Filed by Bowne Pure Compliance






Exhibit
10.1


FIRST NIAGARA FINANCIAL GROUP, INC.




AMENDED AND RESTATED




CHANGE IN CONTROL AGREEMENT




WITH




JOHN R. KOELMEL




This AGREEMENT, dated as of March 26, 2007 (the “Effective Date”), is between FIRST NIAGARA
FINANCIAL GROUP, INC., a Delaware corporation with its executive offices at 6950 South Transit
Road, P.O. Box 514, Lockport, NY 14095-0514 (the “Corporation”), and John R. Koelmel, an individual
residing at 4702 Red Oak Court, Hamburg, NY 14075 (the “Executive”).



RECITALS:





	 	a.	 	The Executive is presently employed as an executive officer of
the Corporation.






	 	b.	 	The Board of Directors of the Corporation (the “Board”)
considers it essential to the best interests of the Corporation and its
shareholders to foster the Corporation’s ability to retain key management
personnel.






	 	c.	 	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.






	 	d.	 	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.




 


 









 











	 	e.	 	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.






	 	f.	 	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.






	 	g.	 	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.






	 	h.	 	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.






	 	i.	 	This Agreement has been amended and restated solely in order to
comply with Section 409A of the Internal Revenue Code of 1986 as amended, (the
“Code”) and the final regulations issued thereunder in April 2007.




 


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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.


 


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(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%;


 


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(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


 


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(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) failure to elect or reelect or to appoint or reappoint the
Executive as an officer of the Corporation during the term of this
Agreement in accordance with Section 2 hereof;




(ii) material change in the Executive’s function, duties, or
responsibilities, which change would cause Executive’s position to
become one of lesser responsibility, importance, or scope from the
position and attributes thereof described in Section 2 hereof or a
material reduction in the Executive’s base compensation;


 


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(iii) a relocation of Executive’s principal place of employment by
more than 100 miles from its location at the effective date of this
Agreement;




(iv) liquidation or dissolution of the Corporation other than
liquidations or dissolutions that are caused by reorganizations that
do not affect the status of Executive; or




(v) breach of this Agreement by the Corporation.



Upon the occurrence of any event described above, the Executive 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 the Corporation, which notice must be given by the Executive 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
the Corporation, the Executive, 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 Executive has submitted his resignation but has remained in the employment
of the Corporation and is engaged in good faith discussions to resolve any occurrence of an event
described above. The Corporation shall have at least thirty (30) days to remedy any condition set
forth above, provided, however, that the Corporation shall be entitled to waive such period and
make an immediate payment hereunder.



(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, 2009, and thereafter shall automatically be extended for successive three-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).


 


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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
together with any unpaid annual short term incentive bonus for a prior
period, which shall be paid within 30 days after the effective date of the
termination of employment. The Executive will receive a payment equal to the
300% of the Executive’s base salary, as in effect in the year of the
termination of employment, payable in one lump sum within 30 days after the
effective date of the termination of employment.. The Executive will also
receive non-taxable 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 thirty-six (36) months beginning with the month next following the month
during which the employment terminates. If the Executive dies during the
thirty-six (36) month period, any
dependent health or medical Fringe Benefits will be provided for the
balance of the thirty-six (36) month period. For purposes of COBRA health
care continuation coverage, the “qualifying event” will be deemed to have
occurred at the end of the thirty-six (36) month period following
termination of employment.


 


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(ii) Bonus. The Executive will receive a bonus amount equal to
the 300% of the Executive’s targeted annual short term incentive bonus
amount in effect in the year of the termination of employment payable in one
lump sum within 30 days after the effective date of the termination of
employment.




(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 within 30
days after the effective date of the termination of employment.




(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.


 


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(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 receive a lump sum
payment within 30 days after the effective date of the termination of
employment in an amount equal to the value of the accrued benefit under any
qualified pension or profit sharing plan maintained by the Corporation which
was not vested.




(vii) Outplacement. For a twelve (12)-month period following
the termination of employment, the Corporation will reimburse the Executive
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 after Executive incurs such expenses.




(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.


 


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4. Section 409A Compliance. 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 the Corporation and
the Executive reasonably anticipate that the level of bona fide services the Executive 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, in the event Executive 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 Executive 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 Executive’s annualized compensation
based upon the annual rate of pay for services provided to the Bank 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 within
thirty (30) days following the Date of Termination. Any payment in excess of the permitted amount
shall be made to Executive on the first day of the seventh month following the Date of Termination.



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, or other entities that supervise any
of the activities of the Corporation. Specifically, any payments to the Executive by the
Corporation, 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.




 


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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 the Executive’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 Executive shall be in
violation of Code Section 409A, or if no such election is made by the Executive within such ten-day
period, the allocation of the required reduction shall be pro-rata. Within ten days following such
determination and the election 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.


 


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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 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.


 


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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 twelve (12) 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.


 


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9. Confidential Information. The Executive will have access to and 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.


 


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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.


 


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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.


 


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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.

6950 South Transit Road

P.O. Box 514

Lockport, NY 14095-0514




Attention: Chief Human Resource Officer

Telephone: 716-625-7593

Telecopier: 716-625-8673



	 
	

	with a copy (which shall not constitute notice) to:








Luse Gorman Pomerenk & Schick, P.C.

5335 Wisconsin Avenue, NW, Suite 400

Washington, DC 20015

Attention: John Gorman, Esq. or Norma Sharara, Esq.

Telephone: 202-274-2000

Telecopier: 202-362-2902


 


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If to the Executive:




John R. Koelmel

8104 Floss Lane

East Amherst, NY 14051

Telephone: 716-741-2316

Telecopier: 716-625-8673 (office)




with a copy (which shall not constitute notice) to:





____________________________

____________________________

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.


 


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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.



	 	 	 	 	 
	 	 	FIRST NIAGARA FINANCIAL GROUP, INC.
	 
	 	 	 	 
	December 15, 2008

	 	By:
	 	/s/ Sharon D. Randaccio
	 

	 	 	 	 
	Date

	 	 	 	Sharon D. Randaccio
	 

	 	 	 	Chair, Compensation Committee
	 
	 	 	 	 
	 	 	EXECUTIVE:
	 
	 	 	 	 
	December 15, 2008

	 	/s/ John R. Koelmel
	 

	 	 
	Date

	 	John R. Koelmel
	 

	 	President and CEO







 


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