Exhibit 10.1
FIRST KEYSTONE BANK
AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
THIS AMENDED AND RESTATED FIRST KEYSTONE BANK (the
"Bank" or the "Employer") SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN was originally effective as of March 31, 2004 (the
"Prior Plan") and is hereby amended and restated as of June
27, 2007.
The purpose of this Amended and Restated 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. This Plan as amended
and restated shall be effective as of June 27, 2007.
The Plan is intended to be an unfunded plan qualifying
as a "top hat" plan for purposes of Title I of the Employee
Retirement Income Security Act of 1974, as amended
("ERISA"), and for purposes of the Internal Revenue Code of
1986, as amended (the "Code"). The Plan is being amended
and restated in order to comply with the requirements of
Section 409A of the Code and the final regulations issued by
the Internal Revenue Service. No benefits payable under
this Plan shall be deemed to be grandfathered for purposes
of Section 409A of the Code.
ARTICLE I - DEFINITIONS
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For purposes hereof, unless otherwise clearly apparent
from the context, the following phrases and terms shall have
the indicated meanings:
1.1 Account. "Account" shall have the meaning set
forth in Section 3.1 hereof.
1.2 Beneficiary. "Beneficiary" means a person or
entity designated in accordance with Article VI of this Plan
to receive benefits upon the death of a Participant.
1.3 Change in Control. "Change in Control" shall mean
a change in the ownership of the Corporation, a change in
the effective control of the Corporation or a change in the
ownership of a substantial portion of the assets of the
Corporation, in each case as provided under Section 409A of
the Code and the regulations thereunder.
1.4 Corporation. "Corporation" means First Keystone
Financial, Inc., the parent holding company of the Bank.
1.5 Early Retirement Benefit. "Early Retirement
Benefit" shall have the meaning set forth in Section 3.4(b).
1.6 Early Retirement Date. "Early Retirement Date"
means the date on which the Participant has a Separation
from Service from the Employer on or after the Participant's
Early Retirement Eligibility Date but prior to the
Participant's Normal Retirement Date.
1.7 Early Retirement Eligibility Date. "Early
Retirement Eligibility Date" means the first day of the
month coincident with or next following the earlier of (a) a
Participant's attainment of age fifty (50) and completion of
twelve (12) Years of Credited Service, or (b) the date that
the sum of the Participant's Years of Credited Service
(including partial years) and age equals at least sixty-two
(62).
1.8 Employer. "Employer" means First Keystone Bank, a
federally chartered savings bank.
1.9 ERISA. "ERISA" means the Employee Retirement
Income Security Act of 1974, as amended.
1.10 Normal Retirement Benefit. "Normal Retirement
Benefit" shall have the meaning set forth in Section 3.4(a).
1.11 Normal Retirement Date. "Normal Retirement Date"
means the first day on which a Participant has attained
sixty-five (65) years of age.
1.12 Participant. "Participant" means any employee of
the Employer who is eligible to participate in the Plan and
approved by the Board of Directors of the Employer. Only
employees who are a member of a select group of management
or a highly compensated employee within the meaning of
Section 201(2) of ERISA are eligible to participate in the
Plan.
1.13 Plan. "Plan" means this Amended and Restated
Supplemental Executive Retirement Plan as adopted by the
Employer and as may be hereafter amended.
1.14 Plan Committee. "Plan Committee" means the
Compensation Committee of the Board of Directors of the
Employer.
1.15 Retirement. "Retirement" means a Participant's
Separation from Service from the Employer on or after the
Participant's Early Retirement Eligibility Date or Normal
Retirement Date.
1.16 Retirement Date. "Retirement Date" shall mean the
date that a Participant has a Separation from Service that
qualifies as a Retirement.
1.17 Separation from Service. "Separation from
Service" means a separation from service within the meaning
of Section 409A of the Code and the regulations thereunder.
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1.18 Specified Employee. "Specified Employee" shall
have the meaning set forth in Treasury Regulation Section
1.409A-1(i) or any successor thereto, with the Specified
Employee identification date being December 31st of each year.
1.19 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 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 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 of the Prior Plan 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. A Participant shall submit such
form(s) to the Plan Committee within thirty (30) days of the
date on which the affected employee is first eligible to
participate in 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 the Participant's
Early Retirement Eligibility Date or Normal Retirement Date,
such Participant shall be one hundred percent (100%) vested
in his or her 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.
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ARTICLE III - RETIREMENT BENEFITS
3.1 Account Establishment. The Administrator shall
establish and maintain a bookkeeping account in the name of
each Participant (the "Account"). Each Participant's
Account shall be utilized solely as a device for the
measurement and determination of the benefits, if any,
payable to a Participant under this Plan. Each
Participant's Account shall be credited with Employer
Contribution(s) 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. Each
Participant's Account shall be reduced by any completed
distributions related to such Participant.
3.2 Employer Contribution. The Employer may make an
Employer Contribution to the Account(s) of some or all
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 the Bank.
3.3 Retirement Benefit. If a Participant has a
Separation from Service on or after the Normal Retirement
Date or has a Separation from Service at an Early Retirement
Date, the Employer shall pay to the Participant an annual
retirement benefit, determined pursuant to Section 3.4
hereof and payable pursuant to the provisions of Section 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 equal to the Participant's Account
balance determined as of such Participant's Retirement Date,
as adjusted for subsequent interest credited pursuant to
Section 3.1 hereof.
(b) A Participant's Early Retirement Benefit
shall be an amount equal to the Participant's Account
balance determined as of such Participant's Early Retirement
Date, as adjusted for subsequent interest credited pursuant
to Section 3.1 hereof.
3.5 Payment of Normal Retirement Benefit and Early
Retirement Benefit.
(a) The Normal Retirement Benefit or Early
Retirement Benefit, as applicable, payable to a Participant
upon such Participant's Separation from Service, shall be
payable in the form of substantially equal annual payments
("Annual Payments") for fifteen (15) consecutive years
beginning with the first day of the first full calendar
month following the Participant's Retirement Date, unless a
Participant elects a different form of payment pursuant to
Article V below; provided, however, that if a Participant is
deemed to be a Specified Employee as of the Retirement Date,
then the first annual payment shall
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be delayed until the first day of the first full calendar
month following the lapse of six months after the Retirement
Date. All subsequent Annual Payments shall be paid on the
annual anniversary of the first day of the first full calendar
month following the Participant's Retirement Date.
(b) The Normal Retirement Benefit or Early
Retirement Benefit distribution, as applicable, pursuant to
this section shall be implemented in the following manner:
the amount of the substantially equal payments described
above shall be determined by multiplying the Participant's
Account as of the date of payment 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 Account as of the applicable annual
anniversary of the first day of the first full calendar
month following 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
the Participant's Account during the Participant's
continuation of an Account balance.
3.6 Change in Control Benefit. If a Participant has a
Separation from Service with the Employer within two (2)
years after the occurrence of a Change in Control and prior
to attaining his or her Normal Retirement Date, then the
Employer will pay to the Participant an amount equal to five
(5) times the Participant's then current base salary, as
determined by the Employer, minus, dollar for dollar, the
Participant's Account balance as of the effective date of
the Change in Control. The supplemental benefit payable
under this Section 3.6 shall be made in a single lump sum
payment on the first day of the month following the
Participant's Separation from Service, provided, however,
that if a Participant is deemed to be a Specified Employee
as of the date of Separation from Service, then the lump sum
payment shall be delayed until the first day of the first
full calendar month following the lapse of six months after
the date of Separation from Service. The Participant's
Account balance shall be payable as set forth in Section 3.5
above.
ARTICLE IV-DEATH BENEFITS
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4.1 Participant's Death Following Early or Normal
Retirement. If a Participant dies following his or her
Retirement Date, but prior to the receipt of his or her
final Annual Payment (not to exceed fifteen (15) Annual
Payments), then 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).
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4.2 Participant's Death Prior to Retirement Date. If
a Participant dies after the Participant's Early Retirement
Eligibility Date or Normal Retirement Date but prior to
Separation from Service, 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 designated a Beneficiary or
Beneficiaries) a supplemental amount equal to seven (7)
times the Participant's then current base salary, as
determined by the Employer, minus, dollar for dollar, the
Participant's Account balance as of the date of the
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
designate a Beneficiary or Beneficiaries) within thirty (30)
business days following the Participant's death. The
Participant's Account balance shall be payable to the
Participant's Beneficiaries or estate as set forth in
Section 3.5 above.
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 Section 4.1 or a lump
sum distribution pursuant to Section 4.2, the 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 - ALTERNATIVE FORM OF PAYMENT
_______________________________________
5.1 General. In lieu of receiving the Normal
Retirement Benefit or Early Retirement Benefit in the form
of a fifteen (15) year annuity, a Participant may elect to
receive his or her Normal Retirement Benefit or Early
Retirement Benefit in the form of either (i) a lump sum
distribution equal to 100% of the Participant's Normal
Retirement Benefit or Early Retirement Benefit, or (ii)
Annual Payments for a time period not to exceed fifteen (15)
consecutive years, and calculated in accordance with Section
3.5 of this Plan upon such event. Any new payment elections
made by a Participant on or after January 1, 2005 shall be
made in accordance with this Article V. If a Participant
elects a form of payment upon more than one payment event,
then the first payment event that occurs shall govern how
the payment is made.
5.2 Prior Elections. Any payment elections made by a
Participant before January 1, 2005 shall continue in effect
until such time as the Participant makes a subsequent
payment election pursuant to either Section 5.3 or Section
5.4 below and such payment election becomes effective as set
forth below. If no payment election was previously made,
then the current payment election shall be deemed to be a
fifteen (15) year annuity payable as set forth in Section
3.5 above.
5.3 Transitional Elections. On or before December 31,
2007, if a Participant wishes to change his or her payment
election, the Participant may do so by completing a payment
election form approved by the Plan Committee, provided that
any such election (1) must be made no later than December
31, 2007 and must be made prior to the year in
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which benefit payments are scheduled to commence, (2) must be
made while the Participant is an active employee of the Bank
or one of its subsidiaries or the Corporation, (3) shall not
take effect before the date that the election is made and
accepted by the Plan Committee, (4) does not cause a payment
that would otherwise be made in the year in which the
election is made to be delayed to a later year, and (5) does
not accelerate into the year in which the election is made a
payment that is otherwise scheduled to be made in a later
year.
5.4 Changes in Payment Elections after 2007. On or
after January 1, 2008, if a Participant wishes to change his
or her payment election, the Participant may do so by
completing a payment election form approved by the Plan
Committee, provided that any such election (i) must be made
while the Participant is an active employee of the Bank or
one of its subsidiaries or the Corporation, (ii) must be
made at least 12 months before the date on which any benefit
payments as of a fixed date or pursuant to a fixed schedule
are scheduled to commence, (iii) shall not take effect until
at least 12 months after the date the election is made and
accepted by the Plan Committee, and (iv) for payments to be
made other than upon death, must provide an additional
deferral period of at least five years from the date such
payment would otherwise have been made (or in the case of
any annuity or installment payments treated as a single
payment, five years from the date the first amount was
scheduled to be paid). For purposes of this Plan and clause
(iv) above, all annuities or installment payments under this
Plan shall be treated as a single payment.
ARTICLE VI - BENEFICIARIES
__________________________
6.1 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.
6.2 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 from all liability with
respect to such benefit.
ARTICLE VII - GENERAL LIMITATIONS
_________________________________
All benefits payable under this Plan shall be subject
to the following limitations:
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7.1 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 or her 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.
7.2 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 VIII - PLAN ADMINISTRATION; CLAIMS PROCEDURE
____________________________________________________
8.1 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.
8.2 Scope of Claims Procedures. These claims
procedures are based on final regulations issued by the
Department of Labor and published in the Federal Register on
November 21, 2000 and codified at 29 C.F.R. Section 2560.503-
1. If any provision in these claims procedures conflicts
with the requirements of those regulations, the requirements
of those regulations will prevail.
8.3 Initial Claim. Any Participant or Beneficiary who
believes he or she is entitled to any benefit under the Plan
(a "Claimant") may file a claim with the Plan Committee.
The Plan Committee shall review the claim itself or appoint
an individual or an entity to review the claim. All
references to the Plan Committee in this Article VIII shall
include any such appointee.
(a) Initial Decision. The Claimant shall be notified
within ninety (90) days after the claim is filed
whether the claim is allowed or denied, unless the
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Claimant receives written notice from the Plan
Committee prior to the end of the ninety (90) day
period stating that special circumstances require
an extension of the time for decision, with such
extension not to extend beyond the day which is
one hundred eighty (180) days after the day the
claim is filed.
(b) Manner and Content of Denial of Initial Claims.
If the Plan Committee denies a claim, it must provide
to the Claimant, in writing or by electronic
communication:
(i) The specific reasons for the denial;
(ii) A reference to the provision of the Plan upon
which the denial is based;
(iii) A description of any additional information or
material that the Claimant must provide in order
to perfect the claim;
(iv) An explanation of why such additional material
or information is necessary;
(v) Notice that the Claimant has a right to request a
review of the claim denial and information on the
steps to be taken if the Claimant wishes to request
a review of the claim denial; and
(vi) A statement of the Claimant's right to bring a
civil action under Section 502(a) of ERISA, following
a denial on review of the initial denial.
8.4 Review Procedures.
(a) Request For Review. A request for review of a denied
claim must be made in writing to the Plan Committee within
sixty (60) days after receiving notice of denial. The
decision upon review will be made within sixty (60) days
after the Plan Committee's receipt of a request for review,
unless special circumstances require an extension of time
for processing, in which case a decision will be rendered
not later than one hundred twenty (120) days after receipt
of a request for review. A notice of such an extension must
be provided to the Claimant within the initial sixty (60)
day period and must explain the special circumstances and
provide an expected date of decision.
The reviewer shall afford the Claimant an
opportunity to review and receive, without charge,
all relevant documents, information and records
and to submit issues and comments in writing to
the Plan Committee. The reviewer shall take into
account all comments, documents, records and
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other information submitted by the Claimant relating to the claim
regardless of whether the information was submitted or considered
in the initial benefit determination.
(b) Manner and Content of Notice of Decision on Review. Upon completion
of its review of an adverse claim determination, the Plan Committee
will give the Claimant, in writing or by electronic notification,
a notice containing:
(i) its decision;
(ii) the specific reasons for the decision;
(iii) the relevant provisions of this Plan on which its decision
is based;
(iv) a statement that the Claimant is entitled to receive,
upon request and without charge, reasonable access to, and
copies of, all documents, records and other information in
the Bank's files which is relevant to the Claimant's claim
for benefits;
(v) a statement describing the Claimant's right to bring an
action for judicial review under Section 502(a) of ERISA;
and
(vi) if an internal rule, guideline, protocol or other
similar criterion was relied upon in making the adverse
determination on review, a statement that a copy of the
rule, guideline, protocol or other similar criterion will be
provided without charge to the Claimant upon request.
8.5 Calculation of Time Periods. For purposes of the time periods
specified in this Article, the period of time during which a benefit
determination is required to be made begins at the time a claim is filed in
accordance with the procedures of this Plan without regard to whether all the
information necessary to make a decision accompanies the claim. If a period
of time is extended due to a Claimant's failure to submit all information
necessary, the period for making the determination shall be tolled from the
date the notification is sent to the Claimant until the date the Claimant
responds.
8.6 Legal Action. If the Plan Committee fails to follow the claims
procedures required by this Article, a Claimant shall be deemed to have
exhausted the administrative remedies available under this Plan and shall
be entitled to pursue any available remedy under Section 502(a) of ERISA on
the basis that the Plan has failed to provide a reasonable claims procedure
that would yield a decision on the merits of the claim. A Claimant's
compliance with the foregoing provisions of this Article is a mandatory
requisite to a Claimant's right to commence any legal action with respect to
any claims for benefits under the Plan.
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8.7 Review by the Plan Committee. Notwithstanding
anything in this Plan to the contrary, the Plan Committee
may determine, in its sole and absolute discretion, to
review any claim for benefits submitted by a Claimant under
this Plan.
ARTICLE IX - PARTICIPANT RIGHTS
_______________________________
9.1 Participant 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 a
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.
9.2 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
be transferable by operation of law in the event of a
Participant's or any other person's bankruptcy or
insolvency.
9.3 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 or her employment.
9.4 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, including 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 X - MISCELLANEOUS
_________________________
10.1 Termination of Plan
(a) General. The Employer, upon written notice
to all Participants, 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 the Participants. Upon
termination of this Plan, those Participants that are fully
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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. A termination of the Plan will not be
a distributable event, except in the three circumstances set
forth in Section 10.1(b) below.
(b) Termination. Under no circumstances may the
Plan permit the acceleration of the time or form of any
payment under the Plan prior to the payment events specified
herein, except as provided in this Section 10.1(b). The
Bank may, in its discretion, elect to terminate the Plan in
any of the following three circumstances and accelerate the
payment of the entire unpaid balance of each Participant's
vested benefits as of the date of such payment in accordance
with Section 409A of the Code:
(i) the Plan is irrevocably terminated within 30
days preceding a Change in Control and (1) all
arrangements sponsored by the Bank and/or the
Corporation that would be aggregated with the
Plan under Treasury Regulation Section 1.409A-1(c)(2)
are terminated, and (2) each Participant and all
participants under the other aggregated
arrangements receive all of their benefits under
the terminated arrangements within 12 months of
the date of termination of the arrangements,
(ii) the Plan is terminated at a time that is not
proximate to a downturn in the financial health
of the Bank and/or the Corporation and (1) all
arrangements sponsored by the Bank and/or the
Corporation that would be aggregated with the
Plan under Treasury Regulation Section 1.409A-1(c)(2)
if a Participant had deferrals of compensation
under such arrangements are terminated, (2) no
payments other than payments that would be payable
under the terms of the arrangements if the
termination had not occurred are made within 12
months of the termination of the arrangements; (3)
all payments are made within 24 months of the date
the Bank and/or the Corporation take all necessary
action to irrevocably terminate the arrangement;
and (4) neither the Bank nor the Corporation adopts
a new arrangement that would be aggregated with the
Plan or any terminated arrangement under Treasury
Regulation Section 1.409A-1(c)(2) if a Participant
participated in both arrangements, at any time
within three years following the date the Bank
and/or the Corporation take all necessary action
to irrevocably terminate the Plan or aggregated
arrangement, or
(iii) the Plan is terminated within 12 months
of a corporate dissolution taxed under
Section 331 of the Code, or with the approval
of a
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bankruptcy court pursuant to 11 U.S.C.
Section 503(b)(1)(A), provided that the amounts
deferred by each Participant under the Plan
are included in the Participant's gross
income in the later of (1) the calendar year
in which the termination of the Plan occurs,
(2) the first calendar year in which the
amount is no longer subject to a substantial
risk of forfeiture, or (3) the first calendar
year in which the payment is administratively
practicable.
10.2 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.
10.3 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. Notwithstanding anything
in this Plan to the contrary, the Board of Directors of the
Bank may amend in good faith any terms of this Plan,
including retroactively, in order to comply with Section
409A of the Code.
10.4 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, except to the extent
that federal law is applicable.
10.5 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.
10.6 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.
10.7 Tax Withholding. The Bank shall withhold any
taxes that are required to be withheld from the benefits
provided under this Plan.
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IN WITNESS WHEREOF, the Employer has adopted this
Amended and Restated Supplemental Executive Retirement Plan
effective as of June 27, 2007.
FIRST KEYSTONE BANK
By: /s/ Thomas M. Kelly
______________________________
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