EXHIBIT 10.4


 


EMPLOYMENT AGREEMENT


 


THIS  AGREEMENT (“Agreement”),
as amended and restated, is made this1st day of October, 2008 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 Jerry D. Holbrook
(“Executive”).


 


WHEREAS,
the parties originally entered into this Agreement on October 1, 2006; and


 


WHEREAS,
the Company and Bank desire to continue to assure both entities of the services
of Executive as Executive Vice President and Chief Operations Officer for the
period provided for in this Agreement; 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.


 


WHEREAS, Executive
and the Boards of Directors of the Company and the Bank desire to enter into an
amended and restated employment agreement setting forth the terms and
conditions of the continuing employment of Executive and the related rights and
obligations of each of the parties and to bring the Agreement into 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.


 


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 Chief Operations 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 Chief Operations 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 October 1, 2008 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
$216,008 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.


 


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(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 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 Chief Operations 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), (D), (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.


 


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(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 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.


 


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(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.


 


(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 


 


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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:


 


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 


 


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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.


 


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 


 


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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 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 


 


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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 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 23 day of October, 2008.


 


 


	
  ATTEST:

  	
   

  	
  FOX CHASE BANCORP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Michelle Davenport

  	
   

  	
  By:

  	
  /s/ Thomas M. Petro

  
	
   

  	
   

  	
   

  	
  For the Entire Board of Directors

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
  FOX CHASE BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Michelle Davenport

  	
   

  	
  By:

  	
  /s/ Thomas M. Petro

  
	
   

  	
   

  	
   

  	
  For the Entire Board of Directors

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Mary Beth Osbeck

  	
   

  	
  /s/ Jerry D. Holbrook

  
	
   

  	
   

  	
  Jerry D. Holbrook

  



 


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