ex10-4.htm


    
      

    

    EXHIBIT
10.4

    


    AMENDED
AND RESTATED

    ANDREW
J. MILLER

    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 ANDREW J. MILLER (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 and Chief Lending Officer 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 and
Chief Lending Officer 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.

    


    3.            
Term.

    


    
      	
               
      

            	
              a.

            	
              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.

            


    

    


    
      	
               
      

            	
              b.

            	
              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.”

            


    

     

    
      
        
        

      

      
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    4.            
Base
Compensation.

    


    
      	
               
      

            	
              a.

            	
              Effective
      January 1, 2008, the Bank agrees to pay Executive a base salary at
      the rate of $280,800 per year, payable in accordance with customary
      payroll practices.

            


    

    


    
      	
               
      

            	
              b.

            	
              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.

            


    

    


    
      	
               
      

            	
              c.

            	
              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.

    


    7.           
Vacation and
Leave.

    


    
      	
               
      

            	
              a.

            	
              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.

            


    

    


    
      	
               
      

            	
              b.

            	
              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
Bank.

     

    9.         
   Automobile
Allowance.  During the term of this Agreement, Executive shall
be entitled to use of a Bank-owned automobile.  Executive shall comply
with reasonable reporting and expense limitations on the use of such automobile
as may be established by the Bank from time to time, and the Bank shall include
on Executive's Form W-2 any amount of income attributable to Executive’s
personal use of such automobile.

    


    10.           Loyalty and
Confidentiality.

    


    
      	
               
      

            	
              a.

            	
              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.

            


    

    


    
      	
               
      

            	
              b.

            	
              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.

            


    

    


    
      	
               
      

            	
              c.

            	
              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:

    


    
      	
               
      

            	
              a.

            	
              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.

            


    

    


    
      	
               
      

            	
              b.

            	
              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.

            


    

    


    c.            
Disability.

    


    
      	
               
      

            	
              i.

            	
              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.

            


    

    


    
      	
               
      

            	
              ii.

            	
              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.

            


    

     

    
      
        
        

      

      
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    d.           
Termination for
Cause.

    


    
      	
               
      

            	
              i.

            	
              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:

            


    

    


    
      	
               
      

            	
              (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 Executive of any provision of this
  Agreement.

            


    

    


    
      	
               
      

            	
              ii.

            	
              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.

            	
              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.

    


    
      	
               
      

            	
              i.

            	
              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”).

            


    

    


    
      	
               
      

            	
              ii.

            	
              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.

            


    

    


    
      	
               
      

            	
              iii.

            	
              “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:

            


    

    


    
      	
               
      

            	
              (1)

            	
              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)

            	
              Assignment
      to 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 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 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 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 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.

            


    

    


    
      	
               
      

            	
              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 Executive).  However,
      notwithstanding anything to the contrary in this Agreement, to the extent
      payments do not meet the short-term deferral exception of Section 409A of
      the Code and, in the event Executive is a “Specified Employee” (as defined
      herein) no payment shall be made to Executive under this Agreement prior
      to the first day of the seventh month following the Event of Termination
      in excess of the “permitted amount” under Section 409A of the
      Code.  For these purposes the “permitted amount” shall be an
      amount that does not exceed two times the lesser of: (A) the sum of
      Executive’s annualized compensation based upon the annual rate of pay for
      services provided to the Company for the calendar year preceding the year
      in which Executive has an Event of Termination, or (B) the maximum amount
      that may be taken into account under a tax-qualified plan pursuant to
      Section 401(a)(17) of the Code for the calendar year in which occurs the
      Event of Termination.  The payment of the “permitted amount”
      shall be made within sixty (60) days of the occurrence of the Event of
      Termination.  Any payment in excess of the permitted amount
      shall be made to Executive on the first day of the seventh month following
      the Event of Termination.  “Specified Employee” shall be
      interpreted to comply with Section 409A of the Code and shall mean a key
      employee within the meaning of Section 416(i) of the Code (without regard
      to paragraph 5 thereof), but an individual shall be a “Specified Employee”
      only if the Company is a publicly-traded institution or the subsidiary of
      a publicly-traded holding company.

            


    

     

    
      
        
        

      

      
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              g.

            	
              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.:

            


    

    


    
      	
               
      

            	
              i.

            	
              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, 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.

            


    

     

    
      
        
        

      

      
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              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 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 termination of Executive’s
      employment, make a lump-sum cash payment to him equal to three (3) times
      the sum of Executive’s (i) base salary and (ii) the most recent bonus paid
      by the Company and/or Bank.  Also, in such event, Executive
      shall, for a thirty-six (36) month period following 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 Executive no longer being an employee, the Company and the Bank shall
      provide Executive with comparable coverage under an individual
      policy.  The parties to this Agreement intend for the payments
      to satisfy the short-term deferral exception under Section 409A of the
      Code or, in the case of health and welfare benefits, not constitute
      deferred compensation (since such amounts are not taxable to
      Executive).  However, notwithstanding anything to the contrary
      in this Agreement, to the extent payments do not meet the short-term
      deferral exception of Section 409A of the Code and, in the event Executive
      is a “Specified Employee” (as defined herein) no payment shall be made to
      Executive under this Agreement prior to the first day of the seventh month
      following the Event of Termination in excess of the “permitted amount”
      under Section 409A of the Code.  For these purposes the
      “permitted amount” shall be an amount that does not exceed two times the
      lesser of: (A) the sum of Executive’s annualized compensation based upon
      the annual rate of pay for services provided to the Company for the
      calendar year preceding the year in which Executive has an Event of
      Termination, or (B) the maximum amount that may be taken into account
      under a tax-qualified plan pursuant to Section 401(a)(17) of the Code for
      the calendar year in which occurs the Event of Termination.  The
      payment of the “permitted amount” shall be made within sixty (60) days of
      the occurrence of the Event of Termination.  Any payment in
      excess of the permitted amount shall be made to Executive on the first day
      of the seventh month following the Event of
      Termination.  “Specified Employee” shall be interpreted to
      comply with Section 409A of the Code and shall mean a key employee within
      the meaning of Section 416(i) of the Code (without regard to paragraph 5
      thereof), but an individual shall be a “Specified Employee” only if the
      Company is a publicly-traded institution or the subsidiary of a
      publicly-traded holding company.

            


    

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              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 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 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.

            


    

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              b.

            	
              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.

            


    

    


    14.           Reimbursement
of Executive’s Expenses to Enforce this Agreement.  The Company and
the Bank shall reimburse Executive for all out-of-pocket expenses, including,
without limitation, reasonable attorneys’ fees, incurred by Executive in
connection with successful enforcement by Executive of the obligations of the
Company and the Bank to Executive under this Agreement.  Successful
enforcement shall mean the grant of an award of money or the requirement that
the Company and the Bank take some action specified by this
Agreement:  (i) as a result of court order; or (ii) otherwise by the
Company and the Bank following an initial failure of the Company and the Bank to
pay such money or take such action promptly after written demand therefor from
Executive stating the reason that such money or action was due under this
Agreement at or prior to the time of such demand.

    


    15.           Limitation
of Benefits under Certain Circumstances.  If the payments
and benefits pursuant to Section 12 of this Agreement, either alone or together
with other payments and benefits which Executive has the right to receive from
the Company and the Bank, would constitute a “parachute payment” under Section
280G of the Code, the payments and benefits pursuant to Section 12 shall be
reduced or revised, in the manner determined by Executive, by the amount, if
any, which is the minimum necessary to result in no portion of the payments and
benefits under Section 12 being non-deductible to the Company and the Bank
pursuant to Section 280G of the Code and subject to the excise tax imposed under
Section 4999 of the Code.  The determination of any reduction in the
payments and benefits to be made pursuant to Section 12 shall be based upon the
opinion of the Company and the Bank’s independent public accountants and paid
for by the Company and the Bank.  In the event that the Company, the
Bank and/or Executive do not agree with the opinion of such counsel, (i) the
Company and the Bank shall pay to Executive the maximum amount of payments and
benefits pursuant to Section 12, as selected by Executive, which such opinion
indicates there is a high probability do not result in any of such payments and
benefits being non-deductible to the Company and the Bank and subject to the
imposition of the excise tax imposed under Section 4999 of the Code and (ii) the
Company and the Bank may request, and Executive shall have the right to demand
that they request, a ruling from the IRS as to whether the disputed payments and
benefits pursuant to Section 12 have such consequences.  Any such
request for a ruling from the IRS shall be promptly prepared and filed by the
Company and the Bank, but in no event later than thirty (30) days from the date
of the opinion of counsel referred to above, and shall be subject to Executive’s
approval prior to filing, which shall not be unreasonably
withheld.  The Company, the Bank and Executive agree to be bound by
any ruling received from the IRS and to make appropriate payments to each other
to reflect any such rulings, together with interest at the applicable federal
rate provided for in Section 7872(f)(2) of the Code.  Nothing
contained herein shall result in a reduction of any payments or benefits to
which Executive may be entitled upon termination of employment other than
pursuant to Section 12 hereof, or a reduction in the payments and benefits
specified in Section 12 below zero.

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    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.

            	
              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 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.

            


    

    


    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.

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    20.           No Plan
Created by this Agreement.  Executive, the
Company and the Bank expressly declare and agree that this Agreement was
negotiated among them and that no provision or provisions of this Agreement are
intended to, or shall be deemed to, create any plan for purposes of the Employee
Retirement Income Security Act or any other law or regulation, and each party
expressly waives any right to assert the contrary.  Any assertion in
any judicial or administrative filing, hearing, or process that such a plan was
so created by this Agreement shall be deemed a material breach of this Agreement
by the party making such an assertion.

    


    21.           Amendments.  No amendments or
additions to this Agreement shall be binding unless made in writing and signed
by all of the parties, except as herein otherwise specifically
provided.

    


    22.           Applicable
Law.  Except to the
extent preempted by federal law, the laws of the Commonwealth of Pennsylvania
shall govern this Agreement in all respects, whether as to its validity,
construction, capacity, performance or otherwise.

    


    23.           Severability.  The provisions of
this Agreement shall be deemed severable and the invalidity or unenforceability
of any provision shall not affect the validity or enforceability of the other
provisions hereof.

    


    24.           Headings.  Headings
contained herein are for convenience of reference only.

    


    25.           Entire
Agreement.  This Agreement,
together with any understanding or modifications thereof as agreed to in writing
by the parties, shall constitute the entire agreement among the parties hereto
with respect to the subject matter hereof, other than written agreements with
respect to specific plans, programs or arrangements described in Sections 5 and
6.

    


    26.           Arbitration.  Any dispute or
controversy arising under or in connection with this Agreement shall be settled
exclusively by arbitration, conducted before a panel of three arbitrators
sitting in Philadelphia, Pennsylvania, in accordance with the rules of the
American Arbitration Association then in effect.  Judgment may be
entered on the arbitrator’s award in any court having jurisdiction; provided,
however, that Executive shall be entitled to seek specific performance of 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 26 are in conflict with the terms of
this Agreement, this Section 27 shall prevail.

    


    
      	
                    
      a.   

            	
              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.

            


    

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

    
      	
                 
      b.

            	
              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.

            


    

    


    
      	
                 
      c.

            	
              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.

            


    

    


    
      	
                 
      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 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.

            


    

    


    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

     

    IN WITNESS WHEREOF, the
parties hereto have executed this amended and restated Agreement effective March
17, 2009.

    


    
      
        
          
            
              
                
                  
                    	
                            ATTEST:

                          	 
      	
                            BENEFICIAL
      MUTUAL BANCORP, INC.

                          	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	/s/
      Thomas M. Topley	 
      	
                            By:

                          	/s/
      Frank A. Farnesi	 
      
	
                            Corporate
      Secretary

                          	 
      	 
      	
                            For
      the Entire Board of Directors

                          	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                            ATTEST:

                          	 
      	
                            BENEFICIAL
      MUTUAL SAVINGS BANK

                          	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	/s/
      Thomas M. Topley	 
      	
                            By:

                          	/s/
      Frank A. Farnesi	 
      
	
                            Corporate
      Secretary

                          	 
      	 
      	
                            For
      the Entire Board of Directors

                          	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                            WITNESS:

                          	 
      	
                            EXECUTIVE

                          	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	/s/
      Lisa Smalley	 
      	
                            By:

                          	/s/
      Andrew J. Miller	 
      
	 
      	 
      	 
      	
                            Andrew
      J. Miller

                          	 
      


                  

                

              

            

          

        

      

    

     

     

     

    15