AMENDED AND RESTATED DENISE KASSEKERT EMPLOYMENT AGREEMENT
EXHIBIT
10.5
AMENDED
AND RESTATED
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THIS AGREEMENT (the
“Agreement”) by and between
BENEFICIAL MUTUAL BANCORP, INC., a federally-chartered corporation (the “Company”), BENEFICIAL MUTUAL SAVINGS BANK,
a Pennsylvania chartered savings bank (the “Bank”), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the
“Executive”) is hereby amended and restated in its entirety effective March 17,
2009. This Agreement was originally executed on May 15, 2008 (the
“Effective Date”).
WHEREAS, Executive serves in a
position of substantial responsibility; and
WHEREAS, the Company and the
Bank wish to assure the services of Executive for the period provided in this
Agreement; and
WHEREAS, Executive is willing
to continue to serve in the employ of the Bank on a full-time basis
for said period.
NOW, THEREFORE, in
consideration of the mutual covenants herein contained, and upon the other terms
and conditions hereinafter provided, the parties hereby agree as
follows:
1.
Employment. Executive is
employed as Executive Vice President of the Company and the
Bank. Executive shall perform all duties and shall have all powers
which are commonly incident to the office of Executive Vice President or which,
consistent with the office, are delegated to her by the Chief Executive Officer
of the Bank. (All
subsequent references herein to the Board shall be the Board of the Bank, unless
otherwise indicated).
2.
Location
and Facilities. Executive will be
furnished with the working facilities and staff as are necessary for her to
perform her duties. The location of such facilities and staff shall
be at the principal administrative offices of the Bank, or at such other site or
sites customary for such offices.
3.
Term.
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a.
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The
term of this Agreement shall include: (i) the initial term, consisting of
the period commencing on the date of this Agreement (the “Effective Date”)
and ending on January 7, 2010, plus (ii) any and all extensions of the
initial term made pursuant to this Section
3.
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b.
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Commencing
on January 7, 2009 and continuing on each January 7th
thereafter, the disinterested members of the Boards of Directors may
extend the Agreement term for an additional year, so that the remaining
term of the Agreement again becomes two (2) years, unless Executive elects
not to extend the term of this Agreement by giving proper written
notice. The Board of Directors will review the Agreement and
Executive’s performance annually for purposes of determining whether to
extend the Agreement term and will include the rationale and results of
its review in the minutes of the meetings. The Board of
Directors will notify Executive as soon as possible after each annual
review whether it has determined to extend the
Agreement.
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4.
Base
Compensation.
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a.
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Effective
January 1, 2009, the Bank agrees to pay Executive a base salary
at the rate of $225,000 per year, payable in accordance with customary
payroll practices.
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b.
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The
Board shall review the rate of Executive’s base salary based upon factors
it deems relevant, and may maintain or increase her salary, provided that
no such action shall reduce the rate of salary below the rate set forth in
paragraph a. of this Section 4. All salary reviews will
take place in connection with Executive’s annual performance
review.
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c.
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In
the absence of action by the Board, Executive shall continue to receive
salary at the annual rate specified in paragraph a. of this Section
4. or, if another rate has been established under the provisions of this
Section 4, the rate last properly established by action of the Board under
the provisions of this Section 4.
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5.
Bonuses. Executive shall
be entitled to participate in discretionary bonuses or other incentive
compensation programs that the Company and the Bank may award from time to time
to senior management employees pursuant to bonus plans or
otherwise.
6.
Benefit
Plans. Executive shall
also be eligible to participate in such medical, dental, pension, profit
sharing, retirement and stock-based compensation plans and other programs and
arrangements as may be approved from time to time by the Company and the Bank
for the benefit of their employees.
7.
Vacation and
Leave.
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a.
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Executive
shall be entitled to vacation and other leave in accordance with the
Bank’s policy for senior executives, or otherwise as approved by the
Board.
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b.
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In
addition to paid vacations and other leave, Executive shall be entitled,
without loss of pay, to absent herself voluntarily from the performance of
her employment for such additional periods of time and for such valid and
legitimate reasons as the Board may, in its discretion,
determine. Further, the Board may grant to Executive a leave or
leaves of absence, with or without pay, at such time or times and upon
such terms and conditions as the Board in its discretion may
determine.
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8.
Expense
Payments and Reimbursements. Executive shall
be reimbursed for all reasonable out-of-pocket business expenses that she shall
incur in connection with her services under this Agreement upon substantiation
of such expenses in accordance with applicable policies of the
Bank.
9. Automobile
Allowance. During the term of this Agreement, Executive shall
be entitled to use of a Bank-owned automobile. Executive shall comply
with reasonable reporting and expense limitations on the use of such automobile
as may be established by the Bank from time to time, and the Bank shall include
on Executive's Form W-2 any amount of income attributable to Executive’s
personal use of such automobile.
10. Loyalty and
Confidentiality.
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a.
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During
the term of this Agreement Executive: (i) shall devote all her
time, attention, skill, and efforts to the faithful performance of her
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.
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b.
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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.
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c.
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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 she may
be exposed during the course of her employment. Executive
further agrees that, unless required by law or specifically permitted by
the Board in writing, she will not disclose to any person or entity,
either during or subsequent to her employment, any of the above-mentioned
information which is not generally known to the public, nor shall she
employ such information in any way other than for the benefit of the
Company and the Bank.
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11. Termination
and Termination Pay. Subject to
Section 12 of this Agreement, Executive’s employment under this Agreement may be
terminated in the following circumstances:
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a.
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Death. Executive’s
employment under this Agreement shall terminate upon her death during the
term of this Agreement, in which event Executive’s estate shall be
entitled to receive the compensation due to Executive through the last day
of the calendar month in which her death
occurred.
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b.
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Retirement. This
Agreement will terminate on Executive’s Retirement Date. For
purposes of this Agreement, Retirement Date is defined as the date the
Executive retires from the Bank under the retirement benefit plan or plans
in which she participates pursuant to Section 6 of this
Agreement.
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c.
Disability.
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i.
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The
Board or Executive may terminate Executive’s employment after having
determined Executive has a Disability. For purposes of this
Agreement, “Disability” means a physical or mental infirmity that impairs
Executive’s ability to substantially perform her duties under this
Agreement and that results in Executive becoming eligible for long-term
disability benefits under any long-term disability plans of the Company
and the Bank (or, if there are no such plans in effect, that impairs
Executive’s ability to substantially perform her duties under this
Agreement for a period of one hundred eighty (180) consecutive
days). The Board 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 Board may require Executive to submit to such physical or
mental evaluations and tests as it deems reasonably
appropriate.
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ii.
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In
the event of such Disability, Executive’s obligation to perform services
under this Agreement will terminate. The Bank will pay
Executive, as Disability pay, an amount equal to sixty-six and two thirds
percent (66 2/3%) of Executive’s
bi-weekly rate of base salary in effect as of the date of her termination
of employment due to Disability. Disability payments will be
made on a monthly basis and will commence on the first day of the month
following the effective date of Executive’s termination of employment for
Disability and end on the earlier of: (A) the date Executive
returns to full-time employment at the Bank in the same capacity as she
was employed prior to her termination for Disability; (B) Executive’s
death; (C) Executive’s attainment of age 65; or (D) the date the
Agreement would have expired had Executive’s employment not terminated by
reason of Disability. Such payments shall be reduced by the
amount of any short- or long-term disability benefits payable to Executive
under any other disability programs sponsored by the Company and the
Bank. In addition, during any period of Executive’s Disability,
Executive and her 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 and the Bank, in which Executive participated prior to her
Disability on the same terms as if Executive were actively employed by the
Company and the Bank.
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d.
Termination for
Cause.
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i.
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The
Board may, by written notice to Executive in the form and manner specified
in this paragraph, immediately terminate her employment at any time, for
“Cause.” Executive shall have no right to receive compensation
or other benefits for any period after termination for Cause except for
vested benefits. Termination for Cause shall mean termination
because of, in the good faith determination of the Board,
Executive’s:
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(1)
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Personal
dishonesty;
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(2)
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Incompetence;
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(3)
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Willful
misconduct;
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(4)
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Breach
of fiduciary duty involving personal
profit;
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(5)
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Intentional
failure to perform stated duties under this
Agreement;
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(6)
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Willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses) that reflects adversely on the reputation of the Company
and the Bank, any felony conviction, any violation of law involving moral
turpitude, or any violation of a final cease-and-desist order;
or
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(7)
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Material
breach by Executive of any provision of this
Agreement.
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ii.
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Notwithstanding
the foregoing, Executive shall not be deemed to have been terminated for
Cause by the Company and the Bank unless there shall have been delivered
to Executive a copy of a resolution duly adopted by the affirmative vote
of a majority of the entire membership of the Board at a meeting of such
Board called and held for the purpose (after reasonable notice to
Executive and an opportunity for Executive to be heard before the Board
with counsel), of finding that, in the good faith opinion of the Board,
Executive was guilty of the conduct described above and specifying the
particulars thereof.
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e.
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Voluntary Termination
by Executive. In addition to her other rights to
terminate under this Agreement, Executive may voluntarily terminate
employment during the term of this Agreement upon at least sixty (60) days
prior written notice to the Board, in which case Executive shall receive
only her compensation, vested rights and employee benefits up to the date
of her termination.
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f.
Without Cause or With
Good Reason.
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i.
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In
addition to termination pursuant to Sections 11a. through 11e., the Board
may, by written notice to Executive, immediately terminate her employment
at any time for a reason other than Cause (a termination “Without Cause”)
and Executive may, by written notice to the Board, immediately terminate
this Agreement at any time within ninety (90) days following an event
constituting “Good Reason,” as defined below (a termination “With Good
Reason”).
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ii.
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Subject
to Section 12 of this Agreement, in the event of termination under this
Section 11f., Executive shall be entitled to receive a severance benefit
equal to two (2) times the sum of Executive’s (i) current base salary and
(ii) the most recent bonus paid to Executive by the Company and/or the
Bank. Executive’s severance benefit shall be payable ratably
over a two (2) year period through the Bank’s regular
payroll. In addition, Executive shall receive continued
medical, dental and life insurance coverage, upon terms no less favorable
than the most favorable terms provided to senior executives of the Company
and the Bank during the twenty-four (24) month period following her
termination date. 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. The
severance payments and benefits provided under this subparagraph (ii) are
subject to Section 11f.(v) of this
Agreement.
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iii.
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“Good
Reason” shall exist if, without Executive’s express written consent, the
Company and the Bank materially breach any of their respective obligations
under this Agreement. Without limitation, such a material
breach shall be deemed to occur upon any of the
following:
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(1)
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A
material reduction in Executive’s responsibilities or authority in
connection with her employment with the Company or the
Bank;
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(2)
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Assignment
to Executive of duties of a non-executive nature or duties for which she
is not reasonably equipped by her skills and
experience;
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(3)
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A
reduction in salary or benefits contrary to the terms of this Agreement,
or, following a Change in Control as defined in Section 12 of this
Agreement, any reduction in salary or material reduction in benefits below
the amounts to which Executive was entitled prior to the Change in
Control;
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(4)
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Termination
of incentive and benefit plans (other than the Bank’s tax-qualified
plans), programs or arrangements, or reduction of Executive’s
participation to such an extent as to materially reduce their aggregate
value below their aggregate value as of the Effective
Date;
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(5)
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A
relocation of Executive’s principal business office by more than thirty
(30) miles from its current location;
or
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(6) Liquidation
or dissolution of the Company or the Bank.
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iv.
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Notwithstanding
the foregoing, a reduction or elimination of Executive’s benefits under
one or more benefit plans maintained by the Company or the Bank as part of
a good faith, overall reduction or elimination of such plans or benefits
thereunder applicable to all participants in a manner that does not
discriminate against Executive (except as such discrimination may be
necessary to comply with law) shall not constitute an event of Good Reason
or a material breach of this Agreement, provided that benefits of the same
type or to the same general extent as those offered under such plans are
not available to other officers of the Company and the Bank, or any
company that controls either of them, under a plan or plans in or under
which Executive is not entitled to participate subsequent to such
reduction or elimination of
benefits.
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v.
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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.
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g.
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Continuing Covenant
Not to Compete or Interfere with
Relationships. Regardless of anything herein to the
contrary, following a termination by the Company and the Bank or Executive
pursuant to Section 11f.:
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i.
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Executive’s
obligations under Section 10c. of this Agreement will continue in effect;
and
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ii.
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During
the period ending one year after such termination of employment, Executive
shall not serve as an officer, director or employee of any bank holding
company, bank, savings bank, savings and loan holding company, or mortgage
company (any of which, a “Financial Institution”) which Financial
Institution offers products or services competing with those offered by
the Bank from any office within thirty (30) miles from the main office or
any branch of the Bank and shall not interfere with the relationship of
the Company and the Bank and any of its employees, agents, or
representatives.
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12. Termination in Connection
with a Change in Control.
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a.
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For
purposes of this Agreement, a “Change in Control” means any of the
following events:
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i.
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Merger: The
Company or the Bank merges into or consolidates with another corporation,
or merges another corporation into the Company or the Bank, and as a
result less than a majority of the combined voting power of the resulting
corporation immediately after the merger or consolidation is held by
persons who were stockholders of the Company or the Bank immediately
before the merger or consolidation.
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ii.
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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 of 25% or more of a class of the Company’s voting securities, but
this clause (b) shall not apply to beneficial ownership of Company voting
shares held in a fiduciary capacity by an entity of which the Company
directly or indirectly beneficially owns 50% or more of its outstanding
voting securities.
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iii.
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Change in Board
Composition: During any period of two consecutive years,
individuals who constitute the Company’s or the Bank’s Board of Directors
at the beginning of the two-year period cease for any reason to constitute
at least a majority of the Company’s or the Bank’s Board of Directors;
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 stockholders) 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
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iv.
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Sale of
Assets: The Company or the Bank sells to a third party
all or substantially all of its
assets.
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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.
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b.
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Termination. If
within the period ending twelve (12) months after a Change in
Control, (i) the Company and the Bank shall terminate Executive’s
employment Without Cause, or (ii) Executive voluntarily
terminates her employment With Good Reason, the Company and the Bank
shall, within ten (10) calendar days of the termination of Executive’s
employment, make a lump-sum cash payment to her equal to three (3) times
the sum of Executive’s (i) base salary and (ii) the most recent bonus paid
by the Company and/or Bank. Also, in such event, Executive
shall, for a thirty-six (36) month period following her termination of
employment, receive continued medical, dental and life insurance coverage
upon terms no less favorable than the most favorable terms provided to
senior executives of the Bank during such period. In the event
that the Company or the Bank is 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 under an individual
policy. 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.
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c.
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The
provisions of Section 12 and Sections 14 through 27, including the defined
terms used in such sections, shall continue in effect until the later of
the expiration of this Agreement or one (1) year following a Change in
Control.
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13.
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Indemnification and
Liability Insurance.
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a.
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Indemnification. The
Company and the Bank agree to indemnify Executive (and her heirs,
executors, and administrators), and to advance expenses related thereto,
to the fullest extent permitted under applicable law and regulations
against any and all expenses and liabilities reasonably incurred by her in
connection with or arising out of any action, suit, or proceeding in which
she may be involved by reason of her having been a director or Executive
of the Company, the Bank or any of their subsidiaries (whether or not she
continues to be a director or Executive at the time of incurring any such
expenses or liabilities) such expenses and liabilities to include, but not
be limited to, judgments, court costs, and attorneys’ fees and the costs
of reasonable settlements, such settlements to be approved by the Board,
if such action is brought against Executive in her capacity as an
Executive or director of the Company and the Bank or any of their
subsidiaries. Indemnification for expenses shall not extend to
matters for which Executive has been terminated for
Cause. Nothing contained herein shall be deemed to provide
indemnification prohibited by applicable law or
regulation. Notwithstanding anything herein to the contrary,
the obligations of this Section 13 shall survive the term of this
Agreement by a period of six (6)
years.
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b.
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Insurance. During
the period in which indemnification of Executive is required under this
Section, the Company and the Bank shall provide Executive (and her heirs,
executors, and administrators) with coverage under a directors’ and
officers’ liability policy at the expense of the Company and the Bank, at
least equivalent to such coverage provided to directors and senior
executives of the Company and the
Bank.
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14. Reimbursement
of Executive’s Expenses to Enforce this Agreement. The Company and
the Bank shall reimburse Executive for all out-of-pocket expenses, including,
without limitation, reasonable attorneys’ fees, incurred by Executive in
connection with successful enforcement by Executive of the obligations of the
Company and the Bank to Executive under this Agreement. Successful
enforcement shall mean the grant of an award of money or the requirement that
the Company and the Bank take some action specified by this
Agreement: (i) as a result of court order; or (ii) otherwise by the
Company and the Bank following an initial failure of the Company and the Bank to
pay such money or take such action promptly after written demand therefor from
Executive stating the reason that such money or action was due under this
Agreement at or prior to the time of such demand.
15. Limitation
of Benefits under Certain Circumstances. If the payments
and benefits pursuant to Section 12 of this Agreement, either alone or together
with other payments and benefits which Executive has the right to receive from
the Company and the Bank, would constitute a “parachute payment” under Section
280G of the Code, the payments and benefits pursuant to Section 12 shall be
reduced or revised, in the manner determined by Executive, by the amount, if
any, which is the minimum necessary to result in no portion of the payments and
benefits under Section 12 being non-deductible to the Company and the Bank
pursuant to Section 280G of the Code and subject to the excise tax imposed under
Section 4999 of the Code. The determination of any reduction in the
payments and benefits to be made pursuant to Section 12 shall be based upon the
opinion of the Company and the Bank’s independent public accountants and paid
for by the Company and the Bank. In the event that the Company, the
Bank and/or Executive do not agree with the opinion of such counsel, (i) the
Company and the Bank shall pay to Executive the maximum amount of payments and
benefits pursuant to Section 12, as selected by Executive, which such opinion
indicates there is a high probability do not result in any of such payments and
benefits being non-deductible to the Company and the Bank and subject to the
imposition of the excise tax imposed under Section 4999 of the Code and (ii) the
Company and the Bank may request, and Executive shall have the right to demand
that they request, a ruling from the IRS as to whether the disputed payments and
benefits pursuant to Section 12 have such consequences. Any such
request for a ruling from the IRS shall be promptly prepared and filed by the
Company and the Bank, but in no event later than thirty (30) days from the date
of the opinion of counsel referred to above, and shall be subject to Executive’s
approval prior to filing, which shall not be unreasonably
withheld. The Company, the Bank and Executive agree to be bound by
any ruling received from the IRS and to make appropriate payments to each other
to reflect any such rulings, together with interest at the applicable federal
rate provided for in Section 7872(f)(2) of the Code. Nothing
contained herein shall result in a reduction of any payments or benefits to
which Executive may be entitled upon termination of employment other than
pursuant to Section 12 hereof, or a reduction in the payments and benefits
specified in Section 12 below zero.
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16. Injunctive
Relief. If there is a
breach or threatened breach of Section 11g. of this Agreement or the
prohibitions upon disclosure contained in Section 10c. of this Agreement, the
parties agree that there is no adequate remedy at law for such breach, and that
the Company and the Bank shall be entitled to injunctive relief restraining
Executive from such breach or threatened breach, but such relief shall not be
the exclusive remedy hereunder for such breach. The parties hereto
likewise agree that Executive, without limitation, shall be entitled to
injunctive relief to enforce the obligations of the Company and the Bank under
this Agreement.
17. Successors and
Assigns.
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a.
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This
Agreement shall inure to the benefit of and be binding upon any corporate
or other successor to the Company and the Bank which shall acquire,
directly or indirectly, by merger, consolidation, purchase or otherwise,
all or substantially all of the assets or stock of the Company and the
Bank.
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b.
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Since
the Company and the Bank are contracting for the unique and personal
skills of Executive, Executive shall be precluded from assigning or
delegating her rights or duties hereunder without first obtaining the
written consent of the Company and the
Bank.
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18. No
Mitigation. Executive shall
not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise and no such payment shall be
offset or reduced by the amount of any compensation or benefits provided to
Executive in any subsequent employment.
19. Notices. All notices,
requests, demands and other communications in connection with this Agreement
shall be made in writing and shall be deemed to have been given when delivered
by hand or 48 hours after mailing at any general or branch United States Post
Office, by registered or certified mail, postage prepaid, addressed to the
Company and/or the Bank at their principal business offices and to Executive at
her home address as maintained in the records of the Company and the
Bank.
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20. No Plan
Created by this Agreement. Executive, the
Company and the Bank expressly declare and agree that this Agreement was
negotiated among them and that no provision or provisions of this Agreement are
intended to, or shall be deemed to, create any plan for purposes of the Employee
Retirement Income Security Act or any other law or regulation, and each party
expressly waives any right to assert the contrary. Any assertion in
any judicial or administrative filing, hearing, or process that such a plan was
so created by this Agreement shall be deemed a material breach of this Agreement
by the party making such an assertion.
21. Amendments. No amendments or
additions to this Agreement shall be binding unless made in writing and signed
by all of the parties, except as herein otherwise specifically
provided.
22. Applicable
Law. Except to the
extent preempted by federal law, the laws of the Commonwealth of Pennsylvania
shall govern this Agreement in all respects, whether as to its validity,
construction, capacity, performance or otherwise.
23. Severability. The provisions of
this Agreement shall be deemed severable and the invalidity or unenforceability
of any provision shall not affect the validity or enforceability of the other
provisions hereof.
24. Headings. Headings
contained herein are for convenience of reference only.
25. Entire
Agreement. This Agreement,
together with any understanding or modifications thereof as agreed to in writing
by the parties, shall constitute the entire agreement among the parties hereto
with respect to the subject matter hereof, other than written agreements with
respect to specific plans, programs or arrangements described in Sections 5 and
6.
26. 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 arbitrators
sitting in Philadelphia, Pennsylvania, in 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 her
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.
27. Required
Provisions. In the event any
of the foregoing provisions of this Section 26 are in conflict with the terms of
this Agreement, this Section 27 shall prevail.
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a.
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The
Bank’s board of directors may terminate Executive’s employment at any
time, but any termination by the Bank, 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.
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b.
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If
Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the Bank’s affairs 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 Agreement
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 its contract obligations were suspended;
and (ii) reinstate (in whole or in part) any of the obligations which
were suspended.
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c.
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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 Agreement shall terminate
as of the effective date of the order, but vested rights of the
contracting parties shall not be
affected.
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d.
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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 Agreement shall terminate as of the date of default, but this
paragraph shall not affect any vested rights of the contracting
parties.
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e.
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All
obligations under this Agreement 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 or her designee), at the time the Federal Deposit Insurance
Corporation (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 or her 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.
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f.
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Any
payments made to Executive 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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14
IN WITNESS WHEREOF, the
parties hereto have executed this amended and restated Agreement
effective March 17, 2009.
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ATTEST:
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BENEFICIAL
MUTUAL BANCORP, INC.
|
|||
| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
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Corporate
Secretary
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For
the Entire Board of Directors
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|||
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ATTEST:
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BENEFICIAL
MUTUAL SAVINGS BANK
|
|||
| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
|
Corporate
Secretary
|
For
the Entire Board of Directors
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|||
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WITNESS:
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EXECUTIVE
|
|||
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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||||
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