Exhibit 10.1
FOX CHASE BANK
CHANGE IN CONTROL AGREEMENT
THIS
AGREEMENT (“Agreement”) is hereby entered into
as of July 6, 2007, by and between FOX CHASE BANK (the
“Bank”), a federally chartered savings bank, Roger S.
Deacon (“Executive”) and FOX CHASE BANCORP, INC.
(the “Company”), a federally-chartered corporation and
the holding company of the Bank, as guarantor.
WHEREAS, the Bank
recognizes the importance of Executive to the Bank’s
operations and wishes to protect his position with the Bank in the
event of a change in control of the Bank or the Bank for the period
provided for in this Agreement; and
WHEREAS, Executive
and the Bank desire to enter into an agreement setting forth the
terms and conditions of payments due to Executive in the event of a
change in control and the related rights and obligations of each of
the parties.
NOW, THEREFORE, in
consideration of the promises and mutual covenants herein
contained, it is hereby agreed as follows:
1.
TERM OF AGREEMENT.
(a)
The term of this Agreement shall be (i) the initial term of this
Agreement, consisting of the period commencing on the date of this
Agreement (the “Effective Date”) and ending on the
second anniversary of the Effective Date, plus (ii) any and all
extensions of the initial term made pursuant to this Section
1.
(b)
On each anniversary date thereafter, the Board of Directors of the
Bank (the “Board of Directors”) may extend the term of
this Agreement for an additional one (1) year period beyond the
then effective expiration date: provided that Executive shall not
have given at least sixty (60) days’ written notice of his
desire that the term not be extended.
(c)
Notwithstanding anything in this Section to the contrary, this
Agreement shall terminate if Executive or the Bank terminates
Executive’s employment prior to a Change in
Control.
2.
TERMINATION OF EMPLOYMENT AFTER A CHANGE IN CONTROL.
(a)
Upon the occurrence of a Change in Control followed at any time
during the term of this Agreement by (i) the termination of
Executive’s employment by the Bank, other than for Cause (as
defined in Section 3 below), or (ii) the Executive’s
termination of employment for “Good Reason” (as defined
in Section 3 below), Executive shall be entitled to receive the
following:
(A)
continuation of Executive’s base salary for a period of
twenty-four (24) months.
(B)
continuation of health (including medical and dental) and life
insurance coverage for a period of twenty-four (24) months upon
terms no less favorable than the terms upon which such coverage was
provided to Executive prior to Executive’s termination of
employment. In the event that the Bank is unable to provide
such coverage by reason of Executive no longer being an employee,
the Bank shall provide Executive with comparable coverage on an
individual policy basis.
(C)
For purposes of this Agreement, “base salary” shall
mean:
(i)
for salaried employees, the employee’s annual base salary
shall be defined as the current rate in effect on his or her
termination date plus the highest cash bonus or similar cash
incentive compensation paid to or accrued on behalf of the
Executive with respect to the two (2) taxable years preceding his
termination of employment or, if greater, the rate in effect on the
date immediately preceding the Change in Control.
(ii)
for employees whose compensation is determined in whole or in part
on the basis of commission income, the employee’s base salary
at termination (or, if greater, the base salary on date immediately
preceding the effective date of the Change in Control), if any,
plus the commissions earned by the employee in the twelve (12) full
calendar months preceding his or her termination date (or, if
greater, the commissions earned in the twelve (12) full calendar
months immediately preceding the effective date of the Change in
Control).
(iii)
for hourly employees, the employee’s total hourly wages for
the twelve (12) full calendar months preceding his or her
termination date or, if greater, the twelve (12) full calendar
months preceding the effective date of the Change in Control.
3.
DEFINITIONS; SPECIAL LIMITATIONS.
(a)
For purposes of this Agreement, the following definitions shall
apply:
(A)
“Change in Control” means the occurrence of one 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 (other than as required by the
Order to Cease and Desist dated June 6, 2005 entered into by the
Bank with the Office of Thrift Supervision) 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; or
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
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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;
or
iv.
Sale of Assets : The Bank or the Company sells to a
third party all or substantially all of its assets; or
v.
Proxy Statement Distribution : An individual or
company (other than current management of the Company) solicits
proxies from stockholders of the Company seeking stockholder
approval of a plan of reorganization, merger or consolidation of
the Company or Bank with one or more corporations as a result of
which the outstanding shares of the class of securities then
subject to such plan or transaction are exchanged for or converted
into cash or property or securities not issued by the Bank or the
Company; or
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)
“Good Reason” means, unless Executive has consented in
writing thereto, the occurrence following a Change in Control, of
any of the following:
i.
a material reduction in title, authority or responsibilities;
ii.
a reduction of the Executive’s base salary in effect
immediately prior to the Change in Control;
iii.
the relocation of the Executive’s office to a location more
than 30 miles from its location immediately prior to the Change in
Control;
iv.
the taking of any action by the Bank or any of its affiliates or
successors that would materially adversely affect Executive’s
overall compensation and benefits package, unless such changes to
the compensation and benefits package are made on a
non-discriminatory basis to all employees; or
v.
failure of any successor institution to assume the obligations
under this Agreement in accordance with Section 16 of this
Agreement
(b)
Executive shall not have the right to receive termination benefits
pursuant to Section 3 hereof upon termination for Cause. The
term “Cause” shall mean termination of
Executive’s employment by the Bank 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), final cease and desist order, or
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any material breach of
any provision of this Agreement. Executive shall not have the
right to receive compensation or other benefits for any period
after termination for Cause.
(c)
Notwithstanding anything in this Agreement to the contrary, in no
event shall the aggregate payments or benefits to be made or
afforded to Executive under said paragraphs or otherwise (the
“Termination Benefits”) constitute an “excess
parachute payment” under Section 280G of the Internal Revenue
Code of 1986, as amended, or any successor thereto, and 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 three
(3) times Executive’s “base amount,” as
determined in accordance with said Section 280G. The
allocation of the reduction required hereby among the Termination
Benefits provided by this Section 3 shall be determined by
Executive.
(d)
Notwithstanding anything in this Agreement to the contrary, if the
Bank in good faith determines that amounts that, as of the
effective date o
