EXHIBIT 10.3
AMENDED AND
RESTATED
ROBERT J. BUSH
EMPLOYMENT
AGREEMENT
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 ROBERT
J. BUSH (the “Executive”) is hereby amended and
restated in its entirety effective March 17, 2009. This
Agreement was originally executed on January 7, 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 him 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 him to perform his 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.
|
|
|
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 the second anniversary
of the Effective Date, plus (ii) any and all extensions of the
initial term made pursuant to this Section 4.
|
|
|
|
Commencing on
the first anniversary of the Effective Date and continuing on each
anniversary of the Effective Date 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.”
|
|
|
|
Effective
January 1, 2008, the Bank or an affiliate of the Bank agrees
to pay Executive a base salary at the rate of $312,000 per year,
payable in accordance with customary payroll practices.
|
|
|
|
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 set forth in paragraph a. of this
Section 4.
|
|
|
|
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.
|
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.
|
|
|
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.
|
|
|
|
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.
|
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 Bank.
9.
Automobile Allowance . During the term of
this Agreement, Executive shall be entitled to a monthly automobile
allowance of $1,160, or such other amount as determined by the
Board on an annually basis. Executive shall comply with
reasonable reporting and expense limitations established by the
Bank from time to time regarding Executive's automobile
benefit. The Bank shall include on Executive’s
Form W-2 any amount of income attributable to Executive’s
personal use of his automobile.
10.
Loyalty and Confidentiality .
|
|
|
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.
|
|
|
|
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.
|
|
|
|
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.
|
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:
|
|
|
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.
|
|
|
|
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 he participates pursuant to Section 6 of this
Agreement.
|
|
|
|
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.
|
|
|
|
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 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.
|
d.
Termination for Cause .
|
|
|
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:
|
|
|
|
Breach of
fiduciary duty involving personal profit;
|
|
|
|
Intentional
failure to perform stated duties under this Agreement;
|
|
|
|
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
|
|
|
|
Material breach
by Executive of any provision of this Agreement.
|
|
|
|
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.
|
|
|
|
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.
|
f.
Without Cause or With Good Reason .
|
|
|
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”).
|
|
|
|
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 his 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.
|
|
|
|
“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:
|
|
|
|
A material
reduction in Executive’s responsibilities or authority in
connection with his employment with the Company or the
Bank;
|
|
|
|
Assignment to
Executive of duties of a non-executive nature or duties for which
he is not reasonably equipped by his skills and
experience;
|
|
|
|
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;
|
|
|
|
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;
|
|
|
|
A relocation of
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.
|
|
|
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.
|
|
|
|
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 parag
|
|
