**Exhibit10.1**

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**EMPLOYMENT AGREEMENT**

 

**THIS****AGREEMENT** (“Agreement”), is made this 1st day of August, 2009 by and between FoxChase Bancorp, Inc. (the “Company”), a corporationorganized under the laws of the United States of America, with its principal offices at 4390 DavisvilleRoad, Hatboro, Pennsylvania 19040, Fox Chase Bank(the “Bank”), a federally charteredstock savings bank organized under the laws of the United States ofAmerica, 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 Bankdesire to enter into an agreement setting forth the terms and conditions of theemployment of Executive and the related rights and obligations of each of theparties.; and

 

**WHEREAS**, Executive and the Board of Directors of both the Company and Bankdesire to enter into an agreement setting forth the terms and conditions of theemployment of Executive and the related rights and obligations of each of theparties for the period provided for in thisAgreement in compliance with Section 409A of the Internal Revenue Codeof 1986, as amended (the “Code”) and the regulations and guidance issued withrespect 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.***

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

 

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

 

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

 

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

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***2.             Term of Employment.***

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

 

(b)           TheCompensation Committees of the Boards of Directors of the Company and Bank willreview the Agreement and Executive’s performance annually for purposes ofdetermining whether to extend the Agreement for an additional year.  The Chairman of the Boards of Directors willgive notice to the Executive as soon as possible if the Boards have decided notto extend the Agreement.

 

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

 

***3.             Compensation and Benefits.***

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(a)           The Bank or theCompany (as they shall determine), shall pay Executive as compensation a salaryof $175,000.00 per year (“Base Salary”). In addition to the Base Salary provided in this Section 3(a), the Bankshall also provide Executive with all such other benefits as are provided uniformlyto permanent full-time employees of the Bank. If Executive’s Base Salary is increased, such increased Base Salaryshall then constitute the Base Salary for all purposes of this Agreement.  For purposes of Section 4(b) of thisAgreement, Base Salary shall be deemed to include the highest cash bonus orsimilar cash incentive compensation paid to or accrued on behalf of theExecutive with respect to the three (3) taxable years preceding his terminationof employment.  For purposes of Section5(c) of this Agreement, Base Salary shall be defined as the amount reported inBox 1 of the Executive’s Form W-2, plus amounts deferred under the Bank’s401(k) Plan and/or Section 125 Plan (if any), or deferred at the Executive’selection or on behalf of the Executive to any non-qualified deferredcompensation plan of the Bank or the Company.

 

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

 

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

 

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

 

(d)           Executive shalltake vacation at a time mutually agreed uponby the Company, Bank and Executive. Executive shall receive his Base Salary and other benefits duringperiods of vacation. Executive shall also be entitled to paid legal holidays inaccordance with the policies of the Bank.

 

***4.             Payments to Executive Upon an Event of Termination.***

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(a)           Upon theoccurrence of an Event of Termination (as herein defined) during Executive’sterm of employment under this Agreement, the provisions of this Section 4 shallapply.  Unless Executive otherwiseagrees, as used in this Agreement, an “Event of Termination” shall mean andinclude any one or more of the following: (i) the termination by the Company or Bank of Executive’s full-timeemployment for any reason other than a termination governed by Section 7 ofthis 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 LendingOfficer, (C) material change in Executive’s functions, duties, orresponsibilities with the Bank, the Company or its subsidiaries, which changewould cause Executive’s position(s) to become of lesser responsibility,importance, or scope from the position and attributes thereof described inSection 1 of this Agreement, (D) material reduction in the benefits andperquisites provided to Executive from those being provided as of the effectivedate of this Agreement, except to the extent such coverage may be changed inits application to all Bank employees, (E) liquidation or dissolution of theCompany or the Bank, or (F) breach of this Agreement by the Bank orCompany.  Upon the occurrence of anyevent described in clauses (A), (B), (C), (E) or (F), above, Executive shallhave the right to terminate his employment under this Agreement by resignationupon 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 electto terminate his employment.

 

(b)           Upon the occurrence of an Event of Termination, on theDate of Termination, as defined in Section 8, the Company and Bank (as theyshall determine) shall be obligated to pay Executive, or, in the event of hissubsequent death, his beneficiary or beneficiaries, or his estate, as the casemay be the value of the Executive’s base salary for the remaining term of theAgreement plus the value of all benefits he would have received during theremaining term of the Agreement under any retirement programs (whethertax-qualified or non-qualified) in which Executive participated prior to histermination (with the amount of the benefits determined by reference to thebenefits received by the Executive or accrued on his behalf under such programsduring 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 ofhis termination of employment.  Inaddition, Executive and his dependents will continue to participate in any benefitplans of the Company or the Bank that provide health (including medical anddental), or life insurance, or similar coverage upon terms no less favorablethan the most favorable terms provided to senior executives of the Company andthe Bank during the remaining term of the Agreement.  In the event that the Company and the Bankare unable to provide such coverage by reason of Executive no longer being anemployee, the Company and the Bank shall provide Executive with comparablecoverage on an individual policy basis. In the event the Bank or the Company is not in compliance with itsminimum capital requirements or if such payments pursuant to this subsection(b) would cause the Company or Bank’s capital to be reduced below its minimumregulatory capital requirements, such payments shall be deferred until suchtime as either the Company or the Bank or successor thereto is in capitalcompliance.  No payments under thisSection 4(b) shall be reduced in the event the Executive obtains otheremployment following termination of employment.

 

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

 

(d)           During theRestricted Period, Executive shall not, without express prior written consentof the Bank or the Company, solicit or assist any other person in solicitingfor the account of any Competitor, any customer or client of the Bank or any ofits subsidiaries.

 

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

 

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

 

(g)           The parties tothis Agreement intend for the payments to satisfy the short-term deferralexception under Section 409A of the Code or, in the case of health and welfarebenefits, not constitute deferred compensation (since such amounts are nottaxable to Executive).  However,notwithstanding anything to the contrary in this Agreement, to the extentpayments do not meet the short-term deferral exception of Section 409A of theCode 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 firstday 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 ofExecutive’s annualized compensation based upon the annual rate of pay forservices provided to the Company for the calendar year preceding the year inwhich Executive has an Event of Termination, or (B) the maximum amount that maybe 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 ofTermination.  The payment of the“permitted amount” shall be made within sixty (60) days of the occurrence ofthe Event of Termination.  Any payment inexcess of the permitted amount shall be made to Executive on the first day ofthe seventh month following the Event of Termination.  “Specified Employee” shall be interpreted tocomply with Section 409A of the Code and shall mean a key employee within themeaning 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 apublicly-traded institution or the subsidiary of a publicly-traded holdingcompany.

 

***5.             Change in Control.***

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

 

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

 

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

 

iii.                                    Acquisition of Significant Share Ownership*:*  There is filed, or requiredto be filed, a report on Schedule 13D or another form or schedule (other thanSchedule 13G) required under Sections 13(d) or 14(d) of the Securities ExchangeAct of 1934, if the schedule discloses that the filing person or persons actingin concert has or have become the beneficial owner(s) of 20% or more of a classof 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 heldin a fiduciary capacity by an entity of which the Bank or the Company directlyor indirectly beneficially owns 50% or more of its outstanding votingsecurities.

 

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

 

v.                                      Proxy StatementDistribution:  Anindividual or company (other than current management of the Company) solicitsproxies from stockholders of the Company seeking stockholder approval of a planof reorganization, merger or consolidation of the Company or Bank with one ormore corporations as a result of which the outstanding shares of the class ofsecurities then subject to such plan or transaction are exchanged for orconverted into cash or property or securities not issued by the Bank or theCompany.

 

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

 

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

 

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

 

(c)           Upon theoccurrence of a Change in Control followed by Executive’s termination ofemployment, as provided for in Section (b) of this Section 5, the Company orBank (as they shall determine) shall pay Executive, or in the event of hissubsequent death, his beneficiary or beneficiaries or his estate, as the casemay be, as severance pay, a sum equal to the greater of:  (i) the payments and benefits due forthe remaining term of the Agreement or (ii) three (3) times Executive’saverage Base Salary for the three (3) taxable years preceding the Change inControl or (iii) three (3) times Executive’s Base Salary for the mostrecent taxable year or portion thereof preceding the Change in Control.  The benefit shall be payable in one lump sumwithin 10 days of Executive’s last day of employment.

 

(d)           Upon theoccurrence of a Change in Control and Executive’s termination of employment inconnection therewith, the Bank and Company (as they shall determine) will causeto be continued life, medical and dental coverage substantially identical tothe coverage maintained by the Bank forExecutive and any of his dependents covered under such plans immediatelyprior to the Change in Control. Such coverage and payments shall cease upon theexpiration of thirty-six (36) full calendarmonths following the Date of Termination. In the eventExecutive’sparticipation in any such plan or program is barred, the Bank and/orCompany (as they shall determine) shall arrange to provide Executive and his dependents with benefits substantiallysimilar to those of which Executive and his dependents would otherwise havebeen entitled to receive under such plans and programs from which theircontinued participation is barred or at theelection of Executive, provide their economic equivalent.

 

(e)           The parties tothis Agreement intend for the payments to satisfy the short-term deferralexception under Section 409A of the Code or, in the case of health and welfarebenefits, not constitute deferred compensation (since such amounts are nottaxable to Executive).  However,notwithstanding anything to the contrary in this Agreement, to the extentpayments do 

 

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not meet the short-term deferral exception ofSection 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 Agreementprior to the first day of the seventh month following the Event of Terminationin 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 ofExecutive’s annualized compensation based upon the annual rate of pay forservices provided to the Company for the calendar year preceding the year inwhich Executive has an Event of Termination, or (B) the maximum amount that maybe 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 ofTermination.  The payment of the“permitted amount” shall be made within sixty (60) days of the occurrence ofthe Event of Termination.  Any payment inexcess of the permitted amount shall be made to Executive on the first day ofthe seventh month following the Event of Termination.  “Specified Employee” shall be interpreted tocomply with Section 409A of the Code and shall mean a key employee within themeaning 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-tradedinstitution or the subsidiary of a publicly-traded holding company.

 

***6.            ******Change in Control RelatedProvisions.***

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Notwithstanding theprovisions of Section 5, in no event shall the aggregate payments or benefitsto be made or afforded to Executive under said sections (the “TerminationBenefits”) constitute an “excess parachute payment” under Section 280G of theInternal Revenue Code of 1986 or any successor thereto, and in order to avoidsuch a result, Termination Benefits will be reduced, if necessary, to an amount(the “Non-Triggering Amount”), thevalue of which is one dollar ($1.00) less than an amount equal to the maximumamount allowable as a deduction by the Bank or Company, as determined inaccordance with said Section 280G.  Theallocation of the reduction required hereby among the Termination Benefitsprovided by Section 5 shall be determined by Executive.

 

***7.             Termination for Cause.***

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

 

***8.             Notice.***

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(a)           Any purportedtermination by the Bank or Company or by Executive shall be communicated byNotice of Termination to the other party hereto. For purposes of thisAgreement, a “Notice of Termination” shall mean a written notice which shallindicate the 

 

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specific termination provision in thisAgreement relied upon and shall set forth in reasonable detail the facts andcircumstances claimed to provide a basis for termination of Executive’semployment under the provision so indicated.

 

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

 

(c)           If, withinthirty (30) days after any Notice of Termination (except for termination forCause) is given, the party receiving such Notice of Termination notifies theother party that a dispute exists concerning the termination, except upon theoccurrence of a Change in Control and voluntary termination by Executive inwhich case the Date of Termination shall be the date specified in the Notice, theDate of Termination shall be the date on which the dispute is finallydetermined, either by mutual written agreement of the parties, by a bindingarbitration award or by a final judgment, order or decree of a court ofcompetent jurisdiction (the time for appeal therefrom having expired and noappeal having been perfected), and provided further that the Date ofTermination shall be extended by a notice of dispute only if such notice isgiven in good faith and the party giving such notice pursues the resolution ofsuch dispute with reasonable diligence. Notwithstanding the pendency of anysuch dispute, the Bank and Company (as they shall determine) will continue topay Executive his full compensation in effect when the notice giving rise tothe dispute was given (including, but not limited to, Base Salary) and continuehim as a participant in all compensation, benefit and insurance plans in whichhe was participating when the notice of dispute was given, until the dispute isfinally resolved in accordance with this Agreement. Amounts paid pursuant tothis provision shall be in addition to all otheramounts due under this Agreement and shall not be offset against or reduce anyother amounts due under this Agreement.

 

***9.            ******Post-TerminationObligations.***

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

 

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***10.          Loyalty and Confidentiality.***

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(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 ofdirectors of, and hold any other offices or positions in, companies ororganizations which will not present any conflict of interest with the Companyand the Bank or any of their subsidiaries or affiliates, unfavorably affect theperformance of Executive’s duties pursuant to this Agreement, or violate anyapplicable statute or regulation and (ii) shall not engage in any business oractivity contrary to the business affairs or interests of the Company and theBank.

 

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

 

(c)           Executive agrees to maintain the confidentiality of anyand all information concerning the operation or financial status of the Companyand the Bank; the names or addresses of any of its borrowers, depositors andother customers; any information concerning or obtained from such customers;and any other information concerning the Company and the Bank to which he maybe exposed during the course of his employment. The Executive further agrees that, unless required by law orspecifically permitted by the Board in writing, he will not disclose to anyperson or entity, either during or subsequent to his employment, any of theabove-mentioned information which is not generally known to the public, norshall he employ such information in any way other than for the benefit of theCompany and the Bank.

 

***11.          Death and Disability.***

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(a)           *Death. *Notwithstandingany other provision of this Agreement to the contrary, in the event ofExecutive’s death during the term of this Agreement, the Bank or Company *(*as**they shall determine) shallimmediately pay his estate any salary and bonus accrued but unpaid as of thedate 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 benefitsexisting on the date of his death and shall pay Executive’s designatedbeneficiary all compensation that would otherwise be payable to him pursuant toSection 3(a) of this Agreement.  Thisprovision shall not negate any rights Executive or his beneficiaries may haveto death benefits under any employee benefit plan of the Company or the Bank.

 

(b)           *Disability.*

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(i)                                     The Bank orCompany or Executive may terminate Executive’s employment after havingestablished Executive’s Disability.  Forpurposes of this Agreement, “Disability” means a physical or mental infirmitythat impairs Executive’s ability to substantially perform his duties under thisAgreement and that results in Executive becoming eligible for long-termdisability 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 abilityto substantially perform his duties under this Agreement for a period of onehundred eighty (180) consecutive days). The Boards of Directors shall determine whether or not Executive is andcontinues to be permanently disabled for purposes of this Agreement in goodfaith, based upon competent medical advice and other factors that theyreasonably believe to be relevant.  As acondition to any benefits, the Boards of Directors may require Executive tosubmit to such physical or mental evaluations and tests as it deems reasonablyappropriate.

 

(ii)                                  In the event ofDisability, Executive’s obligation to perform services under this Agreementwill terminate.  In the event of suchtermination, Executive shall continue to receive two-thirds (66.667%) of hismonthly 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 Companyor the Bank in the same capacity as he was prior to his termination forDisability; (B) Executive’s death; or (C) Executive’s attainment ofage 65.  Such payments shall be reducedby the amount of any short- or long-term disability benefits payable toExecutive under any disability program sponsored by the Company or theBank.  In addition, during any period ofExecutive’s Disability, Executive and his dependents shall, to the greatestextent possible, continue to be covered under all benefit plans (including,without limitation, retirement plans and medical, dental and life insuranceplans) of the Company or the Bank in which Executive participated prior to theoccurrence of Executive’s Disability, on the same terms as if Executive wereactively employed by the Bank or Company.

 

***12.         ******Source of Payments.***

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

 

***13.         ******Effect of Prior Agreements andExisting Benefit Plans.***

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This Agreement contains theentire understanding between the parties hereto and supersedes any prioremployment agreement between the Bank, Company or any predecessor of the Bank,Company and Executive, except that this Agreement shall not affect or operateto reduce any benefit or compensation inuring to Executive of a kind elsewhereprovided.  No provision of this Agreementshall be interpreted to mean that Executive is subject to receiving fewerbenefits than those available to him without reference to this Agreement.

 

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***14.         ******No Attachment.***

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(a)           Except as required by law, no right to receive paymentsunder this Agreement shall be subject to anticipation, commutation, alienation, sale, assignment, encumbrance, charge,pledge or hypothecation, or to execution, attachment, levy or similar processor 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 andtheir respective successors and assigns.

 

***15.          Modification and Waiver.***

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(a)           This Agreementmay not be modified or amended except by an instrument in writing signed by theparties hereto.

 

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

 

***16.      ******Severability.***

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

 

***17.          Headings for Reference Only.***

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The headings of sections andSections herein are included solely forconvenience of reference and shall not control the meaning orinterpretation of any of the provisions of this Agreement.

 

***18.          Governing Law.***

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

 

***19.          Arbitration.***

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

 

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accordance with the rules of the AmericanArbitration 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 specificperformance of his right to be paid until the Date of Termination during thependency of any dispute or controversy arising under or in connection with thisAgreement.

 

In the event any dispute orcontroversy arising under or in connection with Executive’s termination isresolved 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 compensationand benefits due Executive under this Agreement.

 

***20.      ******Payment of Legal Fees.***

*** ***

All reasonable legal feespaid or incurred by Executive pursuant to any dispute or question ofinterpretation relating to this Agreement shall be paid or reimbursed by theBank or Company (as they shall determine), only if Executive is successfulpursuant to a legal judgment, arbitration or settlement.

 

***21.          Indemnification.***

*** ***

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

 

***22.          Successor to the Company.***

*** ***

The Bank and Company shallrequire any successor or assignee, whether direct or indirect, by purchase,merger, consolidation or otherwise, to all or substantially all the business orassets of the Bank or the Company, expressly and unconditionally to assume andagree to perform the Bank and Company’s obligations under this Agreement, inthe same manner and to the same extent that the Bank and Company would berequired to perform if no such succession or assignment had taken place.

 

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***23.          Required Provisions.***

 

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

 

(a)           The Boards of Directors may terminate Executive’semployment at any time, but any termination by the Bank or the Company, otherthan termination for Cause, shall not prejudice Executive’s right tocompensation or other benefits under this Agreement.  Executive shall not have the right to receivecompensation or other benefits for any period after termination for Cause asdefined in this Agreement.

 

(b)           If Executive is suspended from office and/or temporarilyprohibited from participating in the conduct of the affairs of the Bank by anotice served under Section 8(e)(3) or 8(g)(1) of the Federal Deposit InsuranceAct, 12 U.S.C. §1818(e)(3) or (g)(1); the Bank’s obligations under thiscontract shall be suspended as of the date of service, unless stayed byappropriate proceedings.  If the chargesin the notice are dismissed, the Bank may in its discretion:  (i) pay Executive all or part of thecompensation 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 fromparticipating in the conduct of the Bank’s affairs by an order issued underSection 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 shallterminate as of the effective date of the order, but vested rights of thecontracting parties shall not be affected.

 

(d)           If the Bank is in default as defined in Section 3(x)(1) ofthe Federal Deposit Insurance Act, 12 U.S.C. §1813(x)(1) all obligations of theBank under this contract shall terminate as of the date of default, but thisSection 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 necessaryfor the continued operation of the Bank: (i) by the Director of the OTS (or his designee) at the time the FDICenters into an agreement to provide assistance to or on behalf of the Bankunder the authority contained in Section 13(c) of the Federal Deposit InsuranceAct, 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 toresolve problems related to the operations of the Bank or when the Bank isdetermined by the Director to be in an unsafe or unsound condition.  Any rights of the parties that have alreadyvested, 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 12U.S.C. §1828(k) and FDIC regulation 12 C.F.R. Part 359, Golden Parachute andIndemnification Payments.

 

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INWITNESS WHEREOF, Fox Chase Bancorp, Inc. andFox Chase Bank have caused this Agreement to be executed andits seal to be affixed hereunto by theirduly authorized officer and Executive hassigned 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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