FORM OF EMPLOYMENT AGREEMENT
Exhibit
10.5
FORM
OF
THIS
AGREEMENT
(the
“Agreement”), made this _____ day of _________, 2007, by and between
BENEFICIAL MUTUAL BANCORP, INC.,
a
Pennsylvania-chartered corporation (the
“Company”),
BENEFICIAL MUTUAL SAVINGS BANK, a
federally chartered savings bank (the
“Bank”), and
_____________
(the
“Executive”).
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 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 [______________________________]
the
Company and the Bank. Executive shall perform all duties and shall have all
powers which are commonly incident to the offices of [___________________________]
or
which, consistent with those offices, are delegated to him by the Board of
Directors. [During
the term of this Agreement, Executive also agrees to serve, if elected, as
an
officer and/or director of any subsidiary of the Company and the Bank and
in
such capacity will carry out such duties and responsibilities reasonably
appropriate to that office.] [IF APPLICABLE]
2. Location
and Facilities.
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 offices of the Company and
the
Bank, or at such other site or sites customary for such offices.
3. Term.
a.
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The
term of this Agreement shall be (i) the initial term, consisting
of the
period commencing on the date of this Agreement (the “Effective Date”) and
ending on the third anniversary of the Effective Date, plus (ii)
any and
all extensions of the initial term made pursuant to this Section
3.
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1
b.
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Commencing
on the first year anniversary date of this Agreement, and continuing
on
each anniversary thereafter, the disinterested members of the boards
of
directors of the Bank and the Company may extend the Agreement
an
additional year such that the remaining term of the Agreement shall
be
thirty-six (36) months, unless Executive elects not to extend the
term of
this Agreement by giving written notice in accordance with Section
19 of
this Agreement. The Board of Directors of the Bank (the “Board”) will
review the Agreement and Executive’s performance annually prior to each
anniversary date for purposes of determining whether to extend
the
Agreement and the rationale and results thereof shall be included
in the
minutes of the Board’s meeting. The Board shall give notice to Executive
as soon as possible after such review as to whether the Agreement
is to be
extended.
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4. Base
Compensation.
a.
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The
Company and the Bank agree to pay Executive a base salary at the
rate of
[$_______]
per year, payable in accordance with customary payroll
practices.
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b.
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The
Board shall review annually the rate of Executive’s base salary based upon
factors they deem relevant, and may maintain or increase his salary,
provided that no such action shall reduce the rate of salary below
the
rate in effect on the Effective
Date.
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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 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.
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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 entitled 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.
a.
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Executive
shall be entitled to vacations and other leave in accordance with
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 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 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 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.
Automobile
Allowance/Club Memberships.
[IF
APPLICABLE]
10. |
Loyalty
and Confidentiality.
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a.
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During
the term of this Agreement 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, 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
he may
be exposed during the course of his employment. 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.
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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 his 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 his 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 Company or the Bank under the retirement benefit
plan or
plans in which he 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 his 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 his 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 two-thirds of 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 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 he was employed
prior to
his 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 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
Executive
participated prior to his 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.
i.
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The
Board may, by written notice to Executive in the form and manner
specified
in this paragraph, immediately terminate his 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 his 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 his compensation, vested
rights
and employee benefits up to the date of his
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 his
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 his base salary
for
the remaining term of the Agreement paid in one lump sum within
ten (10)
calendar days of such termination. Also, in such event, Executive
shall,
for the remaining term of the Agreement, receive the benefits he
would
have received during the remaining term of the Agreement under
any
retirement programs (whether tax-qualified or non-qualified) in
which
Executive participated prior to his termination (with the amount
of the
benefits determined by reference to the benefits received by Executive
or
accrued on his behalf under such programs during the twelve (12)
months
preceding his termination) and continue to participate in any benefit
plans of the Company and the Bank that provide health (including
medical
and dental) or life insurance, or similar coverage, upon terms
no less
favorable than the most favorable terms provided to senior executives
of
the Company and the Bank during such period. 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.
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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 his 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 he is
not reasonably equipped by his 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-five (35) 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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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 eighteen (18) months 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 fifty (50) 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. |
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.
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 his employment
With Good Reason, the Company and the Bank shall, within ten (10)
calendar
days of the
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termination
of Executive’s employment, make a lump-sum cash payment to him equal to 2.99
times Executive’s average Annual Compensation over the five (5) most recently
completed calendar years ending with the year immediately preceding the
effective date of the Change in Control. In determining Executive’s average
Annual Compensation, Annual Compensation shall include base salary and any
other
taxable income, including, but not limited to, amounts related to the granting,
vesting or exercise of restricted stock or stock option awards, commissions,
bonuses (whether paid or accrued for the applicable period), as well as,
retirement benefits, director or committee fees and fringe benefits paid
or to
be paid to Executive or paid for Executive’s benefit during any such year,
profit sharing, employee stock ownership plan and other retirement contributions
or benefits, including to any tax-qualified plan or arrangement (whether
or not
taxable) made or accrued on behalf of Executive for such year. The
cash
payment made under this Section 12b. shall be made in lieu of any payment
also
required under Section 11f. of this Agreement because of a termination in
such
period. Executive’s rights under Section 11f. are not otherwise affected by this
Section 12. Also, in such event, Executive shall, for a thirty-six (36) month
period following his termination of employment, receive the benefits he would
have received over such thirty-six (36) month period under any retirement
programs (whether tax-qualified or nonqualified) in which Executive participated
prior to his termination (with the amount of the benefits determined by
reference to the benefits received by Executive or accrued on his behalf
under
such programs during the twelve (12) months preceding the Change in Control)
and
continue to participate in any benefit plans of the Company and the Bank
that
provide health (including medical and dental) life insurance, or similar
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
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 under an individual policy.
c.
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The
provisions of Section 12 and Sections 14 through 26, 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 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
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is
brought against 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 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.
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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 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.
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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
10
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.
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.
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 his 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 his home address as maintained in the records of the Company
and
the Bank.
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.
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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.
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 26 shall prevail.
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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13
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement on the date first set forth
above.
ATTEST:
|
BENEFICIAL
MUTUAL BANCORP, INC.
|
__________________________ |
By:
________________________________
|
Corporate
Secretary
|
For
the Entire Board of Directors
|
__________________________ | |
ATTEST:
|
BENEFICIAL
MUTUAL SAVINGS BANK
|
__________________________ |
By:
________________________________
|
Corporate
Secretary
|
For
the Entire Board of Directors
|
WITNESS:
|
EXECUTIVE
|
__________________________ |
By:
________________________________
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