e. The Board believes it to be in the best interests of theCorporation and its shareholders that the Corporation and the Board be able torely upon the Executive to continue in the Executive’s position, and that theCorporation be able to receive and rely upon the Executive’s advice as to thebest interests of the Corporation, without concern that the Executive might bedistracted by the personal uncertainties and risks created by the possibilityof a Change in Control. f. Should the possibility of a Change in Control arise, inaddition to the Executive’s regular duties, the Executive may be called uponto assist in the assessment of such possible Change in Control, to advisemanagement and the Board as to whether such Change in Control would be in thebest interests of the Corporation and its shareholders and to take such otheractions as the Board might determine to be appropriate. g. This Agreement is not intended to alter the rights of theExecutive in the absence of a Change in Control of the Corporation with respectto the Executive’s employment by the Company or the Executive’s compensationand benefits in connection with such employment and, accordingly, thisAgreement, although taking effect as provided below, will be operative onlyupon a Change in Control of the Corporation. h. The Corporation and the Executive both desire to set forth theterms of benefits upon a termination of employment in certain circumstancesfollowing a Change in Control. i. This Agreement has been amended and restated solely in order tocomply 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 thisAgreement, 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 thatdirectly, or indirectly through one or more intermediaries, controls or is controlled by, or isunder 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 conditionsexist:(i) The Executive’s willful and continued failure substantially toperform the Executive’s duties (other than as a result of disability) thatis not or cannot be cured within 30 days of the Corporation giving theExecutive notice of the failure to so perform. For purposes of thisAgreement, no act or failure to act will be deemed “willful” unless effectedby the Executive not in good faith and without a reasonable belief that theExecutive’s action or failure to act was in or not opposed to theCorporation’s best interests.(ii) A willful act or omission by the Executive constitutingdishonesty, fraud or other malfeasance, and any act or omission by theExecutive constituting immoral conduct, which in any such case is injuriousto 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 ofthe United States or any state other than for actions related to operationof motor vehicles which does not involve operation of a motor vehicle whileintoxicated or impaired.(iv) Breach by the Executive of the Corporation’s Code of Ethics forSenior Financial Officers, any restrictive covenant, non-competition,confidentiality or non-solicitation, or other similar agreement which isapplicable 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 beendelivered to the Executive a copy of a resolution, duly adopted by the affirmative vote ofnot less than a majority of the Board at a meeting called and held for that purpose (afterreasonable notice to the Executive and an opportunity for the Executive, with theExecutive’s counsel, to be heard before the Board), stating that, in the good faith opinionof the Board, the Executive has engaged in conduct described above and specifying theparticulars in detail.(e) “Change in Control” means:(i) Any acquisition or series of acquisitions by any Person other thanthe Corporation, any of its Affiliates, any employee benefit plan of theCorporation or any of its Affiliates, or any Person holding common shares ofthe Corporation for or pursuant to the terms of such an employee benefitplan, that results in that Person becoming the beneficial owner (as definedin Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the“Exchange Act”)), directly or indirectly, of securities of the Corporationrepresenting 50% or more of either the then outstanding shares of the commonstock of the Corporation (“Outstanding Corporation Common Stock”) or thecombined voting power of the Corporation’s thenoutstanding securities entitled to then vote generally in the electionof Directors of the Corporation (“Outstanding Corporation VotingSecurities”), except that any such acquisition of Outstanding CorporationCommon Stock or Outstanding Corporation Voting Securities will notconstitute a Change in Control while that Person does not exercise thevoting power of its Outstanding Corporation Common Stock or otherwiseexercise control with respect to any matter concerning or affecting theCorporation, or Outstanding Corporation Voting Securities, and promptlysells, transfers, assigns or otherwise disposes of that number of shares ofOutstanding Corporation Common Stock necessary to reduce its beneficialownership (as defined in Rule 13d-3 under the Exchange Act) of theOutstanding 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 periodconstitute the Board cease to constitute at least a majority of the Board,unless the election, or the nomination for election by the Corporation’sshareholders, of each new Board member was approved by a vote of at least2/3rds of the Board members then still in office who were Board members atthe beginning of that period (including, for these purposes, new memberswhose 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 earningpower of the Corporation, taken as a whole (with the stock or otherownership interests of the Corporation in any of its Affiliatesconstituting assets of the Corporation for this purpose) toa Person that is not an Affiliate of the Corporation (forpurposes of this paragraph, “sale” means any change of ownership), or
 
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(C) an agreement to merge or consolidate or otherwisereorganize, with or into one or more Persons that are not Affiliatesof the Corporation, as a result of which less than 50% of theoutstanding voting securities of the surviving or resulting entityimmediately after any such merger, consolidation or reorganizationare, or will be, owned, directly or indirectly, by shareholders ofthe Corporation immediately before such merger, consolidation orreorganization (assuming for purposes of that determination thatthere is no change in the record ownership of the Corporation’ssecurities from the record date for that approval until that merger,consolidation or reorganization and that those record owners hold nosecurities of the other parties to that merger, consolidation orreorganization), but including in that determination any securitiesof the other parties to that merger, consolidation or reorganizationheld 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 theExecutive as an officer of the Corporation during the term of thisAgreement in accordance with Section 2 hereof;(ii) material change in the Executive’s function, duties, orresponsibilities, which change would cause Executive’s position tobecome one of lesser responsibility, importance, or scope from theposition and attributes thereof described in Section 2 hereof or amaterial reduction in the Executive’s base compensation;
 
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(iii) a relocation of Executive’s principal place of employment bymore than 100 miles from its location at the effective date of thisAgreement;(iv) liquidation or dissolution of the Corporation other thanliquidations or dissolutions that are caused by reorganizations thatdo 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 electto terminate his employment under this Agreement by resignation upon not less than thirty (30) daysprior 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 bythe Corporation, the Executive, after giving due notice within the prescribed time frame of aninitial event specified above, shall not waive any of his rights solely under this Agreement byvirtue of the fact that Executive has submitted his resignation but has remained in the employmentof the Corporation and is engaged in good faith discussions to resolve any occurrence of an eventdescribed above. The Corporation shall have at least thirty (30) days to remedy any condition setforth above, provided, however, that the Corporation shall be entitled to waive such period andmake 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 Section13 of the Exchange Act.**2. ****Term of Agreement**. This Agreement will be effective for the period beginning onthe Effective Date and shall continue to be effective for the period ending on the “ExpirationDate”; provided, that the Executive’s right to indemnification and insurance coverage shallcontinue beyond the Expiration Date for the duration of all applicable statutes of limitations andfor purposes of all policies of insurance. The “Expiration Date” shall initially beDecember 31, 2009**,**and thereafter shall automatically be extended for successive three-yearperiods unless, not later than six months prior to any such Expiration Date, the Corporation shallhave given notice to the Executive that it does not wish the Expiration Date to be so extended inwhich case the Expiration Period will be the date that is thirty (30) months from the date of suchnotice. Notwithstanding the foregoing, the Expiration Date shall be any earlier date on which theExecutive’s employment with the Corporation terminates for any reason, in the event suchtermination 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 GoodReason. Upon the Executive’s termination of employment by (i) the Corporation without Causewithin the twelve (12)-month period following a Change in Control or (ii) the Executive for GoodReason no later than fourteen (14) months following a Change in Control, the Corporation willprovide the following:(i) Salary And Fringe Benefits. The Executive will receivefull salary and fringe benefits through the effective date of terminationtogether with any unpaid annual short term incentive bonus for a priorperiod, which shall be paid within 30 days after the effective date of thetermination of employment. The Executive will receive a payment equal to the300% of the Executive’s base salary, as in effect in the year of thetermination of employment, payable in one lump sum within 30 days after theeffective date of the termination of employment.. The Executive will alsoreceive non-taxable medical and health insurance, group term life insurance,automobile allowance and club membership benefits (hereinafter referred toas “Fringe Benefits”) as in effect on the date of termination for a periodof thirty-six (36) months beginning with the month next following the monthduring which the employment terminates. If the Executive dies during thethirty-six (36) month period, anydependent health or medical Fringe Benefits will be provided for thebalance of the thirty-six (36) month period. For purposes of COBRA healthcare continuation coverage, the “qualifying event” will be deemed to haveoccurred at the end of the thirty-six (36) month period followingtermination of employment.
 
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(ii) Bonus. The Executive will receive a bonus amount equal tothe 300% of the Executive’s targeted annual short term incentive bonusamount in effect in the year of the termination of employment payable in onelump sum within 30 days after the effective date of the termination ofemployment.(iii) Accrued Vacation. The Executive will receive payment foraccrued but unused vacation, which payment will be equitably prorated basedon the period of active employment for that portion of the fiscal year inwhich the Executive’s termination of employment becomes effective. Paymentfor accrued but unused vacation will be payable in one lump sum within 30days after the effective date of the termination of employment.(iv) Indemnification. For 60 months following the date oftermination of employment, the Corporation will continue any indemnificationagreement with the Executive and will provide directors’ and officers’liability insurance insuring the Executive, such coverage to have limits andscope of coverage not less than that in effect on the date of termination ofemployment.
 
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(v) Equity Compensation. The Executive will be fully vested inand will have the immediate right to exercise all equity compensation awardsincluding, but not limited to, stock options, restricted stock, stockappreciation rights, and phantom equity awards, which the Executive hasreceived in connection with Executive’s employment with theCorporation.(vi) Qualified Plans. The Executive will receive a lump sumpayment within 30 days after the effective date of the termination ofemployment in an amount equal to the value of the accrued benefit under anyqualified pension or profit sharing plan maintained by the Corporation whichwas not vested.(vii) Outplacement. For a twelve (12)-month period followingthe termination of employment, the Corporation will reimburse the Executivefor outplacement services in an amount not to exceed $10,000; providedhowever, that reimbursements for such outplacement services shall be made ina cash lump sum within 30 days after Executive incurs such expenses.(viii) Reduction in Fringe Benefits. Fringe benefits underthis Section will be reduced to the extent practicable for any similarfringe benefits provided by and available to the Executive from anysubsequent employer but will not be limited by the terms of any fringebenefit of a subsequent employer.(b) Upon Any Other Termination. Upon the Executive’s termination of employment absentGood Reason, by the Corporation for Cause, or on account of death or disability, in any casefollowing 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” asdefined in Code Section 409A and the Treasury Regulations thereunder, such that the Corporation andthe Executive reasonably anticipate that the level of bona fide services the Executive wouldperform after termination would permanently decrease toa level that is less than 50% of the average level of bona fide services performed (whether asan 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 SpecifiedEmployee (within the meaning of Treasury Regulations §1.409A-1(i)), then, to the extent necessaryto avoid penalties under Code Section 409A, no payment shall be made to Executive prior to thefirst day of the seventh month following the Date of Termination in excess of the “permittedamount” under Code Section 409A. For these purposes, the “permitted amount” shall be an amountthat does not exceed two times the lesser of: (i) the sum of Executive’s annualized compensationbased upon the annual rate of pay for services provided to the Bank for the calendar year precedingthe year in which occurs the Date of Termination or (ii) the maximum amount that may be taken intoaccount under a tax-qualified plan pursuant to Code Section 401(a)(17) for the calendar year inwhich occurs the Date of Termination. Payment of the “permitted amount” shall be made withinthirty (30) days following the Date of Termination. Any payment in excess of the permitted amountshall 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 Agreementmust comply with the law, including regulations and other interpretive action, of the FederalDeposit Insurance Act, Federal Deposit Insurance Corporation, or other entities that supervise anyof the activities of the Corporation. Specifically, any payments to the Executive by theCorporation, whether pursuant to this Agreement or otherwise, are subject to and conditioned upontheir compliance with Section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section1828(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 anyother agreement to the contrary:(A) In the event the Corporation (or its successor) and the Executive both determine, basedupon the advice of the independent public accountants for the Corporation, that part or all of theconsideration, compensation or benefits to be paid to the Executive under this Agreement constitute“parachute payments” under Section 280G(b)(2) of the Internal RevenueCode 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 orbenefits to be paid to the Executive under any other plan, arrangement or agreement whichconstitute “parachute payments” (collectively, the “Parachute Amount”) exceeds 2.99 times theExecutive’s “base amount,” as defined in Section 280G(b)(3) of the Code (the “Executive BaseAmount”), the amounts constituting “parachute payments” which would otherwise be payable to or forthe benefit of the Executive shall be reduced to the extent necessary so that the Parachute Amountis equal to 2.99 times the Executive Base Amount (the “Reduced Amount”); provided that such amountsshall not be so reduced if the Executive determines, based upon the advice of an independent publicaccounting 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 aftertax 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 beentitled 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 thepayments that would otherwise be paid to the Executive except for the application of this Section6, then the Executive may then elect, in the Executive’s sole discretion, which and how much of anyparticular entitlement shall be eliminated or reduced and shall advise the Corporation in writingof 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 inviolation of Code Section 409A, or if no such election is made by the Executive within such ten-dayperiod, the allocation of the required reduction shall be pro-rata. Within ten days following suchdetermination and the election hereunder, the Corporation shall pay or distribute to or for thebenefit of the Executive such amounts as are then due to the Executive under this Agreement andshall promptly pay or distribute to or for the benefit of the Executive in the future such amountsas 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 timeof a determination hereunder, it is possible that payments will be made by the Corporation whichshould not have been made under clause (A) of this Section 6 (an “Overpayment”) or that additionalpayments which are not made by the Corporation pursuant to clause (A) of this Section 6 should havebeen made (an “Underpayment”). In the event that there is a final determination by the InternalRevenue Service, a final determination by a court of competent jurisdiction or a change in theprovisions of the Code or regulations pursuant to which an Overpayment arises, any such Overpaymentshall be treated for all purposes as a loan to the Executive which the Executive shall repay to theCorporation together with interest at the applicable Federal rate provided for in Section7872(f)(2) of the Code. In the event that there is a final determination by the Internal RevenueService, a final determination by a court of competent jurisdiction or a change in the provisionsof the Code or regulations pursuant to which an Underpayment arises under this Agreement, any suchUnderpayment 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 theCode.The calculations required by clause (A) of this Section 6 will be made by the Corporation’sindependent accounting firm engaged immediately prior to the event that triggered the payment, inconsultation with the Corporation’s outside legal counsel, and for purposes of making thecalculation the accounting firm may make reasonable assumptions and approximations concerningapplicable taxes and may rely on reasonable, good faith interpretations concerning the applicationof Sections 280G and 4999 of the Code, provided that the accounting firm’s determinations must bemade 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 Executiveunder this Agreement that is not made at the time required hereunder shall bear interest at a rateequal 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 bemade to the Executive under this Agreement shall be subject to the withholding of such amounts, ifany, relating to tax, excise tax and other payroll deductions asthe Corporation may reasonably determine it should withhold pursuant to any applicable law orregulation.
 
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**8. ****Non-Solicitation**. In consideration of the compensation and other benefits to bepaid to the Executive under this Agreement, the Executive agrees that, beginning on the date ofthis Agreement and continuing until the Covenant Expiration Date, as hereafter defined, theExecutive 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 orany other entity (a) solicit the employment of any person who is employed by the Corporation or anyAffiliate at the Reference Date or at any time during the six-month period preceding the ReferenceDate, except that the Executive shall be free to solicit the employment of any such person whoseemployment with the Corporation or any Affiliate has terminated for any reason (without anyinterference from the Executive) or who has not been employed by the Corporation or any Affiliatefor at least six (6) months, (b) canvass or solicit business in competition with the businessconducted by the Corporation or any Affiliate at the Reference Date from any person or entity whoduring the six (6) month period preceding the Reference Date shall have been a customer of theCorporation 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 disruptor interfere with, or seek to disrupt or interfere with, the business or contractual relationshipbetween the Corporation or any Affiliate and any other party who during the six-month periodpreceding the Reference Date shall have supplied materials or services to the Corporation or anyAffiliate. “Covenant Expiration Date” shall mean the date which is twelve (12) months after theReference Date. “Reference Date” shall mean the date on which the Executive’s employment with theCorporation or an Affiliate has terminated; provided however that the Executive’s employment shallnot be deemed to have terminated so long as the Executive continues to be employed or engaged as anemployee or consultant of the Corporation or any Affiliate.
 
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**9. ****Confidential Information**. The Executive will have access to and become acquaintedwith confidential or proprietary information and trade secrets related to the business of theCorporation, its subsidiaries and any Affiliates (collectively, the “Companies”),including but not limited to (i) trade secrets, business plans, software programs, operatingplans, marketing plans, financial reports, operating data, budgets, wage and salary rates, pricingstrategies and information, terms of agreements with suppliers or customers and others**,**customerlists, reports, correspondence, tapes, disks, tangible property and specifications owned by or usedin the Companies’ businesses; (ii) operating strengths and weaknesses of the Companies’ officers,directors, employees, agents, suppliers and customers, and/or (iii) information pertaining tofuture developments such as, but not limited to, software development or enhancement, futuremarketing plans or ideas, and plans or ideas for new services or products, (iv) all informationwhich is learned or developed by the Executive in the course and performance of the Executive’sduties under this Agreement, including without limitation, reports, information and data relatingto the Companies’ acquisition strategies, and (v) other tangible and intangible property which isused 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 orindirectly, disclose, use or make known for the Executive’s or another’s benefit any ConfidentialInformation of the Companies or use such Confidential Information in any way except in the bestinterests of the Companies in the performance of the Executive’s duties. The Executive will takeall necessary steps to safeguard the Companies’ Confidential Information. In addition, to theextent that the Corporation has entered into a confidentiality agreement with any other person orentity the Executive agrees to comply with the terms of such confidentiality agreement and to besubject to the restrictions and limitations imposed by such confidentiality agreements as if theExecutive was a party thereto.**10. ****Non-exclusivity of Rights**. Except as otherwise specifically provided, nothing inthis Agreement will prevent or limit the Executive’s continued or future participation in anybenefit, incentive, or other plan, practice, or program provided by the Corporation and for whichthe Executive may qualify. Any amount of vested benefit or any amount to which the Executive isotherwise entitled under any plan, practice, or program of the Corporation will be payable inaccordance 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 maybe provided to the Executive pursuant to any policy, program, contract orarrangement adopted by the Corporation, this Agreement will supersede and be in fullsubstitution of such other policy, program, contract or arrangement with respect to the larger orgreater separate severance benefit to be provided.
 
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**11. ****No Obligation to Seek Other Employment**. The Executive will not be obligated toseek other employment or to take other action to mitigate any amount payable to the Executive underthis Agreement.**12. ****Benefit Claims**. In the event the Executive, or the Executive’s beneficiaries, asthe case may be, and the Corporation disagree as to their respective rights and obligations underthis 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 thatthe Corporation’s position is substantially wrong or unreasonable, or in the event that thedisagreement is resolved by settlement, the Corporation will pay all costs and expenses, includingcounsel fees, which the Executive or the Executive’s beneficiaries may incur in connectiontherewith directly to the provider of the services or as may otherwise be directed by the Executiveor the Executive’s beneficiaries. The Corporation will not delay or reduce the amount of anypayment provided for hereunder or setoff or counterclaim against any such amount for any reasonwhatsoever; it is the intention of the Corporation and the Executive that the amounts payable tothe Executive or the Executive’s beneficiaries hereunder will continue to be paid in all events inthe manner and at the times herein provided. All payments made by the Corporation hereunder willbe final and the Corporation will not seek to recover all or any part of any portion of anypayments hereunder for any reason.**13. ****Successors**. This Agreement is personal to the Executive and may not be assignedby the Executive other than by will or the laws of descent and distribution. This Agreement willinure to the benefit of and be enforceable by the Executive’s legal representatives or successorsin interest. The Executive may designate a successor or successors in interest to receive anyamounts due under this Agreement after the Executive’s death. A designation of a successor ininterest must be made in writing, signed by the Executive, and delivered to the Corporationpursuant the Notice provisions of this Agreement. Except asotherwise provided in this Agreement, if the Executive has not designated a successor ininterest, payment of benefits under this Agreement will be made to the Executive’s estate. ThisSection will not supersede any designation of beneficiary or successor in interest made by theExecutive 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 itssuccessors and assigns.The Corporation will require any successor (whether direct or indirect, by acquisition ofassets, merger, consolidation or otherwise) to all or substantially all of the operations or assetsof the Corporation or any successor and without regard to the form of transaction used to acquirethe operations or assets of the Corporation, to assume and agree to perform this Agreement in thesame manner and to the same extent that the Corporation would be required to perform it if nosuccession had taken place. “Corporation” means the Corporation and any successor to itsoperations or assets as set forth in this Section that is required by this clause to assume andagree 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 thisAgreement, or a breach of it, must be settled by final and binding arbitration administered by theAmerican Arbitration Association under its National Rules for the Resolution of EmploymentDisputes, and judgment upon the award rendered by the arbitrators may be entered by any courthaving jurisdiction over it. The arbitration must take place in Buffalo, New York. Thearbitration 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 theBank. The Corporation and Bank management will recommend allocations supported by data theyprovide, and the Board will approve the allocations. The allocation will make certain no amountsare paid or owed by the Bank that are attributable to services performedby the Executive for the Corporation. The Corporation nonetheless will remain jointly liablefor 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 theCorporation or the Executive will constitute a waiver by the party of any right or remedy underthis Agreement, and no waiver by either party of any right or remedy under this Agreement will beeffective unless made in writing.**17. ****Severability**. Whenever possible, each provision of this Agreement will beinterpreted in such a manner as to be enforceable under applicable law. However, if any provisionof this Agreement is deemed unenforceable under applicable law by a court having jurisdiction, theprovision will be unenforceable only to the extent necessary to make it enforceable withoutinvalidating the remainder of it or any of the remaining provisions of this Agreement.**18. ****Notice**. All written communications to parties required hereunder must be inwriting and (a) delivered in person, (b) mailed by registered or certified mail, return receiptrequested, (such mailed notice to be effective 4 days after the date it is mailed) or (c) sent byfacsimile transmission, with confirmation sent by way of one of the above methods, to the party atthe address given below for the party (or to any other address as the party designates in a writingcomplying with this Section, delivered to the other party):If to the Corporation:First Niagara Financial Group, Inc.6950 South Transit RoadP.O. Box 514Lockport, NY 14095-0514Attention: Chief Human Resource OfficerTelephone: 716-625-7593Telecopier: 716-625-8673 with a copy (which shall not constitute notice) to:Luse Gorman Pomerenk & Schick, P.C.5335 Wisconsin Avenue, NW, Suite 400Washington, DC 20015Attention: John Gorman, Esq. or Norma Sharara, Esq.Telephone: 202-274-2000Telecopier: 202-362-2902
 
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If to the Executive:John R. Koelmel8104 Floss LaneEast Amherst, NY 14051Telephone: 716-741-2316Telecopier: 716-625-8673 (office)with a copy (which shall not constitute notice) to:____________________________