JAMES E. GOULD EMPLOYMENT AGREEMENT
EXHIBIT 10.1
XXXXX X. XXXXX
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the “Agreement”), is made this 23rd day of May, 2011, 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 XXXXX X. XXXXX (the
“Executive”).
WHEREAS, the Executive has accepted employment with the Bank in a position of substantial
responsibility;
WHEREAS, the Bank and the Executive wish to set forth the terms and conditions of the
Executive’s employment; |
NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and upon
the other terms and conditions provided for in this Agreement, the parties hereby agree as follows:
1. Employment. The Executive shall be employed as Executive Vice President and Chief
Lending Officer of the Bank. The Executive shall perform all duties and shall have all powers
which are commonly incident to the offices of Executive Vice President and Chief Lending Officer of
the Bank, or which, consistent with the office, is delegated to him by the Chief Executive Officer
of the Company and the Bank. (All subsequent references herein to the Board shall be to the Board
of the Bank, unless otherwise indicated.)
2. Location and Facilities. The Executive will be furnished with the working
facilities and staff customary for executive officers with the title and duties set forth in
Section 1 and as are necessary for him to perform his duties. The location of such facilities and
staff shall be at the principal administrative office of the Bank, or at such other site or sites
customary for such office.
3. Term.
a. The term of this Agreement shall be (i) the initial term, consisting of the period
commencing on May 23, 2011 (the “Effective Date”) and ending on May 20, 2012, plus (ii) any and all
extensions of the initial term made pursuant to this Section 3.
b. Commencing on May 20, 2012, and continuing on each May 20th (the “anniversary
date”) thereafter, the disinterested members of the Boards of Directors of the Bank may extend the
Agreement an additional year unless the Executive elects not to extend the term of this Agreement
by giving written notice in accordance with Section 19 of this Agreement. The Compensation
Committee of the Board will review this Agreement and the Executive’s performance annually prior to
each anniversary date for purposes of determining whether to recommend an extension of the
Agreement to the Board. The rationale and results of the Board’s discussion shall be included in
the minutes of the Board’s meeting. The Board shall give notice to the Executive as soon as
possible after such review as to whether the Agreement is to be extended.
4. Base Compensation.
a. The Bank agrees to pay the Executive a base salary at the rate of $225,000 per year,
payable in accordance with customary payroll practices.
b. The Board shall review at least annually the rate of the Executive’s base salary based upon
factors they deem relevant.
c. In the absence of action by the Board, the Executive shall continue to receive salary at
the annual rate specified on the Effective Date 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.
5. Bonuses. The 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; provided, however, that the
Executive’s incentive compensation opportunity under the Bank’s 2011 Management Incentive Plan
shall not be less than $30,000. The determination of the amount payable to the Executive as
incentive compensation (if any) for calendar years after 2011, shall be determined at the Board’s
discretion or pursuant to the terms of any incentive compensation plan adopted by the Board.
In addition to the foregoing, the Executive shall receive a $20,000 lump sum signing bonus,
less applicable tax withholding, payable 90 business days from the date of this Agreement, provided
the Executive is employed by the Bank on such date.
6. Benefit Plans. The Executive shall be entitled to participate in such employee
welfare benefit plans, 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 on such terms as the Board of the Company or the Bank may
specify.
7. Vacation and Leave.
a. The Executive shall be entitled to vacations and other leave in accordance with policy for
senior executives, or otherwise as approved by the Board, but in no event, shall the Executive
receive less than 31 days of paid vacation leave annually.
b. In addition to paid vacations and other leave, the Executive shall be entitled, without
loss of pay, to absent himself voluntarily from the performance of his 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 the 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.
8. Expenses and Reimbursements. The Executive shall be reimbursed for all reasonable
out-of-pocket business expenses that he shall incur in connection with his services under this
Agreement upon substantiation of such expenses in accordance with applicable policies of the
Company and the Bank.
9. Fringe Benefits. In connection with the performance of his duties under this
Agreement, the Bank shall provide the Executive with the use of an automobile and payment of
related automobile expenses, including paid parking. To the extent required by applicable law, the
Bank shall report as income to the Executive the value of his personal use of the automobile.
10. Loyalty and Confidentiality.
| a. | During the term of this Agreement the 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, the 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
the 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 the 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. | The 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. Termination and Termination Pay. Subject to Section 12 of this Agreement, the
Executive’s employment under this Agreement may be terminated in the following circumstances:
| a. | Death. The Executive’s employment under this Agreement shall
terminate upon his death during the term of this Agreement, in which event the
Executive’s estate shall be entitled to receive the compensation due to the Executive
through the last day of the calendar month in which his death occurred. |
| b. | Retirement. This Agreement will terminate on the 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 he participates pursuant to Section 6 of this Agreement. |
| c. | Disability. |
| i. | The Board or the Executive may terminate the Executive’s
employment after having determined the Executive has a Disability. For
purposes of this Agreement, “Disability” means a physical or mental infirmity
that impairs the Executive’s ability to substantially perform his duties
under this Agreement and that results in 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 the
Executive’s ability to substantially perform his duties under this Agreement
for a period of one hundred eighty (180) consecutive days). The Board shall
determine whether or not the 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 the Executive to submit
to such physical or mental evaluations and tests as it deems reasonably
appropriate. |
| ii. | In the event of such Disability, the Executive’s obligation
to perform services under this Agreement will terminate. The Bank will pay
the Executive, as Disability pay, an amount equal to sixty-six and two thirds
percent (66 2/3%) of the Executive’s bi-weekly rate of base salary in effect
as of the date of his 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 the Executive’s termination of
employment for Disability and end on the earlier of: (A) the date the
Executive returns to full-time employment at the Bank in the same capacity as
he was employed prior to his termination for Disability; (B) the Executive’s
death; (C) the Executive’s attainment of age 65; or (D) the date the Agreement
would have expired had the 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 the Executive under any other
disability programs sponsored by the Company and the Bank. In addition,
during any period of the Executive’s Disability, the 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 and the Bank, in
which the Executive participated prior to his Disability on the same terms as
if the Executive were actively employed by the Company and the Bank. |
| d. | Termination for Cause. |
| i. | The Board may, by written notice to the Executive in the form
and manner specified in this paragraph, immediately terminate his employment
at any time, for “Cause.” The 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, the Executive’s: |
| (1) | Personal dishonesty; |
||
| (2) | Incompetence; |
||
| (3) | Willful misconduct; |
||
| (4) | Breach of fiduciary duty involving personal
profit; |
||
| (5) | Intentional failure to perform stated
duties under this Agreement; |
||
| (6) | 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 |
||
| (7) | Material breach by the Executive of any
provision of this Agreement. |
| ii. | Notwithstanding the foregoing, the Executive shall not be
deemed to have been terminated for Cause by the Company and the Bank unless
there shall have been delivered to the 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 the Executive and an opportunity for the Executive to be
heard before the Board with counsel), of finding that, in the good faith
opinion of the Board, the Executive was guilty of the conduct described above
and specifying the particulars thereof. |
| e. | Voluntary Termination by the Executive. In addition to his other
rights to terminate under this Agreement, the 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 the Executive shall receive only his
compensation, vested rights and employee benefits up to the date of his termination of
employment. |
| f. | Without Cause or With Good Reason. |
| i. | In addition to termination pursuant to Sections 11a. through
11e., the Board may, by written notice to the Executive, immediately terminate
his employment at any time for a reason other than Cause (a termination
“Without Cause”) and the 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”). |
| ii. | Subject to Section 12 of this Agreement, in the event of
termination under this Section 11f., the Executive shall be entitled to
receive a severance benefit equal to the sum of two (2) times the sum of the
Executive’s (i) current base salary and (ii) the most recent bonus paid to the
Executive by the Company and/or the Bank. The Executive’s severance benefit
shall be payable ratably over a two (2) year period through the Bank’s regular
payroll. In addition, the 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 his termination date. In
the event that the Company and the Bank are unable to provide such coverage by
reason of the Executive no longer being an employee, the Company and the Bank
shall provide the 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. |
| iii. | “Good Reason” shall exist if, without the 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: |
| (1) | A material reduction in the Executive’s
responsibilities or authority in connection with his employment with
the Company or the Bank; |
||
| (2) | Assignment to the Executive of duties of a
non-executive nature or duties for which he is not reasonably
equipped by his skills and experience; |
||
| (3) | 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 the
Executive was entitled prior to the Change in Control; |
||
| (4) | Termination of incentive and benefit plans
(other than the Bank’s tax-qualified plans), programs or
arrangements, or reduction of the Executive’s participation to such
an extent as to materially reduce their aggregate value below their
aggregate value as of the Effective Date; |
||
| (5) | A relocation of the Executive’s principal
business office by more than thirty (30) miles from its current
location; or |
||
| (6) | Liquidation or dissolution of the Company or the Bank. |
| iv. | Notwithstanding the foregoing, a reduction or elimination of
the 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 the 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 the Executive is not entitled to participate subsequent to such
reduction or elimination of benefits. |
| v. | 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 the 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 the Executive is a “Specified Employee” (as defined
herein) no payment shall be made to the 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 the 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 the 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
the 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. |
| g. | 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 the Executive pursuant to Section 11f.: |
| i. | The Executive’s obligations under Section 10c. of this
Agreement will continue in effect; and |
| ii. | During the period ending one year after such termination of
employment, the 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. |
12. Termination in Connection with a Change in Control.
| a. | For purposes of this Agreement, a “Change in Control” means any of the
following events: |
| i. | 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. |
| ii. | 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. |
| iii. | 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 |
| iv. | Sale of Assets: The Company or the Bank sells to a
third party all or substantially all of its assets. |
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. | Termination. If within the period ending twelve (12) months after a Change
in Control, (i) the Company and the Bank shall terminate the Executive’s employment
Without Cause, or (ii) the Executive voluntarily terminates his employment With Good
Reason, the Company and the Bank shall, within ten (10) calendar days of the
termination of the Executive’s employment, make a lump-sum cash payment to him equal
to three (3) times the sum of the Executive’s (i) base salary and (ii) the most recent
bonus paid by the Company and/or Bank. Also, in such event, the Executive shall, for
a thirty-six (36) month period following his 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 the Executive no longer being an employee, the Company and the Bank shall
provide the 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
the 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 the Executive is a “Specified Employee” (as defined
herein) no payment shall be made to the 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 the 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 the
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 the
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. |
| c. | 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. |
13. Indemnification and Liability Insurance.
| a. | Indemnification. The Company and the Bank agree to indemnify the
Executive (and his 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 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 executive of the Company, the Bank or any of
their subsidiaries (whether or not he 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 the Executive in his 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 the 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. |
| b. | Insurance. During the period in which indemnification of the
Executive is required under this Section, the Company and the Bank shall provide the
Executive (and his 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. |
14. Reimbursement of the Executive’s Expenses to Enforce this Agreement. The Company
and the Bank shall reimburse the Executive for all out-of-pocket expenses, including, without
limitation, reasonable attorneys’ fees, incurred by the Executive in connection with successful
enforcement by the Executive of the obligations of the Company and the Bank to the 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 the 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 the 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 the 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 the Executive do not agree with the
opinion of such counsel, (i) the Company and the Bank shall pay to the Executive the maximum amount
of payments and benefits pursuant to Section 12, as selected by the 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 the 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 the Executive’s approval prior to filing, which shall not be unreasonably withheld. The
Company, the Bank and the 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 the 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.
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 the 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 the 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.
| a. | 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. |
| b. | Since the Company and the Bank are contracting for the unique and personal
skills of the Executive, the Executive shall be precluded from assigning or delegating
his rights or duties hereunder without first obtaining the written consent of the
Company and the Bank. |
18. No Mitigation. The 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 the 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 the Executive at his home address as maintained in the records of the
Company and the Bank.
20. No Plan Created by this Agreement. The 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 the 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.
27. Required Provisions. In the event any of the foregoing provisions of this Section
27 are in conflict with the terms of this Agreement, this Section 27 shall prevail.
| a. | The Board may terminate the Executive’s employment at any time, but any
termination by the Bank, other than termination for Cause, shall not prejudice the
Executive’s right to compensation or other benefits under this Agreement. The
Executive shall not have the right to receive compensation or other benefits for any
period after termination for Cause. |
| b. | If the 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 the 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. |
| c. | If the 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. |
| 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
Agreement shall terminate as of the date of default, but this paragraph shall not
affect any vested rights of the contracting parties. |
| e. | 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. |
| f. | Any payments made to the 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. |
[Signature page to follow]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set
forth above.
| ATTEST: | BENEFICIAL MUTUAL BANCORP, INC. | |||||
/s/ Xxxxxx X. Xxxxxxx
|
By: | /s/ Xxxxxx X. Xxxxx | ||||
| For the Entire Board of Directors | ||||||
| ATTEST: | BENEFICIAL MUTUAL SAVINGS BANK | |||||
/s/ Xxxxxx X. Xxxxxxx
|
By: | /s/ Xxxxxx X. Xxxxx | ||||
| For the Entire Board of Directors | ||||||
| WITNESS: | EXECUTIVE | |||||
| /s/ Xxxxx X. Xxxxx | ||||||
| Xxxxx X. Xxxxx | ||||||
