Exhibit
10.1


 


EMPLOYMENT AGREEMENT


 


THIS  AGREEMENT (“Agreement”), is made this 1st day of August, 2009 by and between Fox
Chase Bancorp, Inc. (the “Company”), a corporation
organized under the laws of the United States of America, with its principal offices at 4390 Davisville
Road, Hatboro, Pennsylvania 19040, Fox Chase Bank
(the “Bank”), a federally chartered
stock savings bank organized under the laws of the United States of
America, with its principal offices at 4390 Davisville Road, Hatboro,
Pennsylvania 19040 and Michael Fitzgerald (“Executive”).


 


WHEREAS, Executive and the Board of Directors of both the Company and Bank
desire to enter into an agreement setting forth the terms and conditions of the
employment of Executive and the related rights and obligations of each of the
parties.; and


 


WHEREAS, Executive and the Board of Directors of both the Company and Bank
desire to enter into an agreement setting forth the terms and conditions of the
employment of Executive and the related rights and obligations of each of the
parties for the period provided for in this
Agreement in compliance with Section 409A of the Internal Revenue Code
of 1986, as amended (the “Code”) and the regulations and guidance issued with
respect to 409A of the Code.; and


 


NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained,
it is agreed as follows:


 


1.             Position and Responsibilities.


 


(a)           During the
period of Executive’s employment under this Agreement, Executive agrees to
serve as Executive Vice President and Senior Lending Officer of
the Company and Bank.  Executive shall
have responsibility for the general management and control of the business and
affairs of the Company and its subsidiaries, including the Bank, and shall
perform all duties and shall have all powers which are commonly incident to the
offices of Executive Vice President and Senior Lending Officer or which,
consistent with those offices, are delegated to him by the Board of Directors
of the Company and Bank.


 


(b)           During the
period of Executive’s employment under this Agreement,
except for periods of absence occasioned by illness, vacation, and
reasonable leaves of absence, Executive shall devote substantially all of his
business time, attention, skill and efforts to the faithful performance of his
duties under this Agreement, including activities and services related to the
organization, operation and management of the Company and its subsidiaries,
including the Bank, as well as participation in community, professional and
civic organizations; provided, however,
that, Executive may serve, or continue to serve, on the boards of
directors of, and hold any other offices or positions in, companies or
organizations listed by Executive on his annual conflict of interest reporting.


 


(c)           The Bank or the Company (as they shall determine), will
furnish Executive with the working facilities and staff customary for executive officers with the titles and duties set  forth 


 

















 


in this Agreement and as
are necessary for him to perform his duties.  The location of such facilities and staff
shall be at the principal administrative offices of the Bank.


 


2.             Term of Employment.


 


(a)           The term of
Executive’s employment under this Agreement shall be deemed to have commenced
as of June 15, 2009 and shall continue for a
period of thirty-six (36) full calendar months thereafter.


 


(b)           The
Compensation Committees of the Boards of Directors of the Company and Bank will
review the Agreement and Executive’s performance annually for purposes of
determining whether to extend the Agreement for an additional year.  The Chairman of the Boards of Directors will
give notice to the Executive as soon as possible if the Boards have decided not
to extend the Agreement.


 


(c)           Notwithstanding
anything contained in this Agreement to the contrary, either Executive, the
Company or the Bank may terminate Executive’s employment at any time during the
term of this Agreement, subject to the terms and conditions of this Agreement.


 


3.             Compensation and Benefits.


 


(a)           The Bank or the
Company (as they shall determine), shall pay Executive as compensation a salary
of $175,000.00 per year (“Base Salary”). 
In addition to the Base Salary provided in this Section 3(a), the Bank
shall also provide Executive with all such other benefits as are provided uniformly
to permanent full-time employees of the Bank. 
If Executive’s Base Salary is increased, such increased Base Salary
shall then constitute the Base Salary for all purposes of this Agreement.  For purposes of Section 4(b) of this
Agreement, Base Salary shall be deemed to include the highest cash bonus or
similar cash incentive compensation paid to or accrued on behalf of the
Executive with respect to the three (3) taxable years preceding his termination
of employment.  For purposes of Section
5(c) of this Agreement, Base Salary shall be defined as the amount reported in
Box 1 of the Executive’s Form W-2, plus amounts deferred under the Bank’s
401(k) Plan and/or Section 125 Plan (if any), or deferred at the Executive’s
election or on behalf of the Executive to any non-qualified deferred
compensation plan of the Bank or the Company.


 


(b)           Executive shall
be entitled to participate in or receive benefits under any employee benefit
plans including but not limited to, retirement plans, profit-sharing plans, or any
other employee benefit plan or arrangement made available by the Bank or
Company in the future to its senior executives, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and arrangements.  Executive shall be
entitled to incentive compensation and bonuses as provided in any plan of the
Bank or Company in which Executive is eligible to participate.  Nothing paid to the Executive under any such
plan or arrangement will be deemed to be in lieu of other compensation to which
the Executive is entitled under this Agreement.  From time to time, and as determined by the
Boards of Directors of the Company and the Bank, Executive may be entitled to
participate in or receive benefits under plans relating 


 


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to stock options and restricted stock awards
that are made available by the Company or the Bank at any time in the future
during the term of this Agreement, subject to and on a basis consistent with
the terms, conditions and overall administration of such plans.


 


(c)           The Company or
Bank (as they shall determine) shall also pay or reimburse Executive for all
reasonable travel and other reasonable expenses incurred in the performance of
Executive’s obligations under this Agreement and may provide such additional
compensation in such form and such amounts as the Board of Directors of the
Company or Bank may from time to time determine.


 


(d)           Executive shall
take vacation at a time mutually agreed upon
by the Company, Bank and Executive. 
Executive shall receive his Base Salary and other benefits during
periods of vacation. Executive shall also be entitled to paid legal holidays in
accordance with the policies of the Bank.


 


4.             Payments to Executive Upon an Event of Termination.


 


(a)           Upon the
occurrence of an Event of Termination (as herein defined) during Executive’s
term of employment under this Agreement, the provisions of this Section 4 shall
apply.  Unless Executive otherwise
agrees, as used in this Agreement, an “Event of Termination” shall mean and
include any one or more of the following: 
(i) the termination by the Company or Bank of Executive’s full-time
employment for any reason other than a termination governed by Section 7 of
this Agreement; or (ii) Executive’s resignation from the Bank or Company, upon,
any (A) notice to Executive of non-renewal of the term of this Agreement (B)
failure to reappoint Executive as Executive Vice President and Senior Lending
Officer, (C) material change in Executive’s functions, duties, or
responsibilities with the Bank, the Company or its subsidiaries, which change
would cause Executive’s position(s) to become of lesser responsibility,
importance, or scope from the position and attributes thereof described in
Section 1 of this Agreement, (D) material reduction in the benefits and
perquisites provided to Executive from those being provided as of the effective
date of this Agreement, except to the extent such coverage may be changed in
its application to all Bank employees, (E) liquidation or dissolution of the
Company or the Bank, or (F) breach of this Agreement by the Bank or
Company.  Upon the occurrence of any
event described in clauses (A), (B), (C), (E) or (F), above, Executive shall
have the right to terminate his employment under this Agreement by resignation
upon not less than sixty (60) days prior written notice given within six (6)
full calendar months after the event giving rise to Executive’s right to elect
to terminate his employment.


 


(b)           Upon the occurrence of an Event of Termination, on the
Date of Termination, as defined in Section 8, the Company and Bank (as they
shall determine) shall be obligated to pay Executive, or, in the event of his
subsequent death, his beneficiary or beneficiaries, or his estate, as the case
may be the value of the Executive’s base salary for the remaining term of the
Agreement plus the value of all benefits he would have received during the
remaining term of the Agreement under any retirement programs (whether
tax-qualified or non-qualified) in which Executive participated prior to his
termination (with the amount of the benefits determined by reference to the
benefits received by the Executive or accrued on his behalf under such programs
during the twelve (12) months preceding his termination).  Executive shall receive this payment 


 


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in a single lump sum within ten (10) days of
his termination of employment.  In
addition, Executive and his dependents will continue to participate in any benefit
plans of the Company or the Bank that provide health (including medical and
dental), or life insurance, or similar coverage upon terms no less favorable
than the most favorable terms provided to senior executives of the Company and
the Bank during the remaining term of the Agreement.  In the event that the Company and the Bank
are unable to provide such coverage by reason of Executive no longer being an
employee, the Company and the Bank shall provide Executive with comparable
coverage on an individual policy basis. 
In the event the Bank or the Company is not in compliance with its
minimum capital requirements or if such payments pursuant to this subsection
(b) would cause the Company or Bank’s capital to be reduced below its minimum
regulatory capital requirements, such payments shall be deferred until such
time as either the Company or the Bank or successor thereto is in capital
compliance.  No payments under this
Section 4(b) shall be reduced in the event the Executive obtains other
employment following termination of employment.


 


(c)           During the period commencing on the effective date of
Executive’s termination under Section 4(a) of this Agreement and ending one (1)
year thereafter (the “Restricted Period”), Executive shall not, without express
prior written consent from the Company or the Bank, directly or indirectly, own
or hold any proprietary interest in, or be employed by or receive remuneration
from, any corporation, partnership, sole proprietorship of other entity
(collectively, an “entity”) “engaged in competition” (as defined below) with
the Bank or any other affiliates (“Competitor”).  For purposes of the preceding sentence, the
term “proprietary interest” means direct or indirect ownership of an equity
interest in an entity other than ownership of less than two percent (2%) of any
class of stock in a publicly-held entity. 
Further, an entity shall
be considered to be “engaged in competition” if such entity is, or is a holding
company for, or a subsidiary of an entity which is engaged in the business of
providing banking, trust services, asset management advice, or similar
financial services to consumers, businesses, individuals or other entities; and
the entity, holding company or subsidiary maintains physical offices for the
transaction of such business or businesses in any city, town or county in which
the Executive’s normal business office is located or the Bank has an office or
has filed an application for regulatory approval to establish an office, as
determined on the date of Executive’s termination of employment.


 


(d)           During the
Restricted Period, Executive shall not, without express prior written consent
of the Bank or the Company, solicit or assist any other person in soliciting
for the account of any Competitor, any customer or client of the Bank or any of
its subsidiaries.


 


(e)           During the
Restricted Period, Executive shall not, without the express prior written
consent of the Bank, directly or indirectly, (i) solicit or assist any third
party in soliciting for employment any person employed by the Bank or any of
its subsidiaries at the time of the termination of Executive’s employment
(collectively, “Employees”), (ii) employ, attempt to employ or materially
assist any third party in employing or attempting to employ any Employee, or (iii)
otherwise act on behalf of any Competitor to interfere with the relationship
between the Bank or any of its affiliates and their
respective Employees.


 


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(f)            Executive
acknowledges that the restrictions contained in this Sections (c) through (e)
of this Section 4 are reasonable and necessary to protect the legitimate
interests of the Bank and the Company and that any breach by Executive of any
provision contained in Sections (c) through (e) of this Section 4 will result
in irreparable injury to the Bank and Company for which a remedy at law would
be inadequate.  Accordingly, Executive
acknowledges that the Bank and Company shall be entitled to temporary,
preliminary and permanent injunctive relief against Executive in the event of
any breach or threatened breach by Executive of Sections (c) through (e) of
this Section 4, in addition to any other remedy that may be available to the
Bank or the Company whether at law or in equity.  With respect to Sections (c) through (e) of
this Section 4 finally determined by a court of competent jurisdiction to be
unenforceable, such court shall be authorized to reform this Agreement or any
provision hereof so that it is enforceable to the maximum extent permitted by
law.  If the covenants of Sections (c)
through (e) above are determined to be wholly or partially unenforceable in any
jurisdiction, such determination shall not be a bar to or in any way diminish
the Bank’s or the Company’s right to enforce such covenants in any other
jurisdiction and shall not bar or limit the enforceability of any other
provisions.    The Bank and the Company
shall not be required to post any bond or other security in connection with any
proceeding to enforce Sections (c) through (e) of this Section 4.


 


(g)           The parties to
this Agreement intend for the payments to satisfy the short-term deferral
exception under Section 409A of the Code or, in the case of health and welfare
benefits, not constitute deferred compensation (since such amounts are not
taxable to Executive).  However,
notwithstanding anything to the contrary in this Agreement, to the extent
payments do not meet the short-term deferral exception of Section 409A of the
Code and, in the event Executive is a “Specified Employee” (as defined herein)
no payment shall be made to Executive under this Agreement prior to the first
day of the seventh month following the Event of Termination in excess of the
“permitted amount” under Section 409A of the Code.  For these purposes the “permitted amount”
shall be an amount that does not exceed two times the lesser of: (A) the sum of
Executive’s annualized compensation based upon the annual rate of pay for
services provided to the Company for the calendar year preceding the year in
which Executive has an Event of Termination, or (B) the maximum amount that may
be taken into account under a tax-qualified plan pursuant to Section 401(a)(17)
of the Code for the calendar year in which occurs the Event of
Termination.  The payment of the
“permitted amount” shall be made within sixty (60) days of the occurrence of
the Event 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 Event of Termination.  “Specified Employee” shall be interpreted to
comply with Section 409A of the Code and shall mean a key employee within the
meaning of Section 416(i) of the Code (without regard to Section 5 thereof),
but an individual shall be a “Specified Employee” only if the Company is a
publicly-traded institution or the subsidiary of a publicly-traded holding
company.


 


5.             Change in Control.


 


(a)           For purposes of this Agreement, a Change in Control means
any of the following events:


 


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i.                                          Merger:  The Bank or the Company merges into or
consolidates with another entity, or merges another entity into the Bank or the
Company, and as a result less than a majority of the combined voting power of
the resulting entity immediately after the merger or consolidation is held by
persons who were shareholders of the Bank or the Company immediately before the
merger or consolidation.


 


ii.                                       Change in Board
Composition:  During any
period of two consecutive years, individuals who constitute the Boards of
Directors of the Bank or the Company at the beginning of the two-year period
cease for any reason to constitute at least a majority of the Boards of
Directors of the Bank or the Company; provided, however, that for purposes of
this clause (iii), each director who is first elected by the board (or first
nominated by the board for election by the members) by a vote of at least
two-thirds (2/3) of the directors who were directors at the beginning of the
two-year period shall be deemed to have also been a director at the beginning
of such period.


 


iii.                                    Acquisition of Significant Share Ownership:  There is filed, or required
to be filed, a report on Schedule 13D or another form or schedule (other than
Schedule 13G) required under Sections 13(d) or 14(d) of the Securities Exchange
Act of 1934, if the schedule discloses that the filing person or persons acting
in concert has or have become the beneficial owner(s) of 20% or more of a class
of the Bank’s or the Company’s voting securities, however this clause (iii)
shall not apply to beneficial ownership of Bank or Company voting shares held
in a fiduciary capacity by an entity of which the Bank or the Company directly
or indirectly beneficially owns 50% or more of its outstanding voting
securities.


 


iv.                                   Sale of Assets:  The Bank or the Company sells to a third
party all or substantially all of its assets.


 


v.                                      Proxy Statement
Distribution:  An
individual or company (other than current management of the Company) solicits
proxies from stockholders of the Company seeking stockholder approval of a plan
of reorganization, merger or consolidation of the Company or Bank with one or
more corporations as a result of which the outstanding shares of the class of
securities then subject to such plan or transaction are exchanged for or
converted into cash or property or securities not issued by the Bank or the
Company.


 


vi.                                   Tender Offer:  A tender offer is made for 20% or more of the
voting securities of the Bank or Company then outstanding.


 


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Notwithstanding anything in
this Agreement to the contrary, in no event shall the reorganization of the
Bank from the mutual holding company form of organization to the full stock
holding company form of organization (including the elimination of the mutual holding
company) constitute a “Change in Control” for purposes of this Agreement.


 


(b)           If any of the events described in Section (a) of this
Section 5, constituting a Change in Control, have occurred or the Boards of
Directors determine that a Change in Control has occurred, Executive shall be
entitled to the benefits provided for in subsections (c) and (d) of this
Section 5 upon his termination of employment at any time during the term of
this Agreement and any extensions thereof, on or after the date the Change in
Control occurs due to (i) Executive’s dismissal, (ii) Executive’s
resignation following any demotion, loss of title, office or significant
authority or responsibility, reduction in annual compensation or benefits or
relocation of his principal place of employment by more than thirty (30) miles
from its location immediately prior to the Change in Control or (iii)
Executive’s resignation for any reason within the sixty (60) day period
following the date that is one year from the date the Change in Control
occurred, unless Executive’s termination is for Cause as defined in Section 7
of this Agreement; provided, however, that such benefits shall be reduced by
any payment made under Section 4 of this Agreement.


 


(c)           Upon the
occurrence of a Change in Control followed by Executive’s termination of
employment, as provided for in Section (b) of this Section 5, the Company or
Bank (as they shall determine) shall pay Executive, or in the event of his
subsequent death, his beneficiary or beneficiaries or his estate, as the case
may be, as severance pay, a sum equal to the greater of:  (i) the payments and benefits due for
the remaining term of the Agreement or (ii) three (3) times Executive’s
average Base Salary for the three (3) taxable years preceding the Change in
Control or (iii) three (3) times Executive’s Base Salary for the most
recent taxable year or portion thereof preceding the Change in Control.  The benefit shall be payable in one lump sum
within 10 days of Executive’s last day of employment.


 


(d)           Upon the
occurrence of a Change in Control and Executive’s termination of employment in
connection therewith, the Bank and Company (as they shall determine) will cause
to be continued life, medical and dental coverage substantially identical to
the coverage maintained by the Bank for
Executive and any of his dependents covered under such plans immediately
prior to the Change in Control. Such coverage and payments shall cease upon the
expiration of thirty-six (36) full calendar
months following the Date of Termination. 
In the event  Executive’s
participation in any such plan or program is barred, the Bank and/or
Company (as they shall determine) shall arrange to provide Executive and his dependents with benefits substantially
similar to those of which Executive and his dependents would otherwise have
been entitled to receive under such plans and programs from which their
continued participation is barred or at the
election of Executive, provide their economic equivalent.


 


(e)           The parties to
this Agreement intend for the payments to satisfy the short-term deferral
exception under Section 409A of the Code or, in the case of health and welfare
benefits, not constitute deferred compensation (since such amounts are not
taxable to Executive).  However,
notwithstanding anything to the contrary in this Agreement, to the extent
payments do 


 


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not meet the short-term deferral exception of
Section 409A of the Code and, in the event Executive is a “Specified Employee”
(as defined herein) no payment shall be made to Executive under this Agreement
prior to the first day of the seventh month following the Event of Termination
in excess of the “permitted amount” under Section 409A of the Code.  For these purposes the “permitted amount”
shall be an amount that does not exceed two times the lesser of: (A) the sum of
Executive’s annualized compensation based upon the annual rate of pay for
services provided to the Company for the calendar year preceding the year in
which Executive has an Event of Termination, or (B) the maximum amount that may
be taken into account under a tax-qualified plan pursuant to Section 401(a)(17)
of the Code for the calendar year in which occurs the Event of
Termination.  The payment of the
“permitted amount” shall be made within sixty (60) days of the occurrence of
the Event 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 Event of Termination.  “Specified Employee” shall be interpreted to
comply with Section 409A of the Code and shall mean a key employee within the
meaning of Section 416(i) of the Code (without regard to paragraph 5 thereof),
but an individual shall be a “Specified Employee” only if the Company is a publicly-traded
institution or the subsidiary of a publicly-traded holding company.


 


6.             Change in Control Related
Provisions.


 


Notwithstanding the
provisions of Section 5, in no event shall the aggregate payments or benefits
to be made or afforded to Executive under said sections (the “Termination
Benefits”) constitute an “excess parachute payment” under Section 280G of the
Internal Revenue Code of 1986 or any successor thereto, and in order to avoid
such a result, Termination Benefits will be reduced, if necessary, to an amount
(the “Non-Triggering Amount”), the
value of which is one dollar ($1.00) less than an amount equal to the maximum
amount allowable as a deduction by the Bank or Company, as determined in
accordance with said Section 280G.  The
allocation of the reduction required hereby among the Termination Benefits
provided by Section 5 shall be determined by Executive.


 


7.             Termination for Cause.


 


The phrase termination for
“Cause” shall mean termination because of Executive’s personal dishonesty,
incompetence, willful misconduct, any breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties, willful
violation of any law, rule, regulation (other than traffic violations or
similar offenses), Executive’s breach of a final cease and desist order issued
by the Office of Thrift Supervision, the Securities and Exchange Commission, or
any regulatory agency having jurisdiction over the Bank or Company, or material
breach of any provision of this Agreement.


 


8.             Notice.


 


(a)           Any purported
termination by the Bank or Company or by Executive shall be communicated by
Notice of Termination to the other party hereto. For purposes of this
Agreement, a “Notice of Termination” shall mean a written notice which shall
indicate the 


 


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specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive’s
employment under the provision so indicated.


 


(b)           “Date of
Termination” shall mean the date specified in the Notice of Termination.


 


(c)           If, within
thirty (30) days after any Notice of Termination (except for termination for
Cause) is given, the party receiving such Notice of Termination notifies the
other party that a dispute exists concerning the termination, except upon the
occurrence of a Change in Control and voluntary termination by Executive in
which case the Date of Termination shall be the date specified in the Notice, the
Date of Termination shall be the date on which the dispute is finally
determined, either by mutual written agreement of the parties, by a binding
arbitration award or by a final judgment, order or decree of a court of
competent jurisdiction (the time for appeal therefrom having expired and no
appeal having been perfected), and provided further that the Date of
Termination shall be extended by a notice of dispute only if such notice is
given in good faith and the party giving such notice pursues the resolution of
such dispute with reasonable diligence. Notwithstanding the pendency of any
such dispute, the Bank and Company (as they shall determine) will continue to
pay Executive his full compensation in effect when the notice giving rise to
the dispute was given (including, but not limited to, Base Salary) and continue
him as a participant in all compensation, benefit and insurance plans in which
he was participating when the notice of dispute was given, until the dispute is
finally resolved in accordance with this Agreement. Amounts paid pursuant to
this provision shall be in addition to all other
amounts due under this Agreement and shall not be offset against or reduce any
other amounts due under this Agreement.


 


9.             Post-Termination
Obligations.


 


All payments and benefits to
Executive under this Agreement shall be subject to Executive’s compliance with
this Section 9 for one (1) full year after the earlier of the expiration of
this Agreement or termination of Executive’s employment with the Company. Executive
shall, upon reasonable notice, furnish such information and assistance to the
Company and Bank as may reasonably be required by the Company and Bank in
connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party. 
Bank and Company (as they shall determine) shall reimburse Executive all
reasonable expenses, including costs, fees and expenses for Executive’s counsel
in complying with the provisions of this Section 9.


 


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10.          Loyalty and Confidentiality.


 


(a)           During the term of this Agreement Executive:  (i) shall devote all his time, attention,
skill, and efforts to the faithful performance of his duties hereunder;
provided, however, that from time to time, Executive may serve on the boards of
directors of, and hold any other offices or positions in, companies or
organizations which will not present any conflict of interest with the Company
and the Bank or any of their subsidiaries or affiliates, unfavorably affect the
performance of Executive’s duties pursuant to this Agreement, or violate any
applicable statute or regulation and (ii) shall not engage in any business or
activity contrary to the business affairs or interests of the Company and the
Bank.


 


(b)           Nothing contained in this Agreement shall prevent or limit
Executive’s right to invest in the capital stock or other securities of any
business dissimilar from that of the Company and the Bank, or, solely as a
passive, minority investor, in any business.


 


(c)           Executive agrees to maintain the confidentiality of any
and all information concerning the operation or financial status of the Company
and the Bank; the names or addresses of any of its borrowers, depositors and
other customers; any information concerning or obtained from such customers;
and any other information concerning the Company and the Bank to which he may
be exposed during the course of his employment. 
The Executive further agrees that, unless required by law or
specifically permitted by the Board in writing, he will not disclose to any
person or entity, either during or subsequent to his employment, any of the
above-mentioned information which is not generally known to the public, nor
shall he employ such information in any way other than for the benefit of the
Company and the Bank.


 


11.          Death and Disability.


 


(a)           Death.  Notwithstanding
any other provision of this Agreement to the contrary, in the event of
Executive’s death during the term of this Agreement, the Bank or Company (as  they shall determine) shall
immediately pay his estate any salary and bonus accrued but unpaid as of the
date of his death, and, for a period of six (6) months after Executive’s death,
the Bank shall continue to provide his dependents’ medical insurance benefits
existing on the date of his death and shall pay Executive’s designated
beneficiary all compensation that would otherwise be payable to him pursuant to
Section 3(a) of this Agreement.  This
provision shall not negate any rights Executive or his beneficiaries may have
to death benefits under any employee benefit plan of the Company or the Bank.


 


(b)           Disability.


 


(i)                                     The Bank or
Company or Executive may terminate Executive’s employment after having
established Executive’s Disability.  For
purposes of this Agreement, “Disability” means a physical or mental infirmity
that impairs Executive’s ability to substantially perform his duties under this
Agreement and that results in Executive becoming eligible for long-term
disability benefits under the Company’s or the Bank’s long-term disability plan
(or, if the Company or the Bank has no such plan in effect, that 


 


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impairs Executive’s ability
to substantially perform his duties under this Agreement for a period of one
hundred eighty (180) consecutive days). 
The Boards of Directors shall determine whether or not Executive is and
continues to be permanently disabled for purposes of this Agreement in good
faith, based upon competent medical advice and other factors that they
reasonably believe to be relevant.  As a
condition to any benefits, the Boards of Directors may require Executive to
submit to such physical or mental evaluations and tests as it deems reasonably
appropriate.


 


(ii)                                  In the event of
Disability, Executive’s obligation to perform services under this Agreement
will terminate.  In the event of such
termination, Executive shall continue to receive two-thirds (66.667%) of his
monthly Base Salary (at the annual rate in effect on the Date of Termination)
following termination through the earlier of: 
(A) the date Executive returns to full-time employment at the Company
or the Bank in the same capacity as he was prior to his termination for
Disability; (B) Executive’s death; or (C) Executive’s attainment of
age 65.  Such payments shall be reduced
by the amount of any short- or long-term disability benefits payable to
Executive under any disability program sponsored by the Company or the
Bank.  In addition, during any period of
Executive’s Disability, Executive and his dependents shall, to the greatest
extent possible, continue to be covered under all benefit plans (including,
without limitation, retirement plans and medical, dental and life insurance
plans) of the Company or the Bank in which Executive participated prior to the
occurrence of Executive’s Disability, on the same terms as if Executive were
actively employed by the Bank or Company.


 


12.          Source of Payments.


 


All payments provided for in
this Agreement shall be timely paid in cash or check from the general funds of
the Bank.  Company and Bank reserve the
right to make payments provided for in this Agreement from general funds of the
Company.


 


13.          Effect of Prior Agreements and
Existing Benefit Plans.


 


This Agreement contains the
entire understanding between the parties hereto and supersedes any prior
employment agreement between the Bank, Company or any predecessor of the Bank,
Company and Executive, except that this Agreement shall not affect or operate
to reduce any benefit or compensation inuring to Executive of a kind elsewhere
provided.  No provision of this Agreement
shall be interpreted to mean that Executive is subject to receiving fewer
benefits than those available to him without reference to this Agreement.


 


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14.          No Attachment.


 


(a)           Except as required by law, no right to receive payments
under this Agreement shall be subject to anticipation, commutation, alienation, sale, assignment, encumbrance, charge,
pledge or hypothecation, or to execution, attachment, levy or similar process
or assignment by operation of law, and any attempt, voluntary or involuntary,
to affect any such action shall be null, void and of no effect.


 


(b)           This Agreement shall be binding upon, and inure to the benefit of Executive, the Bank, the Company and
their respective successors and assigns.


 


15.          Modification and Waiver.


 


(a)           This Agreement
may not be modified or amended except by an instrument in writing signed by the
parties hereto.


 


(b)           No term or
condition of this Agreement shall be deemed to have been waived, nor shall
there be any estoppel against the enforcement of any provision of this
Agreement, except by written instrument of the party charged with such waiver
or estoppel.  No such written waiver
shall be deemed a continuing waiver unless specifically stated therein, and
each such waiver shall operate only as to the specific term or condition waived
and shall not constitute a waiver of such term or condition for the future as
to any act other than that specifically waived.


 


16.       Severability.


 


If, for any reason, any
provision of this Agreement, or any part of any provision, is held invalid,
such invalidity’ shall not affect any other provision of this
Agreement or any part of such provision not held so invalid, and each such
other provision and part thereof shall to the full extent consistent with law
continue in full force and effect.


 


17.          Headings for Reference Only.


 


The headings of sections and
Sections herein are included solely for
convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.


 


18.          Governing Law.


 


This
Agreement shall be governed by the laws of the Commonwealth of Pennsylvania
(without regard to principles of conflicts of law of that state).


 


19.          Arbitration.


 


Any dispute or controversy
arising under or in connection with this Agreement shall be settled exclusively
by arbitration, conducted before a panel of three (3) arbitrators sitting in a
location selected by Executive within fifty (50) miles from the location of the
Bank, in 


 


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accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the arbitrator’s award in any court having jurisdiction;
provided, however, that Executive shall be entitled to seek specific
performance of his right to be paid until the Date of Termination during the
pendency of any dispute or controversy arising under or in connection with this
Agreement.


 


In the event any dispute or
controversy arising under or in connection with Executive’s termination is
resolved in favor of Executive, whether by judgment, arbitration or settlement,
Executive shall be entitled to the payment of all back-pay, including salary,
bonuses and any other cash compensation, fringe benefits and any compensation
and benefits due Executive under this Agreement.


 


20.       Payment of Legal Fees.


 


All reasonable legal fees
paid or incurred by Executive pursuant to any dispute or question of
interpretation relating to this Agreement shall be paid or reimbursed by the
Bank or Company (as they shall determine), only if Executive is successful
pursuant to a legal judgment, arbitration or settlement.


 


21.          Indemnification.


 


The Bank and Company shall
provide Executive (including his heirs, executors and administrators) with
coverage under a standard directors’ and officers’ liability insurance policy
at its expense and shall indemnify Executive (and his heirs, executors and administrators) (in accordance with
the By-Laws of both Bank and Company) to the fullest extent permitted
under federal law or under the Bank and Company Charters against all expenses
and liabilities reasonably incurred by him in connection with or arising out of
any action, suit or proceeding in which he may be involved by reason of his
having been a director or officer of the Company or Bank (whether or not he
continues to be a director or officer at the time of incurring such expenses or
liabilities), such expenses and liabilities to include, but not be limited to,
judgments, court costs and attorneys’ fees and the cost of reasonable
settlements.


 


22.          Successor to the Company.


 


The Bank and Company shall
require any successor or assignee, whether direct or indirect, by purchase,
merger, consolidation or otherwise, to all or substantially all the business or
assets of the Bank or the Company, expressly and unconditionally to assume and
agree to perform the Bank and Company’s obligations under this Agreement, in
the same manner and to the same extent that the Bank and Company would be
required to perform if no such succession or assignment had taken place.


 


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23.          Required Provisions.


 


In the event any of the
foregoing provisions of this Section 23 are in conflict with the terms of this
Agreement, this Section 23 shall prevail.


 


(a)           The Boards of Directors may terminate Executive’s
employment at any time, but any termination by the Bank or the Company, other
than termination for Cause, shall not prejudice Executive’s right to
compensation or other benefits under this Agreement.  Executive shall not have the right to receive
compensation or other benefits for any period after termination for Cause as
defined in this Agreement.


 


(b)           If Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the affairs of the Bank by a
notice served under Section 8(e)(3) or 8(g)(1) of the Federal Deposit Insurance
Act, 12 U.S.C. §1818(e)(3) or (g)(1); the Bank’s obligations under this
contract shall be suspended as of the date of service, unless stayed by
appropriate proceedings.  If the charges
in the notice are dismissed, the Bank may in its discretion:  (i) pay Executive all or part of the
compensation withheld while their contract obligations were suspended; and (ii)
reinstate (in whole or in part) any of the obligations which were suspended.


 


(c)           If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank’s affairs by an order issued under
Section 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
§1818(e)(4) or (g)(1), all obligations of the Bank under this contract shall
terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.


 


(d)           If the Bank is in default as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act, 12 U.S.C. §1813(x)(1) all obligations of the
Bank under this contract shall terminate as of the date of default, but this
Section shall not affect any vested rights of the contracting parties.


 


(e)           All obligations under this contract shall be terminated,
except to the extent determined that continuation of the contract is necessary
for the continued operation of the Bank: 
(i) by the Director of the OTS (or his designee) at the time the FDIC
enters into an agreement to provide assistance to or on behalf of the Bank
under the authority contained in Section 13(c) of the Federal Deposit Insurance
Act, 12 U.S.C. §1823(c); or (ii) by the Director of the OTS (or his designee)
at the time the Director (or his designee) approves a supervisory merger to
resolve problems related to the operations of the Bank or when the Bank is
determined by the Director to be in an unsafe or unsound condition.  Any rights of the parties that have already
vested, however, shall not be affected by such action.


 


(f)            Any payments made to employees pursuant to this Agreement,
or otherwise, are subject to and conditioned upon their compliance with 12
U.S.C. §1828(k) and FDIC regulation 12 C.F.R. Part 359, Golden Parachute and
Indemnification Payments.


 


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IN
WITNESS WHEREOF, Fox Chase Bancorp, Inc. and  Fox Chase Bank have caused this Agreement to be executed and  its seal to be affixed hereunto by their
duly authorized officer and Executive has
signed this Agreement, on the 1st day of August, 2009.


 


	
  ATTEST:

  	
   

  	
  FOX CHASE
  BANCORP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Mary Beth Osbeck

  	
   

  	
  By:

  	
  /s/ Thomas M. Petro

  
	
   

  	
   

  	
   

  	
  For the Entire Board of
  Directors

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
  FOX CHASE BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Mary Beth Osbeck

  	
   

  	
  By:

  	
  /s/ Thomas M. Petro

  
	
   

  	
   

  	
   

  	
  For the Entire Board of
  Directors

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Jerry Holbrook

  	
   

  	
  /s/ Michael S. Fitzgerald

  
	
   

  	
   

  	
  EXECUTIVE

  



 


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