1
Exhibit 10.12
AGREEMENT
AGREEMENT, dated this 26th day of May 1999, between First Keystone
Federal Savings Bank (the "Savings Bank"), a federally chartered savings bank,
and Donald S. Guthrie (the "Executive").
WITNESSETH
WHEREAS, the Executive is presently an officer of First Keystone
Financial, Inc. (the "Corporation") and the Savings Bank (together, the
"Employers");
WHEREAS, the Employers desire to be ensured of the Executive's
continued active participation in the business of the Employers;
WHEREAS, the Employers currently have an agreement with the Executive
dated January 25, 1995, which is being amended and superseded by this Agreement,
and in accordance with the provisions of Office of Thrift Supervision ("OTS")
Regulatory Bulletin 27a, the Corporation and the Savings Bank desire to enter
into separate agreements with the Executive with respect to his employment by
each of the Employers; and
WHEREAS, in order to induce the Executive to remain in the employ of
the Employers and in consideration of the Executive's agreeing to remain in the
employ of the Employers, the parties desire to specify the severance benefits
which shall be due the Executive by the Savings Bank in the event that his
employment with the Savings Bank is terminated under specified circumstances.
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereby agree as follows:
1. DEFINITIONS. The following words and terms shall have the meanings
set forth below for the purposes of this Agreement:
(a) AVERAGE ANNUAL COMPENSATION. The Executive's "Average Annual
Compensation" for purposes of this Agreement shall be deemed to mean the average
level of compensation paid to the Executive by the Employers or any subsidiary
thereof during the most recent five taxable years preceding the Date of
Termination, including Base Salary and benefits and bonuses under any employee
benefit plans of the Employers.
(b) BASE SALARY. "Base Salary" shall have the meaning set forth in
Section 3(a) hereof.
(c) CAUSE. Termination of the Executive's employment for "Cause" shall
mean termination because of personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any
2
law, rule or regulation (other than traffic violations or similar offenses) or
final cease-and-desist order or material breach of any provision of this
Agreement.
(d) 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 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 the Corporation is registered
under the Exchange Act; provided that, without limitation, such a change in
control shall be deemed to have occurred if (i) any "person" (as such term is
used in Sections 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 25% or more of the
combined voting power of the Corporation's then outstanding securities; or (ii)
during any period of two 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 the 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.
(e) CODE. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) DATE OF TERMINATION. "Date of Termination" shall mean (i) if the
Executive's employment is terminated for Cause or for Disability, the date
specified in the Notice of Termination, and (ii) if the Executive's employment
is terminated for any other reason, the date on which a Notice of Termination is
given or as specified in such Notice.
(g) DISABILITY. Termination by the Savings Bank of the Executive's
employment based on "Disability" shall mean termination because of any physical
or mental impairment which qualifies the Executive for disability benefits under
the applicable long-term disability plan maintained by the Employers or any
subsidiary or, if no such plan applies, which would qualify the Executive for
disability benefits under the Federal Social Security System.
(h) GOOD REASON. Termination by the Executive of the Executive's
employment for "Good Reason" shall mean termination by the Executive following a
Change in Control of the Corporation based on:
(i) Without the Executive's express written consent, a
reduction by the Employers in the Executive's Base
Salary as the same may be increased from time to time
or, except to the extent permitted by Section 3(b)
hereof, a reduction in the package of fringe benefits
provided to the Executive, taken as a whole;
(ii) The principal executive office of the Employers is
relocated outside of the Media, Pennsylvania, area
or, without the Executive's express written
2
3
consent, the Employers require the Executive to be
based anywhere other than an area in which the
Employers' principal executive office is located,
except for required travel on business of the
Employers to an extent substantially consistent with
the Executive's present business travel obligations;
(iii) Any purported termination of the Executive's
employment for Cause, Disability or Retirement which
is not effected pursuant to a Notice of Termination
satisfying the requirements of paragraph (j) below;
or
(iv) The failure by the Savings Bank to obtain the
assumption of and agreement to perform this Agreement
by any successor as contemplated in Section 9 hereof.
(i) IRS. IRS shall mean the Internal Revenue Service.
(j) NOTICE OF TERMINATION. Any purported termination of the Executive's
employment by the Savings Bank for any reason, including without limitation for
Cause, Disability or Retirement, or by the Executive for any reason, including
without limitation for Good Reason, shall be communicated by written "Notice of
Termination" to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so indicated, (iii)
specifies a Date of Termination, which shall be not less than thirty (30) nor
more than ninety (90) days after such Notice of Termination is given, except in
the case of the Savings Bank's termination of Executive's employment for Cause;
and (iv) is given in the manner specified in Section 10 hereof.
(k) RETIREMENT. Termination by the Savings Bank of the Executive's
employment based on "Retirement" shall mean voluntary termination by the
Executive in accordance with the Employers' retirement policies, including early
retirement, generally applicable to their salaried employees.
2. TERM OF EMPLOYMENT.
(a) The Savings Bank hereby employs the Executive as President and
Chief Executive Officer of the Savings Bank and Executive hereby accepts said
employment and agrees to render such services to the Savings Bank on the terms
and conditions set forth in this Agreement. The term of employment under this
Agreement shall be for three years, commencing on the date of this Agreement
and, subject to the requirements of the succeeding sentence, shall be deemed
automatically, without further action, to extend for an additional year on each
annual anniversary of the date of this Agreement. Prior to the anniversary of
the date of this Agreement and each annual anniversary thereafter, the Board of
Directors of the Savings Bank shall consider and review (with
3
4
appropriate corporate documentation thereof, and after taking into account all
relevant factors, including the Executive's performance hereunder) extension of
the term under this Agreement, and the term shall continue to extend in the
manner set forth above unless either the Board of Directors does not approve
such extension and provides written notice to the Executive of such event or the
Executive gives written notice to the Savings Bank of the Executive's election
not to extend the term, in each case with such written notice to be given not
less than thirty (30) days prior to any such anniversary date. References herein
to the term of this Agreement shall refer both to the initial term and
successive terms.
(b) During the term of this Agreement, the Executive shall perform such
executive services for the Savings Bank as may be consistent with his titles and
from time to time assigned to him by the Savings Bank's Board of Directors.
3. COMPENSATION AND BENEFITS.
(a) The Employers shall compensate and pay Executive for his services
during the term of this Agreement at a minimum base salary of $180,000 per year
("Base Salary"), which may be increased from time to time in such amounts as may
be determined by the Boards of Directors of the Employers and may not be
decreased without the Executive's express written consent. In addition to his
Base Salary, the Executive shall be entitled to receive during the term of this
Agreement such bonus payments as may be determined by the Boards of Directors of
the Employers.
(b) During the term of the Agreement, Executive shall be entitled to
participate in and receive the benefits of any pension or other retirement
benefit plan, profit sharing, stock option, employee stock ownership, or other
plans, benefits and privileges given to employees and executives of the
Employers, to the extent commensurate with his then duties and responsibilities,
as fixed by the Boards of Directors of the Employers. The Savings Bank shall not
make any changes in such plans, benefits or privileges which would adversely
affect Executive's rights or benefits thereunder, unless such change occurs
pursuant to a program applicable to all executive officers of the Savings Bank
and does not result in a proportionately greater adverse change in the rights of
or benefits to Executive as compared with any other executive officer of the
Savings Bank. Nothing paid to Executive under any plan or arrangement presently
in effect or made available in the future shall be deemed to be in lieu of the
salary payable to Executive pursuant to Section 3(a) hereof.
(c) During the term of this Agreement, the Executive shall be entitled
to not less than six weeks paid annual vacation. The Executive shall be entitled
to receive any additional compensation from the Employers for failure to take a
vacation and shall be able to accumulate unused vacation time from one year to
the next.
(d) During the term of this Agreement, including any renewal thereof,
the Employers shall provide the Executive with a full-sized, four-door
automobile for the Executive's use, which automobile shall be replaced during
the term hereof and any renewal thereof no less frequently than every three
years.
4
5
(e) The Employers shall provide medical insurance for the benefit of the
Executive and his spouse until the Executive shall have attained the age of 69;
furthermore, in the event of the death of the Executive prior to attaining age
69, the Employers shall provide the Executive's spouse with said medical
insurance until such spouse is eligible for state or federal government
subsidized medical benefits, but in no event shall such spouse be entitled to
said medical insurance after attaining age 69.
(f) The Employers shall pay for or reimburse Executive with respect to
expenses incurred thereby in obtaining dental care for Executive and his spouse
up to a maximum of $2,500 per person per year, which amount may be increased
from time to time as may be determined by the Boards of Directors of the
Employers.
(g) During the term of this Agreement, the Employers will pay the
Executive's annual membership dues at the Spring Haven Country Club or such
other club of his choice in an amount up to $7,500 per year, subject to increase
from time to time as may be determined by the Boards of Directors of the
Employers.
(h) In the event of the Executive's death during the term of this
Agreement, his spouse, estate, legal representative or named beneficiaries (as
directed by the Executive in writing) shall be paid on a monthly basis the
Executive's annual compensation from the Employers at the rate in effect at the
time of the Executive's death for a period equal to the period then remaining
under this Agreement.
(i) The Executive's compensation, benefits and expenses shall be paid by
the Corporation and the Savings Bank in the same proportion as the time and
services actually expended by the Executive on behalf of each respective
Employer.
4. EXPENSES. The Employers shall reimburse Executive or otherwise
provide for or pay for all reasonable expenses incurred by Executive in
furtherance of, or in connection with the business of the Employers, including,
but not by way of limitation, automobile (including costs of leasing, insurance,
repairs, maintenance, and licensing) and traveling expenses, and all reasonable
entertainment expenses (whether incurred at the Executive's residence, while
traveling or otherwise), subject to such reasonable documentation and other
limitations as may be established by the Boards of Directors of the Employers.
If such expenses are paid in the first instance by Executive, the Employers
shall reimburse the Executive therefor.
5. TERMINATION.
(a) The Savings Bank shall have the right, at any time upon prior Notice
of Termination, to terminate the Executive's employment hereunder for any
reason, including without limitation termination for Cause or Retirement, and
Executive shall have the right, upon prior Notice of Termination, to terminate
his employment hereunder for any reason.
5
6
(b) In the event that (i) Executive's employment is terminated by the
Savings Bank for Cause or Retirement or in the event of the Executive's death,
or (ii) Executive terminates his employment hereunder other than for Good
Reason, Executive shall have no right pursuant to this Agreement to compensation
or other benefits for any period after the applicable Date of Termination except
as otherwise provided herein.
(c) In the event that (i) Executive's employment is terminated
(including termination due to Disability) by the Savings Bank for other than
Cause, Retirement or the Executive's death or (ii) such employment is terminated
by the Executive (a) due to a material breach of this Agreement by the Savings
Bank, which breach has not been cured within fifteen (15) days after a written
notice of non-compliance has been given by the Executive to the Savings Bank, or
(b) for Good Reason, then the Savings Bank shall, subject to the provisions of
Section 6 hereof, if applicable
(A) pay to the Executive, in thirty-six (36) equal monthly
installments beginning with the first business day of the month
following the Date of Termination, a cash severance amount equal to
three (3) times the Executive's Base Salary, and
(B) maintain and provide for a period ending at the earlier of
(i) the expiration of the remaining term of employment pursuant hereto
prior to the Notice of Termination or (ii) the date of the Executive's
full-time employment by another employers (provided that the Executive
is entitled under the terms of such employment to benefits substantially
similar to those described in this subparagraph (B)), at no cost to the
Executive, the Executive's continued participation in all group
insurance, life insurance, health and accident, disability and other
employee benefit plans, programs and arrangements in which the Executive
was entitled to participate immediately prior to the Date of Termination
(other than stock option and restricted stock plans of the Employers),
provided that in the event that the Executive's participation in any
plan, program or arrangement as provided in this subparagraph (B) is
barred, or during such period any such plan, program or arrangement is
discontinued or the benefits thereunder are materially reduced, the
Savings Bank shall arrange to provide the Executive with benefits
substantially similar to those which the Executive was entitled to
receive under such plans, programs and arrangements immediately prior to
the Date of Termination.
(d) In the event of the failure by the Employers to elect or to re-elect
or to appoint or to re-appoint the Executive to the offices of President and
Chief Executive Officer of the Corporation and the Savings Bank or a material
adverse change made by the Employers in the Executive's functions, duties or
responsibilities as President and Chief Executive Officer of the Corporation and
the Savings Bank without the Executive's express written consent, the Executive
shall be entitled to terminate his employment hereunder and shall be entitled to
the payments and benefits provided for in Section 5(c)(A) and (B); however, such
termination shall not otherwise constitute a material breach of this Agreement
by the Savings Bank.
6
7
6. LIMITATION OF BENEFITS UNDER CERTAIN CIRCUMSTANCES. If the payments
and benefits pursuant to Section 5 hereof, either alone or together with other
payments and benefits which Executive has the right to receive from the Savings
Bank, would constitute a "parachute payment" under Section 280G of the Code, the
payments and benefits pursuant to Section 5 hereof shall be reduced, in the
manner determined by the Executive, by the amount, if any, which is the minimum
necessary to result in no portion of the payments and benefits under Section 5
being non-deductible to the Savings Bank pursuant to Section 280G of the Code
and subject to the excise tax imposed under Section 4999 of the Code. The
parties hereto agree that the payments and benefits payable pursuant to this
Agreement to the Executive upon termination shall be limited to three times the
Executive's Average Annual Compensation in accordance with the provisions of OTS
Regulatory Bulletin 27a. The determination of any reduction in the payments and
benefits to be made pursuant to Section 5 shall be based upon the opinion of
independent tax counsel selected by the Savings Bank's independent public
accountants and paid by the Savings Bank. Such counsel shall be reasonably
acceptable to the Savings Bank and the Executive; shall promptly prepare the
foregoing opinion, but in no event later than thirty (30) days from the Date of
Termination; and may use such actuaries as such counsel deems necessary or
advisable for the purpose. In the event that the Savings Bank and/or the
Executive do not agree with the opinion of such counsel, (i) the Savings Bank
shall pay to the Executive the maximum amount of payments and benefits pursuant
to Section 5, as selected by the Executive, which such opinion indicates that
there is a high probability do not result in any of such payments and benefits
being non-deductible to the Savings Bank and subject to the imposition of the
excise tax imposed under Section 4999 of the Code and (ii) the Savings Bank may
request, and Executive shall have the right to demand that the Savings Bank
request, a ruling from the IRS as to whether the disputed payments and benefits
pursuant to Section 5 hereof have such consequences. Any such request for a
ruling from the IRS shall be promptly prepared and filed by the Savings 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 Savings 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 the Executive may be entitled upon termination of employment under any
circumstances other than as specified in this Section 6, or a reduction in the
payments and benefits specified in Section 5 below zero.
7. MITIGATION; EXCLUSIVITY OF BENEFITS.
(a) The Executive shall not be required to mitigate the amount of any
benefits hereunder by seeking other employment or otherwise, nor shall the
amount of any such benefits be reduced by any compensation earned by the
Executive as a result of employment by another employers after the Date of
Termination or otherwise.
(b) The specific arrangements referred to herein are not intended to
exclude any other benefits which may be available to the Executive upon a
termination of employment with the Employers pursuant to employee benefit plans
of the Employers or otherwise.
7
8
8. WITHHOLDING. All payments required to be made by the Savings Bank
hereunder to the Executive shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Savings Bank may
reasonably determine should be withheld pursuant to any applicable law or
regulation.
9. ASSIGNABILITY. The Savings Bank may assign this Agreement and its
rights and obligations hereunder in whole, but not in part, to any corporation,
bank or other entity with or into which the Savings Bank may hereafter merge or
consolidate or to which the Savings Bank may transfer all or substantially all
of its assets, if in any such case said corporation, bank or other entity shall
by operation of law or expressly in writing assume all obligations of the
Savings Bank hereunder as fully as if it had been originally made a party
hereto, but may not otherwise assign this Agreement or its rights and
obligations hereunder. The Executive may not assign or transfer this Agreement
or any rights or obligations hereunder.
10. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Savings Bank: Chairman of the Board
First Keystone Federal Savings Bank
22 West State Street
Media, Pennsylvania 19063
To the Executive: Donald S. Guthrie
2 General Washington Drive
Media, Pennsylvania 19063
11. AMENDMENT; WAIVER. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and such officer or officers as may be
specifically designated by the Board of Directors of the Savings Bank to sign on
its behalf. No waiver by any party hereto at any time of any breach by any other
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
12. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United States
where applicable and otherwise by the substantive laws of the Commonwealth of
Pennsylvania.
13. NATURE OF OBLIGATIONS. Nothing contained herein shall create or
require the Savings Bank to create a trust of any kind to fund any benefits
which may be payable hereunder, and to the
8
9
extent that the Executive acquires a right to receive benefits from the Savings
Bank hereunder, such right shall be no greater than the right of any unsecured
general creditor of the Savings Bank.
14. HEADINGS. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. VALIDITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. REGULATORY ACTIONS. The following provisions shall be applicable to
the parties to the extent that they are required to be included in employment
agreements between a savings association and its employees pursuant to Section
563.39(b) of the Regulations Applicable to all Savings Associations, 12 C.F.R.
Section 563.39(b), or any successor thereto, and shall be controlling in the
event of a conflict with any other provision of this Agreement, including
without limitation Section 5 hereof.
(a) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Savings Bank's affairs
pursuant to notice served under Section 8(e)(3) or Section 8(g)(1) of the
Federal Deposit Insurance Act ("FDIA")(12 U.S.C. Sections 1818(e)(3) and
1818(g)(1)), the Savings 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 Savings Bank may, in its
discretion: (i) pay Executive all or part of the compensation withheld while its
obligations under this Agreement were suspended, and (ii) reinstate (in whole or
in part) any of its obligations which were suspended.
(b) If the Executive is removed from office and/or permanently
prohibited from participating in the conduct of the Savings Bank's affairs by an
order issued under Section 8(e)(4) or Section 8(g)(1) of the FDIA (12 U.S.C.
Sections 1818(e)(4) and (g)(1)), all obligations of the Savings Bank under
this Agreement shall terminate as of the effective date of the order, but vested
rights of the Executive and the Savings Bank as of the date of termination shall
not be affected.
(c) If the Savings Bank is in default, as defined in Section 3(x)(1) of
the FDIA (12 U.S.C. Section 1813(x)(1)), all obligations under this Agreement
shall terminate as of the date of default, but vested rights of the Executive
and the Savings Bank as of the date of termination shall not be affected.
(d) All obligations under this Agreement shall be terminated pursuant to
12 C.F.R. Section 563.39(b)(5) (except to the extent that it is determined that
continuation of the Agreement for the
9
10
continued operation of the Savings Bank is necessary): (i) by the Director of
the OTS, or his/her designee, at the time the Federal Deposit Insurance
Corporation ("FDIC") enters into an agreement to provide assistance to or on
behalf of the Savings Bank under the authority contained in Section 13(c) of the
FDIA (12 U.S.C. Section 1823(c)); or (ii) by the Director of the OTS, or his/her
designee, at the time the Director or his/her designee approves a supervisory
merger to resolve problems related to operation of the Savings Bank or when the
Savings Bank is determined by the Director of the OTS to be in an unsafe or
unsound condition, but vested rights of the Executive and the Savings Bank as of
the date of termination shall not be affected.
18. REGULATORY PROHIBITION. Notwithstanding any other provision of this
Agreement to the contrary, any payments made to the Executive pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with Section 18(k) of the FDIA (12 U.S.C. Section 1828(k)) and any regulations
promulgated thereunder.
19. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the Savings Bank and the Executive with respect to the matters agreed to
herein. All prior agreements between the Savings Bank and the Executive with
respect to the matters agreed to herein, including without limitation the
Agreement between the Employers and the Executive dated January 25, 1995, are
hereby superseded and shall have no force or effect. Notwithstanding the
foregoing, nothing contained in this Agreement shall affect the agreement of
even date being entered into between the Corporation and the Executive.
10
11
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
Attest: FIRST KEYSTONE FEDERAL SAVINGS BANK
/s/ Carol Walsh By: /s/ Donald A. Purdy
- ------------------------ -------------------------------
Carol Walsh Donald A. Purdy
Chairman of the Board
Attest: EXECUTIVE
/s/ Carol Walsh By: /s/ Donald S. Guthrie
- ------------------------ -------------------------------
Carol Walsh Donald S. Guthrie, Individually
11