UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 21, 2004
FIDELITY BANKSHARES, INC.
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(Exact Name of Registrant as Specified in Charter)
Delaware 000-29040 65-0717085
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(State or Other Jurisdiction) (Commission File No.) (I.R.S. Employer
of Incorporation) Identification No.)
205 Datura Street, West Palm Beach, Florida 33401
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (561) 803-9900
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Not Applicable
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(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
On December 21, 2004, the Board of Directors of Fidelity Federal Bank & Trust
approved the adoption of the Fidelity Federal Bank & Trust 2005 Long-Term
Deferred Compensation Plan effective as of January 1, 2005 ("2005 Long-Term
Deferred Compensation Plan"). The Fidelity Federal Savings Bank of Florida
Long-Term Deferred Compensation Plan was frozen as to new contributions and/or
deferrals earned following December 31, 2004. Accrued benefits under the
Fidelity Federal Savings Bank of Florida Long-Term Deferred Compensation Plan
will continue to be governed by the terms of the predecessor plan. All future
benefit accruals will be governed by the 2005 Long-Term Deferred Compensation
Plan, which plan was drafted to comply with the requirements of the new Internal
Revenue Code Section 409A created by the American Jobs Creation Act, which was
signed into law on October 22, 2004. New Section 409A changes the income tax
treatment of nonqualified deferred compensation plans and imposes a number of
new requirements that such plans must adopt, both in form and in operation, in
order to defer income for years beginning after December 31, 2004.
A brief description of certain aspects of the 2005 Long-Term Deferred
Compensation Plan follows.
(a) Eligibility. Certain officers selected by the Board of Directors may
participate in the plan.
(b) Amount of Contributions. Each plan year a participant may elect, prior to
the beginning of the plan year, to defer any portion of his compensation
otherwise payable to the participant during the plan year, with a minimum
deferral amount of not less than $2,400 during the deferral period.
Participants who enter the plan at mid year must defer a minimum of $200
times the number of months remaining in the deferral period. Participants'
accounts shall be credited monthly with interest. Fidelity Federal Bank &
Trust may also make discretionary contributions to participants' accounts
each plan year.
Fidelity Federal Bank & Trust shall also credit to participants' accounts
each plan year an amount designed to make up for the lower levels of
contributions to the Fidelity Federal Savings Bank Savings Plan and the Fidelity
Federal Employee Stock Ownership Plan due to statutory restrictions on the
amount of contributions that can be made annually to such plans under the
Internal Revenue Code.
(c) Time and Method of Payment. All plan benefits other than in-service
distributions or hardship withdrawals shall be paid to the participant upon
termination of employment for any reason other than death in a lump sum
payment, over a period of 60, 120 or 180 months, or in a form equal to the
actuarial equivalent of the participant's account balance, as selected by
the participant. Payments shall not commence under the plan any earlier
than 6 months, and not later than 8 months, after the end of the month in
which the participant terminates employment.
In the event the participant dies after termination of employment, his
remaining unpaid account balance shall be paid to the participant's beneficiary
over the remaining payout period. In the event that the participant dies before
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termination of employment, the participant's account balance shall be paid to
his beneficiary in the form selected by the participant at the time he completed
his deferral commitment form.
Participants may elect to receive in-service withdrawals from their
accounts provided that (i) they make such election at the time the enter into a
deferral agreement, (ii) the maximum amount that may be withdrawn is limited to
100% of the deferred amount, less interest or discretionary employer
contributions, and (iii) the amount withdrawn is paid in consecutive annual
installments commencing no earlier than 7 years following the end of the period
in which the participant selected the early withdrawal option.
In the event that a participant suffers a severe unforeseeable financial
hardship in the form of a sudden illness of the participant, his or her spouse,
or a dependent, a loss of the participant's property due to casualty, or other
similar extraordinary, unforeseeable events beyond the control of the
participant, the committee that administers the plan may, at its sole
discretion, make distributions to the participant in order to meet the financial
hardship. Distributions on account of financial hardship are limited to the
amount necessary to meet the participant's needs during the financial hardship.
Accelerated payments are not permissible under the plan except in the event of
an approved financial hardship of the participant.
(d) Unsecured Contractual Rights. The plan shall at all times be unfunded and
shall constitute a mere promise by Fidelity Federal Bank & Trust to make
benefit payments in the future. Neither a participant, nor his or her
designated beneficiary, shall have a preferred claim or, or any beneficial
ownership in, any assets of Fidelity Federal Bank & Trust prior to the time
benefits are paid, including any compensation deferred by a participant.
All rights created by the plan shall be unsecured contractual rights of the
participant against Fidelity Federal Bank & Trust.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
FIDELITY BANKSHARES, INC.
DATE: December 23, 2004 By:/s/ Vince A. Elhilow
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Vince A. Elhilow
Chairman of the Board, President and
Chief Executive Officer