CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT ("Agreement") entered into this 19th
day of December, 1997, which Agreement is to become effective on the first day
of January 1998 ("Effective Date"), by and between Fidelity Bank, Pittsburgh,
Pennsylvania (the "Bank") and Xxxxxxx X. Xxxxx (the "Employee").
WHEREAS, the Employee is currently employed by the Bank as a Senior Vice
President and is experienced in certain phases of the business of the Bank; and
WHEREAS, the parties desire by this writing to set forth the rights and
responsibilities of the Bank and Employee, if the Bank should undergo a change
in control (as defined hereinafter in the Agreement) after the Effective Date.
NOW, THEREFORE, it is AGREED as follows:
1. Employment. The Employee is employed in the capacity as Senior Vice
President of the Bank. The Employee shall render such administrative and
management services to the Bank and Fidelity Bancorp, Inc. ("Parent") as
are currently rendered and as are customarily performed by persons situated
in a similar executive capacity. The Employee's other duties shall be such
as the Board of Directors for the Bank (the "Board of Directors" or
"Board") may, from time to time, reasonably direct, including normal duties
as an officer of the Bank and the Parent.
2. Term of Agreement. The term of this Agreement shall be for the period
commencing on the Effective Date and ending thirty-six (36) months
thereafter ("Term"). Additionally, on or before each annual anniversary
date from the Effective Date, the Term of this Agreement may be extended
for an additional period beyond the then effective expiration date upon a
determination and resolution of the Board of Directors that the performance
of the Employee has met the requirements and standards of the Board, and
that the Term of such Agreement shall be extended.
3. Termination of Employment in Connection with or Subsequent to a Change in
Control.
(a) Notwithstanding any provision herein to the contrary, in the event of the
involuntary termination of Employee's employment under this Agreement,
absent Just Cause, in connection with, or within twenty-four (24) months
after, any Change in Control of the Bank or Parent, the Employee shall be
paid an amount equal to two hundred percent of the taxable compensation
paid by the Bank to the Employee during the most recent completed calendar
year prior to such termination of employment or the date of such Change in
Control, whichever is greater, and the costs associated with maintaining
coverage under the Bank 's medical and dental insurance reimbursement plans
similar to that in effect on the date of termination of employment for a
period of one year thereafter. Said sum shall be paid, at the election of
Employee, either in one (1) lump sum within thirty (30) days of such
termination or in periodic payments over the next 24 months, and such
payments shall be in lieu of any other future payments which the Employee
would be otherwise entitled to receive. Notwithstanding the forgoing, all
sums payable hereunder shall be reduced in such manner and to such extent
so that no such payments made hereunder, when aggregated with all other
payments to be made to the Employee by the Bank or the Parent, shall be
deemed an "excess parachute payment" in accordance with Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code") and be subject to
the excise tax provided at Section 4999(a) of the Code. The term "Change in
Control" shall refer to: (i) the sale of all, or a material portion, of the
assets of the Bank or the Parent; (ii) the merger or recapitalization of
the Bank or the Parent, whereby the Bank or the Parent is not the surviving
entity; (iii) a change in control of the Bank or the Parent, as otherwise
defined or determined by the Pennsylvania Department of Banking or the
Federal Reserve Board or regulations promulgated by such agencies; or (iv)
the acquisition, directly or indirectly, of the beneficial
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ownership (within the meaning of that term as it is used in Section 13(d)
of the Securities Exchange Act of 1934 and the rules and regulations
promulgated thereunder) of twenty-five percent (25%) or more of the
outstanding voting securities of the Bank or the Parent by any person,
trust, entity or group. The term "person" means an individual other than
the Employee, or a corporation, partnership, trust, association, joint
venture, pool, syndicate, sole proprietorship, unincorporated organization
or any other form of entity not specifically listed herein.
(b) Notwithstanding any other provision of this Agreement to the contrary,
except as provided in Sections 4 and 5, the Employee may, within his/her
sole discretion, voluntarily terminate his/her employment under this
Agreement within twelve (12) months following a Change in Control of the
Bank or Parent, and the Employee shall thereupon be entitled to receive the
payment and benefits described in Section 3(a) of this Agreement.
4. Other Changes in Employment Status. Except as provided for at Section 3,
herein, the Board of Directors may terminate the Employee's employment at
any time, with or without Just Cause within its sole discretion. This
Agreement shall not be deemed to give the Employee any right to be retained
in the employment of the Bank at any time. The Employee shall have no right
to receive compensation or other benefits for any period after termination
for Just Cause. Termination for "Just Cause" shall include termination
because of the Employee's personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or final
cease-and-desist order of an applicable banking regulator, or material
breach of any provision of the Agreement.
5. Regulatory Exclusions. Notwithstanding anything herein to the contrary, any
payments made to the Employee, pursuant to the Agreement, or otherwise,
shall be subject to and conditioned upon compliance with 12 USC 1828(k) and
any regulations promulgated thereunder.
6. Successors and Assigns.
(a) This Agreement shall inure to the benefit of, and be binding upon any
corporate or other successor of the Bank which shall acquire, directly or
indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the assets or stock of the Bank or Parent.
(b) The Employee shall be precluded from assigning or delegating his/her rights
or duties hereunder without first obtaining the written consent of the
Bank.
7. Amendments. No amendments or additions to this Agreement shall be binding
upon the parties hereto unless made in writing and signed by both parties,
except as herein otherwise specifically provided.
8. Applicable Law. This Agreement shall be governed by all respects whether as
to validity, construction, capacity, performance or otherwise, by the laws
of the Commonwealth of Pennsylvania, except to the extent that Federal law
shall be deemed to apply.
9. Severability. The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any provision shall not affect
the validity or enforceability of the other provisions hereof.
10. Arbitration. Any controversy or claim arising out of, or relating to this
Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the rules then in effect of the district office of the
American Arbitration Association ("AAA") nearest to the home office of the
Bank, and judgment upon the award rendered may be entered in any court
having jurisdiction thereof, except to the extent that the parties may
otherwise reach a mutual settlement of such issue. Further, the
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settlement of the dispute to be approved by the Board of the Bank may
include a provision for the reimbursement by the Bank to the Employee for
all reasonable costs and expenses, including reasonable attorneys' fees,
arising from such dispute, proceedings or actions, or the Board of the Bank
or the Parent may authorize such reimbursement of such reasonable costs and
expenses by separate action upon a written action and determination of the
Board following settlement of the dispute. Such reimbursement shall be paid
within ten (10) days of the Employee furnishing to the Bank or Parent
evidence, which may be in the form, among other things, of a canceled check
or receipt, of any costs or expenses incurred by the Employee.
11. Confidential Information. The Employee acknowledges that during his/her
employment he/she will learn and have access to confidential information
regarding the Bank and the Parent and its customers and businesses
("Confidential Information"). The Employee agrees and covenants not to
disclose or use for his/her own benefit, or the benefit of any other person
or entity, any such Confidential Information unless or until the Bank or
the Parent consents to such disclosure or use or such information becomes
common knowledge in the industry or is otherwise legally in the public
domain. The Employee shall not knowingly disclose or reveal to any
unauthorized person any Confidential Information relating to the Bank , the
Parent, or any subsidiaries or affiliates, or to any of the businesses
operated by them, and the Employee confirms that such information
constitutes the exclusive property of the Bank and the Parent. The Employee
shall not otherwise knowingly act or conduct himself/herself (a) to the
material detriment of the Bank or the Parent, or its subsidiaries, or
affiliates, or (b) in a manner which is inimical or contrary to the
interests of the Bank or the Parent. Employee acknowledges and agrees that
the existence of the Agreement and its terms and conditions constitutes
Confidential Information of the Bank , and the Employee agrees not to
disclose the Agreement or its contents without the prior written consent of
the Bank . Notwithstanding the foregoing, the Bank reserves the right, in
its sole discretion, to make disclosure of this Agreement as it deems
necessary or appropriate in compliance with its regulatory reporting
requirements. Notwithstanding anything herein to the contrary, failure by
the Employee to comply with the provisions of this Section may result in
the immediate termination of the Agreement within the sole discretion of
the Bank, disciplinary action against the Employee taken by the Bank,
including, but not limited to, the termination of employment of the
Employee for breach of the Agreement and the provisions of this Section,
and other remedies that may be available in law or in equity.
12. Entire Agreement. This Agreement, together with any understanding or
modifications thereof, as agreed to in writing by the parties, shall
constitute the entire Agreement between the parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
first hereinabove written.
Fidelity Bank
ATTEST: By: /s/Xxxxxxx X. Xxxxxxxx, President
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/s/Xxxx X. Xxxxx
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Assistant Secretary
WITNESS:
/s/Xxxxxxx X. Xxxxxxx /s/Xxxxxxx X. Xxxxx
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Employee
