Exhibit 10.13


 


CHANGE IN CONTROL AGREEMENT


 


This
Change in Control Agreement (this “Agreement”) is made effective as of October 30, 2017 (the “Effective Date”),
by and between Fairport Savings Bank (the “Bank”) and Michael Giancursio (“Executive”). Any
reference to the “Company” shall mean FSB Bancorp, Inc., the stock holding company of the Bank, or any successor
thereto.


 


WHEREAS,
the Bank wishes to assure itself of the continued services of Executive as Chief Lending Officer of the Bank for the period
provided in this Agreement; and


 


WHEREAS,
in order to induce Executive to continue employment with the Bank and to provide further incentive to achieve the financial
and performance objectives of the Bank, the parties desire to specify the benefits which shall be due to Executive in the event
of a Change in Control (as defined below).


 


NOW
THEREFORE, in consideration of the mutual agreements herein contained, and upon the other terms and conditions hereinafter
provided, the parties hereby agree as follows:


 


1.           Term
of Agreement. The term of this Agreement shall commence
as of the Effective Date and shall continue thereafter for a period of two (2) years. Commencing on the first anniversary date
of this Agreement (the “Anniversary Date”) and continuing on each Anniversary Date thereafter, the term of this
Agreement shall renew for an additional year such that the remaining term of this Agreement is always two (2) years unless written
notice of non-renewal (“Non-Renewal Notice”) is provided to Executive at least 30 days prior to any such Anniversary
Date, in which event this Agreement shall terminate at the end of 12 months following such Anniversary Date. Prior to each notice
period for non-renewal, the disinterested members of the Board of Directors of the Bank (the “Board”) will conduct
a comprehensive performance evaluation and review of Executive for purposes of determining whether to take action regarding non-renewal
of the Agreement, and the results thereof shall be included in the minutes of the Board’s meeting. Reference herein to the
term of this Agreement shall refer to both such initial term and such extended terms.


 


2.           Definitions.
The following words and terms shall have the meanings set forth
below for purposes of this Agreement.


 


(a)          Change
in Control. For purposes of
this Agreement, the term “Change in Control” shall mean the occurrence of any of the following events:


 


(i)          Merger:
The Bank or the Company merges into or consolidates with another entity whereby the Bank or the Company is not the surviving entity,
or the Bank or the Company merges another bank or corporation into the Bank or the Company, and as a result, less than a majority
of the combined voting power of the resulting corporation immediately after the merger or consolidation is held by persons who
were stockholders of the Company or the Bank immediately before the merger or consolidation;


 




    	 		 



     


    

 


(ii)         Acquisition
of Significant Share Ownership: There is
filed, or is 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, as amended, if the schedule discloses that the filing person or
persons acting in concert has or have become the beneficial owner of 25% or more of a class of the Company’s or the Bank’s
voting securities; provided, however, this clause (ii) shall not apply to beneficial ownership of the Company’s or the Bank’s
voting shares held in a fiduciary capacity by an entity of which the Company directly or indirectly beneficially owns 50% or more
of its outstanding voting securities;


 


(iii)        Change
in Board Composition: During any period of
two (2) consecutive years, individuals who constitute the Company’s or the Bank’s Board of Directors at the beginning
of the two-year period cease for any reason to constitute at least a majority of the Company’s or the Bank’s Board
of Directors; 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 stockholders) by a vote of at least two-thirds (2/3) of the directors who were directors
at the beginning of the two-year period or who is appointed to the board as the result of a directive, supervisory agreement or
order issued by the primary federal regulator of the Company or the Bank shall be deemed to have also been a director at the beginning
of such period; or


 


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


 


(b)          Good
Reason. For purposes of this Agreement, “Good
Reason” shall mean a termination by Executive, without Executive’s express written consent, any of the following
occurs:


 


(i)          a
material reduction in Executive’s base compensation as in effect immediately prior to the date of Change in Control or as
may be increased from time to time thereafter;


 


(ii)         a
material reduction in Executive’s authority, duties or responsibilities in effect immediately prior to a Change in Control;


 


(iii)        a
material reduction in the authority, duties, or responsibilities of the officer (as in effect immediately prior to the date of
the Change in Control) to whom Executive is required report;


 


(iv)        a
relocation of Executive’s principal place of employment by more than 25 miles from the Bank’s main office as of the
Effective Date; or


 


(v)         any
material breach of this Agreement by the Bank.


 


Notwithstanding
the foregoing, prior to any termination of employment for Good Reason, Executive must first provide written notice to the Board
within 90 days following the initial existence of the condition, describing the existence of such condition, and the Bank shall
thereafter have the right to remedy the condition within 30 days of the date the Board received the written notice from Executive,
but the Bank may waive its right to cure. If the Bank remedies the condition within such 30-day cure period, then no Good Reason
shall be deemed to exist with respect to such condition. If the Bank does not remedy the condition within such 30-day cure period,
then Executive may deliver a notice of termination for Good Reason at any time within 60 days following the expiration of such
cure period.


 




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(c)          Termination
for Cause. Termination for Cause shall mean
termination because of, in the good faith determination of the Board, Executive’s:


 


(i)          material
act of dishonesty or fraud in performing Executive’s duties on behalf of the Bank;


 


(ii)         willful
misconduct that in the judgment of the Board will likely cause economic damage to the Bank or injury to the business reputation
of the Bank;


 


(iii)        incompetence
(in determining incompetence, the acts or omissions shall be measured against standards generally prevailing in the savings institutions
industry);


 


(iv)        breach
of fiduciary duty involving personal profit;


 


(v)         intentional
failure to perform stated duties under this Agreement after written notice thereof from the Board;


 


(vi)        willful
violation of any law, rule or regulation (other than traffic violations or similar offenses which results only in a fine or other
non-custodial penalty) that reflect adversely on the reputation of the Bank, any felony conviction, any violation of law involving
moral turpitude, or any violation of a final cease-and-desist order; any violation of the policies and procedures of the Bank as
outlined in the Bank’s employee handbook, which would result in termination of the Bank employees, as from time to time amended
and incorporated herein by reference, or


 


(vii)       material
breach by Executive of any provision of this Agreement.


 


3.           Benefits
upon Termination in Connection with a Change in Control. In the event of
Executive’s involuntary termination of employment by the Bank for reasons other than Termination for Cause, or a voluntary
termination of employment by Executive for Good Reason occurring on or after a Change in Control, the Bank shall pay Executive,
or in the event of Executive’s subsequent death, Executive’s beneficiary or estate, as the case may be, as severance
pay, a cash lump sum payment equal to two (2) times the sum of Executive’s: (i) highest annual rate of base salary, payable
by the Bank, as of the date of the Change in Control; and (ii) highest annual cash bonus paid to, or earned by, Executive during
the calendar year of the Change in Control or either of the two (2) calendar years immediately preceding the Change in Control.
Such payment shall be payable within 10 business days following Executive’s date of termination, and will be subject to
applicable withholding taxes.


 




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In
addition, the Bank will continue to provide to Executive with life insurance coverage and non-taxable medical and dental insurance
coverage substantially comparable (and on substantially the same terms and conditions) to the coverage maintained by the Bank for
Executive immediately prior to Executive’s date of termination under the same cost-sharing arrangements that apply for active
employees of the Bank as of Executive’s date of termination. Such continued coverage shall cease upon the earlier of: (i)
the date which is 18 months from Executive’s date of termination; or (ii) the date on which Executive becomes a full-time
employee of another employer, provided Executive is entitled to the benefits that are substantially similar to the health and welfare
benefits provided by the Bank (or its successor). If the Bank cannot provide one or more of the benefits set forth in this paragraph
because Executive is no longer an employee, applicable rules and regulations prohibit such benefits or the payment of such benefits
in the manner contemplated, or it would subject the Bank to penalties, then the Bank shall pay Executive a cash lump sum payment
reasonably estimated to be equal to the value of such benefits or the value of the remaining benefits at the time of such determination.
Such cash payment shall be made in a lump sum within 10 business days after the later of Executive’s date of termination
or the effective date of the rules or regulations prohibiting such benefits or subjecting the Bank to penalties.


 


4.           280G
Cutback. Notwithstanding anything in this Agreement to
the contrary, in no event shall the aggregate payments or benefits to be made or afforded to Executive under this Agreement, either
as a stand-alone benefit or when aggregated with other payments to, or for the benefit of, Executive (collectively referred to
as the “Change in Control Benefits”) that are contingent on a change in control (as defined under Code Section
280G), constitute an “excess parachute payment” under Code Section 280G or any successor thereto, and in order to avoid
such a result, Executive’s benefits payable under this Agreement shall be reduced by the minimum amount necessary so that
the Change in Control Benefits that are payable to Executive are not subject to penalties under Code Sections 280G and 4999.


 


5.           Source
of Payments. All payments provided in this Agreement shall
be timely paid by check or direct deposit from the general funds of the Bank (or any successor to the Bank).


 


6.           Entire
Agreement. This Agreement embodies the entire agreement
between the Bank and Executive with respect to the matters agreed to herein. All prior agreements between the Bank and Executive
with respect to the matters agreed to herein are hereby superseded and shall have no force or effect, 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 Executive
without reference to this Agreement.


 


7.           No
Attachment. 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.


 


8.           Binding
on Successors. The Bank 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, expressly and unconditionally to assume and agree to perform the Bank’s obligations under this Agreement,
in the same manner and to the same extent that the Bank would be required to perform if no such succession or assignment had taken
place.


 




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9.           Modification
and Waiver.


 


(a)          This
Agreement may not be modified oramendedexcept by aninstrumentin writing signed by the parties hereto.


 


(b)          No
term or condition of this Agreementshall bedeemedto havebeenwaived,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 or as to any act other than that specifically waived.


 


10.          Required
Provisions.


 


(a)          The
Board may terminate Executive’s employment at any time, but any termination by the Bank’s Board other than termination
for Cause shall not prejudice Executive’s right to compensation or other benefits under this Agreement. Executive shall have
no right to receive compensation or other benefits for any period after Executive’s termination for Cause.


 


(b)          Notwithstanding
anything herein contained to the contrary, any payments to Executive by the Company, whether pursuant to this Agreement or otherwise,
are subject to and conditioned upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section
1828(k), and the regulations promulgated thereunder in 12 C.F.R. Part 359.


 


(c)          Notwithstanding
anything else in this Agreement to the contrary, Executive’s employment shall not be deemed to have been terminated unless
and until Executive has a Separation from Service within the meaning of Code Section 409A. For purposes of this Agreement, a “Separation
from Service” shall have occurred if the Bank and Executive reasonably anticipate that either no further services will
be performed by Executive after the date of termination (whether as an employee or as an independent contractor) or the level
of further services performed is less than 50 percent of the average level of bona fide services in the 36 months immediately
preceding the termination. For all purposes hereunder, the definition of Separation from Service shall be interpreted consistent
with Treasury Regulation Section 1.409A-l(h)(ii).


 


(d)          Notwithstanding
the foregoing, in the event Executive is a Specified Employee (as defined herein), then, solely, to the extent required to avoid
penalties under Code Section 409A, Executive’s payments shall be delayed until the first day of the seventh month following
Executive’s Separation from Service. A “Specified Employee” shall be interpreted to comply with Code Section
409A and shall mean a key employee within the meaning of Code Section 416(i) (without regard to paragraph 5 thereof), but an individual
shall be a “Specified Employee” only if the Bank or Company is or becomes a publicly traded company.


 




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(e)          Protected
Rights. Executive understands that nothing
contained in this Agreement limits Executive’s ability to file a charge or complaint with the Securities and Exchange Commission
or any other federal, state or local governmental agency or commission (“Government Agencies”) about a possible
securities law violation without approval of the Company or the Bank. Executive further understands that this Agreement does not
limit Executive’s ability to communicate with any Government Agency or otherwise participate in any investigation or proceeding
that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company
or the Bank related to the possible securities law violation. This Agreement does not limit the Executive’s right to receive
any resulting monetary award for information provided to any Government Agency.


 


11.          Governing
Law. This Agreement shall be governed by the laws of the
State of New York but only to the extent not superseded by federal law.


 


12.          Arbitration.
Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by binding arbitration, as an alternative to civil litigation and without any trial
by jury to resolve such claims, conducted by a single arbitrator mutually acceptable to the Bank and Executive, sitting in a location
selected by the Bank within 50 miles from the main office of the Bank, in accordance with the rules of the American Arbitration
Association’s National Rules for the Resolution of Employment Disputes then in effect. Judgment may be entered on the arbitrator’s
award in any court having jurisdiction. The cost of the arbitrator shall be paid by the Bank; all other costs of arbitration shall
be borne by the respective parties.


 


13.          Notice.
For the purposes of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered or mailed by certified
or registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below:


 


	To the Bank	Fairport Savings Bank
	 	45 South Main Street
	 	Fairport, NY 14450
	 	To the Attention of: Chairman of the Board
	 	 
	To Executive:	Most recent address on file with the Bank


 


[Signature
Page to Follow]


 




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IN
WITNESS WHEREOF, this Agreement is entered into as of the date first above written.


 


	 	FAIRPORT SAVINGS BANK
	 	 	 
	 	By:	/s/ Kevin Maroney
	 	Name: 	Kevin Maroney
	 	Title:	President
	 	 	 
	 	EXECUTIVE
	 	 	 
	 	/s/ Michael Giancursio
	 	Michael Giancursio


 








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