EXHIBIT 10.17
FIRST KEYSTONE BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
This First Keystone Bank ("Bank" or the "Employer") Supplemental Executive
Retirement Plan ("Plan") is adopted effective March 31, 2004. The purpose of
this Supplemental Executive Retirement Plan (hereinafter referred to as the
"Plan") is to provide supplemental retirement and death benefits for certain key
employees of the Bank, and any affiliated or subsidiary corporations of the Bank
designated by the Board. It is intended that the Plan will aid in retaining and
attracting employees of exceptional ability by providing them with these
benefits.
ARTICLE I - DEFINITIONS
For purposes hereof, unless otherwise clearly apparent from the context,
the following phrases and terms shall have the indicated meanings:
1.1 Beneficiary. A person or entity designated in accordance with Article
IV of this Plan to receive benefits upon the death of a Participant.
1.2 Change in Control of the Corporation. Change in Control of the
Corporation shall mean a change in control of a nature that would be required to
be reported in response to Item 1(a) of Form 8-K or Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended
("Exchange Act"), or any successor thereto, whether or not any security of the
Corporation is registered under the Exchange Act; provided that, without
limitation, such Change in Control shall be deemed to have occurred if (i) any
"person" (as such term is used in Section 13(d) and 14(d) of the Exchange Act)
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Corporation
representing 20% or more of the combined voting power of the Corporation's then
outstanding securities (provided that any of the Employer's benefit plans
(including for these purposes, benefit plans of the Corporation) are exempt from
the 20% limitation); or (ii) during any period of three consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors of the Corporation cease for any reason to constitute at least a
majority thereof unless election, or the nomination for election by
stockholders, of each new director was approved by a vote of at least two-thirds
of the directors then still in office who were directors at the beginning of the
period.
1.3 Corporation. "Corporation" means First Keystone Financial, Inc. the
parent holding company of the Bank.
1.4 Early Retirement Date. "Early Retirement Date" means the date on which
the Participant terminates employment with the Employer if it occurs after the
first day of the month coincident with or next following a Participant's
attainment of age fifty (50) and completion of twelve (12) Years of Credited
Service, but prior to his Normal Retirement Date. "Early Retirement Date" shall
also mean the date on which the Participant terminates employment with the
Employer for any reason if at the time of such termination, the sum of the
Participant's Years of Credited Service (including partial years) and age equals
at least sixty-two (62).
1.5 Employer. For purposes of this Plan, the Employer is First Keystone
Bank, a federally chartered savings bank.
1.6 ERISA. "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
1.7 Normal Retirement Date. The date on which a Participant has attained
sixty-five (65) years of age.
1.8 Participant. An employee of the Employer who is eligible to
participate in the Plan and approved by the Board of Directors of the Employer
who is a member of a select group of management or highly compensated employees
within the meaning of section 201(2) of ERISA.
1.9 Plan. This Supplemental Executive Retirement Plan as adopted by the
Employer and as may be hereafter amended.
1.10 Plan Committee. A committee of not less than three (3) members of the
Board of Directors of the Employer, which shall be comprised of the compensation
committee of the Employer.
1.11 Retirement. Retirement means a Participant's separation from
employment with the Employer at the Participant's Early Retirement Date or
Normal Retirement Date.
1.12 Year of Credited Service. Year of Credited Service means a year in
which an employee works one thousand (1,000) or more hours.
ARTICLE II - ELIGIBILITY, PARTICIPATION AND VESTING
2.1 Conditions of Eligibility. Eligibility to become a Participant in this
Plan will be determined by the Board of Directors of the Employer. Participants
will be chosen from a select group of management or highly compensated employees
within the meaning of section 201(2) of ERISA. Such determination shall be
conclusive and binding upon all persons.
2.2 Commencement of Participation. The Employer or Plan Committee shall
notify each employee of his or her eligibility to participate in this Plan.
Eligible employees shall become Participants in this Plan as of the effective
date hereof or upon becoming eligible to participate in this Plan, as the case
may be. Each employee who becomes a Participant in this Plan shall complete such
form(s) as are reasonably required by the Plan Committee for Plan participation.
Such form(s) shall include, but not be limited to, information related to the
Participant's Account distribution method, death benefit distribution method and
Beneficiary designation. Participant shall submit such form(s) to the Plan
Committee within thirty (30) days of the date on which the Plan is adopted or
the date on which an Employee is first eligible to participate within the Plan.
2.3 Additional Compensation. A Participant shall receive the benefits
provided for herein in addition to any compensation paid to or benefits provided
to the Participant by the Bank or the Corporation. Except as otherwise provided
herein, nothing in this Plan shall be construed as limiting, varying or reducing
any provision or benefit to a Participant, a Participant's estate or
Beneficiaries pursuant to any employment agreement, any retirement plan,
including any qualified pension or profit sharing plan, any health, disability
or life insurance policies or any other agreement between the Employer and the
Participant.
2.4 Vesting. Upon attainment of Participant's Early Retirement Date or
Normal Retirement Date, such Participant shall be one hundred percent (100%)
vested in his Early Retirement Benefit or Normal Retirement Benefit, as
applicable. Notwithstanding anything to the contrary, any amounts credited to a
Participant's Account that are not vested at the time of his or her termination
of employment with the Employer shall be forfeited and returned to the Employer.
ARTICLE III - RETIREMENT BENEFITS
3.1 Account Establishment. The Administrator shall establish and maintain
a bookkeeping account in the name of each Participant. Participant's Account
shall be credited with an Employer contribution(s), if any, on a calendar year
basis, as provided for below, and a per annum interest rate as determined by the
Plan Committee annually. For the initial Plan year the rate shall be five
percent (5.0%). Such rate shall remain in effect in the event the Plan Committee
fails to elect a subsequent rate for any successive Plan year. The Employer
shall notify each Participant within 60 days of their initial plan participation
or within 60 days after the calendar year of each Participant's account
balances, amounts credited to the account and crediting rate. Each Participant's
Account shall be reduced by any completed distributions, any federal, state
and/or local tax withholding and any social security withholding tax as may be
required by law.
3.2 Employer Contribution. The Employer may make an Employer Contribution
to the Account(s) of some or all Employer designated Participants. The Plan
Committee, in collaboration with the Employer, will authorize and facilitate the
periodic crediting to a Participant's Account of an Employer Contribution and
aforementioned annual interest rate, as applicable. Such crediting may fluctuate
in both amount and frequency as determined to be appropriate by the Plan
Committee and Bank.
3.3 Retirement Benefit. If a Participant retires from full-time employment
with the Employer after the Normal Retirement Date or avails himself or herself
of the Early Retirement Date option, the Employer shall pay to the Participant
an annual retirement benefit, determined pursuant to Paragraph 3.4 hereof and
payable pursuant to the provisions of Paragraph 3.5 hereof.
3.4 Determination of Normal Retirement Benefit or Early Retirement
Benefit.
a) A Participant's Normal Retirement Benefit shall be an amount
determined as of such Participant's Normal Retirement Date,
representing the Participant's Account balance; or
b) A Participant's Early Retirement Benefit shall be an amount
determined as of such Participant's Early Retirement Date,
representing the Participant's Account balance.
3.5 Payment of Normal Retirement Benefit and Early Retirement Benefit.
a) Subject to Participant's single lump sum distribution election,
as provided for herein below, the Normal Retirement Benefit or Early Retirement
Benefit, as applicable, payable to a Participant upon such Participant's
retirement from full time employment with Employer, shall be payable in the form
of substantially equal annual payments ("Annual Payments") for a time period not
to exceed fifteen (15) consecutive years beginning with the first day of the
first full calendar month following such retirement.
b) The Normal Retirement Benefit or Early Retirement Benefit
distribution, as applicable, pursuant to this section shall be facilitated in
the following manner: the amount of the substantially equal payments described
above shall be determined by multiplying the Participant's Retirement Account by
a fraction, the denominator of which in the first year of payment equals the
number of years over which benefits are to be paid, and the numerator of which
is one (1).
c) The amounts of the payments for each succeeding year shall be
determined by multiplying the Participant's Retirement Account as of the
applicable anniversary of the Participant's Retirement Date by a fraction, the
denominator of which equals the number of remaining years over which benefits
are to be paid, and the numerator of which is one (1). Annual interest crediting
to the Participant's account shall continue to be credited to Participant's
Account during the Participant's continuation of an Account balance.
d) Notwithstanding anything to the contrary or a prior election of a
Participant, Participant may elect to receive their Normal Retirement Benefit or
Early Retirement Benefit, as applicable, in a single lump sum distribution as
soon as administratively feasible following the Participant's Retirement through
the submission of such election to the Plan Committee at least one (1) full
calendar year prior to the Participant's Normal Retirement Date or Early
Retirement Date.
3.6 Change in Control Benefit. Upon Participant's cessation from full-time
employment with the Employer within two (2) years after the occurrence of a
Change in Control of the Corporation and prior to attaining Normal Retirement
Date, Employer will pay to Participant an amount equal to five (5) times the
Participant's base salary as of the date of cessation of employment, as
determined by the Employer, minus, dollar for dollar, the Participant's Account
balance as of the effective date of a Change in Control of the Corporation.
Payment of benefits under this paragraph shall be made in a single lump sum
payment within five (5) days of Participant's cessation of employment.
ARTICLE IV-DEATH BENEFITS
4.1 Participant's Death Following Early or Normal Retirement. If a
Participant dies following Retirement from full-time employment with the
Employer, but prior to the receipt of their final Annual Payment (not to exceed
fifteen (15) Annual Payments), the Employer shall pay to the Beneficiary or
Beneficiaries designated in writing by such Participant (or to the Participant's
estate if the Participant fails to so designate a Beneficiary or Beneficiaries)
the remaining retirement benefit Annual Payments until the Participant and such
Beneficiary or Beneficiaries or estate have received all remaining Annual
Payments (not to exceed fifteen (15) Annual Payments).
4.2 Participant's Death Prior to Early or Normal Retirement. If a
Participant dies after the Early or Normal Retirement Date but prior to
retirement from full-time employment with the Employer, the Employer shall pay
to the Beneficiary or Beneficiaries designated in writing by such Participant
(or to the Participant's estate if the Participant fails to so designate a
Beneficiary or Beneficiaries) an amount equal to seven (7) times the
Participant's base salary, as determined by the Employer, minus, dollar for
dollar, the Participant's Account balance as of the date of Participant's death.
This pre-retirement death benefit shall be payable in a single lump sum
distribution to the Participant's Beneficiary or Beneficiaries (or to the
Participant's estate if the Participant fails to so designated a Beneficiary or
Beneficiaries) as soon as administratively feasible following Participant's
death.
4.3 Death of Beneficiary. In the event of death of a Beneficiary who is
receiving an Early or Normal Retirement Benefit in installments pursuant to
Paragraph 4.1 or lump sum distribution pursuant to Paragraph 4.2, such benefit
to which such Beneficiary was entitled at the time of such Beneficiary's death
shall continue to be payable to the Beneficiary or Beneficiaries, designated in
writing by such Beneficiary, on a form to be submitted by such Beneficiary to
the Plan Committee (or to the Beneficiary's estate if the Beneficiary fails to
so designate a beneficiary or beneficiaries).
ARTICLE V - BENEFICIARIES
5.1 Beneficiary Designations. A Participant shall designate a beneficiary
by filing a written designation with the Plan Committee. A Participant may
revoke or modify his or her Beneficiary designation at any time by filing a new
designation. However, designations will only be effective if signed by the
Participant and received by the Plan Committee during the Participant's
lifetime. The Participant's Beneficiary designation shall be deemed
automatically revoked if the beneficiary predeceases the Participant, or if the
Participant names a spouse as Beneficiary and the marriage is subsequently
dissolved. If the Participant dies without a valid Beneficiary designation, all
payments shall be made to the Participant's estate.
5.2 Facility of Payment. If a benefit is payable to a minor, to a person
declared incompetent, or to a person incapable of handling the disposition of
his or her property, the Bank may pay such benefit to the guardian, legal
representative or person having the care or custody of such minor, incompetent
person or incapable person. The Bank may require proof of incompetence, minority
or guardianship as it may deem appropriate prior to the distribution of the
benefit. Such distribution shall completely discharge the Bank form all
liability with respect to such benefit.
ARTICLE VI - GENERAL LIMITATIONS
All benefits payable under this Plan shall be subject to the following
limitations:
6.1 Termination for Cause. Notwithstanding any provision of this Plan to
the contrary, the Bank shall not pay any benefit under this Plan, if the Bank
terminates a Participant's employment for cause. Termination of a Participant's
employment for "Cause" shall mean termination because of personal dishonesty by
the Participant in the performance of his duties which results in demonstrable
material injury to the Bank, willful misconduct by the Participant which remains
uncured 15 days following the giving of written notice thereof to the
Participant, breach by the Participant of a fiduciary duty to the Bank involving
personal profit, intentional failure to perform stated duties following the
giving of written notice thereof to the Participant, willful violation of any
law, rule or regulation (other than traffic violations or similar offences) or
final cease-and-desist order or material breach of any provision of the Plan.
For purposes of this paragraph, no act or failure to act on the Participant's
part shall be considered "willful" unless done, or omitted to be done, by the
Participant not in good faith and without reasonable belief that the
Participant's action or omission was in the best interest of the Bank.
6.2 Removal. Notwithstanding any provision of this Plan to the contrary,
the Bank shall not pay any benefit under this Plan if the Participant is subject
to a final removal or prohibition order issued by an appropriate federal banking
agency pursuant to Section 8(e) of the Federal Deposit Insurance Act ("FDIA").
ARTICLE VII - PLAN ADMINISTRATION
7.1 Plan Committee. This Plan and all matters relating hereto shall be
administered by the Plan Committee. The Plan Committee will interpret the
provisions of this Plan and shall determine all questions arising in the
administration, eligibility, interpretation and application of this Plan. Any
such determination by the Plan Committee shall be conclusive and binding on all
persons and shall be consistently and uniformly applied to all persons similarly
situated. The Plan Committee shall engage the services of such independent
actuaries and administrative personnel as it deems appropriate to administer the
Plan.
7.2 Claim. Any person claiming a benefit, requesting an interpretation or
ruling under this Plan, or requesting information under the Plan shall present
the request, in writing, to the Plan Committee which shall respond in writing as
soon as practicable.
7.3 Denial of Claim. If the claim or request is denied, the written notice
of denial shall state the reason for denial, with specific reference to the Plan
provisions on which the denial is based, the claimant's rights, if any under
applicable provisions of ERISA and a description of any additional material or
information required.
7.4 Review of Claim. Any person whose claim or request is denied or has
not received a response within 90 days may (within 60 days thereafter) request
review by notice given in writing to the Plan Committee. Such request for review
must state the specific reasons, including any Plan provisions, upon which said
request for review is based. The claim or request shall be reviewed by the Plan
Committee.
7.5 Final Decision. The decision on review shall normally be made within
60 days. If an extension of time is required, the claimant shall be notified and
the time limit shall be 120 days. The decision shall be in writing and shall
state the reason and the relevant Plan provisions. All decisions on review shall
be final and bind all parties concerned subject to the applicable provisions of
ERISA.
ARTICLE VIII - PARTICIPANT RIGHTS
8.1 Participants Rights. The rights of a Participant or a Participant's
Beneficiaries to benefits under this Plan shall be solely those of an unsecured
creditor of the Employer. Any insurance policy or other asset acquired or held
by, or on behalf of, the Employer or funds allocated by the Employer in
connection with the liabilities assumed by the Employer pursuant to the Plan
shall not be deemed to be held under any trust for the benefit of a Participant
or Participant's Beneficiaries or to be security for the performance of the
Employer's obligations pursuant hereto, but shall be and remain a general asset
of the Employer.
8.2 Spendthrift Provision. Neither a Participant nor any other person
shall have any right to commute, sell, assign, transfer, pledge, anticipate,
mortgage or otherwise encumber, transfer, hypothecate or convey in advance of
actual receipt the amounts, if any, payable hereunder, or any part thereof,
which are, and all rights to which are, expressly declared to be non-assignable
and non-transferable. No part of the amounts payable shall, prior to actual
payments, be subject to seizure or sequestration for the payment of any debts,
judgments, alimony or separate maintenance owed by a Participant or any other
person, nor by transferable by operation of law in the event of a Participant's
or any other person's bankruptcy or insolvency.
8.3 Plan Not An Employment Agreement. This Plan shall not be deemed to
constitute an employment agreement between the parties hereto nor shall any
provision hereof restrict the right of the Employer to discharge a Participant
as an employee of the Employer or restrict a Participant's right to terminate
his employment.
8.4 Protective Provisions. A Participant will cooperate with the Employer
by furnishing any and all information requested by the Employer in order to
facilitate the payment of benefits hereunder, taking such physical examinations
as the Employer may deem necessary and taking such other action as may be
requested by the Employer. If a Participant makes any material misstatement of
information or nondisclosure of medical history, then a Participant shall not be
considered as having been a Participant in the Plan.
ARTICLE IX - MISCELLANEOUS
9.1 Termination of Plan The Employer, upon written notice to a
Participant, shall have the right, at any time, to terminate this Plan. Such
termination shall become effective when authorized by the Board of Directors of
the Employer and written notice given to a Participant. Upon termination of this
Plan, those Participants that are fully vested and entitled to or are receiving
Normal Retirement Benefits or Early Retirement Benefits pursuant to the
provisions of Article III and those Beneficiaries receiving benefits pursuant to
the provisions of Article IV shall continue to receive such benefits in
accordance with this Plan. The Participants who are not then vested or receiving
Normal Retirement Benefits or Early Retirement Benefits will be entitled to no
benefits pursuant to this Plan other than their Account balance as calculated on
the effective date of the Plan termination.
9.2 Inurement. This Plan shall be binding upon and shall inure to the
benefit of the Employer and each Participant hereunder and their respective
heirs, executors, administrators, successors and assigns.
9.3 Amendments and Modifications. This Plan may be changed or altered by
written instrument signed by the Employer and shall become effective upon
written notification to the Participants.
9.4 Governing Law. This Plan is made pursuant to, and shall be governed
by, the laws of the Commonwealth of Pennsylvania, in all respects, including
matters of construction, validity and performance.
9.5 Notice. Any notice, consent or demand required or permitted to be
given under the provisions of this Plan by one party to another shall be in
writing, shall be signed by the party giving or making the same, and may be
given either by delivering the same to such other party personally, or by
mailing the same, by United States certified mail, postage prepaid, to such
party, addressed to his or her last known address as shown on the records of the
Bank. The date of such mailing shall be deemed the date of such mailed notice,
consent or demand.
9.6 Reorganization. The Bank shall not merge or consolidate into or with
another company, or reorganize, or sell substantially all of its assets to
another company, firm, or person unless such succeeding or continuing company,
firm or person agrees to assume and discharge the obligations of the Bank under
this Plan. Upon the occurrence of such event, the term "Bank" or "Employer" as
used in this Plan shall be deemed to refer to the successor or survivor company.
9.7 Tax Withholding. The Bank shall withhold any taxes that are required
to be withheld from the benefits provided under this Plan.
IN WITNESS WHEREOF, the Employer has adopted this Supplemental Executive
Retirement Plan the day and year first written.
First Keystone Bank
By:_______________________________