Filed by Bowne Pure Compliance





Exhibit 10.4




FIRST NIAGARA FINANCIAL GROUP

EXECUTIVE SEVERANCE PLAN

Effective as of October 23, 2006




ARTICLE I.

ESTABLISHMENT OF THE PLAN




First Niagara Financial Group, Inc. (“First Niagara”) hereby establishes a self-insured
severance plan for certain of its key executive management personnel. The term “Company” means
First Niagara and any Organization Under Common Control that is covered under the Plan in
accordance with Section 5.6. Both the original effective date and the amended and restated
effective date of the Plan is October 23, 2006 (the “Effective Date”). The Plan Year is the
calendar year.



ARTICLE II.

PARTICIPATION




Section 2.1. Eligible Executives. Each Eligible Executive, as hereafter defined, will
become a Participant in the Plan on the later of: (i) the first day on which the individual becomes
an Eligible Executive; or (ii) the Effective Date. The term “Eligible Executive” means any employee
of the Company who has been designated by the Chief Executive Officer of First Niagara as a member
of First Niagara’s Strategic Performance Committee excluding any employee covered under an
employment agreement that provides for severance or other similar post-employment compensation.
If any employee becomes a Participant and thereafter is no longer designated as a member of the
Strategic Performance Committee or subsequently becomes covered under an employment agreement that
provides for severance or other similar post-employment compensation, the employee will cease to be
a Participant as of that date.



Section 2.2. Exclusive Benefit. A Participant in this Plan will not be eligible to
receive any benefit under the terms of the First Niagara Financial Group Separation Pay Plan.



ARTICLE III.

BENEFITS AND PAYMENT OF BENEFITS




Section 3.1. In General. Each Participant (i) whose employment is involuntarily terminated
by the Company for reasons other than Cause, as hereafter defined, (ii) who is required to move
employment to a location further than 100 miles of the Participant’s current place of employment
and who does not accept such relocation and terminates employment or (iii) whose aggregate
compensation is materially reduced and who terminates employment will receive a Severance Payment,
as determined under Section 3.2, if the Participant remains in employment with the Company through
his or her release date as established by the Company.


 


 









 





For purposes of this Plan, “Cause” means a finding by the Board of Directors of the Company
that any of the following conditions exist:




(1) The Participant’s willful and continued failure substantially to perform the
Participant’s duties (other than as a result of disability) that is not or cannot be
cured within 30 days of the Company giving the Participant notice of the failure to
so perform. For purposes of this Plan, no act or failure to act will be deemed
“willful” unless effected by the Participant not in good faith and without a
reasonable belief that the Participant’s action or failure to act was in or not
opposed to the Company’s best interests.




(2) A willful act or omission by the Participant constituting dishonesty, fraud
or other malfeasance, and any act or omission by the Participant constituting immoral
conduct, which in any such case is injurious to the financial condition or business
reputation of the Company.




(3) The Participant’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.




(4) Breach by the Participant of First Niagara’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 Participant.



The Participant will not be deemed to have been terminated for Cause until there has been
delivered to the Participant a copy of a resolution, duly adopted by the affirmative vote of not
less than a majority of the Board of First Niagara at a meeting called and held for that purpose
(after reasonable notice to the Participant and an opportunity for the Participant, with the
Participant’s counsel, to be heard before the Board), stating that, in the good faith opinion of
the Board, the Participant has engaged in conduct described above and specifying the particulars in
detail.



(b) Upon the occurrence of any event described in Section 3.1(ii) or (iii) above, the
Participant shall have the right to elect to terminate his employment under this Agreement by
resignation upon not less than thirty (30) days prior written notice to First Niagara, which notice
must be given by the Participant within ninety (90) days after the initial event giving rise to
said right to elect to terminate his employment. Notwithstanding the preceding sentence, in the
event of a continuing breach of this Agreement by First Niagara, the Participant, after giving due
notice within the prescribed time frame of an initial event specified above, shall not waive any of
his rights solely under this Agreement by virtue of the fact that Participant has submitted his
resignation but has remained in the employment of First Niagara and is engaged in good faith
discussions to resolve any occurrence of an event described above.

First Niagara shall have at least thirty (30) days to remedy any condition set forth above,
provided, however, that First Niagara shall be entitled to waive such period and make an immediate
payment hereunder.



 


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Section 3.2. Benefit Amount. A Participant’s Severance Payment will be equal to the
greater of:



(i) The Participant’s base salary, determined as of the date of termination, for twelve (12)
months, plus the Participant’s targeted bonus amount; or



(ii) The Participant’s base salary, determined as of the date of termination, for eighteen
(18) months.



In addition, for a twelve (12)-month period following the termination of employment, First
Niagara will reimburse the Participant for outplacement services in an amount not to exceed
$10,000; provided however, that reimbursements for such outplacement services shall be made in a
cash lump sum within 30 days of Participant’s remittance to First Niagara of a receipt for such
services.



Section 3.3. Form of Benefit Payment. A Participant will receive his or her benefit in the
form of direct deposit to his or her bank account in accordance with the normal payroll process
over the period of the Severance Payment. All applicable payroll taxes and withholding will be
applied. Severance Payments and benefits payable under this Plan will not be treated as
compensation for purposes of calculating benefits under any other employee benefit plan maintained
by the Company.



Notwithstanding any other provision in this Agreement, for purposes of this Agreement,
“termination of employment” shall mean “Separation from Service” as defined in Code Section 409A
and the Treasury Regulations thereunder, such that First Niagara and the Participant reasonably
anticipate that the level of bona fide services the Participant would perform after termination
would permanently decrease to a level that is less than 50% of the average level of bona fide
services performed (whether as an employee or an independent contractor) over the immediately
preceding 36-month period.



Notwithstanding anything in this Agreement to the contrary, if the Participant is a Specified
Employee (within the meaning of Treasury Regulations §1.409A-1(i)), then, to the extent necessary
to avoid penalties under Code Section 409A, no payment shall be made to the Participant prior to
the first day of the seventh month following the date of termination in excess of the “permitted
amount” under Code Section 409A. For these purposes, the “permitted amount” shall be an amount
that does not exceed two times the lesser of: (i) the sum of Participant’s annualized compensation
based upon the annual rate of pay for services provided to First Niagara for the calendar year
preceding the year in which occurs the date of termination or (ii) the maximum amount that may be
taken into account under a tax-qualified plan pursuant to Code Section 401(a)(17) for the calendar
year in which occurs the date of termination. Payment
of the “permitted amount” shall be made in accordance with regular payroll practices. Any
payment in excess of the permitted amount shall be made to the Participant on the first day of the
seventh month following the date of termination.


 


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Section 3.4. Forfeitures of Benefits. A Participant will forfeit his or her right to any
unpaid Severance Payments benefits if he or she is reemployed by the Company in any position that
meets the criteria in Section 3.1(c) above.



Section 3.5. Effect of Regulatory Actions. Any actions by First Niagara under this
Agreement must comply with the law, including regulations and other interpretive action, of the
Federal Deposit Insurance Act, Federal Deposit Insurance Corporation, or other entities that
supervise any of the activities of First Niagara. Specifically, any payments to the Participant by
First Niagara, whether pursuant to this Agreement or otherwise, are subject to and conditioned upon
their compliance with Section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section
1828(k), and the regulations promulgated thereunder in 12 C.F.R. Part 359. 



Section 3.6. Golden Parachute Adjustments. Notwithstanding anything in this Agreement or
any other agreement to the contrary:



(a) In the event First Niagara (or its successor) and the Participant both determine, based
upon the advice of the independent public accountants for First Niagara, that part or all of the
consideration, compensation or benefits to be paid to the Participant under this Agreement
constitute “parachute payments” under Code Section 280G(b)(2) 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 Participant under any other plan,
arrangement or agreement which constitute “parachute payments” (collectively, the “Parachute
Amount”) exceeds 2.99 times the Participant’s “base amount,” as defined in Code Section 280G(b)(3)
(the “Executive Base Amount”), the amounts constituting “parachute payments” which would otherwise
be payable to or for the benefit of the Participant shall be reduced to the extent necessary so
that the Parachute Amount is equal to 2.99 times the Participant Base Amount (the “Reduced
Amount”); provided that such amounts shall not be so reduced if the Participant determines, based
upon the advice of an independent public accounting firm (which may, but need not be the
independent public accountants of First Niagara), that without such reduction the Participant would
be entitled to receive and retain, on a net after tax basis (including, without limitation, any
excise taxes payable under Code Section 4999), an amount which is greater than the amount, on a net
after tax basis, that the Participant would be entitled to retain upon Executive’s receipt of the
Reduced Amount.



(b) If the determination made pursuant to subsection (a) above results in a reduction of the
payments that would otherwise be paid to the Participant except for the application of this
Section, then the Participant may then elect, in the Participant’s sole discretion, which and how
much of any particular entitlement shall be eliminated or reduced and shall advise First Niagara in
writing of the Participant’s election within ten days of the determination of the reduction in
payments; provided, however, that if it is determined that such election by the Participant shall
be in violation of Code Section 409A, or if no such election is made by the Participant within such
ten-day period, the allocation of the required reduction shall be pro-rata.. If no such election
is made by the Participant within such ten-day period, First Niagara may elect which and how much
of any entitlement shall be eliminated or reduced and shall notify the Participant promptly of such
election. Within ten days following such determination and the elections hereunder, First Niagara
shall pay or distribute to or for the benefit of the Participant such amounts as are then due to
the Participant under this Agreement and shall promptly pay or distribute to or for the benefit of
the Participant in the future such amounts as become due to the Participant under this Agreement.


 


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(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 First Niagara which
should not have been made under clause (a) of this Section (an “Overpayment”) or that additional
payments which are not made by First Niagara pursuant to clause (a) of this Section 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 Participant which the Participant shall repay to
First Niagara together with interest at the applicable Federal rate provided for in Code Section
7872(f)(2). 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 First Niagara to or for the benefit of the Participant, together with
interest at the applicable Federal rate provided for in Code Section 7872(f)(2).



The calculations required by clause (a) of this Section will be made by First Niagara’s
independent accounting firm engaged immediately prior to the event that triggered the payment, in
consultation with First Niagara’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 Code Sections
280G and 4999, provided that the accounting firm’s determinations must be made with substantial
authority (within the meaning of Code Section 6662).


 


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ARTICLE IV.

ADMINISTRATION OF PLAN




Section 4.1. Appointment of Plan Administrator and Responsibility for Administration of
Plan. First Niagara shall serve as Plan Administrator and shall administer this Plan in
accordance with its terms. The Plan Administrator may designate other persons to carry out the
responsibilities to control and manage the operation of the Plan.



Section 4.2. Agents. The Plan Administrator may employ such agents, including counsel, as
it may deem advisable for the administration of the Plan. Such agents need not be Participants
under the Plan.



Section 4.3. Compensation. The Company shall pay all the expenses of the Plan
Administrator. The Company shall indemnify any employees of the Company to whom responsibilities
have been delegated under Section 4.1 against any liability incurred in the course of
administration of the Plan, except liability arising from their own gross negligence or willful
misconduct.



Section 4.4. Records. The acts and decisions of the Plan Administrator shall be duly
recorded. The Plan Administrator shall make a copy of this Plan available for examination by any
Participant during the business hours of the Employer.



Section 4.5. Defect or Omission. The Plan Administrator shall refer any material defect,
omission or inconsistency in the Plan to the Board of Directors of First Niagara for such action as
may be necessary to correct such defect, supply such omission or reconcile such inconsistency.



Section 4.6. Liability. Except for their own negligence, willful misconduct or breach of
fiduciary duty, neither the Plan Administrator nor any agents appointed by the Plan Administrator
shall be liable to anyone for any act or omission in the course of the administration of the Plan.



Section 4.7. Contributions and Financing. All benefits required to be paid by the Company
under the Plan shall be paid as due directly by the Company from its general assets. 



Section 4.8. Claims Procedure. The claims procedure set forth in this paragraph is the
exclusive method of resolving disputes that arise under the Plan.



(a) Written Claim. Any person asserting any rights under this Plan must submit a
written claim to the Compensation Committee of First Niagara’s Board of Directors (the
“Committee”). The Committee shall render a decision within a reasonable period of time from the
date on which the Committee received the written claim, not to exceed 90 days, unless an extension
of time is necessary due to reasonable cause.


 


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(b) Denial of Claim. If a claim is denied in whole or in part, the
claimant must be provided with the following information:




(1) A statement of specific reasons for the denial of the claim;




(2) References to the specific provisions of the Plan on which the denial is
based;




(3) A description of any additional material or information necessary to
perfect the claim with an explanation of why such material information is
necessary;




(4) An explanation of the claims review procedures with a statement that the
claimant must request review of the decision denying the claim within 30
days following the date on which the claimant received such notice.



(c) Review of Denial. The claimant may request that the First Niagara Board of
Directors review the denial of a claim. A request for review must be in writing and must be
received by the Board of Directors within 30 days of the date on which the claimant received
written notification of the denial of the claim. The Board of Directors will render a decision
with respect to a written request for review within 60 days from the date on which the Board of
Directors received the request for review. If the request for review is denied in whole or in
part, the Board of Directors must mail the claimant a written decision that includes a statement of
the reasons for the decision.



ARTICLE V.

MISCELLANEOUS PROVISIONS




Section 5.1. Plan Terms are Legally Enforceable. The Company intends that the terms of
this Plan, including those relating to coverage and benefits, are legally enforceable.



Section 5.2. Plan Exclusively Benefits Employees. The Company intends that the Plan is
maintained for the exclusive benefit of employees of the Company.



Section 5.3. Illegality of Particular Provision. The illegality of any particular
provision of the Plan shall not affect the other provisions, and the Plan shall be construed in all
other respects as if such invalid provision were omitted.



Section 5.4. Applicable Laws. To the extent not pre-empted by the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), the Plan shall be governed by the laws of the
State of New York.



Section 5.5. Non-Guaranty of Employment. Nothing in this Plan shall be construed as
granting any Participant a right to continued employment with the Company. 


 


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Section 5.6. Coverage of Plan by Organization Under Common Control. The Plan is adopted by
First Niagara and covers any Organization Under Common Control with First Niagara. The term
“Organization Under Common Control” means (i) an Affiliated Corporation, (ii) a Related Business,
(iii) an Affiliated Service Organization or (iv) any other entity required to be aggregated with
First Niagara pursuant to Section 414(o) of the Code and the regulations thereunder. The term
“Affiliated Corporation” means any corporation that is a member of a controlled group of
corporations as defined in Section 414(b) of the Code, which includes First Niagara. The term
“Related Business” means any trade or business included in a group of trade or businesses with
First Niagara which are under common control, as defined in Section 414(c) of the Code. The term
“Affiliated Service Organization” means any service organization which is a member of an affiliated
service group, as defined in Section 414(m) of the Code, which includes First Niagara.



ARTICLE VI.

AMENDMENT AND TERMINATION




Section 6.1. Amendment of the Plan. First Niagara intends to maintain this Plan
indefinitely, but reserves the right to amend, modify or terminate the Plan at any time. First
Niagara may make modifications or amendments to the Plan that are necessary or appropriate to
maintain the Plan as a plan meeting the requirements of the applicable provisions of ERISA.



ARTICLE VII.

POST TERMINATION OBLIGATIONS




Section 7.1. Each Participant hereby covenants and agrees that, for a period of one (1) year
following his termination of employment with First Niagara, he shall not, without the written
consent of First Niagara, either directly or indirectly:



(i) solicit, offer employment to, or take any other action intended (or that a reasonable
person acting in like circumstances would expect) to have the effect of causing any officer or
employee of First Niagara, or any of its subsidiaries or affiliates, to terminate his or her
employment and accept employment or become affiliated with, or provide services for compensation in
any capacity whatsoever to, any business whatsoever that competes with the business of First
Niagara, or any of its direct or indirect subsidiaries or affiliates or has headquarters or offices
within 100 miles of the locations in which First Niagara, or any of its direct or indirect
subsidiaries or affiliates, has business operations or has filed an application for regulatory
approval to establish an office;


 


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(ii) become an officer, employee, consultant, director, independent contractor, agent, sole
proprietor, joint venturer, greater than 5% equity owner or stockholder, partner or
trustee of any savings bank, savings and loan association, savings and loan holding company, credit
union, bank or bank holding company, insurance company or agency, any mortgage or loan broker or
any other entity competing with First Niagara or its affiliates in the same geographic locations
where First Niagara or its affiliates has material business interests; or



(iii) solicit, provide any information, advice or recommendation or take any other action
intended (or that a reasonable person acting in like circumstances would expect) to have the effect
of causing any customer of First Niagara or any of its direct or indirect subsidiaries or
affiliates to terminate an existing business or commercial relationship with First Niagara.



Section 7.2. Each Participant shall, upon reasonable notice, furnish such information and
assistance to First Niagara as may reasonably be required by First Niagara, in connection with any
litigation in which it or any of its subsidiaries or affiliates is, or may become, a party;
provided, however, that the Participant shall not be required to provide information or assistance
with respect to any litigation between the Participant and First Niagara or any of its subsidiaries
or affiliates.



Section 7.3. All payments and benefits to a Participant under this Plan shall be subject to the
Participant’s compliance with this Article VII. The parties hereto, recognizing that irreparable
injury will result to First Niagara, its business and property in the event of Participant’s breach
of this Article VII, agree that, in the event of any such breach by a Participant, First Niagara
will be entitled, in addition to any other remedies and damages available, to an injunction to
restrain the violation hereof by the Participant and all persons acting for or with the
Participant. The Participant represents and admits that Participant’s experience and capabilities
are such that Participant can obtain employment in a business engaged in other lines and/or of a
different nature than First Niagara, and that the enforcement of a remedy by way of injunction will
not prevent Participant from earning a livelihood. Nothing herein will be construed as prohibiting
First Niagara from pursuing any other remedies available to them for such breach or threatened
breach, including the recovery of damages from the Participant.


 


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IN WITNESS WHEREOF, First Niagara has duly executed this Plan as of the date first above
written.



	 	 	 	 	 
	 	FIRST NIAGARA FINANCIAL GROUP, INC.

 	 
	December 12, 2008 	By:  	/s/  John R. Koelmel
 	 
	Date 	 	                          John R. Koelmel 	 
	 	 	President & CEO 	 



 


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