Filed by Bowne Pure Compliance






	 	 	 	 	 



Exhibit 10.8




AMENDED AND RESTATED

FIRST NIAGARA BANK AND FIRST NIAGARA FINANCIAL GROUP, INC.

DIRECTORS DEFERRED FEES PLAN




ARTICLE I

BACKGROUND, PURPOSE, AND EFFECTIVE DATE




Section 1.01 Background and Purpose of the Plan; Certain Definitions





First Niagara Bank (formerly Lockport Savings Bank) (the “Bank”), established the First
Niagara Bank Directors Deferred Fees Plan (formerly Lockport Savings Bank Trustees Deferred Fees
Plan) to allow members of its Board of Directors (formerly known as Trustees) the opportunity to
defer payment of all or portions of the fees they receive for serving as Directors. The Bank
reorganized from a mutual savings bank to a stock form of organization on April 20, 1998 (the
“Reorganization”). Upon completion of the Reorganization, Bank became a wholly-owned subsidiary of
First Niagara Financial Group, Inc. (“FNFG”). The Plan has been amended and restated, effective
January 1, 2005 to comply with Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”), and the regulations issued thereunder.



As used in this Agreement, the term “Company” shall mean (i) Bank with respect to a member of
the Board of Directors of Bank and (ii) FNFG with respect to a member of the Board of Directors of
FNFG. Further, “Director” shall mean an individual who is either a member of the Board of
Directors of Bank or FNFG. Unless the context would clearly indicate otherwise, references to a
Director under this Agreement shall also mean a Trustee of Lockport Savings Bank who served as a
Trustee prior to the effective date of the Reorganization.



Section 1.02 Effective Date and Term




The Plan was originally effective August 18, 1992. The Plan was amended and restated,
effective April 20, 1998, and is further amended and restated effective January 1, 2005. The Plan
shall continue until such time as it is terminated by resolution of the Board of Directors of Bank
in accordance with Article V.



ARTICLE II

CONTRIBUTIONS




Section 2.01 Deferred Fees




a. Initial Election. Each participating Director of the Company shall have the right
to elect to defer the receipt of all or any part of the compensation to which such Director would
otherwise be entitled as director’s fees or committee fees, in which the Company shall credit the
Director’s Deferred Fee Account, as herein defined, with such deferred compensation to be payable
at the time or times and in the manner herein stated. Each new Director electing to defer the
receipt of compensation shall execute and deliver to the Company a “Deferral Election Form,” in the
form attached hereto as Exhibit A within thirty (30) days from the date in which the Director
becomes
eligible to participate in the Plan. For other Directors who are eligible to participate in the
Plan and deliver to the Company an executed Deferral Election Form after the thirty (30) day period
following their initial eligibility, such Deferral Election Form shall apply to services performed
in the Plan Year next following the year in which the Company receives the executed Deferral
Election Form from the Director.


 


 









 





b. Changes in Election. An election to defer compensation shall continue in effect
until changed or revoked. All changes and revocations shall be made in writing in the form of
Notice of Adjustment of Deferral attached hereto as Exhibit B. Such notice shall be effective upon
the January 1st of the year stated therein provided the form is executed and delivered
to the Company by December 15th of the previous calendar year.



c. Restricted Stock Units (“RSUs”). Directors may elect before the beginning of any
Plan Year to receive a grant of restricted stock units (RSUs) under the Company’s Amended and
Restated 2002 Long-Term Incentive Stock Benefit Plan (the “Stock Plan”) (or any successor plan)
instead of an annual grant of restricted stock for the upcoming year. Such elections shall be made
in the form attached hereto as Exhibit E. Dividend equivalent units (“DEUs”) earned on RSUs shall
be accumulated and added to the RSUs.



ARTICLE III

ACCOUNT AND INVESTMENT




Section 3.01 The Deferred Fees Account




a. Maintenance of the Account. The Company shall maintain for each Director who has
elected to defer fees pursuant to Section 2.01 an account (the “Deferred Fees Account”) to which it
shall credit all amounts allocated thereto in accordance with Section 2.01. RSUs shall be
separately accounted for. Each Director’s Deferred Fees Account shall be adjusted no less often
than monthly to reflect the net market value of assets in the Deferred Fees Account under
Section 2.01 and pursuant to Section 3.02. Such adjustments shall be made until no amounts remain
in the Account.




b. Neither RSUs nor Deferred Fees Accounts shall constitute a trust or escrow fund.



c. Each Director’s interest in his or her Deferred Fees Account RSUs and DEUs is limited to
the right to receive payments under this Plan, and the Director’s position is that of a general
unsecured creditor of the Company.



Section 3.02 Power to Invest




a. All RSUs and DEUs shall be deemed invested in Company stock. The Company shall invest all
other amounts in the Deferred Fees Account. Amounts in the Deferred Fees Account shall be invested
in equity securities, fixed income securities, money market accounts and cash, in the sole
discretion of the Company. The Company in its sole discretion may permit a
Director to designate that the amounts represented by his or her Deferred Fees Account be
invested in such particular investments that the Company shall from time to time provide as
permitted investments under the Plan, including investments in the common stock of FNFG.
Notwithstanding the foregoing, in all cases any investment shall be in property and securities
eligible for investment by savings banks under the New York Banking Law.


 


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b. Any change in net market value of assets in the Deferred Fees Account shall be reflected in
the Deferred Fees Account on a monthly basis.



c. The Company shall not be liable to the Director or his or her beneficiary for any loss or
other claim arising out of its investment policy except for that caused by its gross negligence or
willful misconduct.



Section 3.03 Vesting





a. RSUs and DEUs shall vest on the last day of the calendar year for which they are awarded.



b. At all times a Director shall have a 100% nonforfeitable right to all other amounts
credited to his or her Deferred Fees Account; provided that neither a Director nor his or her
Beneficiary shall be entitled to receive any amount in the Director’s Deferred Fees Account if it
is determined at any time that such Director engaged in a dishonest act in the Director’s
relationship with the Company.



ARTICLE IV

BENEFITS




Section 4.01 Upon Cessation of Service as Director




a. Payment of Benefits. Following a Director’s cessation of service as Director for
any reason other than death (the date of which shall be referred to as the “Date of Cessation”),
the Company shall pay to Director the value of the RSUs, DEUs and the Deferred Fees Account (the
“Benefits”), including adjustments that continue to be made pursuant to Article III, in a number of
substantially equal annual payments, as elected by a Director. The most recent payment schedule
elected by the Director shall apply to all Benefits hereunder, provided that such election was made
in accordance with all applicable laws.



b. Separation from Service. Notwithstanding the foregoing, with respect to
employee-Directors, Cessation of Service as used herein shall mean “Separation from Service” as
defined in Code Section 409A, and the Treasury Regulations promulgated thereunder, provided,
however, that the Company and Executive reasonably anticipate that the level of bona fide services
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. With respect to
non-employee-Directors, Cessation of Service as used herein shall mean “Separation from Service” as
defined in
Code Section 409A, and the Treasury Regulations promulgated thereunder, and that such Director
no longer serves on the Board of the Company, the Company’s subsidiaries, or any member of a
controlled group of corporations with the Company within the meaning of Treasury Regulation
§1.409A-1(a)(3).


 


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Section 4.02 Upon Death




a. Prior to Commencement of Payment of Benefits. In the event of a Director’s death
prior to the commencement of payment of the Benefit under Section 4.01, the Company shall pay the
Benefits to the Director’s Beneficiary, in a single lump sum payment or in that number of
substantially equal annual payments beginning the first day of the calendar year after the
Director’s death as the Director elected. The most recent payment schedule elected by the Director
shall apply to all Benefits hereunder, provided that such election was made in accordance with all
applicable laws.



b. After Commencement of Payment of Benefits. In the event of a Director’s death
after commencement of the payment of Benefits under Section 4.01, the Company shall continue
payment of the remaining balance of the Benefits to the Director’s Beneficiary in the same manner
and at the same times as if the Director had not died.



Section 4.03 Unforeseeable Emergency




a. In the case of an unforeseeable emergency, as defined below, a Director may submit a
written request to the Company for (1) a cessation of deferrals under this Plan and a distribution
of all or a part of his or her Benefits prior to the date Benefits otherwise would be payable, or
(2) an acceleration of the payment of installment payments which have already begun. Withdrawals
or acceleration because of an unforeseeable emergency shall be permitted only to the extent
reasonably necessary to satisfy the emergency.



b. An unforeseeable emergency is a severe financial hardship to the Director resulting from an
illness or accident of the Director, the Director’s spouse, the Director’s Beneficiary, or the
Director’s dependent (as defined in Code Section 152 without regard to Code Sections 152(b)(1),
(b)(2), and (d)(1)(B)); loss of the Director’s property due to a casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result of events beyond the control of
the Director which shall include the need to pay for medical expenses and the need to pay the
funeral expenses of the Director’s spouse, a Beneficiary, or a dependent (as defined above).



Section 4.04 Grandfathered Deferrals




With respect to amounts deferred and interest earned on the amounts deferred on or before
December 31, 2004, the Company, in its sole discretion, may pay out the undisbursed portion of such
deferred compensation, together with interest thereon, in a lump sum at any time, provided,
however, that the Company shall not have the discretion to pay out amounts deferred on or after
January 1, 2005, or interest on amounts deferred on or after January 1, 2005, except in accordance
with the terms of the Director’s written election entered into at the time of deferral or in
accordance with Section 5.01 hereof.


 


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Section 4.05 Election to Change Time and Form of Payment of Benefit




Notwithstanding anything in the Plan to the contrary, a Director who previously filed a
deferral election with the Company may elect to change the time and form of payment to another
permissible time and form of payment by filing with the Company a Transition Year Election Form,
attached hereto as Exhibit D, provided that such election is made by December 31, 2008.



ARTICLE V

PARTIAL OR COMPLETE TERMINATION




Section 5.01 Partial or Complete Termination




a. Partial Termination. The Company may partially terminate the Plan by freezing
future accruals if, in its judgment, the tax, accounting, or other effects of the continuance of
the Plan, or potential payments thereunder, would not be in the best interests of the Company.



b. Complete Termination. Subject to the requirements of Code Section 409A, in the
event of complete termination of the Plan, the Plan shall cease to operate and the Company shall
pay out to each Director his or her benefit as if the Director had terminated service on the Board
of Directors as of the effective date of the complete termination. Such complete termination of
the Plan shall occur only under the following circumstances and conditions:




1. The Company may terminate the Plan within 12 months of a corporate dissolution taxed
under Code Section 331, or with approval of a bankruptcy court pursuant to 11 U.S.C.
§503(b)(1)(A), provided that the amounts deferred under the Plan are included in the
Director’s gross income in the latest of (i) the calendar year in which the Plan terminates;
(ii) the calendar year in which the amount is no longer subject to a substantial risk of
forfeiture; or (iii) the first calendar year in which the payment is administratively
practicable.




2. The Company may terminate the Plan within the 30 days preceding a Change in Control
(but not following a Change in Control), provided that the Plan shall only be treated as
terminated if all substantially similar arrangements sponsored by the Company are terminated
so that the Director and all participants under substantially similar arrangements are
required to receive all amounts of compensation deferred under the terminated arrangements
within 12 months of the date of the termination of the arrangements. For these purposes,
“Change in Control” shall be defined in accordance with the Treasury Regulations under Code
Section 409A.




3. The Company may terminate the Plan provided that (i) the termination and liquidation
does not occur proximate to a downturn in the financial health of the Company, (ii) all
arrangements sponsored by the Company that would be aggregated with this Plan under Treasury
Regulations Section 1.409A-1(c) if the Director covered by this Plan was also covered by any
of those other arrangements are also terminated; (iii) no payments other than
payments that would be payable under the terms of the arrangement if the termination
had not occurred are made within 12 months of the termination of the arrangement; (iv) all
payments are made within 24 months of the termination of the arrangements; and (v) the
Company does not adopt a new arrangement that would be aggregated with any terminated
arrangement under Treasury Regulations Section 1.409A-1(c) if the Company participated in
both arrangements, at any time within three years following the date of termination of the
arrangement.


 


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Section 5.02 No Reduction




No partial or complete termination shall operate to adversely affect the Benefits otherwise
available to a Director if the Director had ceased being a Director as of the effective date of
such amendment, suspension, or termination. Any Benefits determined as of such date shall continue
to be adjusted for net market value of assets as provided in Article III and payable as provided in
Article IV.



ARTICLE VI

MISCELLANEOUS PROVISIONS




Section 6.01 Beneficiary




“Beneficiary” shall mean any one or more persons, corporation or trusts, or any combination
thereof, last designated by a Director to receive the Benefits provided under this Plan. Any
designation made hereunder shall be made in writing by filing the Beneficiary Designation Form,
attached hereto as Exhibit C, with the Company at its principal office. If the Company in its sole
discretion, determines that there is not a valid designation, the Beneficiary shall be the executor
or administrator of the Director’s estate.



Section 6.02 Nonassignability




The interest of any person under this Plan (other than the Company) shall not be subject in
any manner to anticipation, alienation, sale, transfer, assignment, pledge, attachment or
encumbrance, or to the claims of creditors of such person, and any attempt to effectuate any such
actions shall be void.



Section 6.03 Interest of Director




The Director and any Beneficiary shall be, in respect to the RSUs, DEUs and Deferred Fees
Account and any Benefits to be paid, and remain simply a creditor of the Company in the same manner
as any other creditor having a general claim for compensation, if and when the Director’s or
Beneficiary’s rights to receive payments shall mature and become payable. At no time shall the
Director be deemed to have any right, title or interest, legal or equitable, in any asset of the
Company, including, but not limited to, any investments which represent amounts credited to the
RSUs, DEUs or Deferred Fees Account.


 


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Section 6.04 Taxes




Any distribution under this Plan shall be reduced by the amount of any taxes required to be
withheld from such distribution. This Plan shall permit the acceleration of the time or schedule
of a payment to pay employment related taxes as permitted under Treasury Regulation Section
1.409A-3(j) or to pay any taxes that may become due at any time that the arrangement fails to meet
the requirements of Code Section 409A and the regulations and other guidance promulgated
thereunder. In the latter case, such payments shall not exceed the amount required to be included
in income as the result of the failure to comply with the requirements of Code Section 409A.



Section 6.05 Exclusivity of Plan




This Plan is intended solely for the purpose of deferring fees to the Director to the mutual
advantage of the parties. Nothing contained in this Plan shall in any way affect or interfere with
the right of a Director to participate in any other benefit plan in which he or she may be entitled
to participate.



Section 6.06 No Right to Continued Service





This Plan shall not confer any right to continued service on a Director.



Section 6.07 Notice




Each notice and other communication to be given pursuant to this Plan shall be in writing and
shall be deemed given only when (a) delivered by hand, (b) transmitted by facsimile (fax),
(c) received by the addressee, if sent by registered or certified mail, return receipt requested,
or by Express Mail, Federal Express or other overnight delivery service, to the Company at its
principal office and to a Director at the last known address of such Director (or to such other
address or fax number as a party may specify by notice given to the other party pursuant to this
Section).



Section 6.08 New York Law Controlling





This Plan shall be construed in accordance with the laws of the State of New York.



Section 6.09 Binding on Successors




This Plan shall be binding upon the Directors, Bank and FNFG, their heirs, successors, legal
representatives and assigns.


 


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Section 6.10 Acceleration of Payments




Except as specifically permitted herein or in other sections of this Plan, no acceleration of
the time or schedule of any payment may be made hereunder. Notwithstanding the foregoing, payments
may be accelerated hereunder by the Company, in accordance with the provisions of Treasury
Regulation Section 1.409A-3(j)(4) and any subsequent guidance. Accordingly, payments may be
accelerated, in accordance with requirements and conditions of the Treasury Regulations (or
subsequent guidance) in the following circumstances: (i) as a result of certain domestic relations
orders; (ii) in compliance with ethics agreements with the Federal government; (iii) in compliance
with ethics laws or conflicts of interest laws; (iv) in limited cash-outs (but not in excess of the
limit under Code Section 402(g)(1)(B)); (v) in the case of certain distributions to avoid a
non-allocation year under Code Section 409(p); (vi) to apply certain offsets in satisfaction of a
debt of the Director to the Company; (vii) in satisfaction of certain bona fide disputes between
the Director and the Company; or (viii) for any other purpose set forth in the Treasury Regulations
and subsequent guidance.


 


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IN WITNESS WHEREOF, the Company and the Bank have signed this Plan on the dates set forth below.




	 	 	 	 	 
	 	FIRST NIAGARA BANK

 	 
	December 8, 2008 	By:  	/s/ Sharon D. Randaccio
 	 
	Date	 	                      Sharon D. Randaccio 	 
	 	 	Chair, Compensation Committee 	 



	 	 	 	 	 
	 	FIRST NIAGARA FINANCIAL GROUP, INC.

 	 
	December 8, 2008 	By:  	/s/ Sharon D. Randaccio
 	 
	Date	 	                      Sharon D. Randaccio 	 
	 	 	Chair, Compensation Committee 	 




 


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