Exhibit 10.16
NOTE: Each director of the Registrant has entered into the following form of
indemnification
agreement with the
Registrant
effective as of
February
13,
2007.
FORM OF
DIRECTOR INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, effective as of February 13,
2007, by and
between Fidelity Bancorp, Inc., a Pennsylvania corporation (the
"Company"), and
[Name of Director] (the "Indemnitee").
WHEREAS, it is
essential to the Company to retain and attract as
directors and officers the most capable persons available;
WHEREAS, Indemnitee is
a director and/or officer of the Company and/or
is serving at the
request of the Company
as a director and/or
officer of its
wholly owned subsidiary, Fidelity Bank, PaSB (the "Bank");
WHEREAS, the Company and the Indemnitee recognize the increased
risk of
litigation and other
claims being asserted
against directors and officers of
financial institutions and their holding companies in today's
environment;
WHEREAS, the
Company's Articles of Incorporation provide that the
Company shall indemnify any person who is or was a director,
officer, employee
or agent of the Company or who is or was serving at the
Company's request as a
director, officer, employee or agent of another corporation,
partnership, joint
venture, trust or
other enterprise
against expenses actually and reasonably
incurred by him in
connection with the
defense or settlement
of an action or
suit;
WHEREAS, the Company's
Articles of Incorporation further provide that
the indemnification and advancement expenses provided in Article 9
thereof shall
not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any insurance or other
agreement, vote of
stockholders or directors or otherwise;
WHEREAS, in recognition of Indemnitee's need for substantial
protection
against personal liability in order to assure Indemnitee's
continued service
to
the Company
and/or the Bank, in an effective manner and in part to provide
Indemnitee with
specific contractual assurance that the indemnification
protection provided by
the Company's Articles
of Incorporation and Bylaws, the
Pennsylvania Business
Corporation Law, and Federal laws and regulations will be
available to Indemnitee (regardless of, among other things,
any change in the
Pennsylvania Business
Corporation
Law, Federal laws and regulations or any
amendment to the
Company's Articles of
Incorporation
or Bylaws limiting the
indemnification rights
of
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Indemnitee or any change in the composition of the Company's or the
Bank's Board
of Directors,
or any acquisition transaction relating to the Bank or the
Company), and in order
to induce Indemnitee
to continue to provide services to
the Company and to the Bank as an officer and/or director
thereof, the Company
wishes to provide in this Agreement for Indemnification of and the
advancing of
expenses to Indemnitee
to the fullest
extent (whether partial or complete)
permitted by law
and as set
forth in this Agreement, and, to the extent
insurance is
maintained, for the
continued coverage of
Indemnitee
under the
Company's and Bank's directors' and officers' liability insurance
policies;
NOW, THEREFORE,
in consideration of the promises and commitments
between the parties and of Indemnitee continuing to serve the Company
directly,
or at its request,
with another
enterprise, and
intending to be legally bound
hereby, the parties hereto agree as follows:
1.
Certain Definitions.
(a) Change in Control:
shall mean an event of
a nature that
(I) would be required
to be reported in response to Item 5.01 of the
current
report on Form 8-K, as in effect on the date hereof, pursuant to Section 13 or
15(d) of the
Securities Exchange
Act of 1934 (the
"Exchange Act"); or (II)
results in a direct or
indirect acquisition
of control of the
Company or the
Bank, within the
meaning of the Bank Holding Company Act of 1956 or the
Change
in Bank Control Act, and the Rules and Regulations promulgated
thereunder, as in
effect on the date hereof; or (III) without limitation, such a
Change in Control
shall be deemed to have occurred at such time as (a) any
"person" (as the
term
is used in Section
13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as
defined in Rule 13d-3
promulgated
under the Exchange
Act), directly or indirectly, of securities or other ownership
interests of the
Bank, or the Company,
representing
twenty-five
percent (25%) or more of the
combined voting power of the outstanding securities of the Bank, or
the Company,
except for any
securities purchased
by an employee stock
ownership plan and
trust sponsored by the Bank or the Company or (b) individuals who
constitute the
Board of Directors of the Bank, or of the Company, on the date hereof
("Incumbent Board")
cease for any reason
to constitute at least
a majority of
the Board thereof;
provided that any person becoming a director subsequent to
the date hereof whose election was approved by a vote of at least
three-quarters
of the directors
comprising the Board of the Bank, or the Company, on the date
hereof, or whose nomination for election by the Bank's or Company's
shareholders
or stockholders was approved by the same nominating committee serving under an
Incumbent Board, shall be, for purposes of this clause (b),
considered as though
he were a member
of the Incumbent Board or (c) the occurrence of a plan of
reorganization,
merger, consolidation,
sale of all or
substantially
all the
assets of the Bank or the Company, or a similar transaction in
which the Bank or
the Company is not the resulting entity.
(b) Expenses: includes
attorneys'
fees and all other
costs,
travel expenses, fees
of experts, transcript
costs, filing fees, witness fees,
telephone charges, postage, delivery, service fees, expenses
and obligations of
any nature
whatsoever
paid or incurred in connection
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with investigating, defending, being a witness in or participating
in (including
an appeal), or
preparing to defend, be a witness in or participate in any
claim
relating to any Indemnifiable Event.
(c) Indemnifiable
Event: any event or occurrence that
takes
place either prior to or after execution of this Agreement
related to the
fact
that Indemnitee
is or was a director,
officer, employee, agent, associate,
fiduciary, manager,
member, partner,
promoter, trustee of or holding a similar
position with the Bank or the Company, or any affiliate thereof, or is or was
serving at the request of the Company as a director, officer,
employee, trustee,
agent, associate,
fiduciary, manager,
member, partner, promoter, trustee of or
holding a similar position with another corporation, partnership,
joint venture,
employee benefit plan, trust or other enterprise, or by reason of anything done
or not done by
Indemnitee
in any such
capacity. Without limitation of any
indemnification
provided
hereunder, an
Indemnitee
serving
(i) another
corporation,
partnership, joint
venture or trust of which twenty percent (20%)
or more of the voting power or residual economic interest is held, directly or
indirectly, by the Company or the Bank, or (ii) any employee
benefit plan of the
Company or the Bank or any entity referred to in clause (i), in any capacity
shall be deemed to be doing so at the request of the Company or the
Bank.
(d) Liability:
any obligation incurred with respect to a
proceeding to pay a judgment, settlement, penalty, or fine including an
excise
tax assessed with respect to an employee benefit plan.
(e)
Potential Change in Control: shall be deemed to have
occurred if:
(i) the Bank or the Company enters into an agreement or
arrangement, the
consummation
of which would
result in the
occurrence
of a
Change in Control;
(ii) any person (including the Bank or the Company) publicly
announces an
intention to take or to consider taking actions which if
consummated would
constitute a Change in
Control; or (iii) the
Board adopts a
resolution to the
effect that,
for purposes of this Agreement, a Potential
Change in Control has occurred.
(f) Proceeding: any
threatened, pending or
completed action,
suit, proceeding or
alternate dispute
resolutions mechanism,
or any inquiry,
hearing or
investigation, whether
conducted by the Bank, the Company or any
other party, the Indemnitee in good faith believes might lead to
the institution
of any such action, suit, proceeding or alternate resolution
mechanism, whether
civil, criminal,
administrative,
or investigative and whether formal or
informal.
(g) Reviewing Party: any appropriate person or body consisting
of a member or members
of the Board of
Directors of the
Company or any
other
person or body
appointed by the Board
of Directors of the Company who is not a
party to the particular claim for which Indemnitee is seeking indemnification,
or Independent Legal Counsel.
(h) Independent Legal Counsel: Independent Legal Counsel shall
refer to an attorney,
selected in accordance
with the provisions of
Section 3
hereof, who shall
not have
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otherwise performed
services for the Bank, the Company or Indemnitee within the
last five years (other than in connection with seeking indemnification under
this Agreement).
Independent
Legal Counsel shall
not be any person who, under
the applicable standards of professional conduct then prevailing,
would have a
conflict of interest in representing any of the Bank, the Company or
Indemnitee
in an action to determine Indemnitee's rights under this Agreement,
nor shall
Independent Legal
Counsel be any person who has been sanctioned or censured for
ethical violations of applicable standards of professional
conduct.
2.
Basic Indemnification Arrangement.
(a) In the event
Indemnitee was, is or
becomes at any time a
party to or witness or other participant in, or is threatened to be
made a party
to or witness or other
participant in, a Proceeding by reason of (or arising in
part out of) an Indemnifiable Event, the Company shall indemnify
Indemnitee to
the fullest extent now
or hereafter
authorized or permitted by law (including
indemnification to the
fullest extent the Company may provide for by agreement)
as soon as practicable
but in any event no later than thirty days after written
demand is presented to the Company, against any and all Liabilities and
Expenses, (including all interest, assessments and other charges
paid or payable
in connection
with or in respect of
such Liabilities
and Expenses) of such
Proceeding and any
federal, state, local or foreign taxes imposed on the
Indemnitee as a result
of the actual or deemed receipt of any payments under
this Agreement
(including
the creation of the
trust referred to in
Section 4
hereof). If so
requested by Indemnitee, the Company shall advance (within
five
business days of such
request) any and all Expenses to Indemnitee (an "Expense
Advance").
Notwithstanding anything in this Agreement to the contrary, prior
to
a Change in
Control, Indemnitee shall not be entitled to
