CHANGE IN CONTROL SEVERANCE AGREEMENT
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THIS CHANGE IN CONTROL SEVERANCE AGREEMENT ("Agreement") entered into this 10th
day of February, 2004, which Agreement is to become effective on the first day
of January 2004 ("Effective Date"), by and between Fidelity Bank, Pittsburgh,
Pennsylvania (the "Bank") and Xxxx X. Xxxxxxxx (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
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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 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.
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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 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. Xxxxxxx
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/s/Xxxxx X. XxXxxxx
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Secretary
WITNESS:
/s/Xxxxx X. XxXxxxx /s/Xxxx X. Xxxxxxxx
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Employee
