violation of the
provisions of this Section constitute a basis
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for deferring or withholding any amounts otherwise payable to the
Executive under this Agreement, except if the Executive materially
breaches Section 12 or 13 or a covenant not to compete or
confidentiality provision in any such agreement or document, that
breach will be considered a material breach of this Agreement.
(b) Remedies. The Executive agrees that, because irreparable
damage could result from his breach of the covenants in Sections 12 and
13, in addition to all other remedies available to the Corporation, the
Corporation will have the remedies of a restraining order, injunction
or other equitable relief to enforce the provisions these Sections. The
Executive consents to jurisdiction in Niagara or Erie County, New York
on the date of the commencement of any action for purposes of any
claims under these Sections. In addition, the Executive agrees that the
issues in any action brought under either these Sections will be
limited to claims under that Section, and all other claims or
counterclaims under other provisions of this Agreement will be
excluded.
15. Indemnification. The Corporation will provide the Executive
(including his heirs, executors and administrators) with coverage under a
standard directors' and officers' liability insurance policy at its expense, and
will indemnify the Executive (and his heirs, executors and administrators) to
the fullest extent permitted under, and subject to the terms and conditions
under, federal law against all expenses and liabilities reasonably incurred by
him in connection with or arising out of any action, suit or proceeding in which
he may be involved by reason of his having been a director or officer of the
Corporation (whether or not he continues to be a director or officer at the time
of incurring those expenses or liabilities). Those expenses and liabilities
include, but are not limited to, judgments, court costs and attorneys' fees and
the cost of reasonable settlements (these settlements must be approved by the
Board). If such an action, suit or proceeding is brought against the Executive
in his capacity as an officer or director of the Corporation, however, that
indemnification will not extend to matters as to which the Executive is finally
adjudged to be liable for gross negligence or willful misconduct in the
performance of his duties.
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16. 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 Employer 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 Employer.
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.
17. 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
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having jurisdiction over it. The arbitration must take place in Buffalo, New
York. The arbitration must be conducted before 3 arbitrators.
18. Benefit Claims. If the Executive, or his beneficiaries, as
the case may be, and the Corporation disagree as to their respective rights and
obligations under this Agreement, and the Executive or his beneficiaries are
successful in establishing, privately or otherwise, that his or their position
is substantially correct, or that the Corporation's position is substantially
wrong or unreasonable, the Corporation will pay all costs and expenses,
including counsel fees, the Executive or his beneficiaries may incur in
connection with the disagreement directly to the provider of the services or as
otherwise may be directed by the Executive or his beneficiaries. Except as
otherwise specifically provided in this Agreement, the Corporation will not
delay or reduce the amount of any payment provided for under this Agreement or
setoff or counterclaim against any such amount for any reason whatsoever;
because it is the intention of the Corporation and the Executive that, except as
otherwise specifically provided in this Agreement, the amounts payable to the
Executive or his beneficiaries under this Agreement will continue to be paid in
all events in the manner and at the times provided in this Agreement. Except as
otherwise specifically provided in this Agreement, all payments made by the
Corporation under this Agreement will be final and the Corporation will not seek
to recover all or any part of any portion of any payments under this Agreement
for any reason.
19. 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.
20. 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
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make it enforceable without invalidating the remainder of it or any of the
remaining provisions of this Agreement.
21. 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: Chairman of the Executive Committee
of the Board of Directors
Telephone: 000-000-0000
Telecopier: 000-000-0000
with a copy to:
__________________
__________________
__________________
Telephone: __________
Telecopier: __________
If to the Executive:
__________________
__________________
__________________
Telephone: __________
Telecopier: __________
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with a copy to:
_________________________________
_________________________________
_________________________________
Attention: ____________________
Telephone: ( ) ___-____
Telecopier: ( ) ___-____
22. 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 his 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.
23. Termination of this Agreement. This Agreement will
terminate when the Corporation has made the last payment provided for under it.
However, the obligations set forth under Section 12 and 13 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.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
CORPORATION:
By: __________________________________________
______________
Director/Chairman of the Executive Committee
EXECUTIVE:
______________________________________________
__________________
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